issue-1996-09-24•Federal Register final rules — 1996-09-24
Federal Register final rules — 1996-09-24
issue-1996-09-24Federal Register final rules — 1996-09-24Regulation
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FR Doc. 96-24573 Streamlining Hearing Procedures;
[Federal Register Volume 61, Number 186 (Tuesday, September 24, 1996)]
[Rules and Regulations]
[Pages 50208-50219]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-24573]
[[Page 50207]]
_______________________________________________________________________
Part VII
Department of Housing and Urban Development
_______________________________________________________________________
24 CFR Parts 26, 28, 30, 81, 200, 950, 965, 3282, and 3500
Streamlining Hearing Procedures; Final Rule
Federal Register / Vol. 61, No. 186 / Tuesday, September 24, 1996 /
Rules and Regulations
[[Page 50208]]
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Parts 26, 28, 30, 81, 200, 950, 965, 3282, and 3500
[Docket No. FR-4022-F-02]
RIN 2501-AC19
Streamlining Hearing Procedures;
AGENCY: Office of the Secretary, HUD.
ACTION: Final rule.
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SUMMARY: In response to the President's regulatory reform initiatives,
this final rule streamlines and consolidates many of HUD's regulations
containing hearing procedures. This rule also makes several substantive
changes to these regulations in order to improve the hearing process
and to make the regulations more closely follow applicable statutes.
This rule makes the regulations easier for the public to use and
understand. Finally, this rule makes appropriate adjustments in stated
penalty amounts pursuant to the Debt Collection Improvement Act of
1996.
EFFECTIVE DATE: October 24, 1996. Increases in civil money penalty
amounts, pursuant to the Debt Collection Improvement Act of 1996 (31
U.S.C. 3701 note; Pub. L. 104-134, approved April 26, 1996; 110 Stat.
1321-358) apply to civil money penalty violations that occur on or
after the effective date of this rule.
FOR FURTHER INFORMATION CONTACT: Emmett N. Roden, Assistant General
Counsel for Administrative Proceedings, Office of General Counsel,
Department of Housing and Urban Development, Room 10251, 451 7th
Street, S.W., Washington, D.C. 20410, telephone (202) 708-2350. (This
is not a toll-free number.) Hearing- and speech-impaired persons may
access this number via TTY by calling the Federal Information Relay
Service at (800) 877-8339.
SUPPLEMENTARY INFORMATION:
I. The Proposed Rule
On April 23, 1996 (61 FR 18026), HUD published a proposed rule that
would streamline and consolidate many of HUD's regulations containing
hearing procedures. HUD published this rule in response to President
Clinton's March 4, 1995 memorandum to all Federal departments and
agencies regarding regulatory reinvention. In the April 23, 1996
proposed rule, HUD proposed to consolidate as many of HUD's hearing
procedures as possible into one part, in order to make the procedures
easier to use and understand, and thereby eliminate approximately 20
pages of unnecessary regulations from the Code of Federal Regulations
(CFR). Today's final rule adopts the proposals in the April 23, 1996
proposed rule, with several changes as described in section I.D of this
preamble.
A. Hearings According to the Administrative Procedure Act
In this final rule, HUD amends 24 CFR part 26 so that it contains
two sets of hearing regulations. The first set of regulations, in part
26 subpart A, contains all the procedures that previously appeared in
part 26. These procedures apply in HUD proceedings before a hearing
officer, including administrative sanction hearings under part 24 and
hearings with respect to actions by the Mortgagee Review Board under
part 25. This final rule does not change the substance of any of these
provisions, but it sets them apart so that they all appear within a new
subpart A of part 26.
This final rule adds the second set of regulations to form a new
subpart B of part 26. The new subpart B contains a relatively uniform
set of hearing procedures for formal hearings pursuant to the
Administrative Procedure Act (5 U.S.C. 551 et seq.) (APA). The hearing
procedures in subpart B apply to hearings under the Program Fraud Civil
Remedies Act of 1986, to hearings in which HUD seeks civil money
penalties, to hearings pursuant to the Interstate Land Sales Full
Disclosure Act, and to other hearings conducted pursuant to the APA.
In addition to consolidating these hearing procedures into one part
and making them uniform, this final rule makes a number of changes to
streamline pleadings and reduce administrative overhead. This final
rule contains specific time limits to ensure rapid disposition of cases
(see, e.g., Secs. 26.39, 26.42, 26.44, 26.50). This final rule also
clarifies that parties must seek Secretarial review in order to exhaust
their administrative remedies before seeking judicial review, thereby
addressing the Supreme Court's decision in Darby v. Cisneros, 113 S.Ct.
2539 (1993).
B. Program Fraud Civil Remedies Act of 1986
In this final rule, HUD also streamlines the provisions in part 28
regarding the Program Fraud Civil Remedies Act of 1986 (PFCRA) (31
U.S.C. 3801) by removing the hearing procedures, and by retaining in
their place a cross-reference to the uniform hearing procedures in part
26 subpart B. This final rule also streamlines the substantive
provisions of the PFCRA regulations by eliminating unnecessary language
and by clarifying the remaining language, making these regulations
easier to use and understand. This final rule also shortens the
decision process by removing the reconsideration of initial
determinations.
C. Civil Money Penalties
This final rule also streamlines the regulations in part 30
regarding civil money penalties. This rule removes the hearing
procedures from part 30, maintaining a cross-reference to the uniform
hearing procedures in part 26 subpart B. In addition, this rule
eliminates three of the civil money penalty panels, replacing them with
certain appropriate HUD officials in their authority to initiate
actions for civil money penalties.
This rule also revises and clarifies the list of violations for
Government National Mortgage Association (GNMA) issuers and custodians,
revises the list of violations applicable to mortgagees and lenders to
include the misuse of loan proceeds and the failure to comply with
settlement agreements with HUD, and expands the violation for failure
to service Section 235 mortgages to include other housing programs.
Finally, this rule updates the regulations to include penalties that
were enacted in the Housing and Community Development Act of 1992 (Pub.
L. 102-550, approved October 28, 1992; 106 Stat. 3672).
D. This Final Rule
The deadline for the receipt of public comments on the April 23,
1996 proposed rule (61 FR 18026) was June 24, 1996. To date, HUD has
received no public comments. Therefore, based on HUD's review of the
proposed rule, today's final rule makes only the following changes to
the provisions of the proposed rule:
1. This final rule clarifies the definitions of ``Complaint'' and
``Response'' in Sec. 26.28, as well as the procedures in Sec. 26.37, so
that the public can more easily understand the procedures under which
an action is initiated.
2. This final rule changes certain time periods to make them more
reasonable and more closely aligned with other rules of procedure.
(See, e.g., Sec. 26.34(c) of this final rule.)
3. This final rule removes references to the discovery provisions
of the Federal Rules of Civil Procedure that appeared in the proposed
rule, in favor of a simple reference to the general availability of
discovery (see Sec. 26.41 of this final rule). Any discovery issues
[[Page 50209]]
that may arise between the parties will be resolved by the
administrative law judge on a case-by-case basis.
4. Pursuant to the Federal Civil Penalties Inflation Adjustment Act
of 1990 (28 U.S.C. 2461 note; Pub. L. 101-410, approved October 5,
1990; 104 Stat. 890), as amended by the Debt Collection Improvement Act
of 1996 (31 U.S.C. 3701 note; Pub. L. 104-134, approved April 26, 1996;
110 Stat. 1321-358), each Federal agency is required to issue
regulations adjusting for inflation the maximum civil money penalties
that can be imposed pursuant to such agency's statutes. The first such
adjustment is required within 180 days after April 26, 1996, which is
the date of enactment of the 1996 Act. This final rule sets forth the
adjusted penalty amounts applicable to 24 CFR parts 28, 30, 81, 3282,
and 3500.
5. Finally, this rule further streamlines the hearing procedures,
so that only those provisions necessary to conduct orderly and fair
hearings are included in the regulations.
II. Findings and Certifications
National Environmental Policy Act
In accordance with 40 CFR 1508.4 of the regulations of the Council
on Environmental Quality and 24 CFR 50.20(k) of HUD regulations, the
policies and procedures contained in this final rule relate only to
hearing procedures and administrative decisions, which do not
constitute development decisions and do not affect the physical
condition of a project area or building site. Therefore, this rule is
categorically excluded from the requirements of the National
Environmental Policy Act.
Regulatory Flexibility Act
In accordance with the Regulatory Flexibility Act (5 U.S.C.
605(b)), the Secretary hereby certifies that this final rule would not
have a significant economic impact on a substantial number of small
entities. This rule implements statutory authority intended to protect
HUD's programs from abusive practices, but it will have no adverse or
disproportionate economic impact on small businesses.
Executive Order 12606, the Family
The General Counsel, as the Designated Official under Executive
Order 12606, The Family, has determined that this final rule does not
have potential for significant impact on family formation, maintenance,
and general well-being. No significant change in existing HUD policies
or programs will result from promulgation of this rule, as those
policies and programs relate to family concerns. Therefore, the rule is
not subject to review under the Order.
Executive Order 12612, Federalism
The General Counsel, as the Designated Official under Section 6(a)
of Executive Order 12612, Federalism, has determined that the policies
contained in this final rule will not have substantial direct effects
on States or their political subdivisions, or the relationship between
the Federal Government and the States, or on the distribution of power
and responsibilities among the various levels of government. As a
result, the rule is not subject to review under the Order.
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub.
L. 104-4; approved March 22, 1995) establishes requirements for Federal
agencies to assess the effects of their regulatory actions on State,
local, and tribal governments, and the private sector. This rule does
not impose any Federal mandates on any State, local, or tribal
governments, or on the private sector, within the meaning of the UMRA.
List of Subjects
24 CFR Part 26
Administrative practice and procedure, Claims, Fraud, Grant
programs--housing and community development, Loan programs--housing and
community development, Mortgages, Penalties.
24 CFR Part 28
Administrative practice and procedure, Claims, Fraud, Penalties.
24 CFR Part 30
Administrative practice and procedure, Grant programs--housing and
community development, Loan programs--housing and community
development, Mortgages, Penalties.
24 CFR Part 81
Accounting, Federal Reserve System, Mortgagees, Reporting and
recordkeeping requirements, Securities.
24 CFR Part 200
Administrative practice and procedure, Claims, Equal employment
opportunity, Fair housing, Home improvement, Housing standards,
Incorporation by reference, Lead poisoning, Loan programs--housing and
community development, Minimum property standards, Mortgage insurance,
Organization and functions (Government agencies), Penalties, Reporting
and recordkeeping requirements, Social security, Unemployment
compensation, Wages.
24 CFR Part 950
Aged, Grant programs--housing and community development, Grant
programs--Indians, Individuals with disabilities, Low and moderate
income housing, Public housing, Reporting and recordkeeping
requirements.
24 CFR Part 965
Energy conservation, Government procurement, Grant programs--
housing and community development, Lead poisoning, Loan programs--
housing and community development, Public housing, Reporting and
recordkeeping requirements, Utilities.
24 CFR Part 3282
Administrative practice and procedure, Consumer protection,
Intergovernmental relations, Investigations, Manufactured homes,
Reporting and recordkeeping requirements.
24 CFR Part 3500
Consumer protection, Condominiums, Housing, Mortgages, Mortgage
servicing, Reporting and recordkeeping requirements.
Accordingly, parts 26, 28, 30, 81, 200, 950, 965, 3282, and 3500 of
title 24 of the Code of Federal Regulations are amended as follows:
PART 26--HEARING PROCEDURES
1. The part heading for part 26 is revised to read as set forth
above.
2. The authority citation for 24 CFR part 26 continues to read as
follows:
Authority: 42 U.S.C. 3535(d).
3. The heading of subpart A is revised to read, ``Subpart A--
Hearings Before Hearing Officers''.
Subparts B, C, D, E, F, and G--[Redesignated]
4. The headings for subparts B, C, D, E, F, and G are redesignated
as undesignated center headings; and Secs. 26.2 through 26.26 of
subparts B, C, D, E, F, and G are redesignated as Secs. 26.2 through
26.26 of subpart A.
5. A new subpart B is added to read as follows:
[[Page 50210]]
Subpart B--Hearings Pursuant to the Administrative Procedure Act
General
Sec.
26.27 Purpose and scope.
26.28 Definitions.
26.29 Powers and duties of the Administrative Law Judge (ALJ).
26.30 Ex parte contacts.
26.31 Disqualification of ALJ.
26.32 Parties to the hearing.
26.33 Separation of functions.
26.34 Time computations.
26.35 Service and filing.
26.36 Sanctions.
Prehearing Procedures
26.37 Commencement of action.
26.38 Motions.
26.39 Default.
26.40 Prehearing conferences.
26.41 Discovery.
26.42 Subpoenas.
26.43 Protective order.
Hearings
26.44 General.
26.45 Witnesses.
26.46 Evidence.
26.47 The record.
26.48 Posthearing briefs.
26.49 Initial decision.
26.50 Appeal to the Secretary.
26.51 Exhaustion of administrative remedies.
26.52 Judicial review.
26.53 Collection of civil penalties and assessments.
26.54 Right to administrative offset.
Subpart B--Hearings Pursuant to the Administrative Procedure Act
General
Sec. 26.27 Purpose and scope.
Unless otherwise specified in this title, the rules in this subpart
B of this part apply to hearings that HUD is required by statute to
conduct pursuant to the Administrative Procedure Act (5 U.S.C. 554 et
seq.).
Sec. 26.28 Definitions.
The following definitions apply to subpart B of this part:
Chief Docket Clerk means the Chief Docket Clerk of the Office of
Administrative Law Judges at the following address: 409 3rd Street,
S.W., Suite 320, Washington, D.C. 20024.
Complaint means the notice from HUD alleging violations of a HUD
statute and/or regulation, citing the legal authority upon which it is
issued, stating the relief HUD seeks, and informing a respondent of his
or her right to submit a response to a designated office and to request
an opportunity for a hearing before an administrative law judge.
Response means the written response to a complaint, admitting or
denying the allegations in the complaint and setting forth any
affirmative defense and/or any mitigating factors or extenuating
circumstances. The response shall be submitted to the Office of General
Counsel that initiates the complaint or to such other office as may be
designated in the complaint. A response is deemed a request for a
hearing.
Sec. 26.29 Powers and duties of the Administrative Law Judge (ALJ).
The ALJ shall conduct a fair and impartial hearing, avoid delay,
maintain order, and ensure that a record of the proceeding is made. The
ALJ is authorized to:
(a) Set and change the date, time, and place of the hearing upon
reasonable notice to the parties;
(b) Continue or recess the hearing in whole or in part for a
reasonable period of time;
(c) Hold conferences to identify or simplify the issues, or to
consider other matters that may aid in the expeditious disposition of
the proceeding;
(d) Administer oaths and affirmations;
(e) Issue subpoenas requiring the attendance of witnesses and the
production of documents at depositions or at hearings;
(f) Rule on motions and other procedural matters;
(g) Regulate the scope and timing of discovery;
(h) Regulate the course of the hearing and the conduct of
representatives and parties;
(i) Examine witnesses;
(j) Receive, rule on, exclude, or limit evidence;
(k) Upon motion of a party, take official notice of facts;
(l) Upon motion of a party, decide cases, in whole or in part, by
summary judgment where there is no disputed issue of material fact;
(m) Conduct any conference, argument, or hearing on motions in
person or by telephone; and
(n) Exercise such other authority as is necessary to carry out the
responsibilities of the ALJ under subpart B of this part.
Sec. 26.30 Ex parte contacts.
No party or person (except employees of the ALJ's office) shall
communicate in any way with the ALJ on any matter at issue in a case,
unless on notice and opportunity for all parties to participate. This
provision does not prohibit a person or party from inquiring about the
status of a case or asking routine questions concerning administrative
functions or procedures.
Sec. 26.31 Disqualification of ALJ.
(a) An ALJ in a particular case may disqualify himself or herself.
(b) A party may file with the ALJ a motion for the ALJ's
disqualification. The motion shall be accompanied by an affidavit
alleging the grounds for disqualification.
(c) Upon the filing of a motion and affidavit, the ALJ shall
proceed no further in the case until the matter of disqualification is
resolved.
Sec. 26.32 Parties to the hearing.
(a) General. The parties to the hearing shall be the respondent and
HUD.
(b) Rights of parties. Except as otherwise limited by subpart B of
this part, all parties may:
(1) Be accompanied, represented, and advised by a representative;
(2) Participate in any conference held by the ALJ;
(3) Conduct discovery;
(4) Agree to stipulations of fact or law, which shall be made part
of the record;
(5) Present evidence relevant to the issues at the hearing;
(6) Present and cross-examine witnesses;
(7) Present oral arguments at the hearing as permitted by the ALJ;
and
(8) Submit written briefs and proposed findings of fact and
conclusions of law after the hearing, as permitted by the ALJ.
Sec. 26.33 Separation of functions.
No officer, employee, or agent of the Federal Government engaged in
the performance of investigative, conciliatory, or prosecutorial
functions in connection with the proceeding shall, in that proceeding
or any factually related proceeding under subpart B of this part,
participate or advise in the decision of the administrative law judge,
except as a witness or counsel during the proceeding, or in its
appellate review.
Sec. 26.34 Time computations.
(a) In computing any period of time under subpart B of this part,
the time period begins the day following the act, event, or default,
and includes the last day of the period, unless the last day is a
Saturday, Sunday, or legal holiday observed by the Federal Government,
in which case the time period includes the next business day. When the
prescribed time period is seven days or less, intermediate Saturdays,
Sundays, and legal holidays shall be excluded from the computation.
(b) Entry of orders. In computing any time period involving the
date of the issuance of an order or decision by an administrative law
judge, the date of
[[Page 50211]]
issuance is the date the order or decision is served by the Chief
Docket Clerk.
(c) Service by mail. If a document is served by mail, 3 days shall
be added to the time permitted for a response.
Sec. 26.35 Service and filing.
(a) Filing. All documents shall be filed with the Chief Docket
Clerk, at the address listed in Sec. 26.28. Filing may be by first
class mail, delivery, facsimile transmission, or electronic means;
however, the ALJ may place appropriate limits on filing by facsimile
transmission or electronic means. All documents shall clearly designate
the docket number and title of the proceeding.
(b) Service. One copy of all documents filed with the Chief Docket
Clerk shall be served upon each party by the persons filing them and
shall be accompanied by a certificate of service stating how and when
such service has been made. Service may be made by delivery, first
class mail, facsimile transmission, or electronic means; however, the
ALJ may place appropriate limits on service by facsimile transmission
or electronic means. Documents shall be served upon a party's address
of residence or principal place of business, or, if the party is
represented by counsel, upon counsel of record at the address of
counsel. Service is complete when handed to the person or delivered to
the person's office or residence and deposited in a conspicuous place.
If service is by first-class mail, facsimile transmission, or
electronic means, service is complete upon deposit in the mail or upon
electronic transmission.
Sec. 26.36 Sanctions.
(a) The ALJ may sanction a person, including any party or
representative, for failing to comply with an order, rule, or procedure
governing the proceeding; failing to prosecute or defend an action; or
engaging in other misconduct that interferes with the speedy, orderly,
or fair conduct of the hearing.
(b) Any sanction, including but not limited to those listed in
paragraphs (c), (d), and (e) of this section, shall reasonably relate
to the severity and nature of the failure or misconduct.
(c) Failure to comply with an order. When a party fails to comply
with an order, including an order compelling discovery, the ALJ may:
(1) Draw an inference in favor of the requesting party with regard
to the information sought;
(2) In the case of requests for admission, regard each matter about
which an admission is requested to be admitted;
(3) Prohibit the party failing to comply with the order from
introducing evidence concerning, or otherwise relying upon, testimony
relating to the information sought; or
(4) Strike any part of the pleadings or other submissions of the
party failing to comply with the order.
(d) If a party fails to prosecute or defend an action brought under
subpart B of this part, the ALJ may dismiss the action or may issue an
initial decision against the respondent.
(e) The ALJ may refuse to consider any motion, request, response,
brief, or other document that is not filed in a timely fashion.
Prehearing Procedures
Sec. 26.37 Commencement of action.
An action under subpart B of this part shall commence with the
Government's filing of a complaint, together with the response thereto,
as those terms are defined in Sec. 26.28, with the Chief Docket Clerk.
If the respondent fails to submit a response to the Office of General
Counsel or such other office as designated in the complaint, then the
Government may file a motion for a default judgment, together with a
copy of the complaint, in accordance with Sec. 26.39.
Sec. 26.38 Motions.
(a) General. All motions shall state the specific relief requested
and the basis therefor and, except during a conference or the hearing,
shall be in writing. Written motions shall be filed and served in
accordance with Sec. 26.35.
(b) Response to motions. Unless otherwise ordered by the ALJ, a
response to a written motion may be filed within 7 days after service
of the motion. A party failing to respond timely to a motion shall be
deemed to have waived any objection to the granting of the motion.
Sec. 26.39 Default.
(a) General. The respondent may be found in default, upon motion,
for failure to file a timely response to the Government's complaint.
The motion shall include a copy of the complaint and a proposed default
order, and shall be served upon all parties. The respondent shall have
7 days from such service to respond to the motion.
(b) Default order. The ALJ shall issue a decision on the motion
within 15 days after the expiration of the time for filing a response
to the default motion. If a default order is issued, it shall
constitute the final agency action.
(c) Effect of default. A default shall constitute an admission of
all facts alleged in the Government's complaint and a waiver of
respondent's right to a hearing on such allegations. The penalty
proposed in the complaint shall be set forth in the default order and
shall be immediately due and payable by respondent without further
proceedings.
Sec. 26.40 Prehearing conferences.
(a) The ALJ may schedule prehearing conferences as appropriate.
(b) Upon the motion of any party, the ALJ shall schedule at least
one prehearing conference at a reasonable time in advance of the
hearing.
(c) The ALJ may consider the following at a prehearing conference:
(1) Simplification of the issues;
(2) Stipulations of fact and of the authenticity, accuracy, and
admissibility of documents;
(3) Submission of the case on briefs in lieu of an oral hearing;
(4) Limitation of the number of witnesses;
(5) The exchange of witness lists and of proposed exhibits;
(6) Discovery;
(7) The time and place for the hearing; and
(8) Such other matters as may tend to expedite the fair and just
disposition of the proceedings.
Sec. 26.41 Discovery.
(a) Parties may obtain discovery regarding any matter, not
privileged, that is relevant to the subject matter involved in the
adjudication, whether it relates to the case or defense of the party
seeking discovery or to the case or defense of any other party. It is
not grounds for objection that the information sought will be
inadmissible at the hearing, if such information appears reasonably
calculated to lead to the discovery of admissible evidence.
(b) Discovery in Program Fraud Civil Remedies actions (24 CFR part
28), unless agreed to by the parties, shall be available only as
ordered by the ALJ. The party opposing discovery shall have 10 days to
respond to a motion for discovery. The ALJ shall grant a motion for
discovery only if he or she finds that discovery is necessary for the
expeditious, fair, and reasonable consideration of the issues, is not
unduly costly or burdensome, will not unduly delay the proceeding, and
does not seek privileged information. The ALJ may grant discovery
subject to a protective order under Sec. 26.43. The request for
approval sent to the Attorney General from the General Counsel or
designee, as described in Sec. 28.20 of this title, is not discoverable
under any circumstances.
[[Page 50212]]
(c) The following types of discovery are authorized:
(1) Requests for production of documents for inspection and
copying. Nothing contained herein shall be interpreted to require the
creation of a document.
(2) Requests for admissions.
(3) Written interrogatories. Such interrogatories shall be limited
in number to 25, unless otherwise ordered by the ALJ.
(4) Depositions.
(d) Motions to compel. A party may file a motion to compel
discovery. The motion shall describe the information sought, cite the
opposing party's objection, and provide arguments supporting the
motion. The opposing party may file a response to the motion, including
a request for a protective order. The ALJ may issue an order compelling
a response, issue sanctions pursuant to Sec. 26.36, or issue a
protective order. For purposes of paragraph (d) of this section, an
evasive or incomplete answer to a request for discovery is treated as a
failure to answer.
(e) Each party shall bear its own costs of discovery.
Sec. 26.42 Subpoenas.
(a) General. Upon written request of a party, the ALJ may issue a
subpoena requiring the attendance of a witness at a deposition or
hearing, and/or the production of documents. The request shall specify
any documents to be produced and shall list the names and addresses of
the witnesses.
(b) Time of request. A request for a subpoena in aid of discovery
shall be filed in time to permit the conclusion of discovery 15 days
before the date fixed for the hearing. A request for a subpoena to
testify at the hearing shall be filed at least 3 days prior to the
hearing, unless otherwise allowed by the ALJ for good cause shown.
(c) Content. The subpoena shall specify the time and place at which
the witness is to appear and any documents the witness is to produce.
(d) Service and fees. Subpoenas shall be served, and fees and costs
paid to subpoenaed witnesses, in accordance with Rule 45(b)(1) of the
Federal Rules of Civil Procedure.
(e) Motion to quash. The individual to whom the subpoena is
directed or a party may file a motion to quash the subpoena within 10
days after service, or on or before the time specified in the subpoena
for compliance if it is less than 10 days after service.
Sec. 26.43 Protective order.
(a) A party, a prospective witness, or a deponent may file a motion
for a protective order with respect to discovery sought by an opposing
party or with respect to the hearing, seeking to limit the availability
or disclosure of evidence.
(b) In issuing a protective order, the ALJ may issue any order that
justice requires to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense, as provided in
Rule 26(c) of the Federal Rules of Civil Procedure.
Hearings
Sec. 26.44 General.
(a) Time of hearing. The hearing shall commence not later than 90
days following the Government's filing of the complaint and response
under Sec. 26.37, unless the time is extended for good cause. The ALJ
shall provide written notice to all parties of the reasons for any
extension of time.
(b) Location of hearing. The hearing shall be held where the
respondent resides or transacts business, or in such other place as may
be agreed upon by the parties and the ALJ. Hearings for Program Fraud
Civil Remedies Act cases shall be located in accordance with 31 U.S.C.
3803(g)(4).
(c) Notice of hearing. The ALJ shall issue a notice of hearing to
all parties specifying the time and location of the hearing, the
matters of fact and law to be heard, the legal authority under which
the hearing is to be held, a description of the procedures for the
conduct of the hearing, and such other matters as the ALJ determines to
be appropriate.
(d) Limitations for Program Fraud Civil Remedies Act cases. The
notice of hearing must be served upon the respondent within 6 years
after the date on which the claim or statement is made. If the
respondent fails to file a timely response to the Government's
complaint, service of a default judgment under Sec. 26.39 shall be
regarded as a notice of hearing for purposes of this section. The
statute of limitations may be waived by agreement of the parties.
(e) Burden and standard of proof. HUD shall prove the respondent's
liability and any aggravating factors by a preponderance of the
evidence. Respondent shall prove any affirmative defenses and any
mitigating factors by a preponderance of the evidence.
(f) Public hearings. Unless otherwise ordered by the ALJ for good
cause shown, the hearing shall be open to the public.
Sec. 26.45 Witnesses.
(a) Except as provided in paragraph (b) of this section, testimony
at the hearing shall be given orally by witnesses under oath or
affirmation.
(b) At the discretion of the ALJ, testimony may be admitted in the
form of a written statement or deposition. In order to be admissible,
any written statement must be provided to all other parties along with
the last known address of the witness, in a manner that allows
sufficient time for other parties to subpoena the witness for cross-
examination at the hearing.
Sec. 26.46 Evidence.
The ALJ shall admit any relevant oral or documentary evidence that
is not privileged. The ALJ may, however, exclude evidence if its
probative value is substantially outweighed by confusion of the issues,
or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.
Sec. 26.47 The record.
The hearing will be recorded and transcribed. The transcript of
testimony, exhibits, and other evidence admitted at the hearing and all
papers and requests filed in the proceeding constitute the record for
the decision by the ALJ and the Secretary or designee.
Sec. 26.48 Posthearing briefs.
Posthearing briefs shall be filed only upon order by the ALJ.
Sec. 26.49 Initial decision.
(a) The ALJ shall issue an initial decision based only on the
record, which shall contain findings of fact, conclusions of law, and
the relief granted.
(b) The ALJ shall serve the initial decision on all parties within
60 days after either the close of the record or the expiration of time
permitted for submission of posthearing briefs, whichever is later. The
initial decision shall include a statement of each party's right to
file a request for Secretarial review. The ALJ may extend the 60-day
period for serving the initial decision in writing for good cause.
(c) If no appeal is timely filed with the Secretary or designee,
the initial decision shall become the final agency action.
Sec. 26.50 Appeal to the Secretary.
(a) Except as otherwise set forth in paragraph (b) of this section,
either party may file with the Secretary a petition for review within
30 days after the ALJ issues an initial decision. The Secretary or
designee may extend the 30-day period for good cause. If the Secretary
or designee does not act upon the petition for review within 90 days
[[Page 50213]]
of its service, then the initial decision shall become final.
(b) Appeals of Program Fraud Civil Remedies Act decisions (24 CFR
part 28). Only the respondent may file a petition for Secretarial
review. The petition must be filed within 30 days after the ALJ issues
the initial decision. The Secretary or designee may extend the 30-day
period for good cause. If the Secretary or designee does not act upon
the petition for review within 30 days of its service, then the initial
decision shall become final.
(c) Brief in support of petition. The petition for review shall be
accompanied by a written brief, not to exceed 10 pages, specifying
exceptions to the initial decision and reasons supporting the
exceptions.
(d) Service. The party submitting the petition for review shall
serve a copy of the petition and brief in support of the petition on
the other parties and on the Chief Docket Clerk.
(e) Forwarding of the record. Upon request by the Office of the
Secretary, the ALJ shall forward the record of the proceeding to the
Secretary or designee.
(f) Brief in opposition. Any opposing party may file a brief
opposing review, not to exceed 10 pages, within 20 days of receiving
the petition for review and accompanying brief. The brief in opposition
shall be served on all parties.
(g) Additional briefs. If the petition is granted, then the
Secretary or designee may order the filing of additional briefs.
(h) There is no right to appear personally before the Secretary or
designee.
(i) There is no right to appeal any interlocutory ruling by the
ALJ.
(j) In reviewing the initial decision, the Secretary or designee
shall not consider any objection that was not raised before the ALJ
unless a demonstration is made of extraordinary circumstances causing
the failure to raise the objection.
(k) The Secretary or designee shall consider only evidence
contained in the record forwarded by the ALJ. However, if any party
demonstrates to the satisfaction of the Secretary or designee that
additional evidence not presented at the hearing is material and that
there were reasonable grounds for the failure to present such evidence
at such hearing, the Secretary or designee shall remand the matter to
the ALJ for consideration of such additional evidence.
(l) The prohibitions of ex parte contacts in Sec. 26.30 shall apply
to contacts with the Secretary or designee.
(m) The Secretary or designee may affirm, reduce, reverse,
compromise, remand, or settle any relief granted in the initial
decision. The Secretary or designee shall consider, and include in any
final determination, such factors as may be set forth in applicable
statutes or regulations.
(n) The Secretary or designee shall promptly serve each party to
the appeal with a copy of his or her decision and a statement
describing the right to seek judicial review.
(o) Judicial review. A party must generally file a petition for
judicial review within 20 days of service of the Secretary's
determination, or the Secretary's determination shall become final and
not subject to judicial review. In Program Fraud Civil Remedies Act
matters (24 CFR part 28), the respondent shall have 60 days from the
date that the determination is sent to the respondent in which to file
a petition. See also Sec. 26.52.
Sec. 26.51 Exhaustion of administrative remedies.
In order to fulfill the requirement of exhausting administrative
remedies, a party must seek Secretarial review under Sec. 26.50 prior
to seeking judicial review of any initial decision issued under subpart
B of this part.
Sec. 26.52 Judicial review.
Judicial review shall be in accordance with applicable statutory
procedures and the procedures of the appropriate Federal court. The
Government may not seek judicial review of an adverse determination of
a Program Fraud Civil Remedies Act matter.
Sec. 26.53 Collection of civil penalties and assessments.
Collection of civil penalties and assessments shall be in
accordance with applicable statutory provisions.
Sec. 26.54 Right to administrative offset.
The amount of any penalty or assessment that has become final under
Sec. 26.49, or for which a judgment has been entered after action under
Secs. 26.52 or 26.53, or agreed upon in a compromise or settlement
among the parties, may be collected by administrative offset under 31
U.S.C. 3716 or other applicable law. In Program Fraud Civil Remedies
Act matters, an administrative offset may not be collected against a
refund of an overpayment of Federal taxes then or later owing by the
United States to the respondent.
6-8. Part 28 is revised to read as follows:
PART 28--IMPLEMENTATION OF THE PROGRAM FRAUD CIVIL REMEDIES ACT OF
1986
Sec.
28.1 Purpose.
28.5 Definitions.
28.10 Basis for civil penalties and assessments.
28.15 Investigation.
28.20 Request for approval by the Department of Justice.
28.25 Complaint.
28.30 Response.
28.35 Disclosure of documents.
28.40 Hearings.
28.45 Settlements.
Authority: 28 U.S.C. 2461 note; 31 U.S.C. 3801; 42 U.S.C.
3535(d).
Sec. 28.1 Purpose.
This part:
(a) Establishes administrative procedures for imposing civil
penalties and assessments against persons who make, submit, or present,
or cause to be made, submitted, or presented, false, fictitious, or
fraudulent claims or written statements to Federal authorities or to
their agents; and
(b) Specifies the hearing and appeal rights of persons subject to
allegations of liability for such penalties and assessments. Hearings
under this part shall be conducted pursuant to 24 CFR part 26, subpart
B.
Sec. 28.5 Definitions.
The terms ALJ and HUD are defined in 24 CFR part 5.
Benefit means anything of value, including, but not limited to, any
advantage, preference, privilege, license, permit, favorable decision,
ruling, status, or loan insurance or guarantee.
Claim means any request, demand, or submission:
(1) Made to HUD for property, services, or money (including money
representing grants, loans, insurance, or benefits);
(2) Made to a recipient of property, services, or money from HUD,
or to a party to a contract with HUD, for property or services provided
by the U.S. Government, purchased with Government funds, or for which
the Government will reimburse the recipient or party; or
(3) Made to HUD that has the effect of decreasing an obligation to
pay or account for property, services, or money.
Knows or has reason to know means that a person has actual
knowledge that a claim or statement is false, fictitious, or
fraudulent; acts in deliberate ignorance of the truth or falsity of the
claim or statement; or acts in reckless disregard of the truth or
falsity of the claim or statement.
[[Page 50214]]
Person means any individual, partnership, corporation, association,
private organization, or entity.
Respondent means any person alleged to be liable for a civil
penalty or assessment under Sec. 28.25.
Statement means any representation, certification, affirmation,
document, record, or accounting or bookkeeping entry made:
(1) With respect to a claim, to obtain approval or payment of a
claim, or relating to eligibility to make a claim; or
(2) With respect to or relating to eligibility for a contract, bid,
or proposal for a contract with; or a grant or cooperative agreement,
loan, or benefit from; HUD, any State, any political subdivision of a
State, or other party, if the United States Government provides any
portion of the money or property under the contract or the grant or
cooperative agreement, loan, or benefit, or if the Government will
reimburse the State, political subdivision, or party for any portion of
the money or property under the contract or for the grant or
cooperative agreement, loan, or benefit.
Sec. 28.10 Basis for civil penalties and assessments.
(a) Claims. (1) A civil penalty of not more than $5,500 may be
imposed upon a person who makes a claim that the person knows or has
reason to know:
(i) Is false, fictitious, or fraudulent;
(ii) Includes or is supported by a written statement that either
contains a material fact that is false, fictitious, or fraudulent; or
omits a material fact that the person has a duty to include and is
false, fictitious, or fraudulent as a result of the omission; or
(iii) Is for payment for the provision of property or services that
the person has not provided as claimed.
(2) Each voucher, invoice, claim form, or other individual request
or demand for property, services, or money constitutes a separate
claim.
(3) A claim shall be considered made to HUD, to a recipient, or to
a party when the claim actually is made to an agent, fiscal
intermediary, or other entity, including any State or political
subdivision of a State, acting for or on behalf of HUD, the recipient,
or the party.
(4) Each claim for property, services, or money is subject to a
civil penalty without regard to whether the property, services, or
money actually is delivered or paid.
(5) Liability under this part shall not lie if the amount of money
or value of property or services claimed exceeds $150,000 as to each
claim that a person submits. For purposes of paragraph (a) of this
section, a group of claims submitted simultaneously as part of a single
transaction shall be considered a single claim.
(6) If the Government has made any payment, transferred property,
or provided services on a claim, then the Government may assess a
person found liable up to twice the amount of the claim or portion of
the claim that is determined to be in violation of paragraph (a)(1) of
this section.
(b) Statements. (1) A civil penalty of up to $5,500 may be imposed
upon a person who makes a written statement that:
(i) The person knows, or has reason to know, contains a material
fact that is false, fictitious, or fraudulent; or omits a material fact
that the person has a duty to include and is false, fictitious, or
fraudulent because of that omission; and
(ii) Contains or is accompanied by an express certification or
affirmation of the truthfulness and accuracy of the contents of the
statement.
(2) Each written representation, certification, or affirmation
constitutes a separate statement.
(3) A statement shall be considered made to HUD when the statement
is actually made to an agent, fiscal intermediary, or other entity,
including any State or political subdivision of a State, acting for or
on behalf of HUD.
(c) Limit on liability. If the claim or statement relates to low-
income housing benefits or housing benefits for the elderly or
handicapped, then a person may be held liable only if he or she has
made the claim or statement in the course of applying for such
benefits, with respect to his or her eligibility, or family's
eligibility, to receive such benefits. For purposes of paragraph (c) of
this section, ``housing benefits'' means any instance wherein funds
administered by the Secretary directly or indirectly permit low-income
families or elderly or handicapped persons to reside in housing that
otherwise would not be available to them.
(d) Specific intent. No proof of specific intent to defraud is
required to establish liability under this section.
(e) Joint and several liability. A civil penalty or assessment may
be imposed jointly and severally if more than one person is determined
to be liable.
Sec. 28.15 Investigation.
(a) General. HUD may initiate a Program Fraud Civil Remedies Act
(31 U.S.C. 3801) case against a respondent only upon an investigation
by the Inspector General or his or her designee.
(b) Subpoena. Pursuant to 31 U.S.C. 3804(a), the Inspector General
or designee may require by subpoena the production of records and other
documents. The subpoena shall state the authority under which it is
issued, identify the records sought, and name the person designated to
receive the records. The recipient of the subpoena shall provide a
certification that the documents sought have been produced, that the
documents are not available and the reasons they are not available, or
that the documents, suitably identified, have been withheld based upon
the assertion of an identified privilege.
(c) Investigation report. If the Inspector General or designee
concludes that an action under the Program Fraud Civil Remedies Act may
be warranted, her or she shall submit a report containing the findings
and conclusions of the investigation to the General Counsel or his or
her designee.
(d) The Inspector General may refer allegations directly to the
Department of Justice for suit under the False Claims Act (31 U.S.C.
3730) or for other civil relief, or may postpone submitting a report to
the General Counsel to avoid interference with a criminal investigation
or prosecution. The Inspector General shall report violations of
criminal law to the Attorney General.
Sec. 28.20 Request for approval by the Department of Justice.
(a) If the General Counsel or designee determines that the
investigation report supports an action under this part, he or she must
submit a written request to the Department of Justice for approval to
issue a notice under Sec. 28.25.
(b) The request shall include a description of the claims or
statements at issue; the evidence supporting the notice; an estimate of
the amount of money or the value of property, services, or other
benefits requested or demanded in violation of Sec. 28.10; any
exculpatory or mitigating circumstances that may relate to the claims
or statements; and a statement that there is a reasonable prospect of
collecting an appropriate amount of penalties and assessments.
Sec. 28.25 Complaint.
(a) General. Upon obtaining approval from the Department of
Justice, the General Counsel or designee may issue a complaint to the
respondent. The complaint shall be sent by certified mail, return
receipt requested, or shall be personally served.
(b) The complaint shall include:
(1) The allegations of liability against the respondent, including
the statutory basis for liability, the claims or statements at issue,
and the reasons why liability arises from those claims or statements;
[[Page 50215]]
(2) The amount of penalties and assessments for which the
respondent may be held liable;
(3) That the respondent may request a hearing by submitting a
written response to the complaint;
(4) The address to which a response must be sent; and
(5) That failure to submit an answer within 30 days of receipt of
the complaint may result in the imposition of the maximum amount of
penalties and assessments sought without right of appeal.
(c) A copy of this part 28 and of 24 CFR part 26, subpart B shall
be included with the complaint.
Sec. 28.30 Response.
(a) The respondent may submit a written response to HUD within 30
days of service of the complaint. The response shall be deemed to be a
request for hearing. The response should include the admission or
denial of each allegation of liability made in the complaint; any
defense on which the respondent intends to rely; any reasons why the
penalties and assessments should be less than the amount set forth in
the complaint; and the name, address, and telephone number of the
person who will act as the respondent's representative, if any.
(b) Filing with the administrative law judges. HUD shall file the
complaint and response with the Chief Docket Clerk, Office of
Administrative Law Judges, in accordance with Sec. 26.37 of this title.
If no response is submitted, then HUD may file a motion for default
judgment, together with a copy of the complaint, in accordance with
Sec. 26.39 of this title.
Sec. 28.35 Disclosure of documents.
Upon receipt of a complaint, the respondent may, upon written
request to the General Counsel or designee, review any relevant and
material nonprivileged documents, including any exculpatory documents,
that relate to the allegations set out in the complaint. Exculpatory
information that is contained in a privileged document must be
disclosed.
Sec. 28.40 Hearings.
(a) General. Hearings under this part shall be conducted in
accordance with the procedures in 24 CFR part 26, subpart B.
(b) Factors to consider in determining amount of penalties and
assessments. In determining an appropriate amount of civil penalties
and assessments, the administrative law judge (ALJ) and, upon appeal,
the Secretary shall consider and state in their opinions any mitigating
or aggravating circumstances. Because of the intangible costs of fraud,
the expense of investigating fraudulent conduct, and the need for
deterrence, ordinarily double damages and a significant civil penalty
should be imposed. The ALJ and the Secretary shall consider the
following factors in determining the amount of penalties and
assessments to be imposed:
(1) The number of false, fictitious, or fraudulent claims or
statements;
(2) The time period over which such claims or statements were made;
(3) The degree of the respondent's culpability with respect to the
misconduct;
(4) The amount of money or the value of the property, services, or
benefit falsely claimed;
(5) The value of the Government's actual loss as a result of the
misconduct, including foreseeable consequential damages and the cost of
investigation;
(6) The relationship of the civil penalties to the amount of the
Government's loss;
(7) The potential or actual impact of the misconduct upon national
defense, public health or safety, or public confidence in the
management of Government programs and operations, including
particularly the impact on the intended beneficiaries of such programs;
(8) Whether the respondent has engaged in a pattern of the same or
similar misconduct;
(9) Whether the respondent attempted to conceal the misconduct;
(10) The degree to which the respondent has involved others in the
misconduct or in concealing it;
(11) If the misconduct of employees or agents is imputed to the
respondent, the extent to which the respondent's practices fostered or
attempted to preclude the misconduct;
(12) Whether the respondent cooperated in or obstructed an
investigation of the misconduct;
(13) Whether the respondent assisted in identifying and prosecuting
other wrongdoers;
(14) The complexity of the program or transaction, and the degree
of the respondent's sophistication with respect to it, including the
extent of the respondent's prior participation in the program or in
similar transactions;
(15) Whether the respondent has been found, in any criminal, civil,
or administrative proceeding, to have engaged in similar misconduct or
to have dealt dishonestly with the Government of the United States or
of a State, directly or indirectly;
(16) The need to deter the respondent and others from engaging in
the same or similar misconduct; and
(17) Any other factors that in any given case may mitigate or
aggravate the offense for which penalties and assessments are imposed.
(c) Stays ordered by the Department of Justice. If at any time the
Attorney General of the United States or an Assistant Attorney General
designated by the Attorney General notifies the Secretary in writing
that continuation of HUD's case may adversely affect any pending or
potential criminal or civil action related to the claim or statement at
issue, the ALJ or the Secretary shall stay the process immediately. The
case may be resumed only upon receipt of the written authorization of
the Attorney General.
Sec. 28.45 Settlements.
(a) HUD and the respondent may enter into a settlement agreement at
any time prior to the issuing of a notice of final determination under
Sec. 26.50 of this title.
(b) Failure of the respondent to comply with a settlement agreement
shall be sufficient cause for resuming an action under this part, or
for any other judicial or administrative action.
9-11. Part 30 is revised to read as follows:
PART 30--CIVIL MONEY PENALTIES: CERTAIN PROHIBITED CONDUCT
Subpart A--General
Sec.
30.1 Purpose and scope.
30.5 Effective dates.
30.10 Definitions.
30.15 Application of other remedies.
Subpart B--Violations
30.20 Ethical violations by HUD employees.
30.25 Violations by applicants for assistance.
30.30 Urban Homestead violations.
30.35 Mortgagees and lenders.
30.40 Loan guarantees for Indian housing.
30.45 Multifamily and Section 202 mortgagors.
30.50 GNMA issuers and custodians.
30.55 Interstate Land Sales violations.
30.60 Dealers or loan correspondents.
30.65 Failure to disclose lead-based paint hazards.
Subpart C--Procedures
30.70 Prepenalty notice.
30.75 Response to prepenalty notice.
30.80 Factors in determining appropriateness and amount of civil
money penalty.
30.85 Complaint.
30.90 Response to the complaint.
30.95 Hearings.
30.100 Settlements.
Authority: 12 U.S.C. 1701q-1, 1703, 1723i, 1735f-14, 1735f-15;
15 U.S.C. 1717a; 28 U.S.C. 2461 note; 42 U.S.C. 3535(d).
[[Page 50216]]
Subpart A--General
Sec. 30.1 Purpose and scope.
Unless provided for elsewhere in this title or under separate
authority, this part implements HUD's civil money penalty provisions.
The procedural rules for hearings under this part are set forth in 24
CFR part 26, subpart B.
Sec. 30.5 Effective dates.
(a) Under Sec. 30.20, a civil money penalty may be imposed for
violations occurring on or after May 22, 1991.
(b) Under Secs. 30.25, 30.35, 30.45, 30.50, 30.55, and 30.60, a
civil money penalty may be imposed for any violations that occur on or
after December 15, 1989.
(c) Under Sec. 30.30, a civil money penalty may be imposed with
respect to any property transferred for use under section 810 of the
Housing and Community Development Act of 1974, as amended (12 U.S.C.
1706e), after January 1, 1981, to a state, a unit of general local
government, or a public agency or qualified community organization
designated by a unit of general local government, or a transferee of
any such entity.
(d) Under Sec. 30.40, concerning loan guarantees for Indian
housing, a civil money penalty may be imposed for violations occurring
on or after October 28, 1992.
(e) Under Sec. 30.65, a civil money penalty may be imposed for
violations occurring on or after the following dates:
(1) September 6, 1996, for owners of more than four residential
dwellings; or
(2) December 6, 1996, for owners of one to four residential
dwellings.
Sec. 30.10 Definitions.
Since this part is primarily procedural, terms not defined in this
section shall have the meanings given them in relevant program
regulations. Comprehensive definitions are in 24 CFR part 4 (HUD Reform
Act). The terms ALJ, Department, HUD, and Secretary are defined in 24
CFR part 5.
Agent. Any person, including an officer, director, partner, or
trustee, who acts on behalf of another person.
Dealer. A seller, contractor or supplier of goods or services
having a direct or indirect financial interest in the transaction
between the borrower and the lender, and who assists the borrower in
preparing the credit application or otherwise assists the borrower in
obtaining the loan from the lender.
Knowing or Knowingly. Having actual knowledge of or acting with
deliberate ignorance of or reckless disregard for the prohibitions
under subpart B of this part or under 24 CFR part 4.
Loan correspondent. A lender or loan correspondent as defined at
Sec. 202.2 of this title.
Material or Materially. In some significant respect or to some
significant degree.
Person. An individual, corporation, company, association,
authority, firm, partnership, society, State, local government or
agency thereof, or any other organization or group of people.
Respondent. A person against whom a civil money penalty action is
initiated.
Sec. 30.15 Application of other remedies.
A civil money penalty may be imposed in addition to other
administrative sanctions or any other civil remedy or criminal penalty.
Subpart B--Violations
Sec. 30.20 Ethical violations by HUD employees.
(a) General. The General Counsel, or his or her designee, may
initiate a civil money penalty action against HUD employees who
improperly disclose information pursuant to section 103 of the HUD
Reform Act of 1989 (42 U.S.C. 3537a(c)) and 24 CFR part 4, subpart B.
(b) Maximum penalty. The maximum penalty is $11,000 for each
violation.
Sec. 30.25 Violations by applicants for assistance.
(a) General. The General Counsel, or his or her designee, may
initiate a civil money penalty action against applicants for
assistance, as defined in 24 CFR part 4, subpart A, who knowingly and
materially violate the provisions of subsections (b) or (c) of section
102 of the HUD Reform Act of 1989 (42 U.S.C. 3545).
(b) Maximum penalty. The maximum penalty for each violation is
$11,000.
Sec. 30.30 Urban Homestead violations.
(a) General. The Assistant Secretary for Community Planning and
Development, or his or her designee, or the Director of the Office of
Technical Assistance and Management may initiate a civil money penalty
action against persons who knowingly and materially violate section 810
of the Housing and Community Development Act of 1974, as amended (12
U.S.C. 1706e), or the provisions of 24 CFR part 590, in the use or
conveyance of property made available under the Urban Homestead
Program.
(b) Maximum penalty. The maximum penalty is either twice the amount
of the gross profit realized from any impermissible use or conveyance
of the property, or the amount of section 810 funds used to reimburse
HUD, the Department of Veterans Affairs, the Resolution Trust
Corporation, or the Farmers Home Administration (or its successor
agency under Public Law 103-354) for the property, whichever is
greater. If the property is still held by the violator, the gross
profit shall include any appreciation between the amount the violator
paid for the property and its current value as determined by an
independent, HUD-qualified appraiser.
Sec. 30.35 Mortgagees and lenders.
(a) General. The Mortgagee Review Board may initiate a civil money
penalty action against any mortgagee or lender who knowingly and
materially:
(1) Violates the provisions listed in 12 U.S.C. 1735f-14(b);
(2) Fails to comply with the requirements of Sec. 201.27(a) of this
title regarding approval and supervision of dealers;
(3) Approves a dealer that has been suspended, debarred, or
otherwise denied participation in HUD's programs;
(4) Makes a payment that is prohibited under Sec. 202.12(p) of this
title;
(5) Fails to remit, or timely remit, mortgage insurance premiums,
loan insurance charges, or late charges or interest penalties;
(6) Permits loan documents for an FHA insured loan to be signed in
blank by its agents or any other party to the loan transaction unless
expressly approved by the Secretary;
(7) Fails to follow the mortgage assignment procedures set forth in
Secs. 203.650 through 203.664 of this title or in Secs. 207.255 through
207.258b of this title.
(8) Fails to timely submit documents that are complete and accurate
in connection with a conveyance of property or a claim for insurance
benefits, in accordance with Secs. 203.365, 203.366, or 203.368 of this
title;
(9) Fails to:
(i) Process requests for formal release of liability under an FHA
insured mortgage;
(ii) Obtain a credit report, issued not more than 90 days prior to
approval of a person as a borrower, as to the person's creditworthiness
to assume an FHA insured mortgage;
(iii) Timely submit proper notification of a change in mortgagor or
mortgagee as required by Sec. 203.431 of this title;
(iv) Timely submit proper notification of mortgage insurance
termination as required by Sec. 203.318 of this title;
(v) Timely submit proper notification of a change in mortgage
servicing as required by Sec. 203.502 of this title; or
[[Page 50217]]
(vi) Report all delinquent mortgages to HUD, as required by
Sec. 203.332 of this title;
(10) Fails to service FHA insured mortgages, in accordance with the
requirements of 24 CFR parts 201, 203, and 235;
(11) Fails to fund loans that it originated, or otherwise misuses
loan proceeds;
(12) Fails to comply with the conditions relating to the assignment
or pledge of mortgages;
(13) Fails to comply with the provisions of the Real Estate
Settlement Procedures Act (12 U.S.C. 2601 et seq.), the Equal Credit
Opportunity Act (15 U.S.C. 1691 et seq.), or the Fair Housing Act (42
U.S.C. 3601 et seq.);
(14) Fails to comply with the terms of a settlement agreement with
HUD.
(b) Continuing violation. Each day that a violation continues shall
constitute a separate violation.
(c) Amount of penalty. The maximum penalty is $5,500 for each
violation, up to a limit of $1,100,000 for all violations committed
during any one-year period. Each violation shall constitute a separate
violation as to each mortgage or loan application.
Sec. 30.40 Loan guarantees for Indian housing.
(a) General. The Secretary may initiate a civil money penalty
action against any mortgagee or holder of a guarantee certificate who
knowingly and materially violates the provisions of 12 U.S.C. 1715z-
13a(g)(2) concerning loan guarantees for Indian housing;
(b) Continuing violation. Each day that a violation continues shall
constitute a separate violation.
(c) Amount of penalty. The maximum penalty is $5,000 for each
violation, up to a limit of $1,100,000 for all violations committed
during any one-year period. Each violation shall constitute a separate
violation as to each mortgage or loan application.
Sec. 30.45 Multifamily and Section 202 mortgagors.
(a) General. The Assistant Secretary for Housing-Federal Housing
Commissioner, or his or her designee, may initiate a civil money
penalty action against any mortgagor of property that includes five or
more living units and is subject to a mortgage insured, coinsured, or
held by the Secretary, who knowingly and materially commits a violation
listed at 12 U.S.C. 1735f-15 (b) or (c), or 12 U.S.C. 1701q-1 (b) or
(c).
(b) Maximum penalty. The maximum penalty for each violation of 12
U.S.C. 1735f-15(b) and 12 U.S.C. 1701q-1(b) is the amount of loss that
the Secretary incurs at a foreclosure sale, or a sale after
foreclosure, with respect to the property involved. The maximum penalty
for each violation of 12 U.S.C. 1735f-15(c) and 12 U.S.C. 1701q-1(c) is
$27,500.
Sec. 30.50 GNMA issuers and custodians.
(a) General. The President of GNMA, or his or her designee, may
initiate a civil money penalty action against a GNMA issuer or
custodian that knowingly and materially violates any provision of 12
U.S.C. 1723i(b), title III of the National Housing Act, or any
implementing regulation, handbook, guaranty agreement, or contractual
agreement, or participant letter issued by GNMA, or fails to comply
with the terms of a settlement agreement with GNMA.
(b) Continuing violation. Each day that a violation continues shall
constitute a separate violation.
(c) Amount of penalty. The maximum penalty is $5,500 for each
violation, up to a limit of $1,100,000 during any one-year period. Each
violation shall constitute a separate violation with respect to each
pool of mortgages.
Sec. 30.55 Interstate Land Sales violations.
(a) General. The Assistant Secretary for Housing-Federal Housing
Commissioner, or his or her designee, may initiate a civil money
penalty action against any person who knowingly and materially violates
any provision of the Interstate Land Sales Full Disclosure Act (15
U.S.C. 1701 et seq.); the rules and regulations set forth at 24 CFR
parts 1710, 1715, and 1720; or any order issued thereunder.
(b) Continuing violation. Each day that a violation continues shall
constitute a separate violation.
(c) Maximum penalty. The maximum penalty is $1,100 for each
violation, up to a limit for any particular person of $1,100,000 during
any one-year period. Each violation shall constitute a separate
violation as to each sale or lease or offer to sell or lease.
Sec. 30.60 Dealers or loan correspondents.
(a) General. The Assistant Secretary for Housing-Federal Housing
Commissioner, or his or her designee, may initiate a civil money
penalty action against any dealer or loan correspondent who violates
section 2(b)(7) of the National Housing Act (12 U.S.C. 1703). Such
violations include, but are not limited to:
(1) Falsifying information on an application for dealer approval or
reapproval submitted to a lender;
(2) Falsifying statements on a HUD credit application, improvement
contract, note, security instrument, completion certificate, or other
loan document;
(3) Failing to sign a credit application if the dealer or loan
correspondent assisted the borrower in completing the application;
(4) Falsely certifying to a lender that the loan proceeds have been
or will be spent on eligible improvements;
(5) Falsely certifying to a lender that the property improvements
have been completed;
(6) Falsely certifying that a borrower has not been given or
promised any cash payment, rebate, cash bonus, or anything of more than
nominal value as an inducement to enter into a loan transaction;
(7) Making a false representation to a lender with respect to the
creditworthiness of a borrower or the eligibility of the improvements
for which a loan is sought.
(b) Continuing violation. Each day that a violation continues shall
constitute a separate violation.
(c) Amount of penalty. The maximum penalty is $5,500 for each
violation, up to a limit for any particular person of $1,100,000 during
any one-year period.
Sec. 30.65 Failure to disclose lead-based paint hazards.
(a) General. The Director of the Office of Lead Hazard Control, or
his or her designee, may initiate a civil money penalty action against
any person who knowingly violates 42 U.S.C. 4852d(b)(1).
(b) Amount of penalty. The maximum penalty is $11,000 for each
violation.
Subpart C--Procedures
Sec. 30.70 Prepenalty notice.
Whenever HUD intends to seek a civil money penalty, the official
designated in subpart B of this part, or his or her designee (or the
chairperson of the Mortgagee Review Board, or his or her designee, in
actions under Sec. 30.35), shall issue a written notice to the
respondent. This prepenalty notice shall include the following:
(a) That HUD is considering seeking a civil money penalty;
(b) The specific violations alleged;
(c) The maximum civil money penalty that may be imposed;
(d) The opportunity to reply in writing to the designated program
official within 30 days after receipt of the notice; and
(e) That failure to respond within the 30-day period may result in
issuance of a complaint under Sec. 30.85 without consideration of any
information that the respondent may wish to provide.
[[Page 50218]]
Sec. 30.75 Response to prepenalty notice.
The response shall be in a format prescribed in the prepenalty
notice. The response shall include any arguments opposing the
imposition of a civil money penalty that the respondent may wish to
present.
Sec. 30.80 Factors in determining appropriateness and amount of civil
money penalty.
In determining whether to seek a penalty, and the amount of such
penalty, the officials designated in subpart B of this part shall
consider the following factors:
(a) The gravity of the offense;
(b) Any history of prior offenses. For violations under
Secs. 30.25, 30.35, 30.45, 30.50, 30.55, and 30.60, offenses that
occurred prior to December 15, 1989 may be considered;
(c) The ability to pay the penalty;
(d) The injury to the public;
(e) Any benefits received by the violator;
(f) The extent of potential benefit to other persons;
(g) Deterrence of future violations;
(h) The degree of the violator's culpability;
(i) With respect to Urban Homestead violations under Sec. 30.30,
the expenditures made by the violator in connection with any gross
profit derived; and
(j) Such other matters as justice may require.
(k) In addition to the above factors, with respect to violations
under Secs. 30.45, 30.55, and 30.60, the Assistant Secretary for
Housing-Federal Housing Commissioner, or his or her designee, shall
also consider:
(1) Any injury to tenants; and/or
(2) Any injury to lot owners.
Sec. 30.85 Complaint.
(a) General. Upon the expiration of the period for the respondent
to submit a response to the prepenalty notice, the official designated
in subpart B of this part, or his or her designee (or the Mortgagee
Review Board in actions under Sec. 30.35) shall determine whether to
seek a civil money penalty. Such determination shall be based upon a
review of the prepenalty notice, the response, if any, and the factors
listed at Sec. 30.80. A determination by the Mortgagee Review Board to
seek a civil money penalty shall be by a majority vote of the Board.
(b) If a determination is made to seek a civil money penalty, the
official or his or her designee, or the Mortgagee Review Board, shall
issue a complaint to the respondent. The complaint shall state the
following:
(1) The factual basis for the decision to seek a penalty;
(2) The applicable civil money penalty statute;
(3) The amount of penalty sought;
(4) The right to submit a response in writing, within 15 days of
receipt of the complaint, requesting a hearing on any material fact in
the complaint, or on the appropriateness of the penalty sought;
(5) The address to which a response must be sent;
(6) That the failure to submit a response may result in the
imposition of the penalty in the amount sought.
(c) A copy of this part and of 24 CFR part 26, subpart B shall be
included with the complaint.
(d) Service of the complaint. The complaint shall be served on the
respondent by first class mail, personal delivery, or other means. In
cases of violations by mortgagees and lenders of 12 U.S.C. 1735f-14(b)
(1)(D) or (1)(F), or by GNMA issuers or custodians of 12 U.S.C.
1723i(b) (1)(G) or (1)(I), a copy of the complaint shall be provided to
the Attorney General.
Sec. 30.90 Response to the complaint.
(a) General. The respondent may submit to HUD a written response to
the complaint within 15 days of its receipt. The response shall be
considered a request for a hearing. The response should include the
admission or denial of each allegation of liability made in the
complaint; any defense on which the respondent intends to rely; any
reasons why the civil money penalty is not warranted or should be less
than the amount sought in the complaint; and the name, address, and
telephone number of the person who will act as the respondent's
representative, if any.
(b) Filing with the administrative law judges. HUD shall file the
complaint and response with the Chief Docket Clerk, Office of
Administrative Law Judges, in accordance with Sec. 26.37 of this title.
If no response is submitted, then HUD may file a motion for default
judgment, together with a copy of the complaint, in accordance with
Sec. 26.39 of this title.
Sec. 30.95 Hearings.
Hearings under this part shall be conducted in accordance with the
procedures at 24 CFR part 26, subpart B.
Sec. 30.100 Settlements.
The officials listed at subpart B of this part, or their designees
(or the Mortgagee Review Board for violations under Sec. 30.35), are
authorized to enter into settlement agreements of civil money penalty
claims. Settlement agreements may be executed at any time prior to the
issuing of a notice of final determination under Sec. 26.50 of this
title, and may include sanctions for failure to comply with the terms
of the agreement.
PART 81--REGULATIONS IMPLEMENTING THE AUTHORITY OF THE SECRETARY OF
THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT OVER THE CONDUCT OF
THE SECONDARY MARKET OPERATIONS OF THE FEDERAL NATIONAL MORTGAGE
ASSOCIATION (FNMA)
12. The authority citation for 24 CFR part 81 is revised to read as
follows:
Authority: 12 U.S.C. 1451 et seq., 1716-1723h, and 4501-4641; 28
U.S.C. 2461 note; 42 U.S.C. 3535(d) and 3601-3619.
Sec. 81.46 [Amended]
13. Section 81.46 is amended by revising the first sentence of
paragraph (e)(1) to read as follows:
Sec. 81.46 Remedial actions.
* * * * *
(e) * * *
(1) Where a lender timely requests a hearing on a remedial action,
a hearing shall be conducted before a HUD administrative law judge
(ALJ) and a final decision rendered in accordance with the procedures
set forth in 24 CFR part 26, subpart B, to the extent such provisions
are not inconsistent with subpart C of this part or FHEFSSA. * * *
* * * * *
14. Section 81.82 is amended by revising the second sentence of
paragraph (b)(2) to read as follows:
Sec. 81.82 Cease-and-desist proceedings.
* * * * *
(b) * * *
(2) Administrative law judge. * * * The hearing shall be conducted
in accordance with Sec. 81.84 and, to the extent the provisions are not
inconsistent with any of the procedures in this part or FHEFSSA, with
24 CFR part 26, subpart B.
* * * * *
Sec. 81.83 [Amended]
15. Section 81.83 is amended as follows:
a. Paragraph (b)(2) is revised by removing the reference to
``$10,000'', and by adding in its place a reference to ``$11,000''; and
b. Paragraph (d)(3) is revised, to read as follows:
Sec. 81.83 Civil money penalties.
* * * * *
[[Page 50219]]
(d) * * *
(3) Administrative law judge. A HUD ALJ shall preside over any
hearing conducted under this section, in accordance with Sec. 81.84
and, to the extent the provisions are not inconsistent with any of the
procedures in this part or FHEFSSA, with 24 CFR part 26, subpart B.
* * * * *
Sec. 81.84 [Amended]
16. Section 81.84 is amended by:
a. Revising paragraph (b)(2);
b. Revising paragraph (d);
c. Amending the third sentence of paragraph (h)(1) by removing the
reference to ``Sec. 30.515'', and by adding in its place a reference to
``Sec. 26.38'';
d. Amending the first sentence of paragraph (j)(2) by removing the
reference to ``Sec. 30.910'', and by adding in its place a reference to
``Sec. 26.51(c)''; and amending the second sentence of paragraph (j)(2)
by removing the reference to ``Sec. 30.910(c) and (d)'', and by adding
in its place a reference to ``Sec. 26.51(f)''; to read as follows:
Sec. 81.84 Hearings.
* * * * *
(b) * * *
(2) Hearings shall be conducted by a HUD ALJ authorized to conduct
proceedings under 24 CFR part 26, subpart B.
* * * * *
(d) Procedure. Hearings shall be conducted in accordance with the
procedures set forth in 24 CFR part 26, subpart B to the extent that
such provisions are not inconsistent with any of the procedures in this
part or FHEFSSA.
* * * * *
Sec. 81.85 [Amended]
17. Section 81.85 is amended by amending the third sentence of
paragraph (c)(1) by removing the reference to ``Sec. 30.515'', and by
adding in its place a reference to ``Sec. 26.38''.
PART 200--INTRODUCTION
20. The authority citation for 24 CFR part 200 continues to read as
follows:
Authority: 12 U.S.C. 1701-1715z-18; 42 U.S.C. 3535(d).
Sec. 200.243 [Amended]
21. In Sec. 200.243, the second sentence of the introductory text
of paragraph (a) is amended by adding the phrase ``, subpart A'' after
the phrase ``24 CFR part 26''.
PART 950--INDIAN HOUSING PROGRAMS
22. The authority citation for 24 CFR part 950 continues to read as
follows:
Authority: 25 U.S.C. 450e(b); 42 U.S.C. 1437aa-1437ee, and
3535(d).
Sec. 950.190 [Amended]
23. In Sec. 950.190, the last sentence of paragraph (e) is amended
by adding the phrase ``, subpart A'' after the phrase ``24 CFR part
26''.
PART 965--PHA-OWNED OR LEASED PROJECTS--MAINTENANCE AND OPERATION
24. The authority citation for 24 CFR part 965 continues to read as
follows:
Authority: 42 U.S.C. 1437, 1437a, 1437d, 1437g, and 3535(d).
Subpart H is also issued under 42 U.S.C. 4821-4846.
Sec. 965.205 [Amended]
25. In Sec. 965.205, the last sentence of paragraph (e) is amended
by adding the phrase ``, subpart A'' after the phrase ``24 CFR part
26''.
PART 3282--MANUFACTURED HOME PROCEDURAL AND ENFORCEMENT REGULATIONS
26. The authority citation for 24 CFR part 3282 is revised to read
as follows:
Authority: 28 U.S.C. 2461 note; 42 U.S.C. 5424; and 42 U.S.C.
3535(d).
Sec. 3282.10 [Amended]
27. Section 3282.10 is amended by adding a new sentence at the end,
to read as follows:
Sec. 3282.10 Civil and criminal penalties.
* * * The maximum amount of penalties imposed under section 611 of
the Act shall be $1,100 for each violation, up to a maximum of
$1,100,000 for any related series of violations occurring within one
year from the date of the first violation.
PART 3500--REAL ESTATE SETTLEMENT PROCEDURES ACT
28. The authority citation for 24 CFR part 3500 is revised to read
as follows:
Authority: 12 U.S.C. 2601 et seq.; 28 U.S.C. 2461 note.
Sec. 3500.17 [Amended]
29. Section 3500.17 is amended as follows:
a. Paragraph (m) is revised to read as follows; and
b. Paragraphs (n)(1) and (n)(4)(iii) are amended by removing the
phrase ``, subpart E,''.
Sec. 3500.17 Escrow accounts.
* * * * *
(m) Penalties. (1) A servicer's failure to submit to a borrower an
initial or annual escrow account statement meeting the requirements of
this part shall constitute a violation of section 10(d) of RESPA (12
U.S.C. 2609(d)) and this section. For each such violation, the
Secretary shall assess a civil penalty of 55 dollars ($55), except that
the total of the assessed penalties shall not exceed $110,000 for any
one servicer for violations that occur during any consecutive 12-month
period.
(2) Violations described in paragraph (m)(1) of this section do not
require any proof of intent. However, if a lender or servicer is shown
to have intentionally disregarded the requirements that it submit the
escrow account statement to the borrower, then the Secretary shall
assess a civil penalty of $110 for each violation, with no limit on the
total amount of the penalty.
* * * * *
Dated: September 19, 1996.
Henry G. Cisneros,
Secretary.
[FR Doc. 96-24573 Filed 9-23-96; 8:45 am]
BILLING CODE 4210-32-P
Complete official Federal Register PDF
FR Doc. 96-24505 Tart Cherries Grown in the States of Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and Wisconsin; Order Regulating Handling
[Federal Register Volume 61, Number 186 (Tuesday, September 24, 1996)]
[Rules and Regulations]
[Pages 49939-49952]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-24505]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
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========================================================================
Federal Register / Vol. 61, No. 186 / Tuesday, September 24, 1996 /
Rules and Regulations
[[Page 49939]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 930
[Docket No. AO-370-A5; FV93-930-3]
Tart Cherries Grown in the States of Michigan, New York,
Pennsylvania, Oregon, Utah, Washington, and Wisconsin; Order Regulating
Handling
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule establishes a Federal marketing agreement and
order which regulates the handling of tart cherries grown in the States
of Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and
Wisconsin. The order was favored by the required two-thirds majority of
producers voting in a referendum and was also favored by processors who
processed more than 50 percent of the commodity as required by the
Agricultural Marketing Agreement Act of 1937. In addition, the
marketing agreement was executed by the required number of handlers,
that is, handlers who handled more than 50 percent of the tart cherries
handled during the representative period. The marketing agreement and
order authorize volume, grade, size, and maturity regulations and
mandatory inspection. It also authorizes production, processing, and
marketing research and promotion projects, including paid advertising.
The objective of the order is to improve producer returns by
strengthening consumer demand through volume control and quality
assurance mechanisms. Agreement and order activities will be financed
by assessments levied on tart cherry handlers. The order was considered
at several public hearings conducted in 1993, 1994, and 1995. The
referendum was conducted by the Department of Agriculture by mail
ballot June 12 through July 10, 1996.
EFFECTIVE DATE: September 25, 1996.
FOR FURTHER INFORMATION CONTACT:
(1) R. Charles Martin or Kenneth G. Johnson, Marketing Order
Administration Branch, Fruit and Vegetable Division, AMS, USDA, P.O.
Box 96456, room 2523-S, Washington, D.C. 20090-6456; telephone: (202)
720-2861, FAX: (202) 720-5698.
(2) Robert Curry, Northwest Marketing Field Office, Marketing Order
Administration Branch, Fruit and Vegetable Division, AMS, USDA, 1220
S.W. Third Avenue, room 369, Portland, Oregon, 97204; telephone: (503)
326-2724, FAX: (503) 326-7440. Small businesses may request information
on compliance with this regulation by contacting: Jay Guerber,
Marketing Order Administration Branch, Fruit and Vegetable Division,
AMS, USDA, P.O. Box 96456, Room 2523-S, Washington, D.C. 20090-6456;
telephone: (202) 720-2491, Fax: (202) 720-5698.
SUPPLEMENTARY INFORMATION: Prior documents in this proceeding:
Notice of Hearing, issued on November 30, 1993, and published in
the Federal Register on November 30, and amended on December 23, 1993,
and January 31, 1994 [58 FR 63108, 58 FR 68065, and 59 FR 4259,
respectively]. The notice reopening the hearing was issued on December
5, 1994, and published in the Federal Register on December 8, 1994 [59
FR 63273]; Recommended Decision and Opportunity to File Written
Exceptions to the Proposed Marketing Agreement and Order, issued
November 20, 1995, and published in the Federal Register on November
29, 1995 (60 FR 61292). The reopening of the comment period to file
written exceptions to the proposed marketing agreement and order was
issued on December 27, 1995, and published in the Federal Register on
January 2, 1996 (61 FR 21). The Secretary's Decision was issued on May
22, 1996 and published in the Federal Register on May 29, 1996 (61 FR
26956).
Preliminary Statement
This administrative action is governed by the provisions of
sections 556 and 557 of Title 5 of the United States Code, and is
therefore excluded from the requirements of Executive Order 12866.
This rule has been reviewed under Executive Order 12988, Civil
Justice Reform. This action is not intended to have retroactive effect.
This rule will not preempt any State or local laws, regulations, or
policies, unless they present an irreconcilable conflict with this
action.
The Act provides that administrative proceedings must be exhausted
before parties may file suit in court. Under section 608c(15)(A) of the
Act, any handler subject to an order may file with the Secretary of
Agriculture (Secretary) a petition stating that the order, any
provision of the order, or any obligation imposed in connection with
the order is not in accordance with law and request a modification of
the order or to be exempted therefrom. A handler is afforded the
opportunity for a hearing on the petition. After the hearing the
Secretary would rule on the petition. The Act provides that the
district court of the United States in any district in which the
handler is an inhabitant, or has his or her principal place of
business, has jurisdiction in equity to review the Secretary's ruling
on the petition, provided a bill in equity is filed not later than 20
days after the date of the entry of the ruling.
The proposed marketing agreement and order was formulated on the
record of a public hearing held December 15-17, 1993, in Grand Rapids,
Michigan; January 13, 1994, in Provo, Utah; February 15-17, 1994, in
Portland, Oregon; January 12-13, 1995, in Portland, Oregon; and January
18-19, 1995, in Grand Rapids, Michigan. These multiple hearing sessions
were held to consider a proposed marketing agreement and order
regulating the handling of tart cherries grown in the proposed
production area. The hearing was held pursuant to the provisions of the
Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-
674), hereinafter referred to as the Act, and the applicable rules of
practice and procedure governing the formulation of marketing
agreements and marketing orders (7 CFR part 900). Approximately 40
witnesses, including tart cherry growers, handlers, and economists,
testified in support of the order. Growers and handlers mainly from the
States of Oregon and Washington testified in opposition to the proposed
order and asked to have Oregon and
[[Page 49940]]
Washington excluded from the proposed production area.
At the conclusion of the February 1994 hearing in Oregon, the
deadline for filing post-hearing briefs was set at April 29, 1994. The
deadline for filing post-hearing briefs was subsequently extended to
May 31, 1994. However, based on a review of the hearing evidence and
post hearing briefs, the Department of Agriculture (USDA) determined
that the hearing should be reopened to clarify certain aspects of the
proposal. USDA wanted to obtain additional information and
clarification concerning: (1) The States that should be regulated under
the order; (2) the economic impact of the proposed order on small and
large businesses; (3) whether the expected program benefits would
exceed costs, especially for growers, handlers and consumers; and (4)
how certain provisions would be implemented under the proposed
marketing order. The hearing was reopened and held January 12-13, 1995,
in Portland, Oregon, and January 18-19, 1995 in Grand Rapids, Michigan.
At the conclusion of the Michigan hearing, the deadline for filing
post-hearing briefs was set at March 17, 1995. Ten briefs were filed
following the first briefing period and seven briefs were filed
following the second briefing period.
The proponents testified that severely fluctuating tart cherry
prices are inherently harmful to growers and consumers. It was their
view that the proposed marketing order would improve grower returns by
strengthening consumer demand through volume control and quality
assurance mechanisms.
Upon the basis of evidence introduced at the hearing and the record
thereof, the Administrator of the Agricultural Marketing Service (AMS)
on November 29, 1995, filed with the Hearing Clerk, U. S. Department of
Agriculture, a recommended decision with the opportunity for written
exceptions by December 29, 1995. Subsequently, the USDA received three
requests to provide more time to analyze the recommended decision and
prepare and file written comments. Based on these requests the USDA
reopened the comment period until January 16, 1996.
Upon the basis of evidence introduced at the hearing and the record
thereof, the Deputy Assistant Secretary, Marketing and Regulatory
Programs, on May 22, 1996, filed with the Hearing Clerk, U. S.
Department of Agriculture, a Secretary's Decision and Referendum Order,
directing that a referendum be conducted during the period June 12
through July 10, 1996, among producers and processors of tart cherries
to determine whether they favored issuance of the proposed marketing
order. In the referendum, the marketing order was favored by more than
two-thirds of the producers voting in the referendum and also by
producers of more than two-thirds of the production represented in the
referendum. The marketing order was also favored by processors who
processed 79.3 percent of the total volume of processed tart cherries
during the representative period. The marketing agreement was signed by
handlers who, during the representative period, handled 71 percent of
the volume of tart cherries handled during the representative period.
The referendum results and handler sign-up met the statutory
requirements on producer, processor and handler approval necessary to
issue the marketing order and agreement.
The terms of the order set forth in this document are the same as
those contained in the Secretary's Decision and Referendum Order, with
one exception. This document corrects an error that appeared in section
930.20(c) pertaining to the definition of District 2, Central Michigan.
That definition is revised to read that District 2 consists of that
area north of a line drawn along the northern boundary of Allegan
County, rather than north of a line drawn along the southern boundary
of Allegan County.
Small Business Consideration: In accordance with the Regulatory
Flexibility Act (RFA) (5 U.S.C. 601 et seq.), the Agricultural
Marketing Service considered the economic impact of this action on
small entities. The record indicates that there are approximately 75
handlers of tart cherries in the production area and 1,600 producers.
Small agricultural service firms have been defined by the Small
Business Administration (SBA) (13 CFR 121.601) as those whose annual
receipts are less than $5,000,000, and small agricultural producers are
defined as those having annual receipts of less than $500,000. The
majority of the handlers and producers of tart cherries may be
classified as small entities.
For practical purposes, there is no fresh market for tart cherries.
Processors dry, freeze, can, juice, or puree pitted tart cherries.
Market use averages are: 56 percent of the product becomes industrial
grade frozen cherries; 16 percent goes into consumer-size cans of pie
filling; 8 percent is used for commercial pie filling; 10 percent
becomes juice concentrate; 2 percent is dried; and 8 percent goes into
water packs.
Since 1971, there has been a marked transformation in the
processing industry's structure. Currently, 75 percent of the crop is
processed by farmer-owned cooperatives or grower-owned processing
facilities; whereas in 1971, a substantial volume was processed by
independent handlers. Processors, through their sales agents, market in
all U.S. markets and export to Europe and Asia. There are no discrete
regional markets where cherries from a particular district could have a
particular advantage, beyond nominal differences in transportation
costs, which can often be overcome by price discounting.
The record evidence shows that economic adversity has caused more
than 21 percent of Michigan's growers to withdraw from tart cherry
farming. There were 1,183 Michigan commercial growers in 1986, compared
to 933 in 1992. In 1992, Michigan growers had an average production of
238,000 pounds with 19 percent of those growers averaging 800,000
pounds, accounting for 66 percent of the total Michigan production. In
States other than Michigan, there has also been a general decline in
the number of commercial growers since 1986. There are fewer growers in
other States besides Michigan, but the number of bearing acres has
increased from 45,000 acres in 1986, to more than 50,000 acres in 1990.
Record evidence indicates that the demand for red tart cherries is
inelastic at high and low levels of production, and relatively elastic
in the middle range. At the extremes, during times of very low and very
high production, different factors become operational. In very short
crop years, such as 1991, there is limited but sufficient exclusive
demand for cherries that can cause processor prices to double and
grower prices to triple. In the event of large crops, there seems to be
no price low enough to expand sales beyond about 275 million pounds of
raw fruit in a single year.
Since 1982, annual sales have averaged 230 million pounds. Under
the order, total returns to growers could be increased by restricting
supplies of red tart cherries available for sale by handlers during
large crop years. Also, production characteristics of the tart cherry
industry provide an opportunity to increase growers' total earnings by
converting the excess production of large crop years into storable
products that could constitute reserve pools. These pools would be
liquidated in a year when the available supplies are short.
One of the main concerns addressed in the order is the short term
annual variation in supply which is attributable to climatic factors
that neither growers
[[Page 49941]]
nor processors can control, and which leads to chaotic marketing
conditions. Such climatic factors can result in highly unpredictable
annual crop sizes, causing gluts and shortages of tart cherries. When
gluts occur, large carryin inventories can decrease processor and
grower prices, regardless of the anticipated size of the oncoming
year's crop. Many sales are consummated with large buyers well before
the current crop year's supply and demand situation is clear (based on
what can best be described as ``Anticipated Supply'', i.e., the sum of
the carryin inventory and USDA crop forecast, available usually late in
June, weeks before the actual crop harvest.)
These large, unrestricted carryin inventories and crop estimates
can play a dominant role in setting the tone of the market in a given
year. The order is intended to lessen the impact of these inventories
and estimates by establishing an ``optimum supply,'' thereby reducing
price swings to growers and buyers, and ultimately resulting in a
stabilization and enhancement of the market.
The order would impose some reporting and record keeping
requirements on handlers. Handler testimony indicated that the expected
burden that would be imposed with respect to these requirements would
be negligible since most of the information that would be reported to
the Board is already compiled by handlers for other uses and is readily
available. Reporting and recordkeeping requirements issued under
comparable marketing order programs impose an average annual burden on
each regulated handler of about one hour. It is reasonable to expect
that a comparable burden would be imposed under this marketing order on
the estimated 75 handlers of tart cherries. With respect to growers,
they testified at the hearing that information required to be submitted
to the Board for grower diversion is already collected and available
from growers.
The purpose of the RFA is to fit regulatory and informational
requirements to the size and scale of the business entities in a manner
that is consistent with the objectives of the rule and applicable
statutes. The marketing order provisions have been carefully reviewed
and every effort has been made to eliminate any unnecessary costs or
requirements. As discussed in the RFA, Congress' intent, among other
objectives, was to direct agencies to identify the need for any
``special accommodation'' (e.g., exemption or relaxation) on regulated
small entities (i.e., handlers) because, in the past, some Federal
regulatory and reporting requirements imposed unnecessary and
disproportionately burdensome demands on small businesses. After
reviewing the record AMS determined that direct or indirect costs
imposed under the marketing order regulation would not be
proportionately greater on small handlers than on large handlers, or
conversely, that any projected order benefits would not be
proportionately smaller for small handlers than for large handlers.
The record evidence indicates that the order may impose some
additional costs and requirements on handlers, but those costs are
insignificant and are directly proportional to the sizes of the
regulated handlers. The evidence also indicates that, given the severe
economic conditions and unstable markets facing the majority of the
industry, the benefits to small (as well as large) handlers are likely
to be greater than would accrue under the alternatives to the order
herein, namely no marketing order, or an order without the combination
of volume controls and other order authorities. USDA has made extensive
efforts to notify, and include the input of, small entities and others
in the development phase and subsequent formal rulemaking proceeding.
All handlers, growers, and other interested persons were given an
opportunity to participate in this proceeding and submit testimony, not
once, but twice since the hearing was reopened to take additional
evidence. In addition, USDA mailed to all known growers and handlers
notification of the hearing dates and locations. Any regulations issued
under the order which would regulate the handling of tart cherries, and
which would impose volume, quality or other requirements on handlers,
would not occur without additional rulemaking. Such requirements would
have to be published in the Federal Register, giving all interested
persons full opportunity to participate in the rulemaking proceeding.
Any proposal would have to include economic and other considerations
under rulemaking procedures.
The record evidence indicates that the order would be instrumental
in providing expanding markets and sales, and raising and stabilizing
prices of tart cherries, primarily for the benefit of producers. The
evidence also indicates that handlers would benefit as well. While the
level of such benefits to handlers is difficult to quantify, it is also
clear the provisions of the order are designed to benefit small
entities. Small handlers and producers are more likely to be minimally
capitalized than large entities, and are less likely to survive without
the stability the order would provide.
Accordingly, based on the information discussed above, AMS has
determined that the issuance of this final rule will not have a
significant economic impact on a substantial number of small entities.
In compliance with Office of Management and Budget (OMB)
regulations (5 CFR Part 1320) which implement the Paperwork Reduction
Act of 1995 (Pub. L. 104-13), the information collection and
recordkeeping requirements that may be imposed by this order have been
approved by OMB and assigned OMB Number 0581-0177. Any requirements
imposed will be evaluated against the potential benefits to be derived
and it is expected that any added burden resulting from increased
recordkeeping will not be significant when compared to those
anticipated benefits.
Findings and Determinations
(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 et seq.) 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 a
proposed marketing agreement and a proposed order, regulating the
handling of tart cherries grown in the States of Michigan, New York,
Pennsylvania, Oregon, Utah, Washington, and Wisconsin.
Upon the basis of the evidence introduced at the hearing and the
record thereof, it is found that:
(1) The marketing agreement and order, and all of the terms and
conditions thereof, will tend to effectuate the declared policy of the
Act;
(2) The marketing agreement and order regulates the handling of
tart cherries grown in the production area in the same manner as, and
is applicable only to, persons in the respective classes of commercial
and industrial activity specified in the marketing agreement and order
upon which a hearing has been held;
(3) The marketing agreement and order is limited in its application
to the smallest regional production area which is practicable,
consistent with carrying out the declared policy of the Act, and the
issuance of several orders applicable to subdivisions of the production
area will not effectively carry out the declared policy of the Act;
(4) There are no differences in the production and marketing of
tart cherries grown in the production area
[[Page 49942]]
which make necessary different terms and provisions applicable to
different parts of such area; and
(5) All handling of tart cherries grown in the production area is
in the current of interstate or foreign commerce or directly burdens,
obstructs, or affects such commerce.
(b) Additional findings. It is necessary and in the public interest
to make this order effective not later than September 25, 1996.
A later effective date would unnecessarily delay the implementation
of the agreement and order and the collection of handler assessments
necessary to fund day-to-day program expenses and authorized research
and promotion activities. The Department and industry implementation
activities must begin promptly. These activities include, but are not
limited to, the nomination of members and alternate members of the
administrative board to locally administer the marketing order, the
selection of that board by the Secretary of Agriculture, and following
that, holding board meetings to select a management team, draft board
operating guidelines, consider a budget and assessment rate for the
1997 fiscal period, and make other recommendations consistent with
order authority. Some of the board recommendations will require
rulemaking by the Department to be implemented.
In view of the foregoing, it is hereby found and determined that
good cause exists for making this order effective September 25, 1996,
and that it would be contrary to the public interest to delay the
effective date of this order for 30 days after its publication in the
Federal Register (Sec. 553(d), Administrative Procedure Act; 5 U.S.C.
551-559).
(c) Determinations. It is hereby determined that:
(1) The ``Marketing Agreement Regulating the Handling of Tart
Cherries Grown in the States of Michigan, New York, Pennsylvania,
Oregon, Utah, Washington, and Wisconsin'' upon which the aforesaid
public hearing was held has been signed by handlers (excluding
cooperative associations of producers who are not engaged in
processing, distributing, or shipping tart cherries covered by the
order) who during the period July 1, 1995, through May 31, 1996,
handled not less than 50 percent of the volume of such tart cherries
covered by this order, and
(2) The issuance of this order is favored or approved by at least
two-thirds of the producers who participated in a referendum on the
question of its approval and who, during the period July 1, 1995,
through May 31, 1996 (which has been deemed to be a representative
period), have been engaged within the tart cherry production area in
the production of tart cherries for market, such producers having also
produced for market at least two-thirds of the volume of such commodity
represented in the referendum.
List of Subjects in 7 CFR Part 930
Marketing agreements, Tart cherries, Reporting and recordkeeping
requirements.
Order Relative to Handling of Tart Cherries Grown in the States of
Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and
Wisconsin
It is therefore ordered, that on and after the effective date
hereof, all handling of tart cherries grown in the States of Michigan,
New York, Pennsylvania, Oregon, Utah, Washington, and Wisconsin, shall
be in conformity to, and in compliance with, the terms and conditions
of the said order, as follows:
The provisions of the marketing order include Secs. 930.1 through
930.91. The marketing agreement includes the provisions of the order
and three additional provisions, Sec. 930.97 Counterparts, Sec. 930.98
Additional parties, and Sec. 930.99 Order with marketing agreement.
These provisions are not published herein as part of the order.
The provisions of the marketing order are set forth in full herein.
Title 7, Chapter IX is amended by adding part 930 to read as
follows:
PART 930--TART CHERRIES GROWN IN THE STATES OF MICHIGAN, NEW YORK,
PENNSYLVANIA, OREGON, UTAH, WASHINGTON, AND WISCONSIN
Subpart--Order Regulating Handling
Definitions
Sec.
930.1 Act.
930.2 Board.
930.3 Cherries.
930.4 Crop year.
930.5 Department or USDA.
930.6 District.
930.7 Fiscal period.
930.8 Free market tonnage percentage cherries.
930.9 Grower.
930.10 Handle.
930.11 Handler.
930.12 Person.
930.13 Primary inventory reserve.
930.14 Production area.
930.15 Restricted percentage cherries.
930.16 Sales constituency.
930.17 Secondary inventory reserve.
930.18 Secretary.
Administrative Body
930.20 Establishment and membership.
930.21 Reestablishment
930.22 Term of office.
930.23 Nomination and election.
930.24 Appointment.
930.25 Failure to nominate.
930.26 Acceptance.
930.27 Vacancies.
930.28 Alternate members
930.29 Eligibility for membership on Cherry Industry Administrative
Board.
930.30 Powers.
930.31 Duties.
930.32 Procedure.
930.33 Expenses and compensation.
Expenses and Assessments
930.40 Expenses.
930.41 Assessments.
930.42 Accounting.
Quality Control
930.44 Quality Control.
Research, Market Development and Promotion
930.48 Research, Market Development and Promotion.
Regulations
930.50 Marketing policy.
930.51 Issuance of volume regulations.
930.52 Establishment of districts subject to volume regulations.
930.53 Modification, suspension, or termination of regulations.
930.54 Prohibition on the use or disposition of inventory reserve
cherries.
930.55 Primary inventory reserves.
930.56 Off-premise inventory reserve.
930.57 Secondary inventory reserve.
930.58 Grower diversion privilege.
930.59 Handler diversion privilege.
930.60 Equity holders.
930.61 Handler compensation.
930.62 Exemptions.
930.63 Deferment of restricted obligation.
Reports and Records
930.70 Reports.
930.71 Records.
930.72 Verification of reports and records.
930.73 Confidential information.
Miscellaneous Provisions
930.80 Compliance.
930.81 Right of the Secretary.
930.82 Effective time.
930.83 Termination.
930.84 Proceedings after termination.
930.85 Effect of termination or amendment.
930.86 Duration of immunities.
930.87 Agents.
930.88 Derogation.
930.89 Personal liability.
930.90 Separability.
930.91 Amendments.
Authority: 7 U.S.C. 601-674
[[Page 49943]]
Subpart--Order Regulating Handling
Definitions
Sec. 930.1 Act.
Act means Public Act No. 10, 73d Congress (May 12, 1933), as
amended, and as reenacted and amended by the Agricultural Marketing
Agreement Act of 1937, as amended (48 Stat. 31, as amended, 68 Stat.
906, 1047; 7 U.S.C. 601 et seq.).
Sec. 930.2 Board.
Board means the Cherry Industry Administrative Board established
pursuant to Sec. 930.20.
Sec. 930.3 Cherries.
Cherries means all tart/sour cherry varieties grown in the
production area classified botanically as Prunus cerasas, or hybrids of
Prunus cerasas by Prunus avium, or Prunus cerasas by Prunus fruticosa.
Sec. 930.4 Crop year.
Crop year means the 12-month period beginning on July 1 of any year
and ending on June 30 of the following year, or such other period as
the Board, with the approval of the Secretary, may establish.
Sec. 930.5 Department or USDA.
Department or USDA means the United States Department of
Agriculture.
Sec. 930.6 District.
District means one of the subdivisions of the production area
described in Sec. 930.20(c), or such other subdivisions as may be
established pursuant to Sec. 930.21, or any subdivision added pursuant
to Sec. 930.52.
Sec. 930.7 Fiscal period.
Fiscal period is synonymous with fiscal year and means the 12-month
period beginning on July 1 of any year and ending on June 30 of the
following year, or such other period as the Board, with the approval of
the Secretary, may establish: Provided, that the initial fiscal period
shall begin on the effective date of this part.
Sec. 930.8 Free market tonnage percentage cherries.
Free market tonnage percentage cherries means that proportion of
cherries handled in a crop year which are free to be marketed in normal
commercial outlets in that crop year under any volume regulation
established pursuant to Sec. 930.50 or Sec. 930.51 and, in the absence
of a restricted percentage being established for a crop year pursuant
to Sec. 930.50 or Sec. 930.51, means all cherries received by handlers
in that crop year.
Sec. 930.9 Grower.
Grower is synonymous with producer and means any person who
produces cherries to be marketed in canned, frozen, or other processed
form and who has a proprietary interest therein: Provided that, the
term grower shall not include a person who produces cherries to be
marketed exclusively for the fresh market in an unpitted condition.
Sec. 930.10 Handle.
Handle means the process to brine, can, concentrate, freeze,
dehydrate, pit, press or puree cherries, or in any other way convert
cherries commercially into a processed product, or divert cherries
pursuant to Sec. 930.59 or obtain grower diversion certificates issued
pursuant to Sec. 930.58, or otherwise place cherries into the current
of commerce within the production area or from the area to points
outside thereof: Provided, That the term handle shall not include:
(a) The brining, canning, concentrating, freezing, dehydration,
pitting, pressing or the converting, in any other way, of cherries into
a processed product for home use and not for resale.
(b) The transportation within the production area of cherries from
the orchard where grown to a processing facility located within such
area for preparation for market.
(c) The delivery of such cherries to such processing facility for
such preparation.
(d) The sale or transportation of cherries by a grower to a handler
of record within the production area.
(e) The sale of cherries in the fresh market in an unpitted
condition.
Sec. 930.11 Handler.
Handler means any person who first handles cherries or causes
cherries to be handled for his or her own account.
Sec. 930.12 Person.
Person means an individual, partnership, corporation, association,
or any other business unit.
Sec. 930.13 Primary inventory reserve.
Primary inventory reserve means that portion of handled cherries
that are placed into handlers' inventories in accordance with any
restricted percentage established pursuant to Sec. 930.50 or
Sec. 930.51.
Sec. 930.14 Production area.
Production area means the States of Michigan, New York,
Pennsylvania, Oregon, Utah, Washington and Wisconsin.
Sec. 930.15 Restricted percentage cherries.
Restricted percentage cherries means that proportion of cherries
handled in a crop year which must be either placed into handlers'
inventories in accordance with Sec. 930.55 or Sec. 930.57 or otherwise
diverted in accordance with Sec. 930.59 and thereby withheld from
marketing in normal commercial outlets under any volume regulation
established pursuant to Sec. 930.50 or Sec. 930.51.
Sec. 930.16 Sales constituency.
Sales constituency means a common marketing organization or
brokerage firm or individual representing a group of handlers or
growers.
Sec. 930.17 Secondary inventory reserve.
Secondary inventory reserve means any portion of handled cherries
voluntarily placed into inventory by a handler under Sec. 930.57.
Sec. 930.18 Secretary.
Secretary means the Secretary of Agriculture of the United States,
or any officer or employee of the U.S. Department of Agriculture to
whom authority has heretofore been delegated, or to whom authority may
hereafter be delegated, to act in the Secretary's stead.
Administrative Body
Sec. 930.20 Establishment and membership.
(a) There is hereby established a Cherry Industry Administrative
Board (Board) consisting of 18 members. Seventeen of these members
shall be qualified growers and handlers selected pursuant to this part,
each of whom shall have an alternate having the same qualifications as
the member for whom the person is an alternate. The remaining member of
the Board shall be a public member who, along with his or her
alternate, shall be elected by the Board from the general public.
(b) District representation on the Board shall be as follows:
------------------------------------------------------------------------
Grower Handler
District members members
------------------------------------------------------------------------
1.................................................. 2 2
2.................................................. 1 2
3.................................................. 1 1
4.................................................. 1 1
5.................................................. 1 or 1
6.................................................. 1 or 1
7.................................................. 1 1
8.................................................. 1 or 1
9.................................................. 1 or 1
------------------------------------------------------------------------
(c) Upon the adoption of this part, the production area shall be
divided into the following described subdivisions for purposes of this
section:
District 1--Northern Michigan: that portion of the State of
Michigan which
[[Page 49944]]
is north of a line drawn along the northern boundary of Mason County
and extended east to Lake Huron.
District 2--Central Michigan: that portion of the State of Michigan
which is south of District 1 and north of a line drawn along the
northern boundary of Allegan County and extended east to Lake St.
Clair.
District 3--Southern Michigan: That portion of the State of
Michigan not included in Districts 1 and 2.
District 4--The State of New York.
District 5--The State of Oregon.
District 6--The State of Pennsylvania.
District 7--The State of Utah.
District 8--The State of Washington.
District 9--The State of Wisconsin.
(d) The ratio of grower to handler representation in District 2
shall alternate each time the term of a Board member from the
representative group having two seats expires. During the initial
period of the order, the ratio shall be as designated in paragraph (b)
of this section.
(e) Board members from Districts 5, 6, 8 and 9 may be either grower
or handler members and will be nominated and elected as outlined in
Sec. 930.23. If District 5, 6, 8, and/or 9 becomes subject to volume
regulation under Secs. 930.52(a), then the Board shall be reestablished
by the Secretary to provide such District(s) with at least one grower
and one handler seat on the Board and such seats shall be filled
according to the provisions of Sec. 930.23.
(f) In order to achieve a fair and balanced representation on the
Board, and to prevent any one sales constituency from gaining control
of the Board, not more than one board member may be from, or affiliated
with, a single sales constituency in those districts having more than
one seat on the Board. There is, however, no prohibition on the number
of Board members from differing districts that may be elected from a
single sales constituency which may have operations in more than one
district. However, as provided in Sec. 930.23, a handler or grower may
only nominate Board members and vote in one district.
(g) Subject to the approval of the Secretary, the Board shall at
its first meeting and annually thereafter elect from among any of its
members a chairperson and a vice-chairperson and may elect other
appropriate officers.
Sec. 930.21 Reestablishment.
Districts, subdivisions of districts, and the distribution of
representation among growers and handlers within a respective district
or subdivision thereof, or among the subdivision of districts, may be
reestablished by the Secretary, subject to the provisions of
Sec. 930.23, based upon recommendations by the Board. In recommending
any such changes, the Board shall consider:
(a) the relative importance of producing areas;
(b) relative production;
(c) the geographic locations of producing areas as they would
affect the efficiency of administration of this part;
(d) shifts in cherry production within the districts and the
production area;
(e) changes in the proportion and role of growers and handlers
within the districts; and (f) other relevant factors.
Sec. 930.22 Term of office.
The term of office of each member and alternate member of the Board
shall be for three fiscal years: Provided that, of the nine initial
members and alternates from the combination of Districts 1, 2 and 3,
one-third of such initial members and alternates shall serve only one
fiscal year, one-third of such members and alternates shall serve only
two fiscal years, one-third of such members and alternates shall serve
three fiscal years; and one-half of the initial members and alternates
from Districts 4 and 7 shall serve only one fiscal year, and one-half
of such initial members and alternates shall serve two fiscal years
(determination of which of the initial members and their alternates
shall serve for 1 fiscal year, 2 fiscal years, or 3 fiscal years, in
both instances, shall be by lot). Members and alternate members shall
serve in such capacity for the portion of the term of office for which
they are selected and have qualified until their respective successors
are selected, have qualified and are appointed. The consecutive terms
of office of grower, handler and public members and alternate members
shall be limited to two 3-year terms, excluding any initial term
lasting less than 3 years. The term of office of a member and alternate
member for the same seat shall be the same. If this part becomes
effective on a date such that the initial fiscal period is less than
six months in duration, then the tolling of time for purposes of this
subsection shall not begin until the beginning of the first 12-month
fiscal period.
Sec. 930.23 Nomination and election.
(a) Forms and ballots. Nomination and election of initial and
successor members and alternate members of the Board shall be conducted
through petition forms and election ballots distributed to all eligible
growers and handlers via the U.S. Postal Service or other means, as
determined by the Secretary. Similar petition forms and election
ballots shall be used for both members and alternate members and any
requirements for election of a member shall apply to the election of an
alternate.
(b) Nomination:
(1) In order for the name of a grower nominee to appear on an
election ballot, the nominee's name must be submitted with a petition
form, to be supplied by the Secretary or the Board, which, except in
District 8, contains at least five signatures of growers, other than
the nominee, from the nominee's district who are eligible to vote in
the referendum. Grower petition forms in District 8 must be signed by
only two growers, other than the nominee, from the nominee's district.
(2) In order for the name of a handler nominee to appear on an
election ballot, the nominee's name must be submitted with a petition
form, to be supplied by the Secretary or the Board, which contains the
signature of at least one handler, other than the nominee, from the
nominee's district who is eligible to vote in the referendum. The
requirement that the petition form be signed by a handler other than
the nominee shall not apply in any District where less than two
handlers are eligible to vote.
(3) Only growers, including duly authorized officers or employees
of growers, who are eligible to serve as grower members of the Board
shall participate in the nomination of grower members and alternate
grower members of the Board. No grower shall participate in the
submission of nominees in more than one district during any fiscal
period. If a grower produces cherries in more than one district, that
grower may select in which district he or she wishes to participate in
the nominations and election process and shall notify the Secretary or
the Board of such selection. A grower may not participate in the
nomination process in one district and the election process in a second
district in the same election cycle.
(4) Only handlers, including duly authorized officers or employees
of handlers, who are eligible to serve as handler members of the Board
shall participate in the nomination of handler members and alternate
handler members of the Board. No handler shall participate in the
selection of nominees in more than one district during any fiscal
period. If a handler handles cherries in more than one district, that
handler may select in which district he or she wishes to participate in
the nominations and election process and shall notify the Secretary or
the Board of such selection. A handler may not participate in the
nominations process in one district and the elections process
[[Page 49945]]
in a second district in the same election cycle. If a person is a
grower and a grower-handler only because some or all of his or her
cherries were custom packed, but he or she does not own or lease and
operate a processing facility, such person may vote only as a grower.
(5) In Districts 5, 6, 8 and 9, both growers and handlers may be
nominated for the district's Board seat. Grower and handler nominations
must follow the petition procedures outlined in paragraphs (b)(1) and
(b)(2) of this section.
(6) All eligible growers and handlers in all districts may submit
the names of the nominees for the public member and alternate public
member of the Board.
(7) After the appointment of the initial Board, the Secretary or
the Board shall announce at least 180 days in advance when a Board
member's term is expiring and shall solicit nominations for that
position in the manner described in this section. Nominations for such
position should be submitted to the Secretary or the Board not less
than 120 days prior to the expiration of such term.
(c) Election:
(1) After receiving nominations, the Secretary or the Board shall
distribute ballots via the U.S. Postal Service or other means, as
determined by the Secretary, to all eligible growers and handlers
containing the names of the nominees by district for the respective
seats on the Board, excluding the public voting member seat. The
ballots will clearly indicate that growers and handlers may only rank
or otherwise vote for nominees in their own district.
(2) Except as provided in paragraph (c)(4) of this section, only
growers, including duly authorized officers or employees of growers,
who are eligible to serve as grower members of the Board shall
participate in the election of grower members and alternate grower
members of the Board. No grower shall participate in the election of
Board members in more than one district during any fiscal period. If a
grower produces cherries in more than one district, the grower must
vote in the same district in which he or she chose to participate in
the nominations process under paragraph (b)(3) of this section.
However, if the grower did not participate in the nominations process,
he or she may select in which district he or she wishes to vote and
shall notify the Secretary or the Board of such selection.
(3) Except as provided in paragraph (c)(4) of this section, only
handlers, including duly authorized officers or employees of handlers,
who are eligible to serve as handler members of the Board shall
participate in the election of handler members and alternate handler
members of the Board. No handler shall participate in the election of
Board members in more than one district during any fiscal period. If a
handler does handle cherries in more than one district, he or she must
vote in the same district in which the handler elected to participate
in the nominations process under paragraph (b)(4) of this section.
However, if a handler did not participate in the nominations process,
that handler may select in which district he or she chooses to vote and
shall notify the Secretary or the Board of such selection. If a person
is a grower and a grower-handler only because some or all of his or her
cherries were custom packed, but he or she does not own or lease and
operate a processing facility, such person may vote only as a grower.
(4) In Districts 5, 6, 8 and 9, growers and handlers may vote for
either the grower or handler nominee(s) for the single seat allocated
to those districts.
(d) The members of the Board appointed by the Secretary pursuant to
Sec. 930.24 shall, at the first meeting and whenever necessary
thereafter, by at least a two-thirds vote of the entire Board, select
individuals to serve as the public member and alternate public member
of the Board from the list of nominees received from growers and
handlers pursuant to paragraph (b) of this section or from other
persons nominated by the Board. The persons selected shall be subject
to appointment by the Secretary under Sec. 930.24.
(e) The Board, with the approval of the Secretary, may establish
rules and regulations necessary and incidental to the administration of
this section.
Sec. 930.24 Appointment.
The selection of nominees made pursuant to elections conducted
under Sec. 930.23(c) shall be submitted to the Secretary in a format
which indicates the nominees by district, with the nominee receiving
the highest number of votes at the top and the number of votes received
being clearly indicated. The Secretary shall appoint from those
nominees or from other qualified individuals, the grower and handler
members of the Board and an alternate for each such member on the basis
of the representation provided for in Sec. 930.20 or as provided for in
any reapportionment or reestablishment undertaken pursuant to
Sec. 930.21. The public member and alternate public member are
nominated by the Board pursuant to Sec. 930.23(d) and shall also be
subject to appointment by the Secretary. The Secretary shall appoint
from nominees by the Board or from other qualified individuals the
public member and the alternate public member.
Sec. 930.25 Failure to nominate.
If nominations are not made within the time and in the manner
prescribed in Sec. 930.23, the Secretary may, without regard to
nominations, select the members and alternate members of the Board on
the basis of the representation provided for in Sec. 930.20 or as
provided for in any reapportionment or reestablishment undertaken
pursuant to Sec. 930.21.
Sec. 930.26 Acceptance.
Each person to be appointed by the Secretary as a member or as an
alternate member of the Board shall, prior to such appointment, qualify
by advising the Secretary that he/she agrees to serve in the position
for which nominated for selection.
Sec. 930.27 Vacancies.
To fill any vacancy occasioned by the failure of any person
appointed as a member or as an alternate member of the Board to
qualify, or in the event of the death, removal, resignation, or
disqualification of any member or alternate member of the Board, a
successor for the unexpired term of such member or alternate member of
the Board shall be appointed by the Secretary from the most recent list
of nominations for the Board made by growers and handlers, from
nominations made by the Board, or from other qualified individuals. Any
nominations made by the Board to fill a vacancy must be received by the
Secretary within 90 days of the effective date of the vacancy. Board
members wishing to resign from the Board must do so in writing to the
Secretary.
Sec. 930.28 Alternate members.
An alternate member of the Board, during the absence of the member
for whom that member serves as an alternate, shall act in the place and
stead of such member and perform such other duties as assigned.
However, if a member is in attendance at a meeting of the Board, an
alternate member may not act in the place and stead of such member. In
the event of the death, removal, resignation, or disqualification of a
member, the alternate shall act for the member until a successor for
such member is appointed and has qualified.
Sec. 930.29 Eligibility for membership on Cherry Industry
Administrative Board.
(a) Each grower member and each grower alternate member of the
Board shall be a grower, or an officer or employee of a grower, in the
district for which nominated or appointed.
[[Page 49946]]
(b) Each handler member and each handler alternate member of the
Board shall be a handler, or an officer or employee of a handler, who
owns, or leases, and operates a cherry processing facility in the
district for which nominated or appointed.
(c) The public member and alternate public member of the Board
shall be prohibited from having any financial interest in the cherry
industry and shall possess such additional qualifications as may be
established by regulation.
Sec. 930.30 Powers.
The Board shall have the following powers:
(a) To administer this part in accordance with its terms and
provisions;
(b) To make rules and regulations to effectuate the terms and
provisions of this part;
(c) To receive, investigate, and report to the Secretary complaints
of violations of this part; and
(d) To recommend to the Secretary amendments to this part.
Sec. 930.31 Duties.
The Board shall have, among others, the following duties:
(a) To select such officers, including a chairperson and vice-
chairperson, as may be necessary, and to define the duties of such
officers and the duties of the chairperson and the vice-chairperson;
(b) To employ or contract with such persons or agents as the Board
deems necessary and to determine the duties and compensation of such
persons or agents;
(c) To select such committees and subcommittees as may be
necessary;
(d) To adopt bylaws and to adopt such rules for the conduct of its
business as it may deem advisable;
(e) To submit to the Secretary a budget for each fiscal period,
prior to the beginning of such period, including a report explaining
the items appearing therein and a recommendation as to the rates of
assessments for such period;
(f) To keep minutes, books, and records which will reflect all of
the acts and transactions of the Board and which shall be subject to
examination by the Secretary;
(g) To prepare periodic statements of the financial operations of
the Board and to make copies of each statement available to growers and
handlers for examination at the office of the Board;
(h) To cause its financial statements to be audited by a certified
public accountant at least once each fiscal year and at such times as
the Secretary may request. Such audit shall include an examination of
the receipt of assessments and the disbursement of all funds. The Board
shall provide the Secretary with a copy of all audits and shall make
copies of such audits, after the removal of any confidential individual
grower or handler information that may be contained in them, available
to growers and handlers for examination at the offices of the Board;
(i) To act as intermediary between the Secretary and any grower or
handler with respect to the operations of this part;
(j) To investigate and assemble data on the growing, handling, and
marketing conditions with respect to cherries;
(k) To apprise the Secretary of all Board meetings in a timely
manner;
(l) To submit to the Secretary such available information as the
Secretary may request;
(m) To investigate compliance with the provisions of this part;
(n) To develop and submit an annual marketing policy for approval
by the Secretary containing the optimum supply of cherries for the crop
year established pursuant to Sec. 930.50 and recommending such
action(s) necessary to achieve such optimum supply;
(o) To implement volume regulations established under Sec. 930.50
and issued by the Secretary under Sec. 930.51, including the release of
any inventory reserves;
(p) To provide thorough communication to growers and handlers
regarding the activities of the Board and to respond to industry
inquiries about Board activities;
(q) To oversee the collection of assessments levied under this
part;
(r) To enter into contracts or agreements with such persons and
organizations as the Board may approve for the development and conduct
of activities, including research and promotion activities, authorized
under this part or for the provision of services required by this part
and for the payment of the cost thereof with funds collected through
assessments pursuant to Sec. 930.41 and income from such assessments.
Contracts or agreements for any plan or project shall provide that:
(1) The contractors shall develop and submit to the Board a plan or
project together with a budget(s) which shall show the estimated cost
to be incurred for such plan or project;
(2) Any contract or agreement for a plan or project and any plan or
project adopted by the Board shall only become effective upon approval
by the Secretary; and
(3) Every such contracting party shall keep accurate records of all
of its transactions and make periodic reports to the Board of
activities conducted and an accounting for funds received and expended,
and such other reports as the Secretary or the Board may require. The
Secretary or employees of the Board may audit periodically the records
of the contracting party;
(s) Pending disbursement consistent with its budget, to invest,
with the approval of the Secretary, and in accordance with applicable
Departmental policies, funds collected through assessments authorized
under Sec. 930.41 and income from such assessments;
(t) To establish standards or grade requirements for cherries for
frozen and canned cherry products, subject to the approval of the
Secretary;
(u) To borrow such funds, subject to the approval of the Secretary
and not to exceed the expected expenses of one fiscal year, as are
necessary for administering its responsibilities and obligations under
this part; and
(v) To establish, with the approval of the Secretary, such rules
and procedures relative to administration of this subpart as may be
consistent with the provisions contained in this subpart and as may be
necessary to accomplish the purposes of the Act and the efficient
administration of this subpart.
Sec. 930.32 Procedure.
(a) Twelve members of the Board, including alternates acting for
absent members, shall constitute a quorum. For any action of the Board
to pass, at least two-thirds of the entire Board must vote in support
of such action.
(b) The Board may provide through its own rules and regulations,
subject to approval by the Secretary, for simultaneous meetings of
groups of its members assembled at different locations and for votes to
be conducted by telephone or other means of communication. Votes so
cast shall be promptly confirmed in writing.
(c) All meetings of the Board are open to the public, although the
Board may hold portions of meetings in executive session for the
consideration of certain business. The Board will establish, with the
approval of the Secretary, a means of advanced notification of growers
and handlers of Board meetings.
Sec. 930.33 Expenses and compensation.
Except for the public member and alternate public member who shall
receive such compensation as the Board may establish and the Secretary
may approve, the members of the Board, and alternates when acting as
members,
[[Page 49947]]
shall serve without compensation but shall be reimbursed for necessary
and reasonable expenses, as approved by the Board, incurred by them in
the performance of their duties under this part. The Board at its
discretion may request the attendance of one or more alternates at any
or all meetings, notwithstanding the expected or actual presence of the
respective member(s), and may pay the expenses of such alternates.
Expenses and Assessments
Sec. 930.40 Expenses.
The Board is authorized to incur such expenses as the Secretary
finds are reasonable and likely to be incurred for its maintenance and
functioning and to enable it to exercise its powers and perform its
duties in accordance with the provisions of this part. The funds to
cover such expenses shall be acquired by the levying of assessments as
provided in Sec. 930.41.
Sec. 930.41 Assessments.
(a) An assessment may be levied upon handlers annually under this
part to cover the administrative costs of the Board, costs of
inspection, and any research, development and promotion activities
initiated by the Board under Sec. 930.48.
(b) Each part of an assessment intended to cover the costs of each
activity in paragraph (a) of this section, must be identified and
approved by the Board and the Secretary, and any notification or other
statement regarding assessments provided to handlers must contain such
information.
(c) As a pro rata share of the administrative, inspection,
research, development, and promotion expenses which the Secretary finds
reasonable and likely to be incurred by the Board during a fiscal
period, each handler shall pay to the Board assessments on all cherries
handled, as the handler thereof, during such period: Provided, a
handler shall be exempt from any assessment on the tonnage of handled
cherries that are diverted according to Sec. 930.59 which includes
cherries represented by grower diversion certificates issued pursuant
to Sec. 930.58(b) and acquired by handlers and those cherries devoted
to exempt uses under Sec. 930.62.
(d) The Secretary, after consideration of the recommendation of the
Board, shall fix the rate of assessment to be paid by each handler
during the fiscal period in an amount designed to secure sufficient
funds to cover the expenses which may be approved and incurred during
such period or subsequent period as provided in paragraph (c) of this
section. At any time during or after the fiscal period, the Secretary
may increase the rate of assessment in order to secure sufficient funds
to cover any later finding by the Secretary relative to the expenses
which may be incurred. Such increase shall be applied to all cherries
handled during the applicable fiscal period. In order to provide funds
for the administration of the provisions of this part during the first
part of a fiscal period before sufficient operating income is available
from assessments, the Board may accept the payment of assessments in
advance, and may borrow money for such purposes.
(e) Assessments not paid within a time prescribed by the Board may
be made subject to interest or late payment charges, or both. The
period of time, rate of interest, and late payment charge will be as
recommended by the Board and approved by the Secretary: Provided, That
when interest or late payment charges are in effect, they shall be
applied to all assessments not paid within the prescribed period of
time.
(f) Assessments will be calculated on the basis of pounds of
cherries handled: Provided, That the formula adopted by the Board and
approved by the Secretary for determining the rate of assessment will
compensate for differences in the number of pounds of cherries utilized
for various cherry products and the relative market values of such
cherry products.
(g) The Board, with the approval of the Secretary, may establish
rules and regulations necessary and incidental to the administration of
this section.
Sec. 930.42 Accounting.
(a) If, at the end of a fiscal period, the assessments collected
are in excess of expenses incurred, the Board, with the approval of the
Secretary, may carry over all or any portion of such excess into
subsequent fiscal periods as a reserve. Such reserve funds may be used
to cover any expenses authorized by this part, and to cover necessary
expenses of liquidation in the event of termination of this part. If
any such excess is not retained in a reserve, it shall be refunded
proportionately to the handlers from whom the excess was collected.
Without an additional reserve level approved by the Secretary, the
amount held in reserve may not exceed approximately one year's
operational expenses. Upon termination of this part, any funds not
required to defray the necessary expenses of liquidation shall be
disposed of in such a manner as the Secretary may determine to be
appropriate: Provided, That to the extent practicable, such funds shall
be returned pro rata to the persons from whom such funds were
collected.
(b) All funds received by the Board pursuant to the provisions of
this part shall be used solely for the purpose specified in this part
and shall be accounted for in the manner provided in this part. The
Secretary may at any time require the Board and its members to account
for all receipts and disbursements.
Quality Control
Sec. 930.44 Quality Control.
(a) Quality standards. The Board may establish, with the approval
of the Secretary, such minimum quality and inspection requirements
applicable to cherries as will contribute to orderly marketing or be in
the public interest. If such requirements are adopted, no handler shall
process cherries into manufactured products or sell manufactured
products in the current of commerce unless such cherries and/or such
cherries used in the manufacture of products meet the applicable
requirements as evidenced by certification acceptable to the Board. The
Board, with the approval of the Secretary, may establish rules and
regulations necessary and incidental to the administration of this
section.
(b) Inspection and certification. Whenever the handling of any
cherries requires inspection pursuant to this part, each handler who
handles cherries shall cause such cherries to be inspected by the
appropriate division of USDA, and certified by it as meeting the
applicable requirements of such regulation: Provided, That inspection
and certification shall be required for cherries which previously have
been so inspected and certified only if such cherries have been
regraded, resorted, repackaged, or in any other way further prepared
for market. Promptly after inspection and certification, each such
handler shall submit, or cause to be submitted, to the Board a copy of
the certificate of inspection issued with respect to such cherries.
Research, Market Development and Promotion
Sec. 930.48 Research, market mevelopment and promotion.
The Board, with the approval of the Secretary, may establish or
provide for the establishment of production and processing research,
market research and development, and/or promotional activities,
including paid advertising, designed to assist, improve or promote the
efficient production and processing, marketing, distribution, and
consumption of cherries subject to this
[[Page 49948]]
part. The expense of such projects shall be paid from funds collected
pursuant to this part and the income from such funds.
Regulations
Sec. 930.50 Marketing policy.
(a) Optimum Supply. On or about July 1 of each crop year, the Board
shall hold a meeting to review sales data, inventory data, current crop
forecasts and market conditions in order to establish an optimum supply
level for the crop year. The optimum supply volume shall be calculated
as 100 percent of the average sales of the prior three years to which
shall be added a desirable carryout inventory not to exceed 20 million
pounds or such other amount as the Board, with the approval of the
Secretary may establish. This optimum supply volume shall be announced
by the Board in accordance with paragraph (h) of this section.
(b) Preliminary percentages. On or about July 1 of each crop year,
the Board shall establish a preliminary free market tonnage percentage
which shall be calculated as follows: From the optimum supply computed
in paragraph (a) of this section, the Board shall deduct the carryin
inventory to determine the tonnage requirements (adjusted to a raw
fruit equivalent) for the current crop year which will be subtracted by
the current year USDA crop forecast. If the resulting number is
positive, this would represent the estimated over-production which
would need to be the restricted percentage tonnage. This restricted
percentage tonnage would then be divided by the sum of the USDA crop
forecast for the regulated districts to obtain the percentages for the
regulated districts. The Board shall establish a preliminary restricted
percentage equal to the quotient, rounded to the nearest whole number,
with the compliment being the preliminary free tonnage percentage. If
subtracting the current crop year requirement, computed in the first
sentence from the current USDA crop forecast, results in a negative
number, the Board shall establish a preliminary free tonnage of 100
percent with a preliminary restricted percentage of zero. The Board
shall announce these preliminary percentages in accordance with
paragraph (h) of this section.
(c) Interim percentages. Between July 1 and September 15 of each
crop year, the Board may modify the preliminary free market tonnage and
restricted percentages to adjust to the actual pack occurring in the
industry. The Board shall announce any interim percentages in
accordance with paragraph (h) of this section.
(d) Final percentages. No later than September 15 of each crop
year, the Board shall review actual production during the current crop
year and make such adjustments as are necessary between free and
restricted tonnage to achieve the optimum supply and recommend such
final free market tonnage and restricted percentages to the Secretary
and announce them in accordance with paragraph (h) of this section. The
difference between any final free market tonnage percentage designated
by the Secretary and 100 percent shall be the final restricted
percentage. With its recommendation, the Board shall report on its
consideration of the factors in paragraph (e) of this section.
(e) Factors. When computing preliminary and interim percentages, or
determining final percentages for recommendation to the Secretary, the
Board shall give consideration to the following factors:
(1) The estimated total production of cherries;
(2) The estimated size of the crop to be handled;
(3) The expected general quality of such cherry production;
(4) The expected carryover as of July 1 of canned and frozen
cherries and other cherry products;
(5) The expected demand conditions for cherries in different market
segments;
(6) Supplies of competing commodities;
(7) An analysis of economic factors having a bearing on the
marketing of cherries;
(8) The estimated tonnage held by handlers in primary or secondary
inventory reserves; and
(9) Any estimated release of primary or secondary inventory reserve
cherries during the crop year.
(f) Modification. In the event the Board subsequently deems it
advisable to modify its marketing policy, because of national
emergency, crop failure, or other major change in economic conditions,
it shall hold a meeting for that purpose, and file a report thereof
with the Secretary within 5 days (exclusive of Saturdays, Sundays, and
holidays) after the holding of such meeting, which report shall show
the Board's recommended modification and the basis therefor.
(g) Reserve tonnage to sell as free tonnage. In addition, the Board
shall make available tonnage equivalent to an additional 10 percent, if
available, of the average sales of the prior 3 years for market
expansion. Handlers can determine if they need the additional tonnage
and inform the Board so that reserve cherries may be released to them.
Handlers not desiring the additional tonnage would not have it released
to them.
(h) Publicity. The Board shall promptly give reasonable publicity
to growers and handlers of each meeting to consider a marketing policy
or any modification thereof, and each such meeting shall be open to
them and to the public. Similar publicity shall be given to growers and
handlers of each marketing policy report or modification thereof, filed
with the Secretary and of the Secretary's action thereon. Copies of all
marketing policy reports shall be maintained in the office of the
Board, where they shall be made available for examination. The Board
shall notify handlers, and give reasonable publicity to growers, of its
computation of the optimum supply, preliminary percentages, and interim
percentages and shall notify handlers of the Secretary's action on
final percentages by registered or certified mail.
(i) Restricted Percentages. Restricted percentage requirements
established under paragraphs (b), (c) or (d) of this section may be
fulfilled by handlers by either establishing an inventory reserve in
accordance with Sec. 930.55 or Sec. 930.57 or by diversion of product
in accordance with Sec. 930.59. In years where required, the Board
shall establish a maximum percentage of the restricted quantity which
may be established as a primary inventory reserve such that the total
primary inventory reserve does not exceed 50 million pounds. Handlers
will be permitted to divert (at plant or with grower-diversion
certificates) as much of the restricted percentage requirement as they
deem appropriate, but may not establish a primary inventory reserve in
excess of the percentage established by the Board for restricted
cherries. In the event handlers wish to establish inventory reserve in
excess of this amount, they may do so, in which case it will be
classified as a secondary inventory reserve and will be regulated
accordingly.
(j) Inventory Reserve Release. In years when inventory reserve
cherries are available and when the expected availability of cherries
from the current crop plus expected carryin inventory does not fulfill
the optimum supply, the Board shall release not later than November 1st
of the current crop year such volume from the inventory reserve as will
satisfy the optimum supply.
(k) The Board, with the approval of the Secretary, may establish
rules and regulations necessary and incidental to the administration of
this section.
[[Page 49949]]
Sec. 930.51 Issuance of volume regulations.
(a) Whenever the Secretary finds, from the recommendation and
supporting information supplied by the Board, that to designate final
free market tonnage and restricted percentages for any cherries
acquired by handlers during the crop year will tend to effectuate the
declared policy of the Act, the Secretary shall designate such
percentages. Such regulation designating such percentage shall fix the
free market tonnage and restricted percentages, totaling 100 percent,
which shall be applied in accordance with this section, Sec. 930.55,
Sec. 930.57 and Sec. 930.59 to cherries grown in regulated districts,
as determined under Sec. 930.52, and handled during such fiscal period.
(b) The Board shall be informed immediately of any such regulation
issued by the Secretary, and the Board shall promptly give notice
thereof to handlers.
(c) That portion of a handler's cherries that are restricted
percentage cherries is the product of the restricted percentage imposed
under paragraph (a) of this section multiplied by the tonnage of
cherries, originating in a regulated district, handled, including those
diverted according to Sec. 930.59, by that handler in that fiscal year.
Therefore, while diverted cherries, including those represented by
grower diversion certificates, may be exempt from assessment under
Sec. 930.41, they must be counted when computing restricted percentage
requirements.
(d) The Board, with the approval of the Secretary, shall develop
rules and regulations which shall provide guidelines for handlers in
complying with any restricted tonnage requirements, including, but not
limited to, a grace period of at least 30 days to segregat
FR Doc. 96-24505 Tart Cherries Grown in the States of Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and Wisconsin; Order Regulating Handling
e and
appropriately document any tonnage they wish to place in the inventory
reserve and to assemble any applicable diversion certificates.
Sec. 930.52 Establishment of districts subject to volume regulations.
(a) Upon adoption of this part, the districts in which handlers
shall be subject to any volume regulations implemented in accordance
with this part shall be those districts in which the average annual
production of cherries over the prior three years has exceeded 15
million pounds. Handlers in districts not meeting the 15 million pound
requirement at the time of order promulgation shall become subject to
volume regulation implemented in accordance with this part in the crop
year that follows any three-year period in which the 15 million pound
average production requirement is exceeded in that district.
(b) Handlers in districts which are not subject to volume
regulation would only be so regulated to the extent that they handled
cherries which were grown in a district subject to regulation as
specified in paragraph (a) of this section. In such a case, the handler
must place in inventory reserve pursuant to Sec. 930.55 or Sec. 930.57
or divert pursuant to Sec. 930.59 the required restricted percentage of
the crop originating in the regulated district.
(c) Handlers in districts not meeting the production requirement
described in paragraph (a) of this section in a given year would not be
subject to volume regulation in the next crop year.
(d) Any district producing a crop which is less than 50 percent of
the average annual processed production in that district in the
previous five years would be exempt from any volume regulation if, in
that year, a restricted percentage is established.
(e) The Board, with the approval of the Secretary, may establish
rules and regulations necessary and incidental to the administration of
this section.
Sec. 930.53 Modification, suspension, or termination of regulations.
(a) In the event the Board at any time finds that, by reason of
changed conditions, any regulations issued pursuant to Secs. 930.44 or
930.51 should be modified, suspended, or terminated, it shall so
recommend to the Secretary.
(b) Whenever the Secretary finds, from the recommendations and
information submitted by the Board or from other available information,
that a regulation issued pursuant to Secs. 930.44 or 930.51 should be
modified, suspended or terminated with respect to any or all shipments
of cherries in order to effectuate the declared policy of the Act, the
Secretary shall modify, suspend, or terminate such regulation.
Sec. 930.54 Prohibition on the use or disposition of inventory
reserve cherries.
(a) Release of primary and secondary inventory reserve cherries.
Except as provided in Sec. 930.50 and paragraph (b) of this section,
cherries that are placed in inventory reserve pursuant to the
requirements of Sec. 930.50, Sec. 930.51, Sec. 930.55, or Sec. 930.57
shall not be used or disposed of by any handler or any other person:
Provided, That if the Board determines that the total available
supplies for use in normal commercial outlets do not at least equal the
amount, as estimated by the Board, needed to meet the demand in such
outlets, the Board shall recommend to the Secretary and provide such
justification that, during such period as may be recommended by the
Board and approved by the Secretary, a portion or all of the primary
and/or secondary inventory reserve cherries shall be released for such
use.
(b) Reserved.
Sec. 930.55 Primary inventory reserves.
(a) Whenever the Secretary has fixed the free market tonnage and
restricted percentages for any fiscal period, as provided for in
Sec. 930.51(a), each handler in a regulated district shall place in his
or her primary inventory reserve for such period, at such time, and in
such manner, as the Board may prescribe, or otherwise divert, according
to Sec. 930.59, a portion of the cherries acquired during such period.
(b) The form of the cherries, frozen, canned in any form, dried, or
concentrated juice, placed in the primary inventory reserve is at the
option of the handler. Except as may be limited by Sec. 930.50(i) or as
may be permitted pursuant to Sec. 930.59 and Sec. 930.62, such
inventory reserve portion shall be equal to the sum of the products
obtained by multiplying the weight or volume of the cherries in each
lot of cherries acquired during the fiscal period by the then effective
restricted percentage fixed by the Secretary: Provided, That in
converting cherries in each lot to the form chosen by the handler, the
inventory reserve obligations shall be adjusted in accordance with
uniform rules adopted by the Board in terms of raw fruit equivalent.
(c) Inventory reserve cherries shall meet such standards of grade,
quality, or condition as the Board, with the approval of the Secretary,
may establish. All such cherries shall be inspected by USDA. A
certificate of such inspection shall be issued which shall show, among
other things, the name and address of the handler, the number and type
of containers in the lot, the grade of the product, the location where
the lot is stored, identification marks (can codes or lot stamp), and a
certification that the cherries meet the prescribed standards. Promptly
after inspection and certification, each such handler shall submit, or
cause to be submitted, to the Board, at the place designated by the
Board, a copy of the certificate of inspection issued with respect to
such cherries.
(d) Handlers shall be compensated for inspection costs incurred on
cherries placed in the primary inventory reserve. All reporting of
cherries placed in, rotated in and out, or released from an inventory
reserve shall be in accordance with rules and procedures established
[[Page 49950]]
by the Board, with the approval of the Secretary. The Board could, with
the approval of the Secretary, also limit the number of inspections of
reserve cherries being rotated into inventory reserves for which the
Board would be financially liable.
(e) Except as provided in Sec. 930.54, handlers may not sell
inventory reserve cherries prior to their official release by the
Board. Handlers may rotate cherries in their inventory reserves with
prior notification to the Board. All cherries rotated into the
inventory reserve must meet the applicable inspection requirements.
Sec. 930.56 Off-premise inventory reserve.
Any handler may, upon notification to the Board, arrange to hold
inventory reserve, of his or her own production or which was purchased,
on the premises of another handler or in an approved commercial storage
facility in the same manner as though the inventory reserve were on the
handler's own premises.
Sec. 930.57 Secondary inventory reserve.
(a) In the event the inventory reserve established under
Sec. 930.55 of this part is at its maximum volume, and the Board has
announced, in accordance with Sec. 930.50, that volume regulation will
be necessary to maintain an orderly supply of quality cherries for the
market, handlers in a regulated district may elect to place in a
secondary inventory reserve all or a portion of the cherries the volume
regulation would otherwise require them to divert in accordance with
Sec. 930.59.
(b) Should any handler in a regulated district exercise his or her
right to establish a secondary inventory reserve under paragraph (a) of
this section, all costs of maintaining that reserve, as well as
inspection costs, will be the responsibility of the individual handler.
(c) The secondary inventory reserve shall be established in
accordance with Secs. 930.55 (b) and (c) and such other rules and
regulations which the Board, with the approval of the Secretary, may
establish.
(d) The Board shall retain control over the release of any cherries
from the secondary inventory reserve. No cherries may be released from
the secondary reserve until all cherries in any primary inventory
reserve established under Sec. 930.55 have been released. Any release
of the secondary inventory reserve shall be in accordance with the
annual marketing policy and with Sec. 930.54.
Sec. 930.58 Grower diversion privilege.
(a) In general. Any grower may voluntarily elect to divert, in
accordance with the provisions of this section, all or a portion of the
cherries which otherwise, upon delivery to a handler, would become
restricted percentage cherries. Upon such diversion and compliance with
the provisions of this section, the Board shall issue to the diverting
grower a grower diversion certificate which such grower may deliver to
a handler, as though there were actual harvested cherries.
(b) Eligible diversion. Grower diversion certificates shall be
issued to growers only if the cherries are diverted in accordance with
the following terms and conditions or such other terms and conditions
that the Board, with the approval of the Secretary, may establish.
Diversion may take such of the following forms which the Board, with
the approval of the Secretary, may designate: uses exempt under
Sec. 930.62; nonhuman food uses; or other uses, including diversion by
leaving such cherries unharvested.
(c) Application/mapping. The Board, with the approval of the
Secretary, shall develop rules and regulations providing for the
diversion of cherries by growers. Such regulations may include, among
other things:
(1) The form and content of applications and agreements relating to
the diversion, including provisions for supervision and compensation;
and
(2) Provisions for mapping areas in which cherries will be left
unharvested.
(d) Diversion certificate. If the Board approves the application it
shall so notify the applicant and conduct such supervision of the
applicant's diversion of cherries as may be necessary to assure that
the cherries have been diverted. After the diversion has been
accomplished, the Board shall issue to the diverting grower a diversion
certificate stating the weight of cherries diverted. Where diversion is
carried out by leaving the cherries unharvested, the Board shall
estimate the weight of cherries diverted on the basis of such uniform
rule prescribed in rules and regulations as the Board, with the
approval of the Secretary, may recommend to implement this section.
Sec. 930.59 Handler diversion privilege.
(a) In general. Handlers handling cherries harvested in a regulated
district may fulfill any restricted percentage requirement in full or
in part by voluntarily diverting cherries or cherry products in a
program approved by the Board, rather than placing cherries in an
inventory reserve. Upon such diversion and compliance with the
provisions of this section, the Board shall issue to the diverting
handler a handler diversion certificate which shall satisfy any
restricted percentage or diversion requirement to the extent of the
Board or Department inspected weight of the cherries diverted.
(b) Eligible diversion. Handler diversion certificates shall be
issued to handlers only if the cherries are diverted in accordance with
the following terms and conditions or such other terms and conditions
that the Board, with the approval of the Secretary, may establish. Such
diversion may take place in any of the following forms which the Board,
with the approval of the Secretary, may designate: uses exempt under
Sec. 930.62; contribution to a Board approved food bank or other
approved charitable organization; acquisition of grower diversion
certificates that have been issued in accordance with Sec. 930.58; or
other uses, including diversion by destruction of the cherries at the
handler's facilities: Provided, That diversion may not be accomplished
by converting cherries into juice or juice concentrate.
(c) Notification. The handler electing to divert cherries through
means specified in this section or other approved means (not including
uses exempt under Sec. 930.62), shall first notify the Board of such
election. Such notification shall describe in detail the manner in
which the handler proposes to divert cherries including, if the
diversion is to be by means of destruction of the cherries, a detailed
description of the means of destruction and ultimate disposition of the
cherries. It shall also contain an agreement that the proposed
diversion is to be carried out under the supervision of the Board and
that the cost of such supervision is to be paid by the handler. Uniform
fees for such supervision shall be established by the Board, pursuant
to rules and regulations approved by the Secretary.
(d) Application. The handler electing to divert cherries by
utilizing an exemption under Sec. 930.62 shall first apply to the Board
for approval of such diversion; no diversion should take place prior to
such approval. Such application shall describe in detail the uses to
which the diverted cherries will be put. It shall also contain an
agreement that the proposed diversion is to be carried out under the
supervision of the Board and that the cost of such supervision is to be
paid by the applicant. The Board shall notify the applicant of the
Board's approval or disapproval of the submitted application.
(e) Diversion certificate. The Board shall conduct such supervision
of the handler's diversion of cherries under paragraph (c) or under
paragraph (d) of
[[Page 49951]]
this section as may be necessary to assure that the cherries are
diverted. After the diversion has been accomplished, the Board shall
issue to the diverting handler a handler diversion certificate
indicating the weight of cherries which may be used to offset any
restricted percentage requirement.
Sec. 930.60 Equity holders.
(a) Inventory reserve ownership. The inventory reserve shall be the
sole responsibility of the handlers who place products into the
inventory reserve. A handler's equity in the primary inventory reserve
may be transferred to another person upon notification to the Board.
(b) Agreements with growers. Individual handlers are encouraged to
have written agreements with growers who deliver their cherries to the
handler as to how any restricted percentage cherries delivered to the
handler will be handled and what share, if any, the grower will have in
the eventual sale of any inventory reserve cherries.
(c) Rulemaking authority. The Board, with the approval of the
Secretary, may adopt rules and regulations necessary and incidental to
the administration of this section.
930.61 Handler compensation.
Each handler handling cherries from a regulated district that is
subject to volume regulations shall be compensated by the Board for
inspection relating to the primary inventory reserve as the Board may
deem to be appropriate. The Board, with the approval of the Secretary,
may establish such rules and regulations as are necessary and
incidental to the administration of this section.
Sec. 930.62 Exemptions.
The Board, with the approval of the Secretary, may exempt from the
provisions of Sec. 930.41, Sec. 940.44, Sec. 930.51, Sec. 930.53, and
Sec. 930.55 through Sec. 930.57 cherries: Diverted in accordance with
Sec. 930.59; used for new product and new market development; used for
experimental purposes or for any other use designated by the Board,
including cherries processed into products for markets for which less
than 5 percent of the preceding 5-year average production of cherries
were utilized. The Board, with the approval of the Secretary, shall
prescribe such rules, regulations, and safeguards as it may deem
necessary to ensure that cherries handled under the provisions of this
section are handled only as authorized.
Sec. 930.63 Deferment of restricted obligation.
(a) Bonding. The Board, with the approval of the Secretary, may
require handlers to secure bonds on deferred inventory reserve tonnage.
Handlers may, in order to comply with the requirements of Secs. 930.50
and 930.51 and regulations issued thereunder, secure bonds on
restricted percentage cherries to temporarily defer the date that
inventory reserve cherries must be held to any date requested by the
handler. This date shall be not later than 60 days prior to the end of
that crop year. Such deferment shall be conditioned upon the voluntary
execution and delivery by the handler to the Board of a written
undertaking within thirty (30) days after the Secretary announces the
final restricted percentage under Sec. 930.51. Such written undertaking
shall be secured by a bond or bonds with a surety or sureties
acceptable to the Board that on or prior to the acceptable deferred
date the handler will have fully satisfied the restricted percentage
amount required by Sec. 930.51.
(b) Rulemaking authority. The Board, with the approval of the
Secretary, may adopt rules and regulations necessary and incidental to
the administration of this section.
Reports and Records
Sec. 930.70 Reports.
(a) Weekly production, monthly sales, and inventory data. Each
handler shall, upon request of the Board, file promptly with the Board,
reports showing weekly production data; monthly sales and inventory
data; and such other information, including the volume of any cherries
placed in or released from a primary or secondary inventory reserve or
diverted, as the Board shall specify with respect to any cherries
handled by the handler. Such information may be provided to the Board
members in summary or aggregated form only without any reference to the
individual sources of the information.
(b) Other reports. Upon the request of the Board, with the approval
of the Secretary, each handler shall furnish to the Board such other
information with respect to the cherries acquired, handled, stored and
disposed of by such handler as may be necessary to enable the Board to
exercise its powers and perform its duties under this part.
(c) Protection of proprietary information. Under no circumstances
shall any information or reports be made available to the Board
members, or to any person designated by the Board or by the Secretary,
which will reveal the proprietary information of an individual handler.
Sec. 930.71 Records.
Each handler shall maintain such records of all cherries acquired,
handled, stored or sold, or otherwise disposed of as will substantiate
the required reports and as may be prescribed by the Board. All such
records shall be maintained for not less than two years after the
termination of the fiscal year in which the transactions occurred or
for such lesser period as the Board may direct with the approval of the
Secretary.
Sec. 930.72 Verification of reports and records.
For the purpose of assuring compliance and checking and verifying
the reports filed by handlers, the Secretary and the Board, through its
duly authorized agents, shall have access to any premises where
applicable records are maintained, where cherries are received, stored,
or handled, and, at any time during reasonable business hours, shall be
permitted to inspect such handlers premises and any and all records of
such handlers with respect to matters within the purview of this part.
Sec. 930.73 Confidential information.
All reports and records furnished or submitted by handlers to the
Board and its authorized agents which include data or information
constituting a trade secret or disclosing trade position, financial
condition, or business operations of the particular handler from whom
received, shall be received by and at all times kept in the custody and
under the control of one or more employees of the Board or its agent,
who shall disclose such information to no person other than the
Secretary.
Miscellaneous Provisions
Sec. 930.80 Compliance.
Except as provided in this part, no person may handle cherries, the
handling of which has been prohibited by the Secretary under this part,
and no person shall handle cherries except in conformity with the
provisions of this part and the regulations issued hereunder. No person
may handle any cherries for which a diversion certificate has been
issued other than as provided in Sec. 930.58(b) and Sec. 930.59(b).
Sec. 930.81 Right of the Secretary.
Members of the Board (including successors and alternates), and any
agents, employees, or representatives thereof, shall be subject to
removal or suspension by the Secretary at any time.
[[Page 49952]]
Each regulation, decision, determination, or other act of the Board
shall be subject to the Secretary's disapproval at any time. Upon such
disapproval, the disapproved action of the Board shall be deemed null
and void, except as to acts done in reliance thereon or in accordance
therewith prior to such disapproval by the Secretary.
Sec. 930.82 Effective time.
The provisions of this part, and of any amendment thereto, shall
become effective at such time as the Secretary may declare, and shall
continue in force until terminated, or suspended.
Sec. 930.83 Termination.
(a) The Secretary may, at any time, terminate any or all of the
provisions of this part by giving at least 1 day's notice by means of a
press notice or in any other manner in which the Secretary may
determine.
(b) The Secretary shall terminate or suspend the operation of any
or all of the provisions of this part whenever the Secretary finds that
such provisions do not tend to effectuate the declared policy of the
Act.
(c) The Secretary shall terminate the provisions of this part
whenever the Secretary finds by referendum or otherwise that such
termination is favored by a majority of the growers and processors:
Provided, That such majority has, during the current fiscal year,
produced or canned and frozen more than 50 percent of the volume of the
cherries which were produced or processed within the production area.
Such termination shall become effective on the last day of June
subsequent to the announcement thereof by the Secretary.
(d) The Secretary shall conduct a referendum within the month of
March of every sixth year after the effective date of this part to
ascertain whether continuation of this part is favored by the growers
and processors. The Secretary may terminate the provisions of this part
at the end of any fiscal period in which the Secretary has found that
continuance is not favored by a majority of growers and processors who,
during a representative period determined by the Secretary, have been
engaged in the production or processing of tart cherries in the
production area. Such termination shall be announced on or before the
end of the fiscal period.
(e) The provisions of this part shall, in any event, terminate
whenever the provisions of the Act authorizing them cease to be in
effect.
Sec. 930.84 Proceedings after termination.
(a) Upon the termination of the provisions of this part, the then
functioning members of the Board shall, for the purpose of liquidating
the affairs of the Board, continue as trustees of all the funds and
property then in its possession, or under its control, including claims
for any funds unpaid or property not delivered at the time of such
termination.
(b) The said trustees shall:
(1) continue in such capacity until discharged by the Secretary;
(2) from time to time account for all receipts and disbursements
and deliver all property on hand, together with all books and records
of the Board and of the trustees, to such person as the Secretary may
direct; and
(3) upon the request of the Secretary, execute such assignments or
other instruments necessary or appropriate to vest in such person full
title and right to all of the funds, property, and claims vested in the
Board or in the trustees pursuant to this part.
(c) Any person to whom funds, property, and claims have been
transferred or delivered, pursuant to this section, shall be subject to
the same obligations imposed upon the Board and upon the trustees.
Sec. 930.85 Effect of termination or amendment.
Unless otherwise expressly provided by the Secretary, the
termination of this part or of any regulation issued pursuant to this
part, or the issuance of any amendment to either thereof, shall not:
(a) Affect or waive any right, duty, obligation, or liability which
shall have risen or which may thereafter arise in connection with any
provision of this part or any regulation issued thereunder;
(b) Release or extinguish any violation of this part or any
regulation issued thereunder;
(c) Affect or impair any rights or remedies of the Secretary or any
other person with respect to any such violation.
Sec. 930.86 Duration of immunities.
The benefits, privileges, and immunities conferred upon any person
by virtue of this part shall cease upon its termination, except with
respect to acts done under and during the existence of this part.
Sec. 930.87 Agents.
The Secretary may, by designation in writing, name any officer or
employee of the United States, or name any agency or division in the
U.S. Department of Agriculture, to act as the Secretary's agent or
representative in connection with any provisions of this part.
Sec. 930.88 Derogation.
Nothing contained in this part is, or shall be construed to be, in
derogation or in modification of the rights of the Secretary or of the
United States to exercise any powers granted by the Act or otherwise,
or, in accordance with such powers, to act in the premises whenever
such action is deemed advisable.
Sec. 930.89 Personal liability.
No member or alternate member of the Board and no employee or agent
of the Board shall be held personally responsible, either individually
or jointly with others, in any way whatsoever, to any person for errors
in judgment, mistakes, or other acts, either of commission or omission,
as such member, alternate member, employee, or agent, except for acts
of dishonesty, willful misconduct, or gross negligence.
Sec. 930.90 Separability.
If any provision of this part is declared invalid or the
applicability thereof to any person, circumstance, or thing is held
invalid, the validity of the remainder of this part or the
applicability thereof to any other person, circumstance, or thing shall
not be affected thereby.
Sec. 930.91 Amendments.
Amendments to this subpart may be proposed, from time to time, by
the Board or by the Secretary.
Dated: September 19, 1996.
Michael V. Dunn,
Assistant Secretary, Marketing and Regulatory Programs.
[FR Doc. 96-24505 Filed 9-23-96; 8:45 am]
BILLING CODE 3410-02-P
Complete official Federal Register PDF
FR Doc. 96-24463 Higher Education Programs in Modern Foreign Language Training and Area StudiesForeign Language and Area Studies Fellowships Program
[Federal Register Volume 61, Number 186 (Tuesday, September 24, 1996)]
[Rules and Regulations]
[Pages 50200-50205]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-24463]
[[Page 50199]]
_______________________________________________________________________
Part VI
Department of Education
_______________________________________________________________________
34 CFR Part 657
Higher Education Programs in Modern Foreign Language Training and Area
Studies--Foreign Language and Area Studies Fellowships Program; Final
Rule
Federal Register / Vol. 61, No. 186 / Tuesday, September 24, 1996 /
Rules and Regulations
[[Page 50200]]
DEPARTMENT OF EDUCATION
34 CFR Part 657
RIN 1840-AC28
Higher Education Programs in Modern Foreign Language Training and
Area Studies--Foreign Language and Area Studies Fellowships Program
AGENCY: Department of Education.
ACTION: Final regulations.
-----------------------------------------------------------------------
SUMMARY: The Secretary amends the regulations governing the Higher
Education Programs in Modern Foreign Language Training and Area
Studies--Foreign Language and Area Studies (FLAS) Fellowships Program.
These final regulations are needed to improve the application review
process and to update the regulations in light of developments in the
field of foreign language, area, and international studies. In the
spirit of reinventing government, the goal of the final regulations is
to markedly reduce the burden associated with the application process.
These final regulations are intended to (a) Reduce the burden on
applicants and readers by clarifying and restructuring selection
criteria to remove ambiguity and eliminate repetition of information
presented in applications, (b) facilitate funding decisions by
providing a larger point spread for greater differentiation of
rankings, (c) simplify the application process for applicants, improve
the cost-effectiveness of the program, and standardize program
management by adopting the fellowship award allocation system currently
used to administer other Federal fellowship programs, and (d) improve
program quality, efficiency, and flexibility by adopting changes
program management experience shows to be appropriate.
EFFECTIVE DATE: These regulations take effect on October 24, 1996.
FOR FURTHER INFORMATION CONTACT: Cheryl Gibbs, U.S. Department of
Education, 600 Independence Avenue, S.W., Suite 600-B, Portals
Building, Washington, D.C. 20202-5331. Telephone (202) 401-9785.
Individuals who use a telecommunications device for the deaf (TDD) may
call the Federal Information Relay Service (FIRS) at 1-800-877-8339
between 8 a.m. and 8 p.m., Eastern time, Monday through Friday.
SUPPLEMENTARY INFORMATION: The Foreign Language and Area Studies
Fellowships Program is one of several international education programs
authorized under Part A of Title VI of the Higher Education Act of
1965, as amended. The main provisions of the regulations govern the
awarding of grants designed to provide fellowship assistance to
students enrolled in advanced programs of modern foreign language and
area or international studies.
On March 28, 1996, the Secretary published a notice of proposed
rulemaking (NPRM) for this program in the Federal Register (61 FR
14006). The NPRM included a discussion of the proposed changes in the
regulations for the Foreign Language and Area Studies Fellowships
Program by modifying the selection criteria for applications, by
eliminating references to undergraduate programs and fellowship
recipients in keeping with statutory requirements, by adopting a new
system of allocating fellowship awards, by easing restrictions on the
use of fellowship awards abroad, and by clarifying that only academic
year awards may be used for research abroad.
As a result of the comments received, the Secretary has increased
the number of points allocated to the ``Strength of library''
criterion, has replaced the term ``teaching assistants'' with the term
``instructional assistants'' in the appropriate criteria to eliminate
inconsistencies among applicant institutions regarding this position;
has rephrased the ``Quality of the Center's language instructional
program'' criterion to eliminate ambiguity regarding the information
requested on student enrollments and the Center's offerings; and has
eliminated an evaluation factor in Sec. 657.21(a).
Analysis of Comments and Changes
In response to the Secretary's invitation in the NPRM, 87 parties
submitted comments, 74 of which addressed the proposed regulations. An
analysis of the comments and of the changes in the regulations since
the publication of the NPRM follows.
Substantive issues are discussed under the section of the
regulations to which they pertain. Technical and other minor changes--
and suggested changes the Secretary is not legally authorized to make
under the applicable statutory authority--are not addressed. Comments
not related to the proposed regulations are not addressed.
What criteria does the Secretary use in selecting institutions for
an allocation of fellowships? (Sec. 657.21)
--Foreign language and area studies fellowships awardee selection
procedures. (Sec. 657.21(a))
Comments: One commenter suggested decreasing the number of total
points available for this criterion because the factors used to select
FLAS awardees do not necessarily allow readers to differentiate between
academic programs of high quality. The commenter suggested that the
Secretary eliminate the second factor in this criterion because it
requests information that is not relevant to the process for selecting
institutions for an allocation of fellowships.
Discussion: The Secretary believes that the procedures used to
select FLAS awardees are important elements of the grantee's plan of
operation. The Secretary also believes that the first factor in this
criterion covers this information and allows readers to assess the
likelihood of the applicant's meeting the announced competitive
priorities for the FLAS program as well as the potential impact of the
grant. The Secretary agrees that the second element of the criterion,
the extent to which the applicant provides information about current
and prospective applicant-to-award ratios, is not critical to the
readers and should be eliminated to emphasize the importance of the
selection procedures. The Secretary does not wish to decrease the total
number of points for this criterion, however.
Changes: Section 657.21(a)(2) has been eliminated.
--Impact and evaluation. (Sec. 657.21(c))
Comments: One commenter stated that the kinds of quantifiable data
being requested to validate a Center's success may prompt institutions
to submit inflated data. The commenter stated that an applicant's
achievements also may be documented by other unspecified indicators and
urged the Secretary to develop measurements that solicit more relevant
and meaningful feedback.
Discussion: While there are alternative mechanisms that may be
available to measure impact, the Secretary requested outcome-based data
elements because concrete data are needed to assess whether Centers are
fulfilling the purposes contained in the statute and to assess
applicant institutions' comparative strengths. The Secretary
understands the concern over possible inflated data. All applicants,
however, must attest to the accuracy of their applications under the
penalty of perjury and eventual grantees are further subject to the
provisions of the Federal False Claims Act.
Changes: None.
--Strength of library. (Sec. 657.21(e))
Comments: Several commenters favored the inclusion of factors that
evaluate an institution's capacity for electronic access to research
materials and cooperative arrangements for
[[Page 50201]]
sharing library resources. They applauded the Secretary's efforts to
respond to current technological and economic trends affecting
institutions.
One commenter stated that the new factors detracted from
recognizing the exemplary qualities and practices of traditional
research libraries and that emphasis on these alternative strategies
jeopardized institutional incentive for supporting libraries in
resource-allocation plans.
Discussion: The Secretary believes that the inclusion of
information about electronic access to research materials and
cooperative resource-sharing arrangements reflects current national
trends in libraries. The strength of traditional collections still
receives 10 of the possible 15 points for this criterion.
Changes: None.
--Quality of the applicant's non-language instructional program.
(Secs. 657.21(f) and 657.21(g))
Comments: One commenter suggested replacing ``teaching assistants''
with the term ``instructional assistants'' to avoid inconsistencies
among applicant institutions regarding the position description and
duties.
Discussion: The Secretary agrees that this revision is helpful for
the reason stated by the commenter.
Changes: The Secretary has replaced the term ``teaching
assistants'' with the term ``instructional assistants'' in
Secs. 657.21(f)(3) and 657.21(g)(3).
--Quality of the applicant's language instructional program.
(Sec. 657.21(g))
Comments: One commenter was concerned that by limiting student
enrollment information in Sec. 657.21(g)(1) to courses offered directly
by the applicant, the Secretary was not recognizing the importance of
student enrollment in language programs offered by other institutions
(for example, summer study programs) during the course of the students'
overall language study at the applicant institution. The commenter
requested that the Secretary rephrase the criterion to broaden the
enrollment data that can be considered.
Discussion: The Secretary agrees that the extent to which students
from the Center's institution study foreign languages, both at the
institution and through off-campus programs and courses, should be
recognized under this criterion.
Changes: The Secretary has revised Sec. 657.21(g)(1) to include
student enrollment in programs offered by the Center or other
providers.
What is the amount of a fellowship? (Sec. 657.31)
Comments: Most comments received from postsecondary faculty and
administrators supported a standard institutional payment plus
subsistence allowance because this system is equitable for both public
and private institutions of higher education. These commenters also
observed that the system will be more cost-effective and more equitable
than the previous system of allocating FLAS funds.
One commenter asked whether the new cost-of-education allowance
system will permit institutions to reallocate unused portions of
academic year fellowship awards to make awards to additional fellowship
recipients. The commenter noted that frequently there are award
recipients who complete their required courses without having to use
the entire amount of the fellowship award.
Several commenters believed the new cost-of-education allowance
system substantially simplifies institutional administrative procedures
for grantees.
One commenter disagreed that the new cost-of-education allowance
system simplifies grants administration for institutions.
A few commenters opposed a standard institutional payment because
they believed it will inhibit some institutions with high tuition
graduate and professional programs from applying for the fellowships.
The commenters stated that institutions do not have the financial
resources to pay the difference between the standard institutional
payment and high tuition costs, thereby making the fellowship awards
less desirable to potential applicant institutions. One commenter
suggested rectifying this problem by eliminating the requirement that
institutions provide full fellowships to individual students. This
commenter felt that institutions should be allowed to require students
to share the cost of the fellowship.
Two commenters believed that the cost-of-education allowance system
will inhibit professional school students from receiving Foreign
Language and Area Studies Fellowships and that this contradicts the
current competitive priorities for the program.
One commenter added that, if an institution forgoes applying for
Foreign Language and Area Studies Fellowships due to the difference
between the institutional payment and the actual tuition rate, then the
cost-of-education allowance system will prevent access to the
fellowship funds for students at high tuition institutions.
Two commenters disagreed with the Secretary's rationale for using
other graduate fellowship programs, such as Jacob Javits and Patricia
Roberts Harris, as models for the proposed Foreign Language and Area
Studies Fellowships Program cost-of-education allowance system. The
commenters stated that the provisions under those programs differ from
the FLAS program in that those Federal fellowship programs provide the
awards directly to students and do not require institutions to accept
prospective fellowship recipients enrolled in high-cost programs. Those
commenters also claimed that, since the permitted scope of study
conducted under the Javits and Harris fellowships is broader, the
institution is able to make up the difference between the institutional
payment and the actual tuition from across many departments in the
university. The commenters claimed that the FLAS program has a narrower
focus and, therefore, will have a direct impact on only the departments
with international components.
One commenter suggested phasing in the new cost-of-education
allowance system over a three-year period to allow institutions that
receive fellowship grants sufficient time to identify additional
resources to supplement the institution's standard institutional
payment.
Discussion: The Secretary appreciates the comments supporting the
cost-of-education allowance. The Secretary believes this system
provides for an equitable allocation of funds whereby each institution
will receive the same amount per student. The change will enable the
Department and grantee institutions to administer the FLAS program more
effectively. The Secretary believes the allowance system substantially
encourages cost-effectiveness and improves program accountability. In
this era of diminishing budgetary resources, the Secretary believes it
is important to encourage cost-containment and the award of the largest
possible number of fellowships out of limited funds. Without this
change, there is limited disincentive to prevent an institution from
paying itself ``full'' tuition for a smaller number of awards.
Given that the majority of comments received from institutions
supported this change, the Secretary disagrees with the commenters who
suggested that institutions will not be able to support the FLAS
program based on the cost-of-education allowance. The FLAS regulations
allow unused portions of grants (such as institutional payments in
excess of actual tuition costs) to be used by institutions to make
additional fellowship awards.
The Secretary disagrees with the suggestion that the cost-of-
education
[[Page 50202]]
allowance be phased in over three years. The administrative burden and
delayed phase-in would defeat the benefits sought under the cost-of-
education allowance system.
Changes: None.
What are the limitations on the use of funds for overseas
fellowships? (Sec. 657.33(b)(1))
Comments: One commenter supported the provision allowing students
at the beginning proficiency level to use a fellowship award abroad if
an appropriate program in the same language is not available in the
United States. The commenter stated that the revised restriction
provides opportunities for more students to enroll in meaningful
overseas language training programs.
One commenter suggested a revision to indicate that the advanced
level of language proficiency is the preferred eligibility level for
approval to use FLAS awards abroad and that students at the beginning
or intermediate level may use a FLAS award abroad only if equivalent
instruction is not available in the United States.
Discussion: The Secretary believes that the suggested revision
unnecessarily restricts management flexibility for grantees,
particularly in the field of less-commonly-taught languages. The
Secretary disagrees with the commenter's view that only students with
advanced language proficiency should be allowed to use FLAS awards
abroad because beginning and intermediate level students can also
benefit from language study in an immersion environment. The Secretary
believes the language proficiency eligibility requirements and the
conditions for approval to use a fellowship outside the United States
are sufficient to maximize the positive impact of the FLAS program.
Changes: None.
--Other Changes. (Secs. 657.21(c)(2), 657.21(i), and 657.33(b)(1))
Comments: None.
Discussion: In the ``Impact and evaluation'' criterion, the
Secretary believes that requiring that the applicant's evaluation plan
be comprehensive and objective at the time of the submission of the
application emphasizes the importance of the applicant's participation
in and ongoing commitment to improving program quality and efficiency.
Changes: The Secretary has changed ``that will be'' to ``that is''
in Sec. 657.21(c)(2).
Comments: None.
Discussion: The Secretary did not receive comments regarding the
awarding of additional points to applicants. However, the Secretary
believes that the awarding of additional points should be done only
when the Secretary establishes a competitive priority.
Changes: The Secretary has inserted the word ``competitive'' after
the word ``more'' in the ``Priorities'' criterion (Sec. 657.21(i)).
Comments: None.
Discussion: Although the Secretary did not receive comments
concerning whether fellowships for overseas programs were limited to
foreign language studies, the Secretary believes that limiting the use
of fellowships overseas for only foreign language programs at the
specified proficiency levels reinforces the statutory purpose of
providing specialized training opportunities to eligible students.
Changes: The Secretary has added the words ``foreign language''
after the word ``overseas'' in Sec. 657.33(b)(1).
Paperwork Reduction Act of 1995
Under the Paperwork Reduction Act of 1995, no persons are required
to respond to a collection of information unless it displays a valid
OMB control number. The valid OMB control number assigned to the
collection of information in these final regulations is displayed at
the end of the affected section of the regulations.
Intergovernmental Review
This program is subject to the requirements of Executive Order
12372 and the regulations in 34 CFR Part 79. The objective of the
Executive order is to foster an intergovernmental partnership and a
strengthened federalism by relying on processes developed by State and
local government for coordination and review of proposed Federal
financial assistance.
In accordance with the order, this document is intended to provide
early notification of the Department's specific plans and actions for
this program.
Assessment of Educational Impact
In the notice of proposed rulemaking, the Secretary requested
comments on whether the proposed regulations would require transmission
of information that is being gathered by or is available from any other
agency or authority of the United States.
Based on the response to the proposed regulations and on its own
review, the Department has determined that the final regulations in
this document do not require transmission of information that is being
gathered by or is available from any other agency or authority of the
United States.
List of Subjects in 34 CFR Part 657
Colleges and universities, Education, International education,
Reporting and recordkeeping requirements.
Dated: September 18, 1996.
David A. Longanecker,
Assistant Secretary for Postsecondary Education.
(Catalog of Federal Domestic Assistance Number 84.015 National
Resource Centers and Foreign Language and Area Studies Fellowships
Programs.)
The Secretary amends Title 34 of the Code of Federal Regulations by
revising Part 657 to read as follows:
PART 657--FOREIGN LANGUAGE AND AREA STUDIES FELLOWSHIPS PROGRAM
Subpart A--General
Sec.
657.1 What is the Foreign Language and Area Studies Fellowship
Program?
657.2 Who is eligible to receive an allocation of fellowships?
657.3 Who is eligible to receive a fellowship?
657.4 What regulations apply?
657.5 What definitions apply?
Subpart B--How Does an Institution or a Student Submit an Application?
657.10 What combined applications may an institution submit?
657.11 How does a student apply for a fellowship?
Subpart C--How Does the Secretary Select an Institution for an
Allocation of Fellowships?
657.20 How does the Secretary evaluate an institutional application
for an allocation of fellowships?
657.21 What criteria does the Secretary use in selecting
institutions for an allocation of fellowships?
657.22 What priorities may the Secretary establish?
Subpart D--What Conditions Must Be Met By a Grantee and a Fellow?
657.30 What is the duration of and what are the limitations on
fellowships awarded to individuals by institutions?
657.31 What is the amount of a fellowship?
657.32 What is the payment procedure for fellowships?
657.33 What are the limitations on the use of funds for overseas
fellowships?
657.34 Under what circumstances must an institution terminate a
fellowship?
Authority: 20 U.S.C. 1122, unless otherwise noted.
Subpart A--General
Sec. 657.1 What is the Foreign Language and Area Studies Fellowships
Program?
Under the Foreign Language and Area Studies Fellowships Program,
the Secretary awards fellowships, through
[[Page 50203]]
institutions of higher education, to students who are--
(a) Enrolled for graduate training in a Center or program approved
by the Secretary under this part; and
(b) Undergoing performance-based modern foreign language training
or training in a program for which performance-based modern foreign
language instruction is being developed, in combination with area
studies, international studies, or the international aspects of
professional studies.
(Authority: 20 U.S.C. 1122)
Sec. 657.2 Who is eligible to receive an allocation of fellowships?
(a) The Secretary awards an allocation of fellowships to an
institution of higher education or to a combination of institutions of
higher education that--
(1) Operates a Center or program approved by the Secretary under
this part;
(2) Teaches modern foreign languages under a program described in
paragraph (b) of this section; and
(3) In combination with the teaching described in paragraph (a)(2)
of this section--
(i) Provides instruction in the disciplines needed for a full
understanding of the area, regions, or countries in which the foreign
languages are commonly used; or
(ii) Conducts training and research in international studies, the
international aspects of professional and other fields of study, or
issues in world affairs that concern one or more countries.
(b) In teaching those modern foreign languages for which an
allocation of fellowships is made available, the institution must be
either using a program of performance-based training or developing a
performance-based training program.
(c) The Secretary uses the criteria in Sec. 657.21 both to approve
Centers and programs for the purpose of receiving an allocation of
fellowships and to evaluate applications for an allocation of
fellowships.
(d) An institution does not need to receive a grant under the
National Resource Center Program (34 CFR Part 656) to receive an
allocation of fellowships under this part.
(Authority: 20 U.S.C. 1122)
Sec. 657.3 Who is eligible to receive a fellowship?
A student is eligible to receive a fellowship if the student--
(a)(1) Is a citizen or national of the United States; or
(2) Is a permanent resident of the United States;
(b) Is accepted for enrollment or is enrolled--
(1) In an institution receiving an allocation of fellowships; and
(2) In a program that combines modern foreign language training
with--
(i) Area or international studies; or
(ii) Research and training in the international aspects of
professional and other fields of study;
(c) Shows potential for high academic achievement based on such
indices as grade point average, class ranking, or similar measures that
the institution may determine; and
(d) Is enrolled in a program of modern foreign language training in
a language for which the institution has developed or is developing
performance-based instruction.
(Authority: 20 U.S.C. 1122)
Sec. 657.4 What regulations apply?
The following regulations apply to this program:
(a) The regulations in 34 CFR Part 655.
(b) The regulations in this Part 657.
(Authority: 20 U.S.C. 1122)
Sec. 657.5 What definitions apply?
The following definitions apply to this part:
(a) The definitions in 34 CFR 655.4.
(b) Center means an administrative unit of an institution of higher
education that has direct access to highly qualified faculty and
library resources, and coordinates a concentrated effort of educational
activities, including training in modern foreign languages and various
academic disciplines, in its subject area.
(c) Fellow means a person who receives a fellowship under this
part.
(d) Fellowship means the payment a fellow receives under this part.
(e) Program means a concentration of educational resources and
activities in modern foreign language training and related studies.
(Authority: 20 U.S.C. 1122)
Subpart B--How Does an Institution or a Student Submit an
Application?
Sec. 657.10 What combined application may an institution submit?
An institution that wishes to apply for an allocation of
fellowships and for a grant to operate a Center under 34 CFR Part 656
may submit a combined application for both grants to the Secretary.
(Authority: 20 U.S.C. 1122)
Sec. 657.11 How does a student apply for a fellowship?
(a) A student shall apply for a fellowship directly to an
institution of higher education that has received an allocation of
fellowships.
(b) The applicant shall provide sufficient information to enable
the institution to determine whether he or she is eligible to receive a
fellowship and whether he or she should be selected to receive a
fellowship.
(Authority: 20 U.S.C. 1122)
Subpart C--How Does the Secretary Select an Institution for an
Allocation of Fellowships?
Sec. 657.20 How does the Secretary evaluate an institutional
application for an allocation of fellowships?
(a) The Secretary evaluates an application for an allocation of
fellowships on the basis of the quality of the applicant's Center or
program. The applicant's Center or program is evaluated and approved
under the criteria in Sec. 657.21.
(b) In general, the Secretary awards up to 140 possible points for
these criteria. However, if priority criteria are used, the Secretary
awards up to 150 possible points. The maximum possible points for each
criterion are shown in parentheses.
(Authority: 20 U.S.C. 1122)
Sec. 657.21 What criteria does the Secretary use in selecting
institutions for an allocation of fellowships?
(a) Foreign language and area studies fellowships awardee selection
procedures. (15 points) The Secretary reviews each application to
determine whether the selection plan is of high quality, showing how
awards will be advertised, how students apply, what selection criteria
are used, who selects the fellows, when each step will take place, and
how the process will result in awards being made to correspond to any
announced priorities.
(b) Quality of staff resources. (15 points) The Secretary reviews
each application to determine--
(1) The extent to which teaching faculty and other staff are
qualified for the current and proposed activities and training
programs, are provided professional development opportunities
(including overseas experience), and participate in teaching,
supervising, and advising students (5 points);
(2) The adequacy of applicant staffing and oversight arrangements
and the extent to which faculty from a variety of departments,
professional schools, and the library are involved (5 points); and
(3) The extent to which the applicant, as part of its
nondiscriminatory employment practices, encourages applications for
employment from persons who are members of groups that
[[Page 50204]]
have been traditionally underrepresented, such as members of racial or
ethnic minority groups, women, persons with disabilities, and the
elderly (5 points).
(c) Impact and evaluation. (20 points) The Secretary reviews each
application to determine--
(1) The extent to which the applicant's activities and training
programs have contributed to an improved supply of specialists on the
program's subject as shown through indices such as graduate enrollments
and placement data; and the extent to which the applicant supplies a
clear description of how the applicant will provide equal access and
treatment of eligible project participants who are members of groups
that have been traditionally underrepresented, such as members of
racial or ethnic minority groups, women, persons with disabilities, and
the elderly (15 points); and
(2) The extent to which the applicant provides an evaluation plan
that is comprehensive and objective and that will produce quantifiable,
outcome-measure-oriented data; and the extent to which recent
evaluations have been used to improve the applicant's program (5
points).
(d) Commitment to the subject area on which the applicant or
program focuses. (10 points) The Secretary reviews each application to
determine--
(1) The extent to which the institution provides financial and
other support to the operation of the applicant, teaching staff for the
applicant's subject area, library resources, and linkages with
institutions abroad (5 points); and
(2) The extent to which the institution provides financial support
to graduate students in fields related to the applicant's teaching
program (5 points).
(e) Strength of library. (15 points) The Secretary reviews each
application to determine--
(1) The strength of the institution's library holdings (both print
and non-print, English and foreign language) for graduate students; and
the extent to which the institution provides financial support for the
acquisition of library materials and for library staff in the subject
area of the applicant (10 points); and
(2) The extent to which research materials at other institutions
are available to students through cooperative arrangements with other
libraries or on-line databases (5 points).
(f) Quality of the applicant's non-language instructional program.
(25 points) The Secretary reviews each application to determine--
(1) The quality and extent of the applicant's course offerings in a
variety of disciplines, including the extent to which courses in the
applicant's subject matter are available in the institution's
professional schools (10 points);
(2) The extent to which the applicant offers depth of specialized
course coverage in one or more disciplines on the applicant's subject
area (5 points);
(3) The extent to which the institution employs a sufficient number
of teaching faculty to enable the applicant to carry out its purposes
and the extent to which instructional assistants are provided with
pedagogy training (5 points); and
(4) The extent to which interdisciplinary courses are offered for
graduate students (5 points).
(g) Quality of the applicant's language instructional program. (20
points) The Secretary reviews each application to determine--
(1) The extent to which the applicant provides instruction in the
languages of the applicant's subject area and the extent to which
students enroll in the study of the languages of the subject area
through programs or instruction offered by the applicant or other
providers (5 points);
(2) The extent to which the applicant provides three or more levels
of language training and the extent to which courses in disciplines
other than language, linguistics, and literature are offered in
appropriate foreign languages (5 points);
(3) Whether sufficient numbers of language faculty are available to
teach the languages and levels of instruction described in the
application and the extent to which language teaching staff (including
faculty and instructional assistants) have been exposed to current
language pedagogy training appropriate for performance-based teaching
(5 points); and
(4) The quality of the language program as measured by the
performance-based instruction being used or developed, the adequacy of
resources for language teaching and practice, and language proficiency
requirements (5 points).
(h) Quality of curriculum design. (20 points) The Secretary reviews
each application to determine--
(1) The extent to which the applicant's curriculum provides
training options for graduate students from a variety of disciplines
and professional fields and the extent to which these programs and
their requirements (including language requirements) are appropriate
for an applicant in this subject area and result in graduate training
programs of high quality (10 points);
(2) The extent to which the applicant provides academic and career
advising services for students (5 points); and
(3) The extent to which the applicant has established formal
arrangements for students to conduct research or study abroad and the
extent to which these arrangements are used; and the extent to which
the institution facilitates student access to other institutions' study
abroad and summer language programs (5 points).
(i) Priorities. (10 points) If one or more competitive priorities
have been established under Sec. 657.22, the Secretary reviews each
application for information that shows the extent to which the Center
or program meets these priorities.
(Approved by the Office of Management and Budget under control number
1840-0068)
(Authority: 20 U.S.C. 1122)
Sec. 657.22 What priorities may the Secretary establish?
(a) The Secretary may establish one or more of the following
priorities for the allocation of fellowships:
(1) Specific world areas, or countries, such as East Asia or
Mexico.
(2) Languages, such as Chinese.
(3) Levels of language offerings.
(4) Academic disciplines, such as linguistics or sociology.
(5) Professional studies, such as business, law, or education;
(6) Particular subjects, such as population growth and planning, or
international trade and business.
(7) A combination of any of these categories.
(b) The Secretary announces any priorities in the application
notice published in the Federal Register.
(Authority: 20 U.S.C. 1122)
Subpart D--What Conditions Must Be Met by a Grantee and a Fellow?
Sec. 657.30 What is the duration of and what are the limitations on
fellowships awarded to individuals by institutions?
(a) Duration. An institution may award a fellowship to a student
for--
(1) One academic year; or
(2) One summer session if the summer session provides the fellow
with the equivalent of one academic year of modern foreign language
study.
(b) Vacancies. If a fellow vacates a fellowship before the end of
an award period, the institution to which the fellowship is allocated
may reaward the balance of the fellowship to another student if--
(1) The student meets the eligibility requirements in Sec. 657.3;
and
(2) The remaining fellowship period comprises at least one full
academic
[[Page 50205]]
quarter, semester, trimester, or summer session as described in
paragraph (a)(2) of this section.
(Authority: 20 U.S.C. 1122)
Sec. 657.31 What is the amount of a fellowship?
(a)(1) An institution shall award a stipend to fellowship
recipients.
(2) Each fellowship includes an institutional payment and a
subsistence allowance to be determined by the Secretary.
(3) If the institutional payment determined by the Secretary is
greater than the tuition and fees charged by the institution, the
institutional payment portion of the fellowship is limited to actual
tuition and fees. The difference between actual tuition and fees and
the Secretary's institutional payment shall be used to fund additional
fellowships to the extent that funds are available for a full
subsistence allowance.
(4) If permitted by the Secretary, the fellowship may include an
allowance for travel and an allowance for dependents.
(b) The Secretary announces in an application notice published in
the Federal Register--
(1) The amounts of the subsistence allowance and the institutional
payment for an academic year and the subsistence allowance and the
institutional payment for a summer session;
(2) Whether travel and dependents' allowances will be permitted;
and
(3) The amount of travel and dependents' allowances.
(Authority: 20 U.S.C. 1122)
Sec. 657.32 What is the payment procedure for fellowships?
(a) An institution shall pay a fellow his or her subsistence and
any other allowance in installments during the term of the fellowship.
(b) An institution shall make a payment only to a fellow who is in
good standing and is making satisfactory progress.
(c) The institution shall make appropriate adjustments of any
overpayment or underpayment to a fellow.
(d) Funds not used by one recipient for reasons of withdrawal are
to be used for alternate recipients to the extent that funds are
available for a full subsistence allowance.
(Authority: 20 U.S.C. 1122)
Sec. 657.33 What are the limitations on the use of funds for overseas
fellowships?
(a) Before awarding a fellowship for use outside the United States,
an institution shall obtain the approval of the Secretary.
(b) The Secretary may approve the use of a fellowship outside the
United States if the student is--
(1) Enrolled in an overseas foreign language program approved by
the institution at which the student is enrolled in the United States
for study at an intermediate or advanced level or at the beginning
level if appropriate equivalent instruction is not available in the
United States; or
(2) Engaged during the academic year in research that cannot be
done effectively in the United States and is affiliated with an
institution of higher education or other appropriate organization in
the host country.
(Authority: 20 U.S.C. 1122)
Sec. 657.34 Under what circumstances must an institution terminate a
fellowship?
An institution shall terminate a fellowship if--
(a) The fellow is not making satisfactory progress, is no longer
enrolled, or is no longer in good standing at the institution; or
(b) The fellow fails to follow the course of study, including
modern foreign language study, for which he or she applied, unless a
revised course of study is otherwise approvable under this part.
(Authority: 20 U.S.C. 1122)
[FR Doc. 96-24463 Filed 9-23-96; 8:45 am]
BILLING CODE 4000-01-P
Complete official Federal Register PDF
FR Doc. 96-24462 Higher Education Programs in Modern Foreign Language Training and Area StudiesNational Resource Centers Program for Foreign Language and Area Studies or Foreign Language and International Studies
[Federal Register Volume 61, Number 186 (Tuesday, September 24, 1996)]
[Rules and Regulations]
[Pages 50192-50197]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-24462]
[[Page 50191]]
_______________________________________________________________________
Part V
Department of Education
_______________________________________________________________________
34 CFR Part 656
Higher Education Programs in Modern Foreign Language Training and Area
Studies; Final Rule
Federal Register / Vol. 61, No. 186 / Tuesday, September 24, 1996 /
Rules and Regulations
[[Page 50192]]
DEPARTMENT OF EDUCATION
34 CFR Part 656
RIN 1840-AC27
Higher Education Programs in Modern Foreign Language Training and
Area Studies--National Resource Centers Program for Foreign Language
and Area Studies or Foreign Language and International Studies
AGENCY: Department of Education.
ACTION: Final regulations.
-----------------------------------------------------------------------
SUMMARY: The Secretary amends the regulations governing the Higher
Education Programs in Modern Foreign Language Training and Area
Studies--National Resource Centers Program for Foreign Language and
Area Studies or Foreign Language and International Studies (National
Resource Centers Program). These final regulations are needed to
improve the application review process and to update the regulations in
light of developments in the field of foreign language, area, and
international studies. In the spirit of reinventing government, the
goal of the final regulations is to markedly reduce the burden
associated with the application process. These final regulations (a)
reduce the burden on applicants and readers by clarifying and
redesigning selection criteria to remove ambiguity and eliminate
repetition of information presented in applications, (b) facilitate
grantee selection by providing a larger point spread for greater
differentiation of rankings, and (c) improve program quality,
efficiency, and flexibility by adding changes program management
experience shows to be appropriate.
EFFECTIVE DATE: These regulations take effect on October 24, 1996.
FOR FURTHER INFORMATION CONTACT: Cheryl Gibbs, U.S. Department of
Education, 600 Independence Avenue, S.W., Suite 600-B, Portals
Building, Washington, D.C. 20202-5331. Telephone (202) 401-9785.
Individuals who use a telecommunications device for the deaf (TDD) may
call the Federal Information Relay Service (FIRS) at 1-800-877-8339
between 8 a.m. and 8 p.m., Eastern time, Monday through Friday.
SUPPLEMENTARY INFORMATION: The National Resource Centers Program is one
of several international education programs authorized under Part A of
Title VI of the Higher Education Act of 1965, as amended. The main
provisions of the regulations govern the awarding of grants designed to
assist eligible institutions of higher education in improving and
developing their programs in modern foreign languages and area or
international studies.
On March 28, 1996, the Secretary published a notice of proposed
rulemaking (NPRM) for this program in the Federal Register (61 FR
13996). The NPRM included a discussion of the proposed changes in the
regulations for the National Resource Centers Program by modifying the
selection criteria for applications and by adding activities to the
list of definitions and to the list of priorities.
As a result of the comments received, the Secretary has increased
the number of points allocated to the ``Strength of library''
criterion; has replaced the term ``teaching assistants'' with the term
``instructional assistants'' in two criteria to eliminate
inconsistencies among applicant institutions regarding the position
description and duties; and has rephrased the ``Quality of the Center's
language instructional program'' criterion to eliminate ambiguity
regarding the information requested on student enrollments and the
Center's offerings.
Analysis of Comments and Changes
In response to the Secretary's invitation in the NPRM, 87 parties
submitted comments, 74 of which addressed the proposed regulations. An
analysis of the comments and of the changes in the regulations since
the publication of the NPRM follows.
Substantive issues are discussed under the section of the
regulations to which they pertain. Technical and other minor changes--
and suggested changes the Secretary is not legally authorized to make
under the applicable statutory authority--are not addressed.
What selection criteria does the Secretary use to evaluate an
application for a comprehensive Center? (Sec. 656.21)
What selection criteria does the Secretary use to evaluate an
application for an undergraduate Center? (Sec. 656.22)
--Impact and evaluation. (Secs. 656.21(c) and 656.22(c))
Comments: One commenter stated that the kinds of quantifiable data
being requested to validate a Center's success may prompt institutions
to submit inflated data. The commenter stated that a Center's
achievements may be documented by other unspecified indicators and
urged the Secretary to develop measurements that solicit more relevant
and meaningful feedback.
Discussion: While there are alternative mechanisms available to
measure impact, the Secretary requested outcome-based data elements
because concrete data are needed to assess whether Centers are
fulfilling the purposes contained in the statute and to assess
applicant institutions' comparative strengths. The Secretary
understands the concern over possible inflated data. All applicants,
however, must attest to the accuracy of their applications under the
penalty of perjury and eventual grantees are further subject to the
provisions of the Federal False Claims Act.
Changes: None.
--Strength of library. (Secs. 656.21(e) and 656.22(e))
Comments: Several commenters favored the inclusion of factors that
evaluate an institution's capacity for electronic access to research
materials and cooperative arrangements for sharing library resources.
They applauded the Secretary's efforts to respond to current
technological and economic trends affecting institutions.
One commenter stated that the new factors detracted from
recognizing the exemplary qualities and practices of traditional
research libraries and that emphasis on alternative arrangements
jeopardized institutional incentive for supporting libraries in
resource-allocation plans.
Several commenters opposed the allocation of only 10 points out of
160 total points, which reduced the proportion of points for this
criterion in comparison with the previous regulations. They questioned
whether the decrease reflects the Secretary's perception of the role an
institution's library plays in promoting the goals of national Centers.
They believed the Secretary ought to increase the number of points
allocated to this criterion from 10 to 15 or 16 points to effectively
assess institutional support for and the impact of library resources on
the Center's area and language programs, research, and academic
training needs.
Discussion: The Secretary agrees that an institution's library
acquisitions and human resources are important to ensuring high
quality, successful Centers. The Secretary agrees that the points
allocated to this criterion should be increased to avoid de-emphasizing
the importance of library resources.
Changes: The Secretary has increased the allocation of points for
this criterion from 10 to 15 points.
--Quality of the Center's non-language instructional program.
(Secs. 656.21(f) and 656.22(f))
--Quality of the Center's language instructional program.
(Secs. 656.21(g) and 656.22(g))
[[Page 50193]]
Comments: One commenter suggested replacing ``teaching assistants''
with the term ``instructional assistants'' to avoid inconsistencies
among applicant institutions regarding the position description and
duties.
Discussion: The Secretary agrees that this revision is helpful for
the reason stated by the commenter.
Changes: The Secretary has replaced the term ``teaching
assistants'' with the term ``instructional assistants'' in
Secs. 656.21(f)(3), 656.21(g)(3), 656.22(f)(3), and 656.22(g)(3).
--Quality of the Center's language instructional program.
(Secs. 656.21(g) and 656.22(g))
Comments: One commenter was concerned that by limiting student
enrollment information in Secs. 656.21(g)(1) and 656.22(g)(1) to
courses offered directly by the applicant, the Secretary was not
recognizing the importance of student enrollment in language programs
offered by other institutions (for example, summer study programs)
during the course of the students' overall language study at the
applicant institution. The commenter requested that the Secretary
rephrase the criterion to broaden the enrollment data that can be
considered.
Discussion: The Secretary agrees that enrollment in language
programs not offered directly by the Center, but nevertheless
incorporated into a student's program of study, should be recognized
under this criterion.
Changes: The Secretary has revised Secs. 656.21(g)(1) and
656.22(g)(1) to include student enrollment in programs offered by the
Center or other providers.
--Outreach activities. (Secs. 656.21(i) and 656.22(i))
Comments: A few commenters supported the increase in points for
outreach; however, one stated that the equal distribution of evaluation
points among the outreach areas penalizes institutions that have
developed particularly effective and exemplary initiatives in one of
the outreach areas.
One commenter requested an addition of points beyond the increase
proposed to reflect a more realistic valuation of the extensive efforts
undertaken by institutions to maintain successful outreach activities.
One commenter was concerned that it may be more difficult for
applicant institutions located in rural settings to establish and
maintain business and media activities of sufficient strength to
demonstrate national and regional impact.
Discussion: The Secretary believes the proposed scope of outreach
functions and their point allocations are sufficient to enable all
applicant institutions to demonstrate a meaningful impact at the
national and regional levels. The Secretary also believes that it is
appropriate to expect national Centers to engage in outreach to all
three areas, given the purpose of the program.
Changes: None.
--Other Changes. (Secs. 656.21(c)(2), 656.22(c)(2), 656.21(i),
656.22(i), 656.21(j), and 656.22(j))
Comments: None.
Discussion: In the ``Impact and evaluation'' criterion, the
Secretary believes that requiring that the applicant's evaluation plan
be comprehensive and objective at the time of the submission of the
application emphasizes the importance of the applicant's participation
in and ongoing commitment to improving program quality and efficiency.
Changes: The Secretary has changed ``that will be'' to ``that is''
in Secs. 656.21(c)(2) and 656.22(c)(2).
Comments: None.
Discussion: The Secretary did not receive comments regarding
whether the ``Outreach activities'' criterion involves foreign or
domestic communities. However, the Secretary believes that clarifying
that these activities involve communities located in the United States
avoids confusion and is consistent with the regional and national
impact of the activities.
Changes: The Secretary has added the word ``domestic'' after the
words ``involvement in,'' in Secs. 656.21(i) and 656.22(i).
Comments: None.
Discussion: The Secretary did not receive comments regarding the
awarding of additional points to applicants. However, the Secretary
believes that the awarding of additional points should be done only
when the Secretary establishes a competitive priority.
Changes: The Secretary has changed ``specific'' to ``competitive''
in the ``Degree to which priorities are served'' criterion in
Secs. 656.21(j) and 656.22(j).
Paperwork Reduction Act of 1995
Under the Paperwork Reduction Act of 1995, no persons are required
to respond to a collection of information unless it displays a valid
OMB control number. The valid OMB control number assigned to the
collections of information in these final regulations is displayed at
the end of the affected sections of the regulations.
Intergovernmental Review
This program is subject to the requirements of Executive Order
12372 and the regulations in 34 CFR Part 79. The objective of the
Executive order is to foster an intergovernmental partnership and a
strengthened federalism by relying on processes developed by State and
local government for coordination and review of proposed Federal
financial assistance.
In accordance with the order, this document is intended to provide
early notification of the Department's specific plans and actions for
this program.
Assessment of Educational Impact
In the notice of proposed rulemaking, the Secretary requested
comments on whether the proposed regulations would require transmission
of information that is being gathered by or is available from any other
agency or authority of the United States.
Based on the response to the proposed regulations and on its own
review, the Department has determined that the final regulations in
this document do not require transmission of information that is being
gathered by or is available from any other agency or authority of the
United States.
List of Subjects in 34 CFR Part 656
Colleges and universities, Education, International education,
Reporting and recordkeeping requirements.
Dated: September 18, 1996.
David A. Longanecker,
Assistant Secretary for Postsecondary Education.
(Catalog of Federal Domestic Assistance Number 84.015 National
Resource Centers and Foreign Language and Area Studies Fellowships
Programs.)
The Secretary amends Title 34 of the Code of Federal Regulations by
revising Part 656 to read as follows:
PART 656--NATIONAL RESOURCE CENTERS PROGRAM FOR FOREIGN LANGUAGE
AND AREA STUDIES OR FOREIGN LANGUAGE AND INTERNATIONAL STUDIES
Subpart A--General
Sec.
656.1 What is the National Resource Centers Program?
656.2 Who is eligible to receive a grant?
656.3 What activities define a comprehensive or undergraduate
National Resource Center?
656.4 What types of Centers receive grants?
656.5 What activities may be carried out?
656.6 What regulations apply?
656.7 What definitions apply?
[[Page 50194]]
Subpart B--How Does One Apply for a Grant?
656.10 What combined application may an institution submit?
Subpart C--How Does the Secretary Make a Grant?
656.20 How does the Secretary evaluate an application?
656.21 What selection criteria does the Secretary use to evaluate
an application for a comprehensive Center?
656.22 What selection criteria does the Secretary use to evaluate
an application for an undergraduate Center?
656.23 What priorities may the Secretary establish?
Subpart D--What Conditions Must Be Met by a Grantee?
656.30 What are allowable costs and limitations on allowable costs?
Authority: 20 U.S.C. 1122, unless otherwise noted.
Subpart A--General
Sec. 656.1 What is the National Resource Centers Program?
Under the National Resource Centers Program for Foreign Language
and Areas Studies or Foreign Language and International Studies
(National Resource Centers Program), the Secretary awards grants to
institutions of higher education and combinations of institutions to
establish, strengthen, and operate comprehensive and undergraduate
Centers that will be national resources for--
(a) Stimulating the attainment of foreign language acquisition and
fluency;
(b) Instruction in fields needed to provide a full understanding of
the areas, regions, or countries in which the foreign language is
commonly used;
(c) Research and training in international studies and the
international and foreign language aspects of professional and other
fields of study; and
(d) Instruction and research on issues in world affairs which
concern one or more countries.
(Authority: 20 U.S.C. 1122)
Sec. 656.2 Who is eligible to receive a grant?
An institution of higher education or a combination of institutions
of higher education is eligible to receive a grant under this part.
(Authority: 20 U.S.C. 1122)
Sec. 656.3 What activities define a comprehensive or undergraduate
National Resource Center?
A comprehensive or undergraduate National Resource Center--
(a) Teaches at least one modern foreign language;
(b) Provides--
(1) Instruction in fields necessary to provide a full understanding
of the areas, regions, or countries in which the languages taught are
commonly used;
(2) Resources for training and research in international and
foreign language aspects of professional and other fields of study; or
(3) Opportunities for training and research on issues in world
affairs that concern one or more countries;
(c) Provides outreach and consultative services on a national,
regional, and local basis;
(d) Maintains linkages with overseas institutions of higher
education and other organizations that may contribute to the teaching
and research of the Center;
(e) In the case of a comprehensive Center--
(1) Maintains specialized library collections; and
(2) Employs scholars engaged in training and research that relates
to the subject area of the Center; and
(f) In the case of an undergraduate Center--
(1) Maintains library holdings, including basic reference works,
journals, and works in translation; and
(2) Employs faculty with strong credentials in language, area, and
international studies.
(Authority: 20 U.S.C. 1122)
Sec. 656.4 What types of Centers receive grants?
The Secretary awards grants to Centers that--
(a) Focus on--
1) A single country or on a world area (such as East Asia, Africa,
or the Middle East) and offer instruction in the principal language or
languages of that country or area and those disciplinary fields
necessary to provide a full understanding of the country or area; or
(2) International studies or the international aspects of
contemporary issues or topics (such as international business or
energy) while providing instruction in modern foreign languages; and
(b) Provide training at the--
(1) Graduate, professional, and undergraduate levels, as a
comprehensive Center; or
(2) Undergraduate level only, as an undergraduate Center.
(Authority: 20 U.S.C. 1122)
Sec. 656.5 What activities may be carried out?
(a) A Center may carry out any of the activities described in
Sec. 656.3 under a grant received under this part.
(b) The Secretary may make an additional grant to a comprehensive
Center for any one or a combination of the following purposes:
(1) Linkage or outreach between foreign language, area studies, and
other international fields and professional schools and colleges.
(2) Linkage or outreach with 2- and 4-year colleges and
universities.
(3) Linkage or outreach with departments or agencies of Federal and
State governments.
(4) Linkage or outreach with the news media, business,
professional, or trade associations.
(5) Summer institutes in foreign area and other international
fields designed to carry out the activities in paragraphs (b)(1)
through (4) of this section.
(Authority: 20 U.S.C. 1122)
Sec. 656.6 What regulations apply?
The following regulations apply to this program:
(a) The regulations in 34 CFR Part 655.
(b) The regulations in this Part 656.
(Authority: 20 U.S.C. 1122)
Sec. 656.7 What definitions apply?
The following definitions apply to this part:
(a) The definitions in 34 CFR Part 655.
(b) Area studies means a program of comprehensive study of the
aspects of a world area's society or societies, including study of
history, culture, economy, politics, international relations, and
languages.
(c) Center means an administrative unit of an institution of higher
education that has direct access to highly qualified faculty and
library resources, and coordinates a concentrated effort of educational
resources, including language training and various academic
disciplines, in the area and subject matters described in Sec. 656.3.
(d) Comprehensive Center means a Center that--
(1) Contributes significantly to the national interest in advanced
research and scholarship;
(2) Offers intensive language instruction;
(3) Maintains important library collections related to the area of
its specialization;
(4) Makes training available to a graduate, professional, and
undergraduate clientele; and
(5) Engages in curriculum development and community outreach.
(e) For purposes of this section, intensive language instruction
means instruction of at least five contact hours per week during the
academic year or the equivalent of a full academic year of
[[Page 50195]]
language instruction during the summer.
(f) Undergraduate Center means an administrative unit of an
institution of higher education that--
(1) Contributes significantly to the national interest through the
education of students who matriculate into advanced language and area
studies programs or professional school programs;
(2) Incorporates substantial international and foreign language
content into baccalaureate degree program;
(3) Makes training available predominantly to undergraduate
students; and
(4) Engages in research, curriculum development, and community
outreach.
(Authority: 20 U.S.C. 1122)
Subpart B--How Does One Apply for a Grant?
Sec. 656.10 What combined application may an institution submit?
An institution that wishes to apply for a grant under this part and
for an allocation of fellowships under 34 CFR Part 657 may submit one
application for both.
(Authority: 20 U.S.C. 1122)
Subpart C--How Does the Secretary Make a Grant?
Sec. 656.20 How does the Secretary evaluate an application?
(a) The Secretary evaluates an application for a comprehensive
Center under the criteria contained in Sec. 656.21, and for an
undergraduate Center under the criteria contained in Sec. 656.22.
(b) In general, the Secretary awards up to 155 possible points for
these criteria. However, if the criterion in Sec. 656.21(j) or
Sec. 656.22(j) is used, the Secretary awards up to 165 possible points.
The maximum possible points for each criterion are shown in
parentheses.
(Authority: 20 U.S.C. 1122)
Sec. 656.21 What selection criteria does the Secretary use to evaluate
an application for a comprehensive Center?
The Secretary uses the following criteria in evaluating an
application for a comprehensive Center:
(a) Program planning and budget. (20 points) The Secretary reviews
each application to determine--
(1) The extent to which the activities for which the applicant
seeks funding are of high quality and directly related to the purpose
of the National Resource Centers Program (5 points);
(2) The extent to which the applicant provides a development plan
or timeline demonstrating how the proposed activities will contribute
to a strengthened program and whether the applicant uses its resources
and personnel effectively to achieve the proposed objectives (5
points);
(3) The extent to which the costs of the proposed activities are
reasonable in relation to the objectives of the program (5 points); and
(4) The long-term impact of the proposed activities on the
institution's undergraduate, graduate, and professional training
programs (5 points).
(b) Quality of staff resources. (20 points) The Secretary reviews
each application to determine--
(1) The extent to which teaching faculty and other staff are
qualified for the current and proposed Center activities and training
programs, are provided professional development opportunities
(including overseas experience), and participate in teaching,
supervising, and advising students (10 points);
(2) The adequacy of Center staffing and oversight arrangements,
including outreach and administration and the extent to which faculty
from a variety of departments, professional schools, and the library
are involved (5 points); and
(3) The extent to which the applicant, as part of its
nondiscriminatory employment practices, encourages applications for
employment from persons who are members of groups that have been
traditionally underrepresented, such as members of racial or ethnic
minority groups, women, persons with disabilities, and the elderly (5
points).
(c) Impact and evaluation. (20 points) The Secretary reviews each
application to determine--
(1) The extent to which the Center's activities and training
programs have a significant impact on the university, community,
region, and the Nation as shown through indices such as enrollments,
graduate placement data, participation rates for events, and usage of
Center resources; and the extent to which the applicant supplies a
clear description of how the applicant will provide equal access and
treatment of eligible project participants who are members of groups
that have been traditionally underrepresented, such as members of
racial or ethnic minority groups, women, persons with disabilities, and
the elderly (10 points); and
(2) The extent to which the applicant provides an evaluation plan
that is comprehensive and objective and that will produce quantifiable,
outcome-measure-oriented data; and the extent to which recent
evaluations have been used to improve the applicant's program (10
points).
(d) Commitment to the subject area on which the Center focuses. (10
points) The Secretary reviews each application to determine the extent
to which the institution provides financial and other support to the
operation of the Center, teaching staff for the Center's subject area,
library resources, linkages with institutions abroad, outreach
activities, and qualified students in fields related to the Center.
(e) Strength of library. (15 points) The Secretary reviews each
application to determine--
(1) The strength of the institution's library holdings (both print
and non-print, English and foreign language) in the subject area and at
the educational levels (graduate, professional, undergraduate) on which
the Center focuses; and the extent to which the institution provides
financial support for the acquisition of library materials and for
library staff in the subject area of the Center (10 points); and
(2) The extent to which research materials at other institutions
are available to students through cooperative arrangements with other
libraries or on-line databases and the extent to which teachers,
students, and faculty from other institutions are able to access the
library's holdings (5 points).
(f) Quality of the Center's non-language instructional program. (20
points) The Secretary reviews each application to determine--
(1) The quality and extent of the Center's course offerings in a
variety of disciplines, including the extent to which courses in the
Center's subject matter are available in the institution's professional
schools (5 points);
(2) The extent to which the Center offers depth of specialized
course coverage in one or more disciplines of the Center's subject area
(5 points);
(3) The extent to which the institution employs a sufficient number
of teaching faculty to enable the Center to carry out its purposes and
the extent to which instructional assistants are provided with pedagogy
training (5 points); and
(4) The extent to which interdisciplinary courses are offered for
undergraduate and graduate students (5 points).
(g) Quality of the Center's language instructional program. (20
points) The Secretary reviews each application to determine--
(1) The extent to which the Center provides instruction in the
languages of the Center's subject area and the extent to which students
enroll in the study of
[[Page 50196]]
the languages of the subject area through programs or instruction
offered by the Center or other providers (5 points);
(2) The extent to which the Center provides three or more levels of
language training and the extent to which courses in disciplines other
than language, linguistics, and literature are offered in appropriate
foreign languages (5 points);
(3) Whether sufficient numbers of language faculty are available to
teach the languages and levels of instruction described in the
application and the extent to which language teaching staff (including
faculty and instructional assistants) have been exposed to current
language pedagogy training appropriate for performance-based teaching
(5 points); and
(4) The quality of the language program as measured by the
performance-based instruction being used or developed, the adequacy of
resources for language teaching and practice, and language proficiency
requirements (5 points).
(h) Quality of curriculum design. (15 points) The Secretary reviews
each application to determine--
(1) The extent to which the Center's curriculum has incorporated
undergraduate instruction in the applicant's area or topic of
specialization into baccalaureate degree programs (for example, major,
minor, or certificate programs) and the extent to which these programs
and their requirements (including language requirements) are
appropriate for a Center in this subject area and will result in an
undergraduate training program of high quality (5 points);
(2) The extent to which the Center's curriculum provides training
options for graduate students from a variety of disciplines and
professional fields and the extent to which these programs and their
requirements (including language requirements) are appropriate for a
Center in this subject area and result in graduate training programs of
high quality (5 points); and
(3) The extent to which the Center provides academic and career
advising services for students; the extent to which the Center has
established formal arrangements for students to conduct research or
study abroad and the extent to which these arrangements are used; and
the extent to which the institution facilitates student access to other
institutions' study abroad and summer language programs (5 points).
(i) Outreach activities. (15 points) The Secretary reviews each
application to determine the extent to which the Center demonstrates a
significant and measurable regional and national impact of, and faculty
and professional school involvement in, domestic outreach activities
that involve--
(1) Elementary and secondary schools (5 points);
(2) Postsecondary institutions (5 points); and
(3) Business, media, and the general public (5 points).
(j) Degree to which priorities are served. (10 points) If, under
the provisions of Sec. 656.23, the Secretary establishes competitive
priorities for Centers, the Secretary considers the degree to which
those priorities are being served.
(Approved by the Office of Management and Budget under control
number 1840-0068.)
(Authority: 20 U.S.C. 1122)
Sec. 656.22 What selection criteria does the Secretary use to
evaluate an application for an undergraduate Center?
The Secretary uses the following criteria in evaluating an
application for an undergraduate Center:
(a) Program planning and budget. (20 points) The Secretary reviews
each application to determine--
(1) The extent to which the activities for which the applicant
seeks funding are of high quality and directly related to the purpose
of the National Resource Centers Program (5 points);
(2) The extent to which the applicant provides a development plan
or timeline demonstrating how the proposed activities will contribute
to a strengthened program and whether the applicant uses its resources
and personnel effectively to achieve the proposed objectives (5
points);
(3) The extent to which the costs of the proposed activities are
reasonable in relation to the objectives of the program (5 points); and
(4) The long-term impact of the proposed activities on the
institution's undergraduate training program (5 points).
(b) Quality of staff resources. (20 points) The Secretary reviews
each application to determine--
(1) The extent to which teaching faculty and other staff are
qualified for the current and proposed Center activities and training
programs, are provided professional development opportunities
(including overseas experience), and participate in teaching,
supervising, and advising students (10 points);
(2) The adequacy of Center staffing and oversight arrangements,
including outreach and administration and the extent to which faculty
from a variety of departments, professional schools, and the library
are involved (5 points); and
(3) The extent to which the applicant, as part of its
nondiscriminatory employment practices, encourages applications for
employment from persons who are members of groups that have been
traditionally underrepresented, such as members of racial or ethnic
minority groups, women, persons with disabilities, and the elderly (5
points).
(c) Impact and evaluation. (20 points) The Secretary reviews each
application to determine--
(1) The extent to which the Center's activities and training
programs have a significant impact on the university, community,
region, and the Nation as shown through indices such as enrollments,
graduate placement data, participation rates for events, and usage of
Center resources; the extent to which students matriculate into
advanced language and area or international studies programs or related
professional programs; and the extent to which the applicant supplies a
clear description of how the applicant will provide equal access and
treatment of eligible project participants who are members of groups
that have been traditionally underrepresented, such as members of
racial or ethnic minority groups, women, persons with disabilities, and
the elderly (10 points); and
(2) The extent to which the applicant provides an evaluation plan
that is comprehensive and objective and that will produce quantifiable,
outcome-measure-oriented data; and the extent to which recent
evaluations have been used to improve the applicant's program (10
points).
(d) Commitment to the subject area on which the Center focuses. (10
points) The Secretary reviews each application to determine the extent
to which the institution provides financial and other support to the
operation of the Center, teaching staff for the Center's subject area,
library resources, linkages with institutions abroad, outreach
activities, and qualified students in fields related to the Center.
(e) Strength of library. (15 points) The Secretary reviews each
application to determine--
(1) The strength of the institution's library holdings (both print
and non-print, English and foreign language) in the subject area and at
the educational levels (graduate, professional, undergraduate) on which
the Center focuses; and the extent to which the institution provides
financial support for the acquisition of library materials and for
library staff in the subject area of the Center (10 points); and
(2) The extent to which research materials at other institutions
are available to students through cooperative arrangements with other
[[Page 50197]]
libraries or on-line databases and the extent to which teachers,
students, and faculty from other institutions are able to access the
library's holdings (5 points).
(f) Quality of the Center's non-language instructional program. (20
points) The Secretary reviews each application to determine--
(1) The quality and extent of the Center's course offerings in a
variety of disciplines (5 points);
(2) The extent to which the Center offers depth of specialized
course coverage in one or more disciplines of the Center's subject area
(5 points);
(3) The extent to which the institution employs a sufficient number
of teaching faculty to enable the Center to carry out its purposes and
the extent to which instructional assistants are provided with pedagogy
training (5 points); and
(4) The extent to which interdisciplinary courses are offered for
undergraduate students (5 points).
(g) Quality of the Center's language instructional program. (20
points) The Secretary reviews each application to determine--
(1) The extent to which the Center provides instruction in the
languages of the Center's subject area and the extent to which students
enroll in the study of the languages of the subject area through
programs offered by the Center or other providers (5 points);
(2) The extent to which the Center provides three or more levels of
language training and the extent to which courses in disciplines other
than language, linguistics, and literature are offered in appropriate
foreign languages (5 points);
(3) Whether sufficient numbers of language faculty are available to
teach the languages and levels of instruction described in the
application and the extent to which language teaching staff (including
faculty and instructional assistants) have been exposed to current
language pedagogy training appropriate for performance-based teaching
(5 points); and
(4) The quality of the language program as measured by the
performance-based instruction being used or developed, the adequacy of
resources for language teaching and practice, and language proficiency
requirements (5 points).
(h) Quality of curriculum design. (15 points) The Secretary reviews
each application to determine--
(1) The extent to which the Center's curriculum has incorporated
undergraduate instruction in the applicant's area or topic of
specialization into baccalaureate degree programs (for example, major,
minor, or certificate programs) and the extent to which these programs
and their requirements (including language requirements) are
appropriate for a Center in this subject area and will result in an
undergraduate training program of high quality (10 points); and
(2) The extent to which the Center provides academic and career
advising services for students; the extent to which the Center has
established formal arrangements for students to conduct research or
study abroad and the extent to which these arrangements are used; and
the extent to which the institution facilitates student access to other
institutions' study abroad and summer language programs (5 points).
(i) Outreach activities. (15 points) The Secretary reviews each
application to determine the extent to which the Center demonstrates a
significant and measurable regional and national impact of, and faculty
and professional school involvement in, domestic outreach activities
that involve--
(1) Elementary and secondary schools (5 points);
(2) Postsecondary institutions (5 points); and
(3) Business, media and the general public (5 points).
(j) Degree to which priorities are served. (10 points) If, under
the provisions of Sec. 656.23, the Secretary establishes competitive
priorities for Centers, the Secretary considers the degree to which
those priorities are being served. (Approved by the Office of
Management and Budget under control number 1840-0068.)
(Authority: 20 U.S.C. 1122)
Sec. 656.23 What priorities may the Secretary establish?
(a) The Secretary may select one or more of the following funding
priorities:
(1) Specific countries or world areas, such as, for example, East
Asia, Africa, or the Middle East.
(2) Specific focus of a Center, such as, for example, a single
world area; international studies; a particular issue or topic, e.g.,
business, development issues, or energy; or any combination.
(3) Level or intensiveness of language instruction, such as
intermediate or advanced language instruction, or instruction at an
intensity of 10 contact hours or more per week.
(4) Types of activities to be carried out, for example, cooperative
summer intensive language programs, course development, or teacher
training activities.
(b) The Secretary may select one or more of the activities listed
in Sec. 656.5 as a funding priority.
(c) The Secretary announces any priorities in the application
notice published in the Federal Register.
(Authority: 20 U.S.C. 1122)
Subpart D--What Conditions Must Be Met By a Grantee?
Sec. 656.30 What are allowable costs and limitations on allowable
costs?
(a) Allowable costs. Except as provided under paragraph (b) of this
section, a grant awarded under this part may be used to pay all or part
of the cost of establishing, strengthening, or operating a
comprehensive or undergraduate Center including, but not limited to,
the cost of--
(1) Faculty and staff salaries and travel;
(2) Library acquisitions;
(3) Teaching and research materials;
(4) Curriculum planning and development;
(5) Bringing visiting scholars and faculty to the Center to teach,
conduct research, or participate in conferences or workshops; and
(6) Training and improvement of staff.
(b) Limitations on allowable costs. The following are limitations
on allowable costs:
(1) Equipment costs exceeding 10 percent of the grant are not
allowable.
(2) Funds for undergraduate travel are allowable only in
conjunction with a formal program of supervised study in the subject
area on which the Center focuses.
(3) Grant funds may not be used to supplant funds normally used by
applicants for purposes of this part.
(Authority: 20 U.S.C. 1122)
[FR Doc. 96-24462 Filed 9-23-96; 8:45 am]
BILLING CODE 4000-01-P
Complete official Federal Register PDF
FR Doc. 96-24455 Almonds Grown in California; Assessment Rate
[Federal Register Volume 61, Number 186 (Tuesday, September 24, 1996)]
[Rules and Regulations]
[Pages 49954-49955]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-24455]
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DEPARTMENT OF AGRICULTURE
7 CFR Part 981
[Docket No. FV96-981-2 FIR]
Almonds Grown in California; Assessment Rate
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Department of Agriculture (Department) is adopting as a
final rule, without change, the provisions of an interim final rule
that established an assessment rate for the Almond Board of California
(Board) under Marketing Order No. 981 for the 1996-97 and subsequent
crop years. The Board is responsible for local administration of the
marketing order which regulates the handling of almonds grown in
California. Authorization to assess almond handlers enables the Board
to incur expenses that are reasonable and necessary to administer the
program.
EFFECTIVE DATE: July 1, 1996.
FOR FURTHER INFORMATION CONTACT: Tershirra Yeager, Marketing Assistant,
Marketing Order Administration Branch, Fruit and Vegetable Division,
AMS, USDA, P.O. Box 96456, room 2522-S, Washington, DC 20090-6456,
telephone (209) 720-5127, or FAX # (202) 720-5698; or Kathleen M. Finn,
Marketing Specialist, Marketing Order Administration Branch, Fruit and
Vegetable Division, AMS, USDA, P.O. Box 96456, room 2522-S, Washington,
DC 20090-6456, telephone (202) 720-1509 or FAX # (202) 720-5698. Small
businesses may request information on compliance with this regulation
by contacting: Jay Guerber, Marketing Order Administration Branch,
Fruit and Vegetable Division, AMS, USDA, P.O. Box 96456, Room 2523-S,
Washington, D.C. 20090-6456; telephone: (202) 720-2491, Fax# (202) 720-
5698.
SUPPLEMENTARY INFORMATION: This rule is issued under Marketing
Agreement and Order No. 981 (7 CFR part 981), regulating the handling
of almonds grown in California. The marketing agreement and order are
effective under the Agricultural Marketing Agreement Act of 1937, as
amended (7 U.S.C. 601-674), hereinafter referred to as the ``Act.''
The Department is issuing this rule in conformance with Executive
Order 12866.
This rule has been reviewed under Executive Order 12988, Civil
Justice Reform. Under the marketing order now in effect, California
almonds are subject to assessments. Funds to administer the order are
derived from such assessments. It is intended that the assessment rate
as issued herein will be applicable to all assessable almonds beginning
July 1, 1996, and continuing until amended, suspended or terminated.
This rule will not preempt any State or local laws, regulations, or
policies, unless they present an irreconcilable conflict with this
rule.
The Act provides that administrative proceedings must be exhausted
before parties may file suit in court. Under section 608c(15)(A) of the
Act, any handler subject to an order may file with the Secretary a
petition stating that the order, any provision of the order, or any
obligation imposed in connection with the order is not in accordance
with law and request a modification of the order or to be exempted
therefrom. Such handler is afforded the opportunity for a hearing on
the petition. After the hearing the Secretary would rule on the
petition. The Act provides that the district court of the United States
in any district in which the handler is an inhabitant, or has his or
her principal place of business, has jurisdiction to review the
Secretary's ruling on the petition, provided an action is filed not
later than 20 days after the date of the entry of the ruling.
Pursuant to the requirements set forth in the Regulatory
Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has
considered the economic impact of this rule on small entities.
The purpose of the RFA is to fit regulatory actions to the scale of
business subject to such actions in order that small businesses will
not be unduly or disproportionately burdened. Marketing orders issued
pursuant to the Act, and the rules issued thereunder, are unique in
that they are brought about through group action of essentially small
entities acting on their own
[[Page 49955]]
behalf. Thus, both statutes have small entity orientation and
compatibility.
There are approximately 7,000 producers of California almonds under
this marketing order, and approximately 115 handlers. Small
agricultural producers have been defined by the Small Business
Administration (13 CFR 121.601) as those having annual receipts of less
than $500,000, and small agricultural service firms are defined as
those whose annual receipts are less than $5,000,000. The majority of
California almond producers and handlers may be classified as small
entities.
The California almond marketing order provides authority for the
Board, with the approval of the Department, to formulate an annual
budget of expenses and collect assessments from handlers to administer
the program. The members of the Board are producers and handlers of
California almonds. They are familiar with the Board's needs and with
the costs of goods and services in their local area and are thus in a
position to formulate an appropriate budget. The assessment rate is
formulated and discussed in a public meeting. Thus, all directly
affected persons have had an opportunity to participate and provide
input.
The Board met on May 10, 1996, and unanimously recommended 1996-97
crop year expenditures of $6,426,500 and an assessment rate of $0.01
per pound of almonds. In comparison, last year's budgeted expenditures
were $4,952,591 with the assessment rate of $0.75 per pound. Major
expenditures recommended by the Board for the 1996-97 crop year include
$3,333,500 for information and research, $731,534 for salaries,
$660,500 for international programs, $558,131 for production research,
$97,470 for travel, and $91,160 for crop estimate. Budgeted expenses
for these items in 1995-96 were $2,358,000, $598,251, $150,000,
$512,650, $75,000, and $90,736, respectively.
The assessment rate recommended by the Board was derived by
dividing anticipated expenses by expected receipts of California
almonds. Almond shipments for the year are estimated at 504.4 million
pounds which should provide $5.044 million in assessment income. Income
derived from handler assessments, interest, a production research
conference, and the Market Access Program, along with funds derived
from the Board's authorized reserve, will be adequate to cover budgeted
expenses. Any unexpended funds from the 1996-97 crop year may be
carried over to cover expenses during the first four months of the
1997-98 crop year.
An interim final rule regarding this action was published in the
July 31, 1996, issue of the Federal Register (61 FR 39841). That rule
provided for a 30-day comment period. No comments were received.
While this rule may impose some additional costs on handlers, the
costs are in the form of uniform assessments on all handlers. Some of
the additional costs may be passed on to producers. However, these
costs will be offset by the benefits derived by the operation of the
marketing order. Therefore, the AMS has determined that this rule will
not have a significant economic impact on a substantial number of small
entities.
The assessment rate established in this rule will continue in
effect indefinitely unless modified, suspended, or terminated by the
Secretary upon recommendation and information submitted by the Board or
other available information.
Although this assessment rate is effective for an indefinite
period, the Board will continue to meet prior to or during each fiscal
period to recommend a budget of expenses and consider recommendations
for modification of the assessment rate. The dates and times of Board
meetings are available from the Board or the Department. Board meetings
are open to the public and interested persons may express their views
at these meetings. The Department will evaluate Board recommendations
and other available information to determine whether modification of
the assessment rate is needed. Further rulemaking will be undertaken as
necessary. The Board's 1996-97 budget and those for subsequent fiscal
periods will be reviewed and, as appropriate, approved by the
Department.
After consideration of all relevant material presented, including
the information and recommendations submitted by the Board and other
available information, it is hereby found that this rule, as
hereinafter set forth, will tend to effectuate the declared policy of
the Act.
Pursuant to 5 U.S.C. 553, it is also found and determined that good
cause exists for not postponing the effective date of this action until
30 days after publication in the Federal Register because: (1) The
Board needs to have sufficient funds to pay its expenses which are
incurred on a continuous basis; (2) the crop year began on July 1,
1996, and the marketing order requires that the rate of assessment for
the crop year apply to all assessable California almonds handled during
the crop year; (3) handlers are aware of this action which was
unanimously recommended by the Board at a public meeting and is similar
to other assessment rate actions issued in past years; and (4) an
interim final rule was published on this action, providing a 30-day
comment period, and no comments were received.
List of Subjects in 7 CFR Part 981
Almonds, Marketing agreements, Nuts, Reporting and recordkeeping
requirements.
PART 981--ALMONDS GROWN IN CALIFORNIA
Accordingly, the interim final rule amending 7 CFR Part 981 which
was published at 61 FR 39841 on July 31, 1996, is adopted as a final
rule without change.
Dated: September 16, 1996.
Robert C. Keeney,
Director, Fruit and Vegetable Division.
[FR Doc. 96-24455 Filed 9-23-96; 8:45 am]
BILLING CODE 3410-02-P
Complete official Federal Register PDF
FR Doc. 96-24442 Importation, Exportation, and Transportation of Wildlife
[Federal Register Volume 61, Number 186 (Tuesday, September 24, 1996)]
[Rules and Regulations]
[Pages 49979-49980]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-24442]
=======================================================================
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 14
RIN 1018-AB49
Importation, Exportation, and Transportation of Wildlife
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Correction to final regulations.
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SUMMARY: This document contains corrections to the final regulations
which were published June 21, 1996, (61 FR 31850). The regulation
related to Import Declaration Requirements contained at Sec. 14.61 is
corrected.
EFFECTIVE DATE: September 24, 1996.
FOR FURTHER INFORMATION CONTACT:
Richard Marks, Special Agent in Charge, Branch of Investigations,
Division of Law Enforcement, Fish and Wildlife Service, U.S. Department
of the Interior, (703) 358-1949.
SUPPLEMENTARY INFORMATION:
Background
The final regulations that are the subject of these corrections
supersede 50 CFR Sec. 14.61 on the effective date and affect persons or
businesses required to file the Declaration for Importation or
Exportation of Fish or Wildlife (Declaration Form 3-177). The June 21,
1996 final rule incorrectly allowed importers or their agents to file
either a Declaration Form 3-177 with the Service or an electronic
Declaration Form 3-177 through the United States Customs Service
Automated Commercial System (ACS). The Service's pilot program for
allowing the filing of an electronic Declaration Form 3-177 through the
Automatic Commercial System, Automated Broker Interface (ABI) began on
October 29, 1990, in the Port of New York.
Need for Correction
The ACS system for filing electronic versions of Declaration Form
3-177 has
[[Page 49980]]
not been fully implemented at all of the thirteen designated ports
authorized by the Service for the importation and exportation of
wildlife and wildlife products. Because the system is not fully
implemented, the Service will continue to require the filing of a
Declaration Form 3-177 at the time Service clearance is requested and
will not allow the filing of an electronic Declaration Form 3-177 by
itself. This correction is being made to Sec. 14.61 of the final
regulations to provide clarification and to avoid unnecessary delay in
clearance of wildlife shipments.
Correction of Publication
Accordingly, the publication on June 21, 1996, of the final
regulations of 50 CFR parts 13 and 14 which were the subject of FR Doc.
96-15388, is corrected by revising Sec. 14.61 starting on page 31870,
column 1, line 16, to read as follows:
Sec. 14.61 Import declaration requirements.
Except as otherwise provided by the regulations of this subpart,
importers or their agents must file with the Service a completed
Declaration for Importation or Exportation of Fish or Wildlife (Form 3-
177), signed by the importer or the importer's agent, upon the
importation of any wildlife at the place where Service clearance under
Sec. 14.52 is requested. However, wildlife may be transshipped under
bond to a different port for release from custody by Customs Service
officers under 19 U.S.C. 1499. For certain antique articles as
specified in Sec. 14.22, importers or their agents must file a Form 3-
177 with the District Director of Customs at the port of entry prior to
release from Customs custody. Importers or their agents must furnish
all applicable information requested on the Form 3-177 and the
importer, or the importer's agent, must certify that the information
furnished is true and complete to the best of his/her knowledge and
belief.
Dated: September 26, 1996.
George T. Frampton, Jr.,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 96-24442 Filed 9-23-96; 8:45 am]
BILLING CODE 4310-55-M
Complete official Federal Register PDF
FR Doc. 96-24368 Changes Selected Rules In Order To Eliminate Fees Previously Adopted by the Commission Pursuant to the Independent Offices Appropriations Act of 1952
[Federal Register Volume 61, Number 186 (Tuesday, September 24, 1996)]
[Rules and Regulations]
[Pages 49957-49962]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-24368]
=======================================================================
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SECURITIES AND EXCHANGE COMMISSION
17 CFR Parts 202, 230, 239, 240, 249, 250, 259, 270, 274, and 275
[Release Nos. 33-7331; 34-37692; 35-26575; IC-22224; IA-1578; File No.
S7-14-96]
RIN 3235-AG79
Changes Selected Rules In Order To Eliminate Fees Previously
Adopted by the Commission Pursuant to the Independent Offices
Appropriations Act of 1952
AGENCY: Securities and Exchange Commission.
ACTION: Final rule.
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SUMMARY: The Securities and Exchange Commission (Commission), in order
to eliminate user fees currently adopted under the Independent Offices
Appropriations Act of 1952 is changing various rules pertaining to the
Securities Act of 1933 (Securities Act), the Securities Exchange Act of
1934 (Exchange Act), the Public Utility Holding Company Act of 1935
(Public Utility Holding Company Act), the Investment Company Act of
1940 (Investment Company Act), and the Investment Advisers Act of 1940
(Investment Advisers Act). The fees being eliminated were first adopted
in 1972 to contribute towards the cost of agency operations. Since that
time, however, the amount of fees collected by the Commission has
increased dramatically. In 1995, the Commission collected nearly double
the amount of fees required to fund the agency's operations. The fees
being eliminated represented just two percent of the Commission's total
fiscal 1995 fee revenue, but more than one-half of the total number of
fee payments processed.
EFFECTIVE DATE: October 7, 1996.
FOR FURTHER INFORMATION CONTACT: Henry I. Hoffman, Office of the
Comptroller, at (202) 942-0343.
SUPPLEMENTARY INFORMATION: In 1972, to offset the cost to the
government of Commission operations, the Securities and Exchange
Commission established through rulemaking a fee schedule for numerous
types of applications, statements and reports.1 These regulatory
fees, authorized under Title V of the Independent Offices
Appropriations Act of 1952 (31 U.S.C. 9701), are commonly referred to
as IOAA fees.2
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\1\ Securities Act, Release No. 5229, January 25, 1972.
\2\ The Independent Offices Appropriations Act of 1952,
specifically 31 U.S.C. 9701, authorizes independent agencies of the
federal government to prescribe fees and charges for activities that
provide benefits to individuals and businesses. This statute states
that ``[i]t is the sense of Congress that each service * * *
provided by an agency * * * to a person * * * is to be self-
sustaining to the extent possible.'' The statute also authorizes the
head of each agency to prescribe regulations establishing the charge
for a service. Notably, a separate provision of the Exchange Act
specifically authorizes the Commission to impose fees authorized by
this Act. 15 U.S.C. 78n(g)(4).
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On May 22, 1996, a proposed rule titled Proposal To Eliminate Fees
Previously Adopted by the Commission Pursuant to the Independent
Offices Appropriations Act of 1952 was published in the Federal
Register. (Vol. 61, No. 100, pages 25601-25604). The proposed rule
invited interested parties to submit comments on or before July 8,
1996. Three comment letters were received, one each from two mutual
fund complexes and one trade association.3 Each response supported
[[Page 49958]]
the proposal to eliminate the Commission's IOAA fees. One respondent
noted that their experience with the IOAA fees was similar to the
Commission's experience, i.e. ``* * * while the aggregate dollar
amounts of these fees are relatively insignificant * * * the
recordkeeping and processing costs associated with them are
disproportionately high * * *.'' 4 Further, the respondent stated
that the ``* * * adoption of the proposal would simplify and enhance
the efficiency of (its) servicing operations.'' 5 Effective
October 7, 1996, the Commission is eliminating each of its current IOAA
fees.6 The collection of these fees is no longer appropriate since
the amount of revenue currently generated by statutory fees imposed
under the securities laws far exceeds the annual cost of Commission
operations, and the additional revenue added by the IOAA fees is an
insignificant portion of the total revenue received.
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\3\ The three respondents to the Commission's elimination of
IOAA fees were T. Rowe Price Associates, Inc. in a June 7, 1996,
letter signed by Henry H. Hopkins, Managing Director and Legal
Counsel, Federated Investors in a June 27, 1996, letter signed by
Jay S. Neuman, Corporate Counsel, and the Investment Company
Institute in a June 25, 1996, letter signed by Alexander C. Gavis,
Assistant Counsel. These letters are available for public inspection
under File S7-14-96 in the Public Reference Room, U.S. Securities
and Exchange Commission, 450 Fifth Street, NW., Washington, DC.
20549.
\4\ Federated Investors.
\5\ Id.
\6\ The Commission's action only eliminates the collection of
regulatory fees imposed under the IOAA; it does not affect other
fees imposed by statute which are also collected by the Commission.
These statutory fees include registration fees collected pursuant to
section 6(b) of the Securities Act and section 307(b) of the Trust
Indenture Act of 1939, going private fees collected pursuant to
section 13 of the Exchange Act, proxy and tender offer fees
collected pursuant to section 14 of the Exchange Act, and
transaction fees collected pursuant to section 31 of the Exchange
Act.
---------------------------------------------------------------------------
In fiscal 1972, the Commission collected $19 million in fees and
cost $27 million to operate. IOAA fees represented 12 percent of the
total 1972 revenue. In fiscal 1995, the Commission collected $559
million in fees and was appropriated $297 million for operating costs.
IOAA fees represented just 2 percent of the total 1995 revenue.7
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\7\ The vast increase in Commission fee revenue between 1972 and
1995 has developed from two basic sources. First is a significant
increase in the underlying value of the securities on which the
statutory fees are based. The underlying value of securities
registered with the Commission under section 6(b) of the Securities
Act increased from $62 billion to $1.2 trillion from 1972 to 1995.
Further, during the same period, the value of shares transacted on
the U.S. securities exchanges and subject to a fee under Section 31
of the Exchange Act increased from $196 billion to $3 trillion.
Second is the increased use of offsetting collections under section
6(b) of the Securities Act to fund agency operations since 1990. The
amount of offsetting revenue collected under section 6(b) in 1991,
the first year fee revenue was used to directly offset Commission
funding, was $37 million at a fee rate of \1/40\ of one percent, and
in 1995 was $157 million at an increased fee rate of \1/29\ of one
percent.
---------------------------------------------------------------------------
This significant difference between the amount of fee revenue
collected by the Commission and the amount of its annual funding level
has been of continuing concern to Congress. In 1988, the Securities
Subcommittee of the Senate Committee on Banking, Housing and Urban
Affairs directed the Commission to study its fee structure and funding
status (Commission Fee Study).8
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\8\ Senate Report 100-105, 100th Cong., 1st Session. In
response, the Commission issued findings in a U.S. Securities and
Exchange Commission ``Self Funding Study'' (January 1989) and
accompanying ``Legislative Proposals and Fee Options'' (January
1989).
---------------------------------------------------------------------------
As a result of the Commission Fee Study and continuing
Congressional concerns about the level of the Commission's annual fee
collections, in 1993 the House passed H.R. 2239, the Securities and
Exchange Commission Authorization Act of 1993. One of the stated
purposes of this bill was to ``establish a system for the annual
adjustment of fees collected by the Commission so that the total amount
appropriated to the Commission for any fiscal year will be offset by
the amount collected during such fiscal year * * *.'' 9
---------------------------------------------------------------------------
\9\ H.R. 2239, section 31A.(a).
---------------------------------------------------------------------------
Although Congress did not enact H.R. 2239, in 1995, members of the
Commission's authorization committee in the Senate stated that the
total amount of fees collected annually by the agency far exceed the
cost of its regulation and, therefore, should be reduced.10
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\10\ Letter dated April 6, 1995, from Senator D'Amato, Chairman
of the Senate Banking Committee, to Senators Domenici and Exon,
respectively Chairman and Ranking Member of the Senate Committee on
the Budget.
---------------------------------------------------------------------------
On March 12, 1996, the House passed H.R. 2972, the Securities and
Exchange Commission Authorization Act of 1996. One of this bill's major
purposes is ``to reduce over time the rates of fees charged under the
Federal securities laws.'' 11 Notably, H.R. 2972 contains a sense
of the Congress resolution that the Commission should eliminate its
fees imposed under the IOAA.12 The Securities and Exchange
Commission Authorization Act of 1996, H.R. 2972, has since been
repassed as Title 3 of H.R. 3005, the securities bill that was passed
by the House on June 19, 1996. The Senate counterpart to H.R. 3005, S.
1815, does not contain the SEC reauthorization bill.
---------------------------------------------------------------------------
\11\ H.R. 2972, section 2(2).
\12\ Ibid, section 7(1) states that ``the fees authorized by the
amendments made by this Act are in lieu of, and not in addition to,
any fees that the Securities and Exchange Commission is authorized
to impose or collect pursuant to section 9701 of title 31, United
States Code* * *.''
---------------------------------------------------------------------------
The Commission is eliminating its IOAA fees for two additional
reasons. First, the Commission is committed, consistent with its
mission of protecting investors, to eliminating unnecessary regulations
imposed on the capital formation process. The Commission has determined
that this elimination of its IOAA fees will reduce such burdens but
will not harm investors nor the Commission's mission to protect them.
Second, the collection of these IOAA fees imposes a disproportionate
cost on the Commission. In 1995, IOAA fees represented less than 2% of
the total fee revenue collected by the Commission, but more than one-
half of the total number of fee payments processed by Commission staff,
making recordkeeping for these fees disproportionately costly.
Cost/Benefit Analysis
This elimination of IOAA fees will provide an obvious benefit to
persons obligated to pay such fees, i.e., they will no longer have to
pay the fees. In addition, the Commission will avoid the costs
associated with processing and auditing the collection of such fees;
Commission resources spent on those tasks will be reallocated to other
mandated tasks. Other costs and benefits are expected to be de minimis.
Regulatory Flexibility Act
The Commission has prepared a Final Regulatory Flexibility Analysis
in accordance with 5 U.S.C. 604 regarding the proposed rule changes.
The analysis reiterates the reasons and objectives for the proposed
rule changes discussed above in this release. The analysis also
describes the legal basis for the proposal and discusses its effect on
small entities as defined by the Securities Act, the Exchange Act, the
Public Utility Holding Company Act of 1935, the Investment Company Act
of 1940, and the Investment Advisers Act of 1940. The rules impose no
additional reporting, recordkeeping or other compliance requirements on
small businesses, and the Commission believes that there are no
overlapping or conflicting federal rules. In addition, the Commission
does not believe that any significant alternative to the proposal would
both accomplish the stated objectives and minimize any significant
impact on small companies. In fact, the alternatives to eliminating the
fee would be to maintain or increase the current fees. Neither
alternative provides any increased benefit nor is appropriate in the
public interest. An Initial Regulatory Flexibility Analysis was
prepared in connection with the proposed rule changes which were
published in the Federal Register on May 22, 1996. No comments were
received regarding the analysis. A copy of the Final Regulatory
[[Page 49959]]
Flexibility Analysis may be obtained by contacting Henry I. Hoffman,
Securities and Exchange Commission, Office of the Comptroller, Room
2080, Washington, D.C. 20549.
Effective Date
The final amendments to the Commission's rules shall be effective
on October 7, 1996, in accordance with the Administrative Procedure
Act, which allows effectiveness in less than 30 days after publication
for, inter alia,, ``a substantive rule which grants or recognizes an
exemption or relieves a restriction'' and ``as otherwise provided by
the agency for good cause found and published with the rule.'' 5 U.S.C.
553(d)(1) and (d)(3). The Commission finds good cause for the rules to
be effective on October 7, 1996, in order to coordinate the elimination
of the user fees with the beginning of the fiscal year.
Statutory Basis
The Commission's authority for this action is 31 U.S.C. 9701 and 15
U.S.C. 78n(g)(4).
The amendments to the Commission's rules, forms and schedules under
the Securities Act and amendments to the Commission's rules under the
Exchange Act are being adopted pursuant to sections 6, 7, 8, 10 and
19(a) of the Securities Act and sections 3, 4, 10, 12, 13, 14, 15, 16
and 23 of the Exchange Act. The revisions to the Commission's rules and
forms under the Public Utility Holding Company Act of 1935 are being
adopted pursuant to section 20 of the Public Utility Holding Company
Act. The revisions to the Commission's rules and forms under the
Investment Company Act are being adopted pursuant to sections 8(b) and
38(a) under the Investment Company Act, as amended. And the revisions
to the Commission's rules and forms under the Investment Advisers Act
of 1940 are being adopted pursuant to sections 203(c) and 211(a) of the
Investment Advisers Act.
List of Subjects
17 CFR Part 202
Administrative practice and procedure, Securities.
17 CFR Parts 230, 270 and 274
Investment companies, Reporting and recordkeeping requirements,
Securities.
17 CFR Parts 239, 240, 249, 250, 259 and 275
Reporting and recordkeeping requirements, Securities.
Text of Amendments
For the reasons set out in the preamble, Chapter II, Title 17 of
the Code of Federal Regulations is amended as follows:
PART 202--INFORMAL AND OTHER PROCEDURES
1. The authority citation for part 202 continues to read in part as
follows:
Authority: 15 U.S.C 77s, 77t, 78d-1, 78u, 78w, 78ll(d), 79r,
79t, 77sss, 77uuu, 80a-37, 80a-41, 80b-9, and 80b-11, unless
otherwise noted.
* * * * *
2. The first sentence of the introductory text of Sec. 202.3a is
revised to read as follows:
Sec. 202.3a Instructions for filing fees.
Payment of filing fees specified by the following rules shall be
made according to the directions listed in this part: Sec. 230.111 (17
CFR 230.111), Sec. 240.0-9 (17 CFR 240-0.9), Sec. 260.7a-10 (17 CFR
260.7a-10), and Sec. 270.0-8 (17 CFR 270.0-8).
* * * * *
3. The fourth sentence of the introductory text of Sec. 202.3a is
revised to read as follows:
Sec. 202.3a Instructions for filing fees.
* * * Personal checks cannot be accepted for payment of fees. * * *
PART 230--GENERAL RULES AND REGULATIONS, SECURITIES ACT OF 1933
4. The authority citation for part 230 continues to read in part as
follows:
Authority: 15 U.S.C. 77b, 77f, 77g, 77h, 77j, 77s, 77sss, 78c,
78d, 78l, 78m, 78n, 78o, 78w, 78ll(d), 79t, 80a-8, 80a-29, 80a-30,
and 80a-37, unless otherwise noted.
* * * * *
Sec. 230.111 [Amended]
5. By amending Sec. 230.111 by removing the last sentence of
paragraph (a).
Sec. 230.236 [Amended]
6. By amending Sec. 230.236 by removing the second sentence of
paragraph (a) and the last sentence of paragraph (c)(4).
Sec. 230.252 [Amended]
7. By amending Sec. 230.252 by removing and reserving paragraph
(f).
Sec. 230.604 [Amended]
8. Paragraph (a) of Sec. 230.604 is amended by removing the last
sentence.
PART 240--GENERAL RULES AND REGULATIONS, SECURITIES EXCHANGE ACT OF
1934
9. The authority citation for Part 240 continues to read in part as
follows:
Authority: 15 U.S.C. 77c, 77d, 77g, 77j, 77s, 77eee, 77ggg,
77nnn, 77sss, 77ttt, 78c, 78d, 78i, 78j, 78l, 78m, 78n, 78o, 78p,
78q, 78s, 78w, 78x, 78ll(d), 79q, 79t, 80a-20, 80a-23, 80a-29, 80a-
37, 80b-3, 80b-4 and 80b-11, unless otherwise noted.
* * * * *
10. By revising Sec. 240.0-9 to read as follows:
Sec. 240.0-9 Payment of fees.
All payment of fees shall be made in cash, certified check or by
United States postal money order, bank cashier's check or bank money
order payable to the Securities and Exchange Commission, omitting the
name or title of any official of the Commission. Payment of fees
required by this section shall be made in accordance with the
directions set forth in Sec. 202.3a of this chapter.
11. By amending Sec. 240.0-11 by revising paragraph (c)(1)(ii) to
read as follows:
Sec. 240.0-11 Filing fees for certain acquisitions, dispositions and
similar transactions.
* * * * *
(c) * * *
(1) * * *
(ii) Notwithstanding the above, where the acquisition, merger or
consolidation is for the sole purpose of changing the registrant's
domicile, no filing fee is required to be paid.
* * * * *
Sec. 240.12b-7 [Removed]
12. Section 240.12b-7 is removed.
Sec. 240.13a-1 [Amended]
13. By amending Sec. 240.13a-1 by removing the last sentence.
Sec. 240.13d-7 [Removed]
14. Section 240.13d-7 is removed.
Sec. 240.13d-101 [Amended]
15. By amending Sec. 240.13d-101 by removing the second paragraph
on the cover page that appears after the first check box and
immediately before the ``Note:''.
Sec. 240.13d-102 [Amended]
16. By amending Sec. 240.13d-102 by removing the first paragraph on
the cover page that appears after the ``(CUSIP Number)''.
17. By amending Sec. 240.14a-6 by revising paragraph (i) to read as
follows:
[[Page 49960]]
Sec. 240.14a-6 Filing requirements.
* * * * *
(i) Fees. At the time of filing the proxy solicitation material,
the persons upon whose behalf the solicitation is made, other than
investment companies registered under the Investment Company Act of
1940, shall pay to the Commission the following applicable fee:
(1) For preliminary proxy material involving acquisitions, mergers,
spinoffs, consolidations or proposed sales or other dispositions of
substantially all the assets of the company, a fee established in
accordance with Rule 0-11 (Sec. 240.0-11 of this chapter) shall be
paid. No refund shall be given.
(2) For all other proxy submissions and submissions made pursuant
to Sec. 240.14a-6(g), no fee shall be required.
* * * * *
18. By amending Sec. 240.14a-101 by revising the cover page to read
as follows:
Sec. 240.14a-101 Schedule 14A. Information required in proxy
statement.
Schedule 14A Information
Proxy Statement Pursuant to Section 14(a) of the Securities
Exchange Act of 1934
(Amendment No. )
Filed by the Registrant [ ]
Filed by a party other than the Registrant [ ]
Check the appropriate box:
[ ] Preliminary Proxy Statement
[ ] Confidential, for Use of the Commission Only (as permitted by
Rule 14a-6(e)(2))
[ ] Definitive Proxy Statement
[ ] Definitive Additional Materials
[ ] Soliciting Material Pursuant to Sec. 240.14a-11(c) or
Sec. 240.14a-12
----------------------------------------------------------------------
(Name of Registrant as Specified In Its Charter)
----------------------------------------------------------------------
(Name of Person(s) Filing Proxy Statement, if other than the
Registrant)
Payment of Filing Fee (Check the appropriate box):
[ ] No fee required
[ ] Fee computed on table below per Exchange Act Rules 14a-6(i)(1)
and 0-11
(1) Title of each class of securities to which transaction
applies:
----------------------------------------------------------------------
(2) Aggregate number of securities to which transaction applies:
----------------------------------------------------------------------
(3) Per unit price or other underlying value of transaction
computed pursuant to Exchange Act Rule 0-11 (set forth the amount on
which the filing fee is calculated and state how it was determined):
----------------------------------------------------------------------
(4) Proposed maximum aggregate value of transaction:
----------------------------------------------------------------------
(5) Total fee paid:
----------------------------------------------------------------------
[ ] Fee paid previously with preliminary materials.
[ ] Check box if any part of the fee is offset as provided by
Exchange Act Rule 0-11(a)(2) and identify the filing for which the
offsetting fee was paid previously. Identify the previous filing by
registration statement number, or the Form or Schedule and the date
of its filing.
(1) Amount Previously Paid:
----------------------------------------------------------------------
(2) Form, Schedule or Registration Statement No.:
----------------------------------------------------------------------
(3) Filing Party:
----------------------------------------------------------------------
(4) Date Filed:
----------------------------------------------------------------------
Notes. * * *
* * * * *
Sec. 240.14a-101 [Amended]
19. Item 22 of Sec. 240.14a-101 is amended by removing and
reserving paragraph (a)(2).
20. By amending Sec. 240.14c-5 by revising paragraph (g) to read as
follows:
Sec. 240.14c-5 Filing Requirements.
* * * * *
(g) Fees. At the time of filing a preliminary information statement
regarding an acquisition, merger, spinoff, consolidation or proposed
sale or other disposition of substantially all the assets of the
company, the registrant shall pay the Commission a fee, no part of
which shall be refunded, established in accordance with Sec. 240.0-11.
* * * * *
21. By amending Sec. 240.14c-101 by revising the cover page to read
as follows:
Sec. 240.14c-101 Schedule 14C. Information required in information
statement.
Schedule 14C Information
Information Statement Pursuant to Section 14(c) of the Securities
Exchange Act of 1934
(Amendment No. )
Check the appropriate box:
[ ] Preliminary Information Statement
[ ] Confidential, for Use of the Commission Only (as permitted by
Rule 14c-5(d)(2))
[ ] Definitive Information Statement
----------------------------------------------------------------------
(Name of Registrant As Specified In Its Charter)
Payment of Filing Fee (Check the appropriate box):
[ ] No fee required
[ ] Fee computed on table below per Exchange Act Rules 14c-5(g)
and 0-11
(1) Title of each class of securities to which transaction
applies:
----------------------------------------------------------------------
(2) Aggregate number of securities to which transaction applies:
----------------------------------------------------------------------
(3) Per unit price or other underlying value of transaction
computed pursuant to Exchange Act Rule 0-11 (set forth the amount on
which the filing fee is calculated and state how it was determined):
----------------------------------------------------------------------
(4) Proposed maximum aggregate value of transaction:
----------------------------------------------------------------------
(5) Total fee paid:
----------------------------------------------------------------------
[ ] Fee paid previously with preliminary materials.
[ ] Check box if any part of the fee is offset as provided by
Exchange Act Rule 0-11(a)(2) and identify the filing for which the
offsetting fee was paid previously. Identify the previous filing by
registration statement number, or the Form or Schedule and the date
of its filing.
(1) Amount Previously Paid:
----------------------------------------------------------------------
(2) Form, Schedule or Registration Statement No.:
----------------------------------------------------------------------
(3) Filing Party:
----------------------------------------------------------------------
(4) Date Filed:
----------------------------------------------------------------------
Note * * *
* * * * *
Sec. 240.15d-11 [Amended]
22. By amending Sec. 240.15d-1 by removing the last sentence.
PART 249--FORMS, SECURITIES EXCHANGE ACT OF 1934
23. The authority citation for Part 249 continues to read in part
as follows:
Authority: 15 U.S.C. 78, et seq., unless otherwise noted;
* * * * *
Sec. 249.240 [Amended]
24. By amending Form 40-F (referenced in Sec. 249.240f) by removing
paragraph D.(5) of General Instructions and redesignating paragraphs
D.(6), D.(7), D.(8), D.(9) and D.(10) as paragraphs D.(5), D.(6),
D.(7), D.(8) and D.(9).
Note: The text of Form 40-F does not appear and this amendment
will not appear in the Code of Federal Regulations.
[[Page 49961]]
PART 250--GENERAL RULES AND REGULATIONS, PUBLIC UTILITY HOLDING
COMPANY ACT OF 1935
25. The authority citation for Part 250 continues to read as
follows:
Authority: 15 U.S.C. 79c, 79f(b), 79i(c)(3), 79t, unless
otherwise noted.
Sec. 250.1 [Amended]
26. Section 250.1 is amended by removing paragraph (d).
Sec. 250.94 [Amended]
27. Section 250.94 is amended by removing paragraph (b).
Sec. 250.106 [Removed]
28. Section 250.106 is removed and reserved.
Sec. 250.107 [Removed]
29. Section 250.107 is removed and reserved.
PART 259--FORMS PRESCRIBED UNDER THE PUBLIC UTILITY HOLDING COMPANY
ACT OF 1935
30. The authority citation for Part 259 continues to read as
follows:
Authority: 15 U.S.C. 79e, 79f, 79g, 79j, 79l, 79m, 79n, 79q,
79t.
Sec. 259.404 [Amended]
31. The preamble to the Instructions for Form U-7D (referenced in
Sec. 259.404) is revised to read as follows:
Note: The text of Form U-7D does not and this amendment will not
appear in the Code of Federal Regulations.
Form U-7D
* * * * *
Instructions
This form must be filed in triplicate within 30 days after
execution of any lease of a utility facility to an operating public-
utility company. Rules 21 and 22 under the Act govern the
specifications. Official Form U-7D and these instructions specify the
contents.
* * * * *
PART 270--RULES AND REGULATIONS, INVESTMENT COMPANY ACT OF 1940
32. The authority citation for Part 270 continues to read in part
as follows:
Authority: 15 U.S.C. 80a-1 et seq., 80a-37, 80a-39 unless
otherwise noted;
* * * * *
Sec. 270.0-5 [Amended]
33. Section 270.0-5 is amended by removing paragraph (d).
34. By revising Sec. 270.0-8 to read as follows:
Sec. 270.0-8 Payment of fees.
All payment of fees shall be made in cash, certified check or by
United States postal money order, bank cashier's check or bank money
order payable to the Securities and Exchange Commission, omitting the
name or title of any official of the Commission. Payment of fees
required by this section shall be made in accordance with the
directions set forth in Sec. 202.3a of this chapter.
* * * * *
Sec. 270.8b-6 [Removed]
35. Section 270.8b-6 is removed and reserved.
36. Sec. 270.24f-2 is amended by removing paragraph (a)(3),
redesignating paragraph (a)(4) as paragraph (a)(3), and revising newly
designated paragraph (a)(3) to read as follows:
Sec. 270.24f-2 Registration under the Securities Act of 1933 of an
indefinite number of certain investment company securities.
* * * * *
(a) * * *
(3) If such registration statement also registers a definite number
or amount of securities, there shall be paid to the Commission with
respect to such definite amount of securities a registration fee
calculated in the manner specified in section 6(b) of the Securities
Act of 1933, (15 U.S.C. 77f(b)) and the rules and regulations
thereunder.
* * * * *
Sec. 270.30a-1 [Amended]
37. Section 270.30a-1 is amended by removing the third sentence.
Sec. 270.30b1-1 [Amended]
38. Section 270.30b1-1 is amended by removing the second sentence.
Sec. 270.30b1-3 [Amended]
39. Section 270.30b1-3 is amended by removing the last sentence.
PART 239--FORMS PRESCRIBED UNDER THE SECURITIES ACT OF 1933
40. The authority citation for Part 239 continues to read in part
as follows:
Authority: 15 U.S.C. 77f, 77g, 77h, 77j, 77s, 77sss, 78c, 78l,
78m, 78n, 78o(d), 78w(a), 78ll(d), 79e, 79f, 79g, 79j, 79l, 79m,
79n, 79q, 79t, 80a-8, 80a-29, 80a-30 and 80a-37, unless otherwise
noted.
* * * * *
PART 274--FORMS PRESCRIBED UNDER THE INVESTMENT COMPANY ACT OF 1940
41. The authority citation for Part 274 continues to read as
follows:
Authority: 15 U.S.C. 77f, 77g, 77h, 77j, 77s, 78c(b), 78l, 78m,
78n, 78o(d), 80a-8, 80a-24, and 80a-29, unless otherwise noted.
Sec. 239.15A [Amended]
Sec. 274.11A [Amended]
42. General Instruction B of Form N-1A (referenced in Secs. 239.15A
and 274.11A) is amended by removing the second and third sentences.
Note: The text of Form N-1A does not and these amendments will
not appear in the Code of Federal Regulations.
Sec. 239.14 [Amended]
Sec. 274.11a-1 [Amended]
43. General Instruction B of Form N-2 (referenced in Secs. 239.14
and 274.11a-1) is amended by removing the second and third sentences.
Note: The text of Form N-2 does not and these amendments will
not appear in the Code of Federal Regulations.
Sec. 239.17a [Amended]
Sec. 274.11b [Amended]
44. General Instruction B of Form N-3 (referenced in Secs. 239.17a
and 274.11b) is amended by removing the second and third sentences.
Note: The text of Form N-3 does not and these amendments will
not appear in the Code of Federal Regulations.
Sec. 239.17b [Amended]
Sec. 274.11c [Amended]
45. General Instruction B of Form N-4 (referenced in Secs. 239.17b
and 274.11c) is amended by removing the second and third sentences.
Note: The text of Form N-4 does not and these amendments will
not appear in the Code of Federal Regulations.
Sec. 249.330 [Amended]
Sec. 274.101 [Amended]
46. General Instruction C of Form N-SAR (referenced in
Secs. 249.330 and 274.101) is amended by removing the third
undesignated paragraph.
Sec. 249.330 [Amended]
Sec. 274.101 [Amended]
47. General Instruction G of Form N-SAR (referenced in
Secs. 249.330 and 274.101) is amended by removing paragraph (5).
Note: The text of Form N-SAR does not and these amendments will
not appear in the Code of Federal Regulations.
PART 275--RULES AND REGULATIONS, INVESTMENT ADVISERS ACT OF 1940
48. The authority citation for Part 275 continues to read in part
as follows:
[[Page 49962]]
Authority: 15 U.S.C. 80b-3, 80b-4, 80b-6A, 80b-11, unless
otherwise noted.
* * * * *
Sec. 275.0-5 [Amended]
49. Section 275.0-5 is amended by removing paragraph (d) and
redesignating paragraph (e) as paragraph (d).
Sec. 275.203-3 [Removed]
50. Section 275.203-3 is removed.
Dated: September 17, 1996.
By the Commission.
Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 96-24368 Filed 9-23-96; 8:45 am]
BILLING CODE 8010-01-P
Complete official Federal Register PDF
FR Doc. 96-24324 Grants Program for Indian Tribes
[Federal Register Volume 61, Number 186 (Tuesday, September 24, 1996)]
[Rules and Regulations]
[Pages 49969-49970]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-24324]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
Office of Justice Programs
28 CFR Part 91
[OJP No. 1099]
RIN 1121-AA41
Grants Program for Indian Tribes
AGENCY: Office of Justice Programs, Justice.
ACTION: Interim rule.
-----------------------------------------------------------------------
SUMMARY: This document announces an interim rule and requests comments
on provisions that implement the Violent Offender Incarceration and
Truth-In-Sentencing Grants Program for Indian Tribes as required by
Section 114 of the Fiscal Year 1996 Omnibus Consolidated Rescissions
and Appropriations Act.
DATES: This rule becomes effective September 24, 1996. All comments
must be received by October 24, 1996.
ADDRESSES: All comments should be addressed to Larry Meachum, Director,
the Corrections Program Office, Office of Justice Programs, 633 Indiana
Ave., NW., 4th Floor, Washington, DC, 20531.
FOR FURTHER INFORMATION CONTACT: Dr. Stephen P. Amos, the Corrections
Program Office at (202) 848-6325.
SUPPLEMENTARY INFORMATION:
Overview of the Violent Offender Incarceration and Truth-In-Sentencing
Grants Program for Indian Tribes
Section 114 of the Fiscal Year 1996 Omnibus Consolidated
Rescissions and Appropriations Act, Public Law 104-134 (April 26, 1996)
(``Appropriations Act'') amends the Violent Crime Control and Law
Enforcement Act of 1994, Subtitle A of Title II, Public Law 103-322,
108 Stat. 1796 (September 13, 1994), as amended, codified at 42 U.S.C.
13701 et seq., to authorize a reservation of funds for the specific
purpose of allowing the Attorney General to make discretionary grants
to Indian tribes. Specifically, from amounts appropriated to implement
Subtitle A of Title II, the Appropriations Act allocates 0.3 percent in
each of fiscal years 1996 and 1997 and 0.2 percent in each of fiscal
years
[[Page 49970]]
1998, 1999 and 2000, for discretionary grants to Indian tribes.
Appropriated funds for this grant program in fiscal year 1996 total
$1.2 million. Awarded grants must be used for purposes of constructing
jails on tribal lands for the incarceration of offenders subject to
tribal jurisdiction.
Administrative Requirements
Executive Order 12866
This regulation has been drafted and reviewed in accordance with
Executive Order 12866, section 1(b), Principles of Regulation. This
rule is not a ``significant regulatory action'' under Executive Order
12866, section 3(f), Regulatory Planning and Review, and accordingly,
this rule has not been reviewed by the Office of Management and Budget.
Regulatory Flexibility Act
The Assistant Attorney General, Office of Justice Programs, in
accordance with the Regulatory Flexibility Act (5 U.S.C. Sec. 605(b)),
has reviewed this Interim Rule and, by approving it, certifies that the
Interim Rule will not have a significant economic impact on a
substantial number of small entities. The Assistant Attorney General,
Office of Justice Programs determined: (1) Interim Rule provides the
outline of a program governing the award of grants to Indian Tribes;
and (2) the award of such grants impose no requirements on small
businesses or on other small entities, and as such, the Interim Rule
would be in accordance with the Regulatory Flexibility Act.
National Environmental Policy Act of 1969
This regulation has been reviewed in accordance with the Office of
Justice Program's Procedures for Implementing the National
Environmental Policy Act, 28 CFR Part 61. The Assistant Attorney
General for the Office of Justice Programs has determined that this
regulation does not constitute a major federal action significantly
affecting the quality of the human environment and in accordance with
the National Environmental Policy Act of 1969, Public Law 91-190, an
Environmental Impact Statement is not required.
Small Business Regulatory Enforcement Fairness Act of 1996
This regulation will not result in an annual effect on the economy
of $100,000,000 or more; a major increase in costs or prices; or
significant adverse effects on competition, employment, investment,
productivity, innovation, or the ability of United States-based
companies to compete with foreign-based companies in domestic and
export markets and therefore is not a major rule, as defined by 5
U.S.C. 804(2).
Unfunded Mandates Reform Act of 1995
This regulation will not result in the expenditure by State, local
and tribal governments, in the aggregate, or by the public sector, of
$100,000,000 or more in any one year and will not significantly or
uniquely affect small governments.
List of Subjects in 28 CFR Part 91
Grant Programs--Law, Indians--tribal government.
For the reasons set out in the preamble, Title 28, Part 91, of the
Code of Federal Rregulations is proposed to be amended as follows:
PART 91--GRANTS FOR CORRECTIONAL FACILITIES
1. The authority citation for part 91 is revised to read as
follows:
Authority: Sec. 20105 of Subtitle A, Title II of the Violent
Crime Control and Law Enforcement Act of 1994, unless otherwise
noted.
2. A new Subpart C is added to read as follows:
Subpart C--Violent Offender Incarceration and Truth-in-Sentencing Grant
Programs for Indian Tribes
Sec.
91.21 Purpose.
91.22 Definitions.
91.23 Grant authority.
91.24 Grant distribution.
Authority: 42 U.S.C. 13701 et seq. as amended by Pub.L. 104-134.
Sec. 91.21 Purpose.
This part sets forth requirements and procedures to award grants to
Indian Tribes for purposes of constructing jails on tribal lands for
the incarceration of offenders subject to tribal jurisdiction.
Sec. 91.22 Definitions.
(a) The Act means the Violent Crime Control and Law Enforcement Act
of 1994, Subtitle A of Title II, Public Law 103-322, 108 Stat. 1796
(September 13, 1994) as amended by the Fiscal Year 1996 Omnibus
Consolidated Rescissions and Appropriations Act, Public Law 104-134
(April 26, 1996), codified at 42 U.S.C. 13701 et. seq.
(b) Assistant Attorney General means the Assistant Attorney General
for the Office of Justice Programs.
(c) Tribal lands means:
(1) All land within the limits of any Indian reservation under the
jurisdiction of the United States Government, notwithstanding the
issuance of any patent, and including rights-of-way running through the
reservation;
(2) All dependent Indian communities within the borders of the
United States whether within the original or subsequently acquired
territory thereof, and whether within or without the limits of a State;
and
(3) All Indian allotments, the Indian titles to which have not been
extinguished, including rights-of way running through the same.
(d) Indian Tribe means any Indian or Alaska Native tribe, band,
nation, pueblo, village, or community that the Secretary of the
Interior acknowledges to exist as an Indian tribe pursuant to Public
Law 103-454, 108 Stat. 4791, and which performs law enforcement
functions as determined by the Secretary of the Interior.
(e) Construct jails means constructing, developing, expanding,
modifying, or renovating jails and other correctional facilities.
Sec. 91.23 Grant authority.
(a) The Assistant Attorney General may make grants to Indian tribes
for programs that involve constructing jails on tribal lands for the
incarceration of offenders subject to tribal jurisdiction.
(b) Applications for grants under this program shall be made at
such times and in such form as may be specified by the Assistant
Attorney General. Applications will be evaluated according to the
statutory requirements of the Act and programmatic goals.
(c) Grantees must comply with all statutory and program
requirements applicable to grants under this program.
Sec. 91.24 Grant distribution.
(a) From the amounts appropriated under section 20108 of the Act to
carry out sections 20103 and 20104 of the Act, the Assistant Attorney
General shall reserve, to carry out this program--
(1) 0.3 percent in each fiscal years 1996 and 1997; and
(2) 0.2 percent in each of fiscal years 1998, 1999 and 2000.
(b) From the amounts reserved under paragraph (a) of this section,
the Assistant Attorney General may exercise discretion to award or
supplement grants to such Indian Tribes and in such amounts as would
best accomplish the purposes of the Act.
Dated: September 17, 1996.
Laurie Robinson,
Assistant Attorney General, Office of Justice Programs.
[FR Doc. 96-24324 Filed 9-23-96; 8:45 am]
BILLING CODE 4410-18-U
Complete official Federal Register PDF
FR Doc. 96-24283 Standards of Performance for New Stationary Sources Rescission of Alternate Opacity Standard for Omaha Public Power DistrictNebraska City Power Station, Nebraska City, NE
[Federal Register Volume 61, Number 186 (Tuesday, September 24, 1996)]
[Rules and Regulations]
[Pages 49974-49976]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-24283]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 60
[FRL-5614-3]
Standards of Performance for New Stationary Sources Rescission of
Alternate Opacity Standard for Omaha Public Power District--Nebraska
City Power Station, Nebraska City, NE
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: The EPA is rescinding the alternate opacity emission limit
established for the Nebraska City Power Station in Nebraska City,
Nebraska, owned and operated by Omaha Public Power District (OPPD).
Performance testing showed the power plant can now meet both the
particulate and opacity limits set forth in the regulation; thus, an
alternate opacity limit is no longer necessary. Under this rule, the
opacity limit for the Nebraska City Power Station would be changed from
30 percent (with a maximum of 37 percent for not more than six minutes
in any hour) to 20 percent (with a maximum of 27 percent for one six-
minute period per hour).
The EPA is publishing this action without prior proposal because
the Agency views this as a noncontroversial amendment and anticipates
no adverse comments. However, in a separate document in the Federal
Register publication, the EPA is proposing to approve the rule should
adverse or critical comments be filed.
If the EPA receives such comments, this action will be withdrawn
before the effective date by publishing a subsequent document that will
withdraw the final action. All public comments received will then be
addressed in a subsequent final rule based on this action serving as a
proposed rule. The EPA will not institute a second comment period on
this action. Any parties interested in commenting on this action should
do so at this time.
Commenters should also indicate whether they wish to request a
public hearing on this action, including the reasons for the request
and the nature of the comments which would be presented at any public
hearing. If a hearing is requested, the EPA will determine whether to
hold a public hearing, and will announce the time and location of any
hearing in a subsequent Federal Register notice.
DATES: This action will be effective November 25, 1996 unless by
October 24, 1996 adverse or critical comments are received. Comments
should be submitted to Angela Ludwig at the address below.
ADDRESSES: Written comments and requests for public hearing on this
action should be addressed to Angela Ludwig, Air Permits and Compliance
Branch, Environmental Protection Agency, Region VII, 726 Minnesota
Avenue, Kansas City, Kansas 66101. Comments should be strictly limited
to the subject matter of this proposal, the scope of which is discussed
below.
Docket: Pursuant to sections 307(d)(1) (C) and (N) of the Clean Air
Act (CAA), 42 U.S.C. 7607(d)(1) (C) and (N), this action is subject to
the procedural requirements of section 307(d). Therefore, the EPA has
established a public docket for this action, Docket # A-96-31. Copies
of the documents relevant to this action are available for public
inspection during normal business hours at the: Environmental
[[Page 49975]]
Protection Agency, Air, Permits and Compliance Branch, 726 Minnesota
Avenue, Kansas City, Kansas 66101; and EPA Air & Radiation Docket and
Information Center, 401 M Street, SW., Washington, DC 10460.
FOR FURTHER INFORMATION CONTACT: Angela Ludwig, Air Permits and
Compliance Branch, Environmental Protection Agency, Region VII, 726
Minnesota Avenue, Kansas City, Kansas 66101, (913) 551-7411.
SUPPLEMENTARY INFORMATION: On December 23, 1971 (36 FR 24875), the EPA
promulgated Standards of Performance for Fossil-Fuel-Fired Steam
Generators for Which Construction Is Commenced after August 17, 1971,
as Subpart D of 40 CFR Part 60, pursuant to section 111 of the CAA, 42
U.S.C. 57411. Under these provisions, the affected facility was
required to conduct performance tests during its initial startup period
to demonstrate compliance with opacity and other applicable standards
(40 CFR 60.8). Pursuant to 40 CFR 60.11(e)(6), a source may petition
the EPA for an alternate opacity limit if all other emission limits in
an applicable New Source Performance Standard (NSPS) are met, and the
source cannot meet the applicable opacity limit. Pursuant to 40 CFR
60.11(e)(7), the EPA will grant such a petition if the source or
operator demonstrates that the affected facility and associated air
pollution control equipment were operated and maintained in a manner to
minimize the opacity of emissions during the performance tests; that
the performance tests were performed under the conditions established
by the EPA; and that the affected facility and associated air pollution
control equipment were incapable of being adjusted or operated to meet
the applicable opacity standard. OPPD conducted performance tests and
opacity/mass correlation tests in 1981. These tests were the basis for
the EPA rule, published in the Federal Register on November 24, 1981
(46 FR 57497), codified at 40 CFR 60.42(b)(3) and 60.45(g)(1)(iii),
which changed the 20 percent (with a maximum of 27 percent for one six-
minute period per hour) opacity limit to 30 percent (with a maximum of
37 percent for not more than six minutes in any hour) for the Nebraska
City Power Station pursuant to the procedures and standards set forth
at 40 CFR 60.11(e).
The Nebraska Department of Environmental Quality requested that
OPPD perform tests at the Nebraska City Power Plant in June 1989,
pursuant to its delegated authority to enforce the NSPS. After
replacing its hot side electrostatic precipitator with a cold side
electrostatic precipitator, OPPD conducted tests on June 13 and 14,
1989, to measure emissions. These tests demonstrated that the new
control device was able to control the opacity of emissions below the
20 percent limit and particulate emissions below the particulate limit.
On August 15, 1989, the state agency issued a revised operating permit
to the OPPD facility, establishing an opacity limit of 20 percent (with
a maximum of 27 percent for not more than six minutes in any hour).
Nebraska has also requested that the EPA rescind the alternate limit to
be consistent with the 20 percent NSPS and state operating permit
limit.
Since the Nebraska City Power Station can now meet the 20 percent
opacity limit (additional monitoring data collected since the 1989
performance test show that the facility continues to be capable of
meeting the lower limit), the 30 percent alternate opacity limit is no
longer appropriate. In addition, the preconditions for allowing the
alternate opacity limits in Sec. 60.11(e)(7) are no longer met.
Therefore, the EPA is rescinding the alternate limit, and, after the
effective date of this rule, the source will be required to meet the 20
percent NSPS opacity limit. The source continues to be subject to the
20 percent opacity limit in the state permit without regard to this
rulemaking.
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by November 25, 1996. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this rule for the purposes of judicial review, nor does
it extend the time within which a petition for judicial review may be
filed, and shall not postpone the effectiveness of such rule or action.
This action may not be challenged later in proceedings to enforce its
requirements. (See section 307(b)(2).)
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et. seq., the
EPA must prepare a regulatory flexibility analysis assessing the impact
of any proposed or final rule on small entities (U.S.C. 603 and 604).
Alternatively, the EPA may certify that the rule will not have a
significant impact on a substantial number of small entities. Small
entities include small businesses, small not-for-profit enterprises,
and government entities with jurisdiction over populations of less than
50,000.
This action affects only one source--Omaha Public Power District,
Nebraska City Power Station, Nebraska City Nebraska. OPPD is not a
small entity. Therefore, the EPA certifies that this action does not
have a significant impact on a substantial number of small entities.
Under Executive Order 12866, the EPA is required to submit to the
Office of Management and Budget for review proposed rules which are
classified as ``significant regulatory action.'' Because this rule
would require the source to meet requirements which are already
applicable, by rule, to sources in this source category, and because it
obligates the source to meet requirements which it must already meet
under state law, the EPA has determined that the proposed rule would
not be a ``significant regulatory action'' under the Executive Order.
Unfunded Mandates
Under sections 202, 203, and 205 of the Unfunded Mandates Reform
Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22,
1995, the EPA must undertake various actions in association with
proposed or final rules that include a Federal mandate that may result
in estimated costs of $100 million or more to the private sector, or to
state, local, or tribal governments in the aggregate.
To the extent that the proposed rule will impose new requirements,
the source is already subject to the requirements under State law.
Accordingly, no additional cost to State or local governments, or to
the private sector, result from this action. The EPA has also
determined that this proposed action does not include a mandate that
may result in estimated cost of $100 million or more to state or local
governments in the aggregate or to the private sector. The EPA has
determined that this proposed rule results in no additional cost to
tribal governments.
List of Subjects in 40 CFR Part 60
Environmental protection, Air pollution control, Fossil-fuel-fired
steam generating units, Intergovernmental relations.
Authority: Sections 111 and 301(a) of the CAA, 42 U.S.C. 7411
and 7601(a).
Dated: September 16, 1996.
Carol Browner,
Administrator.
For the reasons set forth in the preamble, subpart D of part 60 of
chapter I of Title 40 of the Code of Federal Regulations is amended as
follows:
PART 60--[AMENDED]
1. The authority citation for part 60 continues to read as follows:
[[Page 49976]]
Authority: 42 U.S.C. 7401, 7411, 7414, 7416, and 7601
Subpart D--[Amended]
Sec. 60.42 [Amended]
2. Section 60.42 is amended by removing paragraph (b)(3).
Sec. 60.45 [Amended]
3. Section 60.45 is amended by removing paragraph (g)(1)(iii).
[FR Doc. 96-24283 Filed 9-23-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-24277 Income Exclusions in the Supplemental Security Income Program
[Federal Register Volume 61, Number 186 (Tuesday, September 24, 1996)]
[Rules and Regulations]
[Pages 49962-49964]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-24277]
=======================================================================
-----------------------------------------------------------------------
SOCIAL SECURITY ADMINISTRATION
20 CFR Part 416
[Regulations No. 16]
RIN 0960-AE22
Income Exclusions in the Supplemental Security Income Program
AGENCY: Social Security Administration.
ACTION: Final rules.
-----------------------------------------------------------------------
SUMMARY: These supplemental security income (SSI) regulations update
existing regulations to reflect the statutory amendment of the
exclusion from income of Alaska Longevity Bonus (ALB) payments. They
also update existing regulations to reflect the statutory exclusion
from income of hostile fire pay received by an SSI claimant or
recipient and reflect the current operating procedure of excluding
hostile fire pay when determining the countable income of an ineligible
spouse or ineligible parent. In addition, they update existing
regulations to reflect the current operating procedure of excluding
impairment-related work expenses, interest on excluded burial funds,
appreciation in the value of excluded burial arrangements, and interest
on the value of excluded burial space purchase agreements, when
determining the countable income of an ineligible spouse or ineligible
parent.
EFFECTIVE DATE: These regulations are effective October 24, 1996.
FOR FURTHER INFORMATION CONTACT: Regarding this Federal Register
document--Henry D. Lerner, Legal Assistant, Division of Regulations and
Rulings, Social Security Administration, 6401 Security Boulevard,
Baltimore, MD 21235, (410) 965-1762; regarding eligibility or filing
for benefits--our national toll-free number, 1-800-772-1213.
SUPPLEMENTARY INFORMATION: For purposes of the SSI program, income is
defined in our regulations to mean anything that is received in cash or
in kind which can be used to meet an individual's needs for food,
clothing, or shelter. These regulations include certain provisions
which address items that are excluded from income.
Alaska Longevity Bonus Payments
Under section 1612(b)(2)(B) of the Social Security Act (the Act),
ALB payments are excluded from income under certain circumstances.
Originally, the ALB program made monthly payments to residents of
Alaska who had attained age 65 and had lived in the State continuously
for at least 25 years. The SSI income exclusion applied to such
payments if made under a program established before July 1, 1973.
However, following a decision by the Alaska State Supreme Court that
the 25-year residency requirement was unconstitutional, in 1984 the
State legislature changed the residency requirement to 1 year.
Concerns were raised that since the revised (1984) ALB program was
established after July 1, 1973, the controlling date of the original
section 1612(b)(2)(B) provision, payments made under the revised ALB
program could no longer be excluded for SSI purposes. Section 2616 of
Public Law (Pub. L.) 98-369 was enacted on July 18, 1984 to address
those concerns. Section 2616 amended section 1612(b)(2)(B) of the Act
in such a way as to:
Continue the ALB exclusion for persons who, prior to
October 1985, became eligible for SSI and satisfied the 25-year
residence requirement of the program as in effect prior to January 1,
1983; and
Preclude extending the ALB exclusion to ALB payments
based on the 1-year residency requirement.
Current regulations at Secs. 416.1124(c)(7) and 416.1161(a)(12)
follow the wording of the original statutory exclusion in section
1612(b)(2)(B) of the Act. Regulations at Sec. 416.1124(c)(7) presently
provide for excluding from the income of a claimant or recipient
``[p]eriodic payments made by a State under a program established
before July 1, 1973, and based solely on your length of residence and
attainment of age 65 * * *.'' Regulations at Sec. 416.1161(a)(12)
presently provide for excluding from the income of an ineligible spouse
or ineligible parent ``[p]eriodic payments made by a State under a
program established before July 1, 1973, and based solely on duration
of residence and attainment of age 65 * * *.''
These regulations change the wording of the above referenced
regulations so that they conform to the 1984 legislation. The
regulatory language will not change current operating procedures since
those procedures already conform to the 1984 legislation.
Hostile Fire Pay
Although it is unlikely that an active member of the uniformed
services would apply or be eligible for SSI benefits, some military
service members have spouses and children who apply for and receive SSI
benefits.
Under section 209(d) of the Act, basic pay is the only form of
compensation to members of the uniformed services that is treated as
wages for title II purposes. Under section 1612(a)(1) of the Act,
earned income in the form of wages for SSI purposes is the same as
wages for the title II annual earnings test.
Therefore, basic pay is the only form of military compensation that
is treated as wages, and hence, as earned income, for SSI purposes.
All other forms of compensation to members of the uniformed
services are considered unearned income. These other forms of
compensation include allowances paid in cash for food, clothing, and
shelter; free food, clothing, and shelter; and special and incentive
pay.
One form of special pay is hostile fire pay, which is authorized
under 37 U.S.C. 310. Hostile fire pay is a type of special pay to a
service member who, for any month he/she is entitled to basic pay, is:
Subject to hostile fire or explosion of hostile mines; or
On duty in an area in which he/she is in imminent danger
of being exposed to hostile fire or explosion of hostile mines, and
While on duty in that area, other service members in the same area
are subject to hostile fire or explosion of hostile mines; or
Killed, injured, or wounded by hostile fire, explosion of
a hostile mine, or any other hostile action.
Section 13733(b) of the Omnibus Budget Reconciliation Act of 1993
(OBRA), Public Law 103-66, amended section 1612(b) of the Act to
exclude from income any hostile fire pay received in or after October
1993.
Current regulations do not reflect the exclusion from income of
hostile fire pay for eligible individuals, but hostile fire pay has
been excluded under SSI operating procedure since October 1, 1993.
Moreover, under these
[[Page 49963]]
instructions, such pay has been excluded in determining the income of
ineligible spouses and parents whose income is deemed to eligible
individuals.
In addition to adding to the regulations the statutorily required
exclusion of hostile fire pay from an eligible individual's income, we
have included the current operating procedure of excluding hostile fire
pay when determining the countable income of an ineligible spouse or
ineligible parent. The new inclusion reflects the statutory authority
granted the Commissioner of Social Security under section 1614(f) (1)
and (2) of the Act to waive the deeming of income from an ineligible
spouse or parent to an eligible individual when such deeming is
determined by the Commissioner of Social Security to be inequitable
under the circumstances. By specifically singling out hostile fire pay
for exclusion from an eligible individual's income, Congress expressed
its intent that receipt of these monies should not have an adverse
effect on an individual's SSI eligibility or payment amount. This
intent would not be realized if these monies were deemed to an eligible
individual. The statutory exclusion of hostile fire pay would have
little meaning if not applied to ineligible spouses and parents since,
as noted above, it is unlikely that an active member of the uniformed
services would be eligible for SSI.
Impairment-Related Work Expenses
Impairment-related work expenses (IRWE) are expenses for items or
services which are directly related to enabling a person with a
disability to work and which are necessarily incurred by that
individual because of a physical or mental impairment as explained at
regulations Secs. 404.1576 and 416.976.
Prior to December 1, 1990, in determining countable income, an
individual's IRWE were deducted from his/her earned income once
eligibility was established without using this exclusion. Effective
December 1, 1990, section 5033 of Public Law 101-508 amended section
1612(b)(4)(B)(ii) of the Act and liberalized the IRWE exclusion. The
legislation allows an individual to use the IRWE exclusion to establish
eligibility.
Regulations at Sec. 416.1112(c)(6) have been revised to implement
changes enacted by section 5033 of Public Law 101-508.
These regulatory revisions were published in the Federal Register
on August 12, 1994, at 59 FR 41400-41405.
Regulations at Sec. 416.1161(a) list the types of income that are
excluded from the income of an ineligible spouse and ineligible parent
for deeming purposes. IRWE are not included in this list, but IRWE have
been excluded from the income of ineligible spouses and ineligible
parents under SSI operating procedures since 1990.
We have added to the regulations the current operating procedure
which is to exclude IRWE when determining the countable income of an
ineligible spouse or ineligible parent for deeming purposes. By
specifically singling out IRWE for exclusion from an eligible
individual's income, Congress expressed its intent that receipt of
these monies should not have an adverse effect on an individual's SSI
eligibility or payment amount. This intent would not be realized if
these monies were deemed to an eligible individual. These regulations
reflect the statutory authority granted the Commissioner of Social
Security under section 1614(f) (1) and (2) of the Act to waive the
deeming of income from an ineligible spouse or parent to an eligible
individual when such deeming is determined by the Commissioner of
Social Security to be inequitable under the circumstances.
Interest and Appreciation in Value of Excluded Burial Funds and Burial
Space Purchase Agreements
Effective November 1, 1982, section 185 of Public Law 97-248
amended the Act to provide that any interest earned on excluded burial
funds and any appreciation in the value of excluded burial arrangements
left to accumulate, may be excluded from income by regulation.
Effective April 1, 1990, section 8013 of Public Law 101-239 amended the
Act to provide that interest earned on the value of agreements
representing the purchase of excluded burial spaces is excluded from
income if left to accumulate.
Regulations at Sec. 416.1124(c)(9) implement the exclusion of
interest earned on excluded burial funds and appreciation in the value
of excluded burial arrangements, effective November 1, 1982.
Regulations at Sec. 416.1124(c)(15) implement the exclusion of any
interest earned on the value of agreements representing the purchase of
excluded burial spaces, effective April 1, 1990.
Regulations at Sec. 416.1161(a) (relating to the treatment of
income of an ineligible spouse or ineligible parent) do not apply these
exclusions for purposes of deeming income, but both types of interest
and appreciation have been excluded from the income of ineligible
spouses and ineligible parents under SSI operating procedure.
We have added to the regulations the current operating procedure
which is to exclude interest on burial funds, appreciation in the value
of burial arrangements, and interest on the value of burial space
purchase agreements, that are excluded from resources, when determining
the countable income of an ineligible spouse or ineligible parent.
These regulations reflect the statutory authority granted the
Commissioner of Social Security under section 1614(f) (1) and (2) of
the Act to waive the deeming of income from an ineligible spouse or
parent to an eligible individual when such deeming is determined by the
Commissioner of Social Security to be inequitable under the
circumstances. By specifically singling out these monies for exclusion
from an eligible individual's income, Congress expressed its intent
that receipt of these monies should not have an adverse effect on an
individual's SSI eligibility or payment amount. This intent would not
be realized if these monies were deemed to an eligible individual.
We have made a technical change to conform the language of
Sec. 416.1124(c)(9) to a prior policy change. Effective July 11, 1990,
changes related to the SSI burial fund exclusion were published in the
Federal Register at 55 FR 28373-28377. As a result of these changes,
regulations at Sec. 416.1231(b)(1) were amended to require that
excluded burial funds be kept separate from all other resources not
intended for the burial of the individual or spouse. Furthermore,
Sec. 416.1231(b)(7) was revised to provide that interest earned on
excluded burial funds and appreciation in the value of excluded burial
arrangements are excluded from resources if left to accumulate and
become part of the separate burial fund.
Current regulations at Sec. 416.1124(c)(9) provide that we will not
count as income interest earned on excluded burial funds and any
appreciation in the value of an excluded burial arrangement which are
left to accumulate and become part of the separately identifiable
burial fund. We have conformed this regulation to the prior regulatory
change requiring the burial fund to be separate from other nonburial-
related assets and not merely separately identifiable.
These regulations were published in the Federal Register (60 FR
62356) as a notice of proposed rulemaking (NPRM) on December 6, 1995.
Interested parties were given 60 days to submit comments. Public
comments were received from an association of funeral directors which
supported the proposed regulations. We are, therefore, adopting the
regulations essentially as proposed.
[[Page 49964]]
Regulatory Procedures
Executive Order 12866
We have consulted with the Office of Management and Budget and
determined that these rules do not meet the criteria for a significant
regulatory action under Executive Order 12866.
Regulatory Flexibility Act
We certify that these rules will not have a significant economic
impact on a substantial number of small entities since these rules
affect only individuals. Therefore, a regulatory flexibility analysis
as provided in Public Law 96-354, the Regulatory Flexibility Act, is
not required.
Paperwork Reduction Act
These regulations will impose no additional reporting and
recordkeeping requirements subject to Office of Management and Budget
clearance.
(Catalog of Federal Domestic Assistance: Program No. 96.006-
Supplemental Security Income)
List of Subjects in 20 CFR Part 416
Administrative practice and procedure, Aged, Blind, Disability
benefits, Public assistance programs, Reporting and Recordkeeping
Requirements, Supplemental Security Income (SSI).
Approved: September 6, 1996.
Shirley S. Chater,
Commissioner of Social Security.
For the reasons set out in the preamble, part 416, subpart K, of
chapter III of title 20 of the Code of Federal Regulations is amended
as follows:
PART 416--SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND
DISABLED
Subpart K--[Amended]
1. The authority citation for subpart K of part 416 continues to
read as follows:
Authority: Secs. 702(a)(5), 1602, 1611, 1612, 1613, 1614(f),
1621, and 1631 of the Social Security Act (42 U.S.C. 902(a)(5),
1381a, 1382, 1382a, 1382b, 1382c(f), 1382j, and 1383); sec. 211,
Pub. L. 93-66, 87 Stat. 154 (42 U.S.C. 1382 note).
2. Section 416.1124 is amended by removing the ``and'' at the end
of paragraph (c)(17) and the period at the end of paragraph (c)(18), by
adding ``; and'' at the end of paragraph (c)(18), by revising
paragraphs (c)(7) and (c)(9) and adding new paragraph (c)(19) to read
as follows:
Sec. 416.1124 Unearned income we do not count.
* * * * *
(c) * * *
(7) Alaska Longevity Bonus payments made to an individual who is a
resident of Alaska and who, prior to October 1, 1985: met the 25-year
residency requirement for receipt of such payments in effect prior to
January 1, 1983; and was eligible for SSI;
* * * * *
(9) Any interest earned on excluded burial funds and any
appreciation in the value of an excluded burial arrangement which are
left to accumulate and become a part of the separate burial fund. (See
Sec. 416.1231 for an explanation of the exclusion of burial assets.)
This exclusion from income applies to interest earned on burial funds
or appreciation in the value of excluded burial arrangements which
occur beginning November 1, 1982, or the date you first become eligible
for SSI benefits, if later;
* * * * *
(19) Hostile fire pay received from one of the uniformed services
pursuant to 37 U.S.C. 310.
3. Section 416.1161 is amended by removing the ``and'' at the end
of paragraph (a)(21), and removing the period at the end of paragraph
(a)(22) and adding a semi-colon in its place, and by revising paragraph
(a)(12) and adding new paragraphs (a)(23), (a)(24) and (a)(25) to read
as follows:
Sec. 416.1161 Income of an ineligible spouse, ineligible parent, and
essential person for deeming purposes.
* * * * *
(a) * * *
(12) Alaska Longevity Bonus payments made to an individual who is a
resident of Alaska and who, prior to October 1, 1985: met the 25-year
residency requirement for receipt of such payments in effect prior to
January 1, 1983; and was eligible for SSI;
* * * * *
(23) Hostile fire pay received from one of the uniformed services
pursuant to 37 U.S.C. 310;
(24) Impairment-related work expenses, as described in 20 CFR
404.1576, incurred and paid by an ineligible spouse or parent, if the
ineligible spouse or parent receives disability benefits under title II
of the Act; and
(25) Interest earned on excluded burial funds and appreciation in
the value of excluded burial arrangements which are left to accumulate
and become part of separate burial funds, and interest accrued on and
left to accumulate as part of the value of agreements representing the
purchase of excluded burial spaces (see Sec. 416.1124(c) (9) and (15)).
[FR Doc. 96-24277 Filed 9-23-96; 8:45 am]
BILLING CODE 4190-29-P
Complete official Federal Register PDF
FR Doc. 96-24241 Vidalia Onions Grown in Georgia; Assessment Rate
[Federal Register Volume 61, Number 186 (Tuesday, September 24, 1996)]
[Rules and Regulations]
[Pages 49952-49954]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-24241]
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
7 CFR Part 955
[Docket No. FV96-955-1 IFR]
Vidalia Onions Grown in Georgia; Assessment Rate
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Interim final rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: This interim final rule establishes an assessment rate for the
Vidalia Onion Committee (Committee) under Marketing Order No. 955 for
the 1996-97 and subsequent fiscal periods. The Committee is responsible
for local administration of the marketing order which regulates the
handling of Vidalia onions grown in Georgia. Authorization to assess
Vidalia onion handlers enables the Committee to incur expenses that
[[Page 49953]]
are reasonable and necessary to administer the program.
DATES: Effective on September 15, 1996. Comments received by October
24, 1996, will be considered prior to issuance of a final rule.
ADDRESSES: Interested persons are invited to submit written comments
concerning this rule. Comments must be sent in triplicate to the Docket
Clerk, Fruit and Vegetable Division, AMS, USDA, P.O. Box 96456, room
2525-S, Washington, DC 20090-6456, FAX (202) 720-5698. Comments should
reference the docket number and the date and page number of this issue
of the Federal Register and will be available for public inspection in
the Office of the Docket Clerk during regular business hours.
FOR FURTHER INFORMATION CONTACT: Doris Jamieson, Marketing Assistant,
Southeast Marketing Field Office, Fruit and Vegetable Division, AMS,
USDA, P.O. Box 2276, Winter Haven, FL 33883-2276, telephone 941-299-
4770; FAX 941-299-5169, or Martha Sue Clark, Program Assistant,
Marketing Order Administration Branch, Fruit and Vegetable Division,
AMS, USDA, P.O. Box 96456, room 2525-S, Washington, DC 20090-6456,
telephone 202-720-9918; FAX 202-720-5698. Small businesses may request
information on compliance with this regulation by contacting: Jay
Guerber, Marketing Order Administration Branch, Fruit and Vegetable
Division, AMS, USDA, P.O. Box 96456, room 2525-S, Washington, DC 20090-
6456; telephone 202-720-2491; FAX 202-720-5698.
SUPPLEMENTARY INFORMATION: This rule is issued under Marketing
Agreement and Order No. 955, both as amended (7 CFR part 955),
regulating the handling of Vidalia onions grown in Georgia, hereinafter
referred to as the ``order.'' The order is effective under the
Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-
674), hereinafter referred to as the ``Act.''
The Department of Agriculture (Department) is issuing this rule in
conformance with Executive Order 12866.
This rule has been reviewed under Executive Order 12988, Civil
Justice Reform. Under the marketing order now in effect, Vidalia onion
handlers are subject to assessments. Funds to administer the order are
derived from such assessments. It is intended that the assessment rate
as issued herein will be applicable to all assessable Vidalia onions
beginning September 15, 1996, and continuing until amended, suspended,
or terminated. This rule will not preempt any State or local laws,
regulations, or policies unless they present an irreconcilable conflict
with this rule.
The Act provides that administrative proceedings must be exhausted
before parties may file suit in court. Under section 608c(15)(A) of the
Act, any handler subject to an order may file with the Secretary a
petition stating that the order, any provision of the order, or any
obligation imposed in connection with the order is not in accordance
with law and request a modification of the order or to be exempted
therefrom. Such handler is afforded the opportunity for a hearing on
the petition. After the hearing the Secretary would rule on the
petition. The Act provides that the district court of the United States
in any district in which the handler is an inhabitant, or has his or
her principal place of business, has jurisdiction to review the
Secretary's ruling on the petition, provided an action is filed not
later than 20 days after the date of the entry of the ruling.
Pursuant to requirements set forth in the Regulatory Flexibility
Act (RFA), the Agricultural Marketing Service (AMS) has considered the
economic impact of this rule on small entities.
The purpose of the RFA is to fit regulatory actions to the scale of
business subject to such actions in order that small businesses will
not be unduly or disproportionately burdened. Marketing orders issued
pursuant to the Act, and the rules issued thereunder, are unique in
that they are brought about through group action of essentially small
entities acting on their own behalf. Thus, both statutes have small
entity orientation and compatibility.
There are approximately 250 producers of Vidalia onions in the
production area and approximately 145 handlers subject to regulation
under the marketing order. Small agricultural producers have been
defined by the Small Business Administration (13 CFR 121.601) as those
having annual receipts of less than $500,000, and small agricultural
service firms are defined as those whose annual receipts are less than
$5,000,000. The majority of Vidalia onion producers and handlers may be
classified as small entities.
The Vidalia onion marketing order provides authority for the
Committee, with the approval of the Department, to formulate an annual
budget of expenses and collect assessments from handlers to administer
the program. The members of the Committee are producers and handlers of
Vidalia onions. They are familiar with the Committee's needs and with
the costs for goods and services in their local area and are thus in a
position to formulate an appropriate budget and assessment rate. The
assessment rate is formulated and discussed in a public meeting. Thus,
all directly affected persons have an opportunity to participate and
provide input.
The Committee met on August 1, 1996, and unanimously recommended
1996-97 expenditures of $370,000 and an assessment rate of $0.10 per
50-pound bag or equivalent of Vidalia onions. In comparison, last
year's budgeted expenditures were $343,000. The assessment rate of
$0.10 is the same as last year's established rate. Major expenditures
recommended by the Committee for the 1996-97 fiscal period include
$110,000 for marketing, $95,000 for research, $139,000 for program
administration, and $26,000 for compliance. Budgeted expenses for these
items in 1995-96 were $146,500, $48,500, $122,600, and $25,400,
respectively.
The assessment rate recommended by the Committee was derived by
dividing anticipated expenses by expected shipments of Vidalia onions.
Vidalia onion shipments for the year are estimated at 3,614,000 which
should provide $361,400 in assessment income. The Committee also
anticipates shipments of 70,000 50-pound bags of previously unassessed
Vidalia onions which have been in storage, which will yield an
additional $7,000 in assessment income. Income derived from handler
assessments, along with interest income, will be adequate to cover
budgeted expenses. Funds in the reserve will be kept within the maximum
permitted by the order.
While this rule will impose some additional costs on handlers, the
costs are in the form of uniform assessments on all handlers. Some of
the additional costs may be passed on to producers. However, these
costs will be offset by the benefits derived by the operation of the
marketing order. Therefore, the AMS has determined that this rule will
not have a significant economic impact on a substantial number of small
entities. Interested persons are invited to submit information on the
regulatory and informational impacts of this action on small
businesses.
The assessment rate established in this rule will continue in
effect indefinitely unless modified, suspended, or terminated by the
Secretary upon recommendation and information submitted by the
Committee or other available information.
Although this assessment rate is effective for an indefinite
period, the Committee will continue to meet prior to or during each
fiscal period to recommend a budget of expenses and
[[Page 49954]]
consider recommendations for modification of the assessment rate. The
dates and times of Committee meetings are available from the Committee
or the Department. Committee meetings are open to the public and
interested persons may express their views at these meetings. The
Department will evaluate Committee recommendations and other available
information to determine whether modification of the assessment rate is
needed. Further rulemaking will be undertaken as necessary. The
Committee's 1996-97 budget and those for subsequent fiscal periods will
be reviewed and, as appropriate, approved by the Department.
After consideration of all relevant material presented, including
the information and recommendation submitted by the Committee and other
available information, it is hereby found that this rule, as
hereinafter set forth, will tend to effectuate the declared policy of
the Act.
Pursuant to 5 U.S.C. 553, it is also found and determined upon good
cause that it is impracticable, unnecessary, and contrary to the public
interest to give preliminary notice prior to putting this rule into
effect, and that good cause exists for not postponing the effective
date of this rule until 30 days after publication in the Federal
Register because: (1) The Committee needs to have sufficient funds to
pay its expenses which are incurred on a continuous basis; (2) the
1996-97 fiscal period began on September 15, 1996, and the marketing
order requires that the rate of assessment for each fiscal period apply
to all assessable Vidalia onions handled during such fiscal period; (3)
handlers are aware of this action which was unanimously recommended by
the Committee at a public meeting and is similar to other assessment
rate actions issued in past years; and (4) this interim final rule
provides a 30-day comment period, and all comments timely received will
be considered prior to finalization of this rule.
List of Subjects in 7 CFR Part 955
Marketing agreements, Onions, Reporting and recordkeeping
requirements.
For the reasons set forth in the preamble, 7 CFR part 955 is
amended as follows:
PART 955--VIDALIA ONIONS GROWN IN GEORGIA
1. The authority citation for 7 CFR part 955 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
2. A new undesignated center heading--Assessment Rates and a new
Sec. 955.209 are added to read as follows:
Note: This section will appear in the Code of Federal
Regulations.
Assessment Rates
Sec. 955.209 Assessment rate.
On and after September 15, 1996, an assessment rate of $0.10 per
50-pound bag or equivalent is established for Vidalia onions.
Dated: September 17, 1996.
Robert C. Keeney,
Director, Fruit and Vegetable Division.
[FR Doc. 96-24241 Filed 9-23-96; 8:45 am]
BILLING CODE 3410-02-P
Complete official Federal Register PDF
FR Doc. 96-24238 Domestic Dates Produced or Packed in Riverside County, CA; Assessment Rate
[Federal Register Volume 61, Number 186 (Tuesday, September 24, 1996)]
[Rules and Regulations]
[Pages 49955-49957]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-24238]
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
7 CFR Part 987
[Docket No. FV96-987-1 IFR]
Domestic Dates Produced or Packed in Riverside County, CA;
Assessment Rate
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Interim final rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: This interim final rule establishes an assessment rate for the
California Date Administrative Committee (Committee) under Marketing
Order No. 987 for the 1996-97 and subsequent crop years. The Committee
is responsible for local administration of the marketing order which
regulates the handling of domestic dates produced or packed in
Riverside County, California. Authorization to assess date handlers
enables the Committee to incur expenses that are reasonable and
necessary to administer the program.
DATES: Effective on October 1, 1996. Comments received by October 24,
1996 will be considered prior to issuance of a final rule.
ADDRESSES: Interested persons are invited to submit written comments
concerning this rule. Comments must be sent in triplicate to the Docket
Clerk, Fruit and Vegetable Division, AMS, USDA, P.O. Box 96456, room
2523-S, Washington, DC 20090-6456, FAX 202-720-5698. Comments should
reference the docket number and the date and page number of this issue
of the Federal Register and will be available for public
[[Page 49956]]
inspection in the Office of the Docket Clerk during regular business
hours.
FOR FURTHER INFORMATION CONTACT: Martha Sue Clark, Program Assistant,
Marketing Order Administration Branch, Fruit and Vegetable Division,
AMS, USDA, P.O. Box 96456, room 2523-S, Washington, DC 20090-6456,
telephone 202-720-9918, FAX 202-720-5698, or Maureen Pello, Marketing
Specialist, California Marketing Field Office, Fruit and Vegetable
Division, AMS, USDA, suite 102B, 2202 Monterey Street, Fresno,
California 93721, telephone 209-487-5901, FAX 209-487-5906. Small
businesses may request information on compliance with this regulation
by contacting: Jay Guerber, Marketing Order Administration Branch,
Fruit and Vegetable Division, AMS, USDA, P.O. Box 96456, room 2523-S,
Washington, DC 20090-6456, telephone 202-720-2491, FAX 202-720-5698.
SUPPLEMENTARY INFORMATION: This rule is issued under Marketing
Agreement and Order No. 987, both as amended (7 CFR part 987),
regulating the handling of domestic dates produced or packed in
Riverside County, California. The order is effective under the
Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-
674), hereinafter referred to as the ``Act.''
The Department of Agriculture (Department) is issuing this rule in
conformance with Executive Order 12866.
This rule has been reviewed under Executive Order 12988, Civil
Justice Reform. Under the marketing order now in effect, California
date handlers are subject to assessments. Funds to administer the order
are derived from such assessments. It is intended that the assessment
rate as issued herein will be applicable to all assessable dates
beginning October 1, 1996, and continuing until amended, suspended, or
terminated. This rule will not preempt any State or local laws,
regulations, or policies, unless they present an irreconcilable
conflict with this rule.
The Act provides that administrative proceedings must be exhausted
before parties may file suit in court. Under section 608c(15)(A) of the
Act, any handler subject to an order may file with the Secretary a
petition stating that the order, any provision of the order, or any
obligation imposed in connection with the order is not in accordance
with law and request a modification of the order or to be exempted
therefrom. Such handler is afforded the opportunity for a hearing on
the petition. After the hearing the Secretary would rule on the
petition. The Act provides that the district court of the United States
in any district in which the handler is an inhabitant, or has his or
her principal place of business, has jurisdiction to review the
Secretary's ruling on the petition, provided an action is filed not
later than 20 days after the date of the entry of the ruling.
Pursuant to requirements set forth in the Regulatory Flexibility
Act (RFA), the Agricultural Marketing Service (AMS) has considered the
economic impact of this rule on small entities.
The purpose of the RFA is to fit regulatory actions to the scale of
business subject to such actions in order that small businesses will
not be unduly or disproportionately burdened. Marketing orders issued
pursuant to the Act, and the rules issued thereunder, are unique in
that they are brought about through group action of essentially small
entities acting on their own behalf. Thus, both statutes have small
entity orientation and compatibility.
There are approximately 135 producers of California dates in the
production area and approximately 25 handlers subject to regulation
under the marketing order. Small agricultural producers have been
defined by the Small Business Administration (13 CFR 121.601) as those
having annual receipts of less than $500,000, and small agricultural
service firms are defined as those whose annual receipts are less than
$5,000,000. The majority of California date producers and handlers may
be classified as small entities.
The California date marketing order provides authority for the
Committee, with the approval of the Department, to formulate an annual
budget of expenses and collect assessments from handlers to administer
the program. The members of the Committee are producers and handlers of
California dates. They are familiar with the Committee's needs and with
the costs of goods and services in their local area and are thus in a
position to formulate an appropriate budget and assessment rate. The
assessment rate is formulated and discussed in a public meeting. Thus,
all directly affected persons have an opportunity to participate and
provide input.
The Committee met on July 18, 1996, and by a vote of 8 to 1
recommended 1996-97 gross operating expenditures of $60,000 and an
assessment rate of $0.0556 per hundredweight of dates. Included in the
gross operating expenditures is a $40,000 surplus account contribution,
resulting in net operating expenditures of $20,000. In comparison, last
year's net budgeted expenditures were $774,218, after a $42,000 surplus
account contribution was deducted. The assessment rate of $0.0556 is
$2.1944 lower than last year's established rate. The budgeted
expenditures and assessment rate are significantly lower than last year
because the Committee does not plan to conduct promotional activities
under the Federal marketing order. Over the past year, the industry
formed the California Date Commission (Commission), a State
organization that will be conducting promotional activities for the
industry. The no vote on the budget came from a grower who opposed
formation of the Commission and has expressed a concern that the
organization is composed of handlers only and no growers. Major
expenditures recommended by the Committee for the 1996-97 crop year
include $43,586 for salaries and benefits and $14,766 for office
expenses. Budgeted expenses for these items in 1995-96 were $121,500
and $33,300, respectively. Included in the $60,000 gross operating
budget is a $40,000 surplus account contribution, for a net operating
budget of $20,000, $98,000 less than last year.
Under the Federal marketing order, the Committee's staff manages a
surplus pool for low quality dates. The expenses incurred for this
activity are paid for with proceeds from the sale of such dates, not
assessment income.
The assessment rate recommended by the Committee was derived by
dividing anticipated expenses by expected shipments of California
dates. Date shipments for the year are estimated at 360,000
hundredweight, which should provide $20,016 in assessment income, which
will be adequate to cover budgeted expenses. Funds in the reserve will
be kept within the maximum permitted by the order. Funds held by the
Committee at the end of the crop year, including the reserve, which are
in excess of the crop year's expenses may be used to defray expenses
for four months and thereafter the Committee shall refund or credit the
excess funds to the handlers.
This action will reduce the assessment rate to be imposed on
handlers during the 1996-97 crop year. While this rule will impose some
additional costs on handlers, the costs are in the form of uniform
assessments on all handlers. Some of the additional costs may be passed
on to producers. However, these costs will be offset by the benefits
derived from the operation of the marketing order. Therefore, the AMS
has determined that this rule will not have a significant economic
impact on a substantial number of small entities. Interested persons
are invited
[[Page 49957]]
to submit information on the regulatory and informational impacts of
this action on small businesses.
The assessment rate established in this rule will continue in
effect indefinitely unless modified, suspended, or terminated by the
Secretary upon recommendation and information submitted by the
Committee or other available information.
Although this assessment rate is effective for an indefinite
period, the Committee will continue to meet prior to or during each
crop year to recommend a budget of expenses and consider
recommendations for modification of the assessment rate. The dates and
times of Committee meetings are available from the Committee or the
Department. Committee meetings are open to the public and interested
persons may express their views at these meetings. The Department will
evaluate Committee recommendations and other available information to
determine whether modification of the assessment rate is needed.
Further rulemaking will be undertaken as necessary. The Committee's
1996-97 budget and those for subsequent crop years will be reviewed
and, as appropriate, approved by the Department.
After consideration of all relevant material presented, including
the information and recommendation submitted by the Committee and other
available information, it is hereby found that this rule, as
hereinafter set forth, will tend to effectuate the declared policy of
the Act.
Pursuant to 5 U.S.C. 553, it is also found and determined upon good
cause that it is impracticable, unnecessary, and contrary to the public
interest to give preliminary notice prior to putting this rule into
effect, and that good cause exists for not postponing the effective
date of this rule until 30 days after publication in the Federal
Register because: (1) The Committee needs to have sufficient funds to
pay its expenses which are incurred on a continuous basis; (2) the
1996-97 crop year begins on October 1, 1996, and the marketing order
requires that the rate of assessment for each crop year apply to all
assessable dates handled during such crop year; (3) handlers are aware
of this action which was unanimously recommended by the Committee at a
public meeting and is similar to other assessment rate actions issued
in past years; and (4) this interim final rule provides a 30-day
comment period, and all comments timely received will be considered
prior to finalization of this rule.
List of Subjects in 7 CFR Part 987
Dates, Marketing agreements, Reporting and recordkeeping
requirements.
For the reasons set forth in the preamble, 7 CFR part 987 is
amended as follows:
PART 987--DOMESTIC DATES PRODUCED OR PACKED IN RIVERSIDE COUNTY,
CALIFORNIA
1. The authority citation for 7 CFR part 987 is revised to read as
follows:
Authority: 7 U.S.C. 601-674.
2. A new Subpart--Assessment Rates and a new Sec. 987.339 are added
to read as follows:
Note: This section will appear in the Code of Federal
Regulations.
Subpart--Assessment Rates
Sec. 987.339 Assessment rate.
On and after October 1, 1996, an assessment of $0.0556 per
hundredweight is established for California dates.
Dated: September 16, 1996.
Robert C. Keeney,
Director, Fruit and Vegetable Division.
[FR Doc. 96-24238 Filed 9-23-96; 8:45 am]
BILLING CODE 3410-02-P
Complete official Federal Register PDF
FR Doc. 96-24223 Food Labeling: Health Claims and Label Statements; Folate and Neural Tube Defects; Revocation
[Federal Register Volume 61, Number 186 (Tuesday, September 24, 1996)]
[Rules and Regulations]
[Pages 49964-49966]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-24223]
=======================================================================
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Food and Drug Administration
21 CFR Part 101
[Docket No. 93N-0481]
RIN 0910-AA23
Food Labeling: Health Claims and Label Statements; Folate and
Neural Tube Defects; Revocation
AGENCY: Food and Drug Administration, HHS.
ACTION: Final rule.
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SUMMARY: The Food and Drug Administration (FDA) is revoking the
regulation authorizing a health claim on the relationship between folic
acid and neural tube defects on the labels and in the labeling of
dietary supplements that became final by operation of law. The agency
has replaced this revoked regulation with one that it adopted in a
final rule that published in the Federal Register of March 5, 1996 (61
FR 8752).
EFFECTIVE DATE: October 8, 1996.
FOR FURTHER INFORMATION CONTACT: Jeanne I. Rader, Center for Food
Safety and Applied Nutrition (HFS-175), Food and Drug Administration,
200 C St. SW., Washington, DC 20204, 202-205-5375.
SUPPLEMENTARY INFORMATION:
I. Background
The Nutrition Labeling and Education Act of 1990 (the 1990
amendments) (Pub. L. 101-535) amended the Federal Food, Drug, and
Cosmetic Act (the act) to give the Secretary of the Department of
Health and Human Services (the Secretary), and by delegation FDA, the
authority to issue regulations authorizing health claims on the labels
and in the labeling of foods. Section 403(r)(1)(B) of the act (21
U.S.C. 343(r)(1)(B)) provides that a product is misbranded if it bears
a claim that characterizes the relationship of a nutrient to a disease
or health-related condition, unless the claim is made in accordance
with procedures and standards established under section 403(r)(3) and
(r)(5)(D) of the act.
The 1990 amendments also directed the Secretary to determine
through rulemaking whether claims regarding 10 nutrient-disease
relationships met the
[[Page 49965]]
requirements of the act. The relationship of folic acid and neural tube
defects was among those 10 topics (section 3(b)(1)(A)(x) of the 1990
amendments).
A. The 1991 Proposed Rule
In the Federal Register of November 27, 1991 (56 FR 60537), FDA
proposed to not authorize a health claim on folic acid and neural tube
defects. The agency tentatively concluded that there was not
significant scientific agreement, based on the totality of publicly
available scientific evidence, that such a claim would be valid. Thus,
the standard that the act established for health claims for
conventional foods, which FDA had proposed, under section 403(r)(5)(D),
as the standard for health claims for dietary supplements, had not been
met.
B. The Public Health Service Recommendation
In September 1992, following the availability of significant new
data, the Public Health Service (PHS) issued a recommendation that all
women of childbearing age in the United States who are capable of
becoming pregnant should consume 0.4 milligram (mg) of folic acid per
day for the purpose of reducing their risk of having a pregnancy
affected with spina bifida or other neural tube defects. The
recommendation was based on data suggesting that folic acid, when given
at a high dose (4 mg), can reduce the risk of recurrence of neural tube
defects and on studies that used multivitamins containing folic acid at
dose levels from 0 to 1,000 micrograms per day. The PHS recommendation
identified approaches and identified outstanding issues, including the
recommended intake of folate, the potential role of other nutrients in
reducing the risk of neural tube defects, safety concerns, and the
``folate-preventable'' fraction of neural tube defects.
C. The Dietary Supplement Act of 1992
In October 1992, the Dietary Supplement Act of 1992 (the DS act)
was enacted. This statute imposed a moratorium on FDA's implementation
of the 1990 amendments with respect to dietary supplements until
December 15, 1993. The DS act directed FDA to issue proposed rules to
implement the 1990 amendments with respect to dietary supplements by
June 15, 1993, and to issue final rules based on these proposals by
December 31, 1993. The DS act also amended the so-called ``hammer''
provision of the 1990 amendments, section 3(b)(2) of the 1990
amendments, to provide that if the agency did not meet the established
December 31, 1993, timeframe for issuance of final rules, the proposed
regulations would be considered final regulations.
D. The 1993 Final Rules for Health Claims for Food in Conventional Food
Form
In the Federal Register of January 6, 1993 (58 FR 2606), FDA
published a final rule in which it decided not to authorize a health
claim for folic acid and neural tube defects. However, the agency
reaffirmed its support of the PHS recommendation that all women of
childbearing age in the United States who are capable of becoming
pregnant should consume 0.4 mg of folic acid daily to reduce their risk
of having a pregnancy affected with spina bifida or other neural tube
defects. The agency noted, however, that unresolved questions about the
safe use of folate remained. The agency concluded that it could not
authorize a health claim until these questions were resolved. Because
of the DS act, FDA took no final action with respect to the use of a
health claim on folic acid and neural tube defects on dietary
supplements.
E. The 1993 Proposal to Authorize a Health Claim on Folic Acid and
Neural Tube Defects
In the Federal Register of October 14, 1993 (58 FR 53254), FDA
published a proposed rule to authorize the use of a health claim about
the relationship of folate and neural tube defects on the labels of
foods in conventional food form and dietary supplements. FDA
tentatively concluded, based on its discussions with an advisory
committee, that it could ensure the safe use of folate. FDA provided 60
days for comment on this proposed action. The comment period closed on
December 13, 1993.
F. The 1994 Final Rule
Section 3(b)(2) of the 1990 amendments, as amended by section
202(a)(2)(B)(ii) of the DS act, provides that if the Secretary does not
issue final regulations on any of the health claims applicable to
dietary supplements in a timely manner, the proposed regulations shall
be considered final regulations but not until December 31, 1993.
Because FDA was unable to publish a final rule by December 31, 1993, in
the proceeding instituted in October of 1993, FDA published a document
in the Federal Register of January 4, 1994 (59 FR 433), announcing that
the regulation that it had proposed in October 1993 on folate and
neural tube defects was considered to be a final regulation for dietary
supplements by operation of law, effective July 1, 1994.
This document did not conclude the rulemaking begun in October of
1993, however. Rather, the January 4, 1994, document was part of a
separate proceeding that is compelled under section 3(b)(2) of the 1990
amendments (see H. Rept. 101-538, 101st Cong., 2d Sess. 18 and 136
Congressional Record 5842 on the effect of this ``hammer'' provision).
In the January 4, 1994, document FDA stated that the rulemaking
that it instituted in October of 1993 was ongoing, and that it intended
to issue a final rule that would resolve the issues in that ongoing
proceeding. FDA issued that final rule on March 5, 1996 (61 FR 8752).
In the Federal Register of March 5, 1996 (61 FR 8750), FDA proposed
to withdraw the regulation that became final by operation of law on
January 4, 1994 (the January 4, 1994, regulation). FDA tentatively
found that this action is in the best interests of consumers,
manufacturers, and regulatory officials for several reasons.
The agency stated that the January 4, 1994, regulation did not have
the benefit of public comment, and that it reflects FDA's initial views
on the folic acid/neural tube defects health claim and what it should
say. FDA tentatively found from the comments received in response to
the folic acid/neural tube defects health claim proposal that the
January 4, 1994, regulation did not adequately address several issues
related to this health claim. Because the regulation included in the
final rule published in the March 5, 1996, issue of the Federal
Register addressed the comments that the agency received and included
changes that the agency made in response to those comments, FDA
tentatively found that the March 5, 1996, regulation is better able to
implement the act than the January 4, 1994, regulation, and that it
provides for a more useable and scientifically valid health claim.
FDA tentatively found that replacing the January 4, 1994,
regulation with the regulation included in the final rule would not
result in any hardship to manufacturers who have relied on the January
4, 1994, regulation. The regulation in the March 5, 1996, final rule in
most respects was consistent with the January 4, 1994, regulation. The
only differences were those modifications that the agency made to
shorten the claim and to provide more flexibility to those who decide
to use it on their labels or in their labeling.
FDA gave interested persons 30 days to comment on its proposal to
withdraw
[[Page 49966]]
the January 4, 1994, regulation. It also proposed to make any final
rule that issued in this proceeding effective on the date of its
publication. FDA received one comment that addressed this proposed
action. This comment fully supported the agency's proposal.
II. Environmental Impact
In the March 5, 1996 (61 FR 8750 at 8751), proposal FDA stated that
it had determined under 21 CFR 25.24(a)(11) that this action is of a
type that does not individually or cumulatively have a significant
effect on the human environment. FDA received no comments on this
conclusion. Therefore, FDA restates it in this document.
III. Analysis of Other Impacts
In the March 5, 1996 (61 FR 8750 at 8751), proposal FDA announced
that it had fully assessed the effects of the proposed rule under
Executive Order 12866 and the Regulatory Flexibility Act (Pub. L. 96-
354) and found that it was fully consistent with the Executive Order,
and that it will not have a significant impact on a substantial number
of small entities. The agency received no comments on these conclusions
and consequently is restating them in this document.
List of Subjects in 21 CFR Part 101
Food labeling, Nutrition, Reporting and recordkeeping requirements.
Therefore, under the Federal Food, Drug, and Cosmetic Act and under
authority delegated to the Commissioner of Food and Drugs, Sec. 101.79
Health claims; folate and neural tube defects (as published in the
Federal Register of January 4, 1994 (59 FR 434), which became final by
operation of law, is removed. FDA has replaced the January 4, 1994,
regulation with a regulation that appeared in the Federal Register of
March 5, 1996 (61 FR 8779), and is currently codified in the 1996
edition of Title 21 of the Code of Federal Regulations (pp. 131-134).
This document is issued under sections 4, 5, and 6 of the Fair
Packaging and Labeling Act (15 U.S.C. 1453, 1454, and 1455); and
sections 201, 301, 402, 403, 409, and 701 of the Federal Food, Drug,
and Cosmetic Act (21 U.S.C, 321, 331, 342, 343, 348, and 371).
Dated: September 17, 1996.
William K. Hubbard,
Associate Commissioner for Policy Coordination.
[FR Doc. 96-24223 Filed 9-23-96; 8:45 am]
BILLING CODE 4160-01-F
Complete official Federal Register PDF
FR Doc. 96-24212 FY 1996 Police Corps Program
[Federal Register Volume 61, Number 186 (Tuesday, September 24, 1996)]
[Rules and Regulations]
[Pages 49971-49974]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-24212]
[[Page 49971]]
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DEPARTMENT OF JUSTICE
Office of Community Oriented Policing Services
28 CFR Part 92
RIN 1105-AA47
FY 1996 Police Corps Program
AGENCY: Office of the Police Corps and Law Enforcement Education,
Office of Community Oriented Policing Services, Justice.
ACTION: Interim rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: This rule establishes a framework for the Police Corps,
authorized by the Police Corps Act, Title XX, Subtitle A of the Violent
Crime Control and Law Enforcement Act of 1994. For Fiscal Year 1996,
Congress has appropriated $10 million for the operation of the Police
Corps. This regulation is being published under the statutory grant of
authority of the Police Corps Act to issue regulations governing the
process of selection of Police Corps participants.
DATES: This interim rule is effective on September 24, 1996. All
comments must be received by close of business (5:30 p.m. EST) on
October 24, 1996. The length of the comment period has been limited to
thirty days in order to provide States and individuals timely access to
the available program funds. It would be contrary to the public
interest to delay implementation of the program.
ADDRESSES: All comments should be addressed to L. Anthony Sutin, Deputy
Director/General Counsel, Office of Community Oriented Policing
Services, U.S. Department of Justice, 1100 Vermont Avenue, NW.,
Washington, DC 20530.
FOR FURTHER INFORMATION CONTACT: The Department of Justice Response
Center at 1-800-421-6770 or (202) 307-1480, or L. Anthony Sutin, Office
of Community Oriented Policing Services, at (202) 514-3750.
SUPPLEMENTARY INFORMATION: The purpose of this rule is to provide
guidance to States and individuals interested in applying to
participate in the Police Corps. The rule addresses eligibility
requirements, application criteria and procedures, and certain post-
application requirements. The rule is not intended to be a
comprehensive compilation of the administrative requirements of the
Police Corps; the authorizing statute (42 U.S.C. 14091 et seq.) is
quite detailed in a number of respects and those requirements and
provisions are not repeated in the regulation (but are set forth in the
following overview). In addition, other program requirements and
procedures will be formulated by the participating States in light of
their circumstances and needs.
Overview
The Police Corps is administered by the Office of the Police Corps
and Law Enforcement Education (``OPCLEE''), within the Office of
Community Oriented Policing Services, U.S. Department of Justice, in
partnership with participating States that have submitted an approved
State plan. The Police Corps awards scholarships and reimburses
educational expenses to students who agree to work in a State or local
police force for at least four years. Students must pursue an
undergraduate or graduate degree in a course of study which, in the
judgment of the State or local police force to which the participant
will be assigned, includes appropriate preparation for police service.
The service commitment must follow receipt of the baccalaureate degree
or precede commencement of graduate studies funded by the Police Corps.
Police Corps funds cover education expenses (including tuition, fees,
books, supplies, transportation, room and board, and miscellaneous
expenses) up to $7,500 per academic year, with a limit on total
payments to any student of $30,000. Funds are paid directly by the
Department of Justice to the institution of higher education, or to the
participating student in reimbursement for the expenses.
Police Corps scholarship funds also are available to dependent
children of law enforcement officers killed in the line of duty. These
scholarships may be applied to any course of study, without any service
or repayment obligation.
Police Corps participants are selected on a competitive basis by
each State within the framework of this rule. Participation is open to
U.S. citizens and permanent resident aliens who meet the requirements
for admission as a trainee of the police agency to which he or she will
be assigned. Participants also must possess the necessary mental and
physical capabilities and emotional characteristics to be an effective
law enforcement officer, be of good character and demonstrate sincere
motivation and dedication to law enforcement and public service. Until
1999, up to 10% of Police Corps participants may be persons who have
had some law enforcement experience and have demonstrated special
leadership potential and dedication to law enforcement.
Service Obligation: Participants enter into a contract with OPCLEE
for their four-year service commitment. Police Corps participants have
all of the rights and responsibilities of the members of the police
force to which they are assigned. They should be compensated at the
same rate of pay and receive the same benefits as other officers of the
same rank and tenure of their assigned force. If disciplinary matters,
layoffs, or other circumstances preclude fulfillment of the four-year
service requirement, OPCLEE will reassign the participant to an
``equivalent law enforcement service.'' If physical or emotional
disability preclude completion of service; OPCLEE may substitute
participation in community service. If the service obligation is not
satisfactorily completed, the participant will be required to repay all
Police Corps funds received, plus interest at ten percent.
Police agencies that employ Police Corps officers will receive
$10,000 per participant for each year of service, or $40,000 per each
participant who fulfills the four-year service obligation. However, a
police agency may not receive this payment if its average size has
declined by more than 2 percent since January 1, 1993, or if it has
laid off officers.
State Participation: A State or territory that wishes to
participate in the Police Corps must designate a lead agency that will
submit a State plan to OPCLEE and administer the program in the State.
The State plan must provide that the agency will work in cooperation
with local law enforcement liaisons, representatives of police labor
and management organizations, and other appropriate agencies to develop
and implement interagency agreements. The State also must agree to
advertise the availability of Police Corps funds, and make special
efforts to recruit applicants from among members of all racial, ethnic
or gender groups.
The State plan sets out procedures governing assignment of
participants to State and local police agencies. Participants must be
assigned to those geographic areas where there is the greatest need for
additional personnel and where they will be used most effectively.
Where consistent with those objectives, a participant should be
assigned to an area near his or her home or other location of choice.
No participants may be assigned to a police force the size of which has
declined more than 5 percent since 1989 or which has laid off officers.
Up to ten percent of participants may be assigned to the State Police.
The State plan must provide that Police Corps participants will, to
the extent feasible, be assigned to community and preventive patrol.
[[Page 49972]]
To avoid oversubscription of the program, OPCLEE has discretion
regarding the number of State plans that are approved, giving
preference to those that provide law enforcement personnel to areas of
greatest need.
Training: Police corps participants must attend two 8-week training
sessions established by OPCLEE, following the completion of their
sophomore and junior years (unless the participant entered the program
after that point). Training is intended to serve as basic law
enforcement training, designed to include vigorous physical and mental
training to teach participants self-discipline and organizational
loyalty and to impart knowledge and understanding of legal processes
and law enforcement. Each participant is paid $250 per week of training
by OPCLEE.
Under the authorizing statute, OPCLEE may establish and administer
up to three training centers, or contract with existing State training
facilities. OPCLEE is required to contract with a State facility, if
the facility so requests, if OPCLEE determines that the facility offers
training substantially equivalent to that called for under this
provision. OPCLEE also may contract or enter into agreements with other
individuals, universities, federal, state and local government agencies
for training resources. OPCLEE is authorized to expend funds for
effective maintenance of the training centers, including purchases of
supplies, uniforms, and educational materials, and the provision of
subsistence, quarters, and medical care to participants.
Request for Comment: The Office of the Police Corps and Law
Enforcement Education seeks comments on any aspect of the rule.
Administrative Requirements
Executive Order 12866
This regulation has been drafted and reviewed in accordance with
Executive Order 12866, section 1(b), Principles of Regulation. The
Office of Community Oriented Policing Services has determined that this
Interim Rule is not a ``significant regulatory action'' under Executive
Order 12866, section 3(f), Regulatory Planning and Review, and,
accordingly, this Interim Rule has not been reviewed by the Office of
Management and Budget.
Regulatory Flexibility Act
The Director, Office of the Police Corps and Law Enforcement
Education, Office of Community Oriented Policing Services, in
accordance with the Regulatory Flexibility Act, codified at 5 U.S.C.
605(b), has reviewed this regulation and, by approving it, certifies
that this regulation will not have a significant economic impact on a
substantial number of small entities. This Interim Rule builds upon the
statutory outline of a program providing scholarships and educational
assistance to individuals in exchange for a commitment to serve as a
law enforcement officer for four years, and the award of such
scholarships or assistance imposes no requirements on small businesses
or other small entities.
Paperwork Reduction Act
The information collection requirements contained in this interim
rule were submitted for review and clearance to the Office of
Management and Budget, as required by provisions of the Paperwork
Reduction Act, 44 U.S.C. 3504(h). A clearance number of 1103-0035 has
been assigned, with the clearance expiring on February 27, 1997.
List of Subjects in 28 CFR Part 92
Law Enforcement Officers, Scholarships and fellowships, Student
Aid.
For the reasons set out in the preamble, 28 CFR is amended by
adding Part 92 to read as follows:
PART 92--POLICE CORPS ELIGIBILITY AND SELECTION CRITERIA
Sec.
92.1 Scope.
92.2 Am I eligible to apply to participate in the Police Corps?
92.3 How and when should I apply to participate in the Police
Corps?
92.4 How will participants be selected from applicants?
92.5 What educational expenses does the Police Corps cover, and how
will they be paid?
92.6 What colleges or universities can I attend under the Police
Corps?
Authority: 42 U.S.C. 14091.
Sec. 92.1 Scope.
This subpart sets forth guidance on the eligibility for and
selection to participate in the Police Corps. The Police Corps offers
scholarships and educational expense reimbursements to individuals who
agree to serve as a State or local police officer or sheriff's deputy
for four years. In addition, Police Corps participants receive sixteen
weeks of training in basic law enforcement, including vigorous physical
and mental training to teach self-discipline and organizational loyalty
and to impart knowledge and understanding of legal processes and law
enforcement.
Sec. 92.2 Am I eligible to apply to participate in the Police Corps?
(a) You should consider applying to the Police Corps if you are
seeking an undergraduate or graduate degree, and are willing to commit
to four years of service as a member of a State or local police force.
To be eligible to participate in a State Police Corps program, an
individual also must:
(1) Be a citizen of the United States or an alien lawfully admitted
for permanent residence in the United States as of the date of
application;
(2) Meet the requirements for admission as a trainee of the State
or local police force to which the participant will be assigned if
selected, including achievement of satisfactory scores on any
applicable examination, except that failure to meet the age requirement
for a trainee of the State or local police force shall not disqualify
the applicant if the applicant will be of sufficient age upon
completing an undergraduate course of study;
(3) Possess the necessary mental and physical characteristics to
discharge effectively the duties of a law enforcement officer;
(4) Be of good character and demonstrate sincere motivation and
dedication to law enforcement and public service;
(5) In the case of an undergraduate, agree in writing that the
participant will complete an educational course of study leading to the
award of a baccalaureate degree and will then accept an appointment and
complete four years of service as an officer in the State police or in
a local police department within the State;
(6) In the case of a participant desiring to undertake or continue
graduate study, agree in writing that the participant will accept an
appointment and complete 4 years of service as an officer in the State
police or in a local police department within the State before
undertaking or continuing graduate study;
(7) Contract, with the consent of the participant's parent or
guardian if the participant is a minor, to serve four years as an
officer in the State police or in a local police department, if an
appointment is offered; and
(8) Except as provided in paragraph (a)(8)(i) of this section, be
without previous law enforcement experience.
(i) Until September 13, 1999, up to ten percent of the applicants
accepted into the State Police Corps program may be persons who have
had some law enforcement experience and/or have demonstrated special
leadership potential and dedication to law enforcement.
[[Page 49973]]
(b) According to the Debt Collection Procedures Act (Pub. L. 101-
647 as amended), 28 U.S.C. 3201, persons who have incurred a court
judgment in favor of the United States creating a lien against their
property arising from a civil or criminal proceeding regarding a debt
are precluded from receiving Federal funds (including Police Corps
funds) until the judgment lien has been paid in full or otherwise
satisfied.
(c) Educational assistance under the Police Corps Act for any
course of study also is available to a dependent child of a law
enforcement officer:
(1) Who is a member of a State or local police force or is a
Federal criminal investigator or uniformed police officer;
(2) Who is not a participant in the Police Corps program, but
(3) Who serves in a State for which the Director has approved a
Police Corps plan, and
(4) Who is killed in the course of performing policing duties.
(i) For purposes of this assistance, a dependent child means a
natural or adopted child or stepchild of a law enforcement officer who
at the time of the officer's death was no more than 21 years old or, if
older than 21 years, was in fact dependent on the child's parents for
at least one-half of the child's support (excluding educational
expenses), as determined by the Director based on a review of any
available documentation.
(ii) The educational assistance available under this subsection is
subject to the same dollar limitations set forth in Sec. 92.4, but
carries no police service obligation, repayment contingencies, or
requirement for approval of a course of study.
Sec. 92.3 How and when should I apply to participate in the Police
Corps?
(a) The application and selection process occurs at the State
level. An applicant may apply to participate in more than one State
Police Corps program, provided that the applicant is prepared to commit
to serve as a law enforcement officer in the State to which application
is made. Application forms should be obtained from the State Police
Corps agencies.
(b) Applicants may seek admission to the Police Corps either before
commencement of or during the applicant's course of undergraduate or
graduate study. However, acceptance into the Police Corps will be
conditioned on matriculation in or acceptance for admission at a four-
year institution of higher education. Specific application deadlines
will be established by State Police Corps agencies.
Sec. 92.4 How will participants be selected from applicants?
(a) Applicants should be selected competitively based upon
selection criteria developed by the State Police Corps agency pursuant
to this subsection. Appropriate application materials should be
developed by the State Police Corps agency to obtain the information
reasonably needed to make selection and assignment decisions and to
provide required information to the Director.
(b) The State Police Corps agency should develop selection criteria
in consultation with local law enforcement officials, representatives
of police labor organizations and police management organizations, and
other appropriate State and local agencies. Selection criteria should
seek to attract highly qualified individuals with backgrounds and
characteristics likely to assure effective participation in the Police
Corps. Criteria should include consideration of factors bearing on the
statutory eligibility requirements set forth in Sec. 92.1, and may
include (without limitation) consideration of:
(1) Scholastic record;
(2) Work experience;
(3) Extracurricular and/or community involvement;
(4) Letters of recommendation;
(5) Demonstrated interest in policing as a career.
(c) After selection, the State Police Corps agency will forward to
the Director, Office of the Police Corps and Law Enforcement Education
a list of persons selected for admission to the Police Corps. With
respect to each person, the list should set forth:
(1) Name;
(2) Address;
(3) Social security number;
(4) Name and location of law enforcement agency to which the person
has been assigned;
(5) Educational institution in which the person is enrolled or has
been accepted for admission, and course of study;
(6) Date on which the person is expected to commence his/her
service;
(7) Certification that the person has been found to meet the
statutory selection criteria at 42 U.S.C. Sec. 14096;
(8) A Police Corps Agreement signed by the applicant; and
(9) An itemization of the educational expenses that the person is
eligible to receive through scholarship and/or reimbursement.
(i) With respect to individuals identified to receive educational
assistance under Sec. 92.2(c), the list should contain the information
in paragraphs (c) (1), (2), (3), (5) and (9) of this section.
(ii) With respect to the list in the aggregate, a summary of the
racial and gender distribution of the individuals.
(d) After selection, the State Policy Corps agency should notify
applicants of their selection, their agency assignment, and their
assignment to a training class. However, admission to the Police Corps
is not final until the Police Corps Agreement has been signed both by
the applicant and the Director.
Sec. 92.5 What educational expenses does the Police Corps cover, and
how will they be paid?
(a) Educational expenses are paid either in the form of a
scholarship or a reimbursement. Scholarships will be paid where Police
Corps participants are currently enrolled in an approved course of
study in an institution of higher education. Reimbursements will be
paid to participants for educational expenses incurred prior to
admission to the Police Corps. In certain circumstances, a Police Corps
participant may receive a reimbursement for past expenses and a
scholarship for current expenses.
(b) Requests for payment of educational expenses by a Police Corps
participant should be submitted to the Director through the State
Police Corps agency.
(1) Educational expenses are expenses that are directly
attributable to a course of education leading to the award of either a
baccalaureate or graduate degree, and may include:
(i) Tuition, in an amount billed by the institution of higher
education;
(ii) Fees, in an amount billed by the institution of higher
education;
(iii) Cost of books required to be purchased pursuant to the
curriculum in which the candidate is enrolled;
(iv) Cost of transportation from the candidate's home to school,
calculated at actual cost or the current prevailing rate for mileage
reimbursement for federal travel;
(v) Cost of room and board;
(vi) Miscellaneous expenses not to exceed $250 per academic
semester.
(2) A participant receiving a scholarship may submit payment
requests prior to the commencement of each subsequent academic year in
which he/she is enrolled in an institution of higher education.
(3) For participants currently enrolled in an institution of higher
education, each payment request must be accompanied by:
[[Page 49974]]
(i) a certification from the institution that the participant is
maintaining satisfactory academic progress;
(ii) a certification by or on behalf of the State or local police
force to which the participant will be assigned that the participant's
course of study includes appropriate preparation for police service.
(4) The maximum Police Corps payment per participant per academic
year, whether in the form of scholarship or reimbursement, is $7,500.
In the case of a participant who is pursuing a course of educational
study during substantially an entire calendar year, the maximum payment
will be $10,000 per such calendar year.
(5) The total of all Police Corps scholarship or reimbursement
payments to any one participant shall not exceed $30,000.
(6) Police Corps scholarship payments will be made directly to the
institution of higher education that the student is attending. Each
institution of higher education receiving a Police Corps scholarship
payment shall remit to such student any funds in excess of the costs of
tuition, fees, and room and board payable to the institution.
(7) Reimbursements for past expenses will be made directly to the
Police Corps participant. One-quarter of the reimbursement will be made
after completion of each of the four years of the participant's
required service obligation.
Sec. 92.6 What colleges or universities can I attend under the Police
Corps?
(a) The choice of institution is up to the participant, as long as
the institution meets the definition of an ``institution of higher
deduction.'' As defined in 20 U.S.C. 1141(a), an ``institution of
higher education'' means an educational institution in any State which:
(1) admits as regular students only persons having a certificate of
graduation from a school providing secondary education, or the
recognized equivalent of such a certificate,
(2) is legally authorized within such State to provide a program of
education beyond secondary education,
(3) provides an educational program for which it awards a
bachelor's degree or provides not less than a two-year program which is
acceptable for full credit toward such a degree,
(4) is a public or other nonprofit institution, and
(5) is accredited by a nationally recognized accrediting agency or
association, or if not so accredited, is an institution that has been
granted preaccreditation status by such an agency or association that
has been recognized by the Secretary (of Education) for the granting of
preaccreditation status, and the Secretary has determined that there is
satisfactory assurance that the institution will meet the accreditation
standards of such an agency or association within a reasonable time.
(b) Such term also includes any school which provides not less than
a one-year program of training to prepare students for gainful
employment in a recognized occupation and which meets the provisions of
paragraphs (a) (1), (2), (4), and (5) of this section. Such term also
includes a public or nonprofit educational institution in any State
which, in lieu of the requirement in paragraph (a)(1) of this section,
admits as regular students persons who are beyond the age of compulsory
school attendance in the State in which the institution is located.
(c) A Police Corps scholarship only may be used to attend a four-
year institution of higher education, except that:
(1) A scholarship may be used for graduate and professional study;
and
(2) If a participant has enrolled in the Police Corps upon or after
transfer to a four-year institution of higher education, the Director
may reimburse the participant for prior educational expenses.
Dated: September 16, 1996.
Joseph E. Brann,
Director.
[FR Doc. 96-24212 Filed 9-23-96; 8:45 am]
BILLING CODE 4410-01-M
Complete official Federal Register PDF
FR Doc. 96-24077 Fisheries of the Exclusive Economic Zone Off Alaska; Technical Amendment; Correction and Clarification
[Federal Register Volume 61, Number 186 (Tuesday, September 24, 1996)]
[Rules and Regulations]
[Pages 49980-49981]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-24077]
=======================================================================
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 679
[Docket No. 960531152-6254-02; I.D. 081596A]
RIN 0648-AI18
Fisheries of the Exclusive Economic Zone Off Alaska; Technical
Amendment; Correction and Clarification
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule; technical amendment.
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SUMMARY: NMFS is correcting several sections of regulations that
contain minor errors as a result of NMFS' consolidation of all Alaska
regulations into one CFR part in response to the President's Regulatory
Reform Initiative. This final rule does not make substantive changes to
the existing regulations; rather, it corrects changes to text that were
inadvertently made through reorganization of management measures for
use in the groundfish fisheries of the Gulf of Alaska (GOA) and the
Bering Sea and Aleutian Islands management area (BSAI). NMFS is also
correcting several errors in cross-references in the definitions
section that occurred when NMFS issued the final rule to implement
Amendment 1 to the Fishery Management Plan for Scallops off Alaska.
EFFECTIVE DATE: September 24, 1996.
ADDRESSES: Copies of this final rule for this action may be obtained
from: Fisheries Management Division, Alaska Region, NMFS, 709 W. 9th
Street, Room 453, Juneau, AK 99801, or P.O. Box 21668, Juneau, AK
99802, ATTN: Lori J. Gravel.
FOR FURTHER INFORMATION CONTACT: Patsy A. Bearden, NMFS, 907-586-7228.
SUPPLEMENTARY INFORMATION:
Background
NMFS manages the following fisheries in the exclusive economic zone
(EEZ) off Alaska: Groundfish fisheries in the GOA EEZ under the Fishery
Management Plan for Groundfish of the Gulf of Alaska; groundfish
fisheries in the BSAI EEZ under the Fishery Management Plan for the
Groundfish Fishery of the Bering Sea and Aleutian Islands Area;
commercial harvest of BSAI king and Tanner crabs under the Fishery
Management Plan for the Commercial King and Tanner Crab Fisheries in
the Bering Sea and Aleutian Islands; and the commercial harvest of
scallops under the Fishery Management Plan for the Scallop Fishery off
Alaska. These fishery management plans (FMPs) are implemented by
regulations at 50 CFR part 679. General regulations that also pertain
to these fisheries appear in subpart H of 50 CFR part 600. The FMPs
were prepared by the North Pacific Fishery Management Council under the
authority of the Magnuson Fishery Conservation and Management Act.
As part of the President's Regulatory Reform Initiative, NMFS
issued a final rule (61 FR 31228, June 19, 1996) removing parts 671,
672, 673, 675, 676, and 677 of title 50 CFR, and consolidating the
regulations contained therein into one new part (50 CFR part 679). No
substantive changes were made to the regulations by the consolidation
of the six parts. However, due to the complexity of the reorganization,
some errors were introduced into the regulatory text. This rule
corrects those errors. It makes no substantive changes.
On July 23, 1996, NMFS published a final rule (61 FR 38099)
implementing Amendment 1 to the scallop FMP. Under the definition of
``Authorized fishing gear,'' definitions of ``Dive'' and ``Scallop
dredge'' were added and related paragraphs redesignated. However, the
cross-references in the redesignated paragraphs were not revised to
reflect the new numbering. This document corrects those errors.
This action: (1) Clarifies the recordkeeping requirements for
catcher vessels under 60 ft (18.3 m) length overall by specifically
exempting them from the requirement to comply with the recordkeeping
and reporting requirements contained in Sec. 679.5(a)-(k); (2) removes
duplicative text regarding check-in/check-out reports; (3) corrects the
time limit for check-out reports submitted by buying stations
delivering to shoreside processors from 48 hours to 24 hours; (4)
corrects the submittal instructions for Individual Fishing Quota (IFQ)
shipment reports; (5) revises wording in general observer requirements
for catcher/processors or catcher vessels to make grammatically
consistent with related subordinate paragraphs; (6) corrects paragraph
numbering in Research Plan observer coverage responsibilities for
shoreside processors; and (7) corrects cross-references contained in
the definition of ``pelagic trawl'' under ``authorized fishing gear''
in the definitions section.
[[Page 49981]]
Classification
Because this technical amendment makes only minor, non-substantive
corrections to an existing rule, prior notice and opportunity for
public comment would serve no purpose. Accordingly, the Assistant
Administrator for Fisheries, under 5 U.S.C. 553(b)(B), for good cause
finds that prior notice and opportunity for public comment are
unnecessary. Since this rule is non-substantive, it is not subject to a
delay in effective date under 5 U.S.C. 553(d).
Because this rule is being issued without prior comment, it is not
subject to the Regulatory Flexibility Act requirement for a regulatory
flexibility analysis and none has been prepared.
This rule makes minor technical changes to a rule that has been
determined to be not significant under E.O. 12866. No changes in the
regulatory impact previously reviewed and analyzed will result from
implementation of this technical amendment.
List of Subjects in 50 CFR Part 679
Fisheries, Reporting and recordkeeping requirements.
Dated: September 13, 1996.
Rolland A. Schmitten,
Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For 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 part 679 continues to read as
follows:
Authority: 16 U.S.C. 773 et seq., 1801 et seq.
2. In Sec. 679.2, paragraph (9)(iii) introductory text and
paragraphs (9)(iv) and (9)(v) under the definition of ``Authorized
fishing gear'' are revised to read as follows:
Sec. 679.2 Definitions.
* * * * *
Authorized fishing gear * * *
(9) * * *
(iii) Except for the small mesh allowed under paragraph (9)(ix) of
this definition:
* * * * *
(iv) Has no stretched mesh size less than 15 inches (38.1 cm) aft
of the mesh described in paragraph (9)(iii) of this definition for a
distance equal to or greater than one half the vessel's LOA;
(v) Contains no configuration intended to reduce the stretched mesh
sizes described in paragraphs (9)(iii) and (iv) of this definition;
3. In Sec. 679.5, paragraph (a)(1)(i), (h)(2)(i)(B), (h)(2)(ii)(D),
(l)(2)(ii)(A), (l)(2)(iii)(A), and (l)(2)(iii)(C) are revised,
paragraph (h)(2)(i)(C) is removed, and paragraph (a)(1)(iii) is added
to read as follows:
Sec. 679.5 Recordkeeping and reporting.
(a) General requirements--(1) Applicability, Federal fisheries
permit. Except as provided in paragraph (a)(iii) of this section, the
following must comply with the recordkeeping and reporting requirements
of this section:
(i) Any catcher vessel, mothership, catcher/processor, or tender
vessel, 5 net tons or larger, that is required to have a Federal
fisheries permit under Sec. 679.4.
* * * * *
(iii) A catcher vessel less than 60 ft (18.3 m) LOA, is not
required to comply with recordkeeping and reporting requirements
contained in Sec. 679.5(a)-(k).
* * * * *
(h) * * *
(2) * * *
(i) * * *
(B) Mothership, shoreside processor, buying station. Before a
mothership, shoreside processor, or buying station commences receipt of
groundfish from Alaska State or Federal waters of any reporting area
except 300, 400, 550, or 690, the operator or manager must submit by
fax a check-in report (BEGIN message) to the Regional Director.
(ii) * * *
(D) Buying station delivering to a shoreside processor. If a buying
station delivering to a shoreside processor completes delivery of
groundfish, the operator or manager of the buying station must submit
by fax a check-out report to the Regional Director within 24 hours
after departing a reporting area or leaving either the Alaska State or
Federal part of a reporting area.
* * * * *
(2) * * *
(ii) Submittal. (A) A shipment report must be submitted to NMFS
Alaska Enforcement Division prior to shipment or transfer, in a manner
prescribed on the registered buyer permit.
* * * * *
(iii) * * *
(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 NMFS Alaska Enforcement
Division, within 7 days of the date shipment or transfer commenced;
* * * * *
(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 NMFS Alaska Enforcement
Division, within 7 days of the change.
* * * * *
6. In Sec. 679.51, paragraph (a)(2)(v) is revised to read as
follows:
Sec. 679.51 General observer requirements (applicable through December
31, 1996).
(a) * * *
(2) * * *
(v) Participating for more than 3 fishing days in a directed
fishery for groundfish using pot gear must carry a NMFS-certified
observer during at least one fishing trip during a calendar quarter for
each of the groundfish fishery categories defined under paragraph (b)
of this section in which the vessel participates.
* * * * *
Sec. 679.52 [Amended]
7. In Sec. 679.52, paragraph (e)(3) is redesignated as paragraph
(e)(2)(iii), paragraphs (e)(3)(i)-(e)(3)(iii) are redesignated as
paragraphs (e)(2)(iii)(A)-(e)(2)(iii)(C), paragraphs (e)(4)-(e)(6) are
redesignated as paragraphs (e)(2)(iv)-(e)(2)(vi), and paragraphs
(e)(6)(i)-(e)(6)(iii) are redesignated as paragraphs (e)(2)(vi)(A)-
(e)(2)(vi)(C).
[FR Doc. 96-24077 Filed 9-24-96; 8:45 am]
BILLING CODE 3510-22-F
Complete official Federal Register PDF
FR Doc. 96-23828 Department Hearings and Appeals Procedures
[Federal Register Volume 61, Number 186 (Tuesday, September 24, 1996)]
[Rules and Regulations]
[Page 49976]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-23828]
=======================================================================
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DEPARTMENT OF THE INTERIOR
Office of Hearings and Appeals
43 CFR Part 4
Department Hearings and Appeals Procedures
AGENCY: Office of Hearings and Appeals, Interior.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This document eliminates an outdated footnote in regulations,
addressing the organization of the Office of Hearings and Appeals (OHA)
and the authority delegated by the Secretary to the Director and other
principal officials in OHA. The organization and authority is fully
explained in the text of the regulation. This document also eliminates
the words ``and Osage Indian wills'' as a limitation no longer
applicable on the scope of authority of Administrative Law Judges and
Interior Board of Indian Appeals to rule on probate issues from the
Osage Indian Tribe.
EFFECTIVE DATE: September 24, 1996.
FOR FURTHER INFORMATION CONTACT:
James P. Terry, Deputy Director, Office of Hearings and Appeals, U.S.
Department of the Interior, 4015 Wilson Blvd., Arlington, VA 22203.
Telephone: (703) 235-3810.
SUPPLEMENTARY INFORMATION: This action reflects agency management in
deleting nonsubstantive, outdated, and unnecessary language in a
footnote relating to organization and authority of OHA, already fully
described in the current text of Sec. 4.1 of 43 CFR Part 4, Subpart A,
and, similarly, in deleting nonsubstantive, outdated, and inapplicable
language in Sec. 4.1(b)(2)(ii) of 43 CFR Part 4, Subpart A.
Accordingly, the Department has determined that the provisions of the
Administrative Procedures Act, 5 U.S.C. 553 (b) and (d), allowing for
public notice and comment and a 30-day delay in the effective date of a
rule, are unnecessary and impracticable.
List of Subjects in 43 CFR Part 4
Administrative practice and procedure.
Therefore, under the authority of the Secretary of the Interior
contained in 5 U.S.C. 301, Part 4 of Title 43 of the Code of Federal
Regulations, is amended as follows:
PART 4--[AMENDED]
1. The authority citation for Part 4 continues to read:
Authority: R.S. 2478, as amended, 43 U.S.C. sec 1201, unless
otherwise noted.
Subpart A--General; Office of Hearings and Appeals
Sec. 4.1 [Amended]
2. Section 4.1 is amended by removing footnote 1 from the
introductory text of the section.
3. Section 4.1(b)(2)(ii) is revised to read as follows:
Sec. 4.1 Scope of authority; applicable regulations.
* * * * *
(b) * * *
(2) * * *
(ii) Orders and decisions of Administrative Law Judges in Indian
probate matters other than those involving estates of the Five
Civilized Tribes of Indians. The Board also decides such other matters
pertaining to Indians as are referred to it by the Secretary, the
Director of the Office of Hearings and Appeals, or the Assistant
Secretary-Indian Affairs for exercise of review authority of the
Secretary. Special regulations applicable to proceedings before the
Board are contained in subpart D of this part.
* * * * *
Dated: September 6, 1996.
Bonnie R. Cohen,
Assistant Secretary--Policy, Management and Budget.
[FR Doc. 96-23828 Filed 9-23-96; 8:45 am]
BILLING CODE 4310-79-M
Complete official Federal Register PDF
FR Doc. 96-23795 Federal Motor Vehicle Safety Standards; Lamps, Reflective Devices and Associated Equipment
[Federal Register Volume 61, Number 186 (Tuesday, September 24, 1996)]
[Rules and Regulations]
[Pages 49976-49979]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-23795]
=======================================================================
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
49 CFR Part 571
[Docket No. 95-097, Notice 02]
RIN 2127-AF90
Federal Motor Vehicle Safety Standards; Lamps, Reflective Devices
and Associated Equipment
AGENCY: National Highway Traffic Safety Administration (NHTSA),
Department of Transportation.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: In this document, NHTSA transfers most of the requirements of
the Federal motor vehicle safety standard on headlamp concealment
devices to the safety standard on lamps, reflective devices and
associated equipment. The remaining requirements of the standard on
headlamp concealment devices are rescinded. This rule adopts most of
the amendments proposed in the notice of proposed rulemaking. However,
instead of rescinding a requirement that both headlamp concealment
devices be operated by one switch, as proposed, this notice transfers
that requirement to the lighting standard. This action is part of the
President's Regulatory Reinvention Initiative to make regulations
easier to understand and to apply.
DATES: Effective date. This final rule is effective October 24, 1996.
Petitions for reconsideration. Any petitions for reconsideration of
this final rule must be received no later than November 8, 1996.
ADDRESSES: Any petitions for reconsideration of this final rule should
refer to the docket number and notice number cited at the beginning of
this notice, and be submitted to: Administrator, NHTSA, 400 Seventh
Street, SW., Washington, DC 20590.
FOR FURTHER INFORMATION CONTACT: The following persons at the National
Highway Traffic Safety Administration, 400 Seventh Street, SW.,
Washington, DC 20590.
For technical issues: Mr. Richard Van Iderstine, Office of Vehicle
Safety Standards, NPS-11, telephone (202) 366-5280, FAX (202) 366-4329.
For legal issues: Ms. Dorothy Nakama, Office of Chief Counsel, NCC-
20, (202) 366-2992, FAX (202) 366-3820.
[[Page 49977]]
SUPPLEMENTARY INFORMATION:
Background
President's Regulatory Reinvention Initiative
Pursuant to the President's March 4, 1995, directive, ``Regulatory
Reinvention Initiative,'' to the heads of departments and agencies,
NHTSA undertook a review of all its regulations and directives. During
the course of this review, the agency identified not only those rules
or portions of rules that might be deleted or rescinded but also those
rules that could be consolidated to avoid duplication or be redrafted
to make them easier to comprehend. In reviewing Federal Motor Vehicle
Safety Standard No. 112, Headlamp concealment devices (49 CFR 571.112),
the agency tentatively decided that a separate standard for headlamp
concealment devices is not necessary since its essential provisions
could be transferred to Standard No. 108, Lamps, reflective devices,
and associated equipment, without affecting safety.
Standard No. 112
Standard No. 112 specifies requirements for headlamp concealment
devices, which is defined in S3 of the standard as ``a device with its
operating system and components, that provides concealment of the
headlamp when it is not in use, including a movable headlamp cover and
a headlamp that displaces for concealment purposes.'' Headlamp
concealment devices are usually rotating or pop-up headlamp mounts that
appear to be part of an uninterrupted body surface when the headlamps
are not positioned for use. Only a small percentage of vehicles has
ever incorporated them. More extensive use of them in the future is not
anticipated since the trend toward aero-styled headlamps has reduced
their role in styling.
Standard No. 112 requires that fully opened headlamp concealment
devices must remain fully opened whenever there is a loss of power to
or within the device and whenever any malfunction occurs in components
that control or conduct power for the operation of a concealment
device. The standard also has safety performance criteria to increase
the safe and reliable operation of headlamp concealment devices. Means
for fully opening each headlamp concealment device must be provided to
guard against the possibility of a malfunction occurring in components
that control or conduct power for the actuation of the concealment
device. A single mechanism must be provided for actuating the headlamp
concealment devices and illuminating the lights. Each headlamp
concealment device must be designed such that no component of the
device, other than components of the headlamp assembly, need be removed
when mounting, aiming and adjusting the headlamps. Finally, within
specified temperature ranges, headlamp concealment devices must fully
open in three seconds after actuation of the appropriate mechanism,
except in the event of a power loss.
Notice of Proposed Rulemaking
On April 11, 1996, NHTSA published a notice of proposed rulemaking
(NPRM) (61 FR 16073) to transfer most of the requirements of Federal
motor vehicle safety standard on headlamp concealment devices to the
safety standard on lamps, reflective devices and associated equipment.
The agency proposed to rescind remaining requirements of the standard
on headlamp concealment devices. NHTSA proposed to either rescind or
transfer Standard No. 112's provisions as follows. NHTSA proposed that
the definitions of ``headlamp concealment device'' and ``fully opened''
(presently in S3 of Standard 112) be transferred to S4 of Standard 108.
NHTSA proposed to rescind the definition of ``power'' (``any source of
energy that operates the headlamp concealment device'') since NHTSA
believed it is obvious from the context of the requirements that
``power'' includes electrical, pneumatic, vacuum, mechanical, hydraulic
or any other source of energy chosen to operate the headlamp
concealment devices.
NHTSA proposed that S4, S4.1 ,S4.2, S4.4 and S4.5 of Standard No.
211 be transferred to Standard No. 108 and redesignated as S12, S12.1,
S12.2, S12.3 and S12.4, respectively. NHTSA proposed to rescind S4.3's
requirement that both headlamp concealment devices be operated by a
single switch, expressing its belief that S4.3 relates more to
convenience than to safety.
NHTSA further proposed that Standard No. 108's new S12 be a
simplified version of Standard No. 112. NHTSA noted that S4.1(a) of
Standard No. 112 (proposed as S12.1 of Standard No. 108), requires that
when the headlamps are operating with the concealment devices in the
fully opened position, they must remain fully open in the event of
``any loss of power to or within the headlamp concealment device.''
S4.1(b) provides that the requirement for remaining open applies in any
situation in which there is a ``disconnection, restriction, short-
circuit, circuit time delay, or other similar malfunction in any
wiring, tubing, hose, solenoid or other component that controls or
conducts power for operating the concealment device.'' Since S4.1(b) is
merely a more detailed statement of requirement in S4.1(a), NHTSA
tentatively concluded that it was unnecessary to include S4.1(b) in S12
of Standard No. 108.
NHTSA also noted that S4.2 of Standard 112 requires that if the
power to a concealment device is lost when the device is closed, the
device ``shall be capable of being fully opened (a) by automatic means,
(b) by actuation of a switch, lever, or other similar mechanism; or (c)
by any other means not requiring the use of any tools.'' Because
conditions (a) and (b) are examples of ``means not requiring the use of
any tools'' as specified in (c), NHTSA tentatively determined that they
need not be expressly set forth. Therefore, NHTSA proposed that S4.2
paragraphs (a) and (b) of Standard No. 112 not be included in S12.2 of
Standard 108.
Proposed Retention of Timing of Opening and Temperature Requirements
S4.5 of Standard No. 112 requires that each headlamp concealment
device be capable of opening within 3 seconds of the actuation of its
switch, lever or similar mechanism. It specifies that the capability
must exist over a temperature range of -20 deg.F to +120 deg.F. In
the NPRM, NHTSA tentatively concluded that transferring the S4.5
language to Standard No. 108 would be necessary to assure a minimum
level of safety.
The 3 second actuation time limit was the basis for a 1987
amendment to the standard removing a restriction on the opening path of
headlamp concealment devices bearing lighted headlamps. Until 1987,
Standard No. 112 required that the headlamps not be illuminated until
they were in their operating position if the concealment devices moved
through intermediate positions in which the headlamps could produce
more glare than permitted in their operating position. Chrysler
petitioned for changes to make the provision less restrictive. The
agency decided that the requirement for full opening of concealment
devices in 3 seconds already limited the glare in intermediate
positions to no greater duration than the usual glare observed by
drivers viewing oncoming vehicles on curves or hills ahead. Therefore,
all requirements at intermediate positions were eliminated. (52 FR
35709; September 23, 1987).
The actuation time limit has also become the basis for industry
design standards of high intensity discharge (HID) lamps used as
headlamps. HID lamps for other applications have long
[[Page 49978]]
warm-up cycles before achieving their steady intensity, but HID
headlamps use special designs to attain a near steady output within 3
seconds.
The importance of rapid headlamp warm-up and concealment device
opening is illustrated by the example of vehicles exiting lighted
tunnels in which headlamp use is prohibited. Drivers who exit such
tunnels at night would face an obvious hazard if they could not restore
headlamp illumination quickly. Likewise, drivers entering unlighted
tunnels in the daytime would face an obvious hazard if they could not
illuminate their headlamps quickly.
NHTSA proposed to retain and transfer the operating temperature
requirements of Standard No. 112 because they reflect drivers' needs.
The operation of moveable headlamp panels could be easily affected by
lubricants that thicken in cold temperature or by changes in the
clearance between sliding or rotating parts in response to extreme
temperatures.
Other Proposed Changes and Proposed Effective Date
In addition to proposing to add S12 to Standard No. 108, NHTSA also
proposed to take the necessary steps to ensure that S11 and S12 are
placed to follow S10 in the published Code of Federal Regulation
version of Standard No. 108. In Title 49 of the Code of Federal
Regulations (CFR) Parts 400-999, revised as of October 1, 1995, in
Standard No. 108 (49 CFR 571.108), more than 70 pages of figures
separate S10 from S11. NHTSA has received numerous complaints about
S11's out-of-sequence placement in the CFR.
Finally, NHTSA tentatively determined that there is good cause
shown that an effective date earlier than 180 days after issuance is in
the public interest and proposed that, if adopted in a final rule, the
amendments take effect 30 days after the Federal Register publication
of the final rule.
Public Comments and NHTSA Response
In response to the NPRM, NHTSA received comments from the American
Automobile Manufacturers Association (AAMA), Chrysler Corporation, and
the Advocates for Highway and Auto Safety (Advocates). AAMA and
Chrysler concurred with NHTSA's proposal to transfer Standard No. 112's
essential provisions to Standard No. 108. Chrysler stated that the
action ``seems logical and reasonable.'' Advocates expressed the
general view that none of NHTSA's proposed changes would make the
requirements ``easier to understand or to apply,'' and thus ``nothing
of substance is achieved by such action.''
In NHTSA's view, requirements for headlamp concealment devices are
properly part of the standard on lamps, reflective devices and
associated equipment, and would be easier to find if included in that
safety standard. Further, streamlining the transferred requirements by
removing unnecessary or repetitive language would facilitate reading of
the headlamp concealment requirements.
Advocates strongly opposed NHTSA's proposal to remove the
requirement (in S4.3 of Standard No. 112) that both headlamp
concealment devices be operated by a single switch. Advocates
characterized the requirement as a ``central safety feature of headlamp
concealment device operation,'' and suggested instances in which, if
both headlamps were not simultaneously lighted, a crash or other
accident might occur.
Advocates stated that ``the various forms of disablement in many
thousands of drivers'' might make it difficult or impossible for some
drivers to activate a second headlamp with a second switch shortly
after activating the first headlamp. Advocates also stated that there
are numerous highway operating situations in which a driver's safety
might be seriously compromised if the deployment of the second headlamp
were unnecessarily delayed. The commenter stated that highway
construction areas that use temporary traffic control devices, such as
retroreflective cones, may have abrupt curves or horizontal sight
restrictions which would make being able to obtain quick, ample
illumination below the horizon, by both headlamps, crucial for a
driver.
NHTSA has decided not to rescind the requirement of S4.3 as
proposed. As Advocates' comment makes clear, while a single switch may
be a convenience to many drivers, it is a necessity for other drivers.
Further, the requirement may promote vehicle safety under some driving
conditions. Since S4.3 is a longstanding provision in Standard No. 112,
transferring S4.3 to Standard No. 108 would not impose an additional
regulatory burden on industry. The provisions of S4.3 are thus
transferred to Standard No. 108.
Final Rule
As discussed above, the final rule adopts the regulatory text
proposed in the NPRM, except that the text of S4.3 of Standard No. 112
is also transferred to Standard No. 108 and designated as S12.3. To
accommodate the addition of S12.3, the other S12 provisions are
renumbered accordingly.
NHTSA has taken the necessary steps to ensure that S11 and S12 are
placed immediately after S10 in the published version in Standard No.
108. NHTSA has received oral assurance from an editor at the Office of
the Code of Federal Regulations that in the October 1, 1996 edition of
49 CFR 571.108, S11 will be placed immediately after S10. Similarly,
S12 will be placed immediately after S11.
To make Standard No. 108 easier to understand, NHTSA adds a heading
``Figures and Tables to Sec. 571.108'' after S12. NHTSA also places the
following figures in their logical sequence: Figures 1a, 1b, and 1c
(which at present follow S5.1.1.6) and Figure 2 (which at present
follows S5.1.1.18) are moved to follow the new heading for Standard No.
108 figures, and to precede Figure 4-1.
NHTSA received no comment on its proposal that the final rule take
effect 30 days after it is published. NHTSA adopts as final its
tentative conclusion that there is good cause shown that an effective
date earlier than 180 days after issuance is in the public interest.
This rule will not compromise safety and will not make substantive
changes to the present requirements for headlamp concealment devices.
This final rule takes effect 30 days after its publication in the
Federal Register.
Rulemaking Analyses and Notices
Executive Order 12866 and DOT Regulatory Policies and Procedures
This rulemaking document was not reviewed under E.O. 12866,
``Regulatory Planning and Review.'' NHTSA has analyzed the impact of
this rulemaking action and determined that it is not ``significant''
under the Department of Transportation's regulatory policies and
procedures. This final rule does not impose any additional costs and
yields no savings because this rule makes no substantive changes in
requirements for headlamp concealment devices and only makes
administrative changes. Since there are no impacts, preparation of a
full regulatory evaluation is not warranted.
Regulatory Flexibility Act
NHTSA has also considered the impacts of this rule under the
Regulatory Flexibility Act. I hereby certify that this rule will not
have a significant economic impact on a substantial number of small
entities. As noted above, this final rule simplifies the language and
requirements of the standard and results in all of the headlamp
provisions being grouped
[[Page 49979]]
together in one standard. It does not affect any costs associated with
the manufacture or sale of vehicles. Accordingly, a final regulatory
flexibility analysis has not been prepared.
National Environmental Policy Act
NHTSA has also analyzed this final rule under the National
Environmental Policy Act and determined that it will not have any
significant impact on the quality of the human environment.
Executive Order 12612 (Federalism)
NHTSA has analyzed this final rule in accordance with the
principles and criteria contained in E.O. 12612, and has determined
that it will not have significant federalism implications to warrant
the preparation of a Federalism Assessment.
Civil Justice Reform
This final rule has no retroactive effect. Under 49 U.S.C. 30103,
whenever a Federal motor vehicle safety standard is in effect, a state
may not adopt or maintain a safety standard applicable to the same
aspect of performance which is not identical to the Federal standard,
except to the extent that the state requirement imposes a higher level
of performance and applies only to vehicles procured for the state's
use. 49 U.S.C. 30161 sets forth a procedure for judicial review of
final rules establishing, amending or revoking Federal motor vehicle
safety standards. That section does not require submission of a
petition for reconsideration or other administrative proceedings before
parties may file suit in court.
List of Subjects in 49 CFR Part 571
Imports, Motor vehicles, Motor vehicle safety, Rubber and rubber
products, Tires.
In consideration of the foregoing, NHTSA amends 49 CFR part 571 as
follows:
PART 571--[AMENDED]
1. The authority citation for part 571 continues to read as
follows:
Authority: 49 U.S.C. 322, 30111, 30115, 30117, and 30166;
delegation of authority at 49 CFR 1.50.
2. Section 571.108 is amended by adding in S4, in alphabetical
order, definitions of ``Fully opened'' and ``Headlamp concealment
device,'' and adding S12 and S12.1 through S12.5 after S11, to read as
follows:
Sec. 571.108 Standard No. 108; Lamps, reflective devices, and
associated equipment.
* * * * *
S4. Definitions.
* * * * *
Fully opened means the position of the headlamp concealment device
in which the headlamp is in the design open operating position.
Headlamp concealment device means a device, with its operating
system and components, that provides concealment of the headlamp when
it is not in use, including a movable headlamp cover and a headlamp
that displaces for concealment purposes.
* * * * *
S12. Headlamp Concealment Devices.
S12.1 While the headlamp is illuminated, its fully opened headlamp
concealment device shall remain fully opened should any loss of power
to or within the headlamp concealment device occur.
S12.2 Whenever any malfunction occurs in a component that controls
or conducts power for the actuation of the concealment device, each
closed headlamp concealment device shall be capable of being fully
opened by a means not requiring the use of any tools. Thereafter, the
headlamp concealment device must remain fully opened until
intentionally closed.
S12.3 Except for malfunctions covered by S12.2, each headlamp
concealment device shall be capable of being fully opened and the
headlamps illuminated by actuation of a single switch, lever, or
similar mechanism, including a mechanism that is automatically actuated
by a change in ambient light conditions.
S12.4 Each headlamp concealment device shall be installed so that
the headlamp may be mounted, aimed, and adjusted without removing any
component of the device, other than components of the headlamp
assembly.
S12.5 Except for cases of malfunction covered by S12.2, each
headlamp concealment device shall, within an ambient temperature range
of -20 deg. F. to +120 deg. F., be capable of being fully opened in not
more than 3 seconds after the actuation of a driver-operated control.
* * * * *
Sec. 571.108 [Amended]
3. In Sec. 571.108, a new heading is added following S12.5 and
preceding the figures and tables, to read ``Figures and Tables to
Sec. 571.108''.
4. In Sec. 571.108, Figures 1a, 1b and 1c which follow S5.1.1.6,
and Figure 2 which follows S5.1.1.18, are moved to appear in numerical
order after the heading ``Figures for Sec. 571.108'' and before Figure
4-1.
Sec. 571.112 [Removed]
5. Section 571.112 is removed in its entirety and reserved.
Issued on: September 11, 1996.
Ricardo Martinez,
Administrator.
[FR Doc. 96-23795 Filed 9-23-96; 8:45 am]
BILLING CODE 4910-59-P
Complete official Federal Register PDF
FR Doc. 96-23436 Fishermen's Protective Act Guaranty Fund Procedures
[Federal Register Volume 61, Number 186 (Tuesday, September 24, 1996)]
[Rules and Regulations]
[Pages 49966-49969]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-23436]
=======================================================================
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DEPARTMENT OF STATE
22 CFR Part 33
[Public Notice 2425]
Fishermen's Protective Act Guaranty Fund Procedures
AGENCY: Department of State.
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: The Department of State issues this direct final rule to
revise the administration of the Fishermen's Guaranty Fund under
section 7 of the Fishermen's Protective Act of 1967, as amended (the
Act). These revisions are made in partial fulfillment of the
Department's commitment that certain regulations would be modified or
eliminated as part of the President's Regulatory Reinvention
Initiative. The revisions are also need to reflect the recent
reauthorization of the Fishermen's Guaranty Fund, as well as amendments
related to fees charged for participation the Guaranty Fund, and to
reflect changes in the criteria for claims to be eligible for
compensation under the Act.
This revision provides a single set of guidelines for compensation.
EFFECTIVE DATE: This action is effective January 23, 1997, unless
notice is received on or before November 25, 1996 that adverse or
critical comments will be submitted. If the effective date is delayed,
timely notice will be published in the Federal Register.
ADDRESSES: Send comments to Bureau of Oceans and International
Environmental and Scientific Affairs, Office of Marine Conservation,
Room 7820, U.S. Department of State, Washington, DC 20520-7818.
FOR FURTHER INFORMATION CONTACT:
Stetson Tinkham, Office of Marine Conservation, (202) 647-3941.
SUPPLEMENTARY INFORMATION: Section 7 of the Act established the
Guaranty Fund, and Section 408 of Public Law 99-659, November 14, 1986,
transferred the administration of the Fund from the Department of
Commerce to the Department of State, effective October 1, 1986. The
Fishermen's Guaranty Fund regulations formerly appeared as Department
of Commerce regulations at 50 CFR Part 258.
The Guaranty Fund compensates U.S. fishing vessel owners who have
entered into guaranty agreements for certain losses caused by the
seizure and detention of their vessels by foreign countries. Losses
covered by the Guaranty Fund include: confiscation, spoilage, damage,
lost fishing time, and other incidental costs. Fees for these
agreements historically have paid about 60 percent of claims; about 40
percent of claims have been paid from direct appropriations. To
implement this rule, the Department of State does not intend to seek
annual direct appropriations, but will operate the Fund based on fees
collected from participants and on funds which remain available from
prior year balances. A separate fee notice will be published for each
fiscal year. This direct final rule clarifies the procedure for
submission of claims, the processing of guaranty agreement
applications, and the computations involved in adjudicating those
claims.
The Secretary of State also administers a separate program, the
Fishermen's Protective Fund, under Section 3 of the Act. Under the
Fishermen's Protective Fund, vessel owners may apply for reimbursement
of fines, license fees, registration fees, or any other direct charge
imposed by a foreign country to secure the release of a seized vessel.
Claims under the Protective Fund are paid from direct appropriations.
The publication of this Department of State direct final rule was
delayed pending reauthorization of the Fishermen's Guaranty Fund
program. Title IV of Public Law 104-43 amended and reauthorized the
program on November 3, 1995. Other legislative changes, such as the
change in the U.S. position on the international law respecting highly
migratory species, effective upon the President's signing of Public Law
101-627, and other measures in Public Law 104-43 dealing with high seas
fishing have been taken into account in this direct final rule.
The method of computing compensation of lost fishing time is
standardized. Depreciated replacement cost is made the standard
compensation basis for capital equipment other than vessels. The
standard compensation basis for vessels remains market value.
This rule will be open for public comment for a period of sixty
(60) days following publication. Unless adverse comment is received
within that period, the rule will become final thirty days after the
publication of a separate ``confirmation notice'' at the close of the
comment period. That confirmation notice will be accompanied by a
notice establishing the fee for participation in the Fishermen's
Guaranty Fund for FY 1997.
This action is not subject to Executive Order 12866 but has been
reviewed to ensure consistency with the overall policies and purposes
of that order. The action creates no unfunded mandates on State, local,
and tribal governments, or on the private sector, nor does it require
[[Page 49967]]
initial or a final regulatory flexibility analysis under the Regulatory
Flexibility Act.
The rule imposes no new collection of information requirements for
the purposes of the Paperwork Reduction Act. It continues existing
requirements which have been approved by the Office of Management and
Budget under Control Number 0648-0095.
This rule is being done as a direct final rule because the rule
involves changes to a program providing a claims benefit to certain
members of the public. These changes are designed to ease the process
of applying for these funds. We believe they will be non-controversial
and will not engender adverse comment. For these reasons, notice and
comment is not required under 5 U.S.C. 553(a)(2), and in any case that
good cause exists that notice and public procedures are unnecessary
under 5 U.S.C. 553(b)(3)(B). In order to provide some opportunity for
public input, however, we have chosen to use the direct final format
with a 60 day period for comment.
List of Subjects in 22 CFR Part 33
Administrative practice and procedure, Claims, Fisheries, Fishing
vessels, Penalties, Seizures and forfeitures.
22 CFR part 33 is revised to read as follows:
PART 33--FISHERMEN'S PROTECTIVE ACT GUARANTY FUND PROCEDURES UNDER
SECTION 7
Sec.
33.1 Purpose.
33.2 Definitions.
33.3 Eligibility.
33.4 Applications.
33.5 Guaranty Agreement.
33.6 Fees.
33.7 Conditions for claims.
33.8 Claim procedure.
33.9 Amount of award.
33.10 Payments.
33.11 Records.
33.12 Penalties.
Authority: 22 U.S.C. 1977.
Sec. 33.1 Purpose.
These rules clarify procedures for the administration of Section 7
of the Fishermen's Protective Act of 1967. Section 7 of the Act
establishes a Fishermen's Guaranty Fund to reimburse owners and
charterers of United States commercial fishing vessels for certain
losses and costs caused by the seizure and detention of their vessels
by foreign countries under certain claims to jurisdiction not
recognized by the United States.
Sec. 33.2 Definitions.
For the purpose of this part, the following terms mean:
Act. The Fishermen's Protective Act of 1967 (22 U.S.C. 1971 et
seq.).
Capital equipment. Equipment or other property which may be
depreciated for income tax purposes.
Depreciated replacement costs. The present replacement cost of
capital equipment after being depreciated on a straight line basis over
the equipment's depreciable life, which is standardized at ten years.
Downtime. The time a vessel normally would be in port or transiting
to and from the fishing grounds.
Expendable items. Any property, excluding that which may be
depreciated for income tax purposes, which is maintained in inventory
or expensed for tax purposes.
Fund. The Fishermen's Guaranty Fund established in the U.S.
Treasury under section 7(c) of the Act (22 U.S.C. 1977(c)).
Market value. The price property would command in a market, at the
time of property loss, assuming a seller willing to sell and buyer
willing to buy.
Other direct charge. Any levy which is imposed in addition to, or
in lieu of any fine, license fee, registration fee, or other charge.
Owner. The owner or charterer of a commercial fishing vessel.
Secretary. The Secretary of State or the designee of the Secretary
of State.
Seizure. Arrest of a fishing vessel by a foreign country for
allegedly illegal fishing.
U.S. fishing vessel. Any private vessel documented or certified
under the laws of the United States as a commercial fishing vessel.
Sec. 33.3 Eligibility.
Any owner or charterer of a U.S. fishing vessel is eligible to
apply for an agreement with the Secretary providing for a guarantee in
accordance with section 7 of the Act.
Sec. 33.4 Applications.
(a) Applicant. An eligible applicant for a guaranty agreement must:
(1) Own or charter a U.S. fishing vessel; and
(2) Submit with his application the fee specified in Sec. 33.6
below.
(b) Applicaton forms. Application forms may be obtained by
contacting the Office of Marine Conservation, Bureau of Oceans and
International Environmental and Scientific Affairs, Room 7820, U.S.
Department of State, Washington, DC 20520-7818; Telephone 202-647-3941.
(c) Where to apply. Applications must be submitted to the Director,
Office of marine Conservation, Bureau of Oceans and International
Environmental and Scientific Affairs, Room 7820, U.S. Department of
State, Washington, DC 20520-7818.
(d) Applicaton approval. Application approval will be by execution
of the guaranty agreement by the Secretary or by the Secretary's
designee.
Sec. 33.5 Guaranty agreements.
(a) Period in effect. Agreements are effective for a Fiscal Year
beginning October 1 and ending on the next September 30. Applications
submitted after October 1 are effective from the date the application
and fee are mailed (determined by the postmark) through September 30.
(b) Guaranty agreement transfer. A guaranty agreement may, with the
Secretary's prior consent, be transferred when a vessel which is the
subject of a guaranty agreement is transferred to a new owner if the
transfer occurs during the agreement period.
(c) Guaranty agreement renewal. A guaranty agreement may be renewed
for the next agreement year by submitting an application form with the
appropriate fee for the next year in accordance with the Secretary's
annually published requirements regarding fees. Renewals are subject to
the Secretary's approval.
(d) Provisions of the agreement. The agreement will provide for
reimbursement for certain losses caused by foreign countries' seizure
and detention of U.S. fishing vessels on the basis of claims to
jurisdiction which are not recognized by the United States. Recent
amendments to the Magnuson Fishery Conservation and Management Act (16
U.S.C. (1801 et seq.) assert U.S. jurisdiction over highly migratory
species of tuna in the U.S. exclusive economic zone (EEZ). Accordingly,
as a matter of international law, the United States now recognizes
other coastal states' claims to jurisdiction over tuna in their EEZ'S.
This change directly affect certification of claims filed under the
Fishermen's Protective Act. Participants are advised that this means
that the Department will no longer certify for payment claims resulting
from the seizure of a U.S. vessel while such vessel was fishing for
tuna within the exclusive economic zone of another country in violation
of that country's laws. Claims for detentions or seizures based on
other claims to jurisdiction not recognized by the United States, or on
the basis of claims to jurisdiction recognized by the United States but
exercised in a manner inconsistent with international law as recognized
by the
[[Page 49968]]
United states, may still be certified by the Department.
Sec. 33.6 Fees.
(a) General. Fees provide for administrative costs and payment of
claims. Fees are set annually on the basis of past and anticipated
claim experience. The annual agreement year for which fees are payable
starts on October 1 and ends on September 30 of the following year.
(b) Amount and payment. The amount of each annual fee or adjusted
fee will be established by the Office Director of the Office of Marine
Conservation, Bureau of Oceans and International Environmental and
Scientific Affairs, by publication of a notice in the Federal Register.
Each notice will establish the amount of the fee, when the fee is due,
when the fee is payable, and any special conditions surrounding
extension of prior agreements or execution of new agreements. Unless
otherwise specified in such notices, agreement coverage will commence
with the postmarked date of the fee payment and application.
(c) Adjustment and refund. Fees may be adjusted at any time to
reflect actual seizure and detention experience for which claims are
anticipated. Failure to submit adjusted fees will result in agreement
termination as of the date the adjusted fee is payable. No fees will be
refunded after an agreement is executed by the Secretary.
(d) Disposition. All fees will be deposited in the Fishermen's
Guaranty Fund. They will remain available without fiscal year
limitation to carry out section 7 of the Act. Claims will be paid from
fees and from appropriated funds, if any. Fees not required to pay
administrative costs or claims may be invested in U.S. obligations. All
earnings will be credited to the Fishermen's Guaranty Fund.
Sec. 33.7 Conditions for claims.
(a) Unless there is clear and convincing credible evidence that the
seizure did not meet the requirements of the Act, payment of claims
will be made when:
(1) A covered vessel is seized by a foreign country under
conditions specified in the Act and the guaranty agreement; and
(2) The incident occurred during the period the guaranty agreement
was in force for the vessel involved.
(b) Payments will be made to the owner for:
(1) All actual costs (except those covered by section 3 of the Act
or reimbursable from some other source) incurred by the owner during
the seizure or detention period as a direct result thereof, including:
(i) Damage to, or destruction of, the vessel or its equipment; or
(ii) Loss or confiscation of the vessel or its equipment; and
(iii) Dockage fees or utilities;
(2) The market value of fish or shellfish caught before seizure of
the vessel and confiscated or spoiled during the period of detention;
and
(3) Up to 50 percent of the vessel's gross income lost as a direct
result of the seizure and detention.
(c) The exceptions are that no payment will be made from the Fund
for a seizure which is:
(1) Covered by any other provision of law (for example, fines,
license fees, registration fees, or other direct charges payable under
section 3 of the Act);
(2) Made by a country at war with the United States;
(3) In accordance with any applicable convention or treaty, if that
treaty or convention was made with the advice and consent of the Senate
and was in force and effect for the United States and the seizing
country at the time of the seizure;
(4) Which occurs before the guaranty agreement's effective date or
after its termination;
(5) For which other sources of alternative reimbursement have not
first been fully pursued (for example, the insurance coverage required
by the agreement and valid claims under any law);
(6) For which material requirements of the guaranty agreement, the
Act, or the program regulations have not been fully fulfilled; or
(7) In the view of the Department of State occurred because the
seized vessel was undermining or diminishing the effectiveness of
international conservation and management measures recognized by the
United States, or otherwise contributing to stock conservation problems
pending the establishment of such measures.
Sec. 33.8 Claim procedures.
(a) Where and when to apply. Claims must be submitted to the Office
Director, Office of Marine Conservation, Bureau of Oceans and
International Environmental and Scientific Affairs, Room 7820, U.S.
Department of State, Washington, DC 20520-7818. Claims must be
submitted within ninety (90) days after the vessel's release. Requests
for extension of the filing deadline must be in writing and approved by
the Office Director, Office of Marine Conservation, Bureau of Oceans
and International Environmental and Scientific Affairs.
(b) Contents of claim. All material allegations of a claim must be
supported by documentary evidence. Foreign language documents must be
accompanied by an authenticated English translation. Claims must
include:
(1) The captain's sworn statement about the exact location and
activity of the vessel when seized;
(2) Certified copies of charges, hearings, and findings by the
government seizing the vessel;
(3) A detailed computation of all actual costs directly resulting
from the seizure and detention, supported by receipts, affidavits, or
other documentation acceptable to the Office Director, Office of Marine
Conservation, Bureau of Oceans and International Environmental and
Scientific Affairs;
(4) A detailed computation of lost income claimed, including:
(i) The date and time seized and released;
(ii) The number of miles and running time from the point of seizure
to the point of detention;
(iii) The total fishing time lost (explain in detail if lost
fishing time claimed is any greater than the elapsed time from seizure
to the time required after release to return to the point of seizure);
(iv) The tonnage of catch on board at the time of seizure;
(v) The vessel's average catch-per-day's fishing for the three
calendar years preceding the seizure;
(vi) The vessel's average downtime between fishing trips for the
three calendar years preceding the seizure; and
(vii) The price-per-pound for the catch on the first day the vessel
returns to port after the seizure and detention unless there is a pre-
negotiated price-per-pound with a processor, in which case the pre-
negotiated price must be documented; and
(5) Documentation for confiscated, damaged, destroyed, or stolen
equipment, including:
(i) The date and cost of acquisition supported by invoices or other
acceptable proof of ownership; and
(ii) An estimate from a commercial source of the replacement or
repair cost.
(c) Burden of proof. The claimant has the burden of proving all
aspects of the claim, except in cases of dispute over the facts of the
seizure where the claimant shall have the presumption that the seizure
was eligible unless there is clear and convincing credible evidence
that the seizure did not meet the eligibility standards of the Act.
Sec. 33.9 Amount of award.
(a) Lost fishing time. Compensation is limited to 50 percent of the
gross
[[Page 49969]]
income lost as a direct result of the seizure and detention, based on
the value of the average catch-per-day's fishing during the three most
recent calendar years immediately preceding the seizure as determined
by the Secretary, based on catch rates on comparable vessels in
comparable fisheries. The compensable period for cases of seizure and
detention not resulting in vessels confiscation is limited to the
elapsed time from seizure to the time after release when the vessel
could reasonably be expected to return to the point of seizure. The
compensable period in cases where the vessel is confiscated is limited
to the elapsed time from seizure through the date of confiscation, plus
an additional period to purchase a replacement vessel and return to the
point of seizure. In no case can the additional period exceed 120 days.
(1) Compensation for confiscation of vessels, where no buy-back has
occurred, will be based on market value which will be determined by
averaging estimates of market value obtained from as many vessel
surveyors or brokers as the Secretary deems practicable;
(2) Compensation for capital equipment other than vessel, will be
based on depreciated replacement cost;
(3) Compensation for expendable items and crew's belongings will be
50 percent of their replacement costs; and
(4) Compensation for confiscated catch will be for full value,
based on the price-per-pound.
(b) Fuel expense. Compensation for fuel expenses will be based on
the purchase price, the time required to run to and from the fishing
grounds, the detention time in port, and the documented fuel
consumption of the vessel.
(c) Stolen or confiscated property. If the claimant was required to
buy back confiscated property from the foreign country, the claimant
may apply for reimbursement of such charges under section 3 of the Act.
Any other property confiscated is reimbursable from this Guaranty Fund.
Confiscated property is divided into the following categories:
(1) Compensation for confiscation of vessels, where no buy-back has
occurred, will be based on market value which will be determined by
averaging estimates of market value obtained from as many vessel
surveyors or brokers as the Secretary deems practicable;
(2) Compensation for capital equipment other than a vessel, will be
based on depreciated replacement cost;
(3) Compensation for expendable items and crew's belongings will be
50 percent of their replacement cost; and
(4) Compensation for confiscated catch will be for full value,
based on the price-per-pound.
(d) Insurance proceeds. No payments will be made from the Fund for
losses covered by any policy of insurance or other provisions of law.
(f) Appeals. All determinations under this section are final and
are not subject to arbitration or appeal.
Sec. 33.10 Payments.
The Office Director, Office of Marine Conservation, Bureau of
Oceans and International Environmental and Scientific Affairs, will pay
the claimant the amount calculated under Sec. 33.9. Payment will be
made as promptly as practicable, but may be delayed pending the
appropriation of sufficient funds, should fee collections not be
adequate to sustain the operation of the Fund. The Director shall
notify the claimant of the amount approved for payment as promptly as
practicable and the same shall thereafter constitute a valid, but non-
interest bearing obligation of the Government. Delays in payments are
not a direct consequence of seizure and detention and cannot therefore
be construed as increasing the compensable period for lost fishing
time. If there is a question about distribution of the proceeds of the
claim, the Director may request proof of interest from all parties, and
will settle this issue.
Sec. 33.11 Records.
The Office Director, Office of Marine Conservation, Bureau of
Oceans and International Environmental and Scientific Affairs will have
the right to inspect claimants' books and records as a precondition to
approving claims. All claims must contain written authorization of the
guaranteed party for any international, federal, state, or local
governmental Agencies to provide the Office Director, Office of Marine
Conservation, Bureau of Oceans and International Environmental and
Scientific Affairs any data or information pertinent to a claim.
Sec. 33.12 Penalties.
Persons who willfully make any false or misleading statement or
representation to obtain compensation from the Fund are subject to
criminal prosecution under 22 U.S.C. 1980(g). This provides penalties
up to $25,000 or imprisonment for up to one year, or both. Any evidence
of criminal conduct will be promptly forwarded to the United States
Department of Justice for action. Additionally, misrepresentation,
concealment, or fraud, or acts intentionally designed to result in
seizure, may void the guaranty agreement.
Dated: August 13, 1996.
Eileen Claussen,
Assistant Secretary for Oceans and International Environmental and
Scientific Affairs.
[FR Doc. 96-23436 Filed 9-23-96; 8:45 am]
BILLING CODE 4710-09-M
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