issue-1996-08-09•Federal Register final rules — 1996-08-09
Federal Register final rules — 1996-08-09
issue-1996-08-09Federal Register final rules — 1996-08-09Regulation
Published Federal Register documents, not public-inspection drafts. The GPO XML/text rendition is a research aid; the linked complete official PDF retains the printed layout and all graphics. Graphics are retained in that PDF and are not independently reproduced in this text rendition. Publication does not establish that every provision remains legally in force.
FR Doc. 96-20373 Amendment to the List of Proscribed Destinations
[Federal Register Volume 61, Number 155 (Friday, August 9, 1996)]
[Rules and Regulations]
[Pages 41499-41500]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-20373]
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DEPARTMENT OF STATE
Bureau of Political-Military Affairs
22 CFR Part 126
[Public Notice 2407]
Amendment to the List of Proscribed Destinations
AGENCY: Department of State.
ACTION: Final rule.
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SUMMARY: The Department of State is amending the International Traffic
in Arms Regulations (ITAR) to reflect that it is no longer the policy
of the United States to deny licenses, other approvals, exports and
imports of defense articles and defense services, destined for or
originating in Georgia, Kazakstan, Kyrgyzstan, Moldova, Turkmenistan
and Uzbekistan. All requests for approval involving items covered by
the U.S. Munitions List will be reviewed on a case-by-case basis.
EFFECTIVE DATE: July 17, 1996.
FOR FURTHER INFORMATION CONTACT: Gordon J. Stirling, Office of Arms
Transfer and Export Control Policy, Bureau of Political-Military
Affairs, Department of State (202/647-0397).
SUPPLEMENTARY INFORMATION: In connection with the President's policy
that U.S. laws and regulations be updated to reflect the end of the
Cold War, the Department of State is amending the ITAR to reflect that
it is no longer the policy of the United States, pursuant to
Sec. 126.1, to deny licenses, other approvals, exports and imports of
defense articles and defense services, destined for or originating in
Georgia, Kazakstan, Kyrgyzstan, Moldova, Turkmenistan and Uzbekistan.
Requests for licenses or other approvals for these states involving
items covered by the U.S. Munitions List (22 CFR part 121) will no
longer be presumed to be disapproved.
This amendment to the ITAR involves a foreign affairs function of
the United States and thus is excluded from the major rule procedures
of Executive Order 12291 (46 FR 13193) and the procedures of 5 U.S.C.
553 and 554. This final rule does not contain a new or amended
information requirement subject to the Paperwork Reduction Act (44
U.S.C. 3501 et seq.).
List of Subjects in 22 CFR Part 126
Arms and Munitions, Exports.
Accordingly, under the authority of Section 38 of the Arms Export
Control Act (22 U.S.C. 2778) and Executive Order 11958, as amended, 22
CFR Subchapter M is amended as follows:
PART 126--[AMENDED]
1. The authority citation for part 126 continues to read as
follows:
Authority: Secs. 2, 38, 40, 42, and 71, Arms Export Control Act,
Pub. L. 90-629, 90 Stat. 744 (22 U.S.C. 2752, 2778, 2780, 2791, and
2797); E.O. 11958, 41 FR 4311; E.O. 11322, 32 FR 119; 22 U.S.C.
2658; 22 U.S.C. 287c; E.O. 12918, 59 FR 28206.
Sec. 126.1 [Amended]
2. Section 126.1 is amended by removing ``Georgia,''
``Kazakhstan,'' ``Kyrgyzstan,'' ``Moldova,'' ``Turkmenistan,'' and
``Uzbekistan'' from paragraph (a).
[[Page 41500]]
Dated: July 11, 1996.
Lynn E. Davis,
Under Secretary of State for Arms Control and International Security
Affairs.
[FR Doc. 96-20373 Filed 8-8-96; 8:45 am]
BILLING CODE 4710-25-M
Complete official Federal Register PDF
FR Doc. 96-20366 Underground Storage Tank Program: Approved State Program for Connecticut
[Federal Register Volume 61, Number 155 (Friday, August 9, 1996)]
[Rules and Regulations]
[Pages 41507-41510]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-20366]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 282
[FRL-5543-5]
Underground Storage Tank Program: Approved State Program for
Connecticut
AGENCY: Environmental Protection Agency (EPA).
ACTION: Immediate final rule.
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SUMMARY: The Resource Conservation and Recovery Act of 1976, as amended
(RCRA), authorizes the Environmental Protection Agency (EPA) to grant
approval to states to operate their underground storage tank programs
in lieu of the federal program. 40 CFR Part 282 codifies EPA's decision
to approve state programs and incorporates by reference those
provisions of the state statutes and regulations that will be subject
to EPA's inspection and enforcement authorities under Sections 9005 and
9006 of RCRA Subtitle I and other applicable statutory and regulatory
provisions. This rule codifies
[[Page 41508]]
in 40 CFR Part 282 the prior approval of Connecticut's underground
storage tank program and incorporates by reference appropriate
provisions of state statutes and regulations.
DATES: This regulation is effective October 8, 1996, unless EPA
publishes a prior Federal Register notice withdrawing this immediate
final rule. All comments on the codification of Connecticut's
underground storage tank program must be received by the close of
business September 9, 1996. The incorporation by reference of certain
publications listed in the regulations is approved by the Director of
the Federal Register, as of October 8, 1996, in accordance with 5
U.S.C. 552(a).
ADDRESSES: Comments may be mailed to the Docket Clerk (Docket No. UST
5-4), Underground Storage Tank Program, HBO, U.S. EPA-New England,
J.F.K. Federal Building, Boston, MA 02203-2211. Comments received by
EPA may be inspected in the public docket, located in the Office of
Site Remediation & Restoration Record Center, 90 Canal St., Boston, MA
02203 from 9 a.m. to 4 p.m., Monday through Friday, excluding federal
holidays.
FOR FURTHER INFORMATION CONTACT: Jonathan Walker, Underground Storage
Tank Program, HBO, U.S. EPA-New England, J.F.K. Federal Building,
Boston, MA 02203-2211. Phone: (617) 573-9602.
SUPPLEMENTARY INFORMATION:
Background
Section 9004 of the Resource Conservation and Recovery Act of 1976,
as amended, (RCRA), 42 U.S.C. 6991c, allows the U.S. Environmental
Protection Agency to approve state underground storage tank programs to
operate in the state in lieu of the federal underground storage tank
program. EPA published a Federal Register document announcing its
decision to grant approval to Connecticut. (60 FR 34879, July 5, 1995).
Approval was effective on August 4, 1995.
EPA codifies its approval of state programs in 40 CFR Part 282 and
incorporates by reference therein the state statutes and regulations
that will be subject to EPA's inspection and enforcement authorities
under Sections 9005 and 9006 of Subtitle I of RCRA, 42 U.S.C. 6991d and
6991e, and other applicable statutory and regulatory provisions.
Today's rulemaking codifies EPA's approval of the Connecticut
underground storage tank program. This codification reflects only the
state underground storage tank program in effect at the time EPA
granted Connecticut approval under section 9004(a), 42 U.S.C. 6991c(a).
EPA provided notice and opportunity for comment earlier during the
Agency's decision to approve the Connecticut program. EPA is not now
reopening that decision nor requesting comment on it.
Codification provides clear notice to the public of the scope of
the approved program in each state. By codifying the approved
Connecticut program and by amending the Code of Federal Regulations
whenever a new or different set of requirements is approved in
Connecticut, the status of federally approved requirements of the
Connecticut program will be readily discernible. Only those provisions
of the Connecticut underground storage tank program for which approval
has been granted by EPA will be incorporated by reference for
enforcement purposes.
To codify EPA's approval of Connecticut's underground storage tank
program, EPA has added Section 282.56 to Title 40 of the Code of
Federal Regulations. Section 282.56 incorporates by reference for
enforcement purposes the state's statutes and regulations. Section
282.56 also references the Attorney General's Statement, Demonstration
of Adequate Enforcement Procedures, the Program Description, and the
Memorandum of Agreement, which are approved as part of the underground
storage tank program under Subtitle I of RCRA.
The Agency retains the authority under Sections 9005 and 9006 of
Subtitle I of RCRA, 42 U.S.C. 6991d and 6991e, and other applicable
statutory and regulatory provisions to undertake inspections and
enforcement actions in approved states. With respect to such an
enforcement action, EPA will rely on federal sanctions, federal
inspection authorities, and federal procedures rather than the state
authorized analogs to these provisions. Therefore, the approved
Connecticut enforcement authorities will not be incorporated by
reference. Forty CFR Section 282.56 lists those approved Connecticut
authorities that would fall into this category.
The public also needs to be aware that some provisions of
Connecticut's underground storage tank program are not part of the
federally approved state program. These include:
Section 22a-449(d)-1, Control of the Nonresidential
Underground Storage and Handling of Oil and Petroleum Liquids; and,
Requirements, including those for registration and
permanent closure, for tanks greater than 2,100 gallons containing
heating oil consumed on the premises where stored.
These non-approved provisions are not part of the RCRA Subtitle I
program, because they are ``broader in scope'' than Subtitle I of RCRA.
See 40 CFR 281.12(a)(3)(ii). As a result, state provisions which are
``broader in scope'' than the federal program are not incorporated by
reference for purposes of enforcement in 40 CFR part 282 or included as
part of this codification. Included under CFR 282.56 for purposes of
reference and clarity is a list of those Connecticut statutory and
regulatory provisions which are ``broader in scope'' than the federal
program. ``Broader in scope'' provisions cannot be enforced by EPA. The
State, however, will continue to enforce such provisions.
Certification Under the Regulatory Flexibility Act
EPA has determined that this codification will not have a
significant economic impact on a substantial number of small entities.
Such small entities which own and/or operate USTs are already subject
to the state requirements authorized by EPA under 40 CFR Part 281.
EPA's codification does not impose any additional burdens on these
small entities. This is because EPA's codification would simply result
in an administrative change, rather than a change in the substantive
requirements imposed on small entities. Moreover, this codification
will eliminate any confusion that owners and operators of USTs in
[State] may have regarding which set of requirements they must comply
with in Connecticut.
Therefore, EPA provides the following certification under the
Regulatory Flexibility Act, as amended by the Small Business Regulatory
Enforcement Fairness Act. Pursuant to the provision at 5 U.S.C. 605(b),
I hereby certify that this codification will not have a significant
economic impact on a substantial number of small entities. This
codification incorporates Connecticut's requirements, which have been
authorized by EPA under 40 CFR Part 281, into the Code of Federal
Regulations, thereby eliminating any confusion over the applicable
requirements for owners and operators of USTs in Connecticut. It does
not impose any new burdens on small entities. This rule, therefore,
does not require a regulatory flexibility analysis.
Submission to Congress and the General Accounting Office
Under section 801(a)(1)(A) of the Administrative Procedure Act
(APA) as amended by the Small Business Regulatory Enforcement Fairness
Act of 1996, EPA submitted a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
[[Page 41509]]
Representatives and the Comptroller General of the General Accounting
Office prior to publication of the rule in today's Federal Register.
This rule is not a ``major rule'' as defined by section 804(2) of the
APA as amended.
Compliance With Executive Order 12866
The Office of Management and Budget has exempted this rule from the
requirements of Section 6 of Executive Order 12866.
Paperwork Reduction Act
Under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., Federal
agencies must consider the paperwork burden imposed by any information
request contained in a proposed or final rule. This rule will not
impose any information requirements upon the regulated community.
List of Subjects in 40 CFR Part 282
Environmental protection, Hazardous substances, Incorporation by
reference, Intergovernmental relations, State program approval,
Underground storage tanks, Water pollution control.
Dated: May 10, 1996.
John P. DeVillars,
Regional Administrator.
For the reasons set forth in the preamble, 40 CFR part 282 is
amended as follows:
PART 282--APPROVED UNDERGROUND STORAGE TANK PROGRAMS
1. The authority citation for part 282 continues to read as
follows:
Authority: 42 U.S.C. 6912, 6991c, 6991d, and 6991e.
Subpart B--Approved State Programs
2. Subpart B is amended by adding Sec. 282.56 to read as follows:
Sec. 282.56 Connecticut State-Administered Program.
(a) The State of Connecticut is approved to administer and enforce
an underground storage tank program in lieu of the federal program
under Subtitle I of the Resource Conservation and Recovery Act of 1976
(RCRA), as amended, 42 U.S.C. 6991 et seq. The State's program, as
administered by the Connecticut Department of Environmental Protection,
was approved by EPA pursuant to 42 U.S.C. 6991c and 40 CFR part 281.
EPA approved the Connecticut program on June 27, 1995, and the approval
was effective on August 4, 1995.
(b) Connecticut has primary responsibility for enforcing its
underground storage tank program. However, EPA retains the authority to
exercise its inspection and enforcement authorities under Sections 9005
and 9006 of Subtitle I of RCRA, 42 U.S.C. 6991d and 6991e, as well as
under other statutory and regulatory provisions.
(c) To retain program approval, Connecticut must revise its
approved program to adopt new changes to the federal Subtitle I program
which make it more stringent, in accordance with Section 9004 of RCRA,
42 U.S.C. 6991c, and 40 CFR part 281, subpart E. If Connecticut obtains
approval for the revised requirements pursuant to Section 9004 of RCRA,
42 U.S.C. 6991c, the newly approved statutory and regulatory provisions
will be added to this subpart and notice of any change will be
published in the Federal Register.
(d) Connecticut has final approval for the following elements
submitted to EPA in Connecticut's program application for final
approval EPA and approved by EPA on June 27, 1995, effective on August
4, 1995. Copies may be obtained from the Underground Storage Tank
Program, Connecticut Department of Environmental Protection, 79 Elm
Street, Hartford, CT 06106. The elements are listed as follows:
(1) State statutes and regulations. (i) The provisions cited in
this paragraph are incorporated by reference as part of the underground
storage tank program under Subtitle I of RCRA, 42 U.S.C. 6991 et seq.
(A) Connecticut Statutory Requirements Applicable to the
Underground Storage Tank Program, 1996.
(B) Connecticut Regulatory Requirements Applicable to the
Underground Storage Tank Program, 1996.
(ii) The following statutes and regulations are part of the
approved state program, although not incorporated by reference herein
for enforcement purposes.
(A) The statutory provisions include:
(1) Legal Authorities for Compliance Monitoring and Inspections.
Connecticut General Statutes, Sections 22a-6(a)(5), 22a-336, 54-33a.
(2) Legal Authorities for Enforcement Response. Connecticut 22a-
430(d), 22a-431, 22a-432, 22a-433, 22a-435, 22a-438, 52-471, 52-473,
52-474, 52-480 and 52-481.
(3) Public Participation in the State Enforcement Process.
Connecticut General Statutes, Sections 4-177a, 22a-6, 22a-16, 22a-18,
22a-19, 52-107, and 52-474.
(B) Regulatory provisions include: Public Participation in the
State Enforcement Process. (R.C.S.A.) Sections 22a-3a-6-(k).
(iii) The following statutory and regulatory provisions are broader
in scope than the federal program, are not part of the approved
program, and are not incorporated by reference herein for enforcement
purposes:
(A) Section 22a-449(d)-1 of the Regulations of Connecticut State
Agencies for the Control of the Nonresidential Underground Storage and
Handling of Oil and Petroleum Liquids; and
(B) Requirements, including those for registration and permanent
closure, for tanks greater than 2,100 gallons containing heating oil
consumed on the premises where stored.
(2) Statement of legal authority. (i) ``Attorney General's
Statement for Final Approval,'' signed by the Attorney General of
Connecticut on December 21, 1994, though not incorporated by reference,
is referenced as part of the State's approved underground storage tank
program under Subtitle I of RCRA, 42 U.S.C. 6991 et seq.
(ii) Letter from the Attorney General of Connecticut to EPA,
December 21, 1994, though not incorporated by reference, is referenced
as part of the State's approved underground storage tank program under
Subtitle I of RCRA, 42 U.S.C. 6991 et seq.
(3) Demonstration of procedures for adequate enforcement. The
``Demonstration of Procedures for Adequate Enforcement'' submitted as
part of the original application in December 1994, though not
incorporated by reference, is referenced as part of the State's
approved underground storage tank program under Subtitle I of RCRA, 42
U.S.C. 6991 et seq.
(4) Program Description. The program description and any other
material submitted as part of the original application in December
1994, though not incorporated by reference, are referenced as part of
the approved underground storage tank program under Subtitle I of RCRA,
42 U.S.C. 6991 et seq.
(5) Memorandum of Agreement. On October 16, 1995, EPA and the
Connecticut Department of Environmental Protection signed the
Memorandum of Agreement. Though not incorporated by reference, the
Memorandum of Agreement is referenced as part of the approved
underground storage tank program under Subtitle I of RCRA, 42 U.S.C.
6991 et seq.
[[Page 41510]]
3. Appendix A to 40 CFR part 282 is amended by adding in
alphabetical order ``Connecticut'' and its listing as follows:
Appendix A to Part 282--State Requirements Incorporated by
Reference in Part 282 of the Code of Federal Regulations
* * * * *
Connecticut
(a) The statutory provisions include Connecticut's General
Statutes, Chapter 446k, Section 22a-449(d), Duties and Powers of
Commissioner, January 1, 1995.
(b) The regulatory provisions include Regulations of Connecticut
State Agencies (``R.C.S.A.'') Sections 22a-449(d)-101 through 113,
Underground Storage Tank System Management, July 28, 1994:
Section 22a-449(d)-101 Technical Standards and Corrective Action
Requirements for Owners and Operators of Underground Storage Tanks--
Program Scope and Interim Prohibition
(a) Applicability of Sections 22a-449(d)-101 through 22a-449(d)-
113.
(b) Interim Prohibition for deferred UST systems.
(c) General.
(d) Definition.
Section 22a-449(d)-102 UST Systems: Design, Construction,
Installation, and Notification
(a) Performance standards for new UST systems.
(b) Notification Requirements.
Section 22a-449(d)-103 General Operating Requirements
(a) Spill and overflow control.
(b) Operating and maintenance of corrosion protection.
(c) Compatibility.
(d) Repairs allowed.
(e) Reporting and recordkeeping.
Section 22a-449(d)-104 Release Detection
(a) General requirements for all UST systems.
(b) Additional requirements.
(c) Requirements for petroleum UST systems.
(d) Requirements for hazardous substance UST systems.
(e) Methods of release detection for tanks.
(f) Methods of release detection for piping.
(g) Release detection recordkeeping.
Section 22a-449(d)-105 Release Reporting, Investigation, and
Confirmation
(a) Reporting of suspected releases.
(b) Investigation due to off-site impacts.
(c) Release investigation and confirmation steps.
(d) Reporting and cleanup of spills and overfills.
Section 22a-449(d)-106 Release Response and Corrective Action for UST
Systems Containing Petroleum or Hazardous Substances
(a) General.
(b) Additional requirements.
(c) Initial response.
(d) Initial abatement measures and site check.
(e) Initial site characterization.
(f) Free product removal.
(g) Investigations for soil and ground-water cleanup.
(h) Corrective action plan.
(i) Public participation.
Section 22a-449(d)-107 Out-of-service UST Systems and Closure
(a) Temporary closure.
(b) Permanent closure.
(c) Assessing the site at closure.
(d) Applicability to previously closed UST systems.
(e) Closure records.
Section 22a-449(d)-108 Reserved
Section 22a-449(d)-109 Financial Responsibility
(a) Applicability.
(b) Compliance dates.
(c) Definition of terms.
(d) Amount and scope of required financial responsibility.
(e) Allowable mechanisms and combinations of mechanisms.
(f) Financial test of self-insurance.
(g) Guarantee.
(h) Insurance risk retention group coverage.
(i) Surety bond.
(j) Letter of credit.
(k) Use of state-required mechanism.
(l) State fund and other state assurance.
(m) Trust fund.
(n) Standby trust fund.
(o) Substitution of financial assurance mechanisms by owner or
operator.
(p) Cancellation or non-renewal by a provider of financial
assurance.
(q) Reporting by owner or operator.
(r) Record keeping.
(s) Drawing of financial assurance mechanisms.
(t) Release from the requirements.
(u) Bankruptcy or other incapacity of owner or operator or
provider of financial assurance.
(v) Replenishment of guarantees, letters of credit, or, surety
bonds.
(w) Suspension of enforcement [reserved].
(x) 40 CFR Part 280 Appendix I is incorporated by reference, in
its entirety.
(y) Appendix II to 40 CFR Part 280--List of Agencies Designed to
Receive Notification.
(z) Appendix III to 40 CFR Part 280--Statement for Shipping
Tickets and Invoices.
Section 22a-449(d)-110 UST system upgrading, abandonment and removal
date
(a) Petroleum UST system of which construction or installation
began prior to November 1, 1985.
(b) Hazardous substance UST system of which construction or
installation began prior to December 22, 1988.
(c) UST systems which comply with the standards specified in
subsection 22a-449(d)-102(a) of these regulations.
Section 22a-449(d)-111 Life Expectancy
(a) How life expectancy determinations shall be conducted
(b) Life expectancy shall be as follows:
(c) The life expectancy of an UST system component.
Section 22a-449(d)-112 UST System Location Transfer
Section 22a-449(d)-113 Transfer of UST System Ownership, Possession,
or Control
(a) Disclosure to transferee.
(b) Information submitted to the commissioner pursuant to
section 22a-449(d)-102 of these regulations.
[FR Doc. 96-20366 Filed 8-8-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-20349 Federal Motor Vehicle Safety Standards; Brake Hoses; Whip Resistance Test
[Federal Register Volume 61, Number 155 (Friday, August 9, 1996)]
[Rules and Regulations]
[Pages 41510-41514]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-20349]
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
49 CFR Part 571
[Docket No. 95-88, Notice 02]
RIN 2127-AG02
Federal Motor Vehicle Safety Standards; Brake Hoses; Whip
Resistance Test
AGENCY: National Highway Traffic Safety Administration (NHTSA),
Department of Transportation.
ACTION: Final rule.
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SUMMARY: As the result of an inquiry from Earl's Performance Products,
this document amends Standard No. 106, Brake Hoses, by revising the
whip resistance test conditions. As amended, the test conditions permit
the use of a supplemental support in attaching certain brake hose
assemblies for the purpose of compliance testing. This rulemaking
amends a provision that had the unintended consequence of prohibiting
the manufacture and sale for use on the public roads of a type of brake
hose assembly that may have safety advantages.
DATES: Effective Date: The amendments become effective on October 8,
1996.
Petitions for Reconsideration: Any petitions for reconsideration of
this rule must be received by NHTSA no later than September 23, 1996.
ADDRESSES: Petitions for reconsideration of this rule should refer to
Docket 93-54; Notice 3 and should be submitted to: Administrator,
National Highway Traffic Safety Administration, 400 Seventh Street,
SW., Washington, DC 20590.
FOR FURTHER INFORMATION CONTACT:
For non-legal issues: Mr. Richard Carter, Office of Vehicle Safety
Standards, National Highway Traffic Safety Administration, 400 Seventh
Street, SW., Washington, DC 20590. (202-366-5274).
For legal issues: Mr. Marvin L. Shaw, NCC-20, Rulemaking Division,
Office of
[[Page 41511]]
Chief Counsel, National Highway Traffic Safety Administration, 400
Seventh Street, SW., Washington, DC 20590 (202-366-2992).
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
II. Request for Interpretation and NHTSA's Response
III. Agency Proposal
IV. Comments on the Proposal
V. NHTSA Determination
I. Background
Standard No. 106, Brake Hoses, specifies labeling and performance
requirements for motor vehicle brake hoses, brake hose assemblies, and
brake hose end fittings. The Standard includes several requirements,
including one for whip resistance. Section S5.3.3, Whip resistance,
specifies that ``(a) hydraulic brake hose assembly shall not rupture
when run continuously on a flexing machine for 35 hours.'' The purpose
of the whip resistance requirement is to replicate the bending cycles
that a brake hose experiences when mounted on a vehicle's front axle.
The flexing machine simulates the turning of the front wheels combined
with the jounce and rebound of the wheels on rough roads.
Section S6.3 specifies the test conditions and procedures for the
whip resistance test, including the testing apparatus, test
preparation, and test operation. The standard specifies that the
testing apparatus is equipped with capped end fittings that permit
mounting at each end point. The present specifications for the whip
test apparatus are patterned after an existing Society of Automotive
Engineers' (SAE's) Recommended Practice, J1401, Hydraulic Brake Hose
Assemblies for Use with Nonpetroleum Based Hydraulic Fluids (June
1990).
II. Request for Interpretation and NHTSA's Response
On December 8, 1994, Earl's Performance Products (Earl's) asked the
agency to issue an interpretation of the whip resistance requirements
in Standard No. 106. Specifically, that company asked about the
permissibility of using an alternative whip resistance test apparatus
for testing hydraulic brake hose, since its hose will not pass the
present whip resistance test. Earl's has manufactured its armored brake
hose assembly for use in off-road, high performance race cars since the
1960s. That company sought permission to use the alternative fixture
because it wished to begin selling its armored brake hose for use on
the public roads. It claimed that its product is of very high quality
and easily meets all of the requirements in Standard No. 106, except
for the whip resistance test. Earl's brake hose is a hose armored with
braided stainless steel. In contrast, most current brake hoses are made
from rubber tubing alone.
Earl's armored brake hose is installed differently than a
conventional hose. An Earl's hose, unlike a conventional hose, passes
through and is held in place by a supplemental support (consisting of a
ball bearing with a hole in it and the ball bearing housing) which
cannot be removed from the hose. The support slides into and is held in
place by a bracket which is attached to the vehicle frame or some other
solid vehicle structure.
The alternative test apparatus includes means of simulating the
attachment of the supplemental support to a vehicle. The apparatus is
patterned after the way in which Earl's brake hose is currently mounted
on racing vehicles and the way in which Earl's anticipates attaching
the brake hose on vehicles used on the public roads, if the agency
adopted its requested amendment.
If the supplemental support is not properly attached or mounted to
the vehicle, Earl's product would fail the whip resistance test due to
cyclic stress at the interface between the hose and the swaged collar
at the fixed end of the hose assembly. Earl's claimed that such cyclic
stress could occur in the real world, but does not pose a problem in
that environment when the hose is protected by the supplemental
support.
Earl's further indicated that it had successfully tested hose
assemblies from 9 inches to 24 inches long, using its alternative test
fixture. In describing its test fixture, that company stated that--
* * * the whip dampener consists of a spherical bearing enclosed in
a machined housing. The housing clips into the OEM bracket where the
OEM hard brake tubing joins to the flexible brake hose. The flexible
brake hose of stainless armored teflon is inserted through the
bearing on assembly and cannot be removed. Suitable threaded
couplings * * * are provided at each end of the assembly to match
the OEM threads at the end of the hard lines and at the caliper of
the wheel cylinder * * *
On April 24, 1995, NHTSA responded to Earl's request for an
interpretation, concluding that the agency could not use a supplemental
support to mount Earl's brake hose when conducting the whip test. NHTSA
stated that--
Section S6.3 cannot be interpreted to permit mounting the brake
hose at the ``whip dampener.'' S6.3.1 Apparatus specifies a test
apparatus that mounts the brake hose at ``capped end fittings'' on
one end and ``open end fittings'' on the other, and specifies no
mounting points in between. Thus a test apparatus that mounts the
brake hose at a ``whip dampener,'' which is not an end fitting would
not meet Standard No. 106.
The agency then stated that it would initiate rulemaking to further
consider whether to amend the whip resistance test to permit the use of
a supplemental support.
III. Agency Proposal
On November 16, 1995, NHTSA issued a notice of proposed rulemaking
(NPRM) in which it proposed amending the whip resistance test of
Standard No. 106. (60 FR 57562) Under that proposal, section S6.3.2
would be amended to permit an optional way to mount certain brake hose
assemblies during the test through the use of a supplemental support.
Without such an amendment, those armored brake hoses would remain
prohibited because they cannot comply with the current whip resistance
test. The proposed amendment was intended to allow the attaching of
Earl's brake hose assembly in the test apparatus in the same way that
it would be mounted in the real world on a vehicle. The agency stated
that the proposal would apply to those brake hose assemblies that are
fitted with a supplemental support that cannot be removed intact from
the hose without destroying the hose. The supplemental support would be
positioned and attached or mounted in a bracket that would simulate the
way the support would be attached or mounted to a vehicle, in
accordance with the recommendation of the brake hose assembly
manufacturer. The agency invited comments about the appropriateness of
the proposed modification to the whip resistance test.
NHTSA stated its tentative conclusion that Earl's brake hose has
significant safety advantages. Among those safety advantages are the
elimination of hose swell under pressure which results in a significant
reduction in brake pedal travel and a much firmer brake pedal feel. A
firmer pedal is desirable because it allows the driver to modulate
braking force more precisely. The agency stated that armored brake
hoses are designed to withstand operating conditions, such as those
experienced in racing environments, that are more severe than those
experienced in typical road environments. Brake hoses of this type are
typically high quality and more expensive than those normally installed
for use on the public roads.
IV. Comments on the Proposal
NHTSA received comments on the proposed amendment to the whip
[[Page 41512]]
resistance test from vehicle manufacturers (BMW and Chrysler) and brake
hose manufacturers (Earl's, Titeflex, Continental Hose Company, and
Stuart Goodridge (UK) Ltd).
BMW, Chrysler, and Earl's supported the proposed amendment to
Standard No. 106. These commenters stated that the proposed amendment
duplicates the manner in which these armored hoses are currently
installed in many racing vehicles.
The brake hose manufacturers, other than Earl's, commented that the
proposed amendment does not replicate the way in which a brake hose is
supported in the real world. Both Titeflex and Goodridge complained
that Earl's was attempting to circumvent the whip resistance
requirements. These manufacturers stated that they had invested
significant capital to develop stainless steel hoses that comply with
the whip resistance test. Continental Hose, Goodridge, and Titeflex
were also concerned about the safety of the supplemental support.
Titeflex alleged that Earl's armored hose is unsafe, particularly in
terms of its long term performance capability.
V. NHTSA Decision
After reviewing the comments and other available information, NHTSA
has decided to amend the whip resistance test conditions in Standard
No. 106 so that in setting up the test for a brake hose assembly
designed to be installed with the use of a supplemental support, the
method of installing those brake hose assemblies in the real world is
replicated. Specifically, section S6.3.2 is amended to permit the use
of a supplemental support and attachment bracket as an optional way of
attaching those brake hose assemblies during the whip resistance test.
The agency has concluded that it is appropriate and in the interests of
safety to modify the provision that has prohibited certain armored
brake hose assemblies until now. The agency emphasizes that the
alternative test condition is applicable only to those brake hose
assemblies that are fitted with a supplemental support that cannot be
removed intact from the hose without destroying the hose and which are
designed to be installed in vehicles with the supplemental support
firmly attached to the vehicle structure. In the case of this type of
brake hose manufactured for use on vehicles other than those originally
designed for and equipped with such brake hose, there must be an add-on
bracket that is used to modify those vehicles to accept this type of
hose, that is an integral part of the hose assembly and that cannot be
removed from the hose without destroying it.
Continental Hose and Goodridge asked the agency to clarify how a
brake hose assembly with a permanent supplemental support would be
mounted. Continental Hose was uncertain whether the supplemental
support is to be put on the header end or both the header and caliper
ends of the whip test apparatus.
NHTSA notes that the new whip resistance test conditions, as
amended by today's notice, are generally the same as the ones
previously set forth in the standard. Both ends of the brake hose will
continue to be threaded into each end of the whip test machine header.
The only difference is that today's amendment allows the addition of a
supplemental support that extends out from the stationary header end of
the whip test machine. This modification is consistent with the
petitioner's request that the agency permit a supplemental support that
is mounted on the fixed, non-rotating side of the whip test machine.
In response to Continental Hose's question, the agency notes that
only the end of the brake hose assembly by the stationary header is
fitted with a supplemental support. The end attached to the caliper is
not equipped with such a supplemental support.
In the NPRM, NHTSA stated that the amendment would allow a brake
hose assembly such as one like Earl's to be mounted during compliance
testing in the same way that it is fitted to the vehicle in the real
world. Several commenters were concerned that this amendment would not
replicate real world conditions for brake hose assemblies installed on
some vehicles in the aftermarket. Goodridge indicated that additional
amendments were needed to ensure that, with respect to the supplemental
support, the Standard would replicate the manner in which Earl's brake
hoses are mounted in vehicles sold to the public. Goodridge stated that
the requested modification does not always replicate how the brake hose
is supported in the real world.
In response to these comments, Earl's stated that in most cases,
the supplemental support is an integral part of the vehicle as it is
newly manufactured. It further stated that the supplemental support to
be used in testing correctly simulates the ``real world'' movement of
the brake assembly during turning and suspension movement.
NHTSA has decided to amend Standard No. 106 by adding a provision
in section S5.1 and S5.2.3 to ensure that the supplemental support and
method of attachment to the vehicle that is used in the whip resistance
test is the same as that which will be installed in vehicles in the
real world. Accordingly, the test condition will replicate how the
brake hose is installed in vehicles in the real world.
However, the agency believes that it is necessary to distinguish
between brake hose manufactured for a vehicle that is equipped with a
supplemental support as original equipment, and brake hose manufactured
for a vehicle that needs to be modified by the addition of an
aftermarket add-on mounting bracket in order to provide a means of
attaching the supplemental support on the Earl's brake hose assembly to
the vehicle. Brake hose such as Earl's brake hose would presumably fail
the whip resistance test unless its supplemental support were properly
attached.
In the case of a brake hose assembly designed with an unremovable
supplemental support and manufactured as a replacement assembly for a
vehicle equipped, as an integral part of its original design, with a
means of attaching the support to the vehicle, that assembly is
required to be sold in a package that is clearly marked or labeled as
follows: ``FOR USE ON [insert Manufacturer, Model Name] ONLY.'' This
requirement serves to inform an aftermarket purchaser that the brake
hose assembly should only be used on a specific vehicle and does not
have a universal application.
In the case of a brake hose assembly designed with an unremovable
supplemental support and manufactured as a replacement assembly for a
vehicle not equipped, as an integral part of its original design, with
a means of attaching the support to the vehicle, NHTSA has decided to
require that those brake hose assemblies be equipped with an add-on
mounting bracket that is integrally attached to the supplemental
support, along with instructions explaining how the mounting bracket is
to be fastened to the vehicle and the consequences of not attaching the
bracket to the vehicle. If the bracket were not used to attach the
supplemental support to the vehicle, the brake hose assembly on such
vehicles would not be capable of withstanding real world conditions.
The agency believes that these additional requirements adequately
respond to commenters' concerns that the petitioner's brake hose
assembly was potentially unsafe and that the proposed test procedure
was not representative of how such brake hose assemblies are supported
in the real world.
Continental was concerned that the supplemental support would be
prone
[[Page 41513]]
to failure, which might cause partial brake system failure. It stated
that failure of the supplemental support would subject the interface
between the brake hose and the swaged collar to the cyclic stress that
causes failure.
NHTSA believes that there is no information to support Continental
Hose's speculation that the supplemental support which Earl's expects
to use is prone to failure. If such failures were to occur, the agency
would treat them the same way it treats any other safety-related
failure of a motor vehicle or item of motor vehicle equipment. The
agency would expect the manufacturer to conduct a recall if one were
appropriate.
Titeflex stated that Earl's brake hose assembly is an inferior
design that poses a safety hazard in terms of its long term performance
capability. Titeflex also stated that it developed and produced a
stainless steel brake hose that complies with the standards under the
current test conditions for the whip resistance test. This led Titeflex
to state:
We wish to contrast our philosophy of full compliance and safety
assurance through proprietary technology to a weak attempt to meet
the letter of the law merely to sell one's own product. A rhetorical
question, therefore is appropriate: Why would and should Titeflex
have invested the tremendous amount of time, money, and resources in
developing patented technology that exceeds Standard No. 106 when
NHTSA is considering relaxing those safety standards.
NHTSA recognizes that there are design choices and investments
associated with the provisions of Standard No. 106, just as there are
with the provisions of each of the agency's standards. The agency
recognizes also the impact that amending its standards has on those
choices and investments. However, the agency must remain open to
amending its standards in response to changing safety needs and
changing vehicle technology. NHTSA notes that the agency may, with
proper justification, amend a standard provided that the change is
consistent with the agency's statutory authority. Foremost among its
statutory concerns is not making any amendments that would compromise
safety. Titeflex is concerned that Earl's will be selling an inferior
product compared to products, such as its own, that comply with
Standard No. 106 under the present test conditions. NHTSA has decided
that allowing certain brake hose assemblies to be tested in accordance
with the new test conditions will not compromise the level of safety
performance compared with the current test conditions. Specifically,
NHTSA is not aware of any information (and Titeflex did not provide any
such information) supporting Titeflex's claim that Earl's brake hose is
an inferior design that has inferior long term performance capability.
The agency believes that with a supplemental support properly attached
and mounted to the vehicle, the brake hose will perform in a manner
that is equivalent to brake hoses that are manufactured with end
fittings that do not require a supplemental support to comply with the
present whip test requirements. Therefore, the agency concludes that
there will be no decrease in safety.
Leadtime
As the NPRM explained, the statute requires that each order shall
take effect no sooner than 180 days from the date on which the order is
issued unless good cause is shown that an earlier effective date is in
the public interest. (49 U.S.C. 30111(d)) NHTSA has concluded that
there is good cause not to provide the 180 day lead time, given that
this amendment imposes no mandatory requirements on any manufacturer.
The amendment merely specifies an alternative method of testing certain
brake hoses. Based on the above, the agency has concluded that there is
good cause for an effective date 60 days after publication of the final
rule. The agency is providing a 60 day leadtime rather than the 30 day
leadtime proposed in the NPRM, given recent legislation that requires a
60 day leadtime before final rules can take effect. (5 U.S.C.
801(a)(1))
Rulemaking Analyses and Notices
1. Executive Order 12866 (Federal Regulatory Planning and Review) and
DOT Regulatory Policies and Procedures
This rulemaking was not reviewed under E.O. 12866. NHTSA has
analyzed this rulemaking notice and determined that it is not
``significant'' within the meaning of the Department of
Transportation's regulatory policies and procedures. The impacts of
this rule are so minimal as not to warrant preparation of a full
regulatory evaluation. The rule does not mandate the installation of
the new type of brake hose assembly. Instead, the rule permits the use
of brake hoses that are designed to be installed using a supplemental
support, such as the manufactured by the petitioner, i.e., brake hoses
armored with braided stainless steel. This rulemaking has no cost
impacts other than negligible package labeling costs.
2. Regulatory Flexibility Act
In accordance with the Regulatory Flexibility Act, NHTSA has
evaluated the effects of this action on small entities. Based upon this
evaluation, I certify that the amendment does not have a significant
economic impact on a substantial number of small entities. Vehicle and
brake hose manufacturers typically do not qualify as small entities.
Further, as noted above, the amendment has minimal, if any impacts on
costs or benefits. Accordingly, no regulatory flexibility analysis has
been prepared.
3. Executive Order 12612 (Federalism)
This action has been analyzed in accordance with the principles and
criteria contained in Executive Order 12612, and it has been determined
that the rulemaking does not have sufficient Federalism implications to
warrant preparation of a Federalism Assessment. No State laws are
affected.
4. National Environmental Policy Act
Finally, the agency has considered the environmental implications
of this rulemaking in accordance with the National Environmental Policy
Act of 1969 and determined that the rulemaking does not significantly
affect the human environment.
5. Civil Justice Reform
This rulemaking does not have any retroactive effect. Under section
103(d) of the National Traffic and Motor Vehicle Safety Act (49 U.S.C.
30111), 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. Section 105 of the Act (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.
6. Paperwork Reduction Act
This rule includes new ``collections of information'' as that term
is defined by the Office of Management and Budget (OMB). For Standard
No. 106, OMB has previously approved a collection of information (OMB
Control Number 2127-0052 ``Brake Hose Manufacturing Identification--
Standard No. 106'') for use through August 31, 1998. When NHTSA
prepares a future request for an extension of this collection of
information approval for an additional three years, the agency will
include in the request, an estimate of the new collection of
information burden that
[[Page 41514]]
results from today's rule. NHTSA would issue a Federal Register
document asking for public comment on the request for extension of OMB
Control Number 2127-0052.
Pursuant to the Paperwork Reduction Act of 1995 and OMB's
regulations at 5 CFR 1320.5(b)(2), NHTSA informs the potential persons
who are to respond to the collection of information that such persons
are not required to respond to the collection of information unless it
displays a currently valid OMB control number. The currently valid OMB
control number is displayed above and in NHTSA's regulations at 49 CFR
part 509 OMB Control Numbers for Information Collection Requirements.
List of Subjects in 49 CFR Part 571
Imports, Motor vehicle safety, Motor vehicles, Rubber and rubber
products, Tires.
In consideration of the foregoing, the agency has decided to amend
Standard No. 106, Brake Hoses, in Title 49 of the Code of Federal
Regulations at part 571 as follows:
PART 571--FEDERAL MOTOR VEHICLE SAFETY STANDARDS
1. The authority citation for part 571 continues to read as
follows:
Authority: 49 U.S.C. 322, 30111, 30115, 30117, and 30166;
delegation of authority at 49 CFR 1.50.
2. Section 571.106 is amended by revising S5.1, adding S5.2.3,
revising S6.3.2(a) and adding S6.3.2(d) to read as follows:
Sec. 571.106 Standard No. 106; Brake Hoses.
* * * * *
S5.1 Construction. (a) Each hydraulic brake hose assembly shall
have permanently attached brake hose end fittings which are attached by
deformation of the fitting about the hose by crimping or swaging.
(b) Each hydraulic brake hose assembly that is equipped with a
permanent supplemental support integrally attached to the assembly and
is manufactured as a replacement for use on a vehicle not equipped, as
an integral part of the vehicle's original design, with a means of
attaching the support to the vehicle shall be equipped with a bracket
that is integrally attached to the supplemental support and that adapts
the vehicle to properly accept this type of brake hose assembly.
* * * * *
S5.2.3 Package labeling for brake hose assemblies designed to be
used with a supplemental support (a) Each hydraulic brake hose assembly
that is equipped with a permanent supplemental support integrally
attached to the assembly and is manufactured as a replacement assembly
for a vehicle equipped, as an integral part of the vehicle's original
design, with a means of attaching the support to the vehicle shall be
sold in a package that is marked or labeled as follows: ``FOR USE ON
[insert Manufacturer, Model Name] ONLY'';
(b) Each hydraulic brake hose assembly that is equipped with a
permanent supplemental support integrally attached to the assembly and
is manufactured as a replacement for use on a vehicle not equipped, as
an integral part of the vehicle's original design, with a means of
attaching the support to the vehicle shall comply with paragraphs (a)
(1) and (2) of this section:
(1) Be sold in a package that is marked or labeled as follows:
``FOR USE ONLY WITH A SUPPLEMENTAL SUPPORT.''
(2) Be accompanied by clear, detailed instructions explaining the
proper installation of the brake hose and the supplemental support
bracket to the vehicle and the consequences of not attaching the
supplemental support bracket to the vehicle. The instructions shall be
printed on or included in the package specified in paragraph (a)(1) of
this section.
* * * * *
S6.3.2 Preparation. (a) Except for the supplemental support
specified in S6.3.2(d), remove all external appendages including, but
not limited to, hose armor, chafing collars, mounting brackets, date
band and spring guards.
* * * * *
(d) In the case of a brake hose assembly equipped with a permanent
supplemental support integrally attached to the assembly, the assembly
may be mounted using the supplemental support and associated means of
simulating its attachment to the vehicle. Mount the supplemental
support in the same vertical and horizontal planes as the stationary
header end of the whip test fixture described in S6.3.1(b). Mount or
attach the supplemental support so that it is positioned in accordance
with the recommendation of the assembly manufacturer for attaching the
supplemental support on a vehicle.
* * * * *
Issued on: August 5, 1996.
Ricardo Martinez,
Administrator.
[FR Doc. 96-20349 Filed 8-8-96; 8:45 am]
BILLING CODE 4910-59-P
Complete official Federal Register PDF
FR Doc. 96-20344 Implantation or Injectable Dosage Form New Animal Drugs; Trenbolone Acetate and Estradiol
[Federal Register Volume 61, Number 155 (Friday, August 9, 1996)]
[Rules and Regulations]
[Pages 41498-41499]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-20344]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Food and Drug Administration
21 CFR Part 522
Implantation or Injectable Dosage Form New Animal Drugs;
Trenbolone Acetate and Estradiol
AGENCY: Food and Drug Administration, HHS.
[[Page 41499]]
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Food and Drug Administration (FDA) is amending the animal
drug regulations to reflect approval of a supplemental new animal drug
application (NADA) filed by Roussel-UCLAF, Division Agro-Veterinaire.
The supplemental NADA provides for use of an ear implant containing
trenbolone acetate and estradiol in pasture heifers (in addition to a
previously approved use in pasture steers) for increased rate of weight
gain.
EFFECTIVE DATE: August 9, 1996.
FOR FURTHER INFORMATION CONTACT: Jack Caldwell, Center for Veterinary
Medicine (HFV-126), Food and Drug Administration, 7500 Standish Pl.,
Rockville, MD 20855, 301-827-0217.
SUPPLEMENTARY INFORMATION: Roussel-UCLAF, Division Agro-Veterinaire,
163 Avenue Gambetta, 75020 Paris, France, filed supplemental NADA 140-
897, which provides for use of Revalor-G, an ear implant,
each dose containing 2 pellets, each pellet containing 20 milligrams
(mg) of trenbolone acetate and 4 mg of estradiol. The implant is used
in pasture heifers (slaughter, stocker, and feeder) (pasture steers
being already approved) for increased rate of weight gain. The
supplemental NADA is approved as of July 2, 1996, and the regulations
are amended in 21 CFR 522.2477(c)(3) to reflect the approval. The basis
for approval is discussed in the freedom of information summary.
In accordance with the freedom of information provisions of part 20
(21 CFR part 20) and Sec. 514.11(e)(2)(ii) (21 CFR 514.11(e)(2)(ii)), a
summary of safety and effectiveness data and information submitted to
support approval of this application may be seen in the Dockets
Management Branch (HFA-305), Food and Drug Administration, 12420
Parklawn Dr., rm. 1-23, Rockville, MD 20857, between 9 a.m. and 4 p.m.,
Monday through Friday.
-Under section 512(c)(2)(F)(iii) of the Federal Food, Drug, and
Cosmetic Act (21 U.S.C. 360b(c)(2)(F)(iii)), this approval qualifies
for a 3-year period of marketing exclusivity beginning on July 2, 1996,
because new clinical or field investigations (other than bioequivalence
or residue studies) essential to the approval were conducted or
sponsored by the applicant.
The agency has carefully considered the potential environmental
effects of this action. FDA has concluded that the action will not have
a significant impact on the human environment, and that an
environmental impact statement is not required. The agency's finding of
no significant impact and the evidence supporting that finding,
contained in an environmental assessment, may be seen in the Dockets
Management Branch (address above) between 9 a.m. and 4 p.m., Monday
through Friday.
List of Subjects in 21 CFR Part 522
-Animal drugs.
-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 522 is
amended as follows:
PART 522--IMPLANTATION OR INJECTABLE DOSAGE FORM NEW ANIMAL DRUGS
-1. The authority citation for 21 CFR part 522 continues to read as
follows:
-Authority: Sec. 512 of the Federal Food, Drug, and Cosmetic Act
(21 U.S.C. 360b).
-2. Section 522.2477 is amended by revising the heading of
paragraph (c)(3) and paragraph (c)(3)(iii) to read as follows:
Sec. 522.2477 Trenbolone acetate and estradiol.
-* -* -* -* -*
-(c) * * *
-(3) Pasture cattle (slaughter, stocker, feeder steers, and
heifers).
-* -* -* -* -*
-(iii) Limitations. Implant subcutaneously in ear only. Not for use
in animals intended for subsequent breeding or in dairy animals.
Dated: July 19, 1996.
Robert C. Livingston,
Director, Office of New Animal Drug Evaluation, Center for Veterinary
Medicine.
[FR Doc. 96-20344 Filed 8-8-96; 8:45 am]
BILLING CODE 4160-01-F
Complete official Federal Register PDF
FR Doc. 96-20333 Elections of Retirement Coverage by Current and Former Nonappropriated Fund Employees
[Federal Register Volume 61, Number 155 (Friday, August 9, 1996)]
[Rules and Regulations]
[Pages 41714-41728]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-20333]
[[Page 41713]]
_______________________________________________________________________
Part V
Office of Personnel Management
_______________________________________________________________________
5 CFR Part 831, et al.
Election of Retirement Coverage by Current and Former Nonappropriated
Fund Employees; Interim Final Rule
Federal Register / Vol. 61, No. 155 / Friday, August 9, 1996 / Rules
and Regulations
[[Page 41714]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Parts 831, 837, 841, 842, 843, 844, and 847
RIN 3206-AH57
Elections of Retirement Coverage by Current and Former
Nonappropriated Fund Employees
AGENCY: Office of Personnel Management.
ACTION: Interim rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: The Office of Personnel Management (OPM) is issuing interim
regulations to implement the civilian-retirement provisions of the
National Defense Authorization Act for Fiscal Year 1996 and to
consolidate existing regulations concerning employees affected by these
provisions. That statute provides certain employees with an opportunity
to elect to continue vested retirement coverage after a qualifying
employment move between a civil service position and a nonappropriated
fund instrumentality (NAFI), and vice versa, and under limited
circumstances to receive credit for past NAFI service under the Civil
Service Retirement System or the Federal Employees Retirement System.
These regulations establish election procedures and the methodology for
computing the employee costs as required by the statute.
DATES: Interim rules effective August 10, 1996; comments must be
received on or before October 8, 1996.
ADDRESSES: Send comments to John E. Landers, Chief, Retirement Policy
Division; Retirement and Insurance Service; Office of Personnel
Management; P.O. Box 57; Washington, DC 20044; or deliver to OPM, Room
4351, 1900 E Street, NW., Washington DC.
FOR FURTHER INFORMATION CONTACT:
Cynthia Reinhold, (202) 606-0299.
SUPPLEMENTARY INFORMATION:
1. Overview
Section 1043 of the National Defense Authorization Act for Fiscal
Year 1996, Public Law 104-106 approved February 10, 1996, amends the
existing provisions of law under which certain employees who are vested
in the Civil Service Retirement System (CSRS), the Federal Employees
Retirement System (FERS), or a retirement plan established for
employees of nonappropriated fund instrumentalities (NAFI) described in
section 2105(c) of title 5, United States Code, may elect to continue
coverage in a vested retirement system upon a move between appropriated
and nonappropriated fund employment. Additionally, section 1043
provides a 1-year period for certain employees who would have been
eligible to elect to continue vested retirement benefits had the new
requirements been in effect at the time of the change in employment, to
retroactively elect to continue the retirement coverage they had before
a qualifying employment move that occurred after December 31, 1965, and
before the effective date of implementing regulations. During the
retroactive election period, certain employees now covered by a NAFI
retirement system who have prior service under CSRS or FERS may elect
to return to CSRS or FERS coverage or to receive credit under the NAFI
retirement system for FERS service. [Note: The following sentence and
Sec. 847.415 may be amended depending on the response to our inquiry to
the IRS.] NAFI employees who elect to return retroactively to CSRS
coverage will receive full CSRS coverage for the retroactive period and
will be prospectively covered by the CSRS Offset provisions, which are
applicable to CSRS employees who are mandatorily covered by Social
Security, because the Social Security coverage in effect during their
NAFI service will continue. Certain employees who have been
continuously covered by FERS and have prior service with a NAFI may be
eligible to elect to return to coverage under the NAFI retirement
system, or to receive credit under FERS for the NAFI service.
2. Qualifying Moves
The Portability of Benefits for Nonappropriated Fund Employees Act
of 1990 (sections 8347(q) and 8461(n) of title 5, United States Code),
Public Law 100-508 provided that certain NAFI employees within the
Department of Defense (DoD) and the U.S. Coast Guard may elect to
continue vested coverage under a retirement system for NAFI employees
upon a move to a DoD or Coast Guard appropriated fund position.
Likewise, certain DoD or Coast Guard appropriated fund employees could
elect to continue vested retirement coverage under CSRS or FERS upon a
move to a DoD or Coast Guard NAFI position.
The right to make an election under the 1990 Portability Act is
linked to conditions surrounding the employment move. Only those
employees whose move between civil service and NAFI employment, or vice
versa, met certain criteria set out in the law were granted the
opportunity to elect to continue retirement coverage; the law did not
make NAFI service creditable under CSRS or FERS.
Section 1043 of Public Law 104-106 expands the opportunities for
employees to elect to continue retirement coverage upon a change in
employment status. Except in limited circumstances explained below, the
changes made by section 1043 have not made service with a NAFI
creditable for CSRS or FERS purposes.
3. Qualifying Moves for Prospective Elections
An employment move triggers an opportunity to elect to continue
retirement coverage under the provisions of the 1996 Act if it meets
all of the following four criteria:
The employee must not have had a prior opportunity to
elect to continue the same retirement coverage under the 1990
Portability provisions, and
The employee must have been vested in a retirement plan
prior to the change in employment, and
The employee must have moved from a NAFI within the DoD or
the Coast Guard to any civil service position, or have moved from a
civil service position to a NAFI within the DoD or the Coast Guard, and
The break in employment qualifying for retirement coverage
was not more than 1 year.
These provisions apply to any move occurring on or after August 10,
1996. A move is considered to have been made at the time the individual
enters into the new position, not at the time of separation from the
prior position. For example, an individual may have separated from an
appropriated fund position subject to FERS on December 31, 1995. The
same individual received an appointment with a NAFI subject to the NAFI
retirement plan on September 29, 1996. Assuming all other criteria are
met, the individual has completed a qualifying employment move and is
eligible to elect to continue FERS coverage instead of accepting NAFI
plan coverage.
4. Qualifying Moves for Retroactive Elections
For certain employees who moved from a civil service position
subject to CSRS or FERS to a position in a NAFI covered by a NAFI
retirement system, and vice versa, at any time after December 31, 1965,
and before August 10, 1996, section 1043 of Public Law 104-106 provides
a limited opportunity to elect to continue retirement coverage
retroactive to the date of the qualifying employment move. To be
eligible to retroactively elect retirement coverage,
[[Page 41715]]
the move to or from civil service and NAFI employment must meet the new
definition of ``qualifying move'' in section 847.402 of these
regulations. However, the law specifically excludes three classes of
individuals from making a retroactive election.
Previous Retirement Coverage Election Opportunity
Employees who had an opportunity to elect to continue retirement
coverage under the provisions of the 1990 Portability Act before
February 10, 1996, or who elected to continue retirement coverage
before August 10, 1996, are not eligible to elect retirement coverage
based on an earlier qualifying move.
Employees with a qualifying move occurring after February 10, 1996,
(the date Public Law 104-106 was enacted) and before August 10, 1996,
may elect to continue retirement coverage based on a qualifying move
under these regulations only if they have not already exercised an
election right under the provisions of the 1990 Portability Act. The
DoD issued a blanket waiver of the 30-day time limit for elections
under the 1990 Portability Act on March 4, 1996. Employees who delayed
their election right under the waiver may now elect to continue
coverage under either the 1990 Portability rules or the retroactive
provisions established by these regulations. DoD will allow until
December 31, 1996, for employees in this category--all of whom are DoD
employees who have made a qualifying employment move under the 1990
Portability Act on or after February 10, 1996--to make their retirement
coverage elections under the new regulations.
Continuous Retirement Coverage Requirement
Current NAFI employees who moved under conditions which would allow
an opportunity to elect to continue retirement coverage may make a
retroactive election only if they have remained continuously subject to
a retirement system established for NAFI employees since the qualifying
move. A break in service of 3 days or less is not considered a break in
retirement coverage for retroactive election eligibility purposes.
Likewise, a current FERS employee who would be eligible to
retroactively elect to continue NAFI retirement system coverage is
eligible to make that election only if he or she has remained
continuously subject to FERS since the qualifying move. (The statute
contains an inconsistent reference to continuous CSRS coverage
following the employment move (section 1043(c)(2)(B)(II)), which cannot
be given effect in conjunction with the plain and unambiguous statement
in section 1043(c)(2)(B)(III), as explained in the next paragraph.)
Moves to the CSRS
If the employment move on which an election would be based was from
a NAFI to the CSRS, the employee is not eligible to make a retroactive
election. Subclause (III) of section 1043(c)(2)(B) bars any individual
from making a retroactive election--
if such election would be based on a move to the Civil Service
Retirement System from a retirement system established for employees
[of a NAFI].
Therefore, an employee who is currently subject to CSRS has no new
opportunity under these regulations to elect to continue retirement
coverage based on a move from a NAFI retirement system to CSRS.
The bar on retroactive elections based on moves to the CSRS also
applies to employees now covered by FERS who elected FERS during the
1987 open season or later. If an employee moved from a NAFI retirement
system to CSRS (including the CSRS Interim provisions in effect from
January 1, 1984 through December 31, 1986, and the CSRS Offset
provisions in effect on and after January 1, 1987), and later elected
FERS coverage, he or she is not eligible to make a retroactive election
of NAFI retirement system coverage. Moves from a NAFI retirement system
to CSRS Interim coverage, followed by automatic, as opposed to
elective, FERS coverage, with all the CSRS Interim service being
retroactively converted to FERS service, will be considered a move to
FERS.
5. Alternative Election of Service Credit
Section 1043 of Public Law 104-106 also provides for an alternative
election for employees currently covered by FERS or a NAFI retirement
system. To be eligible to alternatively elect service credit, the FERS
or NAFI employee must meet all the eligibility criteria for a
retroactive election of retirement coverage. However, the requirement
that the employee not have had a previous opportunity to elect to
continue retirement coverage under the 1990 Portability Act provisions
does not apply. That is, an employee currently covered by FERS or
participating in a NAFI retirement system who previously elected his or
her current retirement coverage based on a past qualifying move, or who
had the opportunity to elect to continue retirement coverage, is
eligible to make an alternative election provided he or she meets all
other criteria.
Under the alternative election opportunity, an eligible employee
covered by FERS may elect to receive credit in his or her FERS
retirement benefit for any prior civilian service which would be
creditable for NAFI retirement system purposes and to continue coverage
under FERS for all future periods of Federal service. Similarly, a NAFI
employee who is participating in a NAFI retirement system may elect to
receive credit toward eligibility for a NAFI retirement benefit for any
prior civilian service which would be creditable for FERS purposes,
without regard to redeposit, and to continue coverage under the NAFI
retirement system for all future periods of Federal service. By making
this election in lieu of a retroactive election of retirement coverage,
an employee with multiple periods of service subject to another
retirement system could combine credit for the service under his or her
current retirement system. In contrast, by making a retroactive
election of retirement coverage, only service performed since the date
of the qualifying move becomes creditable under the new retirement
system.
For example, an individual was employed in a NAFI from 1981 through
1988 and subject to the NAFI's retirement system. Five months after her
separation from the NAFI, the same individual was employed in a civil
service position subject to FERS. She remained subject to FERS until
early 1995, and then after a 5-month break in service she became
employed by a NAFI covered by the NAFI retirement system and has
remained so employed to date. This employee now may choose among the
following elections:
A. Elect to be covered by FERS retroactive to the effective date of
her 1995 NAFI appointment. The employee would not receive FERS credit
for the NAFI service from 1981 through 1988 since her qualifying move
is the 1995 move from FERS to a NAFI (the move in 1988 from a NAFI to
the FERS is not qualifying since she did not remain continuously
covered by FERS); or
B. Elect to remain in the NAFI retirement system with retirement
eligibility credit for her FERS service. Should the employee move to a
FERS position in the future, she would remain covered by her NAFI
retirement system. Her FERS service would cease to be creditable for
any purpose under FERS.
C. Make no election. The employee would remain subject to a NAFI
retirement plan with service from 1988 to 1995 subject to FERS. Should
the employee move to FERS in the future, she may have an opportunity to
[[Page 41716]]
continue the NAFI retirement coverage if her move is qualifying.
To be eligible for the alternative election opportunity, the FERS
or NAFI employee must be otherwise eligible to elect to continue
retirement coverage retroactive to the date of a qualifying move.
Therefore, FERS employees who are unable to elect to retroactively
continue retirement coverage because they moved from a NAFI to CSRS are
also unable to elect to credit previous NAFI service under FERS. A FERS
or NAFI retirement system annuitant is also ineligible to elect to
credit previous service toward his or her annuity benefit.
6. Service Which Is Creditable Under the Alternative Election
Under the alternative election (to remain in the current retirement
system and receive credit for service performed under a previous
retirement system), section 1043 provides that any service which would
be qualifying for FERS or NAFI retirement purposes may be credited
toward the current retirement system. In many cases, employees opted to
withdraw their contributions to a retirement system upon employment in
a position that was subject to another retirement system with no
opportunity to combine the service. While a refund would generally
terminate an individual's service credit under FERS or a NAFI
retirement system, section 1043 provides for the transfer of service
credit regardless of refund status. In the case of a FERS employee who
has previously received a refund of his or her NAFI retirement
contributions and elects FERS service credit for the NAFI service, the
DoD or Coast Guard will transfer the employer contributions which were
deposited on the employee's behalf during the NAFI employment. In the
case of a NAFI employee who elects NAFI credit for previous FERS
service, OPM will certify the periods of FERS service as qualifying to
the DoD or Coast Guard if the employee has withdrawn his or her
contributions for the FERS service. For service subject to FERS,
transferable service would include non-contributory service performed
prior to January 1, 1989. Non-contributory service performed after
December 31, 1988, is not creditable FERS service and credit for such
service would therefore not transfer to a NAFI retirement system.
Military service is creditable under the general CSRS and FERS rules
and is not affected by these regulations.
7. Effective Dates
Prospective and retroactive elections of retirement coverage made
on or after August 10, 1996, are effective on the date of appointment
to a retirement-covered position which completed the qualifying move.
Under no circumstances can an election take effect earlier than the
first appointment subject to retirement coverage.
An alternative election to remain covered under the current FERS or
NAFI retirement system, and to obtain service credit for time under the
other system, is effective on the date of receipt of the election in
the employing agency. The service performed subject to another
retirement system becomes creditable under the current retirement
system at the time the election is made.
8. Transfer of Contributions
Section 1043 of Public Law 104-106 requires that for certain
elections, the current retirement system transfer to the elected
retirement system all retirement deductions withheld from the
employee's salary, interest on the employee's deductions, and
retirement contributions contributed by the employing agency on the
employee's behalf.
For elections of CSRS and FERS coverage, including elections of
FERS service credit, the DoD or the Coast Guard will transfer to the
Civil Service Retirement and Disability Fund the NAFI employee and
employer retirement contributions credited to the employee.
Employee retirement contributions transfer with interest because
this is specifically provided by section 1043(c)(2)(C)(i). No interest
is includable in a transfer of employer contributions.
Any employee deductions plus interest which are transferred to the
Civil Service Retirement and Disability Fund will become part of the
employee's credit which is payable to the employee or survivors in the
case of separation or death. The government share of the NAFI
contributions, if any, is not payable to the employee or the employee's
survivors under any circumstances. NAFI contributions transferred to
the Fund will thereafter accrue interest under current procedures.
For retroactive elections of NAFI retirement plan coverage, the
Office of Personnel Management will transfer to either the DoD or the
Coast Guard the total amount withheld from the employee's salary for
FERS retirement, any deposits made by the employee for civilian
service, interest accrued on the employee's deductions and
contributions, and amounts contributed by the employing agency without
interest. For elections by NAFI employees of NAFI retirement credit for
previous periods of FERS service, section 1043 does not allow OPM to
transfer any contributions associated with the FERS service to the DoD
or Coast Guard.
9. Employee Costs Associated With Retroactive Elections
Section 1043 of Public Law 104-106 provides that if the total
amount of the contributions transferred to the elected retirement
system do not cover the increase in the ``actuarial present value'' of
the employee's future retirement benefit attributable to the service
covered by the election, the employee must fund the difference. The
actuarial present value of a retirement benefit is the amount of money
that would have to be set aside to finance all of the retirement
benefits an employee would receive during his or her expected lifetime.
Therefore, section 1043 requires employees to fully finance the
increase in their retirement benefit attributable to the retroactive
election which is not otherwise funded by the transfer of
contributions.
The regulations require that the calculation of the actuarial
present value of NAFI service made creditable under CSRS or FERS be
delayed until the time a retirement or survivor benefit based on the
NAFI service actually becomes payable. By delaying the calculation, the
exact annuity benefit based on the employees' age, service, salary and
survivor election can be determined. This method is preferable to
calculating a future retirement benefit based on a set of assumed
conditions which may not reflect the employee's actual circumstances.
In the event the additional NAFI service does not increase the
retirement benefit payable to the employee or survivor, as in some
disability retirements, the employee will not be required to fund the
NAFI service.
The regulations do not require that the employee fund the increase
in the actuarial present value by making a deposit. Rather, the section
1043 funding requirement will be satisfied by a permanent reduction in
the monthly retirement benefit. The monthly reduction will be based on
actuarial factors which effectively collect the increase in the
actuarial present value over the remaining life expectancy of the
retiree or survivor. If the NAFI service does not create an annuity
entitlement or increase the payable benefit to the employee or
survivor, then the monthly reduction would be zero. If the NAFI service
does increase the CSRS or FERS benefit, the employee or survivor
annuity will reflect credit for
[[Page 41717]]
all the NAFI service attributable to the retroactive election and a
permanent actuarial reduction based on the amount required to fund the
annuity increase.
10. Calculation of Annuity Benefit Which Includes NAFI Service
At the time that a CSRS or FERS benefit payable to an employee or
survivor includes NAFI service made creditable by a retroactive
election, OPM will determine the actuarial present value of the NAFI
service, if any, and the monthly reduction in the annuity benefit. In
most cases the calculation will be made effective with the commencing
date of the retirement or survivor benefit. However, for FERS
disability annuitants and survivor annuitants, the calculation will not
be made until a benefit based on the employee's years of service and
salary becomes payable, usually at age 62. OPM will compare two annuity
benefit computations:
(A) The actuarial present value of a CSRS or FERS annuity that
includes credit for all NAFI service.
(B) The actuarial present value of a CSRS or FERS annuity without
credit for the NAFI service attributed to the election.
The actuarial present value is computed by multiplying the monthly
rate of annuity by a factor calculated by OPM's actuary using generally
accepted actuarial standards and on the basis of assumptions used by
the Board of Actuaries of the Civil Service Retirement System.
At the time OPM computes the actuarial present value of crediting
the NAFI service, we will increase the amount of contributions
transferred to the Fund by interest after the date of the transfer. The
difference between the actuarial present value of the benefits computed
under (A) and (B), above, is the actuarial present value of crediting
the NAFI service. The difference between the actuarial present value of
the NAFI service and the amount of contributions which were
transferred, plus interest, is the amount which will be funded by a
monthly annuity reduction. The regulations refer to this amount as the
``deficiency.''
If the additional NAFI service does not increase the annuity
otherwise payable to an individual, then there will be no reduction in
the annuity for the retroactive election. This could occur in cases
where the benefit payable is based on factors other than years of
service and salary. A disability benefit or a CSRS survivor annuity,
for example, may be based on a straight percentage of average salary
and additional NAFI service would not increase the benefit.
The deficiency is divided by the actuarial present value factor
corresponding to the employee or survivor's age at the time of the
calculation to determine the amount of the monthly annuity reduction.
After the annuity is reduced in this way, any further reductions for
survivor, CSRS-Offset, or the alternative form of annuity still apply.
Future cost-of-living adjustments are applied to the monthly annuity
payable after these reductions. If a survivor benefit becomes payable
after the death of a retired employee, the monthly survivor benefit is
not additionally reduced due to a deficiency. For example:
Employee retires at age 62 under FERS with 18 years of FERS service
and an additional 5 years of NAFI service made creditable under FERS.
High-three average salary is $40,000. The contributions transferred
from the NAFI retirement system, plus interest, equal $5,000.
Present value factor for age 62........... 161.3
Single life FERS annuity with credit for $843/month
NAFI service.
Actuarial present value................... $135,976 (161.3 x 843)
Single life FERS annuity without credit $600/month
for NAFI service.
Actuarial present value................... $96,780 (161.3 x 600)
Actuarial present value of NAFI service... $39,196 (135,976 - 96,780)
Unfunded amount (deficiency).............. $34,196 (39,196 - 5,000 in
contributions)
Monthly reduction......................... $212 (34,196 161.3)
Single life FERS annuity.................. $631/month (843 - 212)
FERS annuity with survivor benefit........ $567 (0.9 x 631)
Rate of survivor annuity.................. $315 (50% of $631)
In the above example, the employee did not retire earlier than he
would have otherwise been eligible to retire without the NAFI service.
Since annuity eligibility was not affected, the increase in the single
life annuity due to the NAFI service election is equal to the amount
transferred to the Fund divided by the appropriate present value
factor. (In the above example: $5,000 161.3 = $31. Annuity
without NAFI service increases $31 by the NAFI service election.)
When the NAFI service allows an employee to retire earlier than he
or she could have without the NAFI service, an additional step is added
to the computation of the funding deficiency. Because no annuity would
be immediately payable if NAFI service was not combined with civil
service, the present value of the immediate annuity that includes NAFI
service must be compared to the present value of the deferred annuity
that would have been the only benefit payable without crediting the
NAFI service. To determine the deficiency at the time the actual
annuity payments begin, we must therefore discount the present value of
the deferred annuity benefit at the time it would commence. In other
words, we begin by computing the present value of the deferred annuity
on its commencing date (without credit for the NAFI service). This is
computed by multiplying the deferred annuity rate by the actuarial
factor for the employee's age at the time the deferred annuity would
begin. By definition, the present value of the deferred annuity on its
commencing date (without credit for the NAFI service) is the amount
that would be required to fund such an annuity on that date. However,
the present value of the future deferred annuity on the date when
payments would begin, that is, the amount that would have to be set
aside on the actual annuity commencing date to fund the future deferred
annuity, is lower because the amount set aside would earn interest from
the actual immediate commencing date to the deferred annuity commencing
date. The method used to adjust the present value of the deferred
annuity is set out in section 847.607.
11. Effect of FERS Refunds
These regulations allow individuals who received a refund of their
FERS retirement contributions upon a move to a NAFI and elect to
continue coverage under FERS an opportunity to receive credit for the
FERS service represented by the refund. Employees under CSRS may repay
previous refunds at any time they are subject to CSRS. A refund of FERS
contributions generally cannot be repaid and the service represented by
the refund is not creditable toward FERS annuity eligibility or FERS
annuity computation. However, in the case of a NAFI employee who
retroactively elects FERS coverage, but received a refund of his or her
FERS contributions, the employee will receive credit for any periods of
refunded FERS service in the computation of the FERS benefit. The
amount of the FERS refund will accrue interest through the date of
separation. The refund amount plus interest will be added to the amount
of the funding deficiency, and therefore included in the actuarial
reduction in the annuity.
[[Page 41718]]
12. Present Value Factors
The following three charts contain the present value factors that
will apply to a CSRS or FERS annuity which includes NAFI service made
creditable by an election under section 1043 of Public Law 104-106
under the current economic assumptions of interest at 7 percent and
inflation at 4.5 percent together with the demographic assumptions
adopted by the Board of Actuaries. See 58 FR 49066, September 21, 1993.
CSRS Present Value Factors Applicable to an Annuity Payable Following an Election Under Section 1043 of Public
Law 104-106
----------------------------------------------------------------------------------------------------------------
Present Present Present
value of a value of a value of
Age at calculation monthly Age at calculation monthly Age at calculation a monthly
annuity annuity annuity
----------------------------------------------------------------------------------------------------------------
17............................... 377.9 42.................. 285.5 67.................. 150.7
18............................... 375.0 43.................. 280.8 68.................. 145.4
19............................... 372.0 44.................. 276.2 69.................. 140.2
20............................... 368.9 45.................. 270.4 70.................. 134.7
21............................... 365.8 46.................. 264.7 71.................. 129.4
22............................... 362.6 47.................. 259.2 72.................. 124.0
23............................... 359.3 48.................. 253.5 73.................. 118.8
24............................... 356.0 49.................. 247.2 74.................. 113.6
25............................... 352.6 50.................. 240.4 75.................. 108.5
26............................... 349.2 51.................. 235.0 76.................. 103.5
27............................... 345.7 52.................. 229.8 77.................. 98.7
28............................... 342.1 53.................. 224.4 78.................. 93.9
29............................... 338.4 54.................. 218.6 79.................. 89.4
30............................... 334.7 55.................. 212.6 80.................. 84.9
31............................... 331.0 56.................. 207.5 81.................. 80.5
32............................... 327.1 57.................. 202.4 82.................. 76.3
33............................... 323.3 58.................. 197.0 83.................. 72.3
34............................... 319.3 59.................. 192.3 84.................. 68.4
35............................... 315.3 60.................. 188.3 85.................. 64.7
36............................... 311.2 61.................. 182.9 86.................. 61.2
37............................... 307.1 62.................. 177.0 87.................. 57.9
38............................... 302.8 63.................. 171.9 88.................. 54.7
39............................... 298.6 64.................. 166.5 89.................. 51.8
40............................... 294.4 65.................. 161.1 90.................. 48.9
41............................... 290.0 66.................. 156.0
----------------------------------------------------------------------------------------------------------------
FERS Present Value Factors Applicable to an Annuity Payable Following an Election Under Section 1043 of Public
Law 104-106 When Annuity Is Increased by COLAS
----------------------------------------------------------------------------------------------------------------
Present Present Present
value of a value of a value of
Age at calculation monthly Age at calculation monthly Age at calculation a monthly
annuity annuity annuity
----------------------------------------------------------------------------------------------------------------
17............................... 301.7 42.................. 238.5 67.................. 139.1
18............................... 299.8 43.................. 235.0 68.................. 134.6
19............................... 297.9 44.................. 231.5 69.................. 130.1
20............................... 296.0 45.................. 227.9 70.................. 125.4
21............................... 294.0 46.................. 224.2 71.................. 120.7
22............................... 291.9 47.................. 220.3 72.................. 116.0
23............................... 289.8 48.................. 216.5 73.................. 111.4
24............................... 287.7 49.................. 212.6 74.................. 106.8
25............................... 285.4 50.................. 208.6 75.................. 102.2
26............................... 283.2 51.................. 204.5 76.................. 97.8
27............................... 280.8 52.................. 200.3 77.................. 93.5
28............................... 278.4 53.................. 196.1 78.................. 89.2
29............................... 276.0 54.................. 191.8 79.................. 85.0
30............................... 273.5 55.................. 187.4 80.................. 80.9
31............................... 270.9 56.................. 183.1 81.................. 77.0
32............................... 268.2 57.................. 178.6 82.................. 73.1
33............................... 265.5 58.................. 174.2 83.................. 69.4
34............................... 262.8 59.................. 169.7 84.................. 65.8
35............................... 260.0 60.................. 165.1 85.................. 62.4
36............................... 257.1 61.................. 160.4 86.................. 59.1
37............................... 254.1 62.................. 161.3 87.................. 56.0
38............................... 251.1 63.................. 157.1 88.................. 53.0
39............................... 248.1 64.................. 152.5 89.................. 50.2
40............................... 245.2 65.................. 148.0 90.................. 47.5
41............................... 241.9 66.................. 143.6
----------------------------------------------------------------------------------------------------------------
[[Page 41719]]
FERS Present Value Factors Applicable to an Annuity Payable Following an Election Under Section 1043 of Public
Law 104-106 When Annuity is Not Increased by COLAS
----------------------------------------------------------------------------------------------------------------
Present value Present value
Age at calculation of a monthly Age at calculation of a monthly
annuity annuity
----------------------------------------------------------------------------------------------------------------
40........................................... 169.2 51.............................. 161.9
41........................................... 168.8 52.............................. 161.6
42........................................... 168.4 53.............................. 161.2
43........................................... 168.1 54.............................. 160.6
44........................................... 167.7 55.............................. 160.0
45........................................... 166.9 56.............................. 160.0
46........................................... 166.1 57.............................. 160.2
47........................................... 165.4 58.............................. 160.4
48........................................... 164.7 59.............................. 161.2
49........................................... 163.7 60.............................. 162.7
50........................................... 162.4 61.............................. 163.5
----------------------------------------------------------------------------------------------------------------
13. Effects of an Election
Any prospective or retroactive election made under these
regulations is irrevocable. By electing to continue retirement
coverage, the employee also consents to a permanent reduction in the
future monthly annuity benefit if the benefit becomes payable at an
earlier date or is increased by the NAFI service. Once an employee has
elected coverage under a specific retirement system, he or she
continues to be covered by that retirement system for all future
periods of Federal service not otherwise excluded from retirement
coverage, whether employed in a civil service position or with a NAFI.
The elected retirement coverage will also apply to any service the
individual may perform as a reemployed annuitant.
A retroactive election of retirement coverage will have the same
effect as if it had been timely made at the time of the move. For
employees who elect to continue CSRS or FERS coverage, the NAFI service
performed since the move on which the election is based is fully
creditable in the future CSRS or FERS annuity for title and
computation, including average salary purposes. FERS employees who
elect FERS service credit for previous periods of NAFI service will
also receive full credit toward title and computation for any previous
period of creditable NAFI service.
NAFI employees who elect to remain covered by the NAFI retirement
system and receive credit for previous periods of FERS civilian service
may also elect whether the FERS service will be creditable for title
only, or for title and computation of the NAFI retirement benefit. If
the employee elects to receive credit for the FERS service in the
computation of the NAFI retirement benefit, he or she is required to
pay the actuarial present value of the FERS service made creditable by
the election. An election to credit FERS civilian service for any
purpose toward a NAFI retirement system will terminate an employee's
eligibility for a FERS annuity based on the same service. Although the
employee's contributions for the FERS service may remain to his credit,
an election to credit FERS service in a NAFI retirement benefit will
prevent the FERS service from remaining creditable for any purpose
under FERS.
14. Time Limit for Elections
Section 1043 of Public Law 104-106 amended the definition of a
qualifying move to allow retirement coverage elections when employees
move to or from a NAFI and any other Federal agency and also increased
the allowable break in service between retirement-covered civil service
and NAFI positions from not more than 3 days to 1 year. At the time of
employment, agencies will give qualifying employees 30 days in which to
make their election. This time limit may be extended if the agency
fails to provide a timely opportunity for the employee to make the
election.
The retroactive election opportunity expires 1 year after the
effective date of the regulations. Since that day (August 10, 1997) is
a Sunday, the deadline stated in the regulation is the following
Monday, August 11, 1997. Because section 1043 requires that eligible
employees receive timely notice of the opportunity to make the
retroactive election, and that employees be counselled concerning the
election opportunity, the employing agency will have authority to waive
the time limit in the event that an employee did not receive such
notice or counselling.
Waiver of Notice of Proposed Rulemaking
Under section 553(b)(3)(B) and (d)(3) of title 5, United States
Code, I find that good cause exists for waiving the general notice of
proposed rulemaking and to make these rules effective in less than 30
days. The regulations are effective August 10, 1996, 6 months after
enactment of the statutory change. The statute requires OPM to
establish by regulation the procedure for electing retirement coverage
retroactive to a qualifying move and for computing the costs associated
with the election and to prescribe the implementing regulations within
6 months of enactment. Elections under the new law cannot be made until
the implementing regulations take effect. Therefore, delaying
implementation of these regulations would unnecessarily delay the
availability of the benefits of the new law.
List of Subjects
5 CFR Parts 831, 837, 841, 842, 843, and 844
Administrative practice and procedure, Air traffic controllers,
Alimony, Claims, Disability benefits, Firefighters, Government
employees, Income taxes, Intergovernmental relations, Law enforcement
officers, Pensions, Reporting and recordkeeping requirements,
Retirement.
5 CFR Part 847
Administrative practice and procedure, Disability benefits,
Government employees, Pensions, Reporting and recordkeeping
requirements, Retirement.
James B. King,
Director.
Accordingly, OPM is amending Title 5, Code of Federal Regulations,
parts 831, 837, 841, 842, 843, 844, and adding 847 as follows:
PART 831--RETIREMENT
1. The authority citation for part 831 is revised to read as
follows:
[[Page 41720]]
Authority: 5 U.S.C. 8347; Sec. 831.102 also issued under 5
U.S.C. 8334; Sec. 831.106 also issued under 5 U.S.C. 552a;
Sec. 831.108 also issued under 5 U.S.C. 8336(d)(2);
Sec. 831.201(b)(6) also issued under 5 U.S.C. 7701(b)(2);
Sec. 831.303 also issued under 5 U.S.C. 8334(d)(2); Sec. 381.502
also issued under 5 U.S.C. 8337; Sec. 831.502 also issued under
section 1(3), E.O. 11228, 3 CFR 1964-1965 Comp.; Sec. 831.663 also
issued under 5 U.S.C.8339 (j) and (k)(2); Secs. 831.663 and 831.664
also issued under section 11004(c)(2) of the Omnibus Budget
Reconciliation Act of 1993, Pub. L. 103-66; Sec. 831.682 also issued
under section 201(d) of the Federal Employees Benefits Improvement
Act of 1986, Pub. L. 99-251, 100 Stat. 23; subpart S also issued
under 5 U.S.C. 8345(k); subpart V also issued under 5 U.S.C. 8343a
and section 6001 of the Omnibus Budget Reconciliation Act of 1987,
Pub. L. 100-203, 101 Stat. 1330-275; Sec. 831.2203 also issued under
section 7001(a)(4) of the Omnibus Budget Reconciliation Act of 1990,
Pub. L. 101-508; 104 Stat. 1388-328.
Subpart B--Coverage
2. In section 831.201(h), the reference ``Sec. 831.204'' is removed
and ``part 847 of this chapter'' is added in its place.
Sec. 831.204 [Removed]
3. Section 831.204 is removed.
Subpart G--Computation of Annuities
4. Section 831.704 is added to read as follows:
Sec. 831.704 Annuities including credit for service with a
nonappropriated fund instrumentality.
An annuity that includes credit for service with a nonappropriated
fund instrumentality performed after December 31, 1965, based on an
election under subpart D of part 847 of this chapter is computed under
part 847 of this chapter.
Subpart T--Payment of Lump Sums
5. Section 831.2009 is added to read as follows:
Sec. 831.2009 Lump sum payments which include contributions made to a
retirement system for employees of a nonappropriated fund
instrumentality.
A lump sum payment will include employee contributions and interest
as provided under subpart G of part 847 of this chapter.
PART 837--REEMPLOYMENT OF ANNUITANTS
6. The authority citation for part 837 continues to read as
follows:
Authority: 5 U.S.C. 8337, 8344, 8347, 8455, 8456, 8461, and 8468
and section 302 of Pub. L. 99-335, June 6, 1986, as amended.
Subpart A--General Provisions
7. Section 837.104 is added to read as follows:
Sec. 837.104 Reemployment of former employees of nonappropriated fund
instrumentalities.
A former employee of a nonappropriated fund instrumentality who has
made an election of retirement coverage under part 847 of this chapter
will continue to be covered under the elected retirement system for all
periods of service as a reemployed annuitant.
8. Section 837.506 is added to read as follows:
Sec. 837.506 Computation of redetermined annuity for former employees
of nonappropriated fund instrumentalities.
The redetermined annuity of a former employee of a nonappropriated
fund instrumentality who elected CSRS or FERS coverage under subpart D
of part 847 of this chapter is recomputed under part 847 of this
chapter.
PART 841--FEDERAL EMPLOYEES RETIREMENT SYSTEM--GENERAL
ADMINISTRATION
9. The authority citation for part 841 continues to read as
follows:
Authority: 5 U.S.C. 8461; Sec. 841.108 also issued under 5
U.S.C. 552a; subpart D also issued under 5 U.S.C. 8423; Sec. 841.504
also issued under 5 U.S.C. 8422; Sec. 841.506 also issued under 5
U.S.C. 7701(b)(2); Sec. 841.507 also issued under section 505 of
Pub. L. 99-335; Sec. 841.508 also issued under section 505 of Pub.
L. 99-335; Subpart J also issued under 5 U.S.C. 8469.
Subpart A--General Provisions
10. In section 841.102, paragraphs (b) through (f) are redesignated
as paragraphs (b)(1) through (b)(5), and paragraph (c) is added to read
as follows:
Sec. 841.102 Regulatory structure for the Federal Employees Retirement
System.
* * * * *
(c)(1) Part 831 of this chapter contains information about the
Civil Service Retirement System.
(2) Part 835 of this chapter contains information about debt
collection from FERS benefits.
(3) Part 837 of this chapter contains information about
reemployment of FERS annuitants.
(4) Part 838 of this chapter contains information about court
orders affecting FERS benefits.
(5) Part 847 of this chapter contains information about elections
under the Civil Service Retirement System or FERS relating to periods
of service with a nonappropriated fund instrumentality under the
jurisdiction of the armed forces.
(6) Parts 294 and 297 of this chapter and Sec. Sec. 831.106 and
841.108 of this chapter contain information about disclosure of
information from OPM records.
(7) Part 581 of this chapter contains information about garnishment
of Government payments including salary and CSRS and FERS retirement
benefits.
(8) Parts 870, 871, 872, and 873 of this chapter contain
information about the Federal Employees Group Life Insurance Program.
(9) Part 890 of this chapter contains information about coverage
under the Federal Employees Health Benefits Program.
(10) Chapter II (parts 1200 through 1299) of this title contains
information about appeals to the Merit Systems Protection Board.
(11) Chapter VI (parts 1600 through 1699) of this title contains
information about the Federal Employees Thrift Savings Plan.
PART 842--FEDERAL EMPLOYEES RETIREMENT SYSTEM--BASIC ANNUITY
11. The authority citation for part 842 is revised to read as
follows:
Authority: 5 U.S.C. 8461(g); Sec. Sec. 842.104 and 842.106 also
issued under 5 U.S.C. 8461(n); Sec. 842.105 also issued under 5
U.S.C. 8402(c)(1) and 7701(b)(2); Sec. Sec. 842.604 and 842.611 also
issued under 5 U.S.C. 8417; Sec. 842.607 also issued under 5 U.S.C
8416 and 8417; Sec. 842.614 also issued under 5 U.S.C. 8419;
Sec. 842.615 also issued under 5 U.S.C. 8418; Sec. 842.703 also
issued under section 7001(a)(4) of the Omnibus Budget Reconciliation
Act of 1990, Pub. L. 101-508; Sec. 842.707 also issued under section
6001 of the Omnibus Budget Reconciliation Act of 1987, Pub. L. 100-
203; Sec. 842.708 also issued under section 4005 of the Omnibus
Budget Reconciliation Act of 1989, Pub. L. 101-239 and section 7001
of the Omnibus Budget Reconciliation Act of 1990, Pub. L. 101-508;
subpart H also issued under 5 U.S.C 1104.
Subpart A--Coverage
12. In section 842.104(f), the reference ``Sec. 842.106'' is
removed and ``part 847 of this chapter'' is added in its place.
Sec. 842.106 [Removed]
13. Section 842.106 is removed.
Subpart C--Credit for Service
14. In section 842.304, paragraph (d) is added to read as follows:
Sec. 842.304 Civilian Service.
* * * * *
(d) Credit for service performed as an employee of a
nonappropriated fund
[[Page 41721]]
instrumentality. (1) Credit for service with a nonappropriated fund
instrumentality is allowed in accordance with an election under part
847 of this chapter.
(2) Service under FERS for which the employee withdrew all
deductions is creditable in accordance with an election made under part
847 of this chapter.
(3) An annuity that includes credit for service with a
nonappropriated fund instrumentality or refunded service under
paragraph (d)(2) of this section is computed under part 847 of this
chapter.
15. Section 842.310 is added to read as follows.
Sec. 842.310 Service not creditable because of an election under part
847 of this chapter.
Any FERS service which becomes creditable under a retirement system
established for nonappropriated fund employees due to an election made
under part 847 of this chapter is not creditable for any purpose under
FERS.
PART 843--FEDERAL EMPLOYEES RETIREMENT SYSTEM--DEATH BENEFITS AND
EMPLOYEE REFUNDS
16. The authority citation for part 843 continues to read as
follows:
Authority: 5 U.S.C. 8461; Secs. 843.205, 843.208, and 843.209
also issued under 5 U.S.C. 8424; Sec. 843.309 also issued under 5
U.S.C. 8442; Sec. 843.406 also issued under 5 U.S.C. 8441.
Subpart B--One-Time Payments
17. Section 843.212 is added to read as follows:
Sec. 843.212 Lump-sum payments which include contributions made to a
retirement system for employees of a nonappropriated fund
instrumentality.
A lump-sum payment will include employee contributions and interest
as provided under subpart G of part 847 of this chapter.
Subpart C--Current and Former Spouse Benefits
18. Section 843.314 is added to read as follows:
Sec. 843.314 Amount of survivor annuity where service includes credit
for service with a nonappropriated fund instrumentality.
The survivor annuity in the case of an employee or survivor whose
service includes service with a nonappropriated fund instrumentality
made creditable by an election under subpart D of part 847 of this
chapter is computed under part 847 of this chapter.
PART 844--FEDERAL EMPLOYEES RETIREMENT SYSTEM--DISABILITY
RETIREMENT
19. The authority citation for part 844 continues to read as
follows:
Authority: 5 U.S.C. 8461.
Subpart A--General Provisions
20. Section 844.106 is added to read as follows:
Sec. 844.106 Disability annuities which include credit for service
with a nonappropriated fund instrumentality.
A disability annuity that includes credit for service with a
nonappropriated fund instrumentality performed after December 31, 1965,
based on an election under subpart D of part 847 of this chapter is
computed under part 847 of this chapter.
21. Part 847 is added to read as follows:
PART 847--ELECTIONS OF RETIREMENT COVERAGE BY CURRENT AND FORMER
EMPLOYEES OF NONAPPROPRIATED FUND INSTRUMENTALITIES
Subpart A--General Provisions
Sec.
847.101 Purpose and scope.
847.102 Regulatory structure.
847.103 Definitions.
847.104 OPM responsibilities.
847.105 Agency responsibilities.
847.106 Agency decision concerning eligibility.
847.107 Appeals to MSPB.
847.108 Computation of time.
Subpart B--Elections to continue retirement coverage after a qualifying
move
847.201 Purpose and scope.
847.202 Definition of qualifying move.
847.203 Elections of CSRS coverage.
847.204 Elections of FERS coverage.
847.205 Elections of NAFI retirement system coverage.
847.206 Time limit for making an election.
847.207 Effective dates of elections.
847.208 Changes of election.
847.209 Collection of CSRS and FERS retirement contributions from
NAFI employers.
847.210 Collection of NAFI retirement contributions from Federal
agencies.
847.211 Death of employee during election opportunity period.
Subpart C--Procedures for Elections Under the Retroactive Provisions
847.301 Purpose and scope.
847.302 Notice of election rights.
847.303 Election forms.
847.304 Time limit.
847.305 Basic records.
Subpart D--Elections of Coverage Under the Retroactive Provisions
General Provisions
847.401 Purpose and scope.
847.402 Definition of qualifying move.
Elections of CSRS or FERS Coverage Based on a Move from CSRS or FERS to
NAFI
847.411 Election requirements.
847.412 Elections of FERS instead of CSRS.
847.413 Effective date of an election.
847.414 Crediting future NAFI service.
847.415 OASDI coverage.
847.416 Credit for refunded FERS service.
Elections to Remain in FERS Coverage with Credit for NAFI Service Based
on a Move from NAFI to FERS
847.421 Election requirements.
847.422 Crediting future NAFI service.
847.423 Credit for refunded FERS service.
Elections to Remain in NAFI Coverage with Credit for FERS Service Based
on a Move from FERS to NAFI
847.431 Election requirements.
847.432 Effect of a refund of FERS deductions.
847.433 Exclusion from FERS for future service.
Elections of NAFI Coverage Based on a Move from NAFI to FERS
847.441 Election requirements.
847.442 Effective date.
847.443 Exclusion from FERS for future service.
Subpart E--Transfers of Contributions Under the Retroactive Provisions
847.501 Purpose and scope.
847.502 Transfers to the CSR Fund.
847.503 Transfers from the CSR Fund.
847.504 Amount of transfer.
847.505 When transfer occurs.
847.506 Procedures for transfer.
847.507 Earnings after transfer.
Subpart F--Additional Employee Costs Under the Retroactive Provisions
847.601 Purpose and scope.
847.602 Present value factors.
847.603 Date of present value and deficiency determinations.
847.604 Methodology for determining deficiency.
847.605 Methodology for determining the present value of annuity
with service credit.
847.606 Methodology for determining the present value of annuity
without service credit--credit not needed for title.
847.607 Methodology for determining the present value of annuity
without service credit--credit needed for title.
847.608 Reduction in annuity due to deficiency.
Appendix A to Subpart F of Part 847--List of Events for Which Inclusion
of NAFI Service May Affect the Rate of Annuity Payable
Subpart G--Computation of Benefits Under the Retroactive Provisions
847.701 Purpose and scope.
847.702 Lump-sum payments and refunds.
847.703 Reductions in annuity.
[[Page 41722]]
847.704 Maximum survivor annuity election.
847.705 Cost-of-living adjustments.
Authority: 5 U.S.C. 8347(a) and 8461(g) and section 1043(b) of
Pub. L. 104-106, Div. A, Title X, Feb. 10, 1996, 110 Stat. 434.
Subpart B also issued under 5 U.S.C. 8347(q) and 8461(n).
Subpart A--General Provisions
Sec. 847.101 Purpose and scope.
(a) This part contains the regulations issued by the Office of
Personnel Management (OPM) to implement the statutory election rights
under the Portability of Benefits for Nonappropriated Fund Employees
Act of 1990 and section 1043 of the National Defense Authorization Act
for Fiscal Year 1996 of certain current and former NAFI employees.
(b) This part establishes--
(1) The eligibility requirements for making an election;
(2) The procedures for making elections;
(3) The methodologies to determine the employee costs associated
with the elections; and
(4) The methodologies to calculate benefits that include credit for
NAFI service based on such elections.
(c)(1) The regulations in this part apply to individuals covered by
CSRS or FERS (and their survivors) and the employers of such
individuals. The Department of Defense and the U.S. Coast Guard will
issue any necessary regulations to implement these election rights to
the extent they affect NAFI retirement systems under their
jurisdiction.
(2) The regulations in this part apply only to CSRS benefits and
FERS basic benefits. They do not apply to benefits under the Thrift
Savings Plan described in subchapter III of chapter 84, of title 5,
United States Code.
Sec. 847.102 Regulatory structure.
(a)(1) Subpart A of this part contains information applicable to
all elections under this part.
(2) Subpart B of this part contains information about prospective
retirement coverage elections under sections 8347(q) and 8461(n) of
title 5, United States Code.
(3) Subpart C of this part contains information about the
procedures applicable to retroactive retirement coverage and
alternative credit elections under section 1043(c)(2) of the National
Defense Authorization Act for Fiscal Year 1996.
(4) Subpart D of this part contains information about the types of
retroactive elections available, the eligibility requirements for each
type of election, the effects of an election on CSRS and FERS coverage
during future employment, and the effective dates of CSRS and FERS
coverage applicable to elections under section 1043(c)(2) of the
National Defense Authorization Act for Fiscal Year 1996.
(5) Subpart E of this part contains information about transferring
retirement contributions in connection with elections under section
1043(c)(2) of the National Defense Authorization Act for Fiscal Year
1996.
(6) Subpart F of this part contains information about determining
the employee costs associated with elections under section 1043(c)(2)
of the National Defense Authorization Act for Fiscal Year 1996.
(7) Subpart G of this part contains information about benefits
indirectly affected by elections under section 1043(c)(2) of the
National Defense Authorization Act for Fiscal Year 1996.
(b) Section 831.305 of this chapter contains information about CSRS
credit for NAFI service performed after June 18, 1952, but before
January 1, 1966.
(c)(1) Part 831 of this chapter contains information about the
Civil Service Retirement System.
(2) Parts 841 through 844 of this chapter contain information about
FERS basic benefits.
(3) Part 837 of this chapter contains information about
reemployment of annuitants.
(4) Parts 870, 871, 872, and 873 of this chapter contain
information about the Federal Employees Group Life Insurance Program.
(5) Part 890 of this chapter contains information about coverage
under the Federal Employees Health Benefits Program.
(6) Chapter II (parts 1200 through 1299) of this title contains
information about appeals to the Merit Systems Protection Board.
(7) Chapter VI (parts 1600 through 1699) of this title contains
information about the Federal Employees Thrift Savings Plan.
Sec. 847.103 Definitions.
(a) Except as provided in paragraph (b) of this section, the
definitions in sections 8331 and 8401 of title 5, United States Code,
apply throughout this part.
(b) In this part--
Actuarial present value means the amount of money (earning interest
at an assumed rate) required at the time of retirement to finance an
annuity that is payable in monthly installments for the annuitant's
lifetime based on mortality rates for annuitants under CSRS and FERS;
and increases each year at an assumed rate of inflation. Interest,
mortality, and inflation rates used in computing the present value are
those used by the Board of Actuaries of the Civil Service Retirement
System for valuation of CSRS and FERS, based on dynamic assumptions.
Age means the number of years an individual has been alive as of
his or her last birthday.
Agency means an executive agency as defined in section 105 of title
5, United States Code; a legislative branch agency; a judicial agency;
and the U.S. Postal Service and Postal Rate Commission.
Annuitant means a retiree or a survivor.
CSRS or FERS means the Civil Service Retirement System or the
Federal Employees Retirement System as described in chapters 83 and 84
of title 5, United States Code.
Deferred annuity date means the earliest date on which a retiree
would be eligible, without credit for the NAFI service, to receive a
deferred annuity based on his or her actual date of separation.
Deficiency means the remainder of the actuarial present value or
crediting NAFI service, after subtracting the amount credited to the
employee from a transfer to the Fund under subpart E of this part, and
earnings under Sec. 847.507 on the transferred amount.
Employee contributions with interest means the dollar amount
deducted from an employee's pay for retirement system participation,
plus any amounts the employee deposited for civilian service credit
under the retirement system, and interest, if any, payable under
Sec. 841.605 of this chapter (for FERS) or under applicable NAFI
retirement system rules.
Fund means the Civil Service Retirement and Disability Fund
established in section 8348 of title 5, United States Code.
Government contributions means the dollar amount which was
contributed on behalf of an employee by his or her employer for
retirement system participation.
Monthly annuity rate means the amount of the monthly single life
annuity under CSRS or FERS (computed without regard to any survivor
benefit reductions computed under sections 8339 (j) or (k), and 8418
through 8420 of title 5, United States Code), before any offset
relating to benefits under the Social Security Act under section 8349
of title 5, United States Code, but after including any reduction for
age (5 U.S.C. 8339(h) or 8415(f)) or for crediting nondeduction
civilian service performed before October 1, 1982 (5 U.S.C.A. 8339(i),
note).
[[Page 41723]]
NAFI means a nonappropriated fund instrumentality described in
section 2105(c) of title 5, United States Code.
Retiree means a former employee who, on the basis of his or her
service meets all the requirements for title to a CSRS or FERS annuity
and files claim therefor.
Survivor means a widow, widower, or former spouse entitled to a
CSRS or FERS annuity based on the service of a deceased employee,
separated employee, or retiree.
Sec. 847.104 OPM responsibilities.
(a) OPM will issue guidance to employing agencies to use when
notifying their employees about the opportunity to make an election
under this part and for counselling employees in connection with the
election.
(b) OPM will issue instructions to agencies concerning the transfer
of funds and recordkeeping in connection with these elections.
Sec. 847.105 Agency responsibilities.
(a) Each agency is responsible for notifying its employees of the
opportunity to make an election under this part and for determining if
an employee who wishes to make an election is qualified to do so, and
for counselling employees in accordance with guidance issued by OPM.
(b) If an agency determines that an employee is not eligible to
make an election under this part, the agency shall issue a final
decision to the employee that meets the requirements of Sec. 847.106,
including notice of the right to appeal under Sec. 847.107.
Sec. 847.106 Agency decision concerning eligibility.
(a) If the agency determines that the employee is not eligible to
make an election under this part, it must issue a final decision to the
employee.
(b) A final decision shall be in writing, shall fully set forth the
findings and conclusions of the agency, and shall contain notice of the
right to request an appeal provided in Sec. 847.107.
Sec. 847.107 Appeals to MSPB.
(a) An individual whose rights or interests under the CSRS or FERS
are affected by a final decision of the employing agency may request
the Merit Systems Protection Board to review such decision in
accordance with procedures prescribed by the Board.
(b) Paragraph (a) of this section is the exclusive remedy for
review of agency decisions concerning eligibility to make an election
under this part. An agency decision must not allow review under any
employee grievance procedures, including those established by chapter
71 of title 5, United States Code, and part 771 of title 5, Code of
Federal Regulations.
Sec. 847.108 Computation of time.
In computing a period of time for filing documents, the day of the
action or event after which the designated period of time begins to run
is not included. The last day of the period is included unless it is a
Saturday, a Sunday, or a legal holiday; in this event, the period runs
until the end of the next day which is not a Saturday, a Sunday, or a
legal holiday.
Subpart B--Elections to continue retirement coverage after a
qualifying move
Sec. 847.201 Purpose and scope.
This subpart contains OPM's regulations on the procedures,
eligibility requirements, time limits and effects of elections under
sections 8347(q) and 8461(n) of title 5, United States Code.
Sec. 847.202 Definition of qualifying move.
(a) A qualifying move occurring on or after August 10, 1996, which
would allow an opportunity to elect to continue retirement coverage
under CSRS and FERS must meet all the following criteria:
(1) The employee must not have had a prior opportunity to elect to
continue CSRS or FERS retirement coverage;
(2) The employee must have been vested in CSRS or FERS prior to the
move to a NAFI;
(3) The employee must have moved from a position covered by CSRS or
FERS to a retirement-covered position in a NAFI; and
(4) The employee must begin employment in a retirement-covered
position in a NAFI no later than 1 year after separation from CSRS- or
FERS-covered employment.
(b) A qualifying move occurring on or after August 10, 1996, which
would allow an opportunity to elect to continue retirement coverage
under a NAFI retirement system must meet all the following criteria:
(1) The employee must not have had a prior opportunity to elect to
continue NAFI retirement system coverage;
(2) The employee must have been a vested participant in the NAFI
retirement system (as the term ``vested participant'' is defined by
that retirement system) prior to the move to a CSRS- or FERS-covered
position;
(3) The employee must have moved from a NAFI to a civil service
position subject to CSRS or FERS coverage; and
(4) The employee must be appointed to a CSRS- or FERS-covered
position no later than 1 year after separation from retirement-covered
NAFI employment.
(c) A qualifying move occurring between January 1, 1987, and August
9, 1996, which would allow an opportunity to elect to continue
retirement coverage under CSRS or FERS must meet all the following
criteria:
(1) The employee must not have had a prior opportunity to elect to
continue CSRS or FERS retirement coverage;
(2) The employee must have been vested in CSRS or FERS prior to the
move to a NAFI;
(3) The employee must have moved from a CSRS- or FERS-covered
position within the Department of Defense or the U.S. Coast Guard to a
retirement covered position with a NAFI; and
(4) The employee must begin employment in a retirement-covered
position in a NAFI no later than 4 days after separation from CSRS- or
FERS-covered employment.
(d) A qualifying move occurring between January 1, 1987, and August
9, 1996, which would allow an opportunity to elect to continue
retirement coverage under a NAFI retirement system must meet all the
following criteria:
(1) The employee must not have had a prior opportunity to elect to
continue NAFI retirement system coverage;
(2) The employee must have been a vested participant in the NAFI
retirement system (as the term ``vested participant'' is defined by
that retirement system) prior to the move to the civil service;
(3) The employee must have moved from a NAFI to a CSRS- or FERS-
covered position within the Department of Defense or the U.S. Coast
Guard; and
(4) The employee must be appointed to a CSRS- or FERS-covered
position no later than 4 days after separation from retirement-covered
NAFI employment.
(e) A qualifying move under paragraphs (a) and (b) of this section
is considered to occur on the date the individual enters into the new
position, not at the time of separation from the prior position.
(f) A retroactive election opportunity under subpart D of this part
(pertaining to elections of CSRS, FERS, or NAFI retirement coverage) is
not considered a prior opportunity to elect retirement coverage under
this section.
Sec. 847.203 Elections of CSRS coverage.
(a) An employee who completes a qualifying move (under
Sec. 847.202(a) or (c)) from a CSRS-covered position to a NAFI may
elect to continue CSRS coverage.
(b) An employee who elects CSRS coverage under this section will be
[[Page 41724]]
covered by CSRS (or FERS, if the employee subsequently transfers to
FERS under part 846 of this chapter) during all periods of future
service not excluded from coverage by CSRS, including any periods of
service with a NAFI.
(c) An employee who makes an election under paragraph (a) of this
section and who has had a break in service exceeding 3 days is eligible
to elect FERS under part 846 of this chapter.
Sec. 847.204 Elections of FERS coverage.
(a) An employee who completes a qualifying move under
Sec. 847.202(a) and (c) from a FERS-covered position to a NAFI may
elect to continue FERS coverage.
(b) An employee who elects FERS coverage under this section will be
covered by FERS during all periods of future service not excluded from
coverage by FERS, including any periods of service with a NAFI.
Sec. 847.205 Elections of NAFI retirement system coverage.
(a) An employee who completes a qualifying move under
Sec. 847.202(b) and (d) from a NAFI position to a CSRS- or FERS-covered
position may elect to continue coverage under the NAFI retirement
system.
(b) An employee who elects NAFI retirement system coverage under
this section is excluded from coverage under CSRS or FERS during that
and all subsequent periods of employment, including any periods of
service as a reemployed annuitant.
Sec. 847.206 Time limit for making an election.
(a) Except as provided in paragraph (b) of this section, the time
limit for making the election is 30 days after the qualifying move.
(b) Agencies may waive the time limit if it finds that the employee
was not timely given the opportunity to make the election, or, despite
due diligence, was prevented by circumstances beyond his or her control
from making an election within the time limit.
(c) An agency decision to waive the time limit must comply with the
provisions of Sec. 847.106, including notification of the right of
appeal under Sec. 847.107.
FR Doc. 96-20333 Elections of Retirement Coverage by Current and Former Nonappropriated Fund Employees
Sec. 847.207 Effective dates of elections.
Elections under this subpart are effective on the date of the
qualifying move.
Sec. 847.208 Changes of election.
An election under this subpart is irrevocable when received by the
employing agency.
Sec. 847.209 Collection of CSRS and FERS retirement contributions from
NAFI employers.
CSRS and FERS salary deductions and contributions for NAFI
employees who have elected CSRS or FERS coverage under this subpart
must be made and submitted to OPM in the manner currently prescribed
for the transmission of withholdings and contributions.
Sec. 847.210 Collection of NAFI retirement contributions from Federal
agencies.
The Department of Defense and the U.S. Coast Guard will establish
procedures for agencies to withhold and submit retirement contributions
to the retirement systems for employees who elect to be covered by a
retirement system for NAFI employees under this subpart.
Sec. 847.211 Death of employee during election opportunity period.
(a) When an employee eligible to make an election under this
subpart dies before expiration of the time limit under Sec. 847.206,
the employee is deemed to have made the election and to be covered, at
time of death, by the retirement system that covered the employee
before the qualifying move.
(b) The deemed election under paragraph (a) of this section does
not apply if the eligible survivor elects to have it not apply.
(c) An election by the survivor to decline the deemed election must
be in writing and filed no later than 30 days after the employing
agency notifies the survivor of the right to decline the deemed
election.
Subpart C--Procedures for Elections Under the Retroactive Provisions
Sec. 847.301 Purpose and scope.
This subpart establishes the procedures applicable to elections
section 1043(c)(2) of the National Defense Authorization Act for Fiscal
Year 1996.
Sec. 847.302 Notice of election rights.
The employing agency must provide notice to all eligible employees
of the opportunity to elect to continue retirement coverage under
subpart D of this part. Failure to provide notice to the employee is
justification for waiving the time limit under Sec. 847.304.
Sec. 847.303 Election forms.
(a) Eligible employees may make an election under subpart D of this
part on a form prescribed by OPM and filed with the employing agency.
(b) For elections of retirement coverage under subpart D of this
part, the election form will require that the employee obtain a
certification from his or her previous retirement system showing dates
of service, amounts transferable from the previous retirement system to
the elected retirement system under subpart E of this part, and that
the employee became vested in the retirement system. If an employee was
covered by more than one retirement system, he or she must obtain
certification from each retirement system.
Sec. 847.304 Time limit.
(a) Except as provided in paragraph (b) of this section, the time
limit for making an election under subpart D of this part is August 11,
1997.
(b) Because Public Law 104-106 requires that eligible employees
receive timely notice of the opportunity to make the election under
subpart D of this part, and that employees must be counselled
concerning the election opportunity, the employing agency must waive
the time limit in paragraph (a) of this section in the event that an
employee did not receive such notice or counselling.
Sec. 847.305 Basic records.
(a) Agencies must establish and maintain retirement accounts for
employees subject to CSRS or FERS in the manner prescribed by OPM.
(b) The individual retirement record (Standard Form 2806 for CSRS,
or Standard Form 3100 for FERS) is the basic record for action on all
claims for annuity or refund, and those pertaining to deceased
employees and annuitants.
Subpart D--Elections of Coverage Under the Retroactive Provisions
General Provisions
Sec. 847.401 Purpose and scope.
This subpart contains OPM's regulations concerning the types of
elections available, the eligibility requirements for each type of
election, the effects of an election on CSRS and FERS coverage during
future employment, and the effective dates of CSRS and FERS coverage
applicable to retroactive retirement coverage and credit elections
under section 1043(c)(2) of the National Defense Authorization Act for
Fiscal Year 1996.
Sec. 847.402 Definition of qualifying move.
(a) A qualifying move occurring after December 31, 1965, and before
August 10, 1996, which would allow an employee the opportunity to elect
to
[[Page 41725]]
continue retirement coverage under CSRS or FERS retroactive to the date
of the move must meet all the following criteria:
(1)(i) For moves occurring before February 10, 1996, the employee
must not have had a prior opportunity to elect to continue CSRS, FERS,
or NAFI retirement coverage under Sec. 847.202 (c) or (d);
(ii) For moves occurring on or after February 10, 1996, the
employee must not have made an election under Sec. 847.202 (c) or (d);
(2) The employee must have been vested in CSRS or FERS prior to the
move to a NAFI;
(3) The employee must have moved from a position covered by CSRS or
FERS to a retirement-covered position in a NAFI;
(4) The employee must have begun employment in a retirement-covered
position in a NAFI no later than 1 year after separation from CSRS- or
FERS-covered employment; and
(5) The employee must, since moving to the NAFI position, have
continuously participated in a retirement system established for NAFI
employees, disregarding any break in service of not more than 3 days.
(b) A qualifying move occurring after December 31, 1965, and before
August 10, 1996, which would allow an employee the opportunity to elect
to continue retirement coverage under a NAFI retirement system
retroactive to the date of the qualifying move must meet all the
following criteria:
(1)(i) For moves occurring before February 10, 1996, the employee
must not have had a prior opportunity to elect to continue CSRS, FERS,
or NAFI retirement coverage under Sec. 847.202(c) or (d);
(ii) For moves occurring on or after February 10, 1996, the
employee must not have made an election under Sec. 847.202(c) or (d);
(2) The employee must have been a vested participant in the NAFI
retirement system (as the term ``vested participant'' is defined by
that retirement system) prior to the move to a FERS-covered position;
(3) The employee must have moved from a NAFI to a civil service
position subject to FERS coverage or CSRS/SS coverage, as defined in
Sec. 846.102 of this chapter, followed by the employee's automatic
conversion to FERS coverage;
(4) The employee must have been appointed to a FERS-covered
position no later than 1 year after separation from retirement-covered
NAFI employment; and
(5) The employee must, since moving to the FERS position, have been
continuously covered by FERS, disregarding any break in service of not
more than 3 days.
(c) A move from a NAFI to CSRS, including CSRS/SS as defined under
Sec. 846.102 of this chapter followed by an election of FERS coverage
under Sec. 846.201 of this chapter, is not a qualifying move for an
election of retirement coverage under Sec. 847.431 (pertaining to
elections of NAFI service credit for FERS service) and Sec. 847.441
(pertaining to elections of NAFI retirement coverage).
(d) A qualifying move under paragraphs (a) and (b) of this section
is considered to occur on the date the individual entered into the new
position, not at the time of separation from the prior position.
ELECTIONS OF CSRS OR FERS COVERAGE BASED ON A MOVE FROM CSRS OR FERS TO
NAFI
Sec. 847.411 Election requirements.
(a) An employee who completed a qualifying move under
Sec. 847.402(a) may elect to be covered by CSRS, if the qualifying move
was from a CSRS-covered position, or FERS, if the qualifying move was
from a FERS-covered position, for all Federal service following the
qualifying move. Employees who elect to be covered by CSRS will be
prospectively covered by the CSRS Offset provisions set out in subpart
J of part 831 of this chapter.
(b) A survivor eligible for benefits under the NAFI retirement
system which covered an employee at the time of death may make an
election under this section if the employee was otherwise eligible to
make an election, but died before expiration of the time limit under
Sec. 847.304.
Sec. 847.412 Elections of FERS instead of CSRS.
(a) An employee who elects CSRS coverage under Sec. 847.411(a) may,
during the 6-month period beginning on the date the election under
Sec. 847.411(a) is filed with the employing agency, elect to become
subject to FERS.
(b) An election of FERS under this section is subject to the
provisions of part 846 of this subchapter and takes effect on the first
day of the first pay period after the employing agency receives the
election.
Sec. 847.413 Effective date of an election.
(a) An election under Sec. 847.411 is effective on the first day of
NAFI employment subject to retirement coverage following CSRS- or FERS-
covered employment.
(b) Deductions and contributions for CSRS or FERS coverage under
Sec. 831.111 or Sec. 841.501 of this chapter begin effective on the
first day of the next pay period after the agency receives the
employee's election under Sec. 847.411(a).
(c) An election under Sec. 847.411 is irrevocable when received by
the employing agency.
(d) NAFI service performed on and after the effective date of an
election under Sec. 847.411 becomes fully creditable for retirement
eligibility and computation of the annuity benefit, including
computation of average pay.
847.414 Crediting future NAFI service.
An employee who elects CSRS or FERS coverage under Sec. 847.411
will be covered by CSRS or FERS during all periods of future service
not excluded from coverage by CSRS or FERS, including any periods of
service with a NAFI and service as a reemployed annuitant.
Sec. 847.415 OASDI coverage.
An employee who elects CSRS coverage under Sec. 847.411 is
prospectively subject to both the Old Age, Survivors, and Disability
Insurance (OASDI) tax and CSRS as described in subpart J of part 831 of
this chapter, known as CSRS Offset, effective from the first day of the
next pay period after the employing agency receives the employee's
election under Sec. 847.411(a).
Sec. 847.416 Credit for refunded FERS service.
(a) An employee or survivor who elects FERS coverage under
Sec. 847.411 will receive credit in the FERS annuity for the service
represented by any refund of the unexpended balance under Sec. 843.202
of this chapter.
(b) The amount of the refund, increased by interest as computed
under Sec. 842.305(e) of this chapter, will be added to the deficiency
computed under Sec. 847.604 and collected in accordance with the
provisions of Sec. 847.609 (pertaining to a monthly reduction in the
annuity benefit).
ELECTIONS TO REMAIN IN FERS COVERAGE WITH CREDIT FOR NAFI SERVICE BASED
ON A MOVE FROM NAFI TO FERS
Sec. 847.421 Election requirements.
(a)(1)(i) A FERS employee who completed a qualifying move under
Sec. 847.402(b) may, instead of the election provided by Sec. 847.441
(pertaining to elections of NAFI retirement coverage), elect to remain
subject to FERS for all subsequent periods of service.
(ii) Prior service under a NAFI retirement system becomes
creditable under FERS rules without regard to whether a refund of
contributions for
[[Page 41726]]
such period has been paid by the NAFI retirement system.
(2) A FERS employee who has had a previous opportunity to elect
retirement coverage under Sec. 847.202(c) and (d) is not excluded from
making this election.
(b) A survivor may make an election under paragraph (a) of this
section if the employee was otherwise eligible to elect FERS coverage
and FERS service credit, but died before expiration of the time limit
under Sec. 847.304.
(c) NAFI service made creditable under FERS by an election under
this section become creditable for FERS retirement eligibility and FERS
annuity computation, including average pay, upon receipt of the
election by the employing agency.
(d) A election under this section is irrevocable when received by
the employing agency.
Sec. 847.422 Crediting future NAFI service.
An employee who elects to remain in FERS coverage with credit for
NAFI service under Sec. 847.421(a) will be covered by FERS during all
periods of future service not excluded from coverage by FERS, including
any periods of service with a NAFI and service as a reemployed
annuitant.
Sec. 847.423 Credit for refunded FERS service.
(a) An employee or survivor who elects FERS coverage with credit
for NAFI service under Sec. 847.421 will receive credit in the FERS
annuity for the service represented by any refund of the unexpended
balance under Sec. 843.202 of this chapter.
(b) The amount of the refund, increased by interest as computed
under Sec. 842.305(e) of this chapter, will be added to the deficiency
computed under Sec. 847.604 and collected in accordance with the
provisions of Sec. 847.609 (pertaining to a monthly reduction in the
annuity benefit).
ELECTIONS TO REMAIN IN NAFI COVERAGE WITH CREDIT FOR FERS SERVICE BASED
ON A MOVE FROM FERS TO NAFI
Sec. 847.431 Election requirements.
(a)(1)(i) A NAFI employee who completed a qualifying move from FERS
under Sec. 847.402(a) may, instead of the election provided by
Sec. 847.411 (pertaining to elections of CSRS and FERS coverage), elect
to remain subject to the current NAFI retirement system for all
subsequent periods of service.
(ii) Prior service under FERS becomes credible under the NAFI
retirement system rules.
(2) A NAFI employee who has had a previous opportunity to elect
retirement coverage under Sec. 847.202(c) and (d) is not excluded from
making this election.
(b) A survivor may make an election under paragraph (a) of this
section if the employee was otherwise eligible, but died before
expiration of the time limit under Sec. 847.304.
(c) An election under this section is irrevocable when received by
the employing agency.
Sec. 847.432 Effect of a refund of FERS deductions.
OPM will inform the NAFI retirement system of the amount of service
performed under FERS, without regard to whether a refund of
contributions for such period has been paid under FERS.
Sec. 847.433 Exclusion from FERS for future service.
(a) An employee who elects NAFI retirement system coverage with
credit for FERS service under Sec. 847.431(a) is excluded from coverage
under FERS during that and all subsequent periods of employment,
including any periods of service as a reemployed annuitant.
(b) FERS service which becomes creditable in a NAFI retirement
benefit based on an election under Sec. 847.431 is not creditable for
any purpose under FERS.
ELECTIONS OF NAFI COVERAGE BASED ON A MOVE FROM NAFI TO FERS
Sec. 847.441 Election requirements.
(a) An employee who completed a qualifying move under
Sec. 847.402(b) may elect to be covered by a NAFI retirement system for
all Federal service following the qualifying move.
(b) A survivor eligible for benefits under FERS may make an
election under this section if the employee was otherwise eligible to
make an election, but died before expiration of the time limit under
Sec. 847.304.
Sec. 847.442 Effective date.
(a) An election under Sec. 847.441 is effective on the first day of
FERS-covered employment following NAFI employment subject to retirement
coverage.
(b) Deductions and contributions for NAFI retirement system
coverage begin effective on the first day of the next pay period after
the agency receives the employee's election under Sec. 847.441(a).
(c) An election under Sec. 847.441 is irrevocable when received by
the employing agency.
Sec. 847.443 Exclusion from FERS for future service.
An employee who elects NAFI retirement system coverage with credit
for FERS service under Sec. 847.441(a) is excluded from coverage under
FERS during that and all subsequent periods of employment, including
any periods of service as a reemployed annuitant.
Subpart E--Transfers of Contributions Under the Retroactive
Provisions
Sec. 847.501 Purpose and scope.
This subpart regulates transferring retirement contributions and
crediting those contributions to offset the employee costs in
connection with elections section 1043(c)(2) of the National Defense
Authorization Act for Fiscal Year 1996.
Sec. 847.502 Transfers to the CSR Fund.
For elections of CSRS or FERS coverage under Sec. 847.411 or FERS
coverage and service credit under Sec. 847.421, the amount under
Sec. 847.504 will be transferred to the Fund using the procedures
established under Sec. 847.506.
Sec. 847.503 Transfers from the CSR Fund.
For elections of NAFI retirement system coverage under
Sec. 847.441, the amount under Sec. 847.504 will be transferred from
the Fund using the procedures established under Sec. 847.506.
Sec. 847.504 Amount of transfer.
(a) All transfers must include employee contributions with
interest, if not previously refunded, and Government contributions for
civilian service which becomes creditable under the elected retirement
system due to an election under Secs. 847.411, 847.421, and 846.441.
(b) If the employee has withdrawn his or her contributions to the
retirement system, the amount required by paragraph (a) of this
section, less the amount refunded, will be transferred.
Sec. 847.505 When transfer occurs.
(a) OPM, the Department of Defense, and the U.S. Coast Guard will
transfer the amount specified in Sec. 847.504 as soon as practicable
after receipt of an election of retirement coverage under subpart D of
this part.
(b) The transfer of contributions may not be delayed until the
employee retires or separates from service.
Sec. 847.506 Procedures for transfer.
OPM, the Department of Defense, and the U.S. Coast Guard will
jointly determine the procedure for transfer of contributions.
Sec. 847.507 Earnings after transfer.
Amounts transferred to the Fund under Sec. 847.502 that are used to
determine the deficiency under Sec. 847.604 accrue interest at the rate
[[Page 41727]]
prescribed under Sec. 841.603 of this chapter from the date of receipt
in OPM through the date determined under Sec. 847.603 (pertaining to
the date of calculation of any deficiency).
Subpart F--Additional Employee Costs Under the Retroactive
Provisions
Sec. 847.601 Purpose and scope.
(a) The purpose of this subpart is to establish the methodology
that OPM will use to determine--
(1) The cost of an employee's election under Sec. 847.411 or
Sec. 847.421; and
(2) The amount by which annuity payments may be affected as a
result of the election.
(b) This subpart applies only to CSRS and FERS benefits. The
Departments of Defense, and the U.S. Coast Guard will issue regulations
providing methodologies for NAFI's under their jurisdictions.
Sec. 847.602 Present value factors.
(a) OPM publishes the following tables (available at personnel and
payroll offices):
(1) One table of present value factors for all CSRS annuities;
(2) One table of present value factors for FERS annuities that do
not receive cost-of-living adjustments before the retiree attains age
62; and
(3) One table of present value factors for FERS annuities that
receives cost-of-living adjustments before the retiree attains age 62.
(b)(1) Each present value factor will equal the amount of money
(earning interest at an assumed rate) required at the date of
computation to fund an annuity that starts out at the rate of $1 a
month and is payable in monthly installments for the annuitant's
lifetime based on mortality rates for annuitants paid from the Fund;
and increases each year, assuming a certain rate of inflation.
(2) Interest, mortality, and inflation rates used in computing the
present value are those used by the Board of Actuaries of the Civil
Service Retirement System for valuation of CSRS and FERS, based on
dynamic assumptions.
(3) The present value factors are unisex factors obtained by
averaging distinct present value factors, which take into account
mortality for retirees and survivors under CSRS and FERS.
(c)(1) When OPM publishes in the Federal Register notice of normal
cost percentages under Sec. 841.407 of this chapter, it will also
publish the CSRS and FERS tables of present value factors for use for
this part.
(2) The present value factors will be based on the assumptions used
to compute the normal cost percentages.
(3) Changes in the tables of present value factors will be
effective on the first day of the month in which the changes in the
normal cost percentages become effective.
Sec. 847.603 Date of present value and deficiency determinations.
(a) For determining the deficiency under Sec. 847.604, OPM will
determine, under Secs. 847.605 through 847.607, the present values of
future retirement benefits (with and without credit for the NAFI
service) as of the first date on which inclusion of credit for the NAFI
service will affect the rate of annuity payable.
(b) Appendix A to this subpart contains a table in which the left
column is a list of events for which inclusion of credit for the NAFI
service will affect the rate of annuity payable and the right column
indicates the date on which the deficiency will be determined.
Sec. 847.604 Methodology for determining deficiency.
(a) When an event listed in the left column of the table in
Appendix A to this subpart occurs, OPM will compute the deficiency, as
follows:
(1) As of the date of computation under Sec. 847.603, OPM will
determine--
(i) The present value of the annuity including credit for the NAFI
service under Sec. 847.605;
(ii) The present value of the annuity without credit for the NAFI
service under Sec. 847.606 or Sec. 847.607, as applicable; and
(iii) The amount credited to the employee from a transfer to the
Fund under subpart E of this part including earnings under
Sec. 847.507.
(2) OPM will add the amount determined under paragraphs (a)(1)(ii)
and (iii) of this section and subtract that sum from the amount
determined under paragraph (a)(1)(i) of this section.
(b) If the amount determined under paragraph (a)(2) of this section
is greater than zero, the deficiency is equal to that amount.
(c) If no event listed in the left column of the table in Appendix
A to this subpart occurs--that is, the additional service credit does
not cause an increase in an employee annuity or a survivor annuity
actually paid--or, if the amount determined under paragraph (a)(2) of
this section is less than or equal to zero, the deficiency equals zero.
Sec. 847.605 Methodology for determining the present value of annuity
with service credit.
(a) OPM will determine the present value of the annuity including
service credit for NAFI service under paragraph (b) or (c) of this
section.
(b) In cases in which the annuity is payable to a retiree, the
present value under paragraph (a) of this section equals the monthly
annuity rate including credit for the NAFI service as of the date of
computation under Sec. 847.603 times the present value factor for the
retiree's age on that date.
(c) In cases in which the annuity is payable to a survivor, the
present value under paragraph (a) of this section equals the monthly
annuity rate including credit for the NAFI service as of the date of
computation under Sec. 847.603 times the present value factor for the
survivor's age on that date.
Sec. 847.606 Methodology for determining the present value of annuity
without service credit--credit not needed for title.
(a) If credit for the NAFI service is not necessary to provide
title to an annuity payable on the date of computation under
Sec. 847.603, OPM will determine the present value of the annuity
without credit for the NAFI service under paragraph (b) or (c) of this
section.
(b) In cases in which the annuity is payable to a retiree, the
present value under paragraph (a) of this section equals the monthly
annuity rate without credit for the NAFI service as of the date of
computation under Sec. 847.603 times the present value factor for the
retiree's age on that date.
(c) In cases in which the annuity is payable to a survivor, the
present value under paragraph (a) of this section equals the monthly
annuity rate including credit for the NAFI service as of the date of
computation under Sec. 847.603 times the present value factor for the
survivor's age on that date.
Sec. 847.607 Methodology for determining the present value of annuity
without service credit--credit needed for title.
(a) If credit for the NAFI service is necessary to provide title to
an annuity payable on the date of computation under Sec. 847.603, OPM
will determine the present value of the annuity without credit for the
NAFI service under paragraph (b) or (c) of this section.
(b)(1) In cases in which the annuity is payable to a retiree, the
present value under paragraph (a) of this section equals the present
value of the deferred annuity without credit for the NAFI service as of
the deferred annuity date discounted for interest to that date
determined under Sec. 847.603.
(2) The present value of the deferred annuity without credit for
the NAFI
[[Page 41728]]
service as of the deferred annuity date equals the retiree's monthly
annuity rate without credit for the NAFI service as of the deferred
annuity date times the present value factor for the retiree's age on
that date.
(3) The present value under paragraph (b)(2) of this section is
discounted for interest by dividing that amount by a factor equal to
the value of exponential function in which--
(i) The base is one plus the assumed interest rate under
Sec. 841.405 of this chapter on the date determined under Sec. 847.603,
and
(ii) The exponent is one-twelfth of the number of months between
the date determined under Sec. 847.603 and the deferred annuity date.
(c) In cases in which the annuity is payable to a survivor, the
present value under paragraph (a) of this section equals zero, that is,
no survivor annuity would ever become payable without credit for the
NAFI service.
Sec. 847.608 Reduction in annuity due to deficiency.
Any annuity payable in the case of an employee who has made an
election under subpart D of this part will include credit for the NAFI
service. The monthly annuity rate on the date determined under
Sec. 847.603 will be permanently reduced by an amount equal to the
amount of any deficiency divided by the present value factor for the
annuitant's age on that date.
Appendix A to Subpart F of Part 847--List of Events for Which
Inclusion of NAFI Service May Affect the Rate of Annuity Payable
------------------------------------------------------------------------
Date deficiency will be
Type of event determined
------------------------------------------------------------------------
CSRS or FERS nondisability retirement..... Commencing date of annuity.
CSRS disability retirement................ Commencing date of
annuity.\1\
FERS disability retirement................ First day of month following
62nd birthday.\2\
CSRS death in service..................... Commencing date of survivor
annuity.\3\
FERS death in service..................... Commencing date of survivor
annuity.
FERS death of disability annuitant prior Commencing date of survivor
to age 62. annuity.
FERS death of separated employee.......... Commencing date of survivor
annuity.
CSRS or FERS redetermination of annuity... Commencing date of
redetermined annuity
benefit.
------------------------------------------------------------------------
\1\ Disability annuity with and without credit for NAFI service must be
computed. If annuity payable under each computation is identical due
to guaranteed minimum annuity, then deficiency is zero.
\2\ Generally, the date the deficiency is determined will be the
disability retiree's 62nd birthday. However, if an annuity benefit
based on the retiree's actual years of service and salary becomes
payable prior to age 62, the deficiency is computed at that time.
\3\ Deficiency amount could be zero if survivor is eligible for the
guaranteed minimum annuity amount under both computations.
Subpart G--Computation of Benefits Under the Retroactive Provisions
Sec. 847.701 Purpose and scope.
This subpart establishes the methodology that OPM will use to
determine benefit payable in connection with an election made under
subpart D of this part.
Sec. 847.702 Lump-sum payments and refunds.
(a) Employee contributions with interest which are transferred to
the Fund under subpart E of this part are included in any lump-sum
credit or unexpended balance payable to the employee or the employee's
survivors under subpart T of part 831 of this chapter or under part 843
of this chapter.
(b) Government contributions which are transferred to the Fund
under subpart E of this part are not included in any lump-sum credit or
unexpended balance and are not payable to the employee or the
employee's survivors.
Sec. 847.703 Reductions in annuity.
The CSRS or FERS basic annuity of an employee or survivor who has
elected retirement coverage under subpart D of this part is reduced in
the following order--
(a) For age, if applicable, as provided under sections 8339(h) and
8415(f) of title 5, United States Code.
(b) For noncontributory service performed before October 1, 1982,
if applicable, as provided under 5 U.S.C.A. 8339(i), note.
(c) For deficiency, as determined under subpart F of this part.
(d) To provide a survivor annuity to a spouse or former spouse, if
applicable, as provided under sections 8339(j)(4) and 8419(a) of title
5, United States Code.
(e) Any other reductions which may apply.
Sec. 847.704 Maximum survivor annuity election.
The amount of the employee's benefit after reduction for any
deficiency under Sec. 847.608 is--
(a) For CSRS, the maximum amount that may be designated as the
survivor base under section 8339 (j) or (k) to title 5, United States
Code;
(b) For FERS, the employee annuity (for survivor benefit purposes)
under sections 8416 through 8420 of title 5, United States Code.
Sec. 847.705 Cost-of-living adjustments.
Cost-of-living adjustments are applied to the rate payable to the
retiree or survivor, including the reduction for any deficiency
described in Sec. 847.608.
[FR Doc. 96-20333 Filed 8-8-96; 8:45 am]
BILLING CODE 6325-01-M
Complete official Federal Register PDF
FR Doc. 96-20332 Publicizing of Broker Association Memberships
[Federal Register Volume 61, Number 155 (Friday, August 9, 1996)]
[Rules and Regulations]
[Pages 41496-41498]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-20332]
=======================================================================
-----------------------------------------------------------------------
COMMODITY FUTURES TRADING COMMISSION
17 CFR Part 1
Publicizing of Broker Association Memberships
AGENCY: Commodity Futures Trading Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Commodity Futures Trading Commission (``Commission'') has
adopted a new Regulation 156.4 which requires that contract markets
make more readily available to the public the identity of members of
broker associations at their respective exchanges.
EFFECTIVE DATE: October 8, 1996.
FOR FURTHER INFORMATION CONTACT: David P. Van Wagner, Special Counsel,
Division of Trading and Markets, Commodity Futures Trading Commission,
Three Lafayette Centre, 1155 21st Street, NW., Washington, DC 20581.
Telephone: (202) 418-5481.
SUPPLEMENTARY INFORMATION:
I. Introduction
On May 3, 1996, the Commission published for public comment in the
Federal Register a proposed new Regulation 156.4 which would require
that contract markets make more readily available to the public the
identity of members of broker associations at their respective
exchanges.\1\
---------------------------------------------------------------------------
\1\ 61 FR 19869 (May 3, 1996). In that same Federal Register
release, the Commission also published for public comment a proposed
new Regulation 1.69 which would prohibit members of self-regulatory
organization governing boards, disciplinary committees and oversight
panels from deliberating and voting on certain matters where the
member had either a relationship with the matter's named party in
interest or a financial interest in the matter's outcome. Proposed
Regulation 1.69 would implement the statutory directives of Section
5a(a)(17) of the Commodity Exchange Act (``CEA'') as it was amended
by Section 217 of the Futures Trading Practices Act of 1992
(``FTPA''). Pub. L. No. 102-546, Sec. 217, 106 Stat. 3590 (1992).
The Commission will consider that rulemaking at a future date.
---------------------------------------------------------------------------
II. Comments Received
The Commission received five letters from commenters which
addressed the proposed rulemaking regarding the
[[Page 41497]]
publicizing of the identities of broker association members. The
comments were submitted by three futures exchanges (the Coffee, Sugar &
Cocoa Exchange, Inc. (``CSC''), the New York Cotton Exchange (``NYCE'')
and the New York Mercantile Exchange (``NYMEX'')); a futures trade
association (the Future Industry Association (``FIA'')); and, a
business and financial news publisher (Dow Jones & Company, Inc. (``Dow
Jones'')).
The Commission has carefully reviewed the comments received and has
decided to issue Regulation 156.4 as final with slight modifications
from the rule as originally proposed. The comments and an explanation
of the Commission's decision to adopt Regulation 156.4 are discussed
below.
III. Regulation 156.4
A. Proposed Rulemaking
As proposed, Regulation 156.4 required contract markets to post
``in a location accessible to the public'' a list of all registered
broker associations at the contract market which identifies for each
such association the name of each person who is a member or otherwise
has a direct beneficial interest in the association.\2\ In discussing
what type of location would be ``accessible to the public,'' the
Commission explained in the preamble of the proposed rulemaking's
Federal Register release that a posting should be made in a place
designed to ensure its availability to the general public ``such as an
exchange's lobby or other common access area.''\3\
---------------------------------------------------------------------------
\2\ The Commission adopted its part 156 Regulations in response
to Section 102 of the FTPA which amended Section 4j(d) of the CEA to
prohibit the knowing execution of a customer order by a floor broker
opposite any broker or trader with whom the floor broker has a
specified business relationship, unless the Commission adopted rules
requiring exchange procedures and standards designed to prevent
violations of the CEA attributable to broker association trading.
The Part 156 Regulations establish requirements for contract market
identification and surveillance of broker associations. See 58 FR
31167 (June 1, 1993) for a full description of the Commission's Part
156 Regulations.
\3\ 61 FR 19869, 19876.
---------------------------------------------------------------------------
The Commission emphasized in its release, that the information
which proposed Regulation 156.4 would require contract markets to post
already was being maintained by the contract markets pursuant to
Commission Regulation 156.2(b) which requires the members of such
associations to be registered.\4\
---------------------------------------------------------------------------
\4\ Id. Among other things, Commission Regulation 156.2(b)
requires that each contract market maintain registration records for
each of its broker associations indicating the ``name of each person
who is a member or otherwise has a direct beneficial interest in the
association.''
---------------------------------------------------------------------------
B. Comments Received
The CSC commented that under the proposed rulemaking most of the
trading public would not have access to a broker association membership
list posted in the lobby or common access area of an exchange. The CSC
further indicated its belief that floor traders would be the only group
of market users who would have ready access to such a list, but that
they already would be aware of such information because of their
presence on the trading floor. Accordingly, the CSC concluded that a
broker association membership list only would serve to ``stigmatize''
broker association members by implying that membership in a broker
association was ``relevant to the quality of the execution that (could)
be expected.''
NYMEX commented that it did not believe that a posting requirement
would provide any measurable benefit to the public. NYMEX indicated
that its offices and trading floor are not currently accessible to the
public and that it did not believe that members of the public would
visit NYMEX for the purpose of reviewing such a posting.
The NYCE did not address the merits of the proposed rulemaking
directly, but instead suggested that the Commission defer consideration
of the proposal until the Division of Trading and Markets concluded and
publicized its current rule enforcement review of broker association
oversight at the various futures exchanges.
FIA generally supported the Commission's proposal but commented
that if broker association membership information was made available
upon request, it might not be necessary to require that such
information be physically posted.
Dow Jones commented that the Commission's proposal would enhance
each exchange's ability to enforce its broker association trading
restrictions because if members of the public had knowledge of broker
association memberships they would be able to alert the exchanges about
possible violative conduct involving such associations. Dow Jones also
commented that the publicizing of broker association memberships would
enable the trading public to choose for themselves whether to execute
futures transactions through broker association members.
Dow Jones indicated its belief that the information from broker
association membership lists would enable it to provide more
information to its readers for their trading decisions. Dow Jones also
believed that the proposal would further the press' attention to broker
association trading activities and that such attention would promote
the exchanges' oversight of broker associations.
C. Final Rulemaking
The Commission has carefully considered the comments received and
has determined to adopt Regulation 156.4 with slight modifications from
the rule as originally proposed.
The Commission believes that the identities of broker associations
and their members are useful information, comparable to other
information which is currently made available to the public about the
capacity in which various industry participants are licensed and the
relationships between registrants.
Contrary to the CSC's suggestion, Commission Regulation 156.4 is
not intended to imply any judgment of or to ``stigmatize'' broker
association members or their activities. Rather, the Commission
believes that Commission Regulation 156.4 will provide useful
information to market users about relationships among members who
handle customer orders. In this connection, the Commission notes that
the Division of Trading and Markets (``Division'') released a study of
broker associations in January 1990 based upon interviews with broker
association members and representatives of other market participants
which used the services of broker associations, such as futures
commission merchants.\5\ In that study, the Division found that some
market users ascribed certain benefits to the use of broker
associations, including specialized order execution expertise, better
capitalization from increased financial resources and uninterrupted
customer service.\6\ The broker association study, however, reported
concerns of other participants that relationships between broker
association members could increase the potential for trading abuses,
such as providing increased incentives for accommodation trades between
members due to their associations' profit- or loss-sharing
arrangements.\7\ Moreover, the FTPA required the Commission to
particularly address the activities of such associations and determine
whether to further restrict their activities.\8\ Given these
perceptions among sophisticated market participants and the
Congressional mandate, the Commission believes that the type of
information which would be
[[Page 41498]]
disseminated pursuant to Regulation 156.4 may be of use to the general
population of market participants when evaluating the execution of
their orders.
---------------------------------------------------------------------------
\5\ See Division of Trading and Markets, Study on Broker
Associations (January 4, 1990) (``broker association study'').
Copies of this study are available to the public.
\6\ Broker Association Study at 53-54.
\7\ Id. at 60.
\8\ See CEA Section 4j(d)(2).
---------------------------------------------------------------------------
Similarly, the NYCE's recommendation that the Commission defer
adoption of Regulation 156.4 until the Division of Trading and Markets
concludes its current rule enforcement review of broker association
oversight presumes that Regulation 156.4 addresses some trade practice
concern which may or may not be validated by that review. As indicated
above, however, Commission Regulation 156.4 is not intended to imply
any judgment on broker association members or their activities. The
registration of such associations' members was originally undertaken to
facilitate surveillance of their activities by the relevant self-
regulatory organization. The publication of such relationships as
required by this rulemaking is intended to assure that those
relationships are not abused. Accordingly, the Commission does not
believe there is any reason to defer the adoption of Regulation 156.4
until the conclusion of the Division's rule enforcement review.
Under the proposed version of Commission Regulation 156.4, contract
markets would have been required to post their broker association
membership lists ``in a location accessible to the public.'' As
indicated in the preamble of the proposed rulemaking's Federal Register
release, such a location could have included ``an exchange's lobby or
other common access area.''\9\ The CSC and NYMEX both commented that
posting information in an exchange lobby may not be an effective means
of dissemination. While the Commission believes that postings in these
areas could effectively disseminate information to market users,\10\
the Commission never intended that such postings be the exclusive
manner of compliance with Regulation 156.4. The primary purpose of this
rulemaking always has been to make clear the Commission's view that
such information is public information and should be readily accessible
to market users.
---------------------------------------------------------------------------
\9\ 61 FR 19869, 19876.
\10\ For instance, the Commission notes that Regulation 9.13,
already requires exchanges to post Regulation 9.11 disciplinary
notices ``in a conspicuous place on (exchange) premises to which its
members and the public regularly have access.''
---------------------------------------------------------------------------
In order to eliminate any confusion created by proposed Regulation
156.4's reference to posting broker association membership information,
the Commission has determined to revise proposed Regulation 156.4 to
require that such information be made ``available to the public
generally.'' The Commission believes that this approach should provide
exchanges with more flexibility in deciding how to make broker
association membership information available. As examples of ways to
publicize such information, the Commission notes that certain exchanges
already publicize information about exchange matters by maintaining
home pages on the Internet or widely distributing their newsletters.
In addition to requiring that broker association membership
information be made ``available to the public generally,'' final
Commission Regulation 156.4 also makes clear that exchanges must make
this information available ``upon request.'' Accordingly, no matter how
broadly an exchange publicizes its broker associations' memberships in
conformance with Regulation 156.4, it also must make the same
information available upon particular request by any member of the
public.
The Commission may further report on how broker association
membership information is made available in the report it is currently
undertaking.
IV. Conclusion
The Commission has determined to adopt Regulation 156.4 with slight
modifications from the original proposed rulemaking. Upon Regulation
156.4's effective date, the Commission may request that the exchanges
inform the Commission of how they intend to comply with Regulation
156.4.
V. Regulatory Flexibility Act
The Regulatory Flexibility Act (``RFA''), 5 U.S.C. 601 et seq.
(1988), requires that agencies, in proposing rules, consider the impact
of those rules on small businesses. Regulation 156.4 will affect
contract markets. The Commission has previously determined that
contract markets are not ``small entities'' for purposes of the RFA,
and that the Commission, therefore, need not consider the effect of
proposed rules on contract markets. 47 FR 18618, 18619 (April 30,
1982). Therefore, the Acting Chairman, on behalf of the Commission,
hereby certifies, pursuant to Section 3(a) of the RFA, 5 U.S.C. 605(b),
that the action taken herein will not have a significant economic
impact on a substantial number of small entities.
VI. Paperwork Reduction Act
The Paperwork Reduction Act of 1980 (``PRA''), 44 U.S.C. 3501 et
seq. (1988), imposes certain requirements on federal agencies
(including the Commission) in connection with their conducting or
sponsoring any collection of information as defined by the PRA. As
indicated in the Commission's proposed rulemaking, Regulation 156.4
will require contract markets to post a listing of the broker
association membership information which they are already required to
compile pursuant to Regulation 156.2(b). 61 FR 19869, 19876.
Accordingly, Commission Regulation 156.4 will not impose any additional
information collection responsibilities.
List of Subjects in 17 CFR Part 156
Broker associations, Commodity futures, Contract markets, Members
of contract markets, Registration requirements.
In consideration of the foregoing, and based on the authority
contained in the Commodity Exchange Act and, in particular, sections
4b, 4c, 4j(d), 5a(b), and 8a(5) thereof, 7 U.S.C. 6b, 6c, 6j(d), 7a(b)
and 12a(5), the Commission hereby amends chapter I of title 17 of the
Code of Federal Regulations as follows:
PART 156--BROKER ASSOCIATIONS
1. The authority citation for Part 156 continues to read as
follows:
Authority: 7 U.S.C. 6b, 6c, 6j(d), 7a(b) and 12a.
2. Section 156.4 is added to read as follows:
Sec. 156.4 Disclosure of Broker Association Membership.
Each contract market shall make available to the public generally
and upon request a list of all registered broker associations which
identifies for each such association the name of each person who is a
member or otherwise has a direct beneficial interest in the
association. This list shall be updated at least semi-annually.
Issued in Washington, DC, on August 2, 1996, by the Commission.
Catherine D. Dixon,
Assistant to the Secretary.
[FR Doc. 96-20332 Filed 8-8-96; 8:45 am]
BILLING CODE 6351-01-P
Complete official Federal Register PDF
FR Doc. 96-20328 Acquisition Regulation; Regulatory Reinvention
[Federal Register Volume 61, Number 155 (Friday, August 9, 1996)]
[Rules and Regulations]
[Pages 41702-41711]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-20328]
[[Page 41701]]
_______________________________________________________________________
Part IV
Department of Energy
_______________________________________________________________________
48 CFR Parts 901, et al.
Acquisition Regulation: Regulatory Reinvention; Final Rule
Federal Register / Vol. 61, No. 155 / Friday, August 9, 1996 / Rules
and Regulations
[[Page 41702]]
DEPARTMENT OF ENERGY
48 CFR Parts 901, 905, 906, 908, 915, 916, 917, 922, 928, 932, 933,
935, 936, 942, 945, 952, and 971
RIN 1991-AB25
Acquisition Regulation; Regulatory Reinvention
AGENCY: Department of Energy.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Department of Energy (DOE) issues a final rule to amend
the Department of Energy Acquisition Regulation (DEAR) in its
continuing effort to streamline and simplify the acquisition process
and to meet the objectives of several Executive Orders (EO), including:
EO 12861, Elimination of One-Half of Executive Branch Internal
Regulations; EO 12931, Federal Procurement Reform; and EO 12866,
Regulatory Planning and Review. This rule revises certain regulatory
material and deletes other material that has been determined to be
nonregulatory and unnecessary. Specific material that is revised or
deleted from the DEAR is summarized in the ``Section-by-Section
Analysis'' appearing later in this document.
EFFECTIVE DATE: This final rule is effective September 9, 1996.
FOR FURTHER INFORMATION CONTACT: Kevin M. Smith, Office of Policy (HR-
51), Office of Procurement and Assistance Management, Department of
Energy, 1000 Independence Avenue, SW., Washington, D.C. 20585 (202)
586-8189.
SUPPLEMENTARY INFORMATION:
I. Background
II. Section-by-Section Analysis
III. Comments on the Notice of Proposed Rulemaking
IV. Procedural Requirements
A. Review Under Executive Order 12866
B. Review Under Executive Order 12988
C. Review Under the Regulatory Flexibility Act
D. Review Under the Paperwork Reduction Act
E. Review Under Executive Order 12612
F. Review Under the National Environmental Policy Act
I. Background
Executive Order (EO) 12861, dated September 11, 1993, Elimination
of One-Half of Executive Branch Internal Regulations, was issued by the
President to streamline Government operations, improve productivity,
and improve customer service. EO 12931, dated October 13, 1994, Federal
Procurement Reform, calls for significant changes to make the
Government procurement process more effective and efficient. EO 12866,
dated September 30, 1993, Regulatory Planning and Review, requires
agencies to review regulations to improve effectiveness and to reduce
regulatory burden. This rule represents DOE's third action to eliminate
existing regulatory material that is unnecessary. In promulgating this
rule, the Department will further the objectives of the EOs by reducing
the volume of the DEAR; streamlining operations; reducing constraints,
prescriptive requirements, and administrative processes; making
requirements outcome oriented vs. process oriented; and, defining roles
and assigning responsibilities at the lowest appropriate level within
the procurement organization. This rule makes three types of changes to
the DEAR. Certain regulatory coverage is being revised and condensed to
simplify and streamline the acquisition process; substantive policy
changes have not been made in these areas. In addition, to implement
certain requirements of the Federal Acquisition Streamlining Act of
1994, Public Law 103-355, regarding the availability of protest files
and agency protest reviews, two new solicitation provisions are being
added. Consistent with the requirements of E.O. 12979, dated October
25, 1995, Agency Procurement Protests, language also is being added to
encourage the use of alternative dispute resolution procedures in
appropriate circumstances. Finally, other material that has been
determined to be nonregulatory in nature is being removed from the
DEAR, including informational material and internal guidance and
procedures.
II. Section-by-Section Analysis
1. Part 901 is revised to simplify the language, remove
informational material, and remove internal procedures addressing
deviations to the regulation, ratification of unauthorized commitments,
and selection of contracting officers and their representatives.
2. Subpart 905.4, addressing the internal DOE process for release
of contract information, is removed.
3. Section 906.302, citing the Atomic Energy Act authority for
circumstances permitting other than full and open competition, is
removed.
4. Section 906.303, addressing the internal procedures for
processing noncompetitive justifications, is removed.
5. Subpart 908.3, addressing the acquisition of utility services,
is moved to the new Part 941.
6. Subpart 908.8, addressing the acquisition of printing and
related supplies, and Subpart 908.11, addressing the leasing of motor
vehicles, are revised to simplify the language and to remove
informational material.
7. Subpart 915.5, addressing unsolicited proposals, is revised to
simplify the language, remove informational material, and remove
internal procedures.
8. Subpart 915.6, addressing internal source selection procedures,
is removed.
9. Subsection 915.970-8, addressing weighted guidelines application
considerations, is revised to remove informational material and
internal guidance.
10. Section 916.405, containing recommended language for award fee
contract clauses, is removed.
11. Subpart 917.70, addressing cost participation, is revised to
simplify the language, remove informational material, and remove
internal procedures.
12. Subpart 917.72, addressing Program Opportunity Notices for
commercial demonstrations, is revised to simplify the language, remove
informational material, and remove internal procedures.
13. Subpart 917.73, addressing Program Research and Development
Announcements, is revised to simplify the language, remove
informational material, and remove internal procedures.
14. Subpart 917.74, addressing the acquisition, use and disposal of
real estate, is revised to simplify the language, remove informational
material, and remove internal procedures.
15. Subpart 917.75, providing guidance for the use of multiple
awards-phased acquisitions, is removed.
16. Section 922.805, providing guidance to the contracting officer
for obtaining affirmative action program posters, is removed.
17. Subpart 922.70, providing guidance regarding construction
laborers and mechanics, is removed.
18. Subpart 928.1, addressing the use of bonds, is revised to
simplify the language, remove informational material, and remove
internal procedures.
19. Section 932.102, providing information on contract financing,
is revised to simplify the language, remove informational material, and
remove internal procedures.
20. Subpart 932.7, providing information on contract financing, is
removed.
21. Section 932.802, providing information on the use of partial
assignments, is removed.
[[Page 41703]]
22. Section 932.805, providing internal procedures for the
information to be furnished to assignees, is removed.
23. Subpart 932.9, addressing prompt payments, is revised to
simplify the language, remove informational material, and remove
internal procedures.
24. Section 932.7000, providing introductory information on loan
guarantees, is removed.
25. Section 932.7001, providing definitions, is removed.
26. Subpart 933.1, addressing protests, is revised to update and
simplify the language, remove informational material, remove internal
procedures, add two new solicitation provisions that address protest
file availability and agency protest review, and add alternative
dispute resolution procedures.
27. Section 935.016, addressing research opportunity announcements,
is revised to simplify the language, remove informational material, and
remove internal procedures.
28. Sections 936.601, 936.602-2, 936.602-3, and 936.602-4,
providing internal procedures for contracting for architect-engineer
services, are removed.
29. Sections 936.603, 936.605, and 936.606, providing internal
procedures for contracting for architect-engineer services, are
removed.
30. Subpart 936.72, providing internal information and guidance for
the acquisition of special equipment, is removed.
31. Part 941, addressing the acquisition of utility services, is
added to include the coverage, as revised, that was previously
contained in Part 908.
32. Subsection 942.705-1, addressing final indirect cost rate
determinations, is revised to simplify the language.
33. Subsection 942.705-3, addressing negotiated rates for
educational institutions, is revised to simplify the language.
34. Subsection 942.705-4, addressing negotiated rates for state and
local governments, is revised to simplify the language.
35. Subsection 942.705-5, addressing negotiated rates for nonprofit
organizations other than educational and state and local governments,
is revised to simplify the language.
36. Subpart 942.70, providing internal guidance and procedures for
obtaining audit support services, is removed.
37. Subsection 945.505-5, providing internal guidance for making
records of plant equipment, is removed.
38. Subsection 945.505-14, providing information for the completion
of Government property reports, is removed.
39. Section 952.214, addressing clauses related to sealed bidding,
is removed as there is no material under that section title.
40. Section 952.215, addressing clauses related to contracting by
negotiation, is removed as the prescriptions for those clauses were
removed in an earlier final rule.
41. Subsection 952.233-2 is revised to change the DOE office that
receives copies of protests.
42. Subsection 952.233-4 is added to include a new solicitation
provision regarding the availability of protest files.
43. Subsection 952.233-5 is added to include a new solicitation
provision regarding agency protest reviews.
44. Subsection 952.251-70 is amended to correct the date of the
contract clause Contractor Employee Travel Discounts.
45. Part 971, providing internal procedures for the review and
approval of contract actions, is removed.
III. Comments on the Notice of Proposed Rulemaking
A Notice of Proposed Rulemaking was published in the Federal
Register on May 3, 1996 (61 FR 19891). Interested parties were invited
to participate in this rulemaking by submitting comments with respect
to the DEAR amendments set forth in the Notice of Proposed Rulemaking.
The public comment period closed on July 2, 1996, a period of 60 days.
During this period, comments were received from one corporation. These
comments focused on the deletion of internal guidance material directed
to the Department's acquisition personnel. The corporation stated that
some of the information being removed may be helpful to businesses,
especially those that are relatively new to contracting with the
Government. While we agree that some of this information may be
helpful, the material being removed is not regulatory in nature and is
not suitable for inclusion in the DEAR pursuant to the direction and
guidance provided in the Executive Orders cited above. Removal of this
material does not change the Department's acquisition policies.
Information on the issues identified in the comments (1) is already
publicly available in statutes or the Federal Acquisition Regulation,
(2) will be provided in solicitations or announcements issued by the
Department for particular acquisitions, or (3) is in internal agency
Guides that are available to the public.
No revisions to the rulemaking have been made based on the one
submission of comments. However, the final rule does reflect changes
from the proposed rule in two areas. The first is in Sec. 908.71, which
addresses the acquisition of special items. The rule as proposed would
have rewritten this subpart to streamline it. Based on further internal
review, Subpart 908.71 will not be amended in this rulemaking and will
remain unchanged. The second change is in Part 933, which addresses
protests. This final rule makes technical changes in Part 933 by
removing references to the General Services Administration Board of
Contract Appeals (GSBCA). Pursuant to the Federal Acquisition Reform
Act of 1996, the GSBCA will not perform bid protest functions after
August 8, 1996.
IV. Procedural Requirements
A. Review Under Executive Order 12866
This regulatory action has been determined not to be a
``significant regulatory action'' under Executive Order 12866,
``Regulatory Planning and Review,'' (58 FR 51735, October 4, 1993).
Accordingly, this action was not subject to review, under that
Executive Order, by the Office of Information and Regulatory Affairs of
the Office of Management and Budget (OMB).
B. Review Under Executive Order 12988
With respect to the review of existing regulations and the
promulgation of new regulations, section 3(a) of Executive Order 12988,
``Civil Justice Reform,'' 61 FR 4729 (February 7, 1996), imposes on
Executive agencies the general duty to adhere to the following
requirements: (1) Eliminate drafting errors and ambiguity; (2) write
regulations to minimize litigation; and (3) provide a clear legal
standard for affected conduct rather than a general standard and
promote simplification and burden reduction. With regard to the review
required by section 3(a), section 3(b) of Executive Order 12988
specifically requires that Executive agencies make every reasonable
effort to ensure that the regulation: (1) Clearly specifies the
preemptive effect, if any; (2) clearly specifies any effect on existing
Federal law or regulation; (3) provides a clear legal standard for
affected conduct while promoting simplification and burden reduction;
(4) specifies the retroactive effect, if any; (5) adequately defines
key terms; and (6) addresses other important issues affecting clarity
and general draftsmanship under any guidelines issued by the Attorney
General. Section 3(c) of Executive Order 12988 requires Executive
agencies to review regulations in light of applicable standards in
section 3(a) and section 3(b) to determine whether they are met or it
is
[[Page 41704]]
unreasonable to meet one or more of them. DOE has completed the
required review and determined that, to the extent permitted by law,
the regulations meet the relevant standards of Executive Order 12988.
C. Review Under the Regulatory Flexibility Act
The proposed rule was reviewed under the Regulatory Flexibility Act
of 1980, Public Law 96-354, which requires preparation of an initial
regulatory flexibility analysis for any rule that is likely to have a
significant economic impact on a substantial number of small entities.
In the preamble to the proposed rule, DOE noted that the proposed rule
would reduce the volume of the DEAR, streamline procurement processes,
reduce constraints, prescriptive requirements, and administrative
processes, and make requirements outcome oriented rather than process
oriented. As this rule eliminates regulatory requirements from the
acquisition process, it will likely ease the burden placed on small
businesses that contract with DOE. Based on this review, DOE certified
that this rule will not have a significant economic impact on a
substantial number of small entities and, therefore, no regulatory
flexibility analysis had been prepared. DOE did not receive any
comments on this certification.
D. Review Under the Paperwork Reduction Act
No new information collection or recordkeeping requirements are
imposed by this rule. Accordingly, no OMB clearance is required under
the Paperwork Reduction Act of 1980 (44 U.S.C. 3501, et seq.).
E. Review Under Executive Order 12612
Executive Order 12612, entitled ``Federalism,'' 52 FR 41685
(October 30, 1987), requires that regulations, rules, legislation, and
any other policy actions be reviewed for any substantial direct effects
on States, on the relationship between the Federal Government and the
States, or in the distribution of power and responsibilities among
various levels of government. If there are sufficient substantial
direct effects, then the Executive Order requires preparation of a
federalism assessment to be used in all decisions involved in
promulgating and implementing a policy action. DOE has determined that
this rule will not have a substantial direct effect on the
institutional interests or traditional functions of States.
F. Review Under the National Environmental Policy Act
Pursuant to the Council on Environmental Quality Regulations (40
CFR 1500-1508), the Department has established guidelines for its
compliance with the provisions of the National Environmental Policy Act
(NEPA) of 1969 (42 U.S.C. 4321, et seq.). Pursuant to Appendix A of
Subpart D of 10 CFR 1021, National Environmental Policy Act
Implementing Procedures (Categorical Exclusion A6), DOE has determined
that this rule is categorically excluded from the need to prepare an
environmental impact statement or environmental assessment.
List of Subjects in 48 CFR Parts 901, 905, 906, 908, 915, 916, 917,
922, 928, 932, 933, 935, 936, 942, 945, 952, and 971
Government procurement.
Issued in Washington, D.C., on July 29, 1996.
Richard H. Hopf,
Deputy Assistant Secretary for Procurement and Assistance Management.
For the reasons set out in the preamble, Chapter 9 of Title 48 of
the Code of Federal Regulations is amended as set forth below: 1. The
authority citation for Parts 901, 905, 906, 908, 915, 916, 917, 922,
928, 932, 933, 935, 936, 942, 945, 952, and 971 continues to read as
follows:
Authority: 42 U.S.C. 7254; 40 U.S.C. 486(c).
2. Part 901 is revised to read as follows:
PART 901--FEDERAL ACQUISITION REGULATIONS SYSTEM
Subpart 901.1--Purpose, Authority, Issuance
Sec.
901.101 Purpose.
901.102 Authority.
901.103 Applicability.
901.104 Issuance.
901.104-1 Publication and code arrangement.
901.104-2 Arrangement of regulations.
901.104-3 Copies.
901.105 OMB control numbers.
Subpart 901.3--Agency Acquisition Regulations
901.301-70 Other issuances related to acquisition.
Subpart 901.6--Contracting Authority and Responsibilities
901.601 General.
901.602-3 Ratification of unauthorized commitments.
Subpart 901.1--Purpose, Authority, Issuance
901.101 Purpose.
The Department of Energy Acquisition Regulation (DEAR) in this
chapter establishes uniform acquisition policies which implement and
supplement the Federal Acquisition Regulation (FAR).
901.102 Authority.
The DEAR and amendments thereto are issued by the Procurement
Executive pursuant to a delegation from the Secretary in accordance
with the authority of section 644 of the Department of Energy
Organization Act (42 U.S.C. 7254), section 205(c) of the Federal
Property and Administrative Services Act of 1949, as amended, (40
U.S.C. 486(c)), and other applicable law.
901.103 Applicability.
The FAR and DEAR apply to all DOE acquisitions of supplies and
services which obligate appropriated funds unless otherwise specified
in this chapter.
901.104 Issuance.
901.104-1 Publication and code arrangement.
(a) The DEAR and its subsequent changes are published in the
Federal Register, cumulative form in the Code of Federal Regulations,
and a separate loose-leaf edition.
(b) The DEAR is issued as chapter 9 of Title 48 of the Code of
Federal Regulations.
901.104-2 Arrangement of regulations.
(a) General. The DEAR is divided into the same parts, subparts,
sections, subsections and paragraphs as is the FAR.
(b) Numbering. The numbering illustrations at (FAR) 48 CFR 1.104-
2(b) apply to the DEAR, but the DEAR numbering will be preceded with a
9 or a 90. Material which supplements the FAR will be assigned the
numbers 70 and up.
901.104-3 Copies.
Copies of the DEAR published in the Federal Register or Code of
Federal Regulations may be purchased from the Superintendent of
Documents, Government Printing Office, Washington, DC 20402.
901.105 OMB control numbers.
The Paperwork Reduction Act of 1980, Public Law 98-511, and the
Office of Management and Budget's implementing regulations at 5 CFR
part 1320, require that reporting and record
[[Page 41705]]
keeping requirements affecting 10 or more members of the public be
cleared by that Office. The OMB control number for the collection of
information under 48 CFR chapter 9 is 1910-4100.
Subpart 901.3--Agency Acquisition Regulations
901.301-70 Other issuances related to acquisition.
In addition to the FAR and DEAR, there are other issuances which
deal with acquisition. Among these are the Federal Property Management
Regulations, the DOE Property Management Regulations, and DOE
Directives.
Subpart 901.6--Contracting Authority and Responsibilities
901.601 General.
Contracting authority vests in the Secretary of Energy. The
Secretary has delegated this authority to the Procurement Executive.
The Procurement Executive has redelegated this authority to the Heads
of Contracting Activities (HCA). These delegations are formal written
delegations containing dollar limitations and conditions. Each HCA in
turn makes formal contracting officer appointments within the
contracting activity.
901.602-3 Ratification of unauthorized commitments. (DOE coverage--
paragraph (b))
(b) (2) The Procurement Executive is authorized to ratify an
unauthorized commitment.
(3) The ratification authority of the Procurement Executive in
paragraph (b)(2) of this section is delegated to the Head of the
Contracting Activity (HCA) for individual unauthorized commitments of
$25,000 or under. The ratification authority of the HCA is
nondelegable.
PART 905--PUBLICIZING CONTRACT ACTIONS
Subpart 905.4--[Removed]
3. Subpart 905.4 (sections 905.403, 905.403-70, and 905.404-1) is
removed.
PART 906--COMPETITION REQUIREMENTS
906.302 and 906.302-7 [Removed]
4. Section 906.302 and 906.302-70 are removed.
906.303 and 906.303-1 [Removed]
5. Section 906.303 and 906.303-1 are removed.
PART 908--REQUIRED SOURCES OF SUPPLIES AND SERVICES
Subpart 908.3--[Removed]
6. Subpart 908.3 (sections 908.303, 908.303-70, 908.303-71, and
908.307) is removed.
7. Subpart 908.8 is revised to read as follows:
Subpart 908.8--Acquisition of Printing and Related Supplies
Sec.
908.802 Policy.
Subpart 908.8--Acquisition of Printing and Related Supplies
908.802 Policy. (DOE coverage--paragraph (b))
(b) Inclusion of printing requirements (limited exceptions are set
forth in paragraphs 35-2 through 35-4 of the Government Printing and
Binding Regulations) in contracts for supplies and services is
prohibited unless specifically approved by the Director, Office of
Administrative Services, Headquarters. Contracting officers shall
insert the clause at 48 CFR 952.208-70.
8. Subpart 908.11 is revised to read as follows:
Subpart 908.11--Leasing of Motor Vehicles
Sec.
908.1102 Presolicitation requirements.
908.1104 Contract clauses.
908.1170 Leasing of fuel-efficient vehicles.
Subpart 908.11--Leasing of Motor Vehicles
908.1102 Presolicitation requirements. (DOE coverage--paragraph (a))
(a)(4) Commercial vehicle lease sources may be used only when the
General Services Administration (GSA) has advised that it cannot
furnish the vehicle(s) through the Interagency Motor Pool System and it
has been determined that the vehicle(s) are not available through the
GSA Consolidated Leasing Program.
908.1104 Contract clauses. (DOE coverage--paragraph (e))
(e) The clause at 48 CFR 952.208-7, Tagging of Leased Vehicles,
shall be inserted whenever a vehicle(s) is to be leased over 60 days,
except for those vehicles exempted by (FPMR) 41 CFR 101-38.6.
908.1170 Leasing of fuel-efficient vehicles.
(a) All sedans and station wagons and certain types of light
trucks, as specified by GSA, that are acquired by lease for 60
continuous days or more for official use by DOE or its authorized
contractors, are subject to the requirements of the Energy Policy and
Conservation Act of 1975 (EPCA), Public Law 94-163 and of Executive
Order 12003 and subsequent implementing regulations.
(b) Leased vehicles will meet the miles-per-gallon criteria of, and
be incorporated in, the approved plan of the fiscal year in which
leases are initiated, reviewed, extended, or increased in scope.
Vehicle leases will specify the vehicle model type to be provided.
PART 915--CONTRACTING BY NEGOTIATION
9. Subpart 915.5 is revised to read as follows:
Subpart 915.5--Unsolicited Proposals
Sec.
915.502 Policy.
915.503 General.
915.505 Content of unsolicited proposals.
915.506 Agency procedures.
915.507 Contracting methods.
Subpart 915.5--Unsolicited Proposals
915.502 Policy.
(a) Present and future needs demand the involvement of all
resources in exploring alternative energy sources and technologies. To
achieve this objective, it is DOE policy to encourage external sources
of unique and innovative methods, approaches, and ideas by stressing
submission of unsolicited proposals for government support. In
furtherance of this policy and to ensure the integrity of the
acquisition process through application of reasonable controls, the
DOE:
(1) Disseminates information on areas of broad technical concern
whose solutions are considered relevant to the accomplishment of DOE's
assigned mission areas;
(2) Encourages potential proposers to consult with program
personnel before expending resources in the development of written
unsolicited proposals;
(3) Endeavors to distribute unsolicited proposals to all interested
organizations within DOE;
(4) Processes unsolicited proposals in an expeditious manner and,
where practicable, keeps proposers advised as discrete decisions are
made;
(5) Assures that each proposal is evaluated in a fair and objective
manner; and,
(6) Assures that each proposal will be used only for its intended
purpose and the information, subject to applicable laws and
regulations, contained therein will not be divulged without prior
permission of the proposer.
(b) Extensions of contract work resulting from unsolicited
proposals
[[Page 41706]]
shall be processed in accordance with the procedures at 48 CFR 943.170.
915.503 General. (DOE coverage--paragraph (f))
(f) Unsolicited proposals for the performance of support services
are, except as discussed in this paragraph, unacceptable as the
performance of such services is unlikely to necessitate innovative and
unique concepts. There may be rare instances in which an unsolicited
proposal offers an innovative and unique approach to the accomplishment
of a support service. If such a proposal offers a previously unknown or
an alternative approach to generally recognized techniques for the
accomplishment of a specific service(s) and such approach will provide
significantly greater economy or enhanced quality, it may be considered
for acceptance. Such acceptance shall, however, require approval of the
acquisition of support services in accordance with applicable DOE
Directives and be processed as a deviation to the prohibition in this
paragraph.
915.505 Content of unsolicited proposals. (DOE coverage--paragraph
(b))
(b)(5) Unsolicited proposals for nonnuclear energy demonstration
activities not covered by existing formal competitive solicitations or
program opportunity notices may include a request for federal
assistance or participation, and shall be subject to the cost sharing
provisions of 48 CFR 917.70.
915.506 Agency procedures. (DOE coverage--paragraph (b))
(b) Unless otherwise specified in a notice of program interest, all
unsolicited proposals should be submitted to the Unsolicited Proposal
Coordinator, Office of Procurement and Assistance, Washington, DC
20585. If the proposer has ascertained the cognizant program office
through preliminary contacts with program staff, the proposal may be
submitted directly to that office. In such instances, the proposer
should separately send a copy of the proposal cover letter to the
unsolicited proposal coordinator to assure that the proposal is logged
in the Department's automated tracking system for unsolicited
proposals.
915.507 Contracting methods. (DOE coverage--paragraph (d))
(d) DOE's cost participation policy, at 48 CFR 917.70, shall be
followed in determining the extent to which the DOE will participate in
the cost for the proposed effort.
Subpart 915.6--[Removed]
10. Subpart 915.6 (sections 915.610, 915.612, and 915.613) is
removed.
11. Subsection 915.970-8 is revised to read as follows:
915.970-8 Weighted guidelines application considerations.
The Department has developed internal procedures to aid the
contracting officer in the application of weighted guidelines and to
assure a reasonable degree of uniformity across the Department.
PART 916--TYPES OF CONTRACTS
916.405 [Removed]
12. Section 916.405 is removed.
PART 917--SPECIAL CONTRACTING METHODS
13. Subpart 917.70 is revised to read as follows:
Subpart 917.70--Cost Participation
Sec.
917.7000 Scope of subpart.
917.7001 Policy.
Subpart 917.70--Cost Participation
917.7000 Scope of subpart.
(a) This subpart sets forth the DOE policy on cost participation by
organizations performing research, development, and/or demonstration
projects under DOE prime contracts. This subpart does not cover efforts
and projects performed for DOE by other Federal agencies.
(b) Cost participation is a generic term denoting any situation
where the Government does not fully reimburse the performer for all
allowable costs necessary to accomplish the project or effort under the
contract. The term encompasses cost sharing, cost matching, cost
limitation (direct or indirect), participation in kind, and similar
concepts.
917.7001 Policy.
(a) When DOE supports performer research, development, and/or
demonstration efforts, where the principal purpose is ultimate
commercialization and utilization of the technologies by the private
sector, and when there are reasonable expectations that the performer
will receive present or future economic benefits beyond the instant
contract as a result of performance of the effort, it is DOE policy to
obtain cost participation. Full funding may be provided for early
phases of development programs when the technological problems are
still great.
(b) In making the determination to obtain cost participation, and
evaluating present and future economic benefits to the performer, DOE
will consider the technical feasibility, projected economic viability,
societal and political acceptability of commercial application, as well
as possible effects of other DOE-supported projects in competing
technologies.
(c) The propriety, manner, and amount of cost participation must be
decided on a case-by-case basis.
(d) Cost participation is required for demonstration projects
unless exempted by the Under Secretary. Demonstration projects,
pursuant to this subpart, include demonstrations of technological
advances and field demonstrations of new methods and procedures, and
demonstrations of prototype commercial applications for the
exploration, development, production, transportation, conversion, and
utilization of energy resources.
14. Subpart 917.72 is revised to read as follows:
Subpart 917.72--Program Opportunity Notices for Commercial
Demonstrations
Sec.
917.7200 Scope of subpart.
917.7201 Policy.
917.7201-1 General.
Subpart 917.72--Program Opportunity Notices for Commercial
Demonstrations
917.7200 Scope of subpart.
(a) This subpart discusses the policy for the use of a program
opportunity notice solicitation approach to accelerate the
demonstration of the technical feasibility and commercial application
of all potentially beneficial non-nuclear energy sources and
utilization technologies.
(b) This subpart applies to demonstrations performed by
individuals, educational institutions, commercial or industrial
organizations, or other private entities, public entities, including
State and local governments, but not other Federal agencies. For
purposes of this subpart, commercial demonstration projects include
demonstrations of technological advances, field demonstrations of new
methods and procedures, and demonstration of prototype commercial
applications for the exploration, development, production,
transportation, conversion, and utilization of non-nuclear energy
resources.
[[Page 41707]]
917.7201 Policy.
917.7201-1 General.
(a) It is DOE's intent to encourage the submission of proposals to
accelerate the demonstration of the technical, operational, economic,
and commercial feasibility and environmental acceptability of
particular energy technologies, systems, subsystems, and components.
Program opportunity notices will be used to provide information
concerning scientific and technological areas encompassed by DOE's
programs. DOE shall, from time to time, issue program opportunity
notices for proposals for demonstrations of various forms of non-
nuclear energy and technology utilization.
(b) Each program opportunity notice shall as a minimum describe:
the goal of the intended demonstration effort; the time schedule for
award; evaluation criteria; program policy factors; the amount of cost
detail required; and proposal submission information. Program policy
factors are those factors which, while not appropriate indicators of a
proposal's individual merit (i.e., technical excellence, proposer's
ability, cost, etc.), are relevant and essential to the process of
choosing which of the proposals received will, taken together, best
achieve the program objectives. All such factors shall be predetermined
and specified in the notice so as to notify proposers that factors
which are essentially beyond their control will affect the selection
process.
15. Subpart 917.73 is revised to read as follows:
Subpart 917.73--Program Research and Development Announcements
Sec.
917.7300 Scope of subpart.
917.7301 Policy.
917.7301-1 General.
Subpart 917.73--Program Research and Development Announcements
917.7300 Scope of subpart.
(a) This subpart discusses the policy for the use of a program
research and development announcement (PRDA) solicitation approach to
obtain and select proposals from the private sector for the conduct of
research, development, and related activities in the energy field.
917.7301 Policy.
917.7301-1 General.
(a) PRDAs shall be used to provide potential proposers with
information concerning DOE's interest in entering into arrangements for
research, development, and related projects in specified areas of
interest. It is DOE's intent to solicit the submission of ideas which
will serve as a basis for research, development, and related activities
in the energy field. It is DOE's desire to encourage the involvement of
small business concerns, small disadvantage business concerns, and
women-owned small business concerns in research and development
undertaken pursuant to PRDAs.
(b) The PRDA should not replace existing acquisition procedures
where a requirement can be sufficiently defined for solicitation under
standard advertised or negotiated acquisition procedures. Similarly, it
should not inhibit or curtail the submission of unsolicited proposals.
However, a proposal which is submitted as though it were unsolicited
but is in fact germane to an existing PRDA shall be treated as though
submitted in response to the announcement or returned without action to
the proposer, at the proposer's option. Further, the PRDA is not to be
used in a competitive situation where it is appropriate to negotiate a
study contract to obtain analysis and recommendations to be
incorporated in the subsequent request for proposals.
(c) The PRDA is to be used only where:
(1) Research and development is required in support of a specific
project area within an energy program with the objective of advancing
the general scientific and technological base, and this objective is
best achieved through:
(i) A diversity of possible approaches, within the current state of
the art, available for solving the problems;
(ii) The involvement of a broad spectrum of organizations in
seeking out solutions to the problems posed;
(iii) The application of the unique qualifications or specialized
capabilities of many individual proposers which will enable them to
perform portions of the research project (without necessarily
possessing the qualifications to perform the entire project) so that
the overall support may be broken into segments which cannot be
ascertained in advance; and,
(iv) The fostering of new and creative solutions.
(2) Consistent with paragraph (c)(1) of this section, it is
anticipated that choices will have to be made among dissimilar
concepts, ideas, or approaches; and
(3) It is determined that a broad range of organizations exist that
would be capable of contributing towards the overall research and
development goals identified in paragraph (c)(1) of this section.
(d) Each PRDA shall as a minimum describe: the area(s) of program
interest; time schedule for award; proposal submittal information;
evaluation criteria; and program policy factors. The PRDA should
clearly emphasize to proposers that program policy factors are
essentially beyond their control and will affect the selection process.
The PRDA should also state that DOE reserves the right to select for
award or support any, all, or none of the proposals received in
response to an announcement.
16. Subpart 917.74 is revised to read as follows:
Subpart 917.74--Acquisition, Use, and Disposal of Real Estate
Sec.
917.7401 General.
917.7402 Policy.
917.7403 Application.
Subpart 917.74--Acquisition, Use, and Disposal of Real Estate
917.7401 General.
Special circumstances and situations may arise under cost-type
contracts when, in the performance of the contract or subcontract, the
performer shall be required, or otherwise find it necessary, to acquire
real estate or interests therein by:
(a) Purchase, on DOE's behalf or in its own name, with title
eventually vesting in the Government.
(b) Lease, and DOE assumes liability for, or otherwise will pay for
the obligation under the lease.
(c) Acquisition of temporary interest through easement, license or
permit, and DOE funds the cost of the temporary interest.
917.7402 Policy.
It is the policy of the Department of Energy that, when real estate
acquisitions are made, the following policies and procedures shall be
applied to such acquisitions:
(a) Real estate acquisitions shall be mission essential;
effectively, economically, and efficiently managed and utilized; and
disposed of promptly, when not needed;
(b) Acquisitions shall be justified, with documentation which
describes the need for the acquisitions, general requirements, cost,
acquisition method to be used, site investigation reports, site
recommended for selection, and property appraisal reports; and
(c) Acquisition by lease, in addition to the requirements in
paragraphs (a) and (b) of this section:
(1) Shall not exceed a one-year term if funded by one-year
appropriations.
(2) May exceed a one-year term, when the lease is for special
purpose space funded by no-year appropriations and approved by the
Department.
[[Page 41708]]
(3) Shall contain an appropriate cancellation clause which limits
the Government's obligation to no more than the amount of rent to the
earliest cancellation date plus a reasonable cancellation payment.
(4) Shall be consistent with Government laws and regulations
applicable to real estate management.
917.7403 Application.
The clause at 48 CFR 952.217-70 shall be included in contracts or
modifications where contractor acquisitions are expected to be made.
Subpart 917.75--[Removed]
17. Subpart 917.75 (sections 917.7500, 917.7501, and 917.7502) is
removed.
PART 922--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITION
922.805 [Removed]
18. Section 922.805 is removed.
Subpart 922.70--[Removed]
19. Subpart 922.70 (sections 922.7000 and 922.7001) is removed.
PART 928--BONDS AND INSURANCE
20. Subpart 928.1 is revised to read as follows:
Subpart 928.1--Bonds
Sec.
928.101-1 Policy on use.
928.103-3 Payment bonds.
928.103-70 Review of performance and payment bonds for other than
construction.
Subpart 928.1--Bonds
928.101-1 Policy on use.
In addition to the restriction on use of bid guarantees in FAR
28.101-1(a), a bid guarantee may be required only for fixed price or
unit price contracts entered into as a result of sealed bidding. They
may not be required for negotiated contracts.
928.103-3 Payment bonds.
A determination that is in the best interest of the Government to
require payment bonds in connection with other than construction
contracts may be made by the contracting officer on individual
acquisitions.
928.103-70 Review of performance and payment bonds for other than
construction.
A performance or payment bond, other than an annual bond, shall not
antedate the contract to which it pertains.
PART 932--CONTRACT FINANCING
21. Section 932.102 is revised to read as follows:
932.102 Description of contract financing methods. (DOE coverage--
paragraph (e))
(e)(2) Progress payments based on a percentage or stage of
completion may be authorized by the Head of the Contracting Activity
when a determination is made that progress payments based on costs
cannot be practically employed and that there are adequate safeguards
provided for the administration of progress payments based on a
percentage or stage of completion.
Subpart 932.7--[Removed]
22. Subpart 932.7 (section 932.703-1) is removed.
932.802 [Removed]
23. Section 932.802 is removed.
932.805 [Removed]
24. Section 932.805 is removed.
25. Subpart 932.9 is revised to read as follows:
Subpart 932.9--Prompt Payment
Sec.
932.970 Implementing DOE policies and procedures.
Subpart 932.9--Prompt Payment
932.970 Implementing DOE policies and procedures.
(a) Invoice payments. (1) Contract Settlement Date. For purposes of
determining any interest penalties under cost-type contracts, the
effective date of contract settlement shall be the effective date of
the final contract modification issued to acknowledge contract
settlement and to close out the contract.
(2) Constructive acceptance periods. Where the contracting officer
determines, in writing, on a case-by-case basis, that it is not
reasonable or feasible for DOE to perform the acceptance or approval
function within the standard period, the contracting officer should
specify a longer constructive acceptance or approval period, as
appropriate. Considerations include, but are not limited to, the nature
of supplies or services involved, geographical site location,
inspection and testing requirements, shipping and acceptance terms, and
available DOE resources.
(b) Contract financing payments. Contracting officers may specify
payment due dates that are less than the standard 30 days when a
determination is made, in writing, on a case-by-case basis, that a
shorter contract financing payment cycle will be required to finance
contract work. In such cases, the contracting officer should coordinate
with the finance and program officials that will be involved in the
payment process to ensure that the contract payment terms to be
specified in solicitations and resulting contract awards can be
reasonably met. Consideration should be given to geographical
separation, workload, contractor ability to submit a proper request,
and other factors that could affect timing of payment. However, payment
due dates that are less than 7 days for progress payments or less than
14 days for interim payments on cost-type contracts are not authorized.
932.7000 [Removed]
26. Section 932.7000 is removed.
932.7001 [Removed]
27. Section 932.7001 is removed.
PART 933--PROTESTS, DISPUTES AND APPEALS
28. Subpart 933.1 is revised to read as follows:
Subpart 933.1--Protests
Sec.
933.103 Protests to the agency.
933.104 Protests to GAO.
933.106 Solicitation provisions.
Subpart 933.1--Protests
933.103 Protests to the agency. (DOE coverage--paragraphs (f), (i),
(j), and (k))
(f) If FAR 33.103(f) requires that award be withheld or performance
be suspended or the awarded contract be terminated pending resolution
of an agency protest, authority to award and/or continue performance of
the protested contract may be requested by the Head of the Contracting
Activity (HCA), concurred in by counsel, and approved by the
Procurement Executive.
(i)(1) Protests filed with the contracting officer before or after
award shall be decided by the Head of the Contracting Activity except
for the following cases, which shall be decided by the Procurement
Executive:
(i) The protester requests that the protest be decided by the
Procurement Executive.
(ii) The HCA is the contracting officer of record at the time the
protest is filed, having signed either the solicitation where the award
has not been made, or the contract, where the award or nomination of
the apparent successful offeror has been made.
(iii) The HCA concludes that one or more of the issues raised in
the protest have the potential for significant impact on DOE
acquisition policy.
[[Page 41709]]
(2) Upon receipt of a protest requesting a decision by the
Procurement Executive, the contracting activity shall immediately
provide a copy of the protest to the Office of Clearance and Support.
(j) The Department of Energy encourages direct negotiations between
an offeror and the contracting officer in an attempt to resolve
protests. In those situations where the parties are not able to achieve
resolution, the Department favors the use of alternative dispute
resolution (ADR) techniques to resolve protests. A protest requesting a
decision at the Headquarters level shall state whether the protester is
willing to utilize ADR techniques such as mediation or nonbinding
evaluation of the protest by a neutral. Upon receipt of a protest
requesting a decision at the Headquarters level, the Office of
Clearance and Support will explore with the protester whether the use
of ADR techniques would be appropriate to resolve the protest. Both
parties must agree that the use of such techniques is appropriate. If
the parties do not mutually agree to utilize ADR to resolve the
protest, the protest will be processed in accordance with the
procedures set forth in paragraph (k).
(k) Upon receipt of a protest lodged with the Department, the
contracting officer shall prepare a report similar to that discussed in
FAR 33.104(a)(3)(iii). In the case of a protest filed at the
Headquarters level, the report shall be forwarded to the Office of
Clearance and Support within 21 calendar days of being notified of such
a protest with a proposed response to the protest. The Procurement
Executive (for protests at the Headquarters level or those specific HCA
protests cited in paragraph (i)(1) of this section) or an HCA (for
protests at the contracting activity level) will render a decision on a
protest within 35 calendar days, unless a longer period of time is
determined to be needed.
933.104 Protests to GAO. (DOE coverage--paragraphs (a), (b), (c), and
(g))
(a)(2) The contracting officer shall provide the notice of protest.
(b) Protests before award. (1) When the Department has received
notice from the GAO of a protest filed directly with the GAO, a
contract may not be awarded until the matter is resolved, unless
authorized by the Head of the Contracting Activity in accordance with
FAR 33.104(b). Before the Head of the Contracting Activity authorizes
the award, the required finding shall be concurred in by the DOE
counsel handling the protest, endorsed by the Senior Program Official,
and approved by the Procurement Executive. The finding shall address
the likelihood that the protest will be sustained by the GAO.
(c) Protests after award. Before the Head of the Contracting
Activity authorizes performance, the finding required by FAR
33.104(c)(2) shall be concurred in by the DOE counsel handling the
protest, endorsed by the Senior Program Official, and approved by the
Procurement Executive.
(g) Notice to GAO. (1) The report to the GAO regarding a decision
not to comply with the GAO's recommendation, discussed at FAR
33.104(f), shall be provided by the HCA making the award, after
approval of the Procurement Executive. If a DOE-wide policy issue is
involved, the report shall be provided by the Procurement Executive.
(2) It is the policy of the Department to comply promptly with
recommendations set forth in Comptroller General Decisions except for
compelling reasons.
(3) The GAO does not have jurisdiction to consider subcontractor
protests. 933.106 Solicitation provisions.
(a) The contracting officer shall supplement the provision at FAR
52.233-2, Service of Protest, in solicitations for other than
simplified acquisitions by adding the provision at 48 CFR 952.233-2.
(b) The contracting officer shall include the provision at 48 CFR
952.233-4 in solicitations for purchases above the simplified
acquisition threshold.
(c) The contracting officer shall include the provision at 48 CFR
952.233-5 in solicitations for purchases above the simplified
acquisition threshold.
PART 935--RESEARCH AND DEVELOPMENT CONTRACTING
29. Subsections 935.016-3 through 935.016-7 and 935.016-9 are
removed, and section 935.016 and subsections 935.016-1, 935.016-2 and
935.016-8 are revised to read as follows:
935.016 Research opportunity announcements.
935.016-1 Scope.
(a) FAR 35.016 sets forth the policies and procedures for
contracting for research through the use of broad agency announcements
as authorized by the Competition in Contracting Act of 1984 (CICA) (41
U.S.C. 259(b)(2)) and Federal Acquisition Regulation FAR 6.102(d)(2).
Within DOE, broad agency announcements will be designated as Research
Opportunity Announcements (ROAs).
(b) Research Opportunity Announcements are a form of competitive
solicitation under which DOE's broad mission and program-level research
objectives are defined; proposals which offer meritorious approaches to
those objectives are requested from all offerors capable of satisfying
the Government's needs; those proposals are evaluated by scientific or
peer review against stated specific evaluation criteria; and selection
of proposals for possible contract award is based upon that evaluation,
the importance of the research to the program objectives, and funds
availability.
935.016-2 Applicability.
(a) This section applies to all DOE Headquarters and field program
organizations which, by virtue of their statutorily mandated mission or
other such authority as may exist, support energy or energy-related
research activities through contractual relationships.
(1) The ROA may be used as a competitive solicitation procedure
through which DOE acquires basic and applied research in support of its
broad mission and program-level research objectives, and these
objectives may be best achieved through relationships where contractors
pursue diverse and dissimilar solutions and approaches to scientific
and technological areas related to DOE's missions and programs.
(2) The ROA shall not be used as a solicitation method when one or
more of the following conditions exist:
(i) In accordance with the Federal Grant and Cooperative Agreement
Act, Public Law 97-258, the principal purpose of the relationship will
be assistance;
(ii) The purpose of the research is to accelerate the demonstration
of the technical, operational, economic, or commercial feasibility and
environmental acceptability of particular energy technologies, systems,
subsystems, and components that would appropriately be acquired by
Program Opportunity Notices (PONs) in accordance with 48 CFR 917.72;
(iii) The research is required in support of a specific project
area within an energy program which appropriately would be acquired by
Program Research and Development Announcements (PRDAs) in accordance
with 48 CFR 917.73;
(iv) The research requirements can be sufficiently defined to allow
the use of contracting by negotiation in accordance with FAR part 15;
[[Page 41710]]
(v) The purpose of the research is the acquisition of goods and
services related to the development of a specific system or hardware
acquisition; or,
(vi) Any funds to be obligated to a resulting contract will be used
to conduct or support a conference or training activity.
(b) The following limitations are applicable to the use of ROAs:
(1) The use of broad agency announcements for the acquisition of
that part of development not related to the development of a specific
system or hardware is authorized by FAR 35.016(a). Notwithstanding that
authorization, ROAs shall be used within DOE only to acquire basic and
applied research.
(2) Proposals shall not be solicited from, and contracts shall not
be awarded to, any specific entity which operates a Government-owned
or-controlled research, development, special production, or testing
establishment, such as DOE's management and operating contractor
facilities, Federally Funded Research and Development Centers chartered
by other agencies, or other such entities. This limitation shall not be
used to preclude the parent organization of the entity operating the
Government-owned or -controlled facility, its subsidiaries, other
divisions, or other related business affiliates from proposing, or
receiving awards, under DOE's ROA solicitations, provided that any
proposed resources (personnel, facilities, and other resources) used in
the management and operation of the Government-owned or -controlled
facility have been approved for use in the ROA effort by the sponsoring
agency.
935.016-8 Selection of proposals.
(a) After considering the evaluation findings, the importance of
the proposed research to the program objectives, and funds
availability, the Selection Official shall determine whether a specific
proposal warrants selection for negotiation and award of a contract.
The decision of the Selection Official shall be documented in writing
and shall address, as appropriate, such issues as:
(1) The scientific and technical merit of the proposal in relation
to the ROA evaluation criteria;
(2) The qualifications, capabilities, and experience of the
proposed personnel; technical approach; facilities; and where
applicable, cost participation by the offeror (or any combination of
the above);
(3) The importance of the proposed research to the program
objectives;
(4) Which areas of the proposal, whether in whole or in part, have
been selected for funding, and the amount of that funding; and,
(5) Assurances that any other requirements which are imposed by
statute, regulation, or internal directives relating to the specific
research activities and which are properly the responsibility of the
program office have been satisfied.
(b) Absent extenuating circumstances, selection decisions regarding
any individual proposal should be made within six (6) months after
receipt of the proposal. Proposals which have been evaluated may be
accumulated to allow for a consolidated selection decision so long as
not more than six (6) months have passed since the receipt of any of
the proposals so accumulated.
(c) The cognizant DOE program official shall notify successful and
unsuccessful offerors of any selection/non-selection decisions. These
notices shall be made in writing promptly after the decision is made,
and shall, at a minimum, state in general terms, the basis for the
determination.
PART 936--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS
936.601 through 936.602-4 [Removed]
30. Sections 936.601, 936.602-2, 936.602-3, and 936.602-4 are
removed.
936.603 through 936.606 [Removed]
31. Sections 936.603, 936.605, and 936.606 are removed.
Subpart 936.72--[Removed]
32. Subpart 936.72 (sections 936.7200, 936.7201, and 936.7202) is
removed.
33. Part 941 is added at the end of Subchapter F as follows:
PART 941--ACQUISITION OF UTILITY SERVICES
Subpart 941.2--Acquiring Utility Services
Sec.
941.201-70 DOE Directives.
941.201-71 Use of subcontracts.
Subpart 941.2--Acquiring Utility Services
941.201-70 DOE Directives.
Utility services (defined at FAR 41.101) shall be acquired in
accordance with FAR part 41 and DOE Directives in subseries 4540
(Public Services).
941.201-71 Use of subcontracts.
Utility services for the furnishing of electricity, gas (natural or
manufactured), steam, water and/or sewerage at facilities owned or
leased by DOE shall not be acquired under a subcontract arrangement,
except as provided for at 48 CFR 970.0803 or if the prime contract is
with a utility company.
PART 942--CONTRACT ADMINISTRATION
34. Subsection 942.705-1 is revised to read as follows:
942.705-1 Contracting officer determination procedure. (DOE coverage--
paragraphs (a) and (b))
(a)(3) The Department of Energy shall use the contracting officer
determination procedure for all business units for which it shall be
required to negotiate final indirect cost rates. A list of such
business units is maintained by the Office of Policy, within the
Headquarters procurement organization.
(b) (1) Pursuant to FAR 52.216-7, Allowable Cost and Payment,
contractors shall be requested to submit their final indirect cost rate
proposals reflecting actual cost experience during the covered period
to the cognizant contracting officer responsible for negotiating their
final rates.
The DOE negotiating official shall request all needed audit service
in accordance with internal procedures.
35. Subsection 942.705-3 is revised to read as follows:
942.705-3 Educational institutions. (DOE coverage--paragraph (a))
(a)(2) The negotiated rates established for the institutions cited
in OMB Circular No. A-88 are distributed to the Cognizant DOE Office
(CDO) assigned lead office responsibility for all DOE indirect cost
matters relating to a particular contractor by the Office of Policy,
within the Headquarters procurement organization.
36. Subsection 942.705-4 is revised to read as follows:
942.705-4 State and local governments.
A list of cognizant agencies for State/local government
organizations is periodically published in the Federal Register by the
Office of Management and Budget (OMB). The responsible agencies are
notified of such assignments. The current negotiated rates for State/
local government activities is distributed to each CDO by the Office of
Policy, within the Headquarters procurement organization.
37. Subsection 942.705-5 is revised to read as follows:
942.705-5 Nonprofit organizations other than educational and state and
local governments.
OMB Circular A-122 establishes the rules for assigning cognizant
agencies for the negotiation and approval of
[[Page 41711]]
indirect cost rates. The Federal agency with the largest dollar value
of awards (contracts plus federal financial assistance dollars) will be
designated as the cognizant agency. There is no published list of
assigned agencies. The Office of Policy, within the Headquarters
procurement organization, distributes to each CDO the rates established
by the cognizant agency.
Subpart 942.70--[Removed]
38. Subpart 942.70 (sections 942.7000, 942.7001, 942.7002,
942.7003, 942.7003-1 through 942.7003-9, and 942.7004) is removed.
PART 945--GOVERNMENT PROPERTY
945.505-5 [Removed]
39. Subsection 945.505-5 is removed.
945.505-14 [Removed]
40. Subsection 945.505-14 is removed.
PART 952--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
952.214 [Removed]
41. Section 952.214 is removed.
952.215 [Removed]
42. Section 952.215 and subsections 952.215-22 and 952.215-23 are
removed.
43. Subsection 952.233-2 is revised to read as follows:
952.233-2 Service of protest.
As prescribed in 48 CFR 933.106(a), add the following to the end of
the clause at FAR 52.233-2:
(c) Another copy of a protest filed with the General Accounting
Office shall be furnished to the following address within the time
periods described in paragraph (b) of this clause: U.S. Department
of Energy, Assistant General Counsel for Procurement and Financial
Assistance (GC-61), 1000 Independence Avenue, S.W., Washington, DC
20585, Fax: (202) 586-4546.
44. Subsection 952.233-4 is added to read as follows:
952.233-4 Notice of protest file availability.
As prescribed in 933.106(b), insert the following provision:
Notice of Protest File Availability (Sep 1996)
(a) If a protest of this procurement is filed with the General
Accounting Office (GAO) in accordance with 4 CFR Part 21, any actual
or prospective offeror may request the Department of Energy to
provide it with reasonable access to the protest file pursuant to
FAR 33.104(a)(3)(ii), implementing section 1065 of Public Law 103-
355. Such request must be in writing and addressed to the
contracting officer for this procurement.
(b) Any offeror who submits information or documents to the
Department for the purpose of competing in this procurement is
hereby notified that information or documents it submits may be
included in the protest file that will be available to actual or
prospective offerors in accordance with the requirements of FAR
33.104(a)(3)(ii). The Department will be required to make such
documents available unless they are exempt from disclosure pursuant
to the Freedom of Information Act. Therefore, offerors should mark
any documents as to which they would assert that an exemption
applies. (See 10 CFR part 1004.)
45. Subsection 952.233-5 is added to read as follows:
952.233-5 Agency protest review.
As prescribed in 48 CFR 933.106(c), insert the following provision:
Agency Protest Review (Sep 1996)
Protests to the Agency will be decided either at the level of
the Head of the Contracting Activity or at the Headquarters level.
The Department of Energy's agency protest procedures, set forth in
933.103, elaborate on these options and on the availability of a
suspension of a procurement that is protested to the agency. The
Department encourages potential protesters to discuss their concerns
with the contracting officer prior to filing a protest.
952.251-70 [Amended]
46. Subsection 952.251-70 is amended by revising the date of the
clause to read ``(June 1995)''.
PART 971--REVIEW AND APPROVAL OF CONTRACT ACTIONS [REMOVED]
47. Part 971 is removed.
[FR Doc. 96-20328 Filed 8-8-96; 8:45 am]
BILLING CODE 6450-01-P
Complete official Federal Register PDF
FR Doc. 96-20327 Exportation of Alcoholic Beverages, Denatured Alcohol, Tobacco Products and Cigarette Papers and Tubes (95R-046P)
[Federal Register Volume 61, Number 155 (Friday, August 9, 1996)]
[Rules and Regulations]
[Pages 41500-41505]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-20327]
=======================================================================
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DEPARTMENT OF THE TREASURY
Bureau of Alcohol, Tobacco and Firearms
27 CFR Parts 252 and 290
[Notice No. 835; Re: Notice Numbers 752, 754, 761 and 764]
RIN 1512-AA98 and 1512-AB03
Exportation of Alcoholic Beverages, Denatured Alcohol, Tobacco
Products and Cigarette Papers and Tubes (95R-046P)
AGENCY: Bureau of Alcohol, Tobacco and Firearms (ATF), Department of
the Treasury.
ACTION: Advance notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: As part of a regulatory reform initiative, the Bureau of
Alcohol, Tobacco and Firearms (ATF) is proposing to revise and recodify
the regulations covering exportation of alcoholic beverages, beer
concentrate, specially denatured alcohol, tobacco products, and
cigarette papers and tubes. Proposed changes include: setting standards
for satisfactory evidence of exportation, streamlining export
procedures, and reducing the paperwork burden on exporters.
DATES: Written comments must be received by October 8, 1996.
ADDRESSES: Send written comments to: Chief, Wine, Beer and Spirits
Regulations Branch, Bureau of Alcohol, Tobacco and Firearms, P.O. Box
50221, Washington, DC 20091-0221, Attn: Notice No. 835. Copies of
written comments received in response to this advance notice of
proposed rulemaking will be available for public inspection during
normal business hours at: ATF Reference Library, Office of Public
Affairs and Disclosure, Room 6300, 650 Massachusetts Avenue, NW.,
Washington, DC 20226.
FOR FURTHER INFORMATION CONTACT: Marjorie D. Ruhf, Wine, Beer and
Spirits Regulations Branch, Bureau of Alcohol, Tobacco and Firearms,
650 Massachusetts Avenue, NW., Washington, DC 20226 (202-927-8230).
SUPPLEMENTARY INFORMATION:
Background
On February 21, 1995, President Clinton announced a regulatory
reform initiative. As part of this initiative, each Federal agency was
instructed to conduct a page by page review of all agency regulations
to identify those which are obsolete or burdensome and those whose
goals could be better achieved through the private sector, self-
regulation or state and local governments. In cases where the agency's
review disclosed regulations which should be revised or eliminated, the
agency would propose administrative changes to its regulations. In
addition, on April 13, 1995, the Bureau published Notice 809 (60 FR
18783) requesting comments from the public regarding which ATF
regulations could be improved or eliminated. No specific comments were
received from the public concerning 27 CFR parts 252 and 290, but the
Bureau wishes to substantially revise these parts of the regulations
for reasons discussed later in the supplementary information.
Statutory Basis for Regulations
Since ATF wishes to open all areas of the export regulations for
comment at this time, we will begin with a brief summary of the
underlying statutes. In particular, we note there are some areas where
the statutory treatment of different commodities varies widely. Any
future regulations will reflect these statutory differences.
Distilled spirits may be withdrawn without payment of tax for
exportation (after making such application, filing such bonds, and
complying with such other requirements as may by regulations be
prescribed), for transfer to foreign-trade zones, for use of certain
vessels and aircraft, or for transfer to a customs bonded warehouse for
exportation, storage pending exportation, or withdrawal and use by
eligible diplomatic personnel. See 26 U.S.C. 5175, 5214 and 5066.
Wine may be withdrawn from bonded premises without payment of tax
for export by the proprietor or by any authorized exporter (under such
regulations and bonds as the Secretary may deem necessary); for
transfer to any foreign-trade zone; for use of certain vessels and
aircraft as authorized by law; or for transfer to any customs bonded
warehouse. Wine entered into customs bonded warehouses may be withdrawn
free of tax by eligible diplomatic personnel. See 26 U.S.C. 5362.
Beer may be removed from brewery premises without payment of tax
for exportation, use as supplies for certain vessels and aircraft, or
deposit in a foreign trade zone for exportation or storage pending
exportation (in such containers and under such regulations, and on the
giving of such notices, entries, and bonds and other security, as the
Secretary may by regulations prescribe). The brewer may also withdraw
beer concentrate without payment of tax for exportation or for deposit
in a foreign trade zone. See 19 U.S. C. 81c, 26 U.S.C. 5053.
Distilled spirits may be withdrawn free of tax for exportation
after denaturation in the manner prescribed by law. See 26 U.S.C. 5214.
When taxpaid distilled spirits which have been manufactured,
produced, bottled, or packaged in the United States and marked
especially for export are exported, laden for use as supplies on
qualified vessels or aircraft, deposited in a foreign trade zone for
exportation or storage pending exportation, or deposited in a customs
bonded warehouse for tax free withdrawal and use by accredited foreign
diplomatic personnel, the bottler or packager of the spirits may claim
drawback of the taxes paid. The Secretary is authorized to prescribe
regulations governing the determination and payment or crediting of
drawback, including the requirements of such notices, bonds, bills of
lading, and other evidence indicating payment and determination of tax
and exportation as are deemed necessary. See 19 U.S.C. 81c and 1309, 26
U.S.C. 5062, 5066.
When taxpaid wine which has been manufactured, produced, bottled,
or packaged in the United States is exported, laden for use as supplies
on qualified vessels or aircraft, or deposited in a foreign trade zone
for exportation or storage pending exportation, drawback of tax may be
claimed by the proprietor of the bonded wine cellar, taxpaid wine
bottling house, or wholesale liquor dealer who withdrew the wine. The
Secretary is authorized to prescribe regulations governing the
determination and payment or crediting of drawback, including the
requirements of such notices, bonds, bills of lading, and other
evidence indicating payment and determination of tax and exportation as
are deemed necessary. See 19 U.S.C. 81c and 1309, 26 U.S.C. 5062, 5066.
On the exportation of beer which has been brewed or produced in the
United States, the brewer thereof shall be allowed a drawback equal in
amount to the tax found to have been paid on such beer, to be paid on
submission of such
[[Page 41501]]
evidence, records and certificates indicating exportation, as the
Secretary may by regulations prescribe. Exportation includes delivery
for use as supplies on certain vessels or aircraft, or deposit in a
foreign trade zone for exportation or for storage pending exportation.
See 19 U.S.C. 81c and 1309, 26 U.S.C. 5055.
A manufacturer or export warehouse proprietor may remove tobacco
products and cigarette papers and tubes, without payment of tax, for
shipment to a foreign country, Puerto Rico, the Virgin Islands, or a
possession of the United States, or for consumption beyond the
jurisdiction of the internal revenue laws of the United States. See 26
U.S.C. 5704(b).
Drawback of tax paid on tobacco products and cigarette papers and
tubes which have been exported will be allowed in accordance with the
regulations, upon the filing of a bond. See 26 U.S.C. 5706.
Rulemaking History
With minor exceptions, the export regulations for alcoholic
beverages and tobacco products date from 1960 and 1966, respectively.
The Internal Revenue Service, which administered these regulations at
the time, issued Revenue Rulings 71-208 (1971-1 C.B. 480) and 72-300
(1972-1 C.B. 425) to advise exporters that it would consider
applications for permission to submit alternative forms of
documentation of export. By 1982, ATF identified the need for a major
revision of the export regulations and set a policy of allowing such
variances as were needed from the existing regulations until the
revision could be accomplished. Numerous variances and pilot projects
were approved under this policy, at both the district and national
level. Revisions to the regulations were discussed and reviewed, but no
Federal Register documents were published until 1992.
On September 8, 1992, ATF published advance notices of proposed
rulemaking to solicit comments from interested persons on revision and
recodification of Part 252, Exportation of liquors (Notice No. 752, 57
FR 40887) and Part 290, Exportation of tobacco products and cigarette
papers and tubes, without payment of tax, or with drawback of tax
(Notice No. 754, 57 FR 40889). The comment periods, both originally
scheduled to close October 8, 1992, were subsequently extended until
December 7, 1992, for liquors and March 9, 1993, for tobacco products
and cigarette papers and tubes.
First, the advance notices outlined the underlying statutory
requirements for exportation of the various commodities they covered.
Second, the advance notices suggested liberalizing export documentation
rules. Proposals included:
--Using a continuing application and a record of individual withdrawals
to be maintained by the proprietor instead of applications or notices
covering individual export transactions;
--Having the proprietor submit a monthly summary of export transactions
with its monthly operation report instead of sending advance copies of
the individual transaction forms;
--Using commercial records in place of ATF forms;
--Accepting certain commercial transaction records in place of Customs
certification as evidence of exportation; and
--Allowing exporters to maintain evidence of exportation at their
premises rather than sending it to ATF.
The two notices also made suggestions specific to individual
commodities, such as permitting dealers in specially denatured spirits
to withdraw such spirits free of tax for export and allowing greater
flexibility in the export marks placed on tobacco products.
Finally, the two notices solicited general comments on ways to
reduce paperwork, simplify procedures, and eliminate unnecessary
regulations in this area while continuing to maintain adequate
safeguards to the revenue.
Public Comments on Previous ANPRMs
Notice No. 752 concerning liquors received seven comments from
alcoholic beverage industry members or their representatives. All
comments were generally supportive of the goal of liberalizing export
procedures as stated in the notices. However, the suggestion that a
monthly summary of exports be submitted to ATF was opposed by two
commenters. The Brandy Association of America and the National
Association of Beverage Importers, Inc. both commented that this
proposal was unnecessary and duplicative. Glen Ellen Winery supported
ATF's suggestion that proprietors maintain evidence of exportation at
their premises instead of sending such evidence to ATF. They further
noted that proprietors ``found to have a system lacking in controls
could be required to continue submitting documents each month.'' We
will discuss these issues in greater detail in the sections of this
document on monthly summaries of export removals and allowing
proprietors to maintain evidence of exportation at their own premises.
On another subject, Miller Brewing Company suggested allowing
brewers to take credit on their tax returns instead of waiting for ATF
to issue a refund check for drawback of tax on exported beer. This is
not something ATF can change through rulemaking, since the underlying
statute, 26 U.S.C. 5055, which authorizes payment of export drawback on
beer, does not authorize credit. Section 5062(b), which covers drawback
for wine and spirits, authorizes either credit or payment. Under
current law, ATF believes it would be possible to credit proceeds of an
allowed claim, pursuant to authorization of the claimant, against tax
owed by such claimant. We will propose a regulatory procedure to comply
with requests for credit of the proceeds of an allowed claim from
brewers. Finally, the alcoholic beverage industry commenters were
unanimous and enthusiastic in their endorsement of ATF's proposal to
substitute commercial records for ATF export forms.
Notice No. 754 on tobacco products received two comments from
tobacco product manufacturers. Both Brown & Williamson Tobacco
Corporation and R.J. Reynolds Tobacco Company supported continued use
of ATF Form 2149/2150, saying it provided the best method of
documenting export removals for both ATF and industry. R.J. Reynolds
went on to request clarification of export marking requirements and
procedures for shipments of domestic and export tobacco products to
Class 9 Customs Bonded Warehouses.
Diversion Problems
As ATF noted in Industry Circular 94-1, dated April 14, 1994, and
Industry Circular 95-1, dated January 19, 1995, we have encountered a
number of situations in which distilled spirits were withdrawn from
bond for exportation overseas, but were smuggled into Canada or
remained illegally in the United States. Although these circulars dealt
specifically with spirits, other commodities regulated by ATF are also
being found outside of legitimate export channels. As a result of these
findings, ATF is increasing its investigations of exports, and taking
appropriate action where it finds goods have been diverted. Industry
Circular 95-1 points out the tax and permit consequences of improperly
documenting exports, as well as the potential civil and criminal
penalties for violations of Titles 18 and 26 of the U.S. Code.
[[Page 41502]]
Summary of Export Variances and Pilot Programs
ATF has approved numerous individual variances and pilot programs
for exporters of alcoholic beverages and tobacco products or cigarette
papers and tubes. Recently, the Bureau has begun evaluating the
component parts of these variances and pilot programs to determine
which have been successful for both exporters and the Bureau and which
have not. The variances and pilot programs that have been approved by
ATF are summarized below. We are requesting comments on whether these
procedures should be incorporated into the regulations in the manner
described below or with some modifications. While some of the
procedures dealt with alcoholic beverages and others with tobacco
products, we are interested in comments on whether the procedures
should apply to only some of these taxable commodities or should apply
equally to alcoholic beverages, denatured alcohol, tobacco products or
cigarette papers and tubes destined for exportation.
Substituting Commercial Documents for ATF Forms
Existing regulations require exporters to use ATF forms to record
shipments destined for export and obtain certification of export. Under
approved variances, some exporters substitute commercial documents
containing required minimum information for the ATF forms. This
variance has been generally successful. Exporters using this variance
have stamped certificate of receipt information on an empty area of the
commercial document and obtained appropriate certifications. ATF users
(inspectors, auditors, and specialists) found that the commercial
records met their needs, except that with a variety of different
documents covering different types of shipments, the benefit of
serially numbered export documents was no longer available. Since
invoices and bills of lading must be generated to cover export
shipments anyway, this variance has reduced the paperwork burden on
exporters. ATF is considering eliminating the ATF export forms in favor
of commercial transaction forms, with minimum information requirements
to be set forth in regulations. However, the two commenters on the
tobacco export proposals expressed a preference for continued
availability of ATF forms. We would like details of instances where ATF
forms work better than commercial documents, so that we may determine
if they should be retained for certain types of transactions.
Notice and Application Requirements
Under existing regulations, people who export alcoholic beverages,
tobacco products, or cigarette papers and tubes without payment of tax
file an advance copy (or copies) of the appropriate ATF form as either
a notice or an application. Proprietors of DSPs, wineries, breweries
and export warehouses, and tobacco product and cigarette paper and tube
manufacturers file a notice. Other exporters file an application and a
bond which must be approved before the export shipment can be made.
Some proprietors who are required by regulation to file a notice have
requested and received permission to maintain records of pending
exports at their premises, either on the ATF form or on an approved
substitute document. The terms and conditions of the individual
variances differ, but such variances are granted only to proprietors
with maximum bond coverage and good compliance history. Proprietors are
asked to submit a monthly summary of export shipments to ATF in lieu of
filing individual notices. These variances have generally worked well,
and most ATF users of this information feel the notice requirement can
be eliminated without jeopardy to the revenue. Exporters appear to
prefer maintaining the records of pending export shipments at their
premises. ATF is considering a proposal to eliminate the notice
requirement for proprietors with maximum bond coverage. The application
requirement would be retained, as would the notice requirement for
proprietors with less than maximum bond coverage. Comments are
solicited on this proposal.
Monthly Summaries of Export Removals
As noted above, two commenters on Notice No. 752 specifically
stated they believed the proposed monthly summary of export shipments
was an unnecessary burden on the industry. We do not agree such a
summary is an added burden, since the exporter must summarize and total
export shipments to arrive at the export figure shown in the monthly
report of operations. We simply propose that a copy of this workpaper
be filed with the report. Further, in ATF's experience, this summary
provides needed structure in the absence of notices and serially
numbered ATF export forms. Despite the commenters' claim that the
information is available elsewhere in the proprietor's records, we
believe the preparation of a summary gives both ATF and the exporter a
basis to determine if all exports are accounted for. If ATF proposes
amending the regulations to eliminate the notice requirement, allow use
of commercial documents as evidence of export, and allow proprietors to
maintain such evidence at their premises instead of mailing it to ATF,
we will also propose requiring submission of some sort of summary of
pending export shipments. Additionally, now that certain small wineries
are allowed to file annual operational reports and certain small
brewers are allowed to file quarterly operational reports, we must
consider whether proprietors who file less frequent operational reports
should also file less frequent summaries. Commenters who disagree with
the summary proposal are requested to provide specific alternative
suggestions for insuring that all exports are accounted for.
Allowing Proprietors To Maintain Evidence of Exportation at Their Own
Premises
Under variances approved by ATF, some proprietors are maintaining
evidence of exportation at their premises instead of sending it to ATF
Technical Services in support of export drawback claims or in order to
be relieved of liability for shipments withdrawn for export without
payment of tax. This variance has presented more administrative
problems than any other, but we believe this may be due to an
incomplete understanding of the exporter's responsibility under such
variances. When the export evidence is filed with ATF, ATF examines the
evidence, notes any discrepancies, and follows up with the exporter.
Post audits have revealed exporters sometimes rely on evidence which is
not approved by ATF, and some proprietors who export without payment of
tax do not follow up appropriately if they do not receive evidence of
exportation. Even in cases where exportation is ultimately documented,
ATF reviewers encounter substantial administrative difficulty in this
area.
When ATF examines documentation we receive on products withdrawn
without payment of tax for exportation, ATF follows up with the
exporter in cases where the evidence of exportation is not received
within 90 days of withdrawal for exportation. The exporter is usually
given another 45 days to obtain evidence of exportation or make a
voluntary payment of tax. After that, if no evidence of exportation is
received, ATF will enter an assessment for the tax due. Export
proprietors operating under variances
[[Page 41503]]
which allow maintenance of export documentation at their premises often
do not realize they have the same responsibility to voluntarily pay
taxes if evidence of exportation was not received in a reasonable
amount of time.
If we are to consider allowing proprietors to maintain their own
export documentation at their premises as part of this rulemaking, we
believe it will be necessary to include safeguards, such as very
specific time limits and instructions as to when tax becomes due on
undocumented exports. In addition, if such a liberalization is
proposed, we will also propose the delegation of authority to the
District Directors and Chiefs, Technical Services to require filing of
this documentation with ATF in cases where it is deemed necessary. One
further safeguard under consideration is a requirement that exporters
submit a summary of shipments withdrawn without payment of tax for
export during a given period with their operational reports for that
period (as discussed above) and, 90 days later, submit a second copy of
the summary showing by a check mark or other notation that each of the
summarized shipments has been documented. For those exports which are
not documented at the time, the 45-day notice and assessment process
would begin. We will also propose adding procedures for claiming refund
of any taxes paid in these circumstances (subject to the time limits in
26 U.S.C.6511) if exportation is subsequently documented. Comments on
these proposals and any alternative suggestions are solicited.
Alternate Evidence of Export
ATF has had mixed results from allowing alternatives to Customs
certification as evidence of export. We will discuss some of the major
categories below, and then give our proposals.
Export bills of lading signed by a representative of the export
carrier or certificates of landing signed by a representative of the
destination country have proven to be generally reliable, but there
have been exceptions which raise questions about the reliability of any
export documentation. One difficulty with these alternate
certifications is that there is no standardized way to verify that the
person signing is employed by and authorized to sign for the carrier or
the receiving country. We request input from industry members on
commercial safeguards available to assure the validity of such
receipts. ATF may be able to adapt any such safeguards for use in
verifying export certifications.
In some cases we approved variances allowing evidence of payment by
the foreign customer to be used as evidence of exportation, but we
found that this variance was not always successful. Some foreign
customers paid a foreign subsidiary of the U.S. exporter, and the
financial record offered as evidence of export was an internal company
document or, conversely, the U.S. exporter was paid by a U.S.
subsidiary of the foreign customer, or even by an unrelated broker
located in the U.S. The anticipated safeguard of a foreign source of
funds unrelated to the exporter was not present, so these forms of
documentation, by themselves, have not been adequate. If we propose to
accept evidence of payment at all, we will propose limitations on the
types of transactions where it can be used. We solicit comments on this
approach.
In some post-audits, exporters presented facsimile transmitted
copies of signed export bills of lading or copies of unsigned computer
printouts of bills of lading from shipping companies as evidence of
exportation where the original document was unavailable. We are
considering what circumstances would warrant the use of such forms, and
what evidence might be available to assure that these facsimile records
represent true copies of the original documents. ATF must be able to
rely on any documents accepted. We solicit comments on both the need
for facsimile copies and computer generated forms to document
exportation, and any appropriate safeguards.
Proposals on Export Documentation
As discussed above, we have found problems with some of the forms
of export documentation which we allowed under variances. As we analyze
the reports of investigation, we have tried to define the features or
characteristics we want to see in future export documentation. Here is
a list of proposed standards:
--The document should clearly relate to the goods in question;
--Certification should come from someone other than the exporter or its
affiliate; and
--Certification should come from someone with firsthand knowledge that
the goods were exported.
Exporters have offered such items as the Commerce Department's
Shipper's Export Declaration or inland bills of lading with export
shipping instructions attached, both of which are prepared by the
exporter alone, or a freight bill from the export carrier, which may
not identify the merchandise well enough for our purposes, or a
broker's certification, which may not be based on firsthand knowledge.
In addition to ATF's revenue protection interest in assuring these
goods were actually exported, exporters have their own commercial
reasons for wanting reliable shipping documents. We request examples or
descriptions of documents or records generated as part of export
transactions which may meet the standards proposed above or otherwise
provide assurance that goods destined for export did, in fact, leave
the country. Finally, we solicit comments on whether exporters would
prefer a list of specific documents which would be acceptable (with the
option of applying for permission to use other specific documents), or
a more general statement of standards which must be met by any document
used as evidence of export.
Export Transportation, Consignment and Ownership
Another important safeguard built into the requirement that ATF
receive and review copies of all export transaction forms was our
ability to screen export shipments to insure that the export
transaction warranted such status. As we review records retained at
their premises by exporters operating under a variance, we find that
there are misunderstandings in two areas: eligibility for exportation
without payment of tax, and need for permits and special taxes on the
part of some purchasers. We believe that clarification of the
regulations in these areas will improve compliance.
Eligibility for Export Without Payment of Tax
Some exporters were found to be making withdrawals of merchandise
without payment of tax for export, and then failing to transport the
merchandise directly to the foreign destination or place it under
Customs supervision. In addition, ATF has received applications for
permission to store, repack or consolidate shipments of products
withdrawn without payment of tax for export while such products were in
transit to the point of export. ATF's main concern in reviewing these
arrangements is that the locations where the storage, repacking or
consolidation occur are not covered by an ATF bond, and are not under
the supervision of the Customs Service. ATF is concerned that these
arrangements do not afford adequate protection to the revenue and they
present administrative problems, in that ATF would have to regulate
many temporary storage facilities.
[[Page 41504]]
Under the current law and regulations, the storage, repacking or
consolidation of taxable products withdrawn for exportation without
payment of tax can only occur on ATF bonded premises, in a customs
bonded warehouse, in a foreign trade zone, or at the port of export
under the supervision of the District Director of the Customs Service.
However, there is no such restriction on storage, repacking or
consolidation of taxpaid export shipments in transit.
If commenters wish to request that ATF reconsider its position on
this matter, we request suggestions as to appropriate safeguards to
assure protection to the revenue without placing undue restrictions on
persons transporting taxable merchandise in bond. Should there be
limitations on allowable location, responsible persons, or time spent
in storage? Are records generated during repacking or consolidation
which would permit positive identification of the shipment and a
``paper trail'' for both commercial and regulatory purposes? What sort
of permit or bonding requirement should be imposed on facilities where
untaxpaid merchandise is stored, repacked or consolidated while in
transit?
Wholesaler's Basic Permits and Special Tax Requirements for
Purchasers
A second issue noted during ATF review of documentation retained at
exporters' premises is the need for wholesalers' permits and payment of
special (occupational) tax when someone other than the producer exports
alcoholic beverages. Revenue Ruling 60-299 (1960-2 C.B. 619) stated:
A ship chandler who engages in the domestic purchase of
distilled spirits, wine or beer for sale (even though he sells them
exclusively to vessels engaged in foreign trade) for use as ships
supplies must obtain a basic permit as a wholesaler. * * *
A ship chandler who withdraws alcoholic beverages for sale to a
ship which is engaged in foreign trade and which uses them as ships'
supplies solely outside the jurisdictional limits of the United
States, is not subject to special tax as a wholesale dealer since
such vessel is not considered a dealer within the meaning of section
5112(a) of the Code, and the sale of spirits to such vessel is not a
sale to another dealer as provided in section 5112(b) and (c) of the
Code. Such a ship chandler is, however, subject to the special tax
as a retail dealer.
ATF believes information on this requirement should be incorporated
into the revised regulations.
Other Changes Under Consideration
ATF is considering allowing exporters to claim drawback on ATF Form
5620.8 (2635), a general-purpose claim form, using commercial documents
to show exportation instead of the ATF export drawback claim forms.
There are several variances in place to permit exporters to maintain
full evidence of exportation at their premises and submit a summary of
the export shipments covered by a given claim. ATF is evaluating the
success of these variances from its own point of view, and solicits
industry comments on this subject. As with evidence of exports without
payment of tax, if ATF decides to propose allowing exporters to
maintain export documentation at their premises, we will propose
authority for the District Director and Chief, Technical Services to
require submission of the forms where it is deemed necessary. Where the
export drawback claimant is also a taxpayer, we are considering
allowing the claimant the option of requesting that the proceeds of an
approved claim be credited against tax owed by such claimant.
Under existing regulations, all wine exporters must prepare two
documents, an export form, and a certificate of tax determination, Form
2605. ATF plans to eliminate the certificate requirement for exports by
the bottler who makes the tax determination, and only require such a
certificate when the exporter is not the bottler.
Under current alcohol and tobacco export regulations and approved
variances, the marks showing that goods are destined for export are
sometimes required and sometimes not. The only statutory requirement
for export marks applies to taxpaid distilled spirits exported subject
to drawback, but many sections of the regulations require export marks.
The marking requirements have historically been viewed as a useful
enforcement tool. For instance, a consumer may report finding products
marked for export on domestic retail shelves. Such ``leads'' may result
in the government's apprehension of a smuggler or enhance a producer's
ability to identify an individual who is selling returned goods which
should have been destroyed for quality control reasons. ATF is
considering whether export marks should be mandatory in all situations
and whether any product so marked that is found in domestic commerce
should be subject to forfeiture as property used in violation of the
internal revenue laws. Accordingly, we solicit comments from interested
persons concerning the advantages or disadvantages of export markings.
In ATF's review of its own regulations, we noted that there was
considerable duplication of regulatory language because there are
separate parts of the regulations which cover exportation of
``liquors'' (alcoholic beverages and denatured alcohol) and tobacco
products and cigarette papers and tubes. Since the concepts of tax
liability, bond coverage and need for evidence of exportation are the
same for all these commodities, and some exporters handle both
alcoholic beverages and tobacco products, we solicit comments on the
idea of merging the export provisions for alcoholic beverages and
denatured alcohol, currently in part 252, and those for tobacco
products and cigarette papers and tubes, currently in part 290, into a
single part. The export warehouse qualification and operation
requirements, which are also in part 290, may then be retained as a
separate part or merged into part 270, Manufacture of Tobacco Products,
since the qualification, bonding and operational requirements for these
activities are closely related and derived from the same or similar
sections of the law. Interested persons are invited to comment on these
alternatives.
Verification of Evidence Presented
ATF is developing methods of verifying the accuracy of any piece of
export documentation presented in support of an export without payment
of tax or an export drawback claim by confirming that such shipment was
received through legitimate channels at the stated destination. Such
confirmation will be done by contacting appropriate officials at the
stated destination, either under a bilateral agreement with the
destination country under 26 U.S.C. 6103(k)(4) or pursuant to new
regulations which ATF is considering adding to the export regulations
under the provisions of 26 U.S.C. 6103(k)(6). This section allows
disclosure of tax information for investigative purposes in such
situations and under such conditions as the Secretary may prescribe by
regulations.
Administrative Provisions
The tobacco export regulations at 27 CFR part 290 clearly noted
ATF's right of entry and examination and assessment authority, but the
liquor export regulations in 27 CFR part 252 do not. We plan to propose
such provisions as a part of the revised regulations, along with a
reference to the criminal penalties imposed by Titles 18 and 26 of the
U.S. Code for falsification or fraudulent execution of export
documentation.
[[Page 41505]]
Transition to New Rules
When new export rules are implemented, they will supersede existing
regulations and all variances under those regulations. Since there are
so many different arrangements in place, we understand that a period of
transition will be needed. We believe that allowing two months from
publication of the final rule to its effective date should provide
adequate time for exporters to change to the new procedures. We solicit
comments on this subject.
Public Participation
ATF requests comments from all interested persons on the proposals
presented in this advance notice. We particularly request statements
from exporters on the significance and reliability of available
commercial documentation. We also solicit comments on any additional
issues related to exportation of alcoholic beverages, denatured
alcohol, tobacco products, or paper tubes.
Comments received on or before the closing date will be carefully
considered. Comments received after the closing date will be given the
same consideration if it is practical to do so, but assurance of
consideration cannot be given except as to comments received on or
before the closing date. ATF will not recognize any material or
comments as confidential. All comments submitted in response to this
notice will be available for public inspection. Any material that the
commenter considers confidential or inappropriate for disclosure to the
public should not be included in the comment. The name of the person
submitting the comment is not exempt from disclosure.
Executive Order 12866
It has been determined that this document is not a major regulation
as defined in E.O. 12866; therefore, a regulatory impact analysis is
not required. The proposals discussed in this advance notice of
proposed rulemaking, if adopted in regulations, will not have an annual
effect on the economy of $100 million or more, will not result in a
major increase in costs or prices for consumers, individual industries,
Federal, State, or local government agencies or geographical regions,
and will not have significant adverse effects on competition,
employment, investment, productivity, innovation, or on the ability of
the United States-based enterprises to compete with foreign-based
enterprises in domestic or export markets.
Drafting Information: The principal author of this document is
Marjorie D. Ruhf of the Wine, Beer and Spirits Regulations Branch,
Bureau of Alcohol, Tobacco and Firearms.
List of Subjects
27 CFR Part 252
Aircraft, Alcohol and alcoholic beverages, Armed Forces, Authority
delegations (government agencies), Beer, Claims, Excise taxes, Exports,
Fishing vessels, Foreign trade zones, Labeling, Liquors, Packaging and
containers, Reporting and recordkeeping requirements, Surety bonds,
Vessels, Warehouses, Wine.
27 CFR Part 290
Administrative practice and procedure, Aircraft, Authority
delegations (government agencies), Cigarette papers and tubes, Claims,
Customs duties and inspection, Excise taxes, Exports, Foreign trade
zones, Labeling, Packaging and containers, Penalties, Surety bonds,
Vessels, Warehouses.
Authority: This advance notice of proposed rulemaking is issued
under the authority in 26 U.S.C. 7805.
Signed: May 13, 1996.
John W. Magaw,
Director.
Approved: June 5, 1996.
John P. Simpson,
Deputy Assistant Secretary (Regulatory, Tariff and Trade Enforcement).
[FR Doc. 96-20327 Filed 8-8-96; 8:45 am]
BILLING CODE 4810-31-P
Complete official Federal Register PDF
FR Doc. 96-20326 National Commission on Wildfire Disasters
[Federal Register Volume 61, Number 155 (Friday, August 9, 1996)]
[Rules and Regulations]
[Page 41507]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-20326]
=======================================================================
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DEPARTMENT OF AGRICULTURE
Forest Service
36 CFR Part 211
National Commission on Wildfire Disasters
AGENCY: Forest Service, USDA.
ACTION: Final rule; technical amendment.
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SUMMARY: The National Wildfire Commission was established pursuant to
the Wildfire Disaster Recovery Act of 1989 to study the effects of
disastrous wildfires. The Act provided that the Commission would be
dissolved following submission of the Commission's final report. The
final report was filed in May 1994, and the commission dissolved;
therefore, the regulation governing donations to support the work of
the Commission is no longer needed and is being removed. The Agency
identified the need to remove this obsolete regulation during a review
of regulations undertaken as part of the President's Regulatory
Reinvention Initiative.
EFFECTIVE DATE: August 9, 1996.
FOR FURTHER INFORMATION CONTACT: Laurie Perrett, Fire and Aviation
Management Staff, Forest Service, USDA, P.O. Box 96090, Washington,
D.C. 20090-6090, (202) 205-1511.
SUPPLEMENTARY INFORMATION:
Background
The Wildfire Disaster Recovery Act of 1989 (16 U.S.C. 551 note)
directed the Secretary of Agriculture to establish a National
Commission on Wildfire Disasters. Section 105 of the Act provided that
the Secretary could receive donations to support the work of the
Commission.
The Department published an interim rule in the Federal Register on
October 7, 1991, (56 FR 50512) to establish uniform administrative
procedures for receiving and processing contributions to the
Commission. Regulations were needed to assure adherence to the
statutory limitation on contributions.
The Commission completed its study and published its report in May
1994. The Commission was disbanded following publication of its report.
Following a review of Forest Service regulations under the
President's Regulatory Reinvention Initiative, the Agency identified
this regulation as no longer needed, and, accordingly, by this
amendment, is removing the rule from the Code of Federal Regulations.
Because of the narrow scope and limited effect of this action, the
Agency has determined that this amendment is a technical amendment for
which notice and comment pursuant to the Administrative Procedures Act
(5 U.S.C. 553) is neither practicable nor necessary.
Regulatory Impact
This rule is a technical amendment to remove an obsolete regulation
and, as such, has no substantive effect, nor is it subject to review
under USDA procedures and Executive Order 12866 on Regulatory Planning
and Review. Accordingly, this rule is not subject to OMB review under
Executive Order 12866.
Moreover, because good cause exists to exempt his rule from notice
and comment pursuant to 5 U.S.C. 553, this rule is exempt from further
analysis under the Unfunded Mandates Reform Act of 1995; Executive
Order 12778, Civil Justice Reform; Executive Order 12630, Takings
Implications; or the Paperwork Reduction Act of 1995.
List of Subjects in 36 CFR Part 211
Administrative practice and procedure, Fire prevention,
Intergovernmental relations, National forests.
Therefore, for the reasons set forth in the preamble, Part 211 of
Title 36 of the Code of Federal Regulations is hereby amended as
follows:
PART 211--[AMENDED]
1. The authority citation for Part 211 continues to read as
follows:
Authority: 30 Stat. 35, as amended, sec. 1, 33 Stat. 628 (16
U.S.C. 551, 472).
Sec. 211.6 [Removed]
2. Remove section 211.6.
Dated: August 6, 1996.
David G. Unger,
Associate Chief.
[FR Doc. 96-20326 Filed 8-8-96; 8:45 am]
BILLING CODE 3410-11-M
Complete official Federal Register PDF
FR Doc. 96-20319 Fisheries of the Exclusive Economic Zone Off Alaska; Improve Individual Fishing Quota Program
[Federal Register Volume 61, Number 155 (Friday, August 9, 1996)]
[Rules and Regulations]
[Pages 41523-41526]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-20319]
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DEPARTMENT OF COMMERCE
50 CFR Part 679
[Docket No. 960401095-6212-02; I.D. 032596A]
RIN 0648-AH61
Fisheries of the Exclusive Economic Zone Off Alaska; Improve
Individual Fishing Quota Program
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS issues a final rule amending the regulations implementing
the Individual Fishing Quota (IFQ) Program for the Pacific halibut and
sablefish fixed gear fisheries in and off of Alaska. This rule also
eliminates a prohibition pertaining to IFQ sablefish in the regulations
governing the groundfish fisheries in the Gulf of Alaska (GOA). After
the first year of the IFQ Program's operation, the North Pacific
Fishery Management Council (Council) and NMFS recognize aspects of the
Program that need further refinement. This action is necessary to make
those refinements and is intended to improve the ability of NMFS to
manage the Pacific halibut and sablefish fixed gear fisheries.
EFFECTIVE DATE: September 9, 1996.
ADDRESSES: Copies of the final rule and the Regulatory Impact Review
for this action may be obtained from: Fisheries Management Division,
Alaska Region, NMFS, Room 453, 709 W. 9th Street, Juneau, AK 99801, or
P.O. Box 21668, Juneau, AK 99802, Attention: Lori J. Gravel.
FOR FURTHER INFORMATION CONTACT: James Hale, 907-586-7228.
SUPPLEMENTARY INFORMATION:
Background
Regulations codified at 50 CFR 679 implement the IFQ Program, a
limited access system for management of the Pacific halibut
(Hippoglossus stenolepis) and sablefish (Anoplopoma fimbria) fixed gear
fisheries in and off of Alaska, under the authority of the Northern
Pacific Halibut Act with respect to halibut and the Magnuson Fishery
Conservation and Management Act (Magnuson Act) with respect to
sablefish. Further information on the rationale for and implementation
of the IFQ Program is contained in the preamble to the final rule
published in the Federal Register on November 9, 1993 (58 FR 59375).
This action amends various portions of the regulations implementing
the IFQ Program and eliminates a prohibition in the groundfish
regulations that pertains to IFQ sablefish. These changes are intended
to improve the ability of fishermen to conduct fishing operations under
the IFQ Program, to refine NMFS' ability to administer the program
effectively, and to make the Program more responsive to conservation
and management goals for Pacific halibut and sablefish fisheries. A
proposed rule was published in the Federal Register, which invited
comments through May 24, 1996 (61 FR 18116; April 24, 1996). No
comments were received. The following list is a brief description of
the regulatory provisions added or amended by this rule. Further
information on these changes is contained in the preamble to that
proposed rule (61 FR 31228; June 19, 1996).
Elimination of the 72-hour ``Fair Start'' Provision
Section 679.7(b)(2) is removed to eliminate the prohibition against
deploying fixed gear during the 72-hour period preceding the opening of
fixed gear sablefish fishing seasons. NMFS has determined that this
prohibition is no longer necessary. Under the IFQ Program, which
lengthened GOA fixed gear sablefish seasons, the problems addressed by
the ``fair start'' provision have been resolved.
Revision of the Owner-Aboard Restriction
Section 679.4(d)(6)(ii) is revised to allow fishermen to leave
their vessels during the time between their arrival in port and the
beginning of landing operations. IFQ regulations formerly required IFQ
holders to be aboard vessels used to harvest IFQ fish during all
fishing operations to ensure that the catcher vessel fleet remains
primarily an owner-operator fleet. As revised the regulation continues
to require that IFQ holders be aboard during harvest and landing of IFQ
fish, except as allowed by the emergency waiver provision; however, IFQ
fishermen no longer have to remain aboard in the interim between
[[Page 41524]]
arriving in port and unloading IFQ harvests.
Delivery of IFQ Halibut Bycatch by Salmon Fishers
Exceptions to two landing requirements at Sec. 679.5 are provided
to encourage salmon fishermen with halibut IFQ to land incidental
catches of halibut. Paragraph (C) is added to Sec. 679.5(l)(1)(i) to
relieve salmon trollers of the IFQ Program's 6-hour prior notice of
landing requirement for delivery of 500 lb (0.227 metric tons (mt)) or
less of IFQ halibut bycatch concurrently with legal salmon landings.
Paragraph (2) is added to Sec. 679.5(l)(1)(ii)(B) to relieve salmon
fishermen of the restriction that IFQ landings be made between the
hours of 0600 and 1800 only, when landing 500 lb (0.227 mt) or less of
IFQ halibut bycatch concurrently with legal salmon landings.
Revision of Shipment Report Requirement
This action revises Sec. 679.5(l)(2) to modify IFQ Shipment Report
requirements. After the first year of the IFQ Program's operation, NMFS
finds the current requirement to be unnecessary to monitor and enforce
the IFQ Program effectively. This final rule modifies the current
regulation to require that the Shipment Report be filled out prior to
shipment and submitted to NMFS within 1 week after the date on which
the shipment occurred. This action also requires that the Shipment
Report or a bill of lading accompany a shipment of IFQ species to the
first destination beyond the landing point only. These changes relieve
a reporting requirement on shipments of IFQ fish by allowing Shipment
Reports to be submitted up to 1 week after the shipment occurred. In
addition, a registered buyer is relieved of the requirement to produce
multiple copies of the Shipment Report.
Revision of Transshipment Requirements
Section 679.5(l)(2)(v) is revised to clarify requirements governing
transshipment of IFQ species. Former regulations providing for
transshipment might have been misinterpreted to mean that 24-hour prior
notice of a transshipment is sufficient to ``authorize'' a
transshipment. This regulatory amendment specifies that authorization
from a clearing officer to transship IFQ species must itself be
obtained by the prospective transshipper 24 hours before the proposed
transshipment could occur. The amendment further requires that the
request for authorization specify the date and location of the proposed
transshipment.
Tagged Halibut and Sablefish
Paragraph (h) is added to Sec. 679.40 to allow tagged halibut and
sablefish to be landed without being debited to a person's IFQ halibut
or IFQ sablefish quota. The International Pacific Halibut Commission
(IPHC) has requested that the IFQ regulations be amended to encourage
the landing of tagged halibut in support of the IPHC's biological
research on halibut. Accordingly, NMFS adds to the IFQ regulations a
provision that tagged halibut not be counted against an IFQ holder's
annual Pacific halibut quota. This provision also applies to the
capture of tagged sablefish to promote NMFS' fisheries research.
Elimination of Certified Mail Requirements
Sections 679.40(c)(3) and 679.41(d)(4) are amended to eliminate
certified mail requirements. To make the IFQ Program more cost-
effective, NMFS eliminates certified mail requirements but retains
discretion to use certified mailings when appropriate.
Revisions to the Transfer Process
The transfer process for QS and IFQ is revised to address two
issues identified by NMFS and the fishing industry during the first
year of fishing under the IFQ Program. First, the provision for leasing
QS at Sec. 679.41(b)(1) is revised to allow leasing of IFQ under the
same conditions. NMFS determined that allowing the lease of IFQ
separate from QS would restore the full benefit of the Council's intent
that all persons holding QS assigned to vessel categories B, C, or D be
allowed to lease up to 10 percent of that QS for a period of 3 years.
Regulations at Sec. 679.41(g) and (h) also are revised to reflect this
change.
Second, new paragraphs (k)(1) and (2) are added to Sec. 679.41 to
provide for the transfer of all QS and IFQ to the surviving spouse of a
deceased individual holder of QS or IFQ by right of survivorship,
unless contrary intent was expressed by the deceased holder of QS or
IFQ in a probated will. This provision allows the surviving spouse,
first, to transfer any current year's IFQ for the duration of the
allocation year and, second, to transfer annual allocations of IFQ
resulting from the total QS transferred by right of survivorship for 3
calendar years from the date of the death of the deceased holder of QS
or IFQ. The new provision allows a surviving spouse to transfer the
total IFQ resulting from QS for a period of 3 years and thereby obtain
pecuniary benefit from the QS for that period. An Application for
Transfer of QS or IFQ to the surviving spouse will be approved by the
Director, Alaska Region, NMFS (Regional Director) when sufficient
evidence, such as a death certificate, has been provided to verify the
death of the holder of QS or IFQ. If the deceased provided for
distribution of the QS or IFQ in a will that is probated, then the QS
or IFQ will be transferred under the provisions for transfer as a
result of court order or operation of law set out in Sec. 679.41(f) and
other transfer provisions of Sec. 679.41.
In the interim between publication of the proposed and final rules
for this action, the regulations governing fisheries in the Exclusive
Economic Zone off Alaska have been consolidated into one new CFR part
(50 CFR part 679) as part of the President's Regulatory Reform
Initiative (see 61 FR 31228, June 19, 1996). This final rule renumbers
and otherwise adjusts the changes contained herein to be consistent
with the new disposition of regulations in 50 CFR part 679. There have
been no substantive changes from the proposed rule.
Classification
The Regional Director determined that the amendments are necessary
for the conservation and management of the IFQ fisheries and that the
amendments are consistent with the Magnuson Act, the Northern Pacific
Halibut Act, and other applicable laws.
Notwithstanding any other provision of law, no person is required
to respond to, nor shall a person be subject to a penalty for failure
to comply with, a collection of information subject to the requirements
of the Paperwork Reduction Act unless that collection of information
displays a currently valid OMB control number.
This action will not require the collection of information not
already approved by the Office of Management and Budget (OMB). The
collection of information originally authorized for the IFQ Program
included in the request for transshipment authorization information
regarding the primary port location of the proposed transshipment. The
requirement that transshipments take place in primary ports only was
subsequently removed from regulations implementing the IFQ Program; the
information required remains accounted for and approved by OMB (OMB
control number 0648-0272) regarding IFQs for Pacific halibut and
sablefish. This action simply reinstates the requirement that requests
for transshipment authorization include notice of the location of the
proposed transshipment, although that location no longer need be
[[Page 41525]]
a primary port. The estimated response time for the transshipment
notice is 6 minutes. This action also restates existing requirements
for prior notices of landing, shipment reports, and applications for
transfer of IFQs, all of which also are approved under OMB control
number 0648-0272. The respective estimated response times for these
requirements are 12 minutes, 12 minutes, and 2 hours. No additional
burden is required of the public for information not already projected
for IFQ recordkeeping and reporting requirements.
This final rule has been determined to be not significant for
purposes of E.O. 12866.
The Assistant General Counsel for Legislation and Regulation of the
Department of Commerce certified to the Chief Counsel for Advocacy of
the Small Business Administration when this rule was proposed that it
would not have a significant economic impact on a substantial number of
small entities. The reasons were published in the Federal Register on
April 24, 1996 (61 FR 18116). As a result, a regulatory flexibility
analysis was not prepared.
List of Subjects in 50 CFR Part 679
Fisheries, Reporting and recordkeeping requirements.
Dated: August 5, 1996.
C. Karnella,
Acting Program Management Officer, National Marine Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 679 is amended
as follows:
PART 679--FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA
1. The authority citation for 50 CFR part 679 continues to read as
follows:
Authority: 16 U.S.C. 773 et seq, 1801 et seq.
2. In Sec. 679.4, paragraph (d)(6)(ii) is revised to read as
follows:
Sec. 679.4 Permits.
* * * * *
(d) * * *
(6) * * *
(ii) IFQ card. Except as specified in Sec. 679.42(d), an individual
that is issued an IFQ card must remain aboard the vessel used to
harvest IFQ halibut or IFQ sablefish with that card during all fishing
operations until arrival at the point of landing and during all IFQ
landings. The IFQ cardholder must present a copy of the IFQ permit and
the original IFQ card for inspection on request of any authorized
officer, clearing officer, or registered buyer purchasing IFQ species.
Nothing in this paragraph would prevent an individual who is issued an
IFQ card from being absent from the vessel used to harvest IFQ halibut
or IFQ sablefish between the time the vessel arrives at the point of
landing until the commencement of landing.
* * * * *
3. In Sec. 679.5, the introductory text of paragraph (l)(1)(i) and
paragraphs (l)(1)(ii)(B), (l)(2)(i), (l)(2)(iii), and (l)(2)(v) are
revised; paragraph (l)(1)(i)(C) is added to read as follows:
Sec. 679.5 Recordkeeping and reporting.
* * * * *
(l) * * *
(1) IFQ landings report--(i) Prior notice of IFQ landing. Except as
provided in paragraph (l)(1)(i)(C) of this section, the operator of any
vessel making an IFQ landing must notify the Alaska Region, NMFS, no
fewer than 6 hours before landing IFQ halibut or IFQ sablefish, unless
permission to commence an IFQ landing within 6 hours of notification is
granted by a clearing officer.
* * * * *
(C) The operator of a category B, C, or D vessel, as defined at
Sec. 679.40(a)(5), making an IFQ landing of IFQ halibut of 500 lb
(0.227 mt) or less of weight determined pursuant to Sec. 679.42(c)(ii)
and concurrent with a legal landing of salmon is exempt from the prior
notice of landing required by this section.
(ii) * * *
(B) An IFQ landing may commence only between 0600 hours, A.l.t.,
and 1800 hours, A.l.t., unless:
(1) Permission to land at a different time is granted in advance by
a clearing officer; or
(2) IFQ halibut of 500 lb (0.227 mt) or less of weight determined
pursuant to Sec. 679.42(c)(ii) is landed concurrently with a legal
landing of salmon by a category B, C, or D vessel, as defined at
Sec. 679.40(a)(5).
* * * * *
(2) IFQ shipment report--(i) Applicability. Each registered buyer,
other than those conducting dockside sales, must report on a shipment
report any shipments or transfers of IFQ halibut and IFQ sablefish to
the first destination beyond the location of the IFQ landing.
* * * * *
(iii) Registered Buyer. A registered buyer must:
(A) Complete a Shipment Report for each shipment or transfer from
that registered buyer prior to shipment and assure that the Shipment
Report is submitted to, and received by, the Alaska Region, NMFS,
within 7 days of the date shipment or transfer commenced;
(B) Assure that a copy of the Shipment Report or a bill of lading
that contains the same information accompanies the shipment to its
first destination beyond the location of the IFQ landing; and
(C) Submit a revised Shipment Report if any information on the
original Shipment Report changes prior to the first destination of the
shipment. A revised Shipment Report must be clearly labeled ``Revised
Shipment Report,'' and must be received by the Alaska Region, NMFS,
within 7 days of the change.
* * * * *
(v) Transshipment. No person may transship processed IFQ halibut or
IFQ sablefish between vessels without authorization by a clearing
officer. Authorization from a clearing officer must be obtained for
each instance of transshipment at least 24 hours before the
transshipment is intended to commence. Requests for authorization must
specify the date and location of the transshipment.
* * * * *
Sec. 679.7 [Amended]
4. In Sec. 679.7, paragraph (b)(2) is removed and reserved.
5. In Sec. 679.40, paragraph (c)(3) is revised, and paragraph (g)
is added to read as follows:
Sec. 679.40 Sablefish and halibut QS.
* * * * *
(c) * * *
(3) IFQ permit. The Regional Director shall issue to each QS
holder, pursuant to Sec. 679.4, an IFQ permit accompanied by a
statement specifying the maximum amount of halibut and sablefish that
may be harvested with fixed gear in a specified IFQ regulatory area and
vessel category as of January 31 of that year. Such IFQ permits will be
mailed to each QS holder at the address on record for that person after
the beginning of each fishing year but prior to the start of the annual
IFQ fishing season.
* * * * *
(g) Tagged halibut and sablefish. (1) Nothing contained in this
part shall prohibit any person at any time from retaining and landing a
Pacific halibut or sablefish that bears at the time of capture a
research tag from any state, Federal, or international agency, provided
that the halibut or sablefish is:
(i) A Pacific halibut landed pursuant to 50 CFR 300.18; or
[[Page 41526]]
(ii) A sablefish landed in accordance with the Tagged Groundfish
Research Program.
(2) Tagged halibut or sablefish landed pursuant to paragraphs
(1)(i) or (1)(ii) of this section shall not be calculated as part of an
individual's IFQ harvest or be debited against an individual's halibut
or sablefish IFQ.
6. In Sec. 679.41, paragraphs (b)(1), (d)(4), (d)(5) introductory
text, (g)(1), (g)(2), and (h) are revised, and paragraph (k) is added
to read as follows:
Sec. 679.41 Transfer of QS and IFQ.
* * * * *
(b) Transfer procedure--(1) Application for transfer. An
Application for Transfer of QS/IFQ (Application for Transfer) must be
approved by the Regional Director before a person may use IFQ to
harvest IFQ halibut or IFQ sablefish, whether the IFQ was the result of
a direct transfer or the result of a QS transfer. An Application for
Transfer will not be approved until the Regional Director has reviewed
and approved the transfer agreement signed by the parties to the
transaction. The Regional Director shall provide an Application for
Transfer form to any person on request. Persons who submit an
Application for Transfer to the Regional Director for approval will
receive notification of the Regional Director's decision to approve or
disapprove the Application for Transfer, and, if applicable, the
reason(s) for disapproval, by mail posted on the date of that decision,
unless another communication mode is requested on the Application for
Transfer.
* * * * *
(d) * * *
(4) Notification of approval. Applicants will be notified by mail
of the Regional Director's approval of an application for eligibility.
(5) Notification of disapproval. The Regional Director will notify
the applicant if an Application for Eligibility is disapproved. This
notification of disapproval will include:
* * * * *
(g) Transfer restrictions. (1) Except as provided in paragraph (f)
or paragraph (g)(2) of this section, only persons who are IFQ crew
members or who were initially issued QS assigned to vessel categories
B, C, or D, and meet the other requirements in this section, may
receive by transfer QS assigned to vessel categories B, C, or D, or the
IFQ resulting from it.
(2) Except as provided in paragraph (g)(3) of this section, only
persons who are IFQ crew members, and meet the other requirements in
this section, may receive by transfer QS assigned to vessel categories
B, C, or D, or the IFQ resulting from it, in IFQ regulatory area 2C for
halibut or in the IFQ regulatory area east of 140 deg. W. long. for
sablefish.
* * * * *
(h) Transfer of IFQ. (1) Pursuant to paragraph (a) of this section,
an Application for Transfer must be approved by the Regional Director
before a person may use any IFQ that results from a direct transfer to
harvest halibut or sablefish. After approving the Application for
Transfer, the Regional Director will change any IFQ accounts affected
by the approved transfer and issue all necessary IFQ permits.
(2) (Applicable until January 2, 1998). A person may transfer no
more than 10 percent of the total IFQ resulting from QS held by that
person and assigned to vessel categories B, C, or D for any IFQ species
in any IFQ regulatory area to one or more persons for any fishing year.
* * * * *
(k) Transfer to the surviving spouse. (1) On the death of an
individual who holds QS or IFQ, the surviving spouse receives all QS
and IFQ held by the decedent by right of survivorship, unless a
contrary intent was expressed by the decedent in a will that is
probated. The Regional Director will approve an Application for
Transfer to the surviving spouse when sufficient evidence has been
provided to verify the death of the individual.
(2) The Regional Director will approve, for 3 calendar years
following the date of death of an individual, an Application for
Transfer of IFQ from the surviving spouse to a person eligible to
receive IFQ under the provisions of this section, notwithstanding the
limitations on transfers of IFQ in paragraph (g)(2) of this section.
[FR Doc. 96-20319 Filed 8-6-96; 11:57 am]
BILLING CODE 3510-22-F
Complete official Federal Register PDF
FR Doc. 96-20318 Fisheries of the Exclusive Economic Zone Off Alaska
[Federal Register Volume 61, Number 155 (Friday, August 9, 1996)]
[Rules and Regulations]
[Pages 41522-41523]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-20318]
-----------------------------------------------------------------------
[[Page 41523]]
DEPARTMENT OF COMMERCE
50 CFR Part 679
[Docket No. 960129018-6018-01; I.D. 080596B]
Fisheries of the Exclusive Economic Zone Off Alaska
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Closure.
-----------------------------------------------------------------------
SUMMARY: NMFS is prohibiting directed fishing for species that comprise
the deep-water species fishery by vessels using trawl gear in the Gulf
of Alaska (GOA). This action is necessary because the third seasonal
bycatch allowance of Pacific halibut apportioned to the deep-water
species fishery in the GOA has been caught.
EFFECTIVE DATES: 1200 hrs, Alaska local time (A.l.t.), August 7, 1996,
until 2400 hrs, A.l.t., October 1, 1996.
FOR FURTHER INFORMATION CONTACT: Mary Furuness, 907-586-7228.
SUPPLEMENTARY INFORMATION: The groundfish fishery in the GOA exclusive
economic zone is managed by NMFS according to the Fishery Management
Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North
Pacific Fishery Management Council under authority of the Magnuson
Fishery Conservation and Management Act. Fishing by U.S. vessels is
governed by regulations implementing the FMP at subpart H of 50 CFR
part 600 and 50 CFR part 679.
The deep-water species fishery was apportioned 400 mt of Pacific
halibut prohibited species catch for the third season, the period July
1, 1996, through September 30, 1996 (61 FR 4304, February 5, 1996).
(See Sec. 679.21(d).)
The Director, Alaska Region, NMFS, has determined, in accordance
with Sec. 679.21(d)(7)(i), that vessels participating in the trawl
deep-water species fishery in the GOA have caught the third seasonal
bycatch allowance of Pacific halibut apportioned to that fishery.
Therefore, NMFS is prohibiting directed fishing for each species and
species group that comprise the deep-water species fishery by vessels
using trawl gear in the GOA. The species and species groups that
comprise the deep-water species fishery are: All rockfish of the genera
Sebastes and Sebastolobus, Greenland turbot, Dover sole, Rex sole,
arrowtooth flounder, and sablefish.
Maximum retainable bycatch amounts for applicable gear types may be
found at Sec. 679.20(e).
Classification
This action is taken under 50 CFR 679.21 and is exempt from review
under E.O. 12866.
Authority: 16 U.S.C. 1801 et seq.
Dated: August 5, 1996.
Richard W. Surdi,
Acting Director, Office of Fisheries Conservation and Management,
National Marine Fisheries Service.
[FR Doc. 96-20318 Filed 8-6-96; 11:57 am]
BILLING CODE 3510-22-F
Complete official Federal Register PDF
FR Doc. 96-20317 Small Business Investment Companies; Correction
[Federal Register Volume 61, Number 155 (Friday, August 9, 1996)]
[Rules and Regulations]
[Page 41496]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-20317]
=======================================================================
-----------------------------------------------------------------------
SMALL BUSINESS ADMINISTRATION
13 CFR Part 107
Small Business Investment Companies; Correction
AGENCY: Small Business Administration.
ACTION: Correction to final regulations.
-----------------------------------------------------------------------
SUMMARY: This document contains corrections to the final regulations
that were published Wednesday, January 31, 1996, (61 FR 3177).
EFFECTIVE DATE: January 31, 1996.
FOR FURTHER INFORMATION CONTACT: Leonard Fagan, Office of Investment,
(202) 205-6510.
SUPPLEMENTARY INFORMATION:
Background
The final regulations that are the subject of these corrections
concern policies applicable to financing of small businesses by
licensees and participating securities leverage under the Small
Business Investment Company program.
Need for Correction
As published, the final regulations contain errors that may prove
to be misleading and are in need of clarification.
List of Subjects in 13 CFR Part 107
Investment companies, Loan programs--business, Reporting and
recordkeeping requirements, Small businesses.
PART 107--SMALL BUSINESS INVESTMENT COMPANIES
Accordingly, 13 CFR Part 107 is corrected by making the following
correcting amendments:
1. The authority citation for Part 107 continues to read as
follows:
Authority: 15 U.S.C. 681 et seq., 683, 687(c), 687b, 687d, 687g,
and 687m.
Sec. 107.50 [Corrected]
In Sec. 107.50, in the definition of ``Affiliate or Affiliates'',
the citation to ``Sec. 121.401'' is revised to read ``Sec. 121.103''.
Sec. 107.860 [Corrected]
In Sec. 107.860, paragraph (b), the citation to ``Sec. 107.115'' is
revised to read ``107.500''.
Sec. 107.1530 [Corrected]
In Sec. 107.1530, in the example to paragraph (g)(2)(i), in the
brackets following the last sentence, the word ``Rate'' is added after
the word ``Treasury''.
In Sec. 107.1530, in paragraph (g)(2)(ii), the portion of the
equation ``((.0855 x .08)-.08)'' is revised to read ``((.0855-
.08).08)''.
Dated: July 30, 1996.
Philip Lader,
Administrator.
[FR Doc. 96-20317 Filed 8-8-96; 8:45 am]
BILLING CODE 8025-01-P
Complete official Federal Register PDF
FR Doc. 96-20274 Special Local Regulations; Lansing Fish Days, Upper Mississippi River Mile 663.0663.5, Lansing, IA
[Federal Register Volume 61, Number 155 (Friday, August 9, 1996)]
[Rules and Regulations]
[Pages 41505-41506]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-20274]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Coast Guard
33 CFR Part 100
[CGD08-96-038]
RIN 2115-AE46
Special Local Regulations; Lansing Fish Days, Upper Mississippi
River Mile 663.0--663.5, Lansing, IA
AGENCY: Coast Guard, DOT.
ACTION: Temporary final rule.
-----------------------------------------------------------------------
SUMMARY: Special local regulations are being adopted for the Lansing
Fish Days Celebration. This event will be held on August 10 and 11,
1996 at Lansing, Iowa. These regulations are needed to provide for the
safety of life on navigable waters during the event.
EFFECTIVE DATE: These regulations are effective from 9 p.m. to 11 p.m.
local time on August 10, 1996, and from 2 p.m. to 4 p.m. local time on
August 11, 1996.
FOR FURTHER INFORMATION CONTACT:
SCPO J. R. Van Reese, U.S. Coast Guard, Marine Safety Detachment, PO
Box 65428, St. Paul, MN 55165-0428. Tel: (612) 290-3991.
SUPPLEMENTARY INFORMATION:
Regulatory History
In accordance with 5 U.S.C. 553, a notice of proposed rulemaking
for these regulations has not been published and good cause exists for
making them effective in less than 30 days from the date of
publication. Following normal rulemaking procedures would have been
impracticable. Specifically, the details of the event were not
finalized until July 8, 1996, and there was not sufficient time
remaining to publish proposed rules in advance of the event or to
provide for a delayed effective date.
Background and Purpose
The marine event requiring this regulation is a lighted venetian
boat parade and professional water ski show. The event is sponsored by
the Lansing Lions Club, Inc. of Lansing, Iowa. Spectators are to
maintain a safe distance which will be determined by event sponsor and
controlled by Coast Guard patrol commander.
Regulatory Evaluation
This rule is not a significant regulatory action under section 3(f)
of Executive Order 12866 and does not require an assessment of
potential costs and benefits under section 6(a)(3) of that order. It
has been exempted from review by the Office of Management and Budget
under that order. It is not under the regulatory policies and
procedures of the Department of Transportation (DOT) (44 FR 11040;
February 26, 1979). The Coast Guard expects the economic impact of this
rule to be so minimal that a full Regulatory Evaluation under paragraph
10e of the regulatory policies and procedures of DOT is unnecessary
because of the events short duration.
Federalism Assessment
The Coast Guard has analyzed this action in accordance with the
principles and criteria of Executive Order 12612 and has determined
that this rule does not raise sufficient federalism implications to
warrant the preparation of a Federalism Assessment.
Environmental Assessment
The Coast Guard considered the environmental impact of this rule
and concluded that under section 2.B.2.C. of Commandant Instruction
M16475.1B, (as revised by 61 FR 13563; March 27,
[[Page 41506]]
1996) this rule is excluded from further environmental documentation.
Small Entities
The Coast Guard finds that the impact on small entities, if any, is
not substantial. Therefore, the Coast Guard certifies under section
605(b) of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) that
this temporary rule will not have a significant economic impact on a
substantial number of small entities because of the event's short
duration.
Collection of Information
This rule contains no information collection requirements under the
Paperwork Reduction Act (44 U.S.C. 3501 et seq.).
List of Subjects in 33 CFR Part 100
Marine safety, Navigation (water), Reporting and recordkeeping
requirements, Waterways.
Temporary Regulations
In consideration of the forgoing, Part 100 of Title 33, Code of
Federal Regulations, is amended as follows:
PART 100--[AMENDED]
1. The authority citation for part 100 continues to read as
follows:
Authority: 33 U.S.C. 1233; 49 CFR 1.46.
2. A temporary Sec. 100.35 T08-038 is added to read as follows:
Sec. 100.35 T08-038 Upper Mississippi River near Lansing, Iowa.
(a) Regulated area. Mississippi River mile 663.0 to Mississippi
River mile 663.5.
(b) Special local regulation. All persons and vessels not
registered with the sponsors as participants or official patrol vessels
are considered spectators. The ``official patrol'' consists of any
Coast Guard, public, state or local law enforcement or sponsor provided
vessels assigned to patrol the event.
(1) No spectators shall anchor, block, loiter in or impede the
through transit of participants or official patrol vessels in the
regulated area during effective dates and times, unless cleared for
such entry by or through an official patrol vessel.
(2) When hailed or signaled, by an official patrol vessel, a
spectator shall come to an immediate stop. Vessels shall comply with
all directions given; failure to do so may result in a citation.
(3) The Patrol Commander may control the movement of all vessels in
the regulated area. The Patrol Commander may terminate the event at any
time it is deemed necessary for the protection of life or property and
can be reached on VHF-FM Channel 16 by using the call sign ``PATCOM''.
(c) Effective Date: This section is effective from 9 p.m. to 11
p.m. local time on August 10, 1996, and from 2 p.m. to 4 p.m. local
time on August 11, 1996.
Dated: July 24, 1996.
T.W. Josiah,
Rear Admiral, U.S. Coast Guard, Commander, Eighth Coast Guard District.
[FR Doc. 96-20274 Filed 8-8-96; 8:45 am]
BILLING CODE 4910-14-M
Complete official Federal Register PDF
FR Doc. 96-20273 Special Local Regulations; Inland Seafood Festival Jet Boat Races, Ohio River Mile 469.5 to 471.2, Cincinnati, Ohio
[Federal Register Volume 61, Number 155 (Friday, August 9, 1996)]
[Rules and Regulations]
[Pages 41506-41507]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-20273]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
33 CFR Part 100
[CGD08-96-034]
RIN 2115-AE46
Special Local Regulations; Inland Seafood Festival Jet Boat
Races, Ohio River Mile 469.5 to 471.2, Cincinnati, Ohio
AGENCY: Coast Guard, DOT.
ACTION: Temporary final rule.
-----------------------------------------------------------------------
SUMMARY: Special local regulations are being adopted for the Inland
Seafood Festival Jet Boat Races. This event will be held on August 10,
1996 from 3:30 p.m. until 6:30 p.m. at Cincinnati, Ohio. These
regulations are needed to provide for the safety of life on navigable
waters during the event.
EFFECTIVE DATE: These regulations are effective from 3:30 p.m. until
6:30 p.m., on August 10, 1996.
FOR FURTHER INFORMATION CONTACT:
LT Gregory A. Howard, Chief, Port Operations Department, USCG Marine
Safety Office, Louisville, Kentucky at (502) 582-5194 ext. 39.
SUPPLEMENTARY INFORMATION:
Regulatory History
In accordance with 5 U.S.C. 553, a notice of proposed rule making
for these regulations has not been published, and good cause exists for
making them effective in less than 30 days from the date of
publication. Following normal rule making procedures would be
impracticable. The details of the event were not finalized in
sufficient time to publish proposed rules in advance of the event or to
provide for a delayed effective date.
Background and Purpose
The marine event requiring this regulation is a series of jet boat
races. The event is sponsored by the Motor Sport Management. The course
to be followed by the race participants will be marked by marker buoys
positioned at various points along the course.
Regulatory Evaluation
This rule is not a significant regulatory action under section 3(f)
of Executive Order 12866 and does not require an assessment of
potential costs and benefits under section 6(a)(3) of that order. It
has not been reviewed by the Office of Management and Budget under that
order. It is not significant under the regulatory policies and
procedures of the Department of Transportation (DOT) (44 FR 11040;
February 26, 1979). The Coast Guard expects the economic impact of this
rule to be so minimal that a full Regulatory Evaluation under paragraph
10e of the regulatory policies and procedures of DOT is unnecessary
because of the event's short duration.
Small Entities
The Coast Guard finds that the impact on small entities, if any, is
not substantial. Therefore, the Coast Guard certifies under section
605(b) of the Regulatory Flexibility Act (5 U.S.C. 601 et seq) that
this temporary rule will not have a significant economic impact on a
substantial number of small entities because of the event's short
duration.
Collection of Information
This rule contains no information collection requirements under the
Paperwork Reduction Act (44 U.S.C. 3501 et seq.).
Federalism Assessment
The Coast Guard has analyzed this action in accordance with the
principles and criteria of Executive Order 12612 and has determined
that this rule does not raise sufficient federalism implications to
warrant the preparation of a Federalism Assessment.
Environmental Assessment
The Coast Guard considered the environmental impact of this rule
and concluded that under section 2.B.2.C. of Commandant Instruction
M16475.1B, (as revised by 61 FR 13563; March 27, 1996) this rule is
excluded from further environmental documentation.
List of Subjects in 33 CFR Part 100
Marine safety, Navigation (water), Reporting and recordkeeping
requirements, Waterways
Temporary Regulations
In consideration of the foregoing, Part 100 of Title 33, Code of
Federal Regulations, is amended as follows:
PART 100--[AMENDED]
1. The authority citation for part 100 continues to read as
follows:
Authority: 33 U.S.C. 1233; 49 CFR 1.46.
[[Page 41507]]
2. A temporary section 100.35 T08-034 is added to read as follows:
Sec. 100.35 T08-034 Ohio River at Cincinnati, Ohio.
(a) Regulated area: Ohio River Mile 469.5 to Ohio River Mile 471.2.
(b) Special local regulation: All persons and vessels not
registered with the sponsors as participants or official patrol vessels
are considered spectators. ``Participants'' are those persons and
vessels identified by the sponsor as taking part in the event. The
``official patrol'' consists of any coast Guard, public, state or local
law enforcement or sponsor provided vessel assigned to patrol the
event. The Coast Guard ``Patrol Commander'' is a Coast Guard
commissioned, warrant, or petty officer who has been designated by
Commanding Officer, Coast Guard Marine Safety Office Louisville.
(1) No vessel shall anchor, block, loiter in, or impede the through
transit of participants or official patrol vessels in the regulated
area during effective dates and times, unless cleared for such entry by
or through an official patrol vessel.
(2) When hailed or signaled by an official patrol vessel, a
spectator shall come to an immediate stop. Vessels shall comply with
all directions given; failure to do so may result in a citation.
(3) The Patrol Commander may control the movement of all vessels in
the regulated area. The Patrol Commander may terminate the event at any
time it is deemed necessary for the protection of life or property and
can be reached on VHF-FM Channel 16 by using the call sign ``PATCOM''.
(c) Effective Date: These regulations are effective from 3:30 p.m.
to 6:30 p.m. August 10, 1996.
Dated: July 24, 1996.
T.W. Josiah,
Rear Admiral, U.S. Coast Guard, Commander, Eighth Coast Guard District.
[FR Doc. 96-20273 Filed 8-8-96; 8:45 am]
BILLING CODE 4910-14-M
Complete official Federal Register PDF
FR Doc. 96-20228 Interpretative Policy Memorandum on Reapplication Requirements for Municipal Separate Storm Sewer Systems
[Federal Register Volume 61, Number 155 (Friday, August 9, 1996)]
[Rules and Regulations]
[Pages 41698-41699]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-20228]
[[Page 41697]]
_______________________________________________________________________
Part III
Environmental Protection Agency
_______________________________________________________________________
40 CFR Part 122
Interpretative Policy Memorandum on Reapplication Requirements for
Municipal Separate Storm Sewer Systems; Final Rule
Federal Register / Vol. 61, No. 155 / Friday, August 9, 1996 / Rules
and Regulations
[[Page 41698]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 122
[FRL-5533-7]
Interpretative Policy Memorandum on Reapplication Requirements
for Municipal Separate Storm Sewer Systems
AGENCY: Environmental Protection Agency (EPA).
ACTION: Policy statement; interpretation.
-----------------------------------------------------------------------
SUMMARY: By today's notice EPA announces federal policy, signed by
Robert Perciasepe, Assistant Administrator for Water, on May 17, 1996,
regarding application requirements for renewal or reissuance of
National Pollutant Discharge Elimination System (NPDES) permits for
municipal separate storm sewer systems (MS4s). Today's action responds
to requests from municipalities and NPDES permit writers for
clarification about regulations which do not appear to address
reapplication requirements, i.e., permit reissuance. Today's notice
explains that MS4 permit applicants and NPDES permit writers have
considerable discretion to customize appropriate and streamlined
reapplication requirements on a case-by-case basis, specifically, by
using the fourth year annual report as the principal reapplication
document.
EFFECTIVE DATE: This policy is effective May 17, 1996.
FOR FURTHER INFORMATION CONTACT: Marilyn Fonseca, Office of Wastewater
Management, MC-4203, U.S. Environmental Protection Agency, 401 M Street
SW., Washington, DC 20460, (202)-260-0592, e-mail:
Fonseca.M[email protected]
SUPPLEMENTARY INFORMATION: The text of this policy is as follows:
Municipal Separate Storm Sewer System Permit Reapplication Policy
The 1987 amendments to the Clean Water Act added Section 402(p)
which directed the Environmental Protection Agency to establish
regulations governing storm water discharges under the National
Pollutant Discharge Elimination System (NPDES) program. Early in the
program, Congress specifically required NPDES permits for municipal
separate storm sewer systems (MS4s) serving populations over 100,000.
In response, EPA promulgated regulations in 1990 that established
permit application requirements for MS4s that serve populations over
100,000. MS4 permits have since been drafted and finalized for many
municipal systems. A number of MS4 permits are due to expire and must
be reissued.
EPA is providing this policy memorandum to outline permit
reapplication requirements for regulated MS4s. There are three
components to EPA's reapplication policy. First, EPA is not requiring
that the process used for part 1 and 2 of the initial permit
application be repeated in full. Second, EPA has identified basic
information that should be included in every reapplication package.
Finally, EPA is seeking to improve existing MS4 storm water management
programs by using information and experience municipalities have gained
during the previous permit term.
Is a Permit Reapplication Necessary?
Yes. The requirement that all point source discharges authorized by
a NPDES permit must reapply is well established at 40 CFR 122.41(b) and
122.46(a):
Duty to reapply. If the permittee wishes to continue an activity
regulated by this permit after the expiration date of this permit,
the permittee must apply for and obtain a new permit.
Duration of permits. NPDES permits shall be effective for a
fixed term not to exceed 5 years.
The reapplication requirement is also found at 40 CFR 122.21(d):
Duty to reapply. . . . All other permittees with currently
effective permits shall submit a new application 180 days before the
existing permit expires.
Therefore, all regulated Phase I MS4s need to participate in a
permit reapplication process.
Where a complete reapplication package has been submitted as
directed by the permit authority, conditions of an expired MS4 permit
will continue until the effective date of a new permit, as stated in 40
CFR 122.6(a) and (b):
(a) EPA permits. When EPA is the permit-issuing authority, the
conditions of an expired permit continue in force . . . until the
effective date of a new permit . . . and (b) Effect. Permits
continued under this section remain fully effective and enforceable.
Are Initial MS4 Permit Application Requirements Applicable To Permit
Reapplication?
No. The scope of the initial permit application requirements was
comprehensive and regulated MS4s invested considerable resources to
develop these applications. The initial applications have laid the
foundation for the long-term implementation of MS4 storm water
management programs. EPA believes reapplications should focus on
maintenance and improvement of these programs.
The MS4 permit application requirements at 40 CFR 122.26(d)(1) and
(2) apply to the first round permit applications required of large and
medium MS4s. The permit application deadline regulations in 40 CFR
122.26(e) (3) & (4) clearly reflect the ``one time'' nature of the Part
I & II application requirements for large and medium MS4s. EPA has not
promulgated regulations applicable to reapplication for MS4s.
Requirements to demonstrate adequate legal authority, perform source
identification (e.g., identify major outfalls and facility inventory),
characterize data, and develop a storm water management program should
have been addressed in the initial application phase. Therefore, to
request the same information again, where it has already been provided
and has not changed, would be needlessly redundant. Thus, as a
practical matter, most first-time permit application requirements are
unnecessary for purposes of second round MS4 permit application.
What Basic Information Must Be Submitted for an MS4 Permit
Reapplication?
EPA is committed to allowing permitting authorities to develop
flexible reapplication requirements that are site-specific. In the
absence of reapplication regulations specific to MS4s, minimum
reapplication requirements are drawn from the generic NPDES permit
application regulations at 40 CFR 122.21(f). EPA regulations suggest
the following basic information be included as part of any permit
reapplication:
--name and mailing address(es) of the permittee(s) that operate the
MS4, and
--names and titles of the primary administrative and technical contacts
for the municipal permittee(s).
In addition, in the reapplication, municipalities should identify
any proposed changes or improvements to the storm water management
program and monitoring activities for the upcoming five year term of
the permit, if those proposed changes have not already been submitted
pursuant to 40 CFR 122.42(c). [A requirement to submit proposed changes
to the storm water management program is specified in the annual
reporting requirements in 40 CFR 122.42(c)(2).] EPA encourages
permitting authorities to make use of the fourth year annual report as
the basic permit reapplication package.
[[Page 41699]]
Changes to the storm water management program may be justified due
to the availability of new information on the relative magnitude of a
problem or new data on water quality impacts of the storm water
discharges. Municipalities may also propose to de-emphasize some
program components and strengthen others, based on the experience
gained under the first permit. Proposed elimination of a program
component might be justified upon permit renewal; for example, when a
component is no longer a problem area (i.e., all detention basins have
been retrofitted) or when a different water quality program would serve
the same goals.
The components of the original storm water management program which
are found to be effective should be continued and made an ongoing part
of the proposed new storm water management program. Such components may
include:
--continued emphasis on public education programs, particularly
programs on proper disposal of waste oil and household hazardous waste
and pesticide application;
--continued, if not greater, emphasis on addressing impacts of new
development/construction;
--proper storm design criteria for all new developments;
--retrofitting and/or upgrading of the existing storm sewer system
according to a priority system;
--more frequent maintenance of storm sewer systems and storm water
treatment systems;
--coordination with adjacent MS4s on monitoring or other efforts; and
--using a watershed approach to storm water management.
The accumulated annual report information as outlined in 40 CFR
122.42(c) should be evaluated and, to the extent applicable, be
incorporated by reference into the reapplication package.
To reiterate, MS4s may use the fourth year annual report, which
emphasizes proposed changes to the storm water management program, with
the additional required basic information, as the MS4 permit
reapplication. Changes to the storm water management program should be
jointly developed by the permitting authority and the permit applicant.
In this regard, we urge permit issuance authorities and permittees to
work together to assure that the permit reapplication is complete and
addresses all appropriate issues. The permitting agency may request
additional technical information be submitted in the reapplication.
NPDES permitting authorities, therefore, can exercise their information
gathering authority under CWA Section 308, or analogous State
provisions to complete the permit reapplication on a case-by case
basis, as appropriate.
What Additional Information Should Be Considered for a Reapplication?
EPA also recommends the following information be provided by
reapplicants to the permitting authority, as outlined in 40 CFR
122.26(d)(1)(iv)(C):
--identification of any previously unidentified water bodies that
receive discharges from the MS4, and
--a summary of any known water quality impacts on the newly identified
receiving waters (based on best available data).
In addition, EPA recommends the following information be provided
to the permitting authority as well:
--a description of changes in co-applicants since issuance of initial
MS4 permit, and
--identification number of the existing NPDES MS4 permit.
Further, EPA encourages permitting authorities to work with
permittees to determine if storm water monitoring efforts are
appropriate and useful. For example, during the previous permit term,
municipalities may have found that their monitoring program was not
fully successful in characterizing the nature and extent of storm water
problems. Reapplication is an appropriate time for MS4s to evaluate
their monitoring program and propose changes to make the program more
appropriate and useful. To accomplish this, municipalities may wish to
consider using monitoring techniques other than end-of-the pipe
chemical-specific monitoring, including habitat assessments,
bioassessments and/or other biological methods.
Permitting authorities should incorporate any such new information,
together with assembled materials from the initial application and the
existing permit, to form the administrative record for any reissued MS4
permits. Such administrative records should be made publicly available
as part of the process to reissue the permit.
Dated: June 28, 1996.
Michael B. Cook,
Director, Office of Wastewater Management.
[FR Doc. 96-20228 Filed 8-8-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-20203 Milk in the Carolina and Certain Other Marketing Areas; Interim Amendment of Orders
[Federal Register Volume 61, Number 155 (Friday, August 9, 1996)]
[Rules and Regulations]
[Pages 41488-41496]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-20203]
=======================================================================
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Parts 1005, 1007, 1011, and 1046
[Docket No. AO-388-A9, et al.; DA-96-08]
Milk in the Carolina and Certain Other Marketing Areas; Interim
Amendment of Orders
------------------------------------------------------------------------
7 CFR part Marketing area Docket No.
------------------------------------------------------------------------
1005............... Carolina................ AO-388-A9.
1007............... Southeast............... AO-366-A38.
1011............... Tennessee Valley........ AO-251-A40.
1046............... Louisville-Lexington- AO-123-A67.
Evansville.
------------------------------------------------------------------------
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Interim amendment of rules.
-----------------------------------------------------------------------
SUMMARY: This interim rule amends, on an emergency basis, four Federal
milk orders in the Southeastern United States. The amendments establish
a transportation credit balancing fund from which to reimburse handlers
for the cost of importing bulk milk into these markets for fluid use
when local supplies are insufficient to meet fluid needs. The
amendments also establish a monthly assessment to maintain the solvency
of the fund and a methodology for computation of the transportation
credits. The rules are based upon proposals that were considered at a
public hearing held May 15-16, 1996, in
[[Page 41489]]
Charlotte, North Carolina. More than the required two-thirds of the
producers in each of the affected marketing areas have approved the
issuance of the interim amendments.
EFFECTIVE DATE: August 10, 1996.
FOR FURTHER INFORMATION CONTACT: Nicholas Memoli, Marketing Specialist,
USDA/AMS/Dairy Division, Order Formulation Branch, Room 2971, South
Building, P. O. Box 96456, Washington, DC 20090-6456, (202) 690-1932.
SUPPLEMENTARY INFORMATION: This administrative rule is governed by the
provisions of Sections 556 and 557 of Title 5 of the United States Code
and, therefore, is excluded from the requirements of Executive Order
12866.
The Regulatory Flexibility Act (5 U.S.C. 601-612) requires the
agency to examine the impact of a rule on small entities. Pursuant to 5
U.S.C. 605(b), the Agricultural Marketing Service has determined that
this rule will not have a significant economic impact on a substantial
number of small entities. No new entities will be regulated as a result
of the proposed rules, and any changes experienced by handlers will be
of a minor nature.
The amended orders will promote orderly marketing of milk by
producers and regulated handlers by providing transportation credits to
assist them in bringing supplemental milk to the market for fluid use.
There will be a modest assessment on handlers to provide funds for the
proposed new transportation credits, but this assessment will not
exceed 6 cents per hundredweight of Class I producer milk. The
assessment will be reduced or waived completely once the balance in the
transportation credit balancing fund is sufficient to cover six months'
credits. The 6-cent per hundredweight assessment translates to less
than one-half cent per gallon of milk.
At present, all handlers regulated under the four milk orders
involved in this proceeding file a monthly report of receipts and
utilization with the market administrator. The amendments resulting
from this proceeding will add two lines of information to this report.
However, only those handlers applying for transportation credits on
supplemental milk will have to provide this additional information to
the market administrator. The estimated time to collect, aggregate, and
report this information, which is already compiled by handlers for
other uses, is less than 15 minutes per month.
The net impact of the amendments on dairy farmers should be
insignificant. Some dairy farmers may experience a reduction in their
blend price during the first year that the new rules are in effect.
This reduction, which should amount to less than 5 cents per
hundredweight, will occur if the balance in the transportation credit
balancing fund is insufficient to cover the current month's
transportation credits. Once the fund has been fully endowed, dairy
farmers should experience no reduction in the uniform price as a result
of transportation credits.
This interim amendment has been reviewed under Executive Order
12988, Civil Justice Reform. This rule is not intended to have a
retroactive effect. This rule will not preempt any state or local laws,
regulations, or policies, unless they present an irreconcilable
conflict with the rule.
The Agricultural Marketing Agreement Act of 1937, as amended (7
U.S.C. 601-674), provides that administrative proceedings must be
exhausted before parties may file suit in court. Under section
608c(15)(A) of the Act, any handler subject to an order may file with
the Secretary a petition stating that the order, any provision of the
order, or any obligation imposed in connection with the order is not in
accordance with the law and requesting a modification of an order or to
be exempted from the order. A handler is afforded the opportunity for a
hearing on the petition. After a hearing, the Secretary would rule on
the petition. The Act provides that the District Court of the United
States in any district in which the handler is an inhabitant, or has
its principal place of business, has jurisdiction in equity to review
the Secretary's ruling on the petition, provided a bill in equity is
filed not later than 20 days after the date of the entry of the ruling.
Prior Documents in This Proceeding
Notice of Hearing: Issued May 1, 1996; published May 3, 1996 (61 FR
19861).
Tentative Partial Final Decision: Issued July 12, 1996; published
July 18, 1996 (61 FR 37628).
Findings and Determinations
The findings and determinations hereinafter set forth supplement
those that were made when the aforesaid orders were first issued and
when they were amended. The previous findings and determinations are
hereby ratified and confirmed, except where they may conflict with
those set forth herein.
The following findings are hereby made with respect to the
aforesaid orders:
(a) Findings upon the basis of the hearing record. Pursuant to the
provisions of the Agricultural Marketing Agreement Act of 1937, as
amended (7 U.S.C. 601-674), and the applicable rules of practice and
procedure governing the formulation of marketing agreements and
marketing orders (7 CFR Part 900), a public hearing was held upon
certain proposed amendments to the tentative marketing agreements and
to the orders regulating the handling of milk in the respective
marketing areas.
Upon the basis of the evidence introduced at such hearing and the
record thereof it is found that:
(1) The said orders, as hereby amended on an interim basis, and all
of the terms and conditions thereof, will tend to effectuate the
declared policy of the Act;
(2) The parity prices of milk, as determined pursuant to section 2
of the Act, are not reasonable in view of the price of feeds, available
supplies of feeds, and other economic conditions which affect market
supply and demand for milk in the marketing areas, and the minimum
prices specified in the orders, as hereby amended, are such prices as
will reflect the aforesaid factors, insure a sufficient quantity of
pure and wholesome milk, and be in the public interest; and
(3) The said orders, as hereby amended on an interim basis,
regulate the handling of milk in the same manner as, and are applicable
only to persons in the respective classes of industrial and commercial
activity specified in, marketing agreements upon which a hearing has
been held.
(b) Additional Findings. It is necessary in the public interest to
make these interim amendments to the Carolina, Southeast, Tennessee
Valley, and Louisville-Lexington-Evansville orders effective one day
after publication of this document in the Federal Register. Any delay
beyond that date would tend to disrupt the orderly marketing of milk in
the aforesaid marketing areas.
The interim amendments to these orders are known to handlers. The
tentative partial decision containing the proposed amendments to these
orders was issued on July 12, 1996.
The changes that result from these interim amendments will not
require extensive preparation or substantial alteration in the method
of operation for handlers. In view of the foregoing, it is hereby found
and determined that good cause exists for making these order amendments
effective one day after publication in the Federal Register. It would
be contrary to the public interest to delay the effective date of these
amendments for 30 days after their publication in the Federal Register.
[[Page 41490]]
(Sec. 553(d), Administrative Procedure Act, 5 U.S.C. 551-559.)
(c) Determinations. It is hereby determined that:
(1) The refusal or failure of handlers (excluding cooperative
associations specified in Sec. 8c(9) of the Act) of more than 50
percent of the milk, which is marketed within each of the specified
marketing areas, to sign a proposed marketing agreement, tends to
prevent the effectuation of the declared policy of the Act;
(2) The issuance of this interim order amending the said orders is
the only practical means pursuant to the declared policy of the Act of
advancing the interests of producers as defined in each of the
respective orders as hereby amended; and
(3) The issuance of the interim order amending the aforesaid orders
is favored by at least two-thirds of the producers who were engaged in
the production of milk for sale in the respective marketing areas.
List of Subjects in 7 CFR Parts 1005, 1007, 1011, and 1046
Milk marketing orders.
Order Relative to Handling
It is therefore ordered, that on and after the effective date
hereof, the handling of milk in the specified marketing areas shall be
in conformity to and in compliance with the terms and conditions of the
orders, as amended, and as hereby further amended on an interim basis,
as follows:
The authority citation for 7 CFR Parts 1005, 1007, 1011, and 1046
reads as follows:
Authority: 7 U.S.C. 601-674.
PART 1005--MILK IN THE CAROLINA MARKETING AREA
1. In Sec. 1005.30, paragraphs (a) and (c) are revised to read as
follows:
Sec. 1005.30 Reports of receipts and utilization.
* * * * *
(a) Each handler, with respect to each of its pool plants, shall
report the quantities of skim milk and butterfat contained in or
represented by:
(1) Receipts of producer milk, including producer milk diverted
from the pool plant to other plants;
(2) Receipts of milk from handlers described in Sec. 1005.9(c);
(3) Receipts of fluid milk products and bulk fluid cream products
from other pool plants;
(4) Receipts of other source milk;
(5) Receipts of bulk milk from a plant regulated under another
Federal order, except Federal Orders 1007, 1011, and 1046, for which a
transportation credit is requested pursuant to Sec. 1005.82;
(6) Receipts of producer milk described in Sec. 1005.82(c)(2),
including the identity of the individual producers whose milk is
eligible for the transportation credit pursuant to that paragraph;
(7) Inventories at the beginning and end of the month of fluid milk
products and products specified in Sec. 1005.40(b)(1); and
(8) The utilization or disposition of all milk, filled milk, and
milk products required to be reported pursuant to this paragraph.
* * * * *
(c) Each handler described in Sec. 1005.9(b) and (c) shall report:
(1) The quantities of all skim milk and butterfat contained in
receipts of milk from producers;
(2) The utilization or disposition of all such receipts; and
(3) With respect to milk for which a cooperative association is
requesting a transportation credit pursuant to Sec. 1005.82, all of the
information required in paragraph (a)(5) and (6) of this section.
* * * * *
2. Section 1005.61 is amended by redesignating paragraphs (a)(4)
and (a)(5) as paragraphs (a)(5) and (a)(6), paragraphs (b)(5) and
(b)(6) as paragraphs (b)(6) and (b)(7), in paragraph (b)(3) by revising
the cross references ``(a)(3)'' to read ``(a)(4)'', and ``(a)(4)(ii)''
to read ``(a)(5)(ii)''; in newly redesignated paragraph (b)(6) by
revising the cross reference ``(b)(4)'' to read ``(b)(5)'', and in
newly redesignated paragraph (b)(7) by revising the cross reference
``(b)(5)'' to read ``(b)(6)'', and adding new paragraphs (a)(4) and
(b)(5) to read as follows:
Sec. 1005.61 Computation of uniform price (including weighted average
price and uniform prices for base and excess milk).
(a) * * *
(4) Deduct the amount by which the amount due from the
transportation credit balancing fund pursuant to Sec. 1005.82 exceeds
the available balance in the transportation credit balancing fund
pursuant to Sec. 1005.80.
* * * * *
(b) * * *
(5) Deduct the amount by which the amount due from the
transportation credit balancing fund pursuant to Sec. 1005.82 exceeds
the available balance in the transportation credit balancing fund
pursuant to Sec. 1005.80.
* * * * *
3. Following Sec. 1005.78, a new undesignated center heading and
Secs. 1005.80, 1005.81, and 1005.82 are added to read as follows:
Marketwide Service Payments
Sec. 1005.80 Transportation credit balancing fund.
The market administrator shall maintain a separate fund known as
the Transportation Credit Balancing Fund into which shall be deposited
the payments made by handlers pursuant to Sec. 1005.81 and out of which
shall be made the payments due handlers pursuant to Sec. 1005.82.
Payments due a handler shall be offset against payments due from the
handler.
Sec. 1005.81 Payments to the transportation credit balancing fund.
(a) On or before the 12th day after the end of the month, each
handler shall pay to the market administrator a transportation credit
balancing fund assessment determined by multiplying the pounds of Class
I milk assigned pursuant to Sec. 1005.44 by $0.06 per hundredweight or
such lesser amount as the market administrator deems necessary to
maintain a balance in the fund equal to the higher of the following
amounts:
(1) The total transportation credits dispensed during the prior
July-December period; or
(2) The total transportation credits dispensed during the
immediately preceding 6-month period.
(b) On or before the 13th day after the end of the month, the
market administrator shall credit the transportation credit balancing
fund, from the producer-settlement fund, any amount deducted pursuant
to Sec. 1005.61 (a)(4) or (b)(5).
(c) This section is effective August 10, 1996. The market
administrator shall announce publicly on or before the 5th day of the
month the assessment pursuant to paragraph (a) of this section for the
following month, except that for the first month that this section is
effective the assessment shall be announced no later than August 9,
1996, and for the first 3 months that this section is effective the
assessment pursuant to paragraph (a) of this section shall be 6 cents
per hundredweight.
Sec. 1005.82 Payments from the transportation credit balancing fund.
(a) On or before the 13th day after the end of each of the months
of July through December and any other month in which transportation
credits are in effect pursuant to paragraph (b) of this section, the
market administrator shall pay to each handler that received, and
reported pursuant to Sec. 1005.30(a)(5), bulk milk transferred from an
other
[[Page 41491]]
order plant as described in paragraph (c)(1) of this section or that
received, and reported pursuant to Sec. 1005.30(a)(6), bulk milk
directly from producers' farms as specified in paragraph (c)(2) of this
section an amount determined pursuant to paragraph (d) of this section.
In the event that a qualified cooperative association is the
responsible party for whose account such milk is received and written
documentation of this fact is provided to the market administrator
pursuant to Sec. 1005.30(c)(3) prior to the date payment is due, the
transportation credits for such milk computed pursuant to this section
shall be made to such cooperative association rather than to the
operator of the pool plant at which the milk was received.
(b) The market administrator may extend the period during which
transportation credits are in effect (i.e., the transportation credit
period) to any of the months of January through June if the market
administrator receives a written request to do so 15 days prior to the
beginning of the month for which the request is made and, after
conducting an independent investigation, finds that such extension is
necessary to assure the market of an adequate supply of milk for fluid
use. Before making such a finding, the market administrator shall
notify the Director of the Dairy Division and all handlers in the
market that an extension is being considered and invite written data,
views, and arguments. Any decision to extend the transportation credit
period must be issued in writing prior to the first day of the month
for which the extension is to be effective.
(c) The transportation credit described in paragraph (a) of this
section shall apply to the following milk:
(1) Bulk milk received from a plant regulated under another Federal
order, except Federal Orders 1007, 1011, and 1046, and allocated to
Class I milk pursuant to Sec. 1005.44; and
(2) Bulk milk classified pro rata as Class I milk pursuant to
Sec. 1005.44 received directly from the farms of dairy farmers at pool
distributing plants under the following conditions:
(i) The dairy farmer was not a ``producer'' under this order during
more than 2 of the immediately preceding months of January through June
and not more than 32 days' production of the dairy farmer was received
as producer milk under this order during that period; and
(ii) The farm on which the milk was produced is not located within
the specified marketing area of this order or the marketing areas of
Federal Orders 1007, 1011, or 1046, and, is not within 85 miles of the
plant to which its milk is delivered.
(d) Transportation credits shall be computed as follows:
(1) For milk described in paragraph (c)(1) of this section, the
market administrator shall:
(i) Determine the shortest hard-surface highway distance between
the transferor plant and the transferee plant;
(ii) Multiply the number of miles computed in paragraph (d)(1)(i)
of this section by 0.37 cents;
(iii) Subtract the other order's Class I price applicable at the
transferor plant's location from the Class I price applicable at the
transferee plant as specified in Sec. 1005.53;
(iv) Subtract any positive difference computed in paragraph
(d)(1)(iii) of this section from the amount computed in paragraph
(d)(1)(ii) of this section; and
(v) Multiply the remainder computed in paragraph (d)(1)(iv) of this
section by the hundredweight of milk described in paragraph (c)(1) of
this section.
(2) For milk described in paragraph (c)(2) of this section:
(i) Each milk hauler that is transporting the milk of producers
described in paragraph (c)(2) of this section may stop at the nearest
independently-operated truck stop with a truck scale and obtain a
weight certificate indicating the weight of the truck and its contents,
the date and time of weighing, and the location of the truck stop. The
location of the truck stop shall be used as a starting point for the
purpose of measuring the distance to the pool plant receiving that load
of milk. If a weight certificate for a supplemental load of milk for
which a transportation credit is requested is not available, the market
administrator shall use the nearest city to the last producer's farm
from which milk was picked up for delivery to the receiving pool plant;
(ii) For each bulk tank load of milk received pursuant to paragraph
(d)(2)(i) of this section, the market administrator shall determine the
shortest hard-surface highway distance between the receiving pool plant
and the truck stop or city, as the case may be;
(iii) Multiply the number of miles computed in paragraph (d)(2)(ii)
of this section by 0.37 cents;
(iv) Subtract this order's Class I price applicable at the
origination point determined pursuant to paragraph (d)(2)(ii) of this
section (as if this point were a plant) from the Class I price
applicable at the distributing plant receiving the milk;
(v) Subtract any positive difference computed in paragraph
(d)(2)(iv) of this section from the amount computed in paragraph
(d)(2)(iii) of this section; and
(vi) Multiply the number computed in paragraph (d)(2)(v) of this
section by the hundredweight of milk described in paragraph (c)(2) of
this section.
PART 1007--MILK IN THE SOUTHEAST MARKETING AREA
4. In Sec. 1007.30, paragraphs (a) and (c) are revised to read as
follows:
Sec. 1007.30 Reports of receipts and utilization.
* * * * *
(a) Each handler, with respect to each of its pool plants, shall
report the quantities of skim milk and butterfat contained in or
represented by:
(1) Receipts of producer milk, including producer milk diverted by
the handler from the pool plant to other plants;
(2) Receipts of milk from handlers described in Sec. 1007.9(c);
(3) Receipts of fluid milk products and bulk fluid cream products
from other pool plants;
(4) Receipts of other source milk;
(5) Receipts of bulk milk from a plant regulated under another
Federal order, except Federal Orders 1005, 1011, and 1046, for which a
transportation credit is requested pursuant to Sec. 1007.82;
(6) Receipts of producer milk described in Sec. 1007.82(c)(2),
including the identity of the individual producers whose milk is
eligible for the transportation credit pursuant to that paragraph;
(7) Inventories at the beginning and end of the month of fluid milk
products and products specified in Sec. 1007.40(b)(1); and
(8) The utilization or disposition of all milk, filled milk, and
milk products required to be reported pursuant to this paragraph.
* * * * *
(c) Each handler described in Sec. 1007.9(b) and (c) shall report:
(1) The quantities of skim milk and butterfat contained in receipts
of milk from producers;
(2) The utilization or disposition of all such receipts; and
(3) With respect to milk for which a cooperative association is
requesting a transportation credit pursuant to Sec. 1007.82, all of the
information required in paragraph (a)(5) and (6) of this section.
* * * * *
5. Section 1007.61 is amended by redesignating paragraphs (a)(4)
and (a)(5) as paragraphs (a)(5) and (a)(6), paragraphs (b)(5) and
(b)(6) as paragraphs (b)(6) and (b)(7), in
[[Page 41492]]
paragraph (b)(3) by revising the cross references ``(a)(3)'' to read
``(a)(4)'', and ``(a)(4)(ii)'' to read ``(a)(5)(ii)''; in newly
redesignated paragraph (b)(6) by revising the cross reference
``(b)(4)'' to read ``(b)(5)'', and in newly redesignated paragraph
(b)(7) by revising the cross reference ``(b)(5)'' to read ``(b)(6)'',
and adding new paragraphs (a)(4) and (b)(5) to read as follows:
Sec. 1007.61 Computation of uniform price (including weighted average
price and uniform prices for base and excess milk).
(a) * * *
(4) Deduct the amount by which the amount due from the
transportation credit balancing fund pursuant to Sec. 1007.82 exceeds
the available balance in the transportation credit balancing fund
pursuant to Sec. 1007.80.
* * * * *
(b) * * *
(5) Deduct the amount by which the amount due from the
transportation credit balancing fund pursuant to Sec. 1007.82 exceeds
the available balance in the transportation credit balancing fund
pursuant to Sec. 1007.80.
* * * * *
6. Following Sec. 1007.78, a new undesignated center heading and
Secs. 1007.80, 1007.81, and 1007.82 are added to read as follows:
Marketwide Service Payments
Sec. 1007.80 Transportation credit balancing fund.
The market administrator shall maintain a separate fund known as
the Transportation Credit Balancing Fund into which shall be deposited
the payments made by handlers pursuant to Sec. 1007.81 and out of which
shall be made the payments due handlers pursuant to Sec. 1007.82.
Payments due a handler shall be offset against payments due from the
handler.
Sec. 1007.81 Payments to the transportation credit balancing fund.
(a) On or before the 12th day after the end of the month, each
handler shall pay to the market administrator a transportation credit
balancing fund assessment determined by multiplying the pounds of Class
I milk assigned pursuant to Sec. 1007.44 by $0.06 per hundredweight or
such lesser amount as the market administrator deems necessary to
maintain a balance in the fund equal to the higher of the following
amounts:
(1) The total transportation credits dispensed during the prior
July-December period; or
(2) The total transportation credits dispensed during the
immediately preceding 6-month period.
(b) On or before the 13th day after the end of the month, the
market administrator shall credit the transportation credit balancing
fund, from the producer-settlement fund, any amount deducted pursuant
to Sec. 1007.61(a)(4) or (b)(5).
(c) This section is effective August 10, 1996. The market
administrator shall announce publicly on or before the 5th day of the
month the assessment pursuant to paragraph (a) of this section for the
following month, except that for the first month that this section is
effective the assessment shall be announced no later than August 9,
1996, and for the first 3 months that this section is effective the
assessment pursuant to paragraph (a) of this section shall be 6 cents
per hundredweight.
Sec. 1007.82 Payments from the transportation credit balancing fund.
(a) On or before the 13th day after the end of each of the months
of July through December and any other month in which transportation
credits are in effect pursuant to paragraph (b) of this section, the
market administrator shall pay to each handler that received, and
reported pursuant to Sec. 1007.30(a)(5), bulk milk transferred from
another order plant as described in paragraph (c)(1) of this section or
that received, and reported pursuant to Sec. 1007.30(a)(6), bulk milk
directly from producers' farms as specified in paragraph (c)(2) of this
section an amount determined pursuant to paragraph (d) of this section.
In the event that a qualified cooperative association is the
responsible party for whose account such milk is received and written
documentation of this fact is provided to the market administrator
pursuant to Sec. 1007.30(c)(3) prior to the date payment is due, the
transportation credits for such milk computed pursuant to this section
shall be made to such cooperative association rather than to the
operator of the pool plant at which the milk was received.
(b) The market administrator may extend the period during which
transportation credits are in effect (i.e., the transportation credit
period) to any of the months of January through June if the market
administrator receives a written request to do so 15 days prior to the
beginning of the month for which the request is made and, after
conducting an independent investigation, finds that such extension is
necessary to assure the market of an adequate supply of milk for fluid
use. Before making such a finding, the market administrator shall
notify the Director of the Dairy Division and all handlers in the
market that an extension is being considered and invite written data,
views, and arguments. Any decision to extend the transportation credit
period must be issued in writing prior to the first day of the month
for which the extension is to be effective.
(c) The transportation credit described in paragraph (a) of this
section shall apply to the following milk:
(1) Bulk milk received from a plant regulated under another Federal
order, except Federal Orders 1005, 1011, and 1046 allocated to Class I
milk pursuant to Sec. 1007.44; and
(2) Bulk milk classified pro rata as Class I milk pursuant to
Sec. 1007.44 received directly from the farms of dairy farmers at pool
distributing plants under the following conditions:
(i) The dairy farmer was not a ``producer'' under this order during
more than 2 of the immediately preceding months of January through June
and not more than 32 days' production of the dairy farmer was received
as producer milk under this order during that period; and
(ii) The farm on which the milk was produced is not located within
the specified marketing area of this order or the marketing areas of
Federal Orders 1005, 1011 or 1046, and, is not within 85 miles of the
plant to which its milk is delivered.
(d) Transportation credits shall be computed as follows:
(1) For milk described in paragraph (c)(1) of this section, the
market administrator shall:
(i) Determine the shortest hard-surface highway distance between
the transferor plant and the transferee plant;
(ii) Multiply the number of miles computed in paragraph (d)(1)(i)
of this section by 0.37 cents;
(iii) Subtract the other order's Class I price applicable at the
transferor plant's location from the Class I price applicable at the
transferee plant as specified in Sec. 1007.52;
(iv) Subtract any positive difference computed in paragraph
(d)(1)(iii) of this section from the amount computed in paragraph
(d)(1)(ii) of this section; and
(v) Multiply the remainder computed in paragraph (d)(1)(iv) of this
section by the hundredweight of milk described in paragraph (c)(1) of
this section.
(2) For milk described in paragraph (c)(2) of this section:
(i) Each milk hauler that is transporting the milk of producers
described in paragraph (c)(2) of this section may stop at the nearest
independently-operated truck stop with a truck scale and obtain a
weight certificate indicating the weight of the truck and its contents,
the date and time of weighing, and the location of the
[[Page 41493]]
truck stop. The location of the truck stop shall be used as a starting
point for the purpose of measuring the distance to the pool plant
receiving that load of milk. If a weight certificate for a supplemental
load of milk for which a transportation credit is requested is not
available, the market administrator shall use the nearest city to the
last producer's farm from which milk was picked up for delivery to the
receiving pool plant.
(ii) For each bulk tank load of milk received pursuant to paragraph
(d)(2)(i) of this section, the market administrator shall determine the
shortest hard-surface highway distance between the receiving pool plant
and the truck stop or city, as the case may be;
(iii) Multiply the number of miles computed in paragraph (d)(2)(ii)
of this section by 0.37 cents;
(iv) Subtract the order's Class I price applicable at the
origination point determined pursuant to paragraph (d)(2)(ii) of this
section (as if this point were a plant) from the Class I price
applicable at the distributing plant receiving the milk;
(v) Subtract any positive difference computed in paragraph
(d)(2)(iv) of this section from the amount computed in paragraph
(d)(2)(iii) of this section; and
(vi) Multiply the number computed in paragraph (d)(2)(v) of this
section by the hundredweight of milk described in paragraph (c)(2) of
this section.
PART 1011--MILK IN THE TENNESSEE VALLEY MARKETING AREA
7. In Sec. 1011.30, paragraphs (a) and (c) are revised to read as
follows:
Sec. 1011.30 Reports of receipts and utilization.
* * * * *
(a) Each handler, with respect to each of his pool plants, shall
report the quantities of skim milk and butterfat contained in or
represented by:
(1) Receipts of producer milk, including producer milk diverted
from the pool plant to other plants;
(2) Receipts of milk from handlers described in Sec. 1011.9(c);
(3) Receipts of milk from handlers described in 1011.9(d);
(4) Receipts of fluid milk products and bulk fluid cream products
from other pool plants;
(5) Receipts of other source milk;
(6) Receipts of bulk milk from a plant regulated under another
Federal order, except Federal Orders 1005, 1007, and 1046, for which a
transportation credit is requested pursuant to Sec. 1011.82;
(7) Receipts of producer milk described in Sec. 1011.82(c)(2),
including the identity of the individual producers whose milk is
eligible for the transportation credit pursuant to that paragraph;
(8) Inventories at the beginning and end of the month of fluid milk
products and products specified in Sec. 1011.40(b)(1); and
(9) The utilization or disposition of all milk, filled milk, and
milk products required to be reported pursuant to this paragraph.
* * * * *
(c) Each handler described in Sec. 1011.9(b), (c) and (d) shall
report:
(1) The quantities of all skim milk and butterfat contained in
receipts of milk from producers;
(2) The utilization or disposition of all such receipts; and
(3) With respect to milk for which a cooperative association is
requesting a transportation credit pursuant to Sec. 1011.82, all of the
information required in paragraph (a)(6) and (7) of this section.
* * * * *
8. Section 1011.61 is amended by redesignating paragraphs (a)(4)
and (a)(5) as paragraphs (a)(5) and (a)(6), paragraphs (b)(5) and
(b)(6) as paragraphs (b)(6) and (b)(7), in paragraph (b)(3) by revising
the cross references ``(3)'' to read ``(a)(4)'', and ``(a)(4)(ii)'' to
read ``(a)(5)(ii)''; in newly redesignated paragraph (b)(6) by revising
the cross reference ``(b)(4)'' to read ``(b)(5)'', and in newly
redesignated paragraph (b)(7) by revising the cross reference
``(b)(5)'' to read ``(b)(6)'', and adding new paragraphs (a)(4) and
(b)(5) to read as follows:
Sec. 1011.61 Computation of uniform price (including weighted average
price and uniform prices for base and excess milk).
(a) * * *
(4) Deduct the amount by which the amount due from the
transportation credit balancing fund pursuant to Sec. 1011.82 exceeds
the available balance in the transportation credit balancing fund
pursuant to Sec. 1011.80.
* * * * *
(b) * * *
(5) Deduct the amount by which the amount due from the
transportation credit balancing fund pursuant to Sec. 1011.82 exceeds
the available balance in the transportation credit balancing fund
pursuant to Sec. 1011.80.
* * * * *
9. Following Sec. 1011.77, a new undesignated center heading and
Secs. 1011.80, 1011.81, and 1011.82 are added to read as follows:
Marketwide Service Payments
Sec. 1011.80 Transportation credit balancing fund.
The market administrator shall maintain a separate fund known as
the Transportation Credit Balancing Fund into which shall be deposited
the payments made by handlers pursuant to Sec. 1011.81 and out of which
shall be made the payments due handlers pursuant to Sec. 1011.82.
Payments due a handler shall be offset against payments due from the
handler.
Sec. 1011.81 Payments to the transportation credit balancing fund.
(a) On or before the 12th day after the end of the month, each
handler shall pay to the market administrator a transportation credit
balancing fund assessment determined by multiplying the pounds of Class
I milk assigned pursuant to Sec. 1011.44 by $0.06 per hundredweight or
such lesser amount as the market administrator deems necessary to
maintain a balance in the fund equal to the higher of the following
amounts:
(1) The total transportation credits dispensed during the prior
July-December period; or
(2) The total transportation credits dispensed during the
immediately preceding 6-month period.
(b) On or before the 13th day after the end of the month, the
market administrator shall credit the transportation credit balancing
fund, from the producer-settlement fund, any amount deducted pursuant
to Sec. 1011.61(a)(4) or (b)(5).
(c) This section is effective August 10, 1996. The market
administrator shall announce publicly on or before the 5th day of the
month the assessment pursuant to paragraph (a) of this section for the
following month, except that for the first month that this section is
effective the assessment shall be announced no later than August 9,
1996, and for the first 3 months that this section is effective the
assessment pursuant to paragraph (a) of this section shall be 6 cents
per hundredweight.
Sec. 1011.82 Payments from the transportation credit balancing fund.
(a) On or before the 13th day after the end of each of the months
of July through December and any other month in which transportation
credits are in effect pursuant to paragraph (b) of this section, the
market administrator shall pay to each handler that received, and
reported pursuant to Sec. 1011.30(a)(6), bulk milk transferred from an
other order plant as described in paragraph (c)(1) of this section or
that received, and reported pursuant to
[[Page 41494]]
Sec. 1011.30(a)(7), bulk milk directly from producers' farms as
specified in paragraph (c)(2) of this section an amount determined
pursuant to paragraph (d) of this section. In the event that a
qualified cooperative association is the responsible party for whose
account such milk is received and written documentation of this fact is
provided to the market administrator pursuant to Sec. 1011.30(c)(3)
prior to the date payment is due, the transportation credits for such
milk computed pursuant to this section shall be made to such
cooperative association rather than to the operator of the pool plant
at which the milk was received.
(b) The market administrator may extend the period during which
transportation credits are in effect (i.e., the transportation credit
period) to any of the months of January through June if the market
administrator receives a written request to do so 15 days prior to the
beginning of the month for which the request is made and, after
conducting an independent investigation, finds that such extension is
necessary to assure the market of an adequate supply of milk for fluid
use. Before making such a finding, the market administrator shall
notify the Director of the Dairy Division and all handlers in the
market that an extension is being considered and invite written data,
views, and arguments. Any decision to extend the transportation credit
period must be issued in writing prior to the first day of the month
for which the extension is to be effective.
(c) The transportation credit described in paragraph (a) of this
section shall apply to the following milk:
(1) Bulk milk received from a plant regulated under another Federal
order, except Federal Orders 1005, 1007, and 1046, and allocated to
Class I milk pursuant to Sec. 1011.44; and
(2) Bulk milk classified pro rata as Class I milk pursuant to
Sec. 1011.44 received directly from the farms of dairy farmers at pool
distributing plants under the following conditions:
(i) The dairy farmer was not a ``producer'' under this order during
more than 2 of the immediately preceding months of January through June
and not more than 32 days' production of the dairy farmer was received
as producer milk under this order during that period; and
(ii) The farm on which the milk was produced is not located within
the specified marketing area of this order or the marketing areas of
Federal Orders 1005, 1007, or 1046, and, is not within 85 miles of the
plant to which its milk is delivered.
(d) Transportation credits shall be computed as follows:
(1) For milk described in paragraph (c)(1) of this section, the
market administrator shall:
(i) Determine the shortest hard-surface highway distance between
the transferor plant and the transferee plant;
(ii) Multiply the number of miles computed in paragraph (d)(1)(i)
of this section by 0.37 cents;
(iii) Subtract the other order's Class I price applicable at the
transferor plant's location from the Class I price applicable at the
transferee plant as specified in Sec. 1011.52;
(iv) Subtract any positive difference computed in paragraph
(d)(1)(iii) of this section from the amount computed in paragraph
(d)(1)(ii) of this section; and
(v) Multiply the remainder computed in paragraph (d)(1)(iv) of this
section by the hundredweight of milk described in paragraph (c)(1) of
this section.
(2) For milk described in paragraph (c)(2) of this section:
(i) Each milk hauler that is transporting the milk of producers
described in paragraph (c)(2) of this section may stop at the nearest
independently-operated truck stop with a truck scale and obtain a
weight certificate indicating the weight of the truck and its contents,
the date and time of weighing, and the location of the truck stop. The
location of the truck stop shall be used as a starting point for the
purpose of measuring the distance to the pool plant receiving that load
of milk. If a weight certificate for a supplemental load of milk for
which a transportation credit is requested is not available, the market
administrator shall use the nearest city to the last producer's farm
from which milk was picked up for delivery to the receiving pool plant.
(ii) For each bulk tank load of milk received pursuant to paragraph
(d)(2)(i) of this section, the market administrator shall determine the
shortest hard-surface highway distance between the receiving pool plant
and the truck stop or city, as the case may be;
(iii) Multiply the number of miles computed in paragraph (d)(2)(ii)
of this section by 0.37 cents;
(iv) Subtract this order's Class I price applicable at the
origination point determined pursuant to paragraph (d)(2)(ii) of this
section (as if this point were a plant) from the Class I price
applicable at the distributing plant receiving the milk;
(v) Subtract any positive difference computed in paragraph
(d)(2)(iv) of this section from the amount computed in paragraph
(d)(2)(iii) of this section; and
(vi) Multiply the number computed in paragraph (d)(2)(iii) of this
section by the hundredweight of milk described in paragraph (c)(2) of
this section.
PART 1046--MILK IN THE LOUISVILLE-LEXINGTON-EVANSVILLE MARKETING
AREA
10. In Sec. 1046.30, paragraphs (a) and (c) are revised to read as
follows:
Sec. 1046.30 Reports of receipts and utilization.
* * * * *
(a) Each handler, with respect to each of his pool plants, shall
report the quantities of skim milk and butterfat contained in or
represented by:
(1) Receipts of producer milk, including producer milk diverted by
the handler from the pool plant to other plants;
(2) Receipts of milk from handlers described in Sec. 1046.9(c);
(3) Receipts of fluid milk products and bulk fluid cream products
from other pool plants;
(4) Receipts of other source milk;
(5) Receipts of bulk milk from a plant regulated under another
Federal order, except Federal Orders 1005, 1007, and 1011, for which a
transportation credit is requested pursuant to Sec. 1046.82;
(6) Receipts of producer milk described in Sec. 1046.82(c)(2),
including the identity of the individual producers whose milk is
eligible for the transportation credit pursuant to that paragraph;
(7) Inventories at the beginning and end of the month of fluid milk
products and products specified in Sec. 1046.40(b)(1); and
(8) The utilization or disposition of all milk, filled milk, and
milk products required to be reported pursuant to this paragraph.
* * * * *
(c) Each handler described in Sec. 1046.9 (b) and (c) shall report:
(1) The quantities of all skim milk and butterfat contained in
receipts of milk from producers;
(2) The utilization or disposition of all such receipts; and
(3) With respect to milk for which a cooperative association is
requesting a transportation credit pursuant to Sec. 1046.82, all of the
information required in paragraph (a) (5) and (6) of this section.
* * * * *
11. Section 1046.61 is amended by redesignating paragraphs (a)(4)
and (a)(5) as paragraphs (a)(5) and (a)(6), paragraphs (b)(5) and
(b)(6) as paragraphs (b)(6) and (b)(7), in paragraph (b)(3) by revising
the cross
[[Page 41495]]
references ``(3)'' to read ``(a)(4)'', and ``(a)(4)(ii)'' to read
``(a)(5)(ii)''; in newly redesignated paragraph (b)(6) by revising the
cross reference ``(b)(4)'' to read ``(b)(5)'', and in newly
redesignated paragraph (b)(7) by revising the cross reference
``(b)(5)'' to read ``(b)(6)'', and adding new paragraphs (a)(4) and
(b)(5) to read as follows:
Sec. 1046.61 Computation of uniform price (including weighted average
price and uniform prices for base and excess milk).
(a) * * *
(4) Deduct the amount by which the amount due from the
transportation credit balancing fund pursuant to Sec. 1046.82 exceeds
the available balance in the transportation credit balancing fund
pursuant to Sec. 1046.80.
* * * * *
(b) * * *
(5) Deduct the amount by which the amount due from the
transportation credit balancing fund pursuant to Sec. 1046.82 exceeds
the available balance in the transportation credit balancing fund
pursuant to Sec. 1046.80.
* * * * *
12. In Sec. 1046.73, paragraph (f)(2) is revised to read as
follows:
Sec. 1046.73 Payments to producers and to cooperative associations.
* * * * *
(f) * * *
(1) * * *
(2) On or before the 10th day after the end of the following month
for milk received during the month an amount computed at not less than
the value of such milk at the minimum prices for milk in each class, as
adjusted by the butterfat differential specified in Sec. 1046.74
applicable at the location of the receiving handler's pool plant and
any transportation credit that is due the cooperative association
pursuant to Sec. 1046.82(a), less the payment made pursuant to
paragraph (f)(1) of this section.
13. Following Sec. 1046.78, a new undesignated center heading and
Secs. 1046.80, 1046.81, and 1046.82 are added to read as follows:
Marketwide Service Payments
Sec. 1046.80 Transportation credit balancing fund.
The market administrator shall maintain a separate fund known as
the Transportation Credit Balancing Fund into which shall be deposited
the payments made by handlers pursuant to Sec. 1046.81 and out of which
shall be made the payments due handlers pursuant to Sec. 1046.82.
Payments due a handler shall be offset against payments due from the
handler.
Sec. 1046.81 Payments to the transportation credit balancing fund.
(a) On or before the 12th day after the end of the month, each
handler shall pay to the market administrator a transportation credit
balancing fund assessment determined by multiplying the pounds of Class
I milk assigned pursuant to Sec. 1046.44 by $0.06 per hundredweight or
such lesser amount as the market administrator deems necessary to
maintain a balance in the fund equal to the higher of the following
amounts:
(1) The total transportation credits dispensed during the prior
July-December period; or
(2) The total transportation credits dispensed during the
immediately preceding 6-month period.
(b) On or before the 13th day after the end of the month, the
market administrator shall credit the transportation credit balancing
fund, from the producer-settlement fund, any amount deducted pursuant
to Sec. 1046.61(a)(4) or (b)(5).
(c) This section is effective August 10, 1996. The market
administrator shall announce publicly on or before the 5th day of the
month the assessment pursuant to paragraph (a) of this section for the
following month, except that for the first month that this section is
effective the assessment shall be announced no later than August 9,
1996, and for the first 3 months that this section is effective the
assessment pursuant to paragraph (a) of this section shall be 6 cents
per hundredweight.
Sec. 1046.82 Payments from the transportation credit balancing fund.
(a) On or before the 13th day after the end of each of the months
of July through December and any other month in which transportation
credits are in effect pursuant to paragraph (b) of this section, the
market administrator shall pay to each handler that received, and
reported pursuant to Sec. 1046.30(a)(5), bulk milk transferred from
another order plant as described in paragraph (c)(1) of this section or
that received, and reported pursuant to Sec. 1046.30(a)(6), bulk milk
directly from producers' farms as specified in paragraph (c)(2) of this
section an amount determined pursuant to paragraph (d) of this section.
In the event that a qualified cooperative association is the
responsible party for whose account such milk is received and written
documentation of this fact is provided to the market administrator
pursuant to Sec. 1046.30(c)(3) prior to the date payment is due, the
transportation credits for such milk computed pursuant to this section
shall be paid to such cooperative association by the pool plant
operator pursuant to Sec. 1046.73(f)(2).
(b) The market administrator may extend the period during which
transportation credits are in effect (i.e., the transportation credit
period) to any of the months of January through June if the market
administrator receives a written request to do so 15 days prior to the
beginning of the month for which the request is made and, after
conducting an independent investigation, finds that such extension is
necessary to assure the market of an adequate supply of milk for fluid
use. Before making such a finding, the market administrator shall
notify the Director of the Dairy Division and all handlers in the
market that an extension is being considered and invite written data,
views, and arguments. Any decision to extend the transportation credit
period must be issued in writing prior to the first day of the month
for which the extension is to be effective.
(c) The transportation credit described in paragraph (a) of this
section shall apply to the following milk:
(1) Bulk milk received from a plant regulated under another Federal
order, except Federal Orders 1005, 1007, and 1011, and allocated to
Class I milk pursuant to Sec. 1046.44; and
(2) Bulk milk classified pro rata as Class I milk pursuant to
Sec. 1046.44 received directly from the farms of dairy farmers at pool
distributing plants under the following conditions:
(i) The dairy farmer was not a ``producer'' under this order during
more than 2 of the immediately preceding months of January through June
and not more than 32 days' production of the dairy farmer was received
as producer milk under this order during that period; and
(ii) The farm on which the milk was produced is not located within
the specified marketing area of this order or the marketing areas of
Federal Orders 1005, 1007, or 1011, and, is not within 85 miles of the
plant to which its milk is delivered.
(d) Transportation credits shall be computed as follows:
(1) For milk described in paragraph (c)(1) of this section, the
market administrator shall:
(i) Determine the shortest hard-surface highway distance between
the transferor plant and the transferee plant;
(ii) Multiply the number of miles computed in paragraph (d)(1)(i)
of this section by 0.37 cents;
(iii) Subtract the other order's Class I price applicable at the
transferor plant's location from the Class I price applicable at the
transferee plant as specified in Sec. 1046.52;
[[Page 41496]]
(iv) Subtract any positive difference computed in paragraph
(d)(1)(iii) of this section from the amount computed in paragraph
(d)(1)(ii) of this section; and
(v) Multiply the remainder computed in paragraph (d)(1)(iv) of this
section by the hundredweight of milk described in paragraph (c)(1) of
this section.
(2) For milk described in paragraph (c)(2) of this section:
(i) Each milk hauler that is transporting the milk of producers
described in paragraph (c)(2) of this section may stop at the nearest
independently-operated truck stop with a truck scale and obtain a
weight certificate indicating the weight of the truck and its contents,
the date and time of weighing, and the location of the truck stop. The
location of the truck stop shall be used as a starting point for the
purpose of measuring the distance to the pool plant receiving that load
of milk. If a weight certificate for a supplemental load of milk for
which a transportation credit is requested is not available, the market
administrator shall use the nearest city to the last producer's farm
from which milk was picked up for delivery to the receiving pool plant.
(ii) For each bulk tank load of milk received pursuant to paragraph
(d)(2)(i) of this section, the market administrator shall determine the
shortest hard-surface highway distance between the receiving pool plant
and the truck stop or city, as the case may be;
(iii) Multiply the number of miles computed in paragraph (d)(2)(ii)
of this section by 0.37 cents;
(iv) Subtract this order's Class I price applicable at the
origination point determined pursuant to paragraph (d)(2)(ii) of this
section (as if this point were a plant) from the Class I price
applicable at the distributing plant receiving the milk;
(v) Subtract any positive difference computed in paragraph
(d)(2)(iv) of this section from the amount computed in paragraph
(d)(2)(iii) of this section; and
(vi) Multiply the number computed in paragraph (d)(2)(v) of this
section by the hundredweight of milk described in paragraph (c)(2) of
this section.
Dated: August 2, 1996.
Michael V. Dunn,
Assistant Secretary, Marketing and Regulatory Programs.
[FR Doc. 96-20203 Filed 8-8-96; 8:45 am]
BILLING CODE 3410-02-P
Complete official Federal Register PDF
FR Doc. 96-20129 Nonappropriated Fund Employees
[Federal Register Volume 61, Number 155 (Friday, August 9, 1996)]
[Rules and Regulations]
[Pages 41485-41488]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-20129]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
week.
========================================================================
Federal Register / Vol. 61, No. 155 / Friday, August 9, 1996 / Rules
and Regulations
[[Page 41485]]
FEDERAL RETIREMENT THRIFT INVESTMENT BOARD
5 CFR Part 1620
Nonappropriated Fund Employees
AGENCY: Federal Retirement Thrift Investment Board.
ACTION: Interim rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: The Executive Director of the Federal Retirement Thrift
Investment Board (Board) is publishing interim regulations governing
Thrift Savings Plan (TSP) participation by certain persons who move
between Federal civil service positions and positions with
Nonappropriated Fund (NAF) instrumentalities of the Department of
Defense (DOD) and U.S. Coast Guard (Coast Guard). These interim
regulations implement sections 10, 11, 13 and 14 of the Portability of
Benefits for Nonappropriated Fund Employees Act of 1990 (1990
Portability Act), as amended by section 1043 of the National Defense
Authorization Act for Fiscal Year 1996 (Defense Authorization Act).
DATES: These interim rules are effective on August 10, 1996. Comments
must be received on or before October 10, 1996.
ADDRESSES: Comments may be submitted to the Federal Retirement Thrift
Investment Board, 1250 H Street, NW., Washington, DC 20005.
FOR FURTHER INFORMATION CONTACT: Patrick J. Forrest, Federal Retirement
Thrift Investment Board, 1250 H Street, N.W., Washington, D.C. 20005.
Telephone: (202) 942-1662. Telefacsimile: (202) 942-1676.
SUPPLEMENTARY INFORMATION: The Board administers the TSP, which was
established by the Federal Employees' Retirement System Act of 1986
(FERSA), Pub. L. 99-335, 101 Stat. 514 (1986), which has been codified,
as amended, largely at 5 U.S.C. 8401-8479 (1994). The TSP is a tax-
deferred retirement savings plan for Federal employees that is similar
to cash or deferred arrangements established under section 401(k) of
the Internal Revenue Code.
The 1990 Portability Act, Pub. L. 101-508, 104 Stat. 1388, 1388-335
to 1388-341 (codified largely at 5 U.S.C. 8347(p)(1) and 8461(n)(1)),
as amended by section 1043 of the Defense Authorization Act, Pub. L.
104-106, 110 Stat. 186, 434-439, provides that certain employees who
move from Federal service to NAF instrumentalities are eligible to
participate in the TSP by virtue of their election to be covered by the
Civil Service Retirement System (CSRS) or the Federal Employees'
Retirement System (FERS). These regulations set forth the rules and
procedures which the NAF instrumentality must follow for its employees
who are eligible to participate in the TSP pursuant to the 1990
Portability Act, as amended. Different rules apply depending on whether
the employee moved on or after August 10, 1996, and whether he or she
elects to be covered by CSRS or FERS. The regulations also address an
employee's eligibility to participate in the TSP if the employee moves
from a NAF instrumentality to a Federal Government agency.
The 1990 Portability Act permitted CSRS and FERS employees of the
Department of Defense and the U.S. Coast Guard who moved on or after
January 1, 1987, to a NAF instrumentality to elect to maintain their
CSRS or FERS retirement coverage after the move. On June 10, 1991, the
Board published an interim rule with request for comments in the
Federal Register (56 FR 26,722) implementing the 1990 Portability Act
as it pertained to the TSP. The Board received no comments on the
interim rule.
Section 1043 of the 1996 Defense Authorization Act amended the 1990
Portability Act by expanding the eligibility requirement for employees
of NAF instrumentalities in two ways. First, all Federal employees
moving to a NAF instrumentality, not just those from the Department of
Defense and U.S. Coast Guard, are eligible to continue their CSRS or
FERS retirement coverage after their move. Second, the amendment
changed the threshold for being eligible for CSRS or FERS retirement
coverage from employees who moved to a NAF instrumentality after
December 31, 1986, to employees who made the move after December 31,
1965. The Board's NAF regulations are being revised to implement this
amendment to the 1990 Portability Act. The revised regulations do not
change the procedures for retroactive participation in the TSP by
affected employees of NAF instrumentalities.
Sections 1620.93 (a)(2) and (a)(3) pertain to ``an employee who
moved to a NAF instrumentality on or after August 10, 1996, but after
December 31, 1965, elects to be covered by FERS * * *.'' The 1990
Portability Act, as amended, does not change the current Federal law
which provides that FERS coverage can only begin on or after January 1,
1987. However, under Office of Personnel Management regulations,
eligible employees who transferred to a NAF instrumentality prior to
January 1, 1987, may elect FERS coverage to be retroactively effective
on or after January 1, 1987.
Section 1620.93(c) provides that employees who are covered by a NAF
retirement plan are not eligible to participate in the TSP. Under
section 1620.93, some employees who are covered under CSRS or FERS can
elect retroactive NAF retirement coverage. If a TSP participant elects
retroactive NAF retirement coverage, there could be contributions in
his or her account which relate to a period during which he or she was
ineligible to participate in the TSP. The 1990 Portability Act, as
amended, does not provide for the transfer of funds between the TSP and
a NAF defined contribution plan. Therefore, these contributions must be
removed from the TSP under the Board's error correction regulations at
5 CFR part 1605.
Section 1620.93(d) pertains to employees who elected CSRS or FERS
coverage under the 1990 Portability Act before the effective date of
these regulations. Their TSP elections are valid if they were properly
implemented by the NAF instrumentality under then-effective
regulations. In all other respects, these regulations apply to those
employees. The Board is also making several changes to the interim
regulations which are unrelated to the Defense Authorization Act
amendments. The Board has received questions from employees moving from
NAF
[[Page 41486]]
instrumentalities to Federal civil service positions regarding when
they are eligible to participate in the TSP. The 1990 Portability Act,
as amended, does not change the eligibility requirements set forth in
FERSA. Section 1620.94 is being revised to explain those requirements.
In addition, since this subpart was first published on June 10, 1991,
the Board has changed the manner by which an employing agency is
required to transmit employee separation data to the TSP recordkeeper.
See TSP Bulletin 94-29, Elimination of Form TSP-18, Validation of
Retirement Information, and New Procedures for Submitting Form TSP-3,
Designation of Beneficiary. Section 1620.97 is being amended to reflect
this change.
Regulatory Flexibility Act
I certify that these regulations will not have a significant
economic impact on a substantial number of small entities because they
will apply only to Federal agencies and employees.
Paperwork Reduction Act
I certify that these regulations do not require additional
reporting under the criteria of the Paperwork Reduction Act of 1980.
Waiver of Notice of Proposed Rulemaking and 30-Day Delay of Effective
Date
Under 5 U.S.C. 553 (b)(3)(B) and (d)(3), I find that good cause
exists for waiving the general notice of proposed rulemaking and for
making these regulations effective in less than 30 days because section
1043 of the Defense Authorization Act, 110 Stat. at 434-435, requires
these regulations to be effective on or before August 10, 1996.
Unfunded Mandates Reform Act of 1995
Pursuant to the Unfunded Mandates Reform Act of 1995, sec. 201,
Pub. L. 104-4, 109 Stat. 48, 64, the effect of this regulation on
State, local, and tribal governments and on the private sector has been
assessed. This regulation will not compel the expenditure in any one
year of $100 million or more by any State, local, or tribal governments
in the aggregate or by the private sector. Therefore, a statement under
section 202, 109 Stat. 48, 64-65, is not required.
Submission to Congress and the General Accounting Office
Under section 801(a)(1)(A) of the Administrative Procedure Act
(APA), as amended by the Regulatory Enforcement Fairness Act of 1996,
Pub. L. 104-121, tit. II, 110 Stat. 847, 857-875 (5 U.S.C.
801(a)(1)(A)), the Board submitted a report containing this rule and
other required information to the U.S. Senate, the U.S. House of
Representatives and the Comptroller General of the General Accounting
Office prior to the publication of this rule in today's Federal
Register. This rule is not a ``major rule'' as defined in section
804(2) of the APA as amended (5 U.S.C. 804(2)).
List of Subjects in 5 CFR Part 1620
Employee benefit plan, Government employees, Pensions, Retirement.
Federal Retirement Thrift Investment Board
Roger W. Mehle,
Executive Director.
For the reasons set out in the preamble, Part 1620 of chapter VI,
Title 5 of the Code of Federal Regulations is amended as follows:
PART 1620--CONTINUATION OF ELIGIBILITY
1. The authority citation for Part 1620 is revised to read as
follows:
Authority: 5 U.S.C. 8474 and 8432b; Pub. L. 99-591, 100 Stat.
3341; Pub. L. 100-238, 101 Stat. 1744; Pub. L. 100-659, 102 Stat.
3910; Pub. L. 101-508, 104 Stat. 1388; Pub. L. 104-106, 110 Stat.
186.
2. Subpart G of part 1620 is revised to read as follows:
Subpart G--Nonappropriated Fund Employees
Sec.
1620.90 Scope.
1620.91 Definitions.
1620.92 Employees who move to a NAF instrumentality on or after
August 10, 1996.
1620.93 Employees who moved to a NAF instrumentality prior to
August 10, 1996, but after December 31, 1965.
1620.94 Employees who move from a NAF Instrumentality to a Federal
Government agency.
1620.95 Payment of TSP contributions.
1620.96 Loan payments.
1620.97 Transmission of information.
1620.98 Notices.
1620.99 Other regulations.
Subpart G--Nonappropriated Fund Employees
Sec. 1620.90 Scope.
This subpart applies to any employee of a Nonappropriated Fund
(NAF) instrumentality of the Department of Defense (DOD) or the U.S.
Coast Guard who elects to be covered by the Civil Service Retirement
System (CSRS) or the Federal Employees' Retirement System (FERS) and to
any employee in a CSRS or FERS covered position who elects to be
covered by a retirement plan established for employees of a NAF
instrumentality pursuant to the Portability of Benefits for
Nonappropriated Fund Employees Act of 1990, Pub. L. 101-508, 104 Stat.
1388, 1388-335 to 1388-341 (codified largely at 5 U.S.C. 8347(p)(1) and
8461(n)(1) (1994)), as amended by section 1043 of the National Defense
Authorization Act for Fiscal Year 1996, Pub. L. 104-106, 110 Stat. 186,
434-439.
Sec. 1620.91 Definitions.
As used in this subpart, the terms--
Basic pay means the pay from the NAF instrumentality used to
compute the amount the individual is required to contribute to the
Civil Service Retirement and Disability Fund as a condition for
participating in CSRS or FERS, as the case may be.
Covered by means paying contributions to the Civil Service
Retirement and Disability Fund under either CSRS or FERS.
Move means moving from a position covered by CSRS or FERS to a NAF
instrumentality of the DOD or Coast Guard, or vice versa, without a
break in service of more than 1 year.
Thrift Savings Plan (TSP) election means a request by an employee
to start contributing to the TSP, to terminate contributions to the
TSP, to change the amount of contributions made to the TSP each pay
period, or to change the allocation of future TSP contributions among
the investment funds and made effective pursuant to 5 CFR part 1600.
Sec. 1620.92 Employees who move to a NAF instrumentality on or after
August 10, 1996.
(a) Any Thrift Savings Plan (TSP) elections:
(1) Made during a previous employment by an employee who moves to a
NAF instrumentality on or after August 10, 1996, and who elects to
continue to be covered by CSRS or FERS; and
(2) Which is still in effect as of the date of the move shall be
implemented by the NAF instrumentality and shall begin with the date of
the move.
(b) If an employee who moves to a NAF instrumentality on or after
August 10, 1996, does not have a current election to contribute to the
TSP, he or she shall be permitted to make such an election during the
first TSP Open Season, as described in 5 CFR 1600.2, during which he or
she is eligible to do so under 5 U.S.C. 8432.
(c) An employee who moves to a NAF instrumentality on or after
August 10, 1996, and who elects to continue to be covered by CSRS or
FERS must be permitted during the appropriate Open Seasons to elect
under 5 U.S.C. 8351(b)(2) or 8432(a), as applicable, to make future
contributions to the Thrift Savings Fund from his or her basic pay.
[[Page 41487]]
(d) For an employee who moves to a NAF instrumentality on or after
August 10, 1996, and who elects to continue to be covered by FERS, the
NAF instrumentality must also contribute each pay period to the Thrift
Savings Fund in accordance with Board procedures on behalf of such
employee any amounts which the employee is eligible to receive under 5
U.S.C. 8432(c).
(e) In the case of an employee who moves to a NAF instrumentality
on or after August 10, 1996, and who elects to continue to be covered
by CSRS or FERS, any TSP contributions described in 5 U.S.C. 8351(b)(2)
or 8432(a), as applicable, for which such employee is eligible and
which are not made in accordance with this section because the employee
moves to the NAF instrumentality but does not make an immediate
election to be covered by CSRS or FERS, shall be made up according to
the error correction procedures contained in 5 CFR part 1605.
Sec. 1620.93 Employees who moved to a NAF instrumentality prior to
August 10, 1996, but after December 31, 1965.
(a) Future TSP contributions. (1) Employee Contributions. An
employee who moved to a NAF instrumentality prior to August 10, 1996,
but after December 31, 1965, and who elects to be covered by CSRS or
FERS as of the date of such move may elect to make any future
contributions to the TSP in accordance with 5 U.S.C. 8351(b)(2) or
8432(a), as applicable, within 30 days of the date of his or her
election to be covered by CSRS or FERS. Such contributions shall begin
being deducted from the employee's pay no later than the pay period
following the election to contribute to the TSP. Any TSP election which
may have been in effect at the time of the employee's move will not be
effective for any future contributions.
(2) Agency Automatic (1%) Contributions. If an employee who moved
to a NAF instrumentality prior to August 10, 1996, but after December
31, 1965, elects to be covered by FERS, the NAF instrumentality must
also contribute each pay period to the Thrift Savings Fund on behalf of
such employee any amounts which the employee is eligible to receive
under 5 U.S.C. 8432(c)(1), beginning no later than the pay period
following the employee's election to be covered by FERS.
(3) Agency Matching Contributions. If an employee who moved to a
NAF instrumentality prior to August 10, 1996, but after December 31,
1965, elects to be covered by FERS and also elects to make
contributions to the TSP pursuant to paragraph (a)(1) of this section,
the NAF instrumentality must also contribute each pay period to the
Thrift Savings Fund on behalf of such employee any amounts which the
employee is eligible to receive under 5 U.S.C. 8432(c)(2), beginning at
the same time as the employee's contributions are made pursuant to
paragraph (a)(l) of this section.
(b) Retroactive TSP Contributions. (1) Without regard to any
election to contribute to the TSP under paragraph (a)(l) of this
section, the NAF instrumentality shall take the following actions with
respect to an employee who moved to a NAF instrumentality prior to
August 10, 1996, but after December 31, 1965, and who elects to be
covered by CSRS or FERS as of the date of the move:
(i) Agency Automatic (1%) Make-up Contributions. The NAF
instrumentality shall, within 30 days of the date of the employee's
election to be covered by FERS, contribute to the Thrift Savings Fund
an amount representing the Agency Automatic (1%) Contribution for all
pay periods during which the employee would have been eligible to
receive the Agency Automatic (1%) Contribution under 5 U.S.C. 8432,
beginning with the date of the move and ending with the date that
Agency Automatic (1%) Contributions begin under paragraph (a)(2) of
this section. Lost earnings will not be paid on these contributions
unless they are not made by the NAF instrumentality within the time
frames required by these regulations.
(ii) Employee Make-up Contributions. (A) Within 60 days of the
election to be covered by FERS, an employee who moved to a NAF
instrumentality prior to August 10, 1996, but after December 31, 1965,
and who elects to be covered by FERS, may make an election regarding
Employee Make-up Contributions. The employee may elect to contribute
all or a percentage of the amount of Employee Contributions which the
employee would have been eligible to make under 5 U.S.C. 8432 between
the date of the move and the date Employee Contributions begin under
paragraph (a)(1) of this section or, if no such election is made under
paragraph (a)(1) of this section, the date that Agency Automatic (1%)
Contributions begin under paragraph (a)(2) of this section.
(B) Within 60 days of the election to be covered under CSRS, an
employee who moved to an NAF instrumentality prior to August 10, 1996,
but after December 31, 1965, and who elects to be covered by CSRS, may
make an election regarding make-up contributions. The employee may
elect to contribute all or a percentage of the amount of Employee
Contributions which the employee would have been eligible to make under
5 U.S.C. 8351 between the date of the move and the date Employee
Contributions begin under paragraph (a)(1) of this section or, if no
such election is made under paragraph (a)(1) of this section, the pay
period following the date the election to be covered by CSRS is made.
(C) Deductions made from the employee's pay pursuant to an
employee's election under paragraph (b)(1)(ii) (A) or (B) of this
section, as appropriate, shall be made according to a schedule that
meets the requirements of paragraphs (b) (2) and (3) of this section.
(iii) Agency Matching Make-up Contributions. The NAF
instrumentality must pay to the Thrift Savings Fund any Matching
Contributions attributable to Employee Contributions made under
paragraph (b)(1)(ii)(A) of this section that the NAF instrumentality
would have been required to make under 5 U.S.C. 8432(c), at the same
time that such Employee Contributions are contributed to the Fund.
(2) The NAF instrumentality may set a ceiling on the number of pay
periods over which the contributions referred to in paragraph
(b)(1)(ii) of this section may be made; however, this ceiling may not
be less than two times the number of pay periods in which the payments
could have been made. The payment schedule must begin no later than the
pay period following the date the employee elects such schedule and it
may not contain more than four times the number of pay periods in which
the payment could have been made. When setting the number of payments,
the employee's remaining period of employment with the Federal
Government should be considered to ensure that the employee will have
sufficient time to make up these contributions.
(3) If the agreed-upon payment schedule cannot be met because the
employee has insufficient net pay or because the employee has reached
an annual ceiling for tax-deferred contributions under 26 U.S.C. 402(g)
or 415, the payment schedule will be suspended until the employee is
again able to make full payments through payroll deductions. Pay
periods for which an employee is unable to make payments because of
insufficient net pay or a ceiling on tax-deferred contributions, will
not be counted against the maximum number of pay periods applicable to
the schedule and
[[Page 41488]]
the maximum number of applicable pay periods must be extended
accordingly.
(4) If an employee chooses to contribute the make-up amount, he or
she may subsequently terminate that decision at any time and that
termination shall be irrevocable. If an employee separates from Federal
or covered NAF employment, the employee may accelerate the contribution
by lump sum payment from the final salary payment. If the employee
dies, the retroactive contributions of the deceased employee will be
terminated as of the final salary payment.
(5) The make-up payment amount is not subject to the maximum pay
period contribution limitations; however, these amounts must be
included when determining amounts subject to annual ceilings on
contributions under 26 U.S.C. 402(g) or 415.
(6) In the event an employee does not have sufficient net pay to
make all of the TSP deductions, the employee's regular TSP deduction
shall take precedence over the employee's payment schedule
contribution.
(7) Make-up contributions shall be reported for investment by the
NAF instrumentality when contributed, according to the employee's
election for current TSP contributions. If the employee is not making
current contributions, the retroactive contributions shall be invested
according to an election form (TSP-1-NAF) filed specifically for that
purpose.
(c) An employee who is covered by a NAF retirement plan is not
eligible to participate in the TSP. Any TSP contributions relating to a
period for which an employee elects retroactive NAF retirement coverage
shall be removed from the TSP as required by the regulations at 5 CFR
part 1605.
(d) A TSP election made by an employee of a NAF instrumentality who
elected to be covered by CSRS or FERS prior to August 10, 1996, which
was properly implemented by the NAF instrumentality because it was
valid under then-effective regulations, is effective under the
regulations in this subpart.
Sec. 1620.94 Employees who move from a NAF instrumentality to a
Federal Government agency.
(a) An employee of a NAF instrumentality who moves from a NAF
instrumentality to a Federal Government agency and who elects to be
covered by a NAF retirement system is not eligible to participate in
the TSP. Any TSP contributions relating to a period for which an
employee elects retroactive NAF retirement coverage shall be removed
from the TSP as required by the regulations at 5 CFR part 1605.
(b) An employee of a NAF instrumentality who moves from a NAF
instrumentality to a Federal Government agency and who elects to be
covered by CSRS or FERS will become eligible to participate in the TSP
as follows:
(1) If the employee was previously eligible to participate in the
TSP under a prior period of Federal Government service, the employee
will be eligible to participate in the TSP the first Open Season (as
determined in accordance with 5 CFR 1600.3(d)) beginning after the
effective date of the CSRS and FERS coverage.
(2) If the employee was not previously eligible to participate in
the TSP, the employee will be eligible to contribute to the TSP in the
second Open Season (as determined in accordance with 5 CFR 1600.3(d))
beginning after the effective date of the CSRS or FERS coverage.
Sec. 1620.95 Payment of TSP contributions.
The NAF instrumentality shall deduct any Employee Contributions
authorized under this section from the pay of the employee each pay
period and shall remit such amounts to the Thrift Savings Fund in
accordance with this subpart and Board procedures. The NAF
instrumentality shall contribute any future Agency Automatic (1%)
Contributions and Agency Matching Contributions to the Thrift Savings
Fund each pay period in accordance with this subpart and Board
procedures. The NAF instrumentality shall contribute make-up
contributions to the Thrift Savings Fund in accordance with this
subpart and Board procedures.
Sec. 1620.96 Loan payments.
NAF instrumentalities shall deduct and transmit TSP loan payments
for employees who elect to be covered by CSRS or FERS to the
recordkeeper in accordance with 5 CFR part 1655 and Board procedures.
Loan payments may not be deducted and transmitted for employees who
elect to be covered by the NAF retirement system. Such employees will
be considered to have separated from Government service and must prepay
their loans or a taxable distribution will be declared.
Sec. 1620.97 Transmission of information.
Any employee who moves to a NAF instrumentality shall be reported
by the losing Federal Government employing agency to the TSP
recordkeeper as having transferred to a NAF instrumentality of the DOD
or Coast Guard rather than as having separated from Government service.
If the employee subsequently elects not to be covered by CSRS or FERS,
the NAF instrumentality must submit an Employee Data Record to report
the employee as having separated from Federal Government service as of
the date of the move.
Sec. 1620.98 Notices.
All NAF instrumentalities employing any individuals covered by
Sec. 1620.90 must notify affected employees of the application of the
regulations in this subpart as soon as practicable.
Sec. 1620.99 Other regulations.
NAF instrumentalities and individuals covered by Sec. 1620.90 are
governed by the regulations in this chapter, to the extent that the
regulations in this chapter are not inconsistent with this subpart.
[FR Doc. 96-20129 Filed 8-8-96; 8:45 am]
BILLING CODE 6760-01-P
Complete official Federal Register PDF
FR Doc. 96-20029 Endangered and Threatened Species; Endangered Status for Umpqua River Cutthroat Trout in Oregon
[Federal Register Volume 61, Number 155 (Friday, August 9, 1996)]
[Rules and Regulations]
[Pages 41514-41522]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-20029]
=======================================================================
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 222
[Docket No. 960723205-6205-01; I.D. 040694C]
Endangered and Threatened Species; Endangered Status for Umpqua
River Cutthroat Trout in Oregon
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: NMFS is issuing a final determination that the Umpqua River
cutthroat trout (Oncorhynchus clarki clarki) is a ``species'' under the
Endangered Species Act of 1973, as amended (ESA) and will be listed as
endangered. Extremely low, and declining, numbers of adult cutthroat
trout counted at Winchester Dam on the North Umpqua River signal a high
risk of extinction for the species. Habitat degradation, recreational
fishing, and inadequate regulatory mechanisms are factors that have
contributed to the species' decline. Habitat degradation and inadequate
regulatory mechanisms continue to represent a potential threat to the
Umpqua River cutthroat trout's existence.
NMFS will reconsider this determination in 2 years (or as new
scientific information becomes available) and will continue to assess
the degree to which ongoing Federal, state, and local conservation
initiatives reduce the risks faced by Umpqua River cutthroat trout.
EFFECTIVE DATE: September 9, 1996.
ADDRESSES: Garth Griffin, NMFS, Environmental and Technical Services
Division, 525 NE Oregon St.--Suite 500, Portland, OR 97232-2737,
telephone (503/231-2005); or Marta Nammack, NMFS, Office of Protected
Resources, 1315 East-West Highway, Silver Spring, MD 20910, telephone
(301/713-1401).
FOR FURTHER INFORMATION CONTACT: Garth Griffin, telephone (503/231-
2005), or Marta Nammack, telephone (301/713-1401).
SUPPLEMENTARY INFORMATION:
Background
The Umpqua River cutthroat trout is a ``distinct population
segment'' under the ESA (hereinafter referred to as an Evolutionarily
Significant Unit or ESU (56 FR 58612; November 20, 1991)) of the
coastal cutthroat trout
[[Page 41515]]
(Oncorhynchus clarki clarki). The coastal cutthroat trout subspecies is
native to western North America and is found in the coastal temperate
rainforests from southeast Alaska to northern California (Trotter
1989). The Umpqua River cutthroat trout ESU inhabits a large coastal
basin (drainage area over 12,200 km2) in the southwestern Oregon coast.
Spawning sites are located in the North and South Umpqua Rivers and
their tributaries, of which Smith River and Calapooya, Elk, and
Scholfield Creeks are major tributaries. The estuary of the Umpqua
River is one of the largest on the Oregon coast.
Coastal cutthroat trout differ from all other trout by their
profusion of small to medium-size spots of irregular shape (Behnke
1992). In addition, they do not develop the brilliant colors associated
with inland cutthroat trout (a separate subspecies). In the sea-run
(anadromous) form of the coastal cutthroat trout, spots and colors are
further obscured by the silvery skin deposit common to anadromous
salmonids. Non-anadromous (resident) fish tend to be darker, with a
``coppery or brassy'' sheen (Behnke 1992).
The life history of this subspecies is probably the most complex
and flexible of any Pacific salmonid. Unlike other anadromous
salmonids, sea-run forms of the coastal cutthroat trout do not
overwinter in the ocean and only rarely make long extended migrations
across large bodies of water. They migrate in the nearshore marine
habitat and usually remain within 10 km of land (Giger 1972; Sumner
1972; Jones 1976; Johnston 1981). While most anadromous cutthroat trout
enter seawater as 2- or 3-year olds, some may remain in fresh water up
to 5 years before entering the sea (Giger 1972; Sumner 1972). Other
cutthroat trout may never outmigrate at all, but remain as residents of
small headwater tributaries. Still other cutthroat trout may migrate
only into rivers and lakes (Nicholas 1978; Tommasson 1978; Moring et
al. 1986; Trotter 1989), even when they have access to the ocean
(Tomasson 1978). In the Umpqua River, anadromous, resident, and
potamodromous (river-migrating) life-history forms have been reported
(Trotter 1989; Loomis and Anglin 1992; Loomis et al. 1993). Details of
the coastal cutthroat trout life history and ecology, including aspects
particular to the various life forms, can be found in published reviews
by Pauley et al. (1989), Trotter (1989), Behnke (1992), and Johnson et
al. (1994).
Previous Federal Action
On April 1, 1993, the Secretary of Commerce received a petition
from the Oregon Natural Resources Council, Umpqua Valley Audubon
Society, and the Wilderness Society to list Umpqua River cutthroat
trout as threatened or endangered, and to designate critical habitat
under the ESA (16 U.S.C. 1531 et seq.). On July 19, 1993, NMFS
published a notice indicating its intent to conduct a status review of
Umpqua River cutthroat trout (58 FR 38554). To ensure a comprehensive
review, NMFS solicited information and data regarding the present and
historic status of Umpqua River cutthroat trout and whether this stock
qualifies as a ``species'' under the ESA. NMFS also requested
information on areas that may qualify as critical habitat for Umpqua
River cutthroat trout.
On August 19, 1993, NMFS received a petition from the Oregon
Natural Resources Council and the Steamboaters for an emergency listing
of Umpqua River cutthroat trout. On December 17, 1993, NMFS published a
notice that an emergency listing was not warranted at that time (58 FR
65961).
In June 1994, NMFS published a technical paper entitled ``Status
Review for Oregon's Umpqua River Sea-run Cutthroat Trout'' (Johnson et
al. 1994), and subsequently published a proposed rule on July 8, 1994
(59 FR 35089) to list Umpqua River cutthroat trout as an endangered
species. NMFS cited the precarious status of the remaining anadromous
cutthroat trout in the Umpqua River Basin (and possibly other life
forms), which have demonstrated a steady decline since at least the
mid-1970s. In this finding, NMFS proposed that all cutthroat trout life
forms (i.e., resident, anadromous, potamodromous) should be included in
the listed Umpqua River cutthroat trout ESU. On September 2, 1994, NMFS
published a notice of public hearing and an extension of public comment
period (59 FR 45661); a public hearing on the proposed rule was held on
September 29, 1994, in Roseburg, OR.
Pursuant to a joint policy issued by NMFS and U.S. Fish and
Wildlife Service (USFWS) on July 1, 1994, regarding implementation of
the ESA, state government co-managers were involved in the preparation
of this final rule.
Summary of Comments
Twenty-two individuals presented testimony at the NMFS public
hearing on the proposed rule. During the 90-day public comment period,
NMFS received seventeen written comments on the proposed rule from
government agencies, non-government organizations, the scientific
community, and other individuals. The majority of comments opposed
listing Umpqua River cutthroat trout under the ESA. Opposition to the
proposed rule was primarily focused on the amount and quality of
information on which the proposed rule was based. This final rule takes
into account comments received during the public comment period and
public hearing. A summary of major comments received during the public
comment period and public hearing is presented below.
Issue 1: Sufficiency of Scientific Information
Many individuals commented that there is a general lack of data
concerning a variety of factors pertaining to the Umpqua River
cutthroat trout (e.g., minimum viable population size, age structure,
absolute abundance of juveniles or adults, distribution, redd counts,
average time of spawning, genetic evidence of distinctness). Some
commenters recommended that listing be delayed until more information
can be developed to better support a listing decision.
NMFS recognizes that available information regarding the Umpqua
River cutthroat trout is limited. However, the ESA requires that a
listing determination be made based ``solely on the basis of the best
available commercial and scientific data (16 USC 1533(b)(1); 50 CFR
424.11(b)).'' Such a determination must be made in accordance with the
time frames set forth in the ESA. The status review reflects the best
scientific information presently available regarding cutthroat trout in
the Umpqua River Basin, and indicates that Umpqua River cutthroat trout
is an ESU that is endangered. NMFS believes that it would not be
prudent to delay listing and risk possible extinction of this species
due to the lack of more complete information. Therefore, in accordance
with the ESA, NMFS finds it appropriate to make a listing determination
at this time. As new scientific information becomes available, NMFS
will reconsider the listing status of Umpqua River cutthroat trout.
Issue 2: Life History and Distribution
Several commenters stated that the literature indicates that
cutthroat trout exhibit a variety of migratory behaviors: Anadromy,
potamodromy, and residency. Other comments suggested that the existence
of multiple life forms in the Umpqua River Basin warrants
[[Page 41516]]
further study before concluding that listing is warranted.
NMFS concurs that three life forms presently exist in the Umpqua
River. Anadromy, a life history characteristic common to Pacific
salmonids, is exemplified by a species that migrates from fresh water
to the ocean, then returns to fresh water as an adult to spawn.
Potamodromy, a relatively uncommon life history trait, is exemplified
by a species that undertakes freshwater migrations of varying length
without entering the ocean. Residency, a relatively common life history
trait, is exemplified by a species that remains within a relatively
small freshwater range throughout its entire life cycle. The Oregon
Department of Fish and Wildlife (ODFW) stated that recent radio tagging
evidence verifies the existence of a potamodromous life form of Umpqua
River cutthroat trout.
NMFS believes that recent studies conducted by ODFW represent
substantial progress in documenting the life history of cutthroat trout
in the Umpqua River Basin and strongly indicate that some cutthroat
trout do exhibit the potamodrous life history trait. Although the
relationship between the various life forms is currently not well-
defined, and further research will be needed to clarify this issue, the
best available scientific data indicate that it is unlikely that these
life forms are completely isolated reproductively. Therefore, NMFS has
determined that all cutthroat trout life forms (i.e., resident,
anadromous, potamodromous) should be included in the listed Umpqua
River cutthroat trout ESU.
One commenter indicated that the historical range of anadromous
fish, including cutthroat trout, extended up to Toketee Falls on the
North Umpqua River, not merely to the Soda Springs dam site as
indicated in the status review. NMFS agrees with this comment and notes
that a more detailed analysis of migrational barriers will be conducted
during the designation of critical habitat for Umpqua River cutthroat
trout.
Although the NMFS status review reports that historical cutthroat
trout runs (upstream migrations) extended from June through January,
one comment stated that currently migration is only possible during
late July and August. This commenter expressed concern that this was
detrimental to the trout because it is the period of highest water
temperatures in the Umpqua River, and that the status review does not
adequately address this restriction in run timing. NMFS agrees that
adult cutthroat trout experience delays during the spawning migration
from the lower Umpqua River estuary to the North and South Umpqua
Rivers and concurs with the commenter that elevated water temperatures
in the mainstem Umpqua River in late July and August may have had a
significant impact on the survival and time of arrival of cutthroat
trout at Winchester Dam. Ongoing ODFW radio-tagging studies are
expected to provide more insight into this problem.
Issue 3: Status of the Umpqua River Cutthroat Trout
Some commenters stated that cutthroat trout are a good indicator of
habitat quality and that their existence in areas of the Umpqua River
Basin considered to be severely degraded suggests that habitat
alterations are not significant risk factors.
While it is possible that cutthroat trout may be ``an indicator of
habitat quality,'' NMFS has found no published studies to support this
characterization. Although exceptions may exist, NMFS believes that
available research has established that cutthroat trout and other
salmonids have declined throughout their range due to logging and other
forest and rangeland management practices (for an extensive treatment,
see Meehan 1991). For example, Connolly and Hall (1994) found that the
abundance of cutthroat trout in logged areas of coastal Oregon streams
varied considerably based upon differences in scour and cover afforded
by large woody debris and by the differences in light and nutrient
inputs afforded by deciduous versus conifer trees in the riparian zone.
These authors found that woody debris left in streams in logged areas
often resulted in significant increases in resident cutthroat trout
abundance for up to 30 years. However, because prospects for future
recruitment of large woody debris decrease after this period, the
period between 40 to 60 years after logging appears to be a time during
which cutthroat trout abundances are likely to decline as a result of
degraded habitat conditions. Therefore, short-term increases in
cutthroat trout abundance may be expected after logging because of
associated increases in large woody debris (if the increases are not
offset by other impacts such as siltation, scouring, high water
temperatures). However, over the long-term, logging would likely lead
to cutthroat trout population declines.
Several commenters stated that Winchester Dam counts are not
representative of the status of migrating Umpqua River cutthroat trout,
because they only account for those fish entering the North Umpqua
River and ignore fish in the South and mainstem Umpqua River. In
contrast, one commenter stated that the abundance trend information
provided by Winchester Dam counts is probably as good as any
information available on the West Coast for cutthroat trout.
NMFS has determined that Winchester Dam counts are currently the
best quantitative measures of cutthroat trout abundance in the Umpqua
River Basin. Although the dam is located on the North Umpqua River,
there are several reasons to believe that the North Umpqua River has
larger and healthier populations of cutthroat trout than the South
Umpqua River.
For example, while no long-term surveys of cutthroat trout were
conducted in the South Umpqua River prior to 1993, a U.S. Forest
Service (USFS) report states that ``a very small, wild cutthroat trout
population probably exists in the South Umpqua River system'' and that
this run was once ``widespread'' and ``dramatically larger than at
present'' (United States Department of Agriculture (USDA) 1992).
Several factors have tended to make the South Umpqua River less
conducive to cutthroat trout production than the North Umpqua River.
The North Umpqua River begins farther inland and flows for a
substantial distance at a higher elevation than most other Oregon
coastal rivers, including the South Umpqua River. As a result, the
North Umpqua River has historically had cooler water temperatures and
larger summer water flows than other local rivers. Although the South
Umpqua River also begins at a relatively high altitude, it rapidly
drops in elevation; consequently, it tends to exhibit higher water
temperatures and lower summer flows compared to the North Umpqua River.
In addition to the geomorphological differences in the North and
South Umpqua Rivers, different levels of riparian habitat loss have
also contributed to temperature differences in these rivers. Beginning
in the mid-1950's, summer water temperatures and the frequency of
winter flooding increased in the Umpqua River watershed, presumably as
a result of poor logging practices. Summer water temperatures were
often above the preferred range for cutthroat trout and other salmonid
populations (about 7 to 16 deg.C) in portions of the river (Bell 1986).
In recent years, the riparian forest canopy has begun to recover in the
North Umpqua River watershed, but maximum water temperatures are still
higher than those preferred by cutthroat trout. This recovery has been
slower in the South Umpqua River watershed and
[[Page 41517]]
conditions for cutthroat trout have remained poorer than in the North
Umpqua River.
Based on these factors, NMFS believes that historically, the South
Umpqua River has been less conducive to cold-water dependent species
such as cutthroat trout, relative to the North Umpqua River. In
addition, NMFS believes that present conditions in the North Umpqua
River are more favorable for cutthroat trout production than those
found in the South Umpqua River.
Several commenters stated that resident (nonmigratory) populations
of cutthroat trout are healthy in the Umpqua River, and recommended
that the condition of these populations be taken into account when
determining whether to list the species. ODFW stated that ``resident
cutthroat trout populations above natural barriers (e.g., high
waterfalls) are in relatively healthy condition and do not warrant an
endangered listing (ODFW 1994).''
NMFS notes that there have been no recently published population
surveys of cutthroat trout in the Umpqua River Basin. Furthermore,
there have been no published population surveys of cutthroat trout
above natural barriers to confirm the assertion that resident cutthroat
trout populations above natural barriers are healthy. However, Kostow
(1995) states that available information has ``raised concerns that
anadromous populations in Oregon may be experiencing a widespread
decline'' and that resident cutthroat appear to ``remain relatively
abundant, even in streams where the abundance of searun fish has
sharply declined.''
Anecdotal information suggests that the resident component of the
cutthroat trout ESU may be relatively healthy; however, few published
scientific data exist to support this conclusion. Furthermore, ladder
counts from Winchester Dam indicate that the anadromous component of
this ESU has declined to precipitously low levels. These ladder counts
represent one of the best long-term data sets for cutthroat trout on
the West Coast. Anadromy is considered an important component in the
evolutionary legacy of O. clarki clarki, therefore inclusion of both
the anadromous and resident life history forms in the ESU is warranted
(61 FR 2639), based on the present status of the anadromous cutthroat
trout life form and the fact that listing of the resident form may
increase the anadromous form's chances of survival.
In addition to stating that resident populations of cutthroat trout
above natural barriers are healthy, ODFW also stated that ``natural
barriers form gene flow barriers,'' resulting in a distinction between
resident cutthroat trout populations above natural barriers and
migrating populations below such barriers (ODFW 1994). Recent research
indicates that some gene flow may occur from cutthroat trout above
barriers to below-barrier populations; however, the amount and role of
this contribution is presently unknown (Johnston 1981; Behnke 1979;
Griswold 1996).
In most cases, genetic flow between cutthroat trout populations
above and below barriers would be limited to a one-way flow (fish
traveling downstream over falls). The genetic contribution of this flow
is not thought to be an important factor for populations separated by
long-standing natural barriers, since there would likely be strong
selection in the resident populations above barriers against
individuals with a tendency to migrate downstream. Therefore, based on
available data, NMFS concludes that resident populations of Umpqua
River cutthroat trout residing above natural impassable barriers for
long periods of time (several hundreds or thousands of years) are not
included in the cutthroat trout ESU presently being listed under the
ESA.
With respect to manmade impassable barriers, NMFS believes that
historically, anadromous cutthroat trout populations inhabited areas
above both Soda Springs and Galesville Dams (completed in 1952 and
1987, respectively). While the construction of these dams has resulted
in the isolation of cutthroat trout populations for the past several
decades, recent studies with sockeye salmon (another salmonid with
resident and anadromous life forms) suggest that the anadromous life
history trait can be retained by populations above barriers after
decades of isolation (Kaeriyama et al. 1992). Based on this, NMFS
believes that cutthroat trout species residing above artificial
barriers for a period of decades have probably remained genetically
similar to those species residing below such barriers. Therefore, NMFS
has determined that cutthroat trout populations residing above
Galesville and Soda Springs Dams are included in the Umpqua River
cutthroat trout ESU and are thus being listed at this time.
Issue 4: Factors Contributing to the Decline of Umpqua River Cutthroat
Trout
Many commenters recommended that NMFS consider other factors for
decline in addition to those identified in the proposed rule, i.e.,
recreational fishing and habitat degradation as a result of logging.
Additional factors identified by commenters include the following:
Predation by marine mammals, birds, and native and non-native fish
species; adverse environmental conditions resulting from natural
factors such as droughts, floods, and poor ocean conditions; non-point
and point source pollution caused by agriculture and urban development;
disease outbreaks caused by hatchery introductions and warm water
temperatures; mortality resulting from unscreened irrigation inlets;
competition in estuaries between native and hatchery cutthroat trout;
cumulative loss and alteration of estuarine areas; and loss of habitat
caused by the construction of dams.
NMFS acknowledges that there are many factors in addition to
logging and recreational fishing that have contributed to the decline
of Umpqua River cutthroat trout. However, extensive scientific
literature exists regarding the adverse effects of these two activities
on anadromous fish populations and their habitat (see references).
Further, it is well documented that both of these activities have
historically occurred extensively throughout the Umpqua River Basin.
Based on available information, NMFS believes that these two activities
have significantly contributed to the decline of the cutthroat trout in
the Umpqua River Basin. Furthermore, recent legislation, i.e., the
``salvage timber rider'' provisions of the July 1995 Emergency
Supplemental Appropriations Act; Sec. 20010 et seq. of Public Law 104-
19, which suspended certain logging restrictions on Federal lands, has
resulted in increased timber harvest in the Umpqua River watershed.
NMFS will address these and other factors for decline during the
development of a cutthroat trout recovery plan.
Several commenters specifically stated that poor ocean conditions
(for example, conditions resulting in reduced marine forage or
increased predation) associated with El Nino events may have
contributed to the decline of this species. Although available
literature is limited regarding the importance of the marine component
of cutthroat trout, it appears that this species spends a limited
amount of time in the marine environment, spending only 2 to 5 months
in salt water before returning to fresh water (Behnke 1992). While in
the marine environment, cutthroat trout typically stay close to shore,
near bays, estuaries and beaches (Pauley et al. 1989; Behnke 1992);
however, they have been found as far as 31 km offshore (Loch and Miller
1988).
Based on these estuarine and marine life history characteristics,
ocean
[[Page 41518]]
conditions would likely have a lesser impact on cutthroat trout than on
salmon species that spend more time at sea. However, this is not to say
that cutthroat trout do not receive important benefits from marine
residence. Poor ocean conditions are likely to impact cutthroat trout
abundance; however, during periods of low ocean productivity, the
availability of productive freshwater habitat becomes increasingly
important to buffer such ocean conditions.
Several commenters stated that current logging practices have
dramatically improved over those of the past, decreasing the impact of
present-day logging on habitat. Present-day logging practices have
improved over those of the past; however, timber harvest is still a
major land use in the Umpqua River Basin (currently comprising nearly
70 percent Federal, state, or private timber land) and fish habitat is
still recovering from past logging practices. In addition, the
incremental impacts of present-day land management practices, when
added to impacts of past land management practices and other risk
factors, continue to pose a serious threat to Umpqua River cutthroat
trout.
One commenter provided data indicating that pH levels in various
tributaries of the Umpqua River Basin exceed the State of Oregon's
water quality standards and argued that these pH levels can be
attributed to the effects of logging. Although limited in scope, these
water quality results suggest a possible factor in the decline of
cutthroat trout in the Umpqua River Basin. These data warrant further
consideration during recovery planning.
Several commenters stated that recreational fishing has had a
minimal impact on naturally spawning cutthroat trout stocks and that no
basis exists for the statement that recreational fishing has likely
contributed to the general decline in Umpqua River cutthroat trout
populations. One commenter stated that the scientific literature is
replete with studies documenting recreational fishing as having great
potential for impacts on native fish stocks.
NMFS agrees that there is no specific documentation that indicates
recreational fishing has contributed to the decline of cutthroat trout
populations in the Umpqua River Basin. However, there has been a long-
standing fishery in the lower mainstem Umpqua River aimed at plants of
``catchable'' Alsea River hatchery-reared cutthroat trout. While there
are no studies on the possible impact of these hatchery fish or the
fishery for them on native cutthroat trout, there is considerable
literature on the susceptibility of cutthroat trout to angling and the
potential impacts of recreational fishing on native fish stocks (Behnke
1992; Pauley et al. 1989; Trotter 1989). Furthermore, ODFW has
recognized the potential adverse impacts of harvest on this species and
closed the Umpqua River to cutthroat trout fishing effective January 1,
1995 (ODFW 1994). NMFS expects that this action will greatly facilitate
the species' recovery.
One commenter stated that cutthroat trout are known to interbreed
with hatchery rainbow trout and, as a result, introgression has been
the major cause of decline of cutthroat trout throughout the western
United States. NMFS reviewed information from Behnke (1992), which
noted that mass hybridization has occurred in interior portions of the
cutthroat trout range (where the species evolved in isolation from
other salmonids) following the introduction of rainbow trout. However,
meristic and phenotypic assessments suggest that the coastal subspecies
of cutthroat trout (which includes Umpqua River cutthroat trout) is far
more resistant to hybridization than the interior cutthroat trout
subspecies (Behnke 1992). Hence, NMFS does not believe that
hybridization has been the major cause of decline of Umpqua River
cutthroat trout. Nonetheless, hatchery practices should be reviewed
during recovery planning to ensure that there are no adverse effects on
cutthroat trout in the future.
One commenter stated that, since cutthroat trout in the Umpqua
River Basin are at the southern end of their range, there may be a
greater tendency for natural fluctuations in population abundance
compared with species at the center of their range. While Umpqua River
cutthroat trout are in the southern portion of this species' historic
range, cutthroat trout populations have historically occurred as far
south as the Eel River in California (Behnke 1992; Trotter 1987).
Therefore, NMFS believes Umpqua River cutthroat trout populations are
well within the species' range and would not tend to exhibit natural
population fluctuations often associated with ``fringe'' populations.
Issue 5: Consideration of Umpqua River Cutthroat Trout as a Species
Several commenters indicated that the historical introduction of
Alsea River hatchery-reared cutthroat trout may have resulted in the
loss of the native component of cutthroat trout in the Umpqua River.
The effect of Alsea River cutthroat trout hatchery releases from
1961 to 1975 on native cutthroat trout in the Umpqua River is unknown.
Counts of adult cutthroat trout crossing Winchester Dam show that the
number of fish declined to nearly zero in the mid-1950's, increased
dramatically from about 1961 to 1975, and rapidly declined again after
about 1976. The period of increase coincides almost exactly with
releases of cutthroat trout from the Alsea River Hatchery into the
Umpqua River. Although other explanations are possible, the most
parsimonious is that the cutthroat trout increases during 1961-75
represent predominantly Alsea River hatchery fish straying to areas
above Winchester Dam. Alsea River fish have a slightly later run-timing
than the Umpqua River fish, and a shift toward later run-timing can be
detected in fish returning to Winchester Dam after 1960. However, there
is also evidence of a shift back toward the original run-timing after
cessation of the hatchery program.
Although the pattern of abundance and tag-recovery data during this
period of supplementation indicate that Alsea River hatchery fish
returned as adults to Winchester Dam in some numbers, it is apparent
that 15 years of hatchery releases did not result in a viable, self-
sustaining population of naturally spawning fish. One possible
explanation of this result is that Alsea River hatchery fish are poorly
adapted to conditions in the North Umpqua River. This explanation
supports NMFS' conclusion of a cutthroat trout ESU in the Umpqua River.
Other possible explanations include: (1) The effects of hatchery
rearing, rather than poor adaptation, are responsible for the lack of
long-term survival of Alsea River hatchery fish, and (2) the decline in
Winchester Dam counts following the end of the hatchery program merely
reflect deteriorating conditions for cutthroat trout in the North
Umpqua River. The relationship of the existing cutthroat trout
population to the original population and the introduced hatchery fish
is uncertain; however, available evidence from population abundance and
run-timing data suggests that a component of the native run persists.
One commenter stated that since cutthroat trout co-evolved with
other salmonid species, there should be similarity in the organization
of their ESU's. NMFS believes that each salmonid species has had a
unique evolutionary history and utilizes ecological niches different
from all other species. While there may be similarities across species
in salmonid ESU's, there is no reason that this will always be the
case. This may be especially true for cutthroat trout, which have a
more
[[Page 41519]]
complex life history than most Pacific salmonids.
One commenter stated that the amount of straying in cutthroat trout
may suggest a greater degree of genetic exchange in coastal
populations, thus potentially widening the ESU. While little
information is available on straying rates of cutthroat trout, that
which is available suggests that most movement of fish into non-natal
streams occurs with immature fish. NMFS is not aware of any evidence to
suggest that sexually mature, native cutthroat trout wander or stray at
a level higher than is typical of native populations of other species
of Pacific salmonids.
In reviewing cutthroat trout life history, Pauley et al. (1989)
reported that ``homing of native cutthroat trout is extremely precise
(Campton and Utter 1987), although hatchery planted fish may stray as
much as 30 percent, making survival rates impossible to determine
(Johnston and Mercer 1976).'' Giger (1972) found that tagged native
fish from streams in the Alsea River did not stray and were recaptured
only in their natal streams. However, Giger (1972) also found that over
30 percent of the tagged hatchery fish entered streams up to 133 km
from the release stream. Therefore, based on available data, straying
is not thought to affect the genetic distinctiveness of the native,
naturally spawning fish identified in this ESU.
One commenter stated that coastal cutthroat trout (Oncorhynchus
clarki clarki), the anadromous component of the cutthroat trout
species, is morphologically similar throughout its range and shows no
evidence of clinal variation. As reported by Behnke (1992), cutthroat
trout populations with direct access to the sea are morphologically
similar throughout their range. However, the few genetic studies that
have been conducted on cutthroat trout (e.g., Campton and Utter 1987;
Currens et al. 1992) show that there can be substantial genetic
differentiation even among local populations.
Issue 6: Existing Regulatory Mechanisms
Several commenters maintained that existing regulatory mechanisms
and management initiatives (e.g., the Oregon Forest Practices Act and
the Umpqua River Basin Fisheries Restoration Initiative) are sufficient
for the protection of Umpqua River cutthroat trout. Two commenters
stated that existing management initiatives are unproven and lack
technical support.
Although several commenters describe the Oregon Forest Practices
Act (OFPA) as being capable of protecting cutthroat trout, maintaining
fish populations, and preventing the take of any fish, there is little
evidence to support these claims. While the OFPA presently endorses
fish habitat protection (Oregon Department of Forestry (ODF) 1994),
NMFS is concerned that the level of habitat protection may be
insufficient to conserve Umpqua River cutthroat trout. However, the
OFPA itself provides a process ``to adopt additional basin-specific
protection rules for water quality-limited streams or streams with
threatened or endangered aquatic species'' (ODF 1994). This process
could be employed to great effect in the Umpqua River Basin, which
presently has more than 80 river reaches (many spanning from river
mouth to headwaters) currently designated as water-quality limited by
the Oregon Department of Environmental Quality (Oregon Department of
Environmental Quality 1995). Therefore, in response to the listing of
cutthroat trout, the Oregon Department of Forestry, in cooperation with
Federal land management agencies, could provide special emphasis to
habitat areas containing listed cutthroat trout to promote their
recovery.
The Umpqua River Basin Fisheries Restoration Initiative (UBFRI)
referenced by several commenters is also described as a measure which
will aid in the recovery of cutthroat trout. In 1993 the Douglas County
Board of Commissioners chartered this initiative to address restoration
projects in the Umpqua River Basin. Members of the initiative include
county, state, and Federal government, and private industry. Since its
inception, the initiative has sponsored extensive habitat surveys in
the watershed. Restoration efforts have focused primarily on
construction and placement of instream habitat structures. NMFS
believes that the UBFRI is a good example of how local groups can work
together to restore Pacific salmon. The initiative has made great
strides in assessing habitat conditions in the basin. This information
will be extremely useful in formulating a recovery plan for this
species.
NMFS is also encouraged by Oregon's recent development of a Coastal
Salmon Restoration Initiative (CSRI). If successful, this ambitious
initiative could provide all stakeholders with a better means by which
to achieve the purposes of the ESA; protecting and restoring native
fish populations and the ecosystems upon which they depend. While the
CSRI is initially focusing on the needs of coastal coho salmon
populations (currently proposed as threatened), NMFS expects that
significant benefits could also accrue to other salmonids, including
Umpqua River cutthroat trout. NMFS encourages the continuation of this
and local initiatives as important components of recovery planning for
this species.
Summary of Factors Affecting the Species
Section 2(a)(1) of the ESA states that various species of fish,
wildlife, and plants in the United States have been rendered extinct as
a consequence of economic growth and development untempered by adequate
concern and conservation. Section 4(a)(1) of the ESA and NMFS listing
regulations (50 CFR part 424) set forth procedures for listing species.
The Secretary of Commerce must determine, through the regulatory
process, if a species is endangered or threatened based upon any one or
a combination of the following factors: (1) The present or threatened
destruction, modification, or curtailment of its habitat or range; (2)
overutilization for commercial, recreational, scientific, or
educational purposes; (3) disease or predation; (4) inadequacy of
existing regulatory mechanisms; or (5) other natural or human-made
factors affecting its continued existence.
A. The Present or Threatened Destruction, Modification, or Curtailment
of its Habitat or Range
In general, land use practices have reduced salmonid production in
Oregon by decreasing habitat diversity and complexity, and accelerating
the frequency and magnitude of natural events such as flooding and
drought (Bottom et al. 1985). Extensive documentation regarding the
impacts of land use practices on the Umpqua River cutthroat trout is
not presently available. However, a recent report from the USFS
identifies a close relationship between various fish habitat parameters
and the land management history of streams in the Umpqua National
Forest (USDA 1995). The report summarizes habitat quality in 28 streams
used by anadromous salmonids; 17 streams were rated as having ``low''
or ``very low'' habitat quality. It noted that ``a habitat rating of
`good' or `very good' is found primarily in drainages that have had
relatively little or no history of timber harvest and road
construction. Conversely, habitat ratings of `low' or `very low' are
found in moderately to heavily roaded and harvested watershed.'' Major
factors contributing to the latter habitat ratings include a variety of
land management-related conditions, such as increased peak flows during
storm events, increased
[[Page 41520]]
debris torrents, and impacts from valley bottom roads.
These findings, coupled with the fact that silviculture is the
predominant land use in the basin (approximately 70 percent of the
area) and more than 80 of the basin's river reaches are designated as
water quality limited, strongly suggest that silviculture and related
activities have degraded water quality and have, therefore, likely
contributed to the decline of Umpqua River cutthroat trout. This
conclusion is strengthened by reasonable inferences from an array of
other scientific studies, including research in other Oregon basins.
(For an extensive review, see Meehan 1991).
Removal of forest canopy can cause an increase in both the maximum
and the diurnal fluctuation of water temperatures, leading to disease
outbreaks, altered timing of migration, and accelerated maturation. The
removal of streamside vegetation can deplete the bank area of potential
new woody debris that provides cover for cutthroat trout. In addition,
loss of riparian areas can result in decreased invertebrate production
and detritus sources, both of which are key components of the species'
food chain. Siltation is another result of some logging practices, is
known to hinder fry emergence from the gravel, and may limit production
of benthic invertebrates. Dissolved oxygen content of both surface and
intragravel water can decrease as a result of logging operations.
Logging can also cause changes in stream flow regimes, resulting in
potentially adverse water velocity and depth characteristics.
Degradation of estuarine habitats has likely also contributed to
the decline of this species. Estuarine areas are highly productive
habitats and play a role in the life cycle of cutthroat trout (Trotter
1989). Dredging, filling, and diking of estuarine areas for
agricultural, commercial, or municipal uses have resulted in the loss
of many estuarine habitats.
B. Overutilization for Commercial, Recreational, Scientific, or
Educational Purposes
Cutthroat trout are not harvested commercially, and scientific and
educational programs have probably had little or no impact on Umpqua
River cutthroat trout populations. However, the cutthroat trout is a
popular gamefish throughout the Pacific Northwest and available
information indicates that recreational fishing has likely contributed
to the general decline in Umpqua River cutthroat trout populations.
Given the susceptibility of cutthroat trout to angling and the
potential impacts of recreational fishing to native fish stocks (Behnke
1992; Pauley et al. 1989; Trotter 1989), it is likely that a long
standing fishery in the lower mainstem Umpqua River aimed at hatchery-
reared cutthroat trout also promoted an incidental harvest of native
Umpqua River cutthroat trout. In response to NMFS' concern regarding
harvest mortalities, ODFW has closed the Umpqua River to cutthroat
trout fishing effective January 1, 1995 (ODFW 1994). However,
undocumented illegal harvest is believed to occur on Umpqua River
cutthroat trout. While the severity of this source of mortality is
unclear, it may pose a significant threat to depressed populations of
cutthroat trout in the Umpqua River. Continued enforcement of existing
harvest regulations and increased public outreach and awareness should
substantially reduce this threat.
C. Disease or Predation
Disease is not believed to be a factor contributing to the decline
of cutthroat trout populations in the Umpqua River. Several non-native
fish species introduced to the Umpqua River are known to prey on or
compete with salmonids; however, there is no specific information
regarding predation impacts by these or native fishes on Umpqua River
cutthroat trout.
Abundance of pinnipeds, especially harbor seals and California sea
lions, is increasing on the West Coast. However, the extent to which
predation is a factor causing the decline of Umpqua River cutthroat
trout is unknown.
D. Inadequacy of Existing Regulatory Mechanisms
The significant decline in numbers of cutthroat trout passing
Winchester Dam suggests that management plans and practices followed by
various state and Federal agencies have not provided adequate
protection for this species. Although the State of Oregon listed the
Umpqua River cutthroat trout as a sensitive species in 1990, the
decline of this species has not been reversed since the designation.
Furthermore, the designation has not resulted in protections from
adverse effects on the species resulting from Federal actions.
A Federal interagency cooperative program, the Record of Decision
for Amendments to Forest Service and Bureau of Land Management Planning
Documents Within the Range of the Spotted Owl (the Northwest Forest
Plan, April 1994) has recently been implemented to provide a
coordinated management direction for the lands administered by USFS and
the U.S. Bureau of Land Management (BLM). The Northwest Forest Plan's
region-wide management direction amends existing management plans,
including regional guides, forest plans, and resource management plans
for lands within the range of the northern spotted owl (including the
Umpqua River Basin). As part of the Northwest Forest Plan,
implementation of an aquatic conservation strategy is intended to
ultimately reverse the trend of aquatic ecosystem degradation and
contribute toward recovery of fish habitat; however, this result has
yet to be demonstrated. NMFS encourages a continued strong commitment
among the action agencies to thoroughly implement the Aquatic
Conservation Strategy in order to improve spawning and rearing habitat
conditions for listed Umpqua River cutthroat trout. Furthermore, NMFS
continues to encourage USFS and BLM to work toward avoiding identified
cumulative effects of timber sales sold or awarded prior to
implementation of the Northwest Forest Plan.
Recent increased timber harvest on Federal land heightens NMFS'
concern regarding the health of aquatic resources in the Umpqua River
Basin. The ``emergency salvage timber sale'' provisions of a 1995
appropriations act, P.L. 104-19, have resulted in harvest of at least
seven timber sales in the Umpqua River Basin. Prior to this
legislation, these sales were unawarded or withdrawn for a variety of
reasons. While efforts were made to reduce the direct adverse impacts
of these timber sales, NMFS remains concerned about cumulative effects
and their impact on baseline environmental quality in the Umpqua River
Basin. The impacts of such sales are especially great in the South
Umpqua River Basin since existing habitat and water quality conditions
are recognized as poor in this area.
NMFS recognizes that the impacts of this legislation have been
reduced in some instances by the land management agencies' ability to
find replacement timber volume for sales such as these. Furthermore,
NMFS recognizes the willingness of some purchasers to accept such
replacement harvest in lieu of previously designated sales and
encourages USFS, BLM, and private industry to continue these efforts to
avoid adverse impacts on native salmonid species. An Inter-agency
Recissions Act Team has been convened to study the effects of timber
sales in the Basin.
Current ODFW hatchery practices may also play a role in the decline
of native cutthroat trout. Extensive releases
[[Page 41521]]
of Alsea River hatchery-reared cutthroat trout have occurred near the
Umpqua River estuary in the Smith River from 1975 to 1994, and in
Scholfield Creek from 1983 to present. Until recently, approximately
12,000 hatchery-reared cutthroat trout per year have been released into
the Smith River. Releases of approximately 4,000 hatchery-reared
cutthroat trout per year continue to occur into Scholfield Creek.
According to ODFW, these fish are released as smolts and as legal-
sized, catchable cutthroat trout prior to or during the fishing season.
ODFW has suggested that the majority of these fish are caught by
anglers, but no data are available to confirm this hypothesis. There is
also no information on the possible impact of these fish (or the
fishery for them) on native cutthroat trout from the North and South
Umpqua Rivers. However, considering the life history of cutthroat
trout, their susceptibility to angling (Pauley et al. 1989), and their
extensive use of estuaries, the impact of these releases could be
substantial.
E. Other Natural or Manmade Factors Affecting its Continued Existence
Drought is the principal natural condition that may have
contributed to reduced Umpqua River cutthroat trout production. Drought
conditions have prevailed in Oregon for the 7 years prior to 1996,
leading to decreased streamflows and increased water temperatures
during the summer months.
Determination
Based on its assessment of available scientific and commercial
information, NMFS is issuing a final determination that the Umpqua
River cutthroat trout (Oncorhynchus clarki clarki) constitute a
``species'' under the ESA and should be listed as endangered. The
listed ESU for Umpqua River cutthroat trout is defined as all naturally
spawning population(s) of cutthroat trout in the mainstem Umpqua River,
the North Umpqua River, and the South Umpqua River, and their
respective tributaries, residing below long-term, naturally impassable
barriers (e.g., natural waterfalls in existence for hundreds or
thousands of years). The natural population consists of all fish that
are progeny of naturally spawning fish. The offspring of all fish taken
from the natural population after the date of listing (for example, for
research or enhancement purposes) are also part of the listed ESU.
Conservation Measures
Conservation measures provided to species listed as endangered or
threatened under the ESA include recognition, recovery actions, Federal
agency consultation requirements, and prohibitions on taking.
Recognition through listing promotes public awareness and conservation
actions by Federal, state, and local agencies, private organizations,
and individuals.
Several recovery efforts are underway that may slow or reverse the
decline of Umpqua River cutthroat trout. These include the Northwest
Forest Plan, Coastal Salmon Restoration Initiative, and Umpqua River
Basin Fisheries Restoration Initiative (all described previously in
this document). NMFS is encouraged by these significant efforts, which
could provide all stakeholders with a better means by which to achieve
the purposes of the ESA by protecting and restoring native fish
populations and the ecosystems upon which they depend. NMFS will
continue to encourage and support these initiatives as important
components of recovery planning for this species and other salmonids in
the Umpqua River Basin.
NMFS will reconsider this determination in 2 years (or as new
scientific information becomes available) and will continue to assess
the degree to which ongoing Federal, state, and local conservation
initiatives reduce the risks faced by Umpqua River cutthroat trout. If
these or future initiatives clearly ameliorate risk factors and
demonstrate that the species is recovering, NMFS will reconsider the
listing status of Umpqua River cutthroat trout. Information regarding
the efficacy of conservation efforts and any new scientific data
regarding Umpqua cutthroat trout should be submitted to NMFS (see
ADDRESSES).
For listed species, section 7(a)(2) of the ESA requires Federal
agencies to ensure that activities they authorize, fund, or conduct are
not likely to jeopardize the continued existence of a listed species or
to destroy or adversely modify its critical habitat. If a Federal
action could affect a listed species or its critical habitat, the
responsible Federal agency must enter into consultation with NMFS.
Examples of Federal actions most likely to affect Umpqua River
cutthroat trout include authorized land management activities of the
USFS and BLM, as well as authorized purposes of Umpqua River
hydroelectric and storage projects. Such authorized activities include
timber sales and harvest, hydroelectric power generation, and flood
control. Federal actions, including the U.S. Army Corps of Engineers
(COE) section 404 permitting activities under the Clean Water Act, COE
permitting activities under the River and Harbors Act and Federal
Energy Regulatory Commission licenses for non-Federal development and
operation of hydropower, may also require consultation.
NMFS is aware that there are likely to be Federal actions ongoing
in the range of the Umpqua River cutthroat trout at the time that this
listing becomes effective. Consequently, NMFS is currently reviewing
with the Federal agencies all ongoing actions that may affect the
listed species, and for which consultation has been requested, and will
complete formal or informal consultations for such actions as
appropriate, pursuant to ESA section 7(a)(2). Furthermore, NMFS, in
conjunction with USFS, BLM and USFWS, plans to complete a programmatic
consultation on the Federal Land and Resource Management Plans within
the range of the Umpqua River cutthroat trout prior to the listing's
effective date.
Section 9(a) of the ESA contains specific prohibitions that apply
to all endangered fish and wildlife. With respect to the Umpqua River
cutthroat trout, these prohibitions, in part, make it illegal for any
person subject to the jurisdiction of the United States to ``take''
(including harass, harm, pursue, hunt, shoot, wound, kill, trap,
capture, collect, or attempt any such conduct), import or export,
transport in interstate or foreign commerce in the course of commercial
activity, or sell or offer for sale in interstate or foreign commerce
any listed species. It also is illegal to possess, sell, deliver,
carry, transport, or ship any such wildlife that has been taken
illegally. Certain exceptions apply to agents of NMFS and state
conservation agencies.
Sections 10(a)(1)(A) and 10(a)(1)(B) of the ESA provide NMFS with
authority to grant exceptions to the ESA's ``taking'' prohibitions.
Section 10(a)(1)(A) scientific research and enhancement permits may be
issued to entities (Federal and non-Federal) conducting research that
involves a directed take of listed species. A directed take refers to
the intentional take of listed species. NMFS has issued section
10(a)(1)(A) research/enhancement permits for other listed species
(e.g., Snake River chinook salmon) for a number of activities,
including trapping and tagging, electroshocking to determine population
presence and abundance, removal of fish from irrigation ditches, and
collection of adult fish for artificial propagation programs. NMFS is
aware of several trapping efforts currently underway in the Umpqua
River Basin where juvenile cuttthroat trout are being
[[Page 41522]]
collected for population inventory. Since little scientific research
has been conducted on this species, these and other research efforts
could provide critical information regarding cutthroat trout life
history and population abundance.
Section 10(a)(1)(B) incidental take permits may be issued to non-
Federal entities performing activities that may incidentally take
listed species. The types of activities potentially requiring a section
10(a)(1)(B) incidental take permit include the operation and release of
artificially propagated fish by state operated and funded hatcheries,
state or university research not receiving Federal authorization or
funding, and the implementation of state fishing regulations.
NMFS requires several months to review permit applications
(including a 30-day public comment period) and assess the issuance of
section 10 permits. In the fall of 1996, NMFS will hold a workshop to
explain the application process for section 10 permits. Prospective
applicants should submit permit applications to NMFS at least 120 days
prior to the expected start date of their activities. If there are
research activities whose interruption would harm efforts to conserve
the species, NMFS will consider issuing a permit under the emergency
procedure (50 CFR 222.24(e)). Regulations regarding application,
issuance and administration of permits are found at 50 CFR parts 217-
222.
It is the policy of NMFS and the USFWS, published in the Federal
Register on July 1, 1994 (59 FR 34272), to identify to the maximum
extent practicable at the time a species is listed those activities
that would or would not constitute a violation of section 9 of the ESA.
The intent of this policy is to increase public awareness of the effect
of this listing on proposed and ongoing activities within the species'
range. NMFS believes that, based on the best available information, the
following actions will not result in a violation of section 9:
(1) Possession of Umpqua River cutthroat trout acquired lawfully by
permit issued by NMFS pursuant to section 10 of the ESA, or by the
terms of an incidental take statement pursuant to section 7 of the ESA.
(2) Federally approved projects that involve activities such as
silviculture, grazing, mining, road construction, dam construction and
operation, discharge of fill material, stream channelization or
diversion for which consultation has been completed, and when such
activity is conducted in accordance with any terms and conditions given
by NMFS in an incidental take statement accompanied by a biological
opinion.
Activities that NMFS believes could potentially harm the Umpqua
River cutthroat trout and result in ``take'', include, but are not
limited to:
(1) Unauthorized collecting or handling of the species. Permits to
conduct these activities are available for purposes of scientific
research or to enhance the propagation or survival of the species.
(2) Unauthorized destruction/alteration of the species' habitat
such as removal of large woody debris or riparian shade canopy,
dredging, discharge of fill material, draining, ditching, diverting,
blocking, or altering stream channels or surface or ground water flow.
(3) Discharges or dumping of toxic chemicals or other pollutants
(i.e., sewage, oil and gasoline) into waters or riparian areas
supporting the species.
(4) Violation of discharge permits.
(5) Pesticide applications in violation of label restrictions.
(6) Interstate and foreign commerce (commerce across State lines
and international boundaries) and import/export without prior
obtainment of an endangered species permit.
This list is not exhaustive. It is provided to give the reader some
examples of the types of activities that would be considered by the
NMFS as constituting a ``take'' of Umpqua River cutthroat trout under
the ESA and regulations. Questions regarding whether specific
activities will constitute a violation of section 9, and general
inquiries regarding prohibitions and permits, should be directed to
NMFS (see ADDRESSES).
Critical Habitat
Section 4(a)(3)(A) of the ESA requires that, to the extent prudent
and determinable, critical habitat be designated concurrently with the
listing of a species. At the present time, NMFS is placing a higher
priority on listings than on critical habitat designations due to
staffing and workload constraints resulting from the lifting of the
recent listing moratorium. In most cases the substantive protections of
critical habitat designations are duplicative of those of listings,
however, in cases in which critical habitat designation is deemed
essential to the conservation of the species, such a designation could
warrant a higher priority. It is NMFS' intention to develop and publish
a critical habitat designation for Umpqua River cutthroat trout as time
and workload permit.
Classification
The 1982 amendments to the ESA, in section 4(b)(1)(A), restrict the
information that may be considered when assessing species for listing.
Based on this limitation of criteria for a listing decision and the
opinion in Pacific Legal Foundation v. Andrus, 675 F. 2d 825 (6th Cir.,
1981), NMFS has categorically excluded all ESA listing actions from
environmental assessment requirements of NEPA (48 FR 4413; February 6,
1984).
As noted in the Conference Report on the 1982 amendments to the
ESA, economic considerations have no relevance to determinations
regarding the status of the species. Therefore, the economic analysis
requirements of the Regulatory Flexibility Act are not applicable to
the listing process. Similarly, this final rule is exempt from review
under E.O. 12866.
References
The complete citations for the references used in this document can
be obtained by contacting Garth Griffin, NMFS (see ADDRESSES).
List of Subjects in 50 CFR Part 222
Administrative practice and procedure, Endangered and threatened
species, Exports, Imports, Reporting and record keeping requirements,
Transportation.
Dated: July 29, 1996.
Charles Karnella,
Acting Program Management Officer, National Marine Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 222 is amended
as follows:
PART 222--ENDANGERED FISH OR WILDLIFE
1. The authority citation of part 222 continues to read as follows:
Authority: 16 U.S.C. 1531-1543 et seq.
Sec. 222.23 [Amended]
2. In Sec. 222.23, paragraph (a), the second sentence is amended by
adding the phrase ``Umpqua River cutthroat trout (Oncorhynchus clarki
clarki);'' immediately after the phrase ``Snake River sockeye salmon
(Oncorhynchus nerka),''.
[FR Doc. 96-20029 Filed 8-8-96; 8:45 am]
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