issue-1996-03-21•Federal Register final rules — 1996-03-21
Federal Register final rules — 1996-03-21
issue-1996-03-21Federal Register final rules — 1996-03-21Regulation
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. 96-6916 Agency Funding for Federal Employment Information
[Federal Register Volume 61, Number 56 (Thursday, March 21, 1996)]
[Rules and Regulations]
[Pages 11499-11501]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6916]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
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Federal Register / Vol. 61, No. 56 / Thursday, March 21, 1996 / Rules
and Regulations
[[Page 11499]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Parts 330, 333, and 335
RIN 3206-AH25
Agency Funding for Federal Employment Information
AGENCY: Office of Personnel Management.
ACTION: Final rule.
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SUMMARY: The Office of Personnel Management (OPM) is issuing final
regulations requiring each agency to pay a fee for its share of the
cost of providing employment information through OPM to Federal
employees and the public. The regulations implement a permanent
statutory provision of Public Law 104-52, which authorizes OPM to
charge fees to agencies to pay the cost of providing Federal employment
information and related services. The fee for FY 96 will be based on
each agency's proportionate share of the Federal competitive service
workforce as of March 31, 1995, including all permanent and
nonpermanent employees.
EFFECTIVE DATE: March 21, 1996.
FOR FURTHER INFORMATION CONTACT:
Richard Whitford on 202-606-2525, TDD 202-606-0591, or FAX 202-606-
5049.
SUPPLEMENTARY INFORMATION: The Treasury, Postal Service, and General
Government Appropriations Act, 1996 (Pub. L. 104-52, November 19, 1995)
shifts the funding for the Federal employment information function from
OPM appropriations to a combination of OPM appropriations and fees for
services to be paid by agencies into OPM's revolving fund.
Employment Information
Under 5 U.S.C. 3327, agencies must notify OPM of (1) competitive
examinations and (2) vacancies in the competitive service and Senior
Executive Service for which the agency will consider applicants from
outside the Federal service. Under 5 U.S.C. 3330, agencies must notify
OPM of competitive service job announcements open to applicants outside
an agency's own workforce. Under both laws, OPM is responsible for
disseminating the information to the public.
Agencies also are required by the Interagency Career Transition
Assistance Plan for Displaced Employees in 5 CFR part 330 (60 FR 67281,
December 29, 1995) to notify OPM of competitive service vacancies open
to candidates outside an agency's workforce, including temporary
vacancies lasting 90 days or more. OPM makes this information available
to assist displaced employees in finding employment. The Plan
implemented, in part, the President's memorandum of September 12, 1995,
entitled ``Career Transition Assistance for Federal Employees.''
In addition to carrying out the obligations discussed above, OPM
provides employment information to support outplacement services of
agency career transition centers. OPM also responds to a large volume
of inquiries from the public, Federal employees, Congressional offices,
and others on a broad range of employment topics.
Public Law 104-52 amended 5 U.S.C. 3330, which addresses
competitive service announcements, to authorize OPM to charge fees to
agencies to pay the cost of providing services under section 3330 and
for related Federal employment information.
Proposed Regulations and Comments
On January 8, 1996, OPM issued proposed regulations at 61 FR 546 to
implement the new funding arrangement. We proposed that fees for FY 96
be based on each agency's proportionate share of the Federal
competitive service workforce as of March 31, 1995, including all
permanent and nonpermanent employees. We received written comments from
five agencies.
One agency disagreed with the proposal to base fees on each
agency's proportionate share of competitive service employees and
suggested that fees be based on the number of inquiries handled
annually. The commenter believes the OPM proposal would cause smaller
agencies to subsidize larger agencies that use the OPM services more
frequently.
OPM believes that a fee based on employment levels is fair. Such a
funding mechanism reflects the centralized recruitment benefits to an
agency, employment services to its employees, and dissemination of
information and responses to a high volume of inquiries to the general
public that otherwise would go to individual agencies.
OPM can identify the number of inquiries handled through its
employment information system but not the source of contacts nor the
agencies of interest to individual job seekers. Furthermore, there is
no evidence that larger agencies make relatively greater use of OPM's
employment information system than smaller agencies do.
Three agencies disagreed with the use of employment levels as of
March 31, 1995, and suggested, respectively, mid-September 1995,
October 31, 1995, or March 31, 1996, as more appropriate for the period
in which services are provided. OPM has retained March 31, 1995. If
future agency fees are based on employment levels, OPM will need to
notify agencies of their share by the third quarter of the fiscal year
preceding the one in which the fee is due to allow for agency budget
planning. Employment levels will be taken from OPM's Central Personnel
Data File (CPDF). Because agencies transmit personnel actions to CPDF
on a quarterly basis, the most recent available data will be as of
March 31, of each year.
An official from a component of a department commented that fees
based on employment levels as of March 31 would not be appropriate for
his organization because in a recent reorganization a considerable
number of employees were transferred to a different component. OPM will
notify each agency/department headquarters of its total agency fee
(unless an agency requests otherwise). How the total fee is assessed
among the components will be an internal matter for each agency.
One agency recommended that assessment be waived for any agency
that does not have an appropriation for the current year. While we
understand the concerns of agencies under a continuing resolution, we
do not believe an exemption would be equitable to
[[Page 11500]]
other agencies--which also may be operating under a reduced
appropriation.
Another agency suggested that it be given the option of using
either OPM employment information services or developing its own
recruitment and outreach programs. The OPM employment information
function complements individual agency recruitment programs. However,
agencies do not have an option under 5 U.S. 3327 and 3330; they are
required to report examinations and vacancies to OPM. Nor does OPM have
an option. The law requires OPM to disseminate employment information
to the public, and Congress has made clear through Public Law 104-52
that agencies are to share in the funding of that responsibility.
The Administration and Congress clearly favor a single job
information system over multiple agency-based systems. Beginning with
National Performance Review recommendations to the President's
initiative on career transition assistance and recent amendments to
title 5, U.S.C, the support for an interagency information system has
been clear and consistent. Thus, as agencies undergo downsizing and
restructuring, a major consideration should be the appropriateness and
cost-effectiveness of developing or operating duplicative employment
information systems. Agencies also should note that adjustments to
personnel reductions may be eased through more effective use of the
Federal Employment Information System. Agencies may take the following
steps:
Refer inquiries about vacancies and employment that can be
handled by OPM's automated Governmentwide employment information system
directly to it, such as requests for job announcements and application
materials.
Make a single entry of vacancies to the Federal Employment
Information System instead of mailing hard copy announcements to
multiple recruiting points or third-party providers, or using paid
advertising.
When entering jobs into the database, make maximum use of
the ``remarks'' section of the job record to provide information and
minimize job seekers' follow-up calls to the personnel office. Also, to
further minimize the number of inquiries to agencies and reduce
personnel office workload, OPM will provide job announcements directly
to job seekers (from electronic files of job announcements agencies
transmit to OPM).
OPM recognizes that not every agency is prepared at present to
provide electronic files of job announcements. We plan to work with
those agencies during a transition period in which we will continue to
provide entry assistance. In light of the benefits that will accrue to
agencies through electronic transmission, our goal is that they acquire
the necessary capability and assume the data entry and vacancy
announcement uploading functions by May 1, 1996.
One agency commented that the proposal removes agency flexibility
to determine how best to notify State employment offices of
examinations/vacancies, and that agency discretion be restored because
agency funds are affected. Section 3327 of title 5, U.S.C., requires
OPM to make this information available to State Employment Service
offices. Since 1989, OPM has met this statutory requirement through
regular electronic reports of job listings in the Federal Employment
Information System to America's Job Bank, a Department of Labor funded
organization that disseminates vacancy information to State Employment
Service offices. Agencies need take no further action. Any attempt to
delete selected agency data, as proposed, would have an adverse impact
on this cost-effective approach as it now operates.
A competitive service agency suggested that excepted service
agencies also be assessed for their fair share because they too benefit
from the system. OPM lacks legal authority to assess excepted agencies
because 5 U.S.C. 3327 and 3330 do not cover excepted positions.
Final Regulations
OPM is adopting the regulations as proposed with only minor
editorial changes. The fee for FY 96 will be based on each agency's
proportionate share of the Federal competitive service workforce as of
March 31, 1995, including all permanent and nonpermanent employees. OPM
has been appropriated $2.5 million for the employment information
function in FY 96. The balance to be collected through agency fees is
$2.8 million. OPM will bill at the agency headquarters level to
minimize billing and accounting unless we hear otherwise from an
agency.
Concerning future years, OPM will soon establish a working group of
the Interagency Advisory Group, consisting of officials from
representative agencies and OPM, to review the level, quality and costs
of information services provided and make recommendations for improving
efficiency and effectiveness. All agencies will have the opportunity,
through the Interagency Advisory Group, to discuss and comment on
recommendations of the working group prior to implementation.
OPM will regularly report to agencies the information it collects
regarding customer satisfaction and complaints. OPM also will notify
each agency annually of the costs of the services, its obligation and
of payment procedures.
The final regulations also consolidate the public notice
requirements for competitive service positions in parts 330, 333, and
335.
Waiver of Delay in Effective Date
Pursuant to 5 U.S.C. 553(d)(3), I find that good cause exists to
waive the delay in effective date and make these regulations effective
in less than 30 days. The statutory basis for these regulations (Pub.
L. 104-52) was effective on November 19, 1995, and OPM's reduced FY 96
appropriations will not allow it to continue the employment information
function without reimbursement from agencies. It would be contrary to
the public interest and impracticable to delay implementation.
Regulatory Flexibility Act
I certify that this regulation will not have a significant economic
impact on a substantial number of small entities because it pertains
only to Federal agencies.
Executive Order 12866, Regulatory Review
This rule has been reviewed by the Office of Management and Budget
in accordance with Executive Order 12866.
List of Subjects in 5 CFR Part 330
Armed forces reserves, Government employees.
List of Subjects in 5 CFR Parts 333 and 335
Government employees.
U.S. Office of Personnel Management.
James B. King,
Director.
Accordingly, OPM is amending 5 CFR parts 330, 333, and 335, as
follows:
PART 330--RECRUITMENT, SELECTION, AND PLACEMENT (GENERAL)
1. The authority citation for part 330 is revised to read as
follows:
Authority: 5 U.S.C. 1302, 3301, 3302; E.O. 10577, 3 CFR, 1954-58
Comp., p. 218.
Section 330.102 also issued under 5 U.S.C. 3327 and 3330.
[[Page 11501]]
Subpart B also issued under 5 U.S.C. 3315 and 8151.
Section 330.401 also issued under 5 U.S.C. 3310.
Subpart H also issued under 5 U.S.C. 8337(h) and 8457(b).
Subpart I also issued under 106 Stat. 2720, 5 U.S.C. 3301 note.
2. Section 330.102 is revised, to read as follows:
Sec. 330.102 Federal employment information.
(a) Vacancies open to the public. (1) Notice required--(i) Under 5
U.S.C. 3327, Federal agencies must notify OPM promptly of:
(A) Open competitive examinations;
(B) Vacancies in the competitive service to be filled under direct
hire procedures or part 333 of this chapter; and
(C) Vacancies in the Senior Executive Service for which the agency
seeks applications from persons outside the Federal service. Also, in
accordance with Sec. 317.501(b)(2) of this chapter, agencies must
notify OPM of all Senior Executive Service vacancies to be filled by
initial career appointment.
(ii) OPM will provide this information to the employment offices of
the United States Employment Service.
(2) Agencies covered. Paragraph (a)(1) of this section applies to:
(i) The executive departments listed at 5 U.S.C. 101;
(ii) The military departments listed at 5 U.S.C. 102;
(iii) Government owned corporations in the executive branch as
described at 5 U.S.C. 103;
(iv) Independent establishments in the executive branch as
described at 5 U.S.C. 104, including the Nuclear Regulatory Commission;
and
(v) Government Printing Office.
(b) All other vacancies--(1) Notice required. Under 5 U.S.C. 3330,
OPM must maintain, and make available to the public, a list of agency
vacancy announcements for positions in the competitive service. Under
Sec. 330.706 of this chapter, agencies must notify OPM promptly of
competitive service vacancies to be filled for more than 90 days when
the agency will accept applications from individuals outside the
agency's own work force.
(2) Agencies covered. Except for any executive agency or unit
thereof whose principal function is the conduct of foreign intelligence
or counterintelligence activities, as determined by the President,
paragraph (b)(1) of this section applies to:
(i) The executive departments listed at 5 U.S.C. 101;
(ii) The military departments listed at 5 U.S.C. 102;
(iii) Government corporations in the executive branch as described
at 5 U.S.C. 103; and
(iv) Independent establishments in the executive branch as
described at 5 U.S.C. 104.
(c) Funding. Under 5 U.S.C. 3330(f), OPM is authorized to charge
fees to agencies for their share of the cost of providing employment
information to the public and to Federal employees. OPM will work with
agencies to review the effectiveness and efficiency of the Federal
Employment Information System in meeting Federal agency and public
needs and identify improvements to the system, consistent with the
minimum level of service and statutory requirements. Subsequently, OPM
will annually compute the cost of providing employment information and
notify each agency of its share, along with a full accounting of the
costs, and payment procedures.
PART 333--RECRUITMENT AND SELECTION FOR TEMPORARY AND TERM
APPOINTMENTS OUTSIDE THE REGISTER
3. The authority citation for part 333 is revised to read as
follows:
Authority: 5 U.S.C. 1302, 3301, 3302, 3327, 3330; E.O. 10577, 3
CFR 1954-58 Comp., p. 218; section 333.203 also issued under 5
U.S.C. 1104.
4. Section 333.102 is revised to read as follows:
Sec. 333.102 Notice of job announcements to OPM.
Under 5 U.S.C. 3327 and 3330, agencies are required to report job
announcements to OPM when recruiting outside the register. This
requirement is implemented through Sec. 330.102 of this chapter.
PART 335--PROMOTION AND INTERNAL PLACEMENT
5. The authority citation for part 335 is revised to read as
follows:
Authority: 5 U.S.C. 3301, 3302, 3330; E.O. 10577, 3 CFR 1957-58
Comp., p. 218.
6. Section 335.105 is revised to read as follows:
Sec. 335.105 Notice of job announcements to OPM.
Under 5 U.S.C. 3330, agencies are required to report job
announcements to OPM for vacancies for which an agency will accept
applications from outside the agency's work force. This requirement is
implemented through Sec. 330.102 of this chapter.
[FR Doc. 96-6916 Filed 3-21-96; 8:45 am]
BILLING CODE 6323-01-M
Complete official Federal Register PDF
FR Doc. 96-6854 Groundfish of the Gulf of Alaska; Pacific Cod for Processing by the Inshore Component
[Federal Register Volume 61, Number 56 (Thursday, March 21, 1996)]
[Rules and Regulations]
[Page 11590]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6854]
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DEPARTMENT OF COMMERCE
50 CFR Part 672
[Docket No. 960129018-6018-01; I.D. 031596A]
Groundfish of the Gulf of Alaska; Pacific Cod for Processing by
the Inshore Component
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Closure.
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SUMMARY: NMFS is closing the directed fishery for Pacific cod for
processing by the inshore component in the Central Regulatory Area of
the Gulf of Alaska (GOA). This action is necessary to prevent exceeding
the allocation of Pacific Cod for processing by the inshore component
in the Central Regulatory Area.
EFFECTIVE DATE: 12 noon, Alaska local time (A.l.t.), March 18, 1996,
until 12 midnight, A.l.t., December 31, 1996.
FOR FURTHER INFORMATION CONTACT: Andrew N. Smoker, 907-586-7228.
SUPPLEMENTARY INFORMATION: The groundfish fishery in the GOA exclusive
economic zone is managed by NMFS according to the Fishery Management
Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North
Pacific Fishery Management Council under authority of the Magnuson
Fishery Conservation and Management Act. Fishing by U.S. vessels is
governed by regulations implementing the FMP at 50 CFR parts 620 and
672.
In accordance with Sec. 672.20(c)(1)(ii)(B), the allocation of
Pacific cod for processing by the inshore component in the Central
Regulatory Area was established by the Final 1996 Harvest
Specifications for Groundfish (61 FR 4304, February 5, 1996) as 38,610
metric tons (mt).
The Director, Alaska Region, NMFS (Regional Director), has
determined, in accordance with Sec. 672.20(c)(2)(ii), that the
allocation of Pacific cod total allowable catch for processing by the
inshore component in the Central Regulatory Area soon will be reached.
The Regional Director established a directed fishing allowance of
33,610 mt, with consideration that 5,000 mt will be taken as incidental
catch in directed fishing for other species in the Central Regulatory
Area. The Regional Director has determined that the directed fishing
allowance has been reached. Consequently, NMFS is prohibiting directed
fishing for Pacific cod by vessels catching Pacific cod for processing
by the inshore component in the Central Regulatory Area.
Maximum retainable bycatch amounts for applicable gear types may be
found in the regulations at Sec. 672.20(g).
Classification
This action is taken under 50 CFR 672.20 and is exempt from review
under E.O. 12866.
Authority: 16 U.S.C. 1801 et seq.
Dated: March 18, 1996.
Richard W. Surdi,
Acting Director, Office of Fisheries Conservation and Management,
National Marine Fisheries Service.
[FR Doc. 96-6854 Filed 3-18-96; 2:20 pm]
BILLING CODE 3510-22-F
Complete official Federal Register PDF
FR Doc. 96-6834 National Poultry Improvement Plan and Auxiliary Provisions
[Federal Register Volume 61, Number 56 (Thursday, March 21, 1996)]
[Rules and Regulations]
[Pages 11515-11525]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6834]
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DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
9 CFR Parts 82, 145, and 147
[Docket No. 94-091-2]
National Poultry Improvement Plan and Auxiliary Provisions
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Final rule.
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SUMMARY: We are amending the National Poultry Improvement Plan (the
Plan) and its auxiliary provisions by providing new or modified
administrative and testing procedures for Plan participants and
participating flocks. These changes, which were voted on and approved
by the voting delegates at the Plan's 1992 and 1994 National Plan
Conferences, will keep the provisions of the Plan current with changes
in the poultry industry, reduce paperwork requirements for some Plan
participants, establish new program classifications, and allow the use
of new sampling and laboratory procedures.
EFFECTIVE DATE: April 22, 1996.
FOR FURTHER INFORMATION CONTACT: Mr. Andrew R. Rhorer, Senior
Coordinator, Poultry Improvement Staff, National Poultry Improvement
Plan, Veterinary Services, APHIS, USDA, 1500 Klondike Road, Suite A-
102, Conyer, GA 30207; (404) 922-3496.
SUPPLEMENTARY INFORMATION:
Background
The National Poultry Improvement Plan (referred to below as ``the
Plan'') is a cooperative Federal-State-industry mechanism for
controlling certain poultry diseases. The Plan consists of a variety of
programs intended to prevent and control egg-transmitted, hatchery-
disseminated poultry diseases. Participation in all Plan programs is
voluntary, but flocks, hatcheries, and dealers must qualify as ``U.S.
Pullorum-Typhoid Clean'' before participating in any other Plan
program. Also, the regulations in 9 CFR part 82, subpart B, which
provide for certain testing, restrictions on movement, and other
restriction on certain chickens, eggs, and other articles due to the
presence of Salmonella enteritidis, require that no hatching eggs or
newly hatched chicks from egg-type chicken breeding flocks may be moved
interstate unless they are classified ``U.S. Sanitation Monitored''
under the Plan or they meet the requirements of a State classification
plan that the Administrator of the Animal and Plant Health Inspection
Service (APHIS) has determined to be equivalent to the Plan, in
accordance with 9 CFR 145.23(d).
The Plan identifies States, flocks, hatcheries, and dealers that
meet certain disease control standards specified in the Plan's various
programs. As a result, customers can buy poultry that has tested clean
of certain diseases or that has been produced under disease-prevention
conditions.
The regulations in 9 CFR parts 145 and 147 (referred to below as
the regulations) contain the provisions of the Plan. APHIS amends these
provisions from time to time to incorporate new scientific information
and technologies into the Plan.
On July 7, 1995, we published in the Federal Register (60 FR 35343-
35353, Docket No. 94-091-1) a proposal to amend the regulations to:
1. Require the ratio of male to female birds in representative
samples taken from certain flocks for pullorum-typhoid testing to
reflect the ratio of male to female birds in the flock from which the
sample was taken;
2. Alter the number of birds serologically monitored for Mycoplasma
gallisepticum and M. synoviae in egg-type and meat-type chicken
breeding flocks;
3. Allow the use of a federally licensed enzyme-linked
immunosorbent assay (ELISA) test for the serological screening of egg-
type chickens in the ``U.S. S. Enteritidis Monitored'' program;
4. Allow the use of fishmeal as an animal protein source for meat-
type breeding chickens and turkey breeding flocks;
5. Establish a new ``U.S. S. Enteritidis Clean'' classification for
primary meat-type chicken breeding flocks;
6. Establish a new ``U.S. M. Synoviae Clean State'' classification
for turkeys;
[[Page 11516]]
7. Provide alternative reporting methods for participating
waterfowl, exhibition poultry, and game bird flocks;
8. Establish a maximum number of positive samples for Mycoplasma
gallisepticum or M. synoviae to be examined using the hemagglutination
inhibition (HI) and/or serum plate dilution (SPD) tests;
9. Allow the use of a colony lift assay as a supplemental screening
test to aid in the detection of group D salmonella suspect colonies on
selective and non-selective agar culture plates;
10. Establish new procedures for collecting environmental samples
and cloacal swabs from egg-type and meat-type chicken flocks and
waterfowl, exhibition poultry, and game bird flocks for bacteriological
examination;
11. Provide a laboratory protocol for the bacteriological
examination of baby chicks from egg-type and meat-type chicken flocks
and waterfowl, exhibition poultry, and game bird flocks; and
12. Modify the composition of the Plan's General Conference
Committee.
We also proposed to amend several other sections of the regulations
to reflect the proposed changes discussed above or to reflect a change
made in a previously published final rule.
We solicited comments concerning our proposal for 60 days ending
September 5, 1995. We received three comments by that date. They were
from a State agriculture department, a college of veterinary medicine,
and a State egg quality assurance program. We carefully considered all
of the comments we received. They are discussed below.
One commenter pointed out that laboratory procedure for the
bacteriological examination of cull chicks should have specified that
the 25 randomly selected 1- to 5-day-old chicks must be chicks that
have not been housed with any other poultry. The commenter correctly
noted that the ``have not been housed'' provision was part of the
laboratory procedure that was approved by the voting delegates at the
Plan's 1994 National Plan Conference. We agree with the commenter and
acknowledge that the words in question were inadvertently omitted from
the text of the proposed rule. We have, therefore, added the words
``that have not been placed in a brooding house'' to paragraph (a) of
new Sec. 147.17.
Another commenter fully supported several specific aspects of the
proposed rule, including the addition of Sec. 147.17, the laboratory
procedure recommended for the bacteriological examination of cull
chicks for salmonella. The commenter particularly applauded the
inclusion of the bursa of Fabricius in the organ pool for such
examinations, and recommended that the other testing protocols in part
147 be amended to include the bursa of Fabricius in any organ pools
collected for examination. Because the commenter's suggested amendments
were not within the scope of the proposed rule, we cannot make such
changes in this final rule. However, the commenter's recommendation
will be forwarded to the Plan's General Conference Committee for
consideration and could be included in a future rulemaking.
The third commenter was concerned about the use of the word
``clean'' in the ``U.S. S. Enteritidis Clean'' classification.
Specifically, he stated that the word ``clean'' in the classification
would lead one to believe that a flock classified as such is negative
for Salmonella enteritidis serotype Enteritidis (SE), but the testing
procedures within the classification allow a flock with an SE-positive
environment and one SE-positive bird from a 25-bird sample to still be
eligible for ``clean'' status if no SE was recovered from a second 25-
bird sample. To the commenter, the SE-positive environment and bird
were indicative of at least low levels of SE infection in the flock,
even if no SE was recovered from a second 25-bird sample. The commenter
concluded that the classification of a flock from which SE has been
isolated from an environmental sample or in which one bird has been
found to be SE-positive as ``U.S. S. Enteritidis Clean'' is misleading
and could result in the spread of SE through infected chicks.
As we stated in the proposed rule, the introductory text of
Sec. 145.33(h) provides that the ``U.S. S. Enteritidis Clean''
classification is intended for primary meat-type breeders who wish to
assure their customers that the chicks produced are certified free of
SE; the ``clean'' designation does not mean that the entire flock has
been conclusively shown to be negative for SE. The regulations in
Sec. 145.33(h) require that environmental samples be collected once the
flock reaches 4 months of age, then every 30 days thereafter. If SE is
isolated from an environmental sample, 25 randomly selected birds from
the flock must be bacteriologically examined for SE. If only one of the
25 birds is found positive for SE, there is the possibility that there
was some cross-contamination in the laboratory that conducted the
tests. For that reason, we included the provision that allows the Plan
participant to request the bacteriological examination of a second 25-
bird sample if only one bird from the first sample was SE-positive. The
testing of a 25-bird sample is not the only action that must be taken
after SE is isolated in an environmental sample, however; the
regulations also require that blood samples from 300 birds be
officially tested with pullorum antigen every 30 days with no positive
samples found. We believe that this monthly serologic testing of at
least 300 birds will be sufficient to detect the low levels of SE
infection that the commenter feared might remain undetected through the
testing of 25 or 50 birds, so we have made no change in this final rule
based on that comment.
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, with the changes discussed in this document and other
minor changes for clarity and consistency and to correct typographical
errors.
Executive Order 12866 and Regulatory Flexibility Act
This rule has been reviewed under Executive Order 12866. The rule
has been determined to be not significant for the purposes of Executive
Order 12866 and, therefore, has not been reviewed by the Office of
Management and Budget.
The changes contained in this document are based on the
recommendations of representatives of member States, hatcheries,
dealers, flockowners, and breeders who took part in the Plan's 30th and
31st Biennial Conferences. The changes will keep the provisions of the
Plan current with changes in the poultry industry, reduce paperwork
requirements for some Plan participants, establish new program
classifications, and allow the use of new sampling and laboratory
procedures.
The Plan serves as a ``seal of approval'' for egg and poultry
producers in the sense that tests and procedures recommended by the
Plan are considered optimal for the industry. Several of the
recommendations in this rule, such as the serological sampling of male
meat-type birds for pullorum-typhoid and the use of fishmeal as a
protein source, are already practiced by the industry. Other changes,
such as the addition of a laboratory protocol for the bacteriological
examination of baby chicks, provide guidelines for practices that may
not currently be in use but are recognized as being potentially
beneficial for the industry. In all cases, the changes have been
generated by the industry itself with the goal of reducing disease risk
and increasing product marketability.
[[Page 11517]]
Because participation in the Plan is voluntary, individuals are
likely to remain in the program as long as the costs of implementing
the program are lower than the added benefits they receive from the
program.
The only change in this document that will entail additional costs
for some producers is the creation of the ``U.S. S. Enteritidis Clean''
classification for primary meat-type chicken breeding flocks. However,
we expect that any additional costs associated with the new
classification will be slight in comparison to the expected increase in
U.S. poultry exports, particularly to countries that require strict
Salmonella enteritidis testing of poultry.
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 in conflict 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
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
3501 et seq.), the information collection or recordkeeping requirements
included in this rule have been approved by the Office of Management
and Budget (OMB) under OMB control number 0579-0007.
List of Subjects
9 CFR Part 82
Animal diseases, Poultry and poultry products, Quarantine,
Reporting and recordkeeping requirements, Transportation.
9 CFR Parts 145 and 147
Animal diseases, Poultry and poultry products, Reporting and
recordkeeping requirements.
Accordingly, 9 CFR parts 82, 145, and 147 are amended as follows:
PART 82--EXOTIC NEWCASTLE DISEASE IN ALL BIRDS AND POULTRY:
PSITTACOSIS AND ORNITHOSIS IN POULTRY: POULTRY DISEASE CAUSED BY
SALMONELLA ENTERITIDIS SEROTYPE ENTERITIDIS
1. The authority citation for part 82 is revised to read as
follows:
Authority: 21 U.S.C. 111-113, 115, 117, 120, 123-126, 134a,
134b, and 134f; 7 CFR 2.18, 2.22, 2.53, 2.80, and 371.2(d).
Sec. 82.30 [Amended]
2. In Sec. 82.30, in the definition of certified Salmonella
enteritidis serotype enteritidis tested free flocks, the words
``Sanitation Monitored'' are removed and the words ``S. Enteritidis
Monitored'' added in their place.
Sec. 82.34 [Amended]
3. In Sec. 82.34, the words ``Sanitation Monitored'' are removed
and the words ``S. Enteritidis Monitored'' added in their place.
PART 145--NATIONAL POULTRY IMPROVEMENT PLAN
4. The authority citation for part 145 continues to read as
follows:
Authority: 7 U.S.C. 429; 7 CFR 2.22, 2.80, and 371.2(d).
5. In Sec. 145.10, paragraphs (g) and (h) are revised and new
paragraphs (m) and (n) are added to read as follows:
Sec. 145.10 Terminology and classification; flocks, products, and
States.
* * * * *
(g) U.S. Pullorum-Typhoid Clean State. (See Sec. 145.24(a),
Sec. 145.34(a), Sec. 145.44(a), and Sec. 145.54(a).)
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[[Page 11518]]
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(h) U.S. Pullorum-Typhoid Clean State, Turkeys. (See
Sec. 145.44(b).)
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[[Page 11519]]
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* * * * *
(m) U.S. S. Enteritidis Clean. (See Sec. 145.33(h).)
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(n) U.S. M. Synoviae Clean State, Turkeys. (See Sec. 145.44(d).)
BILLING CODE 3410-34-P
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6. Section 145.14 is amended by revising the introductory text
immediately after the third sentence (which ends with the words ``in
the house'') to read as follows:
Sec. 145.14 Blood testing.
* * * The ratio of male to female birds in representative samples
of birds from meat-type chicken, waterfowl,
[[Page 11520]]
exhibition poultry, and game bird flocks must be the same as the ratio
of male to female birds in the flock. In houses containing fewer than
30 birds, all birds in the house must be tested.
* * * * *
7. Section 145.23 is amended as follows:
a. Paragraph (c)(1)(i) is amended by removing the words ``with the
approval of the Official State Agency and the concurrence of the
Service, provided that a minimum'' and adding the words ``if all pens
are equally represented and a total'' in their place.
b. Paragraph (c)(1)(ii)(A) is revised to read as set forth below.
c. In paragraph (d)(1)(vii), the first sentence is revised to read
as set forth below.
d. Paragraph (e)(1)(i) is amended by removing the words ``, with
the approval of the Official State Agency and the concurrence of the
Service, provided that a minimum'' and adding the words ``if all pens
are equally represented and a total'' in their place.
e. Paragraph (e)(1)(ii)(A) is revised to read as set forth below.
Sec. 145.23 Terminology and classification; flocks and products.
* * * * *
(c) * * *
(1) * * *
(ii) * * *
(A) At intervals of not more than 90 days, 75 birds from the flock
shall be tested, Provided, that fewer than 75 birds from the flock may
be tested at any one time if all pens are equally represented and a
total of at least 75 birds from the flock is tested within each 90-day
period; or
* * * * *
(d) * * *
(1) * * *
(vii) Blood samples from 300 non-vaccinated birds as described in
paragraph (d)(1)(vi) of this section shall be tested with either
pullorum antigen or by a federally licensed Salmonella enteritidis
enzyme-linked immunosorbent assay (ELISA) test when the flock is more
than 4 months of age. * * *
* * * * *
(e) * * *
(1) * * *
(ii) * * *
(A) At intervals of not more than 90 days, 75 birds from the flock
shall be tested: Provided, That fewer than 75 birds from the flock may
be tested at any one time if all pens are equally represented and a
total of at least 75 birds from the flock is tested within each 90-day
period; or
* * * * *
8. Section 145.33 is amended as follows:
a. Paragraph (c)(1)(i) is amended by removing the words ``with the
approval of the Official State Agency and the concurrence of the
Service, provided that a minimum'' and adding the words ``if all pens
are equally represented and a total'' in their place.
b. Paragraph (c)(1)(ii)(A) is revised to read as set forth below.
c. In paragraph (d)(1)(iii), the first sentence is amended by
removing the word ``should'' and adding the word ``shall'' in its
place, and by adding the words ``or the Fishmeal Inspection Program of
the National Marine Fisheries Service'' immediately before the period.
d. Paragraph (d)(1)(iv) is amended by removing the word ``should''
and adding the word ``shall'' in its place, and by adding the words
``or the Fishmeal Inspection Program of the National Marine Fisheries
Service'' immediately before the semicolon.
e. Paragraph (e)(1)(i) is amended by removing the words ``, with
the approval of the Official State Agency and the concurrence of the
Service, provided that a minimum'' and adding the words ``if all pens
are equally represented and a total'' in their place.
f. Paragraph (e)(1)(ii)(A) is revised to read as set forth below.
g. A new paragraph (h) is added to read as set forth below.
Sec. 145.33 Terminology and classification; flocks and products.
* * * * *
(c) * * *
(1) * * *
(ii) * * *
(A) At intervals of not more than 90 days, 75 birds from the flock
shall be tested, Provided, That fewer than 75 birds from the flock may
be tested at any one time if all pens are equally represented and a
total of at least 75 birds from the flock is tested within each 90-day
period; or
* * * * *
(e) * * *
(1) * * *
(ii) * * *
(A) At intervals of not more than 90 days, 75 birds from the flock
shall be tested: Provided, That fewer than 75 birds from the flock may
be tested at any one time if all pens are equally represented and a
total of at least 75 birds from the flock is tested within each 90-day
period; or
* * * * *
(h) U.S. S. Enteritidis Clean. This classification is intended for
primary meat-type breeders wishing to assure their customers that the
chicks produced are certified free of Salmonella enteritidis.
(1) A flock and the hatching eggs and chicks produced from it shall
be eligible for this classification if they meet the following
requirements, as determined by the Official State Agency:
(i) The flock originated from a U.S. S. Enteritidis Clean flock, or
meconium from the chicks and a sample of chicks that died within 7 days
after hatching have been examined bacteriologically for S. enteritidis
at an authorized laboratory and any group D salmonella samples have
been serotyped.
(ii) All feed fed to the flock meets the following requirements:
(A) Pelletized feed contains either no animal protein or only
animal protein products produced under the Animal Protein Products
Industry (APPI) Salmonella Education/Reduction Program or the Fishmeal
Inspection Program of the National Marine Fisheries Service. The
protein products must have a minimum moisture content of 14.5 percent
and must have been heated throughout to a minimum temperature of 190
deg.F, or to a minimum temperature of 165 deg.F for at least 20
minutes, or to a minimum temperature of 184 deg.F under 70 lbs.
pressure during the manufacturing process;
(B) Mash feed contains either no animal protein or only animal
protein product supplements manufactured in pellet form and crumbled;
and
(C) All feed is stored and transported in such a manner as to
prevent possible contamination.
(iii) The flock is maintained in compliance with Secs. 147.21,
147.24(a), and 147.26 of this chapter.
(iv) Environmental samples, as described in Sec. 147.12 of this
chapter, are collected from the flock by an Authorized Agent when the
flock reaches 4 months of age and every 30 days thereafter. The
environmental samples shall be examined bacteriologically for group D
salmonella at an authorized laboratory, and cultures from group D
positive samples shall be serotyped.
(v) Blood samples from 300 birds from the flock are officially
tested with pullorum antigen when the flock is at least 4 months of
age. All birds with positive or inconclusive reactions, up to a maximum
of 25 birds, shall be submitted to an authorized laboratory and
examined for the presence of group D salmonella in accordance with
Secs. 147.10 and 147.11 of this chapter. Cultures from group D positive
samples shall be serotyped.
(vi) Hatching eggs produced by the flock are collected as quickly
as possible, are handled as described in
[[Page 11521]]
Sec. 147.22 of this chapter, and are sanitized or fumigated.
(vii) Hatching eggs produced by the flock are incubated in a
hatchery that is in compliance with the recommendations in Secs. 147.23
and 147.24(b) of this chapter, and the hatchery must have been
sanitized either by a procedure approved by the Official State Agency
or by fumigation.
(2) If Salmonella enteritidis serotype Enteritidis (SE) is isolated
from a specimen taken from a bird in the flock, except as provided in
paragraph (h)(3) of this section, the flock shall not be eligible for
this classification.
(3) If SE is isolated from an environmental sample collected from
the flock in accordance with in paragraph (h)(1)(iv) of this section,
25 randomly selected live birds from the flock must be
bacteriologically examined for SE as described in Sec. 147.11 of this
chapter. If only one bird from the 25-bird sample is found positive for
SE, the participant may request bacteriological examination of a second
25-bird sample from the flock. If no SE is recovered from any of the
specimens in the second sample, the flock will be eligible for the
classification and will remain eligible for this classification if the
flock is tested in accordance with paragraph (h)(1)(v) of this section
each 30 days and no positive samples are found.
(4) In order for a hatchery to sell products of this
classification, all products handled by the hatchery must meet the
requirements of this paragraph.
(5) This classification may be revoked by the Official State Agency
if the participant fails to follow recommended corrective measures. The
Official State Agency shall not revoke the participant's classification
until the participant has been given an opportunity for a hearing in
accordance with rules of practice adopted by the Official State Agency.
(Approved by the Office of Management and Budget under control number
0579-0007)
Sec. 145.43 [Amended]
9. In Sec. 145.43, paragraph (f)(3)(ii) is amended by adding the
words ``or the Fishmeal Inspection Program of the National Marine
Fisheries Service'' immediately before the period.
10. In Sec. 145.44, a new paragraph (d) is added to read as
follows:
Sec. 145.44 Terminology and classification; States.
* * * * *
(d) U.S. M. Synoviae Clean State, Turkeys. (1) A State will be
declared a U.S. M. Synoviae Clean State, Turkeys, if the Service
determines that:
(i) No Mycoplasma synoviae is known to exist nor to have existed in
turkey breeding flocks in production within the State during the
preceding 12 months;
(ii) All turkey breeding flocks in production are tested and
classified as U.S. M. Synoviae Clean or have met equivalent
requirements for M. synoviae control under official supervision;
(iii) All turkey hatcheries within the State only handle products
that are classified as U.S. M. Synoviae Clean or have met equivalent
requirements for M. synoviae control under official supervision;
(iv) All shipments of products from turkey breeding flocks other
than those classified as U.S. M. Synoviae Clean, or equivalent, into
the State are prohibited;
(v) All persons performing poultry disease diagnostic services
within the State are required to report to the Official State Agency
within 48 hours the source of all turkey specimens that have been
identified as being infected with M. synoviae;
(vi) All reports of M. synoviae infection in turkeys are promptly
followed by an investigation by the Official State Agency to determine
the origin of the infection; and
(vii) All turkey breeding flocks found to be infected with M.
synoviae are quarantined until marketed under supervision of the
Official State Agency.
(2) The Service may revoke the State's classification as a U.S. M.
Synoviae Clean State, Turkeys, if any of the conditions described in
paragraph (d)(1) of this section are discontinued. The Service shall
not revoke the State's classification as a U.S. M. Synoviae Clean
State, Turkeys, until it has conducted an investigation and the
Official State Agency has been given an opportunity for a hearing in
accordance with rules of practice adopted by the Administrator of the
Service.
11. In Sec. 145.52, a new paragraph (c) is added to read as
follows:
Sec. 145.52 Participation.
* * * * *
(c) Subject to the approval of the Service and the Official State
Agencies in the importing and exporting States, participating flocks
may report poultry sales to importing States by using printouts of
computerized monthly shipping and receiving reports in lieu of VS Form
9-3, ``Report of Sales of Hatching Eggs, Chicks, and Poults.''
PART 147--AUXILIARY PROVISIONS ON NATIONAL POULTRY IMPROVEMENT PLAN
12. The authority citation for part 147 continues to read as
follows:
Authority: 7 U.S.C. 429; 7 CFR 2.22, 2.80, and 371.2(d).
13. In Sec. 147.5, footnote 4 is amended by removing the words
``Animal and Plant Health Inspection Service, Veterinary Services,
Operational Support, 4700 River Road Unit 33, Riverdale, Maryland
20737-1231'' and adding the words ``National Poultry Improvement Plan,
Veterinary Services, APHIS, USDA, 1500 Klondike Road, Suite A-102,
Conyer, GA 30207'' in their place.
14. Section 147.6 is amended as follows:
a. In Sec. 147.6, paragraph (b)(2) is amended by adding two new
sentences at the end of the paragraph to read as set forth below.
b. In paragraph (b)(8), the words ``on the retest'' are added
immediately after the word ``positive''.
Sec. 147.6 Procedure for determining the status of flocks reacting to
tests for Mycoplasma gallisepticum, Mycoplasma synoviae, and Mycoplasma
meleagridis.
* * * * *
(b) * * *
(2) * * * Provided, that for egg-type and meat-type chicken and
waterfowl, exhibition poultry, and game bird flocks, if more than 50
percent of the samples are positive for either Mycoplasma
gallisepticum, M. synoviae, or both, the HI and/or the SPD test shall
be conducted on 10 percent of the positive samples or 25 positive
samples, whichever is greater. The results of the HI and/or SPD tests
must be followed by the action prescribed in paragraphs (b)(3), (b)(4),
and (b)(5) of this section.
* * * * *
15. Section 147.11 is amended as follows:
a. Paragraph (a)(3) is amended by adding a new sentence at the end
of the paragraph to read as set forth below.
b. In paragraph (a)(4), the last sentence is amended by adding the
words ``and paragraph (a)(5) of this section'' immediately after the
words ``illustration 2'', and by adding the words ``, and a colony lift
assay to aid in the detection of group D salmonella colonies''
immediately after the word ``XLT4''.
c. Paragraph (a)(5) is revised as set forth below.
d. At the end of paragraph (a)(6), illustration 2 is revised as set
forth below.
Sec. 147.11 Laboratory procedure recommended for the bacteriological
examination of salmonella.
(a) * * *
(3) * * * As a supplemental procedure, a colony lift assay may also
[[Page 11522]]
be used as a screening test to aid in the detection of group D
salmonella suspect colonies on selective and nonselective agar culture
plates.
* * * * *
(5) As a supplement to the standard colony pick to triple sugar-
iron (TSI) and lysine-iron (LI) agar slants, a group D colony lift
assay may be utilized to signal the presence of hard-to-detect group D
salmonella colonies on agar culture plates. A system such as the
Analytical Profile Index for Enterobacteriaceae (API) may also be
utilized to aid cultural identifications.
* * * * *
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[[Page 11524]]
Secs. 147.12, 147.14, 147.15, and 147.16 [Amended]
16. In Secs. 147.12, 147.14, 147.15, and 147.16, footnotes 11
through 21 and their references are redesignated as footnotes 12
through 22.
17. Section 147.12 is amended as follows:
a. Paragraphs (a) through (c) are redesignated as follows:
------------------------------------------------------------------------
Old section New section
------------------------------------------------------------------------
147.12(a), introductory text.............. 147.12(b)(1).
147.12(a)(1).............................. 147.12(b)(1)(i).
147.12(a)(2).............................. 147.12(b)(1)(ii).
147.12(b), introductory text.............. 147.12(b)(2).
147.12(b)(1).............................. 147.12(b)(2)(i).
147.12(c), introductory text.............. 147.12(b)(3).
147.12(c)(1).............................. 147.12(b)(3)(i).
147.12(c)(2).............................. 147.12(b)(3)(ii).
147.12(c)(2)(i)........................... 147.12(b)(3)(ii)(A).
147.12(c)(2)(ii).......................... 147.12(b)(3)(ii)(B).
------------------------------------------------------------------------
b. A new paragraph (a) and an introductory paragraph (b) are added
to read as set forth below.
c. In newly redesignated paragraph (b)(1), the introductory text of
the paragraph is amended by removing the reference ``(a)(1) or (2)''
and replacing it with the reference ``(b)(1)(i) or (b)(1)(ii)''.
d. In newly redesignated paragraph (b)(2), the introductory text of
the paragraph is amended by removing the reference ``(a)(1)'' and
replacing it with the reference ``(b)(2)(i)''.
e. In newly redesignated paragraph (b)(3)(ii), the text of newly
redesignated footnote 12 is amended by removing the words ``Animal and
Plant Health Inspection Service, Veterinary Services, National Center
for Import-Export, 4700 River Road Unit 38, Riverdale, Maryland 20737-
1231'' and adding the words ``National Poultry Improvement Plan,
Veterinary Services, APHIS, USDA, 1500 Klondike Road, Suite A-102,
Conyer, GA 30207'' in their place.
f. A new paragraph (b)(2)(ii) is added and reserved.
Sec. 147.12 Procedures for collecting environmental samples and
cloacal swabs for bacteriological examination.
* * * * *
(a) For egg- and meat-type chickens, waterfowl, exhibition poultry,
and game birds. All samples and swabs described in this paragraph shall
be cultured in accordance with illustration 2 of Sec. 147.11, including
delayed secondary enrichment. All salmonellae recovered shall be
serogrouped or serotyped.
(1) Environmental samples. Fecal material, litter, dust, or floor
litter surface or nest box drag swab samples to be submitted for
bacteriological examination shall be collected in accordance with the
procedures described in paragraphs (a)(1), (a)(2), or (a)(3) of this
section:
(i) Procedure for sampling in broth. Authorized laboratories will
provide capped tubes 1 to 2 cm in diameter and 15 to 20 cm in length
that are two-thirds full of a recently made, refrigerated, sterile
enrichment broth (Hajna or Mueller-Kauffmann Tetrathionate Brilliant
Green) for each sample. Sufficient tubes shall be taken to the premises
to provide at least one tube per pen or one tube per 500 birds,
whichever is greater. At least one sterile, cotton-tipped applicator
will be needed for each tube. The dry applicator is first placed in or
drawn through fresh manure (under roost, near water troughs, fecal
droppings, or diarrhetic droppings). After each streaking, place the
cotton-tipped applicator in the tube of broth and swirl the applicator
to remove the collected material. Withdraw the applicator from the tube
and use it to take additional specimens by streaking on or through
areas where defecation, trampling of feces, or settling of dust is
common; e.g., on or near waterers, feeders, nests, or rafters, etc.
When the volume of material collected equals approximately 10 percent
of the volume of the broth (usually 10-12 streakings), place the
applicator in the tube and break the stick in half, leaving the lower
or cotton-tipped half in the broth and retaining the upper half for
future disposal. Replace the cap on the inoculated tube and continue
the sampling procedure in other areas of the pen.
(ii) Procedure for sampling in dry containers. Place a sample of
fecal material, litter, or dust in a sterile, sealable container. The
sample shall consist of several specimens of material taken from a
representative location in the pen or house. Collect at least 10 g
(approximately a heaping tablespoonful) of material for each sample.
Collect the specimens in each sample with a sterile tongue depressor or
similar uncontaminated instrument. The samples shall vary in type and
consistency. Half of the samples shall be comprised of material
representing defecated matter from a large portion of the flock; i.e.,
trampled, caked material near waterers and feeders. The minimum number
of samples to be taken shall be determined by the following: Five
samples from pens or houses of up to 500 birds; Ten samples from pens
or houses of 500 to 2,500 birds; Fifteen samples from pens or houses
with more than 2,500 birds. The samples may be pooled to not fewer than
five samples at the laboratory as long as the volume of material
collected equals approximately 10 percent of the volume of the broth.
(2) Cloacal swabs. Cloacal swabs for bacteriological examination
shall be taken from each bird in the flock or from a minimum of 500
birds in accordance with the procedure described in paragraph (a)(2)(i)
of this section.
(i) Procedure for taking cloacal swabs. The authorized laboratory
will provide sterile capped tubes or other suitable containers and
cotton-tipped applicators for use in taking the cloacal swabs. Insert
the cotton-tipped applicator into the cloaca and rectum in such a
manner as to ensure the collection of fecal material. Place the swab
and adhering fecal material in the tube and break the stick in half,
keeping the upper half of the stick for future disposal. The cloacal
swabs may be combined in the sterile tubes in multiples of five or in
combinations specified by the authorized laboratory.
(ii) [Reserved].
(3) Drag-swabs. Utilization of drag swabs (DS) involves the
exposure of gauze pads, a key component of a DS sampler, to the surface
of random, flock-representative floor litter and nest box areas. The
sampler pads shall be sterile and slightly moist to promote adherence
of particulate material, and impregnated with double-strength skim milk
11 to protect salmonella viability during sample collection,
batching, storage, and shipment. Floor litter surface DS sample results
tend to reflect the salmonella carrier/shedder status of a flock.
Nonetheless, other environmental samples as described in paragraphs
(a)(1)(i), (a)(1)(ii), or (a)(3)(iv) of this section shall also be
periodically collected.
\11\ Obtain procedure for preparing double strength skim milk
from USDA-APHIS ``Recommended Sample Collection Methods for
Environmental Samples,'' available from the National Poultry
Improvement Plan, Veterinary Services, APHIS, USDA, 1500 Klondike
Road, Suite A-102, Conyer, GA 30207.
---------------------------------------------------------------------------
(i) Drag-swab sampler assembly. Drag-swab (DS) samplers may be
assembled using two 3- by 3-inch sterile gauze pads; size 20 wrapping
twine; and paper clips, staples, or similar fasteners. Fold each gauze
pad in half and attach one pad to a 2-foot-long (60 cm) piece of twine
and the other to a 1-foot-long (30 cm) piece of twine. To attach a pad
to the twine with a paper clip, bend the end wires of the paper clip
slightly and push them through the fabric of the folded pad, thus
securing the clips to the folded pads; then securely tie the twine to
the free rounded end of the paper clip. To attach a pad to the twine
[[Page 11525]]
with a staple, staple the twine to the pad near the center of the fold,
applying the staple at a right angle to the twine and parallel to the
fold. (A pre-tied knot in the free end of the twine will prevent the
twine from slipping under the staple during use.) Once the pads and the
twine have been attached, securely connect the free ends of both
lengths of twine to a small loop tied at the end of a 5-foot-long piece
of twine. The resulting assembly resembles the letter Y, with a long
vertical stem and two diagonal branches of different lengths with a
gauze pad securely attached to the end of each branch. Wrap the twine
around each two-pad DS sampler to produce a small bundle. Autoclave the
assembled DS sampler bundle and transfer it with sterile forceps or
other aseptic method to a resealable sterile bag. Aseptically add 15 mL
of double-strength skim milk to the bag and massage the milk into the
gauze pads. Seal the bags and store at -20 deg.C.
(ii) Procedures and applications for DS samplers. DS samplers shall
be completely thawed prior to use. Complete pad/twine/fastener
assemblies shall be used to sample floor litter surfaces; nest box
surfaces may be sampled using 3- by 3-inch sterile gauze pads
impregnated with double-strength skim milk in the manner described in
paragraph (a)(1) of this section. In either instance, the Plan
participant collecting the samples shall wear a fresh pair of
disposable sterile gloves for each flock or house sampled. Each sampler
bag shall be marked with the type of sample (floor litter or nest box
surface) and the identity of the house or flock from which the sample
was taken.
(iii) Floor litter sampling technique. For flocks with fewer than
500 breeders, at least one DS set (two DS pads) shall be dragged across
the floor litter surface for a minimum of 15 minutes. For flocks with
500 or more breeders, a minimum of two DS sets (four DS pads) shall be
dragged across the floor litter surface for a minimum of 15 minutes per
DS set. Upon completion of dragging, lower each DS pad by its attached
twine into a separate, resealable sterile bag. Alternatively, each DS
set of two pads may be lowered by its attached twine into the storage/
transport bag from which the DS set was originally taken. Remove the
twine from the pad or DS set by grasping the pad or DS set through the
sides of the bag with one hand while pulling on the twine with the
other hand until the connection is broken. Seal the bags and promptly
refrigerate them to between 2 and 4 deg. C. Do not freeze. Discard the
twine in an appropriate disposal bag.
(iv) Nest box sampling technique. The Plan participant shall
collect nest-box samples by using two 3- by 3-inch sterile gauze pads
premoistened with double-strength skim milk and wiping the pads over
assorted locations in about 10 percent of the total nesting area. Upon
completion, place each pad in a separate, resealable sterile bag. Seal
the bags and promptly refrigerate them to between 2 and 4 deg. C. Do
not freeze.
(v) Culturing of litter surface and nest box samples. When
refrigerated to between 2 and 4 deg. C, pads impregnated with double-
strength skim milk may be stored or batched for 5 to 7 days prior to
culturing. Pads shipped singly or paired in a single bag shall not be
pooled for culturing but shall be separately inoculated into 60 mL of
selective enrichment broth.
(b) For turkeys. * * *
* * * * *
18. In Sec. 147.14, paragraph (a)(2)(ii) is revised to read as set
forth below.
Sec. 147.14 Procedures to determine status and effectiveness of
sanitation monitored program.
* * * * *
(a) * * *
(2) * * *
(ii) Tetrathionate selective enrichment broths, competitor-
controlling plating media (XLT4, BGN, etc.), delayed secondary
enrichment procedures, and colony lift assays detailed in paragraph
(a)(5) and illustration 2 of Sec. 147.11.
19. A new Sec. 147.17 is added to subpart B to read as follows:
Sec. 147.17 Laboratory procedure recommended for the bacteriological
examination of cull chicks for salmonella.
The laboratory procedure described in this section is recommended
for the bacteriological examination of cull chicks from egg-type and
meat-type chicken flocks and waterfowl, exhibition poultry, and game
bird flocks for salmonella.
(a) From 25 randomly selected 1- to 5-day-old chicks that have not
been placed in a brooding house, prepare 5 organ pools, 5 yolk pools,
and 5 intestinal tissue pools as follows:
(1) Organ pool: From each of five chicks, composite and mince 1- to
2-gram samples of heart, lung, liver, and spleen tissues and the
proximal wall of the bursa of Fabricius.
(2) Yolk pool: From each of five chicks, composite and mince 1- to
2-gram samples of the unabsorbed yolk sac or, if the yolk sac is
essentially absent, the entire yolk stalk remnant.
(3) Intestinal pool: From each of five chicks, composite and mince
approximately 0.5 cm\2\ sections of the crop wall and 5-mm-long
sections of the duodenum, cecum, and ileocecal junction.
(b) Transfer each pool to tetrathionate selective enrichment broth
(Hajna or Mueller-Kauffmann) at a ratio of 1 part tissue pool to 10
parts broth.
(c) Repeat the steps in paragraphs (a) and (b) of this section for
each five-chick group until all 25 chicks have been examined, producing
a total of 15 pools (5 organ, 5 yolk, and 5 intestinal).
(d) Culture the 15 tetrathionate pools as outlined for selective
enrichment in illustration 2 of Sec. 147.11. Incubate the organ and
yolk pools for 24 hours at 37 deg.C and the intestinal pools at 41.5
deg.C. Plate as described in illustration 2 of Sec. 147.11 and examine
after both 24 and 48 hours of incubation. Confirm suspect colonies as
described. Further culture all salmonella-negative tetrathionate broths
by delayed secondary enrichment procedures described for environmental,
organ, and intestinal samples in illustration 2 of Sec. 147.11. A
colony lift assay may also be utilized as a supplement to TSI and LI
agar picks of suspect colonies.
Sec. 147.26 [Amended]
20. In Sec. 147.26, in paragraph (a), the introductory text is
amended by removing the word ``and'' and by adding the words ``, U.S.
S. Enteritidis Monitored, and U.S. S. Enteritidis Clean'' immediately
before the word ``classifications''.
21. In Sec. 147.43, the introductory text of paragraph (a) is
amended by adding two new sentences before the first sentence to read
as set forth below; by removing the words ``the Assistant Secretary of
Agriculture for Marketing and Inspection Services, or his/her
designee,''; and by removing the words ``and who shall be designated as
vice chairperson,''.
Sec. 147.43 General Conference Committee.
(a) The General Conference Committee Chairperson and the Vice
Chairperson shall be elected by the members of the General Conference
Committee. A representative of the Animal and Plant Health Inspection
Service will serve as Executive Secretary and will provide the
necessary staff support for the General Conference Committee. * * *
* * * * *
Done in Washington, DC, this 15th day of March 1996.
Lonnie J. King,
Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 96-6834 Filed 3-20-96; 8:45 am]
BILLING CODE 3410-34-P
Complete official Federal Register PDF
FR Doc. 96-6795 Radio Broadcasting Services; Athens and Atlanta, IL
[Federal Register Volume 61, Number 56 (Thursday, March 21, 1996)]
[Rules and Regulations]
[Page 11584]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6795]
=======================================================================
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 73
[MM Docket No. 95-111; RM-8652, RM-8704]
Radio Broadcasting Services; Athens and Atlanta, IL
AGENCY: Federal Communications Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Commission, at the request of Atlantis Broadcasting Co.,
LLC, allots Channel 242A at Atlanta, Illinois, as the community's first
local aural transmission service (RM-8704). We also deny the mutually
exclusive proposal filed by WMSI, Inc., proposing the allotment of
Channel 241A at Athens, Illinois, as the community's first local aural
transmission service (RM-8652). See 60 FR 39143, August 8, 1995.
Channel 242A can be allotted to Atlanta in compliance with the
Commission's minimum distance separation requirements with a site
restriction of 6.1 kilometers (3.8 miles) southwest to avoid short-
spacings to the licensed sites of Station WHOW-FM, Channel 240A,
Clinton, Illinois, and Station KIHT(FM), Channel 242C1, St. Louis,
Missouri, and to the application site (40-40-11 and 89-53-34) for
Channel 243A, Farmington, Illinois. The coordinates for Channel 242A at
Atlanta are North Latitude 40-13-22 and West Longitude 89-17-04. With
this action, this proceeding is terminated.
DATES: Effective May 2, 1996. The window period for filing applications
will open on May 2, 1996 and close on June 3, 1996.
FOR FURTHER INFORMATION CONTACT: Sharon P. McDonald, Mass Media Bureau,
(202) 418-2180.
SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's
Report and Order, MM Docket No. 95-111, adopted March 5, 1996, and
released March 18, 1996. The full text of this Commission decision is
available for inspection and copying during normal business hours in
the FCC Reference Center (Room 239), 1919 M Street, NW., Washington,
DC. The complete text of this decision may also be purchased from the
Commission's copy contractors, International Transcription Service,
Inc., (202) 857-3800, 2100 M Street, NW., Suite 140, Washington, DC
20037.
List of Subjects in 47 CFR Part 73
Radio broadcasting.
Part 73 of title 47 of the Code of Federal Regulations is amended
as follows:
PART 73--[AMENDED]
1. The authority citation for part 73 continues to read as follows:
Authority: Sections 303, 48 Stat., as amended, 1082; 47 U.S.C.
154, as amended.
Sec. 73.202 [Amended]
2. Section 73.202(b), the Table of FM Allotments under Illinois, is
amended by adding Atlanta, Channel 242A.
Federal Communications Commission.
John A. Karousos,
Chief, Allocations Branch, Policy and Rules Division, Mass Media
Bureau.
[FR Doc.96-6795 Filed 3-20-96; 8:45 am]
BILLING CODE 6712-01-F
Complete official Federal Register PDF
FR Doc. 96-6791 Office of Assistant Secretary for HousingFederal Housing Commissioner; Disposition of Multifamily Projects and Sale of HUD-Held Multifamily Mortgages
[Federal Register Volume 61, Number 56 (Thursday, March 21, 1996)]
[Rules and Regulations]
[Pages 11684-11703]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6791]
[[Page 11683]]
_______________________________________________________________________
Part II
Department of Housing and Urban Development
_______________________________________________________________________
24 CFR Parts 290 and 886
Disposition of Multifamily Projects and Sale of HUD-Held Multifamily
Mortgages; Final Rule
Federal Register / Vol. 61, No. 56 / Thursday, March 21, 1996 / Rules
and Regulations
[[Page 11684]]
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Parts 290 and 886
[Docket No. FR-3715-F-02]
RIN 2502-AG30
Office of Assistant Secretary for Housing--Federal Housing
Commissioner; Disposition of Multifamily Projects and Sale of HUD-Held
Multifamily Mortgages
AGENCY: Office of the Assistant Secretary for Housing--Federal Housing
Commissioner, HUD.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule implements at 24 CFR part 290 the regulatory
requirements under the Multifamily Housing Property Disposition Reform
Act of 1994 that affect the management and disposition of HUD-owned
properties and properties with HUD-held mortgages, and the sale of HUD-
held multifamily mortgages. Conforming changes are made to part 886.
EFFECTIVE DATE: April 22, 1996.
FOR FURTHER INFORMATION CONTACT: Barbara D. Hunter, Director, Program
Management Division, Office of Multifamily Asset Management and
Disposition, Department of Housing and Urban Development, Room 6182,
451 7th Street SW, Washington, DC 20410. Telephone (202) 708-3944; TDD
(202) 708-4594. (These are not toll-free numbers.)
SUPPLEMENTARY INFORMATION:
Paperwork Reduction Act Statement
The information collection requirements contained in Sec. 290.9 of
this rule have been approved by the Office of Management and Budget in
accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3520), and assigned OMB control number 2502-0204. An agency may not
conduct or sponsor, and a person is not required to respond to, a
collection of information unless the collection displays a valid
control number.
I. Statutory and Regulatory Background
On August 17, 1993 (58 FR 43708), the Department published a final
rule amending its requirements for the management and disposition of
HUD-owned multifamily housing projects. The regulation, at 24 CFR part
290, implemented HUD's statutory authority, contained in section 207
(k) and (l) of the National Housing Act and in section 203 of the
Housing and Community Development Amendments of 1978, to handle and
dispose of such real property.
Section 203 was amended by section 181 of the Housing and Community
Development Act of 1987 (1987 Act), section 1010 of the Stewart B.
McKinney Homeless Assistance Amendments Act of 1988 (1988 Act), and
section 579 of the National Affordable Housing Act of 1990 (NAHA). A
final rule published on August 17, 1993 implemented the NAHA
amendments. Generally, the statutory amendments specified the type of
assistance to be provided when the Department determines to preserve
units as affordable low- and very low-income housing, and included
certain projects with HUD-held mortgages within the scope of section
203.
In the Multifamily Housing Property Disposition Reform Act of 1994
(MHPDRA) (Pub. L. 102-233, approved April 11, 1994), section 203 was
completely revised. An interim rule amending 24 CFR part 290 to reflect
the new statutory amendments was published on March 2, 1995 (60 FR
11844) with a 60 day public comment period. The Department received no
comments on the interim rule.
II. Changes Made by the Final Rule--Regulatory Reinvention
Consistent with Executive Order 12866 and President Clinton's
memorandum of March 4, 1995 to all Federal Departments and Agencies on
regulatory reinvention, HUD has reviewed all its regulations to
determine whether certain regulations can be eliminated, streamlined,
or consolidated with other regulations. In keeping with the President's
mandate to reinvent and reform regulations, the Department is taking
advantage of the publication of this final rule to streamline part 290.
The entire part has been re-drafted to eliminate text that only repeats
the statutory language, or provisions that are only advisory (rather
than binding) or non-exclusive. Instead of consisting of nine subparts,
A through I, as did the interim rule, this final rule has only two
subparts: subpart A--Disposition of Multifamily Projects, and subpart
B--Sale of HUD-Held Multifamily Mortgages.
One goal of reinventing regulations is to remove rule text that
only repeats statutory language. To achieve this goal, rules will only
contain legally binding requirements that are in addition to those
contained in a statute. This will streamline regulations, avoid
redundancy, and remove the problems that result when a rule that echoes
the language of a statute becomes inconsistent with new statutory
amendments. The period before a rule is amended to conform to new
statutory language is often one of confusion and uncertainty as to
which law applies. The final rule promulgated here does not, therefore,
repeat any statutory language; it contains only those provisions that
clarify the statutory procedures, or provisions that address those
areas that give the Secretary discretion to act.
The remaining regulatory text is further pruned to eliminate
provisions that are only advisory (rather than binding) or non-
exclusive. An example of such a provision is the listing in
Sec. 290.42(d)(3) of the interim rule of persons included in the
definition of ``displaced person.'' This listing is prefaced by the
phrase, ``This includes, but is not limited to:'', which indicates that
it only provides examples, and is not exclusive or complete. Such lists
of examples are more appropriate for inclusion in guidance materials
(such as the appendix which follows this rule) than in rules.
The consolidated statutory and regulatory procedures for the
disposition of multifamily properties, which were contained in the
interim rule, have been placed in an appendix to this final rule. The
final rule will be codified in the Code of Federal Regulations; the
appendix will not be codified. However, the appendix is available to
the public as a single document which provides a unified overview of
the disposition process. The user-friendly features of the interim
rule, its tables and question-and-answer format, are retained as
features of the appendix.
A number of consolidating and clarifying adjustments are also made
to the regulatory language that remains in part 290. The requirements
for the timing of any disposition-related notifications (i.e., pre-
foreclosure notification to tenants and units of general local
government; pre-disposition community and tenant input notification;
state and local government right of first refusal notification) are
combined into a single provision, at Sec. 290.11, which states that
notifications will be made, as appropriate, (1) 60 or more days before
HUD forecloses on a project, or (2) before, or not more than 30 days
after, HUD acquires a project. By making it clear that notifications
that may be made up to 30 days after acquisition may also be made
before acquisition, the rule confirms that the notification provisions
are meant to complement, rather than impede, the disposition process.
For instance, in the case of a negotiated sale to a State or local
government (including public
[[Page 11685]]
agencies), waiting until after acquisition to provide the statutorily
required state and local government right of first refusal notification
could delay a disposition for 90 days. Providing this notification
earlier in the process allows for a more expeditious disposition.
A correction is made in the table entitled ``Pre-Disposition
Notification Requirements,'' which now appears in the appendix. In the
interim rule, the timing for providing notice to tenants and the
community was listed as 60 days in the table, and 30 days in the rule
text. The time period in the table is here conformed to 30 days.
This rule also includes two provisions, at Secs. 290.37 and 290.39,
added to the Sale of HUD-Held Multifamily Mortgages subpart by an
interim rule published on February 6, 1996 (61 FR 4580). These
provisions are included in this rule to present the complete part 290
in its current form. However, after considering comments submitted on
these provisions, they will be republished separately as a final rule.
As an additional matter, the Department is taking advantage of the
publication of this rule to provide notice of section 401 of Pub. L.
104-99 (110 Stat. 26, approved January 26, 1996), which provides that,
``During fiscal year 1996, the Secretary of Housing and Urban
Development may manage and dispose of multifamily properties owned by
the Secretary, including the provision of the grants from the General
Insurance Fund (12 U.S.C. 1735c) for the necessary costs of
rehabilitation and other related development costs and multifamily
mortgages held by the Secretary without regard to any other provision
of law.''
III. Other Matters
Any assistance made available to a purchaser under this rule,
whether rental or other financial assistance, will be subject to
scrutiny under section 102(d) of the HUD Reform Act, insofar as that
statutory provision has been implemented by guidelines issued by the
Office of Housing under 24 CFR part 12, subpart D (see, e.g., a Federal
Register Notice published April 9, 1991 (56 FR 14436) entitled
``Administrative Guidelines; Limitations on Combining Other Government
Assistance with HUD Housing Assistance'').
Environmental Impact
A Finding of No Significant Impact with respect to the environment
has been made in accordance with HUD regulations at 24 CFR Part 50,
which implement section 102(2)(C) of the National Environmental Policy
Act of 1969. The Finding is available for public inspection between
7:30 a.m. and 5:30 p.m. weekdays in the Office of the Rules Docket
Clerk, Office of the General Counsel, Department of Housing and Urban
Development, Room 10276, 451 Seventh Street SW, Washington, DC 20410.
Regulatory Flexibility Act
The Secretary, in accordance with provisions of the Regulatory
Flexibility Act (5 U.S.C. 605(b)), has reviewed this rule before
publication and by approving it certifies that it will not have a
significant economic impact on a substantial number of small entities.
These requirements governing the management and disposition of HUD-
owned multifamily housing projects should not affect the ability of
small entities, relative to larger entities, to bid for and acquire
projects that HUD determines to sell.
Executive Order 12612, Federalism
HUD has determined, in accordance with Executive Order 12612,
Federalism, that this rule will not have a substantial, direct effect
on the States or on the relationship between the Federal government and
the States, or on the distribution of power or responsibilities among
the various levels of government. While the rule would impose terms and
conditions on States that acquire projects under this rule, that is
clearly the intent of the authorizing legislation, and therefore no
further review is necessary or appropriate.
Executive Order 12606, the Family
HUD has determined that this rule will not have a significant
impact on family formation, maintenance, and general well-being within
the meaning of Executive Order 12606, The Family, because it does not
affect the eligibility of families for admission into multifamily
housing projects that are subject to this rulemaking.
The Catalog of Federal Domestic Assistance Program number and title
are 14.156, Lower Income Housing Assistance Program (Section 8).
List of Subjects
24 CFR Part 290
Low and moderate income housing, Mortgage insurance.
24 CFR Part 886
Grant programs--housing and community development, Lead poisoning,
Rent subsidies, Reporting and recordkeeping requirements.
Accordingly, under the authority of 42 U.S.C. 3535(d), for the
reasons stated in the preamble, title 24 of the Code of Federal
Regulations is amended by adopting the amendments to part 886 of the
interim rule published in the Federal Register of March 2, 1995 (60 FR
11844) as final without change, and by revising part 290, to read as
follows:
PART 290--DISPOSITION OF MULTIFAMILY PROJECTS AND SALE OF HUD-HELD
MULTIFAMILY MORTGAGES
Subpart A--Disposition of Multifamily Projects
Sec.
290.1 Applicability.
290.3 Definitions.
290.7 Occupancy requirements.
290.9 Setting rental rates.
290.11 Notification requirements.
290.13 Negotiated sales.
290.15 Disposition plan.
290.17 Displacement of tenants and relocation assistance.
290.19 Restrictions concerning nondiscrimination against Section 8
certificate holders and voucher holders.
290.21 Computing annual number of units eligible for substitution
of tenant-based assistance or alternative uses.
290.23 Rebuilding.
290.25 Determination not to preserve a project or a part of a
project.
Subpart B--Sale of HUD-Held Multifamily Mortgages
290.30 General.
290.31 Sale of current mortgages securing subsidized projects.
290.33 Sale of delinquent mortgages securing subsidized projects.
290.35 Sale of HUD-held mortgages securing unsubsidized projects.
290.37 Requirements for continuing federal rental subsidy
contracts.
290.39 Nondiscrimination in admitting certificate and voucher
holders.
Authority: 12 U.S.C. 1701z-11, 1701z-12, 1713, 1715b, 1715z-1b;
42 U.S.C. 3535(d).
Subpart A--Disposition of Multifamily Projects
Sec. 290.1 Applicability.
The requirements of this part supplement the requirements of 12
U.S.C. 1701z-11 for the management and disposition of multifamily
housing projects and the sale of HUD-held multifamily mortgages. The
goals and objectives of this part are the same as the goals and
objectives of 12 U.S.C. 1701z-11, which shall be referred to in this
part as ``the Statute.''
Sec. 290.3 Definitions.
The terms Department and URA are defined in 24 CFR part 5. The
following definitions apply to this part:
Cooperative means a nonprofit, limited equity, or consumer
cooperative as defined under 24 CFR part 213. It
[[Page 11686]]
may include mutual housing associations.
HUD-owned project means a multifamily project that has been
acquired by HUD.
Market area means the area from which a multifamily housing project
may reasonably be expected to draw a substantial number of its tenants,
as determined by HUD, taking into consideration the knowledge of the
HUD office with jurisdiction over the project of the local real estate
market and HUD's project underwriting experience. Submarkets may be
used in large, complex metropolitan areas.
Multifamily housing project means a multifamily project that is or
was insured under sections 207, 213, 220, 221(d)(3), 221(d)(4), 223(f),
231, 236, or 608 of the National Housing Act (12 U.S.C. 1713, 1715e,
1715k, 1715l, 1715n, 1715v, 1715z-1, or 1742-1746); or is or was
subject to a loan under section 202 of the Housing Act of 1959 (12
U.S.C. 1701q); or was a Real Estate Owned (REO) multifamily project
transferred by the Government National Mortgage Association to the
Department. Multifamily housing project does not include projects
consisting of one to eleven units insured under section 220(d)(3)(A) of
the National Housing Act (12 U.S.C. 1715l); or mobile home parks under
section 207(m) of that Act (12 U.S.C. 1713); or vacant land; or
property covered by a homeownership program approved under the
Homeownership and Opportunity for People Everywhere (``HOPE'') program.
Multifamily project means a project consisting of five or more
units that has or had a mortgage (even if subordinate to other
mortgages) insured under the National Housing Act or is or was subject
to a loan under section 202 of the Housing Act of 1959, or a hospital,
intermediate care facility, nursing home, group practice facility, or
board and care facility that has or had a mortgage insured, or is or
was subject to a loan under, these authorities. Multifamily project
does not include projects consisting of one to eleven units insured
under section 220(d)(3)(A) of the National Housing Act (12 U.S.C.
1715k), which are classified as single family homes.
Nonprofit organization means a corporation or association organized
for purposes other than making a profit or gain for itself.
Stockholders or trustees do not share in profits or losses. Profits are
used to accomplish the charitable, humanitarian, or educational
purposes of the corporation.
Preexisting tenant means a family that resides in a unit in a
multifamily housing project immediately before the project is acquired
under this part by a purchaser other than the Department.
Subsidized project means a multifamily housing project that is
receiving, or immediately before its mortgage was foreclosed by HUD or
the project was acquired by HUD, pursuant to this regulation, was
receiving any of the following types of assistance:
(1) Below market interest rate mortgage insurance under the proviso
of section 221(d)(5) of the National Housing Act (12 U.S.C. 1715l)
(hereinafter, a BMIR project);
(2) Interest reduction payments made in connection with mortgages
insured under section 236 of the National Housing Act (hereinafter, a
236 project);
(3) Direct loans made under section 202 of the Housing Act of 1959
(hereinafter, a 202 project);
(4) Assistance, to more than 50 percent of the units in the
project, in the form of:
(i) Rent supplement payments under section 101 of the Housing and
Urban Development Act of 1965 (12 U.S.C. 1701s) (hereinafter, Rent
Supp);
(ii) Additional assistance payments under section 236(f)(2) of the
National Housing Act (hereinafter, RAP);
(iii) Housing assistance payments under section 23 of the United
States Housing Act of 1937 (42 U.S.C. 1437 note) (as in effect before
January 1, 1975) (hereinafter, Sec. 23); or
(iv) Housing assistance payments under Section 8 of the United
States Housing Act of 1937 (42 U.S.C. 1437f) (excluding payments of
tenant-based Section 8 assistance) (hereinafter, project-based Section
8 assistance).
Sufficient habitable, affordable, rental housing is available means
that the HUD office with jurisdiction determines that there is an
adequate supply of habitable, affordable housing for low- and very low-
income families available in the market area. Submarkets, consisting of
portions of units of general local government, may be used in large,
complex metropolitan areas. Local housing markets having an adequate
supply of standard-quality rental housing would include housing markets
in which the supply of rental housing available and in production is
adequate to meet the anticipated demand (e.g., the housing market is
balanced), as well as those in which there is an excess supply of
rental housing (e.g., the housing market is soft). Rental markets that
do not have an adequate supply (e.g., tight markets) are characterized
by low rental vacancy rates, low levels of production and turnover of
rental housing, and, usually, by high levels of rent inflation. HUD
will make the determination of whether sufficient habitable,
affordable, rental housing is available using established market
analysis techniques, and will consider information that demonstrates:
(1) The rental housing vacancy rate is at a low level relative to
the rate required for a balanced market, typically a four percent
vacancy rate; except that a rate lower than four percent may be
considered in unusual circumstances if it can be demonstrated that
there is an adequate supply of affordable housing for low-income
families;
(2) The number of rental housing units being produced on an annual
basis is not large enough to satisfy demand arising from the increase
in households, or, in markets where there is little or no growth,
evidence that the number of additional rental units being supplied is
not sufficient to meet the demand arising from net losses to the
available inventory and the inadequate supply of rental housing has
inhibited growth;
(3) The shortage of housing is resulting in rent increases that
exceed normal increases commensurate with the costs of operating rental
housing;
(4) A significant number, or proportion, of the households holding
Section 8 certificates or rental vouchers are unable to find adequate
housing because of the shortage of rental housing, including PHA data
showing a lower than average percentage of units under lease and a
longer than average time required to find units.
Unsubsidized project means a multifamily housing project that is
not a subsidized project.
Useful life means, generally, twenty years, but it may be more or
less, as determined by the Department.
Sec. 290.7 Occupancy requirements.
(a) Multifamily housing project that is HUD-owned or for which HUD
is mortgagee-in-possession. Occupancy in a multifamily housing project
that is HUD-owned or for which HUD is mortgagee-in-possession shall be
available on a basis that is comparable to the occupancy requirements
that applied to the project immediately before HUD acquired the project
or became mortgagee-in-possession, except that preference shall be
given to tenants of other HUD-owned multifamily housing projects who
are eligible for assistance in accordance with the displacement and
relocation provisions at Sec. 290.17.
(b) Evictions. Eviction from a HUD-owned multifamily housing
project is governed by 24 CFR part 247, subpart B.
(c) Threat to health and safety. Whenever HUD determines that there
is an immediate threat to the health and
[[Page 11687]]
safety of the tenants, HUD may require the tenants to vacate the
premises and shall provide temporary relocation benefits as provided in
Sec. 290.17 to tenants required to vacate the premises.
Sec. 290.9 Setting rental rates.
Because of the subsidies involved in making multifamily housing
projects affordable, the setting of rents involves two steps: first,
establishing the rent on a unit that will be paid to the owner, and
second, determining the rent that the tenant pays (with the difference
made up by a subsidy), using a number of procedures to obtain income
verification and notify tenants of changes in rent. These procedures
for a property owned by HUD or where HUD is mortgagee-in-possession are
explained below.
(a) Setting unit rents. Except as modified by this section, for a
property where HUD is mortgagee-in-possession (MIP), HUD will set unit
rents in accordance with the rent setting requirements of the project's
mortgage insurance or direct loan program; or for a property owned by
HUD, rents will be set in accordance with the rent setting requirements
of the project's mortgage insurance or direct loan program in effect
immediately before HUD became the owner of the project.
(b) Setting rents payable by tenants. (1) Tenant rent. The rent the
tenant pays will be based on the income certification and the rent
payment requirements of the project's mortgage insurance or direct loan
program in effect while HUD is MIP or immediately before HUD became the
owner of the project, as affected by any of the factors in paragraphs
(b)(2) through (b)(4) of this section. However, if a tenant does not
certify income as required by this section, the tenant must pay the
unit rent as determined under the rent setting requirements in
paragraph (a) of this section.
(2) Utility allowance. For a tenant whose rent is based on a
percentage of adjusted income (except for rental voucher or rental
certificate holders), if the cost of utilities (except telephone) and
other housing services for the unit is the responsibility of the tenant
to pay directly to the provider of the utility or service, HUD will
deduct from the rent to be paid by the tenant to HUD a utility
allowance, which is an amount equal to HUD's estimate of the monthly
costs of a reasonable consumption of the utilities and other services
for the unit for an energy-conservative household of modest
circumstances consistent with the requirement of a safe, sanitary, and
healthful living environment. If the utility allowance exceeds the
percentage of the tenant's adjusted income payable as rent, HUD will
pay the difference between the amount payable as rent and the utility
allowance to the tenant or, with the consent of the tenant and the
utility company, either jointly to the tenant and the utility company
or directly to the utility company.
(3) Rent adjustments for project viability. For a HUD-owned
project, HUD may adjust the rent provided for in paragraphs (b)(1) or
(b)(2) of this section if necessary or desirable to maintain the
existing economic mix in the project, prevent undesirable turnover, or
increase occupancy.
(4) Tenants who are rental voucher or rental certificate holders.
Tenants assisted with rental vouchers or certificates certify their
income to the public housing agency (PHA) administering the assistance,
and pay rent pursuant to the policies and procedures governing such
assistance.
(c) Income verification and rent notification procedures. (1)
Income certification by tenants. (i) In subsidized projects. (A) For
families residing in subsidized projects, when HUD becomes MIP or
owner, HUD will request an income certification from each family as
soon as practicable after HUD initially assumes management, unless the
family's income has been examined by the owner or by HUD not more than
four months before HUD's assumption of management.
(B) For each family applying for admission to subsidized projects,
HUD will request an income certification to determine the family's
eligibility for a subsidized rent, and (if the rent is based on a
percentage of adjusted income) the family's subsidized rent, in
accordance with part 813 of this title.
(ii) In unsubsidized projects. (A) For tenants in occupancy when
HUD becomes mortgagee-in-possession or owner of an unsubsidized
project, HUD may request an income certification from families who are
not paying a subsidized rent.
(B) For families applying for admission to such projects, HUD will
request sufficient information for income verification to determine the
family's ability to pay the unit rent.
(2) Notice of increases in the amount of rent payable. Whenever HUD
proposes an increase in rents in a HUD-owned multifamily project or a
project where HUD is mortgagee-in-possession, HUD will provide tenants
30 days notice of the proposed changes and an opportunity to review and
comment on the new rent and supporting documentation. After HUD
considers the tenants' comments and has made a decision with respect to
its proposed rent change, HUD shall notify the tenants of its decision,
with the reasons for the decision. A tenant in occupancy before the
effective date of any revised rental rate must be given 30 days notice
of the revised rate, and any change in the tenant's rent is subject to
the terms of an existing lease. Notices to each tenant must be
personally delivered or sent by first class mail. General notices of
rent increases to all tenants must be posted in the project office and
in appropriate conspicuous and accessible locations around the project.
(3) Disclosure and verification of Social Security numbers. Any
certifications or reexaminations of the income of tenants or
prospective tenants in connection with tenancy under this section are
subject to the requirements for the disclosure and verification of
Social Security Numbers, as provided by part 200, subpart T, of this
title.
(4) Signing of consent forms for income verification. Any
certifications or reexaminations of the income of tenants or
prospective tenants in connection with tenancy under this section are
subject to the requirements for the signing and submitting of consent
forms for the obtaining of wage and claim information from State Wage
Information Collection Agencies, as provided by part 200, subpart V, of
this title.
(Approved by the Office of Management and Budget under control number
2502-0204.)
Sec. 290.11 Notification requirements.
(a) In general. HUD may combine two or more of the required
notifications, as appropriate, to simplify the disposition process.
(b) Timing of notifications. Disposition-related notifications
(i.e., pre-foreclosure notification to tenants and units of general
local government; pre-disposition community and tenant input
notification; state and local government right of first refusal
notification) will be made, as appropriate:
(1) 60 or more days before HUD forecloses on a project; or
(2) Before, or not more than 30 days after, HUD acquires a project.
(c) Methods of notification. (1) To tenants. Pre-disposition
notification will be delivered to each unit in the project, or sent to
each unit by first class mail. Where HUD is mortgagee-in-possession or
owner of a project, the notice will also be posted in the project
office and in appropriate conspicuous and accessible locations around
the project.
(2) To units of general local government. Pre-disposition
notification to a unit of general local government
[[Page 11688]]
will be sent to the chief executive officer of the unit of general
local government by first class mail. For purposes of receiving or
sending any notices or information under this part, the unit of general
local government is its chief executive officer, or the person
designated by the chief executive officer to receive or send the notice
or information.
(3) To the community or any other party. HUD will consult with
tenants and their organizations, officials of units of general local
government, and other entities as HUD determines to be appropriate, to
identify community recipients of any required notification. Any notice
required to be made to any party other than a tenant or a unit of
general local government will be sent by first class mail.
(d) Content of notifications. Notifications will, as appropriate,
identify the project acquired or to be foreclosed by HUD; provide the
general terms and conditions concerning the sale, future use, and
operation of the project as proposed by HUD; indicate the time by which
any offers must be made or any comments must be submitted; and state
that the full disposition recommendation and analysis and other
supporting information will be available for inspection and copying at
the HUD Field Office.
Sec. 290.13 Negotiated sales.
When HUD conducts a negotiated sale involving the disposition of a
project to a person or entity without a public offering, the following
provisions apply:
(a) HUD may negotiate the sale of any project to an agency of the
federal, State, or local government.
(b) When HUD determines that a purchaser can demonstrate the
capacity to own and operate a project in accordance with standards set
by HUD, and/or a competitive offering will not generate offers of equal
merit from qualified purchasers, HUD may approve a negotiated sale of a
subsidized project to:
(1) A resident organization wishing to convert the project to a
nonprofit or limited equity cooperative;
(2) A cooperative (e.g., nonprofit limited equity, consumer
cooperative, mutual housing organization) with demonstrated experience
in the operation of nonprofit (and preferably low-income) housing;
(3) A nonprofit entity that will continue to operate the project as
low-income housing and whose governing board is composed of project
residents;
(4) A State or local governmental entity with the demonstrated
capacity to acquire, manage, and maintain the project as housing
available to and affordable by low-income residents;
(5) A State or local governmental or nonprofit entity with the
demonstrated capacity to acquire, manage, and maintain the project as a
shelter for the homeless or other public purpose, generally when the
project is vacant or has minimal occupancy and is not needed in the
area for continued use as rental housing for the elderly or families;
or
(6) Other nonprofit organizations.
Sec. 290.15 Disposition plan.
(a) In general. Before disposing of a HUD-owned multifamily housing
project, HUD will develop an initial and a final disposition plan for
the project that specifies the minimum terms and conditions for the
disposition of the project, the sales price that is acceptable to HUD,
and the assistance that HUD plans to make available to a prospective
purchaser.
(b) Environmental requirements. HUD will perform, and include in
the final disposition plan, the environmental reviews required by 24
CFR part 50.
Sec. 290.17 Displacement of tenants and relocation assistance.
(a) Scope of section. This section applies to all HUD-owned
multifamily housing projects and all multifamily housing projects
subject to HUD-held mortgages. When HUD is not the mortgagee-in-
possession or owner, the owner of the project shall comply with this
section, if HUD has authorized the demolition of, repairs to, or
conversion of the use of the multifamily housing project.
(b) Minimizing displacement. Consistent with the other goals and
objectives of this part, all reasonable steps shall be taken to
minimize the displacement of persons (families, individuals,
businesses, and nonprofit organizations) from a project covered by this
part. If displacement or temporary relocation will occur in connection
with the disposition of a project, HUD may require the purchaser of the
project to provide assistance in accordance with this section.
(c) Relocation assistance at non-URA levels. Whenever the
displacement of a residential tenant (family or individual) occurs in
connection with the management or disposition of a multifamily housing
project, but is not subject to paragraph (d) of this section (e.g.,
occurs as a direct result of HUD repair or demolition of all or a part
of a HUD-owned multifamily housing project or as a direct result of the
foreclosure of a HUD-held mortgage on a multifamily housing project or
sale of a HUD-owned project without federal financial assistance), the
displaced tenant shall be eligible for the following relocation
assistance:
(1) Advance written notice of the expected displacement shall be
provided at least 60 days before displacement, describe the assistance
and the procedures for obtaining the assistance, and contain the name,
address and phone number of an official responsible for providing the
assistance;
(2) Other advisory services, as appropriate, including counseling,
referrals to suitable (and where appropriate, accessible), decent,
safe, and sanitary replacement housing, and fair housing-related
advisory services;
(3) Payment for actual reasonable moving expenses, as determined by
HUD; and
(4) Such other federal, State or local assistance as may be
available.
(d) Relocation assistance at URA levels. (1) General. The
requirements of this paragraph apply to any displacement that results
whenever assistance under 24 CFR part 886, subpart C, (or other federal
financial assistance, as defined in 49 CFR 24.2(j)) is provided in
connection with the purchase, demolition, or rehabilitation of a
multifamily property by a third party. A displaced person (defined in
paragraph (d)(3) of this section) must be provided relocation
assistance at the levels described in, and in accordance with the
requirements of, the URA, implementing regulations at 49 CFR part 24,
and this section.
(2) Definition of ``initiation of negotiations''. Under the URA,
for purposes of determining the method for computing the replacement
housing assistance to be provided to a residential tenant displaced as
a direct result of privately undertaken rehabilitation, demolition, or
acquisition of the real property, the term ``initiation of
negotiations'' means the transfer of title to the purchaser.
(3) Definition of displaced person. The term ``displaced person''
means any person (family, individual, business, or nonprofit
organization) that moves from the real property, or moves personal
property from the real property, permanently, as a direct result of
acquisition, rehabilitation or demolition for a federally assisted
project. However, a person does not qualify as a ``displaced person''
if:
(i) The person is excluded under 49 CFR 24.2(g)(2);
(ii) The person has been evicted for a serious or repeated
violation of the terms and conditions of the lease or occupancy
agreement, violation of
[[Page 11689]]
applicable federal, State, or local law, or other good cause, and HUD
determines that the eviction was not undertaken for the purpose of
evading the obligation to provide relocation assistance;
(iii) The person moves into the property after transfer of title to
the purchaser; or
(iv) HUD determines that the person was not displaced as a direct
result of acquisition, rehabilitation, or demolition for an assisted
project.
(e) Temporary relocation (URA and non-URA relocation assistance).
Residential tenants, who will not be required to move permanently, but
who must relocate temporarily (e.g., to permit property repairs), shall
be provided:
(1) Reimbursement for all reasonable out-of-pocket expenses
incurred in connection with the temporary relocation, including the
cost of moving to and from the temporary housing and any increase in
monthly rent or utility costs. The party responsible for this
requirement may, at its option, perform the services involved in
temporarily relocating the tenants or pay for such services directly;
and
(2) Appropriate advisory services, including reasonable advance
written notice of the date and approximate duration of the temporary
relocation; the suitable (and where appropriate, accessible), decent,
safe, and sanitary housing to be made available for the temporary
period; the terms and conditions under which the tenant may lease and
occupy a suitable, decent, safe, and sanitary dwelling in the building/
complex following completion of the repairs; and the right to financial
assistance provided under paragraph (e)(1) of this section.
(f) Appeals. If a person disagrees with the purchaser's
determination concerning the person's eligibility for relocation
assistance or the amount of the assistance for which the person is
eligible, the person may file a written appeal of that determination
with the owner or purchaser. A person who is dissatisfied with the
purchaser's determination on his or her appeal may submit a written
request for review of that decision to the HUD Field Office responsible
for administering the URA in the area.
Sec. 290.19 Restrictions concerning nondiscrimination against Section
8 certificate holders and voucher holders.
The purchaser of any multifamily housing project shall not refuse
unreasonably to lease a dwelling unit offered for rent, offer to sell
cooperative stock, or otherwise discriminate in the terms of tenancy or
cooperative purchase and sale because any tenant or purchaser is the
holder of a Certificate of Family Participation or a Voucher under
Section 8 of the United States Housing Act of 1937 (42 U.S.C. 1437f),
or any successor legislation. This provision is limited in its
application, for tenants or applicants with Section 8 Certificates or
their equivalent (other than Vouchers), to those units which rent for
an amount not greater than the Section 8 Fair Market Rent, as
determined by HUD. The purchaser's agreement to this condition must be
contained in any contract of sale and also may be contained in any
regulatory agreement, use agreement, or deed entered into in connection
with the disposition.
Sec. 290.21 Computing annual number of units eligible for substitution
of tenant-based assistance or alternative uses.
(a) Substitution of tenant-based Section 8 assistance to low-income
families instead of project-based assistance to units. The number of
units eligible, as permitted by the Statute, for this form of
substitution within the 10 percent limit will be estimated at the
beginning of each fiscal year, taking into consideration the aggregate
number of subsidized project units disposed of by HUD in the
immediately preceding fiscal year and the disposition activity planned
for the current fiscal year.
(b) Alternate uses. The number of units eligible for alternate uses
in any fiscal year, as permitted by the Statute, will be determined at
the beginning of the fiscal year as the applicable percentages (i.e.,
either 10 percent or 5 percent) of the estimated total number of units
to be disposed of in the fiscal year, taking into consideration the
total number of units in multifamily housing projects disposed of by
the Department in the immediately preceding fiscal year, and the extent
of the disposition activity planned in the current fiscal year.
Sec. 290.23 Rebuilding.
HUD may provide project-based assistance to support the rebuilding
of a HUD-owned multifamily housing project only. The required
determination that rebuilding the project would be less expensive than
substantial rehabilitation means that the costs to HUD for rebuilding
are such that the monthly debt service needed to amortize the cost of
relocating tenants, demolition, site preparation, rebuilding, operating
expenses, and a reasonable return to the purchaser cannot be provided
with rents that are within 120 percent of the most recently published
Section 8 Fair Market Rents for Existing Housing (24 CFR part 888,
subpart A), and would be less expensive than rehabilitation.
Sec. 290.25 Determination not to preserve a project or a part of a
project.
HUD may determine to demolish, or otherwise dispose of, a HUD-owned
multifamily housing project, or any portion of such a project, or to
foreclose a HUD-held mortgage on a multifamily housing project, without
ensuring its continued availability as affordable rental or cooperative
housing for low- and very low-income families under appropriate
circumstances which may include one or more those listed in paragraphs
(a) through (g) of this section. If HUD decides not to preserve an
occupied multifamily housing project at a foreclosure sale or sale of a
HUD-owned project, tenants must be provided relocation assistance as
described in Sec. 290.17.
(a) The costs to HUD of rehabilitation are such that the monthly
debt service needed to amortize the cost of rehabilitation, operating
expenses, and a reasonable return to the purchaser cannot be provided
with rents that are, for subsidized and formerly subsidized projects,
within 120 percent of the most recently published Section 8 Fair Market
Rents for Existing Housing (24 CFR part 888, subpart A) or, for
unsubsidized and formerly unsubsidized projects, within rents
obtainable in the market.
(b) Construction is substantially incomplete.
(c) Preservation is not feasible because of environmental factors
that cannot be mitigated by HUD or the purchaser. For example, when the
project is located on a site that cannot be made to comply with the
Section 8 Site and Neighborhood standards in 24 CFR 886.307(k) because
of factors that adversely affect the health, safety and general welfare
of residents such as air pollution; smoke; mud slides; fire or
explosion hazards. Preservation may also be infeasible because of
significantly deteriorated surrounding neighborhood conditions with
inadequate police or fire protection; high crime rates; drug
infestation; or lack of public community services needed to support a
safe and healthy living environment for residents.
(d) HUD determines the project is unfit for rehabilitation.
(e) Rehabilitation would cost more than constructing comparable new
housing.
(f) A reduction in the number of units in the project will enhance
long-term project viability, for example, demolition of a building to
provide
[[Page 11690]]
space for a playground, open space, or combining one-bedroom units to
create larger units for families.
(g) Continued preservation of the project as rental or cooperative
housing is not compatible with State or local land use plans for the
area in which the project is located.
Subpart B--Sale of HUD-Held Multifamily Mortgages
Sec. 290.30 General.
(a) Except as otherwise provided in Sec. 290.32(a)(2), HUD will
sell HUD-held multifamily mortgages on a competitive basis. HUD retains
full discretion to offer any qualifying mortgage for sale and to
withhold or withdraw any offered mortgage from sale. However, when a
qualifying mortgage is offered for sale, the procedures set out in this
subpart will govern the sale.
(b) References in subpart B of this part to mortgages securing
subsidized projects include HUD-held purchase money mortgages on
subsidized projects.
Sec. 290.31 Sale of current mortgages securing subsidized projects.
HUD will sell current mortgages securing subsidized projects, as
follows:
(a) Current mortgages with FHA mortgage insurance will be sold
either:
(1) On a competitive basis to FHA-approved mortgagees; or
(2) On a negotiated basis, to State or local governments, or to a
group of investors that includes an agency of a State or local
government if, in addition to meeting the requirements of the Statute,
the sales price is the best price that HUD can obtain from an agency of
a State or local government while maintaining occupancy for the tenant
group originally intended to be served by the subsidized housing
program.
(b) Current mortgages without FHA mortgage insurance will be sold
if HUD can offer protections equivalent to those listed for an insured
sale in paragraph (a) of this section.
Sec. 290.33 Sale of delinquent mortgages securing subsidized projects.
Delinquent mortgages securing subsidized projects will be sold only
if, as part of the sales transaction:
(a) The mortgages are restructured; and
(b) Either FHA mortgage insurance or equivalent protections are
provided.
Sec. 290.35 Sale of HUD-held mortgages securing unsubsidized projects.
HUD's policy for selling HUD-held mortgages securing unsubsidized
projects is as follows:
(a) Current mortgages may be sold with or without FHA mortgage
insurance.
(b) Delinquent mortgages may be sold without FHA mortgage
insurance. However, delinquent mortgages will not be sold if:
(1) HUD believes that foreclosure is unavoidable; and
(2) The project securing the mortgage is occupied by very low-
income tenants who are not receiving housing assistance and would be
likely to pay rent in excess of 30 percent of their adjusted monthly
income if HUD sold the mortgage.
Sec. 290.37 Requirements for continuing federal rental subsidy
contracts.
For any mortgage that, at the time HUD offers the mortgage for sale
without FHA mortgage insurance, is delinquent and secures a subsidized
project or unsubsidized project that receives any of the forms of
assistance enumerated in paragraphs (4)(i) to (4)(iv) of the
``subsidized project'' definition in Sec. 290.3:
(a) The mortgage purchaser and its successors and assigns shall
require the mortgagor to record a covenant running with the land as
part of any loan restructuring or of a final compromise of the mortgage
debt and shall include a covenant in any foreclosure deed executed in
connection with the mortgage. The covenant shall continue in effect
until the last federal project-based rental assistance contract expires
by its own terms. The covenant shall provide that, except where
otherwise approved by HUD, a project purchaser shall agree to assume
the obligations of any outstanding:
(1) Project-based federal rental subsidy contract; and
(2) Tenant-based Section 8 housing assistance payments contract
with a public housing agency and the related lease.
(b) In the event of foreclosure of the mortgage sold by HUD, the
mortgage purchaser and its successors and assigns shall not foreclose
in a manner that interferes with any lease related to federal project-
based assistance or any lease related to tenant-based, Section 8
housing assistance payments.
Sec. 290.39 Nondiscrimination in admitting certificate and voucher
holders.
(a) Nondiscrimination requirement. For any mortgage described in
paragraphs (c) or (d) of this section that HUD sells without FHA
mortgage insurance, the project owner shall not unreasonably refuse to
lease a dwelling unit offered for rent, offer to sell cooperative
stock, or otherwise discriminate in the terms of tenancy or cooperative
purchase and sale because any tenant or purchaser is a certificate or
voucher holder under 24 CFR part 982.
(b) Inapplicability to current mortgages securing unsubsidized
projects that receive no project based-assistance. The
nondiscrimination requirements of this section do not apply to any
mortgage that is current under the terms of the mortgage at the time
HUD offers it for sale, if the mortgage secures an unsubsidized project
that does not receive any of the forms of project-based assistance
enumerated in paragraphs (4)(i) to (4)(iv) of the ``subsidized
project'' definition in Sec. 290.3.
(c) Applicability to mortgages securing unsubsidized projects
receiving project-based assistance (partially-assisted projects) or
securing subsidized projects. (1) The nondiscrimination requirement in
paragraph (a) of this section applies to the project owner upon the
sale of a mortgage without FHA mortgage insurance if, at the time HUD
offers it for sale, the mortgage secures:
(i) An unsubsidized project that receives any of the forms of
assistance enumerated in paragraphs (4)(i) to (4)(iv) of the
``subsidized project'' definition in Sec. 290.5; or
(ii) A subsidized project, as defined in Sec. 290.3.
(2) This requirement shall continue in effect until the mortgage is
paid in full, including by a mortgage prepayment, except as provided in
paragraph (d) of this section.
(2) A subsidized project, as defined in Sec. 290.3.
This requirement shall continue in effect until the mortgage is paid in
full, including by a mortgage prepayment, except as provided in
paragraph (d) of this section.
(d) Covenant requirement for all delinquent mortgages sold without
FHA mortgage insurance. This paragraph (d) applies to the sale of any
mortgage that is delinquent at the time HUD offers it for sale without
FHA mortgage insurance, without regard to the subsidy status of the
project. The mortgage purchaser and its successors and assigns shall
require the mortgagor to record a covenant running with the land as
part of any loan restructuring or final compromise of the mortgage debt
and shall include a covenant in any foreclosure deed executed in
connection with the mortgage. The covenant shall set forth the
nondiscrimination requirement in paragraph (a) of this section. The
covenant shall continue in
[[Page 11691]]
effect until a date that is the same as the maturity date of the
mortgage sold by HUD.
Dated: March 7, 1996.
Nicolas P. Retsinas,
Assistant Secretary for Housing--Federal Housing Commissioner.
[Note: The following guide to part 290 will not be codified in
title 24 of the Code of Federal Regulations.]
GUIDE
Disposition of Multifamily Projects and Sale of HUD-Held Multifamily
Mortgages--Guide
General Provisions
1. What subjects does this guide cover?
2. What are HUD's management and disposition goals?
3. What definitions apply in this guide?
4. What provisions may be waived?
Management and Maintenance Provisions
5. What maintenance and management standards apply to multifamily
housing projects?
6. How may HUD contract for management services, or require the
owner of a multifamily project to contract for management services?
7. What occupancy requirements apply to multifamily housing
projects?
8. How will rental rates be set when HUD is mortgagee-in-possession
(MIP) or owner of a multifamily housing project?
Notification Requirements
9. How will HUD provide required notifications?
10. What notification must be given before foreclosure?
11. Who has a right of first refusal for properties that HUD is
selling, and what kind of notice must HUD provide?
12. What kind of notice must HUD provide to tenants and the
community when HUD is selling a project?
Disposition Procedures
13. What are the different methods that may be used for the
disposition of a multifamily housing project?
14. What qualities does HUD look for in a purchaser?
15. What kind of disposition plan will HUD prepare before selling a
project?
Required Actions For All Multifamily Housing Projects
16. What actions must be taken in the disposition of all
multifamily housing projects?
17. What actions must be taken concerning tenants who are displaced
by the disposition of a multifamily housing project?
18. What actions must be taken concerning very low-income tenants
in the disposition of a multifamily housing project?
19. What restrictions concerning nondiscrimination against Section
8 certificate holders and voucher holders apply in the disposition of a
multifamily housing project?
Subsidized Projects--Basic and Alternative Actions to Facilitate
Disposition
20. What are the basic actions that may be taken in the disposition
of a subsidized project?
21. What alternatives to the basic actions are available in the
disposition of subsidized projects?
Unsubsidized Projects--Basic and Alternative Actions to Facilitate
Disposition
22. What are the basic actions that may be taken in the disposition
of an unsubsidized project?
23. What alternatives to the basic actions are available in the
disposition of an unsubsidized project?
All Multifamily Housing Projects--Additional Actions to Facilitate
Disposition
24. What guidelines will HUD apply in determining which additional
actions to take in the disposition of a multifamily housing project?
25. May HUD reduce the sales price for a project?
26. May HUD require additional use and rent restrictions?
27. May HUD provide short-term loans to facilitate the sale of a
project?
28. Under what conditions may HUD provide up-front grants?
29. What additional tenant-based assistance may HUD offer?
30. How may HUD provide for alternative uses of units in the
disposition of a multifamily housing project?
31. What disposition assistance may be available to rebuild a
multifamily housing project?
32. What emergency assistance funds may be provided to tenants?
33. Under what circumstances may HUD make a determination not to
preserve a project or a part of a project?
General Provisions
1. What subjects does this guide cover?
This guide sets out, in a single document, the combined statutory
(section 101 of the Multifamily Housing Property Disposition Reform Act
of 1994, hereinafter, ``the Statute,'' codified at 12 U.S.C. 1701z-11)
and regulatory (24 CFR part 290) requirements for the management and
disposition of multifamily projects. Except as provided in paragraph
(b) of this section, the requirements described in this guide apply to
the sale of multifamily projects which are or were, before being
acquired by the Department, assisted or had a mortgage insured under
the National Housing Act, or which were subject to a loan or a capital
advance under Section 202 of the Housing Act of 1959.
(b) The requirements described in this guide do not apply to
multifamily projects being foreclosed by HUD for which the decision to
foreclose has been made before March 2, 1995, the effective date of the
interim rule which implemented the Multifamily Housing Property
Disposition Reform Act of 1994 at 24 CFR part 290, nor to HUD-owned
projects where the initial disposition program has been approved before
March 2, 1995. For such projects, the procedures in the regulations at
24 CFR 290 in effect immediately prior to March 2, 1995 apply, unless
HUD determines, on a case-by-case basis, to apply the new requirements.
2. What are HUD's management and disposition goals?
(a) HUD's goals are to carry out the management and disposition of
HUD-owned multifamily projects and multifamily projects subject to HUD-
held mortgages in a manner that:
(1) Is consistent with the National Housing Act, section 203 of the
Housing and Community Development Amendments of 1978, and other
relevant statutes;
(2) Will protect the financial interests of the Federal Government;
and
(3) Will, in the least costly fashion among reasonable available
alternatives, address the goals of:
(i) Preserving certain housing so that it can remain available to
and affordable by low-income persons;
(ii) Preserving and revitalizing residential neighborhoods;
(iii) Maintaining the existing housing stock in a decent, safe, and
sanitary condition;
(iv) Minimizing the involuntary displacement of tenants;
(v) Maintaining housing for the purpose of providing rental
housing, cooperative housing, and homeownership opportunities for low-
income persons;
(vi) Minimizing the need to demolish multifamily housing projects;
(vii) Adhering to fair housing requirements; and
[[Page 11692]]
(viii) Disposing of such projects in a manner consistent with local
housing market conditions.
(b) Competing goals. In determining the manner in which a project
is to be managed and disposed of, HUD may balance competing goals
relating to individual projects in a manner that will further the
purposes of the Statute.
3. What definitions apply in this guide?
The following definitions apply in this guide:
Affordable means, with respect to a unit of a multifamily housing
project:
(1) For a unit occupied by a very-low income family, the unit rent
does not exceed 30 percent of 50 percent of the area median income (not
the income of the family), as determined by the Department, with
adjustments for smaller and larger families; or
(2) For a unit occupied by a low-income family other than a very
low-income family, the unit rent does not exceed 30 percent of 80
percent of the area median income (not the income of the family), as
determined by the Department, with adjustments for smaller and larger
families; or
(3) The unit, or the family residing in the unit, is receiving
assistance under Section 8 of the United States Housing Act of 1937.
Cooperative means a nonprofit, limited equity, or consumer
cooperative as defined under 24 CFR part 213. It may include mutual
housing associations.
Department means the United States Department of Housing and Urban
Development, or HUD.
HUD-owned project means a multifamily project that has been
acquired by HUD.
Low-income family means a low-income family as defined at 24 CFR
part 813.
Market area means the area from which a multifamily housing project
may reasonably be expected to draw a substantial number of its tenants,
as determined by HUD, taking into consideration the knowledge of the
HUD office with jurisdiction over the project of the local real estate
market and HUD's project underwriting experience. Submarkets may be
used in large, complex metropolitan areas.
Multifamily housing project means a multifamily project that is or
was insured under sections 207, 213, 220, 221(d)(3), 221(d)(4), 223(f),
231, 236, or 608 of the National Housing Act; or is or was subject to a
loan under section 202 of the Housing Act of 1959; or was a Real Estate
Owned (REO) multifamily project transferred by the Government National
Mortgage Association to the Department. Multifamily housing project
does not include projects consisting of one to eleven units insured
under section 220(d)(3)(A) of the National Housing Act; or mobile home
parks under section 207(m) of that Act; or vacant land; or property
covered by a homeownership program approved under the Homeownership and
Opportunity for People Everywhere (``HOPE'') program.
Multifamily project means a project consisting of five or more
units that has or had a mortgage (even if subordinate to other
mortgages) insured under the National Housing Act or is or was subject
to a loan under section 202 of the Housing Act of 1959, or a hospital,
intermediate care facility, nursing home, group practice facility, or
board and care facility that has or had a mortgage insured, or is or
was subject to a loan under, these authorities. Multifamily project
does not include projects consisting of one to eleven units insured
under section 220(d)(3)(A) of the National Housing Act, which are
classified as single family homes.
Nonprofit organization means a corporation or association organized
for purposes other than making a profit or gain for itself.
Stockholders or trustees do not share in profits or losses. Profits are
used to accomplish the charitable, humanitarian, or educational
purposes of the corporation.
Preexisting tenant means a family that resides in a unit in a
multifamily housing project immediately before the project is acquired
under this part by a purchaser other than the Department.
Project-based assistance means assistance that is attached to a
structure.
Subsidized project means a multifamily housing project that is
receiving, or immediately before its mortgage was foreclosed by HUD or
the project was acquired by HUD, pursuant to the Statute, was receiving
any of the following types of assistance:
(1) Below market interest rate mortgage insurance under the proviso
of section 221(d)(5) of the National Housing Act (hereinafter, a BMIR
project);
(2) Interest reduction payments made in connection with mortgages
insured under section 236 of the National Housing Act (hereinafter, a
236 project);
(3) Direct loans made under section 202 of the Housing Act of 1959
(hereinafter, a 202 project);
(4) Assistance, to more than 50 percent of the units in the
project, in the form of:
(i) Rent supplement payments under section 101 of the Housing and
Urban Development Act of 1965 (hereinafter, Rent Supp);
(ii) Additional assistance payments under section 236(f)(2) of the
National Housing Act (hereinafter, RAP);
(iii) Housing assistance payments under section 23 of the United
States Housing Act of 1937 (as in effect before January 1, 1975)
(hereinafter, Sec. 23); or
(iv) Housing assistance payments under Section 8 of the United
States Housing Act of 1937 (excluding payments of tenant-based Section
8 assistance) (hereinafter, project-based Section 8 assistance).
Sufficient habitable, affordable, rental housing is available means
that the HUD office with jurisdiction determines that there is an
adequate supply of habitable, affordable housing for low- and very low-
income families available in the market area. Submarkets, consisting of
portions of units of general local government, may be used in large,
complex metropolitan areas. Local housing markets having an adequate
supply of standard-quality rental housing would include housing markets
in which the supply of rental housing available and in production is
adequate to meet the anticipated demand (e.g., the housing market is
balanced), as well as those in which there is an excess supply of
rental housing (e.g., the housing market is soft). Rental markets that
do not have an adequate supply (e.g., tight markets) are characterized
by low rental vacancy rates, low levels of production and turnover of
rental housing, and, usually, by high levels of rent inflation. HUD
will make the determination of whether sufficient habitable,
affordable, rental housing is available using established market
analysis techniques, and will consider information that demonstrates:
(1) The rental housing vacancy rate is at a low level relative to
the rate required for a balanced market, typically a four percent
vacancy rate; except that a rate lower than four percent may be
considered in unusual circumstances if it can be demonstrated that
there is an adequate supply of affordable housing for low-income
families;
(2) The number of rental housing units being produced on an annual
basis is not large enough to satisfy demand arising from the increase
in households, or, in markets where there is little or no growth,
evidence that the number of additional rental units being supplied is
not sufficient to meet the demand arising from net losses to the
available inventory and the inadequate supply of rental housing has
inhibited growth;
(3) The shortage of housing is resulting in rent increases that
exceed normal increases commensurate with the costs of operating rental
housing;
[[Page 11693]]
(4) A significant number, or proportion, of the households holding
Section 8 certificates or rental vouchers are unable to find adequate
housing because of the shortage of rental housing, including PHA data
showing a lower than average percentage of units under lease and a
longer than average time required to find units.
Tenant-based assistance means rental assistance that is not
attached to a structure.
Unit of general local government means a city, town, township,
county, parish, village, or other general purpose political subdivision
of a State.
Unsubsidized project means a multifamily housing project that is
not a subsidized project.
URA means the Uniform Relocation Assistance and Real Property
Acquisition Policies Act of 1970 (42 U.S.C. 4601-4655).
Useful life means, generally, twenty years, but it may be more or
less, as determined by the Department.
Very low-income family means a very low-income family as defined at
24 CFR part 813.
4. What provisions may be waived?
The Assistant Secretary for Housing may waive any regulatory
provision issued under the statute. Each waiver must be in writing, and
must be supported by documentation of the facts and reasons which
formed the basis for the waiver. HUD will publish a Federal Register
notice informing the public of all waivers granted under this section
in accordance with the HUD Reform Act of 1989 and HUD policies
regarding publication of waivers.
Management and Maintenance Provisions
5. What maintenance and management standards apply to multifamily
housing projects?
(a) Scope. The provisions of this section apply to any multifamily
housing project:
(1) That is HUD-owned;
(2) For which HUD is mortgagee-in-possession; or
(3) That is subject to a mortgage held by HUD.
(b) Maintenance and Management standards. With respect to projects
within the scope of this section, HUD or the owner, as appropriate,
shall:
(1) To the greatest extent possible, maintain all occupied projects
in a decent, safe, and sanitary condition, and in compliance with any
standards established by the Department and under applicable State or
local laws, rules, ordinances, or regulations relating to the
accessibility and physical condition of the housing;
(2) Maintain full occupancy;
(3) Maintain projects for purposes of providing rental or
cooperative housing; and
(4) Manage projects in accordance with the requirements of the Fair
Housing Act (42 U.S.C. 3601-19) and implementing regulations at 24 CFR
parts 100 et al, which prohibit discrimination in the sale or rental of
housing and in related transactions on the basis of race, color,
religion, sex, national origin, handicap, or familial status; section
504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) and implementing
regulations at 24 CFR part 8 that prohibit discrimination against
disabled individuals in Federally-assisted activities, and 24 CFR part
9, which prohibit discrimination against disabled individuals in
Federally-conducted activities; Title VI of the Civil Rights Act of
1964 and implementing regulations at 24 CFR part 1, which prohibit
discrimination based on race, color, or national origin in programs
receiving Federal financial assistance; the Age Discrimination Act of
1975 and implementing regulations at 24 CFR part 146, which prohibit
discrimination based on age in programs receiving Federal financial
assistance; and Executive Order 11063, as amended by Executive Order
12259 (Equal Opportunity in Housing) and implementing regulations at 24
CFR part 107.
6. How may HUD contract for management services, or require the
owner of a multifamily project to contract for management services?
(a) Scope. The provisions of this section apply to any multifamily
housing project:
(1) That is HUD-owned;
(2) For which HUD is mortgagee-in-possession; or
(3) That is subject to a mortgage held by HUD.
(b) Contracting for management services. (1) With respect to
projects within the scope of this section, HUD may, or may require the
owner to, contract for management services for the project with for-
profit and nonprofit entities and public agencies, including public
housing agencies, on a negotiated, competitive bid, or other basis, at
a price determined by HUD to be reasonable, with a manager determined
by HUD to be capable of:
(i) Implementing a sound financial and physical management program
that is designed to enable the project to meet anticipated operating
and maintenance expenses to ensure that the project will remain in a
decent, safe, and sanitary condition, and in compliance with any
standards under applicable State or local laws, rules, ordinances, or
regulations relating to the accessibility and physical condition of the
housing, and any such standards established by HUD;
(ii) Responding to the needs of tenants and working cooperatively
with tenant organizations;
(iii) Providing adequate organizational, staff, and financial
resources to the project; and
(iv) Meeting such other requirements as HUD may determine to be
necessary or appropriate.
(2) HUD will conduct outreach efforts to minority-owned and female-
owned businesses to become managers of the HUD-owned projects covered
by this section, in accordance with Executive Order 11625, as amended
by Executive Order 12007 (Minority Business Enterprises), Executive
Order 12432 (Minority Business Enterprise Development), and Executive
Order 12138 (National Women's Business Enterprise Policy).
7. What occupancy requirements apply to multifamily housing
projects?
(a) Multifamily housing project that is HUD-owned or for which HUD
is mortgagee-in-possession. Occupancy in a multifamily housing project
that is HUD-owned or for which HUD is mortgagee-in-possession shall be
available on a basis that is comparable to the occupancy requirements
that applied to the project immediately before HUD acquired the project
or became mortgagee-in-possession, except that preference shall be
given to tenants of other HUD-owned multifamily housing projects who
are eligible for assistance in accordance with the displacement and
relocation provisions at section 17 of this guide.
(b) Evictions. Eviction from a HUD-owned multifamily housing
project is governed by 24 CFR part 247, subpart B.
(c) Threat to health and safety. Whenever HUD determines that there
is an immediate threat to the health and safety of the tenants, HUD may
require the tenants to vacate the premises and shall provide temporary
relocation benefits as provided in section 17 of this guide to tenants
required to vacate the premises.
[[Page 11694]]
Project Rents While HUD is Mip or Owner
----------------------------------------------------------------------------------------------------------------
Unit rents............................. Unit rents in accordance with the rent setting requirements of the
project's mortgage insurance or direct loan program while HUD is
mortgagee-in-possession (MIP), or in accordance with the rent setting
requirements of the project's mortgage insurance or direct loan
program in effect immediately before HUD became the owner of the
project (section 8(a) of this guide).
Rents payable by tenants............... 1. Tenant rent. Rent the tenant pays will be based on the income
certification and the rent payment requirements of the project's
mortgage insurance or direct loan program in effect while HUD is MIP
or immediately before HUD became the owner of the project (section
8(b)(1) of this guide).
2. Rent when tenant does not certify income. If a tenant does not
certify income, the tenant must pay the unit rent (section 8(b)(1) of
this guide).
3. Utility allowance. For a tenant whose rent is based on a percentage
of adjusted income, HUD will use a utility allowance to reduce the
rent (section 8(b)(2) of this guide).
4. Project viability. HUD may adjust the rent to promote project
v
FR Doc. 96-6791 Office of Assistant Secretary for HousingFederal Housing Commissioner; Disposition of Multifamily Projects and Sale of HUD-Held Multifamily Mortgages
iability (section 8(b)(3) of this guide).
5. Tenants with rental vouchers or certificates. Tenant pays rent in
accordance with policies and procedures governing such assistance
(section 8(b)(4) of this guide).
----------------------------------------------------------------------------------------------------------------
8. How will rental rates be set when HUD is mortgagee-in-possession
(MIP) or owner of a multifamily housing project?
Because of the subsidies involved in making multifamily housing
projects affordable, the setting of rents involves two steps: first,
establishing the rent on a unit that will be paid to the owner, and
second, determining the rent that the tenant pays (with the difference
made up by a subsidy), using a number of procedures to obtain income
verification and notify tenants of changes in rent. These procedures
are explained below.
(a) Setting unit rents. Except as modified by this section, for a
property where HUD is mortgagee-in-possession (MIP), HUD will set unit
rents in accordance with the rent setting requirements of the project's
mortgage insurance or direct loan program; or for a property owned by
HUD, rents will be set in accordance with the rent setting requirements
of the project's mortgage insurance or direct loan program in effect
immediately before HUD became the owner of the project.
(b) Setting rents payable by tenants. (1) Tenant rent. The rent the
tenant pays will be based on the income certification and the rent
payment requirements of the project's mortgage insurance or direct loan
program in effect while HUD is MIP or immediately before HUD became the
owner of the project, as affected by any of the factors in paragraphs
(b)(2) through (b)(4) of this section. However, if a tenant does not
certify income as required by this section, the tenant must pay the
unit rent as determined under the rent setting requirements in
paragraph (a) of this section.
(2) Utility allowance. For a tenant whose rent is based on a
percentage of adjusted income (except for rental voucher or rental
certificate holders), if the cost of utilities (except telephone) and
other housing services for the unit is the responsibility of the tenant
to pay directly to the provider of the utility or service, HUD will
deduct from the rent to be paid by the tenant to HUD a utility
allowance, which is an amount equal to HUD's estimate of the monthly
costs of a reasonable consumption of the utilities and other services
for the unit for an energy-conservative household of modest
circumstances consistent with the requirement of a safe, sanitary, and
healthful living environment. If the utility allowance exceeds the
percentage of the tenant's adjusted income payable as rent, HUD will
pay the difference between the amount payable as rent and the utility
allowance to the tenant or, with the consent of the tenant and the
utility company, either jointly to the tenant and the utility company
or directly to the utility company.
(3) Rent adjustments for project viability. For a HUD-owned
project, HUD may adjust the rent provided for in paragraphs (b)(1) or
(b)(2) of this section if necessary or desirable to maintain the
existing economic mix in the project, prevent undesirable turnover, or
increase occupancy.
(4) Tenants who are rental voucher or rental certificate holders.
Tenants assisted with rental vouchers or certificates certify their
income to the public housing agency (PHA) administering the assistance,
and pay rent pursuant to the policies and procedures governing such
assistance.
(c) Income verification and rent notification procedures.
(1) Income certification by tenants. (i) In subsidized projects.
(A) For families residing in subsidized projects, when HUD becomes MIP
or owner, HUD will request an income certification from each family as
soon as practicable after HUD initially assumes management, unless the
family's income has been examined by the owner or by HUD not more than
four months before HUD's assumption of management.
(B) For each family applying for admission to subsidized projects,
HUD will request an income certification to determine the family's
eligibility for a subsidized rent, and (if the rent is based on a
percentage of adjusted income) the family's subsidized rent, in
accordance with 24 CFR part 813.
(ii) In unsubsidized projects. (A) For tenants in occupancy when
HUD becomes mortgagee-in-possession or owner of an unsubsidized
project, HUD may request an income certification from families who are
not paying a subsidized rent.
(B) For families applying for admission to such projects, HUD will
request sufficient information for income verification to determine the
family's ability to pay the unit rent.
(2) Notice of increases in the amount of rent payable. Whenever HUD
proposes an increase in rents in a HUD-owned multifamily project or a
project where HUD is mortgagee-in-possession, HUD will provide tenants
30 days notice of the proposed changes and an opportunity to review and
comment on the new rent and supporting documentation. After HUD
considers the tenants' comments and has made a decision with respect to
its proposed rent change, HUD shall notify the tenants of its decision,
with the reasons for the decision. A tenant in occupancy before the
effective date of any revised rental rate must be given 30 days notice
of the revised rate, and any change in the tenant's rent is subject to
the terms of an existing lease. Notices to each tenant must be
personally delivered or sent by first class mail. General notices of
rent increases to all tenants must be posted in the project office and
in appropriate conspicuous and accessible locations around the project.
(3) Disclosure and verification of Social Security numbers. Any
certifications or reexaminations of the income of tenants or
prospective tenants in connection with tenancy under this section are
subject to the requirements for the disclosure and verification of
[[Page 11695]]
Social Security Numbers, as provided by part 200, subpart T, of this
title.
(4) Signing of consent forms for income verification. Any
certifications or reexaminations of the income of tenants or
prospective tenants in connection with tenancy under this section are
subject to the requirements for the signing and submitting of consent
forms for the obtaining of wage and claim information from State Wage
Information Collection Agencies, as provided by 24 CFR part 200.
Pre-Disposition Notification Requirements
----------------------------------------------------------------------------------------------------------------
Pre-foreclosure (section 10 of this 1. Timing. Not later than 60 days before foreclosure on any mortgage.
guide).
2. Recipients.
(i) Tenants of the project, and
(ii) The unit of general local government in which the project is
located.
3. Contents.
(i) General terms and conditions concerning the sale, future use, and
operation of the project that HUD proposes to impose; and,
(ii) Whether temporary or permanent relocation is anticipated, and, if
so, available displacement and relocation assistance.
Right of first refusal (section 11 of 1. Timing. Before, or not more than 30 days after, HUD acquires title
this guide). to a multifamily housing project.
2. Recipients.
(i) The appropriate unit of general local government;
(ii) Public housing agencies in the project's market area;
(iii) The State agency or agencies designated to receive such notice by
the chief executive officer of the State in which the project is
located.
3. Contents.
(i) Description of the project;
(ii) Invitation to recipients to make bona fide offers to purchase the
project;
(iii) Offer of right of first refusal for period of up to 90 days;
(iv) Method by which the recipient may respond to HUD.
Notice to tenants and the community 1. Timing. Before, or not more than 30 days after, HUD acquires title
(section 12 of this guide). to a multifamily housing project.
2. Recipients.
(i) To the tenants of the project;
(ii) To the unit of general local government in which the project is
located; and
(iii) To the community in which the project is located.
3. Contents.
(i) Description of the project;
(ii) Proposed general terms and conditions concerning the sale, future
use, and operation of the project;
(iii) Invitation for tenants and their organizations, units of general
local government, and other public or nonprofit entities to submit
comments on the disposition plan, and/or proposals for disposition
which will be considered by HUD in making its property disposition
determination.
----------------------------------------------------------------------------------------------------------------
Notification Requirements
9. How will HUD provide required notifications?
(a) In general. HUD may combine two or more of the notifications
required by the Statute, as appropriate, to simplify the disposition
process. Disposition-related notifications (i.e., pre-foreclosure
notification to tenants and units of general local government; pre-
disposition community and tenant input notification; state and local
government right of first refusal notification) will be made, as
appropriate:
(1) 60 or more days before HUD forecloses on a project, or
(2) Before, or not more than 30 days after, HUD acquires a project.
(b) Methods of notification. (1) To tenants. The notices required
to be made to tenants under the Statute will be delivered to each unit
in the project, or sent to each unit by first class mail. Where HUD is
mortgagee-in-possession or owner of a project, the notice will also be
posted in the project office and in appropriate conspicuous and
accessible locations around the project.
(2) To the unit of general local government. The notice required to
be made to a unit of general local government under the statute will be
sent to the chief executive officer of the unit of general local
government by first class mail. For purposes of receiving or sending
any notices or information under the statute, the unit of general local
government is its chief executive officer, or the person designated by
the chief executive officer to receive or send the notice or
information.
(3) To the community or any other party. HUD will consult with
tenants and their organizations, officials of units of general local
government, and other entities as HUD determines to be appropriate, to
identify community recipients of any notification required by the
statute. Any notice required to be made to any party other than a
tenant or a unit of general local government will be sent by first
class mail.
10. What notification must be given before foreclosure?
(a) Timing and recipients of notice. Not later than 60 days before
foreclosing on any mortgage held by the Department on any multifamily
housing project, HUD will provide notice of the proposed foreclosure
sale to the tenants of the project and to the unit of general local
government in which the project is located.
(b) Contents of notice. The notice will describe the general terms
and conditions concerning the sale, future use, and operation of the
project that HUD proposes to impose on a purchaser other than HUD
through the foreclosure. The notice will also state whether temporary
or permanent relocation is anticipated as a result of repairs or the
proposed disposition, including any anticipated conversion of use, and,
if so, the levels of displacement and relocation assistance available
as described in section 17 of this guide.
11. Who has a right of first refusal for properties that HUD is
selling, and what kind of notice must HUD provide?
(a) Timing and recipients of notice. Before, or not more than 30
days after,
[[Page 11696]]
HUD acquires title to a multifamily housing project, HUD will provide
notice of the right of first refusal to the appropriate unit of general
local government, as well as public housing agencies in the project's
market area, and the State agency or agencies designated to receive
such notice by the chief executive officer of the State in which the
project is located.
(b) Content of notice. The notice will describe the project
acquired by HUD, and contain an invitation to recipients to make bona
fide offers to purchase the project. The notice will state:
(1) That for a period specified in the notice, not to exceed 90
days from the time the notification is made, HUD will not sell or offer
to sell the project other than to a recipient of the notice, unless the
recipients notify HUD sooner that they will not make an offer to
purchase the project;
(2) That if a recipient expresses interest within the specified
period in acquiring the project, HUD will consult with the interested
parties in the preparation of the disposition plan and the terms and
conditions of the sale of the project. HUD will accept a bona fide
offer to purchase the project if the offer complies with the terms and
conditions of the disposition plan for the project, or is otherwise
acceptable to HUD;
(3) The method by which the recipient may respond to HUD with an
expression of interest or a bona fide offer, or by which the recipient
may notify HUD that an offer will not be made.
12. What kind of notice must HUD provide to tenants and the
community when HUD is selling a project?
(a) Timing and recipients of notice. Before, or not more than 30
days after, HUD acquires title to a multifamily housing project, HUD
will provide notice of HUD's acquisition and proposed disposition of
the project to the tenants of the project, to the unit of general local
government, and to the community in which the project is located.
(b) Content of notice. The notice will describe the project
acquired by HUD, and the general terms and conditions concerning the
sale, future use, and operation of the project as proposed by HUD. The
notice will, as appropriate, state:
(1) HUD has acquired the project.
(2) During HUD's ownership, HUD will, to the extent feasible,
assure that the project is maintained in a decent, safe, and sanitary
condition.
(3) HUD is developing a final disposition plan for the project.
(4) HUD normally seeks to sell HUD-owned projects as rapidly as
possible.
(5) HUD's interest in learning of tenant, community, and local
government plans and capacity for the acquisition of the project for
use as rental or cooperative housing.
(6) HUD's final determination of the terms and conditions to be
imposed on the disposition of the project will not be made until after
HUD considers the comments received from tenants, the community, and
the unit of general local government within the specified comment
period.
(7) A brief description of a proposed manner of disposition of the
project.
(8) A description of the pending notice of the right of first
refusal to purchase the project as described in section 11 of this
guide.
(9) That alternative uses of units in the project may be part of
the project's disposition, and that:
(i) Some of the units in the project may be made available for uses
other than rental or cooperative uses, including low-income
homeownership opportunities, or community space, office space for
tenant or housing-related service providers or security programs, or
small business uses, if such uses benefit the tenants of the project;
(ii) Some of the units in the project may be used in any manner, if
the Department and the unit of general local government or area-wide
governing body determine that such use will further fair housing,
community development, or neighborhood revitalization goals;
(iii) Such alternative uses of units may only take place if:
(A) Tenant-based Section 8 rental assistance is made available to
each eligible family residing in the project that is displaced as a
result of such actions; and
(B) The Department determines that sufficient habitable, affordable
rental housing is available in the market area in which the project is
located to ensure use of such assistance.
(10) That for any very low-income family who is a preexisting
tenant of the project who upon disposition of the project would be
required to pay rent in an amount in excess of 30 percent of the
adjusted income of the family:
(i) For a period of 2 years beginning upon the date of the
acquisition of the project under the disposition, the rent for the unit
occupied by the family may not be increased above the rent charged
immediately before the acquisition; and
(ii) The family shall be considered displaced for purposes of the
preferences for assistance under sections 6(c)(4)(A)(i), 8(d)(1)(A)(i),
and 8(o)(3)(B) of the United States Housing Act of 1937.
(11) Whether temporary or permanent relocation is anticipated as a
result of repairs or the proposed disposition, including any
anticipated conversion of use, and, if so, the levels of relocation
assistance available as described in section 17 of this guide.
(12) That tenants and their organizations, units of general local
government, and other public or nonprofit entities are invited to
submit comments on the disposition plan, and/or proposals (e.g.,
expressions of interest to convert the project to a cooperative or
other form of resident-controlled ownership, or other resident
initiative), which will be considered by HUD in making its property
disposition determination.
(13) That comments must be submitted to HUD within 30 days of
receipt of the notice.
(14) That the full disposition recommendation and analysis and
other supporting information will be available for inspection and
copying at the HUD field office.
Methods of Disposition
----------------------------------------------------------------------------------------------------------------
Foreclosure sales. (section 13(a) of HUD may dispose of a project at a foreclosure sale:
this guide).
1. In accordance with the Multifamily Mortgage Foreclosure Act, or
2. In accordance with other Federal or State foreclosure law.
Sale of HUD-owned projects. (section HUD may sell a HUD-owned project using any of the following procedures:
13(b) of this guide).
1. Competitive bid;
2. Auction;
3. Request for proposals;
4. Negotiated sale, as described in section 13(b)(1) and (2); or
5. Any other method, on such terms as HUD considers appropriate.
[[Page 11697]]
Transfer for use under other HUD HUD, under an agreement, may transfer a multifamily housing project:
programs. (section 13(c) of this
guide).
1. To a public housing agency (PHA) for use of the project as public
housing; or
2. To an entity eligible to own or operate 202 or 811 supportive
housing.
----------------------------------------------------------------------------------------------------------------
Disposition Procedures
13. What are the different methods that may be used for the
disposition of a multifamily housing project?
HUD may use any of the following methods, as appropriate, for the
disposition of a multifamily housing project:
(a) Foreclosure sales. Foreclosure sales will be conducted, at
HUD's discretion, in accordance with the Multifamily Mortgage
Foreclosure Act, or other Federal or State foreclosure law, on such
terms as HUD considers appropriate to further the goals and purposes
stated in section 2 of this guide.
(b) Sale of HUD-owned projects. HUD may dispose of a HUD-owned
multifamily project by competitive bid, auction, request for proposals,
or other method, on such terms as HUD considers appropriate to further
the goals and purposes stated in section 2 of this guide. When HUD
conducts a negotiated sale involving the disposition of a project to a
person or entity without a public offering, the following provisions
apply:
(1) HUD may negotiate the sale of any project to an agency of the
Federal, State, or local government.
(2) When HUD determines that a purchaser can demonstrate the
capacity to own and operate a project in accordance with standards set
by HUD, and/or a competitive offering will not generate offers of equal
merit from qualified purchasers, HUD may approve a negotiated sale of a
subsidized project to:
(i) A resident organization wishing to convert the project to a
nonprofit or limited equity cooperative;
(ii) A cooperative (e.g., nonprofit limited equity, consumer
cooperative, mutual housing organization) with demonstrated experience
in the operation of nonprofit (and preferably low-income) housing;
(iii) A nonprofit entity that will continue to operate the project
as low-income housing and whose governing board is composed of project
residents;
(iv) A State or local governmental entity with the demonstrated
capacity to acquire, manage, and maintain the project as housing
available to and affordable by low-income residents;
(v) A State or local governmental or nonprofit entity with the
demonstrated capacity to acquire, manage, and maintain the project as a
shelter for the homeless or other public purpose, generally when the
project is vacant or has minimal occupancy and is not needed in the
area for continued use as rental housing for the elderly or families;
or
(vi) Other nonprofit organizations.
(c) Transfer for use under other HUD programs.
(1) In general. Subject only to the requirements of an agreement
under paragraph (c)(2) of this section, HUD may transfer a multifamily
housing project:
(i) To a public housing agency (PHA) for use of the project as
public housing; or
(ii) To an entity eligible to own or operate housing assisted under
section 202 of the Housing Act of 1959 or under section 811 of the
Cranston-Gonzalez National Affordable Housing Act for use as supportive
housing under either of those sections.
(2) Transfer agreement. An agreement providing for the transfer of
a project as described in paragraph (c)(1) of this section must:
(i) Contain such terms, conditions, and limitations as HUD
determines to be appropriate, including requirements to ensure use of
the project as public housing, supportive housing under section 202 of
the Housing Act of 1959, or supportive housing under section 811 of the
Cranston-Gonzalez National Affordable Housing Act, as applicable; and
(ii) Ensure that no tenant of the project will be displaced as a
result of the transfer.
14. What qualities does HUD look for in a purchaser?
(a) Foreclosure sales. HUD will dispose of a multifamily housing
project through a foreclosure sale only to a purchaser that the
Department determines is capable of implementing a sound financial and
physical management program that is designed to enable the project to
meet anticipated operating and repair expenses to ensure that the
project will remain in decent, safe, and sanitary condition and in
compliance with any standards under applicable State or local laws,
rules, ordinances, or regulations relating to the physical condition of
the housing and any such standards established by the Department.
(b) HUD-owned multifamily housing projects. Sales of HUD-owned
multifamily housing projects may be made only to a purchaser determined
by the Department to be capable of:
(1) Satisfying the conditions of the disposition plan, as described
in section 15 of this guide, for the project;
(2) Implementing a sound financial and physical management program
that is designed to enable the project to meet anticipated operating
and repair expenses to ensure that the project will remain in decent,
safe, and sanitary condition and in compliance with any standards under
applicable State or local laws, rules, ordinances, or regulations
relating to the physical condition of the housing and any such
standards established by the Department;
(3) Responding to the needs of the tenants and working
cooperatively with tenant organizations;
(4) Providing adequate organizational, staff, and financial
resources to the project; and
(5) Meeting such other requirements as HUD may determine to be
appropriate for the particular project.
15. What kind of disposition plan will HUD prepare before selling a
project?
(a) In general. Before disposing of a HUD-owned multifamily housing
project, HUD will develop an initial and a final disposition plan for
the project that specifies the minimum terms and conditions for the
disposition of the project, the sales price that is acceptable to HUD,
and the assistance that HUD plans to make available to a prospective
purchaser.
(b) Market-wide plans. In developing the disposition plan under
this section for a HUD-owned multifamily housing project located in a
market area in which at least 1 other HUD-owned multifamily housing
project is located, HUD may coordinate the disposition of HUD-owned
multifamily housing projects located within the same market area to the
extent and in such a manner as the Department determines appropriate to
carry out the goals and
[[Page 11698]]
purposes stated in section 2 of this guide.
(c) Sales price. The sales price in the disposition plan will be
reasonably related to the intended use of the project after the sale,
any rehabilitation requirements for the project, the rents for units in
the project that can be supported by the market, the amount of rental
assistance available for the project under Section 8 of the United
States Housing Act of 1937, the occupancy profile of the project
(including family size and income levels for tenant families), and any
other factors that HUD considers appropriate.
(d) Community and tenant input. In developing the initial and final
disposition plans, HUD will consider any timely input from officials of
the unit of general local government affected, the community in which
the project is situated, and the tenants of the project, including the
comments received in response to the notice described in section 12 of
this guide. To obtain this input, HUD may provide technical assistance,
directly or indirectly, and may use amounts available for technical
assistance under the Emergency Low Income Housing Preservation Act of
1987, subtitle C of the Low-Income Housing Preservation and Resident
Homeownership Act of 1990, subtitle B of title IV of the Cranston-
Gonzalez National Affordable Housing Act, or the Statute, for the
provision of such technical assistance. Recipients of technical
assistance funding under the provisions referred to in this
subparagraph may provide technical assistance to the extent of such
funding, notwithstanding the source of the funding.
(e) Environmental requirements. HUD will perform, and include in
the final disposition plan, the environmental reviews required by 24
CFR part 50.
Table of Actions to Facilitate Disposition
----------------------------------------------------------------------------------------------------------------
All Multifamily Housing Projects....... Required Actions
1. Displacement requirements (section 17 of this guide).
2. Very-low income preexisting tenant--2 year rent freeze if rent after
disposition more than 30 percent of adjusted income (section 18 of
this guide).
3. Nondiscrimination against Section 8 certificate holders and voucher
holders (section 19 of this guide).
Subsidized Projects.................... Basic Actions
1. Provide project-based Section 8 assistance to at least all units
that, before acquisition or foreclosure, received: Rent Supp, RAP,
Sec. 23, project-based Section 8 (section 20(a) of this guide).
2. Vacancy in any assisted unit must be filled by a family that is
eligible for the assistance (section 20(b) of this guide).
3. Rent and use restrictions on BMIR, 236, or 202 subsidized project
units that were not covered before acquisition or foreclosure by Rent
Supp, RAP, Sec. 23, or project-based Section 8 (section 20(c) of this
guide).
Alternatives to Basic Actions
1. Assistance to, or restrictions on, units in unsubsidized projects
instead of assistance to units in subsidized projects (section 21(a)
of this guide).
2. Substitution of tenant-based Section 8 assistance to low-income
families instead of project-based assistance to units (section 21(b)
of this guide).
3. Use of the additional assistance and restrictions permitted by the
Statute (section 21(b) of this guide).
Unsubsidized Projects.................. Basic Actions
1. Provide project-based Section 8 assistance for all units that,
before acquisition or foreclosure, received assistance under:
(i) The new construction and substantial rehabilitation program under
section 8(b)(2) of the United States Housing Act of 1937 (as in effect
before October 1, 1983);
(ii) The property disposition program under section 8(b) of such Act;
(iii) The project-based certificate program under section 8 of such
Act;
(iv) The moderate rehabilitation program under section 8(e)(2) of such
Act;
(v) Section 23 of such Act (as in effect before January 1, 1975);
(vi) The rent supplement program under section 101 of the Housing and
Urban Development Act of 1965; or
(vii) Section 8 of the United States Housing Act of 1937, following
conversion from assistance under section 101 of the Housing and Urban
Development Act of 1965 (section 22(a) of this guide).
2. Provide tenant-based Section 8 assistance to preexisting tenants of
LMSA-assisted units (section 22(b) of this guide).
Alternatives to Basic Actions
1. Substitution of tenant-based Section 8 assistance to low-income
families instead of project-based assistance to units (section 23(a)
of this guide).
2. Use of the additional assistance and restrictions permitted by the
Statute (section 23(b) of this guide).
All Multifamily Housing Projects....... Additional Actions
1. Discounted sales price (section 25 of this guide).
2. Additional use and rent restrictions (section 26 of this guide).
3. Short-term loans (section 27 of this guide).
4. Up-front grants (section 28 of this guide).
5. Additional tenant-based assistance (section 29 of this guide).
6. Alternative uses (section 30 of this guide).
6. Rebuilding (section 31 of this guide).
7. Emergency assistance funds (section 32 of this guide).
8. Determination not to preserve (section 33 of this guide).
----------------------------------------------------------------------------------------------------------------
[[Page 11699]]
All Multifamily Housing Projects--Required Actions
16. What actions must be taken in the disposition of all
multifamily housing projects?
The requirements regarding tenants who are displaced (section 17 of
this guide), unassisted very low-income tenants (section 18 of this
guide), and nondiscrimination against Section 8 certificate holders and
voucher holders (section 19 of this guide), apply in the disposition of
all multifamily housing projects.
17. What actions must be taken concerning tenants who are displaced
by the disposition of a multifamily housing project?
(a) Scope of section. This section applies to all HUD-owned
multifamily housing projects and all multifamily housing projects
subject to HUD-held mortgages. When HUD is not the mortgagee-in-
possession or owner, this section applies to the owner of the project,
if HUD has authorized the demolition of, repairs to, or conversion of
the use of the multifamily housing project.
(b) Minimizing displacement. Consistent with the other goals and
objectives of the Statute, all reasonable steps shall be taken to
minimize the displacement of persons (families, individuals,
businesses, and nonprofit organizations) from a project covered by this
part. If displacement or temporary relocation will occur in connection
with the disposition of a project, HUD may require the purchaser of the
project to provide assistance in accordance with this section.
(c) Relocation assistance at non-URA levels. Whenever the
displacement of a residential tenant (family or individual) occurs in
connection with the management or disposition of a multifamily housing
project, but is not subject to paragraph (d) of this section (e.g.,
occurs as a direct result of HUD repair or demolition of all or a part
of a HUD-owned multifamily housing project or as a direct result of the
foreclosure of a HUD-held mortgage on a multifamily housing project or
sale of a HUD-owned multifamily housing project without federal
financial assistance), the displaced tenant is to be eligible for the
following relocation assistance:
(1) Advance written notice of the expected displacement. The notice
shall be provided at least 60 days before displacement, describe the
assistance and the procedures for obtaining the assistance, and contain
the name, address and phone number of an official responsible for
providing the assistance;
(2) Other advisory services, as appropriate, including counseling,
referrals to suitable (and where appropriate, accessible), decent,
safe, and sanitary replacement housing, and fair housing-related
advisory services;
(3) Payment for actual reasonable moving expenses, as determined by
HUD;
(4) For displaced eligible families and individuals--
(i) The opportunity to relocate to a suitable (and where
appropriate, accessible), decent, safe, and sanitary dwelling unit in a
HUD-owned multifamily housing project, in a public housing project, or
in another HUD subsidized multifamily housing project,
(ii) Assistance under the Section 8 Certificate program (see 24 CFR
882.209(a)(4)(ii)(B)) or the Housing Voucher program (see 24 CFR
887.155(c)), if the assistance is available; or
(iii) The right to return, whenever possible, to a repaired or
rebuilt unit.
(5) Such other federal, State or local assistance as may be
available.
(d) Relocation assistance at URA levels. (1) General. Whenever
assistance under 24 CFR part 886, subpart C (or other federal financial
assistance, as defined in 49 CFR 24.2(j)) is provided in connection
with the purchase, demolition, or rehabilitation of a multifamily
housing project by a third party, any resulting displacement is subject
to this paragraph. A displaced person (defined in paragraph (d)(3) of
this section) must be provided relocation assistance at the levels
described in, and in accordance with the requirements of, the URA,
implementing regulations at 49 CFR part 24, and this section.
(2) Definition of ``initiation of negotiations''. Under the URA,
for purposes of determining the method for computing the replacement
housing assistance to be provided to a residential tenant displaced as
a direct result of privately undertaken rehabilitation, demolition, or
acquisition of the real property, the term ``initiation of
negotiations'' means the transfer of title to the purchaser.
(3) Definition of displaced person. (i) The term ``displaced
person'' means any person (family, individual, business, or nonprofit
organization) that moves from the real property, or moves personal
property from the real property, permanently, as a direct result of
acquisition, rehabilitation or demolition for a federally assisted
project. This includes, but is not limited to:
(A) A person that moves permanently from the real property after
receiving notice requiring such move, if the move occurs on or after
the date of the transfer of title to the purchaser.
(B) Any person that HUD determines was displaced as a direct result
of acquisition, rehabilitation or demolition for an assisted project.
(C) A tenant-occupant of a dwelling unit who moves from the
building/complex, permanently, after the transfer of title to the
purchaser, if the move occurs before the tenant is provided notice
offering him or her the opportunity to lease and occupy a suitable,
decent, safe, sanitary, and where appropriate, accessible dwelling in
the same building/complex, under reasonable terms and conditions, upon
completion of the project. Such reasonable terms and conditions shall
include a monthly rent, including estimated average monthly utility
costs, that does not exceed the greater of the tenant's monthly rent
before transfer of title to the purchaser and estimated average monthly
utility costs, or that is affordable, as defined in this part.
(D) A tenant-occupant of a dwelling unit who is required to
relocate temporarily for the project, but does not return to the
building/complex, if either the tenant is not offered payment for all
reasonable out-of-pocket expenses incurred in connection with the
temporary relocation, or other conditions of the temporary relocation
are not reasonable.
(E) A tenant-occupant who moves from the building/complex
permanently after he or she has been required to move to another unit
in the same building/complex for the project, if either the tenant is
not offered reimbursement for all reasonable out-of-pocket expenses
incurred in connection with the move, or other conditions of the move
are not reasonable.
(ii) Notwithstanding the provisions of paragraph (d)(3)(i) of this
section, a person does not qualify as a ``displaced person'' if:
(A) The person is excluded under 49 CFR 24.2(g)(2).
(B) The person has been evicted for a serious or repeated violation
of the terms and conditions of the lease or occupancy agreement,
violation of applicable Federal, State, or local law, or other good
cause, and HUD determines that the eviction was not undertaken for the
purpose of evading the obligation to provide relocation assistance.
(C) The person moves into the property after transfer of title to
the purchaser.
(D) HUD determines that the person was not displaced as a direct
result of acquisition, rehabilitation, or demolition for an assisted
project.
[[Page 11700]]
(e) Temporary relocation (URA and non-URA relocation assistance).
Residential tenants, who will not be required to move permanently, but
who must relocate temporarily (e.g., to permit property repairs), shall
be provided:
(1) Reimbursement for all reasonable out-of-pocket expenses
incurred in connection with the temporary relocation, including the
cost of moving to and from the temporary housing and any increase in
monthly rent or utility costs. The party responsible for this
requirement may, at its option, perform the services involved in
temporarily relocating the tenants or pay for such services directly;
and
(2) Appropriate advisory services, including reasonable advance
written notice of the date and approximate duration of the temporary
relocation; the suitable (and where appropriate, accessible), decent,
safe, and sanitary housing to be made available for the temporary
period; the terms and conditions under which the tenant may lease and
occupy a suitable, decent, safe, and sanitary dwelling in the building/
complex following completion of the repairs; and the right to financial
assistance provided under paragraph (e)(1) of this section.
(f) Appeals. If a person disagrees with the purchaser's
determination concerning the person's eligibility for relocation
assistance or the amount of the assistance for which the person is
eligible, the person may file a written appeal of that determination
with the owner or purchaser. A person who is dissatisfied with the
purchaser's determination on his or her appeal may submit a written
request for review of that decision to the HUD Field Office responsible
for administering the URA in the area.
18. What actions must be taken concerning very low-income tenants
in the disposition of a multifamily housing project?
HUD will require that for a period of 2 years, beginning upon the
date of disposition of a multifamily housing project, the rent for any
unit occupied by a very low-income family, that is a preexisting tenant
and that would be required to pay a rent that is more than 30 percent
of the adjusted income (as defined in part 813) of the family, may not
be increased above the rent charged immediately before the acquisition.
Such a family will also be considered displaced for purposes of the
preferences for assistance under sections 6(c)(4)(A)(i), 8(d)(1)(A)(i),
and 8(o)(3)(B) of the United States Housing Act of 1937.
19. What restrictions concerning nondiscrimination against Section
8 certificate holders and voucher holders apply in the disposition of a
multifamily housing project?
The purchaser of any multifamily housing project shall not refuse
unreasonably to lease a dwelling unit offered for rent, offer to sell
cooperative stock, or otherwise discriminate in the terms of tenancy or
cooperative purchase and sale because any tenant or purchaser is the
holder of a Certificate of Family Participation or a Voucher under
Section 8 of the United States Housing Act of 1937 (42 U.S.C. 1437f),
or any successor legislation. This provision is limited in its
application, for tenants or applicants with Section 8 Certificates or
their equivalent (other than Vouchers), to those units which rent for
an amount not greater than the Section 8 Fair Market Rent, as
determined by HUD. The purchaser's agreement to this condition must be
contained in any contract of sale and also may be contained in any
regulatory agreement, use agreement, or deed entered into in connection
with the disposition.
Subsidized Projects--Basic and Alternative Actions to Facilitate
Disposition
20. What are the basic actions that may be taken in the disposition
of a subsidized project?
The basic assistance that HUD will provide and the basic
restrictions HUD will require in the disposition of a subsidized
project depend upon the profile of the project's units and tenants, as
follows:
(a) Assisted units--provision of project-based Section 8
assistance. Except as noted in section 21 of this guide, and to the
extent budget authority is available, HUD will provide project-based
Section 8 assistance to assist at least all of a subsidized project's
units that were covered, before acquisition or foreclosure, by the rent
subsidies (Rent Supp, RAP, Sec. 23, project-based Section 8) included
in the definition of a subsidized project.
(b) Assisted units--tenant eligibility restrictions. The contract
for project-based Section 8 assistance in accordance with paragraph
(a), above, will provide that when a vacancy occurs in any unit that
requires such assistance, but which was occupied by a family ineligible
for such assistance, the owner will lease the available unit to a
family that is eligible for the assistance.
(c) Unassisted units--use and rent restrictions. HUD will require
use or rent restrictions on BMIR, 236, or 202 subsidized projects to
ensure that units that were not covered before acquisition or
foreclosure by Rent Supp, RAP, Sec. 23, or project-based Section 8 rent
subsidies remain available and affordable for the remaining useful life
of the project.
21. What alternatives to the basic actions are available in the
disposition of subsidized projects?
In the disposition of a subsidized project, HUD may take the
following alternative actions instead of the basic actions listed in
section 20 of this guide:
(a) Unit substitution: assistance to, or restrictions on, units in
unsubsidized projects instead of assistance to units in subsidized
projects. Instead of providing project-based Section 8 assistance as
described in section 20(a) of this guide, HUD may, in unsubsidized
projects located in the same market area, provide project-based Section
8 assistance to units to be occupied by very low-income persons, or
impose use and rent restrictions to assure that units remain available
to and affordable by very low-income families for the remaining useful
life of the project. When this unit substitution procedure is used, the
total number of unsubsidized project units provided with assistance
and/or placed under use and rent restrictions must be at least equal to
the number of subsidized project units that would have received
project-based Section 8 in the absence of unit substitution. In
addition, HUD will make tenant-based Section 8 assistance available to
low-income families residing in the subsidized project's units that
would have received project-based Section 8 assistance if this unit
substitution alternative had not been used.
(b) Substitution of tenant-based Section 8 assistance to low-income
families instead of project-based assistance to units. Instead of
providing project-based Section 8 assistance as described in section
20(a) of this guide, HUD may enter into annual contribution contracts
with public housing agencies to provide tenant-based Section 8
assistance to all low-income families who reside, on the date that the
project is acquired by a purchaser other than HUD, in units that would
have been eligible for the project-based Section 8 assistance as
described in section 20 of this guide. Tenant-based Section 8
assistance may be used in this way as a substitute for project-based
Section 8 assistance in not more than 10 percent of the aggregate
number of subsidized project units disposed of by HUD in any fiscal
year, and only if HUD determines that there is available in the market
area in which the project is located an adequate supply of habitable,
affordable
[[Page 11701]]
housing for very low-income families and other low-income families
using tenant-based assistance. The number of units eligible for this
form of substitution within the 10 percent limit will be estimated at
the beginning of each fiscal year, taking into consideration the
aggregate number of subsidized project units disposed of by HUD in the
immediately preceding fiscal year and the disposition activity planned
for the current fiscal year.
(c) Additional actions. Instead of, or in addition to, providing
project-based Section 8 assistance in the disposition of a subsidized
project as described in section 20(a) of this guide, HUD may make use
of the additional actions to facilitate the disposition of multifamily
housing projects as described in sections 24 through 33 of this guide.
Unsubsidized Projects--Basic and Alternative Actions to Facilitate
Disposition
22. What are the basic actions that may be taken in the disposition
of an unsubsidized project?
The basic assistance that HUD will provide and the basic
restrictions HUD will require in the disposition of an unsubsidized
project depend upon the profile of the project's units and tenants, as
follows:
(a) Assisted units--provision of project-based Section 8
assistance. Except as noted in section 23 of this guide, and to the
extent budget authority is available, HUD will provide project-based
Section 8 assistance for all of an unsubsidized project's units that
were covered, before acquisition or foreclosure, by an assistance
contract under:
(1) The new construction and substantial rehabilitation program
under section 8(b)(2) of the United States Housing Act of 1937 (the
1937 Act) (as in effect before October 1, 1983);
(2) The property disposition program under section 8(b) of the 1937
Act;
(3) The project-based certificate program under section 8 of the
1937 Act;
(4) The moderate rehabilitation program under section 8(e)(2) of
the 1937 Act;
(5) Section 23 of the 1937 Act (as in effect before January 1,
1975);
(6) The rent supplement program under section 101 of the Housing
and Urban Development Act of 1965; or
(7) Section 8 of the 1937 Act, following conversion from assistance
under section 101 of the Housing and Urban Development Act of 1965.
(b) LMSA-assisted units--provision of tenant-based section 8
assistance. HUD will provide tenant-based Section 8 assistance for
families that are preexisting tenants of unsubsidized projects in units
that, immediately before foreclosure or acquisition of the project by
HUD, were covered by an assistance contract under the loan management
set-aside program under section 8(b) of the United States Housing Act
of 1937.
23. What alternatives to the basic actions are available in the
disposition of unsubsidized projects?
In disposing of an unsubsidized project, HUD may take the following
alternative actions instead of the basic actions listed in section 22
of this guide:
(a) Substitution of tenant-based Section 8 assistance to low-income
families instead of project-based assistance to units. Instead of
providing project-based Section 8 assistance as described in section 22
of this guide, HUD may enter into annual contribution contracts with
public housing agencies to provide tenant-based Section 8 assistance to
all low-income families who reside, on the date that the project is
acquired by a purchaser other than HUD, in units eligible for the
project-based Section 8 assistance as described in section 22 of this
guide. Tenant-based Section 8 assistance may be used in this way as a
substitute for project-based Section 8 assistance only if HUD
determines that there is available in the market area in which the
project is located an adequate supply of habitable, affordable housing
for very low-income families and other low-income families using
tenant-based assistance.
(b) Additional actions. Instead of, or in addition to, providing
project-based Section 8 assistance in the disposition of an
unsubsidized project as described in section 22 of this guide, HUD may
make use of the additional assistance and restrictions for the
disposition of multifamily housing projects as described in sections 24
through 33 of this guide.
All Multifamily Housing Projects--Additional Actions to Facilitate
Disposition
24. What guidelines will HUD apply in determining which additional
actions to take in the disposition of a multifamily housing project?
The additional actions to facilitate disposition available under
this subpart are intended to replace, supplement or make more cost
effective the Section 8 assistance that would otherwise be required,
and are to be provided in a manner consistent with the goals and
purposes stated in section 2 of this guide and, unless otherwise noted:
(a) On terms that will ensure that at least the units in the
project otherwise required to receive project-based Section 8
assistance as described in section 20(a) of this guide (for a
subsidized project) and in section 22(a) of this guide (for an
unsubsidized project) are available to and affordable by low-income
persons for the remaining useful life of the project, with use or rent
restrictions as HUD may prescribe; and
(b) With tenant-based Section 8 assistance to any very low-income
families who would have received project-based assistance under Section
8 as described in section 20(a) of this guide (for a subsidized
project) and in section 22(a) of this guide (for an unsubsidized
project), but because of action taken as described in sections 24
through 33 of this guide, did not receive such assistance, and are left
residing in units of the project with rents that exceed the amount
payable as rent under section 3(a) of the United States Housing Act of
1937 for very low-income families.
25. May HUD reduce the sales price for a project?
HUD may reduce the selling price of a project. The sales price for
a project will be reasonably related to the intended use of the
property as affordable housing for very low-income tenants after sale,
any rehabilitation requirements for the project, the rents for units in
the project that can be supported by the market, the amount of project-
based Section 8 assistance being made available by HUD in the
disposition of the project, the occupancy profile of the project
(including family size and income levels for tenant families), and any
other factors that the Department considers appropriate.
26. May HUD require additional use and rent restrictions?
HUD may require units in a project to be subject to use or rent
restrictions to provide that the units will be available to and
affordable by low- and very low-income persons for the remaining useful
life of the project.
27. May HUD provide short-term loans to facilitate the sale of a
project? HUD may provide short-term loans to facilitate the sale of a
multifamily housing project if:
(a) Authority for such loans is provided in advance in an
appropriation Act;
(b) The loan has a term of not more than 5 years;
(c) HUD determines, based upon documentation provided by the
purchaser, that the purchaser has obtained a commitment of permanent
financing to replace the short-term loan
[[Page 11702]]
from a lender who meets standards established by the Department; and
(d) The terms of the loan are consistent with prevailing practices
in the marketplace or the provision of the loan results in no cost to
the Government, as defined in section 502 of the Congressional Budget
Act of 1974.
28. Under what conditions may HUD provide up-front grants?
HUD may utilize the budget authority provided for contracts issued
under this part for project-based Section 8 assistance to (in addition
to providing project-based Section 8 rental assistance) provide up-
front grants for the necessary cost of rehabilitation and other HUD-
approved related development costs to reduce the level of Section 8
contract rents if HUD determines that action under this section is more
cost-effective than providing project-based Section 8 assistance as
described in section 20(a) of this guide (for a subsidized project) and
in section 22(a) of this guide (for an unsubsidized project).
29. What additional tenant-based assistance may HUD offer?
To facilitate the sale of a multifamily housing project, HUD may
make tenant-based Section 8 assistance available to families residing
in a multifamily housing project who are eligible to receive tenant-
based assistance but who do not qualify for project-based assistance.
30. How may HUD provide for alternative uses of units in the
disposition of a multifamily housing project?
(a) In general. Notwithstanding any other provision of law, after
providing notice to and an opportunity for comment by preexisting
tenants, HUD may allow up to:
(1) 10 percent of the total number of rental housing units in
multifamily housing projects that are disposed of by the Department
during any fiscal year to be made available for uses other than rental
or cooperative uses, such as, low-income homeownership opportunities,
or in any particular project, community space, office space for tenant
or housing-related service providers or security programs, or small
business uses, if such uses benefit the tenants of the project; and
(2) 5 percent of the total number of rental housing units in
multifamily housing projects that are disposed of by the Department
during any fiscal year to be used in any manner, if HUD and the unit of
general local government or area-wide governing body determine that
such use will further fair housing, community development, or
neighborhood revitalization goals.
(b) Computation of number of eligible units. The number of units
eligible for alternate uses in any fiscal year will be determined at
the beginning of the fiscal year as the applicable percentages in
paragraphs (a)(1) or (2) of this section (i.e., either 10 percent or 5
percent) of the estimated total number of units to be disposed of in
the fiscal year, taking into consideration the total number of units in
multifamily housing projects disposed of by the Department in the
immediately preceding fiscal year, and the extent of the disposition
activity planned in the current fiscal year.
(c) Displacement protection. HUD may take actions under paragraph
(a) of this section only if:
(1) Tenant-based Section 8 assistance is made available to each
family eligible for such assistance residing in the project that is
displaced as a result of such actions; and
(2) HUD determines that sufficient habitable, affordable rental
housing is available in the market area in which the project is located
to ensure use of such assistance.
31. What disposition assistance may be available to rebuild a
multifamily housing project?
(a) Notwithstanding any provision of section 8 of the United States
Housing Act of 1937, HUD may provide project-based assistance as
described in section 20(a) of this guide (for a subsidized project) and
in section 22(a) of this guide (for an unsubsidized project) to support
the rebuilding of a HUD-owned multifamily housing project rebuilt or to
be rebuilt (in whole or in part and on-site, off-site, or in a
combination of both) in connection with a disposition under this part,
if HUD determines all of the following:
(1) The project is not being maintained in a decent, safe, and
sanitary condition;
(2) The costs to HUD for rebuilding are such that the monthly debt
service needed to amortize the cost of relocating tenants, demolition,
site preparation, rebuilding, operating expenses, and a reasonable
return to the purchaser cannot be provided with rents that are within
120 percent of the most recently published Section 8 Fair Market Rents
for Existing Housing (24 CFR part 888, subpart A), and would be less
expensive than rehabilitation;
(3) The unit of general local government in which the project is
located approves the rebuilding and makes a financial contribution or
other commitment to the project determined by HUD to be satisfactory;
(4) The rebuilding is a part of a local neighborhood revitalization
plan approved by the unit of general local government.
(b) The provisions described in section 17 of this guide apply to
any tenants of the project who are displaced through an action taken
under paragraph (a) of this section.
32. What emergency assistance funds may be provided to tenants?
HUD may make arrangements with State agencies and units of general
local government of States receiving emergency assistance under part A
of title IV of the Social Security Act for the provision of assistance
under that Act on behalf of eligible families who would reside in any
multifamily housing projects.
33. Under what circumstances may HUD make a determination not to
preserve a project or a part of a project?
HUD may determine to demolish, or otherwise dispose of, a HUD-owned
multifamily housing project, or any portion of such a project, or to
foreclose a HUD-held mortgage on a multifamily housing project, without
ensuring its continued availability as affordable rental or cooperative
housing for low- and very low-income families under appropriate
circumstances which may include one or more of those listed in
paragraphs (a) through (g) of this section, below. If HUD decides not
to preserve an occupied multifamily housing project at a foreclosure
sale or sale of a HUD-owned project, tenants must be provided
relocation assistance as described in section 17 of this guide.
(a) The costs to HUD of rehabilitation are such that the monthly
debt service needed to amortize the cost of rehabilitation, operating
expenses, and a reasonable return to the purchaser cannot be provided
with rents that are, for subsidized and formerly subsidized projects,
within 120 percent of the most recently published Section 8 Fair Market
Rents for Existing Housing (24 CFR part 888, subpart A) or, for
unsubsidized and formerly unsubsidized projects, within rents
obtainable in the market.
(b) Construction is substantially incomplete.
(c) Preservation is not feasible because of environmental factors
that cannot be mitigated by HUD or the purchaser. For example, when the
project is located on a site that cannot be made to comply with the
Section 8 Site and Neighborhood standards in 24 CFR 886.307(k) because
of factors that adversely affect the health, safety and general welfare
of residents such as air pollution; smoke; mud slides; fire or
explosion hazards. Preservation may also be infeasible because of
significantly deteriorated surrounding
[[Page 11703]]
neighborhood conditions with inadequate police or fire protection; high
crime rates; drug infestation; or lack of public community services
needed to support a safe and healthy living environment for residents.
(d) HUD determines the project is unfit for rehabilitation.
(e) Rehabilitation would cost more than constructing comparable new
housing.
(f) A reduction in the number of units in the project will enhance
long-term project viability, for example, demolition of a building to
provide space for a playground, open space, or combining one-bedroom
units to create larger units for families.
(g) Continued preservation of the project as rental or cooperative
housing is not compatible with State or local land use plans for the
area in which the project is located.
[FR Doc. 96-6791 Filed 3-20-96; 8:45 am]
BILLING CODE 4210-27-P
Complete official Federal Register PDF
FR Doc. 96-6781 Approval and Promulgation of Air Quality Implementation Plans; Massachusetts; Emission Statements
[Federal Register Volume 61, Number 56 (Thursday, March 21, 1996)]
[Rules and Regulations]
[Pages 11556-11560]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6781]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[MA-19-1-6648a; A-1-FRL-5436-3]
Approval and Promulgation of Air Quality Implementation Plans;
Massachusetts; Emission Statements
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: EPA is approving Massachusetts' revised 310 CMR 7.12,
``Inspection Certificate, Record Keeping and Reporting'' and
incorporating it into Massachusetts' SIP. EPA received revisions to the
Massachusetts SIP revising 310 CMR 7.12 on three separate occasions
however, EPA is addressing all three submissions in this action. These
revisions to 310 CMR 7.12 streamline and clarify the permitting process
and address the Clean Air Act's emission statement program requirement.
This action is being taken in accordance with the Clean Air Act.
DATES: This action is effective May 20, 1996, unless, notice is
received by April 22, 1996, that adverse or critical comments will be
submitted. If the effective date is delayed, timely notice will be
published in the Federal Register.
ADDRESSES: Comments may be mailed to Susan Studlien, Acting Director,
Air, Pesticides and Toxics Management Division, U.S. Environmental
Protection Agency, Region I, JFK Federal Building, Boston, MA 02203.
Copies of the documents relevant to this action are available for
public inspection during normal business hours, by appointment
[[Page 11557]]
at the Air, Pesticides and Toxics Management Division, U.S.
Environmental Protection Agency, Region I, One Congress Street, 10th
floor, Boston, MA and the Division of Air Quality Control, Department
of Environmental Protection, One Winter Street, Boston, MA.
FOR FURTHER INFORMATION CONTACT: David Conroy, (617) 565-3254.
SUPPLEMENTARY INFORMATION:
I. Background
The air quality planning and State Implementation Plan (SIP)
requirements for ozone nonattainment and transport area are set out in
subparts I and II of part D of Title I of the Clean Air Act, as amended
by the Clean Air Act Amendments of 1990 (CAA or ``the Act''). EPA has
published a ``General Preamble'' describing EPA's preliminary views on
how EPA intends to review SIP's and SIP revisions submitted under Title
I of the CAA, including those State submittals for ozone transport
areas within the States {see 57 FR 13498 (April 16, 1992) [``SIP:
General Preamble for the Implementation of Title I of the Clean Air Act
Amendments of 1990''], 57 FR 18070 (April 28, 1992) [``Appendices to
the General Preamble''], and 57 FR 55620 (November 25, 1992) [``SIP:
NOX Supplement to the General Preamble'']}.
EPA has also issued a draft guidance document describing the
requirements for the emission statement programs discussed in this
Notice, entitled ``Guidance on the Implementation of an Emission
Statement Program'' (July, 1992). The Agency is also conducting a
rulemaking process to modify part 40 of the CFR to reflect the
requirements of the emission statement program.
Section 182 of the Act sets out a graduated control program for
ozone nonattainment areas. Section 182(a) sets out requirements
applicable in marginal nonattainment areas, which are also made
applicable in subsections (b), (c), (d), and (e) to all other ozone
nonattainment areas. Among the requirements in section 182(a) is a
program in paragraph (3)(B) of that subsection for stationary sources
to prepare and submit to the State each year emission statements
showing actual emissions of volatile organic compounds (VOC) and
nitrogen oxides (NOX). This paragraph provides that the States are
to submit a revision to their State Implementation Plans (SIPs) by
November 15, 1992 establishing their emission statement program.
Section 184(b)(2) of the Act extends the requirements for major
stationary sources in moderate ozone nonattainment areas to sources in
the ozone transport region which emit, or have the potential to emit,
50 tpy or more of VOC. Section 182(f) extends the requirements for
major stationary sources of VOC in ozone transport regions to major
sources of NOX. For areas designated as attainment or
nonattainment areas which are not classified, Section 182(f) refers to
Section 302 where the major source definition for NOX is the
potential to emit 100 tons per year. Therefore, the emission statement
requirement encompasses all stationary sources in all classified
nonattainment areas, as well as sources in attainment areas and
unclassified nonattainment areas within ozone transport regions, which
emit or have the potential to emit 100 tpy or more of NOX or 50
tpy or more of VOC.
Massachusetts is located in the ozone transport region and is a
classified ozone nonattainment area. Therefore, Massachusetts is
subject to the more stringent source threshold requirement of
182(a)(3)(B). Massachusetts' source thresholds of the emission
statement regulation must cover all sources which emit VOC or NOX.
For classified ozone nonattainment areas, the States may waive,
with EPA approval, the requirement for an emission statement for
classes or categories of sources with less than 25 tons per year of
actual plant-wide NOX or VOC emissions in nonattainment areas if
the class or category is included in the base year and periodic
inventories and emissions are calculated using emission factors
established by EPA (such as those found in EPA publication AP-42) or
other methods acceptable to EPA. Massachusetts has provided a 1990
baseyear inventory which includes emissions from sources that emit
below 25 tpy of VOC or NOX emissions and will be updating this
inventory every three years until the area is redesignated to
attainment. In addition, the methods and emission factors used by
Massachusetts to calculate emissions for the 1990 baseyear inventories
have been reviewed by EPA. As a result, EPA finds the 25 tpy threshold
acceptable.
Additionally, if either VOC or NOX is emitted at or above the
statutory reporting level, the other pollutant must be included in the
emission statement, even if it is emitted at levels below the specified
cutoffs.
The CAA requires that States' rules specify that facilities must
submit the first emission statement to the State within three years
after November 15, 1990, and annually thereafter. EPA requests that the
States submit the emission data to EPA through the Aerometric
Information Retrieval System (AIRS). The minimum emission statement
data should include: certification of data accuracy; source
identification information; operating schedule; emissions information
(including annual and typical ozone season day emissions); control
equipment information; and process data. EPA developed emission
statements data elements to be consistent with other source and State
reporting requirements. This consistency is essential to assist States
with quality assurance for emission estimates and to facilitate
consolidation of all EPA reporting requirements.
II. Analysis of State Submission
A. Procedural Background
The Act requires States to observe certain procedural requirements
in developing its SIP, of which the emission statement program will
become a part. Section 110(l)(2) of the Act provides that each revision
to an implementation plan submitted by a State under the CAA must be
adopted by such State after reasonable notice and public hearing. EPA
must at the outset determine whether a submittal is complete and
therefore warrants further EPA review and action (see Section 110(k)(1)
and 57 FR 13565). EPA's completeness criteria for SIP submittals are
set out at 40 CFR Part 51, Appendix V (1991), as amended by 57 FR 42216
(August 26, 1991).
On July 15, 1994, EPA received the SIP submittal of amendments to
310 CMR 7.12 addressing emission statement requirements. The amendments
were adopted by Massachusetts on June 29, 1994 and became effective on
July 1, 1994. Hearings were held on May 6, 10, 11, and 13, 1994. EPA
deemed the submittal complete on July 15, 1994 and the sanctions clocks
were stopped. However, the February 21, 1993 finding also triggered the
Federal Implementation Plan (FIP) clock. EPA has remained obligated to
promulgate a FIP clock until this final rulemaking action is taken.
Therefore, the FIP clock is stopped on the effective date of this final
rulemaking action approving Massachusetts' emission statement program.
B. Components of the Emission Statement Program
There are several key general and specific components of an
acceptable emission statement program. Specifically, the State must
submit a revision to its SIP and the emission statement program must
meet the
[[Page 11558]]
minimum requirements for reporting by the sources and the State. In
general, the program must include, at a minimum, provisions for
applicability, definitions, compliance, and specific source
requirements detailed below.
1. SIP Revision Submission
EPA requires States to submit their SIP revision within 2 years of
enactment of the Clean Air Act Amendments of 1990 (CAAA) (November 15,
1990).
Massachusetts was notified in a letter dated January 15, 1993, that
if the emission statement submittal was not received by February 21,
1993, a finding of failure to submit will automatically be made. Since
Massachusetts did not submit the SIP revision until July 15, 1994,
findings were made. EPA reviewed the submittal and deemed it complete
on July 15, 1994. Therefore, the sanctions clock was stopped. However,
the February 21, 1993 finding also triggered the Federal Implementation
Plan (FIP) clock. EPA has remained obligated to promulgate a FIP until
this final rulemaking action is taken. Therefore, the FIP clock is
stopped on the effective date of this final rulemaking action approving
the emission statement program.
2. Reporting Requirements for State
In addition to the program elements applying to sources, the SIP
should include a provision that States provide to EPA the identifying
information for the sources covered by the emission statement program,
the value for rule effectiveness utilized by the State in its SIP
calculations, the source data elements entered into AIRS, and quarterly
emission statement status reports. The minimum source identification
information should include the AIRS code, the AFS point number (ID),
the AFS segment number (ID), and the Source Category Code (SCC) and
descriptions for each segment.
In addition, States should supply to EPA the current rule
effectiveness (RE) factors at the SCC pollutant level, if applicable,
and the RE method codes. The emission statement data submittal to AIRS
should include all data obtained from the source and the State. These
source-supplied data elements include source identification information
(name, physical location, mailing address of the facility, latitude and
longitude, and 4-digit Standard Industrial Classification (SIC)
code(s)), operating schedule information (percentage annual throughput,
days per week on the normal operating schedule, hours per day during
the normal operating schedule, and hours per year on the normal
operating schedule), process rate data (annual process rate (annual
throughput) and peak ozone season daily process rate), control
equipment information (current primary and secondary control equipment
identification codes and current combined control equipment efficiency
(%)), and emissions information (estimated actual VOC and NOX
emissions at the segment level (in tons per year for an annual emission
rate and pounds per day for a typical ozone season day), estimated
emissions method code, calendar year for the emissions, and emission
factor (if used)). EPA recommends that the States electronically submit
emission statement data into the AIRS database no later than July 1 of
each year, commencing in 1993. The quarterly reports should show the
total number of facilities that met the State's emission statements
program requirements and the number of facilities that failed to meet
the requirements. Quarterly reports should be submitted commencing no
later than July 1, 1993.
The July 15, 1994 submittal did not fully meet the data element
requirement for an approvable emission statement program. EPA notified
Massachusetts with a list of data elements that Massachusetts needed to
add to the source registration forms for EPA to approve its emission
statement program. Massachusetts assured EPA in a letter, dated
December 30, 1994, that the data elements were being incorporated into
the source registration forms. Massachusetts' source registration forms
do require all the EPA required data elements. The uploading of
emission statement information to AIRS, by July 1 of each year, is a
grant condition that EPA has negotiated with Massachusetts.
3. Sources Covered
Section 182(a)(3)(B) requires that States with areas designated as
nonattainment for ozone require emission statement data from sources of
VOC or NOX in the nonattainment areas. This requirement applies to
all classified ozone nonattainment areas, regardless of the
classification (Marginal, Moderate, etc.). Section 184(b)(2) of the Act
extends the requirements for major stationary sources in moderate ozone
nonattainment areas to sources in the ozone transport region. Section
182(f) extends the requirements for major stationary sources of VOC in
ozone transport regions to major sources of NOX. Therefore, the
emission statement requirement encompasses all stationary sources in
all classified nonattainment areas, as well as sources in attainment
areas and unclassified nonattainment areas within ozone transport
regions, which emit or have the potential to emit 100 tpy or more of
NOX or 50 tpy or more of VOC.
The States may waive, with EPA approval, the requirement for
emission statements for classes or categories of sources with less than
25 tons per year of actual plant-wide NOX or VOC emissions in
nonattainment areas if the class or category is included in the base
year and periodic inventories. Massachusetts emission statement
regulations have exempted sources with VOC and NOX emissions below
25 tpy from emission statement requirements. Massachusetts has provided
1990 baseyear inventories which include emissions from sources that
emit 25 tpy of VOC or NOX and will be updating these inventories
every three years until the area is redesignated to attainment. In
addition, the methods and emission factors used by Massachusetts to
calculate emissions for the 1990 baseyear inventory have been reviewed
by EPA. As a result, EPA finds the 25 tpy threshold acceptable.
The entire state of Massachusetts is designated as nonattainment
for ozone and is located within the boundaries of the ozone transport
region. 310 CMR 7.12(1)(b) states that information required by 310 CMR
7.12(1)(a) shall be submitted annually for any facility having actual
emissions greater than or equal to:
(1) Volatile organic compounds, 25 tpy
(2) Nitrogen oxides, 25 tpy
(3) Any other pollutant regulated under the Act, 100 tpy and once
every three years for all other facilities.
4. Reporting Requirements for Sources
Sources covered by the State emission statement program will
submit, at a minimum, the data elements described under section II.B.2
of this notice.
The emission statement submitted by the source will contain a
certification that the information is accurate to the best knowledge of
the individual certifying the statement. EPA recommends that the State
program require the submission of the data from the sources no later
than April 15 of each year.
Massachusetts sends a cover letter accompanying the emission
statement forms to the facilities. The cover letter, included in the
SIP submittal, requires that the forms be completed using data
pertaining to the facility's operations during calendar year 1993 and
returned to DEP no later than June 1, 1994. EPA is approving this
submittal date since the Emission Statement Workgroup is
[[Page 11559]]
proposing to require States to submit emission statement data to AIRS
by November 15 rather than July 1. Massachusetts will have sufficient
time to submit data to AIRS by November 15 if sources submit emission
statements by June 1.
5. Reporting Forms
Although EPA has developed a proposed format for the emission
statement reporting process in its guidance document, the Act allows
States to develop their own format for emission statement reporting.
Massachusetts provides the sources with Source Registration/
Emission Statement forms. On December 30, 1994, Massachusetts sent a
letter notifying EPA that the current Source Registration/Emission
Statement forms are being modified in format to provide to industry a
summary of the data in the DEP SSEIS (and EPA AIRS) system as a basis
for update and certification of emissions. In addition, the letter
included data elements that had been added or are in the process of
being added to the forms.
III. Final Action
EPA is approving Massachusetts' revised 310 CMR 7.12, ``Inspection
Certificate, Record Keeping and Reporting'' and incorporating it into
Massachusetts' SIP. EPA is publishing this action without prior
proposal because the Agency views this as a noncontroversial amendment
and anticipates no adverse comments. However, in a separate document in
this Federal Register publication, EPA is proposing to approve the SIP
revision should adverse or critical comments be filed. This action will
be effective May 20, 1996, unless adverse or critical comments are
received by April 22, 1996.
If the EPA receives such comments, this action will be withdrawn
before the effective date by simultaneously publishing a subsequent
notice that will withdraw the final action. All public comments
received will then be addressed in a subsequent final rule based on
this action serving as a proposed rule. The EPA will not institute a
second comment period on this action. Any parties interested in
commenting on this action should do so at this time. If no such
comments are received, the public is advised that this action will be
effective on May 20, 1996.
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et. seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. 5 U.S.C. Secs. 603 and
604. Alternatively, EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000.
Under Sections 202, 203, and 205 of the Unfunded Mandates Reform
Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22,
1995, EPA must undertake various actions in association with proposed
or final rules that include a Federal mandate that may result in
estimated costs of $100 million or more to the private sector, or to
State, local, or tribal governments in the aggregate.
Through submission of this state implementation plan or plan
revision, the State and any affected local or tribal governments have
elected to adopt the program provided for under Section 182(a)(3)(B) of
the Clean Air Act. These rules may bind State, local and tribal
governments to perform certain actions and also require the private
sector to perform certain duties. To the extent that the rules being
approved by this action will impose no new requirements; such sources
are already subject to these regulations under State law. Accordingly,
no additional costs to State, local, or tribal governments, or to the
private sector, result from this action. EPA has also determined that
this final action does not include a mandate that may result in
estimated costs of $100 million or more to State, local, or tribal
governments in the aggregate or to the private sector.
This action has been classified as a Table 3 action for signature
by the Regional Administrator under the procedures published in the
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a
July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for
Air and Radiation. The Office of Management and Budget (OMB) has
exempted this regulatory action from review under Executive Order
12866.
SIP approvals under section 110 and subchapter I, part D of the
Clean Air Act do not create any new requirements, but simply approve
requirements that the State is already imposing. Therefore, because the
Federal SIP-approval does not impose any new requirements, I certify
that it does not have a significant impact on small entities. Moreover,
due to the nature of the federal-state relationship under the CAA,
preparation of a regulatory flexibility analysis would constitute
federal inquiry into the economic reasonableness of state action. The
CAA forbids EPA to base its actions concerning SIPs on such grounds.
Union Electric Co. v. U.S. E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976);
42 U.S.C. 7410 (a)(2).
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any State Implementation Plan. Each request for revision to
the State Implementation Plan shall be considered separately in light
of specific technical, economic, and environmental factors and in
relation to relevant statutory and regulatory requirements.
Under Section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by May 20, 1996. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements. (See Section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Air pollution control, Hydrocarbons, Incorporation by reference,
Intergovernmental relations, Nitrogen dioxide, Oxides of nitrogen,
Reporting and recordkeeping requirements, Volatile organic compounds.
Notes: Incorporation by reference of the State Implementation
Plan for the State of Massachusetts was approved by the Director of
the Federal Register on July 1, 1982.
Dated: September 18, 1995.
John P. DeVillars,
Regional Administrator, Region I.
Part 52 of chapter I, title 40 of the Code of Federal Regulations
is amended as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart W--Massachusetts
2. Section 52.1120 is amended by adding paragraph (c)(106) to read
as follows:
Sec. 52.1120 Identification of plan.
* * * * *
(c) * * *
(106) Revisions to the State Implementation Plan submitted by the
Massachusetts Department of Environmental Protection on June 28, 1990,
September 30, 1992, and July 15, 1994.
[[Page 11560]]
(i) Incorporation by reference.
(A) Letter from the Massachusetts Department of Environmental
Protection, dated June 28, 1990, submitting a revision to the
Massachusetts State Implementation Plan.
(B) Letter from the Massachusetts Department of Environmental
Protection, dated September 30, 1992, submitting a revision to the
Massachusetts State Implementation Plan.
(C) Letter from the Massachusetts Department of Environmental
Protection, dated July 15, 1994, submitting a revision to the
Massachusetts State Implementation Plan.
(D) Regulation 310 CMR 7.12 entitled ``Inspection Certification
Record Keeping and Reporting'' which became effective on July 1, 1994.
(ii) Additional materials.
(A) Nonregulatory portions of submittal.
(B) Letter from the Massachusetts Department of Environmental
Protection, dated December 30, 1994, assuring EPA that the data
elements noted in EPA's December 13, 1994 letter were being
incorporated into the source registration forms used by Massachusetts
emission statement program.
(ii) Additional materials.
(A) Nonregulatory portions of submittal.
* * * * *
3. In Sec. 52.1167 Table 52.1167 is amended by adding new state
citations for entry 310 CMR 7.12 to read as follows:
Sec. 52.1167 EPA--approved Massachusetts State regulations
* * * * *
Table 52.1167--EPA--Approved Massachusetts Regulations
--------------------------------------------------------------------------------------------------------------------------------------------------------
Date Comments/
State citation Title/subject submitted Date approved by EPA Federal Register citation 52.1120(c) unapproved
by State sections
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
310 CMR 7.12............ Inspection Certificate 6/28/90; 9/ March 21, 1996............. 61 FR 1559............... 106 The 6/28/90 and 9/
Record Keeping and 30/92; 7/ 30/92 submittals
Reporting. 15/94 deal with the
permitting
process. The 7/15/
94 submittal
develops 7.12 to
comply with
emission
statement
requirements.
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
[FR Doc. 96-6781 Filed 3-20-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-6778 Approval and Promulgation of Implementation Plans and Designation of Areas for Air Quality Planning Purposes; Ohio
[Federal Register Volume 61, Number 56 (Thursday, March 21, 1996)]
[Rules and Regulations]
[Pages 11560-11564]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6778]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[OH78-2-7116; FRL-5440-4]
Approval and Promulgation of Implementation Plans and Designation
of Areas for Air Quality Planning Purposes; Ohio
AGENCY: Environmental Protection Agency (USEPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The USEPA is approving the Ohio Environmental Protection
Agency's (OEPA) request for redesignation of Clinton County, Ohio from
transitional ozone nonattainment to attainment. The USEPA is also
approving the maintenance plan and emissions inventory for Clinton
County as a revision to Ohio's State Implementation Plan (SIP) for
ozone. Clinton County's monitoring data shows that it is already
meeting the ozone air quality standard. In addition, in order to meet
USEPA redesignation requirements the State must continue to maintain
the ozone National Ambient Air Quality Standards for at least ten years
after the redesignation, or the year 2006. Thus, the State has
developed a maintenance plan which includes specific contingency
measures to assure continued compliance with the ozone air quality
standard. Any monitored violation in Clinton County will trigger these
contingency measures to reduce ozone levels. In addition, an ambient
air monitor will remain in operation to verify future attainment status
of the area.
EFFECTIVE DATE: This final rule is effective on March 21, 1996.
ADDRESSES: Copies of the redesignation request, public comments on the
rulemaking, and other materials relating to this rulemaking are
available for inspection at the following address: (It is recommended
that you telephone Fayette Bright at (312) 886-6069, before visiting
the Region 5 Office.) United States Environmental Protection Agency,
Region 5, Air and Radiation Division, 77 West Jackson Boulevard (AR-
18J), Chicago, Illinois 60604.
FOR FURTHER INFORMATION CONTACT: Fayette Bright, Air Programs Branch,
Regulation Development Section (AR-18J), United States Environmental
Protection Agency, Region 5, Chicago, Illinois 60604, (312) 886-6069.
SUPPLEMENTARY INFORMATION:
I. Background
On November 15, 1994, the OEPA submitted to the USEPA a request for
redesignation of Clinton County, Ohio from transitional nonattainment
1 to attainment for ozone, and a maintenance plan designed to
assure continued attainment of the national ambient air quality
standards for ozone in the Clinton County area. On February 24, 1995,
the OEPA submitted additional information to the USEPA regarding the
State public hearing and responses to public comments received
regarding the redesignation and the maintenance plan. The redesignation
request was supported by technical information demonstrating that the
requirements of Section 107(d)(3)(E) of the Clean Air Act (Act) were
met. On May 5, 1995, a document was published in the Federal Register
(60 FR 22337) which proposed approval of the redesignation request the
maintenance plan, and the emissions inventory.
\1\ As stated in the proposed rule, Clinton County did not
experience a violation during the three year period from January 1,
1987 through December 31, 1989. Therefore, pursuant to Section
185(A) of the Clean Air Act, it was designated a transitional
nonattainment area for ozone. Under this classification, the
requirements of Subpart 2 of Part D of Title 1 of the CAA for ozone
nonattainment areas were suspended for Clinton County until December
31, 1991. See 60 FR 22337 (May 5, 1995). After December 31, 1991,
the requirements were no longer suspended, however, Subpart 2 did
not contain any new requirements that would apply to a transitional
area that was not classified under Section 181(a) as marginal or
above.
[[Page 11561]]
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II. Summary of Proposed Rulemaking
The proposed rulemaking detailed how the State submittal fulfilled
the redesignation requirements of the Act. Specifically, Section
107(d)(3)(E) of the Act provides for redesignation if: (i) The
Administrator determines that the area has attained the National
Ambient Air Quality Standards (NAAQS); (ii) the Administrator has fully
approved the applicable implementation plan for the area under Section
110(k); (iii) the Administrator determines that the improvement in air
quality is due to permanent and enforceable reductions in emissions
resulting from implementation of the applicable implementation plan and
applicable Federal air pollutant control regulations and other
permanent and enforceable reductions; (iv) the Administrator has fully
approved a maintenance plan for the area as meeting the requirements of
Section 175(A); (v) the State containing such area has met all
requirements applicable to the area under Section 110 and Part D. The
USEPA also provided guidance on redesignation in the General Preamble
for the Implementation of Title I of the Clean Air Act Amendments of
1990, 57 FR 13498 (April 16, 1992), supplemented at 57 FR 18070 (April
28, 1992) and in three key memoranda which were cited in the May 5,
1995 Federal Register notice. See 60 FR 22337. The following discussion
expands and clarifies the analysis made in the proposed rule as to how
the State has fulfilled the Act's redesignation requirements for
Clinton County.
A. The Area Must Have Attained the Ozone NAAQS.
There is a 2-step process to determining whether an area has
violated the ozone NAAQS which both tallies the number of monitored
exceedances and accounts for any time the monitor was not operating or
operating improperly. The first step is to determine the number of
expected exceedances for each year of the last three years from each
monitoring site. The second step is to determine the area's average
expected exceedance rate over the most recent three year period.
Pursuant to 40 C.F.R. 50.9, this rate cannot exceed 1.0.
The OEPA submitted monitoring data for Clinton County for the years
1977 through 1994. The monitor recorded 5 exceedances of the ozone
NAAQS in 1983. This resulted in an average expectant exceedance rate of
greater than 1.0. Consequently, Clinton County was found to be in
violation of the NAAQS. On November 15, 1990, Clinton County retained
its nonattainment designation and was classified as a transitional area
based on monitoring data for 1987, 1988 and 1989. Clinton County
exceeded the NAAQS for ozone for the years 1988, 1989, and 1993, during
which there were only single exceedances during each of these years. In
addition, monitoring data shows that no exceedances were monitored
during 1995. Because Clinton County had only one exceedance during the
last three years of complete monitoring data (1993-1995), the average
expected exceedance rate is 0.33 per year, which falls below the
average expected exceedance rate of 1.0. Thus, Clinton County currently
meets the ozone NAAQS and has been in attainment since 1986.
B. The Area Must Have a Fully Approved State Implementation Plan (SIP)
Under Section 110(k)
Because Clinton County is classified as a transitional area for
ozone, it is only required to submit an emissions inventory as a SIP
revision.\2\ This final rulemaking also approves the emissions
inventory for the Clinton County area which has been included as part
of the maintenance plan.\3\ Consequently, the area has satisfied the
second requirement.
\2\ September 4, 1992 memorandum issued by John Calcagni,
Director, Air Quality Management Division, entitled ``Procedures for
Processing Requests to Attainment''.
\3\ The September 4, 1992 memorandum issued by John Calcagni,
Director, Air Quality Management Division, entitled, ``Procedures
for Processing Requests to Attainment,'' allows approval action on
the SIP elements and the redesignation request to occur
simultaneously.
---------------------------------------------------------------------------
C. The Improvement in Air Quality Must Be Due to Permanent and
Enforceable Reductions in Emissions Resulting From Implementation of
the SIP and Applicable Federal Air Pollutant Control Regulations and
Other Permanent and Enforceable Reductions
The State of Ohio did not rely on new SIP measures to meet this
requirement because there were no new emission reduction programs
required by the CAA to be approved into the SIP. Instead, the State
demonstrated that the improvement in air quality was due to the Federal
Motor Vehicle Emissions Control Program (FMVCP) required at 40 Code of
Federal Regulations (CFR) Part 86 and the lower fuel volatility
requirements at 40 CFR Part 80. Both of these requirements are
permanent measures enforceable by the Federal government.
The State has also shown that in Clinton County, actual total VOC
emissions were reduced by approximately two (2) tons per day from 1990
to 1993. The State attributes these results exclusively to reductions
in mobile source emissions. The mobile source emission reductions were
the result of the lower fuel volatility program and the FMVCP.
Consequently, the third requirement has also been met.
D. The Area Must Have a Fully Approved Maintenance Plan Meeting the
Requirements of Section 175(A)
The OEPA has met the applicable requirements by submitting a
maintenance plan consisting of emission inventories for area, point,
and mobile sources of Volatile Organic Compounds (VOC), Nitrogen Oxides
(NOX), and Carbon Monoxide (CO) emissions. This maintenance plan
also includes a contingency plan with defined measures to be
implemented in accordance with a specified schedule, as presented in
Section II. D of the May 5, 1995 proposed rule. Additionally, any
monitored violation in Clinton County would also trigger contingency
measures in the counties comprising the Cincinnati moderate
nonattainment area. (The State has also developed rules and an
implementation plan to place a program in operation in the event a
violation in any of these areas occur).
The current RVP requirement in the State of Ohio is 9.0 pounds per
square inch (psi).\4\ There is a 1 psi waiver available for retailers
and blenders who use ethanol as an octane enhancer/additive. This
waiver would still be available with the State's low-RVP program in the
event it is implemented. The low-RVP program and other measures on
Ohio's list of contingency measures are new measures that are not
currently in place in the area.
\4\ Federal RVP requirements are found at 40 CFR Section 80.27.
As of the summer of 1992, gasoline RVP could not exceed 9.0 psi
during the months of May through September. There is a special
provision for fuels blended to a 10 volume percent ethanol. The
provision allows the RVP to exceed 9.0 psi up to 10.0 psi.
---------------------------------------------------------------------------
E. The Area Must Have Met All Applicable Requirements Under Section 110
and Part D
Ohio has also met this requirement, as detailed in a discussion in
the May 5, 1995 Federal Register proposed approval of the redesignation
request at 60 FR 22343.
The proposed rulemaking also presented summary tables of VOC
emissions, CO emissions, and NOX emissions projections for Clinton
County. The tables for VOC and NOX are presented below.
[[Page 11562]]
Summary of VOC Emissions (tons/day)
----------------------------------------------------------------------------------------------------------------
1990 base 1993 attain 1996 proj. 1999 proj. 2002 proj. 2006 proj.
----------------------------------------------------------------------------------------------------------------
Point....................... 0.0 0.0 0.0 0.0 0.0 0.0
Area........................ 11.3 11.33 11.36 11.39 11.42 11.47
Mobile...................... 5.04 3.27 2.82 2.80 2.31 2.42
-----------------------------------------------------------------------------------
Totals................ 16.34 14.60 14.18 14.19 13.73 13.89
----------------------------------------------------------------------------------------------------------------
Summary of NOX Emissions (tons/day)
----------------------------------------------------------------------------------------------------------------
1990 base 1993 attain 1996 proj. 1999 proj. 2002 proj. 2006 proj.
----------------------------------------------------------------------------------------------------------------
Point....................... 0.0 0.0 0.0 0.0 0.0 0.0
Area........................ 1.62 1.63 1.64 1.64 1.65 1.66
Mobile...................... 4.80 4.19 3.69 3.65 3.13 3.25
-----------------------------------------------------------------------------------
Totals................ 6.42 5.82 5.33 5.29 4.78 4.91
----------------------------------------------------------------------------------------------------------------
The VOC and NOX emissions projected for the year 2006 in the
above tables are considered emission budgets for purposes of
transportation conformity. Section 176 of the CAA sets forth the
requirement that the federal government and metropolitan planning
organizations may not support transportation activities that do not
conform to the purpose of the SIP. This is generally known as
``transportation conformity.'' In the Maintenance Plan portion of the
SIP an emissions budget is established for certain areas. This budget
is the amount of emissions that the area must remain below in order to
maintain the ozone standard. Clinton County is designated as a
transitional nonattainment area that is generally downwind of the
Cincinnati Metropolitan area. The Clinton County area does not have any
major stationary sources of emissions and is considered a relatively
small source of emissions. In addition, the last violation of the ozone
NAAQS in Clinton County occurred in 1983.
Public Comment/USEPA Response
In response to USEPA's request for written comments on the proposed
rulemaking, USEPA received comments from the Miami Group of the Ohio
Chapter of the Sierra Club (the Miami Group). The Miami Group submitted
comments regarding the redesignation of both the Cincinnati and the
Clinton County areas.\5\ Because this final rulemaking only addresses
the redesignation of the Clinton County area, the following discussion
summarizes and responds only to the Miami Group's comments insofar as
they concerned the redesignation of the Clinton County area. USEPA will
respond to the Miami Group's comments regarding the redesignation of
the Cincinnati area in any final rulemaking regarding the redesignation
of the Cincinnati area.
\5\ USEPA's proposed rule in the May 5, 1995 Federal Register
notice at 60 FR 22343 addressed OEPA's request for both the
redesignation of the Ohio portion of the Cincinnati area and the
Clinton County area.
---------------------------------------------------------------------------
Comment: The area has not yet proven that it has attained the
NAAQS. The NAAQS for ozone are not fully protective of the public
health and the environment. The area has reached attainment previously
only to be followed by violations. Additionally, the ozone monitoring
network may be insufficient and no consideration is given to downwind
areas.
Response: The current ozone standard was set to protect public
health. The OEPA has shown that the Clinton County area meets the
NAAQS, as described in both this final rulemaking and in the proposed
rulemaking published on May 5, 1995. In addition, the ozone monitoring
network has been determined by USEPA, to be representative of ambient
air concentrations of ozone in the Clinton County area. In addition,
the monitoring network will remain in operation after the redesignation
to attainment to verify the future attainment status of the area.
Finally, as stated in the proposed rule, the USEPA intends to
address the transport or downwind area issue through Section 110 of the
Act, based on a domain-wide modeling analysis. The domain-wide modeling
analysis involves modeling the eastern portion of the United States in
an effort to better understand what is needed in this region to reduce
the amount of transported ozone and ozone precursors such as volatile
organic compounds and oxides of nitrogen, so that the ozone NAAQS can
be achieved in all areas across the region. Section 110 of the CAA
requires that SIPs contain adequate provisions to prohibit sources or
emissions activities within the State from contributing to
nonattainment, or interfering with maintenance in any other state with
respect to the NAAQS. USEPA expects to use its authority under the CAA
to require states to revise their SIPs to meet this requirement.
Comment: The improvement in air quality is not due to permanent and
enforceable reductions in emissions. The lack of violations of the
ozone NAAQS may be due to voluntary controls. Increasing vehicle miles
travelled will result in increasing emissions, offsetting reductions
from the removal of older vehicles. There are inconsistencies in the
Vehicle Miles Traveled (VMT) and growth projections between the SIP,
the Transportation Improvement Program (TIP), and the redesignation
request.
Response: The State reasonably attributed improvement in air
quality to be primarily due to two Federal programs: the FMVCP and the
lower Reid Vapor Pressure (RVP) program, both of which are permanent
and Federally enforceable. The transportation projections were
calculated using methods consistent with USEPA guidance. The
differences in VMT growth projections are slight and do not affect the
approval of the redesignation package. The year 2006 total VOC emission
totals as detailed in this rulemaking set the budget for transportation
conformity purposes. While VMT is increasing in Clinton County, the
vehicles in the area are producing less pollution per vehicle due to
the FMVCP. This offsets the growth in VMT and results in less pollution
from the mobile sources sector. Emissions projections using USEPA's
mobile emissions model to estimate vehicle emissions combined with the
VMT projections for Clinton County confirm this conclusion.
Comment: The transportation modeling and emission analysis is
flawed and makes it impossible for the maintenance plan to succeed.
Changes in VMT brought about by changes in highway systems or land
development have not been adequately addressed.
Response: The approach used to estimate mobile source emissions is
reasonable and in accordance with USEPA guidance. The Mobile 5a model
[[Page 11563]]
is the appropriate model to use to predict emission factors which can
be applied to VMT to obtain emission projections. Additionally, mobile
source inventories will be updated at least once every three years to
incorporate new VMT estimates and revised USEPA mobile emission models.
Comment: If the area is redesignated to attainment, stationary
sources will be allowed to grow uncontrolled.
Response: Currently, no major sources are located in the Clinton
County area. Any major new sources located in this area would be
subject to Prevention of Significant Deterioration (PSD) requirements
at 40 C.F.R. Sec. 52.21. These regulations require major new sources
and major modifications of existing sources to use Best Available
Control Technology (BACT). In addition, any allowable emission
increases from such new construction could not cause or contribute to
air pollution in the area. The maintenance plan prepared for Clinton
County also relies on contingency measures to correct any future
violations. These contingency measures would be implemented in the
event the standard is violated.
Comment: The contingency plan is based on insufficient control
measures and the implementation schedule is too long.
Response: The contingency plan is adequate. It contains 12 possible
measures. Moreover, it is not limited to the list of 12 measures in the
submittal. For example, the State may select other control measures
based on cost-effectiveness, VOC reduction potential, economic and
social consideration, or other factors. The implementation schedule
calls for a VOC control program to be implemented as expeditiously as
possible and to be in place no later than 12 months from the
verification that a violation of the ozone National Ambient Air Quality
Standards (NAAQS) has occurred. USEPA believes that this schedule
satisfies the requirement of section 175A that contingency measures
promptly correct any violations and is consistent with schedules
contained in numerous other maintenance plans approved by USEPA.
Comment: The Long Range Plan contains emission projections which
are insupportable.
Response: Ohio demonstrated that by considering the growth in the
area (including VMT growth) and present controls on existing emission
sources, emissions will remain below the attainment year inventory
through the year 2006. In projecting mobile source emissions, Ohio
obtained VMT based on the TRANPLAN Model which uses traffic counting
data for the year 1990. To forecast VMT to the year 2006, Ohio used
growth parameters based on modeling of the Long Range Transportation
Plan (future highway network). This modeling process incorporated
population growth estimates from Ohio Data Users Center, employment
forecasts, and other forecasts regarding socio-economic data. USEPA
considers the methodology which was used to project emissions to be
reasonable.
III. Rulemaking Action
Clinton County, which is located to the northeast of the City of
Cincinnati, is being redesignated from transitional nonattainment to
attainment for ozone. In the proposed rulemaking published on May 5,
1995, USEPA detailed how the Clinton County portion of the submittal
met the redesignation requirements of Section 107(d)(3)(E). See 60 FR
22337.
USEPA received comments pertaining to the proposed rulemaking. The
comments were considered and responses were detailed in the above
section of this notice. The USEPA believes that the redesignation
requirements of Section 107(d) are satisfied and is taking final action
to approve the request for redesignation to attainment and to approve
the maintenance plan and emissions inventory for Clinton County, Ohio.
USEPA finds that there is good cause for this redesignation,
maintenance plan and emissions inventory to become effective
immediately upon publication because a delayed effective date is
unnecessary due to the nature of a redesignation to attainment, which
exempts the area from certain Act requirements that would otherwise
apply to it. The immediate effective date for this redesignation,
maintenance plan and emissions inventory is authorized under both 5
U.S.C. 553(d)(1), which provides that rulemaking actions may become
effective less than 30 days after publication if the rule ``grants or
recognizes an exemption or relieves a restriction'' and section
553(d)(3), which allows an effective date less than 30 days after
publication ``as otherwise provided by the agency for good cause found
and published with the rule.''
Nothing in this action should be construed as permitting, allowing
or establishing a precedent for any future request for revision to any
SIP. USEPA shall consider each request for revision to the SIP in light
of specific technical, economic, and environmental factors and in
relation to relevant statutory and regulatory requirements.
This action has been classified as a Table 3 action by the Regional
Administrator under the procedures published in the Federal Register on
January 19, 1989 (54 FR 2214-2225), as revised by a July 10, 1995
memorandum from Mary D. Nichols, Assistant Administrator for Air and
Radiation. The Office of Management and Budget has exempted this
regulatory action from Executive Order 12866 review.
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., USEPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities (5 U.S.C. 603 and 604).
Alternatively, USEPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000. Redesignation of an area to attainment under section
107(d)(3)(E) of the Act does not impose any new requirements on small
entities. Redesignation is an action that affects the status of a
geographical area and does not impose any regulatory requirements on
sources. The Administrator certifies that the approval of the
redesignation request will not affect a substantial number of small
entities. SIP approvals under section 110 and subchapter I, Part D of
the Act do not create any new requirements, but simply approve
requirements that the State is already imposing. Therefore, because the
Federal SIP-approval does not impose any new requirements, the
Administrator certifies that it does not have a significant impact on
any small entities affected. Moreover, due to the nature of the
federal-state relationship under the Act, preparation of a regulatory
flexibility analysis would constitute federal inquiry into the economic
reasonableness of state action. The Act forbids USEPA to base its
actions concerning SIPs on such grounds. Union Electric Co. v. U.S.
E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976); 42 U.S.C. 7410(a)(2).
Under Sections 202, 203, and 205 of the Unfunded Mandates Reform
Act of 1995 (Unfunded Mandates Act), signed into law on March 22, 1995,
USEPA must undertake various actions in association with proposed or
final rules that include a Federal mandate that may result in estimated
costs of $100 million or more to the private sector, or to State,
local, or tribal governments in the aggregate.
Through submission of the state implementation plan or plan
revisions approved in this action, the State and any affected local or
tribal governments have elected to adopt the program
[[Page 11564]]
provided for under section 175A of the Clean Air Act. The rules and
commitments being proposed for approval in this action may bind State,
local and tribal governments to perform certain actions and also may
ultimately lead to the private sector being required to perform certain
duties. To the extent that the rules and commitments being proposed for
approval by this action will impose or lead to the imposition of any
mandate upon the State, local or tribal governments either as the owner
or operator of a source or as a regulator, or would impose or lead to
the imposition of any mandate upon the private sector, USEPA's action
will impose no new requirements; such sources are already subject to
these requirements under State law. Accordingly, no additional costs to
State, local, or tribal governments, or to the private sector, will
result from this action. The USEPA has also determined that this action
does not include a mandate that may result in estimated costs of $100
million or more to State, local, or tribal governments in the aggregate
or to the private sector.
Under Section 307(b)(1) of the Act, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by May 20, 1996. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this rule for the purposes of judicial review nor does
it extend the time within which a petition for judicial review may be
filed, and shall not postpone the effectiveness of such rule or action.
This action may not be challenged later in proceedings to enforce its
requirements. (See Section 307(b)(2).)
List of Subjects
40 CFR Part 52
Environmental Protection, Air pollution control, Ozone, Nitrogen
oxides, Volatile organic compounds.
40 CFR Part 81
Air pollution control.
Dated: March 1, 1996.
Valdas V. Adamkus,
Regional Administrator.
Chapter 1, title 40 of the Code of Federal Regulations is amended
as follows:
PART 52--[AMENDED]
1. The authority citation for Part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
2. Section 52.1885 is amended by adding paragraphs (b)(9) and (y)
to read as follows:
Sec. 52.1885 Control Strategy: Ozone.
* * * * *
(b) * * *
(9) Clinton County
* * * * *
(y) Approval--The 1990 base-year ozone emissions inventory
requirement of Section 182(a)(1) of the Clean Air Act has been
satisfied for Clinton County.
PART 81--DESIGNATION OF AREAS FOR AIR QUALITY PLANNING PURPOSES-
OHIO
1. The authority citation for part 81 continues to read as follows:
Authority: 42. U.S.C. 7401-7671q.
2. In Sec. 81.336 the ozone table is amended by revising the entry
for the Clinton County Area to read as follows:
Sec. 81.336 Ohio
* * * * *
Ohio--Ozone
--------------------------------------------------------------------------------------------------------------------------------------------------------
Designation Classification
Designated area ----------------------------------------------------------------------------------------------------------------------
Date\1\ Type Date Type
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Clinton County Area, Clinton March 21, 1996................. Attainment...............
County.
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ This date is November 15, 1990 unless otherwise noted.
[FR Doc. 96-6778 Filed 3-20-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-6774 Extension of Maturing 1994 and Subsequent Crop Year Wheat and Feed Grain Price Support Loans
[Federal Register Volume 61, Number 56 (Thursday, March 21, 1996)]
[Rules and Regulations]
[Pages 11514-11515]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6774]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
Commodity Credit Corporation
7 CFR Part 1421
RIN 0560-AE28
Extension of Maturing 1994 and Subsequent Crop Year Wheat and
Feed Grain Price Support Loans
AGENCY: Commodity Credit Corporation, USDA.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule adopts, without change, the proposed rule
published in the Federal Register at 60 FR 55807 on November 3, 1995,
allowing producers to extend maturing wheat, corn, grain sorghum,
barley, oat, and rye price support loans during times of abnormal
marketing conditions.
EFFECTIVE DATE: March 21, 1996.
FOR FURTHER INFORMATION CONTACT: Margaret Wright, Program Specialist,
Farm Service Agency (FSA), USDA, room 3627, South Building, P.O. Box
2415, Washington, DC 20013-2415, telephone 202-720-8481.
SUPPLEMENTARY INFORMATION:
Executive Order 12866
This rule has been determined to be significant and was reviewed by
Office of Management and Budget (OMB) under Executive Order 12866.
Federal Assistance Program
The title and number of the Federal Assistance Program, as found in
the Catalog of Federal Domestic Assistance, to which this rule applies
are Commodity Loans and Purchases--10.051.
Regulatory Flexibility Act
It has been determined that the Regulatory Flexibility Act is not
applicable because the Commodity Credit Corporation (CCC) is not
required by 5 U.S.C. 553 or any other provision of law to publish a
notice of proposed rulemaking with respect to the subject matter of
these determinations.
Environmental Evaluation
It has been determined by an environmental evaluation that this
action will have no significant impact on the quality of the human
environment.
[[Page 11515]]
Executive Order 12372
This program is not subject to the provisions of Executive Order
12372, which requires intergovernmental consultation with State and
local officials. See the Notice related to 7 CFR part 3015, subpart V,
published at 48 FR 29115 (June 24, 1983).
Executive Order 12778
This final rule has been reviewed pursuant to Executive Order
12778. To the extent State and local laws are in conflict with these
regulatory provisions, it is the intent of CCC that the terms of the
regulations prevail. The provisions of this final rule are not
retroactive. Prior to any judicial action in a court of competent
jurisdiction, administrative review under 7 CFR part 780 must be
exhausted.
Paperwork Reduction Act
The amendments to 7 CFR part 1421 set forth in this final rule do
not contain additional information collections that require clearance
by the Office of Management and Budget (OMB) under the provisions of 44
U.S.C. Chapter 35. Existing information collections were approved by
OMB and assigned OMB Control Numbers 0560-0087 and 0560-0129.
Public Comments
No comments were received in response to the proposed rule
published on November 3, 1995, at 60 FR 55807.
List of Subjects in 7 CFR Part 1421
Grains, Loan programs/agriculture, Oilseeds, Peanuts, Price support
programs, Reporting and recordkeeping requirements, Soybeans, Surety
bonds, Warehouses. Accordingly, the proposed rule which amended 7 CFR
part 1421 published at 60 FR 55807 on November 3, 1995, is adopted as a
final rule without change as follows:
PART 1421--GRAINS AND SIMILARLY HANDLED COMMODITIES
1. The authority citation for 7 CFR part 1421 continues to read as
follows:
Authority: 7 U.S.C. 1421, 1423, 1425, 1441z, 1444f-1, 1445b-3a,
1445c-3, 1445e, and 1446f; 15 U.S.C. 714b and 714c. Subpart--Rice
Marketing Certificate Program is also issued under authority of 7
U.S.C. 1441-2; 15 U.S.C. 714b and 714c.
2. Section 1421.6 is amended by revising paragraph (e) to read as
follows:
Sec. 1421.6 Maturity and expiration dates.
* * * * *
(e) Notwithstanding any other provision of this section, CCC may
allow producers with wheat, corn, grain sorghum, barley, oat, and rye
loans maturing during times of abnormal marketing conditions, as
determined by CCC, to extend such loans beyond the maturity date
specified in paragraph (a) of this section. If CCC determines that the
commodity pledged as collateral for such loans cannot be marketed
because of such abnormal marketing conditions, CCC may authorize such
loans to be extended to a date that will allow affected producers to
market such commodity in a normal manner.
Signed in Washington, DC, on March 13, 1996.
Bruce R. Weber,
Acting Executive Vice President, Commodity Credit Corporation.
[FR Doc. 96-6774 Filed 3-20-96; 8:45 am]
BILLING CODE 3410-05-P
Complete official Federal Register PDF
FR Doc. 96-6759 Television Broadcasting Services; Bessemer and Tuscaloosa, AL
[Federal Register Volume 61, Number 56 (Thursday, March 21, 1996)]
[Rules and Regulations]
[Pages 11584-11585]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6759]
-----------------------------------------------------------------------
[[Page 11585]]
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 73
[MM Docket No. 89-87; RM-6637]
Television Broadcasting Services; Bessemer and Tuscaloosa, AL
AGENCY: Federal Communications Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This document grants an Application for Review filed by
Channel 17 Associates, Ltd., licensee of Station WDBB, Channel 17,
Tuscaloosa, Alabama, directed to the Report and Order. 55 FR 4884,
February 12, 1990. In doing so, it grants the proposal to reallot
Channel 17 to Bessemer, Alabama, and modify the Station WDBB license to
specify Bessemer as the community of license. The reference coordinates
for Channel 17 at Bessemer are 33-28-48 and 87-25-47. With this action,
the proceeding is terminated.
EFFECTIVE DATE: April 22, 1996.
FOR FURTHER INFORMATION CONTACT: Robert Hayne, Mass Media Bureau, (202)
418-2177.
SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's
Memorandum Opinion and Order in MM Docket No. 89-87, adopted January
26, 1996, and released March 8, 1996. The full text of this decision is
available for inspection and copying during normal business hours in
the FCC Reference Center (Room 239), 1919 M Street, NW., Washington,
DC. The complete text of this decision may also be purchased from the
Commission's copy contractors, International Transcription Service,
Inc., (202) 857-3800, 1919 m Street, NW., Room 246, or 2100 M Street,
NW., Suite 140, Washington, DC 20037.
List of Subjects in 47 CFR Part 73
Television broadcasting.
Part 73 of title 47 of the Code of Federal Regulations is amended
as follows:
PART 73--[AMENDED]
1. The authority citation for part 73 continues to read as follows:
Authority: Secs. 303, 48 Stat., as amended, 1082; 47 U.S.C. 154,
as amended.
Sec. 73.606 [Amended]
2. Section 73.606(b), the Television Table of Allotments under
Alabama, is amended by removing Tuscaloosa, Channel 17.
3. Section 73.606(b), the Television Table of Allotments under
Alabama, is amended by adding Bessemer, Channel 17.
Federal Communications Commission.
William F. Caton,
Acting Secretary.
[FR Doc. 96-6759 Filed 3-20-96; 8:45 am]
BILLING CODE 6712-01-F
Complete official Federal Register PDF
FR Doc. 96-6745 Federal Motor Vehicle Safety Standards; Reflecting Surfaces
[Federal Register Volume 61, Number 56 (Thursday, March 21, 1996)]
[Rules and Regulations]
[Pages 11587-11589]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6745]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
49 CFR Part 571
[Docket No. 95-50; Notice 2]
RIN 2127-AF74
Federal Motor Vehicle Safety Standards; Reflecting Surfaces
AGENCY: National Highway Traffic Safety Administration (NHTSA), DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: In this final rule, NHTSA rescinds the Federal motor vehicle
safety standard that regulates the reflectivity of specified metallic
components located in front of the driver. This action is part of the
agency's efforts to implement the President's Regulatory Reinvention
Initiative. In issuing this rule, the agency concludes that rescinding
the standard will not adversely affect motor vehicle safety.
DATES: Effective Date: This final rule is effective May 6, 1996.
Petitions for Reconsideration: Any petitions for reconsideration of
this final rule must be received by NHTSA no later than May 6, 1996.
ADDRESSES: Any petition for reconsideration of this final rule should
refer to the docket and notice number set forth in the heading of this
notice and be submitted to: Administrator, NHTSA, 400 Seventh Street
SW., Washington, D.C. 20590.
FOR FURTHER INFORMATION CONTACT: Mr. Richard Van Iderstine, Office of
Vehicle Safety Standards, Office of Safety Performance Standards,
NHTSA, 400 Seventh Street, S.W., Washington, D.C. 20590. Mr. Van
Iderstine's telephone number is (202) 366-5280. The FAX number is (202)
366-4329.
SUPPLEMENTARY INFORMATION:
President's Regulatory Reinvention Initiative
NHTSA has undertaken a review of its regulations pursuant to the
March 4, 1995, directive ``Regulatory Reinvention Initiative'' from the
President to the heads of departments and agencies. During the course
of this review, the agency identified several requirements and
regulations that are potential candidates for rescission, including
Federal Motor Vehicle Safety Standard No. 107, Reflecting surfaces (49
CFR Sec. 571.107).
In this final rule, NHTSA concludes that Standard No. 107 can be
rescinded without adversely affecting motor vehicle safety. That
conclusion is based on the agency's finding that the vehicle
manufacturers established a practice of using nonglossy materials and
matte finishes on unregulated components as well as on regulated
components. Since the manufacturers have elected to use non-glossy
surfaces on components that are not subject to the standard, the agency
concludes that rescinding the regulatory requirements will not result
in the return of the glossy surfaces that originally prompted the
agency to issue the standard. In reaching this conclusion, NHTSA also
notes that the virtual elimination of metallic components within the
driver's forward field of view has already reduced the effective scope
of the standard to the level of insignificance.
Background
Standard No. 107 specifies reflectance requirements that apply to
specified metallic components in the driver's forward field of view:
the windshield wiper arms and blades, the inside windshield moldings,
the horn ring and hub of the steering wheel assembly, and the inside
rearview mirror frame and mounting bracket. The standard requires that
the specular gloss of the surface of these components not exceed 40
units when tested. (``Specular gloss'' refers to the amount of light
reflected from a test specimen.) The purpose of the standard
[[Page 11588]]
is to reduce the likelihood that glare from the regulated components
will distract drivers or interfere with their vision.
Notice of Proposed Rulemaking
On June 26, 1995 (60 FR 32935), NHTSA published a notice of
proposed rulemaking to rescind Standard No. 107. In reviewing the
history of the standard, the agency cited its earlier termination of a
rulemaking to extend Standard No. 107's specular gloss limits to non-
metallic surfaces (54 FR 35011; August 23, 1989). NHTSA terminated that
rulemaking after concluding that the non-metallic surfaces had not been
shown to cause glare that would affect the driver's performance.
In proposing to rescind the standard, NHTSA regarded the 1989
termination as having a bearing on the continuance of the standard.
NHTSA noted that matte finishes were being used on components in front
of the driver and stated its belief that market forces would continue
to favor matte finishes and surfaces for components in the driver's
field of view, and would be reinforced in that respect by product
liability concerns. Evidence of the influence of these factors may be
found in the disappearance of steering wheel rings and metallic
windshield mountings, and in the use of matte finishes on unregulated
as well as regulated components.
Further, NHTSA stated that the need for the standard has been
reduced by the increased use of non-metallic materials (hard plastic or
rubber) for parts such as windshield wiper arms and blades, steering
wheel assembly hubs, and inside rearview mirror frame and mounting
brackets. The substitution of non-metallic surfaces removes these
vehicle components from the scope of Standard No. 107.
NHTSA continued by noting that the decreasing tendency to use metal
is also evident with respect to components not regulated by Standard
No. 107. Since 1987, vehicle interior styling practices have favored a
combination of hard plastic and padded faux leather, materials that do
not reflect sufficient light to create glare.
NHTSA's Response to Public Comments on the NPRM
In response to the NPRM, NHTSA received comments from the Insurance
Institute for Highway Safety (IIHS), Chrysler Corporation, the Truck
Manufacturers Association, the Association of International Automobile
Manufacturers, Inc., Vehicle Improvement Products Inc., the Advocates
for Highway and Auto Safety (Advocates) and the State of Connecticut
(Connecticut). All commenters, except for Advocates and Connecticut,
supported rescission of the standard. The commenters that favored
rescission agreed with NHTSA that established industry practices in
using nonglossy materials and finishes on both regulated and
unregulated components in the driver's forward field of view have
eliminated the need for Standard No. 107. While IIHS agreed that
Standard No. 107 should be rescinded, it objected to NHTSA's reliance
on product liability considerations and recall procedures as rationales
for the rescission.
In opposing the rescission, Advocates asserted that the defects
authority would be inadequate as an alternative to the standard, in
part because the rescission of the standard might enable the
manufacturers to argue that a glossy surface could not be a ``defect,''
and in part because the defects process is protracted and may often
prove inconclusive. In Advocates' view, product liability litigation
was available before the adoption of the standard and would not
constitute a changed fact that could justify rescinding the standard
(citing a comment by IIHS on the agency's proposed rescission of
Standard No. 211).
In rescinding Standard No. 107, NHTSA affirms its view that the
presence of the defects authority and product liability considerations
will act to constrain manufacturers from producing vehicles with high-
gloss metallic surfaces. The agency regards these factors as real and
effective constraints, whatever their limitations.
However, the agency's principal basis for rescission continues to
be the evident and universal practice by manufacturers of designing
their vehicles to avoid the use of these surfaces, whether or not
regulated. The standard was promulgated at a time when the prevailing
design practice favored the use of chrome and other metallic surfaces,
inside the vehicle as well as outside. The move away from these
surfaces has been in part a matter of trends in styling, but also a
response to regulatory forces and to the imperative to cut costs.
The chrome steering wheel hub, for example, and the horn ring, are
effectively barred by the installation of driver air bags. The metallic
rear-view mirror mounts have been displaced by cheaper and easier-to-
install adhesive mountings that attach directly to the window. The
metallic windshield mounting ring has been replaced by mounting
techniques that produce a better bond as well as a better appearance.
By referring in the NPRM to the effects of market forces, the
agency was alluding to these specific measures. Despite Advocates'
concerns, none of these measures appears vulnerable to being abandoned
because of the dictates of fashion. They are real changes which have
every likelihood of being permanent. Their collective effect has been
to reduce the scope of Standard No. 107 almost to the vanishing point.
In the agency's view, the standard no longer serves its purpose and may
therefore be rescinded with no adverse effect on motor vehicle safety.
The agency thus concurs with IIHS's view that the principal basis for
rescission is that Standard No. 107 has ``become out of date.''
In an analogous rulemaking, NHTSA decided not to specify in
Standard No. 108, Lamps, reflective devices and associated equipment,
that headlamps and taillamps of motorcycles be illuminated at all times
when the engine is running, because the motorcycle industry already
provided such performance on almost all motorcycles. (See 26 FR 32899,
June 25, 1981.)
The reasoning used to extend Standard No. 214, Side impact
protection, to light trucks, which Advocates suggests as a precedent,
is not apposite here. Although Advocates correctly noted that light
trucks were already meeting the passenger car dynamic side impact
protection requirements, the agency regarded the rapid proliferation of
new light truck models as necessitating a standard that would prevent
new models from falling below the level of current models. By contrast,
the use of low-gloss, non-metallic surfaces throughout the vehicle has
been the industry practice for years and shows no sign of changing.
Further, the Standard No. 214 rulemaking involved a much more
significant safety problem than the one addressed by Standard No. 107.
The State of Connecticut favored one uniform national standard and
therefore opposed rescission of Standard No. 107. Once the rescission
of Standard No. 107 becomes effective, the States will be free to adopt
reflecting surface requirements differing from those in the rescinded
standard since there will no longer be a Federal Motor Vehicle Safety
Standard (FMVSS) to preempt non-identical State laws. Connecticut
stated that without a Federal safety standard, there is a possibility
that the 50 States will issue different (and possibly conflicting)
standards on reflecting surfaces.
NHTSA does not share Connecticut's concern that rescission of
Standard No.
[[Page 11589]]
107 will result in individual States regulating reflecting surfaces.
There is not now, and there is not likely to be in the future, a safety
problem from reflecting surfaces in the view of the driver. Thus, there
will not be a safety problem for the States to regulate.
If a State is nevertheless disposed to regulate in this area, it
may do so. The fact that no State has previously chosen to regulate
components not regulated by Standard No. 107 is a good basis for
believing that there is no need for States to regulate.
Effective Date
In the NPRM, NHTSA proposed that if a final rule rescinding
Standard No. 107 is published, the effective date for the final rule be
30 days after publication in the Federal Register. NHTSA received no
comments on this issue. Thus, the agency determines that there is good
cause shown that an effective date earlier than 180 days after issuance
is in the public interest. Following publication of the NPRM, the
agency amended the provisions in 49 CFR Sec. 553.35 regarding petitions
for reconsideration to extend the period within which petitions may be
filed to 45 days (60 FR 62221; December 5, 1995). Accordingly, the
final rule will take effect 45 days after its publication in the
Federal Register.
Rulemaking Analyses and Notices
1. Executive Order 12866 and DOT Regulatory Policies and Procedures
This final rule was not reviewed under Executive Order 12866
(Regulatory Planning and Review). NHTSA has analyzed the impact of this
rulemaking action and determined that it is not ``significant'' within
the meaning of the Department of Transportation's regulatory policies
and procedures. The final rule does not impose any costs. If the
elimination of the necessity for certifying compliance with Standard
No. 107 enables vehicle and equipment manufacturers to use fewer
resources in assessing the reflectivity of the components formerly
covered by the Standard, there will be a slight cost savings. For these
reasons, the impacts will be so minimal that preparation of a full
regulatory evaluation is not warranted.
2. Regulatory Flexibility Act
NHTSA has also considered the impacts of this final rule under the
Regulatory Flexibility Act. I hereby certify that this final rule will
not have a significant economic impact on a substantial number of small
entities. As explained above, the rule will not impose any new
requirements but will relieve a restriction for design of certain
components in the driver's forward field of view. The final rule may
have a very slight beneficial effect on small manufacturers and dealers
of motor vehicle equipment since they will no longer have to certify
compliance with a safety standard on reflecting surfaces. For these
reasons, small businesses, small organizations and small governmental
units which purchase motor vehicles will not be significantly affected
by the final rule. Accordingly, a final regulatory flexibility analysis
has not been prepared.
3. Executive Order 12612 (Federalism)
This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 12612. The agency has
determined that the final rule does not have sufficient federalism
implications to warrant the preparation of a Federalism Assessment.
4. National Environmental Policy Act
The agency also has analyzed this final rule for the purpose of the
National Environmental Policy Act, and determined that it will not have
any significant impact on the quality of the human environment.
5. Executive Order 12778 (Civil Justice Reform)
This final rule will 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, 49 CFR part 571 is amended as
set forth below:
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.
Sec. 571.107 [Removed]
2. Section 571.107 is removed and reserved.
Issued on: March 13, 1996.
Ricardo Martinez,
Administrator.
[FR Doc. 96-6745 Filed 3-20-96; 8:45 am]
BILLING CODE 4910-59-P
Complete official Federal Register PDF
FR Doc. 96-6741 Food Additives Permitted for Direct Addition to Food for Human Consumption; Olestra; Correction
[Federal Register Volume 61, Number 56 (Thursday, March 21, 1996)]
[Rules and Regulations]
[Pages 11545-11546]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6741]
-----------------------------------------------------------------------
DEPARTMENT OF HEALTH AND HUMAN SERVICES
21 CFR Part 172
[Docket No. 87F-0179]
Food Additives Permitted for Direct Addition to Food for Human
Consumption; Olestra; Correction
AGENCY: Food and Drug Administration, HHS.
ACTION: Final rule; correction.
-----------------------------------------------------------------------
SUMMARY: The Food and Drug Administration (FDA) is correcting a final
rule that appeared in the Federal Register of January 30, 1996 (61 FR
3118). The document amended the food additive regulations to provide
for the safe use of sucrose esterified with medium and long chain fatty
acids (olestra) as a replacement for fats and oils. The document was
published with some typographical errors. This document corrects those
errors.
DATES: The regulation is effective January 30, 1996. Submit written
comments on the labeling requirement (Sec. 172.867(c)) by April 1,
1996.
ADDRESSES: Submit written comments to the Dockets Management Branch
(HFA-305), Food and Drug Administration, 12420 Parklawn Dr., rm. 1-23,
Rockville, MD 20857.
FOR FURTHER INFORMATION CONTACT: Helen R. Thorsheim, Center for Food
Safety and Applied Nutrition (HFS-216), Food and Drug Administration,
200 C St. SW., Washington, DC 20204, 202-418-3092.
In FR Doc. 96-1584, appearing on page 3118 in the Federal Register
of Tuesday, January 30, 1996, the following corrections are made:
1. On page 3119, in the second column, in the first footnote, in
the sixth line, the last word ``volum'' is corrected to read
``volume''; in the same column, in the second footnote, in the seventh
line, ``FAc'' is corrected to read ``FAC''; and in the eighth line, the
word ``meetins'' is corrected to read ``meetings''. On the same page,
in the third column, in the third full paragraph, in the eleventh line,
after the period, the plus sign is removed.
2. In the following places the paragraph symbol that printed
inadvertently is removed: On page 3120, in the second column, in the
third paragraph, in the nineteenth line, following the word ``at''; in
the third column, in the first paragraph, in the fifteenth line,
following the word ``in''; and in the same column, in the third
paragraph, in the eighteenth line, following the word ``vitamins''; on
page 3135, in the third column, in the third paragraph, at the
beginning of the fourth line; on page 3166, in the third column, at the
beginning of the twenty-first line; and on page 3169, in the third
column, in the first paragraph, in the thirty-second line, following
the word ``to''.
3. On page 3121, in the first column, in the sixth line,
``vitamin'' is corrected to read ``vitamins''.
4. On page 3124, in the first column, in the fourth full paragraph,
in the third line, ``250 F'' is corrected to read ``250 deg.F''.
5. On page 3125, in the third column, in the second paragraph, in
the twelfth line, following the word ``that'', the comma is removed.
6. On page 3126, in the third column, in the first full paragraph,
in the eighteenth line, and on page 3127, in the first column, in the
second paragraph, in the eleventh line, ``CO2'' is corrected to read
``CO2''.
7. On page 3126, in the third column, in the first paragraph, in
the twentieth line ``14C-sucrose'' is corrected to read ``14C-
sucrose''.
8. On page 3129, in the first column, in the tenth line, the
closing parenthesis is removed following the word ``review'', and
reinserted following ``NTP'', and in the same column, in the thirteenth
footnote, beginning in the first line the words ``was chief'' are
corrected to read ``was formerly chief''.
9. On page 3130, in the third column, in the second paragraph, in
the twenty-third line, ``C14-labeled'' is corrected to read ``14C-
labeled''.
10. On page 3131, in the first column, in the first paragraph, in
the thirteenth line, ``C14-labeled'' is corrected to read
``14C-labeled''.
11. On page 3132, in the second column, in fifteenth line,
``Vitamin K'' is corrected to read ``vitamin K'', and in the same
column, in both the twentieth and twenty-first footnotes, and in the
third column, in the twenty-second footnote, ``vol.'' is corrected to
read ``vol. 2''.
12. On page 3135, in the first column, in the twenty-fourth
footnote, in the fourth line, ``basline'' is corrected to read
``baseline'', and in the second column, in the first paragraph, in the
tenth line, ``1,25-(OH)D'' is corrected to read ``1,25-(OH)2D''.
13. On page 3136, in the second column, in the second full
paragraph, in the seventh line, the word ``vitamin'' is removed, and on
the same page, in the third column, in the sixth line, ``K1'' is
corrected to read ``K1''.
14. On page 3137, in the first column, in the second full
paragraph, in the fifth line, ``3H-labeled'' is corrected to read
``3H-labeled''.
15. On page 3138, in the second column, in the first paragraph, in
the third line, and in the third column, in the third line, ``B12'' is
corrected to read ``B12''.
16. On page 3144, in the third column, in the second paragraph, in
the eleventh line, the word ``that'' is removed.
17. On page 3147, in the third column, in the first paragraph, in
the thirteenth line, insert a comma after the word ``cancer'', and in
the same column, in the forty-first footnote, the sentences ``Dr. Alvan
Feinstein is Chief of the Clinical Epidemiology Unit and a Sterling
Professor of Medicine and Epidemiology at Yale University School of
Medicine. Dr. Feinstein has consulted for the petitioner and presented
at its request.'' are added after the footnote number.
18. On page 3148, in the first column, in the first full paragraph,
in the third line; in the second paragraph, in the second and twenty-
fifth lines; in the second column, in the sixteenth line; and in the
first paragraph, in the fourth line, the word ``carotenoid'' is
corrected to read ``carotenoids''.
19. On page 3151, in the third column, in the fifty-fifth footnote,
in the second line, the name ``Schneemna'' is corrected to read
``Schneeman''.
20. On page 3152, in the second column, in the first full
paragraph, in the sixth line, ``IV.B.1.a.'' is corrected to read
``IV.B.1.''.
21. On page 3153, in the second column, in the fourteenth line, the
word ``was'' is removed, and in the same column, in the sixtieth
footnote, the
[[Page 11546]]
name ``Joann'' is corrected to read ``Joanne''.
22. On page 3156, in the third column, in the sixth line, ``to
safe'' is corrected to read ``to be safe'', and in the same column, in
the first full paragraph, in the fourth line, the word ``stated'' is
removed.
23. On page 3158, in the first column, following the footnote,
``72 Transcript, vol. 1, p. 152.'' the misplaced sentence
``Accordingly, the petitioner concluded * * * by intestinal
microflora.'' is removed and reinserted in the same column as a new
last sentence of the second paragraph, following the words ``metabolize
olestra.72'' On the same page, in the third column, in the second
paragraph, in the eighth line, ``section VI.3.'' is corrected to read
``section VI.B.3.''
24. On page 3163, in the second column, in the third paragraph, in
the third and twenty-second lines, ``(Ref. 105)'' is corrected to read
``(Ref. 104)''.
25. On page 3167, in Table 10, in the second column, in the last
line, ``K11/g olestra'' is corrected to read ``K1/g
olestra''.
26. On page 3171, in the first column, in Ref. 102, in the the
fifth line, ``pp. 783-799).'' is corrected to read ``pp. 783-799,'';
and in the third column, in Sec. 172.867, in paragraph (b)(6), in the
first line, ``C12'' and ``C14'' are corrected to read ``C12'' and
``C14'', in the third line ``C20'' is corrected to read
``C20'', and in the fourth line, ``C16'' and ``C18'' are corrected
to read ``C16'' and ``C 18''.
Sec. 172.867 Corrected
27. On page 3172, in the third column, in Sec. 172.867 Olestra, in
paragraph (d), in the fifth line, the word ``lacetate'' is corrected to
read ``acetate'', and in the seventh line, ``K1'' is corrected to
read ``K1''. In the same column, in paragraph (e)(1), in the
fourth line of the warning statement ``and other other nutrients'' is
corrected to read ``and other nutrients'', and in paragraph (e)(2)(iv),
in the first line, the word ``kearned'' is corrected to read
``kerned''.
Dated: March 13, 1996.
William K. Hubbard,
Associate Commissioner for Policy Coordination.
[FR Doc. 96-6741 Filed 3-20-96; 8:45 am]
BILLING CODE 4160-01-F
Complete official Federal Register PDF
FR Doc. 96-6738 Food Additives Permitted in Feed and Drinking Water of Animals; Poly(2-vinylpyridine-co-styrene)
[Federal Register Volume 61, Number 56 (Thursday, March 21, 1996)]
[Rules and Regulations]
[Pages 11546-11547]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6738]
-----------------------------------------------------------------------
DEPARTMENT OF HEALTH AND HUMAN SERVICES
21 CFR Part 573
[Docket No. 94F-0282]
Food Additives Permitted in Feed and Drinking Water of Animals;
Poly(2-vinylpyridine-co-styrene)
AGENCY: Food and Drug Administration, HHS.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Food and Drug Administration (FDA) is amending the food
additive regulations (animal use) to provide for the safe use of the
food additive poly(2-vinylpyridine-co-styrene) as a coating agent in
the preparation of rumen-stable, abomasum-dispersible nutrient products
for dairy cattle. This action is in response to a food additive
petition filed by Rhone-Poulenc Animal Nutrition.
DATES: Effective March 21, 1996; written objections and request for
hearing by April 22, 1996.
ADDRESSES: Submit written objections and requests for hearing to the
Dockets Management Branch (HFA-305), Food and Drug Administration,
12420 Parklawn Dr., rm. 1-23, Rockville, MD 20857.
FOR FURTHER INFORMATION CONTACT: Sharon A. Benz, Center for Veterinary
Medicine (HFV-226), Food and Drug Administration, 7500 Standish Pl.,
Rockville, MD 20855, 301-594-1729.
SUPPLEMENTARY INFORMATION: In a notice published in the Federal
Register of August 11, 1994 (59 FR 41326), FDA announced that a food
additive petition (animal use) (FAP 2231) had been filed by Rhone-
Poulenc Animal Nutrition, 42, Avenue Aristide Briand, B.P. 100, 92164
Antony Cedex, France. The petition proposed to amend the food additive
regulations in Sec. 573.870 (21 CFR 573.870) to provide for the safe
use of poly(2-vinylpyridine-co-styrene) as a coating agent in the
preparation of rumen-stable, abomasum-dispersible nutrient products for
dairy cattle and dairy replacement heifers. The additive is currently
listed in Sec. 573.870 as safe for use as a nutrient protectant in feed
for beef cattle.
The notice of filing provided for a 75-day comment period. One
comment has been received in response to the notice and is on file in
the Dockets Management Branch (address above). The comment raised
several questions concerning the fate and effects of poly(2-
vinylpyridine-co-styrene) and its components released into the
environment. Questions concerned the degradation rate when applied to
the land as manure fertilizer, and degradation endpoint products. The
comment also questioned whether the polymer or its monomers (styrene
and 2-vinylpyridine) resulted in bioaccumulation, movement into
groundwater, and/ or pollutant uptake by animals and plants.
FDA has reviewed the environmental assessment and supporting
studies for use of poly(2-vinylpyridine-co-styrene) in dairy cattle
feed. The amount expected to enter the soil environment from a typical
consumption of 10 to 25 grams of rumen protected amino acid per head
per day via manure from treated animals is 1.06 parts per million. The
polymer is expected to be strongly adsorbed by soil and to have a low
mobility. Therefore, it is not expected to move in significant
quantities to surface or groundwater due to agricultural runoff. The
environmental assessment states that no more than trace quantities are
likely to enter the aquatic environment and no subsequent
bioconcentration is expected. The environmental assessment demonstrates
that 1.31 pounds of each of the monomers are expected to enter the
environment each year resulting in soil concentrations of 0.21 parts
per trillion (ppt) and air point source concentrations of 60 ppt.
Therefore, the two monomers are not expected to have a significant
effect on the environment. The information in the environmental
assessment is sufficient to address the questions raised in the comment
and adequate to conclude that significant environmental impacts are not
expected to occur.
FDA has evaluated the data in the petition and other relevant
material and concluded that use of poly(2-vinylpyridine-co-styrene) for
dairy cattle (including replacement dairy heifers) in addition to the
use for beef cattle as a nutrient protectant in feed is safe.
Therefore, Sec. 573.870 is amended as set forth below.
In accordance with Sec. 571.1(h) (21 CFR 571.1(h)), the petition
and the documents that FDA considered and relied upon in reaching its
decision to approve the petition are available for inspection at the
Center for Veterinary Medicine by appointment with the information
contact person listed above. As provided in 21 CFR 571.1(h), the agency
will delete from the documents any materials that are not available for
public disclosure before making the documents available for inspection.
The agency has carefully considered the potential environmental
effects of this action. FDA has concluded that the action will not have
a significant impact on the human environment, and that an
environmental impact statement is not required. The agency's finding of
no
[[Page 11547]]
significant impact and the evidence supporting that finding, contained
in an environmental assessment, may be seen in the Dockets Management
Branch (address above) between 9 a.m. and 4 p.m., Monday through
Friday.
Any person who will be adversely affected by this regulation may at
any time on or before April 22, 1996, file with the Dockets Management
Branch (address above) written objections thereto. Each objection shall
be separately numbered, and each numbered objection shall specify with
particularity the provisions of the regulation to which objection is
made and the grounds for the objection. Each numbered objection on
which a hearing is requested shall specifically so state. Failure to
request a hearing for any particular objection shall constitute a
waiver of the right to a hearing on that objection. Each numbered
objection for which a hearing is requested shall include a detailed
description and analysis of the specific factual information intended
to be presented in support of the objection in the event that a hearing
is held. Failure to include such a description and analysis for any
particular objection shall constitute a waiver of the right to a
hearing on the objection. Three copies of all documents shall be
submitted and shall be identified with the docket number found in
brackets in the heading of this document. Any objections received in
response to the regulation may be seen in the Dockets Management Branch
between 9 a.m. and 4 p.m., Monday through Friday.
List of Subjects in 21 CFR Part 573
Animal feeds, Food additives.
Therefore, under the Federal Food, Drug, and Cosmetic Act and under
authority delegated to the Commissioner of Food and Drugs and
redelegated to the Center for Veterinary Medicine, 21 CFR part 573 is
amended as follows:
PART 573--FOOD ADDITIVES PERMITTED IN FEED AND DRINKING WATER OF
ANIMALS
1. The authority citation for 21 CFR part 573 continues to read as
follows:
Authority: Secs. 201, 402, 409 of the Federal Food, Drug, and
Cosmetic Act (21 U.S.C. 321, 342, 348).
Sec. 573.870 [Amended]
2. Section 573.870 Poly(2-vinylpyridine-co-styrene) is amended in
the introductory text and in paragraph (b) by adding the phrase ``and
dairy cattle and replacement dairy heifers'' after the phrase ``beef
cattle''.
Dated: March 6, 1996.
Stephen F. Sundlof,
Director, Center for Veterinary Medicine.
[FR Doc. 96-6738 Filed 3-20-96; 8:45 am]
BILLING CODE 4160-01-F
Complete official Federal Register PDF
FR Doc. 96-6734 Rules and Regulations Under the Textile Fiber Products Identification Act
[Federal Register Volume 61, Number 56 (Thursday, March 21, 1996)]
[Rules and Regulations]
[Pages 11543-11544]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6734]
=======================================================================
-----------------------------------------------------------------------
FEDERAL TRADE COMMISSION
16 CFR Part 303
Rules and Regulations Under the Textile Fiber Products
Identification Act
AGENCY: Federal Trade Commission.
ACTION: Final Rule.
-----------------------------------------------------------------------
SUMMARY: This document amends the Rules and Regulations under the
Textile Fiber Products Identification Act (Textile Rules) by adding the
International System of Units (SI metric system) equivalents beside the
inch/pound unit measurements in Textile Rules 10, 21, 32, and 45 (16
CFR 303.10, 303.21, 303.32, and 303.45). These metrication amendments
are required by Executive Order 12770 of July 25, 1991 and the Metric
Conversion Act, as amended by the Omnibus Trade and Competitiveness
Act.
EFFECTIVE DATE: March 21, 1996.
ADDRESSES: Requests for copies of this notice should be sent to Public
Reference Branch, Room 130, Federal Trade Commission, Washington, DC
20508.
FOR FURTHER INFORMATION CONTACT:
Bret S. Smart, Program Advisor, Los Angeles Regional Office, Federal
Trade Commission, 11000 Wilshire Blvd., Suite 13209, Los Angeles, CA
90024, (310) 235-7890 or Edwin Rodriguez, Attorney, Federal Trade
Commission, Sixth Street and Pennsylvania Avenue, NW., Washington, DC
20580, (202) 326-3147.
SUPPLEMENTARY INFORMATION:
I. Introduction
The Textile Fiber Products Identification Act (Textile Act), 15
U.S.C. 70 et seq., requires marketers of covered textile products to
mark each product with (1) The generic names and percentages by weight
of the constituent fibers present in the textile product; (2) the name
under which the manufacturer or other responsible company does business
or, in lieu thereof, the registered identification number (RN) of such
company; and (3) the name of the
[[Page 11544]]
country where the textile product was processed or manufactured.
Furthermore, the Textile Act contains advertising and recordkeeping
provisions. As authorized and directed by section 7(c) of the Textile
Act, 15 U.S.C 70e(c), the Commission has promulgated the Textile Rules,
which are set forth at 16 CFR Part 303.
As part of the Commission's systematic review of all current
Commission rule, regulations, and guides, the Commission published a
Federal Register notice on May 6, 1994, 59 FR 23646, seeking comments
about the regulatory and economic costs and benefits of the Textile
Rules. The notice also stated that the Commission proposed to amend
Textile Rules 10, 21, 32, and 45 (16 CFR 303.10, 303.21, 303.32, and
303.45) to include the metric equivalents beside the inch/pound unit
measurements already included in those Rules.
II. Metrication Amendments
In a separate notice, the Commission summarizes the results of its
regulatory review of the Textile Rules, and seeks comment on whether it
should make additional substantive amendments to the Rules. In this
notice, the Commission announces adoption of the meterication
amendments set out in the request for comments.
Currently, Rules 10, 21, 32, and 45 (16 CFR 303.10, 303.21, 303.32,
and 303.45) include measurements expressed exclusively in inch/pound
units. Under Executive Order 12770 of July 25, 1991, 56 FR 35801 (July
29, 1991), and the Metric Conversion Act, as amended by the Omnibus
Trade and Competitiveness Act, 15 U.S.C. 205b, all federal agencies are
required to use the SI metric system of measurement in all
procurements, grants, and other business-related activities (which
include rulemakings), except to the extent that such use is impractical
or is likely to cause significant inefficiencies or loss of markets to
United States firms.
The proposed amendments to Rules 10, 21, 32, and 45 were set out in
the regulatory review notice. Four of the twenty-eight comments
submitted in response to the regulatory review expressed general
support for the proposed metrication amendments.\1\ The remaining
twenty-four comments did not address these metrication amendments.
\1\ National Knitwear & Sportswear Association (1) p. 1,
American Textile Manufacturers Institute (10) p. 6, Fieldcrest
Cannon, Inc. (13) p. 6, and Milliken & Company (22) p. 6. The number
in parentheses denotes the number assigned by the Office of the
Secretary to the comment in the public record of comments received
in the regulatory review of the Textile Rules.
---------------------------------------------------------------------------
List of Subjects in 16 CFR Part 303
Labeling, Reporting and recordkeeping requirements, Textiles, Trade
practices.
The metrication amendments are technical and non-substantive; they
merely provide metric equivalents to the existing measurements
expressed in inch/pound units and do not create any new requirements.
Therefore, Rules 10, 21, 32, and 45 (16 CFR 303.10, 303.21, 303.32, and
303.45) are amended as set out below.
PART 303--RULES AND REGULATIONS UNDER THE TEXTILE FIBER PRODUCTS
IDENTIFICATION ACT
1. The authority citation for part 303 continues to read as
follows:
Authority: 15 U.S.C. 70 et seq.
* * * * *
2. Section 303.10(b) is revised to read as follows:
Sec. 303.10 Fiber content of special types of products.
* * * * *
(b) Where drapery or upholstery fabrics are manufactured on hand-
operated looms for a particular customer after the sale of such fabric
has been consummated, and the amount of the order does not exceed 100
yards (91.44 m) of fabric, the required fiber content disclosure may be
made by listing the fibers present in order of predominance by weight
with any fiber or fibers required to be designated as ``other fiber''
or ``other fibers'' appearing last, as for example:
Rayon
Wool
Acetate
Metallic
Other fibers
* * * * *
3. Section 303.21(a)(1) is revised to read as follows:
Sec. 303.21 Marking of samples, swatches, or specimens and products
sold therefrom.
(a) * * *
(1) If the samples, swatches, or specimens are less than two square
inches (12.9 cm2) in area and the information otherwise required
to appear on the label is clearly, conspicuously, and non-deceptively
disclosed on accompanying promotional matter in accordance with the Act
and regulations.
* * * * *
4. Section 303.32 is revised to read as follows:
Sec. 303.32 Products containing reused stuffing.
Any upholstered product, mattress, or cushion which contains
stuffing which has been previously used as stuffing in any other
upholstered product, mattress, or cushion shall have securely attached
thereto a substantial tag or label, at least 2 inches (5.08 cm) by 3
inches (7.62 cm) in size, and statements thereon conspicuously stamped
or printed in the English language and in plain type not less than \1/
3\ inch (8.38 mm) high, indicating that the stuffing therein is
composed in whole or in part of ``reused stuffing,'' ``secondhand
stuffing,'' ``previously used stuffing,'' or ``used stuffing.''
5. Section 303.45(a)(1)(xv)) is revised to read as follows:
Sec. 303.45 Exclusions from the act.
(a) * * *
(1) * * *
(xv) Flags with heading or more than 216 square inches (13.9
dm2) in size.
* * * * *
By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 96-6734 Filed 3-20-96; 8:45 am]
BILLING CODE 6750-01-M
Complete official Federal Register PDF
FR Doc. 96-6718 Federal Tax Deposits by Electronic Funds Transfer
[Federal Register Volume 61, Number 56 (Thursday, March 21, 1996)]
[Rules and Regulations]
[Pages 11547-11550]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6718]
-----------------------------------------------------------------------
[[Page 11548]]
DEPARTMENT OF THE TREASURY
26 CFR Parts 1 and 31
[TD 8661]
RIN 1545-AU10
Federal Tax Deposits by Electronic Funds Transfer
AGENCY: Internal Revenue Service (IRS), Treasury.
ACTION: Temporary regulations.
-----------------------------------------------------------------------
SUMMARY: This document contains temporary regulations relating to the
deposit of Federal taxes by electronic funds transfer (EFT) under
section 6302 of the Internal Revenue Code. The document also includes
temporary regulations providing authority for the voluntary payment of
certain Federal taxes by EFT. The regulations would provide the public
with additional guidance needed to make deposits by EFT and would
affect certain taxpayers not previously required to make deposits by
EFT. The text of these temporary regulations also serves as the text of
a cross-reference notice of proposed rulemaking on this subject in the
Proposed Rules section of this issue of the Federal Register.
EFFECTIVE DATE: March 21, 1996.
FOR FURTHER INFORMATION CONTACT: Vincent G. Surabian, 202-622- 6232
(not a toll-free number).
SUPPLEMENTARY INFORMATION:
Background
On July 11, 1994, the IRS issued Treasury Decision 8553 (59 FR
35414), setting forth temporary regulations relating to the deposit of
Federal taxes by EFT. Those temporary regulations explained which
taxpayers must make deposits by electronic funds transfer, which taxes
must be so deposited, and when the deposits must commence. The text of
those temporary regulations also served as the text of a cross-
reference notice of proposed rulemaking published in the same issue of
the Federal Register at 59 FR 35418.
The IRS received many comment letters in response to the
publication of those temporary regulations. In addition, a number of
oral comments were made at the public hearing held on October 3, 1994.
With limited exceptions, those comments will not be addressed in this
document, but instead will be addressed in final regulations that the
IRS expects to publish in the near future.
Under the temporary regulations currently in place, the requirement
to begin EFT deposits is based on the taxpayer's total deposits of the
taxes imposed by chapters 21 (FICA taxes), 22 (railroad retirement
taxes) and 24 (income tax withheld at source) of the Internal Revenue
Code during certain ``determination periods.'' If the taxpayer's
deposits of those taxes during a determination period exceed a
prescribed dollar threshold, the taxpayer must begin to deposit by EFT
on and after the applicable effective date prescribed in the temporary
regulations, unless otherwise exempted.
The amendments to the temporary regulations set forth in this
document provide a special rule for any taxpayer that does not make
deposits of the taxes imposed by chapters 21, 22, and 24, but that does
make deposits of other taxes required to be deposited pursuant to
regulations issued under section 6302 (for instance, corporate income
taxes). If the taxpayer's total deposits for all other depository taxes
during a prescribed determination period exceed a prescribed dollar
threshold, the taxpayer must begin depositing by EFT on and after the
applicable effective date prescribed in these amendments to the
temporary regulations, unless otherwise exempted. (A taxpayer will
become subject to the EFT requirement for the January 1, 1998,
applicable effective date by exceeding the threshold amount during
either calendar year 1995 or calendar year 1996.) The phase-in schedule
is as follows:
------------------------------------------------------------------------
Determination Applicable
Threshold amount period effective date
------------------------------------------------------------------------
$50 thousand.................... 1-1-95 to 12-31-95 January 1, 1998.
$50 thousand.................... 1-1-96 to 12-31-96 January 1, 1998.
$20 thousand.................... 1-1-97 to 12-31-97 January 1, 1999.
------------------------------------------------------------------------
The current temporary regulations provide that a taxpayer subject
to the EFT requirement must use EFT for all deposits required to be
made on and after the applicable effective date. This requirement may
subject a taxpayer to two different modes of deposit with respect to
the same return period. For example, assume an employer is required to
deposit by EFT beginning with the January 1, 1997, applicable effective
date. The employer pays its employees weekly and has a paydate on
December 31, 1996. The employment taxes incurred for that paydate would
be reportable on the fourth quarter 1996 Form 941, but the due date for
the deposit of those taxes would occur in early January 1997. Under the
current rule, all the deposits relating to the fourth quarter 1996 Form
941 would be made by paper coupon (FTD coupon) with the exception of
the deposit for the December 31 payroll, which would be made by EFT.
For purposes of consistency, this rule is being changed with respect to
the January 1, 1997, applicable effective date and thereafter to
provide that the first deposit required to be made by EFT is the first
deposit with respect to a deposit obligation incurred for a return
period beginning on or after the applicable effective date. Thus, under
the revised rule, the deposit with respect to the December 31 paydate
in the example would be made by FTD coupon rather than by EFT.
The current temporary regulations provide that a deposit by EFT is
deemed made (i) at the time a debit is made (the amount is withdrawn
from the taxpayer's account) if the Government's authorized financial
agent debits the taxpayer's account; or (ii) in all other cases, at the
time the funds are credited to the Treasury's general account. Comments
by the Federal Reserve Board, the Financial Management Service, and IRS
personnel recommended a clarification of that provision. Based on those
recommendations, the current temporary regulations are amended to
provide that a deposit by EFT is deemed made (i) at the time a debit is
made (the amount is withdrawn from the taxpayer's account and not
returned or reversed) if the Government's authorized agent originates a
debit entry which instructs the taxpayer's financial institution to
debit the taxpayer's account for a Federal tax payment; or (ii) in all
other cases (assuming the amount is not returned or reversed), either
at the time the funds are paid into the Treasury's general account at
the Federal Reserve Bank of New York or at the time the funds are
invested under Treasury's Tax and Loan program (see 31 CFR Part 203).
Investment occurs when the funds are credited by the Federal Reserve
Bank to the depositary institution's note balance.
These temporary regulations also define the term taxpayer. For
purposes of the EFT requirement, a taxpayer is any person required to
deposit federal taxes, including not only individuals, but also any
trust, estate, partnership, association, company or corporation. This
definition responds to numerous inquiries following the issuance of the
current temporary regulations.
Sections 31.6302-1T(h)(2) (describing the taxes required to be
deposited by EFT) and 31.6302-1T(h)(8) (describing when a deposit of
tax by EFT is deemed to be a payment of tax) have been revised solely
for purposes of clarity. No substantive change is being made to either
of the provisions.
These temporary regulations allow individual taxpayers to make
voluntary
[[Page 11549]]
payments of income tax by EFT, even though individual income tax is not
required to be deposited with a government depositary. The voluntary
EFT payments are to be made in accordance with instructions provided in
procedures to be prescribed by the Commissioner at a future date.
Special Analyses
It has been determined that this Treasury decision is not a
significant regulatory action as defined in EO 12866. Therefore, a
regulatory assessment is not required. It also has been determined that
section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5)
and the Regulatory Flexibility Act (5 U.S.C. chapter 6) do not apply to
these rules and, therefore, a Regulatory Flexibility Analysis is not
required. Pursuant to section 7805(f) of the Internal Revenue Code, a
copy of these temporary regulations will be submitted to the Chief
Counsel for Advocacy of the Small Business Administration for comment
on their impact on small business.
Drafting Information
The principal author of these regulations is Vincent G. Surabian,
Office of the Assistant Chief Counsel (Income Tax & Accounting), IRS.
However, other personnel from the IRS and Treasury Department
participated in their development.
List of Subjects
26 CFR Part 1
Income taxes, Reporting and recordkeeping requirements.
26 CFR Part 31
Employment taxes, Income taxes, Penalties, Pensions, Railroad
retirement, Reporting and recordkeeping requirements, Social security,
Unemployment compensation.
Adoption of Amendments to the Regulations
Accordingly, 26 CFR parts 1 and 31 are amended as follows:
PART 1--INCOME TAXES
Paragraph 1. The authority citation for part 1 is amended by adding
an entry in numerical order to read as follows:
Authority: 26 U.S.C. 7805 * * *
Section 1.6302-4T also issued under 26 U.S.C. 6302(a) and (c). * *
*
Par. 2. Section 1.6302-4T is added to read as follows:
Sec. 1.6302-4T Use of financial institutions in connection with
individual income taxes (temporary).
Voluntary payments by electronic funds transfer. An individual may
voluntarily remit by electronic funds transfer all payments of tax
imposed by subtitle A of the Code, including any payments of estimated
tax. Such payments must be made in accordance with procedures to be
prescribed by the Commissioner.
PART 31--EMPLOYMENT TAXES AND COLLECTION OF INCOME TAX AT SOURCE
Par. 3. The authority citation for part 31 continues to read in
part as follows:
Authority: 26 U.S.C. 7805 * * *
Par. 4. Section 31.6302-1T is amended as follows:
1. Paragraph (h)(1)(ii)(A) is redesignated as paragraph
(h)(1)(ii)(A)(1); the first sentence in newly designated paragraph
(h)(1)(ii)(A)(1) is removed, and three new sentences are added in its
place; and, in the last sentence of the newly designated paragraph, the
text preceding the table is revised.
2. Paragraph (h)(1)(ii)(A)(2) is added.
3. Paragraphs (h)(2), (h)(3), (h)(7) and (h)(8) are revised.
The additions and revisions read as follows:
Sec. 31.6302-1T Federal tax deposit rules for withheld income taxes
and taxes under the Federal Insurance Contributions Act (FICA)--
deposits required to be made by electronic funds transfer after
December 31, 1994 (temporary).
* * * * *
(h) * * * (1) * * *
(ii) Periods after December 31, 1994. (A)(1) Taxpayers whose
aggregate deposits of the taxes imposed by Chapters 21 (Federal
Insurance Contributions Act), 22 (Railroad Retirement Tax Act), and 24
(Collection of Income Tax at Source on Wages) of the Internal Revenue
Code during a 12-month determination period exceed the applicable
threshold amount are required to deposit all depository taxes described
in paragraph (h)(2) of this section by electronic funds transfer (as
defined in paragraph (h)(3) of this section) unless exempted under
paragraph (h)(4) of this section. If the applicable effective date is
January 1, 1995, or January 1, 1996, the requirement to deposit by
electronic funds transfer applies to all deposits required to be made
on and after the applicable effective date. If the applicable effective
date is January 1, 1997, or thereafter, the requirement to deposit by
electronic funds transfer applies to all deposits required to be made
with respect to deposit obligations incurred for return periods
beginning on and after the applicable effective date. * * * The
threshold amounts, determination periods and applicable effective dates
for purposes of this paragraph (h)(1)(ii)(A)(1) are as follows: * * *
(2) Unless exempted under paragraph (h)(4) of this section, a
taxpayer that does not deposit any of the taxes imposed by chapters 21,
22, and 24 during the applicable determination periods set forth in
paragraph (h)(1)(ii)(A)(1) of this section, but that does make deposits
of other depository taxes (as described in paragraph (h)(2) of this
section), is nevertheless subject to the requirement to deposit by
electronic funds transfer if the taxpayer's aggregate deposits of all
depository taxes exceed the threshold amount set forth in this
paragraph (h)(1)(ii)(A)(2) during an applicable 12-month determination
period. This requirement to deposit by electronic funds transfer
applies to all depository taxes due with respect to deposit obligations
incurred on and after the applicable effective date. The threshold
amount, determination periods, and applicable effective dates for
purposes of this paragraph (h)(1)(ii)(A)(2) are as follows:
------------------------------------------------------------------------
Determination Applicable
Threshold amount period effective date
------------------------------------------------------------------------
$50 thousand.................... 1-1-95 to 12-31-95 January 1, 1998.
$50 thousand.................... 1-1-96 to 12-31-96 January 1, 1998.
$20 thousand.................... 1-1-97 to 12-31-97 January 1, 1999.
------------------------------------------------------------------------
* * * * *
(2) Taxes required to be deposited by electronic funds transfer.
The requirement to deposit by electronic funds transfer under paragraph
(h)(1)(ii) of this section applies to all the taxes required to be
deposited under Secs. 1.6302-1, 1.6302-2, and 1.6302-3 of this chapter;
Secs. 31.6302-1, 31.6302-2, 31.6302-3, 31.6302-4, and 31.6302(c)-3; and
Sec. 40.6302(c)-1 of this chapter.
(3) Definitions--(i) Electronic funds transfer. An electronic funds
transfer is any transfer of depository taxes made in accordance with
Revenue Procedure 94-48 (1994-2 C.B. 694), (see Sec. 601.601(d)(2) of
this chapter), or in accordance with procedures subsequently prescribed
by the Commissioner.
(ii) Taxpayer. For purposes of this section, a taxpayer is any
person required to deposit federal taxes, including not only
individuals, but also
[[Page 11550]]
any trust, estate, partnership, association, company or corporation.
* * * * *
(7) Time deemed deposited. A deposit of taxes by electronic funds
transfer will be deemed made--
(i) At the time a debit is made (the amount is withdrawn from the
taxpayer's account and not returned or reversed) if the Government's
authorized agent originates a debit entry which instructs the
taxpayer's financial institution to debit the taxpayer's account for a
Federal tax payment; or
(ii) In all other cases (assuming the amount is not returned or
reversed), either at the time that the funds are paid into the
Treasury's general account at the Federal Reserve Bank of New York, or
at the time that the funds are invested under Treasury's Tax and Loan
program (see 31 CFR part 203). Investment occurs when the funds are
credited by the Federal Reserve Bank to the depository institution's
note balance.
(8) Time deemed paid. In general, an amount deposited under this
paragraph (h) will be considered to be a payment of tax on the last day
prescribed for filing the applicable return for the return period
(determined without regard to any extension of time for filing the
return) or, if later, at the time deemed deposited under paragraph
(h)(7) of this section. In the case of the taxes imposed by chapters 21
and 24 of the Internal Revenue Code, solely for purposes of section
6511 and the regulations thereunder (relating to the period of
limitation on credit or refund), if an amount is deposited prior to
April 15th of the calendar year immediately succeeding the calendar
year that includes the period for which the amount was deposited, the
amount will be considered paid on April 15th.
Margaret Milner Richardson,
Commissioner of Internal Revenue.
Approved: December 22, 1995.
Leslie Samuels,
Assistant Secretary of the Treasury.
[FR Doc. 96-6718 Filed 3-20-96; 8:45 am]
BILLING CODE 4830-01-P
Complete official Federal Register PDF
FR Doc. 96-6702 Suspicious Activity Report; Report of Catastrophic Act and Bank Secrecy Act Compliance
[Federal Register Volume 61, Number 56 (Thursday, March 21, 1996)]
[Rules and Regulations]
[Pages 11525-11527]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6702]
=======================================================================
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[[Page 11526]]
NATIONAL CREDIT UNION ADMINISTRATION
12 CFR Part 748
Suspicious Activity Report; Report of Catastrophic Act and Bank
Secrecy Act Compliance
AGENCY: National Credit Union Administration (NCUA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule changes existing references from ``Criminal
Referral Form'' to ``Suspicious Activity Report'' to conform the
language in the rule to the new Suspicious Activity Report (SAR) which
the financial regulatory agencies and the Department of the Treasury
have developed to replace the Criminal Referral Form (CRF). It also
reduces the required retention period for SARs' and any attachment
thereto from the current 10 years to 5 years. This final rule
streamlines reporting requirements by providing that credit unions file
a new SAR with NCUA and appropriate Federal law enforcement agencies by
sending the SARs to the Financial Crimes Enforcement Network of the
Department of the Treasury.
EFFECTIVE DATE: April 1, 1996.
ADDRESSES: National Credit Union Administration, 1775 Duke Street,
Alexandria, VA 22314-3428.
FOR FURTHER INFORMATION CONTACT: John K. Ianno or Jon Canerday, Office
of General Counsel, at the above address or telephone: (703) 518-6540.
SUPPLEMENTARY INFORMATION: An interagency Bank Fraud Working Group
(BFWG), consisting of representatives from many federal agencies,
including the federal financial institutions supervisory agencies (the
Agencies) \1\ and law enforcement agencies, was formed in 1984. The
BFWG addresses substantive issues, promotes cooperation among the
Agencies and federal and state law enforcement agencies, and improves
the federal government's response to white collar crime in financial
institutions. It is under the auspices of the BFWG that the revisions
to this regulation and the reporting requirements are being made.
\1\ The federal financial institutions supervisory agencies are
the Office of the Comptroller of the Currency, the Office of Thrift
Supervision, the Board of Governors of the Federal Reserve System,
the Federal Deposit Insurance Corporation, and the National Credit
Union Administration.
---------------------------------------------------------------------------
Suspicious Activity Report
The Agencies have been working on a project to improve the criminal
referral process, to reduce unnecessary reporting burdens on financial
institutions, and to eliminate confusion associated with the current
duplicative reporting of suspicious currency transactions in criminal
referral forms and currency transaction reports (CTRs).
Contemporaneously, Treasury analyzed the need to revise the procedures
used by financial institutions for reporting suspicious currency
transactions. As a result of these reviews, the Agencies and Treasury
approved the development of a new referral process that includes
suspicious currency transaction reporting.
To implement the reporting process, and to reduce unnecessary
burdens associated with these various reporting requirements, the
Agencies and the Department of the Treasury, through its Financial
Crimes Enforcement Network (FinCEN), developed a new form for reporting
known or suspected federal criminal law violations and suspicious
currency transactions. The new report is designated the Suspicious
Activity Report (SAR). The SAR is a simplified and shortened version of
its predecessors. The new referral process and the SAR reduce the
burden on credit unions for reporting known or suspected criminal
violations and suspicious currency transactions. The SAR increases the
reporting thresholds at which filing by credit unions becomes
mandatory. It also reduces from several to one the number of copies of
the form a credit union is required to file and eliminates the need to
file supporting documents with the form. Supporting documents must be
retained for five years instead of the ten years currently required.
These changes will reduce reporting burdens for credit unions.
Agencies anticipate that the new reporting system will be
operational April 1,1996. Once implemented, all referrals will be
housed in one central database. As with the CRF, complete instructions
for filing will continue to be on the SAR itself. The new referral
process will be detailed in a Letter to Credit Unions to be issued
contemporaneously with the new form. Until that time, credit unions
will continue to file reports in accordance with current requirements.
Rulemaking--5 U.S.C. 553
The NCUA finds that good cause exists to make this final rule
effective on April 1, 1996, less than 30 days after its publication
date. The rule implements technical changes to NCUA's existing rule
intended to conform its language to the adoption of the SAR, and
reduces the reporting and recordkeeping requirements of credit unions.
The adoption of this rule, effective April 1, 1996, will assure that
credit unions are able to comply with NCUA and Treasury reporting
requirements for suspicious activity by completing a single SAR and
filing it at one location.
Regulatory Flexibility Act
The Regulatory Flexibility Act requires the NCUA to prepare an
analysis to describe any significant economic impact any regulation may
have on a substantial number of small credit unions (primarily those
under $1 million in assets). The types of changes made by this rule
have no economic impact on credit unions. These are merely housekeeping
changes. Therefore, the NCUA Board has determined and certifies that,
under the authority granted in 5 U.S.C. 605(b), this final rule will
not have a significant economic impact on a substantial number of small
credit unions. Accordingly, the Board has determined that a Regulatory
Flexibility Analysis is not required.
Paperwork Reduction Act
This final rule makes technical changes to reflect the use of
Suspicious Activity Reports in place of Criminal Referral Forms and
shortens the records retention requirements for the form and related
documents. The Agencies and Treasury have submitted the SAR to OMB for
approval. The same amount of information will continue to be collected
under this rule although reporting will be simplified. The Rule does
not change any paperwork requirements.
Executive Order 12612
Executive Order 12612 requires NCUA to consider the effect of its
actions on state interests. This Rule applies to all federally insured
credit unions, simplifies the reporting process, and shortens the
document retention period from that contained in the present rule. The
NCUA Board has determined that this amendment is not likely to have any
direct effect on states, the relationship between states, or the
distribution of power and responsibilities among the various levels of
government because federally insured credit unions are currently
required to report crimes or suspected crimes which occur at their
offices.
List of Subjects in 12 CFR Part 748
Bank Secrecy Act, Credit unions, Crime, Currency, Reporting and
recordkeeping requirements, Security measures.
[[Page 11527]]
By the National Credit Union Administration Board on March 13,
1996.
Becky Baker,
Secretary of the Board.
Accordingly, NCUA amends 12 CFR chapter VII as follows:
PART 748--SUSPICIOUS ACTIVITY REPORT; REPORT OF CATASTROPHIC ACT
AND BANK SECRECY ACT COMPLIANCE
1. The heading of Part 748 is revised as set forth above.
2. The authority citation for Part 748 is revised to read as
follows:
Authority: 12 U.S.C. 1766(a), 1786(q); 31 U.S.C. 5311.
3. Section 748.1 (c) is revised to read as follows:
Sec. 748.1 Filing of reports.
* * * * *
(c) Suspicious Activity Report. (1) Each federally-insured credit
union will report any crime or suspected crime that occurs at its
office(s), utilizing NCUA Form 2362, Suspicious Activity Report (SAR),
within thirty calendar days after discovery. Each federally-insured
credit union must follow the instructions and reporting requirements
accompanying the SAR. Copies of the SAR may be obtained from the
appropriate NCUA Regional Office.
(2) Each federally-insured credit union shall maintain a copy of
any SAR that it files and the original of all attachments to the report
for a period of five years from the date of the report, unless the
credit union is informed in writing by the National Credit Union
Administration that the materials may be discarded sooner.
(3) Failure to file a SAR in accordance with the instructions
accompanying the report may subject the federally-insured credit union,
its officers, directors, agents or other institution-affiliated parties
to the assessment of civil money penalties or other administrative
actions.
(4) Filing of Suspicious Activity Reports will ensure that law
enforcement agencies and NCUA are promptly notified of actual or
suspected crimes. Information contained on SARs' will be entered into
an interagency database and will assist the federal government in
taking appropriate action.
[FR Doc. 96-6702 Filed 3-20-96; 8:45 am]
BILLING CODE 7535-01-P
Complete official Federal Register PDF
FR Doc. 96-6693 Rules of Practice
[Federal Register Volume 61, Number 56 (Thursday, March 21, 1996)]
[Rules and Regulations]
[Pages 11501-11504]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6693]
=======================================================================
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DEPARTMENT OF AGRICULTURE
Office of the Secretary
7 CFR Parts 1 and 47
Rules of Practice
AGENCY: Office of the Secretary of Agriculture, USDA.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: We are amending the Rules of Practice Governing Formal
Adjudicatory Proceedings Instituted by the Secretary Under Various
Statutes and the Rules of Practice Under the Perishable Agricultural
Commodities Act. This final rule provides that the adjudication, under
the Perishable Agricultural Commodities Act, of whether an individual
is ``responsibly connected'' with a particular commission merchant,
dealer, or broker will be joined with any related disciplinary
proceedings against the same commission merchant, dealer, or broker;
and that any adjudications of such status will be made by
Administrative Law Judges of the Department of Agriculture. USDA
believes that the procedures, by reducing the incidence of multiple
hearings, will facilitate speedy enforcement of the PACA and will
result in savings in employee time and travel expense. They will also
abolish the need for AMS to employ individuals to act as presiding
officers at responsibly connected proceedings. In 1994, presiding
officers were paid $26,866, a large portion of which would be saved
under the new regulation.
EFFECTIVE DATE: This final rule is effective April 22, 1996.
FOR FURTHER INFORMATION CONTACT:
Mary Hobbie, Assistant General Counsel, Trade Practices Division,
Office of the General Counsel, USDA, Room 2446 South Building, 14th
Street and Independence Avenue SW., Washington, DC 20250-1400 (202)
720-5293.
SUPPLEMENTARY INFORMATION:
Disciplinary Proceedings
Section 2 of the Perishable Agricultural Commodities Act (PACA), 7
U.S.C. 499b, proscribes as unfair various conduct on the part of
commission merchants, dealers, or brokers. The PACA provides redress
for such unlawful conduct in the form of suspension or revocation of
required licenses, and to a limited extent, civil penalties. The
Agricultural Marketing Service (AMS) of the U.S. Department of
Agriculture (USDA) enforces section 2 of the PACA, in part, through
[[Page 11502]]
administrative proceedings adjudicated by Administrative Law Judges.
While the PACA is the substantive law governing these
administrative disciplinary proceedings, The Rules of Practice
Governing Formal Adjudicatory Proceedings Instituted by the Secretary
Under Various Statutes (Rules of Practice), at 7 CFR 1.130-1.151
provide their procedural framework. Disciplinary proceedings are
instituted by filing a formal complaint with the Hearing Clerk. The
respondent is given the opportunity to file an answer to the complaint.
An Administrative Law Judge determines the issues and makes a decision
after opportunity for a full evidentiary hearing. Both parties may
request testimonial and documentary subpoenas. Any decision of the
Administrative Law Judge may be appealed to the Judicial Officer,
acting for the Secretary. An appeal from a decision of the Judicial
Officer may be taken to the appropriate U.S. Circuit Court of Appeals.
Proceedings To Determine Responsibly Connected Status
In addition to the proscription against unfair conduct embodied in
section 2, section 8(b) of the PACA (7 U.S.C. 499h(b)) forbids a
licensee from employing a person who is or has been ``responsibly
connected'' with a firm or person whose license has been revoked or is
under suspension by the Secretary, a person who has been found to have
committed any flagrant or repeated violation of section 2, or against
whom there is an unpaid reparation award. Such employment violations
subject the employing firm or individual to license suspension or
revocation. On November 15, 1995, the PACA Amendments of 1995 were
signed into law. One of those amendments, 7 U.S.C. 499h(e), provides
for the sanction of civil penalties in lieu of revocation or suspension
of license. The final rule reflects this amendment.
The PACA, in section 1(9) (7 U.S.C. 499a), defines ``responsibly
connected'' to mean ``affiliated or connected with a commission
merchant, dealer, or broker as (A) partner in a partnership, or (B)
officer, director, or holder of more than 10 per centum of the
outstanding stock of a corporation or association.''
Prior to 1975, the determination as to responsibly connected status
was made without the benefit of an oral hearing. After the decision of
the U.S. Court of Appeals for the District of Columbia in Quinn v.
Butz, 510 F.2d 743 (D.C. Cir. 1975), USDA instituted a procedure
governed by regulations published at 7 CFR 47.47-47.68 giving any
person finally determined by the PACA Branch of AMS to have been
responsibly connected to a firm subject to license revocation or
suspension the opportunity for an oral hearing before a presiding
officer appointed by AMS.
Currently, determinations as to whether an individual is
responsibly connected to a particular commission merchant, dealer, or
broker are made independently of any related disciplinary proceeding
against the commission merchant, dealer, or broker. Although typically
the two proceedings involve a common fact nucleus, currently no
mechanism exists for joining the procedures to achieve a more efficient
use of resources. In addition, in those cases where the individual
requests an oral hearing, responsibly connected proceedings frequently
are not concluded until the sanction in the related disciplinary
proceeding has been in effect for a year or more. Thus, although an
offending entity's license may have been revoked for as much as a year,
those individuals responsible for the violations may nevertheless
continue to be employed in the industry pending a determination of
responsibly connected status.
The rules currently governing determination of responsibly
connected status are set out at 7 CFR 47.47-47.68. In brief, these
rules provide for a preliminary determination by the Perishable
Agricultural Commodities Branch (PACA Branch), AMS, as to the status of
a person who is potentially responsibly connected, notification of the
preliminary determination, and an opportunity to respond and furnish
evidence to the Chief, PACA Branch. If the Chief, PACA Branch, sustains
the preliminary determination that the individual is responsibly
connected, the individual is then entitled to file a petition with the
Administrator of AMS for a review proceeding and final decision and to
request an oral hearing. If an oral hearing is requested, it is held
before a hearing officer appointed by the Administrator. Appeals of
adverse decisions of the Administrator lie to the U.S. Circuit Courts
of Appeal. In any event, no employment sanction begins to run until one
of the following three conditions set forth in section 8(b) of the PACA
exists: (1) the license of the firm with which the responsible
connection exists has been suspended or revoked; (2) there is a finding
that the firm has committed a flagrant or repeated violation of section
2 of the PACA; or (3) the firm has failed to pay a reparation award
under section 7 of the PACA.
Proposed Rule
On July 3, 1995, we proposed to modify the procedures for
determining responsibly connected status to accomplish two objectives:
(1) to consolidate, where the possibility exists, hearings in
disciplinary cases and related determinations of responsibly connected
status; and (2) to provide for review by an Administrative Law Judge of
the final determination of the Chief, PACA Branch, that an individual
is responsibly connected. Because the issues in both the disciplinary
proceedings and the responsibly connected hearings are based upon
identical or closely-related facts, and because the sanctions are
related, such a procedure eliminates the need for duplicative
litigation. The procedure we proposed also offers the advantage of
insuring that the sanctions against the licensee and the individuals
responsibly connected with it will commence concurrently.
Instead of filing a petition for review with the Administrator of
AMS, under the proposed procedures, the individual contesting the final
determination by the Chief, PACA Branch, that he or she is responsibly
connected would file a petition for review with the Office of the
Hearing Clerk, and the petition would be decided by an Administrative
Law Judge, after opportunity for oral hearing. Any hearing on a
responsibly connected determination will be consolidated with the
hearing, if any, on the disciplinary matters out of which the issue of
responsibly connected status arose. Likewise, all responsibly connected
hearings arising out of the relationships between more than one
individual and one particular PACA licensee would be consolidated.
To illustrate by hypothetical, assume that PACA Branch, AMS,
institutes a disciplinary proceeding against the Acme Produce Company,
of which the officers, directors, and shareholders of greater than 10
percent of the stock consist of Able, Jones, and Smith. Under the
proposal, all issues arising out of the disciplinary infractions
charged against Acme and all employment sanctions arising out of the
relationships between Acme on the one hand and Able, Jones, and Smith
on the other hand will be consolidated for hearing to the extent that
the employment sanctions originate from Acme's alleged disciplinary
violations. If for any reason there is no hearing on the issues
involving Acme, but Able, Jones, and Smith file petitions for review of
their status as responsibly connected individuals and request hearings,
those hearings will be consolidated in one proceeding before an
Administrative Law Judge.
To the extent that no disciplinary proceeding has been instituted
against Acme and the proposed employment
[[Page 11503]]
sanctions against Able, Jones and Smith arise under PACA section
8(b)(3) solely from Acme's failure to pay one or more reparation awards
under PACA section 7, all hearings on petitions for review will be
consolidated in one proceeding before an Administrative Law Judge. The
vehicle used to achieve this consolidation will be a mandatory joinder
under the Rules of Practice as amended.
USDA believes that the proposed procedures, by reducing the
incidence of multiple hearings, will facilitate speedy enforcement of
the PACA and will result in savings in employee time and travel
expense. They will also abolish the need for AMS to employ individuals
to act as presiding officers at responsibly connected proceedings. In
1994, presiding officers were paid $26,866, a large portion of which
would be saved under the proposed new regulation.
Comments on the Proposed Rule
We solicited comments concerning the proposal for a 30-day comment
period ending August 2, 1995. We received no comments from members of
the public. However, upon thorough review of the rule as proposed, we
have determined that several minor changes are appropriate in order to
better reflect the intent of the proposal.
We have amended 7 CFR 1.132, Definitions, to add the definition of
``petitioner.'' This obviates any confusion with respect to the
denomination of the parties to a proceeding pursuant to the PACA. The
person filing a petition for review shall be called ``petitioner.''
In Sec. 1.133(b)(2), we have clarified in the final version that
the new procedures apply whenever there is an issue of responsibly
connected status where, for whatever reason, a licensee is potentially
subject to license suspension or revocation. Thus, the new procedures
apply whether the potential license suspension or revocation stems from
alleged violation of 7 U.S.C. 499b (unfair practices), 7 U.S.C. 499h(b)
(employment violations), or as provided in 7 U.S.C. 499g(d) (failing to
pay reparation awards).
We are also modifying language in the final version of 7 CFR 1.136
to clarify that the Chief, PACA Branch, must file the record with the
hearing clerk 10 days after service of the petition for review upon the
Chief, PACA Branch.
Conclusion
Based on the rationale in the proposed rule and this rulemaking
document, we are adopting the provisions of the proposal as a final
rule except as previously discussed in this rulemaking document and
except for minor editorial changes for clarity.
Executive Order 12866 and Regulatory Flexibility Act
The Secretary has determined that this final rule would not have a
significant economic impact on a substantial number of small entities.
While small entities will continue to be subject to identical
substantive requirements under the revised procedures, the new
procedures will not result in any new burdens. The new rule merely
changes the form of the hearing utilized to determine responsibly
connected status.
This rule has been determined not significant for purposes of
Executive Order 12866 and, therefore, has not been reviewed by the
Office of Management and Budget.
Executive Order 12778
This rule has been reviewed under Executive Order 12778, Civil
Justice Reform. (1) All State and local laws and regulations that are
in conflict with this rule will be preempted; (2) no retroactive effect
will be given to this rule; and (3) administrative proceedings will not
be required before parties may file suit in court challenging this
rule.
Paperwork Reduction Act
The Paperwork Reduction Act of 1980 does not apply to this rule
since the rule does not seek answers to identical questions or impose
reporting or recordkeeping requirements on 10 or more persons, and the
information collected is not used for general statistical purposes.
List of Subjects
7 CFR Part 1
Administrative practice and procedure, Agriculture, Antitrust,
Blind, Claims, Concessions, Cooperatives, Equal access to justice,
Federal buildings and facilities, Freedom of information, Lawyers,
Privacy.
7 CFR Part 47
Administrative practice and procedure, Agricultural commodities,
Brokers.
For the reasons set out in the preamble 7 CFR part 1 and 7 CFR
chapter I are amended as follows:
PART 1--ADMINISTRATIVE REGULATIONS
1. The authority citation for part 1, Subpart H, continues to read
as follows:
Authority: 5 U.S.C. 301; 7 U.S.C. 61, 87e, 149, 150gg, 162, 163,
164, 228, 268, 499o, 608c(14), 1592, 1624(b), 2151, 2621, 2714,
2908, 3812, 4610, 4815, 4910; 15 U.S.C. 1828; 16 U.S.C. 620d,
1540(f), 3373; 21 U.S.C. 104, 11, 117, 120, 122, 127, 134e, 134f,
135a, 154, 463(b), 621, 1043; 43 U.S.C. 1740; 7 CFR 2.35, 2.41.
Sec. 1.131 [Amended]
2. Section 1.131 is amended as follows:
a. In paragraph (a), in the listing, by adding ``1(9),''
immediately after the entry ``Perishable Agricultural Commodities Act,
1930, sections'' and immediately before ``3(c)''.
3. Section 1.132 is amended by adding, in alphabetical order, a new
definition to read as follows:
Sec. 1.132 Definitions.
* * * * *
Petitioner means an individual who has filed a petition for review
of a determination that the individual is responsibly connected to a
licensee within the meaning of 7 U.S.C. 499a(9).
* * * * *
4. Section 1.133 is amended as follows:
a. In paragraph (b), by revising the paragraph heading; and
b. In paragraph (b), by redesignating paragraph (b)(2) as paragraph
(b)(3), and by adding a new paragraph (b)(2), to read as follows:
Sec. 1.133 Institution of proceedings.
* * * * *
(b) Filing of complaint or petition for review. * * * (2) Any
person determined by the Chief, PACA Branch, pursuant to 7 CFR 47.47-
47.68 to have been responsibly connected within the meaning of 7 U.S.C.
499a(9) to a licensee who is subject or potentially subject to license
suspension or revocation as the result of an alleged violation of 7
U.S.C. 499b or 499h(b) or as provided in 7 U.S.C. 499g(d) shall be
entitled to institute a proceeding under this section and to have
determined the facts with respect to such responsibly connected status
by filing with the Hearing Clerk a petition for review of such
determination.
* * * * *
5. Section 1.135 is amended as follows:
a. By revising the section heading;
b. By designating the text of current Sec. 1.135 as paragraph (a),
and by adding a heading to newly designated paragraph (a); and
c. By adding paragraph (b), to read as follows:
Sec. 1.135 Contents of complaint or petition for review.
(a) Complaint. * * *
(b) Petition for review. The Petition for Review of responsibly
connected status
[[Page 11504]]
shall describe briefly and clearly the determination sought to be
reviewed and shall include a brief statement of the factual and legal
matters that the petitioner believes warrant the reversal of the
determination.
6. Section 1.136 is amended by adding a sentence at the end of
paragraph (a) to read as follows:
Sec. 1.136 Answer.
(a) * * * As response to a petition for review of responsibly
connected status, the Chief, PACA Branch, shall within ten days after
being served by the Hearing Clerk with a petition for review, file with
the Hearing Clerk a certified copy of the agency record upon which the
Chief, PACA Branch, made the determination that the individual was
responsibly connected to a licensee under the Perishable Agricultural
Commodities Act, 7 U.S.C. 499a et seq., and such agency record shall
become part of the record in the review proceeding.
* * * * *
7. Section 1.137 is revised to read as follows:
Sec. 1.137 Amendment of complaint, petition for review, or answer;
joinder of related matters.
(a) Amendment. At any time prior to the filing of a motion for a
hearing, the complaint, petition for review, answer, or response to
petition for review may be amended. Thereafter, such an amendment may
be made with consent of the parties, or as authorized by the Judge upon
a showing of good cause.
(b) Joinder. The Judge shall consolidate for hearing with any
proceeding alleging a violation of the Perishable Agricultural
Commodities Act, 7 U.S.C. 499a et seq., any petitions for review of
determination of status by the Chief, PACA Branch, that individuals are
responsibly connected, within the meaning of 7 U.S.C. 499a(9), to the
licensee during the period of the alleged violations. In any case in
which there is no pending proceeding alleging a violation of the
Perishable Agricultural Commodities Act, 7 U.S.C. 499a et seq., but
there have been filed more than one petition for review of
determination of responsible connection to the same licensee, such
petitions for review shall be consolidated for hearing.
8. Section 1.141 is amended as follows:
a. By adding a new sentence after the first sentence of paragraph
(a);
b. By designating the text of paragraph (e) following the heading
as paragraph (e)(1), and by adding a new paragraph (e)(2), to read as
follows:
Sec. 1.141 Procedure for hearing.
(a) * * * A petition for review shall be deemed a request for a
hearing.* * *
* * * * *
(e) Failure to appear. (1) * * *
(2) If the petitioner in the case of a Petition for Review of a
determination of responsibly connected status within the meaning of 7
U.S.C. 499a(9), having been duly notified, fails to appear at the
hearing without good cause, such petitioner shall be deemed to have
waived his right to a hearing and to have voluntarily withdrawn his
petition for review.
* * * * *
PART 47--RULES OF PRACTICE UNDER THE PERISHABLE AGRICULTURAL
COMMODITIES ACT
9. The authority citation for part 47 continues to read as follows:
Authority: 7 U.S.C. 499o; 7 CFR 2.17(a)(8)(xiii), 2.50
(a)(8)(xiii).
Sec. 47.47 Additional definitions.
10. Section 47.47 is revised to read as follows:
Sec. 47.47 Additional definitions.
The following definitions, which are in addition to those in
Sec. 47.2 (a) through (h), shall be applicable to proceedings under
Secs. 47.47 through 47.49.
(a) Chief means the Chief of the PACA Branch, or any officer or
employee to whom authority has heretofore lawfully been delegated or to
whom authority may hereafter lawfully be delegated by the Chief, to act
in such capacity.
(b) PACA Branch means that PACA Branch of the Division.
(c) Petition for review means the document filed requesting review
by an Administrative Law Judge of the Chief's determination.
Sec. 47.49 [Amended]
11. Section 47.49 is amended as follows:
a. In paragraphs (a), (b), and (c), the words ``Regulatory Branch''
are removed each time they occur and the words ``PACA Branch'' are
added in their place.
b. Paragraph (d) is amended by removing all words appearing after
``may file'' and adding in their place the words ``with the Hearing
Clerk, pursuant to Sec. 1.130-1.151 of this title, a petition for
review of the determination.''.
c. Paragraphs (e) and (f) are removed.
Sec. 47.50 through 47.68 [Removed]
12. Sections 47.50 through 47.68 are removed.
Done in Washington, DC, this 29th day of February 1996.
Dan Glickman,
Secretary of Agriculture.
[FR Doc. 96-6693 Filed 3-20-96; 8:45 am]
BILLING CODE 3410-01-M
Complete official Federal Register PDF
FR Doc. 96-6667 Delegations of Authority and Organization; Issuance of Notices Relating to Debarment; Correction
[Federal Register Volume 61, Number 56 (Thursday, March 21, 1996)]
[Rules and Regulations]
[Pages 11544-11545]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6667]
=======================================================================
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Food and Drug Administration
21 CFR Part 5
Delegations of Authority and Organization; Issuance of Notices
Relating to Debarment; Correction
AGENCY: Food and Drug Administration, HHS.
ACTION: Final rule; correction.
-----------------------------------------------------------------------
SUMMARY: The Food and Drug Administration (FDA) is correcting a final
rule that appeared in the Federal Register of March 4, 1995 (61 FR
8214). The document published with an incorrect section number
designation. This document corrects that error.
EFFECTIVE DATE: March 4, 1996.
FOR FURTHER INFORMATION CONTACT: LaJuana D. Caldwell, Office of Policy
(HF-27), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD
20857, 301-443-2994.
SUPPLEMENTARY INFORMATION: In the Federal Register of March 4, 1996 (61
FR 8214), FDA published a final rule that contained an error in the
designation of a section. Section 5.99 was incorrectly designated as
Sec. 5.98. This document corrects that error.
[[Page 11545]]
In FR Doc. 96-4914, appearing on page 8214 in the Federal Register
of Monday, March 4, 1996, the following corrections are made:
1. On page 8214, under ``SUPPLEMENTARY INFORMATION,'' in lines 14
and 29 ``Sec. 5.98'' is corrected to read ``Sec. 5.99''.
Sec. 5.31 [Corrected]
In Sec. 5.31 Petitions under part 10, the following corrections are
made:
2. On page 8215, in paragraphs (f)(1)(vi), (f)(2)(x), and (f)(8),
``5.98'' is corrected to read ``5.99''.
Sec. 5.98 [Redesignated]
3. Sec. 5.98 Issuance of notices relating to proposals and orders
for debarment of an application to terminate debarment the section
number is redesignated as Sec. 5.98.
Dated: March 14, 1996.
William K. Hubbard,
Associate Commissioner for Policy Coordination.
[FR Doc. 96-6667 Filed 3-20-96; 8:45 am]
BILLING CODE 4160-01-F
Complete official Federal Register PDF
FR Doc. 96-6647 Groundfish of the Gulf of Alaska; Pacific Cod for Processing by the Inshore Component
[Federal Register Volume 61, Number 56 (Thursday, March 21, 1996)]
[Rules and Regulations]
[Pages 11589-11590]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6647]
=======================================================================
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 672
[Docket No. 960129018-6018-01; I.D. 030196B]
Groundfish of the Gulf of Alaska; Pacific Cod for Processing by
the Inshore Component
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Correction to a closure.
-----------------------------------------------------------------------
SUMMARY: This document contains a correction to a closure (I.D.
030196B) which was published Wednesday, March 6, 1996 (61 FR 8888).
EFFECTIVE DATE: 12 noon, Alaska local time (A.l.t.), March 3, 1996,
until 12 midnight, A.l.t., December 31, 1996.
FOR FURTHER INFORMATION CONTACT: Andrew N. Smoker, 907-586-7228.
SUPPLEMENTARY INFORMATION:
Background
The closure that is the subject of this correction prohibited
directed fishing for Pacific cod by vessels catching Pacific cod for
processing by the inshore component in the Western Regulatory Area.
Need for Correction
As published, the closure contained an incorrect date.
Correction of Publication
Accordingly, the publication on March 6, 1996, of the closure (I.D.
030196B), which was the subject of FR Doc. 96-5228, is corrected as
follows:
On page 8888, in the second column, the EFFECTIVE DATE is corrected
to read as follows:
EFFECTIVE DATE: 12 noon, Alaska local time (A.l.t.), March 3, 1996,
until 12 midnight, A.l.t., December 31, 1996.
Authority: 16 U.S.C. 1801 et seq.
[[Page 11590]]
Dated: March 13, 1996.
Richard W. Surdi,
Acting Director, Office of Fisheries Conservation and Management,
National Marine Fisheries Service.
[FR Doc. 96-6647 Filed 3-20-96; 8:45 am]
BILLING CODE 3510-22-F
Complete official Federal Register PDF
FR Doc. 96-6645 Amendment to Meats, Prepared Meats, and Meat Products (Grading, Certification and Standards)
[Federal Register Volume 61, Number 56 (Thursday, March 21, 1996)]
[Rules and Regulations]
[Pages 11504-11514]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6645]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 54
[No. LS-95-006]
Amendment to Meats, Prepared Meats, and Meat Products (Grading,
Certification and Standards)
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Agricultural Marketing Service (AMS) is amending the
Meats, Prepared Meats, and Meat Products (Grading, Certification and
Standards) by adding definitions, changing certificate forms, removing
two outdated official stamp imprints, and adding three new official
stamp imprints. Program changes made to better serve our customers and
improve efficiency resulted in development of the above new items, and
caused the disuse of the old stamps and certificates.
EFFECTIVE DATE: April 22, 1996.
FOR FURTHER INFORMATION CONTACT: Larry R. Meadows, Chief, Meat Grading
and Certification Branch, (202) 720-1246.
SUPPLEMENTARY INFORMATION:
Executive Orders 12866 and 12778 and the Regulatory Flexibility Act
This rule has been determined to be not significant for purposes of
Executive Order 12866 and therefore has not been reviewed by OMB.
This rule has been reviewed under Executive Order 12778, Civil
Justice Reform. It is not intended to have retroactive effect. This
rule would not preempt any State or local laws, regulations, or
policies unless they present an irreconcilable conflict with this rule.
There are no administrative procedures which must be exhausted prior to
any judicial challenge to this rule or the application of its
provisions.
Pursuant to requirements set forth in the Regulatory Flexibility
Act (RFA) (Pub. L. 96-354, 5 U.S.C. 601 et seq.), the Administrator of
the AMS has considered the economic impact of this action on small
entities.
The purpose of the RFA is to fit regulatory actions to the scale of
the
[[Page 11505]]
businesses subject to such actions in order that small businesses will
not be unduly or disproportionately burdened.
After implementation of the rule the unit cost for providing meat
grading and certification services will remain at approximately $.0009
per pound. Therefore, implementation of the changes will not
significantly affect the cost of providing meat grading and
certification services to the meat industry. Accordingly, the
Administrator of AMS has determined that this rule will not have a
significant economic impact on a substantial number of small entities
as defined by the RFA.
Paperwork Reduction Act
The action replaces two forms with new editions. However, the new
forms will be completed by AMS graders will not be a burdon on the
public. Therefore, under the provisions of the Paperwork Reduction Act
the forms will not be reviewed by OMB.
Background
The Secretary of Agriculture is authorized under the Agricultural
Marketing Act (AMA) of 1946, as amended, 7 U.S.C. 1621 et seq., to
provide voluntary Federal meat grading and acceptance services to
facilitate the orderly marketing of meat and meat products and to
enable consumers to obtain the quality of meat they desire. As program
activities or industry practices change, the regulations governing such
activities require updating. Since July 1990, when Title 7, Subtitle B,
Chapter I, Subchapter C, Part 54, Sections 54.1-54.26 was last amended,
the program revised official certificates and other documents. The two
new certificates, which allow up to five program employees to charge an
applicant on one document, significantly reduce preparation time,
certificate usage, and documents sent to users of the service. As a
result of the changes to the official certificates, new representations
are included in the rule.
The program will also add a single stamp and a series of three new
official stamps, which were developed to prevent repetitive motion
injuries to our personnel. The program conducted a study of all aspects
of the work, and consulted experts in ergonomics prior to developing
the new stamps. The new stamps will allow meat graders to apply
significantly fewer stamp imprints while ensuring complete grade
identification within the slaughter facility. The new stamps will be
used in conjunction with grade labeled bags ensuring full grade
identification throughout the marketing chain. The new stamps will also
reduce the amount of meat branding ink placed on carcasses. Meat
branding ink on calf, veal, lamb, and in processed beef products can
produce discolored spots, which detract from appearances. The new
certificates and stamps are now in use.
The program will remove the following two outdated, no longer in
use, official stamps: ``U.S.D.A. PRE-IDENT FEDERAL PURCHASE,'' and
``U.S.D.A. EXAMINED AS CERTIFIED.''
The program substitutes ``Certification service'' for ``Acceptance
service''--in all locations--because not all work performed results in
accepted products, and adds the newly-developed Quality Systems
Certification and Contract Verification Programs, which are not
currently defined under the regulations and require explanation. The
Quality Systems Certification Program (QSCP) evaluates processes to
assure that vendors produce acceptable products without evaluating end
products on a fulltime basis. The Contract Verification Program
evaluates contractually purchased products, and provides purchasers an
evaluation of how accurately a contractor is adhering to contractual
requirements. Both programs will be available on a single-use
consultation-fee basis or on a retainer-fee basis for long term usage.
In conjunction with the new QSCP service, the program developed a new
identification mark. The program provides for the new mark to be used
on advertising materials but not directly on retail packaging.
Comments
On October 13, 1995, the Agency published in the Federal Register
(60FR198) a proposed rule to amend the regulations adding new stamp
imprints, services, and certificate forms, and removing no longer in
use stamps and certificate forms which were not being used. This
proposed rule was published allowing the opportunity for public comment
as a means for providing full participation in the rulemaking process.
Comments on this proposed rule were requested by November 12, 1995.
During the 30-day comment period, the Agency received comments from one
meat industry group.
Discussion of Comments
The commenter expressed concern about stamp imprint legibility of
the New stamp because of rough exterior surface fat. The Agency
realizes that changing industry practices have resulted in a less
desirable surface to apply a stamp imprint. However, after testing the
new stamp on hundreds of thousands of carcasses, the Agency determined
the new stamp applies a satisfactory imprint on surfaces that are
sufficiently dry.
The commenter expressed concern over the requirement of stamp users
to institute the use of grade labeled bags, and the associated costs
that must be passed to the consumer [use of the new stamp and grade
labeled bags is restricted to facilities with in-house fabrication
capability]. The high cost of implementing use of grade labeled bags
was a major concern of other companies, but all are now marketing
competitive priced products. The Agency shares concern about rising
cost burdening consumers; the use of the new stamp will no longer
require a full roller brand, and therefore, one less employment
position in the grading process. This stamp will also significantly
reduce meat branding ink use, and its associated discoloration problems
in processed products. Reduced salaries and benefits, combined with
lessened meat branding usage cost, will offset any cost of grade
labeled bags. The Agency anticipates other cost savings through
undiscovered new operational efficiencies. An additional benefit of
using grade labeled bags is obtained through positive grade identity
through the marketing chain. However, when intact carcasses are
shipped, they will continue to be fully roller branded.
List of Subjects in 7 CFR Part 54
Food grades and standards, Food labeling, Meat and meat products.
For the reasons set forth in the preamble, 7 CFR Part 54 is amended
as follows:
PART 54--MEATS, PREPARED MEATS, AND MEAT PRODUCTS (GRADING,
CERTIFICATION, AND STANDARDS)
1. The authority citation for Part 54 continues to read as follows:
Authority: 7 U.S.C. 1622-1624.
2. In Sec. 54.1, the definition ``Acceptance service'' is removed
and four new definitions are added to read as follows:
Sec. 54.1 Meaning of words.
* * * * *
Certification service. The service established and conducted under
the regulations for the determination and certification or other
identification of the compliance of products with specifications.
* * * * *
Contract verification service. A program allowing institutions or
other
[[Page 11506]]
large purchasers of commodity products to have those products compared
to contractual requirements.
* * * * *
Institutional Meat Purchase Specifications. Specifications
describing various meat cuts, meat products, and meat food products
derived from all livestock species, commonly abbreviated ``IMPS'', and
intended for use by any meat procuring activity. For labeling purposes,
only product certified by the Meat Grading and Certification Branch may
contain the letters ``IMPS'' on the product label.
* * * * *
Quality Systems Certification Program. A multifaceted program
allowing all aspects of the livestock industry to have quality systems,
or processes within quality systems, verified by AMS agent(s) to
effectuate use of such quality systems to meet contractual
requirements, or as a marketing tool.
* * * * *
3. In Sec. 54.4, the words ``Acceptance service'' are removed in
the third sentence and the words ``Certification service'' are added in
their place, and a new sentence is added at the end of the section to
read as follows:
Sec. 54.4 Kind of service.
* * * The Contract Verification Service, under the regulations,
provides wholesale buyers of noncertified commodity products a method
of determining whether procurement(s) meet contractually specified
requirements. The Quality Systems Certification Program, under the
regulations, provides meatpackers, processors, producers, or other
businesses in the livestock and meat trade the ability to have special
processes or documented quality management systems verified.
4. In Sec. 54.14, paragraphs (a) and (b) and figures 1 and 2 are
revised to read as follows:
Sec. 54.14 Official certificates.
(a) Agricultural Products Certificate Form LS-5-3 (Figure 1) is the
official certificate for products under the regulations. The official
grader shall prepare, sign, and issue an Agricultural Products
Certificate Form LS-5-3 covering products for which that grader
determined final specification compliance. Where weight or count is
verified, the grader shall initial in the block titled ``Weights and
Total Count Verified.''
(b) Applicant Charges Certificate Form LS-5-5 (Figure 2) will be
used to reduce paperwork for applicants assigned multiple graders.
Assigned graders will complete one Form LS-5-5. Each grader will enter
their code letters and signature in the appropriate location(s) to
indicate certificate completion.
BILLING CODE 3410-02-P
[[Page 11507]]
[GRAPHIC] [TIFF OMITTED] TR21MR96.005
[[Page 11508]]
[GRAPHIC] [TIFF OMITTED] TR21MR96.006
3410-02-C
[[Page 11509]]
* * * * *
5. Sec. 54.17 is amended by:
(1) revising the text in paragraph (b),
(2) revising paragraph (c),
(3) revising paragraph (d),
(4) revising paragraph (e),
(5) revising paragraph (f),
(6) revising paragraph (g), and
(7) adding new paragraphs (h), (i), (j), and (k) to read as
follows:
Sec. 54.17 Official identifications.
* * * * *
(b) A shield enclosing the letters ``USDA'' as shown in Figure 1
with the appropriate quality grade designation ``Prime,'' ``Choice,''
``Select,'' ``Good,'' ``Standard,'' ``Commercial,'' ``Utility,''
``Cutter,'' ``Canner,'' or ``Cull,'' as provided in the official United
States Standards for Grades of Beef, Veal and Calf, Lamb, Yearling
Mutton, and Mutton Carcasses and accompanied by the class designation
``Bullock,'' ``Veal,'' ``Calf,'' ``Lamb,'' ``Yearling Mutton,'' or
``Mutton,'' constitutes a form of official identification under the
regulations to show the quality grade, and where necessary the class,
undersaid standards, of steer, heifer, and cow beef, veal, calf, lamb,
yearling mutton and mutton. The code identification letters of the
grader performing the service will appear intermittently outside the
shield.
* * * * *
(c) A shield enclosing the letters ``USDA'' and the words ``Yield
Grade,'' as in Figure 1, with the appropriate yield grade designation
``1,'' ``2,'' ``3'', ``4,'' or ``5'' as provided in the Official United
States Standards for Grades of Fresh Beef Carcasses and the Official
United States Standards for Grades of Lamb, Yearling Mutton, and Mutton
Carcasses constitutes a form of official identification under the
regulations to show the yield grade under said standards. When yield
graded, bull and bullock carcasses will be identified with the class
designation ``Bull'' and ``Bullock,'' respectively. The code
identification letters of the grader performing the service will appear
outside the shield.
BILLING CODE 3410-02-M
[GRAPHIC] [TIFF OMITTED] TR21MR96.007
BILLING CODE 3410-02-C
(d) Under the regulations, for carcass grade identification
purposes only, a shield enclosing the letters ``USDA'' with the
appropriate yield grade designation number of ``1,'' ``2,'' ``3,''
``4,'' or ``5'' between the ``US'' and ``DA'', with the appropriate
quality grade designation of ``Prime'', ``Choice,'' or ``Select,''
below both as shown in Figure 1. The code identification letters for
the grader performing the service will appear outside underneath the
shield.
BILLING CODE 3410-02-M
[[Page 11510]]
[GRAPHIC] [TIFF OMITTED] TR21MR96.008
BILLING CODE 3410-02-C
(e) Under the regulations, for yield grade identification purposes
only, a shield enclosing the letters ``US'' on one side and ``DA'' on
the other, with the appropriate Yield Grade designation number ``1,''
``2,'' ``3,'' ``4,'' or ``5'' as shown in Figure 1. The code
identification letters for the grader performing the service will
appear outside underneath the shield.
BILLING CODE 3410-02-M
[GRAPHIC] [TIFF OMITTED] TR21MR96.009
[[Page 11511]]
BILLING CODE 3410-02-C
(f) Under the regulations, for quality grade identification only, a
shield enclosing the letters ``US'' on one side and ``DA'' on the other
with the appropriate Quality Grade designation of ``Prime,''
``Choice,'' or ``Select'' as shown in Figure 1. The code identification
letters for the grader performing the service will appear outside
underneath the shield.
BILLING CODE 3410-02-M
[GRAPHIC] [TIFF OMITTED] TR21MR96.010
BILLING CODE 3410-02-C
(g) The letters ``USDA'' with the appropriate grade designation
``1,'' ``2,'' ``3,'' ``4,'' ``Utility,'' or ``Cull'' enclosed in a
shield as shown in Figure 1, as provided in the Official United States
Standards for Grades of Pork Carcasses, constitutes a form of official
identification under the regulations to show the grade under said
standards of barrow, gilt, and sow pork carcasses.
BILLING CODE 3410-02-M
[GRAPHIC] [TIFF OMITTED] TR21MR96.011
BILLING CODE 3410-02-C
(h) The following constitute forms of official identification under
the regulations to show compliance of products:
BILLING CODE 3410-02-M
[[Page 11512]]
[GRAPHIC] [TIFF OMITTED] TR21MR96.012
BILLING CODE 3410-02-C
Note: The letters ``RWX'', and ``UF'' shown in figures 1, and 2
are examples, respectively, of the code identification letters of
the official grader performing the service.
(i) The following, as shown in Figure 1, constitutes official
identification to show quality system certification:
BILLING CODE 3410-02-M
[[Page 11513]]
[GRAPHIC] [TIFF OMITTED] TR21MR96.013
BILLING CODE 3410-02-C
(j) A shield-shaped ear tag enclosing the letters ``USDA'', the
words ``Carcass Data Service,'' as shown below (Figure 1), and a serial
number constitutes a form of official identification under the
regulations for livestock and carcasses. Other information may appear
on the backside of the ear tag at the option of the purchasers.
BILLING CODE 3410-02-M
[GRAPHIC] [TIFF OMITTED] TR21MR96.014
BILLING CODE 3410-02-C
(k)(1) One device used by USDA graders is a rectangular, serially
numbered, orange tag on which a shield encloses the letters ``USDA''
and the words ``Product Control'' as shown in Figure 1, constitutes a
form of official identification under the regulations for meat and meat
products.
BILLING CODE 3410-02-M
[[Page 11514]]
[GRAPHIC] [TIFF OMITTED] TR21MR96.015
BILLING CODE 3410-02-C
(2) Official graders and supervisors of grading may use ``Product
Control'' tags or other methods and devices as approved by the
Administrator for the identification and control of meat and meat
products which are not in compliance with the regulations or are held
pending the results of an examination. Any such meat or meat product so
identified shall not be used, moved, or altered in any manner; nor
shall official control identification be removed, without the express
permission of an authorized representative of the USDA.
Dated: February 21, 1996.
Lon Hatamiya,
Administrator.
[FR Doc. 96-6645 Filed 3-20-96; 8:45 am]
BILLING CODE 3410-02-M
Complete official Federal Register PDF
FR Doc. 96-6603 Approval and Promulgation of Implementation Plans; Illinois
[Federal Register Volume 61, Number 56 (Thursday, March 21, 1996)]
[Rules and Regulations]
[Pages 11550-11552]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6603]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[IL140-1-7283a, IL141-1-7284a; FRL-5441-5]
Approval and Promulgation of Implementation Plans; Illinois
AGENCY: Environmental Protection Agency.
ACTION: Direct final rule.
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SUMMARY: The United States Environmental Protection Agency (USEPA)
approves, through direct final procedure, Illinois' November 14, 1995
request to incorporate an exemption for acetone from the definitions of
Organic Material and Organic Materials, Petroleum Liquid, and Volatile
Organic Matter (VOM) or Volatile Organic Compounds (VOC) contained in
the Illinois State Implementation Plan (SIP), and thereby from
regulation as an ozone precursor. The USEPA also approves Illinois'
November 15, 1995 request to revise the definition of VOM or VOC
contained in the Illinois SIP to incorporate an exemption for
parachlorobenzotrifluoride and cyclic, branched or linear completely-
methylated siloxanes from the definition of VOM or VOC and thereby,
from regulation as ozone precursors. These requested SIP revisions were
made in response to, and consistent with, USEPA's action to add these
chemical compounds to the list of chemicals that are exempted from the
definition of VOC. In the proposed rules section of this Federal
Register, USEPA is proposing approval of and soliciting public comment
on these requested SIP revisions. If adverse comments are received on
this action, USEPA will withdraw this final rule and address the
comments received in response to this action in a final rule on the
related proposed rule which is being published in the proposed rules
section of this Federal Register. A second public comment period will
not be held. Parties interested in commenting on this action should do
so at this time.
DATES: This action is effective May 20, 1996 unless adverse or comments
not previously addressed by the State or USEPA are received by April
22, 1996. If the effective date of this action is delayed due to
adverse comments, timely notice will be published in the Federal
Register.
ADDRESSES: Written comments should be sent to: J. Elmer Bortzer, Chief,
Regulation Development Section, Air Programs Branch (AR-18J), U.S.
Environmental Protection Agency, 77 West Jackson Boulevard, Chicago,
Illinois, 60604.
Copies of the Illinois submittal are available for public review
during normal business hours, between 8:00 a.m. and 4:30 p.m., at the
above address.
A copy of this SIP revision is also available for inspection at:
Office of Air and Radiation (OAR), Docket and Information Center (Air
Docket 6102), Room 1500, U.S. Environmental Protection Agency, 401 M
Street, S.W., Washington, D.C. 20460.
FOR FURTHER INFORMATION CONTACT: Randolph O. Cano, Regulation
[[Page 11551]]
Development Section, Regulation Development Air Programs Branch (AR-
18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard,
Chicago, Illinois, 60604. Telephone: (312) 886-6036.
SUPPLEMENTARY INFORMATION: On June 16, 1995 (60 FR 31633), USEPA
amended the definition of VOC to exclude acetone from the definition of
VOC and thereby from control as an ozone precursor. Similarly on
October 5, 1994 (59 FR 50693), USEPA amended the definition of VOC to
add parachlorobenzotrifluoride and the class of compounds known as
cyclic, branched or linear completely-methylated siloxanes to the list
of chemicals excluded from the definition of VOC and thereby from
control as ozone precursors. These exclusions were based on scientific
evidence that these chemical compounds have negligible photochemical
reactivity and a negligible contribution to tropospheric ozone
formation.
The USEPA is approving the amendments to Title 35: Environmental
Protection of the Illinois Administrative Code (35IAC), Subtitle B: Air
Pollution, Chapter I: Pollution Control Board, Part 211 as received on
November 14th and November 15th 1995 as requested SIP revisions.
Final Rulemaking Action
For the reasons stated above, USEPA is approving the State's
request to incorporate these revised definitions into the Illinois SIP.
The specific rule and rule amendments being approved are as follows:
Section 211.4250 Organic Material and Organic Materials, Section
211.4260 Organic Solvent, Section 211.4610 Petroleum Liquid, Section
211.7150 Volatile Organic Material (VOM) or Volatile Organic Compounds
(VOC)
The USEPA is publishing this action without prior proposal because
USEPA views this action as a noncontroversial revision and anticipates
no adverse comments. However, the rulemaking will not be deemed final
if timely unaddressed adverse or critical comments are filed. The
``direct final'' approval shall be effective on May 20, 1996, unless
USEPA receives such adverse or critical comments by April 22, 1996. The
USEPA is now soliciting public comments on this action. Any parties
interested in commenting on this action should do so at this time. In
the proposed rules section of this Federal Register, USEPA is
publishing a separate document which constitutes a ``proposed
approval'' of the requested SIP revision. If warranted by comments
adverse to or critical of the approval discussed above, which have not
been addressed by the State or USEPA, USEPA will publish a Federal
Register document which withdraws this final action. The USEPA will
then address public comments received in a subsequent rulemaking
document based on the proposed approval.
Under sections 202, 203 and 205 of the Unfunded Mandates Reform Act
of 1995 (Unfunded Mandates Act), signed into law on March 22, 1995,
USEPA must undertake various actions in association with proposed or
final rules that include a Federal mandate that may result in estimated
costs of $100 million or more to the private sector, or to a State,
local and/or tribal government(s) in the aggregate. The USEPA must also
develop a plan with regard to small governments that would be
significantly or uniquely affected by the rule.
This rule imposes no additional Federal requirements. Rather it
removes some existing Federal requirements which are no longer needed.
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., USEPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. 5 U.S.C. 603 and 604.
Alternatively, USEPA may certify that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small not-for-profit
enterprises, and government entities with jurisdiction over populations
of less than 50,000.
The SIP approvals under section 110 and subchapter I, part D, of
the Act do not create any new requirements, but simply approve
requirements that the State is already imposing. Therefore, because the
Federal SIP approval does not impose any new requirements, I certify
that it does not have a significant impact on small entities. Moreover,
due to the nature of the Federal-State relationship under the Act,
preparation of a regulatory flexibility analysis would constitute
Federal inquiry into the economic reasonableness of State action. The
Act forbids the USEPA to base its actions concerning SIPs on such
grounds. Union Electric Co. v. U.S. E.P.A., 427 U.S. 246, 256-66
(1976).
Under section 307(b)(1)of the Act, petitions for judicial review of
this action must be filed in the United States Court of Appeals for the
appropriate circuit by May 20, 1996. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this rule for the purpose of judicial review nor does
it extend the time within which a petition for judicial review may be
filed, and shall not postpone the effectiveness of such rule or action.
This action may not be challenged later in proceedings to enforce its
requirements (see section 307(b)(2)).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Hydrocarbons,
Incorporation by reference, Ozone, and Volatile organic compounds.
Dated: March 1, 1996.
Valdas V. Adamkus,
Regional Administrator.
Part 52, chapter I, title 40 of the Code of Federal Regulations is
amended as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart O--Illinois
2. Section 52.720 is amended by adding paragraphs (c)(125) and
(126) to read as follows:
Sec. 52.720 Identification of plan.
(c) * * *
(125) On November 14, 1995 the State submitted requested revisions
to the Illinois State Implementation Plan in the form of revisions to
the definitions of Organic Material and Organic Materials, Organic
Solvent, Petroleum Liquid and Volatile Organic Material (VOM) or
Volatile Organic Compound (VOC) intended to exempt acetone from
regulation as a VOC.
(i) Incorporation by reference. Illinois Administrative Code, Title
35: Environmental Protection, Subtitle B: Air Pollution, Chapter I:
Pollution Control Board, Subchapter c: Emission Standards and
Limitations for Stationary Sources, Part 211: Definitions and General
Provisions, Subpart B: Definitions, Section 211.4250 Organic Material
and Organic Materials, Section 211.4260 Organic Solvent, Section
211.4610 Petroleum Liquid, Section 211.7150 Volatile Organic Material
(VOM) or Volatile Organic Compounds (VOC). Amended at 19 Ill. Reg.
15176, effective October 19, 1995.
(126) On November 15, 1995 the State submitted a requested revision
to the Illinois State Implementation Plan in the form of a revision to
the definition Volatile Organic Material (VOM) or Volatile Organic
Compound (VOC) intended to exempt parachlorobenzotrifluoride and
cyclic, branched or linear completely methylated siloxanes from the
definition of VOM or VOC and thereby, from regulation as a VOC.
[[Page 11552]]
(i) Incorporation by reference. Illinois Administrative Code, Title
35: Environmental Protection, Subtitle B: Air Pollution, Chapter I:
Pollution Control Board, Subchapter c: Emission Standards and
Limitations for Stationary Sources, Part 211: Definitions and General
Provisions, Subpart B: Definitions, Section 211.7150 Volatile Organic
Material (VOM) or Volatile Organic Compounds (VOC). Amended at 19 Ill.
Reg. 11066, effective July 12, 1995.
[FR Doc. 96-6603 Filed 3-20-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-6600 Information Form and Post-Effective Reporting Requirements for Agreements Among Ocean Common Carriers Subject to the Shipping Act of 1984
[Federal Register Volume 61, Number 56 (Thursday, March 21, 1996)]
[Rules and Regulations]
[Pages 11564-11584]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6600]
=======================================================================
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FEDERAL MARITIME COMMISSION
46 CFR Part 572
[Docket No. 94-31]
Information Form and Post-Effective Reporting Requirements for
Agreements Among Ocean Common Carriers Subject to the Shipping Act of
1984
AGENCY: Federal Maritime Commission.
ACTION: Final rule.
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SUMMARY: The Federal Maritime Commission is amending its regulations
governing the information submission requirements for agreements among
ocean common carriers subject to the Shipping Act of 1984. Certain
kinds of newly filed agreements are required to be accompanied by a new
information form, which requires the submission of specific data on the
agreement member lines' cargo carryings, revenue results and port
service patterns before they entered into the agreement. In addition,
the member lines of certain kinds of effective agreements will be
required to submit reports on their operations on a regular and ongoing
basis, which will reflect the lines' cargo carryings, revenue results
and port service patterns after they entered into the agreement. The
application of this rule to a particular agreement depends primarily on
whether the agreement authorizes its carrier members to engage in
certain activities, and secondarily on the carrier members' combined
market share. An agreement that does not authorize any of the
activities specified by the rule must still be filed with the
Commission, unless it qualifies for one of the Commission's filing
exemptions, but does not have any information form or reporting
obligations. The intent of this rule is to provide the Commission with
improved information on the impact of concerted carrier practices on
the foreign commerce of the United States, and to facilitate the
processing and monitoring of ocean carrier agreements under the
standards of the Shipping Act of 1984.
EFFECTIVE DATE: April 19, 1996, except for 46 CFR 572.701(a) and 46 CFR
572.702, which are stayed until further notice.
FOR FURTHER INFORMATION CONTACT:
Robert D. Bourgoin, General Counsel, Federal Maritime Commission, 800
North Capitol Street, NW., Washington, DC 20573-0001, (202) 523-5740
[[Page 11565]]
Austin L. Schmitt, Director, Bureau of Economics and Agreement
Analysis, Federal Maritime Commission, 800 North Capitol Street, NW.,
Washington, DC 20573-0001, (202) 523-5787
SUPPLEMENTARY INFORMATION:
A. Background
The jurisdiction of the Federal Maritime Commission (``FMC'' or
``Commission'') over ocean carrier agreements in the foreign commerce
of the United States extends under section 4(a) of the Shipping Act of
1984 (``1984 Act'') to all agreements to:
(1) Discuss, fix, or regulate transportation rates, including
through rates, cargo space accommodations, and other conditions of
service;
(2) Pool or apportion traffic, revenues, earnings, or losses;
(3) Allot ports or restrict or otherwise regulate the number and
character of sailings between ports;
(4) Limit or regulate the volume or character of cargo or
passenger traffic to be carried;
(5) Engage in exclusive, preferential, or cooperative working
arrangements * * *;
(6) Control, regulate, or prevent competition in international
ocean transportation; and
(7) Regulate or prohibit * * * use of service contracts.
46 U.S.C. app. 1703(a).
The reforms in 1984 to the Shipping Act were intended in large part
to facilitate the swift effectiveness, with immunity from the antitrust
laws, of such agreements. Section 15 of the former Shipping Act, 1916
(``1916 Act''), had required carriers to secure Commission approval for
any agreement governing rates, conditions of service, or similar
matters, before such an agreement could become effective. Under
standards set forth in section 15, the Commission was permitted to
disapprove, cancel, or modify any agreement which it found to be
unjustly discriminatory or unfair, or to operate to the detriment of
the commerce of the United States, or to be contrary to the public
interest, or to be in violation of the 1916 Act. 46 U.S.C. 814 (1982).
The Commission, with Supreme Court approval, had taken the position
that agreements to set rates, pool revenues, restrict capacity, or to
engage in other activities that normally would be contrary to the
antitrust laws were presumed to be contrary to the public interest, and
would be approved only if they were shown to be ``required be a serious
transportation need, necessary to secure important public benefits or
in furtherance of a valid regulatory purpose of the Shipping Act.'' FMC
v. Svenska Amerika Linien, 390 U.S. 238, 243 (1968). The burden of
making this showing was placed upon the carrier proponents of an
agreement, on the ground that information regarding the operation and
probable future impact of an agreement ``[a]lmost uniformly * * * is in
the hands of those seeking approval * * * and it is incumbent upon
those in possession of such information to come forward with it.''
Mediterranean Pools Investigation, 9 F.M.C. 264, 290 (1966). Under
these procedures, the implementation of agreements had often been
delayed for considerable amounts of time, especially if formal protests
were made. See Marine Space Enclosures, Inc. v. FMC, 420 F.2d 577 (D.C.
Cir. 1969) (requiring that the Commission hold a hearing where a
protest raising substantial issues had been filed). In many cases,
protests were filed by other carriers, who effectively delayed or
blocked the approval of their competitors' business plans.
The 1984 Act did away with the requirement that an agreement had to
be approved by the Commission before it could lawfully operate.
Instead, agreements now generally become effective forty-five days
after they are filed. As a partial counterbalance to this liberalized
approach, conference agreements \1\ are required by section 5(b) of the
Act, 46 U.S.C. app. 1704(b), to include a number of procompetitive
provisions, and the Commission may reject a conference agreement that
does not meet this standard. Especially noteworthy is the requirement
that all conference agreements must clearly state that any member line
may take ``independent action'' (``IA'') on any rate or service item
required to be filed in a tariff with the Commission; this empowers any
member line to set an individual rate below (or above) the conference
rate, without having to obtain approval of the rate from the other
member lines. The conference is then required to publish the IA rate in
its conference tariff upon no more than ten days' notice.
\1\ Under the 1984 Act, a conference is an association of ocean
common carriers that engage in concerted activities and utilize a
common tariff. Section 3(7), 46 U.S.C. app. 1702(7).
---------------------------------------------------------------------------
The Commission may also prescribe the ``form and manner'' in which
agreements of any kind must be filed, and may reject an improperly
drafted agreement. In addition, the Commission may request information
and documents in connection with a newly filed agreement and, if its
demand is not ``substantially'' met, may seek a delay in the
agreement's effective date or other relief from the United States
District Court for the District of Columbia.\2\
\2\ Sections 6 (d) and (i) of the 1984 Act, 46 U.S.C. app. 1705
(d) and (i).
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The 1984 Act sets forth an extensive list of prohibited acts,
barring many anticompetitive practices that previously had been
outlawed under the broad ``public interest'' standard of section 15 of
the 1916 Act. For example, section 10(b)(6) of the 1984 Act, 46 U.S.C.
app. 1709(b)(6), carries forward section 15's prohibition of agreements
that are unfair or unjustly discriminatory between shippers or ports.
Sections 10(c) (1)-(3) and (5) of the 1984 Act, id. app. 1709(c) (1)-
(3) and (5), prohibit boycotts, restrictions on technological
innovations, predatory practices and the denial of reasonable freight
forwarded compensation, all of which the Commission previously had
found violated section 15.\3\
\3\ See S. Rep. No. 3, 98th Cong., 1st Sess. 35-37 (1984).
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If the Commission has indications that an agreement may be
operating in violation of the 1984 Act, it may institute an
investigation of the agreement and its member lines. In addition, the
Commission may ask any U.S. district court to temporarily enjoin the
agreement while the investigation proceeds.\4\ If the court should find
that continued operation of the agreement would be inequitable, it can
issue an order barring further effectiveness of the agreement until ten
days after issuance of the Commission's final decision. If the
Commission should find in its final decision that violations of the
1984 Act in fact occurred, it may ``disapprove, cancel or modify'' the
agreement,\5\ which would in effect supersede the existing court
injunction. In addition, the Commission may assess fines against the
agreement member lines.\6\
\4\ Section 11(h)(1) of the 1984 Act, 46 U.S.C. app. 1710(h)(1).
\5\ Section 11(c) of the 1984 Act, 46 U.S.C. app. 1710(c).
\6\ Section 13(a) of the 1984 Act, 46 U.S.C. app. 1712(a).
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The other procedure provided by the 1984 Act by which the
Commission can prevent an agreement from going into effect, or prevent
further operation of an existing agreement, is set forth in section
6(g). This provision authorizes the Commission to seek an injunction in
the U.S. District Court for the District of Columbia against an
agreement that is ``likely, by a reduction in competition, to produce
an unreasonable reduction in transportation service or an unreasonable
increase in transportation cost.'' 46 U.S.C. app. 1705(g). A proceeding
under section 6(g) does not involve questions of discrimination or
[[Page 11566]]
unfairness, which are covered by the section 10 prohibited acts, nor
does it involve questions of statutory violations or fines against the
carriers. Section 6(g) was meant to provide a way of dealing with
``unusual or severe cases not addressed by other prohibitions in the
Act,'' \7\ and the only remedy available under the provision is an
injunction against the agreement itself.
\7\ H.R. Rep. No. 600, 98th Cong., 2d Sess. 37 (1984).
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B. The Commission's Agreement Program
The Commission's procedures for evaluating and monitoring carrier
agreements reflect the responsibilities and limitations imposed by the
1984 Act. When an agreement is first filed, its provisions are
immediately reviewed to ensure that they contain the 1984 Act's
mandatory provisions and do not authorize activities barred by the
prohibited acts sections. In the ordinary case, that is a one-time
process and does not entail ongoing periodic review.
An agreement's effect on shippers, ports and maritime commerce is a
different matter. An agreement of significant anticompetitive
dimensions--for example, a large market share combined with authority
to fix rates and control service contracts--poses potential dangers of
unjust discrimination and unreasonable rate increases or service
reductions both when it is first filed and for as long as it remains in
effect. Thus, under the new regulatory framework established by the
1984 Act, the role of the Commission as a monitoring and surveillance
agency was greatly enhanced. In discharging that responsibility, the
Commission cannot merely examine an agreement's provisions; rather, it
must continually gather, review and interpret data on the impact of the
agreement on U.S. foreign commerce. As for the source of such
information, the 1984 Act removed the burden of proof in agreement
investigations from the carriers, but did not alter the accuracy of the
Commission's 1966 observation in Mediterranean Pools Investigation that
the primary source for information on the operation of an agreement is
the carriers that are the parties to the agreement.
C. The Proposed Rule
On December 5, 1994, the Commission published a Notice of Proposed
Rulemaking (``NPR'' or ``proposed rule'') (59 FR 62372), which proposed
significant amendments to the Commission's regulations governing the
submission of information by ocean carriers about their agreements. The
Commission explained that, while the existing regulations had served
their purpose adequately, the increasingly comprehensive and complex
agreements filed in recent years indicated a need for updating and
augmentation. The Commission pointed out that agreements with multi-
country geographic ranges are now common, new devices and arrangements
for dealing with excess capacity have appeared, rate discussion
agreements between conference and nonconference lines have become more
prevalent, and networks of vessel and space charter agreements covering
a multitude of trade lanes have been established.
In response to these industry developments, the Commission proposed
new regulations designed to elicit more detailed and specific
information on ocean carrier agreements in a more structured and
comprehensive manner. The proposed rule formulated a sliding scale of
information demands for three classes of agreements that authorized
certain specific activities, ``Class A,'' ``Class B'' and ``Class C.''
An agreement that did not authorize any of the specified activities
would still be required by law to be filed with the Commission, unless
it qualified for one of the existing exemptions established by the
Commission,\8\ but would not have any information obligations.
\8\ See 46 CFR 572.302-11.
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1. Classification of Agreements: The Six Class A/B Activities
Under the proposed rule, Class A and Class B agreements permitted
the same kinds of activities; the difference between them was market
share. An agreement would be a Class A or a Class B agreement if it
authorized any one of the following six activities:
Ratemaking. This specifically included not only
traditional conference agreements, under which a group of lines agree
upon fixed rates and practices and are bound to them under a common
tariff, but also less formal agreements which authorize discussion and
agreement upon rates on a ``non-binding'' basis. The Commission noted
that the latter types of agreements have become increasingly common,
and that their presence in a trade raises serious concerns about the
true level of competition since they can involve discussions and
agreements about rates between non-conference lines or between a
conference and its non-conference competitors.
Under the proposed rule, the ``ratemaking'' criterion would be met
if the agreement authorizes its carrier members to (1) agree on a
binding basis under a common tariff, (2) agree on a non-binding basis,
or (3) discuss any kind of basic linehaul rate. On the other hand, the
proposed rule specifically excluded those agreements that are limited
to practices that affect the manner in which rates are collected from
shippers--for example, credit conditions and the handling of delinquent
accounts--but do not concern the level of the rates themselves, and
those agreements that concern charges or payments to persons other than
shippers, e.g., inland divisions of through rates, brokerage, freight
forwarder compensation, employment of neutral bodies for self-policing
purposes, or development of cargo information systems.
Discussion or exchange of vessel-operating cost data. The
Commission has received a number of agreements that do not authorize
rate discussions or agreements of any kind, but do authorize discussion
of or exchange of cost data among the member carriers. The most
significant costs for ocean common carriers are vessel-operating costs,
which the proposed rule defined to include wages of officers and crew,
fringe benefits, consumable stores, supplies and equipment, maintenance
and repair, insurance, vessel fuel, and charter hire. The Commission
stated that it believed that agreements to discuss and exchange
information about these costs should be subjected to the same degree of
scrutiny as their close cousins, rate discussion agreements. On the
other hand, the proposed rule did not apply the ``costs'' criterion to
discussion of other types of expense that are less important for
setting rates. In order to make this distinction effective, the
proposed rule required agreements seeking to authorize discussion or
exchange of cost data to specify whether that authority includes any of
the vessel-operating costs.
Joint service. The Commission observed that, while the
introduction of a joint service into a trade by outside lines may
increase the level of competition and the range of services available
for shippers, there can be negative effects on competition and service
if the joint service is formed by lines that up to that point had been
competing in the trade, and especially if the new entity would have
substantial market power.
``Capacity management'' or ``capacity regulation.'' This
relatively new device for dealing with overtonnaging had appeared in
two major agreements, the Trans-Atlantic Conference Agreement
(``TACA'') and
[[Page 11567]]
the Transpacific Stabilization Agreement (``TSA''). It limited the
availability of vessel space to shippers, but did not reduce the real
capacity of the carriers.
Regulation or discussion of service contracts. Most
agreements engaging in this activity are conference agreements, which
would already be covered by the ``ratemaking'' criterion. However,
agreements among non-conference lines may include authority to confer
and to reach ``non-binding'' agreements on service contract terms.
Cargo or revenue pooling. The Commission explained that
such agreements are severely anticompetitive by nature and must be
closely regulated.
2. Classification of Agreements: The Importance of Market Share
The proposed rule required any agreement that authorized one or
more of the six Class A/B activities to be accompanied, upon its
initial filing, with an information form showing its parties' market
shares both for the entire agreement and in each of the sub-trades
within the overall scope of the agreement, during the most recent
calendar quarter for which complete data are available. ``Sub-trade''
was defined as all liner movements between each U.S. port range
(Atlantic, Gulf and Pacific) and each foreign country within the
overall scope of the agreement. For example, an agreement with an
overall scope of U.S. Pacific Coast to the Far East would have sub-
trades of U.S. Pacific Coast to Japan, U.S. Pacific Coast to Taiwan,
and so forth.
An agreement that authorized at least one of the six Class A/B
activities and whose parties held combined market shares of 50 percent
or more in half or more of its sub-trades would be classified as a
Class A agreement under the proposed rule.\9\ The parties to such an
agreement would be required to submit extensive historical data on the
initial information form and, if the agreement went into effect, to
submit detailed quarterly reports on their operations under the
agreement. An agreement that authorized at least one of the six
activities, but whose parties did not hold market shares of 50 percent
or more in at least half of its sub-trades, would be classified as a
Class B agreement. It would file the same information form as a Class A
agreement but, if it went into effect, would have significantly lighter
reporting obligations. Under the proposed rule, classification of an
agreement as Class A would not be permanent; the agreement's ongoing
reporting obligations would include market share data, and at the
beginning of each calendar year, the parties' sub-trade market shares
during the third calendar quarter (July-September) of the previous
calendar year would determine whether it would remain under Class A
reporting obligations for the upcoming year.
\9\ For example, if an agreement with ten sub-trades reported
that it had market shares of 50 percent or more in five or more sub-
trades, it would be a Class A agreement. By using that methodology
rather than average market share, the proposed rule sought to focus
on those agreements with significant market power spread through at
least half of their total geographic scope.
---------------------------------------------------------------------------
Market share is an important measure of an agreement's potential
for abuse of economic power and unreasonable or discriminatory price
and service practices. In the NPR, the Commission explained that the
break point of 50 percent in at least half of the sub-trades was chosen
``in the belief that an agreement that is a relatively minor presence
in a majority of its sub-trades--that is, a `Class B' agreement--is
unlikely to be able to impose unreasonable or unfair rates or practices
regardless of what it authorizes its parties to do, and does not
require extensive gathering of information about its operation.'' 59 FR
at 62377. The Commission also pointed out, however, that an important
feature of the proposed rule was that the market share calculation for
a rate discussion agreement or a ``non-binding'' rate agreement between
conference and non-conference lines would add the market shares held by
the non-conference lines to those held by the conference lines for
purposes of determining whether the agreement should be classified as
Class A or Class B.
The new focus on sub-trades resulted from the increasing number of
agreements with multi-coast or even multi-continent geographic ranges.
The Commission pointed out in the NPR that in some of the more
geographically fragmented parts of the world, such as the Far East and
the South Pacific, individual countries can constitute separate and
cloistered markets, and that agreements that serve a comparatively
unified landmass, such as Europe, might still implement practices that
differ from area to area within the general market. The Commission
concluded that these factors argued for information-gathering systems
that acquire data relevant to an agreement's sub-trades, rather than
only the market defined by the agreement's total scope. Accordingly,
the information (besides market share) sought by the proposed rule for
Class A agreements was, for the most part, concerned with the
agreement's sub-trades.
3. Class A Agreements Under the Proposed Rule
The proposed rule's informtion form for a Class A agreement began
by requiring a listing of all effective agreements covering all or part
of the geographic scope of the proposed agreement, whose parties
include one or more of the parties to the proposed agreement. This
provision was designed to ensure that the Commission has accurate
information regarding the recent trend toward networks of agreements
connected by common parties. Next, the form required an identification
of all Class A/B activities that the agreement seeks to authorize.
After obtaining the market share data discussed above, the
information form then inquired into the recent agreement-wide cargo
carryings and revenue results of each of the carriers that would now
join together into the agreement. Otherwise, the information form
focused primarily on the state of affairs in each of the agreement's
sub-trades before the agreement was filed. This would be done by
reference to the major commodities carried by the carriers to and from
the United States in each sub-trade.
Using the actual commodities potentially affected by a new
agreement as the chief focus of analysis was a vital component of the
proposed rule. The proposed information form, while continuing to
require the submission of aggregate data in certain areas, mainly would
require each party to the new agreement to identify the commodities
that have made up the bulk of its cargo in each sub-trade and then to
submit data on the revenues it has realized from each of those
commodities. This information was intended to give the Commission a
reasonably thorough summary of pre-agreement activity in each sub-trade
covered by the new agreement, as well as in the agreement's entire
geographic scope. If the agreement should go into effect, that summary
would serve as a baseline for analyzing the corresponding information
later obtained through the post-implementation reports. In the NPR, the
Commission stated:
In sum, the proposed rule both changes the orientation of
agreement review to that of the cargo being affected, and also calls
for more refined and differentiated data from the carriers. These
reforms should provide the Commission with improved and more useful
indicators of the potential or actual impact of an agreement on the
needs of shippers for good service at reasonable rates, and in
particular whether the agreement might cause or has caused unfair or
unreasonable conditions for specific commodities, classes of
shippers or geographic areas.
[[Page 11568]]
59 FR at 62377.
Under the reporting requirements for effective Class A Agreements,
the parties' market shares would continue to be tracked by sub-trade.
In addition, the reporting requirements would mirror the information
form in order to provide ``before and after'' depictions of the trade,
with some additional provisions that can apply only to an effective
agreement. For example, a new section entitled ``Independent Rate
Actions'' was proposed for Class A conference agreements, which would
require the submission of information designed to allow the Commission
to monitor the level of independent rate activity (or the lack of such
activity) on specific commodities.
4. Class B Agreements Under the Proposed Rule
As already stated, the proposed rule prescribed the same
information form for Class B agreements as for Class A agreements. This
would establish the same pre-agreement baseline. However, assuming the
Class B agreement was allowed to go into effect, the reporting
requirements would be limited to quarterly updates on market share,
agreement-wide (as opposed to sub-trade) cargo and revenue results,
membership in other agreements, and changes in port service.
5. Class C Agreements Under the Proposed Rule
An agreement that authorized service rationalization, such as space
charters, coordination of service frequency and port rotations, and
coordination of the size and capacity of vessels to be deployed by the
parties, but did not authorize ``capacity management'' (or any of the
other Class A/B activities), would be a Class C agreement under the
proposed rule. The Commission noted that, although such agreements have
rarely presented serious regulatory concerns, some oversight is
necessitated by section 6(g)'s admonition against agreements that cause
unreasonable reductions in service. For a Class C agreement, the
proposed rule provided for information form and reporting requirements
regarding membership in other agreements and service at the ports
within the agreement's overall scope.
6. Other Amendments
The proposed rule contained a number of other amendments to the
Commission's existing agreement regulations. For the most part, these
amendments were not substantive and were designed to make the existing
regulations consistent with the proposed rule, to eliminate certain
outdated regulations, or to reorganize certain subparts of the existing
regulations.
7. Carrier Costs and Profits
The Commission's obligation under section 6(g) to police against
agreements that may cause, or have caused, unreasonable increases in
transportation rates, and the 1984 Act's purpose of providing an
efficient and economic transportation system in the ocean commerce of
the United States, 46 U.S.C. app. 1701(2), raised the question whether
these policies can or should be pursued by monitoring the costs or
profits of the carriers to a particular agreement. The proposed rule
did not include provisions on carrier costs or profits, but the
Commission solicited comments on the lawfulness and feasibility of such
provisions. Commenters were asked to address how such provisions might
be structured, particularly given the proposed rule's focus on
individual country sub-trades; whether costs or profits under a
particular agreement can be measured accurately, particularly if the
carriers to the agreement also have operations elsewhere; and whether
arguments that an agreement is necessary to control costs or to improve
profits are better explored in the context of an investigation of that
agreement, rather than made the subject of regulations applicable to
broad classes of agreements.
D. Summary of the Comments
The comments on the Proposed Rule were all filed by carriers or
carrier organizations. No shippers, shipper organizations, government
agencies or other maritime interests responded to the NPR. Comments
were filed by:
--TACA, the Asia North America Eastbound Rate Agreement, the
Transpacific Westbound Rate Agreement, the Inter-American Freight
Conference,and twenty-one other conferences and discussion agreements,
filing jointly (referred to below as the ``25 Agreements'');
--the Council of European & Japanese National Shipowners' Associations
(``CENSA'');
--TSA, which adopted the comments of the 25 Agreements and filed
additional comments on the special topic of capacity management
programs;
--the Trans-Pacific Freight Conference of Japan, the Japan-Atlantic and
Gulf Freight Conference, and their member lines (``Japan
Conferences'');
--the India, Pakistan, Bangladesh, Ceylon and Burma Outward Freight
Conference and the Calcutta, East Coast of India and Bangladesh/U.S.A.
Conference (the ``Associated India/Pakistan Conferences''); and
--Hanjin Shipping Co., Ltd.
1. Hanjin
Hanjin's comments attacked the lawfulness of the proposed rule. The
carrier made no counterproposals and suggested no alternatives, but
merely urged that the rule be withdrawn.
Hanjin's central objection was to the proposed rule's model of
generalized regulations that prescribe information requirements for
classes of agreements; the gist of its position was that the Commission
is restricted, as a matter of law, to requiring information only on an
``as needed'' basis for individual agreements. Hanjin contended that,
when an agreement is first filed, the FMC's only authority is to ensure
that the agreement complies with the content requirements of section 5
of the 1984 Act and does not transgress the standards of section 6(g),
and that to discharge those functions the FMC does not need the
information required under the proposed rule. Much of that information,
Hanjin argued, would be overly burdensome to produce and is not
sufficiently tied to the scope, size, or other specifics of a
particular agreement. Similarly, with respect to effective agreements,
Hanjin submitted that the Commission should act only through targeted
investigations where information demands can be properly focused and
limited.
Discussion Hanjin's arguments are incorrect. The Commission has
ample statutory authority to promulgate general regulations governing
the initial evaluation and subsequent surveillance of carrier
agreements. Section 5(a) of the 1984 Act states specifically that
``[t]he Commission may by regulation prescribe the form and manner in
which an agreement shall be filed and the additional information and
documents necessary to evaluate the agreement.'' 46 U.S.C. app. 1704(a)
(emphases added). In addition, the Commission has broad rulemaking
authority under section 17(a) of the Act, id. app. 1716(a), and there
is nothing in the language or legislative history of the Act that bars
the application of that authority to carrier agreements. Hanjin does
not acknowledge that the Commission has had in effect since 1984
extensive rulemaking-generated regulations governing the filing and
monitoring of agreements, including regulations prescribing the current
information form. It should also be pointed out that the Commission
could obtain the same information set forth in the proposed
[[Page 11569]]
rule--both the new information form data and the correlated monitoring
report data--by issuing a demand for a ``periodical or special report''
under section 15 of the 1984 Act, 46 U.S.C. app. 1714(a). However, the
Commission believes that, over the long run, regular and universally
applicable information gathering is less burdensome on the industry
than ad hoc section 15 orders or investigative subpoenas, because it
enhances predictable and consistent regulation and the information
obtained can persuade the agency that more formal and costly
investigations are not necessary.
2. Other Comments
Of the other commenters, none challenged the proposed rule's
central thesis that changes to the FMC's information-gathering
processes were required by the changes in the nature, scope and
complexity of carrier agreements since 1984. The Japan Conferences, for
example, said that they ``* * * do not oppose the concept embodied in
the Proposed Rule which would enable the Commission to become better
informed relative to newly filed agreement activity and their post-
effective implementation.'' (Comments at 3). None of these commenters
objected to the intensified treatment under the rule of rate discussion
agreements, ``non-binding'' rate agreements, and agreements to discuss
or exchange vessel-operating cost data. None argued against the rule's
proposal to distinguish between Class A and Class B agreements on the
basis of market share, and there were no objections to the rule's
proposed demarcation of a 50 percent market share. None argued against
the rule's intention to monitor the impact of effective agreements
according to the revenue realized from leading commodities. None took
issue with the rule's proposal to require by regulation--rather than by
negotiated consent--the submission of reports at regular intervals for
effective agreements, although issues were raised regarding the
frequency of such reports.
E. Specific Issues
The following analysis of the specific issues raised by the
comments is organized by subject matter. In general, the issues raised
by the comments apply both to the proposed rule's revised information
form and to the rule's new post-effective monitoring reports. Where an
issue raised special concerns for either the information form or for
the monitoring reports, that is indicated in the text.
1. Class A/B Activities
(a) Duplicative Filings
The members of the Japan Conferences are also members of three
inter-conference ``policy agreements'' (FMC Nos. 206-010838, 206-
008600, and 206-010707) that contain authority to discuss and agree on
rate and service contract issues of common interest. The Conferences
did not object to the fact that these agreements would be Class A/B
agreements under the proposed rule, but argued that they should not be
required to submit the same information for both the basic conference
agreements and the inter-conference agreements:
These supplementary agreements involve the identical Conference
parties, the same TPFCJ and JAGFC trades and subtrades, the same
vessels and services, and the same Conference rates and service
contracts. . . . [T]he Proposed Rule should be revised to permit the
information which is required to be submitted by the relevant
conference to qualify as the supplementary arrangement's economic
information submission.
(Comments at 6).
Discussion It is unnecessary to amend the rule to deal with this
concern. Complaints from the members of an agreement that they are
being asked to submit information that duplicates information submitted
in connection with another agreement can and will be handled on a case-
by-case basis, under the rule's waiver procedure.
(b) Non-binding Rate Authority That Can Only Be Implemented Through
Other Agreements
A related issue was also raised by the Japan Conference lines,
which stated that they ``also operate under space charter and sailing
agreements within the Conference trades, as well as in other trades and
beyond.'' (Comments at 2). Such agreements typically contain authority
to discuss and agree upon rates on a ``non-binding'' basis, a Class A/B
activity. The Japan Conferences argued, however, that under the terms
of these agreements, any rate agreements arrived under them can only be
implemented through the Conferences themselves, and so all relevant
information about the impact of the smaller agreements would be
provided to the Commission through the Conferences' submissions.
Discussion Again, such discrete, fact-specific situations will be
left for the rule's waiver procedure. A waiver may well be appropriate
for side agreements between two or more conference members that are
subject to reporting requirements through their membership in the
conference agreement itself. However, a different situation would be
presented by an agreement allowing ``non-binding'' rate discussions
between a conference line and non-conference line.
2. Information Form for Class A/B Agreements
(a) Scope of Requirement
The Japan Conferences raised a general objection to the proposed
rule's requirement that all new agreements authorizing any of the Class
A/B activities must file an information form, and to the Commission's
intention, as stated in the proposed rule, to require all effective
agreements that authorize any of the Class A/B activities to file
equivalents of information forms in order to establish baselines for
future monitoring. The Japan Conferences proposed instead that such
requirements be imposed only on agreements with a 35 percent market
share. This change, it was argued, would excuse ``smaller agreements
which are likely never to threaten dominance in the trade they serve or
ever to imperil the (section 6(g)) general standard * * *.'' (Comments
at 10).
Discussion This suggested modification is rejected. The information
form requirement for Class A/B agreements is triggered by the
anticompetitive activities that such agreements authorize, rather than
by market share. This is because the collusion on price or service that
a Class A/B agreement would introduce into a trade has sufficiently
serious implications for shippers and the foreign commerce of the
United States that extensive information on the parties' pre-agreement
prices and services is necessary. If the parties have a low market
share initially, that may ease the agreement's initial review under
section 6(g). However, the agreement's potential for unreasonable price
increases or service reductions would always be present, particularly
since the Commission cannot lawfully impose a term limit on an
agreement's effectiveness. 46 U.S.C. app. 1705(f). If the parties
should eventually obtain a high market share and if the agreement
became the subject of a section 6(g)-- investigation, comparisons with
the pre-agreement profile of the trade would clearly be relevant. In
addition, even a 35 percent market share may make the agreement parties
the price leaders in the trade if the remaining 65 percent is spread
out among many other carriers.
(b) Actual Versus Authorized Activity
The Associated India/Pakistan Conferences suggested that ``[a]s an
additional question or, in the
[[Page 11570]]
alternative, the information form could query whether the parties
actually do discuss or exchange data on operating costs, pool cargoes
or revenues, etc., as the case may be.'' (Comments at 1).
Discussion This suggested amendment is rejected. It would be
impractical to attempt to adjust the level of regulation according to
whether the parties were or were not using the authority contained in
the agreement. Agreements must be taken at face value, and permitted
activities must be assumed to be actual activities. With regard to the
information form, it should be noted that the parties would be
violating the Shipping Act and the antitrust laws if they were already
engaged in the activities that the newly filed agreement sought to
authorize.
3. Market Share
As stated above, no commenter objected to the proposed rule's
provision that an agreement that authorized at least one of the Class
A/B activities and held market shares of 50 percent or more in half or
more of its sub-trades would be classified as a Class A agreement for
purposes of the rule's monitoring report requirements. However, there
were some comments on how market share should be calculated.
(a) Definition of ``Sub-trade''
As stated above, the proposed rule defined ``sub-trade'' as all
liner movements between each U.S. port range (Atlantic, Gulf and
Pacific) and each foreign country within the overall scope of the
agreement.
The 25 Agreements (joined by TSA) said that carriers ``do not
necessarily'' collect and maintain data on cargo movements according to
the proposed rule's definition, and that using that definition would
result in a ``huge'' amount of data for some conferences. (Comments at
4). They would narrow the definition in two ways.
First, the United States should be considered as one unit (i.e., no
port ranges). The same argument was made by CENSA.
Second, it was argued that the Commission should * * *
* * * recognize that agreements may cover a large number of
foreign countries, many of which are small and may be considered
together by the agreement as one market. In such a case, the
agreement should be allowed to provide data to the Commission
regarding this group of foreign countries, rather than having to
break down the data on a country-by-country basis. Accordingly, the
Conferences suggest that the Commission allow the members of an
agreement to provide the data in the manner in which they define
their markets. If, in a particular case, the Commission believes
more detailed data is required, it can request additional
information.
(Comments at 5-6). A similar, though less specific, argument was made
by the Japan Conferences, which contended that the Commission should
allow the substitution of ``broader geographic ranges of countries
wherever possible,'' in order to reduce the burden of complying with
the Rule. (Comment at 13).
Discussion The question of how to define an agreement's sub-trades
is extremely important, because much of the substantive information
required by the final rule--not just market share--is to be collected
and submitted by sub-trade.
Any deviation from the rule's definition of sub-trade, for either
the U.S. side or for the foreign side, will be allowed only through the
rule's waiver procedure. Further, the burden will be on the carriers to
show that their marketing and pricing are done by multi-country regions
rather than by individual countries, or, in the case of the United
States, by the United States as one unit rather than by separate port
ranges. If such a showing is made, then an appropriate adjustment from
the rule's requirements can and should be made. The rule is intended to
measure and monitor actual economic behavior, not to impose its own
model on the industry.
It should be noted, however, that waivers of the definition of
``sub-trade'' could involve difficult issues of fact. For example, in
the case of a newly filed agreement, the information form requires data
from the agreement signatory carriers on their operations in the
agreement trade and sub-trades before the agreement was filed, when the
carriers presumably were not coordinating their marketing and pricing.
Therefore, an attempt to construct a regional definition of ``sub-
trade'' that could be used by all carriers for their information from
data submissions will succeed only if it can be shown that the
carriers, though operating individually, were nevertheless applying
essentially similar regional marketing and pricing practices.
A somewhat easier situation may be presented by the monitoring
reports, which track the market shares, services and revenue results of
the agreement parties after the agreement has been implemented. For
conference agreements at least, this would allow the use of the
agreement common tariff as the indicator of the parties' marketing and
pricing practices, and it should not be difficult to define the
agreement's sub-trades according to the construction of the agreement
tariff. Similarly, a joint service operated by a single entity, see 46
U.S.C. app. 1709(e), would presumably be utilized only one tariff.
Because efforts to agree upon an alternative definition of ``sub-
trade'' for a particular agreement may be arduous and time-consuming,
the final rule provides that a waiver of the rule's definition must be
obtained in advance of the required information submission, whether
that be an information form or a monitoring report.
(b) Market Shares of Non-member Carriers
CENSA, the Japan Conferences and the Associated India/Pakistan
Conferences argued that they should not be required to produce market
share data for carriers not parties to their agreements.
Discussion This suggested modification is rejected. The current
information form already requires the parties to a new agreement to
provide ``estimates (or precise information where available) of non-
party liner operator market share (shown either for each individual
operator or for all operators collectively).'' 46 CFR part 572, at 314
(1994). The final rule is thus only an incremental refinement of an
existing requirement. The rule requires that non-party market shares be
stated by individual liner operator in order that the true extent of
non-party competition can be gauged accurately; as observed above, an
agreement with a market share of only 35 percent could nevertheless
have significant market power if the non-party carriers all have small
market shares.
(c) Cargo Not Measured in TEUs
The proposed rule required market share, cargo carrying and revenue
results to be measured by TEUs. The 25 Agreements and the Associated
India/Pakistan Conferences pointed out that data on breakbulk and
certain other types of cargo are not available in TEUs.
Discussion The final rule clarifies that the member lines of an
agreement should include only containerized cargo (stated in TEUs) in
their information submissions, if the cargo they carry in the agreement
trade--or sub-trade, if that is the focus of the particular report--is
predominantly containerized. If the cargo they carry is predominately
non-containerized, the carriers' reports of market share, cargo
carryings and revenue results should include only non-containerized
cargo. The rule does not impose a particular unit of measure of non-
containerized cargo, requiring
[[Page 11571]]
only that the unit employed be stated clearly and applied consistently.
4. Reports on Cargo Carryings
In response to a comment by the Associated India/Pakistan
Conferences, the final rule clarifies that reports on cargo carryings
should include cargo not subject to tariff filing.
5. Reports on Carrier Revenues
The comments on the proposed rule's provisions for the submission
of carrier revenue data focused on the commercial sensitivity of such
data. The commenters--the 25 Agreements, CENSA and the Japan
Conferences--were apparently concerned that reporting individual
carrier revenue data to the Commission, as the rule would require, will
result in exposure of confidential business information. Three
protective limitations were proposed:
--Conferences with four or more members would provide total revenue and
average-revenue-per-TEU but on an aggregated, agreement-wide basis
rather than on a line-by-line basis. It was argued that this would give
the Commission the necessary information on the agreement's impact,
while safeguarding the confidentiality of the revenue data.
--Conferences with three or fewer members should be exempt from
providing revenue data altogether. The 25 Agreements contended that
even the aggregate approach is not sufficiently protective for smaller
conferences ``***because even with an average, there are so few figures
contributing to the average, the average revenue per line is likely to
be fairly obvious.'' (Comments at 7). It was also submitted that small
conferences often do not have secretariats or other central staff who
can protect sensitive information, and that the demands of the proposed
rule would be especially burdensome for small conferences.
--Rate discussion agreements which do not have binding rate-making
authority should be exempt from providing revenue data if their
membership includes carriers who belong to a conference. The rationale
was that in such cases the Commission would obtain the carriers'
revenue data through the conference's reporting. It was also argued
that, like small conferences, discussion agreements generally do not
have a central staff to collect the data from the member lines and
maintain its confidentiality.
Discussion These limitations are rejected. By requiring individual
carrier revenue data, the rule recognizes that Shipping Act agreements,
unlike a merger, maintain the separate trade identities of their
parties (with the limited exception of joint services). Thorough and
accurate regulation of these ongoing price and service consortia
requires knowledge of the business results of the actual operating
entities. The rule's emphasis on sub-trades also requires individual
carrier data, since a particular agreement sub-trade may not be served
by all the parties to the agreement. Similarly, individual carrier data
will further appropriate oversight of multiple agreements that are
connected by common parties.
The comments would have the form and manner of appropriate
regulation determined, not by the carriers that are the regulated
entities under the Shipping Act, but by the form of organization that
the carrier choose for themselves. The requirement for individual
carrier data accommodates the apparent trend in ocean shipping away
from traditional conferences, which have featured relatively
independent chairmen and established central offices, and toward looser
discussion agreements administered in some cases by rotation among the
member lines. If this trend should continue, the excuse offered by the
comments as to why even aggregate data should not be required from some
agreements might eventually be raised for all agreements.
Taken on its own terms, the suggested distinction between
conference is flawed: A three-member conference serving a small trade
may well have a dominant market share, and therefore require careful
monitoring. More generally, small conferences do not necessarily mean
small member lines; a relatively small conference may have as members
large carriers with established and sophisticated information systems.
The proposal for rate discussion agreements would be workable only if
all of the members of a particular discussion agreement were also
members of a conference and if the discussion agreement and the
conference agreement had identical geographic scopes. In such a
situation, a waiver might be merited to avoid duplicative reporting as
discussed above, but a general exemption is unworkable and in
appropriate.
With regard to the carriers' concern about disclosure of their
revenue data, there is no reasonable ground for anticipating improper
public use of such data by the Commission. Once received by the
Commission, revenue data is protected under section 6(j) of the 1984
Act and is exempt from disclosure under the Freedom of Information
Act.\10\
\10\ 5 U.S.C. 552(b)(4); see, e.g., Gulf & Western Industries,
Inc. v. United States, 615 F.2d 527, 529 (D.C. Cir. 1979).
---------------------------------------------------------------------------
6. Carriage and Revenues Data by Leading Commodities in Each Sub-trade
The heart of the proposed rule can be found in parts VI and VII of
the information form for Class A/B agreements and the corresponding
parts VI and VII of the monitoring report for Class A agreements. These
provisions required each member line of such an agreement to submit
extensive data for each ``top 10'' commodity carried in each sub-trade.
The provisions triggered strong opposition from most of the
commenters, particularly the requirement in the two parts VII that each
carrier provide detailed information on how it carried each major
commodity in each sub-trade (i.e., TEUs carried port-to-port under
tariff rates; TEUs carried under intermodal tariff rates; TEUs carried
port-to-port under service contracts; and TEUs carried in intermodal
service under service contracts) and then the average revenue per TEU
realized by the carrier from each type of carriage. The 25 Agreements,
for example, contended:
Determining the method by which cargo moves, e.g., tariff vs.
service contract, port-to-port vs. intermodal, would likely require
a review of every bill of lading for every shipment in the trade.
The potential cost and burden of performing such a review is
staggering.
(Comments at 11).
Discussion Significant revisions to these sections of the proposed
rule are warranted in response to the concerns of the commenters.
Specifically, each member line will be required to provide total
carriage and average revenue data for each leading commodity in each
sub-trade, but will no longer be required to calculate such data
separately for port-to-port and intermodal services, or for tariff and
service contract services. This modification essentially adopts an
alternative offered by the 25 Agreements (except that the Agreement
urged limitations on reporting revenue data which were identical to
those already rejected above (i.e., aggregate instead of individual
line data, no reporting for small conferences, and so on)). As revised,
the new regulations will obtain cargo and revenue data most directly
relevant to review of an agreement under the section 6(g) general
standard, while eliminating the aspects of the
[[Page 11572]]
proposed rule that would have placed the greatest burden on the
industry.
The comments addressed the ``top 10'' scheme only in passing; in
response to a comment by the Associated India/Pakistan Conferences, the
final rule clarifies that individual commodities should be identified
at the 4-digit level of customarily used commodity coding schedules.
7. Port Service Data
Part VIII of the proposed information form required data on the
number of calls by each member-line during the most recent 12-month
period at each port covered by the agreement, and any change in the
nature or type of service to be effected immediately ``by the
agreement,'' including base port designations and frequency of vessel
calls. Similar data was required by the proposed monitoring report for
Class A agreements.
The 25 Agreements (joined by CENSA) suggested that ``port'' be
limited to U.S. ports, ``* * * since the FMC does not require
information regarding calls at foreign ports to fulfill its regulatory
responsibilities.'' (Comments at 12). Also, they proposed that changes
in service be clarified to mean only those changes ``* * * that are
required by the agreement, rather than any changes made by an
individual carrier for its own commercial reasons.'' (Id.).
Discussion The Commission disagrees that the impact of agreements
on liner service in U.S. foreign trades can be adequately monitored by
reference only to U.S. ports, but will make other modifications to this
part of the Rule. The phrase ``by the agreement'' will be deleted from
the information form, so that it is clear that each member line of a
new agreement should state whether it (rather than ``the agreement'')
will be making any changes in the nature or frequency of its service at
any port covered by the agreement, once the agreement goes into effect.
In the corresponding part of the monitoring report, the requirement
that each member line list the number of calls at each port during the
previous calendar quarter is deleted; instead, the lines are simply
asked to describe any changes in the nature of their services at each
agreement port, e.g., serving a port by substituted rather than direct
service.
8. Capacity Management Programs
The special provisions of the proposed rule that deal with
agreements authoring ``capacity management'' or ``capacity
regulation,'' including the identification of ``capacity management''
or ``capacity regulation'' as one of the Class A/B activities, are
deleted. There are now no agreements on file with the Commission
containing such programs, and accordingly there is no need at present
for specific regulations addressing this unusual and highly
controversial area of carrier activity. Any future capacity management
filings will be dealt with on a case-by-case basis. Through its
statutory authorities in section 6(d) and 15 of the 1984 Act, the
Commission will have sufficient means of analyzing any such agreements
by obtaining and reviewing all planning documents, trade reports,
capacity calculations, and any other relevant information that was used
to negotiate the capacity limits in the new agreement. If reporting is
necessary, that could be done through imposition of a permanent section
15 order.
9. Data on Independent Actions
For the monitoring reports filed by Class A conferences, the
proposed rule required each member line to state the number of IAs
taken on each leading commodity within each sub-trade, and the total
number of TEUs of that commodity covered by the IAs. The 25 Agreements
opposed this requirement on the ground of burdensomeness. The Japan
Conferences claimed that ``the Conferences'' do not maintain data on
the TEUs carried by their member lines under IA rates, and suggested
that many of their member lines do not maintain such data either.
The proposed rule also required identification of each shipper for
whom an IA was taken on a leading commodity during the calendar
quarter, and a statement as to whether the shipper was a beneficial
cargo owner, a non-vessel-operating common carrier, or a shipper's
association. The 25 Agreements responded that IAs are often not taken
for a specific shipper:
Instead, they may be taken to service a particular market so
that a carrier can break into that market or remain competitive in
it. In such instances, therefore, the carriers obviously cannot
provide any shipper information.
(Comments at 15-16). Similar objections were filed by the Japan
Conferences and CEMSA, although the Japan Conferences were willing to
provide data on the type of shipper for whom IAs had been taken.
Discussion The requirement for reporting the number of TEUs moving
under the IAs taken for each leading commodity has been deleted. The
final rule requires each member of a ``Class A'' conference to submit
data both on the number of IAs taken on each leading commodity in each
agreement sub-trade and, in part VII of the conference's monitoring
report, on the average revenue per TEU realized by the member line from
its carriage of each leading commodity in each sub-trade. The
Commission believes that it will be able to accurately monitor the true
level of IA activity within a conference by comparing and contrasting
these two sets of data.
Reductions have also been made in the amount of shipper-related IA
data. Rather than requiring the name of each shipper for whom an IA was
taken during the calendar quarter, the final rule instead requires each
member line to state how many of its total IA actions for each leading
commodity during the quarter were taken to service specific shipper
accounts (rather than for general commercial reasons) and of those, how
many were taken for NVO accounts and how many for shippers' association
accounts. These changes respond to observations of the commenters that
many IAs are taken to preserve market share or to penetrate new
markets, rather than for specific customers, and to the commenters'
concerns about protecting the identity of those shippers for whom IA
was taken.
10. Quarterly Reporting
Objections were raised to the proposed rule's requirements that
monitoring reports be submitted on a quarterly basis. The Japan
Conferences, for example, said that ``* * * economic trends in the
ocean shipping business do not ordinarily change to any significant
degree in the space of a three month period, or even over six months or
a year.'' (Comments at 4). They asked that reports be submitted
annually ``* * * or, certainly, with no greater frequency than semi-
annually.'' Id. at 5).
Discussion The final rule retains the requirement for quarterly
monitoring reports. The Commission specifically disagrees with the
Japan Conferences' characterization of the cycles of international
ocean shipping; the experience of the Pacific trades during 1995 was
certainly to the contrary. More important, given the significant
modifications and reductions made by the final rule to the information
demands of the proposed rule, there is no basis to conclude on this
record that quarterly reporting will be unduly burdensome or otherwise
unreasonable. It should be pointed out again, however, that an
individual waiver of the quarterly reporting requirement can be
obtained under the proper circumstances.
[[Page 11573]]
11. Miscellaneous
The proposed monitoring report for Class A agreements required a
statement as to whether the agreement is a conference or has capacity
management provisions. This was meant to facilitate checking of the
carriers' compliance with the special requirements for such agreements.
The 25 Agreements viewed this as ``duplicative information'' (Comments
at 15) that should be required only if there has been some change since
the last report. As discussed above, the proposed rule's provisions for
capacity management agreements have been deleted, but the requirement
that a conference identify itself as such in its monitoring reports is
retained to avoid any uncertainties from the fact that conference names
often do not include the word ``conference.''
In response to a suggestion from the Associated India/Pakistan
Conferences, the ``contact person'' provisions of the information forms
and monitoring reports have been updated to include fax and telex
numbers as well as cable addresses.
The number of copies required for an agreement filing by subpart
572.401 has been reduced from an original and ten copies to an original
and seven copies. In addition, subpart 572.701 and the instructions for
the Information Forms and Monitoring Reports have been clarified with
respect to joint services.
12. Carrier Costs and Profits
The 25 Agreements and CENSA argued that data on profits and/or
costs in the agreement trade are irrelevant to a section 6(g) analysis.
The Japan Conferences were also opposed, but took a less dogmatic
position:
The Conferences do not contend that there will never be a case
where it would be appropriate or necessary for the Commission to
review cost or profit information, or that in a proper case
involving a particular agreement, section 15 should not be used to
demand such information.
(Comments at 14). Rather, they argued that rulemaking is too broad a
procedure and is not tied to a specific need for such data. Also, they
pointed out that the proposed rule is based on sub-trade data, and that
cost and profit data by sub-trade would be very suspect.
Discussion: The Commission will not propose a further rulemaking at
this time to capture cost and profit data. However, we wish to stress
that the costs incurred and the profits realized by the carrier parties
to a particular agreement could well be relevant to a section 6(g)
analysis of that agreement, especially if purported revenue losses are
being used to justify the agreement.
For the most part, these amended regulations will become effective
thirty days after publication in the Federal Register. New agreements
then will be required to comply with the revised information form
provisions. However, the proper application of the new monitoring
report provisions in 46 CFR 572.701-705 to agreements already in effect
cannot be determined immediately, because the market share data
necessary to separate Class A/B agreements into Class A and Class B are
not readily available.
Accordingly, effectiveness of the monitoring report provisions of
the final rule is stayed until further notice. The Commission will
direct all existing Class A/B agreements to submit reports under
section 15 of the 1984 Act that will include all the information
demanded of new Class A/B agreements under the information form
regulations, including market share data. Upon review of these reports,
those agreements will be appropriately classified into Class A or Class
B, the stay of monitoring report provisions will be lifted, and the
orderly filing of the regular monitoring reports (including those
applicable to Class C agreements) will begin.
For those agreements already in effect that are subject to
negotiated reporting requirements, those requirements will remain in
effect until the stay is lifted and the new reporting requirements
become applicable. Also, the stay does not apply to the pre-existing
obligation (now codified at 572.706-708) of certain agreements to
submit minutes of their meetings.
The Federal Maritime Commission certifies, pursuant to section
605(b) of the Regulatory Flexibility Act, 5 U.S.C. 605(b), that this
rule will not have a significant economic impact on a substantial
number of small entities, including small businesses, small
organizational units and small government jurisdictions. The ocean
carriers affected by the rule are not ``small organizations'' or
``small governmental jurisdictions'' as defined by 5 U.S.C. 601 and, as
large and predominantly foreign-based enterprises, are not ``small
business concerns'' as defined by 15 U.S.C. 632 and regulations issued
thereunder.
The collection of information requirements contained in this rule
has been approved by the Office of Management and Budget under the
provisions of the Paperwork Reduction Act of 1995, and has been
assigned OMB control number 3072-0045. Under the proposed rule, the
incremental public reporting burden was estimated to range from an
average of 46 to 144 hours per response, including the time for
reviewing instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information. With the modifications made to the proposed
rule, the incremental public reporting burden for preparing responses
to the collection of information requirements of the final rule is
estimated to range from an average of 36 to 97 hours per response. Send
comments regarding this burden estimate, including suggestions for
reducing this burden, to Bruce A. Dombrowski, Deputy Managing Director,
Federal Maritime Commission, Washington, DC 20573, and to the Office of
Information and Regulatory Affairs, Office of Management and Budget,
Washington, DC 20503.
List of Subjects in 46 CFR Part 572
Administrative practice and procedure; Maritime carriers; Reporting
and recordkeeping requirements.
Therefore, pursuant to 5 U.S.C. 553 and sections 4, 5, 6, 10, 15
and 17 of the Shipping Act of 1984, 46 U.S.C. app. 1703, 1704, 1705,
1709, 1714 and 1716, part 572 of Title 46, Code of Federal Regulations,
is amended as follows:
PART 572--AGREEMENTS BY OCEAN COMMON CARRIERS AND OTHER PERSONS
SUBJECT TO THE SHIPPING ACT OF 1984
1. The authority citation for part 572 continues to read as
follows:
Authority: 5 U.S.C. 553, 46 U.S.C. app. 1701-1707, 1709-1710,
1712 and 1714-1717.
2. In Sec. 572.103, the first sentence of paragraph (a), the first
two sentences of paragraph (b), the first sentence of paragraph (c),
and the second sentence of paragraph (d) are revised; in paragraph (e),
the third sentence is revised, the last sentence is revised, and a new
sentence is added as follows:
Sec. 572.103 Policies.
(a) The Act requires that agreements be processed and reviewed,
upon their initial filing, according to strict statutory deadlines. * *
*
(b) The Act requires that agreements be reviewed, upon their
initial filing, to ensure compliance with all applicable provisions of
the Act and empowers the Commission to obtain information to conduct
that review. This part identifies those classes of agreements which
must be accompanied by information submissions when they are first
filed, and sets forth the kind of information for each class of
agreement which the
[[Page 11574]]
Commission believes relevant to that review. * * *
(c) In order to further the goal of expedited processing and review
of agreements upon their initial filing, agreements are required to
meet certain minimum requirements as to form. * * *
(d) * * * In order to minimize delay in implementation of routine
agreements and to avoid the private and public cost of unnecessary
regulation, the Commission is exempting certain classes of agreements
from the filing requirements of this part.
(e) * * * This, however, requires greater monitoring of agreements
after they have become effective, to assure continued compliance with
all applicable provisions of the Act. * * * Only that information which
is necessary to assure that Commission monitoring responsibilities will
be fulfilled is requested. It is the policy of the Commission to keep
the costs of regulations to a minimum and at the same time obtain
information needed to fulfill its statutory responsibility.
* * * * *
3. In Sec. 572.104, paragraphs (ee) and (ff) are redesignated (ii)
and (jj); (dd) is redesignated (hh); (z) through (cc) are redesignated
(dd) through (gg); (y) is redesignated (cc); (s) through (x) are
redesignated (u) through (z); and (e) through (r) are redesignated (f)
through (s); new paragraphs (e), (t), (aa), (bb), and (kk) are added;
in newly redesignated (g), the last sentence is revised; newly
redesignated (j) is revised; the heading of newly redesignated (o) is
revised; newly redesignated (cc) is revised; and in newly redesignated
(hh), the last sentence is revised to read as follows:
Sec. 572.104 Definitions.
* * * * *
(e) Capacity management or capacity regulation agreement means an
agreement between two or more ocean common carriers which authorizes
withholding some part of the capacity of the parties' vessels from a
specified transportation market, without reducing the real capacity of
those vessels. The term does not include sailing agreements or space
charter agreements.
* * * * *
(g) Conference agreement * * * The term does not include joint
service, pooling, sailing, space charter, or transshipment agreements.
* * * * *
(j) Effective agreement means an agreement approved pursuant to the
Shipping Act, 1916, or effective pursuant to an exemption under that
act, or effective under the Act.
* * * * *
(o) Joint service agreement * * *
* * * * *
(t) Monitoring report means the report containing economic
information which must be filed at defined intervals with regard to
certain kinds of agreements that are effective under the Act.
* * * * *
(aa) Rate, for purposes of this part, includes both the basic price
paid by a shipper to an ocean common carrier for a specified level of
transportation service for a stated quantity of a particular commodity,
from origin to destination, on or after a stated effective date or
within a defined time frame, and also any accessorial charges or
allowances that increase or decrease the total transportation cost to
the shipper.
(bb) Rate agreement means an agreement between ocean common
carriers which authorizes agreement upon, on either a binding basis
under a common tariff or on a non-binding basis, or discussion of, any
kind of rate.
(cc) Sailing agreement means an agreement between ocean common
carriers which provides for the rationalization of service by
establishing a schedule of ports which each carrier will serve, the
frequency of each carrier's calls at those ports, and/or the size and
capacity of the vessels to be deployed by the parties. The term does
not include joint service agreements, or capacity management or
capacity regulation agreements.
* * * * *
(hh) Space charter agreement * * * The arrangement may include
arrangements for equipment interchange and receipt/delivery of cargo,
but may not include capacity management or capacity regulation as used
in this subpart.
* * * * *
(kk) Vessel-operating costs means any of the following expenses
incurred by an ocean common carrier: Salaries and wages of officers and
unlicensed crew, including relief crews and others regularly employed
aboard the vessel; fringe benefits; expenses associated with consumable
stores, supplies and equipment; vessel fuel and incidental costs;
vessel maintenance and repair expense; hull and machinery insurance
costs; protection and indemnity insurance costs; costs for other marine
risk insurance not properly chargeable to hull and machinery insurance
or to protection and indemnity insurance accounts; and charter hire
expenses.
Sec. 572.301 [Amended]
4. In Sec. 572.301, paragraph (b) is amended by removing the words
``Information Form'' and the comma immediately thereafter.
Sec. 572.302 [Amended]
5. In Sec. 572.302, paragraph (b) is amended by removing the words
``Information Form'' and the comma immediately thereafter.
Sec
FR Doc. 96-6600 Information Form and Post-Effective Reporting Requirements for Agreements Among Ocean Common Carriers Subject to the Shipping Act of 1984
. 572.303 [Amended]
6. In Sec. 572.303, paragraph (b) is amended by removing the words
``and Information Form.''
Sec. 572.304 [Amended]
7. In Sec. 572.304, paragraph (b) introductory text is amended by
removing the words ``and Information Form.''
Sec. 572.305 [Amended]
8. In Sec. 572.305, paragraph (b) is amended by removing the words
``and Information Form.''
Sec. 572.306 [Amended]
9. In Sec. 572.306, paragraph (b) is amended by removing the words
``and Information Form.''
Sec. 572.308 [Amended]
10. In Sec. 572.308, paragraph (b) is amended by removing the words
``and Information Form.''
Sec. 572.309 [Amended]
11. In Sec. 572.309, paragraph (a) introductory text, is amended by
removing the words ``Information Form'' and the comma immediately
thereafter.
12. In subpart D, the heading is revised to read as follows:
Subpart D--Filing of Agreements
13. In Sec. 572.401, the heading and paragraphs (a)(1), (a)(2),
(c), (d), and (e) are revised to read as follows:
Sec. 572.401 General requirements.
(a) * * *
(1) A true copy and 7 additional copies of the filed agreement;
(2) Where required by this part, an original and five copies of the
completed Information Form Referenced at subpart E of this part; and
* * * * *
(c) Any agreement which does not meet the filing requirements of
this section, including any applicable Information Form requirements,
shall be rejected in accordance with Sec. 572.601.
(d) Assessment agreements shall be filed and shall be effective
upon filing.
(e) Parties to agreements with expiration dates shall file any
[[Page 11575]]
modification seeking renewal for a specific term or elimination of a
termination date in sufficient time to accommodate the waiting period
required under the Act.
* * * * *
Sec. 572.402 [Amended]
14. In Sec. 572.402, paragraph (e)(2) is amended by revising the
reference to ``Secs. 572.501 and 572.502'' to read ``Secs. 572.403 and
572.404,'' paragraph (f) is amended by revising the reference to
``Secs. 572.501(b)(3), 572.501(b)(6) and 572.502(a)(1)'' to
``Secs. 572.403(b)(3), 572.403(b)(6) and 572.404(a)(1),'' and paragraph
(h) is removed.
Sec. 572.403 [Redesignated as Sec. 572.405 and Amended]
15. Section 572.405 is removed and Sec. 572.403 is redesignated
Sec. 572.405 with paragraphs (a) and (g)(3) revised as follows:
Sec. 572.405 Modifications of agreements.
* * * * *
(a) Agreement modifications shall be: filed in accordance with the
provisions of 572.401 and in the format specified in 572.402; with the
content and organization specified in 572.403 and 572.404 and in
accordance with this section.
* * * * *
(g) * * *
(3) The filing of a republished agreement, as described in
paragraph (g)(2) of this section, may be accomplished by filing only an
executed original true copy. No Information Form requirements apply to
the filing of a republished agreement.
Sec. 572.501 [Redesignated as Sec. 572.403 and Amended]
16. Section 572.501 is redesignated 572.403 and paragraphs (a) and
(b) are amended by revising the references to ``Sec. 572.502'' to read
``Sec. 572.404.''
Sec. 572.406 [Redesignated as Sec. 572.407]
Sec. 572.404 [Redesignated as Sec. 572.406]
17. Section 572.406 is redesignated Sec. 572.407 and 572.404 is
redesignated Sec. 572.406 and revised to read as follows;
Sec. 572.406 Application for waiver.
(a) Upon showing of good cause, the Commission may waive the
requirements of Secs. 572.401, 572.402, 572.403, 572.404 and 572.405.
(b) Requests for such a waiver shall be submitted in advance of the
filing of the agreement to which the requested waiver would apply and
shall state:
(1) The specific provisions from which relief is sought;
(2) The special circumstances requiring the requested relief; and
(3) Why granting the requested waiver will not substantially impair
effective regulation of the agreement.
Sec. 572.202 [Redesignated as Sec. 572.404 and Amended]
18. Section 572.502 of subpart E is redesignated Sec. 572.404 and
paragraphs (a) and (b)(1) are amended by revising the reference to
``Sec. 572.501'' to read ``Sec. 572.403.''
19. The heading of subpart E is removed and new subpart E is added
as follows:
Subpart E--Information Form Requirements
Sec.
572.501 General requirements.
572.502 Subject agreements.
572.503 Information form for Class A/B agreements.
572.504 Information form for Class C agreements.
572.505 Application for waiver.
Subpart E--Information Form Requirements
Sec. 572.501 General requirements.
(a) Certain agreements must be accompanied, upon their initial
filing, with an Information Form setting forth information and data on
the filing parties' prior cargo carryings, revenue results and port
service patterns.
(b) The filing parties to an agreement subject to this subpart
shall complete and submit an original and five copies of the applicable
Information Form at the time the agreement is filed. Copies of the
applicable Form may be obtained at the Office of the Secretary or by
writing to the Secretary of the Commission.
(c) A complete response in accordance with the instructions on the
Information Form shall be supplied to each item. Whenever the party
answering a particular part is unable to supply a complete response,
that party shall provide either estimated data (with an explanation of
why precise data are not available) or a detailed statement of reasons
for noncompliance and the efforts made to obtain the required
information.
(d) The Information Form for a particular agreement may be
supplemented with any other information or documentary material.
(e) The Information Form and any additional information submitted
in conjunction with the filing of a particular agreement shall not be
disclosed except as provided in Sec. 572.608.
Sec. 572.502 Subject agreements.
Agreements subject to this subpart are divided into two classes,
Class A/B and Class C. When used in this subpart:
(a) Class A/B agreement means an agreement that is one or more of
the following:
(1) A rate agreement as defined in Sec. 572.104(aa) and
Sec. 572.104(bb);
(2) A joint service agreement as defined in Sec. 572.104(o);
(3) A pooling agreement as defined in Sec. 572.104(y);
(4) An agreement authorizing discussion or exchange of data on
vessel-operating costs as defined in Sec. 572.104(kk); or
(5) An agreement authorizing regulation or discussion of service
contracts as defined in Sec. 572.104(dd).
(b) Class C agreement means an agreement that is one or more of the
following:
(1) A sailing agreement as defined in Sec. 572.104(cc); or
(2) A space charter agreement as defined in Sec. 572.104(hh).
Sec. 572.503 Information form for Class A/B agreements.
The Information Form for Class A/B agreements, with accompanying
instructions that are intended to facilitate the completion of the
Form, is set forth in appendix A of this part.
The instructions should be read in conjunction with the Shipping
Act of 1984 and with this part 572.
Sec. 572.504 Information form for Class C agreements.
The Information Form for Class C agreements, with accompanying
instructions that are intended to facilitate the completion of the
Form, is set forth in appendix B of this part. The explanation and
instructions should be read in conjunction with the Shipping Act of
1984 and 46 CFR part 572.
Sec. 572.505 Application for waiver.
(a) Upon a showing of good cause, the Commission may waive any part
of the information form requirements of Sec. 572.503 or Sec. 572.504.
(b) A request for such a waiver must be approved in advance of the
filing of the information form to which the requested waiver would
apply. The Commission will take into account the presence or absence of
shipper complaints in considering an application for a waiver. Requests
for a waiver shall state:
(1) The specific requirements from which relief is sought;
(2) The special circumstances requiring the requested relief; and
(3) Why granting the requested waiver will not substantially impair
effective regulation of the agreement, either during pre-implementation
review or during post-implementation monitoring.
[[Page 11576]]
20. In Sec. 572.601, paragraph (a) and the first sentence of
paragraph (b)(1) are revised, as follows:
Sec. 572.601 Preliminary review--rejection of agreements.
(a) The Commission shall make a preliminary review of each filed
agreement to determine whether the agreement is in compliance with the
filing requirements of the Act and this part and, where applicable,
whether the accompanying Information Form is complete or, where not
complete, whether the deficiency is adequately explained or is excused
by a waiver granted by the Commission under Sec. 572.505.
(b)(1) The Commission shall reject any agreement that otherwise
fails to comply with the filing and Information Form requirements of
the Act and this part. * * *
* * * * *
21. In Sec. 572.608, paragraph (b)(2) is revised, as follows:
Sec. 572.608 Confidentiality of submitted materials.
* * * * *
(b) * * *
(2) It is disclosed to either body of Congress or to a duly
authorized committee or subcommittee of Congress.
* * * * *
22. In Sec. 572.701, paragraphs (b), (c) and (d) are removed,
paragraph (f) is redesignated (i) and is revised, paragraph (e) is
redesignated (f) and is revised, paragraph (a)(1) is redesignated (d)
and is revised, paragraph (a)(2) is redesignated (e) and the second
sentence thereof is revised, a new paragraph (a) is added, a new
paragraph (b) is added, a new paragraph (c) is added, a new paragraph
(g) is added, and a new paragraph (h) is added, as follows:
Sec. 572.701 General requirements.
(a) Certain agreements are required to submit quarterly Monitoring
Reports on an ongoing basis for as long as they remain in effect,
setting forth information and data on the agreement member lines' cargo
carryings, revenue results and port service patterns under the
agreement.
(b) Certain agreements are required to submit minutes of their
meetings for as long as they remain in effect.
(c) Joint Services. For purposes of the requirements of this
Subpart, a joint service filing its own Monitoring Report shall file as
one carrier. If a joint service is a party to another agreement that is
otherwise subject to the requirements of this Subpart, the joint
service shall be treated as one member of that agreement for purposes
of that agreement's Monitoring Reports.
(d) Address. Monitoring Reports and minutes required by this
subpart should be addressed to the Commission as follows: Director,
Bureau of Economics and Agreement Analysis, Federal Maritime
Commission, Washington, DC 20573-0001. Copies of the applicable
Monitoring Report form may be obtained from the Bureau of Economics and
Agreement Analysis. The lower, left-hand corner of the envelope in
which each Monitoring Report or set of minutes is forwarded should
indicate the nature of its contents and the related agreement number.
For example: ``Monitoring Report, Agreement 5000'' or ``Minutes,
Agreement 5000.''
(e) Electronic filing. * * * Detailed information on electronic
transmission is available from the Commission's Bureau of Economics and
Agreement Analysis.
* * * * *
(f) Time for filing. Monitoring Reports shall be filed within 30
days of the end of each calendar quarter. Other documents shall be
filed within 30 days of the end of a quarter-year, a meeting, or the
receipt of a request for documents.
(g) A complete response in accordance with the instructions on the
applicable Monitoring Report shall be supplied to each item. Whenever
the party answering a particular part is unable to supply a complete
response, that party shall provide either estimated data (with an
explanation of why precise data are not available) or a detailed
statement of reasons for noncompliance and the efforts made to obtain
the required information.
(h) A Monitoring Report for a particular agreement may be
supplemented with any other information or documentary material.
(i) Confidentiality. (1) The Monitoring Reports, minutes, and any
other additional information submitted for a particular agreement will
be exempt from disclosure under 5 U.S.C. 552, except to the extent:
(i) It is relevant to an administrative or judicial action or
proceeding; or
(ii) It is disclosed to either body of Congress or to a duly
authorized committee or subcommittee of Congress.
(2) Parties may voluntarily disclose or make Monitoring Reports,
minutes or any other additional information publicly available. The
Commission must be promptly informed of any such voluntary disclosure.
Sec. 572.202 [Redesignated as Sec. 572.706 and Amended]
23. Section 572.702 is redesignated 572.706, the heading thereof is
revised, and a new paragraph (d) is added, as follows:
Sec. 572.706 Filing of minutes--including shippers' requests and
complaints, and consultations.
* * * * *
(d) Serial numbers. (1) Each set of minutes filed with the
Commission should be assigned a number. For example, a conference
filing minutes of its first meeting upon the effective date of this
rule should assign Meeting No. 1 to its minutes, the next meeting will
be assigned Meeting No. 2, and so on.
(2) Any conference or rate agreement which, for its own internal
purposes, has a system for assigning sequential numbers to its minutes
in a manner which differs from that set forth in paragraph (d)(1) of
this section may continue to utilize its own system thereof.
Sec. 572.703 [Redesignated as Sec. 572.707 and Amended]
24. Section 572.703 is redesignated 572.707, and the reference to
``Sec. 572.702'' in the introductory text is revised to read
``Sec. 572.706.''
Sec. 572.704 [Redesignated as Sec. 572.909 and Revised]
25. Section 572.704 is redesignated 572.709 and is revised as
follows:
Sec. 572.709 Application for waiver.
(a) Upon a showing of good cause, the Commission may waive any
requirement of this subpart.
(b) A request for such a waiver must be approved in advance of the
filing of the Monitoring Report or minutes to which the requested
waiver would apply. The Commission will take into account the presence
or absence of shipper complaints in considering an application for a
waiver. Requests for a waiver shall state:
(1) The specific requirements from which relief is sought;
(2) the special circumstances requiring the requested relief; and
(3) why granting the requested waiver will not substantially impair
effective regulation of the agreement.
26. A new Sec. 572.702 is added to read as follows:
Sec. 572.702 Agreements subject to Monitoring Report requirements.
(a) Agreements subject to the Monitoring Report requirements of
this subpart are divided into three classes, Class A, Class B and Class
C. When used in this subpart:
[[Page 11577]]
(i) Class A agreement means an agreement that is subject to the
definition set forth in Sec. 572.502(a) and has market shares of 50
percent or more in half or more of its sub-trades.
(2) Class B agreement means an agreement that is subject to the
definition set forth in Sec. 572.502(a) but does not have market shares
of 50 percent or more in half or more of its sub-trades.
(b) Classification of an agreement as ``Class A'' or ``Class B''
for purposes of its reporting obligations under this subpart shall be
done by the Bureau of Economics and Agreement Analysis, based in the
first instance on the market share data reported on the agreement's
Information Form pursuant to Sec. 572.503, or on similar data otherwise
obtained. Thereafter, at the beginning of each calendar year, the
Bureau of Economics and Agreement Analysis shall determine whether the
agreement should be classified as ``Class A'' or ``Class B'' for that
year, based on the market share data reported on the agreement's
quarterly Monitoring Report for the third quarter (July-September) of
the previous calendar year.
(c) Class C agreement means an agreement that is subject to the
definition set forth in Sec. 572.502(b).
27. A new Sec. 572.703 is added, as follows:
Sec. 572.703 Monitoring report for Class A agreements.
The Monitoring Report form for Class A agreements, with
accompanying instructions that are intended to facilitate the
completion of the Report, is set forth in appendix C of this part. The
instructions should be read in conjunction with the Shipping Act of
1984 and with 46 CFR part 572.
28. A new Sec. 572.704 is added, as follows:
Sec. 572.704 Monitoring report for Class B agreements.
The Monitoring Report form for Class B agreements, with
accompanying instructions that are intended to facilitate the
completion of the Report, is set forth in appendix D of this part. The
instructions should be read in conjunction with the Shipping Act of
1984 and with 46 CFR part 572.
29. A new Sec. 572.705 is added, as follows:
Sec. 572.705 Monitoring report for Class C agreements.
The Monitoring Report form for Class C agreements, with
accompanying instructions that are intended to facilitate the
completion of the Report, is set forth in appendix E of this part. The
explanation and instructions should be read in conjunction with the
Shipping Act of 1984 and 46 CFR part 572.
30. A new Sec. 572.708 is added as follows:
Sec. 572.708 Retention of records.
Each agreement required to file minutes pursuant to this subpart
shall retain a copy of each document listed in said minutes for a
minimum period of 3 years after the date the document is distributed to
the members. Such documents may be requested by the Director, Bureau of
Economics and Agreement Analysis, in writing by reference to a specific
minute, and shall indicate that the documents will be received in
confidence. Requested documents shall be furnished by the parties
within the time specified.
31. Section 572.902 is revised as follows:
Sec. 572.702 Falsification of reports.
Knowing falsification of any report required by the Act or this
part, including knowing falsification of any item in any applicable
Information Form or Monitoring Report, is a violation of the rules of
this part and is subject to the civil penalties set forth in section
13(a) of the Act and may be subject to the criminal penalties provided
for in 18 U.S.C. 1001.
Sec. 572.991 [Amended]
32. Section 572.991 is amended by revising the reference to ``the
Paperwork Reduction Act of 1980, Public Law 96-511'' to read ``the
Paperwork Reduction Act of 1995, Public Law 104-13'' and by revising
the reference to ``section 3507(f)'' to read ``section 3507(a)(3).''
33. Appendix A to Part 572 is revised to read as follows:
Appendix A to Part 572--Information Form for Class A/B Agreements and
Instructions
Instructions
All agreements between ocean common carriers that are Cass A/B
agreements as defined in 46 CFR 572.502(a) must be accompanied by a
completed Information Form for such agreements. A complete response
must be supplied to each part of the Form. Where the party answering
a particular part is unable to supply a complete response, that
party shall provide either estimated data (with an explanation of
why precise data are not available) or a detailed statement of
reasons for noncompliance and the efforts made to obtain the
required information. For purposes of the requirements of this Form,
if one of the agreement signatories is a joint service operating
under an effective agreement, that signatory shall respond to the
Form as a single agreement party. All sources must be identified.
Part I
Part I requires a statement of the full name of the agreement as
also provided under 46 CFR 572.403.
Part II
Part II requires a list of all effective agreements covering all
or part of the geographic scope of the filed agreement, whose
parties include one or more of the parties to the filed agreement.
Part III(A)
Part III(A) requires a statement as to whether the agreement
authorizes the parties to collectively fix rates under a common
tariff, to agree upon rates on a non-binding basis, or to discuss
rates. Such rate activities may be authorized by a conference
agreement, an interconference agreement, an agreement among one or
more conferences and one or more non-conference ocean common
carriers, an agreement between two or more conference member lines,
an agreement between one or more conference member lines and one or
more non-conference ocean common carriers, or an agreement among two
or more non-conference ocean common carriers.
Part III(B)
Part III(B) requires a statement as to whether the agreement
authorizes the parties to establish a joint service.
Part III(C)
Part III(C) requires a statement as to whether the agreement
authorizes the parties to pool cargo or revenues.
Part III(D)
Part III(D) requires a statement as to whether the agreement
authorizes the parties to discuss or exchange data on vessel-
operating costs as defined in 46 CFR 572.104(kk).
Part III(E)
Part III(E) requires a statement as to whether the agreement
authorizes the parties to regulate or discuss service contracts.
Part IV
Part IV requires the market shares of all liner operators within
the entire geographic scope of the agreement and in each sub-trade
within the scope of the agreement, during the most recent calendar
quarter for which complete data are available. A joint service shall
be treated as a single liner operator, whether it is an agreement
line or a non-agreement line. Sub-trade is defined as the scope of
all liner movements between each U.S. port range within the scope of
the agreement and each foreign country within the scope of the
agreement. Where the agreement covers both U.S. inbound and outbound
liner movements, inbound and outbound market shares should be shown
separately.
U.S. port ranges are defined as follows:
Atlantic--Includes ports along the eastern seaboard from the
northern boundary of Maine to, but not including, Key West, Florida.
Also includes all ports bordering upon the Great Lakes and their
connecting
[[Page 11578]]
waterways as well as all ports in the State of New York on the St.
Lawrence River.
Gulf--Includes all ports along the Gulf of Mexico from Key West,
Florida, to Brownsville, Texas, inclusive. Also includes all ports
in Puerto Rico and the U.S. Virgin Islands.
Pacific--Includes all ports in the States of Alaska, Hawaii,
California, Oregon and Washington. Also includes all ports in Guam,
American Samoa, Northern Marianas, Johnston Island, Midway Island
and Wake Island.
An application may be filed for a waiver of the definition of
``sub-trade,'' under the procedure described in 46 CFR 572.505. In
any such application, the burden shall be on the filing carriers to
show that their marketing and pricing practices have been done by
ascertainable multi-country regions rather than by individual
countries or, in the case of the United States, by broader areas
than the port ranges defined herein. The carriers must further show
that, though operating individually, they were nevertheless applying
essentially similar regional practices.
The formula for calculating market share in the entire agreement
scope or in a sub-trade is as follows:
The total amount of liner cargo carried on each liner operator's
liner vessels in the entire agreement scope or in the sub-trade
during the most recent calendar quarter for which complete data are
available, divided by the total liner movements in the entire
agreement scope or in the sub-trade during the same calendar
quarter, which quotient is multiplied by 100. The calendar quarter
used must be clearly identified. The market shares held by non-
agreement lines as well as by agreement lines must be provided,
stated separately in the format indicated.
If 50 percent or more of the total liner cargo carried by the
agreement lines in the entire agreement scope or in the sub-trade
during the calendar quarter was containerized, only containerized
liner movements (measured in TEUs) must be used for determining
market share. If 50 percent or more of the total liner cargo carried
by the agreement lines was non-containerized, only non-containerized
liner movements must be used for determining market share. The unit
of measure used in calculating amounts of non-containerized cargo
must be specified clearly and applied consistently.
Liner movements is the carriage of liner cargo by liner
operators. Liner cargoes are cargoes carried on liner vessels in a
liner service. A liner operator is a vessel-operating common carrier
engaged in liner service. Liner vessels are those vessels used in a
liner service. Liner service refers to a definite, advertised
schedule of sailings at regular intervals. All these definitions,
terms and descriptions apply only for purposes of the Information
Form.
Part V
Part V requires, for each agreement member line that served all
or any part of the geographic area covered by the agreement during
all or any part of the most recent 12-month period for which
complete data are available, a statement of each line's total liner
cargo carryings within the geographic area, total liner revenues
within the geographic area, and average revenue.
If 50 percent or more of the total liner cargo carried by all
the agreement member lines in the geographic area covered by the
agreement during the 12-month period was containerized, each
agreement member line should report only its total carryings of
containerized liner cargo (measured in TEUs) within the geographic
area, total revenues generated by its carriage of containerized
liner cargo, and average revenue per TEU. Conversely, if 50 percent
or more of the total liner cargo carried by all the agreement member
lines in the geographic area covered by the agreement during the 12-
month period was non-containerized, each line should report only its
total carryings of non-containerized liner cargo (specifying the
unit of measurement used), total revenues generated by its carriage
of non-containerized liner cargo, and average revenue per unit of
measurement.
The Information Form specifies the format in which the
information is to be reported. Where the agreement covers both U.S.
inbound and outbound liner movements, inbound and outbound data
should be stated separately.
Part VI
Part VI requires a list, for each sub-trade within the scope of
the agreement, of the top 10 liner commodities (including
commodities not subject to tariff filing) carried by all the
agreement member lines during the same 12-month period used in
responding to Part V, or a list of the commodities accounting for 50
percent of the total liner cargo carried by all the agreement member
lines during the 12-month period, whichever list is longer. If 50
percent or more of the total liner cargo carried by all the
agreement member lines in the sub-trade during the 12-month period
was containerized, this list should include only containerized
commodities. If 50 percent or more of the total liner cargo carried
by all the agreement member lines in the sub-trade during the 12-
month period was non-containerized, this list should include only
non-containerized commodities. Commodities should be identified at
the 4-digit level of customarily used commodity coding schedules.
Where the agreement covers both U.S. inbound and outbound liner
movements, inbound and outbound sub-trades should be stated
separately.
Part VII
Part VII requires a statement of the cargo volume and revenue
results experienced by each of the parties to the proposed agreement
from each major commodity in each subtrade. The Information Form
specifies the format in which the information is to be reported.
Part VIII
Part VIII is concerned with the levels of service at each port
within the entire geographic scope of the agreement. Each of the
agreement lines is required to provide the number of calls it made
at each port over the 12-month period used in responding to Parts V,
VI and VII, and also to indicate any immediate change it plans to
make in the nature or type of service at a particular port after the
agreement goes into effect.
Part IX(A)
Part IX(A) requires the name, title, address, telephone number
and cable address, telex or fax number of a person the Commission
may contact regarding the Information Form and any information
provided therein.
Part IX(B)
Part IX(B) requires the name, title, address, telephone number
and cable address, telex or fax number of a person the Commission
may contact regarding a request for additional information or
documents.
Part IX(C)
Part IX(C) requires that a representative of the agreement lines
sign the Information Form and certify that the information in the
Form and all attachments and appendices are, to the best of his or
her knowledge, true, correct and complete. The representative is
also required to indicate his or her relationship with the parties
to the agreement.
Federal Maritime Commission
Information Form For Certain Agreements By Or Among Ocean Common
Carriers
Agreement Number-------------------------------------------------------
(Assigned by FMC)
Part I Agreement Name:
Part II Other Agreements
Lists all effective agreements covering all or part of the
geographic scope of this agreement, whose parties include one or
more of the parties to this agreement.
Part III Agreement Type
(A) Rate Agreements
Does the agreement authorize the parties to collectively fix
rates on a binding basis under a common tariff, or to agree upon
rates on a non-binding basis, or to discuss rates?
Yes {time} No {time}
(B) Joint Service Agreements
Does the agreement authorize the parties to establish a joint
service?
Yes {time} No {time}
(C) Pooling Agreements
Does the agreement authorize the parties to pool cargoes or
revenues?
Yes {time} No {time}
(D) Vessel-Operating Costs
Does the agreement authorize the parties to discuss or exchange
data on vessel-operating costs?
Yes {time} No {time}
(E) Service Contracts
Does the agreement authorize the parties to discuss or agree on
service contract terms and conditions, on either a binding or non-
binding basis?
Yes {time} No {time}
Part IV Market Share Information
Provide the market shares of all liner operators within the
entire scope of the agreement and within each agreement sub-trade
during the most recent calendar quarter
[[Page 11579]]
for which complete data are available. The information should be
provided in the format below:
Market Share Report for (Indicate Either Entire Agreement Scope, or Sub-
Trade Name) Time Period
------------------------------------------------------------------------
TEUs or
other unit
of Percent
measurement
------------------------------------------------------------------------
Agreement Market Share:
Line A........................................ X,XXX XX
Line B........................................ X,XXX XX
Line C........................................ X,XXX XX
-----------------------
Total Agreement Market Share................ X,XXX XX
-----------------------
Non-Agreement Market Share:
Line X........................................ X,XXX XX
Line Y........................................ X,XXX XX
Line Z........................................ X,XXX XX
-----------------------
Total Non-Agreement Market Share............ X,XXX XX
-----------------------
Total Market.............................. X,XXX 100
------------------------------------------------------------------------
Part V Cargo and Revenue Results Agreement-Wide
For each party that served all or any part of the geographic
area covered by the entire agreement during all or any part of the
most recent 12-month period for which complete data are available,
state total cargo carrying in TEUs or other unit of measurement
within the entire geographic area, total revenues within the
geographic area, and average revenue per TEU or other unit of
measurement. The same 12-month period must be used for each party.
The information should be provided in the format below:
Time Period
------------------------------------------------------------------------
Avg.
Total TEUs revenue per
or other Total TEU or
Carrier unit of revenues other unit
measurement of
measurement
------------------------------------------------------------------------
A................................... ........... $ $
B................................... ........... $ $
C................................... ........... $ $
Etc................................. ........... $ $
------------------------------------------------------------------------
Part VI Leading Commodities
For each sub-trade within the scope of the agreement, list the
top 10 commodities carried by all the parties during the same time
period used in responding to Part V, or list the commodities
accounting for 50 percent of the total carried by all the parties
during the same 12-month period, whichever list is longer. The same
12-month period must be used in reporting for each sub-trade. The
information should be provided in the format below:
Time Period (Same as That Used in Responding to Part V)
I. Sub-Trade
A. First leading commodity
B. Second leading commodity
C. Third leading commodity etc.
II. Sub-Trade
A. First leading commodity etc.
Part VII Cargo and Revenue Results by Sub-Trade
For the same time period used in responding to Parts V and VI,
and for each sub-trade within the scope of the agreement, and for
each of the leading commodities listed for each sub-trade in the
response to Part VI, and for each party, state the total TEUs (or
other unit of measurement) carried and average gross revenue per TEU
(or other unit of measurement).
The information should be provided in the format below:
Time Period (Same as That Used in Responding to Part V)
I. Sub-trade A
A. First leading commodity
1. Carrier A
(a) Total TEUs (or other unit of measurement) carried
(b) Average gross revenue per TEU (or other unit of measurement)
2. Carrier B
(a) etc.
B. Second leading commodity
1. Carrier A
(a) etc.
II. Sub-trade B
A. First leading commodity
1. etc.
Part VIII Port Service
For each port within the entire geographic scope of the
agreement, state the number of port calls by each of the parties
over the same time period used in responding to Parts V, VI and VII.
The information should be provided in the format below:
Time Period
[Same as that used in responding to Part V]
----------------------------------------------------------------------------------------------------------------
Port Port Port Port Port
----------------------------------------------------------------------------------------------------------------
Carrier A......................................
Carrier B......................................
Carrier C......................................
Etc............................................
----------------------------------------------------------------------------------------------------------------
Also, for each party, indicate any planned change in the nature
or type of service (such as base port designation, frequency of
vessel calls, use of indirect rather than direct service, etc.) to
be effected at any port within the entire geographic scope of the
agreement after the effective date of the agreement.
Part IX
(A) Identification of Person(s) to Contact Regarding the
Information Form
(1) Name---------------------------------------------------------------
(2) Title--------------------------------------------------------------
(3) Firm Name and Business
----------------------------------------------------------------------
(4) Business Telephone Number
----------------------------------------------------------------------
(5) Cable Address, Telex or Fax Number
----------------------------------------------------------------------
(B) Identification of an Individual Located in the United States
Designated for the Limited Purpose of Receiving Notice of an
Issuance of a Request for Additional Information or Documents (see
46 CFR 572.606).
(1) Name---------------------------------------------------------------
(2) Title--------------------------------------------------------------
(3) Firm Name and Business
----------------------------------------------------------------------
(4) Business Telephone Number
----------------------------------------------------------------------
(5) Cable Address, Telex or Fax Number
----------------------------------------------------------------------
(C) Certification
This Information Form, together with any and all appendices and
attachments thereto, was prepared and assembled in accordance with
instructions issued by the Federal Maritime Commission. The
information is, to the best of my knowledge, true, correct, and
complete.
Name (please print or type)
----------------------------------------------------------------------
Title------------------------------------------------------------------
Relationship with parties to agreement
----------------------------------------------------------------------
----------------------------------------------------------------------
Signature--------------------------------------------------------------
Date-------------------------------------------------------------------
34. A new appendix B to part 572 is added to read as follows:
Appendix B to Part 572--Information Form for Class C Agreements and
Instructions.
Instructions
All agreements between or among ocean common carriers that are
Class C agreements as defined in 46 CFR 572.502(b) must be
[[Page 11580]]
accompanied by a completed Information Form for such agreements. A
complete response must be supplied to the Form. Where the filing
party is unable to supply a complete response, that party shall
provide either estimated data (with an explanation of why precise
data are not available) or a detailed statement of reasons for
noncompliance and the efforts made to obtain the required
information. For purposes of the requirements of this Form, if one
of the agreement signatories is a joint service operating under an
effective agreement, that signatory shall respond to the Form as a
single agreement party. All sources must be identified.
Part I
Part I requires a statement of the full name of the agreement as
also provided under 46 CFR 572.403.
Part II
Part II requires a list of all effective agreements covering all
or part of the geographic scope of the filed agreement, whose
parties include one or more of the parties to the filed agreement.
Part III
Part III is concerned with the level of service at each port
within the entire geographic scope of the agreement. Each agreement
line is required to state the number of calls it made at each port
over the most recent 12-month period for which complete data are
available, and also to indicate any immediate change it plans to
make in the nature or type of service at a particular port after the
agreement goes into effect.
Part IV(A)
Part IV(A) requires the name, title, address, telephone number
and cable address, telex or fax number of a person the Commission
may contact regarding the Information Form and any information
provided therein.
Part IV(B)
Part IV(B) requires the name, title, address, telephone number
and cable address, telex or fax number of a person the Commission
may contact regarding a request for additional information or
documents.
Part IV(C)
Part IV(C) requires that a representative of the agreement lines
sign the Information Form and certify that the information in the
Form and all attachments and appendices are, to the best of his or
her knowledge, true, correct and complete. The representative is
also required to indicate his or her relationship with the parties
to the agreement.
Federal Maritime Commission
Information Form For Certain Agreements By or Among Ocean Common
Carriers
Agreement Number-------------------------------------------------------
(Assigned by FMC)
Part I Agreement Name:
----------------------------------------------------------------------
Part II Other Agreements
List all effective agreements covering all or part of the
geographic scope of this agreement, whose parties include one or
more of the parties to this agreement.
Part III Port Service
For each port within the entire geographic scope of the
agreement, state the number of port calls by each of the parties
over the most recent 12-month period for which complete data are
available. The information should be provided in the format below.
Time Period
----------------------------------------------------------------------------------------------------------------
Port Port Port Port Port
----------------------------------------------------------------------------------------------------------------
Carrier A
Carrier B
Carrier C
Etc............................................
----------------------------------------------------------------------------------------------------------------
Also, for each party, indicate any planned change in the nature
or type of service (such as base port designation, frequency of
vessel calls, use of indirect rather than direct service, etc.) to
be effected at any port within the entire geographic scope of the
agreement after the effective date of the agreement.
Part IV
(A) Identification of Person(s) to Contact Regarding the
Information Form
(1) Name---------------------------------------------------------------
(2) Title--------------------------------------------------------------
(3) Firm Name and Business
----------------------------------------------------------------------
(4) Business Telephone Number
----------------------------------------------------------------------
(5) Cable Address, Telex or Fax Number
----------------------------------------------------------------------
(B) Identification of an Individual Located in the United States
Designated for the Limited Purpose of Receiving Notice of an
Issuance of a Request for Additional Information or Documents (see
46 CFR 572.606).
(1) Name---------------------------------------------------------------
(2) Title--------------------------------------------------------------
(3) Firm Name and Business
----------------------------------------------------------------------
(4) Business Telephone Number
----------------------------------------------------------------------
(5) Cable Address, Telex or Fax Number
----------------------------------------------------------------------
(C) Certification
This Information Form, together with any and all appendices and
attachments thereto, was prepared and assembled in accordance with
instructions issued by the Federal Maritime Commission. The
information is, to the best of my knowledge, true, correct, and
complete.
Name (please print or type)
----------------------------------------------------------------------
Title------------------------------------------------------------------
Relationship with parties to agreement
----------------------------------------------------------------------
Signature--------------------------------------------------------------
Date-------------------------------------------------------------------
36. A new appendix C to part 572 is added to read as follows:
Appendix C to Part 572--Monitoring Report for Class A Agreements and
Instructions
Instructions
A complete response must be supplied to each part of the Report.
Where the party answering a particular part is unable to supply a
complete response, that party shall provide either estimated data
(with an explanation of why precise data are not available) or a
detailed statement of reasons for noncompliance and the efforts made
to obtain the required information. All sources must be identified.
Part I
Part I requires a statement of the full name of the agreement,
and the assigned FMC number.
Part II
Part II requires a statement of any change occurring during the
calendar quarter to the list of other agreements set forth in Part
II of the Information Form.
Part III
Part III requires the filing party to indicate whether the
agreement authorizes the parties to operate as a conference.
Part IV
Part IV requires the market shares of all liner operators within
the entire geographic scope of the agreement and in each sub-trade
within the scope of the agreement during the calendar quarter. A
joint service shall be treated as a single liner operator, whether
it is an agreement line or a non-agreement line.
Sub-trade is defined as the scope of all liner movements between
each U.S. port range within the scope of the agreement and each
foreign country within the scope of the agreement. Where the
agreement covers both U.S. inbound and outbound line movements,
inbound and outbound market shares should be shown separately.
U.S. port ranges are defined as follows:
Atlantic--Includes ports along the eastern seaboard from the
northern boundary of
[[Page 11581]]
Maine to, but not including, Key West, Florida. Also includes all
ports bordering upon the Great Lakes and their connecting waterways
as well as all ports in the State of New York on the St. Lawrence
River.
Gulf--Includes all ports along the Gulf of Mexico from Key West,
Florida, to Brownsville, Texas, inclusive. Also includes all ports
in Puerto Rico and the U.S. Virgin Islands.
Pacific--Includes all ports in the States of Alaska, Hawaii,
California, Oregon and Washington. Also includes all ports in Guam,
American Samoa, Northern Marinas, Johnston Island, Midway Island and
Wake Island.
An application may be filed for a waiver of the definition of
``sub-trade,'' under the provisions described in 46 CFR 572.709. In
any such application, the burden shall be on the agreement carriers
to show that their marketing and pricing practices are done by
ascertainable multi-country regions rather than by individual
countries or, in the case of the United States, by broader areas
than the port ranges defined herein. The Commission will also
consider whether the alternate definition of ``sub-trade'' requested
by the waiver application is reasonably consistent with the
definition of ``sub-trade'' applied in the original Information Form
filing for the agreement.
The formula for calculating market share in the entire agreement
scope or in a sub-trade is as follows:
The total amount of liner cargo carried on each liner operator's
liner vessels in the entire agreement scope or in the sub-trade
during the calendar quarter, divided by the total liner movements in
the entire agreement scope or in the sub-trade during the calendar
quarter, which quotient is multiplied by 100. The market shares held
by non-agreement lines as well as by agreement lines must be
provided, stated separately in the format indicated.
If 50 percent or more of the total liner cargo carried by the
agreement lines in the entire agreement scope or in the sub-trade
during the calendar quarter was containerized, only containerized
liner movements (measured in TEUs) must be used for determining
market share. If 50 percent or more of the total liner cargo carried
by the agreement lines was non-containerized, only non-containerized
liner movements must be used for determining market share. The unit
of measure used in calculating amounts of non-containerized cargo
must be specified clearly and applied consistently.
Liner movements is the carriage of liner cargo by liner
operators. Liner cargoes are cargoes carried on liner vessels in a
liner service. A liner operator is a vessel-operating common carrier
engaged in liner service. Liner vessels are those vessels used in a
liner service. Liner service refers to a definite, advertised
schedule of sailings at regular intervals. All these definitions,
terms and descriptions apply only for purposes of the Monitoring
Report.
Part V
Part V requires each agreement member line's total liner cargo
carryings within the entire geographic area covered by the agreement
during the calendar quarter, each line's total liner revenues within
the geographic area during the calendar quarter, and average
revenue.
If 50 percent or more of the total liner cargo carried by all
the agreement member lines in the geographic area covered by the
agreement during the calendar quarter was containerized, each
agreement member line should report only its total carryings of
containerized liner cargo (measured in TEUs) during the calendar
quarter within the geographic area, total revenues generated by its
carriage of containerized liner cargo, and average revenue per TEU.
Conversely, if 50 percent or more of the total liner cargo carried
by all the agreement member lines in the geographic area covered by
the agreement during the calendar quarter was non-containerized,
each agreement member line should report only its total carryings of
non-containerized liner cargo during the calendar quarter
(specifying the unit of measurement used), total revenues generated
by its carriage of noncontainerized liner cargo, and average revenue
per unit of measurement.
The Monitoring Report specifies the format in which the
information is to be reported. Where the agreement covers both U.S.
inbound and outbound liner movements, inbound and outbound data
should be stated separately.
Part VI
Part VI requires a list, for each sub-trade within the scope of
the agreement, of the top 10 liner commodities (including
commodities not subject to tariff filing) carried by all the
agreement member lines during the calendar quarter, or a list of the
commodities accounting for 50 percent of the total liner cargo
carried by all the agreement member lines during the calendar
quarter, whichever list is longer. If 50 percent or more of the
total liner cargo carried by all the agreement member lines in the
sub-trade during the calendar quarter was containerized, this list
should include only containerized commodities. If 50 percent or more
of the total liner cargo carried by all the agreement member lines
in the sub-trade during the calendar quarter was noncontainerized,
this list should include only non-containerized commodities.
Commodities should be identified at the 4-digit level of customarily
used commodity coding schedules. Where the agreement covers both
U.S. inbound and outbound liner movements, inbound and outbound sub-
trades should be stated separately.
Part VII
Part VII requires a statement of the cargo volume and revenue
results experience by each of the agreement lines from each major
commodity in each sub-trade during the calendar quarter. The
Monitoring Report specifies the format in which the information is
to be reported.
Part VIII
Part VIII is required to be completed if Part III is answered
``YES.'' Each conference line is required to indicate the extent to
which it has taken independent rate actions on each of the leading
commodities in each of the sub-trades. Part VIII also inquires into
the type of shipper for whom independent rate actions have been
taken. The Monitoring Report specifies the format in which the
information is to be reported.
Part IX
Part IX requires each of the agreement lines to indicate any
change in the nature or type of service it provided at any port
within the entire geographic range of the agreement during the
calendar quarter.
Part X(A)
Part X(A) requires the name, title, address, telephone number
and cable address, telex or fax number of a person the Commission
may contact regarding the Monitoring Report and any information
provided therein.
Part X(B)
Part X(B) requires that a representative of the agreement lines
sign the Monitoring Report and certify that the information in the
Report and all attachments and appendices are, to the best of his or
her knowledge, true, correct and complete. The representative is
also required to indicate his or her relationship with the parties
to the agreement.
Federal Maritime Commission
Monitoring Report For Class A agreements Between or Among Ocean Common
Carriers
Agreement Number-------------------------------------------------------
(Assigned by FMC)
Part I Agreement Name:
----------------------------------------------------------------------
Part II Other Agreements
Indicate any change occurring during the calendar quarter to the
list of other agreements set forth in Part II of the Information
Form.
Part III Conference Agreements
Does the agreement authorize the parties to operate as a
conference?
Yes {time} No {time}
Part IV Market Share Information
Provide the market shares of all liner operators within the
entire geographic scope of the agreement and within each agreement
sub-trade during the calendar quarter. The information should be
provided in the format below:
Market Share Report for Calendar Quarter
[Indicate either entire agreement scope, or sub-trade name]
------------------------------------------------------------------------
TEUs or
other unit
of Percent
measurement
------------------------------------------------------------------------
Agreement Market Share:
Line A...................................... X,XXX XX%
Line B...................................... X,XXX XX%
Line C...................................... X,XXX XX%
-------------------------
[[Page 11582]]
Total Agreement Market Share............ X,XXX XX%
Non-Agreement Market Share:
Line X...................................... X,XXX XX%
Line Y...................................... X,XXX XX%
Line Z...................................... X,XXX XX%
-------------------------
Total Non-Agreement Market Share........ X,XXX XX%
Total Market............................ X,XXX 100%
------------------------------------------------------------------------
Part V Cargo and Revenue Results Agreement-Wide
For each agreement member line, provide total cargo carryings
(measured in TEUs or other unit of measurement) during the calendar
quarter within the entire geographic area covered by the agreement,
total revenues within the geographic area during the calendar
quarter, and average revenue per TEU or other unit of measurement.
The information should be provided in the format below:
Calendar Quarter
------------------------------------------------------------------------
Acg.
Total TEUs Revenue per
or other Total TEU or
Carrier unit of revenues other unit
measurement of
measurement
------------------------------------------------------------------------
A................................... ........... $ $
B................................... ........... $ $
C................................... ........... $ $
Etc................................. ........... $ $
------------------------------------------------------------------------
Part VI Leading Commodities
For each sub-trade within the scope of the agreement, list the
top 10 commodities carried by all the parties during the calendar
quarter, or list the commodities accounting for 50 percent of the
total carried by all the parties during the calendar quarter,
whichever list is longer. The information should be provided in the
format below:
Calendar Quarter
I. Sub-trade
A. First leading commodity
B. Second leading commodity
C. Third leading commodity etc.
II. Sub-trade
A. First leading commodity etc.
Part VIII Cargo and Revenue Results by Sub-Trade
For each sub-trade within the scope of the agreement, and for
each of the leading commodities listed for each sub-trade in the
response to Part VI, and for each party, state the total TEUs (or
other unit of measurement) carried and average gross revenue per TEU
(or other unit of measurement).
The information should be provided in the format below:
Calendar Quarter
I. Sub-trade A
A. First leading commodity
1. Carrier A
(a) Total TEUs (or other units of measurement) carried
(b) Average gross revenue per TEU (or other unit of measurement)
2. Carrier B)
(a) etc.
II. Sub-trade B
A. First leading commodity
1. etc.
Part VIII Independent Rate Actions (if applicable)
For each sub-trade within the scope of the agreement, and for
each of the leading commodities listed for each sub-trade in the
response to Part VI, and for each party, state (a) the total number
of independent rate actions taken during the calendar quarter
applicable to that commodity moving in that sub-trade; (b) how many
of the total were independent rate actions taken to service specific
shipper accounts; (c) of those, how many were for non-vessel-
operating common carriers, and how many were for shippers'
associations. The information should be provided in the format
below:
Calendar Quarter
I. Sub-trade A
A. First leading commodity
1. Carrier A
(a) Number of IA rate actions
(i) Number of IA rate actions taken to service specific shipper
accounts
(i)(a) Number taken to service non-vessel-operating common
carrier accounts
(1)(b) Number taken to service shippers' association accounts
2. Carrier B
(a) etc.
B. Second leading commodity
1. Carrier A
(a) etc.
II. Sub-trade B
A. First leading commodity
1. etc.
Part IX Port Service
For each party, state any change in the nature or type of
service (such as base port designation, frequency of vessel calls,
use of indirect rather than direct service, etc.) effected at any
port within the entire geographic scope of the agreement during the
calendar quarter.
Part X
(A) Identification of Person(s) to Contact Regarding the Monitoring
Report
(1) Name---------------------------------------------------------------
(2) Title--------------------------------------------------------------
(3) Firm Name and Business
----------------------------------------------------------------------
(4) Business Telephone Number
----------------------------------------------------------------------
(5) Cable Address, Telex or Fax Number
----------------------------------------------------------------------
(B) Certification
This Monitoring Report, together with any and all appendices and
attachments thereto, was prepared and assembled in accordance with
instructions issued by the Federal Maritime Commission. The
information is, to the best of my knowledge, true, correct, and
complete.
Name (please print or type)
----------------------------------------------------------------------
Title------------------------------------------------------------------
Relationship with parties to agreement
----------------------------------------------------------------------
Signature--------------------------------------------------------------
Date-------------------------------------------------------------------
37. A new appendix D to Part 572 is added to read as follows:
Appendix D to Part 572--Monitoring Report for Class B Agreements and
Instructions.
Instructions
A complete response must be supplied to each part of the Report.
Where the party answering a particular part is unable to supply a
complete response, that party shall provide either estimated data
(with an explanation of why precise data are not available) or a
detailed statement of reasons for noncompliance and the efforts made
to obtain the required information. All sources must be identified.
Part I
Part I requires a statement of the full name of the agreement,
and the assigned FMC number.
Part II
Part II requires a statement of any change occurring during the
calendar quarter to the list of other agreements set forth in Part
II of the Information Form.
Part III
Part III requires the market shares of all liner operators
within the entire geographic scope of the agreement and in each sub-
trade within the scope of the agreement during the calendar quarter.
A joint service shall be treated as a single liner operator, whether
it is an agreement line or a non-agreement line.
Sub-trade is defined as the scope of all liner movements between
each U.S. port range within the scope of the agreement and each
foreign country within the scope of the agreement. Where the
agreement covers both U.S. inbound and outbound liner movements,
inbound and outbound market shares should be shown separately.
U.S. port ranges are defined as follows:
Atlantic--Includes ports along the eastern seaboard from the
northern boundary of Maine to, but not including, Key West, Florida.
Also includes all ports bordering
[[Page 11583]]
upon the Great Lakes and their connecting waterways as well as all
ports in the State of New York on the St. Lawrence River.
Gulf--Includes all ports along the Gulf of Mexico from Key West,
Florida, to Brownsville, Texas, inclusive. Also includes all ports
in Puerto Rico and U.S. Virgin Islands.
Pacific--Includes all ports in the State of Alaska, Hawaii,
California, Oregon and Washington. Also includes all ports in Guam,
American Samoa, Northern Marinas, Johnston Island, Midway Island and
Wake Island.
An application may be filed for a waiver of the definition of
``sub-trade,'' under the provisions described in 46 CFR 572.709. In
any such application, the burden shall be on the agreement carriers
to show that their marketing and pricing practices are done by
ascertainable multi-country regions rather than by individuals
countries or, in the case of the United States, by broader areas
than the port ranges defined herein. The Commission will also
consider whether the alternate definition of ``sub-trade'' requested
by the waiver application is reasonably consistent with the
definition of ``sub-trade'' applied in the original Information Form
filing for the agreement.
The formula for calculating market share in the entire agreement
scope or in a sub-trade is as follows:
The total amount of liner cargo carried on each liner operator's
liner vessels in the entire agreement scope or in the sub-trade
during the calendar quarter, divided by the total liner movement in
the entire agreement scope or in the sub-trade during the calendar
quarter, which quotient is multiplied by 100. The market shares held
by non-agreement lines as by agreement lines must be provided,
stated separately in the format indicated.
If 50 percent or more of the total liner cargo carried by the
agreement lines in the entire agreement scope or in the sub-trade
during the calendar quarter was containerized, only containerized
liner movements (measured in TEUs) must be used for determining
market share. If 50 percent or more of the total liner cargo carried
by the agreement lines was non-containerized cargo, only non-
containerized liner movements must be used for determining market
share. The unit of measure used in calculating amounts of non-
containerized cargo must be specified clearly and applied
consistently.
Liner movements is the carriage of liner cargo by liner
operators. Liner cargoes are cargoes carried on liner vessels in a
liner service. A liner operator is a vessel-operating common carrier
engaged in liner service. Liner vessels are those vessels used in a
liner service. Liner service refers to a definite, advertised
schedule of salings at regular intervals. All these definitions,
terms and descriptions apply only for purposes of the Monitoring
Report.
Part IV
Part IV requires each agreement member line's total liner cargo
carrying within the entire geographic area covered by the agreement
during the calendar quarter, each line's total liner revenues within
the geographic area during the calendar quarter, and average
revenue.
If 50 percent or more of the total liner cargo carried by all
the agreement member lines in the geographic area covered by the
agreement during the calendar quarter was containerized, each
agreement member line should report only its total carrying of
containerized liner cargo (measured in TEUs) during the calender
quarter within the geographic area, total revenues generated by its
carriage of containerized liner cargo, and average revenue per TEU.
Conversely, if 50 percent or more of the total liner cargo carried
by all the agreement member lines in the geographic area covered by
the agreement during the calendar quarter was non-containerized,
each agreement member line should report only its total carryings of
non-containerized liner cargo during the calendar quarter
(specifying the unit of measurement used), total revenues generated
by its carriage of non-containerized cargo, and average revenue per
unit of measurement.
The Monitoring Report specifies the format in which the
information is to be reported. Where the agreement covers both U.S.
inbound and outbound liner movements, inbound and outbound data
should be stated separately.
Part V
Part V requires each of the agreement member lines to indicate
any change in the nature or type of service it provided at any port
within the entire geographic scope of the agreement during the
calendar quarter.
Part VI(A)
Part VI(A) requires the name, title, address, telephone number
and cable address, telex or fax number of a person the Commission
may contact regarding the Monitoring Report and any information
provided therein.
Part VI(B)
Part VI(B) requires that a representative of the agreement lines
sign the Monitoring Report and certify that the information in the
Report and all attachments and appendices are, to the best of his or
her knowledge, true, correct and complete. The representative is
also required to indicate his or her relationship with the parties
to the agreement.
Federal Maritime Commission
Monitoring Report For Class B Agreements Between or Among Ocean Common
Carriers
Agreement Number-------------------------------------------------------
(Assigned by FMC)
Part I Agreement
Name:
----------------------------------------------------------------------
Part II Other Agreements
Indicate any change occurring during the calendar quarter to the
list of other agreements set forth in Part II of the Information
Form.
Part III Market Share Information
Provide the market shares of all liner operators within the
entire geographic scope of the agreement and within each sub-trade
during the calendar quarter. The information should be provided in
the format below:
Market Share Report for Calendar Quarter
[Indicate either entire agreement scope, or sub-trade name]
------------------------------------------------------------------------
TEUs or
other unit
of Percent
measurement
------------------------------------------------------------------------
Agreement Market Share:
Line A.......................................... X,XXX XX
Line B.......................................... X,XXX XX
Line C.......................................... X,XXX XX
-----------------------
Total Agreement Market Share.................. X,XXX XX
=======================
Non-Agreement Market Share:
Line X.......................................... X,XXX XX
Line Y.......................................... X,XXX XX
Line Z.......................................... X,XXX XX
-----------------------
Total Non-Agreement Market Share.............. X,XXX XX
Total Market.................................. X,XXX 100
------------------------------------------------------------------------
Part IV Cargo and Revenue Results Agreement-Wide
For each agreement member line, provide total cargo carryings
(measured in TEUs or other unit of measurement) during the calendar
quarter within the entire geographic area covered by the agreement,
total revenues within the geographic area during the calendar
quarter, and average revenue per TEU or other unit of measurement.
The information should be provided in the format below:
Calendar Quarter
------------------------------------------------------------------------
Avg.
Total TEUs revenue per
or other Total TEU or
Carrier unit of revenues other unit
measurement of
measurement
------------------------------------------------------------------------
A................................... ........... $ $
B................................... ........... $ $
C................................... ........... $ $
Etc................................. ........... $ $
------------------------------------------------------------------------
Part V Port Service
For each party, state any change in the nature or type of
service (such as base port designation, frequency of vessel calls,
use of indirect rather direct service, etc.) effected at any port
within the entire geographic scope of the agreement during the
calendar quarter.
Part VI
(A) Identification of Person(s) to Contact Regarding the Monitoring
Report
(1) Name---------------------------------------------------------------
(2) Title--------------------------------------------------------------
(3) Firm Name and Business
----------------------------------------------------------------------
(4) Business Telephone Number
[[Page 11584]]
----------------------------------------------------------------------
(5) Cable Address, Telex or Fax Number
----------------------------------------------------------------------
(B) Certification
This Monitoring Report, together with any and all appendices and
attachments thereto, was prepared and assembled in accordance with
instructions issued by the Federal Maritime Commission. The
information is, to the best of my knowledge, true, correct, and
complete.
Name (please print or type)
----------------------------------------------------------------------
Title------------------------------------------------------------------
Relationship with parties to agreement
----------------------------------------------------------------------
Signature--------------------------------------------------------------
Date-------------------------------------------------------------------
38. A new appendix E to part 572 is added to read as follows:
Appendix E to Part 572--Monitoring Report for Class C Agreements and
Instructions
Instructions
A complete response must be supplied to the Report. Where the
filing party is unable to supply a complete response, that party
shall provide either estimated data (with an explanation of why
precise data are not available) or a detailed statement of reasons
for noncompliance and the efforts made to obtain the required
information. All sources must be identified.
Part I
Part I requires a statement of the full name of the agreement,
and the assigned FMC number.
Part II
Part II requires a statement of any change occurring during the
calendar quarter to the list of other agreements set forth in Part
II of the Information Form.
Part III
Part III requires a statement of any change in the nature or
type of service at any of the ports within the entire geographic
scope of the agreement.
Part IV(A)
Part IV(A) requires the name, title, address, telephone number
and cable address, telex or fax number of a person the Commission
may contact regarding the Monitoring Report and any information
provided therein.
Part IV(B)
Part IV(B) requires that a representative of the agreement lines
sign the Monitoring Report and certify that the information in the
Report and all attachments and appendices are, to the best of his or
her knowledge, true, correct and complete. The representative is
also required to indicate his or her relationship with the parties
to the agreement.
Federal Maritime Commission
Monitoring Report For Class C Agreements Between or Among Ocean Common
Carriers
Agreement Number-------------------------------------------------------
(Assigned by FMC)
Part I Agreement
Name:
----------------------------------------------------------------------
Part II Other Agreements
Indicate any change occurring during the calendar quarter to the
list of other agreements set forth in Part II of the Information
Form.
Part III Port Service
For each party, state any change in the nature or type of
service (such as base port designation, frequency of vessel calls,
use of indirect rather direct service, etc.) effected at any port
within the entire geographic scope of the agreement during the
calendar quarter.
Part IV
(A) Identification of Person(s) to Contact Regarding the Monitoring
Report
(1) Name---------------------------------------------------------------
(2) Title--------------------------------------------------------------
(3) Firm Name and Business
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(4) Business Telephone Number
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(5) Cable Address, Telex or Fax Number
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(B) Certification
This Monitoring Report, together with any and all appendices and
attachments thereto, was prepared and assembled in accordance with
instruments issued by the Federal Maritime Commission. The
information is, to the best of my knowledge, true, correct, and
complete.
Name (please print or type)
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Title------------------------------------------------------------------
Relationship with parties to agreement
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Signature--------------------------------------------------------------
Date-------------------------------------------------------------------
By the Commission.
Joseph C. Polking,
Secretary.
[FR Doc. 96-6600 Filed 3-20-96; 8:45 am]
BILLING CODE 6730-01-M
Complete official Federal Register PDF
FR Doc. 96-6597 Approval and Promulgation of State Implementation Plan; Indiana; Clean-Fuel Fleet Program
[Federal Register Volume 61, Number 56 (Thursday, March 21, 1996)]
[Rules and Regulations]
[Pages 11552-11556]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6597]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[IN66-1-7289a; FRL-5439-6]
Approval and Promulgation of State Implementation Plan; Indiana;
Clean-Fuel Fleet Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: The U.S. Environmental Protection Agency (USEPA) is giving
full approval through a direct final action to a state implementation
plan (SIP) revision request submitted on December 20, 1995, and
February 14, 1996, by the State of Indiana for the purpose of
establishing a Clean-Fuel Fleet Program (CFFP) in Lake and Porter
Counties. Lake and Porter Counties are classified as severe
nonattainment for ground-level ozone, commonly known as urban smog, and
are required under the Clean Air Act (CAA) to attain the National
Ambient Air Quality Standards (NAAQS) by 2007. The Indiana CFFP, which
is also required by the CAA, is one of the control measures being
implemented in these counties to reduce ozone precursor emissions in
order to help attain the ozone standard. The Indiana CFFP requires
that, beginning in Model Year (MY) 1998, a specified percentage of the
new vehicles acquired by certain vehicle fleets operating in Lake and
Porter Counties meet clean fuel vehicle (CFV) emissions standards,
which are more stringent than current federal vehicle standards.
Indiana expects that after the full phase-in of the CFFP, approximately
3500 fleet vehicles in Lake and Porter Counties will meet the CFV
tailpipe standards.
DATES: This final rule is effective May 20, 1996 unless adverse
comments are received by April 22, 1996. If the effective date is
delayed, timely notice will be published in the Federal Register.
ADDRESSES: Copies of this submittal, and other documents pertinent to
this direct final rule are available at the following address: U.S.
Environmental Protection Agency, Region 5, Air and Radiation Division,
Air Programs Branch, 77 West Jackson Boulevard, Chicago, Illinois
60604.
Comments on this rule should be addressed to: J. Elmer Bortzer,
Chief, Regulation Development Section, Air Programs Branch (AR-18J),
United States Environmental Protection Agency, Region 5, 77 West
Jackson Boulevard, Chicago, Illinois 60604.
FOR FURTHER INFORMATION CONTACT: Mark J. Palermo, Environmental
Protection Specialist, Regulation Development Section, Air Programs
Branch (AR-18J), United States Environmental Protection Agency, Region
5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-6082.
SUPPLEMENTARY INFORMATION:
I. Background
On November 15, 1990, Congress enacted amendments to the 1977 CAA,
codified at 42 U.S.C. 7401-7671q. The CFFP is contained under Part C of
Title II of the CAA, entitled ``Clean Fuel Vehicles.'' Part C was added
to the CAA to establish two programs, a clean-fuel vehicle pilot
program in the state of California (the California Pilot Test Program)
and a federal CFFP in certain ozone and carbon monoxide (CO)
nonattainment areas.
The CFFP will introduce lower polluting vehicles, CFVs, into
centrally-fueled fleets by requiring covered fleet operators to include
a specified percentage of CFVs in their new fleet purchases. The goal
of the CFFP is to reduce emissions of non-methane organic gases (NMOG),
oxides of nitrogen (NOx), and CO through the introduction of CFVs
into the covered areas. Both NMOG and NOx are precursors of ozone
and, in most areas, their reduction will reduce the concentration of
ozone in covered ozone nonattainment areas. Reductions of vehicular CO
emissions will reduce the concentration of CO in covered CO
nonattainment areas.
Congress chose centrally-fueled fleets because operators of these
fleets have more control over obtaining fuel than the general public.
Additionally, the control that operators maintain over their fleets
simplifies maintenance and refueling of these vehicles. Finally,
because fleet vehicles typically travel more miles on an annual basis
than do non-fleet vehicles, they provide greater opportunity to improve
air quality on a per vehicle basis.
Section 182(c)(4) of the CAA allows states to opt-out of the CFFP
by submitting, for USEPA approval, a SIP revision consisting of a
substitute program resulting in as much or greater long term emission
reductions in ozone producing and toxic air emissions as the CFFP. The
USEPA may approve such a revision ``only if it consists exclusively of
provisions other than those required under the [CAA] for the area.''
USEPA has promulgated rulemakings on March 1, 1993, December 9,
1993, and September 30, 1994, establishing emission standards for CFVs
and criteria for state CFFPs (See 58 FR 11888, 58 FR 64679, and 59 FR
50042). These rules were codified in 40 CFR part 88.
II. Program Requirements
Unless a state chooses to opt-out of the CFFP under section
182(c)(4) of the CAA, section 246 of the CAA directs a state containing
covered areas to revise its SIP, within 42 months after enactment of
the CAA, to establish a CFFP. The CFFP shall require a specified
percentage of all newly acquired vehicles of covered fleets, beginning
with MY 1998 and thereafter, to be CFVs, and such vehicles shall use
the fuel on which the vehicle was certified to be a CFV (or to use a
fuel that will result in even fewer emissions than the fuel that was
used for certification), when operating in the covered area.
III. State Submittal
The State of Indiana did not choose to opt-out of the CFFP pursuant
to section 182(c)(4) of the CAA. On December 7, 1994, the Indiana Air
Pollution Control Board (IAPCB) held a preliminary adoption hearing on
a proposed rule to establish a CFFP program, and on October 4, 1995,
the IAPCB adopted the rule. The rule became effective on January 18,
1996, and was published in the Indiana State Register on February 1,
1996. The Indiana Department of Environmental Management (IDEM)
formally submitted the CFFP rule to USEPA on December 20, 1995, as a
revision to the Indiana ozone SIP, and submitted an addendum which
included the Secretary of State signature and the published rule on
February 14, 1996.
The December 20, 1995, and February 14, 1996, submittals contains
the following new rules:
326 Indiana Air Code (IAC) 19-3 Clean Fuel Fleet Vehicles
19-3-1 Applicability
19-3-2 Definitions
19-3-3 General purchase requirements
19-3-4 Banking and trading of credits
[[Page 11553]]
19-3-5 Registration and recordkeeping requirements
19-3-6 Exemptions from transportation control measures
19-3-7 Violations
IV. USEPA's Analysis of the State's Clean Fuel Fleet Program
USEPA has reviewed the State's submittal for consistency with the
requirements of USEPA regulations at 40 CFR Part 88. A summary of
USEPA's analysis is provided below.
A. Covered Areas
The SIP revision needs to list those areas where the CFFP will be
implemented, as required by section 246(a)(2) of the CAA. In Indiana,
the applicable areas defined by section 246(a)(2) are Lake and Porter
Counties.
Section 19-3-1 defines the CFFP's covered area as Lake and Porter
Counties. These are the same counties as required by the CAA.
B. Definitions
Sections 241(1) through (7) of the CAA, and 40 CFR 88.302-94,
define specific terms that are to be used in state CFFP regulations.
Section 19-3-2 contains definitions of the terms used by Indiana in
the CFFP rule. The revision's definitions are consistent with section
241(1) through (7) of the CAA as well as 40 CFR Part 88.302-94.
C. Fleet Applicability
Section 246(b) requires that the SIP revision's provisions for
compliance with the CFFP apply to ``covered fleet operators.'' The
definition of ``covered fleet operator,'' as provided for in 40 CFR
88.302-94, can be broken down into the following criteria which the SIP
revision must include in order to determine which fleet operators are
``covered fleet operators:''
(a) The fleet operator is a person (individual, business, agency,
etc;) who owns, operates, leases, or otherwise controls ten or more
fleet vehicles. Vehicles leased for less than 120 days are exempt from
this criteria.
(b) At least ten of those fleet vehicles are in a vehicle class
which is required by the CAA to be covered in the program. These
vehicle classes are light-duty vehicles and light-duty trucks (LDVs and
LDTs) less than 8,500 pounds Gross Vehicle Weight Rating (GVWR) and
heavy-duty trucks (HDTs) less than 26,000 pounds GVWR.
(c) At least ten of those vehicles are not exempt from the program.
Section 241(5) of the CAA exempts motor vehicles held for lease or
rental (without a driver) to the general public, motor vehicles held
for sale by motor vehicle dealers (including demonstration vehicles),
motor vehicles used for motor vehicle manufacturer product evaluations
or tests, law enforcement and other emergency vehicles, and nonroad
vehicles (including farm and construction vehicles).
(d) At least ten of those vehicles operate in the covered area. All
fleet vehicles which are garaged in the covered area are considered to
``operate in the covered area.'' In addition, 40 CFR 88.302-94 provides
that fleet vehicles that operate in, but are garaged outside, the
covered area be included in the CFFP. This means that fleet vehicles
garaged outside the Lake and Porter Counties but nonetheless operated
in those counties are applicable to the CFFP rules.
(e) At least ten of those vehicles can be centrally fueled 100
percent of the time. ``Can be centrally fueled,'' as defined in 40 CFR
88.302-94, means the sum of those vehicles that are centrally fueled
and those vehicles that are capable of being centrally fueled. Fleet
vehicles are ``centrally fueled'' when they are fueled 100 percent of
the time at a location that is owned, operated, or controlled by the
covered fleet operator, or is under contract with the covered fleet
operator. Location, as defined in 40 CFR 88.302-94(3), means any
building structure, facility, or installation which; is owned or
operated by a person, or is under the control of a person; is located
on one or more contiguous properties and contains or could contain a
fueling pump or pumps for the use of the vehicles owned or controlled
by that person. Any vehicle under normal operation which is garaged at
a personal residence that is, in fact, centrally fueled 100 percent of
the time shall be considered to be ``centrally fueled'' for
applicability purposes.
On the other hand, a fleet vehicle that is ``capable of being
centrally fueled'' is one which could be refueled 100 percent of the
time at a location that is owned, operated, or controlled by the
covered fleet operator, or is under contract with the fleet operator.
Fleet vehicles garaged at a personal residence would not be considered
being ``capable of being centrally fueled'' for applicability purposes.
A state must, in its SIP revision, provide a methodology to be used in
determining how many fleet vehicles are capable of being centrally
fueled, subject to USEPA approval.
Section 19-3-1 and 19-3-2 of the Indiana rule contain all the
necessary components for determining covered fleet operator
applicability as described above. Further, the rule states in
subsection 19-3-2(4) that the determination of ``capable of being
centrally fueled'' shall be made by using USEPA's recommended method
provided on December 9, 1993 (58 FR 64684), as amended on September 30,
1994 (59 FR 50068). This method includes requiring covered fleet
operators which control vehicles which are not centrally fueled 100
percent of the time to develop trip profiles which indicate the
refueling patterns of those vehicles. These trip profiles will, in
turn, be used to calculate the number of vehicles in the fleet which
are capable of being centrally fueled.
D. Clean-Fuel Vehicles (CFVs)
Section 241(7) of the CAA defines a CFV to mean a vehicle in a
class or category of vehicles that has been certified to meet for any
model year the applicable CFV standards. 40 CFR 88.104-94 and 40 CFR
88.105-94 establish three categories of increasingly stringent CFV
standards, which are referred to as low-emission vehicle (LEV)
standards, ultra low-emission vehicle (ULEV) standards, and zero-
emission vehicle (ZEV) standards.
Section 19-3-2(7) of the Indiana rule defines a CFV as a vehicle
certified as a LEV, ULEV, or ZEV when it is operating on the clean fuel
for which the vehicle was certified as a clean fuel vehicle, meeting
the emissions standards applicable to such a vehicle promulgated
September 30, 1994 at 59 FR 50042. The standards specified in the rule
are the same as those established in 40 CFR 88.104-94 and 40 CFR.105-
94.
E. Percentage Requirements
Section 246(b) of the CAA provides that the SIP revision require
that at least a specified percentage of all new covered fleet vehicles
in MY 1998 and thereafter purchased by each covered fleet operator
shall be CFVs, and that these CFVs shall use the clean fuel or fuels
for which they were certified to operate on when operating in the
covered area.
``New covered fleet vehicle,'' for purposes of this requirement,
means a vehicle that has not been previously controlled by the current
purchaser, regardless of the MY, except as follows: vehicles that were
manufactured before the start of MY 1998 for such vehicle's weight
class, vehicles transferred due to the purchase of a company not
previously controlled by the purchaser or due to a consolidation of
business operations, vehicles transferred as part of an employee
transfer, or vehicles transferred for seasonal requirements, that is,
less than 120 days (See 40 CFR
[[Page 11554]]
88.302-94). This definition of new covered fleet vehicle is distinct
from the definition of new vehicle as it applies to manufacturer
certification, including the certification of vehicle to clean fuel
standards.
Further, section 246(b) of the CAA provides the following table
detailing the phase-in of the specified percentage requirements, which
must be included in the SIP revision:
----------------------------------------------------------------------------------------------------------------
MY 1998 MY 1999 MY 2000
Vehicle type (percent) (percent) (percent)
----------------------------------------------------------------------------------------------------------------
LDTs up to 6000 lbs. GVWR and LDVs.............................. 30 50 70
HDTs above 8,500 lbs. GVWR but below 26,000 lbs. GVWR........... 50 50 50
----------------------------------------------------------------------------------------------------------------
As an alternative to purchasing CFVs to meet the purchase
requirement, section 246 allows fleet operators to redeem CFFP credits
instead (the CFFP credit provisions are described in further detail
below). Also, section 247 provides that new or existing vehicles owned
or purchased by the fleet can be converted to meet CFV standards, if
the conversions were made according to requirements promulgated at 40
CFR 88.306. (See September 30, 1994, at 59 FR 50042).
Finally, section 246(d) of the CAA requires that the choice of CFVs
and clean fuels shall be at the discretion of the covered fleet
operators.
The Indiana rule correctly incorporates all of the above required
percentage purchase requirements which will be placed upon covered
fleet operators. It also includes the three ways listed above to comply
with the purchase requirement. Section 19-3-3(d) of the Indiana rule
provides that the fleet operator shall decide which CFVs and fuels to
use in order to comply with the purchase requirement. Section 19-3-3(f)
requires that CFVs used to meet purchase requirements or generate
credits shall operate at all times on the fuel for which they were
certified as CFVs in Lake and Porter Counties. Finally, the rule
requires at section 3(b) that CFV conversions must be done in
accordance with the requirements for CFV conversions contained in 59 FR
50042, September 30, 1994.
G. Credit Program
Section 246(f) of the CAA and 40 CFR 88.304-94 require states to
implement a credit program as part of their CFFPs. Briefly, the CFFP
credit program establishes a market-based mechanism that allows fleet
owners some flexibility in complying with the CFFP purchase
requirement. The regulations under 40 CFR 88.304-94 require CFFPs to
allow fleet operators to generate credits in any of the following ways:
(1) by the purchase of more CFVs than the minimum required by a CFFP;
(2) by the purchase of CFVs which meet more stringent emission
standards than the minimum required by the CFFP; (3) by the purchase of
CFVs otherwise exempt from the CFFP; and (4) by the purchase of CFVs
before MY 1998.
40 CFR 88.304-94 further states that the credits generated may be
used by a covered fleet operator to satisfy the purchase requirements
of a CFFP or may be traded by one covered fleet operator to another,
provided the credits were generated, traded, and used by operators
located in the same nonattainment area. Lake and Porter Counties are in
the same ozone nonattainment area as the Chicago area (as codified in
40 CFR 81.314 and 40 CFR 81.315), so that fleet operators covered under
the Indiana CFFP can trade credits with fleet operators covered under
the Illinois CFFP for the Chicago area portion of the ozone
nonattainment area, and vice versa. Certain restrictions on the trading
of the credits between classes must be observed. The credits do not
depreciate with time and are to be freely traded without interference
by the State.
Section 19-3-4 establishes rules for acquiring, trading and
redeeming credits under the Indiana CFFP credit program according to
regulations established in 40 CFR 88.304-94. The rule under 19-3-
4(d)(4) requires credits for LDV and HDV to be kept separate. Trading
of credits between the LDV and LDT subclasses is permitted. However,
trading is not allowed between the HDV class and LDV/LDT class, or
between HDV subclasses in an upward direction. These limitations and
restrictions are consistent with those specified in section 246(f)(2)
of the CAA. Moreover, section 19-3-4(a)(11) specifies that CFVs used to
meet the purchase requirements or to generate purchase credits for a
fleet operator cannot be used to satisfy additional purchase
requirements or generate additional purchase credits for any other
fleet operator, even if the latter operator purchases or acquires those
CFVs from the former. Section 19-3-4(e) of the Indiana rule includes
tables which set forth the amount of credit granted for the various
ways of meeting the purchasing requirements explained above. These
tables are identical to Tables C94-1.1, C94-1.2, C94-1.3, C94-4.1, C94-
4.2, and C94-4.3 of 40 CFR Part 88, Subpart C.
Finally, the rule specifies that each fleet operator submit an
annual report to IDEM which indicates the number of credits sold,
traded, or purchased during the previous year and the number of credits
proposed to be used by the operator to satisfy purchase requirements
for that year.
H. Fuel Use
40 CFR 88.304-94(b)(3) requires that the fuel on which a dual fuel/
flexible fuel CFV was certified must be used at all times when the
vehicle is in the covered area.
Section 19-3-3(f) requires that any CFV acquired to meet the
purchase requirements of the CFFP or to generate credits must be
operated, while in the covered area, on the fuel or power source for
which it was certified by USEPA to meet applicable emission standards.
It should be noted that the definition of ``clean alternative
fuel'' under section 241(2) of the CAA does not designate particular
fuels as fuels that vehicles must use in order to be considered CFVs.
Rather, for purposes of the CFFP, ``clean alternative fuel,'' is
defined under section 241(2) of the CAA as meaning any fuel or power
source used in a CFV that complies with the standards and requirements
applicable to such vehicle under the CFFP when using such fuel or power
sources. In other words, when a vehicle model is certified to meet CFV
emission standards, the fuel type the vehicle model used to achieve
those standards is considered the ``clean alternative fuel.''
A CFV can operate on any fuel, including gasoline, as long as the
vehicle's manufacturer received a certificate from the USEPA for that
vehicle model confirming that it meets the particular CFV emission
standard when using that fuel. The type of fuel or power source on
which a CFV will operate on will be determined only by what fuel the
CFV has been certified to use.
I. Fuel Availability:
Section 246(e) of the CAA requires the SIP revision to require fuel
providers to
[[Page 11555]]
make clean alternative fuel available to the covered fleets at central
locations.
Because fuel providers in Lake and Porter Counties are already
required by USEPA to make reformulated gasoline available, and USEPA
expects that many CFVs in MY 1998 will be certified to operate on
reformulated gasoline, USEPA believes that section 246(e) is satisfied
for purposes of the Indiana CFFP.
J. Consultation
Section 246(a)(4) of the CAA requires that the SIP revision must be
developed in consultation with fleet operators, vehicle manufacturers,
fuel producers, distributors of motor vehicle fuel, and other
interested parties, taking into consideration operational range,
specialty uses, vehicle and fuel availability, costs, safety, resale
values, and other relevant factors.
On October 14, 1994, before the IAPCB preliminarily adopted the
CFFP, IDEM sent a letter, addressed to 250 representatives of fleet
operators and fuel providers expected to be affected by the Indiana
CFFP, which described the program, solicited comment on the proposed
rule, invited the representatives to participate with IDEM in the
program's development, and invited them to attend the IAPCB preliminary
adoption hearing.
On August 31, 1995, before the IAPCB adopted the CFFP, IDEM sent a
letter to these same representatives inviting them to attend an
informational session where IDEM and the regulated community could meet
together to discuss the CFFP and be given further opportunity to
comment on the rule. This meeting was held in Portage, Indiana on
September 20, 1995.
K. Recordkeeping and Monitoring
USEPA recommends that the State include recordkeeping provisions in
its CFFP that require fleet operators to register with the State in
advance of MY 1998 in order to provide information to be used to
determine their covered status, require annual reports from covered
fleet operators indicating annual fleet acquisitions, fuel use, and
credit generation/redemption to determine compliance, and require
covered and noncovered fleet operators to submit periodic reports
indicating covered status (See 58 FR at 64679, December 9, 1993).
Section 19-3-5 provides for recordkeeping and reporting
requirements as described above. In addition, 19-3-5 requires that
information required in the annual report, as well as routine
maintenance records for all vehicles, shall be maintained by the
covered fleet operator for compliance audit purposes. Monthly odometer
readings, fuel economy information, and fuel usage for dual fuel or
flexible-fuel vehicles also need to be kept, as well as copies of
converted vehicle certification for all converted clean-fuel vehicles.
CFVs shall at all times be accompanied by certification that they are
CFVs.
L. Enforcement
40 CFR 88.304-94(b)(ii) requires that each CFFP SIP revision
stipulate the specific mechanism by which the CFFP will be administered
and enforced.
IDEM will oversee compliance and enforcement with this rule, and
will hire contractors to review the annual recordkeeping reports to
assure the regulatory requirements of the Indiana CFFP are being met.
The Indiana Code (IC) 13-7-13-1, states that any person who
violates any provision of IC 13-1-1, IC 13-1-3, or IC 13-1-11, or any
regulation or standard adopted by one (1) of the boards (i.e., IAPCB),
or who violates any determination, permit, or order made or issued by
the commissioner (of IDEM) pursuant to IC 13-1-1, or IC 13-1-3, is
liable for a civil penalty not to exceed twenty-five thousand dollars
per day of any violation. Because this submittal is a regulation
adopted by the IAPCB, a violation of which subjects the violator to
penalties under IC 13-7-13-1, and because a violation of the ozone SIP
would also subject a violator to enforcement under section 113 of the
CAA by USEPA, USEPA finds that the submittal contains sufficient
enforcement penalties for approval. In addition, IDEM has submitted a
civil penalty policy document which accounts for various factors in the
assessment of an appropriate civil penalty for noncompliance with IAPCB
rules, among them, the severity of the violation, intent of the
violator, and frequency of violations. USEPA finds these criteria
sufficient to deter non-compliance.
M. Transportation Control Measure Exemptions
40 CFR 88.307-94(a) requires states to exempt any CFV required by
law to participate in a CFFP from temporal-based (e.g., time-of-day or
day-of-week) transportation control measures (TCM) existing for air
quality reasons as long as the exemption does not create a clear and
direct safety hazard. In the case of high occupancy vehicle (HOV)
lanes, this exemption only applies to CFVs that are certified by USEPA
to be inherently low-emitting vehicles (ILEV) pursuant to 40 CFR
88.313-93.
Section 19-3-6 stipulates that CFVs shall receive TCM exemptions
from time-of-day, day-of-the-week, day-of-the-month, or other similar
time-based restrictions. Further, ILEVs shall be exempt from mechanisms
designed to reduce air pollution from motor vehicles by limiting their
use in certain areas, air quality related parking restrictions, and HOV
lane restrictions.
N. Conclusion
The USEPA has reviewed the Indiana CFFP SIP revision submitted to
the USEPA as described above. The materials contained in the SIP
revision represent an acceptable approach to the CFFP requirements and
meet the criteria required for approvability. The USEPA therefore
approves Indiana's CFFP SIP submittal. With this action, USEPA
incorporates Indiana's CFFP SIP revision into the SIP, making it
federally enforceable.
Procedural Background
A. Direct Final Action
The USEPA is publishing this action without prior proposal because
USEPA views this action as a noncontroversial revision and anticipates
no adverse comments. However, USEPA is publishing a separate document
in this Federal Register publication, which constitutes a ``proposed
approval'' of the requested SIP revision and clarifies that the
rulemaking will not be deemed final if timely adverse or critical
comments are filed. The ``direct final'' approval shall be effective on
May 20, 1996, unless USEPA receives adverse or critical comments by
April 22, 1996. If USEPA receives comments adverse to or critical of
the approval discussed above, USEPA will withdraw this approval before
its effective date by publishing a subsequent Federal Register document
which withdraws this final action. All public comments received will
then be addressed in a subsequent rulemaking document. Any parties
interested in commenting on this action should do so at this time. If
no such comments are received, USEPA hereby advises the public that
this action will be effective on May 20, 1996.
B. Executive Order 12866
This action has been classified as a Table 3 action for signature
by the Regional Administrator under the procedures published in the
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a
July 10, 1995, memorandum from Mary D. Nichols, Assistant Administrator
for Air and Radiation. The Office of Management and Budget (OMB) has
[[Page 11556]]
exempted this regulatory action from Executive Order 12866 review.
C. Applicability to Future SIP Decisions
Nothing in this action should be construed as permitting, allowing
or establishing a precedent for any future request for revision to any
SIP. USEPA shall consider each request for revision to the SIP in light
of specific technical, economic, and environmental factors and in
relation to relevant statutory and regulatory requirements.
D. Unfunded Mandates
Section 202 of the Unfunded Mandates Reform Act of 1995 (``Unfunded
Mandates Act'') (signed into law on March 22, 1995) requires that the
USEPA prepare a budgetary impact statement before promulgating a rule
that includes a Federal mandate that may result in expenditure by
State, local, and tribal governments, in aggregate, or by the private
sector, of $100 million or more in any one year. Section 203 requires
the USEPA to establish a plan for obtaining input from and informing,
educating, and advising any small governments that may be significantly
or uniquely affected by the rule.
Under section 205 of the Unfunded Mandates Act, the USEPA must
identify and consider a reasonable number of regulatory alternatives
before promulgating a rule for which a budgetary impact statement must
be prepared. The USEPA must select from those alternatives the least
costly, most cost-effective, or least burdensome alternative that
achieves the objectives of the rule, unless the USEPA explains why this
alternative is not selected or the selection of this alternative is
inconsistent with law.
This final rule only approves the incorporation of existing state
rules into the SIP and imposes no additional requirements. This rule is
estimated to result in the expenditure by State, local, and tribal
governments or the private sector of less than $100 million in any one
year. USEPA, therefore, has not prepared a budgetary impact statement
or specifically addressed the selection of the least costly, most cost-
effective, or least burdensome alternative. Furthermore, because small
governments will not be significantly or uniquely affected by this
rule, the USEPA is not required to develop a plan with regard to small
governments.
E. Regulatory Flexibility
Under the Regulatory Flexibility Act, 5 U.S.C. section 600 et seq.,
USEPA must prepare a regulatory flexibility analysis assessing the
impact of any proposed or final rule on small entities. (5 U.S.C.
sections 603 and 604.) Alternatively, USEPA may certify that the rule
will not have a significant impact on a substantial number of small
entities. Small entities include small businesses, small not-for-profit
enterprises, and government entities with jurisdiction over populations
of less than 50,000.
SIP approvals under section 110 and subchapter I, part D of the
Clean Air Act do not create any new requirements, but simply approve
requirements a State has already imposed. Therefore, because the
Federal SIP-approval does not impose any new requirements, I certify
that it does not have a significant impact on any small entities
affected. Moreover, due to the nature of the Federal-State relationship
under the Act, preparation of a regulatory flexibility analysis would
constitute Federal inquiry into the economic reasonableness of the
State action. The Clean Air Act forbids USEPA to base its actions
concerning SIPs on such grounds. Union Electric Co. v. USEPA., 427 U.S.
246, 256-66 (S.Ct. 1976); 42 U.S.C. section 7410(a)(2).
F. Petitions for Judicial Review
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by May 20, 1996. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements. (See Section 307(b)(2)).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Hydrocarbons,
Incorporation by reference, Ozone, Motor vehicle pollution, Reporting
and recordkeeping requirements.
Dated: February 29, 1996.
Valdas V. Adamkus,
Regional Administrator.
For the reasons stated in the preamble, part 52, chapter I, title
40 of the Code of Federal Regulations is amended as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart P--Indiana
2. Section 52.770 is amended by adding paragraph (c)(104) to read
as follows:
Sec. 52.770 Identification of plan.
* * * * *
(c) * * *
(104) On December 20, 1995, and February 14, 1996, Indiana
submitted a Clean-Fuel Fleet Program for Lake and Porter Counties as a
revision to the State Implementation Plan.
(i) Incorporation by reference. 326 Indiana Administrative Code 19-
3 Clean Fuel Fleet Vehicles, Sections 1 through 7. Adopted by the
Indiana Air Pollution Control Board October 4, 1995. Signed by the
Secretary of State December 19, 1995. Effective January 18, 1996.
Published at Indiana Register, Volume 19, Number 5, February 1, 1996.
[FR Doc. 96-6597 Filed 3-20-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-6542 Airworthiness Directives; McDonnell Douglas Model DC-10-10, -15, -30, and -40 Series Airplanes, and Model KC-10A (Military) Airplane
[Federal Register Volume 61, Number 56 (Thursday, March 21, 1996)]
[Rules and Regulations]
[Pages 11539-11541]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6542]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 95-NM-47-AD; Amendment 39-9545; AD 96-06-08]
Airworthiness Directives; McDonnell Douglas Model DC-10-10, -15,
-30, and -40 Series Airplanes, and Model KC-10A (Military) Airplane
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This amendment adopts a new airworthiness directive (AD) that
is applicable to certain McDonnell Douglas Model DC-10-10, -15, -30,
and -40 series airplanes, and Model KC-10A (military) airplanes. This
amendment requires inspection(s) to detect cracks of the attach bolts
of the front spar support fitting of each wing, and replacement of
attach bolts with ones that are corrosion resistant. This amendment is
prompted by a report of failure of the attach bolts of the front spar
fitting as a result of corrosion pitting. The actions specified by this
AD are intended to prevent such stress corrosion, which could lead to
the failure of the attach bolts of the front spar; this situation could
result in reduced structural integrity of the wing.
DATES: Effective April 22, 1996.
The incorporation by reference of certain publications listed in
the regulations is approved by the Director of the Federal Register as
of April 22, 1996.
ADDRESSES: The service information referenced in this AD may be
obtained from McDonnell Douglas Corporation, 3855 Lakewood Boulevard,
Long Beach, California 90846, Attention: Technical Publications
Business Administration, Department C1-L51 (2-60). This information may
be examined at the Federal Aviation Administration (FAA), Transport
Airplane Directorate, Rules Docket, 1601 Lind Avenue SW., Renton,
[[Page 11540]]
Washington; or at the FAA, Los Angeles Aircraft Certification Office,
Transport Airplane Directorate, 3960 Paramount Boulevard, Lakewood,
California; or at the Office of the Federal Register, 800 North Capitol
Street NW., suite 700, Washington, DC.
FOR FURTHER INFORMATION CONTACT: John Cecil, Aerospace Engineer,
Airframe Branch, ANM-120L, FAA, Transport Airplane Directorate, Los
Angeles Aircraft Certification Office, 3960 Paramount Boulevard,
Lakewood, California 90712-4137; telephone (310) 627-5322; fax (310)
627-5210.
SUPPLEMENTARY INFORMATION: A proposal to amend part 39 of the Federal
Aviation Regulations (14 CFR part 39) to include an airworthiness
directive (AD) that is applicable to certain McDonnell Douglas Model
DC-10-10, -15, -30, and -40 series airplanes, and Model KC-10A
(military) airplanes, was published in the Federal Register on August
30, 1995 (60 FR 45108). That action proposed to require inspection(s)
to detect cracks of the attach bolts of the front spar support fitting
of each wing, and replacement of attach bolts with ones that are
corrosion resistant.
Interested persons have been afforded an opportunity to participate
in the making of this amendment. Due consideration has been given to
the comments received.
One commenter supports the proposal.
Another commenter requests that the proposal be revised to give
operators ``credit'' for having accomplished the initial required
ultrasonic inspection prior to the effective date of the final rule.
This commenter is concerned that, if such credit is not specified in
the AD, operators may be required to perform duplicate inspections
needlessly.
The FAA acknowledges this commenter's concerns, and finds that some
clarification is necessary. Operators are always given credit for work
accomplished prior to the effective date of an AD by means of the
phrase in the compliance section of the rule that states, ``Required as
indicated, unless accomplished previously.'' Since the ultrasonic
inspection required by paragraph (a) of this AD is to be accomplished
specifically in accordance with McDonnell Douglas DC-10 Service
Bulletin 57-126, which was released on October 30, 1992, the
possibility exists that some operators may have accomplished the
initial ultrasonic inspection some years ago when the service bulletin
was originally issued. For those operators, the ``unless accomplished
previously'' phrase is intended to ensure that they not conduct a
duplicate initial inspection.
However, in light of this commenter's concerns, the FAA finds that
the compliance time for repetitive inspections must be clarified. The
intent of this AD is to establish a schedule of inspections that are to
be conducted at 18-month intervals. Regardless of when the initial
inspection was conducted, that inspection must be repeated within 18
months afterwards. Accordingly, paragraph (a) of the final rule has
been revised to clarify that the initial inspection is required within
18 months after the effective date of the AD, unless it was
accomplished previously within 18 months prior to the effective date.
Paragraph (b) of the final rule has been clarified to specify that the
inspection must then be repeated at an interval not to exceed 18 months
after that initial inspection, and must be repeated again every 18
months after that.
One commenter states that the manufacturer has advised that it is
developing revised procedures for accomplishment of the bolt
replacement (which may include only partial replacement under certain
conditions). The commenter requests that the FAA revise the proposed
rule to make these new procedures available to affected operators.
The FAA concurs with the commenter's request. Since issuance of the
proposal, the FAA has reviewed and approved McDonnell Douglas Service
Bulletin DC1057-126, Revision 1, dated March 1, 1996. This revised
service bulletin is essentially identical to the McDonnell Douglas DC-
10 Service Bulletin 57-126, dated October 30, 1992, but provides
procedures for replacing a minimum of 5 of the attach bolts of the
front spar support fitting on each wing with corrosion-resistant attach
bolts; and, at the next pylon removal after that replacement, replacing
the remaining 1 attach bolt of the front spar support fitting on each
wing. Accomplishment of the replacement of these six attach bolts
eliminates the need for the repetitive inspections of them. These
replacement procedures are identical to the procedures proposed in
paragraph (b)(2) of the proposed rule. The FAA has revised the final
rule to include the newly released (revised) service bulletin as an
additional source of service information.
After careful review of the available data, including the comments
noted above, the FAA has determined that air safety and the public
interest require the adoption of the rule with the changes previously
described. The FAA has determined that these changes will neither
increase the economic burden on any operator nor increase the scope of
the AD.
There are approximately 420 Model DC-10-10, -15, -30, and -40
series airplanes, and Model KC-10A (military) airplanes of the affected
design in the worldwide fleet. The FAA estimates that 237 airplanes of
U.S. registry will be affected by this AD.
It will take approximately 6 work hours per airplane to accomplish
the required inspections, at an average labor rate of $60 per work
hour. Based on these figures, the cost impact of the inspection
requirements of this AD on U.S. operators is estimated to be $85,230,
or $360 per airplane, per inspection cycle.
It will take approximately 6 work hours per airplane to accomplish
the required bolt replacement, at an average labor rate of $60 per work
hour. Required parts will cost approximately $43,000 per airplane.
Based on these figures, the cost impact of the replacement requirements
of this AD on U.S. operators is estimated to be $10,276,320, or $43,360
per airplane.
The number of work hours indicated above does not include time for
gaining access, removing and reinstalling engines, removing and
reinstalling pylons, closing up, or performing functional checks.
Additionally, it does not include time for preparation for the
replacement, administrative functions, or nonproductive elapsed time.
The cost impact figures discussed above are based on assumptions
that no operator has yet accomplished any of the requirements of this
AD action, and that no operator would accomplish those actions in the
future if this AD were not adopted.
The regulations adopted herein will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this final
rule does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this action (1) is
not a ``significant regulatory action'' under Executive Order 12866;
(2) is not a ``significant rule'' under DOT Regulatory Policies and
Procedures (44 FR 11034, February 26, 1979); and (3) will not have a
significant economic impact, positive or negative, on a substantial
number of small entities under the criteria of the Regulatory
Flexibility Act. A final evaluation has
[[Page 11541]]
been prepared for this action and it is contained in the Rules Docket.
A copy of it may be obtained from the Rules Docket at the location
provided under the caption ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.
Adoption of the Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration amends part 39 of
the Federal Aviation Regulations (14 CFR part 39) as follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 USC 106(g), 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by adding the following new
airworthiness directive:
96-06-08 McDonnell Douglas: Amendment 39-9545. Docket 95-NM-47-AD.
Applicability: Model DC-10-10, -15, -30, and -40 series
airplanes, and Model KC-10A (military) airplanes; as listed in
McDonnell Douglas DC-10 Service Bulletin 57-126, dated October 30,
1992; certificated in any category.
Note 1: This AD applies to each airplane identified in the
preceding applicability provision, regardless of whether it has been
otherwise modified, altered, or repaired in the area subject to the
requirements of this AD. For airplanes that have been modified,
altered, or repaired so that the performance of the requirements of
this AD is affected, the owner/operator must request approval for an
alternative method of compliance in accordance with paragraph (d) of
this AD. The request should include an assessment of the effect of
the modification, alteration, or repair on the unsafe condition
addressed by this AD; and, if the unsafe condition has not been
eliminated, the request should include specific proposed actions to
address it.
Compliance: Required as indicated, unless accomplished
previously.
To prevent reduced structural integrity of the wing, accomplish
the following:
(a) Within 18 months after the effective date of this AD, unless
previously accomplished within the last 18 months prior to the
effective date of this AD, perform an ultrasonic inspection to
detect cracks in the 6 attach bolts of the front spar support
fitting of each wing, in accordance with McDonnell Douglas DC-10
Service Bulletin 57-126, dated October 30, 1992, or McDonnell
Douglas Service Bulletin DC10-57-126, Revision 1, dated March 1,
1996.
(b) If no crack is detected on an attach bolt during the
inspection specified in paragraph (a) of this AD, accomplish
paragraphs (b)(1) and (b)(2) of this AD.
(1) Within 18 months after accomplishing the inspection
specified in paragraph (a) of this AD, repeat the ultrasonic
inspection, and continue to repeat it thereafter at intervals not to
exceed 18 months, until the procedures required by paragraph (b)(2)
of this AD are accomplished.
(2) Within 5 years after the effective date of this AD, replace
a minimum of 5 of the attach bolts of the front spar support fitting
on each wing with corrosion-resistant attach bolts, in accordance
with the service bulletin. At the next pylon removal after that
replacement, replace the remaining 1 attach bolt of the front spar
support fitting on each wing. Accomplishment of the replacement
constitutes terminating action for the repetitive inspection
requirements of this AD for that attach bolt.
(c) If any crack is detected on an attach bolt during any
inspection required by paragraph (a) or (b)(1) of this AD, prior to
further flight, replace the cracked attach bolt with a corrosion-
resistant attach bolt, in accordance with the service bulletin.
Accomplishment of such replacement constitutes terminating action
for the repetitive inspection requirements of this AD for that
attach bolt only.
(d) An alternative method of compliance or adjustment of the
compliance time that provides an acceptable level of safety may be
used if approved by the Manager, Los Angeles Aircraft Certification
Office (ACO), FAA, Transport Airplane Directorate. Operators shall
submit their requests through an appropriate FAA Principal
Maintenance Inspector, who may add comments and then send it to the
Manager, Los Angeles ACO.
Note 2: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Los Angeles ACO.
(e) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the airplane to a location where
the requirements of this AD can be accomplished.
(f) The inspection and replacement procedures shall be done in
accordance with McDonnell Douglas DC-10 Service Bulletin 57-126,
dated October 30, 1992; or McDonnell Douglas Service Bulletin DC10-
57-126, Revision 1, dated March 1, 1996. This incorporation by
reference was approved by the Director of the Federal Register in
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies may be
obtained from McDonnell Douglas Corporation, 3855 Lakewood
Boulevard, Long Beach, California 90846, Attention: Technical
Publications Business Administration, Department C1-L51 (2-60).
Copies may be inspected at the FAA, Transport Airplane Directorate,
1601 Lind Avenue SW., Renton, Washington; or at the FAA, Los Angeles
Aircraft Certification Office, Transport Airplane Directorate, 3960
Paramount Boulevard, Lakewood, California; or at the Office of the
Federal Register, 800 North Capitol Street NW., suite 700,
Washington, DC.
(g) This amendment becomes effective on April 22, 1996.
Issued in Renton, Washington, on March 13, 1996.
James V. Devany,
Acting Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-6542 Filed 3-20-96; 8:45 am]
BILLING CODE 4910-13-P
Complete official Federal Register PDF
FR Doc. 96-6540 Airworthiness Directives; Boeing Model 767 Series Airplanes
[Federal Register Volume 61, Number 56 (Thursday, March 21, 1996)]
[Rules and Regulations]
[Pages 11541-11543]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6540]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 96-NM-50-AD; Amendment 39-9546; AD 96-06-09]
Airworthiness Directives; Boeing Model 767 Series Airplanes
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule; request for comments.
-----------------------------------------------------------------------
SUMMARY: This amendment adopts a new airworthiness directive (AD) that
is applicable to three Boeing Model 767 series airplanes, serial
numbers 26847, 27048, and 27049. This action requires a functional
check of the trailing edge flap drive bypass valve, and eventual
replacement of the control valve module for the trailing edge flaps
with an improved module. This amendment is prompted by reports of
failure of the bypass valve motor in the control valve module of the
trailing edge flaps due to hydraulic fluid contamination. The actions
specified in this AD are intended to prevent such failure, which could
result in loss of shutdown protection for the trailing edge flap drive;
this condition could result in reduced controllability of the airplane
in the event of uncommanded or asymmetrical flap motion.
DATES: Effective April 5, 1996.
The incorporation by reference of certain publications listed in
the regulations is approved by the Director of the Federal Register as
of April 5, 1996.
Comments for inclusion in the Rules Docket must be received on or
before May 20, 1996.
ADDRESSES: Submit comments in triplicate to the Federal Aviation
Administration (FAA), Transport Airplane Directorate, ANM-103,
Attention: Rules Docket No. 96-NM-50-AD, 1601 Lind Avenue SW., Renton,
Washington 98055-4056.
The service information referenced in this AD may be obtained from
Boeing Commercial Airplane Group, P.O. Box 3707, Seattle, Washington
98124-2207. This information may be examined at the FAA, Transport
Airplane Directorate, 1601 Lind Avenue SW., Renton, Washington; or at
the Office of the Federal Register, 800 North Capitol Street NW., suite
700, Washington, DC.
[[Page 11542]]
FOR FURTHER INFORMATION CONTACT: Susan Letcher, Aerospace Engineer,
Systems and Equipment Branch, ANM-130S, FAA, Seattle Aircraft
Certification Office, 1601 Lind Avenue SW., Renton, Washington;
telephone (206) 227-2670; fax (206) 227-1181.
SUPPLEMENTARY INFORMATION: On September 27, 1993, the FAA issued AD 93-
19-05, amendment 39-8703 (58 FR 54940, October 25, 1993), which is
applicable to Boeing Model 767 series airplanes, line positions 001
through 402 inclusive. That AD requires (initially) various functional
checks of:
1. the leading edge slat shutoff valve,
2. the trailing edge flap drive bypass valve,
3. the leading edge slat long term shutoff control, and
4. the leading edge slat drive mechanical rigging.
In addition, that AD requires installation of terminating
modifications for the required functional checks. One of these
modifications involves replacing the bypass valve motor of the control
valve module for the trailing edge flaps.
AD 93-19-05 was prompted by a report of an uncommanded slat
extension during cruise, and several instances of an inoperative
trailing edge flap bypass valve motor. These instances were attributed
to hydraulic fluid in the bypass valve motor. The requirements of that
AD are intended to prevent uncommanded deployment of leading edge
slats, which could result in structural damage to the wing and
consequent degradation of flight control. Additionally, the
requirements of that AD are intended to ensure shutdown protection for
the trailing edge flap drive in the event of uncommanded or
asymmetrical flap motion.
Since the issuance of AD 93-19-05, the manufacturer has advised the
FAA that three airplanes (those having serial numbers 26847, 27048, and
27049) were delivered on which the replacement of the bypass valve
motor in the control valve module for the trailing edge flaps had not
been accomplished during production. Those three airplanes were not
included in the applicability of AD 93-19-05; however, they are subject
to the same unsafe condition addressed by that AD. The FAA has
determined that loss of shutdown protection for the trailing edge flap
drive due to hydraulic fluid contamination of the bypass valve motor
could occur on these three airplanes.
The FAA has reviewed and approved Boeing Service Bulletin 767-
27A0094, Revision 5, dated June 9, 1994, which describes (among other
actions) procedures to perform a one-time functional check of the
bypass valve of the trailing edge flap drive.
The FAA has also reviewed and approved Boeing Service Bulletin 767-
27-0138, dated August 17, 1995, which describes procedures for
replacement of the control valve module for the trailing edge flaps
with an improved module on the three airplanes having serial numbers
26847, 27048, and 27049. The bypass valve motor in the improved module
was redesigned to ensure that the motor is hermetically sealed.
Accomplishment of this replacement will prevent hydraulic fluid
contamination.
Since an unsafe condition has been identified that is likely to
exist or develop on other Boeing Model 767 series airplanes of the same
type design, this AD is being issued to prevent loss of shutdown
protection for the trailing edge flap drive, which could result in
reduced controllability of the airplane in the event of uncommanded or
asymmetrical flap motion. This AD requires a one-time functional check
of the trailing edge flap drive bypass valve, and eventual replacement
of the control valve module for the trailing edge flaps with an
improved module. The actions are required to be accomplished in
accordance with the service bulletins described previously. This AD
applies only to airplanes having serial numbers 26847, 27048, and
27049.
[Note: The FAA's normal policy is that when an AD requires a
substantive change, such as a change (expansion) in its
applicability, the ``old'' AD is superseded by removing it from the
system and a new AD is added. In the case of this AD action, the FAA
normally would have proposed superseding AD 93-19-05 to expand its
applicability to include the three additional affected airplanes.
However, in reconsideration of the entire fleet size that would be
affected by a supersedure action, and the consequent workload
associated with revising maintenance record entries, the FAA has
determined that a less burdensome approach is to issue a separate AD
applicable only to the three additional airplanes. This AD does not
supersede AD 93-19-05; airplanes listed in the applicability of AD
93-19-05 are required to continue to comply with the requirements of
that AD. This AD is a separate AD action, and is applicable only to
airplanes having serial numbers 26847, 27048, and 27049.]
Operators should note that the manufacturer's recommended
compliance time for accomplishment of the functional check is within
400 flight hours after receipt of the service bulletin. While the FAA
agrees that 400 flight hours would normally be an appropriate
compliance time, this AD specifies a compliance time of 25 days after
the effective date of this AD. This compliance time was developed by
taking into account the date that the initial service bulletin
recommended (September 28, 1989) for accomplishment of the actions and
the time that has elapsed since that date. The FAA considered not only
the manufacturer's recommendation, but the degree of urgency associated
with addressing the subject unsafe condition, as well as the time
necessary to perform the functional check (1 work hour). In light of
these factors, the FAA finds 25 days to be an appropriate compliance
time for initiating the required functional check.
Since a situation exists that requires the immediate adoption of
this regulation, it is found that notice and opportunity for prior
public comment hereon are impracticable, and that good cause exists for
making this amendment effective in less than 30 days.
Comments Invited
Although this action is in the form of a final rule that involves
requirements affecting flight safety and, thus, was not preceded by
notice and an opportunity for public comment, comments are invited on
this rule. Interested persons are invited to comment on this rule by
submitting such written data, views, or arguments as they may desire.
Communications shall identify the Rules Docket number and be submitted
in triplicate to the address specified under the caption ADDRESSES. All
communications received on or before the closing date for comments will
be considered, and this rule may be amended in light of the comments
received. Factual information that supports the commenter's ideas and
suggestions is extremely helpful in evaluating the effectiveness of the
AD action and determining whether additional rulemaking action would be
needed.
Comments are specifically invited on the overall regulatory,
economic, environmental, and energy aspects of the rule that might
suggest a need to modify the rule. All comments submitted will be
available, both before and after the closing date for comments, in the
Rules Docket for examination by interested persons. A report that
summarizes each FAA-public contact concerned with the substance of this
AD will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments
submitted in response to this rule must submit a self-addressed,
stamped postcard on which the following statement is made: ``Comments
to Docket Number 96-NM-50-AD.'' The
[[Page 11543]]
postcard will be date stamped and returned to the commenter.
The regulations adopted herein will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this final
rule does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
The FAA has determined that this regulation is an emergency
regulation that must be issued immediately to correct an unsafe
condition in aircraft, and that it is not a ``significant regulatory
action'' under Executive Order 12866. It has been determined further
that this action involves an emergency regulation under DOT Regulatory
Policies and Procedures (44 FR 11034, February 26, 1979). If it is
determined that this emergency regulation otherwise would be
significant under DOT Regulatory Policies and Procedures, a final
regulatory evaluation will be prepared and placed in the Rules Docket.
A copy of it, if filed, may be obtained from the Rules Docket at the
location provided under the caption ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.
Adoption of the Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration amends part 39 of
the Federal Aviation Regulations (14 CFR part 39) as follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 USC 106(g), 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by adding the following new
airworthiness directive:
96-06-09 Boeing: Amendment 39-9546. Docket 96-NM-50-AD.
Applicability: Model 767 series airplanes, having serial number
26847, 27048, or 27049, certificated in any category.
Note 1: This AD applies to each airplane identified in the
preceding applicability provision, regardless of whether it has been
otherwise modified, altered, or repaired in the area subject to the
requirements of this AD. For airplanes that have been modified,
altered, or repaired so that the performance of the requirements of
this AD is affected, the owner/operator must request approval for an
alternative method of compliance in accordance with paragraph (d) of
this AD. The request should include an assessment of the effect of
the modification, alteration, or repair on the unsafe condition
addressed by this AD; and, if the unsafe condition has not been
eliminated, the request should include specific proposed actions to
address it.
Compliance: Required as indicated, unless accomplished
previously. -To prevent loss of shutdown protection for the trailing
edge flap drive, which could result in reduced controllability of
the airplane in the event of uncommanded or asymmetrical flap
motion, accomplish the following:
(a) Within 25 days after the effective date of this AD, perform
a one-time functional check to ensure that the bypass valve motor in
the control valve module for the trailing edge flaps is operational,
in accordance with Part II of the Accomplishment Instructions of
Boeing Service Bulletin 767-27A0094, Revision 5, dated June 9, 1994.
If a failed bypass valve motor is found, prior to further flight,
accomplish the replacement required by paragraph (b) of this AD.
(b) Within 60 days after the effective date of this AD, replace
the control valve module for the trailing edge flaps with an
improved module having a redesigned bypass valve motor that is
hermetically sealed, in accordance with Boeing Service Bulletin 767-
27-0138, dated August 17, 1995.
(c) As of the effective date of this AD, no person shall install
either a control valve module, part number S256T005-7, or a bypass
valve, part number S256T005-4, on any airplane.
(d) An alternative method of compliance or adjustment of the
compliance time that provides an acceptable level of safety may be
used if approved by the Manager, Seattle Aircraft Certification
Office (ACO), FAA, Transport Airplane Directorate. Operators shall
submit their requests through an appropriate FAA Principal
Maintenance Inspector, who may add comments and then send it to the
Manager, Seattle ACO.
Note 2: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Seattle ACO.
(e) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the airplane to a location where
the requirements of this AD can be accomplished.
(f) The functional check shall be done in accordance with Boeing
Service Bulletin 767-27A0094, Revision 5, dated June 9, 1994. The
replacement shall be done in accordance with Boeing Service Bulletin
767-27-0138, dated August 17, 1995. This incorporation by reference
was approved by the Director of the Federal Register in accordance
with 5 U.S.C. 552(a) and 1 CFR part 51. Copies may be obtained from
Boeing Commercial Airplane Group, P.O. Box 3707, Seattle, Washington
98124-2207. Copies may be inspected at the FAA, Transport Airplane
Directorate, 1601 Lind Avenue, SW., Renton, Washington; or at the
Office of the Federal Register, 800 North Capitol Street, NW., suite
700, Washington, DC.
(g) This amendment becomes effective on April 5, 1996.
Issued in Renton, Washington, on March 13, 1996.
James V. Devany,
Acting Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-6540 Filed 3-20-96; 8:45 am]
BILLING CODE 4910-13-P
Complete official Federal Register PDF
FR Doc. 96-6498 VA Acquisition Regulations: Administrative Amendments
[Federal Register Volume 61, Number 56 (Thursday, March 21, 1996)]
[Rules and Regulations]
[Pages 11585-11587]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6498]
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DEPARTMENT OF VETERANS AFFAIRS
48 CFR Parts 801, 814, 833, 836, and 852
RIN 2900-AH27
VA Acquisition Regulations: Administrative Amendments
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
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SUMMARY: This document amends the Department of Veterans Affairs
Acquisition Regulations (VAAR) to correct typographical errors and to
update office names and job titles due to administrative changes within
the Department. Also, the threshold for Architect-Engineer short
selection procedures and the time frame for filing a protest are
revised to be consistent with the Federal Acquisition Regulation (FAR),
as required by 41 U.S.C. 405 and 421.
EFFECTIVE DATE: March 20, 1996.
FOR FURTHER INFORMATION CONTACT: Don Kaliher, Acquisition Policy
Division (95A), Office of Acquisition and Materiel Management,
Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC
20420, (202) 565-4424.
SUPPLEMENTARY INFORMATION: This final rule consists of nonsubstantive
changes and, therefore, is not subject to the notice and comment and
effective date provisions of 5 U.S.C. 553. Also, this final rule is not
a significant revision as defined in FAR 1.501-1.
Regulatory Flexibility Act
The Secretary hereby certifies that this final rule will not have a
significant economic impact on a substantial number of small entities
as they are defined in the Regulatory Flexibility Act (RFA), 5 U.S.C.
601-602, since it does not contain any substantive provisions. This
final rule would not cause a significant effect on any entities.
Therefore, pursuant to 5 U.S.C. 605(b), this amendment is exempt from
the initial and final regulatory flexibility analysis requirements of
sections 603 and 604.
List of Subjects in 48 CFR Parts 801, 814, 833, 836, and 852
Administrative practice and procedure, Government procurement,
Reporting and recordkeeping requirements.
Approved: March 8, 1996.
Jesse Brown,
Secretary of Veterans Affairs.
For the reasons set forth in the preamble, 48 CFR parts 801, 814,
833, 836, and 852 are amended as follows:
1. The authority citation for parts 801, 814, 833, 836 and 852
continues to read as follows:
Authority: 38 U.S.C. 501 and 40 U.S.C. 486(c).
PART 801--VETERANS AFFAIRS ACQUISITION REGULATIONS SYSTEM
Sec. 801.602-3 [Amended]
2. In Sec. 801.602-3, paragraph (a)(3)(i) is amended by removing
``Deputy Assistant Secretary for Facilities'' and adding, in its place,
``Chief Facilities Management Officer, Office of Facilities
Management''; and paragraph (a)(3)(ii) is amended by removing
``Assistant Secretary for Acquisition and Facilities'' and adding, in
its place, ``Assistant Secretary for Management''.
Sec. 801.602-7 [Amended]
3. Section 801.602-70 is amended by removing ``Marketing Center''
wherever it appears and adding, in its place, ``National Acquisition
Center'', by removing ``Office of Facilities'' wherever it appears and
adding, in its place, ``Office of Facilities Management'', and by
removing ``(93D)'' wherever it appears and adding, in its place, ``,
Acquisition Review Division''.
4. In Sec. 801.602-70, paragraph (a) introductory text is amended
by removing ``Illionis'' and adding, in its place, ``Illinois'';
paragraph (a)(4)(v) is amended by removing ``Service'' and adding, in
its place, ``Schedule''; paragraph (d) is amended by removing ``Deputy
Assistant Secretary for Facilities'' and adding, in its place, ``Chief
Facilities Management Officer, Office of Facilities Management'';
paragraph (g) is amended by removing ``813.103'' and adding, in its
place, ``48 CFR 833.103''; and paragraph (j)(2) is amended by removing
``VHS&RA'' and adding, in its place, ``VHA''.
Sec. 801.602-71 [Amended]
5. Section 801.602-71 is amended by removing ``Office of
Facilities'' wherever it appears and adding, in its place, ``Office of
Facilities Management'', and by removing ``(93D)'' wherever it appears
and adding, in its place, ``, Acquisition Review Division''.
[[Page 11586]]
6. In Sec. 801.602-71, paragraph (b) is amended by removing the
heading ``Veterans Health Services and Research Administration (VHS&RA)
Field Facilities, VA Marketing Center, VA Supply Depots'' and adding,
in its place, ``Veterans Health Administration (VHA) Field Facilities,
VA National Acquisition Center''; paragraph (b)(1) is amended by
removing ``(93)'' and adding, in its place, ``, Acquisition Review
Division''; paragraph (b)(2) is amended by removing ``(023)'' and
adding, in its place, ``(025)''; and paragraph (b)(3) is amended by
removing ``(93)'' and adding, in its place, ``, Program Development and
Evaluation Division''.
Sec. 801.602-72 [Amended]
7. In Sec. 801.602-72, paragraph (d)(6)(iv) is amended by removing
``Office of Facilities'' and adding, in its place, ``Office of
Facilities Management''.
Sec. 801.602-73 [Amended]
8. Section 801.602-73 is amended by removing ``Veterans
Administration'' and adding, in its place, ``Department of Veterans
Affairs''.
Sec. 801.603-71 [Amended]
9. Section 801.603-71 is amended by removing ``Marketing Center''
wherever it appears and adding, in its place, ``National Acquisition
Center''.
10. In Sec. 801.603-71, paragraph (e) is amended by removing
``Director, VA Marketing Center'' and adding, in its place, ``Associate
Deputy Assistant Secretary for the National Acquisition Center''.
Sec. 801.670-5 [Amended]
11. In Sec. 801.670-5, paragraph (a)(2) is amended by removing
``Personnel and Labor Relations'' and adding, in its place, ``Human
Resources Management''; and paragraph (b) is amended by removing
``Chief Medical Director'' and adding, in its place, ``Under Secretary
for Health''; by removing ``Regional Directors'' and adding, in its
place, Veterans Integrated Service Network Directors''; and by removing
``(93)'' and adding, in its place, ``, Acquisition Review Division''.
Sec. 801.670-6 [Amended]
12. Section 801.670-6 is amended by removing ``VHS&RA'' and adding,
in its place, ``VHA''.
Sec. 801.680 [Amended]
13. In Sec. 801.680, paragraph (b) is amended by removing
``Supply'' and adding, in its place, ``Acquisition and Materiel
Management''.
PART 814--SEALED BIDDING
Sec. 814.403 [Amended]
14. Section 814.403 is amended by removing ``14-403'' and adding,
in its place, ``14.403''.
Sec. 814.404-70 [Amended]
15. Section 814.404-70 is amended by removing ``(93B)'' and adding,
in its place, ``, Acquisition Review Division,'', and by removing
``Deputy Assistant Secretary for Facilities (08)'' and adding, in its
place, ``Chief Facilities Management Officer, Office of Facilities
Management''.
Sec. 814.406-3 [Amended]
Sec. 814.406-4 [Amended]
16. Sections 814.406-3 and 814.406-4 are amended by removing
``(93B)'' wherever it appears and adding, in its place, ``, Acquisition
Review Division''.
17. In Sec. 814.406-3, paragraph (a) is amended by removing
``Administrator'' and adding, in its place, ``Secretary''.
Sec. 814.407-71 [Amended]
18. In Sec. 814.407-71, paragraph (a) introductory text is amended
by removing ``Deputy Assistant Secretary for Facilities'' and adding,
in its place, ``Chief Facilities Management Officer, Office of
Facilities Management''.
PART 833--PROTESTS, DISPUTES, APPEALS
Sec. 833.102 [Amended]
19. In Sec. 833.102, paragraph (a) is amended by removing ``Office
of Facilities'' and adding, in its place, ``Office of Facilities
Management''; and by removing ``Deputy Assistant Secretary for
Facilities (08)'' and adding, in its place, ``Chief Facilities
Management Officer, Office of Facilities Management''.
Sec. 833.103 [Amended]
20. Section 833.103 is amended by removing ``Office of Facilities''
wherever it appears in the text and in the footnote and adding, in its
place, ``Office of Facilities Management'', by removing ``Deputy
Assistant Secretary for Facilities (08)'' wherever it appears in the
text and in the footnote and adding, in its place, ``Chief Facilities
Management Officer, Office of Facilities Management'', by removing
``Deputy Assistant Secretary for Facilities'' wherever it appears and
adding, in its place, ``Chief Facilities Management Officer, Office of
Facilities Management'', and by removing ``(95B)'' wherever it appears
in the text and in the footnote and adding, in its place, ``,
Acquisition Review Division''.
Sec. 833.103 [Amended]
21. In Sec. 833.103, paragraph (b)(1) is amended by removing
``(93D)'' and adding, in its place, ``, Acquisition Review Division''.
22. In Sec. 833.103, the letter statement following paragraph (d)
is amended by removing ``10 working days'' and ``10 workdays'' wherever
it appears and adding, in its place, ``14 calendar days''.
Sec. 833.104 [Amended]
23. Section 833.104 is amended by removing ``(95B)'' wherever it
appears and adding, in it place, ``, Acquisition Review Division'', by
removing ``Deputy Assistant Secretary for Facilities (08)'' wherever it
appears and adding, in its place, ``Chief Facilities Management
Officer, Office of Facilities Management'', and by removing ``Deputy
Assistant Secretary for Facilities'' and adding, in its place, ``Chief
Facilities Management Officer, Office of Facilities Management''.
Sec. 833.105 [Amended]
24. In Sec. 833.105, paragraph (b) is amended by removing ``(95B)''
and adding, in its place, ``, Acquisition Review Division''; and by
removing ``Deputy Assistant Secretary for Facilities (08)'' and adding,
in its place, ``Chief Facilities Management Officer, Office of
Facilities Management''.
Sec. 833.212 [Amended]
25. Section 833.212 is amended by removing ``(93)'' wherever it
appears and adding, in its place, ``, Acquisition Review Division''.
26. In Sec. 833.212, paragraph (a) is amended by removing ``Office
of Facilities'' and adding, in its place, ``Office of Facilities
Management''.
PART 836--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS
Sec. 836.208 [Amended]
27. Section 836.208 is amended by removing ``Deputy Assistant
Secretary for Facilities'' and adding, in its place, ``Chief Facilities
Management Officer, Office of Facilities Management''.
Sec. 836.209 [Amended]
28. Section 836.209 is amended by removing ``Deputy Assistant
Secretary for Facilities'' and adding, in its place, ``Chief Facilities
Management Officer, Office of Facilities Management,''.
Sec. 836.211 [Amended]
29. In Sec. 836.211, paragraph (b) is amended by removing ``Deputy
Assistant Secretary for Facilities'' and adding, in its place, ``Chief
Facilities Management Officer, Office of Facilities Management''.
[[Page 11587]]
Sec. 836.371 [Amended]
30. In Sec. 836.371, the section heading is amended by removing
``of'' and adding, in its place, ``to''.
Sec. 836.601 [Amended]
31. Section 836.601 is amended by removing ``38 U.S.C. 1820'' and
adding, in its place, ``38 U.S.C. 3720''.
Sec. 836.602-2 [Amended]
32. In Sec. 836.602-2, paragraph (a) is amended by removing
``Office of Facilities'' in both places and adding, in its place,
``Office of Facilities Management''; and paragraph (b) is amended by
removing ``Supply'' and adding, in its place, ``Acquisition and
Materiel Management''.
Sec. 836.602-4 [Amended]
33. Section 836.602-4 is amended by removing ``Deputy Assistant
Secretary for Facilities'' and adding, in its place, ``Chief Facilities
Management Officer, Office of Facilities Management,''.
Sec. 836.602-5 [Amended]
34. Section 836.602-5 is amended by removing ``$10,000'' from the
section heading and adding, in its place, ``the Simplified Acquisition
Threshold''; and by removing ``Deputy Assistant Secretary for
Facilities'' and adding, in its place, ``Chief Facilities Management
Officer, Office of Facilities Management''.
Secs. 836.602-2 and 836.602-3 [Amended]
Sec. 836.606-72 [Amended]
35. Sections 836.602-2, 836.602-3, and 836.606-72, are amended by
removing ``Deputy Assistant Secretary for Facilities'' wherever it
appears and adding, in its place, ``Chief Facilities Management
Officer, Office of Facilities Management''.
PART 852--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
Sec. 852.210-70 [Amended]
36. In Sec. 852.210-70(b), paragraph (b) of the clause is amended
by removing ``Illustration s'' and adding, in its place,
``Illustrations''.
Sec. 852.210-76 [Amended]
37. Section 852.210-76 is amended by removing ``(APR 1984)'' from
the clause heading and adding, in its place, ``(JUL 1989)''; and by
adding in the clause ``and'' immediately after ``services performed
commercially under Government order''.
Sec. 852.219-70 [Amended]
38. Section 852.219-70 is amended by adding in the clause heading
``(DEC 1990)'' immediately after ``VETERAN-OWNED SMALL BUSINESS''.
Sec. 852.236-83 [Amended]
39. In Sec. 852.236-83, paragraph (b)(5) of the clause is amended
by removing ``Secondary switchgear'' and the corresponding ``5'' the
first time ``Secondary switchgear'' appears in the ``Values of
Adjusting, Correcting, and Testing System'' table.
Sec. 852.236-88 [Amended]
40. In Sec. 852.236-88(a), paragraph (a) of the clause is amended
by removing ``cost of pricing data'' and adding, in its place, ``cost
or pricing data''; and by removing ``15,804-6'' and adding, in its
place, ``15.804-6''; and paragraph (a) of the clause in paragraph (b)
of the section is amended by removing ``15,804-6'' and adding, in its
place, ``15.804-6''.
Sec. 852.236-91 [Amended]
41. In Sec. 852.236-91, paragraph (e) is amended by removing
``unusually severe whether'' and adding, in its place, ``unusually
severe weather''.
[FR Doc. 96-6498 Filed 3-20-96; 8:45 am]
BILLING CODE 8320-01-P
Complete official Federal Register PDF
FR Doc. 96-6484 Controlling Corporation's Basis Adjustment in its Controlled Corporation's Stock Following a Triangular Reorganization; Correction
[Federal Register Volume 61, Number 56 (Thursday, March 21, 1996)]
[Rules and Regulations]
[Page 11547]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6484]
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DEPARTMENT OF THE TREASURY
26 CFR Part 1
[TD 8648]
RIN 1545-AB21
Controlling Corporation's Basis Adjustment in its Controlled
Corporation's Stock Following a Triangular Reorganization; Correction
AGENCY: Internal Revenue Service (IRS), Treasury.
ACTION: Correction to final regulations.
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SUMMARY: This document contains a correction to final regulations [TD
8648] which were published in the Federal Register for Thursday,
December 21, 1995 (60 FR 66077). The final regulations relate to the
rules for adjusting the basis of a controlling corporation in the stock
of a controlled corporation as the result of certain triangular
reorganizations involving the stock of the controlling corporation.
EFFECTIVE DATE: December 21, 1995.
FOR FURTHER INFORMATION CONTACT: Curt Cutting, (202) 622-7550 (not a
toll-free number).
SUPPLEMENTARY INFORMATION:
Background
The final regulations that are the subject of this correction are
under sections 358, 1032, and 1502 of the Internal Revenue Code.
Need for Correction
As published, TD 8648 contains a typographical error that is in
need of clarification.
Correction of Publication
Accordingly, the publication of the final regulations which are the
subject of FR Doc. 95-30875, is corrected as follows:
Sec. 1.358-6 [Corrected]
On page 66080, column 3, Sec. 1.358-6 (c)(4), in paragraph (d) of
Example 2., line 9, the language ``Under 1.358-6 (c)(2)(i)(A), P's
basis in its T'' is corrected to read ``Under Sec. 1.358-6
(c)(2)(i)(A), P's basis in its T''.
Cynthia E. Grigsby,
Chief, Regulations Unit, Assistant Chief Counsel (Corporate).
[FR Doc. 96-6484 Filed 3-20-96; 8:45 am]
BILLING CODE 4830-01-U
Complete official Federal Register PDF
FR Doc. 96-6483 Hedging Transaction by Members of a Consolidated Group; Correction
[Federal Register Volume 61, Number 56 (Thursday, March 21, 1996)]
[Rules and Regulations]
[Page 11547]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6483]
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DEPARTMENT OF THE TREASURY
Internal Revenue Service
26 CFR Part 1
[TD 8653]
RIN 1545-AS75
Hedging Transaction by Members of a Consolidated Group;
Correction
AGENCY: Internal Revenue Service, Treasury.
ACTION: Correction of final regulations.
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SUMMARY: This document contains a correction to the final regulations
[TD 8653] which were published in the Federal Register for Monday,
January 8, 1996 (61 FR 517). The final regulations relate to the
character and timing of gain or loss from certain hedging transactions
entered into by members of a consolidated group.
EFFECTIVE DATE: February 7, 1996.
FOR FURTHER INFORMATION CONTACT: Jo Lynn Ricks of the Office of the
Assistant Chief Counsel (Financial Institutions and Products), (202)
622-3920 (not a toll-free number).
SUPPLEMENTARY INFORMATION:
Background
The final regulations which are the subject of this correction are
under sections 446 and 1221 of the Internal Revenue Code.
Need for Correction
As published, TD 8653 contains an error that is in need of
correction.
Correction of Publication
Accordingly, the publication of the final regulations which is the
subject of FR Doc. 96-178, is corrected as follows:
Sec. 1.1221-2 [Corrected]
On page 520, column 2, Sec. 1.1221-2, paragraph (d)(2)(iv), last
line, the language ``after the date so indicated.'' is corrected to
read ``after the date so indicated. The election may be revoked only
with the consent of the Commissioner.''.
Cynthia E. Grigsby,
Chief, Regulations Unit, Assistant Chief Counsel (Corporate).
[FR Doc. 96-6483 Filed 3-20-96; 8:45 am]
BILLING CODE 4830-01-U
Complete official Federal Register PDF
FR Doc. 96-6482 Certain Transfers of Domestic Stock or Securities by U.S. Persons to Foreign Corporations; Correction
[Federal Register Volume 61, Number 56 (Thursday, March 21, 1996)]
[Rules and Regulations]
[Page 11550]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6482]
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DEPARTMENT OF THE TREASURY
26 CFR Parts 1 and 602
[TD 8638]
RIN 1545-AT44
Certain Transfers of Domestic Stock or Securities by U.S. Persons
to Foreign Corporations; Correction
AGENCY: Internal Revenue Service, Treasury.
ACTION: Correction to temporary regulations.
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SUMMARY: This document contains a correction to temporary regulations
(TD 8638), which were published in the Federal Register Tuesday,
December 26, 1995 (60 FR 66739), that amend the Income Tax Regulations
with respect to certain transfers of stock or securities of domestic
corporations by United States persons to foreign corporations pursuant
to the corporate organization, reorganization, or liquidation
provisions of the Internal Revenue Code. The temporary regulations also
remove certain parts of the existing temporary regulations regarding
transfers by U.S. persons of stock or securities of both domestic and
foreign corporations.
EFFECTIVE DATE: December 26, 1995.
FOR FURTHER INFORMATION CONTACT: Philip L. Tretiak, (202) 622-3860 (not
a toll-free number).
SUPPLEMENTARY INFORMATION:
Background
The temporary regulations that are the subject of this correction
is under section 367 Internal Revenue Code.
Need for Correction
As published, the temporary regulations (TD 8638) contains an error
which may prove to be misleading and is in need of clarification.
Correction of Publication
Accordingly, the publication of the final regulations (TD 8638),
which were the subject of FR Doc. 95-30829, is corrected as follows:
On page 66739, column 2, in the preamble under the paragraph
heading ``Applicability and Effective Dates'', line 9, the language
``for transfers occurring January 25, 1996.'' is corrected to read
``for transfers occurring after January 25, 1996.''.
Cynthia E. Grigsby,
Chief, Regulations Unit, Assistant Chief Counsel (Corporate).
[FR Doc. 96-6482 Filed 3-20-96; 8:45 am]
BILLING CODE 4830-01-U
Complete official Federal Register PDF
FR Doc. 96-6420 Airworthiness Directives; The Enstrom Helicopter Corporation Model F-28A, F-28C, F-28C-2, 280, and 280C Helicopters
[Federal Register Volume 61, Number 56 (Thursday, March 21, 1996)]
[Rules and Regulations]
[Pages 11536-11538]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6420]
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DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 93-SW-26-AD; Amendment 39-9539; AD 96-06-02]
Airworthiness Directives; The Enstrom Helicopter Corporation
Model F-28A, F-28C, F-28C-2, 280, and 280C Helicopters
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule.
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SUMMARY: This amendment supersedes an existing airworthiness directive
(AD), applicable to The Enstrom Helicopter Corporation Model (Enstrom)
F-28A, F-28C, 280, and 280C helicopters, that currently requires an
initial and repetitive visual inspections of the upper swashplate
bearings for corrosion, and replacement of defective upper swashplate
bearings with airworthy bearings. This amendment requires that the
visual inspections apply to both the upper and lower swashplate
bearings (bearings); expands the applicability to include the Model F-
28C-2 helicopter; limits the applicability to those affected
helicopters manufactured prior to January 1, 1981; establishes a
retirement life of 1,200 hours time-in-service for certain bearings;
and provides a corrected upper swashplate bearing part number. This
amendment is prompted by the necessity to require visual inspections of
the lower swashplate bearings; to expand the applicability to include
the Model F-28C-2 helicopter; to establish a retirement life for
certain bearings; and to correct the upper swashplate bearing part
number from the existing AD. The actions specified by this AD are
intended to prevent failure of the bearings and subsequent loss of
control of the helicopter.
DATES: Effective April 25, 1996.
The incorporation by reference of certain publications listed in
the regulations is approved by the Director of the Federal Register as
of April 25, 1996.
ADDRESSES: The service information referenced in the proposed rule may
be obtained from The Enstrom Helicopter Corporation, Twin County
Airport, P.O. Box 490, Menominee, Michigan 49858. This information may
be examined at the FAA, Office of the Assistant Chief Counsel, 2601
Meacham Blvd., Room 663, Fort Worth, Texas; or at the Office of the
Federal Register, 800 North Capitol Street, NW., suite 700, Washington,
DC.
FOR FURTHER INFORMATION CONTACT: Mr. Joe McGarvey, Aerospace Engineer,
Airframe Branch, Chicago Aircraft Certification Office, Small Airplane
Directorate, FAA, 2300 East Devon Avenue, Room 232, Des Plaines,
Illinois 60018, telephone (708) 294-7136, fax (708) 294-7834.
SUPPLEMENTARY INFORMATION: A proposal to amend part 39 of the Federal
Aviation Regulations (14 CFR part 39) by superseding AD 76-06-11,
Amendment 39-2560, (41 FR 13906, April 1, 1976), which is applicable to
Enstrom Model F-28A, F-28C, 280, and 280C helicopters manufactured
prior to January 1, 1981, was published in the Federal Register on July
6, 1994 (59 FR 34584). That action proposed to require visual
inspections of both the upper and lower swashplate bearings; to expand
the applicability to include the Model F-28C-2 helicopter which was
omitted in AD 76-06-11; to establish a retirement life of 1,200 hours
time-in-service for certain upper and lower swashplate bearings; and to
correct the upper swashplate bearing part number in the existing AD.
That action also proposed an optional terminating action from the
requirements of the AD and
[[Page 11537]]
limited the applicability of the AD requirements to those affected
model helicopters manufactured prior to January 1, 1981.
Interested persons have been afforded an opportunity to participate
in the making of this amendment. No comments were received on the
proposal or the FAA's determination of the cost to the public. The FAA
has determined that air safety and the public interest require the
adoption of the rule as proposed except for editorial changes and
adding explanatory Note 1, relating to the scope of the applicability
statement when modifications, alterations, or repairs have been made in
the area subject to the requirements of the AD. Additionally, the FAA
has revised the proposed estimated average labor rate from $55 per work
hour to an estimated average labor rate of $60 per work hour in the
preamble portion of this final rule. This revision will increase the
estimated total cost impact of the AD from $1,105,500 to $1,122,000.
The FAA has determined that these changes will neither increase the
economic burden on any operator nor increase the scope of the AD.
The FAA estimates that 660 helicopters of U.S. registry will be
affected by this AD, that it will take approximately 5 work hours per
helicopter to accomplish the required actions, and that the average
labor rate is $60 per work hour. Required parts will cost approximately
$1,400 per helicopter. Based on these figures, the total cost impact of
the AD on U.S. operators is estimated to be $1,122,000.
The regulations adopted herein will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this final
rule does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this action (1) is
not a ``significant regulatory action'' under Executive Order 12866;
(2) is not a ``significant rule'' under DOT Regulatory Policies and
Procedures (44 FR 11034, February 26, 1979); and (3) will not have a
significant economic impact, positive or negative, on a substantial
number of small entities under the criteria of the Regulatory
Flexibility Act. A final evaluation has been prepared for this action
and it is contained in the Rules Docket. A copy of it may be obtained
from the Rules Docket at the location provided under the caption
ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.
Adoption of the Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration amends part 39 of
the Federal Aviation Regulations (14 CFR part 39) as follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by removing Amendment 39-2560 (41 FR
13906, April 1, 1976), and by adding a new airworthiness directive
(AD), Amendment 39-9539, to read as follows:
[AD 96-06-02] The Enstrom Helicopter Corporation: Amendment 39-9539.
Docket No. 93-SW-26-AD. Supersedes AD 76-06-11, Amendment 39-2560.
Applicability: Model F-28A, F-28C, F-28C-2, 280, and 280C
helicopters, manufactured prior to January 1, 1981, certificated in
any category.
Note 1: This AD applies to each helicopter identified in the
preceding applicability provision, regardless of whether it has been
modified, altered, or repaired in the area subject to the
requirements of this AD. For helicopters that have been modified,
altered, or repaired so that the performance of the requirements of
this AD is affected, the owner/operator must use the authority
provided in paragraph (e) to request approval from the FAA. This
approval may address either no action, if the current configuration
eliminates the unsafe condition, or different actions necessary to
address the unsafe condition described in this AD. Such a request
should include an assessment of the effect of the changed
configuration on the unsafe condition addressed by this AD. In no
case does the presence of any modification, alteration, or repair
remove any helicopter from the applicability of this AD.
Compliance: Required as indicated, unless accomplished
previously.
To prevent failure of the upper and lower swashplate bearings
(bearings) and subsequent loss of control of the helicopter,
accomplish the following:
(a) Within the next 10 hours time-in-service (TIS) after the
effective date of this AD, and thereafter at intervals not to exceed
100 hours TIS since the last inspection, perform a visual inspection
of the upper swashplate bearing, part number (P/N) Z993L13X3B,
bearing number SKF 6013-RS, or ECD013-13, and lower swashplate
bearing, P/N 5201SBKZZ-ABEC, or ECD009-11, for corrosion as follows:
(1) Lower the swashplate to lowest position with the collective
control.
(2) Remove the plastic bearing seals from the upper and lower
swashplate bearings using a blunt scribe.
(3) Using an inspection mirror, visually inspect the bearings
for grease lubricant and any evidence of corrosion. Rotate the
bearings and housing to reposition balls and race for complete
inspection. For bearings found free of corrosion or defects, repack
them with Exxon ANDOK-B grease or any MIL-G-18709A grease, and
reinstall the bearing seals in accordance with the applicable
maintenance manual.
(b) Replace any unairworthy bearing with an airworthy bearing in
accordance with the applicable maintenance manual.
(c) Before further flight, after the effective date of this AD,
remove all upper and lower swashplate bearings having 1,200 hours or
more TIS, and replace them with airworthy bearings. For bearings
with less than 1,200 hours TIS on the effective date of this AD,
replace the bearings on or before attaining 1,200 hours TIS.
(d) Installation of revised upper swashplate bearing housing, P/
N 28-16108-2, and lower swashplate bearing housing, P/N 28-16361-1,
that are equipped with grease fittings and integral bearing shields
as described in The Enstrom Helicopter Corporation Service
Information Letter No. 0110, Revision B, dated March 18, 1993,
constitutes terminating action for the requirements of this AD.
(e) An alternative method of compliance or adjustment of the
compliance time that provides an acceptable level of safety may be
used when approved by the Manager, Chicago Aircraft Certification
Office, FAA. Operators shall submit their requests through an FAA
Principal Maintenance Inspector, who may concur or comment and then
send it to the Manager, Chicago Aircraft Certification Office.
Note 2: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Chicago Aircraft Certification Office.
(f) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the helicopter to a location where
the requirements of this AD can be accomplished.
(g) The optional replacement permitted by paragraph (d) shall be
done in accordance with The Enstrom Helicopter Corporation Service
Information Letter No. 0110, Revision B, dated March 18, 1993. This
incorporation by reference was approved by the Director of the
Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part
51. Copies may be obtained from The Enstrom Helicopter Corporation,
Twin County Airport, P.O. Box 490, Menominee, Michigan 49858. Copies
may be inspected at the FAA, Office of the Assistant Chief Counsel,
2601 Meacham Blvd., Room 663, Fort Worth, Texas; or at the Office of
the Federal Register, 800 North Capitol Street, NW., suite 700,
Washington, DC.
[[Page 11538]]
(h) This amendment becomes effective on April 25, 1996.
Issued in Fort Worth, Texas, on March 11, 1996.
Eric Bries,
Acting Manager, Rotorcraft Directorate, Aircraft Certification Service.
[FR Doc. 96-6420 Filed 3-20-96; 8:45 am]
BILLING CODE 4910-13-U
Complete official Federal Register PDF
FR Doc. 96-6419 Airworthiness Directives; Bell Helicopter Textron, A Division of Textron Canada, Ltd. Model 206A and 206B Helicopters
[Federal Register Volume 61, Number 56 (Thursday, March 21, 1996)]
[Rules and Regulations]
[Pages 11538-11539]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6419]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 94-SW-16-AD; Amendment 39-9541, AD 96-06-04]
Airworthiness Directives; Bell Helicopter Textron, A Division of
Textron Canada, Ltd. Model 206A and 206B Helicopters
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This amendment supersedes an existing airworthiness directive
(AD), applicable to Bell Helicopter Textron, A Division of Textron
Canada, Ltd., (BHTC) Model 206A and 206B helicopters, that currently
requires an inspection of the main transmission input driveshaft
assembly (driveshaft) at intervals of 300 hours time-in-service (TIS);
the application of a zinc chromate primer inspection visual aid; and,
daily visual checks of the driveshaft. This amendment requires
inspections of the driveshaft at intervals of 300 hours TIS; the
application of a self-adhesive temperature indicator visual inspection
aid; and, preflight visual owner/operator (pilot) checks of the
driveshaft. This amendment is prompted by recent studies that indicate
self-adhesive temperature indicators are a more reliable means of
detecting overheat conditions on grease-lubricated couplings than the
zinc chromate primers currently in use. The actions specified by this
AD are intended to prevent failure of the driveshaft due to coupling
wear or overheating, which could result in loss of power to the main
rotor and a subsequent forced emergency landing.
DATES: Effective April 25, 1996.
The incorporation by reference of certain publications listed in
the regulations is approved by the Director of the Federal Register as
of April 25, 1996.
ADDRESSES: The service information referenced in this AD may be
obtained from BHTC, 12,800 Rue de l'Avenir, Mirabel, Quebec, Canada
J7J1R4, ATTN: Product Support Engineering Light Helicopters. This
information may be examined at the FAA, Office of the Assistant Chief
Counsel, 2601 Meacham Blvd., Room 663, Fort Worth, Texas; or at the
Office of the Federal Register, 800 North Capitol Street NW., suite
700, Washington, DC.
FOR FURTHER INFORMATION CONTACT: Mr. Jurgen Priester, Aerospace
Engineer, Rotorcraft Certification Office, Rotorcraft Directorate, FAA,
Fort Worth, Texas 76193-0170, telephone (817) 222-5159; fax (817) 222-
5959.
SUPPLEMENTARY INFORMATION: A proposal to amend part 39 of the Federal
Aviation Regulations (14 CFR part 39) by superseding AD 81-04-08,
Amendment 39-4037 (46 FR 12469, February 17, 1981), which is applicable
to BHTC Model 206A and 206B helicopters, was published in the Federal
Register on September 8, 1995 (60 FR 46790). That action proposed to
require inspections of the driveshaft at intervals of 300 hours TIS;
the application of a self-adhesive visual over-temperature indicator;
and, preflight visual checks of the driveshaft. The checks described in
the proposal (before the first flight of each day) may be performed by
an owner/operator (pilot), but must be entered into the aircraft
records showing compliance with the preflight check requirements of
this AD in accordance with sections 43.11 and 91.417(a)(2)(v) of the
Federal Aviation Regulations. The notice proposed to allow a pilot to
perform these checks because they involve only a visual check for
grease leakage, overheating, and security of the clamps and bolts used
to attach the driveshaft to transmission and engine couplings. These
checks can be performed equally well by a pilot or a mechanic. They
involve checking items similar to those items that a pilot checks
during a preflight check. The notice proposed that a mechanic inspect
the driveshaft and driveshaft couplings at intervals of 300 hours TIS.
Interested persons have been afforded an opportunity to participate
in the making of this amendment. No comments were received on the
proposal or the FAA's determination of the cost to the public. However,
the FAA has reorganized paragraphs (a) and (b) to separate the
requirements of the visual checks that may be performed by the pilot
from the required corrective actions that must be performed by a
mechanic if certain conditions are discovered during the visual check.
The FAA has determined that air safety and the public interest require
the adoption of the rule as proposed with the exception of
organizational changes noted and various editorial changes. The FAA has
determined that these changes will neither increase the economic burden
on any operator nor increase the scope of the AD.
The FAA estimates that 4,312 helicopters of U.S. registry will be
affected by this AD, that it will take approximately one and one-half
work hours per helicopter to accomplish the required actions, and that
the average labor rate is $60 per work hour. Required parts will be
provided by the manufacturer at no charge, but installation materials
will cost approximately $10 per helicopter. Based on these figures, the
total cost impact of the AD on U.S. operators is estimated to be
$431,200.
The regulations adopted herein will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this final
rule does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this action (1) is
not a ``significant regulatory action'' under Executive Order 12866;
(2) is not a ``significant rule'' under DOT Regulatory Policies and
Procedures (44 FR 11034, February 26, 1979); and (3) will not have a
significant economic impact, positive or negative, on a substantial
number of small entities under the criteria of the Regulatory
Flexibility Act. A final evaluation has been prepared for this action
and it is contained in the Rules Docket. A copy of it may be obtained
from the Rules Docket at the location provided under the caption
ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.
Adoption of the Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration amends part 39 of
the Federal Aviation Regulations (14 CFR part 39) as follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 USC App. 106(g), 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by removing Amendment 39-4037 (46 FR
[[Page 11539]]
12469, February 17, 1981), and by adding a new airworthiness directive
(AD), Amendment 39- , to read as follows:
AD 96-06-04 Bell Helicopter Textron, a Division of Textron Canada,
Ltd.: Amendment 39-9541, Docket No. 94-SW-16-AD. Supersedes AD 81-
04-08, Amendment 39-4037.
Applicability: Model 206A and 206B helicopters, certificated in
any category.
Note: 1:
This AD applies to each helicopter identified in the preceding
applicability provision, regardless of whether it has been modified,
altered, or repaired in the area subject to the requirements of this
AD. For helicopters that have been modified, altered, or repaired so
that the performance of the requirements of this AD is affected, the
owner/operator must use the authority provided in paragraph (e) to
request approval from the FAA. This approval may address either no
action, if the current configuration eliminates the unsafe
condition, or different actions necessary to address the unsafe
condition described in this AD. Such a request should include an
assessment of the effect of the changed configuration on the unsafe
condition addressed by this AD. In no case does the presence of any
modification, alteration, or repair remove any helicopter from the
applicability of this AD.
Compliance: Required as indicated, unless accomplished
previously.
To prevent failure of the main transmission input driveshaft
assembly (driveshaft) due to coupling wear or overheating, which
could result in loss of power to the main rotor and a subsequent
forced emergency landing, accomplish the following:
(a) Before the first flight of each day after the effective date
of this AD, visually check the driveshaft, part number (P/N) 206-
040-100-13, for: (1) grease leakage from the driveshaft couplings,
P/N 206-040-108-005; and (2) visual damage and security of the
clamps and bolts used to attach the driveshaft to the transmission
and engine couplings. After compliance with paragraph (d) of this
AD, also check the self-adhesive over-temperature indicators (over-
temperature indicators) for overheating, deterioration, debonding,
or discoloration. The visual checks may be performed by an owner/
operator (pilot) holding at least a private pilot certificate, and
must be entered into the aircraft records showing compliance with
the visual check of this AD in accordance with sections 43.11 and
91.417(a)(2)(v) of the Federal Aviation Regulations.
(b) If any discrepancies are discovered as a result of the
visual check performed in paragraph (a), accomplish the following
before further flight:
(1) If there is any grease leakage or any indications of
overheating, disassemble and inspect the driveshaft in accordance
with the applicable maintenance manual and replace the over-
temperature indicators in accordance with Part III of the
Accomplishment Instructions of Bell Helicopter Textron, Inc., Alert
Service Bulletin (ASB) No. 206-93-76, Revision B, dated September 6,
1994.
(2) If any ``dot'' on an over-temperature indicator has changed
color to black, accomplish the corrective action in accordance with
TABLE I and the accompanying Notes in ASB No. 206-93-76, Revision B,
dated September 6, 1994.
(3) If there are any deteriorated, debonded, or discolored over-
temperature indicator(s) that would prevent interpretation of the
indicating ``dots'', replace those over-temperature indicator(s) in
accordance with Part III of the Accomplishment Instructions of ASB
No. 206-93-76, Revision B, dated September 6, 1994. If only one
over-temperature indicator is missing, and no ``dot'' on any other
over-temperature indicator on the same coupling is discolored or
shows mechanical damage or degradation of the epoxy overcoating, the
helicopter may be returned to service.
(4) If there are any loose or damaged clamps or bolts, secure
the loose clamps or bolts and replace the damaged clamps or bolts in
accordance with the applicable maintenance manual.
(c) Inspect and lubricate the driveshaft assembly, P/N 206-040-
100-13, and driveshaft couplings, P/N 206-040-108-005, in accordance
with the helicopter's maintenance manual and according to the
compliance schedule that follows, and thereafter, inspect and
lubricate at intervals not to exceed 300 hours time-in-service
(TIS):
(1) For helicopters with 250 hours TIS or more, compliance is
required within the next 50 hours TIS; or,
(2) For helicopters with less than 250 hours TIS, compliance is
required prior to attaining 300 hours TIS.
(d) Install the over-temperature indicators at the next 300
hours TIS driveshaft coupling inspection and lubrication in
accordance with Part I of the Accomplishment Instructions of ASB No.
206-93-76, Revision B, dated September 6, 1994.
(e) An alternative method of compliance or adjustment of the
compliance time that provides an acceptable level of safety may be
used when approved by the Manager, Rotorcraft Certification Office,
Rotorcraft Directorate, FAA. Operators shall submit their requests
through an FAA Principal Maintenance Inspector, who may concur or
comment and then send it to the Manager, Rotorcraft Certification
Office.
Note 2: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Rotorcraft Certification Office.
(f) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the helicopter to a location where
the requirements of this AD can be accomplished.
(g) The inspections, maintenance and installation of over-
temperature indicators shall be done in accordance with ASB No. 206-
93-76, Revision B, dated September 6, 1994. This incorporation by
reference was approved by the Director of the Federal Register in
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies may be
obtained from Bell Helicopter Textron, A Division of Textron Canada,
Ltd., 12,800 Rue L'Avenir, Mirabel, Quebec, Canada J7J1R4, ATTN:
Product Support Engineering Light Helicopters. Copies may be
inspected at the FAA, Office of the Assistant Chief Counsel, 2601
Meacham Blvd., Room 663, Fort Worth, Texas; or at the Office of the
Federal Register, 800 North Capitol Street, NW., suite 700,
Washington, DC.
(h) This amendment becomes effective on April 25, 1996.
Issued in Fort Worth, Texas, on March 11, 1996.
Eric Bries,
Acting Manager, Rotorcraft Directorate, Aircraft Certification Service.
[FR Doc. 96-6419 Filed 3-20-96; 8:45 am]
BILLING CODE 4910-13-U
Complete official Federal Register PDF
FR Doc. 96-6391 Airworthiness Directives; Boeing Model 727 Series Airplanes
[Federal Register Volume 61, Number 56 (Thursday, March 21, 1996)]
[Rules and Regulations]
[Pages 11529-11533]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6391]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 94-NM-179-AD; Amendment 39-9542; AD 96-06-05]
Airworthiness Directives; Boeing Model 727 Series Airplanes
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This amendment supersedes two existing airworthiness
directives (AD), applicable to certain Boeing Model 727 series
airplanes, that currently require repetitive visual inspections to
detect cracks of the elevator rear spar, and repair, if necessary. This
amendment adds new inspections to detect cracks and loose brackets of
the elevator rear spar; adds a new terminating modification for the
inspections, and expands the applicability of the rules to include
additional airplanes. This amendment is prompted by reports of cracking
in the spar radii at the tab hinge location of the elevator rear spar
on certain airplanes. The actions specified by this AD are intended to
prevent cracking in elements of the elevator rear spar assembly, which
could result in excessive free play of the elevator control tab and
possible tab flutter.
DATES: Effective April 22, 1996.
The incorporation by reference of certain publications listed in
the regulations is approved by the Director of the Federal Register as
of April 22, 1996.
ADDRESSES: The service information referenced in this AD may be
obtained from Boeing Commercial Airplane Group, P.O. Box 3707, Seattle,
Washington 98124-2207. This information may be examined at the Federal
Aviation Administration (FAA), Transport Airplane Directorate, Rules
Docket, 1601 Lind Avenue SW., Renton, Washington; or at the Office of
the Federal Register, 800 North Capitol Street, NW., suite 700,
Washington, DC.
FOR FURTHER INFORMATION CONTACT: Walter Sippel, Aerospace Engineer,
Airframe Branch, ANM-120S, FAA, Transport Airplane Directorate, Seattle
Aircraft Certification Office, 1601 Lind Avenue SW., Renton, Washington
98055-4056; telephone (206) 227-2774; fax (206) 227-1181.
SUPPLEMENTARY INFORMATION: A proposal to amend part 39 of the Federal
Aviation Regulations (14 CFR part 39) by superseding AD 84-22-02,
amendment 39-4951 (49 FR 45743, November 20, 1984), and AD 87-24-03,
amendment 39-5769 (52 FR 43742, November 16, 1987), both of which are
applicable to Boeing Model 727 series airplanes, was published in the
Federal Register as a supplemental notice of proposed rulemaking on
September 19, 1995 (60 FR 47896). The action proposed to require
repetitive visual inspections to detect cracks and loose brackets of
the elevator rear spar, and various follow-on actions. The supplemental
NPRM also proposed to require the installation of a modification of the
elevator rear spar that would constitute terminating action for the
repetitive inspections. Additionally, the supplemental NPRM proposed to
expand the applicability of the existing proposed rules to include
additional airplanes.
Interested persons have been afforded an opportunity to participate
in the making of this amendment. Due consideration has been given to
the comments received.
One commenter supports the proposal.
A discussion of other comments received follows:
Requests to Withdraw the Proposal
Two commenters request that the FAA withdraw the proposal. These
commenters consider that the problem addressed is strictly a quality
control problem and is not associated with airplanes on a fleet-wide
basis.
The FAA does not concur. There have been at least 13 occurrences of
cracking found in modified elevator rear spars on in-service airplanes.
New information has revealed that the shear plate contacting the radius
of the rear spar is not the only problem that is creating the addressed
cracking. New data show that loose tee fittings attached to the rib may
also contribute to cracking in the rear spar. In light of this, the FAA
finds no reason to consider the unsafe condition to be limited to a few
airplanes, nor a single operator's quality program.
Request To Allow Inspections With the Elevator Tab Installed
One commenter requests that the proposed rule be revised to allow
the inspection of modified elevator rear spars to be accomplished with
the elevator tab installed. This commenter, an operator, states that it
has inspected all of its affected modified airplanes using this method
and have not found any cracking of rear spars.
The FAA cannot concur with this commenter's request since no
technical data were submitted that could demonstrate that this method
of inspection would provide an acceptable level of safety (compared to
the proposed inspection methods). Additionally, the reliability of the
inspection method suggested by the commenter is not clear. (For
example, would other operators obtain accurate results? Have the
results of inspections performed with elevator tabs installed been
compared those of inspections performed with elevator tabs not
installed?) The FAA suggests that this commenter submit justifying data
and apply for the approval of this inspection as an alternative method
of compliance with the AD, in accordance with the provisions of
paragraph (j) of the final rule.
Requests To Extend the Inspection Interval for Modified Airplanes
Several commenters request that the proposed rule be revised to
extend the compliance time for accomplishing the visual inspection of
modified airplanes. One commenter requests that it be extended from the
proposed 4,000 flight hours to 3,000 flight cycles after the effective
date of the final rule. This commenter, an operator, states that it
modified its fleet of affected airplanes (in accordance with AD 84-22-
02 and 87-24-03) between 1987 and 1992. This operator has been
inspecting the subject area on these modified airplanes at every ``C''
check (approximately every 3,000 flight cycles) and has found no
cracking to date. Other commenters request that the initial inspection
be required at the next regularly scheduled ``C'' check scheduled for
the airplane. These commenters assert that the work hours needed to
accomplish this inspection and the complexity of this inspection
require that it be accomplished at a main base facility and by
maintenance personnel specifically trained for this task.
The FAA does not concur with these commenters' request. The FAA has
received reports of cracking in rear spars on several modified
airplanes after approximately 4,000 flight hours (after
[[Page 11530]]
modification). In addition, a crack has been found on a new, modified
one-piece spar that had accumulated approximately 4,000 fight hours. In
light of these findings, the FAA has determined that the compliance
time of 4,000 flight hours represents the maximum interval of time
allowable for the affected airplanes to continue to operate prior to
accomplishing the required inspection without compromising safety. The
FAA does not consider a ``C'' check to be an appropriate inspection
interval, since maintenance schedules for ``C'' checks may vary from
operator to operator, and there would be no assurance that the
inspection would be accomplished during the maximum interval of 4,000
flight hours. Further, the FAA does not consider 3,000 flight cycles to
be an appropriate interval, since many fatigue cycles can occur per
flight and the subject cracking is associated with fatigue.
Consequently, an interval of ``3,000 flight cycles'' would result in a
much longer time period than data show is acceptable.
Requests To Delete Calendar Time From Inspection Intervals
Several commenters request that the proposed rule be revised to
delete the references to calendar time in the repetitive inspection
intervals for both modified and unmodified spars. The proposal would
require that, in those cases where no cracking is found, visual
inspections be conducted every ``1,600 flight hours or 18 months,
whichever occurs first.'' The commenters contend that calendar time as
an inspection interval is inappropriate in this case because the
subject cracking is related to fatigue (which is associated with flight
cycles or flight hours), and not to conditions such as corrosion (which
is associated with calendar time or environmental conditions). These
commenters request that the inspection interval be expressed only in
flight cycles or flight hours.
The FAA concurs. Since the cracking addressed by this AD is the
result of problems associated with fatigue, it is more appropriate that
structure be inspected at intervals related to flight hours rather than
calendar time. The final rule has been revised to delete the references
to ``18 months'' in the compliance times for the repetitive
inspections.
Requests To Delete Mandatory Terminating Action
Several commenters request that the proposed rule be revised to
delete the requirement to accomplish the terminating modification
within 5 years. These commenters contend that continuing repetitive
inspections of the area will provide an acceptable level of safety. One
of these commenters, an operator, states that its existing inspection
program, which has been carried out successfully in its fleet over the
past 10 years, is adequate for finding and repairing cracks prior to
the time that a serious cracking condition can develop. Another
commenter states that it has continued to inspect its airplanes that
previously have been modified and has not detected any cracking in the
modified structure.
The FAA concurs that installation of the terminating modification
need not be mandatory. The FAA has reconsidered the information it has
received concerning the subject cracks that have been found on in
service airplanes. This information indicates that cracking has been
found during the scheduled inspection periods, and before any cracking
was able to propagate to critical lengths. Additionally, the FAA finds
that inspections are easy to accomplish, since the area is easily
accessible, and they are effective in finding cracks. Moreover, the
cracking is easily detectable and the consequences of the cracking are
not likely to be catastrophic. In light of this, the FAA has determined
that continuing inspections will provide an acceptable level of safety,
and that the terminating modification need not be mandatory. The final
rule has been revised to provide for a program of repetitive
inspections, in lieu of installation of the terminating modification,
for airplanes on which no cracking is detected during the required
inspections. The terminating modification will be provided as an
optional installation for those airplanes.
Requests for On-Going Repetitive Inspections in Lieu of Terminating
Action
Several commenters request that, if the proposed AD is revised to
delete the requirement that would mandate installation of the
terminating modification, then it should include a specific schedule of
repetitive inspections of the affected airplanes. These commenters
provide various suggestions for this inspection schedule:
1. One commenter requests that repetitive inspections of all
airplanes be allowed at intervals of 4,000 flight hours. This commenter
states that it is regularly conducting inspections of all of its
affected airplanes at approximately 4,000 flight hour intervals and has
found little cracking or other discrepancies.
2. Another commenter requests that continued repetitive inspections
of unmodified two-piece spars and all modified spars all be allowed to
be conducted at intervals of 4,000 flight hours. This commenter, an
operator, conducts inspections of airplanes with these configurations
in its fleet every 4,000 flight hours. In the last 18 months, 33
cracked spars have been found during 84 inspections of unmodified
spars, and 4 cracked spars have been found during 36 inspections of
modified spars. All cracks were found and repaired in a timely manner,
and no flutter of the flight control surface was experienced. Based on
this experience, this commenter considers 4,000-flight hour inspections
to be both effective and economical.
3. One commenter requests that the inspections of unmodified spars
(either one- or two-piece) be repeated at intervals of 1,600 flight
hours or 13 months, whichever occurs later. The commenter considers the
proposed inspection interval of ``1,600 flight hours or 18 months,
whichever occurs first'' is far too restrictive. This commenter, an
operator, states that its suggested interval would allow it to conduct
the inspections during its regularly scheduled maintenance periods,
without disrupting scheduling.
The FAA responds to these specific suggestions as follows:
As for Item 1, the FAA cannot concur with the suggestion that all
airplanes, whether modified or unmodified, be inspected at the same
interval, as one commenter suggested. Since reports indicate that
cracking has been found on modified one-piece spars within 4,000 flight
hours after modification, inspections every 4,000 flight hours are
appropriate for these spars. However, because modified spars have
certain reinforcements and less interference, they are less prone to
the subject cracking than are unmodified spars; therefore, cracking
could be expected to occur in unmodified spars earlier than it could
develop in the modified spars. In light of this, inspection intervals
of fewer flight hours will be more effective for detecting cracking in
unmodified one-piece spars in a timely manner.
As for Item 2, the FAA concurs that a repetitive inspection
interval of 4,000 flight hours for unmodified two-piece spars and all
modified spars is acceptable. In-service reports have shown that the
4,000 flight hour inspection interval is effective and appropriate for
detecting cracking in a timely manner.
As for Item 3, the FAA does not agree with the suggestion that an
inspection interval of 1,600 flight hours or 13
[[Page 11531]]
months, whichever is later, is appropriate for two-piece unmodified
spars. First, as discussed previously, a calendar time (i.e., ``13
months'') is inappropriate in addressing problems associated with
fatigue (such as the cracking addressed by this AD action). Second,
while 1,600 flight hours is appropriate for unmodified one-piece spars,
it is not appropriate for unmodified two-piece spars. The configuration
of two-piece spars makes them inherently less prone to cracking than
the one-piece spars, and the inspections that have been accomplished in
accordance with AD 87-24-03 at the 4,000 flight hour interval have been
shown to be effective in controlling cracking. Therefore, the FAA finds
that the 4,000-flight hour interval for inspections of the unmodified
two-piece spars is suitable.
In light of the information presented by commenters to this
supplemental NPRM, as well as the reports of inspection findings, the
FAA has determined that a different specific repetitive inspection
interval for each of the various configurations of spars is
appropriate. Taking this into account, the FAA has revised the final
rule as follows:
For airplanes equipped with unmodified one-piece spars: If no
cracking is found, the inspections are to be repeated every 1,600
flight hours. (This interval is unchanged from that previously required
by AD 84-22-02.)
For airplanes equipped with modified one-piece spars: If no
cracking is found, the inspections are to be repeated every 4,000 fight
hours.
For airplanes equipped with unmodified two-piece spars: If no
cracking is found, the inspections are to be repeated every 4,000
flight hours. (This interval is unchanged from that previously required
by AD 87-24-03.)
For airplanes equipped with modified two piece spars: If no
cracking is found, the inspections are to be repeated every 4,000
flight hours.
For all configurations: If cracking is found during any inspection
and subsequently is stop-drilled, the inspection is repeated within
1,600 flight hours after stop-drilling, and the terminating
modification is required to be accomplished within 3,200 flight hours
after stop-drilling. (This provision is not changed from what was
proposed in the notice.)
The FAA has determined that this change--providing for continuing
inspections in lieu of mandatory terminating action--will not
compromise safety, since the quality and timeliness of the repeated
inspections will ensure that cracking will be detected before it can
propagate to critical levels. Additionally, the FAA has determined that
this change represents merely an optional method of compliance with the
rule as it was originally proposed. The optional procedures will not
impose an additional burden on any operator. They are a logical
outgrowth of the notice that do not necessitate providing an additional
opportunity for public comment.
Correction of Typographical Errors
The FAA has been advised that, in certain sections of the notice,
the numbers of the applicable service bulletins were incorrectly cited.
The FAA acknowledges these typographical errors and has revised the
final rule to specify the correct Boeing Service Bulletin numbers of:
727-55-0087 and 727-55-0089.
Conclusion
After careful review of the available data, including the comments
noted above, the FAA has determined that air safety and the public
interest require the adoption of the rule with the changes previously
described. The FAA has determined that these changes will neither
increase the economic burden on any operator nor increase the scope of
the AD.
Cost Impact
There are approximately 1,631 Model 727 series airplanes of the
affected design in the worldwide fleet. The FAA estimates that 1,166
airplanes of U.S. registry will be affected by this proposed AD.
The inspections will take approximately 17 work hours per airplane
to accomplish (this includes the time required to gain access, remove
parts, inspect, install, and perform functional testing), at an average
labor rate of $60 per work hour. Based on these figures, the cost
impact of the inspection requirements of this AD on U.S. operators is
estimated to be $1,189,320, or $1,020 per airplane, per inspection
cycle.
The cost impact figures discussed above are based on assumptions
that no operator has yet accomplished any of the requirements of this
AD action, and that no operator would accomplish those actions in the
future if this AD were not adopted.
For operators who elect to install the optional terminating
modification, it will take approximately 430 work hours per airplane to
accomplish, at an average labor rate of $60 per work hours. Required
parts will cost approximately $8,580 per airplane. Based on these
figures, the cost impact of the optional modification is estimated to
be $34,380 per airplane.
Regulatory Impact
The regulations adopted herein will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this final
rule does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this action (1) Is
not a ``significant regulatory action'' under Executive Order 12866;
(2) is not a ``significant rule'' under DOT Regulatory Policies and
Procedures (44 FR 11034, February 26, 1979); and (3) will not have a
significant economic impact, positive or negative, on a substantial
number of small entities under the criteria of the Regulatory
Flexibility Act. A final evaluation has been prepared for this action
and it is contained in the Rules Docket. A copy of it may be obtained
from the Rules Docket at the location provided under the caption
ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.
Adoption of the Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration amends part 39 of
the Federal Aviation Regulations (14 CFR part 39) as follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 USC 106(g), 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by removing amendment 39-4951 (59 FR
45743, November 20, 1984), and amendment 39-5769 (52 FR 43742, November
16, 1987), and by adding a new airworthiness directive (AD), amendment
39-9542, to read as follows:
96-06-05 Boeing: Amendment 39-9542. Docket 94-NM-179-AD. Supersedes
AD 84-22-02, amendment 39-4951; and AD 87-24-03, amendment 39-5769.
Applicability: Model 727 series airplanes, line numbers 1
through 1832 inclusive; certificated in any category.
[[Page 11532]]
Note 1: This AD applies to each airplane identified in the
preceding applicability provision, regardless of whether it has been
otherwise modified, altered, or repaired in the area subject to the
requirements of this AD. For airplanes that have been modified,
altered, or repaired so that the performance of the requirements of
this AD is affected, the owner/operator must request approval for an
alternative method of compliance in accordance with paragraph (j) of
this AD. The request should include an assessment of the effect of
the modification, alteration, or repair on the unsafe condition
addressed by this AD; and, if the unsafe condition has not been
eliminated, the request should include specific proposed actions to
address it.
Compliance: Required as indicated, unless accomplished
previously.
To prevent excessive free play of the elevator control tab and
possible tab flutter, accomplish the following:
(a) For airplanes on which the modification or repair described
in Boeing Service Bulletin 727-55-0085, dated August 31, 1984
(specified as terminating action in AD 84-22-02, amendment 39-4951),
has not been accomplished and the repetitive inspections required by
AD 84-22-02 have not been initiated: Prior to the accumulation of
8,000 total flight hours since date of manufacture, or within 300
flight hours after the effective date of this AD, whichever occurs
later, perform a visual inspection to detect cracks and loose hinge
brackets of the elevator rear spar in the area along the upper and
lower edges at the shear plate, in accordance with Boeing Service
Bulletin 727-55-0089, dated June 29, 1995. Then accomplish the
follow-on actions (i.e., repetitive inspections, stop-drilling,
modification) in accordance with that service bulletin, at the times
specified as follows .
Note 2: AD 84-22-02 pertains to the one-piece elevator rear
spar.
(1) Repeat the visual inspection thereafter at intervals not to
exceed 1,600 flight hours.
(2) If any crack is detected and stop-drilled as a result of any
inspection required by this paragraph, accomplish the requirements
of paragraph (g) of this AD at the times specified in that
paragraph.
(b) For airplanes on which the modification or repair described
in Boeing Service Bulletin 727-55-0085, dated August 31, 1984
(specified as terminating action in AD 84-22-02, amendment 39-4951),
has not been accomplished and the repetitive inspections required by
AD 84-22-02 have been initiated: Accomplish either paragraph (b)(1)
or (b)(2) of this AD, as applicable.
(1) If no crack has been detected as a result of inspections
required by AD 84-22-02: Within 1,600 flight hours after the last
inspection required by that AD, perform a visual inspection to
detect cracks and loose brackets of the elevator rear spar in the
area along the upper and lower edges at the shear plate, in
accordance with the Boeing Service Bulletin 727-55-0089, dated June
29, 1995. Accomplish follow-on actions (i.e., repetitive inspection,
stop-drilling, modification) in accordance with that service
bulletin, at the times specified as follows:
(i) Repeat the visual inspection thereafter at intervals not to
exceed 1,600 flight hours.
(ii) If any crack is detected and stop-drilled as a result of
any inspection required by this paragraph, accomplish the
requirements of paragraph (g) of this AD at the times specified in
that paragraph.
(2) If any crack has been stop-drilled in accordance with AD 84-
22-02, accomplish the requirements of paragraph (g) of this AD at
the times specified in that paragraph.
(c) For airplanes on which the modification or repair described
in Boeing Service Bulletin 727-55-0085, dated August 31, 1984
(specified as terminating action in AD 84-22-02, amendment 39-4951),
has been accomplished: Within 4,000 flight hours after the effective
date of this AD, perform a visual inspection to detect cracks and
loose hinge brackets of the elevator rear spar in the area along the
upper and lower edges at the shear plate, in accordance with Boeing
Service Bulletin 727-55-0089, dated June 29, 1995. Accomplish
follow-on actions (i.e., repetitive inspections, stop-drilling,
modification) in accordance with that service bulletin, at the times
specified as follows:
(1) Repeat the visual inspection thereafter at intervals not to
exceed 4,000 flight hours.
(2) If any crack is detected and stop-drilled as a result of any
inspection required by this paragraph, accomplish the requirements
of paragraph (g) of this AD at the times specified in that
paragraph.
(d) For airplanes on which the modification or repair described
in Boeing Service Bulletin 727-55-087, dated June 20, 1986
(specified as terminating action in AD 87-24-03, amendment 39-5769),
has not been accomplished and the repetitive inspections required by
AD 87-24-03 have not been initiated: Accomplish the requirements of
paragraph (d)(1) of this AD at the earliest of the times specified
in paragraph (d)(2).
Note 3: AD 87-24-03 pertains to the two-piece elevator rear
spar.
(1) Perform a visual inspection to detect cracks and loose hinge
brackets of the elevator rear spar in the area along the upper and
lower edges at the shear plate, at the earliest of the times
specified in paragraph (d)(2) of this AD, and in accordance with
Boeing Service Bulletin 727-55-0089, dated June 29, 1995. Accomplish
follow-on actions (i.e., repetitive inspection, stop-drilling,
modification) in accordance with that service bulletin, at the times
specified as follows:
(i) Repeat the visual inspection thereafter at intervals not to
exceed 4,000 flight hours.
(ii) If any crack is detected and stop-drilled as a result of
any inspection required by this paragraph, accomplish the
requirements of paragraph (g) of this AD at the times specified in
that paragraph.
(2) Accomplish the initial visual inspection required by
paragraph (d)(1) of this AD at the earliest of the following times:
(i) Prior to the accumulation of 27,000 total flight hours since
date of manufacture, or within 4,000 flight hours after December 24,
1987 (the effective date of 87-24-03, amendment 39-5769), whichever
occurs later; or
(ii) Prior to the accumulation of 12,000 total flight hours
since date of manufacture, or within 4,000 flight hours after the
effective date of this AD, whichever occurs later; or
(iii) Prior to the accumulation of 27,300 total flight hours
since date of manufacture, or within 300 flight hours after the
effective date of this AD, whichever occurs later.
(e) For airplanes on which the modification or repair described
in Boeing Service Bulletin 727-55-087, dated June 20, 1986
(specified as terminating action in AD 87-24-03, amendment 39-5769),
has not been accomplished and the repetitive inspections required by
AD 87-24-03 have been initiated: Accomplish either paragraph (e)(1)
or (e)(2) of this AD, as applicable.
(1) If no crack has been detected as a result of inspections
required by AD 87-24-03: Within 4,000 flight hours after the last
inspection required by that AD, perform a visual inspection to
detect cracks and loose brackets of the elevator rear spar in the
area along the upper and lower edges at the shear plate, in
accordance with Boeing Service Bulletin 727-55-0089, dated June 29,
1995. Accomplish follow-on actions (i.e., repetitive inspection,
stop-drilling, modification) in accordance with that service
bulletin, at the times specified as follows:
(i) Repeat the visual inspection thereafter at intervals not to
exceed 4,000 flight hours.
(ii) If any crack is detected and stop-drilled as a result of
any inspection required by paragraph (e)(1) of this AD, accomplish
the requirements of paragraph (g) of this AD at the times specified
in that paragraph.
(2) If any crack has been detected and stop-drilled in
accordance with AD 87-24-03, accomplish the requirements of
paragraph (g) of this AD at the times specified in that paragraph.
(f) For airplanes on which the modification or repair described
in Boeing Service Bulletin 727-55-087, dated June 20, 1986
(specified as terminating action in AD 87-24-03, amendment 39-5769),
has been accomplished: Within 4,000 flight hours after the effective
date of this AD, perform a visual inspection to detect cracks and
loose hinge brackets of the elevator rear spar in the area along the
upper and lower edges at the shear plate, in accordance with Boeing
Service Bulletin 727-55-0089, dated June 29, 1995. Accomplish
follow-on actions (i.e., repetitive inspection, stop-drilling,
modification) in accordance with the service bulletin, at the times
specified as follows:
(1) Repeat the visual inspection thereafter at intervals not to
exceed 4,000 flight hours.
(2) If any crack is detected and stop-drilled as a result of any
inspection required by this paragraph, accomplish the requirements
of paragraph (g) of this AD at the times specified in that
paragraph.
(g) If any crack is detected and stop-drilled in accordance with
paragraph (a)(2), (b)(1)(ii), (b)(2), (c)(2), (d)(1)(ii),
(e)(1)(ii), (e)(2), or (f)(2) of this AD, accomplish the following:
(1) Within 1,600 flight hours after stop-drilling, perform a
visual inspection to detect cracks and loose hinge brackets of the
elevator rear spar in the area along the upper and lower edges at
the shear plate, and accomplish follow-on actions (i.e., stop-
drilling, modification) in accordance with the service bulletin. If
any crack growth is detected after stop-drilling, prior to further
flight, modify the elevator rear spar in accordance with Part II of
the
[[Page 11533]]
Accomplishment Instructions of Boeing Service Bulletin 727-55-0089,
dated June 29, 1995. Accomplishment of this modification constitutes
terminating action for the repetitive inspection requirements of
this AD.
(2) Within 3,200 flight hours after stop-drilling, modify the
elevator rear spar in accordance with Part II of the Accomplishment
Instructions of Boeing Service Bulletin 727-55-0089, dated June 29,
1995. Accomplishment of this modification constitutes terminating
action for the repetitive inspection requirements of this AD.
(h) Modification of the elevator rear spar in accordance with
Part II of the Accomplishment Instructions of Boeing Service
Bulletin 727-55-0089, dated June 29, 1995, constitutes terminating
action for the requirements of this AD.
(i) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the airplane to a location where
the requirements of this AD can be accomplished.
(j) An alternative method of compliance or adjustment of the
compliance time that provides an acceptable level of safety may be
used if approved by the Manager, Seattle Aircraft Certification
Office (ACO), FAA, Transport Airplane Directorate. Operators shall
submit their requests through an appropriate FAA Principal
Maintenance Inspector, who may add comments and then send it to the
Manager, Seattle ACO.
Note 4: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Seattle ACO.
(k) The actions shall be done in accordance with Boeing Service
Bulletin 727-55-0089, dated June 29, 1995. This incorporation by
reference was approved by the Director of the Federal Register in
accordance with 5 U.S.C. 552(a) and 1 CFR part 51.
Copies may be obtained from Boeing Commercial Airplane Group,
P.O. Box 3707, Seattle, Washington 98124-2207. Copies may be
inspected at the FAA, Transport Airplane Directorate, 1601 Lind
Avenue, SW., Renton, Washington; or at the Office of the Federal
Register, 800 North Capitol Street, NW., suite 700, Washington, DC.
(l) This amendment becomes effective on April 22, 1996.
Issued in Renton, Washington, on March 12, 1996.
James V. Devany,
Acting Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-6391 Filed 3-20-96; 8:45 am]
BILLING CODE 4910-13-U
Complete official Federal Register PDF
FR Doc. 96-6390 Airworthiness Directives; Boeing Model 747-100, -200, -300, and SP Series Airplanes
[Federal Register Volume 61, Number 56 (Thursday, March 21, 1996)]
[Rules and Regulations]
[Pages 11533-11534]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6390]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 95-NM-22-AD; Amendment 39-9543; AD 96-06-06]
Airworthiness Directives; Boeing Model 747-100, -200, -300, and
SP Series Airplanes
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This amendment adopts a new airworthiness directive (AD),
applicable to certain Boeing Model 747-100, -200, -300, and SP series
airplanes, that requires revising the Airplane Flight Manual (AFM) to
prohibit the use of the autoland function. This amendment also requires
installation of a diode and a marker on certain shelves and making
wiring changes to the flight mode annunciator of the autopilot/flight
director system, which terminates the requirements for the AFM
limitation. This amendment is prompted by a report that the flightcrew
was unaware of the configuration of the autoland system during landing.
The actions specified by this AD are intended to ensure flightcrew
awareness of the configuration of the autoland system in the event of a
change from fail-operational to fail-passive mode.
DATES: Effective April 22, 1996.
The incorporation by reference of certain publications listed in
the regulations is approved by the Director of the Federal Register as
of April 22, 1996.
ADDRESSES: The service information referenced in this AD may be
obtained from Boeing Commercial Airplane Group, P.O. Box 3707, Seattle,
Washington 98124-2207. This information may be examined at the Federal
Aviation Administration (FAA), Transport Airplane Directorate, Rules
Docket, 1601 Lind Avenue SW., Renton, Washington; or at the Office of
the Federal Register, 800 North Capitol Street, NW., suite 700,
Washington, DC.
FOR FURTHER INFORMATION CONTACT: Hania Younis, Aerospace Engineer,
Systems and Equipment Branch, ANM-130S, FAA, Transport Airplane
Directorate, Seattle Aircraft Certification Office, 1601 Lind Avenue,
SW., Renton, Washington 98055-4056; telephone (206) 227-2764; fax (206)
227-1181.
SUPPLEMENTARY INFORMATION: A proposal to amend part 39 of the Federal
Aviation Regulations (14 CFR part 39) to include an airworthiness
directive (AD) that is applicable to certain Boeing Model 747-100,-200,
-300, and SP series airplanes was published in the Federal Register as
a supplemental notice of proposed rulemaking on January 23, 1996 (61 FR
1722). That action proposed to require:
1. revising the Airplane Flight Manual (AFM) to prohibit the use of
the autoland function;
2. installing a diode and a marker on shelves;
3. making wiring changes to the flight mode annunciator (FMA) of
the autopilot/flight director system, which would terminate the
requirements for the AFM revision; and
4. conducting follow-on operational tests.
Interested persons have been afforded an opportunity to participate
in the making of this amendment. Due consideration has been given to
the single comment received.
The commenter supports the proposed rule.
After careful review of the available data, including the comment
noted above, the FAA has determined that air safety and the public
interest require the adoption of the rule as proposed.
There are approximately 179 Boeing Model 747-100, -200, -300, and
SP series airplanes of the affected design in the worldwide fleet. The
FAA estimates that 12 airplanes of U.S. registry will be affected by
this AD.
It will take approximately 1 work hour per airplane to accomplish
the required revision to the AFM, at an average labor rate of $60 per
work hour. Based on these figures, the cost impact of the AD on U.S.
operators is estimated to be $720, or $60 per airplane.
It will take approximately 10 work hours per airplane to accomplish
the required installation and operational test, at an average labor
rate of $60 per work hour. Required parts will cost approximately $613
per airplane. Based on these figures, the cost impact of these
requirements on U.S. operators is estimated to be $14,556, or $1,213
per airplane.
The cost impact figure discussed above is based on assumptions that
no operator has yet accomplished any of the requirements of this AD
action, and that no operator would accomplish those actions in the
future if this AD were not adopted.
The regulations adopted herein will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this final
rule does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
[[Page 11534]]
For the reasons discussed above, I certify that this action (1) is
not a ``significant regulatory action'' under Executive Order 12866;
(2) is not a ``significant rule'' under DOT Regulatory Policies and
Procedures (44 FR 11034, February 26, 1979); and (3) will not have a
significant economic impact, positive or negative, on a substantial
number of small entities under the criteria of the Regulatory
Flexibility Act. A final evaluation has been prepared for this action
and it is contained in the Rules Docket. A copy of it may be obtained
from the Rules Docket at the location provided under the caption
ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.
Adoption of the Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration amends part 39 of
the Federal Aviation Regulations (14 CFR part 39) as follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 USC 106(g), 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by adding the following new
airworthiness directive:
96-06-06 Boeing: Amendment 39-9543. Docket 95-NM-22-AD.
Applicability: Model 747-100, -200, -300, and SP series
airplanes, equipped with triple channel autoland autopilots; as
listed in Boeing Alert Service Bulletin 747-22A2212, Revision 1,
dated April 27, 1995, and Boeing Alert Service Bulletin 747-22A2213,
Revision 2, dated June 22, 1995; certificated in any category.
Note 1: This AD applies to each airplane identified in the
preceding applicability provision, regardless of whether it has been
modified, altered, or repaired in the area subject to the
requirements of this AD. For airplanes that have been modified,
altered, or repaired so that the performance of the requirements of
this AD is affected, the owner/operator must request approval for an
alternative method of compliance in accordance with paragraph (d) of
this AD. The request should include an assessment of the effect of
the modification, alteration, or repair on the unsafe condition
addressed by this AD; and, if the unsafe condition has not been
eliminated, the request should include specific proposed actions to
address it.
Compliance: Required as indicated, unless accomplished
previously.
To ensure flightcrew awareness of the configuration of the
autoland system in the event of a change from fail-operational to
fail-passive mode, accomplish the following:
(a) Within 3 months after the effective date of this AD, revise
the Limitations Section of the FAA-approved Airplane Flight Manual
(AFM) to include the following statement. This may be accomplished
by inserting a copy of this AD in the AFM.
Pay close attention to all 3 NAV receiver flags immediately
after FLARE ARM is annunciated on the FMA's. If there is a flag on
any NAV receiver, the corresponding autopilot channel must be
disconnected; the approach must be down-graded to dual channel, CAT
II configuration; and the autopilot must be disconnected prior to
landing.
(b) Within 18 months after the effective date of this AD,
install a diode and a marker on the E1-4, E1-5, and E1-6 shelves,
and make wiring changes to the flight mode annunciator of the
autopilot/flight director system, in accordance with Boeing Alert
Service Bulletin 747-22A2212, Revision 1, dated April 27, 1995; or
Boeing Alert Service Bulletin 747-22A2213, Revision 1, dated April
27, 1995, or Revision 2, dated June 22, 1995; as applicable. After
this installation and wiring change is accomplished, the AFM
limitation required by paragraph (a) of this AD may be removed from
the AFM.
(c) Prior to further flight after accomplishment of paragraph
(b) of this AD, perform an operational test of the newly installed
diodes, in accordance with Boeing Alert Service Bulletin 747-
22A2212, Revision 1, dated April 27, 1995; or Boeing Alert Service
Bulletin 747-22A2213, Revision 1, dated April 27, 1995, or Revision
2, dated June 22, 1995; as applicable. Thereafter, repeat the
operational test at intervals not to exceed 20,000 flight hours.
(d) An alternative method of compliance or adjustment of the
compliance time that provides an acceptable level of safety may be
used if approved by the Manager, Seattle Aircraft Certification
Office (ACO), FAA, Transport Airplane Directorate. Operators shall
submit their requests through an appropriate FAA Principal
Maintenance Inspector, who may add comments and then send it to the
Manager, Seattle ACO.
Note 2: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Seattle ACO.
(e) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the airplane to a location where
the requirements of this AD can be accomplished.
(f) The installation, wiring changes and operational tests shall
be done in accordance with Boeing Alert Service Bulletin 747-
22A2212, Revision 1, dated April 27, 1995; Boeing Alert Service
Bulletin 747-22A2213, Revision 1, dated April 27, 1995, or Boeing
Alert Service Bulletin 747-22A2213, Revision 2, dated June 22, 1995;
as applicable. This incorporation by reference was approved by the
Director of the Federal Register in accordance with 5 U.S.C. 552(a)
and 1 CFR part 51. Copies may be obtained from Boeing Commercial
Airplane Group, P.O. Box 3707, Seattle, Washington 98124-2207.
Copies may be inspected at the FAA, Transport Airplane Directorate,
1601 Lind Avenue, SW., Renton, Washington; or at the Office of the
Federal Register, 800 North Capitol Street, NW., Suite 700,
Washington, DC.
(g) This amendment becomes effective on April 22, 1996.
Issued in Renton, Washington, on March 12, 1996.
James V. Devany,
Acting Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-6390 Filed 3-20-96; 8:45 am]
BILLING CODE 4910-13-U
Complete official Federal Register PDF
FR Doc. 96-6386 Airworthiness Directives; British Aerospace Model BAC 1-11 200 and 400 Series Airplanes
[Federal Register Volume 61, Number 56 (Thursday, March 21, 1996)]
[Rules and Regulations]
[Pages 11534-11536]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6386]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 94-NM-164-AD; Amendment 39-9544; AD 96-06-07]
Airworthiness Directives; British Aerospace Model BAC 1-11 200
and 400 Series Airplanes
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This amendment supersedes an existing airworthiness directive
(AD), applicable to all British Aerospace Model BAC 1-11 200 and 400
series airplanes, that currently requires visual inspections to detect
cracks in the flight deck canopy area, and repair, if necessary. This
amendment reduces the inspection threshold and repetitive inspection
interval, and identifies specific structural members to be inspected.
This amendment also requires eddy current inspections to detect cracks
of the top sill members at station 82.5, and replacement of cracked
parts with new parts, or repair of the top sill members. This amendment
is prompted by reports of additional cracking found in the structural
members in the flight deck canopy area of the affected airplanes. The
actions specified by this AD are intended to ensure that cracking in
the flight deck canopy area is detected and corrected in a timely
manner; such cracking could result in reduced structural integrity of
the cockpit frame and the adjacent fuselage structure.
DATES: Effective April 22, 1996.
The incorporation by reference of British Aerospace Alert Service
Bulletin 53-A-PM5994, Issue 3, dated April 8, 1993, listed in the
regulations is approved by the Director of the Federal Register as of
April 22, 1996.
The incorporation by reference of British Aerospace Alert Service
Bulletin 53-A-PM5994, Issue 2, dated June 5,
[[Page 11535]]
1990, listed in the regulations was approved previously by the Director
of the Federal Register as of February 25, 1991 (56 FR 1569, January
16, 1991).
ADDRESSES: The service information referenced in this AD may be
obtained from British Aerospace, Airbus Limited, P.O. Box 77, Bristol
BS99 7AR, England. This information may be examined at the Federal
Aviation Administration (FAA), Transport Airplane Directorate, Rules
Docket, 1601 Lind Avenue, SW., Renton, Washington; or at the Office of
the Federal Register, 800 North Capitol Street, NW., suite 700,
Washington, DC.
FOR FURTHER INFORMATION CONTACT: Tim Backman, Aerospace Engineer,
Standardization Branch, ANM-113, FAA, Transport Airplane Directorate,
1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (206)
227-2797; fax (206) 227-1149.
SUPPLEMENTARY INFORMATION: A proposal to amend part 39 of the Federal
Aviation Regulations (14 CFR part 39) by superseding AD 91-02-12,
amendment 39-6861 (56 FR 1569, January 16, 1991), which is applicable
to all British Aerospace Model BAC 1-11 200 and 400 series airplanes,
was published in the Federal Register on January 3, 1996 (61 FR 131).
The action proposed to supersede AD 91-02-12 to continue to require
repetitive visual inspections to detect cracks in the flight deck
canopy area, and repair, if necessary. However, it also proposed to:
1. reduce the inspection threshold and repetitive inspection
interval,
2. identify specific structural members to be inspected,
3. require repetitive eddy current inspections to detect cracks of
the top sill members at station 82.5, and
4. require replacement of cracked parts with new parts, or repair
of the top sill members.
Interested persons have been afforded an opportunity to participate
in the making of this amendment. No comments were submitted in response
to the proposal or the FAA's determination of the cost to the public.
The FAA has determined that air safety and the public interest require
the adoption of the rule as proposed.
There are approximately 31 Model BAC 1-11 200 and 400 series
airplanes of U.S. registry that will be affected by this AD.
The actions that are currently required by AD 91-02-12 take
approximately 18 work hours per airplane to accomplish, at an average
labor rate of $60 per work hour. Based on these figures, the cost
impact on U.S. operators of the actions currently required is estimated
to be $33,480, or $1,080 per airplane.
The new actions that are required by this new AD will take
approximately 19 work hours per airplane to accomplish, at an average
labor rate of $60 per work hour. Based on these figures, the cost
impact on U.S. operators of the new requirements of this AD is
estimated to be $35,340, or $1,140 per airplane.
The cost impact figures discussed above are based on assumptions
that no operator has yet accomplished any of the requirements of this
AD action, and that no operator would accomplish those actions in the
future if this AD were not adopted.
The regulations adopted herein will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this final
rule does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this action (1) is
not a ``significant regulatory action'' under Executive Order 12866;
(2) is not a ``significant rule'' under DOT Regulatory Policies and
Procedures (44 FR 11034, February 26, 1979); and (3) will not have a
significant economic impact, positive or negative, on a substantial
number of small entities under the criteria of the Regulatory
Flexibility Act. A final evaluation has been prepared for this action
and it is contained in the Rules Docket. A copy of it may be obtained
from the Rules Docket at the location provided under the caption
ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.
Adoption of the Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration amends part 39 of
the Federal Aviation Regulations (14 CFR part 39) as follows:
PART 39--Airworthiness Directives
1. The authority citation for part 39 continues to read as follows:
Authority: 49 USC 106(g), 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by removing amendment 39-6861 (56 FR
1569, January 16, 1991), and by adding a new airworthiness directive
(AD), amendment 39-9544, to read as follows:
96-06-07 British Aerospace Airbus Limited (Formerly British
Aerospace Commercial Aircraft Limited, British Aerospace Aircraft
Group): Amendment 39-9544. docket 94-NM-164-AD. Supersedes AD 91-02-
12, Amendment 39-6861.
Applicability: All Model BAC 1-11 200 and 400 series airplanes,
certificated in any category.
Note 1: This AD applies to each airplane identified in the
preceding applicability provision, regardless of whether it has been
otherwise modified, altered, or repaired in the area subject to the
requirements of this AD. For airplanes that have been modified,
altered, or repaired so that the performance of the requirements of
this AD is affected, the owner/operator must request approval for an
alternative method of compliance in accordance with paragraph (e) of
this AD. The request should include an assessment of the effect of
the modification, alteration, or repair on the unsafe condition
addressed by this AD; and, if the unsafe condition has not been
eliminated, the request should include specific proposed actions to
address it.
Compliance: Required as indicated, unless accomplished
previously.
To prevent reduced structural integrity of the cockpit frame and
the adjacent fuselage structure, accomplish the following:
(a) Prior to the accumulation of 30,000 total landings, or
within 6 months after February 25, 1991 (the effective date of AD
91-02-12, amendment 39-6861), whichever occurs later; and thereafter
at intervals not to exceed 5,000 landings: Perform a visual
inspection to detect cracks of the flight deck canopy area, in
accordance with British Aerospace Alert Service Bulletin 53-A-
PM5994, Issue 2, dated June 5, 1990; or Issue 3, dated April 8,
1993. Pay particular attention to the top sill joint strap, the top
sill intercostal, the frame at Station 113, and the top sill boom
and web. Repeat this inspection until the inspections required by
paragraph (c) of this AD are accomplished. After the effective date
of this AD, the inspection shall be accomplished only in accordance
with Issue 3 of the alert service bulletin.
(b) If any crack is found during the inspection required by
paragraph (a) of this AD, prior to further flight, repair in
accordance with a method approved by the Manager, Standardization
Branch, ANM-113, FAA, Transport Airplane Directorate. Following
accomplishment of the repair, repeat the inspection required by
paragraph (a) of this AD thereafter at intervals not to exceed 5,000
landings until the inspections required by paragraph (c) of this AD
are accomplished.
(c) Perform a detailed visual inspection to detect cracks of the
top sill joint strap at station 82.5, of the frame at station 113,
and of the frame at station 160.5 (left-hand side only) between
stringers 13 and 15; and an eddy current inspection to detect cracks
of the top sill members at station 82.5. Perform these inspections
in accordance with British Aerospace Airbus Limited Alert Service
Bulletin 53-A-PM5994, Issue 3, dated April
[[Page 11536]]
8, 1993, at the time specified in paragraph (c)(1) or (c)(2) of this
AD, as applicable. Accomplishment of these inspections terminates
the repetitive inspection requirement of paragraph (a) of this AD.
(1) For airplanes operating at a maximum cabin differential
pressure not exceeding 7.5 pounds per square inch (psi): Perform the
inspections at the later of the times specified in paragraphs
(c)(1)(i) and (c)(1)(ii) of this AD. Thereafter, repeat these
inspections at intervals not to exceed 5,000 landings or 7,500 hours
time-in-service, whichever occurs first.
(i) Prior to the accumulation of 20,000 total landings since
date of entry into service; or
(ii) Within 1,200 landings or 12 months after the effective date
of this AD, whichever occurs later.
(2) For airplanes operating at a maximum cabin differential
pressure greater than 7.5 psi, but not exceeding 8.2 psi, including
those airplanes having incorporated British Aerospace Airbus Limited
Modification PM3187: Perform the inspections at the later of the
times specified in paragraphs (c)(2)(i) and (c)(2)(ii) of this AD.
Thereafter, repeat these inspections at intervals not to exceed
3,500 landings or 5,250 hours time-in-service, whichever occurs
first.
(i) Prior to the accumulation of 14,000 total landings since
date of entry into service; or
(ii) Within 800 landings or 12 months after the effective date
of this AD, whichever occurs later.
Note 2: British Aerospace Airbus Limited Modification PM3187
increases the cabin differential pressure from the normal 7.5 psi to
8.2 psi. If Modification PM3187 has been incorporated on the
airplane, that airplane is considered to be subject to the
requirements of paragraph (c)(2) of this AD.
(d) If any crack is found during any inspection required by
paragraph (c) of this AD, prior to further flight, accomplish the
requirements of paragraph (d)(1), (d)(2), or (d)(3), as applicable.
(1) For cracking of the joint strap, doubler, or angle at the
sill joint at station 82.5: Replace the cracked part with a new part
in accordance with British Aerospace Airbus Limited Alert Service
Bulletin 53-A-PM5994, Issue 3, dated April 8, 1993.
(2) For cracking of the frame at station 113: Repair in
accordance with a method approved by the Manager, Standardization
Branch, ANM-113.
(3) For cracking of the frame at station 160.5: Repair in
accordance with the Structural Repair Manual, as specified in
British Aerospace Airbus Limited Alert Service Bulletin 53-A-PM5994,
Issue 3, dated April 8, 1993.
(e) An alternative method of compliance or adjustment of the
compliance time that provides an acceptable level of safety may be
used if approved by the Manager, Standardization Branch, ANM-113.
Operators shall submit their requests through an appropriate FAA
Principal Maintenance Inspector, who may add comments and then send
it to the Manager, Standardization Branch, ANM-113.
Note 3: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Standardization Branch, ANM-113.
(f) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the airplane to a location where
the requirements of this AD can be accomplished.
(g) The inspections shall be done in accordance with British
Aerospace Alert Service Bulletin 53-A-PM5994, Issue 2, dated June 5,
1990; or British Aerospace Alert Service Bulletin 53-A-PM5994, Issue
3, dated April 8, 1993. The incorporation by reference of British
Aerospace Alert Service Bulletin 53-A-PM5994, Issue 2, dated June 5,
1990, was approved previously by the Director of the Federal
Register, in accordance with 5 U.S.C. 552(a) and 1 CFR part 51, as
of February 25, 1991 (56 FR 1569, January 16, 1991). The
incorporation by reference of British Aerospace Alert Service
Bulletin 53-A-PM5994, Issue 3, dated April 8, 1993, was approved by
the Director of the Federal Register in accordance with 5 U.S.C.
552(a) and 1 CFR part 51. Copies may be obtained from British
Aerospace, Airbus Limited, P.O. Box 77, Bristol BS99 7AR, England.
Copies may be inspected at the FAA, Transport Airplane Directorate,
1601 Lind Avenue, SW., Renton, Washington; or at the Office of the
Federal Register, 800 North Capitol Street, NW., suite 700,
Washington, DC.
(h) This amendment becomes effective on April 22, 1996.
Issued in Renton, Washington, on March 12, 1996.
James V. Devany,
Acting Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-6386 Filed 3-20-96; 8:45 am]
BILLING CODE 4910-13-P
Complete official Federal Register PDF
FR Doc. 96-5854 Airworthiness Directives; Royal Inventum Company DR1 and DR6 Series Galley Water Heaters
[Federal Register Volume 61, Number 56 (Thursday, March 21, 1996)]
[Rules and Regulations]
[Pages 11527-11529]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-5854]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 39
[Docket No. 95-ANE-13; Amendment 39-9453; AD 95-25-08]
Airworthiness Directives; Royal Inventum Company DR1 and DR6
Series Galley Water Heaters
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This amendment adopts a new airworthiness directive (AD),
applicable to Royal Inventum Company DR1 and DR6 Series Galley Water
Heaters, that requires the installation of a pressure relief valve, and
3-phase safety devices on each Royal Inventum Company DR1 and DR6
series galley water heater. This amendment is prompted by a report of a
Royal Inventum DR6 water heater explosion during an overheat test at a
maintenance facility. The actions specified by this AD are intended to
prevent explosions of Royal Inventum Company DR1 and DR6 series galley
water heaters, which could cause personal injury or galley damage to
the aircraft.
DATES: Effective May 20, 1996.
The incorporation by reference of certain publications listed in
the regulations is approved by the Director of the Federal Register as
of May 20, 1996.
ADDRESSES: The service information referenced in this AD may be
obtained from B/E Aerospace, Inventum Galley Products Division (Royal
Inventum Company), P.O. Box 1152, 3430 BD Nieuwegin, The Netherlands.
This information may be examined at the Federal Aviation Administration
(FAA), New England Region, Office of the Assistant Chief Counsel, 12
New England Executive Park, Burlington, MA; or at the Office of the
Federal Register, 800 North Capitol Street NW., suite 700, Washington,
DC.
FOR FURTHER INFORMATION CONTACT: Terry Fahr, Aerospace Engineer, Boston
Aircraft Certification Office, FAA, Engine and Propeller Directorate,
12 New England Executive Park, Burlington, MA, 01803-5299; telephone
(617) 238-7155, fax (617) 238-7199.
SUPPLEMENTARY INFORMATION: A proposal to amend part 39 of the Federal
Aviation Regulations (14 CFR part 39) to include an airworthiness
directive (AD) that is applicable to Royal Inventum Company DR1 and DR6
series galley water heaters was published in the Federal Register on
June 21, 1995 (60 FR 32287). That action proposed to require the
installation of new pressure relief valves, and 3-phase safety devices
on each Royal Inventum Company DR1 and DR6 series galley water heater.
The actions would be required to be in accordance with Inventum
Bilthoven-Holland Service Bulletin's (SB's) 25__330, Revision 1, dated
September 28, 1977; SB 25__331, Revision 1, dated September 28, 1977;
and Inventum Alert Service Bulletin (ASB) DR1/DR6-25-4, Revision A,
dated December 6, 1993, that specify the installation of a pressure
relief valve; and Inventum Bilthoven-Holland SB's 25__340, dated July
7, 1977; SB 25__344, dated January 18, 1978; SB 25__345, dated February
16, 1978; SB 25__346, dated February 16, 1978; and Inventum ASB DR1/
DR6-25-5, Revision A, dated December 6, 1993, that specify the
installation of 3-phase safety devices. The Director-General of Civil
Aviation of the Netherlands has classified these service bulletins as
mandatory and issued Airworthiness Directive BLA 93-168 (AB), dated
December 17, 1993, in order to assure the airworthiness of these water
heaters.
Interested persons have been afforded an opportunity to participate
in the making of this amendment. Due consideration has been given to
the comments received.
One commenter states that the Inventum DR6 series water heaters
have been used on Boeing 747, 757 and 767 series aircraft and
recommends that the Applicability be changed to show these aircraft.
The commenter further states that they were unable to determine usage
of Inventum DR1 and DR6 series water heaters on Boeing 727 and 737
series aircraft. The FAA agrees. Since the Boeing 727 and 737 series
aircraft usage was given to the FAA by the Director-General of Civil
Aviation of the Netherlands, the FAA will retain reference to the
Boeing 727 and 737 series aircraft in the Applicability section.
Reference to the Boeing 747, 757 and 767 series aircraft will be added.
Operators are cautioned, however, not to read the list of aircraft as
an exclusive list of the aircraft that may have the affected water
heaters installed. This AD applies to all aircraft with an affected
water heater, whether or not listed.
One commenter supports the AD.
After careful review of the available data, including the comments
noted above, the FAA has determined that air safety and the public
interest require the adoption of the rule with the changes described
previously. The FAA has determined that these changes will neither
increase the economic burden
[[Page 11528]]
on any operator nor increase the scope of the AD.
The FAA estimates that 250 water heaters installed on aircraft of
U.S. registry will be affected by this AD, that it will take
approximately six and one half work hours per water heater to
accomplish the required actions, and that the average labor rate is $60
per work hour. Required parts will cost approximately $250 per
aircraft. Based on these figures, the total cost impact of the AD on
U.S. operators is estimated to be $94,500.
The regulations adopted herein will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this final
rule does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this action (1) is
not a ``significant regulatory action'' under Executive Order 12866;
(2) is not a ``significant rule'' under DOT Regulatory Policies and
Procedures (44 FR 11034, February 26, 1979); and (3) will not have a
significant economic impact, positive or negative, on a substantial
number of small entities under the criteria of the Regulatory
Flexibility Act. A final evaluation has been prepared for this action
and it is contained in the Rules Docket. A copy of it may be obtained
from the Rules Docket at the location provided under the caption
ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.
Adoption of the Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration amends part 39 of
the Federal Aviation Regulations (14 CFR part 39) as follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 USC 106(g), 40101, 40113, 44701.
39.13 [Amended]
2. Section 39.13 is amended by adding the following new
airworthiness directive:
95-25-08 Royal Inventum Company: Amendment 39-9453. Docket 95-ANE-
13.
Applicability: Royal Inventum Company DR1 and DR6 series galley
water heaters, installed on but not limited to Boeing 727, 737, 747,
757 and 767 series, McDonnell Douglas DC-9 series; and Fokker F.28
series (except Mk. 0100) aircraft.
Note: This AD applies to each water heater identified in the
preceding applicability provision, regardless of whether it has been
modified, altered, or repaired in the area subject to the
requirements of this AD. For water heaters that have been modified,
altered, or repaired so that the performance of the requirements of
this AD is affected, the owner/operator must use the authority
provided in paragraph (b) to request approval from the FAA. This
approval may address either no action, if the current configuration
eliminates the unsafe condition, or different actions necessary to
address the unsafe condition described in this AD. Such a request
should include an assessment of the effect of the changed
configuration on the unsafe condition addressed by this AD. In no
case does the presence of any modification, alteration, or repair
remove any water heater from the applicability of this AD.
Compliance: Required as indicated, unless accomplished
previously.
To prevent possible explosion of water heaters that could cause
personal injury and aircraft damage, accomplish the following:
(a) Within 90 days after the effective date of this AD install a
pressure relief valve in accordance with Inventum Alert Service
Bulletin (ASB) DR1/DR6-25-4, Revision A, dated December 6, 1993, or
Inventum Service Bulletin (SB) 25__330, Revision 1, dated September
28, 1977; or SB 25__331, Revision 1, dated September 28, 1977; and
two 3-phase safety devices in accordance with Inventum ASB DR1/DR6-
25-5, Revision A, dated December 6, 1993, or SB 25__340, dated July
7, 1977; SB 25__344, dated January 18, 1978; or SB 25__345, dated
February 16, 1978; or SB 25__346, dated February 16, 1978.
(b) An alternative method of compliance or adjustment of the
compliance time that provides an acceptable level of safety may be
used if approved by the Manager, Boston Aircraft Certification
Office. The request should be forwarded through an appropriate FAA
Principal Maintenance Inspector, who may add comments and then send
it to the Manager, Boston Aircraft Certification Office.
Note: Information concerning the existence of approved
alternative methods of compliance with this airworthiness directive,
if any, may be obtained from the Boston Aircraft Certification
Office.
(c) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the aircraft to a location where
the requirements of this AD can be accomplished.
(d) The modification and inspection shall be done in accordance
with the following service bulletins:
------------------------------------------------------------------------
Document No. Pages Revision Date
------------------------------------------------------------------------
Inventum Alert Service Bulletin
(ASB) DR1/DR6-25-4................. 1-5 A 12/6/1993
Total Pages: 5.
Inventum Bilthoven-Holland (SB)
25__330............................ 1-4 1 9/28/1977
Total Pages: 4.
SB 25__331.......................... 1-4 1 9/28/1977
Total Pages: 4.
ASB DR1/DR6-25-5.................... 1-5 A 12/6/1993
Total Pages: 5.
SB 25__340.......................... 1-6 N/A 7/7/1977
Total Pages: 6.
SB 25__344.......................... 1-7 N/A 1/18/1978
Total Pages: 7.
SB 25__345.......................... 1-7 N/A 2/16/1978
Total Pages: 7.
SB 25__346.......................... 1-7 N/A 2/16/1978
Total Pages: 7.
------------------------------------------------------------------------
This incorporation by reference was approved by the Director of
the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR
part 51. Copies may be obtained from B/E Aerospace, Inventum Galley
Products Division (Royal Inventum Company), P.O. Box 1152, 3430 BD
Nieuwegin, The Netherlands. Copies may be inspected at the FAA, New
England Region,
[[Page 11529]]
Office of the Assistant Chief Counsel, 12 New England Executive
Park, Burlington, MA; or at the Office of the Federal Register, 800
North Capitol Street NW., suite 700, Washington, DC.
(e) This amendment becomes effective on May 20, 1996.
Issued in Burlington, Massachusetts, on January 29, 1996.
Jay J. Pardee,
Manager, Engine and Propeller Directorate, Aircraft Certification
Service.
[FR Doc. 96-5854 Filed 3-20-96; 8:45 am]
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