Pages 34453±34842 Vol. 60 7±3±95 No. 127 federal register July 3,1995 Monday announcement ontheinsidecoverofthisissue. For informationonbriefinginWashington,DC,see Briefings onHowToUsetheFederalRegister 1 II Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995
SUBSCRIPTIONS AND COPIES
PUBLIC Subscriptions: Paper or fiche 202–512–1800 FEDERAL REGISTER Published daily, Monday through Friday, Assistance with public subscriptions 512–1806 (not published on Saturdays, Sundays, or on official holidays), by Online: the Office of the Federal Register, National Archives and Records Telnet swais.access.gpo.gov, login as newuser 2 III Contents Federal Register Vol. 60, No. 127 Monday, July 3, 1995 Administration on Aging Coast Guard See Aging Administration NOTICES Committees; establishment, renewal, termination, etc.: Agency for Health Care Policy and Research Chemical Transportation Advisory Committee, 34572 NOTICES Meetings: Commerce Department Health Care Policy and Research Special Emphasis Panel, See Economic Development Administration 34543 See Export Administration Bureau See Foreign-Trade Zones Board Agency for International Development See International Trade Administration NOTICES See National Oceanic and Atmospheric Administration Housing guaranty program: Panama, 34554–34555 Commodity Futures Trading Commission RULES Aging Administration Foreign futures and options transactions: NOTICES Spot foreign exchange operation between Great Britain Meetings: Pound, Deutsche Mark, and Italian Lira; conditions White House Conference on Aging Business Advisory for offer or sale to persons in United States, 34458– Committee, 34543 34459 Agricultural Marketing Service Comptroller of the Currency RULES PROPOSED RULES Onions grown in— Federal regulatory review: Idaho and Oregon, 34453–34454 Minimum security devices and procedures, reports of Agriculture Department crimes and suspected crimes and bank secrecy See Agricultural Marketing Service compliance, 34476–34481 See Animal and Plant Health Inspection Service Consolidated Farm Service Agency See Consolidated Farm Service Agency See Food and Consumer Service RULES See Forest Service Program regulations: See Rural Business and Cooperative Development Service Property management; technical amendments, 34454– See Rural Housing and Community Development Service 34456 See Rural Utilities Service RULES Consumer Product Safety Commission Donation of excess research equipment to educational NOTICES institutions and nonprofit organizations; guidelines, Agency information collection activities under OMB 34456–34458 review, 34522 PROPOSED RULES Practice and procedure: Defense Department Perishable Agricultural Commodities Act; formal See Air Force Department adjudicatory proceedings, 34474–34476 See Army Department RULES Air Force Department Acquisition regulations: NOTICES Buy American Act determinations, 34470–34471 Patent licenses; non-exclusive, exclusive, or partially Sequence of progress payments and contract exclusive: modifications, 34467–34470 E/M Corp., 34523 Supercomputers of foreign manufacture; acquisition restriction, 34471–34472 Animal and Plant Health Inspection Service Federal Acquisition Regulation (FAR): PROPOSED RULES Electronic contracting, 34735–34741 Plant-related quarantine, foreign: Guiding principles, 34733–34734 Hass avocado fruit from Mexico; importation, 34832– Miscellaneous amendments, 34732–34733 34842 Simplified acquisition procedures and FACNET requirements, 34741–34766 Army Department PROPOSED RULES NOTICES Acquisition regulations: Environmental statements; availability, etc.: Full and open competition; class justifications and Base realignment and closure— approvals, 34497 Blue Grass Army Depot, Lexington Facility, KY, 34523 Tank and automotive forging items, 34497–34498 NOTICES Arts and Humanities, National Foundation Meetings: See National Foundation on the Arts and the Humanities Women in Services Advisory Committee, 34522–34523 IV Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Contents Economic Development Administration Elizabeth Drive Liquidation Corp., 34506–34507 NOTICES Freedman, Julia, 34507–34508 Trade adjustment assistance eligibility determination Samata S.A., 34508–34509 petitions: Wheeler, Robert J., 34509–34510 Quali-Cast Foundry, Inc., et al., 34504 Farm Credit Administration Education Department NOTICES RULES Meetings; Sunshine Act, 34579 Elementary and secondary education: Helping disadvantaged children meet high standards, 34800–34830 Federal Aviation Administration NOTICES NOTICES Grants and cooperative agreements; availability, etc.: Airport noise compatibility program: Bilingual education and minority languages affairs— Palm Beach International Airport, FL, 34572–34576 Academic excellence awards program, 34768–34787 Passenger facility charges; applications, etc.: Strengthening institutions and endowment challenge Huntsville International Airport, AL, 34576–34577 programs, 34523–34524 Federal Communications Commission Energy Department NOTICES See Federal Energy Regulatory Commission Agency information collection activities under OMB NOTICES review, 34532–34533 Financial assistance awards of $1 million or less; class deviations, 34524 Federal Emergency Management Agency Grant and cooperative agreement awards: Petrosurveys, Inc., 34534 NOTICES Meetings: Disaster and emergency areas: Human Radiation Experiments Advisory Committee, North Dakota, 34533 34524–34525 Oklahoma, 34533 Environmental Protection Agency Federal Energy Regulatory Commission RULES NOTICES Air pollutants, hazardous; national emission standards: Electric rate and corporate regulation filings: New nonroad spark-ignition engines at or below 19 HIE Generadora S.A. et al., 34525–34527 kilowatts, 34582–34657 PSI Energy, Inc., et al., 34527–34529 Air quality planning purposes; designation of areas: Hydroelectric applications, 34529 Minnesota, 34461–34462 Applications, hearings, determinations, etc.: Organization, functions, and authority delegations: Columbia Gas Transmission Corp., 34529–34530 Pollution Prevention and Toxics Office; mailing Duke Power Co., 34530 addresses update for submissions, information Southwestern Electric Power Co., 34530 requests, etc., 34462–34467 PROPOSED RULES Federal Railroad Administration Air quality implementation plans; approval and PROPOSED RULES promulgation; various States; Clean Air Act (State Railroad accident reporting, 34498 operating permits program): California, 34488–34493 Clean Air Act: Federal Reserve System State operating permits programs— PROPOSED RULES Kansas, 34493–34497 Membership of State banking institutions; international NOTICES banking operations; and bank holding companies and Agency information collection activities under OMB change in bank control (Regulations H, K, and Y): review, 34530–34531 Suspicious financial transaction reporting process, Meetings: 34481–34485 Science Advisory Board, 34531–34532 Superfund program: Federal Trade Commission Property containing contaminated aquifers; policy toward PROPOSED RULES owners, 34790–34792 Trade regulation rules: Prospective purchasers of contaminated property; Franchising and business opportunity ventures; guidance on agreements and model agreement disclosure requirements and prohibitions; Federal availability, 34792–34798 regulatory review, 34485–34486 Toxic and hazardous substances control: NOTICES Chemical testing— Premerger notification waiting periods; early terminations, Data receipt, 34532 34533–34535 Prohibited trade practices: Export Administration Bureau Arizona Institute of Reproductive Medicine, Ltd., et al., NOTICES 34535–34537 Export privileges, actions affecting: Council of Fashion Designers of America et al., 34537– American Technology Trading Group, 34504–34505 34540 Brero, Mario, 34505–34506 Live-Lee Productions, Inc., 34540–34543 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Contents V Fish and Wildlife Service See Food and Drug Administration NOTICES See National Institutes of Health Environmental statements; availability, etc.: See Public Health Service Incidental take permits— See Substance Abuse and Mental Health Services Clark County, NV; Pahrump poolfish, 34554 Administration Food and Consumer Service Housing and Urban Development Department NOTICES RULES Child nutrition programs: Public and Indian housing: Child and adult care food program— Certificate and voucher programs; conforming rule, National average payment rates; day care home food 34660–34728 service payment rates, etc., 34499–34500 NOTICES National school lunch, special milk, and school breakfast Agency information collection activities under OMB programs— review, 34729 National average payments/maximum reimbursement rates, 34500–34502 Indian Affairs Bureau PROPOSED RULES Food and Drug Administration Indian Self-Determination Negotiated Rulemaking RULES Committee Animal drugs, feeds, and related products: Meetings, 34488 Decoquinate, 34460–34461 Food for human consumption: Interior Department Crabmeat; common or usual name amendment, 34459– See Fish and Wildlife Service 34460 See Indian Affairs Bureau PROPOSED RULES See Land Management Bureau Human drugs: New and antibiotic drugs— International Development Cooperation Agency Drug master files, 34486–34488 See Agency for International Development NOTICES Animal drugs, feeds, and related products: International Trade Administration New drug applications— NOTICES Refusal to file review committee meetings; change in Antidumping: procedures to include industry representatives, Stainless steel cooking ware from— 34543–34544 Korea, 34514–34516 Welded stainless steel hollow products from— Foreign-Trade Zones Board Sweden, 34517 NOTICES Antidumping and countervailing duties: Applications, hearings, determinations, etc.: Administrative review requests, 34511–34512 Illinois Antidumping duty orders and findings: Revere Ware Corp.; stainless steel and aluminum Intent to revoke, 34512–34514 household cookware manufacturing plant, 34510 Cheese quota; foreign government subsidies: Puerto Rico Quarterly update, 34517–34518 Ohmeda Caribe Inc./Ohmeda Pharmaceutical Countervailing duties: Manufacturing Inc.; pharmaceutical products Lamb meat from— manufacturing plant, 34510 New Zealand, 34518–34519 Texas Countervailing duty orders: Crown Central Petroleum Corp.; oil refinery complex, Determinations not to revoke, 34518 34511 Neste Trifinery Petroleum Services; crude oil refinery, Interstate Commerce Commission 34511 NOTICES Railroad operation, acquisition, construction, etc.: Forest Service Chicago & North Western Railway Co., 34555–34556 NOTICES Ohio & Pennsylvania Railroad Co., 34556 Environmental statements; availability, etc.: Railroad services abandonment: Inyo National Forest, CA, 34502–34504 Missouri Pacific Railroad Co., 34556 Providence & Worcester Railroad Co., 34556–34557 General Services Administration RULES Land Management Bureau Federal Acquisition Regulation (FAR): NOTICES Electronic contracting, 34735–34741 Agency information collection activities under OMB Guiding principles, 34733–34734 review, 34553 Miscellaneous amendments, 34732–34733 Resource management plans, etc.: Simplified acquisition procedures and FACNET Florida; public lands, 34553 requirements, 34741–34766 National Aeronautics and Space Administration Health and Human Services Department RULES See Agency for Health Care Policy and Research Federal Acquisition Regulation (FAR): See Aging Administration Electronic contracting, 34735–34741 VI Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Contents Guiding principles, 34733–34734 NOTICES Miscellaneous amendments, 34732–34733 Meetings: Simplified acquisition procedures and FACNET National Toxicology Program; Scientific Counselors requirements, 34741–34766 Board, 34546–34550 NOTICES Organization, functions, and authority delegations: Meetings: Agency for Toxic Substances and Disease Registry, 34550 Technology and Commercialization Advisory Committee, Centers for Disease Control and Prevention, 34550–34551 34557 Patent licenses; non-exclusive, exclusive, or partially Research and Special Programs Administration exclusive: NOTICES Advanced Micro Devices, 34557–34558 Meetings: Holmes Enterprises, Inc., 34558 International standards on transport of dangerous goods, 34577 National Archives and Records Administration NOTICES Rural Business and Cooperative Development Service Agency records schedules; availability, 34558–34559 RULES Program regulations: National Foundation on the Arts and the Humanities Property management; technical amendments, 34454– NOTICES 34456 Grants and cooperative agreements; availability, etc.: Economic data collection on arts organizations, National Rural Housing and Community Development Service system design, 34559 RULES Meetings: Program regulations: Design Advisory Panel, 34559 Property management; technical amendments, 34454– 34456 National Institutes of Health NOTICES Rural Utilities Service Grants and cooperative agreements; availability, etc.: RULES High performance gene expression mapping assay system; Program regulations: development, 34544–34545 Property management; technical amendments, 34454– Meetings: 34456 Gene Therapy Research, Panel to Assess NIH Investment, 34545 Securities and Exchange Commission National Institute on Deafness and Other Communication NOTICES Disorders, 34545 Self-regulatory organizations; proposed rule changes: Research Grants Division special emphasis panels, American Stock Exchange, Inc., 34562–34563 34545–34546 Chicago Stock Exchange, Inc., 34563–34564 National Oceanic and Atmospheric Administration New York Stock Exchange, Inc., 34564–34566 Applications, hearings, determinations, etc.: RULES Anchor National Life Insurance Co. et al., 34566–34568 Fishery conservation and management: Pacific Coast groundfish, 34472–34473 Kansas City Life Insurance Co. et al., 34568–34570 Pacific Halibut Commission, International: Small Business Administration Pacific halibut fisheries Treaty Indian commercial fishery (subarea 2A–1), NOTICES Disaster loan areas: 34472 NOTICES Virginia et al., 34570–34571 Grants and cooperative agreements; availability, etc.: Pan-American climate studies program, 34519–34522 Substance Abuse and Mental Health Services Administration Nuclear Regulatory Commission NOTICES NOTICES Federal agency urine drug testing; certified laboratories Environmental statements; availability, etc.: meeting minimum standards, list, 34551–34552 GPU Nuclear Corp., 34559–34560 Public Service Electric & Gas Co., 34560–34561 Transportation Department Organization, functions, and authority delegations: See Coast Guard Chairman; lack of quorum, 34561–34562 See Federal Aviation Administration See Federal Railroad Administration Personnel Management Office See Research and Special Programs Administration NOTICES NOTICES Meetings: Agency information collection activities under OMB National Partnership Council, 34562 review, 34571–34572 NAFTA Land Transportation Standards Subcommittee work Public Health Service program: See Agency for Health Care Policy and Research Public docket for related information; establishment, See Food and Drug Administration 34572 See National Institutes of Health See Substance Abuse and Mental Health Services Treasury Department Administration See Comptroller of the Currency Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Contents VII Udall, Morris K., Scholarship and Excellence in National Part V Environmental Policy Foundation Department of Education, 34768–34787 NOTICES Meetings; Sunshine Act, 34579 Part VI Environmental Protection Agency, 34790–34798 United States Information Agency NOTICES Meetings: Part VII Cuba Broadcasting Advisory Board, 34577 Department of Education, 34800–34830 Veterans Affairs Department Part VIII NOTICES Department of Agriculture, Animal and Plant Health Senior Executive Service: Inspection Service, 34832–34842 Performance Review Boards; membership, 34577–34578 Reader Aids Separate Parts In This Issue Additional information, including a list of public laws, telephone numbers, and finding aids, appears in the Reader Part II Aids section at the end of this issue. Environmental Protection Agency, 34582–34657 Part III Department of Housing and Urban Development, 34660– Electronic Bulletin Board 34729 Free Electronic Bulletin Board service for Public Law numbers, Federal Register finding aids, and a list of Part IV documents on public inspection is available on 202–275– Department of Defense, 34732–34766 1538 or 275–0920. VIII Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Contents CFR PARTS AFFECTED IN THIS ISSUE A cumulative list of the parts affected this month can be found in the Reader Aids section at the end of this issue. 7 CFR 34741 958...... 34453 7 (2 documents) ...... 34732, 1955...... 34454 34735 2812...... 34456 8 (3 documents) ...... 34732, 34735, 34741 Proposed Rules: 9 (3 documents) ...... 34732, 1...... 34474 34735, 34741 47...... 34474 12 (2 documents) ...... 34732, 319...... 34832 34735 12 CFR 13 (2 documents) ...... 34732, Proposed Rules: 34741 21...... 34476 14 (2 documents) ...... 34732, 208...... 34481 34735 211...... 34481 15 (3 documents) ...... 34732, 225...... 34481 34735, 34741 16 (3 documents) ...... 34732, 16 CFR 34735, 34741 Proposed Rules: 19 (3 documents) ...... 34732, 436...... 34485 34735, 34741 20 (3 documents) ...... 34732, 17 CFR 34735, 34741 30...... 34458 22 (2 documents) ...... 34732, 21 CFR 34741 102...... 34459 23 (2 documents) ...... 34732, 558...... 34460 34741 Proposed Rules: 25 (3 documents) ...... 34732, 314...... 34486 34735, 34741 27 (2 documents) ...... 34732, 24 CFR 34741 882...... 34660 28 (3 documents) ...... 34732, 887...... 34660 34735, 34741 982...... 34660 29...... 34741 983...... 34660 32 (3 documents) ...... 34732, 25 CFR 34735, 34741 33...... 34732 Proposed Rules: 36 (3 documents) ...... 34732, Ch. I ...... 34488 34735, 34741 34 CFR 41 (2 documents) ...... 34732, 200...... 34800 34741 201...... 34800 42 (2 documents) ...... 34732, 203...... 34800 34741 205...... 34800 43 (2 documents) ...... 34732, 212...... 34800 34741 44 (2 documents) ...... 34732, 40 CFR 34741 9...... 34582 45 (3 documents) ...... 34732, 81...... 34461 34735, 34741 90...... 34582 46 (2 documents) ...... 34732, 704...... 34462 34741 707...... 34462 47 (2 documents) ...... 34732, 712...... 34462 34741 716...... 34462 49 (2 documents) ...... 34732, 720...... 34462 34741 721...... 34462 52 (3 documents) ...... 34732, 723...... 34462 34735, 34741 761...... 34462 53 (3 documents) ...... 34732, 763...... 34462 34735, 34741 766...... 34462 204...... 34467 790...... 34462 215...... 34467 795...... 34462 217...... 34467 796...... 34462 225 (2 documents) ...... 34470, 799...... 34462 34471 Proposed Rules: 243...... 34467 52...... 34488 252...... 34471 70 2 (documents) ...... 34488, Proposed Rules: 34493 206...... 34497 48 CFR 207...... 34497 1 (3 documents) ...... 34732, 225...... 34497 34733, 34735 2 (3 documents) ...... 34732, 49 CFR 34735, 34741 Proposed Rules: 3 (2 documents) ...... 34732, 225...... 34498 34741 50 CFR 4 (3 documents) ...... 34732, 301...... 34472 34735, 34741 663...... 34472 5 (3 documents) ...... 34732, 34735, 34741 6 (2 documents) ...... 34732, 34453 Rules and Regulations Federal Register Vol. 60, No. 127 Monday, July 3, 1995 This section of the FEDERAL REGISTER Act of 1937, as amended (7 U.S.C. 601– onions under the marketing order and contains regulatory documents having general 674), hereinafter referred to as the Act. approximately 35 handlers. Small applicability and legal effect, most of which The Department is issuing this rule in agricultural producers have been are keyed to and codified in the Code of conformance with Executive Order defined by the Small Business Federal Regulations, which is published under 12866. Administration (13 CFR 121.601) as 50 titles pursuant to 44 U.S.C. 1510. This rule has been reviewed under those having annual receipts of less than The Code of Federal Regulations is sold by Executive Order 12778, Civil Justice $500,000, and small agricultural service the Superintendent of Documents. Prices of Reform. Under the provisions of the firms are defined as those whose annual new books are listed in the first FEDERAL marketing order now in effect, Idaho- receipts are less than $5,000,000. The REGISTER issue of each week. Eastern Oregon onions are subject to majority of Idaho-Eastern Oregon onion assessments. It is intended that the producers and handlers may be assessment rate as issued herein will be classified as small entities. DEPARTMENT OF AGRICULTURE applicable to all assessable onions The budget of expenses for the 1995– handled during the 1995–96 fiscal 96 fiscal period was prepared by the Agricultural Marketing Service period, which began July 1, 1995, and Idaho-Eastern Oregon Onion Committee, ends June 30, 1996. This final rule will 7 CFR Part 958 the agency responsible for local not preempt any State or local laws, administration of the marketing order, [Docket No. FV95±958±1FIR] regulations, or policies, unless they and submitted to the Department for present an irreconcilable conflict with approval. The members of the Idaho-Eastern Oregon Onions; this rule. Committee are producers and handlers Expenses and Assessment Rate The Act provides that administrative of Idaho-Eastern Oregon onions. They proceedings must be exhausted before AGENCY: Agricultural Marketing Service, are familiar with the Committee’s needs parties may file suit in court. Under USDA. and with the costs for goods and section 608c(15)(A) of the Act, any ACTION: Final rule. services in their local area and are thus handler subject to an order may file in a position to formulate an appropriate with the Secretary a petition stating that SUMMARY: The Department of budget. The budget was formulated and the order, any provision of the order, or Agriculture (Department) is adopting as discussed in a public meeting. Thus, all any obligation imposed in connection a final rule, without change, the directly affected persons have had an with the order is not in accordance with provisions of an interim final rule that opportunity to participate and provide law and request a modification of the authorized expenses and established an input. order or to be exempted therefrom. Such assessment rate that generated funds to The assessment rate recommended by handler is afforded the opportunity for pay those expenses. Authorization of the Committee was derived by dividing a hearing on the petition. After the this budget enables the Idaho-Eastern anticipated expenses by expected hearing the Secretary would rule on the Oregon Onion Committee (Committee) shipments of Idaho-Eastern Oregon to incur expenses that are reasonable petition. The Act provides that the district court of the United States in any onions. Because that rate will be applied and necessary to administer the to actual shipments, it must be program. Funds to administer this district in which the handler is an inhabitant, or has his or her principal established at a rate that will provide program are derived from assessments sufficient income to pay the on handlers. place of business, has jurisdiction in equity to review the Secretary’s ruling Committee’s expenses. EFFECTIVE DATE: July 1, 1995, through The Committee met on March 21, June 30, 1996. on the petition, provided a bill in equity is filed not later than 20 days after the 1995, and unanimously recommended a FOR FURTHER INFORMATION CONTACT: date of the entry of the ruling. 1995–96 budget of $1,111,447, $91,408 Martha Sue Clark, Marketing Order Pursuant to requirements set forth in more than the previous year. Budget Administration Branch, Fruit and the Regulatory Flexibility Act (RFA), the items for 1995–96 which have increased Vegetable Division, AMS, USDA, P.O. Administrator of the Agricultural compared to those budgeted for 1994–95 Box 96456, room 2523–S, Washington, Marketing Service (AMS) has (in parentheses) are: Manager’s salary, DC 20090–6456, telephone 202–720– considered the economic impact of this $33,472 ($30,429), office salaries, 9918, or Robert J. Curry, Northwest rule on small entities. $66,222 ($62,816), payroll taxes, $9,229 Marketing Field Office, Fruit and The purpose of the RFA is to fit ($8,642), health and medical insurance, Vegetable Division, AMS, USDA, Green- regulatory actions to the scale of $9,182 ($8,700), workman’s Wyatt Federal Building, room 369, 1220 business subject to such actions in order compensation, $1,084 ($929), rent, Southwest Third Avenue, Portland, OR that small businesses will not be unduly $11,000 ($10,000), property insurance, 97204, telephone 503–326–2724. or disproportionately burdened. $1,700 ($1,400), miscellaneous, $12,500 SUPPLEMENTARY INFORMATION: This rule Marketing orders issued pursuant to the ($9,000), promotion, $724,076 is issued under Marketing Agreement Act, and the rules issued thereunder, are ($668,500), and contingency, $75,000 No. 130 and Order No. 958, both as unique in that they are brought about ($50,000). Items which have decreased amended (7 CFR part 958), regulating through group action of essentially compared to those budgeted for 1994–95 the handling of onions grown in small entities acting on their own (in parentheses) are: Salary and designated counties in Idaho, and behalf. Thus, both statutes have small disability insurance, $1,072 ($1,099), Malheur County, Oregon. The marketing entity orientation and compatibility. research, $59,340 ($60,154), and agreement and order are effective under There are approximately 450 property tax ($800) for which no the Agricultural Marketing Agreement producers of Idaho-Eastern Oregon funding was recommended this year. 34454 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations All other items are budgeted at last For the reasons set forth in the Public Law 91–190, an environmental year’s amounts. preamble, 7 CFR part 958 is amended as impact statement is not required. follows: The Committee also unanimously Intergovernmental Consultation recommended an assessment rate of $0.10 per hundredweight, the same as PART 958ÐONIONS GROWN IN These programs/activities are listed in last season. This rate, when applied to CERTAIN DESIGNATED COUNTIES IN the Catalog of Federal Domestic anticipated shipments of 8,800,000 IDAHO, AND MALHEUR COUNTY, Assistance under numbers: hundredweight, will yield $880,000 in OREGON 10.404 Emergency Loans assessment income. This, along with Accordingly, the interim final rule 10.405 Farm Labor Housing Loans and $45,000 in interest income and $186,447 adding § 958.239 which was published Grants from the Committee’s authorized at 60 FR 24539, May 9, 1995, is adopted 10.406 Farm Operating Loans reserve, will be adequate to cover as a final rule without change. 10.407 Farm Ownership Loans budgeted expenses. Funds in the reserve 10.410 Very Low to Moderate Income at the end of the 1994–95 fiscal period, Dated: June 27, 1995. Housing Loans estimated at $921,500, were within the Sharon Bomer Lauritsen, 10.411 Rural Housing Site Loans maximum permitted by the order of one Deputy Director, Fruit and Vegetable Division. 10.415 Rural Rental Housing Loans fiscal period’s expenses. [FR Doc. 95–16225 Filed 6–30–95; 8:45 am] 10.416 Soil and Water Loans An interim final rule was published BILLING CODE 3410±02±P 10.421 Indian Tribes and Tribal in the Federal Register on May 9, 1995 Corporation Loans (60 FR 24539). That interim final rule 10.434 Nonprofit National added § 958.239 to authorize expenses Rural Housing and Community Corporations Loan and Grant and establish an assessment rate for the Development Service Program 10.760 Water and Waste Disposal Loan Committee. That rule provided that Rural Business and Cooperative and Grant Program interested persons could file comments Development Service 10.764 Resource Conservation and through June 8, 1995. No comments Development Loans were received. Rural Utilities Service 10.765 Watershed Protection and While this rule will impose some Consolidated Farm Service Agency Flood Prevention Loans additional costs on handlers, the costs 10.766 Community Facilities Loans are in the form of uniform assessments 7 CFR Part 1955 10.767 Intermediary Relending on all handlers. Some of the additional Program costs may be passed on to producers. Acquired Property Records 10.768 Business and Industrial Loans However, these costs will be offset by AGENCIES: Rural Housing and This internal management regulation the benefits derived by the operation of Community Development Service, Rural does not directly affect these programs the marketing order. Therefore, the Business and Cooperative Development or activities; therefore, the Administrator of the AMS has Service, Rural Utilities Service, intergovernmental consultation determined that this rule will not have Consolidated Farm Service Agency. requirement of Executive Order No. a significant economic impact on a ACTION: Final rule. 12372 does not apply. substantial number of small entities. After consideration of all relevant SUMMARY: The issuing agencies amend Paperwork Reduction Act material presented, including the their property management regulations The information collection information and recommendation to remove solely internal procedures requirements contained in these submitted by the Committee and other and to make several nomenclature regulations have been approved by the available information, it is hereby found changes. Office of Management and Budget that this rule, as hereinafter set forth, EFFECTIVE DATE: July 3, 1995. (OMB) under the provisions of 44 U.S.C. will tend to effectuate the declared FOR FURTHER INFORMATION CONTACT: Ron chapter 35 and have been assigned OMB policy of the Act. Gianella, Staff Accountant, Accounting control numbers 0575–0109 and 0575– It is further found that good cause Policy and Procedures Section I, Rural 0110 in accordance with the Paperwork exists for not postponing the effective Housing and Community Development Reduction Act of 1980 (44 U.S.C. 3507). date of this rule until 30 days after Service, USDA, Finance Office, 1520 The final rule does not revise or impose publication in the Federal Register (5 Market Street, St. Louis, Missouri any new information collection or U.S.C. 553) because the Committee 63103, Telephone 314–539–6024. recordkeeping requirement from those needs to have sufficient funds to pay its SUPPLEMENTARY INFORMATION: Since this approved by OMB. expenses which are incurred on a action has no impact on the public and Discussion of Final Rule continuous basis. The 1995–96 fiscal involves only internal Agency period began on July 1, 1995. The management, it has been determined to The issuing agencies are amending marketing order requires that the rate of be exempt from the requirements of their property management regulations assessment for the fiscal period apply to Executive Order 12866. to remove solely administrative all assessable onions handled during the procedures in an effort to reduce federal fiscal period. In addition, handlers are Environmental Impact Statement agencies regulation. The procedures will aware of this rule which was This document has been reviewed in remain in internal agency instructions. recommended by the Committee at a accordance with 7 CFR part 1940, References to Farmers Home public meeting and published in the subpart G, Environmental Program. The Administration (‘‘FmHA’’) and ‘‘County Federal Register as an interim final rule. issuing agencies have determined that Committee’’ have been removed to this action does not constitute a major reflect changes made by sections 226 List of Subjects in 7 CFR Part 958 Federal action significantly affecting the and 227 of the Department of Marketing agreements, Onions, quality of the human environment and Agriculture Reorganization Act of 1994. Reporting and recordkeeping in accordance with the National Due to the reorganization of USDA, requirements. Environmental Policy Act of 1969, FmHA Farmer Programs now are being Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34455 administered as Farm Credit Programs ranchers, within 12 months from the (a) Sale by the Agency. The Agency by the Consolidated Farm Service date of the first advertisement pursuant will advertise suitable property for sale Agency (CFSA). FmHA Rural Housing to § 1955.107(a) of subpart C of this part or lease. Tribal Councils or other loans and Community Facilities loans will be reclassified surplus. If the recognized Indian governing bodies now are administered by the Rural property is offered for sale as surplus having jurisdiction over Indian Housing and Community Development and the purchaser is eligible for Agency reservations as defined in 1955.103 of Service (RHCDS). Water and Waste assistance, it may be reclassified by the this subpart, however, will be facility loans are administered by the Agency as suitable, if it is in fact responsible for notifying those parties Rural Utilities Service (RUS), and suitable for program purposes. listed in 1955.66(d)(2) of subpart B of Business and Industrial loans are (b) Grouping and subdividing farm this part. handled by the Rural Business and properties larger than family-size. The * * * * * Cooperative Development Service Agency will subdivide farm properties 9. Section 1955.108 is amended by (RBCDS). The affected agencies are larger than family-size whenever removing the phrase ‘‘by the County jointly issuing this final rule. possible into parcels for the purpose of Committee’’ in the fifth sentence. creating one or more suitable farm 10. Section 1955.109 is amended by List of Subjects in 7 CFR Part 1955 properties. Such land shall be revising the reference in the third Government property management. subdivided into parcels of land the sentence of paragraph (a) to ‘‘Farmer Accordingly, part 1955, chapter XVIII, shape and size of which are suitable for Programs’’ to read ‘‘Farm Credit title 7, of the CFR, is amended as farming, the value of which shall not Programs;’’ by revising the reference in follows: exceed the insured farm ownership loan paragraph (c) to ‘‘FmHA or its successor limit of $200,000. The Agency may also agency under Public Law 103–354’’ to PART 1955ÐPROPERTY group two or more individual properties read ‘‘the Agency;’’ by removing and MANAGEMENT into one or more suitable farm reserving paragraphs (b), (d), (e), and (i), properties. and by removing the last sentence in 1. The authority citation for part 1955 * * * * * paragraph (g). continues to read as follows: 4. Section 1955.64 is removed and 11. Section 1955.137 is amended by Authority: 7 U.S.C. 1989; 42 U.S.C. 1480; reserved. removing and reserving paragraphs (c) 5 U.S.C. 301; 7 CFR 2.23 and 2.70. 5. Section 1955.66 is amended by and (h); by removing the first three removing and reserving paragraphs (i), sentences in paragraph (b)(7); by Subpart AÐLiquidation of Loans (k)(1), and (l) through (o), and in the revising the references to ‘‘FmHA or its Secured by Real Estate and third sentence of paragraph (j) by successor agency under Public Law Acquisition of Real and Chattel revising the reference ‘‘FmHA or its 103–354’’ the first time it appears in the Property successor agency under Public Law first sentence of paragraph (b)(1)(iii), the 2. Section 1955.18 is amended by 103–354 Instruction 1955–D (available introductory text of paragraph (b)(2), the removing and reserving paragraphs (a) in any Agency FmHA or its successor second sentence of paragraph (b)(6), the through (d) and (f) through (l). agency under Public Law 103–354 first and ninth sentences of paragraph office)’’ to read ‘‘subpart B of part 1924 (d), and paragraphs (e)(1), (e)(1)(ii), Subpart BÐManagement of Property of this chapter.’’ (e)(2) and (e)(4) to read ‘‘Agency’’; by 6. Section 1955.72 is amended by removing the references to ‘‘FmHA or its 3. Section 1955.63 is amended by revising the reference to ‘‘FmHA or its successor agency under Public Law revising the reference to ‘‘County successor agency under Public Law 103–354’’ the second time it appears in Committee’’ in the third sentence of the 103–354’’ in the heading and paragraphs the first sentence of paragraph (b)(1)(ii), introductory text to read ‘‘Agency;’’ by (a) and (b) to read ‘‘the Agency.’’ and the second sentence of paragraph revising the references to ‘‘FmHA or its 7. Section 1955.80 is removed and (b)(1)(iii); by revising the reference to successor agency under Public Law reserved. ‘‘SCS’’ in the fourth sentence of 103–354’’ in paragraph (c) introductory paragraph (b)(1)(iii) to read ‘‘NRCS;’’ text and paragraph (c)(3) to read ‘‘the Subpart CÐDisposal of Inventory and by amending the heading of Agency;’’ by removing and reserving Property paragraph (d) to revise the phrase ‘‘and/ paragraph (d); and by revising 8. Section 1955.107 is amended by or’’ to read ‘‘or.’’ paragraphs (a) and (b) to read as follows: revising the references to ‘‘FmHA or its 12. Section 1955.140 is amended in the first sentence of paragraph (a) by § 1955.63 Suitability determination. successor agency under Public Law 103–354’’ in the first sentence of the revising ‘‘Farmer Programs’’ to read * * * * * introductory text, in paragraph (d)(3), ‘‘Farm Credit Programs property;’’ by (a) Property other than housing. and in paragraph (f)(1)(v) to read removing in the third sentence of Property which secured loans or was ‘‘Agency;’’ by removing and reserving paragraph (a) and in paragraph (b) the acquired under the CONACT will be paragraphs (b), (d)(1), (d)(2), and (d)(6); words ‘‘, based on the recommendations classified as suitable or surplus by the by revising the references to ‘‘County of the County Committee,’’; and by Agency. CONACT property originally Committee’’ in the second sentence of revising ‘‘FmHA or its successor agency classified as suitable may be reclassified paragraph (f) introductory text and in under Public Law 103–354’’ to read as surplus because of physical damage paragraphs (f)(2) and (f)(3) to read ‘‘Agency’s’’ in the ninth sentence of such as fire, flood, sheet erosion or ‘‘Agency;’’ by removing the words ‘‘, as paragraph (a). falling water table; or change in determined by the County Committee’’ 13. Section 1955.141 is amended by economic conditions such as the rising in the introductory text of paragraph removing and reserving paragraphs (a) cost of production inputs, viable market (f)(1); and by revising paragraph (a) to through (c). outlets and obsolescence, which affect read as follows: 14. Sections 1955.142 and 1955.143 its suitability for program purposes. In are removed and reserved. addition, suitable farm property that is § 1955.107 Sale of suitable property 15. Section 1955.144 is amended by not sold to a family-size farm operator, (CONACT). removing the second through the fourth including beginning farmers or * * * * * sentences. 34456 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations Dated: May 22, 1995. It is only after no USDA agency requests List of Subjects in 7 CFR Part 2812 Michael V. Dunn, the equipment that it is available for Government property, Government Acting Under Secretary for Rural Economic donation to an eligible institution. property management, Excess and Community Development. USDA believes that making the government property. equipment more widely available Dated: May 22, 1995. Done at Washington, DC, this 26th 1995. Eugene Moss, within the Government prior to Dan Glickman, Under Secretary for Farm and Foreign donation would undermine the purpose Secretary. Agriculture Services. of 15 U.S.C. 3710(i), which is to [FR Doc. 95–15818 Filed 6–30–95; 8:45 am] improve science education in the For the reasons set forth in the BILLING CODE 3410±07±U United States thereby advancing preamble, part 2812 is added to chapter American competitiveness. The other XXVIII of title 7 of the Code of Federal comment was from the General Services Regulations to read as follows: Office of Operations Administration (GSA). It recommended PART 2812ÐDEPARTMENT OF that the Department of Agriculture AGRICULTURE GUIDELINES FOR THE 7 CFR Part 2812 target educational institutions located in DONATION OF EXCESS RESEARCH economically disadvantaged rural and Department of Agriculture Guidelines EQUIPMENT UNDER 15 U.S.C. 3710(i) for the Donation of Excess Research urban cities. USDA believes that Equipment targeting educational institutions Sec. located in economically disadvantaged 2812.1 Purpose. AGENCY: Office of Operations, USDA. rural and urban cities would improve 2812.2 Eligibility. ACTION: Final rule. science education in these locations. 2812.3 Definitions. 2812.4 Procedures. However, USDA believes that the SUMMARY: The final rule sets forth 2812.5 Restrictions. uniform procedures for the donation of purpose of this provision can best be 2812.6 Title. excess research equipment to achieved by not limiting the donation of 2812.7 Costs. educational institutions and nonprofit excess research equipment. 2812.8 Accountability and recordkeeping. organizations for the conduct of Accordingly, no changes other than 2812.9 Disposal. 2812.10 Liabilities and losses. technical and scientific education and some minor corrections have been made to the final rule. Appendix A to Part 2812—Gift/Acceptance research activities as authorized by Agreement: Educational Institution or section 11(i) of the Stevenson/Wydler A revision of the ‘‘Classification Nonprofit Organization and the United Technology Act (Pub. L. No. 102–245), Section’’ was made because it contained States Department of Agriculture 15 U.S.C. 3710(i). This document information not pertinent to the rule. Authority: 5 U.S.C. 301. includes not only the Department of Agriculture (USDA) procedures to Paperwork Reduction § 2812.01 Purpose. implement 15 U.S.C. 3710(i), but also This part sets forth the procedures to Except for the Gift/Acceptance draws upon the General Services be utilized by USDA agencies and Agreement contained in appendix A to Administration (GSA) regulations laboratories in the donation of excess part 2812, the forms necessary to concerning the disposal of excess research equipment to educational personal property. This rule will allow implement these procedures have been institutions and non-profit organizations the Department of Agriculture to donate cleared by the Office of Management for the conduct of technical and excess research equipment to and Budget (OMB) in accordance with scientific education and research educational institutions and nonprofit the Paperwork Reduction Act, 44 U.S.C. activities as authorized by 15 U.S.C. organizations for the conduct of 3500 et seq. The Gift/Acceptance 3710(i). Title to excess research technical and scientific education and Agreement has been submitted to OMB equipment donated pursuant to 15 research activities. for clearance under the Paperwork U.S.C. 3710(i), shall pass to the donee. EFFECTIVE DATE: Reduction Act. August 2, 1995. § 2812.2 Eligibility. FOR FURTHER INFORMATION CONTACT: Classification Eligible organizations are educational Denise R. Patterson, Acting Division institutions or non-profit organizations Chief, Personal Property Management This rule has been determined to be involved in the conduct of technical and Division on (202) 720–3141. not significant for purposes of Executive scientific educational and research Order 12866 and therefore has not been SUPPLEMENTARY INFORMATION: The activities. proposed rule was published in the reviewed by OMB. Federal Register on May 13, 1994 (59 § 2812.3 Definitions. Regulatory Analysis FR 24973). During the final rulemaking (a) Cannibalization—The dismantling process, the rule was determined not Not required for this rulemaking. of equipment for parts to repair or significant for purposes of Executive enhance other equipment. The residual Order 12866 and therefore has not been Environmental Impact Statement is reported for disposal. Cannibalization reviewed by OMB. This proposed rule does not is only authorized if the property value Two comments were received. The is greater when cannibalized than National Aeronautics and Space significantly affect the environment. Therefore, an environmental impact retention in the original condition. Administration (NASA) requested that (b) Education-related Federal statement is not required under the the property be reutilized within the equipment—Equipment that is National Environmental Policy Act of federal government before being appropriate for educational purposes. distributed. The rule does allow 1969, as amended, 42 U.S.C. 4321 et (c) Excess personal property—Items of agencies within USDA the opportunity seq. personal property no longer required by to obtain excess research equipment Catalog Federal Domestic Assistance the controlling Federal agency. during the 30 to 45 days that the (d) Research equipment—Federal property remains in the excess system. Not required for this rulemaking. property determined to be essential to Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34457 conduct scientific or technical activities. This donation is pursuant to automatically pass to the donee once the educational research. the provisions of Pub. L. 102–245.’’ sponsoring agency receives the SF–122 (e) Technical and scientific education (g) Once the excess personal property/ indicating that the donee has received and research activities—Non-profit tax equipment is physically received, the the property. exempt public educational institutions donee is required to immediately return § 2812.7 Costs. or government sponsored research a copy of the SF–122 to the donating organizations which serve to conduct agency indicating receipt of requested Donated excess personal property/ technical and scientific education and items. Cancellations should be reported equipment is free of charge. However, research. to DEPPC so the property can be the donee must pay all costs associated reported to the General Services with packaging and transportation, § 2812.4 Procedures. Administration (GSA). unless the sponsoring agency has made (a) Prior to receipt of excess personal other arrangements. The donee should Note: The USDA agency shall send an specify the method of shipment. property/equipment under this part, the informational copy of the transaction to GSA. donee shall enter into a gift/acceptance § 2812.8 Accountability and agreement with the donor agency. A § 2812.5 Restrictions. recordkeeping. copy of that agreement is attached as (a) The authorized official (see USDA requires that property appendix A to this part. § 2812.4(b)) will approve the donation requested by a donee be placed into use (b) Each agency head will designate in of excess personal property/equipment by the donee within a year of receipt writing an authorized official to approve in the following groups to educational and used for at least 1 year thereafter. donations of excess property/equipment institutions or nonprofit organizations Donees must maintain accountable under this part. for the conduct of technical and records for such property during this (c) Property targeted for donation scientific educational and research time period. under this part will first be screened as activities. excess by USDA agencies through the § 2812.9 Disposal. Departmental Excess Personal Property ELIGIBLE GROUPS When the property is no longer Coordinator (DEPPC) using the PMIS/ needed by the donee, it may be used in PROP system. FSC Name support of other Federal projects or sold (d) Upon reporting property for excess group and the proceeds used for technical and screening, if the pertinent USDA agency 19 ...... Ships, Small Craft, Pontoons, and scientific education and research has an eligible organization in mind for Floating Docks. activities. donation under this part, enter ‘‘P.L. 23 ...... Vehicles, Trailers and Cycles. 102–245’’ in the note field. The property 24 ...... Tractors. § 2812.10 Liabilities and losses. will remain in the excess system 37 ...... Agricultural Machinery and Equip- USDA assumes no liability with approximately 30–45 days and, if no ment. respect to accidents, bodily injury, agency in USDA requests it during the 43 ...... Pumps, Compressors. illness, or any other damages or loss excess cycle, DEPPC will send the 48 ...... Valves. related to excess personal property/ 58 ...... Communication, Detection, and equipment donated under this part. The agency a copy of the excess report Coherent Radiation Equipment. stamped ‘‘DONATION AUTHORITY TO 59 ...... Electrical and Electronic Equip- donee is advised to insure or otherwise THE HOLDING AGENCY IN ment Components. protect itself and others as appropriate. ACCORDANCE WITH P.L. 102–245.’’ 65 ...... Medical, Dental, and Veterinary Appendix A to Part 2812—Gift/Acceptance (e) Donations under this Part will be Equipment and Supplies. Agreement; Educational Institution or accomplished by preparing a Standard 66 ...... Instruments and Laboratory Equip- NonProfit Organization and The United Form (SF) 122, ‘‘Transfer Order-Excess ment. States Department of Agriculture Personal Property’’ and a written 67 ...... Photographic Equipment. 68 ...... Chemicals and Chemical Prod- Gift/Acceptance Agreement (Agreement) justification statement (submitted by the ucts. between (USDA Agency) and (Educational recipient) explaining why the property 70 ...... General Purpose Automatic Data Institution or NonProfit Organizations). is needed. Processing Equipment, Software (1) Purpose. The purpose of the Agreement (f) The SF–122 should be signed by Supplies, and Support Equip- is to establish a relationship between the U.S. ment. Department of Agriculture (USDA Agency) both an authorized official of the agency and (Educational Institution or NonProfit and the Agency Property Management 74 ...... Office Machines and Visible Record Equipment. Organization) concerning the transfer of Officer. The following information excess research equipment to this should also be provided. educational institution or nonprofit Note: Requests for items in FSC Groups or organization for the conduct of technical and (1) Name and address of Donee Classes other than the above should be scientific education and research activities. Institution (Ship to) referred to the agency head for consideration Title of ownership transfers to the recipient. (2) Agency name and address (holding and approval. (2) Authority. Pub. L. 102–245, Sec. 303, Agency) (b) Excess personal property/ amended, Section 11 of the Stevenson- (3) Location of property equipment may be donated for Wydler Technology Innovation Act of 1980, (4) Shipping instructions (Donee cannibalization purposes, provided the by adding subsection (i), Research contact person) donee submits a supporting statement Equipment, which provides that ‘‘the (5) Complete description of property, which clearly indicates that Director of the laboratory, or the head of any including acquisition amount, serial no., cannibalizing the requested property for Federal agency or department, may give research equipment that is excess to the condition code, quantity, and agency secondary use has greater potential order no. needs of the laboratory, agency, or benefit than utilization of the item in its department to an educational institution or (6) This statement needs to be added existing form. non-profit organization for the conduct of following property descriptions. ‘‘The technical and scientific education and property requested hereon is certified to § 2812.6 Title. research activities.’’ be used for the conduct of technical and Title to excess personal property/ (3) Objectives and program elements. This scientific education and research equipment donated under this Part will Agreement is intended to provide a 34458 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations mechanism for the transfer of excess research issuing this Order pursuant to which products traded on the MATIF to be offered equipment from USDA to the (Educational option contracts on a spot foreign or sold in the United States. Institution or Nonprofit Organization) in exchange operation between the Great By letter dated May 17, 1995, MATIF accordance with the procedures set out in the Britain Pound and the Deutsche Mark notified the Commission that on May regulations implementing Pub. L. 102–245. (GBP/DEM) and the Deutsche Mark and 22, 1995 it would be introducing option (4) Management. In order to enable close contracts based on the GBP/DEM and collaboration, it is agreed that the the Italian Lira (DEM/ITL) traded on the (Educational Institution or NonProfit Marche a Terme International de France DEM/ITL and requested that the Organization) will provide to (USDA Agency) (MATIF) may be offered or sold to Commission supplement its Initial an annual inventory listing of property persons located in the United States. Order authorizing the offer and sale in acquired under Pub. L. 102–245. This Order is issued pursuant to: (1) the United States of Options on the The (USDA Agency) and (Educational Commission rule 30.3(a), 17 CFR Notional Bond, the 3-month PIBOR, the Institution or NonProfit Organization) will 30.3(a), which makes it unlawful for any 3-month EURODEM Futures Contracts; each identify a coordinator to implement this person to engage in the offer or sale of a Supplemental Order, 57 FR 10987 Agreement. These coordinators shall meet (April 1, 1992), authorizing the offer and when necessary to review new Federal a foreign option product until the property regulations. Commission, by order, authorizes such sale in the United States of Options on The coordinators shall seek to resolve any foreign option to be offered or sold in the Long-Term ECU Bond Futures disputes concerning the Agreement through the United States; and (2) the Contracts; and a Supplemental Order, good faith discussions. procedures established in the 59 FR 22971 (May 4, 1994), authorizing (5) Effective date and revision or Commission’s Order issued on June 6, the offer and sale in the United States termination. The Agreement shall enter into 1990, 55 FR 23902 (June 13, 1990) of Options on the USD/DM and USD/ effect upon signature and shall remain in (Mutual Recognition Memorandum of FRF by also authorizing the MATIF’s effect for 3 years. It may be extended or Option Contracts on the GBP/DEM and amended by written agreement of the parties Understanding (MRMOU) with the French Commission des Operations de DEM/ITL to be offered or sold to at any time prior to its expiration or 4 termination. The Agreement may be Bourse). persons located in the United States. terminated at any time upon 60 days written Based upon the foregoing, and pursuant EFFECTIVE DATE: notice by either party to the other. The August 2, 1995. to the terms of the MRMOU, the termination of the Agreement shall not affect FOR FURTHER INFORMATION CONTACT: Commission hereby publishes this the validity of any property transactions Francey L. Youngberg, Esq., Division of Order in the Federal Register pursuant under the Agreement which were initiated Trading and Markets, Commodity to which the particular option contracts prior to such termination. Futures Trading Commission, 2033 K specified herein may be offered or sold Property Coordinators Street NW., Washington, D.C. 20581. thirty days after the publication of this The property coordinators for this Telephone: (202) 254–8955 Order. Agreement are: Accordingly, pursuant to Commission Name llllllllllllllllll SUPPLEMENTARY INFORMATION: The rule 30.3(a), 17 CFR 30.3(a), and Article (Educational Institution/NonProfit Commission has issued the following II, paragraph 6(b) and Article V, Organization) Order: paragraph 6 of the MRMOU signed by lllllllllllllllllllll UNITED STATES OF AMERICA the Commission on June 6, 1990 (55 FR (Complete Address and Phone Number) BEFORE THE 23902 (June 13, 1990)), and subject to Name llllllllllllllllll the terms and conditions specified in (USDA Coordinator) COMMODITY FUTURES TRADING the MRMOU, the Commission hereby lllllllllllllllllllll COMMISSION issues this Order pursuant to which (Complete Address and Phone Number) Order Pursuant to the Mutual Recognition option contracts based on the GBP/DEM Approved: Memorandum of Understanding with the and DEM/ITL traded on the MATIF may lllllllllllllllllllll French Commission des Operations de be offered or sold to persons located in Bourse and Rule 30.3(a) Permitting Option (Educational Institution/NonProfit the United States thirty days after Contracts on the GBP/DEM and DEM/ITL Organization) publication of this Order in the Federal Traded on the Marche a Terme International lllllllllllllllllllll de France (MATIF) To Be Offered or Sold to Register, unless prior to that date the Date Persons Located in the United States Thirty Commission receives any comments lllllllllllllllllllll Days After Publication of This Notice in the which may result in a determination to (USDA Agency Head) Federal Register Absent Further Notice delay the effective date of the Order lllllllllllllllllllll By Order issued on December 17, 1991 pending review of such comments. Date (Initial Order),1 the Commission authorized, Under such circumstances the [FR Doc. 95–16285 Filed 6–30–95; 8:45 am] pursuant to the Mutual Recognition Commission will provide notice. Memorandum of Understanding (MRMOU) 2 BILLING CODE 3410±01±M Contract Specifications and Commission rule 30.3(a),3 certain option GBP/DEM Option (SDM) 1 COMMODITY FUTURES TRADING See 56 FR 66345 (December 23, 1991). Type 2 See 55 FR 23902 (June 13, 1990). Among other COMMISSION things, this arrangement provides a mechanism European style pursuant to which certain option products traded Underlying Interest 17 CFR Part 30 on the Marche a Terme International de France Spot currency transaction GBP against (MATIF) may be offered or sold to customers DEM Foreign Option Transactions resident in the United States thirty days after Contract Size publication in the Federal Register of a notice AGENCY: Commodity Futures Trading specifying the particular option contracts to be GBP 50,000 Commission. offered or sold. 3 Commission rule 30.3(a), 17 CFR 30.3(a), makes 4 See letter dated May 17, 1995 from Patrick ACTION: Order. it unlawful for any person to engage in the offer or Stephan, MATIF, to Jane C. Kang, Commission and sale of a foreign option product until the letter dated May 23, 1995 from Frederic Perier, SUMMARY: The Commodity Futures Commission, by order, authorizes such foreign Commission des Operations de Bourse, to Andrea Trading Commission (Commission) is option to be offered or sold in the United States. M. Corcoran, Commission. Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34459 Strike Price Wednesday of expiration month at Issued in Washington, D.C. on June 27, Expressed in DEM, with 2 decimals. 9:00 am (New York time) 1995. Strike price intervals: 2 Pfennigs First Trading Day Jean A. Webb, (2.32–2.34) Secretary to the Commission. At least 11 closest-to-the-money (5 on First business day following an [FR Doc. 95–16230 Filed 6–30–95; 8:45 am] expiration date each side) BILLING CODE 6351±01±P Quotation Exercise Premium in % of the GBP nominal, After settlement of a spot-fixing on with 2 decimals. the expiration date, automatic DEPARTMENT OF HEALTH AND Ex: 0.45% stands for 0.45 x 500 = GBP HUMAN SERVICES 225 exercise of in-the-money options Exercise: exchange of underlying In specific cases, premium with 3 Food and Drug Administration decimals currencies Tick Trading Hours 21 CFR Part 102 Size: 0.01% Open outcry: 9:15 am to 5:00 pm [Docket No. 92P±0476] Value: 0.01 x 500 = GBP 5 (Paris time) Expiration Crabmeat; Amendment of Common or 3 monthly + 3 quarterly expirations THS (after hours trading): 5:00 pm to Usual Name Regulation from March (H), June (M), 9:15 am September (U), December (Z) List of Subjects in 17 CFR Part 30 AGENCY: Food and Drug Administration, Last Trading Day HHS. Thursday following the 3rd Commodity futures, Commodity ACTION: Final rule. Wednesday of expiration month at options, Foreign transactions. 9:00 am (New York time) SUMMARY: The Food and Drug First Trading Day Accordingly, 17 CFR Part 30 is Administration (FDA) is amending the First business day following an amended as set forth below: common or usual name regulation for expiration date crabmeat by adding ‘‘Brown King PART 30ÐFOREIGN FUTURES AND Exercise crabmeat’’ as the common or usual FOREIGN OPTION TRANSACTIONS After settlement of a spot-fixing on name for the species Lithodes the expiration date, automatic aequispina. This amendment is in 1. The authority citation for Part 30 exercise of in-the-money options response to a citizen petition submitted continues to read as follows: Exercise: exchange of underlying by the Alaska Seafood Marketing currencies Authority: Secs. 2(a)(1)(A), 4, 4c, and 8a of Institute (ASMI). Trading Hours the Commodity Exchange Act, 7 U.S.C. 2, 6, EFFECTIVE DATE: August 2, 1995. Open outcry: 9:15 am to 5:00 pm 6c and 12a. (Paris time) FOR FURTHER INFORMATION CONTACT: THS (after hours trading): 5:00 pm to 2. Appendix B to Part 30 is amended Spring C. Randolph, Office of Seafood 9:15 am by adding the following entry after the (HFS–416), Food and Drug existing entries for the ‘‘Marche a Terme Administration, 200 C St. SW., DEM/ITL Option (MLI) International de France’’ to read as Washington, DC 20204, 202–418–3160. Type follows: SUPPLEMENTARY INFORMATION: European style I. Background Underlying Interest APPENDIX B.ÐOPTION CONTRACTS Spot currency transaction DEM PERMITTED TO BE OFFERED OR In the Federal Register of July 15, 1994 (59 FR 36103), FDA proposed to against ITL SOLD IN THE U.S. PURSUANT TO Contract Size amend the common or usual name DEM 100,000 § 30.3(A) provisions for crabmeat, (§ 102.50 (21 Strike Price CFR 102.50)), to provide that the Exchange Type of FR date and ci- Expressed in ITL, without decimal. contract tation common or usual name of crabmeat Strike price intervals: Liras 10 (1070– derived from the species L. aequispina 1080) is ‘‘Brown King crabmeat.’’ The ***** At least 11 closest-to-the-money (5 on proposal was issued in response to a Marche a Option Con- July 3, 1995; each side) XX citizen petition submitted by ASMI. Terme tracts on FR XX Quotation Inter- Great Previous to this rulemaking, § 102.50 Premium in % of the DEM nominal, national Britain provided that only the crabmeat from with 2 decimals. de France. Pound three species of the genus Paralithodes Ex: 0.45% stands for 100,000 x 0.45/ and the may be labeled as ‘‘King crabmeat.’’ 100 = DEM 450 Deutsche Interested persons were given until In specific cases, premium with 3 Mark September 13, 1994, to submit decimals (GBP/ comments. Tick DEM) and the II. Comments Size: 0.01% Deutsche Value: 0.01/100 x 100,000 = DEM 10 Mark and FDA received one comment in Expiration Italian response to the proposed amendment. 3 monthly + 3 quarterly expirations Lira That comment, submitted by a trade from March (H), June (M), (DEM/ association supported the proposal and September (U), December (Z) ITL). stated that establishing ‘‘Brown King Last Trading Day ***** crabmeat’’ as the common or usual Thursday following the 3rd name for the crabmeat will benefit 34460 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations consumers by providing a consistent Order. In addition, the final rule is not Dated: June 26, 1995. statement of identity for L. aequispina. a significant regulatory action as defined William B. Schultz, III. Conclusion by the Executive Order and so is not Deputy Commissioner for Policy. subject to review under the Executive [FR Doc. 95–16207 Filed 6–30–95; 8:45 am] For reasons stated in the proposal and Order. BILLING CODE 4160±01±F in the absence of comments objecting to the proposed amendment, FDA The Regulatory Flexibility Act requires agencies to analyze regulatory concludes that it is appropriate to revise 21 CFR Part 558 § 102.50 by adding ‘‘Brown King options that would minimize any crabmeat’’ as the common or usual significant impact of a rule on small New Animal Drugs For Use In Animal name for the meat of L. aequispina. FDA entities. Because FDA did not receive Feeds; Decoquinate; Technical notes that under section 403(b) and any comments or new information on Amendment (i)(1) of the Federal Food, Drug, and this issue, the agency certifies that the AGENCY: Cosmetic Act (the act) (21 U.S.C. 343(b) final rule will not have a significant Food and Drug Administration, HHS. and (i)(1)) and § 101.3 (b) (1) (21 CFR economic impact on a substantial 101.3 (b)(1)), a food with a common or number of small entities. Therefore, ACTION: Final rule; technical amendment. usual name established by regulation is under the Regulatory Flexibility Act, no misbranded if it is not identified by that further analysis is required. SUMMARY: The Food and Drug name. Administration (FDA) is amending the List of subjects in 21 CFR Part 102 FDA is also making a minor revision animal drug regulations to clarify the in § 102.50, that is separate from this Beverages, Food grades and standards, conditions of use in the approved new rulemaking. After publication of the animal drug application (NADA) for proposal, the agency became aware that Food labeling, Frozen foods, Oils and fats, Onions, Potatoes, Seafood. Type C decoquinate cattle feed. This a change had been made in the accepted amendment was requested by the scientific designation for the species Therefore, under the Federal Food, sponsor, Rhone-Poulenc, Inc. listed therein as Paralithodes Drug, and Cosmetic Act and under EFFECTIVE DATE: July 3, 1995. camtschatica, and that it had not authority delegated to the Commissioner FOR FURTHER INFORMATION CONTACT: revised the regulation to reflect this of Food and Drugs, 21 CFR part 102 is Naba K. Das, Center for Veterinary change. Therefore, to maintain amended as follows: consistency with currently accepted Medicine (HFV–133), Food and Drug Administration, 7500 Standish Pl., scientific nomenclature, FDA is PART 102ÐCOMMON OR USUAL changing the spelling of the name of this Rockville, MD 20855, 301–594–1644. NAME FOR NONSTANDARDIZED species in § 102.50, to read Paralithodes SUPPLEMENTARY INFORMATION: In the FOODS camtschaticus (see American Fisheries Federal Register of December 3, 1976 Society Special Publication 17, (41 FR 53002), FDA published a 1. The authority citation for 21 CFR ‘‘Common and Scientific Names of document reflecting approval of part 102 continues to read as follows: Aquatic Invertebrates from the United supplemental NADA 39–417V filed by States and Canada: Decapod Authority: Secs. 201, 403, 701 of the Hess and Clark, Division of Rhodia, Inc., Crustaceans’’). Federal Food, Drug, andCosmetic Act (21 Ashland, OH, proposing safe and U.S.C 321, 343, 371). effective use of a 6 percent decoquinate IV. Environmental Impact premix for manufacturing a cattle feed The agency has previously considered 2. Section 102.50 is amended by used as an aid in the prevention of the environmental effects of this rule as revising the table to read as follows: coccidiosis. The supplemental NADA announced in the proposed rule of July amended § 558.195(g)(2) (21 CFR § 102.50 Crabmeat. 15, 1994 (59 FR 36103). No new 558.195(g)(2)) in the table to reflect the information or comments have been * * * * * approval. received that would affect the agency’s In the Federal Register of September previous determination that there is no 30, 1986, FDA published a document significant impact on the human reflecting a change of sponsor of NADA environment and that an environmental Scientific name of Common or usual 39–417 Deccox (decoquinate) from impact statement is not required. crab name of crabmeat Hess & Clark, Inc., to Rhone Poulenc, Inc. The new sponsor of decoquinate, V. Analysis of Impacts Chionoecetes opilio, Snow crabmeat. Rhone-Poulenc, Inc., P.O. Box 125, FDA has examined the impacts of the Chionoecetes tanneri, Black Horse Lane, Monmouth Junction, final rule under Executive Order 12866 Chionoecetes bairdii, NJ 08852, informed FDA that the and and the Regulatory Flexibility Act (Pub. Chionoecetes regulation for use of Type C decoquinate L. 96–354). Executive Order 12866 angulatus, cattle feed that reflects the conditions of directs agencies to assess all costs and Erimacrus isenbeckii Korean variety crab- use in its approved NADA were benefits of available regulatory meat or Kegani incorrect. Section 558.195(d) in the alternatives and, when regulation is crabmeat. table in the entry for ‘‘22.7 mg per 100 necessary, to select regulatory Lithodes aequispina Brown King crab- lb * * *’’ provides the feeding level for approaches that maximize net benefits meat. the cattle feed. This information usually (including potential economic, Paralithodes brevipes King crabmeat or is provided in the ‘‘Limitations’’ environmental, public health and safety, Hanasaki crab- column. The firm requested that the and other advantages; distributive meat. entry be revised to place the impacts; and equity). The agency Paralithodes King crabmeat. and concentration of active ingredient in the believes that this final rule is consistent camtschaticus Paralithodes Platy- ‘‘Decoquinate in grams per ton’’ column with the regulatory philosophy and pus. and the feeding level in the principles identified in the Executive ‘‘Limitations’’ column. FDA concurs Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34461 with the firm’s request and is amending authority delegated to the Commissioner 2. Section 558.195 is amended by the regulations accordingly. In addition, of Food and Drugs and redelegated to removing and reserving paragraph (c)(2), § 558.195(c)(2) provides status of this the Center for Veterinary Medicine, 21 and in the table in paragraph (d) by product for the National Academy of CFR part 558 is amended as follows: removing the entry for ‘‘22.7 mg per 100 Sciences/National Research Council. lb of body weight per day (0.5 mg per The status is outdated based upon the PART 558ÐNEW ANIMAL DRUGS FOR kilogram)’’ and adding a new entry in Generic Animal Drug and Patent Term USE IN ANIMAL FEEDS numerical order to read as follows: Restoration Act of 1988, therefore, § 558.195(c)(2) is removed and reserved. 1. The authority citation for 21 CFR § 558.195 Decoquinate. part 558 continues to read as follows: List of Subjects in 21 CFR Part 558 * * * * * Animal drugs, Animal feeds. Authority: Secs. 512, 701 of the Federal (d) * * * Therefore, under the Federal Food, Food, Drug, and Cosmetic Act (21 U.S.C. Drug, and Cosmetic Act and under 360b, 371). Decoquinate in Combination in grams grams per ton per ton Indications for use Limitations Sponsor 13.6 to 27.2 ...... Cattle; for the prevention of coccidiosis in rumi- Feed Type C feed at a rate to (0.0015 to 0.003 nating and nonruminating calves and cattle provide 22.7 mg per 100 lb pct). caused by Eimeria bovis and E. zumii. of body weight (0.5 mg per kg) per day. May be pre- pared from dry or liquid Type B feed containing 0.0125 to 0.5 pct decoquinate. Liquid Type B feed must have a pH range of 5.0 to 6.5 and contain a suspending agent to main- tain a viscosity of not less tha 500 centipoises. Feed at least 28 days during peri- ods of exposure to coccidi- osis or when it is likely to be a hazard. Do not feed to cows producing milk for food. Dated: June 23, 1995. portion of Olmsted County and sulfur Environmental Protection Agency, Andrew J. Beaulieau, dioxide in the Air Quality Control Region 5, Chicago, Illinois 60604, (312) Acting Director, Office of New Animal Drug Region 131 Twin Cities and Pine Bend 353–6713. Evaluation, Center for Veterinary Medicine. areas (excluding the St. Paul Park area). SUPPLEMENTARY INFORMATION: [FR Doc. 95–16091 Filed 6–30–95; 8:45 am] The revised Code of Federal Regulations BILLING CODE 4160±01±F (CFR) § 81.324 redesignation table for List of Subjects in 40 CFR Part 81 sulfur dioxide identified the remaining nonattainment area as being part of Air pollution control, National parks, Wilderness areas. ENVIRONMENTAL PROTECTION Scott and Washington Counties. The AGENCY table should have shown the remaining Authority: 42 U.S.C. 7401–7671(q). nonattainment area as being part of Dated: June 22, 1995. 40 CFR Part 81 Dakota and Washington Counties. Also, David A. Ullrich, [MN36±2±7085; FRL±5252±3] the western boundary identifier of the Acting Regional Administrator. Dakota County part of the Correction of Publication Designation of Areas for Air Quality nonattainment area is being corrected. Planning Purposes; Minnesota The USEPA regrets any inconvenience Accordingly the direct final rule these errors may have caused. AGENCY: Environmental Protection published on May 31, 1995, at 60 FR EFFECTIVE DATE: This correction Agency (USEPA). 28339 is corrected as follows: rulemaking becomes effective on July 3, In § 81.324, the amendment to the ACTION: Final rule, correction. 1995. table ‘‘Minnesota SO2’’ is corrected to SUMMARY: On May 31, 1995, the USEPA FOR FURTHER INFORMATION CONTACT: read as follows: published a direct final rule approving Randy Robinson, Air Enforcement the redesignation requests to attainment Branch, Regulation Development § 81.324 Minnesota. for particulate matter in the Rochester Section (AE–17J), United States * * * * * 34462 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations MINNESOTAÐSO2 Does not Does not meet pri- meet sec- Cannot be Better than Designated area mary stand- ondary classified national ards standards standards AQCR 131: Anoka County ...... X Carver County ...... X Dakota County (part) ...... X The area bounded on the north by Interstate 494; on the west by Babcock Trail and Highway 55; on the south by a line from the intersection of High- way 52 and 56 east to the County Line; on the east by the County line Rest of Dakota County ...... X Hennepin County ...... X Ramsey County ...... X Scott County ...... X Washington County (part) ...... X The area bounded on the west by the County line; on the south by a line ex- tending from the County line east to 100th Street; on the east by Jamaica Avenue; on the north by Military Road and Interstate 494. Rest of Washington County ...... X ******* * * * * * to certain TSCA regulations (40 CFR Because these are non-substantive [FR Doc. 95–16275 Filed 6–30–95; 8:45 am] parts 700 to end). The technical procedural changes, notice and public BILLING CODE 6560±50±D amendments update the mailing comment are not necessary. These addresses for submissions of changes are effective immediately. information to, requesting information I. Rulemaking Record 40 CFR Parts 704, 707, 712, 716, 720, from, or otherwise contacting certain 721, 723, 761, 763, 766, 790, 795, 796, offices in OPPT. The addresses EPA has established a record for this 799 currently listed in the regulations have rulemaking (docket control number been changed and should no longer be [OPPTS±00173; FRL±4964±5] OPPTS–00173). A public version of the used. Updating applicable addresses record, without any confidential Technical Amendments to TSCA will ensure that OPPT receives all business information is available in the Regulations to Update Addresses information requests and submissions in Non-Confidential Information Center a timely manner. (NCIC) (7407), Office of Pollution AGENCY: Environmental Protection Additionally, in order to centralize Prevention and Toxics, U.S. Agency (EPA). document receipt and to reduce burdens Environmental Protection Agency, ACTION: Final Rule. associated with the submission of Room B–607 NEM, 401 M Street, SW., information under TSCA section 4 test Washington, DC, 20460, between the SUMMARY: EPA is issuing technical rules and consent orders, EPA is hours of 12 p.m. and 4 p.m. weekdays amendments to several regulations revising its section 4 procedural rules at excluding legal holidays. under the Toxic Substances Control Act 40 CFR Part 790 so that all documents (TSCA). These amendments revise the II. Regulatory Assessment and requests for actions be sent to the Requirements Analyses Under addresses for mailing information to, address published in 40 CFR 790.5(b). requesting information from, or Executive Order 12866, the Unfunded The current procedural rules require Mandates Reform Act of 1995, the otherwise contacting certain offices in under § 790.5(d) that certain the Office of Pollution Prevention and Regulatory Flexibility Act, and the submissions and inquiries relating to Paperwork Reduction Act Toxics (OPPT). Additionally, this test rules and consent orders be document makes technical amendments submitted to the Director of the Office Because this action is limited to intra- to certain information submission of Compliance Monitoring (OCM). Some agency procedural changes, including procedures that pertain to TSCA section of these submissions are duplicative updating addresses, consolidating 4 test rules and consent orders. (e.g., the requirement at 40 CFR 790.5(d) addressees and eliminating unnecessary EFFECTIVE DATE: This final rule takes to submit to OCM copies of transmittal procedural duplication, there is no effect on July 3, 1995. memos accompanying material ‘‘significant’’ regulatory action within FOR FURTHER INFORMATION CONTACT: submitted to OPPT under § 790.5(b)). In the meaning of Executive Order 12866 Susan B. Hazen, Director, addition, the responsibility to handle (58 FR 51735, October 4, 1993). In Environmental Assistance Division other, non-duplicative submissions, as addition, this action does not impose (7408), Office of Pollution Prevention well as questions, has been assigned to any additional Federal mandates on and Toxics, Environmental Protection OPPT as the result of EPA streamlining State, local, or tribal governments or the Agency, 401 M St., SW., Washington, and reorganization efforts that have private sector within the meaning of DC 20460, Telephone: (202) 554–1404, eliminated OCM. Therefore, EPA is The Unfunded Mandates Reform Act of TDD: (554–0551); TSCA- removing § 790.5(d) and references to 1995. For these reasons, pursuant to the [email protected]. that section. Where appropriate, EPA is Regulatory Flexibility Act (5 U.S.C. SUPPLEMENTARY INFORMATION: This replacing references to § 790.5(d) with 605(b)), I certify that this action would document makes technical amendments references to § 790.5(b). not have a significant economic impact Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34463 on a substantial number of small § 704.30 Anthraquinone. § 712.28 Form and instructions. entities. In addition, because no * * * * * * * * * * substantive requirement in the (e) Where to send reports. Reports (c) Forms must be sent (preferably by procedural rule is being increased, this must be submitted by certified mail to certified mail) to the Document Control action does not affect the requirements the Document Control Office (7407), Office (7407), Office of Pollution under the Paperwork Reduction Act, 44 Office of Pollution Prevention and Prevention and Toxics, U.S. U.S.C. 3501. Toxics, U.S. Environmental Protection Environmental Protection Agency, Agency, Room G–099, 401 M St., SW., List of Subjects Room G–099, 401 M St., SW., Washington, DC., 20460, ATTN: TSCA Washington, DC., 20460, ATTN: 8(a) 40 CFR Part 704, 707, 712, 716, 717, 8(a). PAIR Reporting. 720, 721, 723, 761, 763, 766, 790, 795, e. By revising § 704.104(g) to read as c. In § 712.30 by revising the last 796, 799 follows: sentence in paragraph (c) to read as Administrative practice and § 704.104 Hexafluoropropylene oxide. follows: procedure, Asbestos, Chemicals, * * * * * § 712.30 Chemical lists and reporting Confidential business information, (g) Where to send reports. Reports periods. Dibenzo-para-dioxins/dibenzofurans, must be submitted by certified mail to * * * * * Environmental protection, Exports, the Document Control Office (7407), (c) * * * Any information Hazardous substances, Health Office of Pollution Prevention and submitted must be addressed to the Laboratories, Imports, Toxics, U.S. Environmental Protection Document Control Office (7407), Office Intergovernmental relations, Labeling, Agency, Room G–099, 401 M St., SW., of Pollution Prevention and Toxics, U.S. Occupational safety and health, Washington, DC., 20460, ATTN: HFPO Environmental Protection Agency, Photographic industry, Polychlorinated Reporting. biphenyls, Reporting and recordkeeping 2. In part 707: Room G–099, 401 M St., SW., requirements, Schools. Washington, DC., 20460, ATTN: 8(a) PART 707Ð[AMENDED] Auto-ITC. Authority: 15 U.S.C. 2603 * * * * * Dated: June 28, 1995. a. The authority citation for part 707 continues to read as follows: 4. In part 716: Joseph A. Cotruvo, Authority: 15 U.S.C. 2611(b) and 2612. PART 716Ð[AMENDED] Acting Director, Office of Pollution Prevention and Toxics. b. In § 707.20 by revising paragraph a. The authority citation for part 716 (c)(3) to read as follows: Therefore, 40 CFR, chapter I, continues to read as follows: Authority: 15 U.S.C. 2607(d). subchapter R, is amended as follows: § 707.20 Chemical substances import 1. In part 704: policy. * * * * * b. In § 716.30 by revising paragraph PART 704Ð[AMENDED] (c) * * * (c) to read as follows: (3) EPA assistance. Assistance in § 716.30 Submission of copies of studies. a. The authority citation for part 704 determining whether a chemical continues to read as follows: shipment is in compliance with TSCA * * * * * Authority: 15 U.S.C. 2607(a). can be obtained from the Director, (c) Copies of health and safety studies Environmental Assistance Division and the accompanying cover letters b. By revising § 704.9 to read as (7408), Office of Pollution Prevention must be submitted, preferably by follows: and Toxics, U.S. Environmental certified mail, to the Document Control Protection Agency, Room E–543B, 401 Office (7407), Office of Pollution § 704.9 Where to send reports. M St., SW., Washington, DC, 20460, Prevention and Toxics, U.S. Reports must be submitted by Telephone: (202) 554–1404, TDD: (202) Environmental Protection Agency, certified mail to the Document Control 544–0551. Room G–099, 401 M St., SW., Office (7407), Office of Pollution c. In § 707.65 by revising paragraph Washington, DC., 20460, ATTN: 8(d) Prevention and Toxics, U.S. (c) to read as follows: Health and Safety Reporting Rule Environmental Protection Agency, (Notification/Reporting). Room G–099, 401 M St., SW., § 707.65 Submission to agency. c. In § 716.35 by revising paragraph Washington, DC., 20460, ATT: 8(a) * * * * * (c) to read as follows: Reporting. (c) Notices shall be marked ‘‘Section § 716.35 Submission of lists of studies. c. By revising § 704.25(g) to read as 12(b) Notice’’ and sent to the Document follows: Control Office (7407), Office of * * * * * Pollution Prevention and Toxics, U.S. (c) Lists of health and safety studies § 704.25 11-Aminoundecanoic acid. Environmental Protection Agency, should be submitted, preferably by * * * * * Room G–099, 401 M St., SW., certified mail, to the Document Control (g) Where to send reports. Reports Washington, DC., 20460. Office (7407), Office of Pollution must be submitted by certified mail to 3. In part 712: Prevention and Toxics, U.S. the Document Control Office (7407), Environmental Protection Agency, PART 712Ð[AMENDED] Office of Pollution Prevention and Room G–099, 401 M St., SW., Toxics, U.S. Environmental Protection a. The authority citation for part 712 Washington, DC., 20460, ATTN: 8(d) Agency, Room G–099, 401 M St., SW., continues to read as follows: Health and Safety Reporting Rule Washington, DC., 20460, ATT: 11–AA Authority: 15 U.S.C. 2607(a). (Notification Reporting). Notification. d. In § 716.60 by revising the second d. By revising § 704.30(e) to read as b. In § 712.28 by revising paragraph sentence in paragraph (c) to read as follows: (c) to read as follows: follows: 34464 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations § 716.60 Reporting schedule. Room G–099, 401 M St., SW., § 721.11 Applicability determination when * * * * * Washington, DC., 20460. * ** the specific chemical identity is confidential. (c) * * * Requests for extensions * * * * * must be in writing and addressed to the (e) * * * (1) * * * A statement of * * * * * Director, Office of Pollution Prevention withdrawal must be made in writing to (b) To establish a bona fide intent to and Toxics (7401), U.S. Environmental the Document Control Office (7407), manufacture, import, or process a Protection Agency, Room E–539, 401 M Office of Pollution Prevention and chemical substance, the person who St., SW., Washington, DC, 20460, Toxics, U.S. Environmental Protection intends to manufacture, import, or ATTN: Section 8(d) extension. * ** Agency, Room G–099, 401 M St., SW., process the chemical substance must e. In § 716.105 by revising the last Washington, DC., 20460. * ** submit the following information in sentence in paragraph (c) to read as c. In § 720.95 by revising the last writing to the Document Control Office follows: sentence to read as follows: (7407), Office of Pollution Prevention and Toxics, U.S. Environmental § 716.105 Additions of substances and § 720.95 Public file. Protection Agency, Room G–099, 401 M mixtures to which this subpart applies. ** * Any of the nonconfidential St., SW., Washington, DC., 20460, * * * * * material described in this subpart will ATTN: SNUR Bonafide submissions. (c) * * * Persons who wish to be available for public inspection in the d. In § 721.30 by revising the submit information that shows why a Non-Confidential Information Center introductory text of paragraph (b) to chemical should be withdrawn must (NCIC) (7407), Office of Pollution read as follows: address their comments, in writing to Prevention and Toxics, U.S. the Document Control Office (7407), Environmental Protection Agency, § 721.30 EPA approval of alternative Office of Pollution Prevention and Room B–607 NEM, 401 M Street, SW., control measures. Toxics, U.S. Environmental Protection Washington, DC, 20460, between the * * * * * Agency, Room G–099, 401 M St., SW., hours of 12 p.m. and 4 p.m. weekdays (b) A request for a determination of Washington, DC., 20460, ATTN: 8(d) excluding legal holidays. equivalency must be submitted in Auto-ITC. d. In § 720.102 by revising paragraph writing to the Document Control Office 5. In part 717: (d) to read as follows: (7407), Office of Pollution Prevention and Toxics, U.S. Environmental PART 717Ð[AMENDED] § 720.102 Notice of commencement of manufacture or import. Protection Agency, Room G–099, 401 M a. The authority citation for part 717 St., SW., Washington, DC., 20460; * * * * * ATTN: SNUR Equivalency continues to read as follows: (d) Where to submit. Notices of Determination, and must contain: Authority: 15 U.S.C. 2607(c). commencement of manufacture or import should be submitted to the * * * * * b. In § 717.17 by revising paragraph Document Control Office (7407), Office e. In § 721.185 by revising the second (c) to read as follows: of Pollution Prevention and Toxics, U.S. sentence of paragraph (b)(1) to read as Environmental Protection Agency, follows: § 717.17 Inspection and reporting requirements. Room G–099, 401 M St., SW., § 721.185 Limitation or revocation of Washington, DC., 20460. certain notification requirements. * * * * * 7. In part 721: (c) How to report. When required to * * * * * report, firms must submit copies of PART 721Ð[AMENDED] (b) * * * records (preferably by certified mail) to (1) * * * All requests should be the Document Control Office (7407), a. The authority citation for part 721 sent to the Document Control Office Office of Pollution Prevention and continues to read as follows: (7407), Office of Pollution Prevention Authority: 15 U.S.C. 2604, 2607, and and Toxics, U.S. Environmental Toxics, U.S. Environmental Protection 2625(c). Agency, Room G–099, 401 M St., SW., Protection Agency, Room G–099, 401 M Washington, DC., 20460, ATTN: 8(c) St., SW., Washington, DC., 20460. * * Allegations. b. In § 721.5 by revising paragraph * (d)(1)(iii) to read as follows: 6. In part 720: * * * * * § 721.5 Persons who must report. f. In § 721.4300 by revising paragraph PART 720Ð[AMENDED] * * * * * (a)(2)(iv)(A)(7) to read as follows: a. The authority citation for part 720 (d) * * * ′ (1) * * * § 721.4300 Hydrazinecarboxamide, N,N - continues to read as follows: 1,6-hexanediylbis [2,2-dimethyl-]. Authority: 15 U.S.C. 2607(a). (iii) That the person has promptly provided EPA enforcement authorities (a) * * * b. In § 720.75 by revising the first with a copy of the recepient’s statement (2) * * * sentence in paragraph (b)(2) and the of assurance described in paragraph (iv) * * * second sentence of paragraph (e)(1) to (d)(1)(ii) of this section. The copy must (A) * * * read as follows: be sent to the Office of Enforcement and (7) A request that the party notify the Compliance Assurance, Office of following office of any information § 720.75 Notice review period. Compliance (2224A), U.S. which indicates that the in-stream * * * * * Environmental Protection Agency, Ariel concentration of the PMN substance (b) * * * Rios, 1200 Pennsylvania Ave., N.W., specified in paragraph (a)(iv) of this (2) A request for suspension may be Washington, DC, 20044. section has been exceeded: Chief, New made in writing to the Document * * * * * Chemicals Branch, Chemical Control Control Office (7407), Office of c. In § 721.11 by revising the Division (7405), Office of Pollution Pollution Prevention and Toxics, U.S. introductory text of paragraph (b) to Prevention and Toxics, U.S. Environmental Protection Agency, read as follows: Environmental Protection Agency, Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34465 Room E–447, 401 M St., SW., Merials (ASTM), 1916 Race Street, § 761.187 Reporting by importers and by Washington, DC, 20460. Philadelphia, PA 19103.. persons generating PCBs in excluded manufacturing processes. * * * * * c. In § 761.20 by revising the second 8. In part 723: sentence of the introductory text of * * * * * paragraph (c)(3) and by revising the first (d) These reports must be submitted PART 723Ð[AMENDED] sentence of paragraph (c)(3)(vii) to read to the Document Control Office (7407), as follows: Office of Pollution Prevention and a. The authority citation for part 723 Toxics, U.S. Environmental Protection continues to read as follows: § 761.20 Prohibitions. Agency, Room G–099, 401 M St., SW., Authority: 15 U.S.C. 2604 * * * * * Washington, DC., 20460, ATTN: PCB (c) * * * Notification. (3) * * * Export notices must be b. In § 723.50 by revising paragraph * * * * * submitted to the TSCA Document (n) to read as follows: 10. In part 763: Control Office (7407), Office of § 723.50 Chemical substances Pollution Prevention and Toxics, U.S. PART 763Ð[AMENDED] manufactured in quantities of 1,000 Environmental Protection Agency, kilograms or less per year. Room G–099, 401 M St., SW., a. The authority citation for part 704 * * * * * Washington, DC., 20460. * ** continues to read as follows: (n) Submission of information. * * * * * Authority: 15 U.S.C. 2605 and 2607(c). Information submitted to EPA under (vii) No less than 30 days after the end this section must be sent in writing to of each calendar quarter (March 31, June b. In § 763.71 by revising paragraph the Document Control Office (7407), 30, September 30, and December 31) (d) to read as follows: Office of Pollution Prevention and during which PCBs were exported for Toxics, U.S. Environmental Protection § 763.71 Schedule for reporting. disposal, each person exporting the Agency, Room G–099, 401 M St., SW., PCBs must submit a report to the * * * * * Washington, DC., 20460. Document Control Office (7407), Office (d) EPA Form 7710–36 and EPA Form * * * * * of Pollution Prevention and Toxics, U.S. 7710–37 can be obtained by writing or c. In § 723.175 by revising paragraph Environmental Protection Agency, telephoning the Director, Environmental (i)(3) to read as follows: Room G–099, 401 M St., SW., Assistance Division (7408), Office of Washington, DC., 20460. * ** Pollution Prevention and Toxics, U.S. § 723.175 Chemical substances used in or Environmental Protection Agency, for the manufacture or processing of * * * * * Room E–543B, 401 M St., SW., instant photographic and peel-apart film d. In § 761.130 by revising the third articles. sentence in paragraph (e) to read as Washington, DC, 20460, Telephone: (202) 554–1404, TDD:(202) 544–0551. * * * * * follows: (i) * * * * * * * * § 761.130 Sampling requirements. (3) Address. The exemption notice § 763.90 [Amended] must be addressed to the Document * * * * * Control Office (7407), Office of (e) * * * Both the MRI sampling c. In § 763.90(i)(5) by removing the Pollution Prevention and Toxics, U.S. scheme and the guidance document are words ‘‘EPA OPPTS Reading Room, Rm. Environmental Protection Agency, available from the Director, G004 Northeast Mall, 401 M Sts., SW., Room G–099, 401 M St., SW., Environmental Assistance Division Washington, DC 20460’’ and adding in Washington, DC., 20460. (7408), Office of Pollution Prevention place thereof the words ‘‘Non- and Toxics, U.S. Environmental Confidential Information Center (NCIC) * * * * * Protection Agency, Room E–543B, 401 (7407), Office of Pollution Prevention 9. In part 761: M St., SW., Washington, DC, 20460, and Toxics, U.S. Environmental PART 761Ð[AMENDED] Telephone: (202) 554–1404, TDD: (202) Protection Agency, Room B–607 NEM, 544–0551. * * * 401 M Street, SW., Washington, DC, a. The authority citation for part 761 * * * * * 20460, between the hours of 12 p.m. and continues to read as follows: e. In § 761.185 by revising paragraph 4 p.m. weekdays excluding legal Authority: 15 U.S.C. 2605, 2607, 2611, (f) to read as follows: holidays.’’ 2614, and 2616. c. In § 763.92 by revising paragraph § 761.185 Certification program and (a)(2)(ii) to read as follows: b. In § 761.19 by revising the fourth retention of records by importers and sentence in paragraph (b) to read as persons generating PCBs in excluded § 763.92 Training and periodic manufacturing processes. follows: surveillance. * * * * * (a) * * * § 761.19 References. (f) This report must be submitted to (2) * * * * * * * * the Document Control Office (7407), (ii) Information on the use of (b) * * * Copies of the incorporated Office of Pollution Prevention and respiratory protection as contained in material may be obtained from the Toxics, U.S. Environmental Protection the EPA/NIOSH Guide to Respiratory TSCA Non-Confidential Information Agency, Room G–099, 401 M St., SW., Protection for the Asbestos Abatement Center (NCIC) (7407), Office of Pollution Washington, DC., 20460, ATTN: PCB Industry, September 1986 (EPA 560/ Prevention and Toxics, U.S. Notification. This report must be OPPTS–86–001), available from the Environmental Protection Agency, submitted by October 1, 1984 or within Director, Environmental Assistance Room B–607 NEM, 401 M Street, SW., 90 days of starting up processes or Division (7408), Office of Pollution Washington, DC, 20460, between the commencing importation of PCBs. Prevention and Toxics, U.S. hours of 12 p.m. and 4 p.m. weekdays * * * * * Environmental Protection Agency, excluding legal holidays, or from the f. In § 761.187 by revising paragraph Room E–543B, 401 M St., SW., American Society for Testing and (d) to read as follows: Washington, DC, 20460, Telephone: 34466 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations (202) 554–1404, TDD: (202) 544–0551 § 790.5 Submission of information. § 790.68 Modification of consent order. and other personal protection measures. * * * * * * * * * * * * * * * (b) Submissions containing both (b) * * * (1) Any test sponsor who d. In § 763.119 by revising the confidential business information or wishes to modify the test schedule for introductory text of paragraph (a) to non-confidential business information any test required under a consent order read as follows: must be addressed to the Document must submit an application in accordance with this paragraph. § 763.119 References. Control Office (7407), Office of Pollution Prevention and Toxics, U.S. Application for modification must be (a) General. The following reference Environmental Protection Agency, made in writing to EPA at the address contains detailed information of Room G–099, 401 M St., SW., in § 790.5(b), or by phone with written sampling and analysis of friable Washington, DC., 20460, ATTN: TSCA confirmation to follow within 10 materials and provides a background on Section 4. working days. Applications must which this part is based. Microfiche include an appropriate explanation and copies may be obtained from the Non- * * * * * rationale for the modification. EPA will Confidential Information Center (NCIC) c. By revising § 790.50 (b)(1) to read consider only those applications that (7407), Office of Pollution Prevention as follows: request modifications to mandatory and Toxics, U.S. Environmental § 790.50 Submission of study plans. testing conditions or requirements Protection Agency, Room B–607 NEM, (‘‘shall statements’’ in the consent 401 M Street, SW., Washington, DC, * * * * * order). Where a test sponsor requests 20460, between the hours of 12 p.m. and (b) Extensions of time for submission EPA to provide guidance or to clarify a 4 p.m. weekdays excluding legal of study plans. (1) EPA may grant non-mandatory testing requirement (i.e., holidays. requests for additional time for the ‘‘should statements’’), the test sponsor development of study plans on a case- * * * * * should submit these requests to EPA at 11. In part 766: by-case basis. Requests for additional the address in section 790.5(b). time for study plan development must 13. In part 795: PART 766Ð[AMENDED] be made in writing to EPA at the address in § 790.5(b). Each extension PART 795Ð[AMENDED] a. The authority citation for part 766 request must state why EPA should a. The authority citation for part 795 continues to read as follows: grant the extension. Authority: 15 U.S.C. 2603 and 2607. continues to read as follows: * * * * * Authority: 15 U.S.C. 2603. b. Section 766.12 is revised to read as d. By revising § 790.55(a) to read as follows: follows: § 795.232 [Amended] § 766.12 Testing guidelines. § 790.55. Modification of test standards or schedules during conduct of test. 2. Section 795.232(c)(2)(i) is amended Analytical test methods must be by removing the words ‘‘ASTM D 1863– developed using methods equivalent to (a) Application. Any test sponsor who 83 is available for public inspection at those described or reviewed in wishes to modify the test schedule for the Office of the Federal Register, Rm. Guidelines for the Determination of the mandatory testing conditions or 8301, 11th and L St., NW., Washington, Polyhalogenated Dibenzo-p-dioxins and requirements (i.e., ‘‘shall statements’’) in DC 20408, and copies may be obtained Dibenzofurans in Commercial Products. the test standard for any test required by from the EPA, TSCA Public Docket Copies are available from the Director, a test rule must submit an application Office, Rm. NE G–004, 401 M St., SW., Environmental Assistance Division in accordance with this paragraph. Washington, DC 20460’’ and adding in (7408), Office of Pollution Prevention Application for modification must be place thereof the words ‘‘ASTM D 1863– and Toxics, U.S.Environmental made in writing to EPA at the address 83 is available for public inspection at Protection Agency, Room E–543B, 401 in § 790.5(b), or by phone with written the Office of the Federal Register, Suite M St., SW., Washington, DC, 20460, confirmation to follow within 10 700, 800 North Capitol St., NW., Telephone: (202) 554–1404, TDD: (202) working days. Applications must Washington, DC, and copies may be 544–0551. Copies are also located in the include an appropriate explanation and obtained from the Non-Confidential public docket for this part (Docket No. rationale for the modification. Where a Information Center (NCIC) (7407), Office OPPTS–83002) and are available for test sponsor requests EPA to provide of Pollution Prevention and Toxics, U.S. inspection in the Non-Confidential guidance or to clarify a non-mandatory Environmental Protection Agency, Information Center (NCIC) (7407), Office testing requirement (i.e., ‘‘should Room B–607 NEM, 401 M Street, SW., of Pollution Prevention and Toxics, U.S. statements’’) in a test standard, the test Washington, DC, 20460, between the Environmental Protection Agency, sponsor should submit these requests to hours of 12 p.m. and 4 p.m. weekdays Room B–607 NEM, 401 M Street, SW., EPA at the address in § 790.5(b). excluding legal holidays’’. Washington, DC, 20460, between the * * * * * 14. In part 796: hours of 12 p.m. and 4 p.m. weekdays e. By revising § 790.62(c)(4) to read as excluding legal holidays. follows: PART 796Ð[AMENDED] 12. In part 790: § 790.62 Submission of study plans and a. The authority citation for part 796 PART 790Ð[AMENDED] conduct of testing. continues to read as follows: Authority: 15 U.S.C. 2603 a. The authority citation for part 790 * * * * * continues to read as follows: (c) * * * Authority: 15 U.S.C. 2603. (4) The test sponsor shall submit any § 796.1950 [Amended] amendments to study plans to EPA at b. Section 796.1950(b)(2)(i) is b. Section 790.5 is amended by the address specified in § 790.5(b). amended by removing the words revising paragraph (b) and by removing f. By revising § 790.68(b)(1) to read as ‘‘Copies of the incorporated material paragraph (d) to read as follows: follows: may be obtained from the TSCA Public Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34467 Docket Office (TS–793), Rm. NE–G004, Federal Register, Suite 700, 800 North and Toxics, U.S. Environmental Office of Pollution Prevention and Capitol St. Washington, DC, and copies Protection Agency, Room B– 607 NEM, Toxics, Environmental Protection may be obtained from the Non- 401 M St., SW., Washington, DC, 20460, Agency, 401 M St., SW., Washington, Confidential Information Center (NCIC) between the hours of 12 p.m. and 4 p.m. DC, 20460,’’ and adding in place thereof (7407), Office of Pollution Prevention weekdays excluding legal holidays. the words ‘‘Copies of the incorporated and Toxics, U.S. Environmental * * * * * material may be obtained from the Non- Protection Agency, Room B–607 NEM, (d) * * * Confidential Information Center (NCIC) 401 M Street, SW., Washington, DC, (2) * * * This revised EPA- (7407), Office of Pollution Prevention 20460, between the hours of 12 p.m. and approved modified study plans are and Toxics, U.S. Environmental 4 p.m. weekdays excluding legal available for inspection in the Non- Protection Agency, Room B–607 NEM, holidays. * * * Confidential Information Center (NCIC) 401 M St., SW., Washington, DC, 20460, * * * * * (7407), Office of Pollution Prevention between the hours of 12 p.m. and 4 p.m. (2) * * * and Toxics, U.S. Environmental weekdays excluding legal holidays,’’. (i) * * * The method is available Protection Agency, Room B–607 NEM, for public inspection at the Office of the 401 M St., SW., Washington, DC, 20460, § 796.3500 [Amended] Federal Register, Suite 700, 800 North between the hours of 12 p.m. and 4 p.m. c. Section 796.3500(b)(1)(ii) is Capitol St. Washington, DC, and copies weekdays excluding legal holidays. amended by removing the words may be obtained from the Non- ‘‘Copies of the incorporated material * * * * * Confidential Information Center (NCIC) e. Section 799.2155(a)(1) is amended may be obtained from the TSCA Public (7407), Office of Pollution Prevention Docket Office (TS–793), Rm. NE–G004, by revising the last sentence to read as and Toxics, U.S. Environmental follows: Office of Pollution Prevention and Protection Agency, Room B–607 NEM, Toxics, Environmental Protection 401 M Street, SW., Washington, DC, § 799.2155 Commercial hexane. Agency, 401 M St., SW., Washington, 20460, between the hours of 12 p.m. and (a) * * * DC, 20460,’’ and adding in place thereof 4 p.m. weekdays excluding legal (1) * * * Copies of the incorporated the words ‘‘Copies of the incorporated holidays. * * * material may be obtained from the Non- material may be obtained from the Non- * * * * * Confidential Information Center (NCIC) Confidential Information Center (NCIC) d. Section 799.1575 is amended by (7407), Office of Pollution Prevention (7407), Office of Pollution Prevention revising paragraphs (c)(1)(ii)(C), and Toxics, U.S. Environmental and Toxics, U.S. Environmental (c)(2)(ii)(C), and the last sentence in Protection Agency, Room B– 607 NEM, Protection Agency, Room B–607 NEM, paragraph (c)(3)(ii) and the last sentence 401 M St., SW., Washington, DC, 20460, 401 M St., SW., Washington, DC, 20460, in paragraph (d)(2) to read as follows: between the hours of 12 p.m. and 4 p.m. between the hours of 12 p.m. and 4 p.m. weekdays excluding legal holidays. weekdays excluding legal holidays,’’. § 799.1575 Diethylenetriamine (DETA). * * * * * 15. In part 799: * * * * * (c) * * * PART 799Ð[AMENDED] § 799.4360 [Amended] (1) * * * d. Section 799.4360(d)(7)(i)(B) is a. The authority citation for part 799 (ii) * * * amended by removing the words continues to read as follows: (C) These revised EPA-approved ‘‘copies may be obtained from the EPA Authority: 15 U.S.C. 2603, 2611, 2625. modified study plans are available for TSCA Public Docket Office in Rm. G– inspection in the Non-Confidential 004, NE Mall, 401 M St., SW., b. Section 799.5 is revised to read as Information Center (NCIC) (7407), Office Washington, DC 20460.’’ and adding in follows: of Pollution Prevention and Toxics, U.S. place thereof the words ‘‘copies may be Environmental Protection Agency, § 799.5 Submission of information. obtained from the Non-Confidential Room B– 607 NEM, 401 M St., SW., Information Center (NCIC) (7407), Office Information (letters, study plans, Washington, DC, 20460, between the reports) submitted to EPA under this of Pollution Prevention and Toxics, U.S. hours of 12 p.m. and 4 p.m. weekdays Environmental Protection Agency, part must bear the Code of Federal excluding legal holidays. Regulations section number of the Room B–607 NEM, 401 M St., SW., * * * * * Washington, DC, 20460, between the subject chemical test rule (e.g., (2) * * * § 799.1285 for Cumene) and must be hours of 12 p.m. and 4 p.m. weekdays (ii) * * * excluding legal holidays.’’ addressed to the Document Control (C) These revised EPA-approved * * * * * Office (7407), Office of Pollution modified study plans are available for Prevention and Toxics, U.S. inspection in the Non-Confidential [FR Doc. 95–16287 Filed 6–30–95; 8: 45 am] Environmental Protection Agency, Information Center (NCIC) (7407), Office BILLING CODE 6560±50±F Room G–099, 401 M St., SW., of Pollution Prevention and Toxics, U.S. Washington, DC., 20460. Environmental Protection Agency, c. Section 799.1285 is amended by Room B– 607 NEM, 401 M St., SW., DEPARTMENT OF DEFENSE revising the second sentence of Washington, DC, 20460, between the paragraph (e)(1)(i), and the second hours of 12 p.m. and 4 p.m. weekdays 48 CFR Part 204, 215, 217, and 243 sentence of paragraph (e)(2)(i) to read as excluding legal holidays. follows: * * * * * Defense Federal Acquisition § 799.1285 Cumene. (3) * * * Regulation Supplement; Sequence of (ii) * * * This revised EPA- Progress Payments and Contract * * * * * Modifications (e) * * * approved modified study plans is (1) * * * available for inspection in the Non- AGENCY: Department of Defense (DoD). (i) * * * The method is available Confidential Information Center (NCIC) ACTION: Final rule. for public inspection at the Office of the (7407), Office of Pollution Prevention 34468 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations SUMMARY: The Director of Defense PART 204ÐADMINISTRATIVE as in the acquisition of a satellite or the Procurement has amended the Defense MATTERS modification or production tooling used Federal Acquisition Regulation to produce items being acquired by Supplement (DFARS) to provide 2. Section 204.7101 is amended by several activities; or additional guidance regarding revising the definition of ‘‘accounting (C) A modification to an existing identification of accounting classification reference number’’ and by contract line item for a nonseverable classification information in DoD adding a definition of ‘‘nonseverable deliverable that results in the delivery of contracts. deliverable’’ to read as follows: a modified item(s) where the item(s) and DATES: Effective date: July 3, 1995. 204.7101 Definitions. modification are to be paid for with Accounting classification reference different accounting classification FOR FURTHER INFORMATION CONTACT: citations. Ms. Michele Peterson, Defense number (ACRN) means a two position alpha or alpha/numeric control code (iii) When the use of multiple Acquisition Regulations Council, accounting classification citations is PDUSD (A&T) DP (DAR), 3062 Defense used as a method of relating the accounting classification citation to authorized for a single contract line Pentagon, Washington, DC 20301–3062, item, establish informational subline telephone (703) 602–0131. Please cite detailed line item information contained in the schedule. items for each accounting classification DFARS Case 93–D016/95–D012 in all citation in accordance with 204.7104– correspondence related to this issue. * * * * * 1(a). Nonseverable deliverable, as used in SUPPLEMENTARY INFORMATION: this subpart, means a deliverable item * * * * * A. Background that is a single end product or 5. Section 204.7104–1 is amended by undertaking, entire in nature, that adding a new paragraph (a)(3) and by This final rule amends DFARS Parts cannot be feasibly subdivided into revising paragraphs (b)(1) introductory 204, 215, 217, and 243 to require discrete elements or phases without text and (b)(1)(i) to read as follows: contracting officers to clearly identify losing its identity. accounting classification information in 204.7104±1 Criteria for establishing. * * * * * DoD contracts, so that payments to * * * * * 3. Section 204.7102 is amended by contractors may be made from the (a) * * * revising the introductory text of appropriate funding source. (3) Informational subline items shall paragraph (b) to read as follows: be used to identify each accounting B. Regulatory Flexibility Act 204.7102 Policy. classification citation assigned to a This final rule does not constitute a * * * * * single contract line item number when significant revision within the meaning (b) The numbering procedures are use of multiple citations is authorized of Public Law 98–577 and publication mandatory for all contracts where (see 204.7103–1(a)(4)(ii)). for public comment is not required. separate contract line item numbers are (b) Separately identified subline Therefore, the Regulatory Flexibility Act assigned, unless— items. (1) Subline items will be used does not apply. However, comments instead of contract line items to * * * * * facilitate payment, delivery tracking, from small entities concerning the 4. Section 204.7103–1 is amended by contract funds accounting, or other affected DFARS subparts will be revising the word ‘‘three’’ to read ‘‘four’’ management purposes. Such subline considered in accordance with Section in the introductory text of paragraph (a), items shall be used when items bought 610 of the Act. Please cite DFARS Case and by adding a new paragraph (a)(4) to under one contract line item number— 93–D016/95–D012 in correspondence. read as follows: (i) Are to be paid for from more than C. Paperwork Reduction Act 204.7103±1 Criteria for establishing. one accounting classification. A subline The Paperwork Reduction Act does * * * * * item shall be established for the not apply because this final rule does (a) * * * quantity associated with the single not impose any new information (4) Single accounting classification accounting classification citation. collection requirements which require citation. Establish a line item rather than a the approval of OMB under 44 U.S.C. (i) Each contract line item shall subline item if it is likely that a subline 3501, et seq. reference a single accounting item may be assigned additional classification citation except as accounting classification citations at a List of Subjects in 48 CFR Part 204, 215, provided in paragraph (a)(4)(ii) of this later date. Identify the funding as 217, and 243 subsection. described in 204.7104–1(a)(3); Government procurement. (ii) The use of multiple accounting * * * * * Michele P. Peterson classification citations for a contract line 6. Section 204.7104–2 is amended by Executive Editor, Defense Acquisition item is authorized in the following revising the example in paragraph (e)(5); Regulations Council. situations: by redesignating paragraphs (e)(7) and (A) A single, nonseverable deliverable (e)(8) as paragraphs (e)(8) and (e)(9), Therefore, 48 CFR Parts 204, 215, 217, to be paid for with R&D or other funds respectively; and by adding a new and 243 are amended as follows: properly incrementally obligated over paragraph (e)(7) to read as follows: 1. The authority citations for 48 CFR several fiscal years in accordance with Part 204, 215, 217, and 243 are revised DoD policy; 204.7104±2 Numbering procedures. to read as follows: (B) A single, nonseverable deliverable * * * * * Authority: 41 U.S.C. 421 and 48 CFR to be paid for with different (e) * * * Chapter 1. authorizations or appropriations, such (5) * * * Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34469 Item No. Supplies/service Quantity Unit Unit price Amount 0001 6105±00±635±6568 50380 Ref No 63504±WZ Armature 0001AA 6105±00±635±6568 50380 2 Ea ...... $2,895.87 $5,791.74 Ref No 63504±WZ Armature Motor ACRN:AA 0001AB Packaging ACRN:AA ...... 2 Ea ...... $289.58 $579.16 * * * * * accounting classification citations (7) Informational subline items assigned to a single contract line item. established to identify multiple Item No. Supplies/service Quantity Unit Unit price Amount 0001 ...... Air Vehicle ...... 1 Ea ...... $6,700,000 $6,700,000 000101 ...... ACRN:AA $3,300,000 000102 ...... ACRN:AB $2,000,000 000103 ...... ACRN:AC $1,400,000 * * * * * be assigned to one accounting in the supplies/services column near the 7. Section 204.7107 is revised to read classification citation. item description. as follows: (d) Using the ACRN in the contract. (ii) If more than one accounting (1) Show the ACRN as a detached prefix 204.7107 Contract accounting classification citation applies to a single classification reference number (ACRN). to the accounting classification citation contract line item, identify each in the accounting and appropriation assigned ACRN and the amount of (a) When a contract contains more data block or, if there are too many associated funds using informational than one accounting classification accounting classification citations to fit subline items (see 204.7104–1(a)). citation, contracting offices shall use reasonably in that block, in section G (3) Payment instructions. (i) When a ACRNs. Assigning the ACRNs is the (Contract Administration Data). responsibility of the contracting office contract line item is funded by multiple (2) ACRNs need not prefix accounting issuing the contract, basic ordering accounting classification citations, the classification citations if the accounting agreement, or blanket purchase contracting officer shall provide classification citations are present in the agreement. This authority shall not be adequate instructions in section G contract only for the transportation delegated. If more than one office will (Contract Administration Data), under officer to cite to Government bills of use the contract (e.g., ordering officers, the heading ‘‘Payment Instructions for lading. other contracting officers), the contract Multiple Accounting Classification must contain instructions for assigning (3) If the contracting officer is making Citations,’’ to permit the paying office to ACRNs. a modification to a contract and using charge the accounting classification (b) ACRNs are used to process certain the same accounting classification citations assigned to that contract line contract data through the Military citations, which have had ACRNs item (see 204.7104–1(a)) in a manner Standard Contract Administration assigned to them, the modification need that reflects the performance of work on Procedures (MILSCAP) system. The cite only the ACRNs in the accounting the contract. If additional accounting MILSCAP system uses the ACRN to and appropriations data block or on the classification citations are subsequently relate certain contract administration continuation sheets. added, the payment instructions must records to the accounting classification (e) Showing the ACRN in the contract. be modified to include the accounting citation used to obligate funds on the If there is more than one ACRN in a classification citations. contract. Among these records are the contract, all the ACRNs will appear in (ii) Payment instructions shall accounting classification trailer record, several places in the schedule (e.g., provide a methodology for the paying the supplies schedules data record, and ACRN:AA). office to assign payments to the the services line item data record. (1) Ship-to/mark-for block. Show the appropriate accounting classification ACRNs are also used to associate the ACRN beside the identify code of each citation(s), based on anticipated contract various record formats of the contract activity in the ship-to/mark-for block work performance. The method payment notice as described in chapter unless only one accounting established should be consistent with 9 of the MILSCAP Manual, DoD classification citation applies to a line the reasons for the establishment of the 4000.25–5–M. item or subline item. Only one ACRN line items. The payment method may be (c) Procedures for establishing may be assigned to the same ship-to/ based upon a unique distribution profile ACRNs. ACRNs consist of a two mark-for within the same contract line devised to reflect how the funds position alpha or alpha/numeric code or subline item number unless multiple represented by each of the accounting assigned to each discrete accounting accounting classification citations apply classification citations support contract classification citation within each to a single nonseverable deliverable unit performance. Payment methods that contract. ACRNs shall be established in such that the item cannot be related to direct that payments be made from the accordance with the following an individual accounting classification earliest available fiscal year funding guidelines: citation. sources, or that provide for proration (1) Do not use the letters I and O. (2) Supplies/services column. (i) If across accounting classification (2) In no case shall an ACRN apply to only one accounting classification citations assigned to the line item, or a more than one accounting classification citation applies to a line item or a combination thereof, may be used if that citation, nor shall more than one ACRN subline item, the ACRN may be shown methodology reasonably reflects how 34470 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations each of the accounting classification (c) The total cumulative amount of because the DFARS already permits citations supports contract performance. obligated or deobligated funds, DoD to grant public interest exceptions * * * * * categorized by the types of contracts to the Buy American Act, where the specified in paragraph (a) of this purposes of the Buy American Act are PART 215ÐCONTRACTING BY section. not served. This interim rule merely NEGOTIATION [FR Doc. 95–16162 Filed 6–30–95; 8:45 am] amends the DFARS guidance to reflect a recent change to the list of 8. A new section 215.406–2 is added BILLING CODE 5000±04±M considerations at 10 U.S.C. 2533, and to to read as follows: streamline internal DoD approval 215.406±2 Part IÐThe schedule. 48 CFR Part 225 requirements. An Initial Regulatory (g) When a contract contains both Flexibility Analysis has therefore not fixed-priced and cost-reimbursement Defense Federal Acquisition been performed. Comments are invited line items or subline items, the Regulation Supplement; from small businesses and other contracting officer shall provide, in Determinations Under the Buy interested parties. Comments from small Section B, Supplies or Services and American Act entities concerning the affected DFARS Prices/Costs, an identification of subparts will also be considered in contract type specified for each contract AGENCY: Department of Defense (DoD). accordance with Section 610 of the Act. line item or subline item to facilitate ACTION: Interim rule with request for Such comments must be submitted appropriate payment. comment. separately and cite DFARS Case 94– D313 in correspondence. PART 217ÐSPECIAL CONTRACTING SUMMARY: The Director of Defense METHODS Procurement has issued an interim rule C. Paperwork Reduction Act amending the Defense Federal The Paperwork Reduction Act does 9. Section 217.7405 is revised to read Acquisition Regulation Supplement not apply because this interim rule does as follows: (DFARS) to expand the guidance not impose any new information 217.7405 Definitizations. regarding public interest exceptions to collection requirements which require the Buy American Act. For each definitization modification, the approval of OMB under 44 U.S.C. the contracting officer shall include all DATES: Effective Date: July 3, 1995. 3501 et seq. data required by 243.171. Comment date: Comments on the interim rule should be submitted in D. Determination To Issue an Interim 10. Section 217.7406 is added to read Rule as follows: writing to the address shown below on or before September 1, 1995, to be A determination has been made under 217.7406 Contract clause. considered in the formulation of the the authority of the Secretary of Defense Use the clause at 252.217.7027, Price final rule. that compelling reasons exist to publish Ceiling, in all undefinitized contract ADDRESSES: Interested parties should this interim rule prior to affording the actions and solicitations associated with submit written comments to: Defense public an opportunity to comment. This UCAs. Insert the not-to-exceed amount. Acquisition Regulations Council, Attn: action is necessary to implement Ms. Amy Williams, Section 812 of the Fiscal Year 1995 PART 243ÐCONTRACT PDUSD(A&T)DP(DAR), IMD 3D139, Defense Authorization Act (Pub. L. 103– MODIFICATIONS 3062 Defense Pentagon, Washington, DC 337). Comments received in response to 11. Section 243.171 is added to read 20301–3062. Telefax number (703) 602– the publication of this interim rule will as follows: 0350. Please cite DFARS Case 94–D313 be considered in formulating the final in all correspondence related to this rule. 243.171 Obligation or deobligation of issue. funds. List of Subjects in 48 CFR Part 225 FOR FURTHER INFORMATION CONTACT: For each contract modification, the Ms. Government procurement. Amy Williams, (703) 602–0131. contracting officer shall identify, in Michelle P. Peterson, Section G, Contract Administration Data SUPPLEMENTARY INFORMATION: Executive Editor, Defense Acquisition (Uniform Contract Format), or the A. Background Regulations Council. contract schedule (Simplified Contract Therefore, 48 CFR Part 225 is This interim DFARS rule implements Format), under the heading ‘‘Summary amended as follows: for the Payment Office,’’ information Section 812 of the Fiscal Year 1995 sufficient to permit the paying office to Defense Authorization Act (Pub. L. 103– 1. The authority citation for 48 CFR readily identify the changes for each 337). Section 812 adds several factors to part 225 is revised to read as follows: contract line and subline item as the series of factors at 10 U.S.C. 2533 Authority: 41 U.S.C. 421 and 48 CFR follows— that DoD must consider when Chapter 1. (a) The amount of funds obligated by determining whether to grant a public prior contract actions, to include the interest exception to the Buy American PART 225ÐFOREIGN ACQUISITION total cost and fee if a cost-type contract; Act (41 U.S.C. 10). In addition, this rule 2. Section 225.102 is amended by revising the target fee at time of contract award revises the internal DoD approval paragraph (a)(3) to read as follows: if a cost-plus-incentive-fee contract; the requirements for granting such base fee if a cost-plus-award-fee exceptions. 225.102 Policy. contract; or the target price and target (a)(2) * * * B. Regulatory Flexibility Act profit if a fixed-price incentive contract; (3)(A) Specific public interest (b) The amount of funds obligated or This interim rule is not expected to exceptions for DoD are in 225.872. deobligated by the instant modification, have a significant economic impact on (B) Normally, use the evaluation categorized by the types of contracts a substantial number of small entities procedures in 225.105, but consider specified in paragraph (a) of this within the meaning of the Regulatory recommending a public interest section; and Flexibility Act, 5 U.S.C. 601 et seq., exception where the purposes of the Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34471 Buy American Act are not served, or in Defense Pentagon, Washington, DC List of Subjects in 48 CFR Part 225 and order to meet a need set forth in 10 20301–3062. Telefax number (703) 602– 252 U.S.C. 2533. For example, a public 0350. Please cite DFARS Case 95–D301 Government procurement. interest exception may be appropriate— in all correspondence related to this (1) If accepting the low domestic offer issue. Michele P. Peterson, will involve substantial foreign Executive Editor, Defense Acquisition FOR FURTHER INFORMATION CONTACT: expenditures, or accepting the low Regulations Council. Ms. Amy Williams, (703) 602–0131. foreign offer will involve substantial Therefore, 48 CFR Parts 225 and 252 domestic expenditures; SUPPLEMENTARY INFORMATION: are amended as follows: (2) To ensure access to advanced A. Background 1. The authority citation for 48 CFR state-of-the-art commercial technology; parts 225 and 252 is revised to read as or This interim DFARS rule implements follows: (3) To maintain the same source of Section 8023 of the Fiscal Year 1995 Authority: 41 U.S.C. 421 and 48 CFR supply for spare and replacement parts Defense Appropriations Act (Pub. L. Chapter 1. (also see paragraph (b)(iii)(B) of this 103–335). Section 8023 and comparable section)— sections in prior Defense PART 225ÐFOREIGN ACQUISITION (i) For an end item that qualifies as an Appropriations Acts require that any American good; or supercomputers acquired with defense 2. Sections 225.7023, 225.7023–1, (ii) In order not to impair integration funds appropriated in Fiscal Years 1988 225.7023–2, and 225.7023–3 are added of the military and commercial through 1995 must be manufactured in to read as follows: industrial base. the United States, unless the Secretary 225.7023 Restriction on supercomputers. (C) A determination whether to grant of Defense certifies to Congress that the a public interest exception shall be supercomputers are for national security 225.7023±1 Restriction. made after consideration of the factors purposes and are not available from In accordance with Section 8101 of in 10 U.S.C. 2533— United States manufacturers. Pub. L. 100–202, and similar sections in (1) At a level above the contracting subsequent Defense Appropriations officer for acquisitions valued at less B. Regulatory Flexibility Act Acts, do not purchase any than $100,000; This interim rule is not expected to (2) By the head of the contracting supercomputer that is not manufactured have a significant economic impact on in the United States. activity for acquisitions valued at a substantial number of small entities $100,000 or more but less than within the meaning of the Regulatory 225.7023±2 Waiver. $1,000,000; or Flexibility Act, 5 U.S.C. 601 et seq., The restriction in 225.7023–1 may be (3) By the agency head for because the rule places restrictions on waived by the Secretary of Defense on acquisitions valued at $1,000,000 or the acquisition of foreign products. An a case-by-case basis, after the Secretary more. Initial Regulatory Flexibility Analysis of Defense certifies to the Armed * * * * * has therefore not been performed. Services and Appropriations [FR Doc. 95–16158 Filed 6–30–95; 8:45 am] Comments are invited from small Committees of Congress that— BILLING CODE 5000±04±M businesses and other interested parties. (a) Adequate U.S. supplies are not Comments from small entities available to meet requirements on a concerning the affected DFARS subparts timely basis; and 48 CFR Parts 225 and 252 will also be considered in accordance (b) The acquisition must be made in with Section 610 of the Act. Such Defense Federal Acquisition order to acquire capability for national comments must be submitted separately Regulation Supplement; security purposes. and cite DFARS Case 95–D301 in Supercomputers correspondence. 225.7023±3 Contract clause. AGENCY: Department of Defense (DoD). C. Paperwork Reduction Act Use the clause at 252.225–7011, ACTION: Interim rule with request for Restrictions on Acquisition of comment. The Paperwork Reduction Act does Supercomputers, in solicitations and not apply because this interim rule does contracts for the acquisition of SUMMARY: The Director of Defense not impose any new information supercomputers. Procurement has issued an interim rule collection requirements which require amending the Defense Federal the approval of OMB under 44 U.S.C. PART 252ÐSOLICITATION Acquisition Regulation Supplement 3501 et seq. PROVISIONS AND CONTRACT (DFFARS) to reflect a statutory CLAUSES restriction on the acquisition of D. Determination To Issue an Interim supercomputers of foreign manufacture. Rule 3. Section 252.225–7011 is added to read as follows: DATES: Effective date: July 3, 1995. A determination has been made under Comment date: Comments on the the authority of the Secretary of Defense 252.225±7011 Restriction on Acquisition interim rule should be submitted in that compelling reasons exist to publish of Supercomputers. writing to the address shown below on this interim rule prior to affording the As prescribed in 225.7023–3, use the or before September 1, 1995, to be public an opportunity to comment. This following clause: considered in the formulation of the action is necessary to implement Restriction on Acquisition of final rule Section 8023 of the Fiscal Year 1995 Supercomputers (Insert month and year of ADDRESSES: Interested parties should Defense Appropriations Act (Pub. L. publication in the Federal Register) submit written comments to: Defense 103–335). Comments received in The Contractor agrees that any Acquisition Regulations Council, Attn: response to the publication of this supercomputers furnished under this Ms. Amy Williams, PDUSD interim rule will be considered in contract have been manufactured in the (AT&T)DP(DAR), IMD 3D139, 3062 formulating the final rule. United States. 34472 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations (End of clause) 182,000 lb (82.55 metric tons (mt)) in proposed rule at 60 FR 11062 (March 1, [FR Doc. 95–16159 Filed 6–30–95; 8:45 am] the subarea 2A–1 (northern Washington 1995), requesting comments through April 17, 1995, based on a BILLING CODE 5000±04±M coast) in 1995. Of this total, 11,000 lb (4.98 mt) are reserved for ceremonial recommendation of the Pacific Fishery and subsistence purposes, leaving Management Council (Council) at its October 1994 meeting. No written DEPARTMENT OF COMMERCE 171,000 lb (77.56 mt) for the commercial fishery. The commercial catch as of June comments were received. NMFS National Oceanic and Atmospheric 12, 1995, in subarea 2A–1 was 175,000 concurs with the Council’s Administration lb (79.37 mt), closing the treaty Indian recommendations, and therefore, this commercial fishery for the remainder of final rule is substantively the same as 50 CFR Part 301 1995. proposed, with several clarifications Dated: June 26, 1995. explained below. The proposed rule and [Docket No. 950106003±5070±02; I.D. Environmental Assessment and 062695B] Richard W. Surdi, Regulatory Impact Review (EA/RIR) Acting Director, Office of Fisheries Pacific Halibut Fisheries; Treaty Indian prepared for this action contain Conservation and Management, National background and rationale. Commercial Fishery in Subarea 2A±1 Marine Fisheries Service. Clarifications AGENCY: National Marine Fisheries [FR Doc. 95–16236 Filed 6–30–95; 8:45 am] Service (NMFS), National Oceanic and BILLING CODE 3510±22±F The proposed rule stated that all Atmospheric Administration (NOAA), nontrawl gear must be out of the water Commerce. 72 hours before the regular season and 50 CFR Part 663 ACTION: Closure. sablefish may not be landed during that [Docket No. 950209046±5167±03; I.D. time. However, a review of the Council’s SUMMARY: The Assistant Administrator 011295D] motion revealed that this requirement for Fisheries, NOAA, on behalf of the was intended to apply only to fixed gear International Pacific Halibut RIN 0648±AG82 (longline, trap or pot, set net and Commission (IPHC), publishes this stationary hook-and-line gear, including Pacific Coast Groundfish Fishery; inseason action pursuant to IPHC commercial vertical hook-and-line gear), Modification of Nontrawl Sablefish regulations approved by the U.S. not all nontrawl gear. Nontrawl gear Season Government to govern the Pacific includes fixed as well as mobile gear. halibut fishery. This action is intended AGENCY: National Marine Fisheries Most at-sea enforcement of the closure to enhance the conservation of Pacific Service (NMFS), National Oceanic and will be conducted by over-flights. halibut stock in order to help sustain it Atmospheric Administration (NOAA), Because it is difficult to distinguish at an adequate level in the northern Commerce. between the various types of access or Pacific Ocean and Bering Sea. ACTION: Final rule. limited entry fixed gear, the requirement EFFECTIVE DATE: June 12, 1995, through for gear to be out of the water applies December 31, 1995. SUMMARY: NMFS announces regulations to both open access and limited entry FOR FURTHER INFORMATION CONTACT: to establish a new season structure for operations. Mobile nontrawl gear Steven Pennoyer, 907-586-7221; the nontrawl sablefish component of the catches only small amounts of sablefish, William W. Stelle, Jr., 206-526-6140; or Pacific Coast Groundfish limited entry and, since it is not marked with buoys, Donald McCaughran, 206-634-1838. fishery off Washington, Oregon, and its use does not complicate aerial enforcement. Therefore, it is SUPPLEMENTARY INFORMATION: The IPHC, California. The new regular season for unnecessary to require mobile nontrawl under the Convention between the this fishery will begin each year at 12 gear to be out of the water. In the pink United States of America and Canada noon August 6. In addition, both the shrimp and spot and ridgeback prawn for the Preservation of the Halibut limited entry and open-access fisheries, pot (trap) vessels may set their Fishery of the Northern Pacific Ocean groundfish fisheries are required to gear as long as groundfish are not and Bering Sea (signed at Ottawa, remove all fixed gear from the water 72 retained or landed during the 72–hour Ontario, on March 2, 1953), as amended hours prior to the start of the regular season. This rule is intended to promote period. by a Protocol Amending the Convention To facilitate enforcement, NMFS (signed at Washington, DC, on March the goals and objectives of the Pacific Coast Groundfish Fishery Management intends to use 12 noon as the starting 29, 1979), has issued this inseason and ending times of the regular and action pursuant to IPHC regulations Plan (FMP) by providing an equitable opportunity for different types of mop-up fisheries, whenever practicable. governing the Pacific halibut fishery. Regarding the length of the mop-up The regulations have been approved by nontrawl gear to harvest the limited entry nontrawl allocation for sablefish, season and amount of the cumulative NMFS (60 FR 14651, March 20, 1995). trip limit, the requirement for the NMFS On behalf of the IPHC, this inseason to enhance vessel safety by avoiding a winter opening, to keep the fishery Regional Director to consult with the action is published in the Federal Council’s ‘‘Groundfish Management Register to provide additional notice of within the annual management target, and to minimize gear conflicts. Team’’ has been revised to its its effectiveness, and to inform persons ‘‘designees’’ to provide flexibility. subject to the inseason action of the EFFECTIVE DATE: August 2, 1995. The Council confirmed its intent and restrictions and requirements FOR FURTHER INFORMATION CONTACT: it is NMFS policy that, as in other established therein. William L. Robinson at 206–526–6140; groundfish fisheries, a vessel must Inseason Action or Rodney McInnis at 310–980–4040. initiate offloading its catch before the SUPPLEMENTARY INFORMATION: effective time of any closure or reduced Northwest Treaty Tribes Fishery in Area NMFS issues this final rule under the trip limit. This ensures that fishers have 2A authority of the FMP and the Magnuson enough time to come to shore and start Northwest treaty Indian tribes were Fishery Conservation and Management offloading their catch, which is well allocated a total allowable catch of Act (Magnuson Act). NMFS published a documented because each landing of Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34473 groundfish requires a State ‘‘fish ticket’’ § 663.23 Catch restrictions. as practicable thereafter. During the or similar documentation. * * * * * mop-up fishery, a cumulative trip limit will be imposed. The length of the mop- Classification (b) * * * (2) Nontrawl sablefish. This paragraph up season and amount of the cumulative The Assistant Administrator for (b)(2) applies to the limited entry trip limit, including the time period to Fisheries, NOAA (AA), has determined fishery, except for paragraphs (b)(2)(i) which it applies, will be determined by that this final rule is necessary for and (v), which also apply to the open- the Regional Director in consultation management of the Pacific Coast access fishery. All times are local times. with the Council or its designees, and groundfish fishery and that it is (i) Pre-season closure—Open-access will be based primarily on the amount consistent with the Magnuson Act and and limited entry fisheries. (A) Sablefish of fish remaining in the allocation and other applicable law. taken with fixed gear in the limited the number of participants anticipated. The Council prepared an EA for this entry or open access fishery in the EEZ The Regional Director may determine rule (contained in the EA/RIR) and the may not be retained or landed from 12 that too little of the nontrawl allocation AA concluded that there would be no noon August 3 through 12 noon August remains to conduct an orderly or significant impact on the environment. 6. manageable fishery, in which case there This rule has been determined to be (B) All fixed gear used to take and will not be a mop-up season. not significant for purposes of E.O. retain groundfish must be out of EEZ 12866. (iv) The dates and times that the waters from 12 noon August 3 through regular season ends (and trip limits on List of Subjects in 50 CFR Part 663 12 noon August 6, except that pot gear sablefish of all sizes are resumed) and used to take and retain groundfish may the mop-up season begins and ends, and Fisheries, Fishing, Reporting and be deployed and baited in the EEZ after recordkeeping requirements. the size of the trip limit for the mop-up 12 noon on August 5. fishery, will be announced in the Dated: June 28, 1995. (ii) Regular season—Limited entry Federal Register, and may be modified. fishery. The regular season for the Gary Matlock, Unless otherwise announced, these limited entry nontrawl sablefish fishery seasons will begin and end at 12 noon Program Management Officer, National begins at 1201 hours on August 6. Marine Fisheries Service. on the specified date. During the regular season, the limited For the reasons set out in the entry nontrawl sablefish fishery may be (v) Trip and/or frequency limits may preamble, 50 CFR part 663 is amended subject to trip limits to protect juvenile be imposed in the limited entry fishery as follows: sablefish. The regular season will end before and after the regular season, and when 70 percent of the limited entry after the mop-up season, under PART 663ÐPACIFIC COAST paragraph (c) of this section. Trip and/ GROUNDFISH FISHERY nontrawl allocation has been or is projected to be taken. The end of the or size limits to protect juvenile 1. The authority citation for part 663 regular season may be announced in the sablefish in the limited entry or open- continues to read as follows: Federal Register either before or during access fisheries also may be imposed at Authority: 16 U.S.C. 1801 et seq. the regular season. any time under paragraph (c) of this 2. Effective August 2, 1995, § 663.23, (iii) Mop-up season—Limited entry section. Trip limits may be imposed in paragraph (b)(2) is revised to read as fishery. A mop-up season to take the the open-access fishery at any time follows. This amendment supersedes remainder of the limited entry nontrawl under paragraph (c) of this section. the document published at 60 FR 10040, allocation will begin about 3 weeks after [FR Doc. 95–16312 Filed 6–30–95; 8:45 am] February 23, 1995. the end of the regular season, or as soon BILLING CODE 3510±22±F 34474 Proposed Rules Federal Register Vol. 60, No. 127 Monday, July 3, 1995 This section of the FEDERAL REGISTER Room 2446 South Building, 14th Street The PACA, in § 1(9) (7 U.S.C. 499a), contains notices to the public of the proposed and Independence Avenue, S.W., defines ‘‘responsibly connected’’ to issuance of rules and regulations. The Washington, DC 20250–1400. (202) 720– mean ‘‘affiliated or connected with a purpose of these notices is to give interested 5293. commission merchant, dealer, or broker persons an opportunity to participate in the as (A) partner in a partnership, or (B) rule making prior to the adoption of the final SUPPLEMENTARY INFORMATION: officer, director, or holder of more than rules. Disciplinary Proceedings. Section 2 of 10 per centum of the outstanding stock the Perishable Agricultural of a corporation or association.’’ Commodities Act (PACA), 7 U.S.C. Prior to 1975, the determination as to DEPARTMENT OF AGRICULTURE 499b, proscribes as unfair various responsibly connected status was made conduct on the part of commission Office of the Secretary without the benefit of an oral hearing. merchants, dealers, or brokers. The After the decision of the U.S. Court of PACA provides redress for such 7 CFR Parts 1 and 47 Appeals for the District of Columbia in unlawful conduct in the form of Quinn v. Butz, 510 F.2d 743 (D.C. Cir. Rules of Practice suspension or revocation of required 1975), USDA instituted a procedure licenses, and to a limited extent, civil AGENCY: governed by regulations published at 7 Office of the Secretary of penalties. The Agricultural Marketing CFR 47.47 et seq. giving any person Agriculture, USDA. Service (AMS) of the U.S. Department of finally determined by the PACA Branch ACTION: Proposed rule. Agriculture (USDA) enforces § 2 of the of AMS to have been responsibly PACA, in part, through administrative SUMMARY: We are proposing to amend connected to a firm subject to license proceedings adjudicated by the Rules of Practice Governing Formal revocation or suspension the Administrative Law Judges. Adjudicatory Proceedings Instituted by opportunity for an oral hearing before a the Secretary Under Various Statutes While the PACA is the substantive presiding officer appointed by AMS. and the Rules of Practice Under the law governing these administrative Currently, determinations as to Perishable Agricultural Commodities disciplinary proceedings, The Rules of whether an individual is responsibly Act. The purpose of the proposal is to Practice Governing Formal Adjudicatory connected to a particular commission provide that the adjudication, under the Proceedings Instituted by the Secretary merchant, dealer, or broker are made Perishable Agricultural Commodities Under Various Statutes (Rules of independently of any related Act, of whether an individual is Practice), at 7 CFR 1.130 et seq., provide disciplinary proceeding against the ‘‘responsibly connected’’ with a their procedural framework. commission merchant, dealer, or broker. particular commission merchant, dealer, Disciplinary proceedings are instituted Although typically the two proceedings or broker will be joined with any related by filling a formal complaint with the involve a common fact nucleus, disciplinary proceedings against the Hearing Clerk. The respondent is given currently no mechanism exists for same commission merchant, dealer, or the opportunity to file an answer to the joining the procedures to achieve a more broker; and to provide that any complaint. An Administrative Law efficient use of resources. In addition, in adjudications of such status be made by Judge determines the issues and makes those cases where the individual Administrative Law Judge of the a decision after opportunity for a full requests oral hearing, responsibly Department of Agriculture. evidentiary hearing. Both parties may connected proceedings frequently are DATES: Consideration will be given only request testimonial and documentary not concluded until the sanction in the to comments received on or before subpoenas. Any decision of the related disciplinary proceeding has been August 2, 1995. Administrative Law Judge may be in effect for a year or more. Thus, ADDRESSES: Please send an original and appealed to the Judicial Officer, acting although an offending entity’s license three copies of your comments to for the Secretary. An appeal from a may have been revoked for as much as Barbara S. Good, Trial Attorney, Office decision of the Judicial Officer may be a year, those individuals responsible for of the General Counsel, USDA, Room taken to the appropriate U.S. Circuit the violations may nevertheless 2446, South Building, 14th Street and Court of Appeals. continue to be employed in the industry Independence Avenue, S.W., Proceedings to determine responsibly pending a determination of responsibly Washington, DC 20250–1400. connected status. In addition to the connected status. Comments received may be inspected at proscription against unfair conduct The rules currently governing USDA, Room 2446, South Building, embodied in § 2, § 8(b) of the PACA (7 determination of responsibly connected 14th Street and Independence Avenue U.S.C. 499h(b)) forbids a licensee from status are set out at 7 CFR 47.47 et seq. S.W., Washington, DC 20250–1400, employing a person who is or has been In brief, these rules provide for a between 9:00 a.m. and 5:30 p.m., ‘‘responsibly connected’’ with a firm or preliminary determination by the Monday through Friday, except person whose license has been revoked Perishable Agricultural Commodities holidays. Persons wishing to inspect or is under suspension by the Secretary, Branch (PACA Branch), AMS, as to the comments are encouraged to call (202) a person who has been found to have status of a person who is potentially 720–7357 in advance to make committed any flagrant or repeated responsibly connected, notification of arrangements. violation of § 2, or against whom there the preliminary determination, and an FOR FURTHER INFORMATION CONTACT: is an unpaid reparation award. Such opportunity to respond and furnish Mary Hobbie, Assistant General employment violations subject the evidence to the Chief, PACA Branch. If Counsel, Trade Practices Division, employing firm or individual to license the Chief, PACA Branch, sustains the Office of the General Counsel, USDA, suspension or revocation. preliminary determination that the Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Proposed Rules 34475 individual is responsibly connected, the officers, directors, and shareholders of Executive Order 12778 individual is then entitled to file a greater than 10 percent of the stock This proposed rule has been reviewed petition with the Administrator of AMS consist of Able, Jones, and Smith. Under under Executive Order 12778, Civil for a review proceeding and final the proposal, all issues arising out of the Justice Reform. If this rule is adopted: decision and to request an oral hearing. disciplinary infractions charged against (1) All State and local laws and If an oral hearing is requested, it is held Acme and all employment sanctions regulations that are in conflict with this before a hearing officer appointed by the arising out of the relationships between rule will be preempted; (2) no Administrator. Appeals of adverse Acme on the one hand and Able, Jones, retroactive effect will be given to this decisions of the Administrator lie to the and Smith on the other hand will be rule; and (3) administrative proceedings U.S. Circuit Courts of Appeal. In any consolidated for hearing to the extent will not be required before parties may event, no employment sanction begins that the employment sanctions originate file suit in court challenging this rule. to run until one of the following three from Acme’s alleged disciplinary conditions set forth in § 8(b) of the violations. If for any reason there is no Paperwork Reduction Act PACA exists: (1) the license of the firm hearing on the issues involving Acme, The Paperwork Reduction Act of 1980 with which the responsible connection but Able, Jones, and Smith file petitions does not apply to this proposed rule exists has been suspended or revoked; for review of their status as responsibly since the proposed rule does not seek (2) there is a finding that the firm has connected individuals and request answers to identical questions or committed a flagrant or repeated hearings, those hearings will be impose reporting or recordkeeping violation of § 2 of the PACA; or (3) the consolidated in one proceeding before requirements on 10 or more persons, firm has failed to pay a reparation award an Administrative Law Judge. and the information collected is not under § 7 of the PACA. used for general statistical purposes. Proposed rules to combine To the extent that no disciplinary disciplinary proceedings with proceeding has been instituted against List of Subjects determinations of responsibly Acme and the proposed employment 7 CFR Part 1 connected status. We propose to modify sanctions against Able, Jones and Smith the procedures for determining arise under PACA § 8(B)(3) solely from Administrative practice and responsibly connected status to Acme’s failure to pay one or more procedure, Agriculture, Antitrust, Blind, accomplish two objectives: (1) To reparation awards under PACA § 7, all Claims, Concessions, Cooperatives, consolidate, where the possibility exists, hearings on petitions for review will be Equal access to justice, Federal hearings in disciplinary cases and consolidated in one proceeding before buildings and facilities, Freedom of related determinations of responsibly an Administrative Law Judge. The information, Lawyers, Privacy. connected status; and (2) to provide for vehicle used to achieve this 7 CFR Part 47 review by an Administrative Law Judge consolidation will be a mandatory of the final determination of the Chief, joinder under the Rules of Practice as Administrative practice and PACA Branch that an individual is amended. procedure, Agricultural commodities, responsibly connected. Because the USDA believes that the proposed Brokers. issues in both types of proceedings are procedures, by reducing the incidence For the reasons, set out in the based upon identical or closely-related of multiple hearings, will facilitate preamble 7 CFR chapter I is proposed to facts, and because the sanctions are speedy enforcement of the PACA and be amended as follows: related, such a procedure eliminates the will result in savings in employee time need for duplicative litigation. It also and travel expense. They will also PART 1ÐADMINISTRATIVE offers the advantage of insuring that the abolish the need for AMS to employ REGULATIONS sanctions against the licensee and the individuals to act as presiding officers at 1. The authority citation for part 1, individuals responsibly connected with responsibly connected proceedings. In subpart H, would continue to read as it will commence concurrently. 1994, presiding officers were paid follows: Instead of filing a petition for review $26,866, a large portion of which would with the Administrator of AMS, under be saved under the proposed new Authority: 5 U.S.C. 301; 7 U.S.C. 61, 87e, 149, 150gg, 162, 163, 164, 228, 268, 490o, the proposed procedures, the individual regulation. contesting the final determination by 608c(14), 1592, 1624(b), 2151, 2621, 2714, the Chief, PACA Branch, that he or she Executive Order 12866 and Regulatory 2908, 3812, 4610, 4815, 4910; 15 U.S.C. 1828; Flexibility Act 16 U.S.C. 620d, 1540(f), 3373; 21 U.S.C. 104, is responsibly connected will file a 111, 117, 120, 122, 127, 134e, 134f, 1135a, petition for review with the Office of the The Secretary has determined that, if 154, 463(b), 621, 1043; 43 U.S.C. 1740; 7 CFR Hearing Clerk, and the petition will be adopted, this proposed rule would not 2.35, 2.41. decided by an Administrative Law Judge, after opportunity for oral hearing. have a significant economic impact on § 1.131 [Amended] Any hearing on a responsibly connected a substantial number of small entities. 2. Section 1.131 would be amended as determination will be consolidated with While small entities will continue to be follows: the hearing, if any, on the disciplinary subject to identical substantive a. In paragraph (a), by adding ‘‘1(9),’’ matters out of which the issue of requirements under the revised immediately after ‘‘Perishable responsibly connected status arose. procedures, the new procedures will not Agricultural Commodities Act, 1930, Likewise, all responsibly connected result in any new burdens. The new rule sections’’ and immediately before hearings arising out of the relationship merely changes the form of the hearing ‘‘3(c)’’. between more than one individual and utilized to determine responsibly 3. Section 1.133 would be amended as one particular PACA licensee will be connected status. follows: consolidated. This proposed rule has been a. In paragraph (b), by adding after To illustrate by hypothetical, assume determined not significant for purpose ‘‘Filing of complaint’’ the words ‘‘or that PACA Branch, AMS, institutes a of Executive Order 12866 and, therefore, petition for review’’. disciplinary proceeding against the has not been reviewed by the Office of b. In paragraph (b), by redesignating Acme Produce Company, of which the Management and Budget. paragraph (b)(2) as paragraph (b)(3), and 34476 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Proposed Rules by adding the following new paragraph § 1.137. Amendment of complaint, petition 9. Section 47.47 would be revised to (b)(2): for review, or answer; joinder of related read as follows: matters. § 1.133 Institution of proceedings. (a) Amendment. At any time prior to § 47.47 Additional definitions. * * * * * the filing of a motion for hearing, the The following definitions, which are in addition to those in 7 CFR 47.2 (a) (b) * * * complaint, petition for review, answer, or response to petition for review may through (h), shall be applicable to (2) Any person determined by the be amended. Thereafter, such an proceedings under 7 CFR 47.47 through Chief, PACA Branch, pursuant to 7 CFR amendment may be made with consent 47.49. 47.47 et seq. to have been responsibly of the parties, or as authorized by the (a) Chief means the Chief of the PACA connected within the meaning of 7 Judge upon a showing of good cause. Branch, or any officer or employee to U.S.C. 499a(9) to a licensee who is (b) Joinder. Upon application of the whom authority has heretofore lawfully subject or potentially subject to license Administrator made at any time, the been delegated or to whom authority suspension or revocation as the result of judge shall consolidate for hearing with may hereafter lawfully be delegated by an alleged violation of 7 U.S.C. 499b or any proceeding brought to suspend or the Chief, to act in such capacity. as provided in 7 U.S.C. 499g(d) shall be revoke a license granted under the (b) PACA Branch means the PACA entitled to institute a proceeding under Perishable Agricultural Commodities Branch of the Division. this section by filing with the Hearing Act, 7 U.S.C. 499a et seq., any petitions (c) Petition for review means the Clerk a petition for review of such for review of determination of status by document filed requesting review by an determination the Chief, PACA Branch, that Administrative Law Judge of the Chief’s * * * * * individuals are responsibly connected, determination. 4. Section 1.135 would be amended as within the meaning of 7 U.S.C. 499a(9), § 47.49 [Amended] to the licensee during the period of the follows: 10. Section 47.49 would be amended alleged violations. In any case in which a. In the section heading, by adding as follows: there is no pending proceeding to the words ‘‘or petition for review’’ after a. The words ‘‘Regulatory Branch’’ suspend or revoke the license of a the word ‘‘complaint’’ and before the would be removed each time they occur licensee issued under the Perishable period. and the words ‘‘PACA Branch’’ would Agricultural Commodities Act, 7 U.S.C. be added in their place. b. By designating the text of current 499a et seq., but there have been filed b. Paragraph (d) of § 47.49 would be § 1.135 as paragraph (a), and by adding more than one petition for review of amended by removing all words the paragraph heading ‘‘Complaint.’’ determination of responsible connection appearing after ‘‘may file’’ and adding in immediately after the designation of to the same licensee, such petitions for their place the words ‘‘with the Hearing paragraph (a). review shall be consolidated for hearing Clerk, pursuant to § 1.130 et seq. of this c. By adding the follow paragraph (b): upon motion by the Administrator. chapter, a petition for review of the 7. Section 1.141 would be amended as § 1.135 Contents of complaint. determination.’’ follows: c. Paragraphs (e) and (f) would be * * * * * a. By adding after the first sentence of removed. (b) Petition for Review. The Petition paragraph (a) the following additional for Review of responsibly connected sentence: ‘‘A petition for review shall be § 47.50 through 47.68 [Removed] status shall describe briefly and clearly deemed a request for a hearing.’’ 11. Sections 47.50 through 47.68 the determination sought to be reviewed b. By designating the text of current would be removed. and shall include a brief statement of paragraph (e) as paragraph (e)(1), and by Done in Washington, D.C. this 20th day of the factual and legal matters that the adding the following new paragraph June, 1995. petitioner believes warrant the reversal (e)(2): Dan Glickman, of the determination § 1.1411 Procedure for hearing. Secretary of Agriculture. § 1.136 [Amended] * * * * * [FR Doc. 95–15817 Filed 6–30–95; 8:45 am] BILLING CODE 3410±01±M 5. Section 1.136 would be amended as (e) * * * follows: (2) If the petitioner in the case of a Petition for Review of a determination In paragraph (a), by adding after the of responsibly connected status within DEPARTMENT OF THE TREASURY last sentence the words ‘‘As response to the meaning of 7 U.S.C. 499a(9), having a petition for review of responsibly been duly notified, fails to appear at the Office of the Comptroller of the connected status, the Chief, PACA hearing without good cause, such Currency Branch, shall within ten days after petitioner shall be deemed to have 12 CFR Part 21 service by the Hearing Clerk of a waived his right to a hearing and to petition for review, file with the Hearing have voluntary withdrawn his petition [Docket No. 95±14] Clerk a certified copy of the agency for review. record upon which the Chief, PACA RIN 1557±AB19 Branch, made the determination that the * * * * * individual was responsibly connected to PART 47ÐRULES OF PRACTICE Minimum Security Devices and a licensee under the perishable UNDER THE PERISHABLE Procedures, Reports of Crimes and Agricultural Commodities Act, 7 U.S.C. AGRICULTURAL COMMODITIES ACT Suspected Crimes, and Bank Secrecy 499a et seq., and such agency record Act Compliance shall become part of the record in the 8. The authority citation for part 47 AGENCY: Office of the Comptroller of the review proceeding.’’ would continue to read follows: Currency, Treasury. 6. Section 1.137 would be revised to Authority: 7 U.S.C. 499o; 7 CFR ACTION: Notice of proposed rulemaking. read as follows: 2.17(a)(8)(xiii), 2.50 (a)(8)(xiii). Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Proposed Rules 34477 SUMMARY: The Office of the Comptroller (31 U.S.C. 5311 through 5330), and financial transactions. The Agencies of the Currency (OCC), as part of its transactions that the bank believes were anticipate that the new process will be Regulation Review Program, is suspicious for any other reason. operational by October 1995. proposing to revise its regulation on Fraud, abusive insider transactions, Proposal minimum security devices and check kiting schemes, money procedures for banks, reports of crimes laundering, and other crimes can pose The OCC proposes to revise 12 CFR and suspected crimes, and Bank Secrecy serious threats to a financial part 21 as part of its Regulation Review Act (BSA) compliance. This proposal institution’s continued viability and, if Program by updating and clarifying the implements a new interagency unchecked, can undermine the public current rule governing the filing of suspicious activity referral process and confidence in the nation’s financial criminal referral reports, expanding the updates and clarifies various portions of industry. The Agencies and Federal law rule to cover suspicious financial the underlying reporting regulation. The enforcement agencies need to receive transactions, implementing the new proposal also reduces substantially the timely and detailed information SAR, and eliminating current confusing burden on banks in reporting suspicious regarding suspected criminal activity to and overly burdensome reporting activities while enhancing access to determine whether investigations, requirements. This action should such information by the Federal law administrative actions, or criminal improve reporting of known or enforcement agencies, the Federal prosecutions are warranted. suspected violations and suspicious financial institutions supervisory An interagency Bank Fraud Working financial transactions relating to agencies, and Treasury. Group (BFWG), consisting of Federally insured financial institutions representatives from many Federal while providing uniform data for entry DATES: Comments must be received by agencies, including the Agencies and into the new interagency computer September 1, 1995. law enforcement agencies, was formed database. The OCC expects that each of ADDRESSES: Comments should be sent in 1984. The BFWG addresses the other Agencies will be making to: Communications Division, Office of substantive issues, promotes substantially similar changes the Comptroller of the Currency, 250 E cooperation among the Agencies and contemporaneously. Street SW, Washington, DC 20219, Federal and State law enforcement Subpart B—Suspicious Activity Reports Attention Docket No. 95–14; or FAX agencies, and improves the Federal number 202–874–5274. Comments will government’s response to white collar The principal proposed changes to the be available for public inspection and crime in financial institutions. It is OCC’s current criminal referral photocopying at the same location. under the auspices of the BFWG that the reporting rules are discussed below in FOR FURTHER INFORMATION CONTACT: revisions to this regulation and the the summary of the proposed rule’s Robert S. Pasley, Assistant Director, or reporting requirements are being made. paragraphs. Of particular note are the Neil M. Robinson, Senior Attorney, following: (1) Raising the mandatory Enforcement and Compliance Division, Suspicious Activity Report reporting thresholds for criminal (202/874–4800), or Daniel Cooke, The Agencies have been working on offenses, thereby reducing unnecessary Attorney, Legislative and Regulatory a project to improve the criminal reporting burdens; (2) filing only one Activities Division (202/874–5090). referral process, to reduce unnecessary form with a single repository, rather reporting burdens on banks, and to than submitting multiple copies with SUPPLEMENTARY INFORMATION: eliminate confusion associated with the several Federal law enforcement and the Background current duplicative reporting of Agencies, thereby further reducing The Federal financial institutions suspicious financial transactions in reporting burdens; and (3) melding the supervisory agencies (the Agencies) 1 criminal referral forms and currency criminal referral and suspicious and the Department of the Treasury 2 transaction reports (CTRs). financial transactions reporting (Treasury) are responsible for ensuring Contemporaneously, Treasury analyzed requirements of the Agencies and that financial institutions apprise the need to implement the procedures Treasury into one uniform reporting Federal law enforcement authorities of for reporting suspicious financial system, thereby eliminating duplicative any known or suspected violation of a transactions by banks following the referrals. Federal criminal statute and of any enactment of the Annuzio-Wylie Anti- The subpart heading has been suspicious financial transaction. Money Laundering Act of 1992. As a changed to conform to the name on the Suspicious financial transactions, which result of these reviews, the Agencies SAR. The current subpart is titled will be the subject of regulations and and Treasury approved the development ‘‘Reports of Crimes and Suspected other guidance to be issued by Treasury, of a new referral process that includes Crimes.’’ The proposed subpart heading, can include transactions that the bank suspicious financial transaction ‘‘Suspicious Activity Reports,’’ suspects involve funds derived from reporting. conforms to the name of the report. To implement the reporting process, illicit activities, were conducted for the Section 21.11(a) Purpose and Scope purpose of hiding or disguising funds and to reduce unnecessary burdens The proposal clarifies the scope of the from illicit activity, otherwise violated associated with these various reporting current rule. Under the proposal, the the money laundering statutes (18 requirements, the Agencies and FinCEN SAR replaces the various criminal U.S.C. 1956 and 1957), were potentially developed a new report form for referral forms that the Agencies designed to evade the reporting or reporting known or suspected Federal currently require banks to file; and a recordkeeping requirements of the BSA criminal law violations and suspicious financial transactions. The new form is bank also will file a SAR instead of a 1 The Federal financial institutions supervisory designated the Suspicious Activity CTR to report a suspicious financial 3 agencies are the OCC, the Office of Thrift Report (SAR). The SAR is a simplified transaction. Supervision, the Board of Governors of the Federal and shortened version of its Reserve System, the Federal Deposit Insurance predecessors. The new referral process 3 The BSA requires all financial institutions to Corporation, and the National Credit Union file CTRs in accordance with the Department of the Administration. and the SAR reduce the burden on Treasury’s implementing regulations (31 CFR part 2 Through its Financial Crimes Enforcement national banks for reporting known or 103). Part 103 requires a national bank to file a CTR Network (FinCEN). suspected violations and suspicious Continued 34478 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Proposed Rules Combining suspicious financial FinCEN will input the information Proposed § 21.11(c)(4) requires a transaction reporting and criminal contained on the SARs into a newly national bank to report any financial referral reporting should reduce created database that FinCEN will transaction, regardless of the dollar confusion, increase the accuracy and maintain. This process meets the amount, that: (1) the bank suspects efficiency of reporting, and reduce the regulatory requirement that a bank refer involved funds derived from illicit burden on banks in reporting known or any known or suspected criminal activity, was conducted for the purpose suspected violations, including violation to the various Federal law of hiding or disguising funds from illicit suspicious financial transactions. enforcement agencies. The database will activity, or in any way violated the Section 21.11(b) Definitions enhance Federal law enforcement and money laundering statutes (18 U.S.C. supervisory agencies’ ability to track, 1956 and 1957); (2) the bank suspects Proposed § 21.11(b) defines the investigate, and prosecute individuals was potentially designed to evade the following terms: ‘‘FinCEN,’’ suspected of violating Federal criminal reporting or recordkeeping requirements ‘‘institution-affiliated party,’’ law. of the BSA (31 U.S.C. 5311 through ‘‘instructions,’’ ‘‘known or suspected This change ensures that all SARs are 5330); or (3) the bank believes to be violation,’’ and ‘‘SAR.’’ The definitions placed in the database at FinCEN and suspicious for any reason. should make the rule easier to interpret that the information is made available Section 21.11(d) Time for Reporting and apply. on computer to the appropriate law In particular, the definition of a enforcement and supervisory agencies Proposed § 21.11(d), which replaces ‘‘known or suspected violation’’ refers as quickly as possible. This change will current § 21.11(c), sets forth the time to any matter for which a national bank reduce the filing burdens of national requirements a bank must meet when has a basis to believe that a violation of banks. filing a SAR. The proposal does not any Federal criminal statute has The proposal removes § 21.11(b)(1), substantively change the current occurred, has been attempted, is which now requires national banks to requirements. occurring, or may occur, coupled with Under current § 21.11(e), ‘‘Manner of a basis to believe that a national bank report any mysterious disappearance or Reporting,’’ a bank may file the was an actual or potential victim of the unexplained shortage of bank funds, criminal violation, involved in, or used because it would be redundant in light appropriate criminal referral form in to facilitate the criminal violation. The of proposed § 21.11(c)(3). In instances several ways, including submitting a definition supplants current § 21.11(i), where criminal activity is suspected in photocopy or facsimile of the which explains the term ‘‘suspected.’’ connection with any disappearance or appropriate form. Under the proposal, a shortage of bank funds, § 21.11(c)(3) bank may file a SAR by photocopy and Section 21.11(c) Reports Required requires a national bank to file a SAR. also by magnetic means, such as by a Proposed § 21.11(c), which replaces The proposal modifies current computer disk. However, FinCEN will current § 21.11(b), clarifies and expands § 21.11(b)(2), which requires reporting not be able to receive SARs by facsimile the provision that requires a bank to file of known or suspected criminal activity machine. In the future, the OCC a completed SAR. This provision raises involving bank insiders. The proposal anticipates that a bank will be able to the dollar thresholds that trigger a filing replaces current § 21.11(b)(2) with file a SAR electronically. requirement. It also modifies the scope 21.11(c)(1) and describes suspects who The Agencies, working with FinCEN, of events that a national bank must are bank personnel more precisely. are developing computer software to report by using the new term ‘‘known, Specifically, the proposal replaces assist banks in preparing and filing or suspected violation,’’ which is ‘‘responsible bank personnel’’ with SARs. The software will allow a bank to defined at § 21.11(b)(4), and by ‘‘directors, officers, employees, agents, complete a SAR, to save the SAR on its requiring that a national bank file a SAR or other institution-affiliated parties.’’ computers, and to print a hard copy of to report a suspicious financial The proposal, however, does not change the SAR for its own records. The transaction. the requirement that a bank file a SAR, computer software will also enable a Under the current rule, the OCC regardless of the dollar amount bank to file a SAR using various forms requires a bank to file a criminal referral involved, whenever it has a substantial of magnetic media, such as computer form with many different Federal basis for believing that a bank insider disk or magnetic tape. The OCC will agencies. The proposal, which replaces has violated a Federal criminal statute. make the software available to all all other requirements for filing criminal The proposal modifies current national banks. A bank, of course, may referrals and suspicious financial § 21.11(b)(3), which requires reporting complete and file a SAR using a printed transactions, requires a bank to file only of known or suspected criminal activity form, without using this software, if it a single SAR at one location, rather than when a bank has a substantial basis for so desires. the multiple copies of the criminal identifying a non-insider suspect where Because the permitted methods of referral form that must now be filed bank funds or other assets involve or filing the SAR may change, the OCC has with various Federal agencies. aggregate $1,000 or more. Proposed removed current § 21.11(e). The Under proposed § 21.11(c), a national § 21.11(c)(2), which replaces current permissible methods of filing the SAR bank effectively files a SAR with all § 21.11(b)(3), raises the reporting will be stated in the instructions to the appropriate Federal law enforcement threshold to $5,000. SAR. agencies by sending a single copy of the The proposal also modifies current Section 21.11(e) Reports to State and SAR to FinCEN, whose address will be § 21.11(b)(4), which requires banks to Local Authorities printed on the SAR. report any known or suspected criminal violation involving $5,000 or more Proposed § 21.11(e), which replaces whenever a currency transaction exceeds $10,000. If a currency transaction exceeds $10,000 and is where the bank has no substantial basis current § 21.11(d), modifies the scope of suspicious, the bank, under these new for identifying a suspect. Specifically, this provision slightly. Proposed requirements, will file both a CTR (reporting the proposed § 21.11(c)(3), which replaces § 21.11(e) encourages national banks to currency transaction) and a SAR (reporting the current § 21.11(b)(4), raises the dollar file SARs with State and local law suspicious criminal aspect of the transaction). If a currency transaction equals or is below $10,000 but reporting threshold from $5,000 to enforcement agencies where is suspicious, the bank will only file a SAR. $25,000. appropriate. Proposed § 21.11(e) Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Proposed Rules 34479 removes the unnecessary reference to the current rule places on boards of actions available to the Agencies. The Federal law. directors to review criminal referrals. proposal clarifies that the OCC treats a Under the current rule, each national national bank’s failure to comply with Section 21.11(f) Retention of Records bank must have procedures that ensure reporting requirements like any other Proposed § 21.11(f) requires a bank to that the bank’s board of directors is violation of law or regulation, which retain a copy of the SAR and the notified of each criminal referral before may result in supervisory actions, original of any related documentation the next board meeting. including enforcement actions. The relating to a SAR for a period of ten The proposal does not require a bank current rule, at § 21.11(h) (Penalties), years. The current rule is silent on this to have specific procedures for notifying appears to set a standard for penalties issue. However, the current criminal its board of directors of a SAR. In (willful failure to file or careless referral forms require a bank to submit addition, the proposal permits the disregard in filing reports), that is copies of all related documentation management of the bank to notify either inconsistent with the applicable when it files a criminal referral. the board of directors or a committee of statutory standard for violation of an The new SAR reduces this burden by directors or executive officers agency regulation. This proposed eliminating altogether the requirement designated by the board to receive change conforms the OCC’s rules with to submit underlying documentation in notice of the filing of a SAR. the rules of the Board of Governors of connection with a criminal referral. The OCC intends that each national the Federal Reserve System and the Instead, the proposal requires that the bank maintain appropriate mechanisms Federal Deposit Insurance Corporation. documentation be identified and treated to ensure that its board of directors can as filed with the SAR and that the bank be informed promptly of SARs when Section 21.11(j) Obtaining the SAR maintain the documentation, along with appropriate. However, the OCC Proposed § 21.11(j) states that SARs a copy of the SAR, for ten years from the recognizes that board review of all SAR may be obtained from the appropriate submission date. This time frame filings is impracticable in some cases. OCC District Office at the address listed corresponds with the statutes of Therefore, under the proposal, the OCC in 12 CFR part 4. The current rule does limitations for most Federal criminal gives each bank discretion to establish not contain a comparable instruction. statutes involving financial institutions. reporting systems appropriate for the Section 21.11(k) Confidentiality of This approach ensures that Federal particular institution. SARs law enforcement agencies and the The proposal also ensures, however, Agencies, upon request, have access to that if the bank elects to provide notice The proposal preserves the any documentation necessary to to a committee rather than the entire confidential nature of criminal referral prosecute a violation or pursue an board, the bank may not give notice of reports by stating that a SAR and the administrative action by requiring banks a SAR filing to any director or officer information contained in a SAR are to preserve underlying documentation who is a suspect in the known or confidential. suspected violation. The proposal also for ten years. Comments requires management to notify the entire Section 21.11(g) Exemptions board of directors, except the suspect, The OCC invites public comment on Proposed § 21.11(g), which replaces when an executive officer or director is all aspects of this proposal. current § 21.11(f), does not substantively a suspect. DERIVATION TABLE FOR 12 CFR revise this provision. Section 21.11(i) Compliance PART 21 Section 21.11(h) Notification of the The proposal changes the heading of This table directs readers to the Board of Directors the paragraph from ‘‘Penalties’’ to provisions of the current 12 CFR part Proposed § 21.11(h), which replaces ‘‘Compliance’’ to reflect better the range 21.11 on which the revised 12 CFR part current § 21.11(g), reduces the burden of informal and formal supervisory 21.11 is based. Revised provision Current provision Comments § 21.11(a) ...... § 21.11(a) ...... Modified. § 21.11(b)(1) ...... - - - ...... Added. § 21.11(b)(2) ...... - - - ...... Added. § 21.11(b)(3) ...... - - - ...... Added. § 21.11(b)(4) ...... Derived in part from § 21.11(i) ...... Added. § 21.11(b)(5) ...... - - - ...... Added. § 21.11(c)(1) ...... § 21.11(b)(2) ...... Modified. § 21.11(c)(2) ...... § 21.11(b)(3) ...... Modified. § 21.11(c)(3) ...... § 21.11(b)(1) & (4) ...... Modified. § 21.11(c)(4) ...... Derived in part from the OCC's current criminal referral forms .. Added. § 21.11(d)(1) ...... § 21.11(c)(1) & (3) ...... Modified. § 21.11(d)(2) ...... § 21.11(c)(2) ...... Modified. § 21.11(e) ...... § 21.11(d) ...... Modified. § 21.11(f) ...... - - - ...... Added. § 21.11(g)(1) ...... § 21.11(f)(1) ...... Modified. § 21.11(g)(2) ...... § 21.11(f)(2) ...... Modified. § 21.11(h)(1) ...... § 21.11(g) ...... Modified. § 21.11(h)(2) ...... - - - ...... Added. § 21.11(i) ...... § 21.11(h) ...... Modified. § 21.11(j) ...... - - - ...... Added. § 21.11(k) ...... - - - ...... Added. 34480 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Proposed Rules Regulatory Flexibility Act Federal mandate that may result in term is defined in sections 3(u) and Pursuant to section 605(b) of the expenditure by State, local, and tribal 8(b)(5) of the Federal Deposit Insurance Regulatory Flexibility Act, the OCC governments, in the aggregate, or by the Act (12 U.S.C. 1813(u) and 1818(b)(5)). hereby certifies that this proposed rule private sector, of $100 million or more (3) Instructions means the will not have a significant economic in any one year. If a budgetary impact instructions on the SAR. impact on a substantial number of small statement is required, section 202 of the (4) Known or suspected violation entities. This proposal primarily Unfunded Mandates Act also requires means any matter for which there is a reorganizes the process for making an agency to identify and consider a basis to believe that a violation of a criminal referrals and has no material reasonable number of regulatory Federal criminal statute (including a impact on national banks, regardless of alternatives before promulgating a rule. pattern of criminal violations) has size. Accordingly, a regulatory The OCC has determined that it is not occurred or has been attempted, is flexibility analysis is not required. required to prepare a written statement occurring, or may occur, and there is a under section 202 and has concluded basis to believe that a national bank was Paperwork Reduction Act that, on balance, this proposal provides an actual or potential victim of the The collection of information the most cost-effective and least criminal violation, involved in, or used contained in this notice of proposed burdensome alternative to achieve the to facilitate the criminal violation. rulemaking have been submitted to the objectives of the rule. (5) SAR means a Suspicious Activity Office of Management and Budget for Report. List of Subjects in 12 CFR Part 21 review in accordance with the (c) SARs required. A national bank Paperwork Reduction Act of 1980 (PRA) Bank Secrecy Act, Check kiting, shall file a SAR with the appropriate (44 U.S.C. 3504(h)). Comments on the Criminal referrals, Criminal Federal law enforcement agencies and collection of information should be sent transactions, Currency, Defalcations, Treasury and in accordance with the to the Office of Management and Budget Embezzlement, Insider abuse, Money Instructions, by sending a completed (OMB), Paperwork Reduction Project laundering, National banks, Reporting SAR to FinCEN in the following (1557–0180), Washington, DC 20503, and recordkeeping requirements, circumstances: with copies to the Legislative and Security measures, Theft. (1) Whenever the national bank detects a known or suspected violation Regulatory Activities Division (1557– Authority and Issuance 0180), Office of the Comptroller of the of Federal criminal law and has a Currency, 250 E Street, SW, For the reasons set out in the substantial basis to believe that one of Washington, DC 20219. preamble, part 21 of chapter I of title 12 its directors, officers, employees, agents, The collection of information in this of the Code of Federal Regulations is or other institution-affiliated parties proposed rule is limited to the retention proposed to be amended to read as committed or aided in the commission of records and is found in 12 CFR follows: of the violation; 21.11(f), which requires national banks (2) Whenever the national bank to retain copies of all documentation PART 21ÐMINIMUM SECURITY detects a known or suspected violation supporting a SAR for ten years. The DEVICES AND PROCEDURES, of Federal criminal law, there is an SAR will be submitted to OMB REPORTS OF SUSPICIOUS actual or potential loss to the national separately for PRA review. The OCC ACTIVITIES, AND BANK SECRECY bank (before reimbursement or recovery) requires banks to retain this information ACT COMPLIANCE PROGRAM aggregating $5,000 or more, and the to ensure that law enforcement and bank has a substantial basis for 1. The heading for part 21 is revised identifying a possible suspect or group supervisory agencies have access to the as set forth above. documentation necessary to prosecute a of suspects, where none of the suspects 2. The authority citation for part 21 are included in paragraph (c)(1) of this violation or pursue an administrative continues to read as follows: action. The likely respondents are section; banks. Authority: 12 U.S.C. 93a, 1818, 1881–1884, (3) Whenever the national bank Estimated total annual recordkeeping and 3401–3422. detects a known or suspected violation burden: 5,400 hours. 3. Subpart B of part 21 is revised to of Federal criminal law, there is an The estimated annual burden per read as follows: actual or potential loss to the national recordkeeper varies from less than one bank (before reimbursement or recovery) hour to 1,300 burden hours, depending Subpart BÐReports of Suspicious aggregating $25,000 or more, and the on individual circumstances, with an Activities bank has no substantial basis for identifying a possible suspect or group average of 1.8 hours. § 21.11 Suspicious Activity Report. Estimated number of recordkeepers: of suspects; or 3,000. (a) Purpose and scope. This section (4) Whenever a financial transaction ensures that national banks file a is conducted, or attempted, at the Executive Order 12866 Suspicious Activity Report when they national bank and: The OCC has determined that this detect a known or suspected violation of (i) The bank suspects that the document is not a significant regulatory Federal law or a suspicious financial transaction involved funds derived from action under Executive Order 12866. transaction. This section applies to all illicit activity, was conducted for the national banks as well as any Federal purpose of hiding or disguising funds Unfunded Mandates Act of 1995 branches and agencies of foreign banks from illicit activity, or in any way Statement licensed or chartered by the OCC. violated the money laundering statutes Section 202 of the Unfunded (b) Definitions. For the purposes of (18 U.S.C. 1956 and 1957); Mandates Reform Act of 1995, Public this section: (ii) The bank suspects that the Law 104–4 (Unfunded Mandates Act) (1) FinCEN means the Financial transaction was potentially designed to (signed into law on March 22, 1995) Crimes Enforcement Network of the evade the reporting or recordkeeping requires that an agency prepare a Department of the Treasury. requirements of the Bank Secrecy Act budgetary impact statement before (2) Institution-affiliated party means (31 U.S.C. 5311 through 5330) or promulgating a rule that includes a any institution-affiliated party as that regulations issued thereunder; or Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Proposed Rules 34481 (iii) The bank believes that the 5318(g)(2), but shall notify all directors Governors of the Federal Reserve transaction was suspicious for any who are not suspects. System, 20th and Constitution Avenue, reason. (i) Compliance. Failure to file a SAR NW., Washington, DC 20551. Comments (d) Time for reporting.—(1) Generally. in accordance with this section and the also may be delivered to Room B–2222 A national bank shall file the SAR Instructions may subject the national of the Eccles Building between 8:45 a.m. required by paragraph (c) of this section bank, its directors, officers, employees, and 5:15 p.m. weekdays, or to the guard within 30 calendar days after the date of agents, or other institution-affiliated station in the Eccles Building courtyard initial detection of an act described in parties to supervisory actions including on 20th Street, NW (between paragraph (c) of this section, and, in enforcement actions. Constitution Avenue and C Street) at situations involving violations requiring (j) Obtaining SARs. A national bank any time. Comments received will be immediate attention, such as when a may obtain SARs and the Instructions available for inspection in Room MP– reportable violation is on-going, the from the appropriate OCC District Office 500 of the Martin Building between 9 financial institution shall immediately listed in 12 CFR part 4. a.m. and 5 p.m. weekdays, except as notify, by telephone, the appropriate (k) Confidentiality of SARs. SARs are provided in 12 CFR 261.8 of the Board’s law enforcement authority in addition confidential. Any person subpoenaed or rules regarding availability of to filing a timely SAR. otherwise requested to disclose a SAR information. (2) No suspect identified. If no suspect or the information contained in a SAR FOR FURTHER INFORMATION CONTACT: was identified on the date of detection shall decline to produce the information Herbert A. Biern, Deputy Associate of an act described in paragraph (c) of citing this section, applicable law (e.g., Director, Division of Banking this section, the national bank may 31 U.S.C. 5318(g)), or both. Supervision and Regulation, (202) 452– delay filing a SAR for an additional 30 Dated: June 27, 1995. 2620, or Richard A. Small, Special calendar days after identification of a Counsel, Division of Banking suspect, but in no case may a national Eugene A. Ludwig, Comptroller of the Currency . Supervision and Regulation, (202) 452– bank delay filing a SAR more than 60 5235; for the hearing impaired only calendar days after the date of detecting [FR Doc. 95–16240 Filed 6–30–95; 8:45 am] contact Dorothea Thompson, an act described in paragraph (c) of this BILLING CODE 4810±33±P Telecommunication Device for the Deaf, section. (202) 452–3544, Board of Governors of (e) Reports to State and local the Federal Reserve System, 20th Street authorities. A national bank is FEDERAL RESERVE SYSTEM and Constitution Avenue, NW., encouraged to file a copy of the SAR Washington, DC 20551. with State and local law enforcement 12 CFR Parts 208, 211, and 225 SUPPLEMENTARY INFORMATION: agencies where appropriate. [Regulations H, K, and Y; Docket No. R± (f) Retention of records. A national 0885] Background bank shall maintain a copy of any SAR The Federal financial institutions filed and the original of any related Membership of State Banking supervisory agencies (the Agencies) 1 documentation for a period of ten years Institutions in the Federal Reserve and the Department of the Treasury (the from the date of filing the SAR, unless System; International Banking Treasury) 2 are responsible for ensuring the OCC informs the bank in writing Operations; Bank Holding Companies that financial institutions apprise that the bank may discard the materials and Change in Bank Control Federal law enforcement authorities of sooner. A national bank shall make all AGENCY: Board of Governors of the any known or suspected violation of a supporting documentation available to Federal criminal statute and of any appropriate law enforcement agencies Federal Reserve System. ACTION: Notice of proposed rulemaking. suspicious financial transaction. upon request. Supporting Suspicious financial transactions, which documentation shall be identified and SUMMARY: The Board of Governors of the will be the subject of regulations and treated as filed with the SAR. Federal Reserve System (the Board) is other guidance to be issued by the (g) Exemptions. (1) A bank need not proposing to revise its regulations on Treasury, can include transactions that file a SAR for a robbery or burglary reporting of suspicious activities by the the banking organization suspects committed or attempted that is reported domestic and foreign banking involved funds derived from illicit to appropriate law enforcement organizations supervised by the Federal activities, were conducted for the authorities. Reserve, including the reporting of purpose of hiding or disguising funds (2) A bank need not file a SAR for suspicious financial transactions such from illicit activity, in any way violated lost, missing, counterfeit, or stolen as suspected violations of the Bank the Federal money laundering statutes securities if it files a report pursuant to Secrecy Act (BSA). As proposed, these (18 U.S.C. 1956 and 1957), were the reporting requirements of 17 CFR rules implement a new interagency potentially designed to evade the 240.17f-1. reporting or recordkeeping requirements (h) Notification to board of directors— suspicious activity referral process. The of the BSA (31 U.S.C. 5311 through (1) Generally. Whenever a national bank rules also reduce substantially the 5330), and transactions that the bank files a SAR pursuant to this section, the burden on banking organizations in believes were suspicious for any other management of the bank shall promptly reporting suspicious activities while reason. notify its board of directors, or a enhancing access to such information by the Federal law enforcement agencies, Fraud, abusive insider transactions, committee of directors or executive check kiting schemes, money officers designated by the board of the Federal financial institutions directors to receive notice. supervisory agencies and the Department of the Treasury. 1 The Federal financial institutions supervisory (2) Suspect is a director or executive agencies are the Board, the Office of the officer. If the bank files the SAR DATES: Comments must be received on Comptroller of the Currency, the Office of Thrift pursuant to paragraph (c) of this section or before September 1, 1995. Supervision, the Federal Deposit Insurance Corporation, and the National Credit Union and the suspect is a director or ADDRESSES: Comments should refer to Administration. executive officer, the bank may not Docket No, R–0885, and may be mailed 2 Through Treasury’s Financial Crimes notify the suspect, pursuant to 31 U.S.C. to William W. Wiles, Secretary, Board of Enforcement Network (FinCEN). 34482 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Proposed Rules laundering, and other crimes can pose Proposal its own records. The computer software serious threats to a financial The Board proposes to revise 12 CFR will also enable a financial institution to institution’s continued viability and, if Parts 208, 211, and 225 by updating the file a SAR using various forms of unchecked, can undermine the public current rules governing the filing of magnetic media, such as computer disk confidence in the nation’s financial criminal referral reports; expanding the or magnetic tape. The Board will make industry. The Agencies and Federal law rules pertinent to the activities of state the software available to all domestic enforcement agencies need to receive member banks, bank holding companies and foreign banking organizations it timely and detailed information and their nonbank subsidiaries, Edge supervises. regarding suspected criminal activity to and Agreement corporations, and the The changes are being made to determine whether investigations, U.S. branches and agencies of foreign § 208.20 of Regulation H of the Board administrative actions, or criminal banks to cover suspicious financial (12 CFR 208.20) relating to the criminal prosecutions are warranted. transactions; implementing the new referral reporting responsibilities of An interagency Bank Fraud Working SAR; and eliminating overly state member banks. Sections 211.8 and Group (BFWG), consisting of burdensome reporting requirements. 211.24(f) of Regulation K of the Board representatives from many Federal and § 225.4(f) of Regulation Y of the agencies, including the Agencies and This action should improve reporting of known or suspected violations and Board make § 208.20 of Regulation H of law enforcement agencies such as the the Board applicable to Edge and U.S. Department of Justice and the suspicious financial transactions relating to financial institutions while Agreement corporations, the U.S. Federal Bureau of Investigation, was branches and agencies of foreign banks formed in 1984. The BFWG addresses providing uniform data for entry into a (except a Federal branch or Federal substantive issues, promotes new interagency computer database. agency or a state branch that is insured cooperation among the Agencies and The Board expects that each of the other by the Federal Deposit Insurance Federal and state law enforcement Agencies will be making substantially Corporation), a representative office of a agencies, and improves the Federal similar changes to their criminal referral foreign bank, and bank holding government’s response to white collar rules contemporaneously. companies and their nonbank crime in financial institutions. It is The principal proposed changes to the subsidiaries, respectively. This means under the auspices of the BFWG that the Board’s current criminal referral that the changes applicable to state revisions to these regulations and the reporting rules are discussed below. member banks discussed below will reporting requirements are being made. They include the following notable changes: (i) simplifying and shortening also be applicable to the suspicious Suspicious Activity Report the referral form; (ii) raising the activity reporting responsibilities of all The Agencies have been working on mandatory reporting thresholds for of the other domestic and foreign a project to improve the criminal criminal offenses, thereby reducing banking organizations supervised by the referral process, to reduce the reporting banking organizations’ reporting Federal Reserve, including bank holding burden on banking organizations, and to burdens; (iii) filing only one form with companies, Edge corporations, and the eliminate confusion associated with the a single repository, rather than U.S. branches and agencies of foreign current duplicative reporting of submitting multiple copies to several banks. The only modifications being suspicious financial transactions in Federal law enforcement and banking made to the current provisions of criminal referral forms and currency agencies, thereby further reducing §§ 211.8 and 211.24(f) of Regulation K, transactions reports (CTRs). reporting burdens; and (iv) clarifying and § 225.4(f) of Regulation Y are Contemporaneously, the Treasury the criminal referral and suspicious changes to the name of form—from analyzed the need to implement the financial transaction reporting ‘‘criminal referral form’’ to a SAR—and procedures for reporting suspicious requirements of the Agencies and a change in the heading of § 225.4(f) of financial transactions by banks Treasury associated with suspicious Regulation Y to ‘‘Suspicious Activity following the enactment of the financial transactions, thereby Report’’ from ‘‘Criminal referral report.’’ Annunzio-Wylie Anti-Money eliminating confusion concerning the Section 208.20(a) Purpose Laundering Act of 1992. As a result of filing of referrals related to suspicious these reviews, the Agencies and financial transactions of less than The proposal clarifies the scope of the Treasury approved the development of $10,000 and eliminating duplicative current rule. Under the proposal, the a new referral process that includes referrals. SAR replaces the various criminal suspicious financial transaction The proposal also involves the referral forms that the Agencies reporting. manner in which financial institutions currently require banking organizations To implement the reporting process file a SAR. In following the instructions to file. Also a state member bank or and to reduce unnecessary burdens on a SAR, banking organizations may other type of financial institution files a associated with these various reporting file the referral form in several ways, SAR instead of a currency transaction requirements, the Agencies and FinCEN including submitting an original form or report (CTR) to report a suspicious developed a new form for reporting a photocopy, and they may file a SAR financial transaction involving less than known or suspected Federal criminal by magnetic means, such as by a $10,000 in currency.3 law violations and suspicious financial computer disk. In the future, the Board transactions. The new form is and the other Agencies anticipate that a 3 The BSA requires all financial institutions to file designated the Suspicious Activity banking organization will be able to file CTRs in accordance with the Treasury’s Report (SAR). The new referral process a SAR electronically. implementing regulations (31 CFR Part 103). Part 103 requires a bank to file a CTR whenever a and the SAR reduce the burden on The Agencies, working with FinCEN, currency transaction exceeds $10,000. If a currency financial institutions for reporting are developing computer software to transaction exceeds $10,000 and is suspicious, the known or suspected violations and assist financial institutions in preparing state member bank, under these new requirements, suspicious financial transactions. The and filing SARs. The software will allow will file both a CTR (reporting the currency transaction) and a SAR (reporting the suspicious Agencies anticipate that the new a banking organization to complete a criminal aspect of the transaction). If a currency process will be instituted by October, SAR, to save the SAR on its computers, transaction equals or is below $10,000 but is 1995. and to print a hard copy of the SAR for suspicious, the bank will only file a SAR. Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Proposed Rules 34483 Combining suspicious financial as quickly as possible. This change will clarifies the requirement that banking transaction reporting and criminal reduce the filing burdens of banking organizations make all supporting referral reporting should reduce organizations. documentation available to appropriate confusion, increase the accuracy and The proposal modifies current law enforcement agencies upon request. efficiency of reporting, and reduce the § 208.20(c)(2), which requires reporting This approach ensures that Federal law burden on financial institutions in of known or suspected criminal activity enforcement agencies and the Agencies, reporting known or suspected when a state member bank has a upon request, have access to any violations, including suspicious substantial basis for identifying a non- documentation necessary to prosecute a financial transactions. insider suspect where bank funds or violation or pursue an administrative other assets involve or aggregate $1,000 Section 208.20(b) Definitions action by requiring financial institutions or more. Proposed § 208.20(c)(2) raises to identify and preserve underlying In addition to the current definition of the reporting threshold to $5,000, documentation for 10 years and treat ‘‘institution-affiliated party’’ set forth at thereby reducing the reporting burden such underlying documentation as 12 CFR 208.20(b), the proposed on banking organizations. having been filed with the SAR. § 208.20(b) defines the following terms: The proposal also modifies current ‘‘FinCEN’’ and ‘‘SAR.’’ The definitions § 208.20(c)(3), which requires a state Section 208.20(h) Notification of the should make the rule easier to interpret member bank to report any known or Board of Directors and apply. suspected criminal violation involving Current § 208.20(h) requires Section § 208.20(c) Reports Required $5,000 or more where the bank has no notification regarding the filing of a SAR substantial basis for identifying a to a state member bank’s board of Proposed § 208.20(c), which replaces suspect. Specifically, proposed directors by the bank’s management. To the current subsection, clarifies and § 208.20(c)(3) raises the dollar reporting reduce burdens on the boards of expands the provision that requires a threshold from $5,000 to $25,000, directors of state member banks, state member bank to file a SAR. This thereby reducing further the reporting especially those large banks that file provision raises the dollar thresholds burden on banking organizations. many SARs, the proposal recognizes that trigger a filing requirement. It also Proposed § 208.20(c)(4) requires a that the required notification may be modifies the scope of events that a state state member bank to report any made to a committee of the board. member bank must report by requiring financial transaction, regardless of the Section 208.20(i) Compliance that a bank file a SAR to report a dollar amount, that: (i) the bank suspicious financial transaction. suspects involved funds derived from Current § 208.20(i) is headed Under the current rule, the Board illicit activity, was conducted for the ‘‘Penalty’’. The heading of the requires a state member bank to file a purpose of hiding or disguising funds subsection is changed to reflect better criminal referral form with many from illicit activity, or in any way the range of informal and formal different Federal agencies. The violated Federal money laundering supervisory actions that the Board can proposal, which replaces all other statutes (18 U.S.C. 1956 and 1957); (ii) take to address suspicious activity requirements for filing criminal and the bank suspects was potentially reporting deficiencies. suspicious financial transaction designed to evade the reporting or referrals, requires a bank to file only a Section 208.20(j) Confidentiality of recordkeeping requirements of the BSA SARs single SAR at one location, rather than (31 U.S.C. 5311 through 5330); or (iii) the multiple copies of the criminal the bank believes to be suspicious for The Board proposes to add a new referral form that must now be filed any reason. subsection relating to the confidentiality with various Federal agencies. of a SAR. Proposed § 208.20(j) states Under proposed § 208.20(c), a state Section 208.20(d) Time for Reporting that a SAR and the information member bank effectively files a SAR Proposed § 208.20(d) sets forth the contained in a SAR are confidential, and with all appropriate Federal law time requirements a state member bank that a state member bank should decline enforcement agencies by sending a must meet when filing a SAR. The to produce a SAR citing applicable law single copy of the SAR to FinCEN, proposal clarifies the reporting (e.g., 31 U.S.C. 5318(g)) and the whose address will be printed on the requirement in the event a suspect or provisions of § 208.20 of Regulation H of SAR. group of suspects is not immediately the Board. FinCEN will input the information identified. It does not substantively Comments contained on the SARs into a newly change the current requirements. created database that FinCEN will The Board invites public comment on maintain. This process meets the Section 208.20(e) Reporting to State all aspects of this proposal. regulatory requirement that a banking and Local Authorities Regulatory Flexibility Act organization refer any known or No changes are being proposed to the suspected criminal violation to the current § 208.20(e). Because this proposal is designed to various Federal law enforcement reduce the burden on financial agencies. The database will enhance Section 208.20(f) Exceptions institutions for reporting suspicious Federal law enforcement and bank No changes are being made to the financial transactions, the Board supervisory agencies’ ability to track, current § 208.20(f). certifies that this proposed regulation investigate, and prosecute, criminally, will not have a significant financial Section 208.20(g) Retention of Records civilly, and administratively, impact on a substantial number of small individuals and entities suspected of Current § 208.20(g) requires a state banks or other small entities. violating Federal criminal law. member bank to retain a copy of the This change ensures that all SARs are criminal referral form and the original of Paperwork Reduction Act placed in the database at FinCEN and any related documentation relating to a In accordance with Section 3507 of that the information is made available referral for a period of 10 years from the the Paperwork Reduction Act of 1980, on computer to the appropriate law date of the report. No changes are being the suspicious activity report regulation enforcement and supervisory agencies made to this requirement. The proposal was approved under authority delegated 34484 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Proposed Rules to the Board by the Office of 1814, 1823(j), 1828(o), 1831o, 1831p-1, 3105, transactions conducted through the Management and Budget. The Board has 3310, 3331–3351, and 3906–3909; 15 U.S.C. bank and involving or aggregating determined that the proposed 78b, 781(b), 781(g), 781(i), 78o–4(c)(5), 78q, $25,000 or more in funds or other assets, regulations may reduce the burden on 78q–1 and 78w; 31 U.S.C. 5318. where the bank believes that it was reporting institutions through the use of 2. Section 208.20 is revised to read as either an actual or potential victim of a a simplified, shorter form, the filing of follows: criminal violation, or series of criminal one form only, the raising of reporting violations, or that the bank was used to thresholds, and the elimination of the § 208.20 Suspicious Activity Reports. facilitate a criminal transaction, even submission of supporting (a) Purpose. This section ensures that though there is no basis for identifying documentation with a referral, as well a state member bank files a Suspicious a possible suspect or group of suspects. as by the Board’s provision to banking Activity Report when it detects a known (4) Whenever the state member bank organizations of computer software to or suspected violation of Federal law or detects any financial transaction prepare the form. The estimated average suspicious financial transaction. This conducted, or attempted, at the bank burden associated with the collection of section applies to all state member involving funds derived from illicit information contained in a SAR is banks. activity or for the purpose of hiding or approximately .6 hours per respondent. (b) Definitions. For the purposes of disguising funds from illicit activities, The burden per respondent will vary this section: or for the possible violation or evasion depending on the nature of the (1) FinCEN means the Financial of the Bank Secrecy Act reporting and/ suspicious activity being reported. Crimes Enforcement Network of the or recordkeeping requirements, even if Comments concerning the accuracy of Department of the Treasury. there is no substantial basis for this burden estimate should be directed (2) Institution-affiliated party means identifying a possible suspect or group to Mary M. McLaughlin, Division of any institution-affiliated party as that of suspects. A suspicious activity report Research and Statistics, Mail Stop 97, term is defined in Sections 3(u) and must be filed for all instances where Federal Reserve Board, 20th Street and 8(b)(3) and (4) of the Federal Deposit money laundering is suspected or where Constitution Avenue, N.W., Insurance Act (12 U.S.C. 1813(u) and the bank believes that the transaction Washington, D.C. 20551. 1818(b)(3) and (4)). was suspicious for any reason, (3) SAR means a Suspicious Activity regardless of the identification of a Executive Order 12291 Report form proscribed by the Board. potential suspect or group of suspects or The Board has determined that this (c) SARs required. A state member the amount involved in the violation. proposed regulation is not a ‘‘major bank shall file a SAR with the (d) Time for reporting. A state member rule’’ and therefore does not require a appropriate Federal law enforcement bank is required to file a SAR no later regulatory impact analysis. agencies and the Department of the than 30 calendar days after the date of Treasury and in accordance with the initial detection of the possible, known List of Subjects form’s instructions, by sending a or suspected criminal violation or series 12 CFR Part 208 completed SAR to FinCEN in the of criminal violations. If no suspect was Accounting, Agriculture, Banks, following circumstances: identified on the date of detection of the (1) Whenever the state member bank banking, Confidential business incident triggering the filing, a state detects any known or suspected Federal information, Crime, Currency, Federal member bank may delay filing a SAR for criminal violation, or pattern of criminal Reserve System, Mortgages, Reporting an additional 30 calendar days after the violations, committed against the bank and recordkeeping requirements, identification of the suspect. In no case or involving a transaction conducted Securities. shall reporting be delayed more than 60 through the bank, where the bank has a calendar days after the date of the loss 12 CFR Part 211 substantial basis for identifying one of or the possible known or suspected Exports, Federal Reserve System, its directors, officers, employees, agents, criminal violation or series of criminal Foreign banking, Holding companies, or other institution-affiliated parties as violations. In situations involving Investments, Reporting and having committed or aided in the violations requiring immediate recordkeeping requirements. commission of a criminal act regardless attention, such as when a reportable of the amount involved in the violation. violation is on-going, the financial 12 CFR Part 225 (2) Whenever the state member bank institution shall immediately notify, by Administrative practice and detects any known or suspected Federal telephone, the appropriate law procedures, Banks, banking, Federal criminal violation, or pattern of criminal enforcement authority in addition to Reserve System, Holding companies, violations, committed against the bank filing a timely SAR. Reporting and recordkeeping or involving a transaction or (e) Reports to state and local requirements, Securities. transactions conducted through the authorities. State member banks are For the reasons set out in the bank and involving or aggregating encouraged to file a copy of the SAR preamble, Parts 208, 211, and 225 of $5,000 or more in funds or other assets, with state and local law enforcement chapter II of title 12 of the Code of where the bank believes that it was agencies where appropriate. Federal Regulations is proposed to be either an actual or potential victim of a (f) Exceptions. (1) A state member amended to read as follows: criminal violation, or series of criminal bank need not file a SAR for a robbery violations, or that the bank was used to or burglary committed or attempted that PART 208ÐMEMBERSHIP OF STATE facilitate a criminal transaction, and that is reported to appropriate law BANKING INSTITUTIONS IN THE the bank has a substantial basis for enforcement authorities. FEDERAL RESERVE SYSTEM identifying a possible suspect or group (2) A state member bank need not file (REGULATION H) of suspects. a SAR for lost, missing, counterfeit, or (3) Whenever the state member bank stolen securities if it files a report 1. The authority citation for 12 CFR detects any known or suspected Federal pursuant to the reporting requirements part 208 continues to read as follows: criminal violation, or pattern of criminal of 17 CFR 240.17f-1. Authority: 12 U.S.C. 36, 248(a), 248(c), violations, committed against the bank (g) Retention of records. A state 321–338a, 371d, 461, 481–486, 601, 611, or involving a transaction or member bank shall maintain a copy of Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Proposed Rules 34485 any SAR filed and the original of any FEDERAL TRADE COMMISSION The Public Workshop Conference will related documentation for a period of 10 afford Commission staff and interested years from the date of filing the SAR. A 16 CFR Part 436 parties an opportunity to discuss openly state member bank must make all issues raised during the rule review, supporting documentation available to Franchise Rule Review Public and, in particular, to examine publicly appropriate law enforcement agencies Workshop Conference any areas of significant controversy or upon request. Supporting AGENCY: Federal Trade Commission. divergent opinions that are raised in the documentation shall be identified and ACTION: Public workshop conference written comments. Commission staff treated as filed with the SAR. will consider the views and suggestions (h) Notification to board of directors. SUMMARY: The Federal Trade made during the conference, in The management of a state member Commission (‘‘FTC’’ or ‘‘Commission’’) conjunction with the written comments, bank shall promptly notify its board of will hold a public workshop conference in formulating its final recommendation directors, or a committee thereof, of any in connection with the regulatory to the Commission concerning the report filed pursuant to this section. review of the Commission’s Trade Franchise Rule. (i) Compliance. Failure to file a SAR Regulation Rule on Disclosure The Commission staff will select a in accordance with this section and the Requirements and Prohibitions limited number of parties to represent form’s instructions may subject the state Concerning Franchising and Business the significant interests affected by the member bank, its directors, officers, Opportunity Ventures (‘‘the Francise Franchise Rule. These parties will employees, agents, or other institution- Rule’’ or ‘‘the Rule’’). participate in an open discussion of the affiliated parties to supervisory action. DATES: The public workshop conference issues. It is contemplated that the (j) Confidentiality of SARs. SARs are will be held at the Crown Sterling selected parties might ask and answer confidential. Any person subpoenaed or Suites, 7901 34th Avenue South, questions based on their respective otherwise requested to disclose a SAR Bloomington, Minnesota 55425, on comments. September 12 through 14, 1995, from 9 or the information contained in a SAR In addition, the conference will be a.m. until 5 p.m. each day. shall decline to produce the information open to the general public. Members of citing this section, applicable law (e.g., ADDRESSES: Notification of interest in the general public who attend the 31 U.S.C. 5318(g)), or both. participating in the public workshop conference may have an opportunity to conference should be submitted in PART 211ÐINTERNATIONAL make a brief oral statement presenting writing on or before August 11, 1995, to their views on issues raised in the rule BANKING OPERATIONS Myra Howard, Division of Marketing (REGULATION K) review process. Oral statements of views Practices, Federal Trade Commission, by members of the general public will Washington, DC 20580. 1. The authority citation for part 211 be limited to a few minutes. The time is revised to read as follows: FOR FURTHER INFORMATION CONTACT: allotted for these statements will be Steven Toporoff, (202) 326–3135, or Authority: 12 U.S.C. 221 et seq., 1818, determined on the basis of the time Myra Howard, (202) 326–2047, Division available and the number of persons 1841 et seq., 1843 et seq., 3100 et seq., 3901 of Marketing Practices, Bureau of et seq. who wish to make statements. The Consumer Protection, Federal Trade discussion will be transcribed and §§ 211.8 and 211.24 [Amended] Commission, Washington DC 20580. placed on the public record. In addition, 2. In §§ 211.8 and 211.24(f) remove SUPPLEMENTARY INFORMATION: On April written submissions of views, or any the words ‘‘criminal referral form’’ and 7, 1995, the Commission published a other written or visual materials, will be add, in their place, the words request for public comment on the accepted during the conference and will ‘‘suspicious activity report’’. Franchise Rule. 60 FR 17656 (April 7, be made part of the public record. 1995). As part of its systematic review To the extent possible, Commission PART 225ÐBANK HOLDING of Commission regulations and guides, staff will select parties to represent the COMPANIES AND CHANGE IN BANK the Commission requested comments following affected interests: Franchisors; CONTROL (REGULATION Y) about the overall costs and benefits of franchisees; business opportunity the Franchise Rule and its overall promoters; business opportunity 1. The authority citation for 12 CFR regulatory and economic impact. The part 225 continues to read as follows: purchasers; franchise and business Commission also requested comment on opportunity trade shows organizers; Authority: 12 U.S.C. 1817(j)(13), 1818, whether the Rule should be modified so 1831i, 1831p-1, 1843(c)(8), 1844(b), 1972(l), franchise and business opportunity as to: (1) Replace the current Rule brokers; franchise consultants; 3106, 3108, 3310, 3331–3351, 3907, and disclosure requirements with those set 3909. economists and academicians; Federal, forth in the revised Uniform Franchise State and local law enforcement and § 225.4 [Amended] Offering Circular Guidelines, approved regulatory authorities; and any other 2. In § 225.4 the heading of paragraph by the Commission on December 30, interests that Commission staff may (f) is revised to read ‘‘Suspicious 1993; (2) modify the scope of disclosure identify and deem appropriate for Activity Report.’’. requirements for business opportunity representation. ventures; (3) clarify the applicability of 3. In § 225.4(f) remove the words Parties representing the above- ‘‘criminal referral form’’ and add, in the Rule to trade show promoters; and (4) require the disclosure of earnings referenced interests will be selected on their place, the words ‘‘suspicious the basis of the following criteria: activity report’’. information. Written comments will be accepted on or before August 11, 1995. 1. The party submits a comment By order of the Board of Governors of the In its request for comment on the during the comment period ending on Federal Reserve System, June 28, 1995. Franchise Rule, the Commission also August 11, 1995. William W. Wiles, stated that the FTC staff would conduct 2. The party notifies Commission staff Secretary of the Board. a Public Workshop Conference to in writing of its interest and, if required, [FR Doc. 95–16250 Filed 6–30–95; 8:45 am] discuss the written comments received authorization to represent an affected BILLING CODE 6210±01±P during the rule review. interest, on or before August 11, 1995. 34486 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Proposed Rules 3. The party’s participation would to FDA that may be used to provide Evaluation and Research (HFD–362), promote a balance of interests being confidential, detailed information about Food and Drug Administration, 7500 represented at the conference. facilities, processes, or articles used in Standish Pl., Rockville, MD 20855, 301– 4. The party’s participation would the manufacturing, processing, 594–1046. promote the consideration and packaging, and storing of one or more SUPPLEMENTARY INFORMATION: discussion of a variety of issues raised human drugs. The information during the rule review process. contained in a DMF may be referred to I. Introduction 5. The party has experience or in support of an investigational new DMF’s allow regulated industry to expertise in activities affected by the drug application (IND), a new drug submit to FDA information that may be Franchise Rule. application (NDA), an abbreviated new used to support an IND, NDA, ANDA, 6. The party adequately reflects the drug application (ANDA), or AADA, another DMF, an export views of the affected interest(s). amendments or supplements to any of application, or amendments or 7. The number of parties selected will these. FDA has defined five distinct supplements to any of these. FDA does not be so large as to inhibit effective categories of submissions that it will not require industry to submit DMF’s; a discussion among them. accept and maintain, and it has DMF is submitted solely at the The conference will be facilitated by designated these as Type I through Type discretion of the holder. DMF’s allow a Commission staff member. It will be V DMF’s. industry to provide confidential, held over the course of three In December 1992, the Center for Drug detailed information about facilities, consecutive days, September 12–14, Evaluation and Research’s (CDER’s) processes, or articles used in the 1995, at the Crown Sterling Suites, 7901 Chemistry, Manufacturing, Controls manufacturing, processing, packaging, 34th Avenue South, Bloomington, Coordinating Committee (CMCCC) and storing of drugs for human use. This Minnesota. Parties interested in established a DMF Task Force to information is then incorporated by representing an affected interest at the perform a review and to explore ways of reference in a drug application or conference must notify Commission improving all aspects of the system. One supplement without public disclosure. staff in writing on or before August 11, of the Task Force recommendations, FDA regulations in § 314.420(a) (21 1995. Each notice of interest in which was adopted by the CMCCC, was CFR 314.420(a)) define five types of participating at the conference should to eliminate Type I DMF’s. Type I DMF’s according to the kind of contain a brief statement making clear DMF’s contain information about information to be submitted. Type I which affected interest the requestor manufacturing sites, facilities, operating submissions include manufacturing site, seeks to represent. Prior to the procedures, and personnel. The Task facilities, operating procedures, and conference, parties selected to represent Force concluded that Type I DMF’s personnel information. Type II an affected interest will be provided should be eliminated because they submissions include information with copies of the comments submitted contain outdated information, duplicate regarding drug substances, drug in response to the request for comments. information contained in marketing substance intermediates, and materials applications, and are not used by used to prepare them, or drug products. List of Subjects in 16 CFR Part 436 CDER’s review divisions or FDA’s field Type III submissions include Advertising, Business and industry, inspectors. Under the proposed rule, information about packaging material. Franchising, Trade practices FDA would no longer permit Type IV submissions include information concerning excipients, Authority: 15 U.S.C. 41–58. information submitted in a Type I DMF to be incorporated by reference in IND’s, colorants, flavors, and essences, or By direction of the Commission. NDA’s, ANDA’s, abbreviated antibiotic material used in their preparation. Type Donald S. Clark, applications (AADA’s), and V submissions, detailed in the Secretary. supplemental applications. This ‘‘Guideline for Drug Master Files’’ [FR Doc. 95–16257 Filed 6–30–95; 8:45 am] proposed rule is intended to eliminate (1989), include FDA-accepted reference BILLING CODE 6750±01±M submissions of information that are not information. Under § 314.420, FDA recommended necessary either to conduct inspections that foreign drug manufacturing of manufacturing facilities or to review facilities file with FDA information DEPARTMENT OF HEALTH AND the chemistry, manufacturing, and concerning their manufacturing sites, HUMAN SERVICES controls sections of IND’s, NDA’s, and facilities, operating procedures, and abbreviated applications. This proposed personnel in a Type I DMF. FDA Food and Drug Administration rule would not apply to master file requested this information to plan its systems that are operated by the Center 21 CFR Part 314 on-site inspections of and travel to for Biologics Evaluation and Research, foreign drug manufacturing facilities. [Docket No. 94N±0449] the Center for Veterinary Medicine, and FDA believed that inspections would be Center for Device and Radiological conducted more efficiently if FDA New Drug Applications; Drug Master Health. Files inspectors knew in advance the DATES: Written comments by October 2, location, plant layout, equipment type, AGENCY: Food and Drug Administration, 1995. FDA proposes that any final rule and personnel at the foreign HHS. based on this proposal become effective manufacturing site. FDA did not request 60 days after its date of publication in ACTION: Proposed rule. that domestic firms submit Type I the Federal Register. DMF’s because FDA inspectors regularly SUMMARY: The Food and Drug ADDRESSES: Submit written comments visit firms in their district and are Administration (FDA) is proposing to to the Dockets Management Branch familiar with both their personnel and revise its regulations governing drug (HFA–305), Food and Drug manufacturing sites. Nonetheless, some master files (DMF’s), which are referred Administration, rm. 1–23, 12420 domestic pharmaceutical firms have to in the review and approval of new Parklawn Dr., Rockville, MD 20857. submitted Type I DMF’s. Currently, drugs and antibiotic drugs for human FOR FURTHER INFORMATION CONTACT: CDER has approximately 1,700 Type I use. A DMF is a voluntary submission Howard P. Muller, Center for Drug DMF’s. Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Proposed Rules 34487 Recently, FDA evaluated the heading of this document. If a DMF II. Environmental Impact usefulness of Type I DMF’s. The agency holder believes that its Type I DMF determined that its inspectors were not should be categorized as another type of The agency has determined under 21 using Type I DMF’s to plan foreign DMF, the DMF holder should submit a CFR 25.24(a)(8) that this action is of a inspections because the Type I DMF request to the Drug Master File Staff, type that does not individually or was not easily accessible or information Food and Drug Administration, rm. 2– cumulatively have a significant effect on contained in the Type I DMF was 14, 12420 Parklawn Dr., Rockville, MD the human environment. Therefore, outdated. Instead, FDA now requests 20857, within 30 days of publication of neither an environmental assessment nor an environmental impact statement foreign firms to submit a preinspection any final rule based on this proposal. is required. document package that includes both This request should: (1) Be submitted by current facility and product-specific the responsible official or designated III. Analysis of Impacts information. FDA inspectors use the U.S. agent; (2) briefly identify the preinspection package to plan their subject of the DMF; and (3) propose the FDA has examined the impacts of the inspection. Although submission of the DMF Type (i.e., Type II, III, IV, or V) to proposed rule under Executive Order package is voluntary, foreign firms which information in the Type I DMF 12866 and the Regulatory Flexibility Act comply with the agency’s request (Pub. L. 96–354). Executive Order 12866 because the information helps should be transferred. If the information should be incorporated into an existing directs agencies to assess all costs and inspectors to conduct inspections benefits of available regulatory quickly and efficiently. The agency Type II through Type V DMF, the file number of that DMF should be alternatives and, when regulation is concluded that Type I DMF’s could be necessary, to select regulatory eliminated without adversely affecting provided. FDA would consider transferring an entire Type I DMF to approaches that maximize net benefits inspections of foreign manufacturing (including potential economic, another type only if the Type I DMF facilities. environmental, public health and safety, FDA has also determined that its contains substantive information other and other advantages; distributive review divisions do not rely on Type I than information concerning impacts; and equity). The agency DMF’s. Although Type I DMF’s are often manufacturing site, facilities, operating believes that this proposed rule is incorporated by reference into IND’s, procedures, and personnel. NDA’s, and abbreviated applications, consistent with the regulatory The agency also recognizes that some philosophy and principles identified in the information that the agency Type I DMF’s currently on file contain requested to be submitted under Type I the Executive Order. In addition, the information concerning sterilization DMF’s is not required for chemistry, proposed rule is not a significant process validation and other manufacturing, and controls review. regulatory action as defined by the Under 21 CFR 314.50(d)(1)(i) and information relevant to the review, Executive Order and so is not subject to (d)(1)(ii), a drug product applicant is evaluation, and assurance of the sterility review under the Executive Order. required to furnish the name and of sterile products. For sterile items that The Regulatory Flexibility Act location of facilities used in the are not the subject of an IND, NDA, requires agencies to analyze regulatory manufacture of the drug substance or ANDA, or AADA, and that are sold to options that would minimize any product. Unlike a Type I DMF a second party (e.g., rubber closures that significant impact of a rule on small submission, this information, when are sterilized by the manufacturer and entities. Because the proposed submitted as part of an application, is sold to a second party), CDER would regulation, if finalized, would lighten current and product-specific. Therefore, consider transferring product-specific paperwork and recordkeeping burdens, review divisions rely on the and general information concerning the agency certifies that the proposed applications themselves for this sterilization process validation to the rule will not have a significant information. DMF file or DMF type (i.e., II through economic impact on a substantial Accordingly, the agency proposes to IV) under which manufacturing number of small entities. Therefore, amend § 314.420 to eliminate Type I information for the specific item is filed. under the Regulatory Flexibility Act, no DMF’s. The agency would no longer Contract manufacturers of sterile further analysis is required. accept new Type I DMF’s, or finished drug products, contract IV. Effective Date correspondence updating existing Type sterilization firms (e.g., ethylene oxide, I DMF’s. The information in Type I gamma radiation, and electron beam FDA proposes that any final rule DMF’s currently on file could no longer radiation), and manufacturers of sterile based on this proposal become effective be incorporated by reference into new finished drug products that are the 60 days after its date of publication in applications, amendments, or subject of a drug product application supplements, and the Type I DMF’s the Federal Register. could request a transfer from Type I to would be transferred to the Federal Type V DMF of nonproduct-specific V. Request for Comments Records Center, Suitland, MD. These proposed changes would supersede all information and procedures that are Interested persons may, on or before information regarding Type I DMF’s submitted to support a claim of sterility. October 2, 1995, submit to the Dockets detailed in the ‘‘Guideline for Drug Where applicable, the content and Management Branch (address above) Master Files.’’ format of such transferred information written comments regarding this The agency acknowledges that some should follow FDA’s guideline entitled proposal. Two copies of any comments firms may have submitted information ‘‘Guideline for Submitting are to be submitted, except that under a Type I DMF that should have Documentation for Sterilization Process individuals may submit one copy. been filed under Types II through V Validation in Applications for Human Comments are to be identified with the DMF’s. Therefore, FDA is proposing to and Veterinary Drug Products.’’ The docket number found in brackets in the make available a list of all CDER Type mechanism for requesting a transfer heading of this document. Received I DMF’s for public review in the Dockets would be the same as the mechanism for comments may be seen in the office Management Branch under the docket recategorizing Type I DMF’s, as above between 9 a.m. and 4 p.m., number found in brackets in the described in the preceding paragraph. Monday through Friday. 34488 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Proposed Rules List of Subjects in 21 CFR Part 314 Education Assistance Act (ISDEAA), as the public without advanced Administrative practice and amended. registration. procedure, Confidential business The Departments have determined Public attendance may be limited to information, Drugs, Reporting and that the establishment of this Committee the space available. Members of the recordkeeping requirements. is in the public interest and will assist public may make statements during the Therefore, under the Federal Food, the agencies in developing regulations meeting, to the extent time permits and Drug, and Cosmetic Act and under authorized under section 107 of the file written statements with the authority delegated to the Commissioner ISDEAA. The agenda for this meeting Committee for its consideration. Written of Food and Drugs, it is proposed that will consist of workgroup reports on the statements should be submitted to the 21 CFR part 314 be amended as follows: advantages and disadvantages of address listed above. Summaries of developing regulations in those subject Committee meetings will be available PART 314ÐAPPLICATIONS FOR FDA areas provided in ISDEAA where for public inspection and copying ten APPROVAL TO MARKET A NEW DRUG regulations are permitted. In addition, days following each meeting at the same OR AN ANTIBIOTIC DRUG further meeting and work assignments address. In addition, the materials will be planned. 1. The authority citation for 21 CFR received to date during the input part 314 continues to read as follows: DATES: The Committee and appropriate sessions are available for inspection and workgroups will meet on the following copying at the same address. Authority: Secs. 201, 301, 501, 502, 503, days beginning at approximately 8:30 505, 506, 507, 701, 704, 721 of the Federal Dated: June 28, 1995. Food, Drug, and Cosmetic Act (21 U.S.C. 321, am and ending at approximately 5:00 Ada E. Deer, 331, 351, 352, 353, 355, 356, 357, 371, 374, pm on each day: Sunday, July 9, Assistant Secretary—Indian Affairs. Monday, July 10, Tuesday, July 10, 379e). [FR Doc. 95–16351 Filed 6–30–95; 8:45 am] Wednesday, July 12, Thursday, July 13. 2. Section 314.420 is amended by BILLING CODE 4310±02±M removing and reserving paragraph (a)(1), ADDRESSES: All meetings July 9 through and by revising the second sentence of July 13, 1995, will be held at the Red paragraph (a)(5) to read as follows: Lion Hotel, 3203 Quebec Street, Denver, ENVIRONMENTAL PROTECTION CO 80207. Tel.: (303) 321–3333. AGENCY § 314.420 Drug master files. (Workgroups will also be meeting at the (a) * * * same location.) 40 CFR Parts 52 and 70 (1) [Reserved] It was originally planned that this [CA 147±2±7073; AD±FRL±5253±2] * * * * * meeting be held in Oklahoma City, (5) * * * (A person wishing to submit however, organizers were unable to find Clean Air Act Proposed Interim information and supporting data in a adequate accommodations in Oklahoma Approval of the Operating Permits drug master file (DMF) that is not City or Tulsa. Due to the lack of space Program; Proposed Approval of State covered by Types II through IV DMF’s at these preferred locations, the site for Implementation Plan Revision for the must first submit a letter of intent to the the meeting has been changed to Denver Issuance of Federally Enforceable Drug Master File Staff, Food and Drug Colorado. Also the difficulty of State Operating Permits; Mojave Administration, 12420 Parklawn Dr., confirming a meeting location in Desert Air Quality Management rm. 2–14, Rockville, MD 20857. * * *) Oklahoma has made it necessary that District, California * * * * * this notice be published within the prescribed 15 days of the actual AGENCY: Environmental Protection Dated: June 26, 1995. beginning of the meeting. Committee Agency (EPA). William B. Schultz, activities begin on Sunday, July 9, and ACTION: Proposed rule. Deputy Commissioner for Policy. will continue through Thursday, July [FR Doc. 95–16206 Filed 6–30–95; 8:45 am] 13. Activities will include meetings of SUMMARY: The EPA proposes interim BILLING CODE 4160±01±F the full committee as well as various approval of the title V operating permits workgroup sessions. program submitted by the Mojave Desert Air Quality Management District Written statements may be submitted (Mojave Desert, or District) for the DEPARTMENT OF THE INTERIOR to Mr. James J. Thomas, Chief, Division purpose of complying with federal of Self-Determination Services, Bureau Bureau of Indian Affairs requirements that mandate that states of Indian Affairs, 1849 C Street, NW, develop, and submit to EPA, programs MS: 4627–MIB, Washington, DC 20240, 25 CFR Chapter I for issuing operating permits to all telephone (202) 208–3708. major stationary sources and to certain Meeting of the Indian Self- FOR FURTHER INFORMATION CONTACT: Mr. other sources. There are nine Determination Negotiated Rulemaking James J. Thomas, Chief, Division of Self- deficiencies in Mojave Desert’s program, Committee Determination Services, Bureau of as specified in the Technical Support Indian Affairs, 1849 C Street, NW., MS: AGENCY: Bureau of Indian Affairs, Document and outlined below, that 4627–MIB, Washington, DC 20240, Interior Indian Health Service, HHS. must be corrected before the program telephone (202) 208–3708; or Mrs. ACTION: Notice of meeting. can be fully approved. EPA is also Merry Elrod, Acting Director, Division proposing to approve a revision to SUMMARY: The Secretary of the Interior of Self-Determination, Indian Health Mojave Desert’s portion of the California (DOI) and the Secretary of Health and Service, 5600 Fishers Lane, Parklawn State Implementation Plan (SIP) Human Services (DHHS) have Building, Room 6A–05, Rockville, MD regarding synthetic minor regulations established an Indian Self- 20857, telephone (301) 443–1044. for the issuance of federally enforceable Determination Negotiated Rulemaking SUPPLEMENTARY INFORMATION: The state operating permits (FESOP). In Committee (Committee) to negotiate and location and dates of future meetings order to extend the federal develop a proposed rule implementing will be published in the Federal enforceability of state operating permits the Indian Self-Determination and Register. The meetings will be open to to hazardous air pollutants (HAP), EPA Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Proposed Rules 34489 is also proposing approval of Mojave establish and implement a federal districts in California and therefore were Desert’s synthetic minor regulations program. not included separately in Mojave pursuant to section 112 of the Act. On June 28, 1989 (54 FR 27274), EPA Desert’s submittal. The Mojave Desert Today’s action also proposes approval published criteria for approving and submission does contain a complete of Mojave Desert’s mechanism for incorporating into the SIP regulatory program description, District receiving straight delegation of section programs for the issuance of federally implementing and supporting 112 standards. enforceable state operating permits. regulations, and all other program DATES: Comments on these proposed Permits issued pursuant to an operating documentation required by § 70.4. An actions must be received in writing by permit program meeting these criteria implementation agreement between August 2, 1995. and approved into the SIP are Mojave Desert and EPA is currently ADDRESSES: Comments should be considered federally enforceable. EPA being developed. addressed to Sara Bartholomew, Mail has encouraged states to consider 2. Title V Operating Permit Regulations Code A–5–2, U.S. Environmental developing such programs in and Program Implementation Protection Agency, Region IX, Air & conjunction with title V operating Toxics Division, 75 Hawthorne Street, permit programs for the purpose of The Mojave Desert’s title V San Francisco, CA 94105. creating federally enforceable limits on regulations were adopted on December Copies of the District’s submittal and a source’s potential to emit. This 21, 1994. They consist of Regulation XII other supporting information used in mechanism would enable sources to (Federal Operating Permits). The developing the proposed interim reduce their potential to emit to below District also submitted supporting approval are available for inspection the title V applicability thresholds and materials including the following rules: during normal business hours at the avoid being subject to title V. (See the Rule 219 (Equipment Not Requiring a following location: U.S. Environmental guidance document entitled, Permit, adopted December 21, 1994), Protection Agency, Region IX, 75 ‘‘Limitation of Potential to Emit with 221 (Federal Operating Permit Hawthorne Street, San Francisco, CA Respect to Title V Applicability Requirement, adopted November 23, 94105. Thresholds,’’ dated September 18, 1992, 1994), 301 (Permit Fees, adopted July 9, 1976, amended October 23, 1994), 312 FOR FURTHER INFORMATION CONTACT: Sara from John Calcagni, Director of EPA’s (Fees for Federal Operating Permits, Bartholomew (telephone 415/744– Air Quality Management Division.) On November 3, 1993, EPA announced in a adopted December 21, 1994), and 430 1170), Mail Code A–5–2, U.S. (Breakdown Provisions, adopted May 7, Environmental Protection Agency, guidance document entitled, ‘‘Approaches to Creating Federally 1976, amended December 21, 1994). Region IX, Air & Toxics Division, 75 These regulations ‘‘substantially meet’’ Hawthorne Street, San Francisco, CA Enforceable Emissions Limits,’’ signed by John S. Seitz, Director of EPA’s the requirements of 40 CFR part 70, 94105. § 70.2 and § 70.3 for applicability; Office of Air Quality Planning and § 70.4, § 70.5, and § 70.6 for permit SUPPLEMENTARY INFORMATION: Standards (OAQPS), that this content, including operational I. Background and Purpose mechanism could be extended to create flexibility; § 70.7 for public federally enforceable limits for As required under title V of the Clean participation and minor permit emissions of hazardous air pollutants Air Act (Act) as amended (1990), EPA modifications; § 70.5 for complete (HAP) if the program were approved has promulgated rules that define the application forms; and § 70.11 for pursuant to section 112(l) of the Act. minimum elements of an approvable enforcement authority. Although the state operating permits program and the II. Proposed Action and Implications regulations substantially meet part 70 corresponding standards and This document focuses on specific requirements, nine program deficiencies procedures by which the EPA will elements of Mojave Desert’s title V outlined below are interim approval approve, oversee, and withdraw operating permits program submittal issues. Recommended changes are approval of state operating permits that must be corrected to meet the detailed further in the Technical programs (see 57 FR 32250 (July 21, Support Document. minimum requirements of 40 CFR part 1992)). These rules are codified at 40 Variances—Mojave Desert has 70. The full program submittal, the CFR part 70 (part 70). Title V requires authority under State and local law to Technical Support Document states to develop, and submit to EPA, issue a variance from State and local containing a detailed analysis of the full programs for issuing operating permits requirements. Sections 42350 et seq. of program, and other relevant materials to all major stationary sources and to the California Health and Safety Code are available as part of the public certain other sources. and District Regulation 1, sections 431– The Act requires that states develop docket. 433 allow the District to grant relief and submit title V programs to EPA by A. Analysis of State Submission from enforcement action for permit November 15, 1993, and that EPA act to violations. The EPA regards these approve or disapprove each program 1. Title V Support Materials provisions as wholly external to the within 1 year after receiving the Mojave Desert’s title V program was program submitted for approval under submittal. The EPA’s program review submitted by the California Air part 70, and consequently, is proposing occurs pursuant to section 502 of the Resources Board (CARB) on November to take no action on these provisions of Act and the part 70 regulations, which 24, 1993 and found by EPA to be State and local law. together outline criteria for approval or incomplete, due to the lack of Federal The EPA has no authority to approve disapproval. Where a program Operating Permit regulations. Mojave provisions of state or local law, such as substantially, but not fully, meets the resubmitted its program on March 10, the variance provisions referred to, that requirements of part 70, EPA may grant 1995 and it was found to be complete are inconsistent with the Act. The EPA the program interim approval for a on May 11, 1995. The Governor’s letter does not recognize the ability of a period of up to 2 years. If EPA has not requesting source category-limited permitting authority to grant relief from fully approved a program by 2 years interim approval, California enabling the duty to comply with a federally after the November 15, 1993 date, or by legislation, and Attorney General’s legal enforceable part 70 permit, except the end of an interim program, it must opinion were submitted by CARB for all where such relief is granted through 34490 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Proposed Rules procedures allowed by part 70. A part corrections must be made in order to demonstration. Mojave Desert’s existing 70 permit may be issued or revised receive full approval. fee schedule (Element 7) requires title V (consistent with part 70 permitting Rule 219 set the threshold criteria for facilities to pay an amount equivalent to procedures) to incorporate those terms equipment to be exempt from a federal $48.76 per ton in annual operating fees. of a variance that are consistent with operating permit as 10% of the This amount meets EPA’s presumptive applicable requirements. A part 70 applicable threshold for determination minimum (CPI adjusted). The $48.76 permit may also incorporate, via part 70 of a major source, or 5 tons per year of per ton amount is based on a calculation permit issuance or modification any regulated air pollutant (whichever of 1993/94 fee revenues per ton of procedures, the schedule of compliance is less), and for HAP any de minimus emissions plus a supplemental title V set forth in a variance. However, EPA level, any significance level, or 0.5 tons fee of 14.3% that covers the additional reserves the right to pursue enforcement per year (whichever is less). For other costs posed by title V. Mojave Desert of applicable requirements state and district programs, EPA has will maintain an accounting system and notwithstanding the existence of a proposed to accept, as sufficient for full is prepared to increase fees, as needed, compliance schedule in a permit to approval, emission levels for to reflect actual program operate. This is consistent with 40 CFR insignificant activities of 2 tons per year implementation costs. 70.5(c)(8)(iii)(C), which states that a for criteria pollutants and the lesser of 4. Provisions Implementing the schedule of compliance ‘‘shall be 1000 pounds per year, section 112(g) de Requirements of Other Titles of the Act supplemental to, and shall not sanction minimis levels, or other title I noncompliance with, the applicable significant modification levels for HAP a. Section 112—Mojave Desert has requirements on which it is based.’’ and other toxics (40 CFR demonstrated in its title V program Insignificant Activities—Section 52.21(b)(23)(i)). EPA believes that these submittal adequate legal authority to 70.4(b)(2) requires states to include in levels are sufficiently below the implement and enforce all section 112 their part 70 programs any criteria used applicability thresholds of many requirements through the title V permit. to determine insignificant activities or applicable requirements to assure that This legal authority is contained in the emission levels for the purpose of no unit potentially subject to an State of California enabling legislation determining complete applications. applicable requirement is left off a title and in regulatory provisions defining Section 70.5(c) states that an application V application. ‘‘applicable requirements’’ and Mojave Desert did not describe the for a part 70 permit may not omit ‘‘federally enforceable’’ and mandating criteria used to determine the information needed to determine the that all federal air quality requirements insignificant activities or emission applicability of, or to impose, any must be incorporated into permits. EPA levels outlined in Rule 219. In addition, applicable requirement, or to evaluate has determined that this legal authority Mojave’s threshold levels as described is sufficient to allow Mojave Desert to appropriate fee amounts. Section 70.5(c) above are higher than those EPA has also states that EPA may approve, as issue permits that assure compliance proposed to accept. Because of this, EPA with all section 112 requirements. For part of a state program, a list of is requesting comment on the insignificant activities and emissions further discussion, please refer to the appropriateness of these emission levels Technical Support Document levels which need not be included in for determining insignificant activities permit applications. Under part 70, a accompanying this action and the April in Mojave Desert. This request for 13, 1993 guidance memorandum state must request and EPA must comment is not intended to restrict the approve as part of that state’s program entitled, ‘‘Title V Program Approval ability of other states and districts to Criteria for Section 112 Activities,’’ any activity or emission level that the propose, and EPA to approve, different state wishes to consider insignificant. signed by John Seitz. emission levels if the state or district b. Title IV—Mojave Desert is Part 70, however, does not establish demonstrates that such alternative appropriate emission levels for submitting proposed Rule 1210 (Acid emission levels are insignificant Rain Provisions of Federal Operating insignificant activities, relying instead compared to the level of emissions from on a case-by-case determination of Permits) to its Board in June, 1995, and types of units that are permitted or which incorporates the pertinent appropriate levels based on the subject to applicable requirements. particular circumstances of the part 70 provisions of part 72, either by reference program under review. 3. Title V Permit Fee Demonstration or in specific language in the rule. EPA In Rule 219 (Equipment Not Requiring Section 502(b)(3) of the Act requires interprets ‘‘pertinent provisions’’ to a Permit) Mojave Desert provided both that each permitting authority collect include all provisions necessary for the threshold emissions levels and a list of fees sufficient to cover all reasonable permitting of affected sources. specific equipment which would not direct and indirect costs required to B. Proposal for and Implications of require a permit. This rule also clearly develop and administer its title V Interim Approval states that equipment need not be listed operating permits program. Each title V in a permit application for a federal program submittal must contain either a 1. Title V Operating Permits Program operating permit if it falls below the detailed demonstration of fee adequacy a. Proposed Interim Approval—The threshold, is on the list of equipment in or a demonstration that aggregate fees EPA is proposing to grant interim the rule, is not subject to an applicable collected from title V sources meet or approval to the operating permits requirement, and is not included in the exceed $25 per ton of emissions per year program submitted by CARB on behalf equipment list solely due to size or (adjusted from 1989 by the Consumer of Mojave Desert on March 10, 1995. production rate. The only weakness in Price Index (CPI)). The $25 per ton Following interim approval, Mojave these gatekeepers is that the word ‘‘and’’ amount is presumed, for program Desert must make the following changes is missing between sections (B)(1)(b) approval, to be sufficient to cover all to receive full approval: and (c), and (B)(1)(c) and (d) of Rule reasonable program costs and is thus (1) Revise Rule 1203(G)(3)(g), which 219. Adding ‘‘and’’ in these two places referred to as the ‘‘presumptive prohibits the permit shield from would clarify that all of the four minimum.’’ See § 70.9(b)(2)(i). applying to Administrative Permit gatekeepers must apply for equipment Mojave Desert has opted to make a Amendments and Significant Permit to be exempt, not just one. These presumptive minimum fee Modifications, to include a reference to Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Proposed Rules 34491 Minor Permit Modifications as well. The program to receive full approval (and the deficiencies, a second sanction permit shield cannot apply to Minor avoid a disapproval upon the expiration would be required. In addition, Permit Modifications, and the rule must of this interim approval), the California discretionary sanctions may be applied state this clearly. See § 70.7(e)(2)(vi). Legislature must revise the Health and where warranted any time after the end (2) Add a provision for sending the Safety Code to eliminate the exemption of an interim approval period if a state final permit to EPA, as required by of agricultural production sources from or district has not submitted a timely § 70.8(a)(1). Mojave’s Rule 1203(B)(1)(c) the requirement to obtain a permit. and complete corrective program or EPA only provides for sending the proposed c. Implications of Interim Approval— has disapproved a submitted corrective permit to EPA. The above described program and program. Moreover, if EPA has not (3) Adopt Rule 1210 (Acid Rain legislative deficiencies must be granted full approval to a state or Provisions of Federal Operating corrected before Mojave Desert can district program by the expiration of an Permits). receive full program approval. For interim approval and that expiration (4) Rule 1206(A)(1)(i) must amend the additional information, please refer to occurs after November 15, 1995, EPA provision that no reopening is required the Technical Support Document, must promulgate, administer and if the effective date of the additional which contains a detailed analysis of enforce a federal permits program for applicable requirement is later than the Mojave Desert’s operating permits that state or district upon interim date on which the permit is due to program, and California’s enabling approval expiration. expire. If the original permit or any of legislation. its terms and conditions are extended Interim approval, which may not be 2. Section 112(g) Implementation pursuant to § 70.4(b)(10), the permit renewed, would extend for a period of EPA has decided that it is not must be reopened to include a new 2 years. During the interim approval reasonable to expect the states and applicable requirement, and a statement period, the District would be protected districts to implement section 112(g) must be made to this effect in Mojave’s from sanctions, and EPA would not be before a rule is issued. EPA therefore rule (§ 70.7(f)(1)(i)). obligated to promulgate a federal published an interpretive notice in the (5) Clarify in Rule 1203(G)(3)(B) that permits program in the Mojave Desert. Federal Register regarding section the permit shield shall not limit liability Permits issued under a program with 112(g) of the Act: 60 FR 8333 (February for violations which occurred prior to or interim approval would have full 14, 1995). This notice outlines EPA’s at the time of the issuance of the federal standing with respect to part 70, and the revised interpretation of 112(g) operating permit, by adding the 1-year time period for submittal of applicability prior to EPA’s issuing the underlined words. This is important to permit applications by subject sources final 112(g) rule. The notice states that clarify that violations which are would begin upon EPA’s final major source modifications, continuing at the time of permit rulemaking granting interim approval, constructions, and reconstructions will issuance will not be shielded against. as would the 3-year time period for not be subject to 112(g) requirements (6) Lower the cutoff levels for criteria processing initial permit applications. until the final rule is promulgated. EPA pollutants in Rule 219 (Equipment not Following final interim approval, if expects to issue the 112(g) final rule in Requiring a Permit) or, alternatively, Mojave Desert should fail to submit a September 1995. demonstrate that Mojave Desert’s levels complete corrective program for full The notice further explains that EPA are insignificant compared to the level approval by the date 6 months before is considering whether the effective date of emissions from and types of units expiration of the interim approval, EPA of section 112(g) should be delayed that are required to be permitted or are would start an 18-month clock for beyond the date of promulgation of the subject to applicable requirements. mandatory sanctions. Then, if Mojave Federal rule so as to allow States and (7) Add ‘‘and’’ at the end of sections Desert should fail to submit a corrective Districts time to adopt rules (b) and (c) in Rule 219(B)(2), in order to program that EPA found complete implementing the Federal rule, and that clarify that the four gatekeepers must all before the expiration of that 18-month EPA will provide for any such apply in order for equipment to be period, EPA would be required to apply additional delay in the final section exempt from getting a federal operating one of the sanctions in section 179(b) of 112(g) rulemaking. Unless and until permit. the Act, which would remain in effect EPA provides for such an additional (8) Add to Rule 1203(D)(1)(e)(i) a until EPA determined that the District postponement of section 112(g), Mojave reference to the requirement for the corrected the deficiency by submitting a Desert must be able to implement clear identification of all deviations complete corrective program. If, six section 112(g) during the period with respect to reporting months after application of the first between promulgation of the Federal (§ 70.6(a)(3)(iii)(A)). sanction, the Mojave Desert still had not section 112(g) rule and adoption of (9) Add to Rule 1203(D)(1)(e)(ii) a submitted a corrective program that EPA implementing District regulations. reference to the requirement to specify found complete, a second sanction For this reason, EPA is proposing to the probable cause and corrective would be required. approve the use of Mojave Desert’s actions or preventive measures taken If, following final interim approval, preconstruction review programs as a with regard to reporting a deviation EPA were to disapprove Mojave Desert’s mechanism to implement section 112(g) (§ 70.6(a)(3)(iii)(B)). complete corrective program, EPA during the transition period between b. Legislative Source Category-Limited would be required to apply one of the promulgation of the section 112(g) rule Interim Approval Issue—In addition to section 179(b) sanctions on the date 18 and adoption by the nineteen districts of the District-specific issues arising from months after the effective date of the rules specifically designed to implement Mojave Desert’s program submittal and disapproval unless prior to that date the section 112(g). However, since approval locally adopted regulations, California District submitted a revised program is intended solely to confirm that State law currently exempts agricultural and EPA determined that it corrected Mojave Desert has a mechanism to production sources from permit the deficiencies that prompted the implement section 112(g) during the requirements. Because of this disapproval. Again, if, six months after transition period, the approval itself exemption, California programs are only EPA applied the first sanction, Mojave will be without effect if EPA decides in eligible for source category-limited Desert had not submitted a revised the final section 112(g) rule that there interim approval. In order for this program that EPA determined corrected will be no transition period. The EPA is 34492 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Proposed Rules limiting the duration of its approval of mechanism will allow sources to reduce hazardous air pollutants (HAP). The the use of preconstruction programs to their potential to emit to below the title separate request for approval under implement 112(g) to 12 months V applicability thresholds and avoid section 112(l) is necessary because the following promulgation by EPA of the being subject to title V. proposed SIP approval discussed above section 112(g) rule. Mojave Desert’s synthetic minor only provides a mechanism for regulations were adopted on November controlling criteria pollutants. While 3. Program for Delegation of Section 112 23, 1994 and codified in District federally enforceable limits on criteria Standards as Promulgated Regulation XII, Rule 221 (Federal pollutants (i.e., VOC’s or PM–10) may Requirements for part 70 program Operating Permit Requirement). EPA have the incidental effect of limiting approval, specified in 40 CFR 70.4(b), found the initial SIP submittal complete certain HAP listed pursuant to section encompass section 112(l)(5) on May 25, 1995. 112(b) 1, section 112 of the Act provides requirements for approval of a program The five criteria for approving a state the underlying authority for controlling for delegation of section 112 standards operating permit program into a SIP HAP emissions that are not criteria as promulgated by EPA as they apply to were set forth in the June 28, 1989 pollutants. As a legal matter, no part 70 sources. Section 112(l)(5) Federal Register notice (54 FR 27282): additional program approval by EPA is requires that the District’s program (1) The program must be submitted to required in order for these criteria contain adequate authorities, adequate and approved by EPA; (2) the program pollutant limits to be recognized as resources for implementation, and an must impose a legal obligation on the federally enforceable. expeditious compliance schedule, operating permit holders to comply with EPA has determined that the five which are also requirements under part the terms and conditions of the permit, approval criteria for approving FESOP 70. Therefore, the EPA is also proposing and permits that do not conform with programs into the SIP, as specified in to grant approval under section 112(l)(5) the June 28, 1989 criteria shall be the June 28, 1989 Federal Register and 40 CFR 63.91 of Mojave Desert’s deemed not federally enforceable; (3) notice, are also appropriate for program for receiving delegation of the program must contain terms and evaluating and approving the programs section 112 standards that are conditions that are at least as stringent under section 112(l). The June 28, 1989 unchanged from the federal standards as as any requirements contained in the notice does not address HAP because it promulgated. California Health and SIP or enforceable under the SIP or any was written prior to the 1990 Safety Code section 39658 provides for other section 112 or other Clean Air Act amendments to section 112 (which automatic adoption by CARB of section standard or requirement; (4) permits injected the concept of major HAP 112 standards upon promulgation by issued under the program must contain sources versus non-major or area HAP EPA. Section 39666 of the Health and conditions that are permanent, sources into the permit) and not because Safety Code requires that districts then quantifiable, and enforceable as a it establishes requirements unique to implement and enforce these standards. practical matter; and (5) permits issued criteria pollutants. Hence, the five Thus, when section 112 standards are under the program must be subject to criteria outlined above are applicable to automatically adopted pursuant to public participation. FESOP approvals under section 112(l). section 39658, Mojave Desert will have Permits issued under an approved In addition to meeting the criteria in the authority necessary to accept program are federally enforceable and the June 28, 1989 notice, a FESOP delegation of these standards without may be used to limit the potential to program that will control HAP further regulatory action by the District. emit of sources of criteria pollutants. emissions must meet the statutory The details of this mechanism and the Mojave Desert’s synthetic minor criteria for approval under section means for finalizing delegation of provisions of Regulation XII, Rule 221 112(l)(5). Section 112(l)(5) allows EPA standards will be set forth in a meet the June 28, 1989 criteria by to approve a program only if it: (1) Memorandum of Agreement between ensuring that the limits will be Contains adequate authority to assure Mojave Desert and EPA, expected to be permanent, quantifiable, and practically compliance with any section 112 completed prior to approval of Mojave enforceable and by providing adequate standard or requirement; (2) provides Desert’s section 112(l) program for notice and comment to EPA and the for adequate resources; (3) provides for straight delegations. This program public. Please refer to the Technical an expeditious schedule for assuring applies to both existing and future Support Document for a thorough compliance with section 112 standards but is limited to sources analysis of the June 28, 1989 criteria as requirements; and (4) is otherwise likely covered by the part 70 program. applied to the Mojave Desert’s synthetic to satisfy the objectives of the Act. minor program. The EPA plans to codify the approval 4. State Operating Permit Program for EPA is proposing to approve pursuant criteria for programs limiting potential Synthetic Minors to part 52 and the approval criteria to emit of HAP in subpart E of part 63 On March 31, 1995, CARB submitted specified in the June 28, 1989 Federal (Subpart E), the regulations promulgated for approval into the Mojave Desert’s Register notice the following regulation to implement section 112(l) of the Act. portion of the California State that was submitted to create the The EPA currently anticipates that these Implementation Plan (SIP) a local synthetic minor operating permit criteria, as they apply to FESOP operating permit program designed to program: Rule 221 (Federal Operating programs controlling HAP, will mirror create federally enforceable limits on a Permit Requirement). those set forth in the June 28, 1989 source’s potential to emit. This District On March 10, 1995, in its title V notice, with the addition that the state’s program is referred to as a synthetic program submittal under ‘‘Addendum: authority must extend to all HAP, minor operating permit program, and it Federal Clean Air Act Section 112(l) instead of, or in addition to, VOC’s and consists of regulations that will be Authority Request Letter,’’ CARB PM–10. The EPA currently anticipates integrated with the District’s existing, requested approval of Mojave Desert’s that FESOP programs that are approved non-federally enforceable, operating synthetic minor program, consisting of permit program. Such programs are also the rules specified above, under section 1 The EPA intends to issue guidance addressing referred to as federally enforceable state 112(l) of the Act for the purpose of the technical aspects of how these criteria pollutant limits may be recognized for purposes of limiting operating permit (FESOP) programs. creating federally enforceable a source’s potential to emit of HAP to below section This synthetic minor or FESOP limitations on the potential to emit of 112 major source levels. Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Proposed Rules 34493 pursuant to section 112(l) prior to the sources to obtain federally enforceable informing and advising any small Subpart E revisions will have had to limits on potential to emit to avoid governments that may be significantly meet these criteria, and hence, will not major source classification under or uniquely impacted by the rule. be subject to any further approval section 112. The EPA believes this EPA has determined that the action. purpose is consistent with the overall proposed approval action promulgated The EPA believes it has authority intent of section 112, which is to today does not include a federal under section 112(l) to approve decrease the amount of HAP being mandate that may result in estimated programs to limit potential to emit of emitted; by committing to stay below a costs of $100 million or more to either HAP directly under section 112(l) prior certain emission level for HAP, a source state, local, or tribal governments in the to this revision to Subpart E. Section with a synthetic minor permit is aggregate, or to the private sector. This 112(l)(5) requires EPA to disapprove achieving this goal. proposed federal action approves pre- programs that are inconsistent with III. Administrative Requirements existing requirements under state or guidance required to be issued under local law, and imposes no new federal section 112(l)(2). This might be read to A. Request for Public Comments requirements. Accordingly, no suggest that the ‘‘guidance’’ referred to The EPA is requesting comments on additional costs to state, local, or tribal in section 112(l)(2) was intended to be all aspects of this proposed interim governments, or to the private sector, a binding rule. Even under this approval. Copies of Mojave Desert’s result from this action. interpretation, the EPA does not believe submittal and other information relied List of Subjects 40 CFR Part 52 that section 112(l) requires this upon for the proposed interim approval rulemaking to be comprehensive. That are contained in a docket maintained at Environmental protection, Air is, it need not address all instances of the EPA Regional Office. The docket is pollution control, Carbon monoxide, approval under section 112(l). Given the an organized and complete file of all the Hydrocarbons, Intergovernmental severe timing problems posed by information submitted to, or otherwise relations, Lead, Nitrogen dioxide, impending deadlines set forth in MACT considered by, EPA in the development Ozone, Particulate matter, Sulfur oxides, standards and for submittal of title V of this proposed interim approval. The Volatile organic compounds. applications, EPA believes it is principal purposes of the docket are: 40 CFR Part 70 reasonable to read section 112(l) to (1) To allow interested parties a allow for approval of programs to limit means to identify and locate documents Administrative practice and potential to emit prior to issuance of a so that they can effectively participate procedure, Air pollution control, rule specifically addressing this issue. in the approval process, and Environmental protection, Hazardous EPA proposes approval of Mojave (2) To serve as the record in case of substances, Intergovernmental relations, Desert’s synthetic minor program judicial review. The EPA will consider Operating permits, Reporting and pursuant to section 112(l) because the any comments received by August 2, recordkeeping requirements. program meets all of the approval 1995. criteria specified in the June 28, 1989 Authority: 42 U.S.C. 7401–7671q. Federal Register notice and in section B. Executive Order 12866 Dated: June 23, 1995. 112(l)(5) of the Act. Please refer to the The Office of Management and Budget David P. Howekamp, Technical Support Document for a has exempted this action from Executive Acting Regional Administrator. complete discussion of how the June 28, Order 12866 review. [FR Doc. 95–16276 Filed 6–30–95; 8:45 am] 1989 criteria are met by the Mojave BILLING CODE 6560±50±P Desert. Regarding the statutory criteria C. Regulatory Flexibility Act of section 112(l)(5) referred to above, the The EPA’s actions under sections 502, EPA believes Mojave Desert’s synthetic 110, and 112 of the Act do not create 40 CFR Part 70 minor program contains adequate any new requirements, but simply authority to assure compliance with address operating permit programs [KS±001; AD-FRL±5252±2] section 112 requirements since the third submitted to satisfy the requirements of criterion of the June 28, 1989 notice is 40 CFR part 70. Because this action does Clean Air Act Proposed Full Approval met: the program does not provide for not impose any new requirements, it of Operating Permits Program; State of waiving any section 112 requirement. does not have a significant impact on a Kansas, and Delegation of 112(l) Sources would still be required to meet substantial number of small entities. Authority section 112 requirements applicable to Unfunded Mandates non-major sources. Furthermore, EPA AGENCY: Environmental Protection believes that Mojave Desert’s synthetic Under Section 202 of the Unfunded Agency (EPA). minor program provides for an Mandates Reform Act of 1995 ACTION: Proposed full approval. expeditious schedule for assuring (‘‘Unfunded Mandates Act’’), signed compliance because it allows a source to into law on March 22, 1995, EPA must SUMMARY: The EPA proposes full establish a voluntary limit on potential prepare a budgetary impact statement to approval of the Operating Permits to emit and avoid being subject to a accompany any proposed or final rule Program submitted by the state of federal Clean Air Act requirement that includes a Federal mandate that Kansas, for the purpose of complying applicable on a particular date. Nothing may result in estimated costs to state, with Federal requirements for states in Mojave Desert’s program would allow local, or tribal governments in the which develop, and submit to EPA, a source to avoid or delay compliance aggregate; or to the private sector, of programs for issuing operating permits with a federal requirement if it fails to $100 million or more. Under Section to all major stationary sources and to obtain the appropriate federally 205, EPA must select the most cost- certain other sources. This notice enforceable limit by the relevant effective and least burdensome explains EPA’s rationale for the deadline. Finally, Mojave Desert’s alternative that achieves the objectives proposed action, and identifies several synthetic minor program is consistent of the rule and is consistent with revisions to the program which must be with the objectives of the section 112 statutory requirements. Section 203 made before EPA can take final action program because its purpose is to enable requires EPA to establish a plan for to approve it. 34494 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Proposed Rules DATES: Comments on this proposed the Kansas program were sent to the complete application forms and criteria action must be received in writing by state in a letter dated February 22, 1995. which define insignificant activities; 40 August 2, 1995. The state responded in letters dated CFR 70.7 with respect to public ADDRESSES: Comments should be April 7 and April 17, 1995. participation and minor permit addressed to Wayne A. Kaiser at the The program submittal includes a modifications; and 40 CFR 70.11 with address below. Copies of the Kansas legal opinion from the Attorney General respect to requirements for enforcement submittal and other supporting of Kansas stating that the laws of the authority. information used in developing the state provide adequate legal authority to Areas in which the Kansas program is proposed rule are available for carry out all aspects of the program, and deficient and corrective action is inspection at the U.S. Environmental a description of how the state intends to required prior to full approval are Protection Agency, Region VII, Air implement the program. The submittal discussed below. Although failure to Branch, 726 Minnesota Avenue, Kansas additionally contains evidence of proper correct the program would require EPA City, Kansas 66101. adoption of the program regulations, to disapprove it, Kansas has indicated FOR FURTHER INFORMATION CONTACT: permit application forms, a data that it can make the required changes Wayne A. Kaiser at (913) 551–7603. management system, and a permit fee and submit them to EPA. Readers may demonstration. refer to the Technical Support SUPPLEMENTARY INFORMATION: Document (TSD) accompanying this 2. Program Description I. Background and Purpose rulemaking for a detailed explanation of The Governor’s letter states that the each comment and the corrective A. Introduction entire geography of Kansas will be actions required of the state. As required under Title V of the Clean covered by this program and that the a. Rule revisions. K.A.R. 28–19–7, Air Act (the Act’’) as amended (1990), state will not administer the program on General provisions; definitions. The EPA has promulgated rules which any Indian lands. EPA will administer state definition of applicable define the minimum elements of an the Title V program on Indian lands in requirement as presently written approvable state operating permits Kansas. The letter also states that the requires that an SIP or Federal program, and the corresponding Kansas Department of Health and Implementation Plan requirement must standards and procedures by which the Environment (KDHE) will be the official be part of the Kansas air quality EPA will approve, oversee, and permitting authority responsible for regulations. The state has SIP withdraw approval of state operating implementation of the program. Finally, requirements, such as source-specific permits programs (see 57 FR 32250 (July the letter requests approval and permits, and local agency air 21, 1992)). These rules are codified at 40 delegation of authority to implement regulations, which are applicable Code of Federal Regulations (CFR) part section 112(l) of the Act. requirements but are not in the Kansas 70. Title V requires states to develop, In addition to the state’s class I Title air quality regulations. The state has and submit to EPA, programs for issuing V permit rules, the state is establishing committed to revise K.A.R. 28–19– these operating permits to all major a State Implementation Plan (SIP) based 7(e)(1) to remove this restriction. stationary sources and to certain other permit system for creating Federally Secondly, the applicable requirement sources. enforceable limitations, called the class definition does not include construction The Act requires that states develop II permit. This permit mechanism will permits issued pursuant to rules K.A.R. and submit these programs to EPA by allow sources to avoid having to obtain 28–19–300, and its predecessor, K.A.R. November 15, 1993, and that EPA act to a part 70 operating permit. Finally, the 28–19–14. The state has committed to approve or disapprove each program state is requiring all air emission add a paragraph (e)(2)(D) to the within one year after receiving the sources not qualifying for a class I or definition of applicable requirement to submittal. The EPA’s program review class II permit to obtain a class III correct this omission. These revisions occurs pursuant to section 502 of the permit. are necessary to meet EPA’s definition Act and the part 70 regulations, which The state has been collecting emission of applicable requirement in 70.2. together outline criteria for approval or fees for two years, which have been K.A.R. 28–19–511. Class I operating disapproval. Where a program used for ‘‘ramp-up’’ activities, including permits; application contents. Paragraph substantially, but not fully, meets the the hiring of additional staff and (b) details information which must be requirements of part 70, EPA may grant funding of a Small Business Assistance included in a permit application. This the program interim approval for a Program. The state provided a resource paragraph must be revised in three period of up to two years. If EPA has not demonstration, discussed later, to justify areas. First, 511(b)(3) must be revised to fully approved a program by two years deviating from the presumptive clarify that fugitive emissions of after the November 15, 1993, date, or by minimum of $25 per ton, Consumer regulated pollutants must be included the end of an interim period, it must Price Index (CPI) adjusted. The state is in the permit application. Second, establish and implement a Federal also authorized to collect fees for non- 511(b)(3)(A) must be revised to clarify program. Title V program activities. that the state maintains a list of insignificant activities which does not II. Proposed Action and Implications 3. Regulations and Program need to be included on the application Implementation A. Analysis of Submission by State form. The state has decided to remove Authority Except as noted below, the state this list from the application forms but submittal, including the core operating maintain it separately. The state must 1. Support Materials permit regulations (Kansas also submit its list of insignificant The Governor of Kansas submitted an Administrative Regulations (K.A.R.) 28– activities to EPA for approval. And administratively and technically 19–500 through 518), meets the third, 511(b)(16) must be revised to complete Title V Operating permit requirements of 40 CFR 70.2 and 70.3 clarify that compliance plans apply to program on December 12, 1994. EPA with respect to applicability; 40 CFR all sources. As written, the rule could be deemed the program submittal complete 70.4, 70.5, and 70.6 with respect to read to apply only to acid rain sources. in a letter to the governor on January 26, permit content including operational These revisions are necessary to meet 1995. Comments noting deficiencies in flexibility; 40 CFR 70.5 with respect to the requirements for applications for Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Proposed Rules 34495 Title V permits in 70.3(d), 70.5(c), request applications in a staggered, and the estimated actual and potential 70.5(c)(2), and 70.4(c)(8). three-tiered, SIC code-based approach, emissions from each source with a K.A.R. 28–19–512. Class I operating which ensures that all applications are projected total revenue. This estimate permits; permit content. Rule 512(a)(7) received within one year of program adequately covers the program’s requires that ‘‘where a permit contains approval pursuant to 70.5(a). EPA anticipated operating costs if the $20 fee an emission limitation which is an concurs with this approach. is maintained. If this fee is reduced, an alternative to an emission limitations K.A.R. 28–19–513. Class I operating additional demonstration will be contained in’’ the SIP, the alternative permits; permit amendment, required. A four-year estimate of meet certain requirements. Unlike modification, or reopening and changes resources and costs was also submitted. 70.6(a)(1)(iii), this provision is not not requiring a permit action. The state has provided for separate cost qualified by the statement that the SIP 70.7(d)(1)(v) states that part 70 permit accounting procedures to ensure that must expressly allow for alternative revisions which incorporate the fees collected are used solely for the limits. The state has committed to revise provisions of preconstruction permits part 70 program. The state commits to its rule to meet this requirement. Rule may be accomplished through the conducting periodic auditing reports 512(a)(18), pertaining to the terms and administrative amendment process, but and providing copies to EPA. conditions for trading of emissions, does only if the preconstruction permit is not require the source to provide the issued under an EPA-approved program 5. Provisions Implementing the state and EPA with a seven-day notice covering the relevant procedural Requirements of Other Titles of the Act as required by 70.4(b)(12)(iii). The state requirements substantially similar to a. Authority and/or commitments for has committed to revise its rule to meet those in part 70. K.A.R. 28–19– section 112 implementation. Kansas has this requirement. 513(a)(1)(E) includes a similar demonstrated in its program submittal K.A.R. 28–19–518. Class I operating provision. However, the Kansas adequate legal authority to implement permits; complete applications. Rule preconstruction program does not and enforce all section 112 requirements 518(a) does not contain a requirement, contain procedures substantially similar through the Title V permit. consistent with 70.7(b)(1), that an to the relevant part 70 procedures and This legal authority is contained in application be both ‘‘timely’’ filed and has not been approved by EPA. The Kansas’ enabling legislation and in complete. The state has committed to Kansas Attorney General, in his April 7, regulatory provisions defining revise this rule to include the ‘‘timely’’ 1995, supplemental opinion, has stated ‘‘applicable requirements,’’ and states component. Secondly, rule 518(b), that the K.A.R. 513(a)(1)(E) provision that the permit must incorporate all pertaining to the determination of a cannot be used to administratively applicable requirements. EPA has complete application, does not specify amend permits, until EPA approves determined that this legal authority is what must be included in a permit revisions to the Kansas New Source sufficient to allow Kansas to issue application in order to be deemed Review program incorporating the permits that ensure compliance with all complete. The state has committed to relevant part 70 procedural section 112 requirements. EPA is add a statement to the effect that a requirements. Therefore, EPA believes interpreting the above legal authority to complete application is one which this provision is approvable. mean that Kansas is able to carry out all substantially complies with the Implementation Agreement (I.A.) section 112 activities. For further requirements of K.A.R. 28–19–511, The state has elected to include in an rationale on this interpretation, please Class I operating permits; application I.A., rather than regulation, time lines refer to the TSD accompanying this contents. for state action on a number of rulemaking and the April 13, 1993, provisions relating to permit processing. guidance memorandum titled ‘‘Title V 3. Other issues EPA believes that since most of the Program Approval Criteria for Section K.A.R. 28–19–510. Class I operating deadlines to be established in the I.A. 112 Activities,’’ signed by John Seitz. permits; application timetable. This rule are for the benefit of EPA, the deadlines b. Section 112 (g)—Case-by-Case requires a complete and timely may be in the I.A. rather than the Maximum Achievable Control application to be submitted not later regulation. Technology (MACT) For Modified/ than the date specified by the KDHE, as The state has committed to a schedule Constructed and Reconstructed Major published in the Kansas Register, on for adopting and submitting the Toxic Sources. The EPA issued an which the source becomes subject to the required rule revisions, for submitting interpretive notice on February 14, 1995 permitting program, and for sources its insignificant activities list to EPA for (60 FR 8333), which outlines EPA’s operational at the time of the effective approval, and has committed to revised interpretation of 112(g) date of the operating permit program, no finalizing an I.A. with EPA which applicability. The notice postpones the later than the date specified by the contains certain commitments and effective date of 112(g) until after EPA KDHE as published in the Kansas information which EPA considers has promulgated a rule addressing that Register. necessary for approval. If the state provision. The notice sets forth in detail As a practical matter, Kansas will be revises the submission to correct the the rationale for the revised notified by EPA as soon as the deficiencies as described in this notice interpretation. anticipated date of publication of and no other program deficiencies are The section 112(g) interpretive notice program approval in the Federal identified during the comment period explains that EPA is still considering Register becomes known. Kansas has which preclude full approval, EPA’s whether the effective date of section committed to publishing its application final action will be one of full approval. 112(g) should be delayed beyond the schedule in the Kansas Register within Otherwise, EPA will confer disapproval. date of promulgation of the Federal rule the 30-day period preceding the so as to allow states time to adopt rules effective date of the program. Thus, the 4. Fee Demonstration implementing the Federal rule, and that state will have the full year in which to The state provided a detailed fee EPA will provide for any such receive applications. Kansas has demonstration because the emissions additional delay in the final section provided a sample Kansas Register fee, $20 per ton, is below the 112(g) rulemaking. Unless and until notice which contains the draft presumptive minimum of $25 plus CPI. EPA provides for such an additional application schedule. Kansas plans to The KDHE provided a list of sources postponement of section 112(g), Kansas 34496 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Proposed Rules must have a Federally enforceable future section 112(d) standards for both III. Administrative Requirements mechanism for implementing section part 70 and non-part 70 sources, and A. Request for Public Comments 112(g) during the period between section 112 infrastructure programs, that promulgation of the Federal section are unchanged from Federal rules as The EPA is requesting comments on 112(g) rule and adoption of promulgated. Kansas has informed EPA all aspects of this proposed rule. Copies implementing Federal regulations. that it intends to accept delegation of of the state’s submittal and other The EPA is aware that Kansas lacks a section 112 standards through adoption information relied upon for the program designed specifically to by reference. In addition, EPA is also proposed approval are contained in a implement section 112(g). However, docket maintained at the EPA Regional proposing delegation of all existing Kansas does have a program for review Office. The docket is an organized and standards and programs under 40 CFR of new and modified hazardous air complete file of all the information pollutant sources that can serve as an Parts 61 and 63 for part 70 and non-part submitted to, or otherwise considered adequate implementation vehicle during 70 sources. by, EPA in the development of this the transition period, because it would Kansas also requested that the proposed rulemaking. The principal allow Kansas to select control measures program approval under 112(l) include purposes of the docket are: that would meet MACT, as defined in its pre-1990 amendments’ National 1. To allow interested parties a means section 112, and incorporate these Emission Standard for Hazardous Air to identify and locate documents for measures into a Federally enforceable Pollutants’ program, and approval of its participating in the rulemaking process, preconstruction permit. program to regulate asbestos, Part 61, and EPA is approving Kansas’ subpart M. Our proposed approval 2. To serve as the record in case of preconstruction permitting program covers the entire Kansas program under judicial review. The EPA will consider under the authority of Title V and part 112(l). any comments received by August 2, 70, solely for the purpose of 1995. implementing section 112(g) to the d. Title IV/Acid Rain. The legal extent necessary during the transition requirements for approval under the B. Executive Order 12866 period between 112(g) promulgation Title V operating permits program for a The Office of Management and Budget and adoption of a state rule Title IV program were cited in EPA has exempted this regulatory action implementing EPA’s section 112(g) guidance distributed on May 21, 1993, from Executive Order 12866 review. regulations. Although section 112(l) titled ‘‘Title V-Title IV Interface C. Regulatory Flexibility Act generally provides authority for Guidance for States.’’ Kansas has met approval of state air programs to the criteria of this guidance and has EPA’s actions under section 502 of the implement section 112(g), Title V and adopted by reference acid rain rules at Act do not create any new requirements, section 112(g) provide for this limited 40 CFR part 72. but simply address operating permits approval because of the direct linkage programs submitted to satisfy the between the implementation of section B. Proposed Actions requirements of 40 CFR part 70. Because this action does not impose any new 112(g) and Title V. The scope of this 1. Full Approval approval is narrowly limited to section requirements, it does not have a 112(g) and does not confer or imply EPA is proposing to grant full significant impact on a substantial approval for purposes of any other approval contingent upon: first, the state number of small entities. provision under the Act (e.g., section adopting and submitting the revisions D. Unfunded Mandates 110). This approval will be without to: (1) K.A.R. 28–19–7, General Under Sections 202, 203, and 205 of effect if EPA decides in the final section Provisions; definitions, (2) K.A.R. 28– the Unfunded Mandates Reform Act of 112(g) rule that sources are not subject 19–511, Class I operating permits; to the requirements of the rule until 1995 (‘‘Unfunded Mandates Act’’), applications contents, (3) K.A.R. 28–19– state regulations are adopted. The signed into law on March 22, 1995, EPA 512, Class I operating permits; permit duration of this approval is limited to 18 must undertake various actions in months following promulgation by EPA content, (4) K.A.R. 28–19–518, Class I association with proposed or final rules of the 112(g) rule to provide adequate operating permits, complete that include a Federal mandate that may time for the state to adopt regulations applications; second, the state result in estimated costs of $100 million consistent with the Federal submitting its insignificant activities list or more to the private sector, or to state, requirements. to EPA for approval; and third, local, or tribal governments in the c. Section 112(l)—State Air Toxics finalization of an I.A. with EPA. aggregate. Programs. Requirements for approval, Through submission of this state 2. Program for Straight Delegation of specified in 40 CFR 70.4(b), encompass operating permit program the state and Section 112 Standards section 112(l)(5) approval requirements any affected local or tribal governments for delegation of section 112 standards As discussed above, EPA is proposing have elected to adopt the program as promulgated by EPA as they apply to to grant approval under section 112(l)(5) provided for under Title V of the Clean part 70 sources. Section 112(l)(5) and 40 CFR 63.91 to Kansas for its Air Act. These rules may bind state, requires that the state’s program contain program mechanism for receiving local, and tribal governments to perform adequate authorities, adequate resources certain actions and also require the delegation of all existing and future for implementation, and an expeditious private sector to perform certain duties. section 112(d) standards for both part 70 compliance schedule, which are also To the extent that the rules being and non-part 70 sources, and requirements under part 70. Kansas has proposed for approval by this action demonstrated that it meets these infrastructure programs under section will impose new requirements, sources requirements. Therefore, the EPA is 112 that are unchanged from Federal are already subject to these regulations proposing to grant approval under rules as promulgated. In addition, EPA under state law. Accordingly, no section 112(l)(5) and 40 CFR 63.91 to proposes to delegate existing standards additional costs to state, local, or tribal Kansas for its program mechanism for under 40 CFR Parts 61 and 63 for both governments, or to the private sector, receiving delegation of all existing and part 70 and non-part 70 sources. result from this action. EPA has also Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Proposed Rules 34497 determined that this proposed action proposed rule expands DoD guidance on 207.102 Policy. does not include a mandate that may class justifications and approvals to When a class justification for other result in estimated costs of $100 million state class justifications may provide for than full and open competition has been or more to state, local, or tribal award of multiple contracts extending approved, planning for competition governments in the aggregate or to the across more than one program phase. shall be accomplished consistent with private sector. B. Regulatory Flexibility Act the terms of that approval. [FR Doc. 95–16161 Filed 6–30–95; 8:45 am] List of Subjects in 40 CFR Part 70 This proposed rule is not expected to Environmental protection, have a significant economic impact on BILLING CODE 5000±04±M Administrative practice and procedure, a substantial number of small entities Air pollution control, Intergovernmental within the meaning of the Regulatory 48 CFR Part 225 relations, Operating permits, Reporting Flexibility Act, 5 U.S.C. 601, et seq., and recordkeeping requirements. because the use of class justifications Defense Federal Acquisition Authority: 42 U.S.C. 7401—7671q. and approvals is already permitted by Regulation Supplement; Tank and Dated: June 22, 1995. the Federal Acquisition Regulation. This Automotive Forging Items Dennis Grams, rule merely expands DFARS guidance to address the use of class justifications AGENCY: Department of Defense (DoD). Regional Administrator. and approvals for multiple contracts ACTION: Proposed rule with request for [FR Doc. 95–16277 Filed 6–30–95; 8:45 am] extending across more than one program comment. BILLING CODE 6560±50±P phase. An Initial Regulatory Flexibility SUMMARY: Analysis has therefore not been The Director of Defense performed. Comments are invited from Procurement is proposing to amend the DEPARTMENT OF DEFENSE small businesses and other interested Defense Federal Acquisition Regulation parties. Comments from small entities Supplement (DFARS) to add an 48 CFR Parts 206 and 207 concerning the affected DFARS subparts exception to the foreign source restrictions on the acquisition of Defense Federal Acquisition will also be considered in accordance with Section 610 of the Act. Such forgings. Regulation Supplement; Class DATES: Comments on the proposed rule Justifications and Approvals comments must be submitted separately and cite DFARS Case 95–D009 in should be submitted in writing to the AGENCY: Department of Defense (DoD). correspondence. address shown below on or before ACTION: Proposed rule with request for September 1, 1995 to be considered in C. Paperwork Reduction Act comment. the formulation of the final rule. The Paperwork Reduction Act does ADDRESSES: Interested parties should SUMMARY: The Director of Defense not apply because this proposed rule submit written comments to: Defense Procurement is proposing to amend the does not impose any new information Acquisition Regulations Council, Attn: Defense Federal Acquisition Regulation collection requirements which require Ms. Amy Williams, Supplement (DFARS) to provide the approval of OMB under 44 U.S.C. PDUSD(A&T)DP(DAR), IMD 3D139, guidance regarding the use of class 3501, et seq. 3062 Defense Pentagon, Washington DC justifications and approvals for other 20301–3062. Telefax number (703) 602– than full and open competition. List of Subjects in 48 CFR 206 and 207 0350. Please cite DFARS Case 95–D003 DATES: Comments on the proposed rule Government procurement. in all correspondence related to this should be submitted in writing to the Michele P. Peterson, issue. address shown below on or before Executive Editor, Defense Acquisition FOR FURTHER INFORMATION CONTACT: Ms. September 1, 1995, to be considered in Regulations Council. Amy Williams, (703) 602–0131. the formulation of the final rule. Therefore, 48 CFR Parts 206 and 207 SUPPLEMENTARY INFORMATION: ADDRESSES: Intersted parties should are proposed to be amended as follows: submit written comments to: Defense 1. The authority citation for 48 CFR A. Background Acquisition Regulations Council, Attn: Parts 206 and 207 is revised to read as DFARS Subpart 225.71 contains Mr. R.G. Layser, PDUSD (A&T) DP follows: foreign product restrictions which are (DAR), IMD 3D139, 3062 Defense based on policies designed to protect Pentagon, Washington DC 20301–3062. Authority: 41 U.S.C. 421 and 48 CFR Chapter 1. the defense industrial base. DFARS Telefax number (703) 602–0350. Please 225.7102 requires that certain categories cite DFARS Case 95–D009 in all PART 206ÐCOMPETITION of tank and automotive forging items be correspondence related to this issue. REQUIREMENTS acquired from domestic sources to the FOR FURTHER INFORMATION CONTACT: Mr. maximum extent practicable. The policy R.G. Layser, (703) 602–0131. 2. Section 206.303–1 is amended by in DFARS 225.7102 does not apply to adding paragraph (c) to read as follows: SUPPLEMENTARY INFORMATION: acquisitions of forgings used for 206.303±1 Requirements. commercial vehicles or noncombat A. Background support military vehicles. * * * * * This proposed rule implements a This proposed rule excludes forgings (c) When conditions warrant, a class recommendation of the Department of purchased as tank and automotive spare justification may provide for award of Defense Procurement Process Reform parts from the foreign source restrictions multiple contracts extending across Process Action Team. of DFARS 225.7102, except when it is Subsection 6.303–1 of the Federal more than one program phase. known that the parts are for use in tanks Acquisition Regulation permits PART 207ÐACQUISITION PLANNING only. This exclusion is needed to execution of justifications and approvals eliminate the potentially significant for other than full and open competition 3. Section 207.102 is added to read as administrative burden of screening tank on an individual or class basis. This follows: and automotive forging items purchased 34498 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Proposed Rules as spare parts to determine which parts 225.7102 Policy. the public regulatory conference, FRA are to be used in tanks and are, DoD requirements for the following, published a notice on February 16, 1995 therefore, subject to the foreign source including acquisitions for items (60 FR 9001) that confirmed the March restrictions. containing the following, shall be 10, 1995 deadline for comments. This acquired from domestic sources (as notice also postponed FRA’s decision B. Regulatory Flexibility Act described in the clause at 252.225–7025) whether or not to issue a supplemental This proposed rule is not expected to to the maximum extent practicable— NPRM until all comments were received have a significant economic impact on * * * * * and reviewed by FRA. a substantial number of small entities 3. Section 225.7103 is amended by Subsequent review of the comments within the meaning of the Regulatory revising paragraph (e)(1); redesignating received by FRA revealed that a number Flexibility Act, 5 U.S.C. 601, et seq., paragraph (e)(2) as (e)(3); and adding of issues require further consideration because the rule retains the policy of paragraph (e)(2) to read as follows: before they can be properly resolved. acquiring tank and automotive forging 225.7103 Exceptions. FRA therefore believes that a items from domestic sources to the supplemental NPRM would be maximum extent practicable. The new * * * * * warranted for the accident reporting exception only applies to forging items (e) * * * rulemaking. The supplemental NPRM (1) Used for commercial vehicles or purchased as tank and automotive spare will address revised documentation noncombat support military vehicles; parts, when the end use of the spare requirements for the proposed Internal (2) Purchased as tank and automotive parts is unknown. An Initial Regulatory Control Plan; calculation of damage spare parts (except when it is known the Flexibility Analysis has therefore not costs for rail equipment accidents and spare parts are for use in tanks only); or been performed. Comments are invited incidents for the determination of from small businesses and other * * * * * whether the threshold is met for FRA interested parties. Comments from small [FR Doc. 95–16160 Filed 6–30–95; 8:45 am] reporting purposes; and the proposed entities concerning the affected DFARS BILLING CODE 5000±04±M definition for the classification ‘‘worker subpart will be also considered in on duty’’ as it pertains to ‘‘contractors’’ accordance with Section 610 of the Act. and ‘‘volunteers’’ performing safety- Such comments must be submitted DEPARTMENT OF TRANSPORTATION sensitive functions. FRA is also separately and cite DFARS Case 95– considering whether or not a D003 in correspondence. Federal Railroad Administration meaningful or useful performance standard can be devised. If so, FRA will C. Paperwork Reduction Act 49 CFR Part 225 propose it in the supplemental NPRM. The Paperwork Reduction Act does [FRA Docket No. RAR±4, Notice No. 11] no apply because this proposed rule In order to give interested parties the does not impose any new information RIN 2130±AA58 opportunity to comment, FRA collection requirements which require anticipates that an informal public the approval of OMB under 44 U.S.C. Railroad Accident Reporting regulatory conference would be held in Washington, DC after issuance of the 3501, et seq. AGENCY: Federal Railroad supplemental NPRM. List of Subjects in 48 CFR Part 225 Administration (FRA), DOT. ACTION: Notice of decision to issue a FOR FURTHER INFORMATION CONTACT: Government procurement. supplemental notice of proposed Marina C. Appleton, Trial Attorney, Michele P. Peterson, rulemaking. Office of Chief Counsel, FRA, 400 Executive Editor, Defense Acquisition Seventh Street SW, Washington, DC Regulations Council. SUMMARY: In accordance with a notice 20590 (telephone 202–366–0628); or Therefore, 48 CFR Part 225 is published on December 27, 1994 (59 FR Robert Finkelstein, Chief, Systems proposed to be amended as follows: 66501), FRA held a public regulatory Support Division, Office of Safety 1. The authority citation for 48 CFR conference on January 30–February 2, Analysis, Office of Safety, FRA, 400 Part 225 is revised to read as follows: 1995, in Washington, DC to further Seventh Street SW, Washington, DC discuss issues related to its notice of 20590 (telephone 202–366–2760). Authority: 41 U.S.C. 421 and 48 CFR proposed rulemaking (NPRM) on Chapter 1. railroad accident reporting (59 FR Issued in Washington, DC, on June 27, 1995. PART 225ÐFOREIGN ACQUISITION 42880). Based on the alternative positions advanced at the conference, Jolene M. Molitoris, 2. Section 225.7102 is amended by participants requested that FRA issue a Federal Railroad Administrator. revising the introductory text to read as second or supplemental NPRM to [FR Doc. 95–16244 Filed 6–30–95; 8:45 am] follows: address those alternatives. Following BILLING CODE 4910±06±P 34499 Notices Federal Register Vol. 60, No. 127 Monday, July 3, 1995 This section of the FEDERAL REGISTER This notice imposes no new reporting ALL STATES EXCEPT ALASKA AND contains documents other than rules or or recordkeeping provisions that are HAWAIIÐContinued proposed rules that are applicable to the subject to Office of Management and public. Notices of hearings and investigations, Budget review in accordance with the Supplements: committee meetings, agency decisions and Paperwork Reduction Act of 1980 (44 Paid ...... 0450 rulings, delegations of authority, filing of U.S.C. 3587). Free ...... 4925 petitions and applications and agency Reduced ...... 2475 statements of organization and functions are This action is not a rule as defined by examples of documents appearing in this the Regulatory Flexibility Act (5 U.S.C. section. 601–612) and thus is exempt from the Meals Served in DAY CARE HOMESÐPer provisions of that Act. This notice has Meal Rates in Dollars or Fractions thereof: been determined to be exempt under DEPARTMENT OF AGRICULTURE Executive Order 12866. Breakfasts ...... 8450 Lunches and Suppers ...... 1.5375 Food and Consumer Service Definitions Supplements ...... 4575 The terms used in this notice shall Child and Adult Care Food Program; have the meanings ascribed to them in ADMINISTRATIVE REIMBURSEMENT National Average Payment Rates, Day the regulations governing the CACFP (7 Rates for Sponsoring Organizations of Day Care HomesÐPer Home/Per Month Rates Care Home Food Service Payment CFR Part 226). Rates and Administrative in Dollars: Reimbursement Rates for Sponsors of Background Day Care Homes for the Period July 1, Pursuant to Sections 4, 11 and 17 of Initial 50 day care homes ..... 71 1995±June 30, 1996 Next 150 day care homes .... 54 the National School Lunch Act (NSLA) Next 800 day care homes .... 42 (42 U.S.C. 1753, 1759a and 1766), Additional day care homes ... 37 AGENCY: Food and Consumer Service, Section 4 of the Child Nutrition Act of USDA. 1966 (42 U.S.C. 1773) and Sections 1 These rates do not include the value of ACTION commodities (or cash-in-lieu of commodities) : Notice. 226.4, 226.12 and 226.13 of the which institutions receive as additional assist- regulations governing the CACFP (7 CFR ance for each lunch or supper served to par- SUMMARY: This notice announces the Part 226), notice is hereby given of the ticipants under the program. Notices announc- annual adjustments to the national new payment rates for participating ing the value of commodities and cash-in-lieu average payment rates for meals served of commodities are published separately in the institutions. These rates shall be in FEDERAL REGISTER. in child care, outside-school-hours care effect during the period July 1, 1995– and adult day care centers, the food June 30, 1996. Pursuant to Section 12(f) of the NSLA service payment rates for meals served As provided for under the NSLA and (42 U.S.C. 1760(f)), the Department in day care homes, and the the Child Nutrition Act of 1966, all rates adjusts the payment rates for administrative reimbursement rates for in the CACFP must be prescribed participating institutions in the States of sponsors of day care homes to reflect annually on July 1 to reflect changes in Alaska and Hawaii. The new payment changes in the Consumer Price Index. the Consumer Price Index for the most rates for Alaska are as follows: ALASKA Further adjustments are made to these recent 12-month period. In accordance rates to reflect the higher costs of with this mandate, the Department last ALASKA providing meals in the States of Alaska published the adjusted national average and Hawaii. The adjustments contained payment rates for centers, the food AlaskaÐMeals Served in CENTERSÐPer Meal Rates in Dollars or Fractions thereof: in this notice are required by the service payment rates for day care statutes and regulations governing the homes and the administrative Child and Adult Care Food Program reimbursement rates for sponsors of day Breakfasts: (CACFP). Paid ...... 28 care homes on July 6, 1994 at 59 FR Free ...... 1.5775 EFFECTIVE DATE: July 1, 1995. 34590 (for the period July 1, 1994–June Reduced ...... 1.2775 FOR FURTHER INFORMATION CONTACT: 30, 1995). The payment rates for the Lunches and Suppers: 1 Robert M. Eadie, Branch Chief, Policy period July 1, 1995–June 30, 1996 are: Paid ...... 28 and Program Development Branch, Free ...... 2.91 Child Nutrition Division, Food and ALL STATES EXCEPT ALASKA AND Reduced ...... 2.51 Consumer Service, USDA, Alexandria, HAWAII Supplements: Paid ...... 0725 Virginia 22302, (703) 305–2620. Free ...... 8000 SUPPLEMENTARY INFORMATION: This Meals Served in CENTERSÐPer Meal Rates Reduced ...... 4000 program is listed in the Catalog of in Dollars or Fractions thereof: Federal Domestic Assistance under No. AlaskaÐMeals Served in DAY CARE 10.558 and is subject to the provisions Breakfasts: HOMESÐPer Meal Rates in Dollars or of Executive Order 12372, which Paid ...... $.1950 Fractions thereof: Free ...... 9975 requires intergovernmental consultation Reduced ...... 6975 with State and local officials. (See 7 CFR Lunches and Suppers: 1 Breakfasts ...... 1.33 Part 3015, Subpart V, and final rule Paid ...... 1725 Lunches and Suppers ...... 2.4925 related notice published at 48 FR 29114, Free ...... 1.7950 Supplements ...... 7425 June 24, 1983.) Reduced ...... 1.3950 34500 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices ALASKAÐContinued May 1995) in the food away from home changes in the Producer Price Index for series of the Consumer Price Index for Fluid Milk Products. These payments All Urban Consumers, published by the and rates are in effect from July 1, 1995 AlaskaÐADMINISTRATIVE REIMBURSE- Bureau of Labor Statistics of the through June 30, 1996. MENT Rates for Sponsoring Organizations Department of Labor. The changes in the EFFECTIVE DATE: July 1, 1995. of Day Care Homes-Per Home/Per Month administrative reimbursement rates for FOR FURTHER INFORMATION CONTACT: Rates in Dollars: sponsoring organizations of day care Robert M. Eadie, Chief, Policy and homes reflect a 3.18 percent increase Program Development Branch, Child Initial 50 day care homes ..... 115 during the 12-month period May 1994 Next 150 day care homes .... 88 Nutrition Division, FCS, USDA, to May 1995 (from 147.5 in May 1994 Next 800 day care homes .... 69 Alexandria, Virginia 22302, (703) 305– to 152.2 in May 1995) in the series for Additional day care homes ... 60 2620. all items of the Consumer Price Index 1 These rates do not include the value of for All Urban Consumers, published by SUPPLEMENTARY INFORMATION: These commodities (or cash-in-lieu of commodities) the Bureau of Labor Statistics of the programs are listed in the Catalog of which institutions receive as additional assist- Federal Domestic Assistance under No. ance for each lunch or supper served to par- Department of Labor. ticipants under the program. Notices announc- The total amount of payments 10.553, No. 10.555 and No. 10.556 and ing the value of commodities and cash-in-lieu available to each State agency for are subject to the provisions of of commodities are published separately in the distribution to institutions participating Executive Order 12372, which requires FEDERAL REGISTER. in the program is based on the rates intergovernmental consultation with The new payment rates for Hawaii are contained in this notice. State and local officials. (See 7 CFR part as follows: 3015, subpart V, and the final rule Authority: Sections 4(b)(2), 11(a), 17(c) and 17(f)(3)(B) of the National School Lunch Act, related notice published at 48 FR 29114, HAWAII as amended (42 U.S.C. 1753, 1759(a), 1766) June 24, 1983.) and section 4(b)(1)(B) of the Child Nutrition This action is not a rule as defined by HawaiiÐMeals Served in CENTERSÐPer Act of 1966, as amended (42 U.S.C. 1773b). the Regulatory Flexibility Act (5 U.S.C. Meal Rates in Dollars or Fractions thereof: Dated: June 26, 1995. 601–612) and thus is exempt from the William Ludwig, provisions of that Act. This notice has Breakfasts: Administrator. been determined to be exempt under Paid ...... 2175 Executive Order 12866. In accordance Free ...... 1.1575 [FR Doc. 95–16271 Filed 6–30–95; 8:45 am] BILLING CODE 3410±30±P with the Paperwork Reduction Act of Reduced ...... 8575 1980 (44 U.S.C. 3507), no new Lunches and Suppers: 1 Paid ...... 2025 recordkeeping or reporting requirements Free ...... 2.1025 National School Lunch, Special Milk, have been included that are subject to Reduced ...... 1.7025 and School Breakfast Programs; approval from the Office of Management Supplements: National Average Payments/Maximum and Budget. Paid ...... 0525 Reimbursement Rates Free ...... 5775 Background Reduced ...... 2875 AGENCY: Food and Consumer Service, Special Milk Program for Children USDA. Pursuant to section 3 of the Child HawaiiÐMeals Served in DAY CARE ACTION: Notice. HOMESÐPer Meal Rates in Dollars or Nutrition Act of 1966, as amended (42 Fractions thereof: SUMMARY: This Notice announces the U.S.C. 1772), the Department announces annual adjustments to: (1) The ‘‘national the rate of reimbursement for a half-pint Breakfasts ...... 9775 average payments,’’ the amount of of milk served to noneedy children in a Lunches and Suppers ...... 1.80 money the Federal Government school or institution which participates Supplements ...... 5375 provides States for lunches, meal in the Special Milk Program for supplements and breakfasts served to Children. This rate is adjusted annually HawaiiÐADMINISTRATIVE REIMBURSE- children participating in the National to reflect changes in the Producer Price MENT Rates for Sponsoring Organizations School Lunch and School Breakfast Index for Fluid Milk Products (Code of Day Care HomesÐPer Home/Per Month Programs; (2) the ‘‘maximum 0231), published by the Bureau of Labor Rates in Dollars: reimbursement rates,’’ the maximum per Statistics of the Department of Labor. lunch rate from Federal funds that a For the period July 1, 1995 to June 30, Initial 50 day care homes ..... 83 State can provide a school food 1996, the rate of reimbursement for a Next 150 day care homes .... 63 authority for lunches served to children half-pint of milk served to a nonneedy Next 800 day care homes .... 50 participating in the National School child in a school or institution which Additional day care homes ... 44 Lunch Program; and (3) the rate of participates in the Special Milk Program 1 These rates do not include the value of reimbursement for a half-pint of milk is 11.25 cents. This reflects an increase commodities (or cash-in-lieu of commodities) served to nonneedy children in a school of 1.4 percent in the Producer Price which institutions receive as additional assist- ance for each lunch or supper served to par- or institution which participates in the Index for Fluid Milk Products (Code ticipants under the program. Notices announc- Special Milk Program for Children. The 0231) from May 1994 to May 1995 (from ing the value of commodities and cash-in-lieu payments and rates are prescribed on an a level of 121.1 in May 1994 to 122.8 in of commodities are published separately in the annual basis each July. The annual May 1995). FEDERAL REGISTER. payments and rates adjustments for the As a reminder, schools or institutions The changes in the national average National School Lunch and School with pricing programs which elect to payment rates and the food service Breakfast Programs reflect changes in serve milk free to eligible children payment rates for day care homes reflect the Food Away From Home series of the continue to receive the average cost of a 2.27 percent increase during the 12- Consumer Price Index for All Urban a half-pint of milk (the total cost of all month period May 1994 to May 1995 Consumers. The annual rate adjustment milk purchased during the claim period (from 145.3 in May 1994 to 148.6 in for the Special Milk Program reflects divided by the total number of Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices 34501 purchased half-pints) for each half-pint ensure equitable disbursement of States—19.25 cents, maximum rate served to an eligible child. Federal funds to school food authorities. 25.25 cents; Alaska—30.00 cents, maximum rate 39.75 cents; Hawaii National School Lunch and School Meal Supplement Payments in 22.25 cents, maximum rate 29.25 cents. Breakfast Programs Afterschool Care Programs Section 11 National Average Payment Pursuant to sections 11 and 17A of Section 17A (42 U.S.C. 1766a) of the Factors the National School Lunch Act, (42 National School Lunch Act authorizes U.S.C. 1759a and 1766a), and section 4 elementary and secondary schools to be Contiguous States—free lunch— of the Child Nutrition Act of 1966, (42 reimbursed for meal supplements as 162.25 cents, reduced price lunch U.S.C. 1773), the Department annually part of the National School Lunch 122.25 cents; Akaska—free lunch announces the adjustments to the Program if they meet the following 263.00 cents, reduced price lunch National Average Payment Factors and requirements: (1) Operate school lunch 223.00 cents; Hawaii—free lunch 190.00 to the maximum Federal reimbursement programs under the National School cents, reduced price lunch 150.00 cents. rates for meals and supplements served Lunch Act; (2) sponsor afterschool care programs; and (3) were participating in Meal Supplements in Afterschool Care to children participating in the National Programs School Lunch Program. Adjustments are the Child and Adult Care Food Program prescribed each July 1, based on as of May 15, 1989. The reimbursement The payments are: Contiguous changes in the Food Away From Home rates for supplements served in States—free supplement—49.25 cents, series of the Consumer Price Index for Afterschool Care Programs under the reduced price supplement—24.75 cents, All Urban Consumers, published by the National School Lunch Program are the paid supplement—4.50 cents; Alaska— Bureau of Labor Statistics of the same as the rates for supplements free supplement—80.00 cents, reduced Department of Labor. The changes in the served in centers under the Child and price supplement—40.00 cents, paid national average payment rates for Adult Care Food Program. supplement—7.25 cents; Hawaii—free schools and residential child care Breakfast Payment Factors supplement—57.75 cents, reduced price institutions for the period July 1, 1995 Section 4 of the Child Nutrition Act supplement—28.75 cents, paid through June 30, 1996 reflect a 2.27 of 1966 establishes National Average supplement—5.25 cents. percent increase in the Price Index Payment Factors for free, reduced price School Breakfast Program Payments during the 12-month period May 1994 and paid breakfasts served under the to May 1995 (from a level of 145.3 in School Breakfast Program and For schools ‘‘not in severe need’’ the May 1994 to 148.6 in May 1995). additional payments for schools payments are: Contiguous States—free breakfast Lunch Payment Factors determined to be in ‘‘severe need’’ because they serve a high percentage of 99.75 cents, reduced price breakfast Section 4 of the National School needy children. 69.45 cents, paid breakfast 19.50 cents; Lunch Act (42 U.S.C. 1753) provides Alaska—free breakfast 157.75 cents, general cash for food assistance Revised Payments reduced price breakfast 127.75 cents, payments to States to assist schools in The following specific section 4 and paid breakfast 28.00 cents; Hawaii—free purchasing food. There are two section section 11 National Average Payment breakfast 115.75 cents, reduced price 4 National Average Payment factors for Factors and maximum reimbursement breakfast 85.75 cents, paid breakfast lunches served under the National rates are in effect through June 30, 1996. 21.75 cents. School Lunch Program. The lower Due to a higher cost of living, the For schools in ‘‘severe need’’ the payment factor applies to lunches average payments and maximum payments are: served by school food authorities in reimbursements for Alaska and Hawaii Contiguous States—free breakfast which less than 60 percent of the are higher than those for all other States. 118.50 cents, reduced price breakfast lunches served in the school lunch The District of Columbia, Virgin Islands, 88.50 cents, paid breakfast 19.50 cents; program during the second preceding Puerto Rico, Guam, American Samoa, Alaska—free breakfast 188.25 cents, school year were served free or at a the Commonwealth of the Northern reduced price breakfast 158.25 cents, reduced price. The higher payment Marianas, the Federated States of paid breakfast 28.00 cents; Hawaii—free factor applies to lunches served by Micronesia, the Republic of the breakfast 137.75 cents, reduced paid school food authorities in which 60 Marshalls, and the Republic of Palau breakfast 107.75 cents, paid breakfast percent or more of the lunches served use the figures specified for the 21.75 cents. during the second preceding school year contiguous States. Payment Chart were served free or at a reduced price. National School Lunch Program To supplement these section 4 Payments The following chart illustrates: The payments, section 11 of the National lunch National Average Payment School Lunch Act provides special cash Section 4 National Average Payment Factors with the sections 4 and 11 assistance payments to aid schools in Factors already combined to indicate the per providing free and reduced price In school food authorities which meal amount; the maximum lunch lunches. The section 11 National served less than 60 percent free and reimbursement rates; the reimbursement Average Payment Factor for each reduced price lunches in School Year rates for meal supplements served in reduced price lunch served is set at 40 1993–94, the payments are: Contiguous afterschool care programs; the breakfast cents less than the factor for each free States—17.25 cents, maximum rate National Average Payment Factors lunch. 25.25 cents; Alaska—28.00 cents, including ‘‘severe need’’ schools; and As authorized under sections 8 and 11 maximum rate 39.75 cents; Hawaii— the milk reimbursement rate. All of the National School Lunch Act (42 20.25 cents, maximum rate 29.25 cents. amounts are expressed in dollars or U.S.C. 1757, 1759a), maximum In school food authorities which fractions thereof. The payment factors reimbursement rates for each type of served 60 percent or more free and and reimbursement rates used for the lunch are prescribed by the Department reduced price lunches in School Year District of Columbia, Virgin Islands, in this Notice. These maximum rates 1993–94, payments are: Contiguous Puerto Rico and the Pacific Territories 34502 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices are those specified for the contiguous States. SCHOOL PROGRAMSÐMEALS AND MILK PAYMENTS TO STATES AND SCHOOL FOOD AUTHORITIES [Expressed in dollars or fractions thereofÐeffective from July 1, 1995±June 30, 1996] 1 Less than 60 60 percent or Maximum National School Lunch Program percent more rate Contiguous States: Paid ...... $0.1725 $0.1925 $0.2525 Reduced price ...... 1.3950 1.4150 1.5650 Free ...... 1.7950 1.8150 1.9650 Alaska: Paid ...... 28 .30 .3975 Reduced price ...... 2.51 2.53 2.77 Free ...... 2.91 2.93 3.17 Hawaii: Paid ...... 2025 .2225 .2925 Reduced price ...... 1.7025 1.7225 1.8950 Free ...... 2.1025 2.1225 2.2950 Non-Severe School Breakfast Program Need Severe Need Contiguous States: Paid ...... $0.1950 ...... $0.1950 Reduced price ...... 6975 ...... 8850 Free ...... 9975 ...... 1.1850 Alaska: Paid ...... 28 ...... 28 Reduced price ...... 1.2775 ...... 1.5825 Free ...... 1.5775 ...... 1.8825 Hawaii: Paid ...... 2175 ...... 2175 Reduced price ...... 8575 ...... 1.0775 Free ...... 1.1575 ...... 1.3775 Special Milk Program All milk Paid milk Free milk Pricing Programs without Free Option ...... $.1125 N/A N/A Pricing Programs with Free Option ...... N/A $.1125 (2) Nonpricing programs ...... 1125 N/A N/A Supplements Served in Afterschool Care Programs Contiguous States: Paid ...... $.0450 ...... Reduced price ...... 2475 ...... Free ...... 4925 ...... Alaska: Paid ...... 0725 ...... Reduced price ...... 4000 ...... Free ...... 8000 ...... Hawaii: Paid ...... 0525 ...... Reduced price ...... 2875 ...... Free ...... 5775 ...... 1 Payments listed for Free and Reduced Price Lunches include both sections 4 and 11 funds. 2 Average cost 1¤2 pint milk. Authority: Sec. 4, 8, 11 and 17A of the Forest Service Forest System lands. The proposed National School Lunch Act, as amended, (42 expansion is located adjacent to the U.S.C. 1753, 1757, 1759a, 1766a) and Snowcreek Golf Course Expansion Town of Mammoth Lakes, within the sections 3 and 4(b) of the Child Nutrition AGENCY: Forest Service, USDA. boundary of the Inyo National Forest, Act, as amended (42 U.S.C. 1772 and 42 Mono County, California. The EIS will ACTION: Notice of intent to prepare an U.S.C. 1773(b)). evaluate at least four alternatives, the environmental impact statement. Dated: June 27, 1995. expansion as proposed, land exchange William E. Ludwig, SUMMARY: The Forest Service, between the Forest Service and the Administrator. Department of Agriculture, will prepare proponent, expansion of the golf course [FR Doc. 95–16272 Filed 6–30–95; 8:45 am] a environmental impact statement (EIS) on private lands, and denial of the BILLING CODE 3410±30±P for the proposed expansion of the Special-Use Application (the No Action Snowcreek Golf Course on National alternative). In addition, the agency Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices 34503 gives notice of the environmental building, and storage/maintenance The Forest Service believes, at this analysis and decision making process facilities. The golf course will be open early stage, it is important to give that will occur on the proposal so that to the public for a four month, 120-day reviewers notice of several court rulings interested and affected people are aware season from June 10 to October 10. The related to public participation in the of how they may participate and expected use is estimated at 25,000 environmental review process. First, contribute to the final decision. rounds of golf. Irrigation for this project reviewers of draft environmental impact DATES: Comments concerning the scope will be with a combination of reclaimed statements must structure their of the analysis must be received by July wastewater and pumped ground water participation in the environmental 31, 1995. from private property. Estimated review of the proposal so that it is ADDRESSES: Submit written comments irrigation water demand is 390,000 meaningful and alerts an agency to the and suggestions concerning the gallons per day during the peak growing reviewer’s position and contentions. proposed Snowcreek Golf Course season. Turf management will be guided Vermont Yankee Nuclear Power Corp. v. Expansion to Dennis Martin, Forest by the objectives of Integrated Plant NRDC, 435 U.S. 519, 533 (1978). Also, Supervisor, Inyo National Forest, 873 Management, which is defined as the environmental objections that could be North Main Street, Bishop, California use of pest and environmental raised at the draft environmental impact 93514, ATTN: Snowcreek. information and pest control methods to statement stage but that are not raised FOR FURTHER INFORMATION CONTACT: help prevent unacceptable levels of pest until after completion of the final Direct questions about this damage. The tools of pest management environmental impact statement may be environmental impact statement to Bob include cultural, mechanical, physical, waived or dismissed by the courts. City Hawkins, Winter Sports Specialist, Inyo biological, and chemical methods of of Angoon v. Hodel, 803 F.2d 1016, National Forest, 873 North Main Street, pest control. 1022 (9th Cir. 1986) and Wisconsin Bishop, California 93514 or telephone Public participation will be especially Heritages, Inc. v. Harris, 490 F. Supp. (619) 873–2400. important at several points during the 1334, 1338 (E.D. Wis. 1980). Because of these court rulings, it is very important SUPPLEMENTARY INFORMATION: An analysis. The first point is the scoping that those interested in this proposed application for the expansion of the process (40 CFR 1501.7). The Forest action participate by the close of the 45- Snowcreek Golf Course was first Service has and is seeking information, day comment period so that substantive submitted by Dempsey Construction comments, assistance from Federal, comments and objections are made Corporation in 1990. An Environmental State, and local agencies and other available to the Forest Service at a time Assessment and Decision Notice/ individuals or organizations who may when it can meaningfully consider them Finding of No Significant Impact be interested in or affected by the and respond to them in the final approving the proposal were issued by proposed action. This input will be used environmental impact statement. the Forest Supervisor on February 1, in preparation of the draft EIS. The scoping process includes: To assist the Forest Service in 1991. That decision was appealed identifying and considering issues and pursuant to regulations at 36 CFR part 1. Identifying potential issues. 2. Identifying issues to be analyzed in concerns on the proposed action, 217. During the appeals process it depth. comments on the draft EIS should be as became apparent that the Forest 3. Eliminating insignificant issues or specific as possible. It is also helpful if Supervisor did not have the authority to those which have been covered by a comments refer to specific pages or approve construction of a golf course, as relevant previous environmental chapters of the draft statement. that authority is reserved by the Chief of analysis. Comments may also address the the Forest Service. The original decision 4. Exploring additional alternatives. adequacy of the draft EIS or the merits was withdrawn by the Forest Supervisor 5. Identifying potential environmental of the alternatives formulated and on November 3, 1992. The application effects of the proposed action and discussed in the statement. Reviewers was forwarded to the Chief for review. alternatives (i.e., direct, indirect, and may wish to refer to the Council on The Chief denied the application based cumulative effects and connected Environmental Quality Regulations for on policy on August 24, 1994. actions). implementing the procedural provisions Dempsey Construction Corporation 6. Determining potential cooperating of the National Environmental Policy re-applied for the use on December 13, agencies and task assignments. Act at 40 CFR 1503.3 in addressing 1994. The new application contained Mailings to individuals and agencies these points. additional information regarding how that participated in the previous After the comment period ends on the the proposed use conformed with Forest planning efforts will provide them with draft EIS, the comments will be Service Policy. Based on this new information about the proposed project. analyzed and considered by the Forest information, the application was Public meetings, if held, will be Service in preparing the final accepted for review by the Chief on May announced locally. Federal, State, and environmental impact statement. The 25, 1995. Acceptance of the application local agencies, user groups, and other final EIS is expected to be completed by acknowledges that the expansion of the organizations who would be interested December 1995. The final EIS is golf course on National Forest System in the study will be invited to expected to be completed by December lands is consistent with agency policy participate in scoping the issues that 1995. The Forest Service is required to as well as statutory mission. The Chief should be considered. respond in the final EIS to the also delegated the authority to make a The draft EIS is scheduled to be comments received (40 CFR 1503.4). final decision on the proposal to the completed by August 1995. The The responsible official will consider Inyo National Forest Supervisor. comment period on this draft the comments, responses, and The proposal to expand the existing environmental impact statement will be environmental consequences discussed golf course includes adding an 45 days from the date the in the final EIS and applicable laws, additional 9 holes, as well as the Environmental Protection Agency’s regulations, and policies in making his infrastructure needed to support the notice of availability appears in the decision on the proposal. activity, such as irrigation systems, Federal Register. It is very important The decision will either be approval decorative water storage ponds, driving that those interested in the proposal of the proposal as submitted, approval range, parking lot, clubhouse/pro-shop participate at that time. of the proposal as modified, or denial of 34504 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices the proposal (No Action). If the proposal Dated: June 26, 1995. DEPARTMENT OF COMMERCE is approved, a special use permit would Dan Totheroh, be issued for the construction and Acting Forest Supervisor. Economic Development Administration operation of a golf course. The [FR Doc. 95–16263 Filed 6–30–95; 8:45 am] responsible official will document the BILLING CODE 3410±11±M Notice of Petitions by Producing Firms decision and rationale in the Record of for Determination of Eligibility to Apply Decision. The decision will be subject to for Trade Adjustment Assistance appeal under 36 CFR 215 or regulations applicable at the time of the decision. AGENCY: Economic Development Dennis Martin, Forest Supervisor, Inyo Administration (EDA), Department of National Forest, 873 N. Main, Bishop, Commerce. California 93514 is the responsible ACTION: To give firms an opportunity to official for review of the proposal. comment. Petitions have been accepted for filing on the dates indicated from the firms listed below. LIST OF PETITION ACTION BY TRADE ADJUSTMENT ASSISTANCE FOR PERIOD 05/16/95±06/16/95 Date peti- Firm name Address tion accept- product ed QUALI-CAST FOUNDRY, INC ...... 102 SEARS ROAD, CHEHALIS, WA 06/01/95 PUMP AND VALVE HOUSINGS. 98532. THE GLASS EYE STUDIO CO ...... 600 NORTHWEST 40TH STREET, SE- 06/01/95 DECORATIVE GLASS. ATTLE, WA 98107. EPRO, INC ...... 156 EAST BROADWAY, 06/01/95 HAND MADE CUSTOM CERAMIC WESTERVILLE, OH 43081. TITLE. WORLD CLOCK COMPANY ...... 2211 LAPEER ROAD, FLINT, MI 48503± 06/01/95 DECORATIVE WALL CLOCKS. 4222. VIRGINIA APPAREL CORPORATION ...... 721 NORTH MAIN STREET, ROCKY 06/07/95 MEN'S AND LADIES PANTS AND MOUNT, VA 24151. SHORTS MADE OF COTTON AND COTTON BLEND MATERIALS. I.T.B. INC., DBA COYOTE SPORTS, INC 136 HAKL STREET, TABOR, SD 57063 06/08/95 GOLF BAGS. J.W. BRAY COMPANY, INC ...... 305 EAST HOWTHORNE ST, BOX 189, 06/12/95 HOUSE SLIPPERS OF FABRIC. DALTON, GA 30720. HAMILTON DIGITAL CONTROLS, INC .... 2118 BEACHGROVE PLACE, UTICA, 06/13/95 MAGNETIC TAPE RECORDING NY 13501±1798. HEADS. F.H.M. CLOTHING MANUFACTURING 35 EAST ELIZABETH AVENUE, LIN- 06/15/95 MEN'S AND BOY'S JACKETS, TROU- CO., INC. DEN, NJ 07036. SERS, AND SUITS. UNIFLAIR, INC ...... 1501 GUILFORD AVENUE, BALTI- 06/15/95 WOMEN'S AND MEN'S TOP, BOTTOM, MORE, MD 21202. DRESSES, AND LAB COATS. GENERAL MACHINE WORKS, INC ...... 515 PROSPECT STREET, PO BOX 546, 06/15/95 MACHINED PARTS FROM BAR YORK, PA 17405. STOCK, SHEET METAL AND PLAS- TIC. TRIMBLEHOUSE CORPORATION ...... 4658 S. OLD PEACHTREE ROAD, 06/15/95 ELECTRICAL LIGHTING OF BRASS NORCROSS, GA 30071. AND OTHER METALS. MARWIN CONTROLS, INC ...... 11567 GOLDCOAST DRIVE, CIN- 06/15/95 ACTUATORS AND 3-PIECE BALL CINNATI, OH 45249. VALVES. TIMBER LAKE CHEESE COMPANY, INC P.O. BOX A, TIMBER LAKE, SD 57656 . 06/16/95 COLBY CHEESE. The petitions were submitted request for a hearing must be received Dated: June 26, 1995. pursuant to Section 251 of the Trade Act by the Trade Adjustment Assistance Lewis R. Podolske, of 1974 (19 U.S.C. 2341). Consequently, Division, Room 7023, Economic Acting Director, Trade Adjustment Assistance the United States Department of Development Administration, U.S. Division. Commerce has initiated separate Department of Commerce, Washington, [FR Doc. 95–16241 Filed 6–30–95; 8:45 am] investigations to determine whether D.C. 20230, no later than the close of BILLING CODE 3510±24±M increased imports into the United States business of the tenth calendar day of articles like or directly competitive following the publication of this notice. Bureau of Export Administration with those produced by each firm The Catalog of Federal Domestic contributed importantly to total or Assistance official program number and partial separation of the firm’s workers, title of the program under which these [Docket No. 1107±01] or threat thereof, and to a decrease in petitions are submitted is 11.313, Trade sales or production of each petitioning Decision and Order firm. Adjustment Assistance. In the Matter of: American Technology Any party having a substantial Trading Group, 44 Montgomery Street, Suite interest in the proceedings may request 500, San Francisco, California 94104, a public hearing on the matter. A Respondent. Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices 34505 On August 27, 1991, the Office of procedure, including, but not limited to, Bureau of Export Administration; or (ii) Export Enforcement, Bureau of Export distribution licenses, are hereby order, buy, receive, use, sell, deliver, Administration, United States revoked. store, dispose of, forward, transport, Department of Commerce (Department), Second, American Technology finance, or otherwise service or issued a Charging Letter against Trading Group, 44 Montgomery Street, participate: (a) In any transaction which American Technology Trading Group Suite 500, San Francisco, California may involve any commodity or (ATTG) alleging that ATTG violated 94104, and all its successors and technical data exported or to be Sections 787.4(a), 787.5(a)(1)(ii), and assigns, and officers, representatives, exported from the United States; (b) in 787.6 of the Export Administration agents, and employees, shall, for a any reexport thereof; or (c) in any other Regulations (currently codified at 15 period of ten years from the date of this transaction which is subject to the CFR Parts 768–799 (1995)) (the Order, be denied all privileges of Export Administration Regulations, if Regulations), issued pursuant to Section participating, directly or indirectly, in the person denied export privileges may 13(c) of the Export Administration Act any manner or capacity, in any obtain any benefit or have any interest of 1979, as amended (50 U.S.C.A. app. transaction in the United States or in, directly or indirectly, any of these §§ 2401–2420 (1991, Supp. 1993, and abroad involving any commodity or transactions. Pub. L. No. 103–277, July 5, 1994)) (the technical data exported or to be Third, that the Charging Letter, the Act).1 The Charging Letter alleged that: exported from the United States, and Answer, the Consent Agreement, and (1) On 15 separate occasions between subject to the Regulations. this Order shall be made available to the on or about August 27, 1986 through on A. Without limiting the generality of public. A copy of this Order shall be or about July 29, 1987, ATTG exported the foregoing, participation, either in the served on the Department and ATTG U.S.-origin commodities contrary to the United States or abroad, shall include and published in the Federal Register. terms of a distribution license, in participation, directly or indirectly, in This Order, which constitutes the violation of Section 787.6 of the any manner or capacity: (i) As a party final agency action in this matter, is Regulations; or as a representative of a party to any effective immediately. (2) In connection with the 15 exports export license application submitted to Entered this 26th day of June, 1995. described above, ATTG made false the Department; (ii) in preparing or William A. Reinsch, statements of material fact to a U.S. filing with the Department any export agency in connection with the license application or request for Under Secretary for Export Administration. preparation, submission, or use of an reexport authorization, or any document [FR Doc. 95–16219 Filed 6–30–95; 8:45 am] export control document, in violation of to be submitted therewith; (iii) in BILLING CODE 3510±DT±M Section 787.5(a)(1)(ii) of the obtaining from the Department or using Regulations; and any validated or general export license, [Docket No. 1107±04] (3) With respect to each of the 15 reexport authorization, or other export exports described above, ATTG made control document; (iv) in carrying on Decision and Order the exports with knowledge or reason to negotiations with respect to, or in know that the exports were being made receiving, ordering, buying, selling, In the Matter of: Mario Brero, Apartment contrary to a prior representation ATTG 87, Route de Bougy 1170, Aubonne, Vaud, delivering, storing, using, or disposing Switzerland, Respondent. made to the Department, in violation of of, in whole or in part, any commodities Section 787.4(a) of the Regulations. or technical data exported or to be On August 27, 1991, the Office of ATTG answered the Charging Letter, exported from the United States and Export Enforcement, Bureau of Export denying the allegations set forth therein. subject to the Regulations; and (v) in Administration, United States After the Answer was filed, the financing, forwarding, transporting, or Department of Commerce (Department), Department and ATTG entered into a other servicing of such commodities or issued a Charging Letter against Mario Consent Agreement pursuant to Section technical data. Brero (Brero) alleging that Brero violated 787.17(a) of the Regulations whereby B. After notice and opportunity for Sections 787.2, 787.4(a), and 787.6 of they agreed to settle this matter in comment as provided in Section the Export Administration Regulations accordance with the terms and 788.3(c) of the Regulations, any person, (currently codified at 15 C.F.R. Parts conditions set forth therein; firm, corporation, or business 768–799 (1995)) (the Regulations), The Administrative Law Judge having organization related to ATTG by issued pursuant to Section 13(c) of the recommended that I approve the terms affiliation, ownership, control, or Export Administration Act of 1979, as of the Consent Agreement; and position of responsibility in the conduct amended (50 U.S.C.A. app. §§ 2401– After reading and approving those of trade or related services may also be 2420 (1991, Supp. 1993, and Pub. L. No. terms; subject to the provisions of this Order. 103–277, July 5, 1995)) (the Act).1 The It is therefore ordered, C. As provided by Section 787.12(a) of Charging Letter alleged that: First, all outstanding individual the Regulations, without prior (1) On 15 separate occasions between validated licenses in which American disclosure of the facts to and specific on or about August 27, 1986 through on Technology Trading Group appears or authorization of the Office of Exporter or about July 29, 1987, Brero disposed participates, in any manner or capacity, Services, in consultation with the Office of U.S.-origin commodities contrary to are hereby revoked and shall be of Export Enforcement, no person may the terms of a distribution license, in returned forthwith to the Office of directly or indirectly, in any manner or violation of Section 787.6 of the Exporter Services for cancellation. capacity: (i) Apply for, obtain, or use Regulations; Further, all of ATTG’s privileges of any license, Shipper’s Export (2) With respect to each of the 15 participating, in any manner or Declaration, bill of lading, or other exports described above, Brero capacity, in any special licensing export control document relating to an transferred the U.S.-origin commodities export or reexport of commodities or 1 The Act expired on August 20, 1994. Executive technical data by, to, or for another 1 The Act expired on August 20, 1994. Executive Order No. 12924 (59 FR 43437, August 23, 1994) Order No. 12924 (59 F.R. 43437, August 23, 1994) continued the Regulations in effect under the person then subject to an order revoking continued the Regulations in effect under the International Emergency Economic Powers Act (50 or denying his export privileges or then International Emergency Economic Powers Act (50 U.S.C.A. §§ 1701–1706 (1991)). excluded from practice before the U.S.C.A. §§ 1701–1706 (1991)). 34506 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices to third parties with knowledge or reexport authorization, or other export This Order, which constitutes the reason to know that those transfers were control document; (iv) in carrying on final agency action in this matter, is being made contrary to a prior negotiations with respect to, or in effective immediately. representation Brero made to the receiving, ordering, buying, selling, Entered this 26 day of June, 1995. Department, in violation of Section delivering, storing, using, or disposing William A. Reinsch, 787.4(a) of the Regulations; and of, in whole or in part, any commodities Under Secretary for Export Administration. (3) With respect to each of the 15 or technical data exported or to be exports described above, Brero caused exported from the United States and [FR Doc. 95–16220 Filed 6–30–95; 8:45 am] or induced another person to make false subject to the Regulations; and (v) in BILLING CODE 3510±DT±M statements of material fact to a U.S. financing, forwarding, transporting, or agency in connection with the other servicing of such commodities or [Docket No. 2115±01±02] preparation, submission, or use of an technical data. export control document, in violation of Decision and Order B. After notice and opportunity for Section 787.2 of the Regulations. Brero cooperated with the Department comment as provided in Section In the Matter of Elizabeth Drive in its investigation into the matters 788.3(c) of the Regulations, any person, Liquidation Corporation, formerly known as Imagraph Corporation, 11 Elizabeth Drive, alleged in the Charging Letter and firm, corporation, or business organization related to Brero by Chelmsford, Massachusetts 01824, answered the Charging Letter, denying Respondent. the allegations set forth therein. After affiliation, ownership, control, or the Answer was filed, the Department position of responsibility in the conduct On November 13, 1992, the Office of and Brero entered into a Consent of trade or related services may also be Export Enforcement, Bureau of Export Agreement pursuant to Section subject to the provisions of this Order. Administration, United States 787.17(a) of the Regulations whereby C. As provided by Section 787.12(a) of Department of Commerce (Department), they agreed to settle this matter in the Regulations, without prior issued a charging letter against Elizabeth accordance with the terms and disclosure of the facts to and specific Drive Liquidation Corporation, formerly conditions set forth therein; authorization of the Office of Exporter doing business as Imagraph Corporation The Administrative Law Judge having Services, in consultation with the Office (Elizabeth Drive), alleging that Elizabeth recommended that I approve the terms of Export Enforcement, no person may Drive violated Sections 787.5(a) and of the Consent Agreement; and directly or indirectly, in any manner or 787.6 of the Export Administration After reading and approving those capacity: (i) apply for, obtain, or use any Regulations (currently codified at 15 terms; license, Shipper’s Export Declaration, CFR Parts 768–799 (1995)) (the It is therefore ordered, bill of lading, or other export control Regulations), issued pursuant to Section First, all outstanding individual document relating to an export or 13(c) of the Export Administration Act validated licenses in which Mario Brero reexport of commodities or technical of 1979, as amended (50 U.S.C.A. app. appears or participates, in any manner data by, to, or for another person then §§ 2401–2420 (1991, Supp. 1993, and or capacity, are hereby revoked and subject to an order revoking or denying Pub. L. No. 103–277, July 5, 1994)) (the 1 shall be returned forthwith to the Office his export privileges or then excluded Act) alleging that: of Exporter Services for cancellation. from practice before the Bureau of (1) During the period from further, all of Brero’s privileges of Export Administration; or (ii) order, approximately August 31, 1987 through participating, in any manner or buy, receive, use, sell, deliver, store, on or about December 5, 1987, Elizabeth capacity, in any special licensing dispose of, forward, transport, finance, Drive exported U.S.-origin technical procedure, including, but not limited to, or otherwise service or participate: (a) in data by releasing the technical data in distribution licenses, are hereby any transaction which may involve any the United States to a person that was revoked. commodity or technical data exported not a citizen or permanent resident of Second, Mario Brero, Apartment 87, or to be exported from the United States; the United States, without the validated Route de Bougy 1170, Aubonne, Vaud, (b) in any reexport thereof; or (c) in any license required by Section 772.1(b) of Switzerland, shall, for a period of ten other transaction which is subject to the the Regulations, in violation of Section years from the date of this Order, be Export Administration Regulations, if 787.6 of the Regulations; and (2) on five separate occasions between denied all privileges of participating, the person denied export privileges may on or about April 28, 1989, and on or directly or indirectly, in any manner or obtain any benefit or have any interest about June 8, 1989, Elizabeth Drive capacity, in any transaction in the in, directly or indirectly, any of these made false or misleading United States or abroad involving any transactions. commodity or technical data exported representations to the Department or to be exported from the United States, D. As authorized by Sections 788.16 concerning the ultimate consignee on and subject to the Regulations. and 788.17 of the Regulations, the export license applications, in violation A. Without limiting the generality of denial period shall be suspended for a of Section 787.5(a) of the Regulations. the foregoing, participation, either in the period of five years beginning five years Elizabeth Drive filed an answer to the United States or abroad, shall include from the date of entry of this Order, and charging letter. After the answer was participation, directly or indirectly, in shall thereafter be waived, provided filed, the Department and Elizabeth any manner or capacity: (i) as a party or that, during the period of suspension, Drive entered into a Consent Agreement as a representative of a party to any Brero commits no violation of the Act or pursuant to Section 787.17(a) of the export license application submitted to any regulation, order or license issued Regulations whereby they agreed to the Department; (ii) in preparing or thereunder. settle this matter in accordance with the filing with the Department any export Third, That the Charging Letter, the terms and conditions set forth therein. license application or request for Answer, the Consent Agreement, and reexport authorization, or any document this Order shall be made available to the 1 The Act expired on August 20, 1994. Executive Order No. 12924 (59 FR 43437, August 23, 1994) to be submitted therewith; (iii) in public. A copy of this Order shall be continued the Regulations in effect under the obtaining from the Department or using served on the Department and Brero and International Emergency Economic Powers Act (50 any validated or general export license, published in the Federal Register U.S.C.A. §§ 1701–1706 (1991)). Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices 34507 The Administrative Law Judge having position of responsibility in the conduct (50 U.S.C.A. app. §§ 2401–2420 (1991, recommended that I approve the terms of trade or related services may also be Supp. 1993, and Pub. L. No. 103–277, of the Consent Agreement; and subject to the provisions of this Order. July 5, 1994)) (the Act).1 The Charging After reading and approving those C. As provided by Section 787.12(a) of Letter alleged that: terms; the Regulations, without prior (1) On 15 separate occasions between It is therefore ordered, disclosure of the facts to and specific on or about August 27, 1986 through on First, all outstanding individual authorization of the Office of export or about July 29, 1987, Freedman caused validated licenses in which Elizabeth Licensing, in consultation with the or induced another person to make false Drive Liquidation Corporation, 11 Office of Export Enforcement, no person statements of material fact to a U.S. Elizabeth Drive, Chelmsford, may directly or indirectly, in any agency in connection with the Massachusetts 01824, appears or manner or capacity: (i) Apply for, preparation submission, or use of an participates, in any manner or capacity, obtain, or use any license, Shipper’s export control document, in violation of are hereby revoked and shall be Export Declaration, bill of lading, or Section 787.2 of the Regulations. returned forthwith to the Office of other export control document relating Freedman cooperated with the Exporter Services for cancellation. to an export or reexport of commodities Department in its investigation into the Further, all of Elizabeth Drive’s or technical data by, to, or for another matters alleged in the Charging Letter privileges of participating, in any person then subject to an order revoking and answered the Charging Letter, manner or capacity, in any special or denying his export privileges or then denying the allegations set forth therein. licensing procedure, including, but not excluded from practice before the After the Answer was filed, the limited to, distribution licenses, are Bureau of Export Administration; or (ii) Department and Freedman entered into hereby revoked. order, buy, receive, use, sell, deliver, a Consent Agreement pursuant to Second, Elizabeth Drive Liquidation store, dispose of, forward, transport, Section 787.17(a) of the Regulations Corporation, 11 Elizabeth Drive, finance, or otherwise service or whereby they agreed to settle this matter Chelmsford, Massachusetts 01824, and participate: (a) in any transaction which in accordance with the terms and all its successors or assigns, and officers, may involve any commodity or conditions set forth therein; representatives, agents, and employees technical data exported or to be The Administrative Law Judge having when acting on behalf of Elizabeth Drive exported from the United States; (b) in recommended that I approve the terms or any successors or assigns, shall, for any reexport thereof; or (c) in any other of the Consent Agreement; and a period of one year from the date of this transaction which is subject to the After reading and approving those Order, be denied all privileges of Export Administration Regulations, if terms; It is therefore ordered, participating, directly or indirectly, in the person denied export privileges may any manner or capacity, in any First, all outstanding individual obtain any benefit or have any interest validated licenses in which Julia transaction in the United States or in, directly or indirectly, any of these abroad involving any commodity or Freedman appears or participates, in transactions. any manner or capacity, are hereby technical data exported or to be Third, that the Charging Letter, the revoked and shall be returned forthwith exported from the United States, and Answer, the Consent Agreement and to the Office of Exporter Services for subject to the Regulations. this Order shall be made available to the A. Without limiting the generality of cancellation. Further, all of Freedman’s public. A copy of this Order shall be the foregoing, participation, either in the privileges of participating, in any served on Elizabeth Drive and published United States or abroad, shall include manner or capacity, in any special in the Federal Register. licensing procedure, including, but not participation, directly or indirectly, in This Order, which constitutes the limited to, distribution licenses, are any manner or capacity: (i) As a party final agency action in this matter, is hereby revoked. or as a representative of a party to any effective immediately. export license application submitted to Second, Julia Freedman, Rue De the Department; (ii) in preparing or Entered this 26th day of June, 1995. Vieux-Marche 3, Byon, Switzerland, filing with the Department any export William A. Reinsch, shall, for a period of ten years from the license application or request for Under Secretary for Export Administration. date of this Order, be denied all reexport authorization, or any document [FR Doc. 95–16224 Filed 6–30–95; 8:45 am] privileges of participating, directly or to be submitted therewith; (iii) in BILLING CODE 3510±DT±M indirectly, in any manner or capacity, in obtaining from the Department or using any transaction in the United States or any validated or general export license, abroad involving any commodity or [Docket No. 1107±05] reexport authorization, or other export technical data exported or to be control document; (iv) in carrying on Decision and Order exported from the United States, and negotiations with respect to, or in subject to the Regulations. receiving, ordering, buying, selling, In the matter of: Julia Freedman Rue De A. Without limiting the generality of delivering, storing, using, or disposing Vieux-Marche 3, Byron, Switzerland, the foregoing, participation, either in the of, in whole or in part, any commodities Respondent. United States or abroad, shall include or technical data exported or to be On August 27, 1991, the Office of participation, directly or indirectly, in exported from the United States and Export Enforcement Bureau of Export any manner or capacity: (i) As a party subject to the Regulations; and (v) in Administration, United States or as a representative of a party to any financing, forwarding, transporting, or Department of Commerce (Department), export license application submitted to other servicing of such commodities or issued a Charging Letter against Julia the Department; (ii) in preparing or technical data. Freedman (Freedman) alleging that filing with the Department any export B. After notice and opportunity for Freedman violated Section 787.2 of the license application or request for comment as provided in Section Export Administration Regulations 788.3(c) of the Regulations, any person, (currently codified at 15 CFR Parts 768– 1 The Act expired on August 20, 1994. Executive Order No. 12924 (59 FR 43437, August 23, 1994) firm, corporation, or business 799 (1995)) (the Regulations), issued continued the Regulations in effect under the organization related to Elizabeth Drive pursuant to Section 13(c) of the Export International Emergency Economic Powers Act (50 by affiliation, ownership, control, or Administration Act of 1979, as amended U.S.C.A. §§ 1701–1706 (1991)). 34508 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices reexport authorization, or any document public. A copy of this Order shall be denying the allegations set forth therein. to be submitted therewith; (iii) in served on the Department and After the Answer was filed, the obtaining from the Department of using Freedman and published in the Federal Department and Samata entered into a any validated or general export license Register. Consent Agreement pursuant to Section reexport authorization, or other export This Order, which constitutes the 787.17(a) of the Regulations whereby control document; (iv) in carrying on final agency action in this matter, is they agreed to settle this matter in negotiations with respect to, or in effective immediately. accordance with the terms and receiving, ordering, buying, selling, Entered this 26th day of June, 1995. conditions set forth therein; delivering, storing, using, or disposing [FR Doc. 95–16221 Filed 6–30–95; 8:45 am] The Administration Law Judge having of, in whole or in part, any commodities recommended that I approved the terms BILLING CODE 3510±DT±M or technical data exported or to be of the Consent Agreement; and exported from the United States and After reading and approving those subject to the Regulations; and (v) in [Docket No. 1107±03] terms; financing, forwarding, transporting, or It is therefore ordered, other servicing of such commodities or Decision and Order First, all outstanding individual validated licenses in which Samata S.A. technical data. In the Matter of: Samata S.A., appears or participates, in any manner B. After notice and opportunity for Apartment 87, Route de Bougy 1170, or capacity, are hereby revoked and comment as provided in Section Aubonne, Vaud, Switzerland, shall be returned forthwith to the Office 788.3(c) of the Regulations, any person, Respondent. firm, corporation, or business of Exporter Services for cancellation. organization related to Freedman by On August 27, 1991, the Office of Further, all of Samata’s privileges of affiliation, ownership, control, or Export Enforcement, Bureau of Export participating, in any manner or position of responsibility in the conduct Administration, United States capacity, in any special licensing of trade or related services may also be Department of Commerce (Department), procedure, including, but not limited to, subject to the provisions of this Order. issued a Charging Letter against Samata distribution licenses, are hereby C. As provided by Section 787.12(a) of S.A. (Samata) alleging that Samata revoked. the Regulations, without prior violated Sections 787.2, 787.4(a), and Second, Samata S.A., Apartment 87, disclosure of the facts to and specific 787.6 of the Export Administration Route de Bougy 1170, Aubonne, Vaud, authorization of the Office of Exporter Regulations (currently codified at 15 Switzerland, and all its successors and Services, in consultation with the Office CFR Parts 768–799 (1995)) (the assigns, and officers, representatives, of Export Enforcement, no person may Regulations), issued pursuant to Section agents, and employees, shall, for a directly or indirectly, in any manner or 13(c) of the Export Administration Act period of ten years from the date of this capacity: (1) Apply for, obtain or use of 1979, as amended (50 U.S.C.A. app. Order, be denied all privileges of any license, Shipper’s Export §§ 2401–2420 (1991, Supp. 1993, and participating, directly or indirectly, in Declaration, bill or lading, or other Pub. L. No. 103–277, July 5, 1994)) (the any manner or capacity, in any export control document relating to any Act).1 The Charging Letter alleged that: transaction in the United States or export or reexport of commodities or (1) On 15 separate occasions between abroad involving any commodity or technical date by, to, or for another on or about August 27, 1986 through on technical data exported or to be person then subject to an order revoking or about July 29, 1987, Samata disposed exported from the United States, and or denying his export privileges or then of U.S.-origin commodities contrary to subject to the Regulations. excluded from practice before the the terms of a distribution license, in A. Without limiting the generality of Bureau of Export Administration; or (ii) violation of Section 787.6 of the the foregoing, participation, either in the order, buy, receive, use, sell, deliver, Regulations; United States or abroad, shall include store, dispose of, forward, transport, (2) With respect to each of the 15 participation, directly or indirectly, in finance, or otherwise service or exports described above, Samata any manner or capacity: (i) As a party participate: (a) in any transaction which transferred the U.S.-origin commodities or as a representative of a party to any may involve any commodity or to third parties with knowledge or export license application submitted to technical data exported or to be reason to know that those transfers were the Department; (ii) in preparing or exported from the United States; (b) in being made contrary to a prior filing with the Department any export any reexport thereof; or (c) in any other representation Samata made to the license application or request for transaction which is subject to the Department, in violation of Section reexport authorization, or any document Export Administration Regulations, if 787.4(a) of the Regulations; and to be submitted therewith; (iii) in the person denied export privileges may (3) With respect to each of the 15 obtaining from the Department or using obtain any benefit or have any interest exports described above, Samata caused any validated or general export license, in, directly or indirectly, any of these or induced another person to make false reexport authorization, or other export transactions. statements of material fact to a U.S. control document; (iv) in carrying on D. As authorized by Sections 788.16 agency in connection with the negotiations with respect to, or in and 788.17 of the Regulations, the preparation, submission, or use of an receiving, ordering, buying, selling, denial period shall be suspended for a export control document, in violation of delivering, storing, using, or disposing period of seven years beginning three Section 787.2 of the Regulations. of, in whole or in part, any commodities years from the data of entry of this Samata cooperated with the or technical data exported or to be Order, and shall thereafter be waived, Department in its investigation into the exported from the United States and provided that, during the period of matters alleged in the Charging Letter subject to the Regulations; and (v) in suspension, Freedman commits no and answered the Charging Letter, financing, forwarding, transporting, or violation of the Act or any regulation, other servicing of such commodities or order or license issued thereunder. 1 The Act expired on August 20, 1994. Executive technical data. Order No. 12924 (59 FR 43437, August 23, 1994) Third, That the Charging Letter, the continued the Regulations in effect under the B. After notice and opportunity for Answer, the Consent Agreement, and International Emergency Economic Powers Act (50 comment as provided in Section this Order shall be made available to the U.S.C.A. §§ 1701–1706 (1991)). 788.3(c) of the Regulations, any person, Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices 34509 firm, corporation, or business codified at 15 CFR Parts 768–799 any transaction in the United States or organization related to Samata by (1995)) (the Regulations), issued abroad involving any commodity or affiliation, ownership, control, or pursuant to Section 13(c) of the Export technical data exported or to be position of responsibility in the conduct Administration Act of 1979, as amended exported from the United States, and of trade or related services may also be (50 U.S.C.A. app. §§ 2401–2420 (1991, subject to the Regulations. subject to the provisions of this Order. Supp. 1993, and Pub. L. No. 103–277, A. Without limiting the generality of C. As provided by Section 787.12(a) of July 5, 1994)) (the Act).1 The Charging the foregoing, participation, either in the the Regulations, without prior Letter alleged that: United States or abroad, shall include disclosure of the facts to and specific (1) On 15 separate occasions between participation, directly or directly, in any authorization of the Office of Exporter on or about August 27, 1986 through on manner or capacity: (i) As a party or as Services, in consultation with the Office or about July 29, 1987, Wheeler a representative of a party to any export of Export Enforcement, no person may exported U.S.-origin commodities license application submitted to the directly or indirectly, in any manner or contrary to the terms of distribution Department; (ii) in preparing or filing capacity: (i) Apply for, obtain, or use license, in violation of Section 787.6 of with the Department any export license any license, Shipper’s Export the Regulations; application or request for reexport Declaration, bill of lading, or other (2) In connection with the 15 exports authorization, or any document to be export control document relating to an described above, Wheeler made false submitted therewith; (iii) in obtaining export or reexport of commodities or statements of material fact to a U.S. from the Department or using any technical data by, to, or for another agency in connection with the validated or general export license, person then subject to an order revoking preparation, submission, or use of an reexport authorization, or other export or denying his export privileges or then export control document, in violation of control document; (iv) in carrying on excluded from practice before the Section 787.5(a)(1)(ii) of the negotiations with respect to, or in Bureau of Export Administration; or (ii) Regulations; and receiving, ordering, buying, selling, order, buy, receive, use, sell, deliver, (3) With respect to each of the 15 delivering, storing, using, or disposing store, dispose of, forward, transport, exports described above, Wheeler made of, in whole or in part, any commodities finance, or otherwise service or the exports with knowledge or reason to or technical data exported or to be participate: (a) in any transaction which know that the exports were being made exported from the United States and may involve any commodity or contrary to a prior representation subject to the Regulations; and (v) in technical data exported or to be Wheeler made to the Department, in financing, forwarding, transporting, or exported from the United States; (b) in violation of Section 787.4(a) of the other servicing of such commodities or any reexport thereof; or (c) in any other Regulations. technical data. transaction which is subject to the Wheeler answered the Charging B. After notice and opportunity for Export Administration Regulations, if Letter, denying the allegations set forth comment as provided in Section the person denied export privileges may therein. After the Answer was filed, the 788.3(c) of the Regulations, any person, obtain any benefit or have any interest Department and Wheeler entered into a firm, corporation, or business in, directly or indirectly, any of these Consent Agreement pursuant to Section organization related to Wheeler by transactions. 787.17(a) of the Regulations whereby affiliation, ownership, control, or Third, that the Charging Letter, the they agreed to settle this matter in position of responsibility in the conduct Answer, the Consent Agreement, and accordance with the terms and of trade or related services may also be this Order shall be made available to the conditions set forth therein; subject to the provisions of this Order. public. A copy of this Order shall be The Administration Law Judge having C. As provided by Section 787.12(a) of served on the Department and Samata recommended that I approve the terms the Regulations, without prior and published in the Federal Register. of the Consent Agreement; and disclosure of the facts to and specific This Order, which constitutes the After reading and approving those authorization of the Office of Exporter final agency action in this matter, is terms; Services, in consultation with the Office It is therefore ordered, effective immediately. of Export Enforcement, no person may First, all outstanding individual directly or indirectly, in any manner or Entered this 26th day of June, 1995. validated licenses in which Robert J. capacity: (i) Apply for, obtain, or use William A. Reinsch, Wheeler appears or participates, in any any license, Shipper’s Export Under Secretary for Export Administration. manner or capacity, are hereby revoked Declaration, bill of lading, or other [FR Doc. 95–16222 Filed 6–30–95; 8:45 am] and shall be returned forthwith to the export control document relating to an BILLING CODE 3510±DT±M Office of Exporter Services for export or reexport of commodities or cancellation. Further, all of Wheeler’s technical data by, to, or for another privileges of participating, in any person then subject to an order revoking [Docket No. 1107±02] manner or capacity, in any special or denying his export privileges or then Decision and Order licensing procedure, including, but not excluded from practice before the limited to, distribution licenses, are Bureau of Export Administration; or (ii) In the Matter of: Robert J. Wheeler, 97 hereby revoked. order, buy, receive, use, sell, deliver, Templar Place, Oakland, California 94618, Second, Robert J. Wheeler, 97 store, dispose of, forward, transport, Respondent. Templar Place, Oakland, California finance, or otherwise service or On August 27, 1991, the Office of 94618, shall, for a period of ten years participate: (a) in any transaction which Export Enforcement, Bureau of Export from the date of this Order, be denied may involve any commodity or Administration, United States all privileges of participating, directly or technical data exported or to be Department of Commerce (Department), indirectly, in any manner or capacity, in exported from the United States; (b) in issued a Charging Letter against Robert any reexport thereof; or (c) in any other J. Wheeler (Wheeler) alleging that 1 The Act expired on August 20, 1994. Executive transaction which is subject to the Order No. 12924 (59 FR 43437, August 23, 1994) Wheeler violated Sections 787.4(a), continued the Regulations in effect under the Export Administration Regulations, if 787.5(a)(1)(ii), and 787.6 of the Export International Emergency Economic Powers Act (50 the person denied export privileges may Administration Regulations (currently U.S.C.A. 1701–1706 (1991)). obtain any benefit or have any interest 34510 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices in, directly or indirectly, any of these Board) by the Commercial and Farm medical sciences. Some 10 percent of transactions. Credit and Development Corporation of production is exported. D. As authorized by Sections 788.16 Puerto Rico, grantee of FTZ 61, Zone procedures would exempt and 788.17 of the Regulations, the requesting special-purpose subzone Ohmeda from Customs duty payments denial period shall be suspended for a status for the pharmaceutical on foreign materials used in production period of five years beginning five years manufacturing plant (210 employees) of for export. On domestic sales, the from the date of entry of this Order, and Ohmeda Caribe Inc./Ohmeda shall thereafter be waived, provided Pharmaceutical Manufacturing Inc. company would be able to choose the that, during the period of suspension, (Ohmeda), in Guayama, Puerto Rico duty rates that apply to the finished Wheeler commits no violation of the Act (San Juan area). The application was products (duty-free). The duty rates on or any regulation, order or license submitted pursuant to the provisions of foreign-sourced items range from duty- issued thereunder. the Foreign-Trade Zones Act, as free to 18.6 percent. At the outset, zone Third, that the Charging Letter, the amended (19 U.S.C. 81a–81u), and the savings would primarily involve Answer, the Consent Agreement, and regulations of the Board (15 CFR part choosing the finished product duty rate this Order shall be made available to the 400). It was formally filed on June 22, on SUPRANE, FORANE and public. A copy of this Order shall be 1995. AERRANE (duty-free), rather than the served on the Department and Wheeler Ohmeda is a wholly-owned rates for their foreign components: and published in the Federal Register. subsidiary of BOC Group plc (U.K.), trifluoroethanol (HTSUS #2905.50.1000, This Order, which constitutes the which comprises three global duty rate—5.5%), final agency action in this matter, is businesses—industrial and specialty chlorodifluoromethane (HTSUS effective immediately. gases, health care products, and vacuum #2903.40.4010—3.7%), and a plastic Entered this 26th day of June, 1995. technology and distribution services. valve assembly (HTSUS Ohmeda’s Guayama plant (23 bldgs./ William A. Reinsch, #8481.80.5090—4.1%). The application 176,000 sq. ft. on 38 acres) is located at Under Secretary for Export Administration. indicates that the savings from zone Route 3, KM 142.5, Guayama, Puerto [FR Doc. 95–16223 Filed 6–30–95; 8:45 am] Rico, some 45 miles south of San Juan. procedures will help improve the BILLING CODE 3510±DT±M The facility produces finished plant’s international competitiveness. pharmaceutical products, primarily In accordance with the Board’s inhalation anesthetics for hospital and regulations, a member of the FTZ Staff Foreign-Trade Zones Board critical care therapy (e.g., FORANE, has been designated examiner to [Docket 6±94] SUPRANE, and AERRANE). investigate the application and report to Currently, foreign-sourced materials the Board. Foreign-Trade Zone 114ÐPeoria, account for, on average, 90 percent of Illinois Withdrawal of Application for materials value, and include the Public comment is invited from Subzone Status for Revere Ware following specific items: interested parties. Submissions (original Corporation Plant trifluoroethanol, and 3 copies) shall be addressed to the chlorodifluoromethane, and a plastic Board’s Executive Secretary at the Notice is hereby given of the valve assembly used to administer the address below. The closing period for withdrawal of the application submitted anesthetics. The company may also their receipt is September 1, 1995. by the Economic Development Council purchase from abroad other ingredients Rebuttal comments in response to for the Peoria Area, grantee of FTZ 114, and materials in the following general material submitted during the foregoing requesting special-purpose subzone categories: gums, starches, waxes, period may be submitted during the status for the stainless steel and vegetable extracts, mineral oils, sugars, subsequent 15-day period (to September aluminum household cookware empty capsules, protein concentrates, manufacturing plant of the Revere Ware 18, 1995). prepared animal feed, mineral products, Corporation, Clinton, Illinois. The A copy of the application and inorganic acids, chlorides, clorates, accompanying exhibits will be available application was filed on February 15, sulfites, sulfates, phosphates, cyanides, for public inspection at each of the 1994 (59 FR 10782, 3/8/94). silicates, radioactive chemicals, rare- The withdrawal was requested by the earth metal compounds, hydroxides, following locations: applicant because of changed hydrazine and hydroxylamine, circumstances, and the case has been U.S. Department of Commerce District chlorides, phosphates, carbonates, closed without prejudice. Office, Room G–55, Federal Building, hydrocarbons, alcohols, phenols, ethers, Chardon Avenue, San Juan (Hato Dated: June 26, 1995. epoxides, acetals, aldehydes, ketone Rey), Puerto Rico 00918 John J. Da Ponte, Jr., function compounds, mono- and Executive Secretary. polycarboxylic acids, phosphoric esters, Office of the Executive Secretary, Foreign-Trade Zones Board, U.S. [FR Doc. 95–16307 Filed 6–30–95; 8:45 am] amine-, carboxymide, nitrile- and Department of Commerce, Room BILLING CODE 3510±DS±P oxygen-function compounds, heterocyclic compounds, sulfonamides, 3716, 14th & Pennsylvania Avenue, insecticides, rodenticides, fungicides NW., Washington, DC 20230. [Docket 33±95] and herbicides, fertilizers, vitamins, Dated: June 26, 1995. Foreign-Trade Zone 61ÐSan Juan, hormones, antibiotics, gelatins, John J. Da Ponte, Jr., enzymes, pharmaceutical glaze, Puerto Rico Application for Subzone Executive Secretary. Ohmeda Caribe Inc./Ohmeda essential oils, albumins, gelatins, activated carbon, residual lyes, acrylic [FR Doc. 95–16310 Filed 6–30–95; 8:45 am] Pharmaceutical Manufacturing Inc. BILLING CODE 3510±DS-P (Pharmaceutical Products) Guayama, polymers, color lakes, soaps and Puerto Rico detergents, various packaging and printing materials, medicaments, An application has been submitted to pharmaceutical products, and the Foreign-Trade Zones Board (the instruments and appliances used in Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices 34511 [Docket 34±95] address below. The closing period for subzone status with the NPF option their receipt is September 1, 1995. noted above. In the Amoco case, the Foreign-Trade Zone 84, Houston, TX Rebuttal comments in response to Board concluded that the restriction that Proposed Foreign-Trade Subzone material submitted during the foregoing precluded this NPF option was not Crown Central Petroleum Corporation period may be submitted during the needed under current oil refinery (Oil Refinery Complex) Harris County, subsequent 15-day period to September industry circumstances. Texas 18, 1995. Public comment on the proposal is An application has been submitted to A copy of the application and invited from interested parties. the Foreign-Trade Zones Board (the accompanying exhibits will be available Submissions (original and 3 copies) Board) by the Port of Houston for public inspection at each of the shall be addressed to the Board’s Authority, grantee of FTZ 84, requesting following locations: Executive Secretary at the address special-purpose subzone status for the U.S. Department of Commerce District below. The closing period for their oil refinery complex of Crown Central Office, #1 Allen Center, Suite 1160, receipt is August 2, 1995. Petroleum Corporation (Crown), located 500 Dallas, Houston, Texas 77002 A copy of the application and in Harris County, Texas. The Office of the Executive Secretary, accompanying exhibits will be available application was submitted pursuant to Foreign-Trade Zones Board, Room for public inspection at the following the provisions of the Foreign-Trade 3716, U.S. Department of Commerce, location: Office of the Executive Zones Act, as amended (19 U.S.C. 81a- 14th & Pennsylvania Avenue, NW, Secretary, Foreign-Trade Zones Board, 81u), and the regulations of the Board Washington, DC 20230. U.S. Department of Commerce, Room (15 CFR part 400). It was formally filed Dated: June 26, 1995. 3716, 14th & Pennsylvania Avenue, on June 23, 1995. NW., Washington, DC 20230. The refinery complex (341 acres) John J. Da Ponte, Jr., consists of 2 sites in Harris County, Executive Secretary. Dated: June 26, 1995. Texas: Site 1 (200 acres)—main refinery [FR Doc. 95–16309 Filed 6–30–95; 8:45 am] John J. Da Ponte, Jr., and petrochemical feedstock complex BILLING CODE 3510±DS-P Executive Secretary. located on the Houston Ship Channel, at [FR Doc. 95–16308 Filed 6–30–95; 8:45 am] 111 Red Bluff Road, Houston; and Site BILLING CODE 3510±DS±P 2 (141 acres)—Crown Tank Farm and DEPARTMENT OF COMMERCE Terminal, located at 1200 Red Bluff Road, Pasadena. Foreign-Trade Zones Board International Trade Administration The refinery (100,000 barrels per day; [Docket A(32b1)±10±95] 380 employees) is used to produce fuels Antidumping or Countervailing Duty and petrochemical feedstocks. Fuels Foreign-Trade Zone 122ÐCorpus Order, Finding, or Suspended produced include gasoline, jet fuel, Christi, TX Subzone 122C Neste Investigation; Opportunity to Request kerosene, gas oil, diesel fuel, residual Trifinery Petroleum Services (Crude Oil Administrative Review fuels, and naphthas. Petrochemicals Refinery); Request for Modification of include methane, ethane, butane, Restriction AGENCY: Import Administration, propane, and propylene. Refinery by- International Trade Administration, products include sulfur and petroleum A request has been submitted to the Commerce. Foreign-Trade Zones Board (the Board) coke. Almost 80 percent of the crude oil ACTION: by the Port of Corpus Christi Authority, Notice of Opportunity to (80 percent of inputs) and some Request Administrative Review of feedstocks and motor fuel blendstocks grantee of FTZ 122, pursuant to § 400.32(b)(1) of the Board’s regulations, Antidumping or Countervailing Duty are sourced abroad. Order, Finding, or Suspended Zone procedures would exempt the for modification of the restrictions in Investigation. refinery from Customs duty payments FTZ Board Order 310 authorizing on the foreign products used in its Subzone 122C at the crude oil refinery BACKGROUND: Each year during the of Neste Trifinery Petroleum Services exports. On domestic sales, the anniversary month of the publication of (Neste) in Corpus Christi, Texas. The company would be able to choose the an antidumping or countervailing duty request was formally filed on June 26, finished product duty rate order, finding, or suspension of (nonprivileged foreign status—NPF) on 1995. The Board Order in question was investigation, an interested party, as certain petrochemical feedstocks and defined in section 771(9) of the Tariff refinery by-products (duty-free). The issued subject to certain standard restrictions, including one that required Act of 1930, as amended, may request, duty on crude oil ranges from 5.25¢ to in accordance with section 353.22 or 10.5¢/barrel. Foreign merchandise the election of privileged foreign status on incoming foreign merchandise. The 355.22 of the Department of Commerce would also be exempt from state and (the Department) Regulations (19 CFR local ad valorem taxes. The application zone grantee has requested that the latter restriction be modified so that 353.22/355.22 (1993)), that the indicates that the savings from zone Department conduct an administrative procedures would help improve the Neste would have the option available under the FTZ Act to choose non- review of that antidumping or refinery’s international competitiveness. countervailing duty order, finding, or In accordance with the Board’s privileged foreign (NPF) status on suspended investigation. regulations, a member of the FTZ Staff foreign refinery inputs used to produce has been designated examiner to certain petrochemical feedstocks and OPPORTUNITY TO REQUEST A REVIEW: Not investigate the application and report to by-products (primarily asphalt at this later than July 31, 1995, interested the Board. time). parties may request administrative Public comment is invited from The request cites the FTZ Board’s review of the following orders, findings, interested parties. Submissions (original recent decision in the Amoco, Texas or suspended investigations, with and 3 copies) shall be addressed to the City, Texas case (Board Order 731, 60 anniversary dates in July for the Board’s Executive Secretary at the FR 13118, 3/10/95) which authorized following periods: 34512 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices Antidumping duty proceedings Period Armenia: Solid Urea (A±831±801) ...... 07/01/94±06/30/95 Azerbaijan: Solid Urea (A±831±801) ...... 07/01/94±06/30/95 Belarus-Baltic: Solid Urea (A±822±801) ...... 07/01/94±06/30/95 Brazil: Industrial Nitrocellulose (A±351±804) ...... 07/01/94±06/30/95 Brazil: Silicon Metal (A±351±806) ...... 07/01/94±06/30/95 Estonia-Baltic: Solid Urea (A±447±801) ...... 07/01/94±06/30/95 Georgia: Solid Urea (A±833±801) ...... 07/01/94±06/30/95 Germany: Industrial Nitrocellulose (A±428±803) ...... 07/01/94±06/30/95 Germany: Solid Urea (A±428±605) ...... 07/01/94±06/30/95 Iran: Certain In-Shell Pistachios (A±507±502) ...... 07/01/94±06/30/95 Japan: Professional Electric Cutting Tools (A±588±823) ...... 07/01/94±06/30/95 Japan: Industrial Nitrocellulose (A±588±812) ...... 07/01/94±06/30/95 Japan: Malleable Cast-Iron Pipe Fittings (A±588±605) ...... 07/01/94±06/30/95 Japan: Synthetic Methionine (A±588±041) ...... 07/01/94±06/30/95 Kazakhstan: Solid Urea (A±834±801) ...... 07/01/94±06/30/95 Korea: Industrial Nitrocellulose (A±580±805) ...... 07/01/94±06/30/95 Kyrgyzstan: Solid Urea (A±835±801) ...... 07/01/94±06/30/95 Latvia-Baltic: Solid Urea (A±449±801) ...... 07/01/94±06/30/95 Lithuania: Solid Urea (A±451±801) ...... 07/01/94±06/30/95 Moldova: Solid Urea (A±841±801) ...... 07/01/94±06/30/95 Romania: Solid Urea (A±485±601) ...... 07/01/94±06/30/95 Russia: Solid Urea (A±821±801) ...... 07/01/94±06/30/95 Tajikistan: Solid Urea (A±842±801) ...... 07/01/94±06/30/95 Thailand: Carbon Steel Butt-Weld Pipe Fittings (A±549±807) ...... 07/01/94±06/30/95 The People's Republic of China: Carbon Steel Butt-Weld Pipe Fittings (A±570±814) ...... 07/01/94±06/30/95 The People's Republic of China: Industrial Nitrocellulose (A±570±802) ...... 07/01/94±06/30/95 The People's Republic of China: Sebacic Acid (A±570±825) ...... 07/01/94±06/30/95 Turkmenistan: Solid Urea (A±843±801) ...... 07/01/94±06/30/95 United Kingdom: Industrial Nitrocellulose (A±412±803) ...... 07/01/94±06/30/95 Ukraine: Solid Urea (A±823±801) ...... 07/01/94±06/30/95 Uzbekistan: Solid Urea (A±844±801) ...... 07/01/94±06/30/95 Suspension Agreements Brazil: Certain Forged Steel Crankshafts (C±351±609 ...... 01/01/94±12/31/94 Countervailing Duty Proceedings European Economic Community: Sugar (C±408±046) ...... 01/01/94±12/31/94 In accordance with sections 353.22(a) separate order, then the interested party at a rate equal to the cash deposit of (or and 355.22(a) of the regulations, an must state specifically, on an order-by- bond for) estimated antidumping or interested party as defined by section order basis, which exporter(s) the countervailing duties required on those 353.2(k) may request in writing that the request is intended to cover. entries at the time of entry, or Secretary conduct an administrative Seven copies of the request should be withdrawal from warehouse, for review. The Department has changed its submitted to the Assistant Secretary for consumption and to continue to collect requirements for requesting reviews for Import Administration, International the cash deposit previously ordered. countervailing duty orders. Pursuant to Trade Administration, Room B–099, This notice is not required by statute, 19 CFR 355.22(a) of the Department’s U.S. Department of Commerce, but is published as a service to the Interim Regulations (60 FR 25137 (May Washington, DC 20230. The Department international trading community. 11, 1995)), an interested party must also asks parties to serve a copy of their Dated: June 26, 1995. specify the individual producers or requests to the Office of Antidumping Joseph A. Spetrini, Compliance, Attention: Pamela Woods, exporters covered by the order for Deputy Assistant Secretary for Compliance. which they are requesting a review. in room 3065 of the main Commerce [FR Doc. 95–16303 Filed 6–30–95; 8:45 am] Therefore, for both antidumping and Building. Further, in accordance with countervailing duty reviews, the § 353.31(g) or § 355.31(g) of the BILLING CODE 3510±DS±M interested party must specify for which regulations, a copy of each request must individual producers or exporters be served on every party on the Intent To Revoke Antidumping Duty covered by an antidumping finding or Department’s service list. Orders and Findings and To Terminate an antidumping or countervailing duty The Department will publish in the Suspended Investigations order it is requesting a review, and the Federal Register a notice of ‘‘Initiation requesting party must state why it of Antidumping (Countervailing) Duty AGENCY: Import Administration, desires the Secretary to review those Administrative Review,’’ for requests International Trade Administration, particular producers or exporters. If the received by July 31, 1995. If the Department of Commerce. interested party intends for the Department does not receive, by July 31, ACTION: Notice of Intent To Revoke Secretary to review sales of merchandise 1995, a request for review of entries Antidumping Duty Orders and Findings by an exporter (or a producer if that covered by an order or finding listed in and To Terminate Suspended producer also exports merchandise from this notice and for the period identified Investigations. other suppliers) which were produced above, the Department will instruct the in more than one country of origin, and Customs Service to assess antidumping SUMMARY: The Department of Commerce each country of origin is subject to a or countervailing duties on those entries (the Department) is notifying the public Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices 34513 of its intent to revoke the antidumping July 10, 1990 53 FR 26366 duty orders and findings and to Contact: Todd Peterson at (202) 482–4195 July 14, 1987 Contact: Thomas Barlow at (202) 482–5256 terminate the suspended investigations Iran listed below. Domestic interested parties In-Shell Pistachio Nuts Russia who object to these revocations and A–507–502 Solid Urea terminations must submit their 51 FR 25922 A–821–801 comments in writing no later than the July 17, 1986 52 FR 26366 last day of July 1995. Contact: Valerie Turoscy at (202) 482–0145 July 14, 1987 Contact: Thomas Barlow at (202) 482–5256 EFFECTIVE DATE: July 3, 1995. Japan FOR FURTHER INFORMATION CONTACT: Cast Iron Pipe Fittings South Korea Michael Panfeld or the analyst listed A–588–605 Industrial Nitrocellulose under Antidumping Proceeding at: 52 FR 25281 A–580–805 Office of Antidumping Compliance, July 6, 1987 55 FR 28266 Import Administration, International Contact: Sheila Forbes at (202) 482–5253 July 10, 1990 Contact: Rebecca Trainor at (202) 482–0666 Trade Administration, U.S. Department Japan of Commerce, 14th Street & Constitution High Power Microwave Amplifiers and Tajikistan Avenue, NW., Washington, DC 20230, Components Thereof Solid Urea telephone (202) 482–4737. A–588–005 A–842–801 SUPPLEMENTARY INFORMATION: 47 FR 31413 52 FR 26366 July 20, 1982 July 14, 1987 Background Contact: Michael Heaney at (202) 482–4475 Contact: Thomas Barlow at (202) 482–5256 The Department may revoke an Japan The People’s Republic of China antidumping duty order or finding or Industrial Nitrocellulose Industrial Nitrocellulose terminate a suspended investigation if A–588–812 A–570–802 the Secretary of Commerce concludes 55 FR 28268 55 FR 28267 that it is no longer of interest to July 10, 1990 July 10, 1990 interested parties. Accordingly, as Contact: Michael Heaney at (202) 482–4475 Contact: Rebecca Trainor at (202) 482–0666 required by § 353.25(d)(4) of the Japan The Ukraine Department’s regulations, we are Synthetic Methionine Solid Urea notifying the public of our intent to A–588–041 A–823–801 revoke the following antidumping duty 38 FR 18382 52 FR 26366 orders and findings and to terminate the July 10, 1973 July 14, 1987 suspended investigations for which the Contact: Michael Heaney at (202) 482–4475 Contact: Thomas Barlow at (202) 482–5256 Department has not received a request Kazakhstan Turkmenistan to conduct an administrative review for the most recent four consecutive annual Solid Urea Solid Urea anniversary months: A–834–801 A–843–801 52 FR 26366 52 FR 26366 Antidumping Proceeding July 14, 1987 July 14, 1987 Contact: Thomas Barlow at (202) 482–5256 Contact: Thomas Barlow at (202) 482–5256 Armenia Solid Urea Kyrgyzstan Uzbekistan A–831–801 Solid Urea Solid Urea 52 FR 26366 A–835–801 A–844–801 July 14, 1987 52 FR 26366 52 FR 26366 Contact: Thomas Barlow at (202) 482–5256 July 14, 1987 July 14, 1987 Contact: Thomas Barlow at (202) 482–5256 Contact: Thomas Barlow at (202) 482–5256 Azerbaijan Solid Urea Latvia If no interested party requests an A–832–801 Solid Urea administrative review in accordance 52 FR 26366 A–449–801 with the Department’s notice of July 14, 1987 52 FR 26366 opportunity to request administrative Contact: Thomas Barlow at (202) 482–5256 July 14, 1987 review, and no domestic interested Contact: Thomas Barlow at (202) 482–5256 Belarus party objects to the Department’s intent Lithuania to revoke or terminate pursuant to this Solid Urea notice, we shall conclude that the A–822–801 Solid Urea 52 FR 26366 A–451–801 antidumping duty orders, findings, and July 14, 1987 52 FR 26366 suspended investigations are no longer Contact: Thomas Barlow at (202) 482–5256 July 14, 1987 of interest to interested parties and shall Contact: Thomas Barlow at (202) 482–5256 proceed with the revocation or Georgia termination. Solid Urea Moldova A–833–801 Solid Urea Opportunity to Object 52 FR 26366 A–841–801 Domestic interested parties, as July 14, 1987 52 FR 26366 defined in § 353.2(k)(3), (4), (5), and (6) Contact: Thomas Barlow at (202) 482–5256 July 14, 1987 of the Department’s regulations, may Contact: Thomas Barlow at (202) 482–5256 Germany object to the Department’s intent to Industrial Nitrocellulose Romania revoke these antidumping duty orders A–428–803 Solid Urea and findings or to terminate the 55 FR 28271 A–485–601 suspended investigations by the last day 34514 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices of July 1995. Any submission to the final results of administrative review, Scope of the Review Department must contain the name and we will instruct the U.S. Customs The products covered by these case number of the proceeding and a Service (Customs) to assess administrative reviews are certain statement that explains how the antidumping duties equal to the stainless steel cooking ware from the objecting party qualifies as a domestic difference between the United States Republic of Korea. During the review interested party under § 353.2(k)(3), (4), price (USP) and the FMV. Interested periods, such merchandise was (5), and (6) of the Department’s parties are invited to comment on these classifiable under Harmonized Tariff regulations. preliminary results. Schedule (HTS) item number Seven copies of such objections EFFECTIVE DATE: July 3, 1995. 7323.93.00. The products covered by should be submitted to the Assistant this order are skillets, frying pans, Secretary for Import Administration, FOR FURTHER INFORMATION CONTACT: omelette pans, saucepans, double International Trade Administration, Amy S. Wei or Zev Primor, Office of boilers, stock pots, dutch ovens, Room B–099, U.S. Department of Antidumping Compliance, Import casseroles, steamers, and other stainless Commerce, Washington, D.C. 20230. Administration, International Trade steel vessels, all for cooking on stove top You must also include the pertinent Administration, U.S. Department of burners, except tea kettles and fish certification(s) in accordance with Commerce, 14th Street and Constitution poachers. Excluded from the scope is § 353.31(g) and § 353.31(i) of the Avenue, NW., Washington, DC 20230; stainless steel kitchen ware. The HTS Department’s regulations. In addition, telephone (202) 482–5253. item number is provided for the Department requests that a copy of convenience and Customs’ purposes. SUPPLEMENTARY INFORMATION: the objection be sent to Michael F. The written description remains Panfeld in Room 4203. Background dispositive as to the scope of the This notice is in accordance with 19 product coverage. CFR 353.25(d)(4)(i). The Department published an The review periods (POR) are January Dated: June 26, 1995. antidumping duty order on certain 1, 1991 through December 31, 1991, Joseph A. Spetrini, stainless steel cooking ware from the January 1, 1992 through December 31, Republic of Korea on January 20, 1987 Deputy Assistant Secretary for Compliance. 1992, and January 1, 1993 through (52 FR 2139). The Department [FR Doc. 95–16300 Filed 6–30–95; 8:45 am] December 31, 1993, respectively. The published notices of ‘‘Opportunity To 1991 and 1992 reviews cover two BILLING CODE 3510±DS±P Request an Administrative Review’’ of companies, Namil and Daelim. The the antidumping duty order for the 1991 1993 review covers one company, [A±580±601] review period (56 FR 66846, December Daelim. 26, 1991), for the 1992 review period (58 Certain Stainless Steel Cooking Ware FR 4148, January 13, 1993), and for the Use of Best Information Available From the Republic of Korea: 1993 review period (59 FR 564, January Namil Preliminary Results of Antidumping 5, 1994). On January 31, 1991, the For the 1991 review, in filing its Duty Administrative Reviews petitioner requested that the Department questionnaire response, Namil failed to conduct an administrative review of the AGENCY: Import Administration, submit computer tapes of all sales data antidumping duty order on certain International Trade Administration, in a timely manner. Because this data stainless steel cooking ware from the Department of Commerce. was provided after the due date, the Republic of Korea for two Department rejected this additional ACTION: Notice of Preliminary Results of manufacturers/exporters, covering the submission in accordance with 19 CFR Antidumping Duty Administrative period January 1, 1991 through 353.31(b)(2). Therefore, in the case of Reviews. December 31, 1991. We initiated the Namil, we have calculated a dumping 1991 review on February 24, 1992 (57 SUMMARY: In response to requests from margin using the best information FR 6314). On January 27, 1993, the Farberware, Inc. (the petitioner), the available (BIA), in accordance with petitioner requested that the Department Department of Commerce (the section 776(c) of the Act and 19 CFR conduct an administrative review of the Department) is conducting 353.37(b). administrative reviews of the antidumping duty order on certain In determining what to use as BIA, the antidumping duty order on certain stainless steel cooking ware from the Department follows a two-tiered stainless steel cooking ware from the Republic of Korea for two methodology. The Department assigns Republic of Korea. This notice of the manufacturers/exporters, covering the lower margins to those respondents who preliminary results covers three period January 1, 1992 through cooperate in a review (tier two), and consecutive review periods for January December 31, 1992. We initiated the margins based on more adverse 1, 1991 through December 31, 1991, 1992 review on March 8, 1993 (58 FR assumptions for those respondents who January 1, 1992 through December 31, 12931). On January 31, 1994, the do not cooperate in the review, or who 1992, and January 1, 1993 through petitioner requested that the Department significantly impede the proceeding December 31, 1993. The 1991 and 1992 conduct an administrative review of the (tier one)(see Allied Signal Aerospace reviews cover two manufacturers/ antidumping duty order on certain Co. v. United States, 996 F.2d 1185 exporters, Namil Metal Company stainless steel cooking ware from the (Fed.Cir., June 22, 1993), aff’d, 28 F.3d (Namil) and Daelim Trading Company, Republic of Korea for one manufacturer/ 1188, cert. denied, 1995 U.S. Lexis 100 Ltd. (Daelim). The 1993 review covers exporter, covering the period January 1, (1995) (Allied-Signal)). one manufacturer/exporter, Daelim. The 1993 through December 31, 1993. We When a company substantially reviews indicate the existence of initiated the 1993 review on February cooperates with our requests for dumping margins during these periods. 17, 1994 (59 FR 7979). information, but fails to provide the We have preliminarily determined The Department is now conducting information requested in a timely that sales have been made below the reviews for these periods in accordance manner or in the form requested, we foreign market value (FMV). If these with section 751 of the Tariff Act of assign the company second-tier BIA, preliminary results are adopted in our 1930, as amended (the Act). which is the higher of (1) the firm’s Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices 34515 highest rate (including the ‘‘all others’’ applying partial BIA to Daelim’s U.S. No other adjustments to USP were rate) for the same class or kind of sales, we used to these unreported U.S. claimed or allowed. merchandise from the same country sales the highest rate found for any firm Foreign Market Value from a prior administrative review or, if for the same class or kind or the firm has never before been merchandise in the same country of For the purposes of the preliminary investigated or reviewed, the ‘‘all origin in the LTFV investigation or a reviews, we determined that, due to the others’’ rate from the less-than-fair-value prior administrative review. We have nature of the merchandise under review, (LTFV) investigation; or (2) the highest applied as BIA for these unreported none of the cooking ware sold in the calculated rate in this review for any sales a rate of 31.23 percent, which was United States could reasonably be firm for the class or kind of merchandise the highest rate calculated for any firm compared to cooking ware sold in the from the same country of origin (see in the first review (Id.). home market. This is due to the fact that Allied-Signal, 28 F.3d at 1189, 1190 the majority of the cooking ware sold in n.2). United States Price the United States consisted of semi- Because Namil submitted the In calculating USP for Daelim for each finished products for further narrative portion of the questionnaire review, the Department used purchase manufacturing in the United States, response in a timely manner, we are price, as defined in section 772 of the whereas the cooking ware sold in the using cooperative BIA as the basis for Act, because the merchandise was sold home market consisted of finished Namil’s margin for the 1991 review. For to unrelated U.S. purchasers prior to products. Under the Department’s Namil, we have used, as BIA, 11.22 importation and exporter’s sales price standard practice, we only compare U.S. percent, which is the highest rate was not otherwise indicated. Purchase products with products that have a calculated in this review. price was based on the packed, FOB difference in variable cost of For the 1992 review, Namil failed to price to unrelated purchasers in the manufacture (difmer) of less than 20 respond to the Department’s United States. For each review, we percent. Because products sold in the questionnaire. When a company refuses made deductions from the unit price, home market did not pass the to cooperate with the Department, or where applicable, for terminal handling Department’s difmer test, we did not use otherwise significantly impedes the charges, brokerage charges, inland the home market sales as a basis for Department’s proceedings, it assigns freight, wharfage, container freight FMV. In accordance with section that company first-tier BIA, which is the station (CFS) charges, export license 773(a)(2) of the Act, we calculated FMV based on constructed value of the higher of (1) the highest of the rates recommendation fees, outer (shipment) models sold in the United States for the found for any firm for the same class or packaging, and miscellaneous, bank- 1991, 1992, and 1993 reviews (see Large kind of merchandise in the same related expenses. We made an addition Power Transformers from Japan; Final country of origin in the LTFV to Daelim’s USP for duty drawback in investigation or a prior administrative Results of Antidumping Duty accordance with section 772(d)(2) of the review; or (2) the highest calculated rate Administrative Review, 57 FR 45767, Act. found in the present administrative DOC Position to Comment 1, October 5, review for any firm for the same class In the 1991 review, Daelim claimed 1992, and High Information Content or kind of merchandise from the same that it incurred warranty expenses to Flat Panel Displays and Display Glass country of origin (Id.). one U.S. customer on sales which Therefore from Japan; Final We, therefore, are using occurred prior to the POR. At Determination; Rescission of uncooperative BIA as the basis for verification, we discovered that Investigation and Partial Dismissal of Namil’s margin in the 1992 review. For Daelim’s warranty expenses were Petition, 56 FR 32376, 32388, DOC Namil, we have used, as BIA, 31.23 actually a recision of a price increase to Position to Hosiden Comment 1, July 16, percent, which is the highest rate the U.S. customer. Daelim’s invoices 1991). calculated for any firm in the first reported the lower price that the U.S. In accordance with section 773(e) of review (see Certain Stainless Steel customer had actually paid for the the Act, the constructed value of the Cooking Ware from the Republic of merchandise. However, in its response models sold in the United States Korea; Final Results of Antidumping to the Department’s questionnaire, included materials, fabrication, general Duty Administrative Review, 58 FR Daelim reported the price to the expenses, profit, and packing. As a 9560, February 22, 1993). customer including the price increase. result of our verification findings for the Consequently, we used the actual lower 1991 review, we recalculated Daelim’s Daelim price charged by Daelim to that 1991 reported costs for direct labor, Daelim responded to the Department’s customer, rather than the prices for U.S. variable overhead, interest expense, questionnaires. However, at verification sales reported by Daelim on its profit, direct selling expenses, indirect for the 1991 review, we discovered computer tape. Because some selling selling expenses, imputed credit, and some U.S. sales, with either sale dates expenses were based on sales value, we general and administrative expenses for or U.S. entry dates during the POR, made additional adjustments to the purpose of deriving constructed which Daelim had failed to report in its Daelim’s reported U.S. brokerage value. We multiplied each by a factor original and supplemental questionnaire expense and export license based on our findings during the responses. The submission of U.S. sales recommendation fee for sales to the one verification of Daelim’s reported cost is a critical element in our calculation U.S. customer. We did not make a data. of the dumping margin. Failure to warranty expense adjustment to the USP As a result, we recalculated total cost provide all of the U.S. sales is a serious of the other U.S. customers. Daelim did of manufacturing, total cost of omission, which can cause our dumping not incur any warranty expenses during production, and total constructed value margin to be distorted. This failure of the 1992 and 1993 PORs. based on the changes to Daelim’s Daelim to fully respond to the For those U.S. sales which Daelim reported costs for the 1991 review. Department’s questionnaire in a timely failed to report prior to verification for Revised total cost of manufacturing manner has led the Department to apply the 1991 review with either sale dates equalled the sum of revised direct labor, partial BIA to its U.S. sales in or entry dates during the POR, we revised variable overhead, fixed accordance with section 776(c). In applied a BIA rate of 31.23 percent. overhead, and direct material costs. 34516 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices Revised total cost of production constructed value, in accordance with market with indirect selling expenses equalled the sum of revised total cost of section 773(e) of the Act. As a result, we from the home market since no manufacturing, revised direct selling recalculated total cost of production and commissions were paid in the home expense, revised indirect selling total constructed value based on the market. expense, revised imputed credit changes to Daelim’s reported costs for In accordance with section expense, revised general and the 1992 and 1993 reviews. Revised 773(e)(1)(B) of the Act, we used the administrative expense, and revised total cost of production equalled the statutory minima of 8 percent for profit interest expense. Revised total sum of total cost of manufacturing and and 10 percent for general expenses for constructed value equalled the sum of total general expenses, which included each review since reported profits and revised total cost of production and revised general and administrative revised profit. expenses, revised interest expenses, and general expenses were less than the As a result of our verification findings selling expenses. Revised total statutory minima for each review. for the 1992 and 1993 reviews, we constructed value equalled the sum of Preliminary Results recalculated Daelim’s reported costs for revised total cost of production and the respective period for general and revised profit. In the 1993 review, in As a result of our reviews, we administrative expenses, interest, and accordance with 19 CFR 353.56 (b)(1), preliminarily determine the dumping profit for the purpose of deriving we offset commissions paid in the U.S. margins to be: Margin Manufacturer/Exporter Time Period (percent) Namil Metal Company, Ltd ...... 1/1/91±12/31/91 11.22 Daelim Trading Company, Ltd ...... 1/1/91±12/31/91 11.22 Namil Metal Company, Ltd ...... 1/1/92±12/31/92 31.23 Daelim Trading Company, Ltd ...... 1/1/92±12/31/92 3.43 Daelim Trading Company, Ltd ...... 1/1/93±12/31/93 0.14 Parties to this proceeding may request these reviews; (2) if Daelim’s latest of the final results of these disclosure within 5 days of publication period of review rate remains de administrative reviews, the level of of this notice and any interested party minimis for the final results, Customs export subsidies as determined in may request a hearing within 10 days of will require a cash deposit of zero Certain Stainless Steel Cooking Ware publication. Any hearing, if requested, percent; (3) for merchandise exported by from the Republic of Korea; Final will be held 44 days after the date of manufacturers or exporters not covered Affirmative Countervailing Duty publication, or the first working day in these reviews but covered in the Determination, 51 FR 42867 (November thereafter. Interested parties may submit original LTFV investigation or a 26, 1986), which is 0.71 percent ad case briefs and/or written comments no previous review, the cash deposit will valorem, will be subtracted from the later than 30 days after the date of continue to be the most recent rate dumping margin for cash deposit publication. Rebuttal briefs and published in the final determination or purposes. There have been no reviews rebuttals to written comments, limited final results for which the manufacturer conducted since the publication of the to issues raised in such briefs or or exporter received a company-specific countervailing duty order. comments, may be filed no later than 37 rate; (4) if the exporter is not a firm days after the date of publication. The covered in these reviews, or the original This notice also serves as a Department will publish a notice of the investigation, but the manufacturer is, preliminary reminder to importers of final results of these administrative the cash deposit rate will be that their responsibility under 19 CFR reviews, which will include the results established for the manufacturer of the 353.26(b) to file a certificate regarding of its analysis of issues raised in any merchandise in the final results of these the reimbursement of antidumping such briefs or comments. reviews, or the LTFV investigation; and duties prior to liquidation of the The Department shall determine, and (5) if neither the exporter nor the relevant entries during these review Customs shall assess, antidumping manufacturer is a firm covered in these periods. Failure to comply with this duties on all appropriate entries. or any previous reviews, the cash requirement could result in the Individual differences between USP and deposit rate will be 8.10 percent, the Secretary’s presumption that FMV may vary from the percentages ‘‘all others’’ rate established in the LTFV reimbursement of antidumping duties stated above. The Department will issue investigation (52 FR 2139, January 20, occurred and the subsequent assessment appraisement instructions directly to 1987). of double antidumping duties. Customs. Article VI, paragraph 5 of the General Furthermore, the following deposit Agreement on Tariffs and Trade These administrative reviews and requirements will be effective upon provides that ‘‘[n]o notice are in accordance with section completion of the final results of these product * * * shall be subject to both 751(a)(1) of the Act (19 U.S.C. administrative reviews for all shipments antidumping and countervailing duties 1675(a)(1)) and 19 CFR 353.22. of certain stainless steel cooking ware to compensate for the same situation of Dated: June 26, 1995. from the Republic of Korea entered, or dumping and export subsidization.’’ Susan G. Esserman, withdrawn from warehouse, for This provision is implemented by Assistant Secretary for Import consumption on or after the publication section 772(d)(1)(D) of the Act. Since Administration. date of the final results of these antidumping duties cannot be assessed [FR Doc. 95–16305 Filed 6–30–95; 8:45 am] administrative reviews, as provided by on the portion of the margin attributable section 751(a)(1) of the Act: (1) the cash to export subsidies, there is no reason to BILLING CODE 3510±DS±P deposit rates for Namil will be that require a cash deposit or a bond for that margin established in the final results of amount. Accordingly, before completion Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices 34517 [A±401±603; A±401±206] accordance with section 353.22 of the The Department will publish in the Department’s regulations (1993), that Federal Register a notice of ‘‘Initiation Welded Stainless Steel Hollow the Department conduct administrative of Antidumping Duty Administrative Products From Sweden; Opportunity reviews of the antidumping duty order Review,’’ for requests received by July To Request Administrative Review on welded SSHP for the periods 31, 1995. If the Department does not AGENCY: Import Administration, December 7, 1990 through November receive, by July 31, 1995, a request for International Trade Administration, 30, 1991, and December 1, 1991 through review of entries covered by the order Department of Commerce. November 30, 1992. listed in this notice and for the period Additionally, since the Department identified above, the Department will ACTION: Notice of opportunity to request instruct Customs to assess antidumping administrative review of antidumping considers welded and seamless SSHP to duties on those entries at a rate equal to duty order. be a single class or kind of merchandise, we are disregarding the separate case the cash deposit of (or bond for) BACKGROUND: On October 9, 1987, the number (A–401–206) under which the estimated antidumping duties required Department of Commerce (the Department instructed the Customs on those entries at the time of entry, or Department) published in the Federal Service (Customs) to suspend withdrawal from warehouse, for Register the final determination of its liquidation of entries of welded SSHP consumption and to continue to collect investigation of sales at less-than-fair- and have instructed Customs to suspend the cash deposit previously ordered. value (LTFV) of stainless steel hollow the liquidation of all entries of SSHP This notice is not required by statute, products (SSHP) from Sweden (52 FR under the original case number (A–401– but is published as a service to the 37810). On November 25, 1987, the 603). Furthermore, since we intend to international trading community. International Trade Commission (ITC) conduct any administrative reviews Dated: June 22, 1995. published its final determination, in requested as a result of this notice under Joseph A. Spetrini, which it found that imports of seamless the original case number (A–401–603), Deputy Assistant Secretary for Compliance. all requests for administrative reviews SSHP were causing material injury to [FR Doc. 95–16311 Filed 6–30–95; 8:45 am] the U.S. industry, but that imports of should be filed under this case number. BILLING CODE 3510±DS±P welded SSHP were not causing injury, OPPORTUNITY TO REQUEST A REVIEW: Not or threatening to cause injury, to the later than July 31, 1995, interested U.S. industry (52 FR 45246). Therefore, parties may request administrative Quarterly Update to Annual Listing of on December 3, 1987, the Department reviews of the following order for the Foreign Government Subsidies on published an antidumping duty order following periods: Articles of Quota Cheese covering only seamless SSHP from AGENCY: Import Administration, Sweden (A–401–603). Antidumping duty pro- Period Subsequently, the domestic producers ceedings International Trade Administration, of SSHP challenged the ITC’s negative Department of Commerce. SWEDEN: Stainless ACTION: Publication of Quarterly Update determination with respect to imports of Steel Welded Hollow welded SSHP before the Court of Products (A±401± to Annual Listing of Foreign International Trade (CIT). On June 20, 603) ...... 12/07/90±11/30/91 Government Subsidies on Articles of 1990, the CIT remanded the SWEDEN: Stainless Quota Cheese. determination to the ITC. Upon remand, Steel Welded Hollow SUMMARY: the ITC determined that the U.S. Products (A±401± The Department of Commerce industry was materially injured by 603) ...... 12/01/91±11/30/92 (the Department), in consultation with imports of welded SSHP from Sweden. the Secretary of Agriculture, has The CIT affirmed the ITC’s In accordance with sections 353.22(a) prepared a quarterly update to its redetermination on November 27, 1990. of the regulations, an interested party as annual list of foreign government Accordingly, the Department published defined by section 353.2(k) may request subsidies on articles of quota cheese. in the Federal Register a notification of in writing that the Secretary conduct an We are publishing the current listing of the CIT’s decision, and instructions, administrative review. The interested those subsidies that we have determined effective December 7, 1990, to suspend party must specify for which individual exist. the liquidation of entries of welded producers or resellers covered by an EFFECTIVE DATE: July 1, 1995. SSHP from Sweden (55 FR 51745, antidumping finding or order it is FOR FURTHER INFORMATION CONTACT: December 17, 1990). requesting a review, and must state why Brian Albright or Maria MacKay, Office Following the Court of Appeals for it desires the Secretary to review those of Countervailing Compliance, Import the Federal Circuit’s (CAFC) affirmation particular producers or resellers. Administration, International Trade of the CIT’s decision, the ITC published Seven copies of the request should be Administration, U.S. Department of its final affirmative determination of submitted to the Assistant Secretary for Commerce, 14th Street and Constitution injury for the antidumping duty Import Administration, International Ave., NW., Washington, DC 20230, investigation of welded SSHP from Trade Administration, Room B–099, telephone: (202) 482–2786. Sweden (57 FR 42761). Subsequently, U.S. Department of Commerce, SUPPLEMENTARY INFORMATION: Section the Department published an amended Washington, D.C. 20230. The 702(a) of the Trade Agreements Act of antidumping duty order for SSHP from Department also asks parties to serve a 1979 (the Act) requires the Department Sweden on November 5, 1992 (57 FR copy of their requests to the Office of to determine, in consultation with the 52761) in order to include welded, Antidumping Compliance, Attention: Secretary of Agriculture, whether any along with seamless, SSHP in the scope John Kugelman, in room 3065 of the foreign government is providing a of the order. main Commerce Building. Further, in subsidy with respect to any article of The Department is now issuing an accordance with section 353.3l(g), a quota cheese, as defined in section opportunity notice for interested parties, copy of each request must be served on 701(c)(1) of the Act, and to publish an as defined in section 771(9) of the Tariff every party on the Department’s service annual list and quarterly updates of the Act of 1930, as amended, to request, in list. type and amount of those subsidies. 34518 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices The Department has developed, in for which information is currently the Assistant Secretary for Import consultation with the Secretary of available. Administration, U.S. Department of Agriculture, information on subsidies The Department will incorporate Commerce, 14th Street and Constitution (as defined in section 702(h)(2) of the additional programs which are found to Avenue, NW., Washington, DC 20230. Act) being provided either directly or constitute subsidies, and additional This determination and notice are in indirectly by foreign governments on information on the subsidy programs accordance with section 702(a) of the articles of quota cheese. The appendix listed, as the information is developed. Act. The Department encourages any to this notice lists the country, the person having information on foreign Dated: June 26, 1995. subsidy program or programs, and the government subsidy programs which Susan G. Esserman, gross and net amounts of each subsidy benefit articles of quota cheese to Assistant Secretary for Import submit such information in writing to Administration. APPENDIXÐQUOTA CHEESE SUBSIDY PROGRAMS 1 Gross sub- 2 Country Program(s) sidy Net subsidy Austria ...... Export Restitution Payments ...... 58.4¢/lb. 58.4/lb. Belgium ...... European Community (EC) Restitution Payments ...... 41.4¢/lb. 41.4¢/lb. Canada ...... Export Assistance on Certain Types of Cheese ...... 24.9¢/lb. 24.9¢/lb. Denmark ...... EC Restitution Payments ...... 42.2¢/lb. 42.2¢/lb. Finland ...... Export Subsidy ...... 55.7¢/lb. 55.7¢/lb. France ...... EC Restitution Payments ...... 37.8¢/lb. 37.8¢/lb. Germany ...... EC Restitution Payments ...... 50.1¢/lb. 50.1¢/lb. Greece ...... EC Restitution Payments ...... 0.0¢/lb. 0.0¢/lb. Ireland ...... EC Restitution Payments ...... 35.2¢/lb. 35.2¢/lb. Italy ...... EC Restitution Payments ...... 88.8¢/lb. 88.8¢/lb. Luxembourg ...... EC Restitution Payments ...... 41.4¢/lb. 41.4¢/lb. Netherlands ...... EC Restitution Payments ...... 38.5¢/lb. 38.5¢/lb. Norway ...... Indirect (Milk) Subsidy ...... 18.4¢/lb. 18.4¢/lb. Consumer Subsidy ...... 40.8¢/lb. 40.8¢/lb. Total ...... 59.2¢/lb. 59.2¢/lb. Portugal ...... EC Restitution Payments ...... 33.8¢/lb. 33.8¢/lb. Spain ...... EC Restitution Payments ...... 44.4¢/lb. 44.4¢/lb. Switzerland ...... Deficiency Payments ...... 171.2¢/lb. 171.2¢/lb. U.K...... EC Restitution Payments ...... 35.3¢/lb. 35.3¢/lb. 1 Defined in 19 U.S.C. 1677(5). 2 Defined in 19 U.S.C. 1677(6). [FR Doc. 95–16304 Filed 6–30–95; 8:45 am] SUPPLEMENTARY INFORMATION: Countervailing Duty Orders BILLING CODE 3510±DS±P Background Argentina: Wool (C–357–002), 04/04/83, 48 FR 14423 On March 31, 1995, the Department Malaysia: Carbon Steel Wire Rod (C– Determination Not To Revoke published in the Federal Register (60 557–701), 04/22/88, 53 FR 13303 Countervailing Duty Orders FR 16620) its intent to revoke the Peru: Pompon Chrysanthemums (C– countervailing duty orders listed below. 333–601), 04/23/87, 52 FR 13491 AGENCY: Import Administration, Under 19 CFR 355.25(d)(4)(iii), the Dated: June 22, 1995. International Trade Administration, Secretary of Commerce will conclude Joseph A. Spetrini, Department of Commerce. that an order is no longer of interest to interested parties and will revoke the Deputy Assistant Secretary for Compliance. ACTION: Notice of Determination Not to [FR Doc. 95–16301 Filed 6–30–95; 8:45 am] Revoke Countervailing Duty Orders. order if no domestic interested party (as defined in sections 355.2(i)(3), (i)(4), BILLING CODE 3510±DS±P (i)(5), and (i)(6) of the regulations) SUMMARY: The Department of Commerce objects to revocation and no interested (the Department) is notifying the public [C±614±503] party requests an administrative review of its determination not to revoke the by the last day of the 5th anniversary countervailing duty orders listed below. Lamb Meat From New Zealand; month. Termination of Countervailing Duty EFFECTIVE DATE: July 3, 1995. Within the specified time frame, for Administrative Review these countervailing duty orders, we FOR FURTHER INFORMATION CONTACT: AGENCY: Import Administration, received either an objection from a Brian Albright or Maria MacKay, Office International Trade Administration, of Countervailing Compliance, Import domestic interested party to our intent Department of Commerce. Administration, International Trade to revoke or a request for review. Therefore, because the requirements of ACTION: Notice of Termination of Administration, U.S. Department of Countervailing Duty Administrative Commerce, 14th Street and Constitution 19 CFR 355.25(d)(4)(iii) have not been met, we will not revoke these orders. Review. Avenue, N.W., Washington, D.C. 20230; telephone: (202)482–2786. This determination is in accordance SUMMARY: The Department of Commerce with 19 CFR 355.25(d)(4). (the Department) is terminating the Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices 34519 1993–1994 administrative review on National Oceanic and Atmospheric An Applications Kit can be obtained lamb meat from New Zealand because Administration from: Grant Management Division, the countervailing duty order has been National Oceanic and Atmospheric revoked effective March 31, 1993. The [Docket No. 950621163±5163±01] Administration, 1325 East West review was initiated on October 13, RIN: 0648±ZA17 Highway, Room 5426, Silver Spring, MD 1994, (59 FR 51939) for the period April 20910. 1, 1993 through March 31, 1994. NOAA Pan-American Climate Studies FOR FURTHER INFORMATION CONTACT: EFFECTIVE DATE: July 3, 1995. (PACS), Program Announcement Michael Patterson at the above address, FOR FURTHER INFORMATION CONTACT: AGENCY: Office of Global Programs, Gayle Longest or Kelly Parkhill, Office 301–427–2089x12, Internet: National Oceanic and Atmospheric [email protected]; or Stephen of Countervailing Compliance, Import Administration, Commerce. Administration, International Trade Piotrowicz, NOAA/Office of Oceanic ACTION: Administration, U.S. Department of Notice. and Atmospheric Research, 1315 East- West Highway, Rm 11560, Silver Commerce, 14th Street and Constitution SUMMARY: The Pan-American Climate Avenue, N.W., Washington, D.C., 20230; Studies (PACS) Program is a Spring, MD 20910, 301–713–2465, telephone: (202) 482–2786. contribution to the National Oceanic Internet: [email protected]. SUPPLEMENTARY INFORMATION: and Atmospheric Administration SUPPLEMENTARY INFORMATION: (NOAA) Climate and Global Change Background Program, and as such is designed to Funding Availability On May 22, 1995, the Department improve our ability to observe, This Program Announcement is for issued the final results of the understand, predict, and respond to projects to be conducted by administrative review for the 1992–1993 changes in the global environment. This investigators both inside and outside of period of review, and revoked the entire program builds on NOAA’s mission NOAA, over a period of up to three countervailing duty order effective requirements and longstanding years. NOAA believes that the Climate March 31, 1993 (60 FR 27082). The capabilities in global change research and Global Change Program will benefit Department found that the GONZ had and prediction. The PACS Program is a met the requirements for revocation of contributing element of the U.S. Global significantly from a strong partnership the countervailing duty order pursuant Change Research Program (USGCRP), with outside investigators. Current to 19 CFR § 355.25(a)(1) and 19 CFR which is coordinated by the interagency Program plans assume that 355.25(b)(1). Based upon certification by Committee on Environmental and approximately 50% of the total GONZ, as well as from the Department’s Natural Resources. NOAA’s program is anticipated new resources available ($0– previous two consecutive administrative designed to complement other agency 5–1.0 million) in FY 1996 will support reviews, the Department determined contributions to that national effort. extramural efforts, particularly those involving the academic community. that the GONZ has abolished all subsidy DATES: Strict deadlines for submission programs for lamb meat for a period of to the FY 1996 process are: Letters of Actual funding levels may be subject to three consecutive years. In addition, the Intent must be received at the Office or change depending on the final FY 1996 GONZ has certified that it will not Global Program (OGP) no later than budget appropriation. For Federal reinstate the abolished programs or August 2, 1995. Full proposals must be Government investigators, funding will substitute other countervailable received at OGP no later than September be provided through intra- or programs. The Department further 22, 1995. Applicants should receive interagency transfers, as appropriate. determined that there was no likelihood notification of the suitability of their For non-Federal investigators, the that the GONZ would substitute or intended proposals by August 11, 1995. funding instrument will be a grant replace formerly countervailable Investigators who have not received unless it is anticipated that NOAA will programs with new subsidies. notification by that date should contact be substantially involved in the Prior to the Department’s final the program office. The time from target implementation of the project for which determination to revoke the order, there date to grant award varies with program an award is to be made, in which case was an opportunity for interested area. We anticipate that review of the the funding instrument should be a parties to request an administrative full proposal will occur during the fall cooperative agreement. Examples of review of this order for the period April of 1995 and funding should begin substantial involvement may include 1, 1993, through March 31, 1994. The during the early spring of 1996 for most but are not limited to proposals for GONZ submitted a request for an approved projects. April 1, 1996, should collaboration between NOAA or NOAA administrative review of this period on be used as the proposed start date on scientists and a recipient scientist or September 30, 1994 and the Department proposals, unless otherwise directed by technician and/or contemplation by initiated the review on October 13, 1994 a Program Manager. Applicants should NOAA of detailing Federal personnel to (59 FR 51939). be notified of their status within 6 work on proposed projects. NOAA will Since the Department revoked the months. All proposals must be make decisions regarding the use of a order effective March 31, 1993, there is submitted in accordance with the cooperative agreement on a case-by-case no basis for completing the guidelines below. Failure to heed these administrative review covering the basis. Funding for non-U.S. institutions guidelines may result in proposals being and contractual arrangements for 1993–1994 period. Therefore, the returned without review. Department is hereby terminating this services and products for delivery to ADDRESSES: Proposals should be review. NOAA are not available under this submitted to: announcement. Dated: June 22, 1995. Office of Global Programs, National Joseph A. Spetrini, Oceanic and Atmospheric Program Authority Deputy Assistant Secretary for Compliance. Administration, 1100 Wayne Avenue, Authority: 49 U.S.C. App. 1463; 33 U.S.C. [FR Doc. 95–16306 Filed 6–30–95; 8:45 am] Suite 1225, Silver Spring, MD 20910– 883d, 883e; 15 U.S.C. 2904; 15 U.S.C. 2931 BILLING CODE 3510±DS±P 5603, Attn: Michael Patterson et seq. 34520 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices (CFDA No. 11.431)—Climate and sets (particularly satellite observations), data management considerations; Atmospheric Research field projects, and modeling efforts. project milestones; and final products. Empirical studies should provide (4) Readiness (20%): Nature of the Program Objectives preliminary analysis of data available in problem; relevant history and status of PACS is a joint Program of the NOAA the eastern Pacific in an effort to existing work; level of planning, Office of Global Programs (OGP) and establish the background climatology including existence of supporting Office of Oceanic and Atmospheric required for model validation and field documents; strength of proposed Research (OAR)/Environmental program planning in this region. scientific and management team; past Research Laboratories (ERL) which falls Proposals in response to the performance record of proposers. within the scope of the U.S. GOALS announcement are expected to be of one (5) Linkages (10%): Connections to (Global Ocean-Atmosphere-Land to three years duration. existing or planned national and System) Program. PACS is designed to international programs; partnerships advance the ability to predict seasonal Eligibility with other agency or NOAA to interannual climate variability, Extramural eligibility is not limited participants, where appropriate. particularly summertime precipitation, and is encouraged with the objective of (6) Costs (10%): Adequacy of over the Americas. Specific scientific developing a strong partnership with proposed resources; appropriate share of objectives are to better understand and the academic community. Non- total available resources; prospects for more realistically model (1) the academic proposers are urged to seek joint funding; identification of long-term seasonally varying mean climate over collaboration with academic commitments. Matching funding is the Americas and adjacent ocean institutions. Universities, non-profit encouraged, but is not required. regions, with emphasis on the organizations, for profit organizations, Selection Procedures intertropical convergence zones, the State and local governments, and Indian North and South American monsoons, Tribes, are included among entities All proposals will be evaluated and the equatorial cold tongues, the eligible for funding under this ranked in accordance with the assigned subtropical oceanic stratus decks, and announcement. weights of the above evaluation criteria the dominant tropical and extratropical The NOAA Climate and Global by (1) independent peer mail review, cyclone tracks; (2) the role of boundary Change Program has been approved for and/or (2) independent peer panel processes in forcing seasonal to multi-year funding up to a three year review; both NOAA and non-NOAA interannual climate variability, with duration. Funding for non-U.S. experts in the field may be used in this emphasis on tropical sea surface institutions is not available under this process. Their individual temperature in relation to continental announcement. recommendations and evaluations will precipitation; (3) the coupling between be considered by the Program Managers the oceanic mixed layer and the Letters of Intent in final selections. Those ranked by the atmospheric planetary boundary layer Letters of Intent: (1) Letters should be panel and program as not recommended in the tropical Atlantic and eastern no more than two pages in length and for funding will not be given further Pacific; and (4) the processes that include the name and institution of consideration and will be notified of determine the structure and evolution of principal investigator(s), a statement of non-selection. For the proposals rated the tropical sea surface temperature the problem, brief summary of work to either Excellent, Very Good or Good, the field. be completed, approximate cost of the Program Managers will: (a) Ascertain Program Priorities project, and program element(s) to which proposals meet the objectives, fit which the proposal should be directed. the criteria posted, and do not With limited funding anticipated for (2) Evaluation will be by program substantially duplicate other projects new starts in FY 1996, NOAA will place management, according to the selection that are currently funded by NOAA or emphasis on new projects designed to criteria for full proposals described. (3) are approved for funding by other improve the understanding and It is in the best interest of applicants federal agencies, (b) select the proposals modeling of coupled ocean-atmosphere and their institutions to submit letters of to be funded, (c) determine the total interactions in the eastern tropical intent; however, it is not a requirement. duration of funding for each proposal, Pacific Ocean. This region has been (4) Facsimile and electronic mail are and (d) determine the amount of funds identified as an initial target in PACS acceptable for letters of intent only. (5) available for each proposal. Awards are because of its importance in influencing Projects deemed unsuitable during not necessarily made to the highest- the seasonally-varying precipitation program review should not be submitted scored proposals, even though scoring is over the American continents. Proposals as full proposals. one of several factors considered in are encouraged to focus on pilot field selecting proposals for award. observations, data management, and Evaluation Criteria Unsatisfactory performance by a empirical studies. Pilot field observing Consideration for financial assistance recipient under prior Federal awards efforts are needed to provide improved will be given to those proposals which may result in an application not being measurements of rainfall, surface fluxes address one of the Program Priorities considered for funding. and upper ocean and atmospheric listed above and meet the following Proposal Submission dynamics in the East Pacific evaluation criteria: Intertropical Convergence Zone (ITCZ) (1) Scientific Merit (20%): Intrinsic The guidelines for proposal and other important phenomena in the scientific value of the subject and the preparation provided below are eastern Pacific Ocean. Field observing study proposed. mandatory. Failure to heed these projects are expected, to the greatest (2) Relevance (20%): Importance and guidelines may result in proposals being extent possible, to build upon existing relevance to the goal of the Climate and returned without review. observing systems and planned field Global Change Program and to the (a) Full Proposals: (1) Proposals projects and to be well coordinated with research areas listed above. submitted to the NOAA Climate and other observing efforts in the region. (3) Methodology (20%): Focused Global Change Program must include Data management activities should aim scientific objective and strategy, the original and two unbound copies of at providing PACS-related global data including measurement strategies and the proposal. (2) Investigators are not Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices 34521 required to submit more than 3 copies with the appropriate Program Officer 3. Anti-Lobbying—Persons (as defined of the proposal. (3) Proposals must be prior to submission. In general, at 15 CFR part 28, section 105) are limited to 30 pages (numbered), proposals from 3 or more investigators subject to the lobbying provisions of 31 including budget, investigators’ vitae, may include a statement of work U.S.C. 1352, ‘‘Limitation on use of and all appendices, and should be containing up to 15 pages of overall appropriated funds to influence certain limited to funding requests for one to project description plus up to 5 Federal contracting and financial three year duration. Appended additional pages for individual project transactions’’, and the lobbying section information may not be used to descriptions. of the certification form prescribed circumvent the page length limit. (5) Budget: Applicants must submit a above applies to applications/bids for Federally mandated forms are not Standard Form 424 (4–92) ‘‘Application grants, cooperative agreements, and included within the page count. (4) for Federal Assistance’’, including a contracts for more than $100,000, and Proposals should be sent to the NOAA detailed budget using the Standard loans and loan guarantees for more than Office of Global Programs at the above Form 424a (4–92), ‘‘Budget $150,000, or the single family maximum address. (5) Facsimile transmissions and Information—Non-Construction mortgage limit for affected programs, electronic mail submission of full Programs’’. The form is included in the whichever is greater; and proposals will not be accepted. standard NOAA application kit. The 4. Anti-Lobbying Disclosures—Any (b) Required Elements: All proposals proposal must include detailed total and applicant that has paid or will pay for should include the following elements: annual budgets corresponding with the lobbying using any funds must submit (1) Signed title page: The title page descriptions provided in the statement an SF–LLL, ‘‘Disclosure of Lobbying should be signed by the Principal of work. Additional text to justify Activities,’’ as required under 15 CFR Investigator (PI) and the institutional expenses should be included as part 28, appendix B. representative and should clearly necessary. Lower Tier Certifications—Recipients indicate which project area is being (6) Vitae: Abbreviated curriculum must require applicants/bidders for addressed. The PI and institutional vitae are sought with each proposal. subgrants, contracts, subcontracts, or representative should be identified by Reference lists should be limited to all lower tier covered transactions at any fullname, title, organization, telephone publications in the last three years with tier under the award to submit, if number and address. The total amount up to five other relevant papers. applicable, a completed Form CD–512, of Federal funds being requested should (7) Current and pending support: For ‘‘Certifications Regarding Debarment, be listed for each budget period. each investigator, submit a list that (2) Abstract: An abstract must be Suspension, Ineligibility and Voluntary includes project title, supporting agency Exclusion-Lower Tier Covered included and should contain an with grant number, investigator months, introduction of the problem, rationale Transactions and Lobbying’’ and dollar value and duration. Requested disclosure form SF–LLL, ‘‘Disclosure of and a brief summary of work to be values should be listed for pending completed. The abstract should appear Lobbying Activities.’’ Form CD–512 is support. intended for the use of recipients and on a separate page, headed with the (8) List of suggested reviewers: The should not be transmitted to DOC. SF– proposal title, institution(s) cover letter may include a list of LLL submitted by any tier recipient or investigator(s), total proposed cost and individuals qualified and suggested to subrecipient should be submitted to budget period. review the proposal. It also may include DOC in accordance with the (3) Results from prior research: The a list of individuals that applicants instructions contained in the award results of related projects supported by would prefer to not review the proposal. document. NOAA and other agencies should be Such lists may be considered at the (2) Recipients and subrecipients are described, including their relation to the discretion of the Program Officer. currently proposed work. Reference to (c) Other requirements: subject to all applicable Federal laws each prior research award should (1) Applicants may obtain a standard and Federal and Department of include the title, agency, award number, NOAA application kit from the Program Commerce policies, regulations, and PIs, period of award and total award. Office. procedures applicable to Federal The section should be a brief summary Primary applicant Certification—All financial assistance awards. and should not exceed two pages total. primary applicants must submit a (3) Preaward Activities—If applicants (4) Statement of work: The proposed completed Form CD–511, ‘‘Certification incur any costs prior to an award being project must be completely described, Regarding Debarment, Suspension and made, they do so solely at their own risk including identification of the problem, Other Responsibility Matters: Drug-Free of not being reimbursed by the scientific objectives, proposed Workplace Requirements and Government. Notwithstanding any methodology, relevance to the goal of Lobbying’’. Applicants are also hereby verbal assurance that may have been the Climate and Global Change Program, notified of the following: received, there is no obligation to the and the program priorities listed above. 1. Nonprocurement Debarment and applicant on the part of Department of Benefits of the proposed project to the Suspension—Prospective participants Commerce to cover pre-award costs. general public and the scientific (as defined at 15 CFR part 26, section (4) This program is subject to the community should be discussed. A 105) are subject to 15 CFR part 26, requirements of OMB Circular No. A– year-by-year summary of proposed work ‘‘Nonprocurement Debarment and 110, ‘‘Uniform Administrative must be included clearly indicating that Suspension,’’ and the related section of Requirements for Grants and Other each year’s proposed work is severable the certification from prescribed above Agreements with Institutions of Higher and can easily be separated into annual applies; Education, Hospitals, and Other Non- increments of meaningful work. The 2. Drug Free Workplace—Grantees (as Profit Organizations’’, and 15 CFR part statement of work, including references defined at 15 CFR part 26, section 605) 24, ‘‘Uniform Administrative but excluding figures and other visual are subject to 15 CFR part 26, subpart Requirements for Grants and materials, must not exceed 15 pages of F, ‘‘Governmentwide Requirements for Cooperative Agreements to State and text. Investigators wishing to submit Drug-Free Workplace (Grants)’’ and the Local Governments’’, as applicable. group proposals that exceed the 15 page related section of the certification form Applications under this program are not limit should discuss this possibility prescribed above applies; subject to Executive Order 12372, 34522 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices ‘‘Intergovernmental Review of Federal Classification: This notice has been comply with standards or regulations Programs.’’ determined to be not significant for enforced under provisions of the (5) All non-profit and for-profit purposes of Executive Order 12866. The Consumer Product Safety Act, the applicants are subject to a name check standard forms have been approved by Federal Hazardous Substances Act, or review process. Name checks are the Office of Management and Budget the Flammable Fabrics Act. intended to reveal if any key individuals pursuant to the Paperwork Reduction Estimated number of respondents: associated with the applicant have been Act under OMB approval number 0348– 160 per year. convicted of, or are presently facing 0043–0348–0044, and 0348–0046. Estimated average number of responses per respondent: 1.125 per criminal charges such as fraud, theft, Dated: June 27, 1995. perjury, or other matters which year. J. Michael Hall, significantly reflect on the applicant’s Estimated number of responses for all management, honesty, or financial Director, Office of Global Programs, National respondents: 180 per year. Oceanic and Atmospheric Administration. integrity. Estimated number of hours per (6) A false statement of an application [FR Doc. 95–16288 Filed 6–30–95; 8:45 am] response: 1. is grounds for denial or termination of BILLING CODE 3510±12±M Estimated number of hours for all funds and grounds for possible respondents: 180 per year. punishment by a fine or imprisonment Comments: Comments on this request as provided in 18 U.S.C. 1001. CONSUMER PRODUCT SAFETY for extension of approval of information (7) No award of Federal funds shall be COMMISSION collection requirements should be made to an applicant who has an addressed to Donald Arbuckle, Desk outstanding delinquent Federal debt Notification of Request for Extension Officer, Office of Information and until either: of Approval of Information Collection Regulatory Affairs, Office of (i) The delinquent account is paid in RequirementsÐProcedures for Export Management and Budget, Washington, full, of Noncomplying Products D. C. 20503; telephone: (202) 395–7340. Copies of the request for extension of (ii) A negotiated repayment schedule AGENCY: Consumer Product Safety is established and at least one payment Commission. information collection requirements are is received, or available from Nicholas Marchica, ACTION: (iii) Other arrangements satisfactory to Notice. Office of Planning and Evaluation, the Department of Commerce are made. SUMMARY: In accordance with provisions Consumer Product Safety Commission, (8) Buy American-Made Equipment or of the Paperwork Reduction Act (44 Washington, D. C. 20207; telephone: Products—Applicants are encouraged U.S.C. Chapter 35), the Consumer (301) 504–0416. that any equipment or products Product Safety Commission has This is not a proposal to which 44 authorized to be purchased with submitted to the Office of Management U.S.C. 3504(h) is applicable. funding provided under this program and Budget a request for extension of Dated: June 27, 1995. must be American-made to the approval through September 30, 1998, Sadye E. Dunn, maximum extent feasible. of information collection requirements Secretary, Consumer Product Safety (9) The total dollar amount of the in regulations codified at 16 CFR Part Commission. indirect costs proposed in an 1019, which establish procedures for [FR Doc. 95–16314 Filed 6–30–95; 8:45 am] application under this program must not export of noncomplying products. These BILLING CODE 6355±01±P exceed the indirect cost rate negotiated regulations implement provisions of the and approved by a cognizant Federal Consumer Product Safety Act, the agency prior to the proposed effective Federal Hazardous Substances Act, and DEPARTMENT OF DEFENSE date of the award or 100 percent of the the Flammable Fabrics Act which total proposed direct cost dollar amount require persons and firms to notify the Office of the Secretary in the application, whichever is less. Commission before exporting any (d) If an application is selected for product which fails to comply with an Notice of Meeting funding, the Department of Commerce applicable standard or regulation AGENCY: Defense Advisory Committee has no obligation to provide any enforced under provisions of those laws. additional future funding in connection on Women in the Services The Commission is required by law to (DACOWITS), DoD. with the award. Renewal of an award to transmit the information relating to the increase funding or extend the period of proposed exportation to the government SUMMARY: Pursuant to Public Law 92– performance is at the total discretion of of the country of intended destination. the Department of Commerce. 463, notice is hereby given of a (e) In accordance with Federal Additional Information About the forthcoming meeting of the Executive statutes and regulations, no person on Request for Extension of Approval of Committee of the Defense Advisory grounds of race, color, age, sex, national Information Collection Requirements Committee on Women in the Services origin or disability shall be excluded (DACOWITS). The purpose of the Agency address: Consumer Product meeting is to review the current status from participation in, denied benefits of, Safety Commission, Washington, D.C. or be subjected to discrimination under of recommendations and requests for 20207. information generated at the 1995 any program or activity receiving Title of information collection: Spring Conference, discuss other issues financial assistance from the NOAA Procedures for export of noncomplying relevant to women in the Services and Climate and Global Change Program. products. The NOAA Climate and Global Change Type of request: Extension of conduct business internal to the Program does not have direct TDD approval. Committee. All meeting sessions will be (Telephonic Device for the Deaf) Frequency of collection: Varies open to the public. capabilities, but can be reached through depending upon volume of DATES: September 18, 1995, 8:30 a.m.– the State of Maryland supplied TDD noncomplying goods exported. 4 p.m. contact number, 800–735–2258, General description of respondents: ADDRESSES: SecDef Conference Room between the hours of 8 a.m.–4:30 p.m. Exporters of products which fail to 3E869, The Pentagon, Washington, DC. Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices 34523 FOR FURTHER INFORMATION CONTACT: Realignment Commission recommended Dated: June 26, 1995. Lieutenant Colonel Patricia Kersey, the closure of the Lexington Facility, Lewis D. Walker, USAF, Office of DACOWITS and Blue Grass Army Depot, Lexington, Deputy Assistant Secretary of the Army, Military Women Matters, OUSD Kentucky. This recommendation (Environment, Safety and Occupational (Personnel and Readiness), The became law on January 5, 1989. Health) OASA (IL&E). Pentagon, Room 3D769, Washington, DC The environmental assessment [FR Doc. 95–16298 Filed 6–30–95; 8:45 am] 20301–4000, Telephone (703) 697–2122. evaluates the environmental impacts BILLING CODE 3710±08±M Dated: June 28, 1995. associated with the transfer of the entire L.M. Bynum, facility (except for one building and its Alternate OSD Federal Register Liaison surrounding property) in phases, as any Officer, Department of Defense. necessary remediation of buildings and DEPARTMENT OF EDUCATION [FR Doc. 95–16302 Filed 6–30–95; 8:45 am] land is complete, to the Commonwealth BILLING CODE 5000±04±M of Kentucky for light industrial and [CFDA No. 84.031A, CFDA No. 84.031G] park/recreation uses similar to those for which the facility is currently being Extension of Closing Date for Receipt Department of the Air Force used. The facility is leased by the of Applications for Designation as an Commonwealth. Portions of the facility Eligible Institution for Fiscal Year (FY) Intent to Grant an Exclusive Patent are being used by U.S. Special 1995 for the Strengthening Institutions License Operations Command (USSOCOM), the and Endowment Challenge Grant Pursuant to the provisions of Part 404 Kentucky National Guard, and the Retro Programs of Title 37, Code of Federal Regulations, Europe Mission. It is the which implements Pub. L. 96–517, the Commonwealth’s intention to permit The Department of Education Department of the Air Force announces the continued use of the facility by published a notice in the Federal its intention to grant E/M Corporation, USSOCOM, the Kentucky National Register of March 13, 1995 (60 FR a corporation of the State of Delaware, Guard, and the Retro Europe Mission 13423) that established April 3, 1995 as an exclusive license under: United and to create the setting for an industrial the closing date for submission of States Patent No. 4,828,729 filed in the park of approximately 570 acres with a applications to be designated as an name of Phillip W. Centers for target goal of approximately 1,850 eligible institution under the ‘‘Molybdenum Disulfide - Molybdenum employees by the year 2,000. Also, the Strengthening Institutions and Oxide Lubricants’’. Commonwealth intends to use Endowment Challenge Grant programs The license described above will be approximately 210 acres for park and for Fiscal Year 1995. The Department is granted unless an objection thereto, recreational uses. Current employment reopening and extending the application together with a request for an levels at the Lexington Facility is period to July 14, 1995 to allow opportunity to be heard, if desired, is approximately 640 personnel. institutions that have already submitted received in writing by the addressee set There would be no significant impacts eligibility applications to correct and forth below within sixty (60) days from in connection with the proposed action clarify reported data. the date of publication of this Notice. or the No Action/Caretaker alternative. For Applications or Information Copies of the patent may be obtained, Transfer to the Commonwealth of Contact: Strengthening Institutions on request, from the same addressee. Kentucky would provide like use Program Branch, Division of All communications concerning this activities at a maximum employment Institutional Development, U.S. Notice should be sent to: Mr. Samuel B. level. Neither alternative would result Department of Education, 600 Smith, Jr., Chief, Intellectual Property in long-term significant direct adverse Branch, Commercial Litigation Division, impacts on public health and safety. Independence Avenue, S.W., Suite 600, Air Force Legal Services Agency, The proposed action of transfer/disposal Portals Building, Washington, D.C. AFLSA/JACNP, 1501 Wilson Blvd. Suite would not contribute to significant 20202–5335. Telephone: (202) 708– 805, Arlington, VA 22209–2403, cumulative impacts. Accordingly, a 8839. Individuals who use a Telephone No. (703) 696–9050. Finding of No Significant Impact has telecommunications device for the deaf Patsy J. Conner, been prepared. (TDD) may call the Federal Information Air Force Federal Register Liaison Officer. Relay Service (FIRS) at 1–800–877–8339 [FR Doc. 95–16226 Filed 6–30–95; 8:45 am] DATES: Written public comments and between 8 a.m. and 8 p.m., Eastern time, suggestions will be accepted by July 18, BILLING CODE 3910±01±P Monday through Friday. 1995. Information about the Department’s ADDRESSES: Copies of the funding opportunities, including copies Department of the Army Environmental Assessment and Finding of application notices for discretionary Environmental Assessment and of No Significant Impact can be grant competitions, can be viewed on Finding of No Significant Impact for obtained by writing to the U.S. Army the Department’s electronic bulletin Disposal and Reuse of the Lexington Engineer District, Louisville, Corps of board (ED Board), telephone (202) 260– Facility of Blue Grass Army Depot Engineers, ATTN: CEORL–PD–R (Mr. 9950; or on the Internet Gopher Server Robert Woodyard, Chief, Environmental at GOPHER.ED.GOV (under AGENCY: Department of the Army, DOD. Analysis Branch), P.O. Box 59, Announcements, Bulletins and Press ACTION: Notice of Availability. Louisville, Kentucky 40201–0059 or by Releases). However, the official calling Mr. Robert Woodyard at (502) application notice for a discretionary SUMMARY: In accordance with Public 582–5774 within 15 days of the date of grant competition is the notice Law 100–526, the Defense the publication of this notice. Authorizations and Amendments and published in the Federal Register. Base Closure and Realignment Act of FOR FURTHER INFORMATION CONTACT: Program Authority: 20 U.S.C. 1057, 1059c 1988, the Defense Base Closure and Mr. Robert Woodyard at (502) 582–5774. and 1065a. 34524 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices Dated: June 28, 1995. will be represented on the process cheaper way to locate oil seeps David A. Longanecker, improvement team, thereby ensuring compared to seismic surveying. The Assistant Secretary for Postsecondary that the program is appropriate for applicant’s exploration method will Education. financial assistance, and a transaction cover a greater area of the sea with an [FR Doc. 95–16290 Filed 6–30–95; 8:45 am] determination will be made by the equivalent degree of accuracy than with BILLING CODE 4000±01±P Contracting Officer. current methods. Therefore, the Deviation Number 2 deviates from the technology presents a higher probability 12-month budget period limitation of opening up new oil fields, and thus DEPARTMENT OF ENERGY contained in 600.31(b). This deviation is will have a long-term beneficial effect necessary to permit awards to projects upon the Nation’s energy supply. Deviations for Expedited Financial with budget periods in excess of 12 The inventor and principal Assistance Projects months, if necessary to meet project investigator, Dr. Keith F. M. Thompson objectives. has extensive experience in petroleum AGENCY: Department of Energy. Deviation Number 3 permits the geochemistry. He has written numerous ACTION: Class deviations. withholding of payment for failure to journal articles and is an active member meet established milestone schedules in several geochemical and geological SUMMARY: The Department of Energy with verbal notice of failure to make societies. For the proposed project, Dr. (DOE), pursuant to 10 CFR 600.4, hereby progress, thereby providing adequate Thompson will utilize the marine announces three deviations from its advance notice of non-compliance. This engineering staff and facilities of HBOI. Financial Assistance Rules for an is a deviation to 600.122(h) and 600.28 The proposed project is not eligible for expedited financial assistance pilot and furthers the program objective of financial assistance under a recent, program with commercial firms. The reducing administrative burden. current or planned solicitation because This deviation expires on September approval of these deviations ensures the funding program, the Energy Related 30, 1997. that the program goals and objectives Invention Program (ERIP), has been are achieved and that public funds are Issued in Washington, DC June 20, 1995. structured since its beginning in 1975 to conserved. Richard H. Hopf, operate without competitive A process improvement team has Deputy Assistant Secretary for Procurement solicitations because the authorizing been established to execute cost-shared and Assistance Management. legislation directs ERIP to provide projects with commercial firms using [FR Doc. 95–16296 Filed 6–30–95; 8:45 am] support for worthy ideas submitted by best commercial practices. The goal of BILLING CODE 6450±01±P the public. The program has never this team is to test techniques for issued and has no plans to issue a improving DOE’s process for entering competitive solicitation. This award into cooperative agreements for research Financial Assistance Award: will be made 14 calendar days after and development with commercial Petrosurveys, Inc. publication to allow for public firms. comment. The three deviations have been AGENCY: Department of Energy. approved because they are required to ACTION: Notice of Intent. FOR FURTHER INFORMATION CONTACT: achieve program objectives. The first Please write the U.S. Department of SUMMARY: The U.S. Department of deviation waives the requirement for a Energy, Office of Placement and Energy announces that pursuant to 10 principal program purpose Administration, ATTN: Sara Wilson, CFR 600.6(a)(2) it is making a financial determination, the second deviation HR–561.21, 1000 Independence Ave., assistance award under Grant Number will permit budget periods in excess of S.W., Washington, D.C. 20585. DE–FG01–95CE15626 to Petrosurveys, 12 months; and the third deviation The anticipated term of the proposed Inc. The proposed grant will provide permits DOE to withhold payments grant is 18 months from the date of funding in the estimated amount of following verbal notification. award. $98,178 by the Department of Energy for Lynn Warner, EFFECTIVE DATE: July 18, 1995. the purpose of locating energy sources Contracting Officer, Office of Placement and FOR FURTHER INFORMATION CONTACT: through development of the inventor’s Administration. Cynthia Yee, Office of Clearance and ‘‘System for Discovering the Locations [FR Doc. 95–16293 Filed 6–30–95; 8:45 am] Support, (HR–522.2), U.S. Department of Sea Floor Seepages of Petroleum.’’ BILLING CODE 6450±01±P of Energy, 1000 Independence Avenue, SUPPLEMENTARY INFORMATION: The SW., Washington, DC 20585, (202) 586– Department of Energy has determined in 1140. accordance with 10 CFR 600.14(e)(1) Advisory Committee on Human SUPPLEMENTARY INFORMATION: In this that the unsolicited application for Radiation Experiments notice, the DOE announces that, financial assistance submitted by pursuant to 10 CFR part 600, the Deputy Petrosurveys, Inc., is meritorious based AGENCY: Department of Energy. Assistant Secretary for Procurement and on the general evaluation required by 10 ACTION: Notice of open meeting. Assistance Management has made a CFR 600.14(d) and the proposed project determination of the need for three represents a unique idea that would not SUMMARY: Under the provisions of the deviations to the DOE Financial be eligible for financial assistance under Federal Advisory Committee Act (Pub. Assistance Rules. The determination a recent, current or planned solicitation. L. 92–463,86 Stat. 770), notice is hereby document, dated June 20, 1995, The new technology is expected to given of the following meeting: provides for deviations for recipients as complete the prototype development of DATES AND TIMES: explained below (i.e., a ‘‘class an apparatus to locate and map sea floor deviation’’). petroleum seepages using a ship-borne, July 17, 1995, 9:00 a.m.–5:00 p.m. Deviation Number 1 waives the instrumented surveying system that is July 18, 1995, 9:00 a.m.–5:00 p.m. requirement for execution of Principal an extremely cost-effective alternative to July 19, 1995, 8:30 a.m.–3:30 p.m. Program Purpose Determinations conventional exploration techniques. PLACE: The Madison, 15th and M required by 600.5. The program office The technology provides a faster and Streets, N.W., Washington, D.C. Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices 34525 FOR FURTHER INFORMATION CONTACT: conduct the meeting in a fashion that system with a combined installed Steve Klaidman, Advisory Committee will facilitate the orderly conduct of electric generation capacity of on Human Radiation Experiments, 1726 business. Any member of the public approximately 112.4 megawatts. M Street, NW, Suite 600, Washington, who wishes to file a written statement Comment date: July 14, 1995, in DC 20036. Telephone: (202) 254–9795 with the Advisory Committee will be accordance with Standard Paragraph E Fax: (202) 254–9828 permitted to do so, either before or after at the end of this notice. The the meeting. Members of the public who SUPPLEMENTARY INFORMATION: Commission will limit its consideration wish to make a five-minute oral of comments to those that concern the Purpose of the Committee statement should contact Steve adequacy or accuracy of the application. The Advisory Committee on Human Klaidman of the Advisory Committee at Radiation Experiments was established the address or telephone number listed 2. Enron Power Marketing, Inc. above. Requests must be received at by the President, Executive Order No. [Docket No. ER94–24–008] 12891, January 15, 1994, to provide least five business days prior to the advice and recommendations on the meeting and reasonable provisions will Take notice that on June 21, 1995, ethical and scientific standards be made to include the presentation on Enron Power Marketing, Inc. (Enron applicable to human radiation the agenda. Power), tendered for filing an amendment to its filing in this docket as experiments carried out or sponsored by Transcript the United States Government. The required by the Commission’s December Advisory Committee on Human Available for public review and 2, 1993, order in Docket No. ER94–24– Radiation Experiments reports to the copying at the office of the Advisory 000. Copies of Enron Power’s Human Radiation Interagency Working Committee at the address listed above informational filing are on file with the Group, the members of which include between 9 a.m. and 4 p.m., Monday Commission and are available for public the Secretary of Energy, the Secretary of through Friday, except Federal holidays. inspection. Issued at Washington, DC on June 28, 1995. Defense, the Secretary of Health and 3. Niagara Mohawk Power Corporation Human Services, the Secretary of Rachel Murphy Samuel, Veterans Affairs, the Attorney General, Acting Deputy Advisory Committee, [Docket No. ER95–1219–000] the Administrator of the National Management Officer. Take notice that on June 14, 1995, Aeronautics and Space Administration, [FR Doc. 95–16292 Filed 6–30–95; 8:45 am] Niagara Mohawk Power Corporation the Director of Central Intelligence, and BILLING CODE 6450±01±P (Niagara Mohawk), filed an amendment the Director of the Office of to its wholesale power sales tariff. The Management and Budget. purpose of this abbreviated filing is to Federal Energy Regulatory provide an explanation of the treatment Tentative Agenda Commission of the cost of emission allowances. Monday, July 17, 1995 [Docket No. EG95±58±000, et al.] Niagara Mohawk has served copies of 9:00 a.m. Call to Order and Opening the filing on the New York Public Remarks HIE Generadora S. A., et al.; Electric Rate and Corporate Regulation Filings Service Commission customers 9:05 a.m. Approval of Minutes authorized to receive service under the 9:10 a.m. Public Comment June 26, 1995. tariff and other customers. 10:30 a.m. Discussion of Report Draft and Recommendations Take notice that the following filings Comment date: July 10, 1995, in 12:00 p.m. Lunch have been made with the Commission: accordance with Standard Paragraph E 1:15 p.m. Discussion, Committee 1. HIE Generadora S.A. at the end of this notice. Strategy and Direction (continued) [Docket No. EG95–58–000] 4. Louisville Gas and Electric Company 5:00 p.m. Meeting Adjourned On June 20, 1995, HIE Generadora [Docket No. ER95–1220–000] Tuesday, July 18, 1995 S.A. (‘‘HIE Generadora’’), 611 Walker, 9:00 a.m. Opening Remarks 11th Floor, Houston, Texas 77002, filed Take notice that on June 14, 1995, 9:10 a.m. Discussion of Report Draft with the Federal Energy Regulatory Louisville Gas and Electric Company, and Recommendations Commission an application for tendered for filing a copy of a service 12:00 p.m. Lunch determination of exempt wholesale agreement between Louisville Gas and 1:15 p.m. Discussion of Report Draft generator status pursuant to Part 365 of Electric Company and Rainbow Energy and Recommendations (continued) the Commission’s regulations. HIE Marketing Corporation under Rate GSS. 6:00 p.m. Meeting Adjourned Generadora intends to participate in an Comment date: July 10, 1995, in international public bid to acquire accordance with Standard Paragraph E Wednesday, July 19, 1995 ninety-eight percent (98%) of the capital at the end of this notice. 8:30 a.m. Opening Remarks stock of Hidroele´ctrica Rı´o Juramento 8:35 a.m. Discussion of Report Draft S.A. (‘‘Rı´o Juramento’’), an Argentine 5. Louisville Gas and Electric Company and Recommendations company that is owned by the Republic [Docket No. ER95–1221–000] 12:00 p.m. Lunch of Argentina and the Province of Salta. 1:15 p.m. Discussion of Report Draft The remaining two percent (2%) of the Take notice that on June 14, 1995, and Recommendations (continued) capital stock of Rı´o Juramento will be Louisville Gas and Electric Company, 3:30 p.m. Meeting Adjourned owned by the employees of Rı´o tendered for filing a copy of a service A final agenda will be available at the Juramento. The national and provincial agreement between Louisville Gas and meeting. governments have each granted Rio Electric Company and Dreyfus Electric Juramento thirty-year concessions to Power, Inc. under Rate GSS. Public Participation hold and operate two hydroelectric Comment date: July 10, 1995, in The meeting is open to the public. generating facilities (Cabra Corral and El accordance with Standard Paragraph E The chairperson is empowered to Tunal) located on the Juramento river at the end of this notice. 34526 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices 6. Northern Indiana Public Service and conditions of NMPC’s Power Sales NMPC and Rainbow Energy Marketing Company Tariff designated as NMPC’s FERC Corporation (Rainbow). This Service [Docket No. ER95–1222–000] Electric Tariff, Original Volume No. 2. Agreement specifies that Rainbow has This Tariff, approved by FERC on April signed on to and has agreed to the terms Take notice that on June 14, 1995, 15, 1994, and which has an effective and conditions of NMPC’s Power Sales Northern Indiana Public Service date of March 13, 1993, will allow Tariff designated as NMPC’s FERC Company tendered for filing a Power NMPC and Engelhard to enter into Electric Tariff, Original Volume No. 2. Sales Tariff for Northern Indiana Public separately scheduled transactions under This Tariff, approved by FERC on April Service Company. which NMPC will sell to Engelhard 15, 1994, and which has an effective The Power Sales Tariff allows for capacity and/or energy as the parties date of March 13, 1993, will allow General Purpose transactions and may mutually agree. NMPC and Rainbow to enter into Negotiated Capacity transactions with In its filing letter, NMPC also separately scheduled transactions under eligible purchasers which have executed included a Certificate of Concurrence which NMPC will sell to Rainbow a Service Agreement. General Purpose executed by the Purchaser. capacity and/or energy as the parties transactions are economy based energy NMPC requests an effective date of may mutually agree. transactions which may be made May 24, 1995. NMPC has requested In its filing letter, NMPC also available from Northern Indiana Public waiver of the notice requirements for included a Certificate of Concurrence Service Company’s resources from time good cause shown. executed by the Purchaser. to time. Negotiated Capacity NMPC has served copies of the filing NMPC requests an effective date of transactions provide capacity and upon the New York State Public Service June 1, 1995. NMPC has requested energy customized to the specific needs Commission and Engelhard. waiver of the notice requirements for at the time of the reservation. Copies of this filing have been sent to Comment date: July 10, 1995, in good cause shown. the Indiana Utility Regulatory accordance with Standard Paragraph E NMPC has served copies of the filing Commission. at the end of this notice. upon the New York State Public Service Commission and Rainbow. Comment date: July 10, 1995, in 9. Niagara Mohawk Power Corporation accordance with Standard Paragraph E Comment date: July 10, 1995, in at the end of this notice. [Docket No. ER95–1225–000] accordance with Standard Paragraph E Take notice that on June 15, 1995, at the end of this notice. 7. PECO Energy Company Niagara Mohawk Power Corporation 11. Wisconsin Power and Light [Docket No. ER95–1223–000] (NMPC) tendered for filing with the Company Take notice that on June 15, 1995, Federal Energy Regulatory Commission [Docket No. ER95–1227–000] PECO Energy Company (PECO), an executed Service Agreement between tendered for filing an Agreement NMPC and GPU Service Corporation Take notice that on June 15, 1995, between PECO and NUSCO Services, (GPU). This Service Agreement specifies Wisconsin Power and Light Company Incorporated (NUSCO) dated April 26, that GPU has signed on to and has (WP&L) tendered for filing an 1995. agreed to the terms and conditions of Agreement dated May 16, 1995, PECO states that the Agreement sets NMPC’s Power Sales Tariff designated establishing Kimball Power Company as forth the terms and conditions for the as NMPC’s FERC Electric Tariff, a customer under the terms of WP&L’s sale of system energy which it expects Original Volume No. 2. This Tariff, Transmission Tariff–T–2. to have available for sale from time to approved by FERC on April 15, 1994, WP&L requests an effective date of time and the purchase of which will be and which has an effective date of May 16, 1995 and accordingly seeks economically advantageous to Northeast March 13, 1993, will allow NMPC and waiver of the Commission’s notice Utilities Service Company. In order to GPU to enter into separately scheduled requirements. A copy of this filing has optimize the economic advantage to transactions under which NMPC will been served upon the Public Service both PECO and NUSCO, PECO requests sell to GPU capacity and/or energy as Commission of Wisconsin. that the Commission waive its the parties may mutually agree. Comment date: July 10, 1995, in customary notice period and permit the In its filing letter, NMPC also accordance with Standard Paragraph E agreement to become effective on June included a Certificate of Concurrence at the end of this notice. 15, 1995. executed by the Purchaser. 12. Central Louisiana Electric Company PECO states that a copy of this filing NMPC requests an effective date of has been sent to NUSCO and will be June 8, 1995. NMPC has requested [Docket No. ER95–1229–000] furnished to the Pennsylvania Public waiver of the notice requirements for Take notice that on June 15, 1995, Utility Commission. good cause shown. Central Louisiana Electric Company Comment date: July 10, 1995, in NMPC has served copies of the filing (CLECO) tendered for filing an executed accordance with Standard Paragraph E upon the New York State Public Service Contract for Interchange and Unit at the end of this notice. Commission and GPU. Contingent Capacity and Associated Comment date: July 10, 1995, in Energy between CLECO and Noram 8. Niagara Mohawk Power Corporation accordance with Standard Paragraph E Energy Services, Inc. [Docket No. ER95–1224–000] at the end of this notice. Comment date: July 10, 1995, in accordance with Standard Paragraph E Take notice that on June 14, 1995, 10. Niagara Mohawk Power at the end of this notice. Niagara Mohawk Power Corporation Corporation (NMPC), tendered for filing with the [Docket No. ER95–1226–000] 13. Niagara Mohawk Power Federal Energy Regulatory Commission Corporation an executed Service Agreement between Take notice that on June 15, 1995, NMPC and Engelhard Power Marketing, Niagara Mohawk Power Corporation [Docket No. ER95–1230–000] Inc. (Engelhard). This Service (NMPC) tendered for filing with the Take notice that on June 16, 1995, Agreement specifies that Engelhard has Federal Energy Regulatory Commission Niagara Mohawk Corporation (Niagara signed on to and has agreed to the terms an executed Service Agreement between Mohawk) tendered for filing an Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices 34527 interconnection agreement between [Docket No. ER95±132±000, et al.] 4. Portland General Electric Company Niagara Mohawk and Medina Power [Docket No. ER95–1203–000] Company (Medina) dated April 22, 1992 PSI Energy, Inc., et al.; Electric Rate Take notice that on June 12, 1995, and an amendment to the and Corporate Regulation Filings Portland General Electric Company interconnection agreement dated June June 23, 1995. (PGE) tendered for filing a cancellation 14, 1995. of Service Agreement No. 17 under Copies of this filing were served upon Take notice that the following filings have been made with the Commission: FERC Electric Tariff, Original Volume Medina and the New York State Public No. 1 (PGE–1) and Service Agreement Service Commission. 1. PSI Energy, Inc. No. 38 under FERC Electric Tariff, Comment date: July 10, 1995, in [Docket Nos. ER95–132–000; ER95–133–000] Original Volume No. 2 (PGE–2) with accordance with Standard Paragraph E Sacramento Municipal Utility District. Take notice that PSI Energy, Inc. (PSI) at the end of this notice. PGE has requested that the Service on June 19, 1995, tendered for filing a Agreement cancellations be accepted by 14. Niagara Mohawk Power Notice of Withdrawal of emission the Commission effective August 8, Corporation allowance cost support data filed with 1995. Copies of the filing have been the Federal Energy Regulatory [Docket No. ER95–1231–000] served on the parties included in the Commission in the above referenced Take notice that Niagara Mohawk Notices of Cancellation. (Niagara Mohawk) on June 16, 1995, dockets per Interchange Agreements Comment date: July 7, 1995, in tendered for filing an agreement between PSI, Blue Ridge Power Agency accordance with Standard Paragraph E between Niagara Mohawk and Selkirk and the City of Piqua, Ohio. at the end of this notice. Cogen Partners (Selkirk) dated June 12, PSI requests the withdrawal of such 1995 providing for certain transmission cost support data because similar 5. Northeast Utilities Service Company services to Selkirk. information was filed and is covered [Docket No. ER95–1204–000] Copies of this filing were served upon under PSI’s filing in Docket No. ER95– Take notice that Northeast Utilities Selkirk and the New York State Public 501–000 for the Interchange Agreements Service Company (NUSCO), on June 12, Service Commission. designated respectively as PSI Rate 1995, tendered for filing, a Service Comment date: July 10, 1995, in Schedule FERC Nos. 255 and 260 by the Agreement and a Certificate of accordance with Standard Paragraph E Commission. Concurrence with the Citizens Utilities at the end of this notice. Copies of the filing were served on the Company (Citizens) under the NU City of Piqua, Ohio, the Public Utilities System Companies’ System Power 15. Ocean State Power Company Commission of Ohio, Blue Ridge Power Sales/Exchange Tariff No. 6. [Docket Nos. FA93–63–002 and FA93–70– Agency, the Virginia State Corporation NUSCO states that a copy of this filing 002] Commission and the Indiana Utility has been mailed to Citizens. Take notice that on June 15, 1995, Regulatory Commission. NUSCO requests that the Service Agreement become effective on June 12, Ocean State Power Company tendered Comment date: July 7, 1995, in 1995. for filing its refund report in the above- accordance with Standard Paragraph E referenced dockets. Comment date: July 7, 1995, in at the end of this notice. accordance with Standard Paragraph E Comment date: July 10, 1995, in at the end of this notice. accordance with Standard Paragraph E 2. Kohler Company at the end of this notice. [Docket No. ER95–1018–000] 6. Interstate Power Company Standard Paragraph Take notice that on June 14, 1995, [Docket No. ER95–1205–000] Kohler Company tendered for filing an Take notice that on June 12, 1995, E. Any person desiring to be heard or amendment in the above-referenced Interstate Power Company (IPW) to protest said filing should file a docket. tendered for filing a Transmission motion to intervene or protest with the Service Agreement between IPW and Federal Energy Regulatory Commission, Comment date: July 7, 1995, in Rainbow Energy Marketing Corporation 825 North Capitol Street, N.E., accordance with Standard Paragraph E (Rainbow). Under the Transmission Washington, D.C. 20426, in accordance at the end of this notice. Service Agreement, IPW will provide with Rules 211 and 214 of the 3. Jersey Central Power & Light non-firm point-to-point transmission Commission’s Rules of Practice and Company, Metropolitan Edison service to Rainbow. Procedure (18 CFR 385.211 and 18 CFR Company, Pennsylvania Electric Comment date: July 7, 1995, in 385.214). All such motions or protests Company accordance with Standard Paragraph E should be filed on or before the at the end of this notice. comment date. Protests will be [Docket No. ER95–1202–000] considered by the Commission in Take notice that on June 12, 1995, 7. Texas-New Mexico Power Company determining the appropriate action to be GPU Service Corporation (GPU) on [Docket No. ER95–1206–000] taken, but will not serve to make behalf of Jersey Central Power & Light Take notice that on June 12, 1995, protestants parties to the proceeding. Company, Metropolitan Edison Texas-New Mexico Power Company Any person wishing to become a party Company and Pennsylvania Electric (TNMP) tendered for filing a Pre-PST must file a motion to intervene. Copies Company (jointly referred to as the GPU New Mexico Transmission Operating of this filing are on file with the Operating Companies) tendered for Procedure entered into by and among Commission and are available for public filing a Service Agreement between GPU TNMP, El Paso Electric Company, inspection. and Midcon Power Services Public Service Company of New Lois D. Cashell, Corporation, dated June 6, 1995. Mexico, and Plains Electric Generation Secretary. Comment date: July 7, 1995, in & Transmission Cooperative, Inc. [FR Doc. 95–16252 Filed 6–30–95; 8:45 am] accordance with Standard Paragraph E TNMP requests waiver of the BILLING CODE 6717±01±P at the end of this notice. Commission’s notice requirements and 34528 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices that such contract be made effective as Copies of this filing have been served Commission and the North Carolina of June 1, 1995. upon REMC and the California Public Utilities Commission. TNMP asserts that the filing has been Utilities Commission. Comment date: July 7, 1995, in served on the parties to the contract and Comment date: July 7, 1995, in accordance with Standard Paragraph E on the Texas Public Utility Commission accordance with Standard Paragraph E at the end of this notice. and the New Mexico Public Utility at the end of this notice. Commission. 14. Virginia Electric and Power Comment date: July 7, 1995, in 11. Arizona Public Service Company Company accordance with Standard Paragraph E [Docket No. ER95–1210–000] [Docket No. ER95–1214–000] at the end of this notice. Take notice that on June 13, 1995, Take notice that on June 14, 1995, 8. Public Service Company of Colorado Arizona Public Service Company (APS) Virginia Electric and Power Company tendered for filing a proposed Service (Virginia Power), tendered for filing a [Docket No. ER95–1207–000] Schedule D to the existing Power Sale Service Agreement between Take notice that on June 12, 1995, Agreement between APS and Citizens Pennsylvania Power & Light Company Public Service Company of Colorado Utilities Company (Citizens). Service and Virginia Power, dated May 15, 1995 (Public Service) tendered for filing Schedule D addresses various terms and under the Power Sales Tariff to Eligible Public Service Electric Coordination conditions associated with integration Purchasers dated May 27, 1994. Under Service Tariff (Tariff). The Tariff of existing and planned generating units the tendered Service Agreement proposes two service schedules: 1) owned by Citizens into those operated Virginia Power agrees to provide Service Schedule A—Coordination by APS. services to Pennsylvania Power & Light Power and Energy; and 2) Service The Parties request an effective date Company under the rates, terms, and Schedule B—Power and Energy upon acceptance by the Commission. conditions of the Power Sales Tariff as Copies of this filing have been served Exchanges. agreed by the parties pursuant to the No new or modifications to existing on the Arizona Corporation Commission terms of the applicable Service facilities are anticipated to be required and Citizens Utilities Company. Schedules included in the Power Sales as a result of this Tariff. Comment date: July 7, 1995, in A copy of this filing has been served accordance with Standard Paragraph E Tariff. on the Public Utilities Commission of at the end of this notice. Copies of the filing were served upon the State of Colorado and the Colorado the Virginia State Corporation 12. Western Regional Transmission Office of Consumer Counsel. Commission and the North Carolina Association Comment date: July 7, 1995, in Utilities Commission. accordance with Standard Paragraph E [Docket No. ER95–1211–000] Comment date: July 7, 1995, in at the end of this notice. Take notice that on June 12, 1995, accordance with Standard Paragraph E at the end of this notice. 9. Pacific Gas and Electric Company Western Regional Transmission Association tendered for filing signature 15. Virginia Electric and Power [Docket No. ER95–1208–000] pages to the Governing Agreement Company Take notice that on June 13, 1995, executed by four additional Members of Pacific Gas and Electric Company the Western Regional Transmission [Docket No. ER95–1215–000] (PG&E) tendered for filing: (1) an Association—Seattle City Light, the Take notice that on June 14, 1995, agreement dated April 12, 1995, Phoenix Area Office of the Western Area Virginia Electric and Power Company between PG&E and the Sierra Pacific Power Administration, Fletcher (Virginia Power), tendered for filing a Power Company (Sierra), entitled Challenge Power Generation U.S.A. Inc. Service Agreement between CNG Power Special Facilities Agreement for the and Wickland Power Services. Services Corporation and Virginia Goldhill-Horseshoe Reconductor Comment date: July 7, 1995, in Power, dated May 15, 1995 under the Project; and (2) a Corrected Service accordance with Standard Paragraph E Power Sales Tariff to Eligible Purchasers Schedule 1 to Appendix A of Rate at the end of this notice. dated May 27, 1994. Under the tendered Service Agreement Virginia Power Schedule FERC No. 72. 13. Virginia Electric and Power Copies of this filing have been served agrees to provide services to CNG Power Company upon Sierra and the CPUC. Services Corporation under the rates, Comment date: July 7, 1995, in [Docket No. ER95–1213–000] terms and conditions of the Power Sales accordance with Standard Paragraph E Take notice that on June 14, 1995, Tariff as agreed by the parties pursuant at the end of this notice. Virginia Electric and Power Company to the terms of the applicable Service Schedules included in the Power Sales 10. Pacific Gas and Electric Company (Virginia Power), tendered for filing a Service Agreement between Niagara Tariff. [Docket No. ER95–1209–000] Mohawk Power Corporation and Copies of the filing were served upon Take notice that on June 13, 1995, Virginia Power, dated May 15, 1995 the Virginia State Corporation Pacific Gas and Electric Company under the Power Sales Tariff to Eligible Commission and the North Carolina (PG&E) tendered for filing the Rainbow Purchasers dated May 27, 1994. Under Utilities Commission. Energy Marketing Corporation—PG&E the tendered Service Agreement Comment date: July 7, 1995, in Power Enabling Agreement between Virginia Power agrees to provide accordance with Standard Paragraph E Rainbow Energy Marketing Corporation services to Niagara Mohawk Power at the end of this notice. (REMC) and PG&E. The Enabling Corporation under the rates, terms, and 16. Boston Edison Company Agreement documents terms and conditions of the Power Sales Tariff as conditions for the purchase, sale or agreed by the parties pursuant to the [Docket No. ER95–1216–000] exchange of economy energy and terms of the applicable Service Take notice that on June 14, 1995, surplus capacity which the Parties agree Schedules included in the Power Sales Boston Edison Company (Edison), to make available to one another at Tariff. tendered for filing a Service Agreement defined control area border Copies of the filing were served upon and Appendix A under Original Volume interconnection points. the Virginia State Corporation No. 6, Power Sales and Exchange Tariff Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices 34529 (Tariff) for Cambridge Electric Light motion to intervene or protest with the Monday, August 7, 1995, from 7:00 to Company (Cambridge). Boston Edison Federal Energy Regulatory Commission, 10:00 p.m. requests that the Service Agreement 825 North Capitol Street, N.E., Location: Highlands Civic Center, become effective as of May 22, 1995. Washington, D.C. 20426, in accordance Conference Room, North 4th St. Edison states that it has served a copy with Rules 211 and 214 of the Recreation Park, Highlands, NC, 28741. of this filing on Cambridge and the Commission’s Rules of Practice and The Agency Meeting is on Tuesday, Massachusetts Department of Public Procedure (18 CFR 385.211 and 18 CFR August 8, 1995, at 9 a.m. until noon. Utilities. 385.214). All such motions or protests Location: Asheville Regional Office, Comment date: July 7, 1995, in should be filed on or before the DEHNR, Conference Room, 159 accordance with Standard Paragraph E comment date. Protests will be Woodfin Place, Asheville, NC 28801. at the end of this notice. considered by the Commission in Interested individuals, organizations, 17. Boston Edison Company determining the appropriate action to be and agencies with environmental taken, but will not serve to make expertise are invited to attend either or [Docket No. ER95–1217–000] protestants parties to the proceeding. both meetings to discuss the Take notice that on June 14, 1995, Any person wishing to become a party environmental assessment and to assist Boston Edison Company (Edison), must file a motion to intervene. Copies the staff in identifying environmental tendered for filing a Service Agreement of this filing are on file with the issues. and Appendix A under Original Volume Commission and are available for public Persons choosing not to speak at the No. 6, Power Sales and Exchange Tariff inspection. meetings, but who have views on issues (Tariff) for Commonwealth Electric Lois D. Cashell, or information relevant to the issues, Company (Commonwealth). Boston Secretary. may submit written statements for Edison requests that the Service inclusion in the public record at the [FR Doc. 95–16251 Filed 6–30–95; 8:45 am] Agreement become effective as of May meeting. In addition, written comments 23, 1995. BILLING CODE 6717±01±P may be filed with the Secretary, Federal Edison states that it has served a copy Energy Regulatory Commission, 825 of this filing on Commonwealth and the Notice to Conduct Site Visit and North Capitol Street, N.E., Washington, Massachusetts Department of Public Public/Agency Meetings DC, 20426, by September 7, 1995. All Utilities. written correspondence should clearly Comment date: July 7, 1995, in June 27, 1995. show the following caption on the first accordance with Standard Paragraph E Take notice that the following page: Cullasaja River Hydroelectric at the end of this notice. hydroelectric application has been filed Project, FERC No. 10873. 18. Portland General Electric Company with the Commission and is available Intervenors—those on the for public inspection: Commission’s service list for this [Docket No. ER95–1218–000] a. Type of Application: Original proceeding (parties)—are reminded of Take notice that on June 13, 1995, Minor License. the Commission’s Rules of Practice and Portland General Electric Company b. Project No.: 10873–002. Procedure, requiring parties filing (PGE), tendered for filing a Service c. Date filed: January 17, 1992. documents with the Commission, to Agreement under FERC Electric Tariff, d. Applicant: Michael P. O’Brien and serve a copy of the document on each Original Volume No. 2 (PGE–2), with Robert A. Davis, III. person whose name appears on the the Springfield Utility Board. PGE has e. Name of Project: Cullasaja River official service list. Further, if a party or requested the Service Agreement be Project. interceder files comments or documents accepted by the Commission, effective f. Location: On the Cullasaja River, with the Commission relating to the August 1, 1995. Copies of the filing have Macon County, North Carolina. merits of an issue that may affect the been served on the parties included in g. Filed Pursuant to: Federal Power responsibilities of a particular resource the Certificate of Service attached to the Act 16 U.S.C. §§ 791 (a)–825(r). agency, they must also serve a copy of filing letter. h. Applicant Contact: Mr. Michael P. the document on that resource agency. Comment date: July 7, 1995, in Lois D. Cashell, accordance with Standard Paragraph E O’Brien, or Robert A. Davis, III, 390 Secretary. at the end of this notice. Timber Laurel Lane, Lawrenceville, GA 30243, (404) 995–0891. [FR Doc. 95–16215 Filed 6–30–95; 8:45 am] 19. Morro Energy L.P., S.E. i. FERC Contact: Mary Golato (202) BILLING CODE 6717±01±M [Docket No. QF95–121–000] 219–2804. j. A draft environmental assessment of On June 22, 1995, Morro Energy L.P., [Docket No. CP95±574±000] S.E. tendered for filing an amendment to the Cullasaja Project was issued on its December 28, 1994, filing in this September 30, 1994. Columbia Gas Transmission docket. Site Visit: A site visit for the Cullasaja Corporation; Notice of Request Under The amendment pertains to technical River Hydroelectric Project is planned Blanket Authorization requirements and the ownership for Monday, August 7, 1995. Those who structure of the small power production wish to attend should plan to meet at June 27, 1995. facility. No determination has been 10:00 a.m., at the top of Lake Sequoyah Take notice that on June 21, 1995, made that the submittal constitutes a Dam on the Cullasaja River, (U.S. 64 Columbia Gas Transmission Corporation complete filing. West, approximately 2 miles west of (Columbia), P.O. Box 1273, Charleston, Comment date: July 13, 1995, in downtown Highlands). Ray Johns of the West Virginia 25325–1273, filed in accordance with Standard Paragraph E Forest Service Highlands Office will be Docket No. CP95–574–000 a request at the end of this notice. leading the tour. All participants are pursuant to Sections 157.205 and responsible for their own transportation. 157.211 of the Commission’s Standard Paragraph Bring a hard hat. Regulations under the Natural Gas Act E. Any person desiring to be heard or Scoping Meetings: Two meetings will for authorization to construct and to protest said filing should file a be held. The Public Meeting is on operate a new point of delivery for firm 34530 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices transportation service to an existing Columbia requests authorization to Blanket Certificate issued in Docket No. customer, under its blanket certificate establish a new point of delivery to CP86–240–000 of the Commission’s issued in Docket No. CP83–76–000,1 all Waterville Gas & Oil Company (WGO). Regulations 2 under existing authorized as more fully set forth in the request for Columbia will construct and operate a rate schedules and within certificated authorization on file with the new delivery point for firm entitlement, as follows: Commission and open for public transportation service and will provide inspection. the service pursuant to Columbia’s Estimated Maximum annual Estimated Customer daily quan- quantity construction tity (Dth) (Dth) cost ($) WGO ...... 250 40,000 28,000 The new point of delivery has been the May 10 1995, letter from determining the appropriate action to be requested by WGO for firm Commission Staff requesting that Duke taken, but will not serve to make transportation service for residential provide additional information in protestants parties to the proceeding. use. The quantities to be provided support of its filing. Any person wishing to become a party through the new delivery point are Any person desiring to be heard or to must file a motion to intervene. Copies within Columbia’s currently authorized protest said filing should file a motion of this filing are on file with the level of service. The new point of to intervene or protest with the Federal Commission and are available for public delivery will be added to WGO’s Energy Regulatory Commission, 825 inspection. existing service agreement. WGO has North Capitol Street, N.E., Washington, Lois D. Cashell, not requested an increase in its Peak D.C. 20426, in accordance with Rules Secretary Day Entitlement in conjunction with 211 and 214 of the Commission’s Rules [FR Doc. 95–16214 Filed 6–30–95; 8:45 am] this request for a new point of delivery. of Practice and Procedure (18 CFR BILLING CODE 6717±01±M WGO has agreed to reimburse Columbia 385.211 and 18 CFR 385.214). All such for the actual cost of the motions or protests should be filed on interconnection, plus any gross-up or before July 11, 1995. Protests will be ENVIRONMENTAL PROTECTION required for tax purposes. considered by the Commission in AGENCY Any person or the Commission’s staff determining the appropriate action to be may, within 45 days after issuance of taken, but will not serve to make [FRL±5252±4] the instant notice by the Commission, protestants parties to the proceeding. file pursuant to Rule 214 of the Any person wishing to become a party Agency Information Collection Commission’s Procedural Rules (18 CFR must file a motion to intervene. Copies Activities Under OMB Review 385.214) a motion to intervene or notice of this filing are on file with the AGENCY: Environmental Protection of intervention and pursuant to Section Commission and are available for public Agency (EPA). 157.205 of the Regulations under the inspection. ACTION: Notice. Natural Gas Act (18 CFR 157.205) a Lois D. Cashell, protest to the request. If no protest is Secretary. SUMMARY: In compliance with the filed within the time allowed therefor, [FR Doc. 95–16213 Filed 6–30–95; 8:45 am] Paperwork Reduction Act (44 U.S.C. 3501 et seq.), this notice announces that the proposed activity shall be deemed to BILLING CODE 6717±01±M be authorized effective the day after the the Information Collection Request (ICR) time allowed for filing a protest. If a abstracted below has been forwarded to protest is filed and not withdrawn [Docket No. ER94±1078±000] the Office of Management and Budget within 30 days after the time allowed (OMB) for review and comment. The for filing a protest, the instant request Southwestern Electric Power ICR describes the nature of the shall be treated as an application for Company; Notice of Filing information collection and its expected authorization pursuant to Section 7 of June 27, 1995. cost and burden. the Natural Gas Act. Take notice that on June 1, 1995, DATES: Comments must be submitted on Lois D. Cashell, Southwestern Electric Power Company or before August 2, 1995. Secretary. tendered for filing an amendment in the FOR FURTHER INFORMATION OR A COPY OF [FR Doc. 95–16212 Filed 6–30–95; 8:45 am] above-referenced docket. THIS ICR CONTACT: Sandy Farmer at EPA, BILLING CODE 6717±01±M Any person desiring to be heard or to (202) 260–2740, please refer to EPA ICR protest said filing should file a motion #1442.09. to intervene or protest with the Federal SUPPLEMENTARY INFORMATION: [Docket Nos. ER95±755±000, ER95±756± Energy Regulatory Commission, 825 000, ER95±758±000, ER95±760±000] North Capitol Street, N.E., Washington, Office of Solid Waste and Emergency Response Duke Power Company; Notice of Filing D.C. 20426, in accordance with Rules 211 and 214 of the Commission’s Rules Title: Land Disposal Restrictions (ICR June 27, 1995. of Practice and Procedure (18 CFR No. 1442.09). This is a renewal and Take notice that on June 9, 1995, 385.211 and 18 CFR 385.214). All such approved collection (OMB No. 2050– Duke Power Company (Duke) filed an motions or protests should be filed on 0085). amendment to its application in the or before July 11, 1995. Protests will be Abstract: This ICR is a comprehensive above referenced dockets in response to considered by the Commission in presentation of the information 1 See, 22 FERC ¶62,029 (1983). 2 See, 34 FERC ¶62,454 (1986). Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices 34531 requirements at 40 CFR part 268 that ACTION: Notice. and affect generators and treatment, storage, Tim Hunt, OMB #2070–0072, Office of and disposal facilities (TSDFs) regulated SUMMARY: In compliance with the Management and Budget, Office of under the Resource Conservation and Paperwork Reduction Act (44 U.S.C. Information and Regulatory Affairs, Recovery Act (RCRA) of 1976, as 3501 et seq.), this notice announces that 725 17th Street, NW., Washington, DC amended by the Hazardous and Solid the Information Collection Request (ICR) 20503. Waste Amendments (HSWA) of 1984. abstracted below has been forwarded to the Office of Management and Budget Dated: June 27, 1995. Information collection requirements Joseph Retzer, include preparing information and (OMB) for review and comment. The Director, Regulatory Information Division. reporting to the EPA data on waste ICR describes the nature of the analysis, notifications and certifications, information collection and its expected [FR Doc. 95–16279 Filed 6–30–95; 8:45 am] cost and burden. as well as recordkeeping requirements. BILLING CODE 6560±50±M Where it applies, respondents must also DATES: Comments must be submitted on or before August 2, 1995. provide data required to petition the [FRL±5252±6] Agency for statutory variances and for FOR FURTHER INFORMATION OR A COPY exemptions. The EPA uses these data to CALL: Sandy Farmer at EPA (202) 260– Science Advisory Board; Executive # ensure the proper land disposal of 2740, please refer to EPA ICR 1246.05. Committee Teleconference, July 17, hazardous wastes. SUPPLEMENTARY INFORMATION: 1995; Executive Committee Meeting, Burden Statement: The estimated July 25±26, 1995 average public reporting burden for this Office of Prevention, Pesticides and collection ranges from 4 hours to 20 Toxic Substances Pursuant to the Federal Advisory hours per response. This estimate Title: Reporting and Recordkeeping Committee Act, Public Law 92–463, includes all aspects of the information for Asbestos Abatement Worker notice is hereby given that the Science collection including the time for Protection. (EPA ICR No. 1246.05; OMB Advisory Board’s (SAB’s) Executive reviewing instructions, searching No. 2070–0072). This is for an extension Committee will conduct a public existing data sources, gathering and of a currently approved collection. teleconference and a public meeting. maintaining the data needed, and Abstract: This rule covers state and Executive Committee Teleconference completing and reviewing the collection local government employees who perform asbestos abatement activities. The teleconference meeting will be of information. held on July 17, 1995 from 1:00 and 3:00 Respondents: Generators and Employers are required to inform EPA pm Eastern Daylight Time. The meeting treatment, storage and disposal of asbestos abatement projects, to train will be coordinated through a facilities. employees about the hazards of conference call connection (Room Estimated Number of Respondents: asbestos, to monitor employee exposure, location TBA) at the U.S. Environmental 224,886. to provide medical surveillance, and to Protection Agency, 401 M Street, SW, Estimated Number of Responses per keep records of all these activities. The Washington, DC 20460. Instructions Respondent: Varies. records maintained provide EPA with Estimated Total Annual Burden on the data necessary to ensure compliance about how to participate in the Respondents: 3,513,342 hours. with the worker protection rule conference call can be obtained by Frequency of Collection: On occasion. authorized under sections 6 and 8(a) of calling Ms. Betty Fortune at (202) 260– Send comments regarding the burden the Toxic Substances Control Act 4126 by July 10, 1995. estimate, or any other aspect of this (TSCA). This teleconference meeting of the collection of information, including Burden Statement: The public Executive Committee is a part of a suggestions for reducing the burden, reporting burden for this collection of continuing effort to facilitate the overall (please refer to EPA ICR #1442.09 and information is estimated to average 22 production of SAB reports. The draft OMB #2050–0085) to: hours per response for reporting, and 1 reports expected for final review at this # hour for recordkeeping. This includes meeting are given below. However, this Sandy, Farmer, EPA ICR 1442.09, U.S. list is subject to change in the event Environmental Protection Agency, the time for reviewing instructions, gathering and maintaining the data final edits cannot be completed in time Information Policy Branch (2136), 401 to allow adequate pre-meeting M Street, SW., Washington, DC 20460 needed, and reviewing the collection of information. consideration by the Committee. and a. Environmental Engineering Jonathan Gledhill, OMB #2050–0085, Respondents: State and local Committee [Two reports: Review of the Office of Management and Budget, governments. Estimated No. of Respondents: 2080. Use Cluster Scoring System (UCSS) and Office of Information and Regulatory Estimated No. of Responses per Review of the Leachate Migration Affairs, 725 17th St., NW., Respondent: 1. Model] Washington, DC 20503 Estimated Total Annual Burden on b. Drinking Water Committee [One Dated: June 27, 1995. Respondents: 47,100. advisory: Advisory on Disinfection and Joseph Retzer, Frequency of Collection: On occasion. Disinfection By-Products Research Director, Regulatory Information Division. Send comments regarding the burden Program]. [FR Doc. 95–16278 Filed 6–30–95; 8:45 am] estimate, or any other aspect of the Executive Committee Meeting BILLING CODE 6560±50±M information collection, including suggestions for reducing the burden, The meeting will be held on Tuesday (please refer to EPA ICR #1246.05 and and Wednesday, July 25–26, 1995 in the [FRL±5252±5] OMB #2070–0072) to: Administrator’s Conference Room, # Agency Information Collection Sandy Farmer, EPA ICR 1246.05, U.S. Room 1103—West Tower, U.S. Activities Under OMB Review Environmental Protection Agency, Environmental Protection Agency, 401 Regulatory Information Division M Street SW, Washington, DC 20460. AGENCY: Environmental Protection (2136), 401 M Street, SW., The meeting will begin at 8:30 a.m. and Agency (EPA). Washington, DC 20460. adjourn not later than 5:00 p.m. on each 34532 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices day. The meeting is open to the public, Priorities, Getting Results: A New Fiber Coalition (Carborundum however, seating is limited and Direction for EPA. Company, Premier Refractories and available on a first come basis. Chemicals, Incorporated, and Thermal For Further Information At this meeting, the Executive Ceramics, Incorporated) pursuant to a Committee will receive updates from its Any member of the public wishing testing consent order at 40 CFR standing committees and ad hoc further information concerning either 799.5000. They were received by EPA subcommittees concerning their recent meeting or who wishes to submit on June 21, 1995. The submission and planned activities. As part of these comments should contact Dr. Donald G. describes workplace exposure updates, some committees will present Barnes, Designated Federal Official for monitoring data from RCFC company draft reports for Executive Committee the Executive Committee, Science facilities, as well as from their review and approval. The drafts Advisory Board (1400), U.S. EPA, customers’ facilities. The customers expected for final review at this Washington, DC 20460, phone (202) selected include those chosen at random Executive Committee meeting are given 260–4126; fax (202) 260–9232; or via and those who specifically requested below. However, this list is subject to The INTERNET at: monitoring. Air monitoring samples change in the event final edits cannot be barnes.don@epamail.epa.gov. Copies of were collected from employees engaged completed in time to allow adequate the draft meeting Agendas and available in RCF fiber production and processing, pre-meeting review time. Please confirm draft reports listed above can be or use in functional categories such as final availability with the SAB Staff obtained from Ms. Betty Fortune at the forming, finishing, and installation. office prior to the meeting. Expected above phone and fax numbers. RCFs are used as insulation for drafts include: Dated: June 26, 1995. industrial insulation applications such a. Ecological Processes and effects A. Robert Flaak, as high temperature furnaces, heaters, Committee [Three reports: Review of Acting Staff Director, Science Advisory Board. and kilns. RCFs are also used in Bioaccumulation Factor Methodology [FR Doc. 95–16281 Filed 6–30–95; 8:45 am] automotive applications, aerospace uses, and in certain commercial (A joint reports with the Drinking Water BILLING CODE 6560±50±M Committee); Review of Methodology for appliances such as self-cleaning ovens. Developing Sediment Quality Criteria EPA has initiated its review and for Metal Contaminants; Review of Acid [OPPTS±44619; FRL±4961±6] evaluation process for these data Deposition Standard Feasibility Study]; submissions. At this time, the Agency is b. Environmental Engineering TSCA Chemical Testing; Receipt of unable to provide any determination as Committee [Two reports: Review of Test Data to the completeness of the submissions. Agency’s Environmental Technology AGENCY: Environmental Protection II. Public Record Innovation, Commercialization, and Agency (EPA). Enhancement (EnTICE) program; EPA has established a public record ACTION: Notice. Review of Hazardous Air Pollutants/ for this TSCA section 4(d) receipt of Continuous Emissions Monitoring SUMMARY: This notice announces the data notice (docket number OPPTS– Systems (HAPs/CEMS)]; receipt of test data on refractory ceramic 44619). This record includes copies of c. Environmental Health/Indoor Air fibers (RCFs) (CAS No. 142844–00–6), all data reported in this notice. The Quality and Total Human Exposure submitted pursuant to a testing consent record is available for inspection from Committee Joint Panel [One report: order under the Toxic Substances 12 noon to 4 p.m., Monday through Review of the Agency’s Dioxin Risk Control Act (TSCA). Publication of this Friday, except legal holidays, in the Assessment]; notice is in compliance with section TSCA Nonconfidential Information d. Radiation Advisory Committee 4(d) of TSCA. Center (NCIC) (also known as the TSCA [One report: Review of Radiation Clean FOR FURTHER INFORMATION CONTACT: Public Docket Office), Rm. NE–B607, Up Standards]; Susan B. Hazen, Director, 401 M St., SW., Washington, DC 20460. Additional topics on the agenda Environmental Assistance Division Authority: 15 U.S.C. 2603. include a discussion of: (7408), Office of Pollution Prevention a. SAB membership issues. and Toxics, Environmental Protection List of Subjects b. SAB projects and processes for Agency, Rm. E–541A, 401 M St., SW., FY96, including serving as a ‘‘lookout Washington, DC 20460, (202) 554–1404, Environmental protection, Test data. panel’’ the process of completing SAB TDD (202) 554–0551; e-mail: TSCA- Dated: June 26, 1995. reviews, [email protected]. William H. Sanders III, c. the issue of hazard identification/ SUPPLEMENTARY INFORMATION: Section hazard characterization. Director, Office of Pollution Prevention and 4(d) of TSCA requires EPA to publish a Toxics. The group expects the following notice in the Federal Register reporting guests to meet with them for discussion: the receipt of test data submitted [FR Doc. 95–16274 Filed 6–30–95; 8:45 am] a. the Deputy Administrator of the pursuant to test rules promulgated BILLING CODE 6560±50±F Agency, Mr. Fred Hansen, under section 4(a) within 15 days after b. the Assistant Administrator for it is received. Under 40 CFR 790.60, all Policy, Planning and Evaluation, Mr. results of testing conducted pursuant to FEDERAL COMMUNICATIONS David Gardiner to discuss the Agency’s a consent order must be announced to COMMISSION Environmental Goals Project the public in accordance with the c. A representative of the Food and procedures specified in section 4(d) of Public Information Collection Drug Administration’s Science Board to TSCA. Approved by Office of Management explore opportunities for future and Budget cooperation with the SAB. I. Test Data Submissions d. A representative of National Test data for refractory ceramic fibers June 27, 1995. Academy of Public Administration’s were submitted by three member The Federal Communications (NAPA) to discuss their report Setting companies of the Refractory Ceramic Commission (FCC) has received Office Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices 34533 of Management and Budget (OMB) FOR FURTHER INFORMATION CONTACT: You are authorized to provide Public approval for the following public Pauline C. Campbell, Response and Assistance in the designated areas. information collection pursuant to the Recovery Directorate, Federal Individual Assistance and/or Hazard Paperwork Reduction Act of 1980, Pub. Emergency Management Agency, Mitigation Assistance may be provided at Washington, DC 20472, (202) 646–3606. later date if warranted. Consistent with the L. 96–511. For further information requirement that Federal assistance be contact Shoko B. Hair, Federal SUPPLEMENTARY INFORMATION: The notice supplemental, any Federal funds provided Communications Commission, (202) of a major disaster for the State of North under the Stafford Act for Public Assistance 418–1379. Dakota dated May 16, 1995, is hereby or Hazard Mitigation Assistance will be limited to 75 percent of the total eligible Federal Communications Commission amended to include the following areas among those areas determined to have costs. OMB Control No.: 3060–0168. been adversely affected by the The time period prescribed for the Expiration Date: 10/31/96. catastrophe declared a major disaster by implementation of section 310(a), Title: Section 43.43 - Report of the President in his declaration of May Priority to Certain Applications for Proposed Changes in Depreciation 16, 1995: Public Facility and Public Housing Rates. The counties of Emmons, Renville and Assistance, 42 U.S.C. 5153, shall be for Estimated Annual Burden: 67,500 Sargent for Disaster Unemployment a period not to exceed six months after total annual hours; 5625 hours per Assistance under the Individual Assistance the date of this declaration. response. Program. (Already designated for Public Notice is hereby given that pursuant Description: In the Report and Order Assistance.) to the authority vested in the Director of in CC Docket No. 92–296 (released 10/ (Catalog of Federal Domestic Assistance No. the Federal Emergency Management 83.516, Disaster Assistance.) 20/93), the Commission streamlined its Agency under Executive Order 12148, I depreciation prescription process for Richard W. Krimm, hereby appoint Joseph Picciano of the local exchange carriers (LECs) regulated Associate Director, Response and Recovery Federal Emergency Management Agency under its price cap regulatory scheme by Directorate. to act as the Federal Coordinating adopting a modified form of the basic [FR Doc. 95–16291 Filed 6–30–95; 8:45 am] Officer for this declared disaster. factor range option. The Second Report BILLING CODE 6718±02±M I do hereby determine the following and Order (released 6/28/94) adopted areas of the State of Oklahoma to have the initial set of accounts and ranges for [FEMA±1058±DR] been affected adversely by this declared the price caps LECs. The Third Report major disaster: and Order adopts ranges and alternate Oklahoma; Major Disaster and Related The counties of Beckham, Caddo, Creek, simplified procedures for the remaining Determinations accounts and completes the Grady, Harmon, Jackson, Kiowa, Lincoln, Logan and Tillman for Public Assistance. implementation process. The AGENCY: Federal Emergency Commission has modified its Management Agency (FEMA). (Catalog of Federal Domestic Assistance No. 83.516, Disaster Assistance.) information collection requirements ACTION: Notice. whereby large LECs must submit James L. Witt, SUMMARY: analyses on proposed changes in This is a notice of the Director. depreciation rates. The information will Presidential declaration of a major [FR Doc. 95–16289 Filed 6–30–95; 8:45 am] be used by the Commission staff to disaster for the State of Oklahoma BILLING CODE 6718±02±M establish proper depreciation rates to be (FEMA–1058–DR), dated June 26, 1995, charged by the carriers pursuant to and related determinations. Section 220(b) of the Communications EFFECTIVE DATE: June 26, 1995. FEDERAL TRADE COMMISSION Act, as amended, 47 U.S.C. Section FOR FURTHER INFORMATION CONTACT: 220(b). Pauline C. Campbell, Response and Granting of Request for Early Recovery Directorate, Federal Termination of the Waiting Period Federal Communications Commission. Emergency Management Agency, Under the Premerger Notification William F. Caton, Washington, DC 20472, (202) 646–3606. Rules Acting Secretary. SUPPLEMENTARY INFORMATION: Notice is Section 7A of the Clayton Act, 15 [FR Doc. 95–16246 Filed 6–30–95; 8:45 am] hereby given that, in a letter dated June U.S.C. 18a, as added by Title II of the BILLING CODE 6712±01±F 26, 1995, the President declared a major Hart-Scott-Rodino Antitrust disaster under the authority of the Improvements Act of 1976, requires Robert T. Stafford Disaster Relief and persons contemplating certain mergers Emergency Assistance Act (42 U.S.C. FEDERAL EMERGENCY or acquisitions to give the Federal Trade 5121 et seq.), as follows: MANAGEMENT AGENCY Commission and the Assistant Attorney I have determined that the damage in [FEMA±1050±DR] General advance notice and to wait certain areas of the State of Oklahoma, designated periods before resulting from severe storms, flooding and consummation of such plans. Section North Dakota; Amendment to Notice of tornadoes beginning on May 26, 1995, and a Major Disaster Declaration continuing, is of sufficient severity and 7A(b)(2) of the Act permits the agencies, magnitude to warrant a major disaster in individual cases, to terminate this AGENCY: Federal Emergency declaration under the Robert T. Stafford waiting period prior to its expiration Management Agency (FEMA). Disaster Relief and Emergency Assistance Act and requires that notice of this action be ACTION: Notice. (‘‘the Stafford Act’’). I, therefore, declare that published in the Federal Register. such a major disaster exists in the State of The following transactions were SUMMARY: This notice amends the notice Oklahoma. granted early termination of the waiting In order to provide Federal assistance, you of a major disaster for the State of North period provided by law and the Dakota, (FEMA–1050–DR), dated May are hereby authorized to allocate from funds available for these purposes, such amounts as premerger notification rules. The grants 16, 1995, and related determinations. you find necessary for Federal disaster were made by the Federal Trade EFFECTIVE DATE: June 26, 1995. assistance and administrative expenses. Commission and the Assistant Attorney 34534 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices General for the Antitrust Division of the to these proposed acquisitions during Department of Justice. Neither agency the applicable waiting period. intends to take any action with respect TRANSACTIONS GRANTED EARLY TERMINATION BETWEEN: 060595 AND 061695 Date Name of acquiring person, Name of acquired person, Name of acquired entity PMN No. terminated Heyman Holdings Associates Limited Partnership, Conseco, Inc., Bankers Life Holding Co ...... 95±1686 06/06/95 Wet Seal Inc., Harcourt General, Inc., Contempo Casuals ...... 95±1696 06/06/95 Gerald W. Schwartz, John Labatt Limited, John Labatt Limited ...... 95±1714 06/06/95 National Gypsum Company, NGC Settlement Trust, The Austin Company ...... 95±1719 06/06/95 K/B Opportunity Fund II, L.P., Walter E. Hartman and Sally Jean Hartman, Main Street Retail and Sally Plaza Limited Partnership ...... 95±1723 06/06/95 Carmike Cinemas, Inc., Cineplex Odeon Corp., Plitt Theatres, Inc. & Plitt Southern Theatres, Inc ...... 95±1734 06/06/95 Computer Integration Corp., Jamal and Tamara Khatib, Cedar Computer Center, Inc ...... 95±1737 06/06/95 Harbour Group Investments III, L.P., R.A. Parrish, Speeflo Manufacturing Corporation ...... 95±1742 06/06/95 CENFED Financial Corporation, Government Funding CA Business & Ind. Dev. Corp., Government Funding CA Business & Ind. Dev. Corp ...... 95±1743 06/06/95 Tech-Sym Corporation, CogniSeis Development, Inc., CogniSeis Development, Inc ...... 95±1750 06/06/95 Liebherr-International AG, WIlliam S. Davis, Wiseda, Ltd ...... 95±1751 06/06/95 Cookson Group plc, Jeffrey R. Mooris, Hi-Tech Ceramics, Inc ...... 95±1752 06/06/95 Medaphis Corporation, Healthcare Recoveries, Inc., Healthcare Recoveries, Inc ...... 95±1753 06/06/95 Living Centers of America, Inc., Rehability Corporation, Rehability Corporation ...... 95±1759 06/06/95 Oakwood Homes Corporation, Destiny Industries, Inc., Destiny Industries, Inc ...... 95±1763 06/06/95 Maxxim Medical, Inc., Becton, Dickinson and Company, Becton, Dickinson and Company ...... 95±1771 06/06/95 Bank of Boston Corporation, Cencor, Inc., Century Acceptance Corporation (15 Subsidiaries) ...... 95±1775 06/06/95 Medi-Mail, Inc., Rush-Presbyterian-St. Luke's Medical Center, Home Pharmacy, Inc ...... 95±1777 06/06/95 Craig O McCaw, NEXTEL Communications, Inc., NEXTEL Communications, Inc ...... 95±1779 06/06/95 Frontier Corporation, Donald Schneider, Schneider Communications, Inc ...... 95±1780 06/06/95 Tele-Communications, Inc., TW Holdings, L.L.C. (Joint Venture), TW Holdings, L.L.C. (Joint Venture) ...... 95±1783 06/06/95 US West, Inc., TW Holdings, L.L.C. (Joint Venture), TW Holdings, L.L.C. (Joint Venture) ...... 95±1784 06/06/95 Empire of Carolina, Inc., SLM International, Inc., Buddy L. Inc. & Buddy L (Hong Kong) Limited ...... 95±1788 06/06/95 Dennis R. Washington, Fletcher Challenge Limited, a New Zealand company, Norsk Pacific Steamship Com- pany, Limited, a Bahamian Co ...... 95±1789 06/06/95 Libbey Inc., Louis J. Appell Residuary Trust, Pfaltzgraff, Pfaltzgraff Outlet Company ...... 95±1790 06/06/95 Warren A. Hood, Jr., International Paper Company, MkEwen Lumber Company ...... 95±1791 06/06/95 Omnicare, Inc., Gary W. Kadlec, Specialized Pharmacy Services, Inc ...... 95±1795 06/06/95 Kelso Investment Associates V, L.P., BankAmerica Corporation, Humphreys Inc ...... 95±1797 06/06/95 F. Holmes Lamoreux, DynCorp, DynAir Tech of Arizona, Inc ...... 95±1813 06/06/95 Pacific Telesis Group, Cross Country Wireless Inc., Cross Country Wireless Inc ...... 95±1673 06/07/95 Pacific Telesis Group, George Ring, Cross Country Telecommunications, Inc ...... 95±1674 06/07/95 Pacific Telesis Group, Vincent Tese, Cross Country Telecommunications, Inc ...... 95±1675 06/07/95 Bennett S. LeBow, New Valley Corporation, New Valley Corporation ...... 95±1727 06/07/95 People's Choice TV Corp., Eastern Cable Networks Corp., Eastern Cable Networks of Michigan, Inc ...... 95±1740 06/07/95 Eastern Cable Networks Corp., People's Choice TV Corp., People's Choice TV Corp ...... 95±1741 06/07/95 Wheaton Franciscan Services, Inc., Felician Health Care, Inc., St. Francis Hospital, Inc ...... 95±1781 06/07/95 Felician Health Care, Inc., Wheaton Franciscan Services, Inc., Covenant Healthcare System, Inc ...... 95±1782 06/07/95 Massachusetts Mutual Life Insurance Company, David L. Babson and Company Incorporated, David L. Bab- son and Company Incorporated ...... 95±1805 06/07/95 Continental Cablevision, Inc., Consolidated Cablevision of California, Consolidated Cablevision of California .... 95±1711 06/09/95 Shamrock Holdings, Inc., Koor Industries Ltd., Koor Industries Ltd ...... 95±1755 06/09/95 Columbia/HCA Helathcare Corporation, Alleghany Regional Hospital Corporation, Alleghany Regional Hospital Corporation ...... 95±1760 06/09/95 Rieter Holding AG, Gould/Globe Limited Liability Company, Globe Acquisition Corporation ...... 95±1766 06/09/95 Legardere Groupe S.C.A., K±III Communications Corporation, K±III Magazine Corporation ...... 95±1769 06/09/95 Ronald O. Perelman, K±III Communications Corporation, K±III Magazine Corporation ...... 95±1770 06/09/95 MMH Corp., Rockville Area Health Services, Inc., Rockville Area Health Services, Inc ...... 95±1772 06/09/95 Citrus Valley Health Partners, Inc., Foothill HospitalÐMorris L. Johnston Memorial, Foothill HospitalÐMorris L. Johnston Memorial ...... 95±1778 06/09/95 Jon M. Huntsman, Nova Corporation, Novacor Chemicals, Inc ...... 95±1785 06/09/95 Institute Sisters of Mercy-Americas/Regional St. Louis, St. Anthony's Medical Center, St. Anthony's Medical Center ...... 95±1792 06/09/95 Institute Sisters of Mercy-Americas/Regional St. Louis, St. Luke's Health Corporation, St. Luke's Health Cor- poration ...... 95±1793 06/09/95 Westinghouse Electric Corp., VECTRA Technologies, Inc., VECTRA Services, Inc ...... 95±1804 06/09/95 CUC International Inc., Irving Siegel, GETKO Group Inc ...... 95±1808 06/09/95 Irving Siegel, CUC International Inc., CUC International Inc ...... 95±1809 06/09/95 General Electric Company, Koor Industries Ltd., Koor Industries Ltd ...... 95±1814 06/09/95 Silicon Graphics, Inc., Wavefront Technologies, Inc., Wavefront Technologies, Inc ...... 95±1164 06/12/95 Silicon Graphics, Inc., Alias Research Inc., Alias Research Inc ...... 95±1168 06/12/95 Sodexho S.A., Corrections Corporation of America, Corrections Corporation of America ...... 95±1773 06/12/95 Emerson Electric Co., Peter R. Furniss, Computer Process Controls, Inc ...... 95±1806 06/12/95 Gemplus SCA, World Card International GmbH, DataCard Plastics, Inc. and DataCard Bureau, Inc ...... 95±1810 06/12/95 The Procter & Gamble Company, TheraTech, Inc., TheraTech, Inc ...... 95±1811 06/12/95 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices 34535 TRANSACTIONS GRANTED EARLY TERMINATION BETWEEN: 060595 AND 061695ÐContinued Date Name of acquiring person, Name of acquired person, Name of acquired entity PMN No. terminated Mobil Corporation, Enserch Corporation, Garden Banks 388 Unit ...... 95±1816 06/12/95 Stewart A. Resnick and Lynda Rae Resnick, Unilever N.V., NEWCO, A California Limited Liability Company ... 95±1817 06/12/95 NationsBank Corporation, Japan Leasing (U.S.A.), Inc. NNW Utility Funding I, Inc./NNW Utility Funding II, Inc . 95±1818 06/12/95 John W. Kluge, Roadmaster Industries, Inc., Roadmaster Industries, Inc ...... 95±1820 06/12/95 John W. Kluge, The Actava Group Inc., The Actava Group Inc ...... 95±1821 06/12/95 Tri-State Generation and Transmission Association, Inc., Ronald W. Cantwell, Century Power Corporation ...... 95±1824 06/12/95 Golder, Thoma, Cressey Fund III Limited Partnership, Cutler-Williams Incorporated, Cutler-Williams Incor- porated ...... 95±1825 06/12/95 Comdata Holdings Corporation, Wm. B Reily & Company, Inc., Fleetman, Inc. d/b/a Fuelman ...... 95±1826 06/12/95 Federal Express Corporation, AMR Corporation, American Airlines, Inc ...... 95±1830 06/12/95 CGW Southeast Partners I, L.P., Gargour Holdings S.A., Monarch Tile, Inc ...... 95±1831 06/12/95 Sanyo Electric Co., Ltd., Integrated Health Services, Inc., Integrated Health Services, Inc ...... 95±1832 06/12/95 The Commerce Group, Inc., Atlantis Plastics, Inc., Western Pioneer Insurance Company ...... 95±1833 06/12/95 Seacor Holdings, Inc., John E. Graham & Sons, John E. Graham & Sons ...... 95±1836 06/12/95 Berkshire Hathaway, Inc., William H. Child, R.C. Willey Home Furnishings ...... 95±1838 06/12/95 First Financial Management Corporation, Employee Benefit Plans, Inc., Employee Benefit Plans, Inc ...... 95±1839 06/12/95 AEW Partners, L.P., Troy Hospitality Suite Corporation, Troy Hospitality Suite Corporation ...... 95±1840 06/12/95 Host Marriott Corporation, National Property Investors, Inc., San Antonio Riverwalk Marriott Hotel ...... 95±1845 06/12/95 HIG Investment Group, L.P., Mr. Louis Ligator, IPM Group, Ltd., Stock & Hybritex Automotive Assets ...... 95±1846 06/12/95 Malik M. Hasan, M.D., Blue Cros of California, Blue Cross of California ...... 95±1744 06/13/95 Blue Cross of California, Health Systems International, Inc., Health Systems International, Inc ...... 95±1747 06/13/95 Mahendra Parekh, J.M. Huber Corporation, Engineered Carbons Division of J.M. Huber Corporation ...... 95±1762 06/13/95 China Synthetic Rubber Corporation, Witco Corporation, Continental Carbon Company ...... 95±1800 06/13/95 London Merchant Securities plc, Time Warner Inc., Six Flags Entertainment Corporation ...... 95±1861 06/13/95 Consolidated Papers, Inc., Pentair, Inc., Niagara of Wisconsin Paper Corporation (``Niagara'') ...... 95±1691 06/14/95 Consolidated Papers, Inc., Minnesota Power & Light Company, Minnesota Paper, Incorporated (``Minnesota Paper'') ...... 95±1692 06/14/95 Marcus Cable Company, L.P., Estate of Charles A. Sammons, Sammons Communications, Inc ...... 95±1716 06/14/95 Marmon Holdings, Inc., DATEQ Information Network, Inc., DATEQ Information Network, Inc ...... 95±1822 06/14/95 H. Wayne Huizenga, Republic Waste Industries, Inc., Republic Waste Industries, Inc ...... 95±1848 06/14/95 Republic Waste Industries, Inc., Harris W. and Bonnie J. Hudson, Hudson Management Corporation and Envirocycle, Inc ...... 95±1849 06/14/95 Harris W. and Bonnie J. Hudson, Republic Waste Industries, Inc., Republic Waste Industries, Inc ...... 95±1850 06/14/95 Scapa Group plc, Coating Sciences, Inc., Coating Sciences, Inc ...... 95±1852 06/14/95 AT&T Corp., AT&T Corp., Colorado High Country Cellular L.P...... 95±1815 06/15/95 Christiana Companies, Inc., Energy Ventures, Inc., Energy Ventures, Inc ...... 95±1757 06/16/95 Energy Ventures, Inc., Christiana Companies, Inc., Prideco, Inc ...... 95±1758 06/16/95 Four Rivers Transportation, Inc., EXOR Group SA, Rail Holdings, Inc ...... 95±1875 06/16/95 FOR FURTHER INFORMATION CONTACT: agreement, accepted subject to final of practice (16 CFR 2.34), notice is Sandra M. Peay or Renee A. Horton, Commission approval, would prohibit, hereby given that the following consent Contact Representatives, Federal Trade among other things, a Phoenix, Arizona agreement containing a consent order to Commission, Premerger Notification based company and its president from cease and desist, having been filed with Office, Bureau of Competition, Room misrepresenting the success rate of their and accepted, subject to final approval, 303, Washington, DC 20580, (202) 326– in vitro fertilization program or any by the Commission, has been placed on 3100. other infertility treatment services. In the public record for a period of sixty By direction of the Commission. addition, it would require the institute (60) days. Public comment is invited. Donald S. Clark, and its president to possess competent Such comments or views will be Secretary. and reliable scientific evidence for any considered by the Commission and will future comparative success-rate claims be available for inspection and copying [FR Doc. 95–16258 Filed 6–30–95; 8:45 am] for fertility services. at its principal office in accordance with BILLING CODE 6750±01±M DATES: Comments must be received on § 4.9(b)(6)(ii) of the Commission’s rules or before September 1, 1995. of practice (16 CFR 4.9(b)(6)(ii)). [File No. 942±3134] ADDRESSES: Comments should be Agreement Containing Consent Order to Arizona Institute of Reproductive directed to: FTC/Office of the Secretary, Cease and Desist Medicine, Ltd., et al.; Proposed Room 159, 6th St. and Pa. Ave., NW., In the Matter of: Arizona Institute of Consent Agreement With Analysis to Washington DC 20580. Reproductive Medicine, Ltd., a limited Aid Public Comment FOR FURTHER INFORMATION CONTACT: corporation, and Robert H. Tamis, M.D., Michael Katz or Matthew Daynard, FTC/ individually and as president of said AGENCY: Federal Trade Commission. H–200, Washington, DC 20580. (202) corporation. [File No. 942–3134]. ACTION: Proposed consent agreement. 326–3123 or (202) 326–3291. The Federal Trade Commission SUMMARY: In settlement of alleged SUPPLEMENTARY INFORMATION: Pursuant having initiated an investigation of violations of federal law prohibiting to Section 6(f) of the Federal Trade certain acts and practices of Arizona unfair acts and practices and unfair Commission Act, 38 Stat. 721, 15 U.S.C. Institute of Reproductive Medicine, methods of competition, this consent 46 and § 2.34 of the Commission’s rules Ltd., a limited corporation, and Robert 34536 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices H. Tamis, M.D., individually and as 6. This agreement contemplates that, or through any corporation, subsidiary, president of said corporation, if it is accepted by the Commission, and division, or other device, in connection hereinafter sometimes referred to as if such acceptance is not subsequently with the advertising, promotion, sale or proposed respondents or respondents, withdrawn by the Commission pursuant offering for sale of services relating to and it now appearing that proposed to the provisions of § 2.34 of the the treatment of infertility, do forthwith respondents are willing to enter into an Commission’s rules, the Commission cease and desist from representing, agreement containing an order to cease may, without further notice to proposed directly or by implication, that and desist from the use of the acts and respondents: (a) issue its complaint respondents’ success rates in terms of practices being investigated, corresponding in form and substance achieving deliveries is higher than or It is hereby agreed by and between with the draft complaint and its compares favorably with the success proposed respondents and counsel for decision containing the following order rates of any single provider or group of the Federal Trade Commission that: to cease and desist in disposition of the providers of these services, unless at the 1. Proposed respondent Arizona proceeding; and (b) make information time of making such a representation, Institute of Reproductive Medicine, public in respect thereto. When so respondents possess and rely upon Ltd., is a limited corporation existing entered, the order to cease and desist competent and reliable scientific and doing business under and by virtue shall have the same force and effect and evidence for making such a comparison of the laws of the State of Arizona, with may be altered, modified or set aside in which shall, at a minimum, consist of its office and principal place of business the same manner and within the same results for its own patients that are located at 2850 North 24th Street, Suite time provided by statute for other based upon the same criteria for 500–A, Phoenix, Arizona 85008. orders. the order shall become final determining the calculation of delivery Proposed respondent Robert H. upon service. Delivery by the U.S. rates that were used to produce the Tamis, M.D., is president of respondent Postal Service of the complaint and results with which the comparison is Arizona Institute of Reproductive decision containing the agreed-to-order made, or otherwise misrepresenting the Medicine. His principal office or place to proposed respondents’ address as past or present success of respondents of business is the same as that of the stated in this agreement shall constitute in achieving live births or pregnancies corporate respondent. Dr. Tamis service. Proposed respondents waive or the past or present success of any formulates, directs and controls the acts any right they may have to any other single provider or group of providers of and practices of said corporation. manner of service. The complaint may these services in achieving live births or 2. Proposed respondents admit all the be used in construing the terms of the pregnancies. jurisdictional facts set forth in the draft order, and no agreement, understanding, II complaint. representation, or interpretation not 3. Proposed respondents waive: contained in the order or the agreement It is further ordered that respondents, (a) Any further procedural steps; may be used to vary or contradict the shall forthwith distribute a copy of this (b) The requirement that the terms of the order. Order to each of their officers, agents, Commission’s decision contain a 7. Proposed respondent have read the representatives, and employees, who are statement of findings of fact and draft complaint and the following order. engaged in the preparation and conclusions of law; Proposed respondents understand that placement of advertisements or (c) All rights to seek judicial review once the order has been issued, they promotional materials, who or otherwise to challenge or contest the will be required to file one or more communicated with patients or validity of the order entered pursuant to compliance reports showing that they prospective patients, or who have any this agreement; and have fully complied with the order. responsibilities with respect to the (d) Any claim under the Equal Access Proposed respondents further subject matter of this Order; and for a to Justice Act, 5 U.S.C. 504. understand that the may be liable for period of ten (10) years from the date of 4. This agreement shall not become civil penalties in the amount provided entry of this Order, distribute same to part of the public record of the by law for each violation of the order all of respondents’ future officers, proceeding unless and until it is after it becomes final. agents, representatives, and employees accepted by the Commission. If this Order having said responsibilities. agreement is accepted by the Commission, it, together with the draft Definitions III complaint, will be placed on the public ‘‘Competent and reliable scientific It is further ordered that for five (5) record for a period of sixty (60) days and evidence’’ shall mean those tests, years after the last date of dissemination information in respect thereto publicly analyses, research, studies or other of any representation covered by this released. The Commission thereafter evidence based on the expertise of Order, respondents, or their successors may either withdraw its acceptance of professionals in the relevant area, that and assigns, shall maintain and upon this agreement and so notify the have been conducted and evaluated in request make available to the Federal proposed respondents, in which event it an objective manner by persons Trade Commission for inspection and will take such action as it may consider qualified to do so, using procedures copying: appropriate, or issue and serve its generally accepted in the profession to A. All materials that were relied upon complaint (in such form as the yield accurate and reliable results. circumstances may require) and in disseminating such representation; decision, in disposition of the I and proceeding. It is ordered that respondents Arizona b. All tests, reports, studies, surveys, 5. This agreement is for settlement Institute of Reproductive Medicine, demonstrations or other evidence in purposes only and does not constitute Ltd., a limited corporation, and Robert their possession or control that an admission by proposed respondents H. Tamis, M.D., individually and as contradict, qualify, or call into question of facts, other than the jurisdictional president of said corporation, their such representation, or the basis relied facts, or of violations of law as alleged successors and assigns, officers, agents, upon for such representation, including in the draft of complaint. representatives, and employees, directly complaints from consumers. Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices 34537 IV a reasonable basis for claims they made the agreement and proposed order or to It is further ordered that: regarding their comparative success in modify in any way their terms. (1) Respondent Arizona Institute of achieving live births for their patients. Donald S. Clark, Reproductive Medicine, Ltd. Shall The Arizona Institute of Reproductive Secretary. notify the Commission at least thirty Medicine claimed a live birth per [FR Doc. 95–16255 Filed 6–30–95; 8:45 am] (30) days prior to any proposed change embryo transfer rate of 17 percent in BILLING CODE 6750±01±M in respondent such as dissolution, 1991 and 16 percent for the first six assignment or sale resulting in the months of 1992, as compared to a [File No. 941±0007] emergence of a successor corporation, national average of 14 percent for 1991. the creation or dissolution of The Commission alleges that these Council of Fashion Designers of subsidiaries or any other change in claims were deceptive because the America et al.; Proposed Consent respondent which may affect Agreement With Analysis to Aid Public compliance obligations arising out of Arizona Institute of Reproductive Comment this Order; and Medicine calculated the success statistics in their promotional materials (2) Respondent Robert H. Tamis, M.D. AGENCY: Federal Trade Commission. shall promptly notify the Commission of counting multiple births (i.e., twins, ACTION: Proposed consent agreement. the discontinuance of his present triplets, etc.) as multiple deliveries. The business or of his affiliation with the national percentage was based on data SUMMARY: In settlement of alleged corporate respondent. In addition, for a published by The Society for Assisted violations of federal law prohibiting period of three (3) years from the date Reproductive Technology (‘‘SART’’), a unfair acts and practices and unfair of service of this Order, the respondent national organization whose members, methods of competition, this consent shall promptly notify the Commission of including proposed respondents, are agreement, accepted subject to final each affiliation with a new business or providers of assisted reproductive Commission approval, would prohibit, employment that involves an infertility technologies. SART publishes annually among other things, two New York program. Each such notice shall include national averages for live births based corporations or their members the respondent’s new business address achieved through its members’ services. from attempting to fix or reduce and a statement of the nature of the National averages for live births are modeling fees, and would require them business or employment in which the based on a protocol which requires to take steps to educate fashion respondent is newly engaged as well as members to report multiple births as designers that price-fixing is illegal. a description of respondent’s duties and single deliveries. The published report DATES: Comments must be received on responsibilities in connection with the or before September 1, 1995. business or employment. counts a multiple birth as a single The expiration of the notice provision delivery. Had proposed respondents ADDRESSES: Comments should be of this paragraph shall not affect any likewise counted multiple births as a directed to: FTC/Office of the Secretary, other obligation arising under this single delivery, their success statistics Room 159, 6th St. and Pa. Ave., NW., Order. for deliveries would have been Washington, DC 20580. significantly lower than both the true FOR FURTHER INFORMATION CONTACT: V national average for deliveries per Michael Antalics or Karen Mills, FTC/ It is further ordered that respondents embryo transfer, which was 17 percent S–2627, Washington, DC 20580. (202) shall, within (60) days after service of for 1991, and the 14 percent represented 326–2821 or (202) 326–2052. this Order, file with the Commission a by respondents. SUPPLEMENTARY INFORMATION: Pursuant report, in writing, setting forth in detail to section 6(f) of the Federal Trade the manner and form in which they Part I of the proposed consent order seeks to address the alleged Commission Act, 38 Stat. 721, 15 U.S.C. have complied with all requirements of 46 and § 2.34 of the Commission’s rules this Order. misrepresentation cited in the accompanying complaint by requiring of practice (16 CFR 2.34), notice is Analysis of Proposed Consent Order To proposed respondents to possess hereby given that the following consent Aid Public Comment competent and reliable scientific agreement containing a consent order to The Federal Trade Commission has evidence for any future success rate cease and desist, having been filed with accepted an agreement to a proposed comparative claims for their infertility and accepted, subject to final approval, consent order from the Arizona Institute procedures. Any comparison with other by the Commission, has been placed on the public record for a period of sixty of Reproductive Medicine, Ltd. and its success rates must consist of results that (60) days. Public comment is invited. President, Robert H. Tamis, M.D. The are based upon the same or essentially Such comments or views will be Arizona Institute of Reproductive equivalent tests that were used as a Medicine offers infertility services to the considered by the Commission and will basis for the other rates. Moreover, a be available for inspection and copying public, including in vitro fertilization. fencing-in provision prohibits any The proposed consent order has been at its principal office in accordance with misrepresentation of success in § 4.9(b)(6)(ii) of the Commission’s rules placed on the public record for sixty achieving pregnancies or live births by (60) days for reception of comments by of practice (16 CFR 4.9(b)(6)(ii)). respondents as well as prohibiting interested persons. Comments received respondents from misrepresenting the Agreement Containing Consent Order during this period will become part of To Cease and Desist the public record. After sixty (60) days, success rates of any single provider or the Commission will again review the group of providers of these services. In the Matter of: The Council of Fashion agreement and the comments received The purpose of this analysis is to Designers of America, a corporation; and 7th and will decide whether it should facilitate public comment on the on Sixth, Inc., a corporation. File No. 941– 0007. withdraw from the agreement or make proposed order, and it is not intended final the agreement’s proposed order. to constitute an official interpretation of The Federal Trade Commission The Commission has alleged that (‘‘Commission’’), having initiated an proposed respondents failed to possess investigation of certain acts and 34538 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices practices of the Council of Fashion circumstances may require) and agents, employees, successors and Designers of America and 7th on Sixth, decision, in disposition of the assigns; Inc., hereinafter sometimes referred to proceeding. D. ‘‘7th on Sixth’’ means 7th on Sixth, collectively as ‘‘proposed respondents,’’ 7. This agreement contemplates that, Inc., its directors, trustees, officers, and it now appearing that the proposed if it is accepted by the Commission, and members, representatives, committees, respondents are willing to enter into an if such acceptance is not subsequently subcommittees, boards, divisions, agreement containing an order to cease withdrawn by the Commission pursuant agents, employees, successors and and desist from engaging in certain acts to the provisions of § 2.34 of the assigns. and practices being investigated, Commission’s rules, the Commission II It is hereby agreed by and between may, without further notice to the proposed respondents, by their duly proposed respondents, (1) issue its It is further ordered that respondents authorized officers and attorneys, and complaint corresponding in form and CFDA and 7th on the Sixth, directly or counsel for the Commission that: substance with the draft of complaint indirectly, or through any corporate or 1. Proposed respondent Council of and its decision containing the other device, in or affecting commerce, Fashion Designers of America following order to cease and desist in as ‘‘commerce’’ is defined in section 4 (hereinafter ‘‘CFDA’’) is a not-for-profit disposition of the proceeding and (2) of the Federal Trade Commission Act, corporation organized, existing, and make information public with respect 15 U.S.C. 44, forthwith cease and desist doing business under and by virtue of thereto. When so entered, the order to from entering into, attempting to enter the laws of the State of New York, with cease and desist shall have the same into, organizing or attempting to its office and principal place of business force and effect and may be altered, organize, implementing or attempting to located at 1412 Broadway, New York, modified, or set aside in the same implement, or continuing or attempting New York 10018. manner and within the same time to continue, any combination, 2. Proposed respondent 7th on Sixth, provided by statute for other orders. The agreement, or understanding, express or Inc. (hereinafter ‘‘7th on Sixth’’) is a not- order shall become final upon service. implied, for the purpose or with the for-profit corporation organized, Delivery by the U.S. Postal Service of effect of: existing, and doing business under and the complaint and decision containing A. Raising, lowering, fixing, by virtue of the laws of the State of New the agreed-to order to proposed maintaining or stabilizing the price, York, with its office and principal place respondents’ addresses as stated in this terms or other forms or conditions of of business located at 1412 Broadway, agreement shall constitute service. compensation paid for modeling or New York, New York 10018. Proposed respondents waive any right modeling agency services; or 3. Proposed respondents admit all the to any other manner of service. The B. Encouraging, advising, pressuring, jurisdictional facts set forth in the draft complaint may be used in construing assisting, inducing, or attempting to of complaint. the terms of the order, and no induce any person to engage in any 4. Proposed respondents waive: action prohibited by this order. (a) Any further procedural steps; agreement, understanding, (b) The requirement that the representation, or interpretation not Provided, however, that it shall not be Commission’s decision contain a contained in the order or the agreement deemed a violation of this order for statement of findings of fact and may be used to vary or contradict the more than one member of CFDA and/or conclusions of law; terms of the order. 7th on Sixth to employ or use the (c) All rights to seek judicial review 8. Proposed respondents have read services of the same person where such or otherwise to challenge or contest the the proposed complaint and order employment or use is not otherwise in validity of the order entered pursuant to contemplated hereby. They understand furtherance of any action prohibited by this agreement; and that once the order has been issued, this order. (d) Any claim under the Equal Access they will be required to file one or more III to Justice Act. compliance reports showing that they 5. This agreement is for settlement have fully complied with the order. It is further ordered that Respondents purposes only and does not constitute Proposed respondents further CFDA and 7th on Sixth each shall: an admission by proposed respondents understand that they may be liable for A. Within thirty (30) days after the that the law has been violated as alleged civil penalties in the amount provided date on which this order becomes final, in the draft of complaint or that the facts by law for each violation of the order distribute by certified U.S. first-class as alleged in the draft complaint, other after the order becomes final. mail a copy of this order and the than jurisdictional facts, are true. accompanying complaint, and the 6. This agreement shall not become Order notice attached in Appendix A hereto, part of the public record of the I to: proceeding unless and until it is 1. Each of its members, officers, accepted by the Commission. If this It is ordered that, as used in this directors, and employees, and each agreement is accepted by the order, the following definitions shall fashion designer who has shown in the Commission it, together with the draft of apply: fashion shows organized by 7th on complaint contemplated thereby, will be A. ‘‘Respondents’’ means the Council Sixth; placed on the public record for a period of Fashion Designers of America and 7th 2. Each person to whom it has, at any of sixty (60) days and information with on Sixth, Inc.; time prior to the effective date of this respect thereto will be publicly released. B. ‘‘Person’’ means any individual, order, communicated the benefits of The Commission thereafter may either partnership, association, company, or membership in 7th on Sixth, or whom withdraw its acceptance of this corporation; it has invited to join 7th on Sixth, as agreement and so notify the proposed C. ‘‘CFDA’’ means the Council of identified in Appendix B hereto; respondents, in which event it will take Fashion Designers of America, its 3. The International Model Managers such action as it may consider directors, trustees, officers, members, Association, c/o David Blasband, Esq., appropriate, or issue and serve its representatives, committees, Deutsch, Klagsbrun & Blasband, 800 complaint (in such form as the subcommittees, boards, divisions, Third Avenue, New York 10022; Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices 34539 4. Each of the modeling agencies which may affect compliance Mr. Victor Alfaro, 130 Barrow Street, Suite listed in Appendix C attached hereto; obligations under this order; and 105, New York, N.Y. 10014 and B. File a written report with the Mr. Robert Danes, 488 Seventh Avenue, New B. For a period of five (5) years from Commission within sixty (60) days after York, N.Y. 10018 Ms. Gemma Kahng, 550 Seventh Avenue, the date this order becomes final, cause the date the order becomes final, and New York, N.Y. 10018 to be made minutes of all business annually thereafter for five (5) years on Ghost, c/o Showroom Seven, 498 Seventh meetings of its membership, its board of the anniversary of the date the order Avenue, New York, N.Y. 10018 directors, its committees and became final, and at such other times as Mr. Mark Eisen, 214 West 39th Street, New subcommittees. Such minutes shall (i) the Commission may by written notice York, N.Y. 10018 identify all persons attending such require, setting forth in detail the Mr. Byron Lars, 29 West 57 Street, New York, meeting, (ii) include a certification, manner and form in which the N.Y. 10019 signed by the presiding officer and respondent has complied and is Ms. Mary McFadden, 240 West 35th Street, New York, N.Y. 10001 secretary under penalty of perjury, that complying with the order. Magaschioni, Inc., 499 Seventh Avenue, New states whether prices, terms, or other V York, N.Y. 10018 forms or conditions of compensation The Next Generation, 242 West 38th Street, paid for modeling or modeling agency It is further ordered that, for the New York, N.Y. 10018 services were discussed at the meeting, purpose of determining or securing Mr. Mark Badgley, Badgley Mischka, 525 and (iii) summarize what was discussed compliance with this order, each Seventh Avenue, New York, N.Y. 10018 at the meeting. If prices, terms, or other respondent shall permit any duly Mr. James Mischka, Badgley Mischka, 525 forms or conditions of compensation authorized representative of the Seventh Avenue, New York, N.Y. 10018 Commission: Ms. Jennifer George, Jennifer George, Inc., paid for modeling or modeling agency 530 Seventh Avenue, New York, N.Y. services were discussed at any business A. Upon reasonable notice to respondent access, during office hours 10018 meeting subject to this order, then the Mr. Fernando Sanchez, Fernando Sanchez minutes of such meeting shall identify and in the presence of counsel, to Ltd., 5 West 19th Street, New York, N.Y. the participants in the discussion and inspect and copy all books, ledgers, 10011 state in detail the substance of the accounts, correspondence, memoranda Ms. Joan Vass, Joan Vass NY, 117 East 29th discussion(s). Minutes and the required and other records and documents in the Street, New York, N.Y. 10016 certifications shall be retained for a possession or under the control of each Ms. Adrienne Vittadini, 1441 Broadway, New York, N.Y. 10018 period of five (5) years from the date the respondent relating to any matters contained in this order; and Mr. Byron Lars, 29 West 57th Street, New minutes were created. Such minutes York, N.Y. 10019 shall be provided to the Commission B. Upon five days’ notice to upon request. respondent and without restraint or Appendix C C. Within sixty (60) days after the date interference from it, to interview Ms. Bethann Hardison, Bethann Management on which this order becomes final, and officers, directors, employees, or agents Co., 36 North Moore Street, New York, NY annually thereafter for five (5) years, on of respondent, who may have counsel 10013 or before the anniversary date of this present. Boss Models, 317 West Thirteenth Street, New York, NY 10014 order, VI Ms. Frances Grill, President, Click Model 1. Communicate either orally or in It is further ordered that this Order Management, 881 7th Ave., Suite 1013, writing to its officers, directors, shall terminate twenty (20) years from New York, NY 10019 employees and members concerning the date this Order becomes final. Mr. Michael Flutie, President, Company Ltd., their obligations under this order; 270 Lafayette St., Suite 1400, New York, 2. Obtain from each of its officers, Appendix A NY 10012 directors, and employees an annual Dear llllllllll: [Respondent] Ms. Monique Pillard, President, Elite Model written certification, that he or she (a) has agreed, without admitting any violation Management, 111 East 2nd Street, New has read, understands and agrees to of the law, to the entry of a Consent Order York, NY 10010 Ms. Ellen Harth, Elite Runway, 149 Madison abide by the terms of this order, (b) is by the Federal Trade Commission prohibiting certain conduct. A copy of the Order is Avenue, New York, NY 10016 not aware of any violation of this order, Joseph Hunter, President, Ford Models, Inc., and (c) has been advised and enclosed. The Order spells out [Respondent]’s 344 East 59th Street, New York, NY 10022 understands that failure of CFDA or 7th obligations in greater detail, but we want you Mr. Charles Bennett, Senior Vice President, on Sixth, as defined in the order, to to know and understand the following: International Management Group, 170 Fifth comply with this order may subject The Council of Fashion Designers of Avenue, 10th Floor, New York, NY 10010 either or both of the respondents to America and 7th on Sixth, Inc. may not Ms. Irene Marie, President, I’M New York, penalties for violation of the order; and negotiate on behalf of fashion designers 120 Wooster St., New York, NY 10012 3. Retain the certifications required by collectively with models or modeling or Ms. Irene Marie, President, Irene Marie, Inc., modeling agency services, and may not enter 728 Ocean Drive, Miami Beach, FL 33139 Section III.C.2. Such certifications shall Ms. Milie Pellet, President, Next be provided to the Commission upon into or continue any agreement or understanding, express or implied, for the Management, 23 Watts Street, 5th Floor, request. purpose or with the effect of affecting the New York, NY 10013 IV prices paid for modeling or modeling agency Now Model Management, 568 Broadway, services. Suite 504–A, New York, NY 10012 It is further ordered that each Non-compliance with this Order may Pauline Bernatchez, President, Pauline’s, 379 respondent shall: subject [Respondent] to penalties for West Broadway, 5th Floor, New York, NY A. Notify the Commission at least violation of the order, and may be reported 10012 thirty (30) days prior to any proposed to the Federal Trade Commission. Ms. Natasha Esch, President, Wilhelmina Models, Inc., 300 Park Avenue South, 2nd change in the respondent such as a Sincerely, dissolution, assignment, or sale Floor, New York, NY 10010 lllllllllllllllllllll Women Model Management, 107 Greene resulting in the emergence of a [Respondent] Street, New York, NY 10012 successor corporation, the creation or Enclosure Ms. Barbara Lantz, President, Zoli dissolution of subsidiaries, bankruptcy, Management, 3 West 18th Street, New or any other change in the respondent Appendix B York, NY 10011 34540 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices Analysis of Proposed Consent Order To of the kind of prohibited agreement to of practice (16 CFR 2.34), notice is Aid Public Comment which CFDA and 7th on Sixth were hereby given that the following consent The Federal Trade Commission has party. agreement containing a consent order to accepted an agreement to a proposed In order to deter future law violations cease and desist, having been filed with consent order from The Council of and facilitate FTC review of compliance and accepted, subject to final approval, Fashion Designers of America, Inc. with the order, the proposed order by the Commission, has been placed on (CFDA) and 7th on Sixth, Inc. requires CFDA and 7th on Sixth to make the public record for a period of sixty The proposed consent order has been and keep minutes of all meetings of (60) days. Public comment is invited. placed on the public record for sixty their membership board, committees or Such comments or views will be (60) days for reception of comments by subcommittees, for five years. These considered by the Commission and will interested persons. Comments received minutes must indicate if prices or terms be available for inspection and copying during this period will become part of of modeling services are discussed at at its principal office in accordance with the public record. After sixty (60) days, any meeting. CFDA and 7th on Sixth § 4.9(b)(6)(ii) of the Commission’s rules the Commission will again review the must provide these minutes to the FTC of practice (16 CFR 4.9(b)(6)(ii)). agreement and the comments received upon request. The parties must also In the Matter of: Live-Lee Productions, Inc., and will decide whether it should communicate to their members, officers, a corporation, and Ruta Lee, individually and withdraw from the agreement or make directors and employees their as an officer and director of said corporation, final the agreement’s proposed order. obligations under this order. Officers, File No. 942–3058. The complaint alleges that CFDA, a directors and employees must in turn provide annual written certification that Agreement Containing Consent Order to trade association of fashion designers, Cease and Desist and 7th on Sixth, a not-for-profit they have received such notice. corporation, and their members, have The purpose of this analysis is to The Federal Trade Commission engaged in acts and practices that have facilitate public comment on the having initiated an investigation of unreasonably restrained competition proposed order, and it is not intended certain acts and practices of Live-Lee among fashion designers. The complaint to constitute an official interpretation of Productions, Inc., a corporation, and alleges that CFDA and 7th on Sixth the agreement and proposed order or to Ruta Lee, individually and as an officer fixed prices for the hiring of runway modify in any way their terms. and director of said corporation, models. The complaint alleges that this Donald S. Clark, hereinafter sometimes referred to as price fixing agreement among Secretary. proposed respondents, and it now purchasers of modeling and modeling [FR Doc. 95–16254 Filed 6–30–95; 8:45 am] appears that proposed respondents are agency services violates Section 5 of the BILLING CODE 6750±01±M willing to enter into an agreement Federal Trade Commission Act. containing an order to cease and desist CFDA and 7th on Sixth have signed from the use of the acts and practices [File No. 942±3058] a proposed consent agreement that being investigated, It is hereby agreed by and between requires them to cease and desist from Live-Lee Productions, Inc.; Proposed Live-Lee Productions, Inc., a any agreement which has the purpose or Consent Agreement With Analysis to corporation, by its duly authorized effect of fixing prices paid or terms of Aid Public Comment employment for modeling or modeling officer, and Ruta Lee, individually and agency services and from encouraging AGENCY: Federal Trade Commission. as an officer and director of said others to engage in such activities. The ACTION: Proposed Consent Agreement. corporation, and counsel for the Federal proposed consent order requires that Trade Commission that: SUMMARY: CFDA and 7th on Sixth distribute a In settlement of alleged 1. Proposed respondent Live-Lee copy of the complaint and a letter violations of federal law prohibiting Productions, Inc. is a corporation notifying their members and employees, unfair acts and practices and unfair organized, existing, and doing business modeling agencies and other designated methods of competition, this consent under and by virtue of the laws of the parties listed in the order that neither agreement, accepted subject to final States of Texas, with its offices and the CFDA nor 7th on Sixth may Commission approval, would prohibit, principal place and business at 2761 negotiate on behalf of fashion designers among other things, a Los Angeles based Laurel Canyon Boulevard, Los Angeles, collectively with models or modeling corporation, and Ruta Lee, who directs California 90046. agencies, and they may neither continue and controls the corporation, from Proposed respondent Ruta Lee is an nor enter into any agreement for the making claims for any food, dietary officer and director of said corporation. purpose of affecting modeling prices. supplement or drug unless they have She formulates, directs, and controls the The proposed order includes a competent and reliable scientific policies, acts, and practices of said proviso which makes clear that fashion evidence to support the claims. corporation. She resides at 2436 Shirley designers who choose to employ or use DATES: Comments must be received on Avenue, Fort Worth, Texas 76109. the services of the same model will not or before September 1, 1995. 2. Proposed respondents admit all the be deemed in violation of the order, ADDRESSES: Comments should be jurisdictional facts set froth in the draft where such employment or use is not directed to: FTC/Office of the Secretary, of the complaint. otherwise in furtherance of any action Room 159, 6th St. and Pa. Ave., NW., 3. Proposed respondents waive: prohibited by the order. The proviso Washington, DC 20580. (a) Any further procedural steps: will permit fashion designers to hire FOR FURTHER INFORMATION CONTACT: (b) The requirement that the models independently without fear that Lisa B. Kopchik or Joel Winston, FTC/ Commission’s decision contain a the fact that they hire the same model S–4002, Washington, DC 20580. (202) statement of findings of fact and itself will result in liability. The order 326–3139 or (202) 326–3153. conclusions of law; and also permits two or more designers to SUPPLEMENTARY INFORMATION: Pursuant (c) All rights to seek judicial review agree to hire and use models jointly to section 6(f) of the Federal Trade or otherwise to challenge or contest the without violating the order, so long as Commission Act, 38 Stat. 721, 15 U.S.C. validity of the order entered pursuant to they do not agree to do so in furtherance 46 and § 2.34 of the Commission’s rules this agreement. Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices 34541 4. This agreement shall not become understand that they may be liable for inadequacy of substantiation for the part of the public record of the civil penalties in the amount provided representations. proceeding unless and until it is by law for each violation of the order II accepted by the Commission. If this after it becomes final. agreement is accepted by the It is further ordered that respondents Order Commission it, together with the draft of Live-Lee Productions, Inc., a the complaint contemplated thereby, I corporation, its successors and assigns, will be placed in the public record for It is ordered that respondents Live- and its officers; and Ruta Lee, a period of sixty (60) days and Lee Productions, Inc., a corporation, its individually and as an officer and information in respect thereto publicly successors and assigns, and its officers; director of said corporation; and released. The Commission thereafter and Ruta Lee, individually and as an respondents’ agents, representatives and may either withdraw its acceptance of officer and director of said corporation; employees, directly or through any this agreement and so notify the and respondents’ agents, representatives partnership, corporation, subsidiary, proposed respondents, in which event it and employees, directly or through any division or other device, in connection will take such action as it may consider partnership, corporation, subsidiary, with the manufacturing, advertising, appropriate, or issue and serve its division or other device, in connection packaging, labeling, promotion, offering complaint (in such form as the with the manufacturing, advertising, for sale, sale or distribution of Life Way circumstances may require) and packaging, labeling, promotion, offering Smoke-Less Nutrient Spray or any other decision, in disposition of the for sale, sale or distribution of Life Way smoking cessation product, program, or proceeding. service, in or affecting commerce, as 5. This agreement is for settlement Vitamin C and Zinc Spray, Life Way Antioxidant Spray, Life Way Vitamin B– ‘‘commerce’’ is defined in the Federal purposes only and does not constitute Trade Commission Act, do forthwith an admission by proposed respondents 12 Spray, or any other food, food or dietary supplement, or drug, as ‘‘food’’ cease and desist from making any that the law has been violated as alleged representation, in any manner, directly in the draft complaint, or that the facts and ‘‘drug’’ are defined in section 15 of the Federal Trade Commission Act, 15 or by implication: as alleged in the draft complaint, other A. That such product, program, or than the jurisdictional facts, are true. U.S.C. 55, in or affecting commerce, as ‘‘commerce’’ is defined in the Federal service enables smokers, regardless of 6. This agreement contemplates that, how long they have smoked or how if it is accepted by the Commission, and Trade Commission Act, do forthwith cease and desist from making any much they smoke, to stop smoking if such acceptance is not subsequently easily; withdrawn by the Commission pursuant representation, in any manner, directly or by implication: B. That such product, program, or to the provisions of § 2.34 of the service satisfies the physiological urge Commission’s rules, the Commission A. That such product: 1. Is more fully absorbed by the to smoke a cigarette, or eliminates the may, without further notice to proposed quivering, anxiety and weight gain respondents, (1) issue its complaint human body than any other product; 2. Heals lesions in the mouth, cold attendant with quitting smoking; or corresponding in form and substance to C. Regarding the performance, the draft of complaint and its decision sores on the mouth, or cracking of the corners of the lips; benefits, efficacy or safety of any such containing the following order to cease product, program, or service, and desist in disposition of the 3. Prevents common colds; proceeding and (2) make information 4. Effectively treats symptoms related unless, at the time of making such public in respect thereto. When so to hangovers; representation, respondents possess and entered, the order to cease and desist 5. Increases energy; rely upon competent and reliable shall have the same force and effect and 6. Ensures the proper functioning of scientific evidence that substantiates the may be altered, modified or set aside in the immune system; representation; 7. Reduces the risk of contracting the same manner and within the same Provided that it shall be a defense time provided by statute for other infectious diseases; hereunder that the respondents neither 8. Prevents facial lines; or orders. The order shall become final knew nor had reason to know of the B. That use of the product can or will upon service. Delivery by the U.S. inadequacy of substantiation for the have any effect on the user’s health, or Postal Service of the complaint and representation. on the structure or function of the decision containing the agreed-to order human body, III to proposed respondents’ addresses as stated in this agreement shall constitute unless, at the time of making such It is further ordered that, for five (5) service. Proposed respondents waive representation, respondents possess and years after the last date of dissemination any right they may have to any other rely upon competent and reliable of any representation covered by this manner of service. The complaint may scientific evidence that substantiates the Order, respondents Live-Lee be used in construing the terms of the representation. For the purpose of this Productions, Inc., a corporation, its order, and no agreement, understanding, Order, ‘‘competent and reliable successors and assigns, and its officers; representation, or interpretation not scientific evidence’’ shall mean tests, and Ruta Lee individually and as an contained in the order or the agreement analyses, research, studies, or other officer and director of said corporation, may be used to vary or contradict the evidence based on the expertise of or their successors and assigns, shall terms of the order. professionals in the relevant area, that maintain and upon request make 7. Proposed respondents have read have been conducted and evaluated in available to the Federal Trade the proposed complaint and order an objective manner by persons Commission for inspection and copying: contemplated hereby. They understand qualified to do so, using procedures A. All materials that were relied upon that once the order has been issued, generally accepted in the profession to in disseminating such representation; they will be required to file one or more yield accurate and reliable results; and compliance reports showing that they Provided that it shall be a defense B. All tests, reports, studies, surveys, have fully complied with the order. hereunder that the respondents neither demonstrations or other evidence in Proposed respondents further knew nor had reason to know of the their possession or control that 34542 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices contradict, qualify, or call into question Analysis of Proposed Consent Order To alleges that the respondents did not such representation, or the basis relied Aid Public Comment have substantiation for these upon for such representation, including The Federal Trade Commission has representations at the time they were complaints from consumers. accepted an agreement to a proposed made. The complaint further alleges that the respondents knew or should have IV consent order from Live-Lee Productions, Inc. (‘‘Live-Lee’’) and Ruta known that the representations were not Lee (‘‘Lee’’). substantiated. It is further ordered that respondents The proposed consent order contains The proposed consent order has been Live-Lee Productions, Inc. shall, within provisions designed to prevent the placed on the public record for sixty thirty (30) days after service of this respondents from engaging in similar (60) days for receipt of comments by Order, provide a copy of this Order to acts and practices in the future. each of respondent’s current principals, interested persons. Comments received Part I of the proposed order prohibits officers, directors and managers, and to during this period will become part of the respondents from representing that all personnel, agents and representatives the public record. After sixty (60) days, any food, food or dietary supplement, or having sales, advertising or policy the Commission will again review the drug can or will have any effect on the responsibility with respect to the subject agreement and the comments received user’s health, or on the structure or and will decide whether it should matter of this Order. function of the human body, unless, at withdraw from the agreement or make the time they make the representation, V final the agreement’s proposed order. they possess and rely upon competent This matter involves alleged and reliable scientific evidence that It is further ordered that respondent deceptive representations for three Live-Lee Productions, Inc. shall notify substantiates the representation. spray vitamin products and a spray Part II of the proposed order prohibits the Federal Trade Commission at least smoking cessation product. The respondents from making any thirty (30) days prior to any proposed products at issue are Life Way Vitamin representation about the performance, change in its corporate structure, C and Zinc Spray, Life Way Antioxidant benefits, efficacy, or safety of any including but not limited to dissolution, Spray, Life Way Vitamin B–12 Spray, smoking cessation product, program, or assignment or sale resulting in the and Life Way Smoke-Less Nutrient service, unless they have competent and emergence of a successor corporation, Spray. The complaint charges that Lee reliable scientific evidence that the creation or dissolution of performed the functions of an substantiates the representation. With subsidiaries or affiliates, the planned advertising agency by creating and respect to both Parts I and II, the filing of a bankruptcy petition, or any disseminating the representations, and proposed order provides a defense to other corporate change that may affect that she received a royalty for each unit respondents if they neither knew nor compliance obligations arising out of of product that was sold. The claims had reason to know of the inadequacy this Order. were made on television advertisements of the substantiation for the called ‘‘Spotlight on Ruta Lee.’’ These representation. VI advertisements were broadcast on the Part III requires that the respondents Home Shopping Club, commercial keep records concerning claims covered It is further ordered that respondent programming shown on the Home Ruta Lee shall, for a period of five (5) by the order, including materials that Shopping Network. they relied upon when making the years from the date of issuance of this Live-Lee is Lee’s closely-held Order, notify the Commission within claims. corporation, which is engaged in the Part IV requires respondent Live-Lee thirty (30) days of the discontinuance of business of providing the services of to provide a copy of the order to each her present business or employment and Ruta Lee in connection with the of its principals, officers, directors, and of her affiliation with any new business marketing, advertising, sale and managers, and to all personnel, agents, or employment which involves the sale distribution of consumer products. Lee and representatives having sales, of consumer products. Each notice of is an officer, director, and sole advertising, or policy responsibility affiliation with any new business or shareholder of Live-Lee. with respect to the subject matter of the employment shall include the According to the FTC complaint, Lee order. respondent’s new business address and made claims that the vitamins in the Part V requires respondent Live-Lee to telephone number, current home spray products are more fully absorbed notify the Commission of any change in address, and a statement describing the by the human body than vitamins taken its corporate structure that might affect nature of the business or employment in pill form; and that the vitamins its compliance with the order. and her duties and responsibilities. would heal mouth lesions, cold sores, Part VI requires respondent Ruta Lee and cracking of the corners of the lips; for 5 years to notify the Commission of VII prevent common colds; treat hangover any change in her business or symptoms; increase users’ energy; It is further ordered that respondents employment or her affiliation with any ensure the proper functioning of the new business or employment that Live-Lee Productions, Inc., a immune system; reduce the risk of involves the sale of consumer products. corporation, its successors and assigns, contracting infectious diseases; and Part VII requires respondents to file and its officers; and Ruta Lee, prevent facial lines. The complaint also compliance reports with the individually and as an officer and alleges that Lee made claims that the Commission. director of said corporation, shall, smoking cessation spray would enable On March 3, 1995, the Commission within sixty (60) days after service of smokers, regardless of how long they issued a complaint against Home this Order, and at such other times as have smoked or how much they smoke, Shopping Network, Inc.; Home the Federal Trade Commission may to stop smoking easily; and would Shopping Club, Inc.; and HSN Lifeway require, file with the Commission a satisfy the physiological urge to smoke Health Products, Inc. for their role in report, in writing, setting forth in detail a cigarette and eliminate the quivering, making and disseminating the same the manner and form in which they anxiety and weight gain that go along allegedly deceptive representations have complied with this Order. with quitting smoking. The complaint (Docket No. 9272). That case is now Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices 34543 pending before an Administrative Law U.S.C., Appendix 2) announcement is by the Center for Drug Evaluation and Judge. made of the following special emphasis Research’s (CDER’s) Refusal to File The purpose of this analysis is to panel scheduled to meet during the (RTF) review committee. The new facilitate public comment on the month of August 1995: procedures will permit applicants that proposed order, and it is not intended Name: Health Care Policy and Research have received an RTF to attend the to constitute an official interpretation of Special Emphasis Panel meeting at which the RTF review the agreement and proposed order or to Date and Time: August 10, 1995, 8:30 a.m. committee evaluates the RTF imposed modify in any way their terms. Place: Hyatt Regency, One Bethesda Metro on its application. This change, which Donald S. Clark, Center, Conference Room TBA, Bethesda, MD will be implemented on a trial basis, 20814. Secretary. may enhance understanding of and Open August 10, 8:30 a.m. to 9 a.m. Closed [FR Doc. 95–16256 Filed 6–30–95; 8:45 am] participation in the RTF review for remainder of meeting. committee process. Additional changes BILLING CODE 6750±01±M Purpose to the procedures may be useful and comments are requested. This panel is charged with conducting DATES: DEPARTMENT OF HEALTH AND the initial review of grant applications Comments may be submitted at HUMAN SERVICES proposing health services research any time. training programs under the National ADDRESSES: Submit written comments Administration on Aging Research Service Awards Program. on this change in procedures to the Dockets Management Branch (HFA– White House Conference on Aging Agenda 305), Food and Drug Administration, The open session of the meeting on rm. 1–23, 12420 Parklawn Dr., AGENCY: White House Conference on August 10, from 8:30 a.m. to 9 a.m., will Rockville, MD 20857. Aging, AoA, HHS. be devoted to a business meeting FOR FURTHER INFORMATION CONTACT: ACTION: Notice of meeting. covering administrative matters. During Janet M. Jones, Center for Drug SUMMARY: Notice is hereby given, the closed session, the committee will Evaluation and Research (HFD–014), pursuant to Title II of the Older be reviewing and discussing grant Food and Drug Administration, 5600 Americans Act Amendments of 1987, applications dealing with health Fishers Lane, Rockville, MD 20857, Pub. L. 100–175 as amended by Pub. L. services research issues. In accordance 301–594–5445. 102–375 and Pub. L. 103–171, that the with the Federal Advisory Committee SUPPLEMENTARY INFORMATION: In the 1995 White House Conference on Aging Act, 5 U.S.C., Appendix 2 and 5 U.S.C., Federal Register of May 18, 1993 (58 FR Business Advisory Committee will meet 552b(c)(6), it has been determined that 28983), FDA announced the on Monday, July 17, 1995 from 10:00 this latter session will be closed because establishment of a standing committee AM–noon in the Hubert H. Humphrey the discussions are likely to reveal in CDER’s to conduct periodic review of Building at 200 Independence Avenue, personal information concerning the CDER’s RTF decisions. The SW in Washington, DC. Information on individuals associated with the grant committee was established on a 1-year the specific room in which the meeting applications. This information is trial basis. Initially, the committee will be held can be obtained by calling exempt from mandatory disclosure. invited companies to submit requests the telephone number given below. The Anyone wishing to obtain a roaster of for review of RTF’s that they considered meeting of the Committee shall be open members or other relevant information to have been made inappropriately. The to the public. should contact Linda W. Blankenbaker, RTF review committee consists of senior The proposed agenda includes Agency for Health Care Policy and CDER officials, a senior official from the discussion of how the Committee and Research, Suite 400, 2101 East Jefferson Center for Biologics Evaluation and the business community can assist with Street, Rockville, Maryland 20852, Research, and FDA’s Chief Mediator and implementation of the resolutions Telephone (301) 594–1438. Ombudsman. Agenda items for this meeting are adopted by the Conference delegates. CDER created the RTF review subject to change as priorities dictate. Records shall be kept of all Committee committee because it believes that a proceedings and shall be available for Dated: June 26, 1995. clear, well-understood, and consistently public inspection at 501 School Street, Clifton R. Gaus, applied RTF policy may improve SW, 8th Floor, Washington, DC 20024. Administrator. substantially the efficiency of the new FOR FURTHER INFORMATION CONTACT: [FR Doc. 95–16253 Filed 6–30–95; 8:45 am] drug evaluation process. The practice of White House Conference on Aging, 501 BILLING CODE 4160±90±M submitting an incomplete or inadequate School Street, SW, 8th Floor, application and then providing Washington, DC 20024; telephone (202) additional information during an 245–7116. Food and Drug Administration extended review period is inherently Fernando M. Torres-Gil, inefficient and a waste of agency [Docket No. 92N±0371] resources. In addition, it is unfair to Assistant Secretary for Aging. New Drug Applications; Refusal to those applicants who fulfill their [FR Doc. 95–16270 Filed 6–30–95; 8:45 am] scientific and legal obligations by BILLING CODE 4130±02±M File; Change in Procedures to Include Industry Representatives in Meetings submitting complete applications to of the Review Committee have the review of their applications delayed while other incomplete Agency for Health Care Policy and applications submitted earlier undergo Research AGENCY: Food and Drug Administration, HHS. review and repair. Health Care Policy and Research ACTION: Notice. FDA regulations on filing Special Emphasis Panel Meeting applications, including grounds and SUMMARY: The Food and Drug procedures for RTF’s, are found in In accordance with section 10(a) of Administration (FDA) is announcing a § 314.101 (21 CFR 314.101). In the past, the Federal Advisory Committee Act (5 change in the review process conducted some CDER review divisions refused to 34544 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices file applications only where the and internal management issues. After NINDS, 9000 Rockville Pike, Building deficiencies were extreme while other the division’s presentation, the 36, Room 2C02, Bethesda, MD 20892. divisions applied the regulation more applicant will be invited to give a brief Telephone: 301–402–1407, or e-mail: broadly. When deciding whether to file presentation (approximately 10 [email protected]. Business an application, CDER exercises minutes), and may be asked questions questions should be addressed to discretion, considering in particular by the committee. For the reasons Stephen Finley, Ph.D., National whether the application is for a specified above, the applicant will not Institutes of Health, NINDS, 9000 medically important drug. The RTF remain for the committee deliberations Rockville Pike, Building 31, Room procedure is used in the context of on the appropriateness of the RTF, but 8A46, Bethesda, MD 20892. Telephone: CDER’s effort to promote rapid will be advised of its decision. The 301–496–4697, or e-mail: development and review of agency also may send followup [email protected]. applications. correspondence to the applicant after DATES: Proposals should be received by Although an RTF is not a final the meeting. Because the presentations September 1, 1995. determination, it is a significant step may deal with confidential commercial SUPPLEMENTARY INFORMATION: The that delays full review of an application. information, applicants will not be Laboratory of Neurophysiology (LNP) The applicant who receives an RTF permitted to be present during studies the cellular function and notification may request an informal presentations made by other companies. conference with FDA and thereafter may The change in the procedures will be processes of normal and abnormal nerve ask that the application be filed over implemented on a trial basis at the next cells. The over- and under-expression of protest as described under meeting to review RTF decisions. genes play critical roles in the control of § 314.101(a)(3). CDER believes that an Additional changes to the procedures cellular function, proliferation, and RTF decision is, in general, of benefit to may be appropriate, and comments are differentiation, and are responsible for a applicants as an early signal that the requested. number of neurodegenerative disorders application has major deficiencies. Interested persons may, at any time, and hyperplasias. The LNP developed a When the RTF review began, FDA submit to the Dockets Management quantitative reverse transcription invited companies to request review of Branch (address above) written polymerase chain reaction based RTF decisions that they wanted FDA to comments regarding this change in protocol which optimizes the reconsider. As explained in the Federal procedures. Two copies of any identification of over- or under- Register of September 21, 1994 (59 FR comments are to be submitted, except expression of genes in a cell. A library 48440), in January 1994, the RTF review that individuals may submit one copy. of primers for over 100 different committee began to meet bimonthly and Comments are to be identified with the signaling genes have been successfully to review all of the RTF decisions that docket number found in brackets in the used to screen expression patterns in CDER makes, rather than only some of heading of this document. Received nerve cells. them, and requests by drug companies comments may be seen in the office Current cellular gene expression were no longer necessary. CDER above between 9 a.m. and 4 p.m., research is hampered by the time decided to review all of the RTF Monday through Friday. required for sequential analysis of the expressed genes in a cell. There is no decisions because the number of those Dated: June 26, 1995. decisions had decreased over the fully automated high capacity, high William B. Schultz, previous year and because RTF resolution assay system developed for decisions have other effects related to Deputy Commissioner for Policy. gene expression mapping (GEM). user fees. Under section 736(a)(1)(D) of [FR Doc. 95–16205 Filed 6–30–95; 8:45 am] An assay system which analyzes the the Prescription Drug User Fee Act of BILLING CODE 4160±01±F expressed genes in cells will provide a 1992 (21 U.S.C. 379h(a)(1)(D)), FDA is new opportunity for exploring how authorized to retain 25 percent of the environmental or genetic changes alter total user fee assessed for each NDA that National Institutes of Health the cellular expression of genes. The significance of such a system is that it it refuses to file. If the agency National Institute of Neurological allows cascade effects of a single event incorrectly refuses to file an application, Disorders and Stroke: Opportunity for to be analyzed in toto, as contrasted to FDA needs to identify and correct the a Cooperative Research and being limited to the study of the effect error promptly so that the application Development Agreement (CRADA) for on a single gene. This new approach may be filed and a review initiated and the Development of a High will refine the study of cellular so that incorrectly retained fees may be Performance Gene Expression signaling processes and open the field of returned to the applicant. Mapping Assay System To increase the understanding of and experimental genetic networks. The participation in this process, the RTF AGENCY: National Institutes of Health, study of genetic networks represents a review committee has decided to invite PHS, DHHS. frontier which will provide insight into each company whose application has ACTION: Notice. complex interactions between genes. been refused for filing to the committee This is becoming a necessity since many meeting scheduled to review that RTF SUMMARY: The National Institutes of current findings cannot be understood decision. The committee usually will Health (NIH) seeks an agreement with a in terms of a single gene acting in review no more than four RTF’s per company(ies) which will collaborate on isolation. meeting. At the RTF review meeting, the the development of an automated high The LNP would like to collaborate in CDER division that made the RTF capacity, high resolution cellular gene developing an automated system for the decision will present to the committee mapping assay system for mRNA laborious gene expression assay process the deficiencies present in the expression analysis system or genomic which incorporates sample preparation, application and will explain the RTF fingerprinting. reverse transcription polymerase chain decision. The applicant will not attend ADDRESSES: Questions concerning reaction, thermal cycling, and high this portion of the meeting as the scientific aspects of this opportunity speed analysis of the final product. The discussion generally involves, among may be addressed to Roland Somogyi, aim of this CRADA is to produce an other things, predecisional deliberations Ph.D., National Institutes of Health, automated system which breaks through Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices 34545 the current technological barriers and Maryland 20892, on July 13, 1995. The Contact Person: Mr. Baldwin Wong, ultimately enables the cataloging of the second meeting will be held at the Sir Program Analyst, NIDCD/PPHRB, 31 Center expression levels of all genes in a cell Francis Drake Hotel on Union Square, Drive, MSC 2320, Room 3C–35, Bethesda, Maryland 20892–2320, (301) 496–7243. type. The culmination of this CRADA 450 Powell Street, San Francisco, Purpose: To recommend individuals to could provide a means to California 94102, on August 17, 1995. serve on a scientific panel to update the simultaneously screen the mRNA These meetings will begin at hearing and hearing impairment section of variations in a multitude of cell types or approximately 9:30 a.m. and will end at the Research Plan. provide a means for the genomic approximately 5 p.m. The meeting will be closed in accordance fingerprinting of cellular DNA. The goal of the Panel is to make with the provisions set forth in sec. recommendations to the ACD about the 552b)(c)(6), Title 5, U.S.C. These discussions Role of NINDS scientific areas that NIH should could reveal personal information concerning 1. The LNP will provide its expertise these individuals, the disclosure of which emphasize and the funding mechanisms would constitute a clearly unwarranted in the quantitative reverse transcription that should be employed in order best invasion of personal privacy. polymerase chain reaction (RTPCR) to advance the development of gene (Catalog of Federal Domestic Assistance protocol it developed as well as a therapy. Program No. 93.173, Biological Research custom library of primers for over 100 Written statements will be accepted Related to Deafness and Communication different genes. and provided to the Panel prior to the Disorders) 2. Collaborate in designing meetings. Statements should be sent to Dated: June 26, 1995. instrumentation adapted for high Judith H. Greenberg, Ph.D., National Susan K. Feldman, volume, high resolution gene expression Institutes of Health, Natcher Building, Committee Management Officer, NIH. analysis. Room 2AS.19H, 45 Center Drive MSC [FR Doc. 95–16231 Filed 6–30–95; 8:45 am] 3. Collaborate in the formulation, 6200, Bethesda, Maryland 20892–6200, evaluation, optimization of or via e-mail at BILLING CODE 4140±01±M experimental protocols based on the [email protected] or fax at quantitative RTPCR protocols identified (301) 480–2228. Division of Research Grants; Closed above. Individuals who plan to attend one of Meetings The role and criteria for selection of the regional meetings and need special the successful company(ies) under the assistance, such as sign language Pursuant to Section 10(d) of the CRADA will include, but may not be interpretation or other special Federal Advisory Committee Act, as limited to, the following: accommodations, should contact the amended (5 U.S.C. Appendix 2), notice 1. Having an established ability to person named below in advance of the is hereby given of the following Division design, manufacture or modify in one or meeting. of Research Grants Special Emphasis more of the following: Thermocycling Attendance may be limited to seat Panel (SEP) meetings: devices, capillary electrophoresis availability. If you plan to attend the Purpose/Agenda: To review individual devices, automated detection systems meeting as an observer or if you wish grant applications. (i.e fluorescence or chromophoric) and additional information, please contact Name of SEP: Behavioral and laboratory robotics. Ms. Janice Ramsden, National Institutes Neurosciences. 2. Ability to provide appropriate of Health, Shannon Building, Room 235, Date: July 13, 1995. instrumentation either owned by the 1 Center Drive MSC 0159, Bethesda, Time: 12:00 noon. company or obtained through third Maryland 20892–0159, telephone (301) Place: Embassy Suites Hotel, Washington, party licensing agreements. 496–0959, fax (301) 496–7451, e-mail DC. 3. Ability to market and sell the final Contact Person: Dr. Anita Sostek, Scientific address [email protected] by July Review Administrator, 6701 Rockledge Drive, product produced through the 7 for the Bethesda meeting and August collaboration. Room 5202, Bethesda, MD 20892, (301) 435– 11 for the San Francisco meeting. 1260. Dated: June 16, 1995. Dated: June 22, 1995. Name of SEP: Multidisciplinary Sciences. Barbara McGarey, Ruth L. Kirschstein, Date: July 14, 1995. Time: 1:00 p.m. Deputy Director, Office of Technology Deputy Director, National Institutes of Health. Transfer, National Institutes of Health. Place: NIH, Rockledge II, Room 5210, [FR Doc. 95–16234 Filed 6–30–95; 8:45 am] [FR Doc. 95–16233 Filed 6–30–95; 8:45 am] Telephone Conference. BILLING CODE 4140±01±P Contact Person: Dr. Nadarajen BILLING CODE 4140±01±P Vydelingum, Scientific Review Admin. 6701 Rockledge Drive, Room 5210, Bethesda, MD National Institute on Deafness and 20892, (301) 435–1176. Meeting of the Panel to Assess the NIH Other Communication Disorders; Name of SEP: Microbiological and Investment in Research on Gene Closed Meeting Immunological Sciences. Therapy Date: July 17, 1995. Pursuant to Section 10(d) of the Time: 1:00 p.m. Notice is hereby given that the Panel Federal Advisory Committee Act, as Place: NIH, Rockledge II, Room 4200, to Assess the NIH Investment in amended (5 U.S.C. Appendix 2), notice Telephone Conference. Research on Gene Therapy, a fact- is hereby given of the following Contact Person: Dr. Gil Meir, Scientific finding group reporting to the Advisory Review Administrator, 6701 Rockledge Drive, meeting: Committee to the Director (ACD), Room 4200, Bethesda, MD 20897, (301) 435– National Institutes of Health (NIH), will Name of Committee: Ad Hoc Hearing and 1219. convene two regional meetings to Hearing Impairment Subcommittee of the Name of SEP: Microbiological and provide the Panel with an opportunity National Deafness and Other Communication Immunological Sciences. Disorders Advisory Council. to hear presentations from researchers Date: July 18, 1995. Date: July 20, 1995. Time: 10:00 a.m. regarding activities relevant to gene Time: 1–4 p.m. (telephone conference). Place: NIH, Rockledge II, Room 4180, therapy. The first meeting will be held Place: National Institutes of Health, Telephone Conference. at Building 31C, Conference Room 10, Building, 31C, Conference Room 9, 9000 Contact Person: Dr. Tim Henry, Scientific National Institutes of Health, Bethesda, Rockville Pike, Bethesda, Maryland 20892. Review Administrator, 6701 Rockledge Drive, 34546 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices Room 4180, Bethesda, MD 20892, (301) 435– Drive, Room 4110, Bethesda, MD 20892, dates are June 20–21 and December 5– 1147. (301) 435–1284. 6, 1995. Specific dates for 1996, 1997, Name of SEP: Microbiological and The meetings will be closed in accordance and 1998 meetings will be established at Immunological Sciences. with the provisions set forth in secs. a later time. Date: July 18, 1995. 552b(c)(4) and 552b(c)(6), Title 5, U.S.C. The attached Table 1 lists draft Time: 2:00 p.m. Applications and/or proposals and the Place: NIH, Rockledge II, Room 4180, discussions could reveal confidential trade Technical Reports for long-term studies Telephone Conference. secrets or commercial property such as on chemicals within known or Contact Person: Dr. Tim Henry, Scientific patentable material and personal information approximate dates of reviews and Review Administrator, 6701 Rockledge Drive, concerning individuals associated with the includes Chemical Abstracts Service Room 4180, Bethesda, MD 20892, (301) 435– applications and/or proposals, the disclosure (CAS) registry numbers, primary use, 1147. of which would constitute a clearly route of administration, species, Name of SEP: Microbiological and unwarranted invasion of personal privacy. exposure levels, and NTP report Immunological Sciences. This notice is being published less than 15 numbers (if assigned). Date: July 19, 1995. days prior to the meeting due to the urgent Time: 10:00 a.m. need to meet timing limitations imposed by Technical Reports of short-term Place: NIH, Rockledge II, Room 4180, the grant review cycle. toxicity studies are currently reviewed Telephone Conference. (Catalog of Federal Domestic Assistance by mail; however, they may be reviewed Contact Person: Dr. Tim Henry, Scientific Program Nos. 93.306, 93.333, 93.337, 93.393– in open meetings when necessary. The Review Administrator, 6701 Rockledge Drive, 93.396, 93.837–93.844, 93.846–93.878, attached Table 2 lists the draft Room 4180, Bethesda, MD 20892, (301) 435– 93.892, 93.893, National Institutes of Health, Technical Reports of short-term toxicity 1147. HHS) studies tentatively projected for review Name of SEP: Microbiological and Dated: June 26, 1995. by mail from May 1995 to October 1998 Immunological Sciences. and also includes Chemical Abstracts Date: July 19, 1995. Susan K. Feldman, Time: 2:00 p.m. Committee Management Officer, NIH. Service (CAS) registry numbers, primary Place: NIH, Rockledge II, Room 4180, [FR Doc. 95–16232 Filed 6–30–95; 8:45 am] use, route of administration, species, exposure levels, and NTP report Telephone Conference. BILLING CODE 4140±01±M Contact Person: Dr. Tim Henry, Scientific numbers (if assigned). Review Administrator, 6701 Rockledge Drive, Those interested in having more Room 4180, Bethesda, MD 20892, (301) 435– Public Health Service information about any of the studies 1147. listed in this announcement should Name of SEP: Clinical Sciences. National Toxicology Program (NTP) contact Central Data Management as Date: October 2–3, 1995. Board of Scientific Counselors' early as possible by telephone or by Time: 8:30 a.m. Place: Holiday Inn, Bethesda, MD. Meetings; Announcement of NTP Draft mail at: MD-A0–01, NIEHS, P.O. Box Contact Person: Dr. Gertrude McFarland, Technical Reports Projected for Public 12233, Research Triangle Park (RTP), Scientific Review Admin., 6701 Rockledge Review From June 1995 Through North Carolina 27709 (919/541–3419). Drive, Room 4110, Bethesda, MD 20892, Summer 1998 The program would welcome receiving (301) 435–1284. toxicology and carcinogenesis data from Purpose/Agenda: To review Small To earlier inform the public and allow completed, ongoing or planned studies Business Innovation Research Program grant interested parties to comment or obtain by others as well as current production applications. information on long-term toxicology and data, human exposure information, and Name of SEP: Multidisciplinary Sciences. carcinogenesis studies prior to public use and use patterns. peer review, the National Toxicology Date: July 24–25, 1995. The Executive Secretary, Dr. Larry G. Time: 8:30 a.m. Program (NTP) again publishes in the Hart, P.O. Box 12233, Research Triangle Place: Holiday Inn, Chevy Chase, MD. Federal Register a current listing of Park, North Carolina 27709, telephone Contact Person: Dr. Anthony Carter, draft Technical Reports projected for 919/541–3971, FAX 919/541–0719 will Scientific Review Admin., 6701 Rockledge evaluation by the NTP Board of furnish final agendas and other program Drive, Room 5108, Bethesda, MD 20892, Scientific Counselors’ Technical Reports (301) 435–1167. information prior to a meeting, and Review Subcommittee during their next summary minutes subsequent to a Name of SEP: Clinical Sciences. seven meetings from June 1995 through Date: December 11–12, 1995. meeting. Time: 8:30 a.m. the summer of 1998. We plan to Dated: June 16, 1995. Place: Holiday Inn, Bethesda, MD. continue updating the listing with Contact Person: Dr. Gertrude McFarland, announcements in the Federal Register Kenneth Olden, Scientific Review Admin., 6701 Rockledge once or twice a year. The next meeting Director, National Toxicology Program. TABLE 1.ÐSUMMARY DATA FOR TECHNICAL REPORTS SCHEDULED FOR REVIEW AT THE MEETING OF THE NTP BOARD OF SCIENTIFIC COUNSELORS' TECHNICAL REPORTS REVIEW SUBCOMMITTEE FROM JUNE 20, 1995 THROUGH SUMMER 1998 NTP Chemical name/cas No. Use Route Spe- Exposure levels Tr cies No. Chemicals Tentatively Scheduled for Peer Review June 20±21, 1995 BUTYL BENZYL PHTHALATE; 85±68±7 ...... PLAS FEED RR MR: 0, .3%, .6%, OR 1.2%; 60/GROUP FR: 0, .6%, 458 1.2%, OR 2.4%; 60/GROUP. T-BUTYLHYDROQUINONE; 1948±33±0 ...... FOOD FEED RMR R&M: 0, 0.125, 0.25, OR 0.5% IN FEED; 70 RATS, 459 60 MICE. CODEINE; 76±57±3 ...... PHAR FEED RM R: 0, 400, 800, OR 1600 M: 0, 750, 1500, OR 3000 455 PPM; 60/GROUP. Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices 34547 TABLE 1.ÐSUMMARY DATA FOR TECHNICAL REPORTS SCHEDULED FOR REVIEW AT THE MEETING OF THE NTP BOARD OF SCIENTIFIC COUNSELORS' TECHNICAL REPORTS REVIEW SUBCOMMITTEE FROM JUNE 20, 1995 THROUGH SUMMER 1998ÐContinued NTP Chemical name/cas No. Use Route Spe- Exposure levels Tr cies No. 1,2-DIHYDRO-2,2,4-TRIMETHYLQUINOLINE (MON- RUBR SP RMM RATS: 0, 60, OR 100 MG/KG MICE: 0, 6, OR 10 455 OMER); 147±47±7. MG/KG (CORE). 1,2-DIHYDRO-2,2,4-TRIMETHYLQUINOLINE (MON- RUBR SP RM RATS: 0, 36, 60, OR 100 MG/KG MICE: 0, 3.6, 6.0, 456 OMER); 147±47±7. OR 10.0 MG/KG. FEED RESTRICTION STUDIES ...... RM Effect of dietary restriction on toxicology and car- 460 cinogenesis studies in F344/N rats and B6C3F1 mice. SALICYLAZOSULFAPYRIDINE; 599±79±1 ...... PHAR GAV RM R: 84, 168, OR 337.5 MG/KG; 70/GROUP M: 675, 457 1350, OR 2700 MG/KG; 60/GROUP. SCOPOLAMINE HYDROBROMIDE TRIHYDRATE; PHAR GAV RMM R&M: 0,1,5, OR 25 MG/KG; 70/GROUP DIET RE- 445 6533±68±2. STRICTION MICE: 0 OR 25 MG/KG;70/GROUP. Chemicals Tentatively Scheduled for Peer Review December 5±6, 1995 D & C YELLOW NO. 11; 8003±22±3 ...... DYE FEED R RATS: 0, 0.05, 0.17, OR 0.5%; 60/GROUP ...... MOLYBDENUM TRIOXIDE; 1313±27±5 ...... METL INHAL RM R&M: 10, 30, OR 100 MG/M3; 50/SEX/SPECIES/ ...... GROUP. NITROMETHANE; 75±52±5 ...... FUEL INHAL RM R: 0, 94, 188, OR 375 PPM; 50/GROUP M: 0, 188, ...... 375, OR 750 PPM; 50/GROUP. PHENOLPHTHALEIN; 77±09±8 ...... PHAR FEED RM R: 0, 1.2, 2.5, OR 5%; M: 0, 0.3, 0.6, OR 1.2% IN ...... FEED (50/SEX/SPECIES/GROUP). SODIUM XYLENESULFONATE; 1300±72±7 ...... DTRG SP RM R: 0, 60, 120, OR 240 MG/KG M: 0, 182, 364, OR ...... 727 MG/KG (50/SEX/GROUP). TETRAFLUOROETHYLENE; 116±14±3 ...... FOOD INHAL RM MICE & FR: 0, 312, 625, OR 1250 MR: 0, 156, 312, ...... OR 625 PPM; 50/GROUP. Chemicals Tentatively Scheduled for Peer Review Summer 1996 ETHYLBENZENE; 100±41±4 ...... RUBR INHAL RM R&M: 0, 75, 250, OR 750 PPM (50/SEX/SPECIES/ ...... GROUP). INTERFERON AD+3'-AZIDO-3'-DEOXYTHYMIDINE PHAR SC&GV MM DUAL ROUTES WITH BOTH COMPOUNDS: AZT: ...... (AIDS INITIATIVE) INTAZTCOMB. 0, 30, 60, OR 120 (GAV) MG/KG; IFN: 500 OR 5000 UNITS 3X/WEEK. OXAZEPAM; 604±75±1 ...... PHAR FEED R 0, 625, 1250, 2500, 5000, OR 10000 PPM; 50/SEX/ GROUP. Chemicals Tentatively Scheduled for Peer Review Fall 1996 DIETHANOLAMINE; 111±42±2 ...... TEXL SP RM MR: 0, 16, 32, OR 64 MG/KG; FR: 0, 8, 16, OR 32 ...... MG/KG; MICE: 0, 40, 80, OR 160 MG/KG (50/ SEX/SPECIES/GROUP). TETRAHYDROFURAN; 109±99±9 ...... SOLV INHAL RM R&M: 0, 200, 600, OR 1800 PPM (50/SEX/SPE- ...... CIES/GROUP). THEOPHYLLINE; 58±55±9 ...... PHAR GAV RM R: 7.5, 25, OR 75 MG/KG; 50/GROUP FM: 7.5, 25, ...... OR 75 MG/KG; 50/GROUP MM: 15, 50, OR 150 MG/KG; 50/GROUP. Chemicals Tentatively Scheduled for Peer Review Summer 1997 1-CHLORO-2-PROPANOL, TECHNICAL; 127±00±4 . INTR WATER RM R: 0, 150, 325, OR 650 PPM M: 0, 250, 500, OR ...... 1000 PPM (50/SEX/GROUP). PYRIDINE; 110±86±1 ...... SOLV WATER RMR R: 0, 100, 200, OR 400 PPM MM: 0, 250, 500, OR ...... 1000 PPM FM: 125, 250, OR 500 PPM MWR: 0, 100, 200, OR 400 PPM (50/SEX/GROUP). Chemicals Tentatively Scheduled for Peer Review Fall 1997 COCONUT OIL ACID DIETHANOLAMINE CON- TEXL SP RM R: 0, 50, OR 100 MG/KG M: 0, 100, OR 200 MG/ ...... DENSATE; 68603±42±9. KG (50 SEX/SPECIES/GROUP). FURFURYL ALCOHOL; 98±00±0 ...... FOOD INHAL RM R&M: 0, 2, 8, OR 32 PPM (50/SEX/SPECIES/ ...... GROUP). LAURIC ACID DIETHANOLAMINE CONDENSATE; DTRG SP RM R: 0, 50, OR 100 MG/KG M: 0, 100, OR 200 MG/ ...... 120±40±1. KG (50/SEX/SPECIES/GROUP). 34548 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices TABLE 1.ÐSUMMARY DATA FOR TECHNICAL REPORTS SCHEDULED FOR REVIEW AT THE MEETING OF THE NTP BOARD OF SCIENTIFIC COUNSELORS' TECHNICAL REPORTS REVIEW SUBCOMMITTEE FROM JUNE 20, 1995 THROUGH SUMMER 1998ÐContinued NTP Chemical name/cas No. Use Route Spe- Exposure levels Tr cies No. OLEIC ACID DIETHANOLAMINE CONDENSATE; COS SP RM R: 0, 50, OR 100 MG/KG; 50/SEX/GROUP M: 0, ...... 93±83±4. 15, OR 30 MG/KG; 55/SEX/GROUP. PENTACHLOROPHENOL, PURIFIED; 87±86±5 ...... PEST FEED R R: 0, 200, 400, OR 600 PPM; 50/SEX/GROUPÐ ...... 1000 PPM STOP STUDY (60/SEX). POLYVINYL ALCOHOL; 9002±89±5 ...... PHAR IVAG M 25% PVA, VEHICLE, UNTREATED; 100/GROUP ...... PRIMACLONE; 125±33±7 ...... PHAR FEED RM M: 0, 0.03, 0.06, OR 0.13% R: 0, 0.06, 0.13, OR ...... 0.25% (50/SEX/SPECIES). Chemicals Tentatively Scheduled for Peer Review Summer 1998 ETHYLENE GLYCOL MONOBUTYL ETHER SOLV INHAL RM R: 0, 31, 62.5, OR 125 PPM M: 0, 62.5, 125, OR ...... (EGMBE); 111±76±2. 250 PPM; 50/SEX/SPECIES. GALLIUM ARSENIDE; 1303±00±0 ...... ELEC INHAL RM R: 0, 0.01, 0.1, OR 1.0 MG/M3; 50/SEX/GROUP M: ...... 0, 0.1, 0.5, OR 1.0 MG/M3; 50/SEX/GROUP. ISOBUTENE; 115±11±7 ...... RUBR INHAL RM R&M: 0, 500, 2000, OR 8000 PPM (50/SEX/SPE- ...... CIES/GROUP). ISOPRENE; 78±79±5 ...... RUBR INHAL RM R: 0, 220, 700, OR 7000 PPM; 50/SEX/GROUP ...... METHYLEUGENOL; 93±15±2 ...... FOOD GAV RM R&M: 0, 37, 75, OR 150 MG/KG (50/SEX/SPECIES/ ...... GROUP). OXYMETHOLONE; 434±07±1 ...... PHAR GAV RM MR: 0, 3, 30, OR 150 MG/KG; FR: 0, 3, 30, OR 100 ...... MG/KG. TABLE 2.ÐSHORT-TERM TOXICITY STUDIES SCHEDULED FOR PEER REVIEW BY THE NTP BOARD OF SCIENTIFIC COUNSELORS' TECHNICAL REPORTS REVIEW SUBCOMMITTEE FROM MAY 1995 THROUGH OCTOBER 1998 NTP Chemical name/cas No. Use Route Spe- Exposure levels Tox cies No. Short-Term Toxicity Studies Scheduled for Peer Review May 1995 Halogenated Ethanes Class Study: 1,2-DICHLORO-1,1-DIFLUOROETHANE; 1649± IND GAV R MALE RATS 0, 0.62, 1.24 MMOL/KG/DAY; 5/GRP 45 08±7. 1,2-DIFLUROR-1,1,2,2-TETRACHLOROETHANE; SOLV GAV R MALE RATS 0, 0.62, 1.24 MMOL/KG/DAY; 5/GRP 45 76±12±0. HEXACHLOROETHANE; 67±72±1 ...... SOLV GAV R MALE RATS 0, 0.62, 1.24 MMOL/KG/DAY; 5/GRP 45 PENTABROMOETHANE; 75±95±6 ...... IND GAV R MALE RATS 0, 0.62, 1.24 MMOL/KG/DAY; 5/GRP 45 PENTACHLOROETHANE; 76±01±7 ...... SOLV GAV R MALE RATS 0, 0.62, 1.24 MMOL/KG/DAY; 5/GRP; 45 FEMALE RATS 0, 1,24 MMOL/KG/DAY;. 1,1,1,2-TETRABROMOETHANE; 630±16±0 ...... IND GAV R MALE RATS 0, 0.62, 1.24 MMOL/KG/DAY; 5/GRP 45 1,1,2,2-TETRABROMOETHANE; 79±27±6 ...... FLAM GAV R MALE RATS 0, 0.62, 1.24 MMOL/KG/DAY; 5/GRP 45 1,1,1,2-TETRACHLOROETHANE; 630±20±6 ...... INTR GAV R MALE RATS 0, 0.62, 1.24 MMOL/KG/DAY; 5/GRP 45 1,1,2,2-TETRACHLOROETHANE; 79±34±5 ...... SOLV GAV R MALE RATS 0, 0.62, 1.24 MMOL/KG/DAY; 5/GRP 45 1,1,1-TRICHLOROETHANE; 71±55±6 ...... SOLV GAV R MALE RATS 0, 0.62, 1.24 MMOL/KG/DAY; 5/ 45 GROUP. 1,1,1-TRICHLORO-2,2,2-TRIFLUOROETHANE; IND GAV R MALE RATS 0, 0.62, 1.24 MMOL/KG/DAY; 5/GRP 45 354±58±5. METHYL ETHYL KETOXIME; 96±29±7 ...... PNT WATER RM R&M: 0, 625, 1250, 2500, 5000, OR 10000 PPM; 51 10/GROUP. Short-Term Toxicity Studies Scheduled for Peer Review June 1995 1,4-BUTANEDIOL; 110±63±4 ...... INTR Review of metabolism and disposition studies and 54 prediction of lack of carcinogenicity in long-term studies.. METHAPYRILENE HYDROCHLORIDE; 135±23±9 .... PHAR FEED R MALE RATS: 0, 50, 100, 250, 1000 PPM; 40/GRP 46 O-NITROTOLUENE; 88±72±2 ...... RUBR FEED R MALE R: 0, 0 ALTERED MICROFLORA 20/GRP; 44 5000 PPM 60/GRP; 5000 PPM ALTERED MICROFLORA 40/GRP. O-TOLUIDINE HYDROCHLORIDE; 636±21±5 ...... DYE FEED R O AND 0 ALTERED MICROFLORA; 20/GRP; 5000 44 PPM; 60/GRP. 1,1,1-TRICHLOROETHANE; 71±55±6 ...... SOLV MICRO RM R&M: 0, 0.5, 1.0, 2.0, 4.0, AND 8.0 % (10/S/S) ...... 41 URETHANE; 51±79±6 ...... PNT WATER RM R&M: (DEIONIZED WATER VEHICLE) 0.011, 52 0.033, 0.11, 0.33, OR 1.0 G/100 ML. Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices 34549 TABLE 2.ÐSHORT-TERM TOXICITY STUDIES SCHEDULED FOR PEER REVIEW BY THE NTP BOARD OF SCIENTIFIC COUNSELORS' TECHNICAL REPORTS REVIEW SUBCOMMITTEE FROM MAY 1995 THROUGH OCTOBER 1998ÐContinued NTP Chemical name/cas No. Use Route Spe- Exposure levels Tox cies No. URETHANE + ETHANOL (COMBINATION) PNT WATER RM R&M:(WITH 5% ETHANOLIN WATER) 0.011, 52 URETHCOMB. 0.033, 0.11, 0.33, OR 1.0 G/100 ML. Short-Term Toxicity Studies Scheduled for Peer Review August 1995 CIS & TRANS 1,2-DICHLOROETHYLENE; 540±59±0 SOLV MICRO RM 55 CIS-1,2-DICHLOROETHYLENE; 156±59±2 ...... SOLV MICRO RM 55 TRANS-1,2-DICHLOROETHYLENE; 156±60±5 ...... SOLV MICRO RM 55 TRANS-1,2-DICHLOROETHYLENE; 156±60±5 ...... SOLV GAV RM 55 Short-Term Toxicity Studies Scheduled for Peer Review November 1995 M-CHLOROANILINE; 108±42±9 ...... INTR GAV RM R&M 0, 10, 20, 40, 80, 160 MG/KG, 20/GRP 43 (RATS); 10/GRP (MICE). O-CHLOROANILINE; 95±51±2 ...... DYE GAV RM R&M 0, 10, 20, 40, 80, & 160 MG/KG; 20/GRP 43 (RATS);10/GRP (MICE). Short-Term Toxicity Studies Scheduled for Peer Review March 1996 3,3',4,4'-TETRACHLOROAZOXYBENZENE; 21232± COMT GAV RM R&M: 0, 0.1, 1.0, 3.0, 10, OR 30 MG/KG BODY ...... 47±3. WEIGHT (M&F 10/GROUP). Short-Term Toxicity Studies Scheduled for Peer Review June 1996 AZT+METHADONE HCL (AIDS) AZTMETHCOMB .... PHAR GAV MM AZT: 200, 400, OR 800 MG/KG/DAY WITH METH- ...... ADONE HCL: 5, 15, OR 30 MG/KG/DAY. 2',3'-DIDEOXYCYTIDINE (AIDS INITIATIVE); 7481± PHAR GAV MM FEMALE MICE ONLY: 500, 1000 MG/KG/DAY ...... 89±2. 3,3',4,4'-TETRACHLOROAZOBENZENE; 14047±09± HERB GAV RM R&M: 0, 0.1, 1.0, 3.0, 10, OR 30 MG/KG BODY ...... 7. WEIGHT (M&F; 10/GROUP). 1,1,2,2-TETRACHLOROETHANE; 79±34±5 ...... SOLV MICRO RM ...... 1,1,2,2-TETRACHLOROETHANE; 79±34±5 ...... SOLV GAV RM ...... 1,1,2,2-TETRACHLOROETHANE; 79±34±5 ...... SOLV MICRO RM R&M; R:UNTREATED CONTROL, VEHICLE CON- ...... TROL, 18, 37, 75, 150, OR 300 MG/KG BODY WT/DAY; M:UNTREATED CONTROL, VEHICLE CONTROL, 88, 175, 350, 700, OR 1400 MG/KG BODY WT/DAY; 10/GROUP/SEX. Short-Term Toxicity Studies Scheduled for Peer Review October 1998 INDIUM PHOSPHIDE; 22398±80±7 ...... ELEC INHAL RM R&: 0, 1, 3, 10, 30, OR 100 MG/M3; 10/SEX/ ...... GROUP. MAGNETIC FIELDS (EMF); ELECTROMAG ...... ELEC WB RM 60 HZ MAGNETIC FIELDSÐ20 MG, 2 G, 10 G ...... CONTINUOUS AND 10 G INTERMITTENT; 10/ GROUP. RETROVIRAL VECTORS RETROVIRVECT ...... PHAR IP/IJ RM VARIOUS REGIMENS AND CONTROLS IN- ...... CLUDED. Abbreviations used in this report: USE Primary Use Category: COMT Contaminates and/or Impurities COSM Cosmetics, Perfumes, Fragrances, Hair Preparations, Skin Lotions DTRG Detergents and Cleansers DYE As or in Dyes, Inks, and Pigments ELEC In Electrical and/or Dielectric Systems FLAM Flame Retardants FOOD Food, Beverages, or Additives FUEL As or in Fuel or Oil Products HERB Herbicide(s) IND Industrial Uses INTR Chemical Intermediate or Catalyst METL Metals or in Metal Products PEST Pesticides, General or Unclassified PHAR Pharmaceuticals or Intermediates PLAS As or in Plastics PNT Paint Ingredient RUBR Rubber Chemical SOLV Vehicles and Solvents TEXL In Manufacture of Textiles ROUTE Route of Administration: 34550 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices FEED Dosed-Feed GAV Gavage INHAL Inhalation IP/IJ Intraperitoneal Injection IVAG Intravaginal MICRO Microencapsulation in Feed SC&GV Subcutaneous Inj. + Gavage SP Topical WATER Dosed-Water WB Whole Body Exposure SPEC Species: R=Rats M=Mice [FR Doc. 95–16235 Filed 6–30–95; 8:45 am] Information Resources Management epidemiological and other technical BILLING CODE 4140±01±P Branch (HTB14). (1) Coordinates the services to assist State and local health development of ATSDR information departments in the planning, resources management plans; (2) development, implementation, Public Health Service; Agency for coordinates the acquisition, evaluation and overall improvement of Toxic Substances and Disease development, installation, management, STD prevention programs; (3) supports Registry support, and evaluation of ATSDR-wide a nationwide framework for effective information technology, systems, and surveillance of STDs other than HIV; (4) Statement of Organization, Functions, services; (3) develops and implements conducts behavioral, clinical, and Delegations of Authority policies and procedures relating to epidemiological, preventive health information resources management and services, and operational research into Part H, Public Health Service (PHS), support services. factors affecting the prevention and Chapter HT (Agency for Toxic Delete in their entirety the title and control of STD; (5) provides leadership Substances and Disease Registry), of the functional statement for the Office of and coordinates, in collaboration with Statement of Organization, Functions, Information Resources Management other Center components, research and and Delegations of Authority for the (HTB5). prevention activities that focus on STD Department of Health and Human and HIV interaction; (6) promotes Services (50 FR 25129–25130, dated Effective Date: June 16, 1995. linkages between health department June 17, 1985, as amended most David Satcher, STD programs and other governmental recently at 59 FR 29815–16, dated June Administrator, Agency for Toxic Substances and nongovernmental partners who are 9, 1994) is amended to reflect and Disease Registry. vital to effective STD prevention efforts; organizational changes within the [FR Doc. 95–16217 Filed 6–30–95; 8:45 am] (7) provides technical supervision for Agency for Toxic Substances and BILLING CODE 4160±70±M Division State and local assignees. Disease Registry (ATSDR) that will Delete the title and functional merge the activities of the Office of statement for the Division of HIV/ Information Resources Management Centers for Disease Control and AIDS(HCM7) and insert the following: with the Office of Program Operations Prevention; Statement of Organization, Division of HIV/AIDS Prevention and Management within the Office of Functions, and Delegations of (HCM7). (1) In cooperation with other the Assistant Administrator, ATSDR. Authority CDC components, administers Section HT–B, Organization and Part H, Chapter HC (Centers for operational programs for the prevention Functions, is hereby amended as Disease Control and Prevention) of the of human immunodeficiency virus/ follows: Statement of Organization, Functions, acquired immunodeficiency syndrome Delete in its entirety the functional and delegations of Authority of the (HIV/AIDS); (2) provides consultation, statement for the Office of Program Department of Health and Human training, statistical, promotional, Operations and Management (HTB1) Services (45 FR 67772–76, dated educational, epidemiological, and other and insert the following: October 14, 1980, and corrected at 45 FR technical services to assist State and (1) Plans, manages, directs, and 69296, October 20, 1980, as amended local health departments, as well as conducts the administrative and most recently at 60 FR 17792–17795, national, State, and local management operations of the agency; dated April 7, 1995) is amended to nongovernmental organizations, in the (2) reviews the effectiveness and reflect the retitle and modify the planning, development, efficiency of administration and functional statements of the Division of implementation, and overall operation for all Agency programs; (3) HIV/AIDS and the Division of STD/HIV improvement of HIV prevention develops and directs systems for human Prevention, National Center for programs; (3) conducts epidemiologic, resource management, financial Prevention Services. surveillance, behavioral, etiologic, services, procurement requisitioning, Delete the title and functional communications, and operational travel authorization, and information statement for the Division of STD/HIV research into factors affecting the resources management; (4) provides and Prevention (HCM4) and insert the prevention of HIV/AIDS; (4) develops coordinates services for the extramural following: recommendations and guidelines on the awards activities of the Agency; (5) Division of Sexually Transmitted prevention of HIV/AIDS and associated formulates and executes the budget; (6) Disease Prevention (HCM4). (1) In illnesses; (5) monitors sentinel develops and directs a system for cost cooperation with other CDC surveillance of HIV infection and recovery; (7) coordinates Freedom of components, administers operational infectious diseases and other Information Act requests. programs for the prevention of sexually complications of HIV/AIDS, as well as After the functional statement for the transmitted diseases (STD); (2) provides surveillance of risk behaviors associated Program Support Branch (HTB13), consultation, training, statistical, with HIV transmission; (6) conducts insert the following: promotional, educational, national and international HIV/AIDS Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices 34551 surveillance, epidemiologic of Mandatory Guidelines for Federal Associated Pathologists Laboratories, Inc., investigations, and studies to determine Workplace Drug Testing Programs (59 4230 South Burnham Ave., Suite 250, Las risk factors and transmission patterns of FR 29916, 29925). A similar notice Vegas, NV 89119–5412, 702–733–7866 HIV/AIDS; (7) evaluates prevention and listing all currently certified laboratories Associated Regional and University control activities in collaboration with will be published during the first week Pathologists, Inc. (ARUP), 500 Chipeta Way, Salt Lake City, UT 84108, 801–583– other CDC components; (8) provides of each month, and updated to include 2787 assistance and consultation on issues laboratories which subsequently apply Baptist Medical Center—Toxicology related to epidemiology surveillance, for and complete the certification Laboratory, 9601 I–630, Exit 7, Little Rock, programmatic support, research, process. If any listed laboratory’s AR 72205–7299, 501–227–2783 (Formerly: evaluation methodologies, and fiscal certification is totally suspended or Forensic Toxicology Laboratory Baptist and grants management to State and revoked, the laboratory will be omitted Medical Center) local health departments, from updated lists until such time as it Bayshore Clinical Laboratory, 4555 W. nongovernmental organizations, is restored to full certification under the Schroeder Dr., Brown Deer, WI 53223, national organizations, and other Guidelines. 414–355–4444/800–877–7016 research institutions; (9) promotes Cedars Medical Center, Department of If any laboratory has withdrawn from Pathology, 1400 Northwest 12th Ave., linkages between health department the National Laboratory Certification HIV/AIDS programs and other Miami, FL 33136, 305–325–5810 Program during the past month, it will Centinela Hospital Airport Toxicology governmental and nongovernmental be identified as such at the end of the Laboratory, 9601 S. Sepulveda Blvd., Los partners who are vital to effective HIV/ current list of certified laboratories, and Angeles, CA 90045, 310–215–6020 AIDS prevention efforts; (10) provides will be omitted from the monthly listing Clinical Reference Lab, 11850 West 85th St., consultation to other PHS agencies, thereafter. Lenexa, KS 66214, 800–445–6917 medical institutions, private physicians, CompuChem Laboratories, Inc., 3308 Chapel and international organizations or FOR FURTHER INFORMATION CONTACT: Mrs. Hill/Nelson Hwy., Research Triangle Park, agencies; (11) provides information to Giselle Hersh, Division of Workplace NC 27709, 919–549–8263/800–833–3984 the scientific community and the Programs, Room 13A–54, 5600 Fishers (Formerly: CompuChem Laboratories, Inc., general public through publications and Lane, Rockville, Maryland 20857; Tel.: A Subsidiary of Roche Biomedical presentations; (12) works closely with (301) 443–6014. Laboratory, Roche CompuChem Laboratories, Inc., A Member of the Roche National Center for Infectious Diseases SUPPLEMENTARY INFORMATION: Group) on HIV/AIDS surveillance and Mandatory Guidelines for Federal CompuChem Laboratories, Inc., Special epidemiologic investigations that Workplace Drug Testing were developed Division, 3308 Chapel Hill/Nelson Hwy., require laboratory collaboration, and on in accordance with Executive Order Research Triangle Park, NC 27709, 919– activities related to the investigation 12564 and section 503 of Pub. L. 100– 549–8263 (Formerly: Roche CompuChem and prevention of HIV-related to the 71. Subpart C of the Guidelines, Laboratories, Inc., Special Division, A Member of the Roche Group, CompuChem investigation and prevention of HIV- ‘‘Certification of Laboratories Engaged related opportunistic infections; (13) Laboratories, Inc., Special Division) in Urine Drug Testing for Federal CORNING Clinical Laboratories, South implements national HIV/AIDS Agencies,’’ sets strict standards which prevention communications programs Central Division 2320 Schuetz Rd., St. laboratories must meet in order to Louis, MO 63146, 800–288–7293 and develops strategic communications conduct urine drug testing for Federal (Formerly: Metropolitan Reference activities and services at the national agencies. To become certified an Laboratories, Inc.) level to inform and educate the applicant laboratory must undergo three CORNING Clinical Laboratories, 8300 Esters American public about HIV/AIDS rounds of performance testing plus an Blvd., Suite 900, Irving, TX 75063, 800– surveillance and prevention activities. on-site inspection. To maintain that 526–0947 (Formerly: Damon Clinical Dated: June 14, 1995. certification a laboratory must Laboratories, Damon/MetPath) CORNING Clinical Laboratories Inc., 1355 Martha Katz, participate in a quarterly performance Mittel Blvd., Wood Dale, IL 60191, 708– Acting Director, Centers for Disease Control testing program plus periodic, on-site 595–3888, (Formerly: MetPath, Inc., and Prevention. inspections. CORNING MetPath Clinical Laboratories) [FR Doc. 95–16216 Filed 6–30–95; 8:45 am] Laboratories which claim to be in the CORNING MetPath Clinical Laboratories, BILLING CODE 4160±18±M applicant stage of certification are not to One Malcolm Ave., Teterboro, NJ 07608, be considered as meeting the minimum 201–393–5000 (Formerly: MetPath, Inc.) requirements expressed in the HHS CORNING National Center for Forensic Science, 1901 Sulphur Spring Rd., Substance Abuse and Mental Health Guidelines. A laboratory must have its Services Administration Baltimore, MD 21227, 410–536–1485, letter of certification from SAMHSA, (Formerly: Maryland Medical Laboratory, Current List of Laboratories Which HHS (formerly: HHS/NIDA) which Inc., National Center for Forensic Science) Meet Minimum Standards To Engage in attests that it has met minimum CORNING Nichols Institute, 7470–A Mission Urine Drug Testing for Federal standards. Valley Rd., San Diego, CA 92108–4406, 800–446–4728/619–686–3200, (Formerly: Agencies and Laboratories That Have In accordance with Subpart C of the Nichols Institute, Nichols Institute Withdrawn From the Program Guidelines, the following laboratories meet the minimum standards set forth Substance Abuse Testing (NISAT)) Cox Medical Centers, Department of AGENCY: Substance Abuse and Mental in the Guidelines: Health Services Administration, HHS. Toxicology, 1423 North Jefferson Ave., Springfield, MO 65802, 800–876–3652/ (Formerly: National Institute on Drug Aegis Analytical Laboratories, Inc., 624 Grassmere Park Rd., Suite 21, Nashville, 417–836–3093 Abuse, ADAMHA, HHS). TN 37211, 615–331–5300 Dept. of the Navy, Navy Drug Screening ACTION: Notice. Alabama Reference Laboratories, Inc., 543 Laboratory, Great Lakes, IL Building 38–H, South Hull St., Montgomery, AL 36103, Great Lakes, IL 60088–5223, 708–688– SUMMARY: The Department of Health and 800–541–4931/205–263–5745 2045/708–688–4171 Human Services notifies Federal American Medical Laboratories, Inc., 14225 Diagnostic Services Inc., dba DSI, 4048 Evans agencies of the laboratories currently Newbrook Dr., Chantilly, VA 22021, 703– Ave., Suite 301, Fort Myers, FL 33901, certified to meet standards of Subpart C 802–6900 813–936–5446/800–735–5416 34552 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices Doctors Laboratory, Inc., P.O. Box 2658, 2906 Medical College Hospitals Toxicology SmithKline Beecham Clinical Laboratories, Julia Dr., Valdosta, GA 31604, 912–244– Laboratory, Department of Pathology, 3000 7600 Tyrone Ave., Van Nuys, CA 91045, 4468 Arlington Ave., Toledo, OH 43699–0008, 818–376–2520 Drug Labs of Texas, 15201 I–10 East, Suite 419–381–5213 SmithKline Beecham Clinical Laboratories, 125, Channelview, TX 77530, 713–457– Medlab Clinical Testing, Inc., 212 Cherry 801 East Dixie Ave., Leesburg, FL 34748, 3784 Lane, New Castle, DE 19720, 302–655– 904–787–9006 (formerly: Doctors & DrugProof, Division of Dynacare/Laboratory 5227 Physicians Laboratory) of Pathology, LLC, 1229 Madison St., Suite MedTox Laboratories, Inc., 402 W. County SmithKline Beecham Clinical Laboratories, 500, Nordstrom Medical Tower, Seattle, Rd. D, St. Paul, MN 55112, 800–832–3244/ WA 98104, 800–898–0180/206–386–2672, 612–636–7466 3175 Presidential Dr., Atlanta, GA 30340, (Formerly: Laboratory of Pathology of Methodist Hospital of Indiana, Inc., 404–934–9205 (formerly: SmithKline Bio- Seattle, Inc., DrugProof, Division of Department of Pathology and Laboratory Science Laboratories) Laboratory of Pathology of Seattle, Inc.) Medicine, 1701 N. Senate Blvd., SmithKline Beecham Clinical Laboratories, DrugScan, Inc., P.O. Box 2969, 1119 Mearns Indianapolis, IN 46202, 317–929–3587 506 E. State Pkwy., Schaumburg, IL 60173, Rd., Warminster, PA 18974, 215–674–9310 Methodist Medical Center Toxicology 708–885–2010 (formerly: International ElSohly Laboratories, Inc., 5 Industrial Park Laboratory, 221 N.E. Glen Oak Ave., Toxicology Laboratories) Dr., Oxford, MS 38655, 601–236–2609 Peoria, IL 61636, 800–752–1835/309–671– SmithKline Beecham Clinical Laboratories, General Medical Laboratories, 36 South 5199 Brooks St., Madison, WI 53715, 608–267– 400 Egypt Rd., Norristown, PA 19403, 800– MetPath Laboratories, 875 Greentree Rd., 4 523–5447 (formerly: SmithKline Bio- 6267 Parkway Ctr., Pittsburgh, PA 15220–3610, Harrison Laboratories, Inc., 9930 W. Highway Science Laboratories) 412–931–7200 (formerly: Med-Chek 80, Midland, TX 79706, 800–725–3784/ SmithKline Beecham Clinical Laboratories, Laboratories, Inc., Med-Chek/Damon) 915–563–3300 (formerly: Harrison & 8000 Sovereign Row, Dallas, TX 75247, MetroLab-Legacy Laboratory Services, 235 N. Associates Forensic Laboratories) Graham St., Portland, OR 97227, 503–413– 214–638–1301 (formerly: SmithKline Bio- HealthCare/MetPath, 24451 Telegraph Rd., 4512/800–237–7808(x4512) Science Laboratories) Southfield, MI 48034, 800–444–0106 ext. National Psychopharmacology Laboratory, SmithKline Beecham Clinical Laboratories, 650, (formerly: HealthCare/Preferred Inc., 9320 Park W. Blvd., Knoxville, TN 1737 Airport Way South, Suite 200, Laboratories) 37923, 800–251–9492 Seattle, WA 98134, 206–623–8100 Holmes Regional Medical Center Toxicology National Toxicology Laboratories, Inc., 1100 South Bend Medical Foundation, Inc., 530 N. Laboratory, 5200 Babcock St., N.E., Suite California Ave., Bakersfield, CA 93304, 107, Palm Bay, FL 32905, 407–726–9920 Lafayette Blvd., South Bend, IN 46601, Jewish Hospital of Cincinnati, Inc., 3200 805–322–4250 219–234–4176 Burnet Ave., Cincinnati, OH 45229, 513– Northwest Toxicology, Inc., 1141 E. 3900 Southwest Laboratories, 2727 W. Baseline 569–2051 South, Salt Lake City, UT 84124, 800–322– Rd., Suite 6, Tempe, AZ 85283, 602–438– LabOne, Inc., 8915 Lenexa Dr., Overland 3361 8507 Oregon Medical Laboratories, P.O. Box 972, Park, Kansas 66214, 913–888–3927 St. Anthony Hospital (Toxicology 722 East 11th Ave., Eugene, OR 97440– (formerly: Center for Laboratory Services, a Laboratory), P.O. Box 205, 1000 N. Lee St., 0972, 503–687–2134 Division of LabOne, Inc.) Oklahoma City, OK 73102, 405–272–7052 Laboratory Corporation of America, 13900 Pathology Associates Medical Laboratories, East 11604 Indiana, Spokane, WA 99206, Toxicology & Drug Monitoring Laboratory, Park Center Rd., Herndon, VA 22071, 703– University of Missouri Hospital & Clinics, 742–3100 (Formerly: National Health 509–926–2400 301 Business Loop 70 West, Suite 208, Laboratories Incorporated) PDLA, Inc. (Princeton), 100 Corporate Court, Laboratory Corporation of America, d.b.a. So. Plainfield, NJ 07080, 908–769–8500/ Columbia, MO 65203, 314–882–1273 LabCorp Reference Laboratory, Substance 800–237–7352 Toxicology Testing Service, Inc., 5426 N.W. Abuse Division, 1400 Donelson Pike, Suite PharmChem Laboratories, Inc., 1505–A 79th Ave., Miami, FL 33166, 305–593– A–15, Nashville, TN 37217, 615–360– O’Brien Dr., Menlo Park, CA 94025, 415– 2260 3992/800–800–4522 (Formerly: National 328–6200/800–446–5177 TOXWORX Laboratories, Inc., 6160 Variel Health Laboratories Incorporated, d.b.a. PharmChem Laboratories, Inc., Texas Ave., Woodland Hills, CA 91367, 818–226– National Reference Laboratory, Substance Division, 7606 Pebble Dr., Fort Worth, TX 4373 (formerly: Laboratory Specialists, 76118, 817–595–0294 (formerly: Harris Abuse Division) Inc.; Abused Drug Laboratories; MedTox Medical Laboratory) Laboratory Corporation of America, 15305 Bio-Analytical, a Division of MedTox Physicians Reference Laboratory, 7800 West N.E. 40th St., Redmond, WA 98052, 206– Laboratories, Inc.) 882–3400 (Formerly: Regional Toxicology 110th St., Overland Park, KS 66210, 913– UNILAB, 18408 Oxnard St., Tarzana, CA Services) 338–4070/800–821–3627 (formerly: Laboratory Corporation of America, 2540 Physicians Reference Laboratory 91356, 800–492–0800/818–343–8191 Empire Dr., Winston-Salem, NC 27103– Toxicology Laboratory) (formerly: MetWest–BPL Toxicology 6710, Outside NC: 919–760–4620/800– Poisonlab, Inc., 7272 Clairemont Mesa Rd., Laboratory) 334–8627/Inside NC: 800–642–0894 San Diego, CA 92111, 619–279–2600/800– The following laboratory withdrew from (Formerly: National Health Laboratories 882–7272 the Program on June 8, 1995. Incorporated) Presbyterian Laboratory Services, 1851 East Eagle Forensic Laboratory, Inc., 950 N. Laboratory Corporation of America Holdings, Third Street, Charlotte, NC 28204, 800– 1120 Stateline Rd., Southaven, MS 38671, 473–6640 Federal Highway, Suite 308, Pompano 601–342–1286 (Formerly: Roche Puckett Laboratory, 4200 Mamie St., Beach, FL 33062, 305–946–4324 Biomedical Laboratories, Inc.) Hattiesburgh, MS 39402, 601–264–3856/ Michele W. Applegate, Laboratory Corporation of America Holdings, 800–844–8378 Acting Deputy Administrator, Substance 69 First Ave., Raritan, NJ 08869, 800–437– Scientific Testing Laboratories, Inc., 463 Abuse and Mental Health Services 4986 (Formerly: Roche Biomedical Southlake Blvd., Richmond, VA 23236, Administration. Laboratories, Inc.) 804–378–9130 Laboratory Specialists, Inc., 113 Jarrell Dr., Scott & White Drug Testing Laboratory, 600 [FR Doc. 95–16319 Filed 6–30–95; 8:45 am] Belle Chasse, LA 70037, 504–392–7961 S. 25th St., Temple, TX 76504, 800–749– BILLING CODE 4160±20±U Marshfield Laboratories, 1000 North Oak 3788 Ave., Marshfield, WI 54449, 715–389– S.E.D. Medical Laboratories, 500 Walter NE, 3734/800–222–5835 Suite 500, Albuquerque, NM 87102, 505– MedExpress/National Laboratory Center, 848–8800 4022 Willow Lake Blvd., Memphis, TN Sierra Nevada Laboratories, Inc., 888 Willow 38175, 901–795–1515 St., Reno, NV 89502, 800–648–5472 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices 34553 DEPARTMENT OF THE INTERIOR with section 202 of the Federal Land constraints. 46,219 acres subject solely Policy and Management Act of 1976 and to standard management. Bureau of Land Management section 202(c) of the National A portion (approximately 60 acres) of [WO±300±1310] Environmental Policy Act of 1969, the Jupiter Inlet tract, located in Palm provides land use decisions and Beach County, is designated an Area of guidance for managing BLM- Information Collection Submitted to Critical Environmental Concern (ACEC). administered public lands throughout the Office of Management and Budget The ACEC will be managed to maintain for Review Under the Paperwork the State of Florida. a viable scrub vegetation community Reduction Act The Florida RMP/ROD is the result of and improve habitat conditions for a three year planning process involving Florida scrub jay, gopher tortoise, and The proposal for the collection of significant public participation. The information listed below has been decisions described in the Florida RMP/ other endemic scrub species, and to submitted to the Office of Management ROD constitute final agency action for interpret natural and cultural resources and Budget for approval under the the Department of the Interior in to provide recreation opportunities. provisions of the Paperwork Reduction accordance with 43 CFR 1610.5–2(b) Motorized vehicle use will be limited to Act (44 U.S.C. Chapter 35). Copies of the and are not appealable. The public is designated routes. The ACEC will te proposed collection of information and invited to participate during withdrawn from entry under the 1872 related forms and explanatory material implementation of these decisions. mining law, closed to mineral material may be obtained by contacting the Copies of the Florida RMP/ROD will sales and mineral lease, and will be an Bureau’s Clearance Officer at the phone be available upon request. avoidance area for rights-of-way. The number listed below. Comments and ACEC will be available for cooperative FOR FURTHER INFORMATION CONTACT: suggestions on the requirement should management with other government be made directly to the Bureau Robert V. Abbey, District Manager, U.S.D.I, Bureau of Land Management, agencies and/or private organizations, or clearance officer and to the Office of for conveyance under the Recreation Management and Budget, Paperwork Jackson District, 411 Briarwood Drive, and Public Purposes Act, provided that Reduction Project (1004–0034), Suite 404, Jackson, MS 39206. the proposed use follows the stated Washington, D.C. 20503, telephone 202– SUPPLEMENTARY INFORMATION: The RMP/ management objectives and land-use 395–7340. ROD provides land use decisions and allocations. Title: Oil and Gas Lease Transfers by guidance for managing BLM- Assignment or Operating Rights administered public lands throughout The Cape San Blas tract, located in (Sublease). the State of Florida. These lands include Gulf County, is also identified for ACEC OMB Approval Number: 1004–0034. approximately 395,000 acres of split- designation. The tract will be managed Abstract: Respondents supply estate federal mineral ownership (FMO), to protect the coastal dune habitat. The information on forms which are where federal ownership is limited to tract will be closed to motorized vehicle submitted by an applicant wishing to mineral interests and the surface estate use, will be classified as an avoidance assign/transfer an interest in an oil and is owned by either the State of Florida area for rights-of-way, will be gas or geothermal lease. or private interests, and several hundred withdrawn from entry under the 1872 Bureau Form Numbers: 3000–3, acres of public land comprised of small mining law, and closed to mineral 3000–3a. tracts and located in seven counties material sales and lease of solid Frequency: On occasion. throughout the State. Under the RMP/ minerals. Oil and gas leasing will be Description of Respondents: ROD, federally-owned minerals subject to a no surface occupancy Individuals, small businesses, large underlying state-owned lands will be stipulation. The tract will be available corporations. available to the State of Florida in for cooperative management with other Estimated Completion Time: 1⁄2 hour. exchange for lands identified for government agencies and/or private Annual Responses: 60,000. acquisition by the U.S. Department of Annual Burden Hours: 30,000. organizations,or for conveyance under the Interior and/or the U.S. Forest the Recreation and Public Purposes Act, Bureau Clearance Officer: Wendy Service. The FMO underlying the provided that the proposed use follows Spencer (303) 236–6642. Withlacoochee State Forest will be the stated management objectives and Dated: June 9, 1995. temporarily closed to limestone sales in land-use allocations. Hord Tipton, order to allow for the exchange of the Assistant Director, Resource Use and FMO to the State of Florida. Otherwise, The Walton Beach tracts will be Protection. FMO will be available for development managed for enhancement of dune [FR Doc. 95–16227 Filed 6–30–95; 8:45 am] as described below. system habitat. The tracts will be BILLING CODE 4310±84±M FMO is available for oil and gas available for a Recreation and Public leasing as follows: 175,149 acres subject Purposes Act (R&PP) lease, or for to no surface occupancy stipulations. exchange to the State of Florida to [ES±020±05±1610±00] 123,011 acres subject to seasonal accomplish Conservation and Florida Resource Management Plan restrictions and/or controlled surface Recreation Lands (CARL) program and Record of Decision use stipulations. 25,476 acres subject objectives. solely to standard management. Dated: June 22, 1995. AGENCY: Bureau of Land Management, FMO is available for phosphate Robert V. Abbey, Interior. leasing as follows: 294,947 acres subject District Manager. SUMMARY: The Bureau of Land to development constraints. 91,885 Management (BLM), Eastern States, acres subject solely to standard [FR Doc. 95–16260 Filed 6–30–95; 8:45 am] Jackson District, has completed the management. BILLING CODE 4310±GJ±M Florida Resource Management Plan FMO is available for limestone sales (RMP) and Record of Decision (ROD). as follows: 269,340 acres temporarily This document, prepared in accordance closed and/or subject to development 34554 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices Fish and Wildlife Service SUPPLEMENTARY INFORMATION: Under reservoir, the short-term modification of section 9 of the Act, ‘‘taking’’ of the suitable Pahrump poolfish habitat, and Availability of an Environmental Pahrump poolfish, an endangered the incidental take of Pahrump poolfish. Assessment and Receipt of an species, is prohibited. However the Under the No-Action Alternative, Application for a Permit To Allow Service, under limited circumstances, reservoir renovation would not occur Incidental Take of the Endangered may issue permits to take endangered and the permit would not be issued. Pahrump Poolfish by the Nevada wildlife species if such taking is Without reservoir dredging, increasingly Division of State Parks, Spring incidental to, and not the purpose of, restricted reservoir capacity would Mountain Ranch State Park, Clark otherwise lawful activities. Regulations inevitably result in shortened irrigation County, Nevada governing permits for endangered and grazing seasons, most noticeably species are in 50 CFR 17.22. AGENCY: Fish and Wildlife, Interior. reflected in the shorter periods that Park The Applicant proposes to implement pastures remained green. As a ACTION: Notice. a habitat conservation plan (HCP) for consequence, ranching, one of the Park’s SUMMARY: This notice advises the public the Pahrump poolfish that would allow scenic and historic qualities, would be that the Nevada Division of State Parks the renovation and operation of the Park diminished, or lost. Over the long-term, (Applicant) has applied to the U.S. Fish reservoir. The proposed reservoir gradual sedimentation of the reservoir and Wildlife Service (Service) for an renovation would include dredging of would shrink Pahrump poolfish habitat incidental take permit pursuant to the reservoir to restore its holding and eventually fish numbers would section 10(a)(1)(B) of the Endangered capacity and construction of a dam to decline. The Sediment Control Species Act of 1973, as amended (Act). control sedimentation. The Applicant Alternative would forego reservoir The application includes the proposed estimates that there would be no renovation in favor of a earth dam to habitat conservation plan fully incidental take of Pahrump poolfish reduce the rate of further sedimentation. describing the proposed project and during renovation activities and an The construction of the sediment dam mitigation, and the accompanying unquantifiable number of poolfish would not result in any immediate implementing agreement. The during the 30-year operation of the adverse effects to the Pahrump poolfish application has been assigned permit reservoir. However, if an unanticipated population in the reservoir. accident should occur during number PRT–804120. The requested Dated: June 27, 1995. permit would authorize the incidental renovation of the reservoir, the Thomas Dwyer, take of the endangered Pahrump incidental take of the reservoir’s poolfish (Empetrichthys latos latos) in Pahrump poolfish population (estimated Deputy Regional Director, Region 1, Portland, ± Oregon. the irrigation storage reservoir at the at 15,039 1,127 poolfish in 1994) Spring Mountain Ranch State Park could occur. The likelihood for such an [FR Doc. 95–16262 Filed 6–30–95; 8:45 am] (Park) in Clark County, Nevada. The accident to occur would be greatly BILLING CODE 4310±55±P proposed incidental take would occur reduced by the implementation of the during the renovation and operation of proposed minimizing and monitoring the reservoir in which the Pahrump measures outlined in the HCP. These INTERNATIONAL DEVELOPMENT poolfish occupies. measures include modification of The Service also announces the construction activities to minimize COOPERATION AGENCY poolfish mortalities and installation of availability of an environmental Agency For International Development assessment (EA) for the proposed two protective barriers between the construction zone and the inundated issuance of the incidental take permit. Housing Guaranty Program; Notice of portion of the reservoir. The Applicant, This notice is provided pursuant to Investment Opportunity section 10 of the Act and National as mitigation for the incidental take of Environmental Policy Act regulations Pahrump poolfish, proposes over the The U.S. Agency for International (40 CFR 1506.6). term of the permit, to continue to Development (USAID) has authorized manage the reservoir jointly for DATES: Written comments on the permit the guaranty of loans to the Banco irrigation and Pahrump poolfish. application and EA should be received General S.A., Panama (‘‘Borrower’’) as Management actions would include the on or before August 2, 1995. part of USAID’s development assistance termination of the annual practice of ADDRESSES: Comments regarding the program. The proceeds of these loans drawing down the reservoir to will be used to finance shelter and application or adequacy of the EA minimum pool, except for those years should be addressed to Mr. Carlos H. shelter-related infrastructure for the when maintenance is necessary. In benefit of low-income families in Mendoza, State Supervisor, U.S. Fish addition, if renovation activities and Wildlife Service, Nevada State Panama. At this time, the Banco General resulted in the total loss of the reservoir S.A. has authorized USAID to request Office, 4600 Kietzke Lane, Building C– population of Pahrump poolfish within proposals from eligible lenders for a 125, Reno, Nevada 89502. Please refer to 1 year after completion of these loan under this program of $7.0 Million permit number PRT–804120 when activities, the Applicant would assist U.S. Dollars (US$7,000,000). The name submitting comments. All comments, the Nevada Division of Wildlife and the and address of the Borrower’s including names and addresses, Service in the reintroduction of poolfish representative to be contacted by received will become part of the official from existing refugia back into the interested U.S. lenders or investment administrative record and may be made reservoir. available to the public. The EA considers the environmental bankers, the amount of the loan and FOR FURTHER INFORMATION CONTACT: Mr. consequences of three alternatives, the project number are indicated below: Mark Maley, at the above Reno, Nevada, No-Action Alternative, Sediment Banco General S.A., Panama address or at telephone number (702) Control Alternative, and the Reservoir 784–5227. Individuals wishing copies of Renovation Alternative (Preferred Project No: 525–HG–013 the application or EA for review should Alternative). The Reservoir Renovation Housing Guaranty Loan No.: 525–HG– immediately contact the above Alternative would allow the renovation 014 A02 individual. and continued operation of the Amount: US$7,000,000 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices 34555 Attention: Mr. Francisco Sierra, Vice index, the lender should use as its index Urban Programs, U.S. Agency for President—Treasury Banco General a long bond, specifically the 75⁄8% U.S. International Development, Room 409, S.A., Panama Treasury Bond due February 15, 2025. SA–18, Washington, DC 20523–1822, (Street address: Avenida Cuba y Calle Such rate is to be set at the time of Fax Nos: 703/875–4384 or 875–4639, 34, Panama City, Panama) acceptance. Telephone: 703/875–4300. Telex No.: 2733 GENERAL PG (b) Variable Interest Rate: To be based Dated: June 28, 1995. Telefax No.: 507/225–2868 (preferred on the six-month British Bankers Michael G. Kitay, communication) Association LIBOR, preferably with Assistant General Counsel, Bureau for Global Telephone Nos.: 507/227–0770 or 507/ terms relating to the Borrower’s right to 227–3200 Programs, Field Support and Research, U.S. convert to fixed. The rate should be Agency for International Development. Interested lenders should contact the adjusted weekly. [FR Doc. 95–16361 Filed 6–30–95; 8:45 am] Borrower as soon as possible and (5) Prepayment: indicate their interest in providing (a) Offers should include an option for BILLING CODE 6116±01±M financing for the housing Guaranty prepayment and mention prepayment Program. Interested lenders should premiums, if any. submit their bids to the Borrower’s (6) Fees: Offers should specify the INTERSTATE COMMERCE representative by Tuesday, July 11, placement fees and other expenses, COMMISSION 1995, 12:00 noon Eastern Daylight including USAID fees, Paying and Savings Time. Bids should be open for Transfer Agent fees, and out of pocket [Finance Docket No. 32708] a period of 48 hours from the bid expenses, etc. Lenders are requested to closing date. Copies of all bids should include all legal fees in their placement Chicago and North Western Railway be simultaneously sent to the following: fee. Such fees and expenses shall be CompanyÐTrackage Rights Mr. Michael C. Trott, Chief, General payable at closing from the proceeds of ExemptionÐWisconsin Central Limited Development Office and Economics, the loan. Wisconsin Central Limited (WC) has USAID, Unit 0949, APO AA 34002, (7) Closing Date: As early as agreed to grant trackage rights to c/o American Embassy, Panama City, practicable, but not to exceed 60 days Chicago and North Western Railway Panama (Street address: Plaza from date of selection of lender. Company (C&NW) 1 over portions of Regency 2nd Floor, Avenida Via Selection of investment bankers and/ WC’s lines between Wisconsin Central Espana #1), Telefax No.: 507/264– or lenders and the terms of the loan are Milepost 48.85 and Wisconsin Central 0104 (preferred communication), initially subject to the individual Milepost 50.2A, in Wisconsin Rapids, Telephone No.: 507/263–6011 and discretion of the Borrower, and Mr. Ronald A. Carlson, Director, thereafter, subject to approval by Wood County, WI. The proposed Regional Housing and Urban USAID. Disbursements under the loan transaction will allow C&NW to Development Office, Latin America, will be subject to certain conditions facilitate economical and efficient USAID/RHUDO/Guatemala, required of the Borrower by USAID as operation of its traffic through the City Guatemala City, Guatemala, Unit set forth in agreements between USAID of Wisconsin Rapids. The trackage 3323, APO AA 34024, Telefax No.: and the Borrower. rights were to become effective on or 502/2–320–663, Telephone No.: 502/ The full repayment of the loans will after June 21, 1995 and the transaction 2–320–603 be guaranteed by USAID. The USAID was scheduled to be consummated on or Mr. Charles Billand, Assistant Director, guaranty will be backed by the full faith after June 30, 1995. Mr. Peter Pirnie, Financial Advisor, and credit of the United States of This notice is filed under 49 CFR Address: U.S. Agency for America and will be issued pursuant to 1180.2(d)(7). If the notice contains false International Development, Office of authority in Section 222 of the Foreign or misleading information, the Environment and Urban Programs, G/ Assistance Act of 1961, as amended (the exemption is void ab initio. Petitions to ENV/UP, Room 409, SA–18, ‘‘Act’’). revoke the exemption under 49 U.S.C. Washington, D.C. 20523–1822, Telex Lenders eligible to receive the USAID 10505(d) may be filed at any time. The No.: 892703 AID WSA, Telefax No.: guaranty are those specified in Section filing of a petition to revoke will not 703/875–4384 or 875–4639 (preferred 238(c) of the Act. They are: (1) U.S. automatically stay the transaction. communication), Telephone No.: 703/ citizens; (2) domestic U.S. corporations, Pleadings must be filed with the 875–4300 or 875–4510 partnerships, or associations Commission and served on: Stuart F. For your information the Borrower is substantially beneficially owned by U.S. Gassner, 165 North Canal St., Chicago, currently considering the following citizens; (3) foreign corporations whose IL 60606–1551. terms: share capital is at least 95 percent As a condition to the use of this (1) Amount: U.S. $7.0 million. owned by U.S. citizens; and, (4) foreign exemption, any employees adversely (2) Term: 30 years. partnerships or associations wholly affected by the trackage rights will be (3) Grace Period: Ten years grace on owned by U.S. citizens. protected under Norfolk and Western repayment of principal. (During grace To be eligible for the USAID guaranty, Ry. Co.—Trackage Rights—BN, 354 period, semi-annual payments of the loans must be repayable in full no I.C.C. 605 (1978), as modified in interest only). If variable interest rate, later than the thirtieth anniversary of Mendocino Coast Ry., Inc.—Lease and repayment of principal to amortize in the disbursement of the principal Operate, 360 I.C.C. 653 (1980). equal, semi-annual installments over the amount thereof and the interest rates Decided: June 26, 1995. remaining 20-year life of the loan. If may be no higher than the maximum fixed interest rate, semi-annual level rate established from time to time by 1 The acquisition of control of C&NW by Union payments of principal and interest over USAID. Pacific Railroad, et al., was approved by the the remaining 20-year life of the loan. Information as to the eligibility of Commission in Union Pacific Corporation, Union (4) Interest Rate: Alternatives of fixed investors and other aspects of the Pacific Railroad Company and Missouri Pacific Railroad Company—Control—Chicago and North rate, and variable rate are requested. USAID housing guaranty program can Western Transportation Company and Chicago and (a) Fixed Interest Rate: If rates are to be obtained from: Mr. Michael J. Lippe, North Western Railway Company, Finance Docket be quoted based on a spread over an Director, Office of Environment and No. 32133 (ICC served Mar. 7, 1995). 34556 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices By the Commission, David M. Konschnik, Dowd, SLOVER & LOFTUS, 1224 formal expressions of intent to file an Director, Office of Proceedings. Seventeenth Street, N.W., Washington, OFA under 49 CFR 1152.27(c)(2),2 and Vernon A. Williams, DC 20036. trail use/rail banking requests under 49 3 Secretary. Decided: June 27, 1995. CFR 1152.29 must be filed by July 13, [FR Doc. 95–16268 Filed 6–30–95; 8:45 am] By the Commission, David M. Konschnik, 1995. Petitions to reopen or requests for BILLING CODE 7035±01±P Director, Office of Proceedings. public use conditions under 49 CFR Vernon A. Williams, 1152.28 must be filed by July 24, 1995, with: Office of the Secretary, Case Secretary. [Finance Docket No. 32711 (Sub-No. 1)] Control Branch, Interstate Commerce [FR Doc. 95–16267 Filed 6–30–95; 8:45 am] Commission, Washington, DC 20423. Ohio & Pennsylvania Railroad BILLING CODE 7035±01±P CompanyÐAcquisition, Lease and A copy of any pleading filed with the Operation Exemption Commission should be sent to [Docket No. AB±3 (Sub-No. 124X)] applicant’s representative: Joseph D. Ohio & Pennsylvania Railroad Anthofer, 1416 Dodge St., #830, Omaha, Company (OPRC), a noncarrier, has filed Missouri Pacific Railroad CompanyÐ NE 68179. an amended verified notice 1 under 49 Abandonment ExemptionÐin If the notice of exemption contains CFR part 1150, Subpart D—Exempt Johnson, Pulaski and Massac false or misleading information, the Transactions to: (1) lease from P&LE Counties, IL (Joppa Branch) exemption is void ab initio. Properties, Inc., 39.24 miles of rail line MP has filed an environmental report between milepost 0.0, at Youngstown, Missouri Pacific Railroad Company which addresses the abandonment’s OH, and milepost 35.7, at Darlington, (MP) has filed a notice of exemption effects, if any, on the environmental and PA, including short segments of line in under 49 CFR 1152 Subpart F—Exempt historic resources. The Section of Youngstown (1.9 miles) and Negley (1.0 Abandonments to abandon a portion of Environmental Analysis (SEA) will mile), OH, and between Youngstown rail line, known as the Joppa Branch, in issue an environmental assessment (EA) and Struthers, PA (0.64 mile); (2) Johnson, Pulaski and Massac Counties, by July 7, 1995. Interested persons may purchase from Consolidated Rail IL. The trackage extends from milepost obtain a copy of the EA by writing to Corporation (Conrail) a 0.26-mile 339.70 near Vienna Junction to milepost SEA (Room 3219, Interstate Commerce segment of line between mileposts 0.96 359.50 near Joppa, a total distance of Commission, Washington, DC 20423) or and 1.22 in Youngstown; and (3) acquire approximately 19.80 miles. by calling Elaine Kaiser, Chief of SEA, incidental trackage rights over an MP has certified that: (1) No local at (202) 927–6248. Comments on approximately 8-mile line between traffic has moved over the line for at environmental and historic preservation 2 Youngstown and Boardman, OH. OPRC least 2 years; (2) there is no overhead matters must be filed within 15 days will transport local traffic and will traffic on the line; (3) no formal after the EA is available to the public. interchange overhead traffic with CSX complaint filed by a user of rail service Environmental, historic preservation, Transportation, Inc., or Conrail at on the line (or by a State or local public use, or trail use/rail banking Youngstown. The exemption was made government entity acting on behalf of conditions will be imposed, where effective on June 23, 1995, by decision such user) regarding cessation of service appropriate, in a subsequent decision. served that day. over the line either is pending with the This proceeding is related to Summit Commission or with any U.S. District Decided: June 26, 1995. View Corporation—Continuance in Court or has been decided in favor of By the Commission, David M. Konschnik, Control Exemption—Ohio & the complainant within the 2-year Director, Office of Proceedings. Pennsylvania Railroad Company, period; and (4) the requirements at 49 Vernon A. Williams, Finance Docket No. 32712, wherein CFR 1105.7 (environmental reports), 49 Secretary. Summit View Corporation filed a CFR 1105.8 (historic reports), 49 CFR [FR Doc. 95–16266 Filed 6–30–95; 8:45 am] verified notice to continue to control 1105.11 (transmittal letter), 49 CFR BILLING CODE 7035±01±P OPRC upon its becoming a rail carrier. 1105.12 (newspaper publication), and If the amended verified notice 49 CFR 1152.50(d)(1) (notice to [Docket No. AB±254 (Sub-No. 6X)] contains false or misleading governmental agencies) have been met. information, the exemption is void ab As a condition to use of this Providence and Worcester Railroad initio. Petitions to reopen the exemption, any employee adversely proceeding to revoke the exemption CompanyÐAbandonment ExemptionÐ affected by the abandonment shall be in New Haven, CT under 49 U.S.C. 10505(d) may be filed protected under Oregon Short Line R. at any time. The filing of a petition to Co.—Abandonment—Goshen, 360 I.C.C. Providence and Worcester Railroad reopen will not stay the exemption’s 91 (1979). To address whether this Company (P&W), has filed a notice of effectiveness. An original and 10 copies condition adequately protects affected exemption under 49 CFR 1152 Subpart of all pleadings, referring to Finance employees, a petition for partial F—Exempt Abandonments to abandon Docket No. 32711 (Sub-No. 1), must be revocation under 49 U.S.C. 10505(d) filed with the Office of the Secretary, must be filed. (whether raised by a party or by the Commission’s Case Control Branch, Interstate Provided no formal expression of Section of Environmental Analysis in its independent investigation) cannot be made prior to Commerce Commission, Washington, intent to file an offer of financial DC 20423. In addition, a copy of each the effective date of the notice of exemption. See assistance (OFA) has been received, this Exemption of Out-of-Service Rail Lines, 5 I.C.C.2d pleading must be served on Kelvin J. exemption will be effective on August 2, 377 (1989). Any entity seeking a stay on 1995, unless stayed pending environmental concerns is encouraged to file its 1 OPRC’s original verified notice, filed in the lead request as soon as possible in order to permit the docket, inadvertently omitted certain aspects of the reconsideration. Petitions to stay that do Commission to review and act on the request before 1 involved transaction, necessitating a refiling. not involve environmental issues, the effective date of this exemption. 2 The transactions described in (2) and (3) will be 2 See Exempt. of Rail Abandonment—Offers of accomplished by assignment of a contract between 1 A stay will be issued routinely by the Finan. Assist., 4 I.C.C.2d 164 (1987). P&LW Railroad, Inc., and Conrail to OPRC for Commission in those proceedings where an 3 The Commission will accept a late-filed trail use consideration. informed decision on environmental issues request as long as it retains jurisdiction to do so. Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices 34557 approximately 1.35 miles of line known Snyder, Providence and Worcester to the seating capacity of the room. The as the Manufacturer’s Industrial Track Railroad Company, P.O. Box 16551, agenda for the meeting is as follows: extending from its connection with Worcester, MA 01601. —NASA Expectations of Committee P&W’s Belle Dock Industrial Track to If the notice of exemption contains —NASA Strategic Plan the end of the line. false or misleading information, the —Research, Technology, and P&W has certified that: (1) no local exemption is void ab initio. Applications for Space Transportation traffic has moved over the line for at P&W has filed an environmental —Commercialization and Technology least 2 years; (2) no overhead traffic has report which addresses the Transfer moved over the line for at least 2 years; abandonment’s effects, if any, on the —NAC Review of Reusable Launch (3) no formal complaint filed by a user environment and historic resources. The Vehicle (RLV) of rail service on the line (or by a state Section of Environmental Analysis or local government entity acting on (SEA) will issue an environmental It is imperative that the meeting be behalf of such user) regarding cessation assessment (EA) by July 7, 1995. held on these dates to accommodate the of service over the line either is pending Interested persons may obtain a copy of scheduling priorities of the key with the Commission or with any U.S. the EA by writing to SEA (Room 3219, participants. Visitors will be requested District Court or has been decided in Interstate Commerce Commission, to sign a visitor’s register. favor of the complainant within the 2- Washington, DC 20423) or by calling Dated: June 27, 1995. year period; and (4) the requirements at Elaine Kaiser, Chief of SEA, at (202) Timothy M. Sullivan, 49 CFR 1105.7 (environmental report), 927–6248. Comments on environmental Advisory Committee Management Office, 49 CFR 1105.8 (historic report), 49 CFR and historic preservation matters must National Aeronautics and Space 1105.11 (transmittal letter), 49 CFR be filed within 15 days after the EA is Administration. 1105.12 (newspaper publication), and available to the public. [FR Doc. 95–16237 Filed 6–30–95; 8:45 am] 49 CFR 1152.50(d)(1) (notice to Environmental, historic preservation, BILLING CODE 7510±01±M governmental agencies) have been met. public use, or trail use/rail banking As a condition to use of this conditions will be imposed, where exemption, any employee adversely appropriate, in a subsequent decision. [Notice (95±049)] affected by the abandonment shall be Decided: June 26, 1995. protected under Oregon Short Line R. Intent to Grant a Partially Exclusive By the Commission, David M. Konschnik, Patent License Co.—Abandonment—Goshen, 360 I.C.C. Director, Office of Proceedings. 91 (1979). To address whether this Vernon A. Williams, AGENCY: National Aeronautics and condition adequately protects affected Secretary. Space Administration. employees, a petition for partial ACTION: Notice of Intent to Grant a revocation under 49 U.S.C. 10505(d) [FR Doc. 95–16269 Filed 6–30–95; 8:45 am] Patent License. must be filed. BILLING CODE 7035±01±P Provided no formal expression of SUMMARY: NASA hereby gives notice of intent to file an offer of financial intent to grant Advanced Micro Devices, NATIONAL AERONAUTICS AND assistance (OFA) has been received, this 5204 E. Ben White Boulevard, Austin, SPACE ADMINISTRATION exemption will be effective on August 3, Texas 78741, a license to practice the 1995, unless stayed pending [Notice (95±048)] invention protected by U.S. Patent No. reconsideration. Petitions to stay that do 1 5,311,422, entitled ‘‘General Purpose not involve environmental issues, NASA Advisory Council (NAC), Architecture for Intelligent Computer- formal expressions of intent to file an Technology and Commercialization 2 Aided Training,’’ which was issued on OFA under 49 CFR 1152.27(c)(2), and Advisory Committee (TCAC); Meeting May 10, 1994, to the United States of trail use/rail banking requests under 49 3 AGENCY: National Aeronautics and America as represented by the CFR 1152.29 must be filed by July 14, Administrator of the National 1995. Petitions to reopen or requests for Space Administration. Aeronautics and Space Administration. public use conditions under 49 CFR ACTION: Notice of meeting. The partially exclusive license will 1152.28 must be filed by July 24, 1995, SUMMARY: In accordance with the contain appropriate terms and with: Office of the Secretary, Case Federal Advisory Committee Act, Pub. conditions to be negotiated in Control Branch, Interstate Commerce L. 92–463, as amended, the National accordance with ‘‘Licensing of Commission, Washington, DC 20423. Government-Owned Inventions,’’ (37 A copy of any pleading filed with the Aeronautics and Space Administration CFR 404.1 et seq.). NASA will negotiate Commission should be sent to announces a meeting of the NASA the final terms and conditions and grant applicant’s representative: Harry A. Advisory Council, Technology and Commercialization Advisory the license unless, within 60 days of the 1 A stay will be issued routinely by the Committee. date of this notice, the Patent Counsel, Commission in those proceedings where an DATES: July 20, 1995, 8:30 a.m. to 5:00 NASA, Johnson Space Center, receives informed decision on environmental issues p.m.; and July 21, 1995, 8:30 a.m. to written objections to the grant, together (whether raised by a party or by the Commission’s noon. with supporting documentation. The Section of Environmental Analysis in its independent investigation) cannot be made before ADDRESSES: National Aeronautics and Patent Counsel, NASA Johnson Space the effective date of the notice of exemption. See Space Administration, Room MIC–6, Center, will review all written responses Exemption of Out-of-Service Rail Lines, 5 I.C.C.2d 300 E Street, SW, Washington, DC to this notice and then recommend to 377 (1989). Any entity seeking a stay on the Associate General Counsel for environmental concerns is encouraged to file its 20546. request as soon as possible in order to permit the FOR FURTHER INFORMATION CONTACT: Intellectual Property whether to grant Commission to review and act on the request before Mr. Gregory Reck, Code X, National the license. the effective date of this exemption. Aeronautics and Space Administration, DATES: Comments to the notice must be 2 See Exempt. of Rail Abandonment—Offers of Washington, DC 20546 (202/358–4700). received by September 1, 1995. Finan. Assist., 4 I.C.C.2d 164 (1987). 3 The Commission will accept a late-filed trail use SUPPLEMENTARY INFORMATION: The ADDRESSES: Johnson Space Center, Mail request as long as it retains jurisdiction to do so. meeting will be open to the public up Code HA, Houston, TX 77058. 34558 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices FOR FURTHER INFORMATION CONTACT: NATIONAL ARCHIVES AND RECORDS a few series of records, and many are Hardie R. Barr, Patent Attorney, (713) ADMINISTRATION updates of previously approved 483–1003. schedules. Such schedules also may Records Schedules; Availability and include records that are designated for Dated: June 23, 1995. Request for Comments permanent retention. Edward A. Frankle, AGENCY: National Archives and Records Destruction of records requires the General Counsel Administration, Office of Records approval of the Archivist of the United [FR Doc. 95–16238 Filed 6–30–95; 8:45 am] Administration. States. This approval is granted after a thorough study of the records that takes BILLING CODE 7510±01±M ACTION: Notice of availability of proposed records schedules; request for into account their administrative use by comments. the agency of origin, the rights of the Government and of private persons [Notice 95±050] SUMMARY: The National Archives and directly affected by the Government’s Intent To Grant a Partially Exclusive Records Administration (NARA) activities, and historical or other value. Patent License publishes notice at least once monthly This public notice identifies the of certain Federal agency requests for Federal agencies and their subdivisions AGENCY: National Aeronautics and records disposition authority (records requesting disposition authority, Space Administration. schedules). Records schedules identify includes the control number assigned to records of sufficient value to warrant each schedule, and briefly describes the ACTION: Notice of Intent to Grant a preservation in the National Archives of records proposed for disposal. The Patent License. the United States. Schedules also records schedule contains additional authorize agencies after a specified information about the records and their SUMMARY: NASA hereby gives notice of period to dispose of records lacking disposition. Further information about intent to grant Holmes Enterprises, Inc., administrative, legal, research, or other the disposition process will be 106 Normandy Lane, Newport News, value. Notice is published for records furnished to each requester. schedules that (1) propose the VA 23606, a license to practice the Schedules Pending invention protected by U.S. Patent No. destruction of records not previously 4,873,990, entitled ‘‘Circumferential authorized for disposal, or (2) reduce 1. Department of Agriculture, Food Pressure Probe,’’ which was issued on the retention period for records already Safety and Inspection Service (N1– October 17, 1989, to the United States authorized for disposal. NARA invites 462–95–2). Nonviolator program of America as represented by the public comments on such schedules, as compliance records. Administrator of the National required by 44 USC 3303a(a). 2. Department of Agriculture, Food and Aeronautics and Space Administration. DATES: Request for copies must be Consumer Service (N1–462–95–5). The partially exclusive license will received in writing on or before August Electronic system used to track the contain appropriate terms and 17, 1995. Once the appraisal of the purchase and distribution of conditions to be negotiated in records is completed, NARA will send agricultural commodities. accordance with ‘‘Licensing of a copy of the schedule. The requester 3. Department of the Air Force (N1– will be given 30 days to submit Government-Owned Inventions,’’ (37 AFU–95–7). Vital statistics and comments. CFR 404.1 et seq.). NASA will negotiate notarial record for Wake Island. the final terms and conditions and grant ADDRESSES: Address requests for single (Records will be transferred to the State of Hawaii.) the license unless, within 60 days of the copies of schedules identified in this date of this notice, the Patent Counsel, notice to the Records Appraisal and 4. Department of Interior, Bureau of Disposition Division (NIR), National Indian Affairs (N1–75–95–1). Child NASA, Langley Research Center, Archives and Records Administration, Welfare Case Files. receives written objections to the grant, College Park, MD 20740. Requesters 5. Department of Transportation, Office together with supporting must cite the control number assigned of the Secretary (N1–398–94–3). documentation. The Patent Counsel, to each schedule when requesting a Office of Small and Disadvantage NASA Langley Research Center, will copy. The control number appears in Business Utilization bonding review all written responses to this the parentheses immediately after the assistance and short term lending notice and then recommend to the name of the requesting agency. applications. Associate General Counsel for SUPPLEMENTARY INFORMATION: Each year 6. Department of the Treasury (N1–56– Intellectual Property where to grant the U.S. Government agencies create 95–1). Records of the Legal Division license. billions of records on paper, film, of the Office of General Council. DATES: Comments to the notice must be magnetic tape, and other media. In order 7. Department of the Treasury, United received by September 1, 1995. to control this accumulation, agency States Secret Service (N1–87–93–2). records managers prepare records Operational records of the ADDRESSES: Langley Research Center, schedules specifying when the agency Uniformed Division. Mail Code 212, Hampton, VA 23681– no longer needs the records and what 8. Department of State, Bureau of 0001. happens to the records after this period. Administration (N1–59–95–4). FOR FURTHER INFORMATION CONTACT: Some schedules are comprehensive and Routine, Facilitative, and George F. Helfrich, Patent Attorney, cover all the records of an agency or one duplicative records relating to (804) 864–9260. of its major subdivisions. These information management. Dated: June 23, 1995. comprehensive schedules provide for 9. Department of State, Bureau of the eventual transfer to the National Democracy, Human Rights, and Edward A. Frankle, Archives of historically valuable records Labor (N1–59–95–12). Routine, General Counsel. and authorize the disposal of all other facilitative, and duplicative records. [FR Doc. 95–16239 Filed 6–30–95; 8:45 am] records. Most schedules, however, cover 10. Federal Trade Commission (N1– BILLING CODE 7510±01±M records of only one office or program or 122–95–1). Bureau of Economics Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices 34559 Antibiotic Study Working Files, Endowment to improve the current state National Endowment for the Arts, 1100 1953–58. of economic data collection on arts Pennsylvania Avenue NW., Washington, 11. General Services Administration organizations. The project will consist DC 20506, 202/682–5532, TYY 202/ (N1–269–95–2). Reduction in of three parts. Phase 1: A description of 682–5496, at least seven (7) days prior retention period for Contract current national data collection systems to the meeting. Appeal Case Files. on arts organizations. Phase 2: An Further information with reference to 12. Immigration and Naturalization assessment of needs of arts this meeting can be obtained from Ms. Service, (N1–85–92–1). Systematic policymakers, researchers, and Yvonne M. Sabine, Committee Alien Verification for Entitlements practitioners regarding arts organization Management Officer, National System. economic data. Phase 3: An assessment Endowment for the Arts, Washington, 13. National Endowment for the Arts, of the ability of current data collection DC 20506, or call 202/682–5433. Administrative Services Division systems as described in Phase 1 to Dated: June 27, 1995. (N1–288–95–2). Grant applicants’ address the needs as determined in Yvonne M. Sabine, supporting materials. Phase 2. Those interested in receiving Director, Office of Council and Panel 14. Peace Corps (N1–490–95–7). Office the Solicitation should reference Operations, National Endowment for the Arts. of University Programs files. Program Solicitation PS 95–08 in their [FR Doc. 95–16218 Filed 6–30–95; 8:45 am] 15. Pension Benefit Guaranty written request and include two (2) self- BILLING CODE 7537±01±M Corporation (N1–465–95–1). addressed labels. Verbal requests for the Records of the Corporate Financing Solicitation will not be honored. and Negotiations Department. DATES: Program Solicitation PS 95–08 is NUCLEAR REGULATORY 16. Tennessee Valley Authority (N1– scheduled for release approximately COMMISSION 142–92–12). Maps and Surveys July 21, 1995 with proposals due on correspondence file, 1933–1988. August 21, 1995. [Docket No. 50±289] 17. Tennessee Valley Authority (N1– ADDRESSES: Requests for the Solicitation 142–94–1). Original drawings, GPU Nuclear Corporation; Three Mile should be addressed to National Island Nuclear Station, Unit 1 maps, sketches, and manufacturers’ Endowment for the Arts, Contracts prints for TVA’s power Environmental Assessment and Division, Room 217, 1100 Pennsylvania Finding of No Significant Impact transmission system. Ave., NW. Washington, DC 20506. 18. Tennessee Valley Authority (N1– FOR FURTHER INFORMATION CONTACT: The U.S. Nuclear Regulatory 142–95–8). Eliminated land tract William I. Hummel, Contracts Division, Commission (the Commission) is files. National Endowment for the Arts, 1100 considering issuance of an exemption 19. Tennessee Valley Authority (N1– Pennsylvania Ave., NW. Washington, from the provisions of 10 CFR 50.44, 10 142–95–10). Cemetery relocation DC 20506 (202/682–5482). CFR 50.46, and appendix K to 10 CFR project administration records. William I. Hummel, part 50 to GPU Nuclear Corporation 20. U.S. Commission on Civil Rights (GPUN, the licensee) for Three Mile Director, Contracts and Procurement Division. (N1–453–95–1). Computer Island Nuclear Station, Unit 1 (TMI–1), printouts, complaints, legislative [FR Doc. 95–16228 Filed 6–30–95; 8:45 am] located in Dauphin County, study and administrative subject BILLING CODE 7537±01±M Pennsylvania. files. 21. U.S. Fish and Wildlife Service (N1– Environmental Assessment National Endowment for the Arts; 22–94–1). Electronic records Identification of Proposed Action relating to the 1970 and 1975 Design Advisory Meeting The proposed action would enable the national surveys of fishing, hunting, Pursuant to Section 10(a)(2) of the licensee to use demonstration fuel and wildlife associated recreation. Federal Advisory Committee Act (Pub. assemblies that contain some fuel rods Dated: June 19, 1995. L. 92–463), as amended, notice is hereby whose zirconium–based cladding John W. Carlin, given that a meeting of the Design composition is somewhat different from Archivist of the United States. Advisory Panel (Overview Section) to the zirconium based compound named [FR Doc. 95–16265 Filed 6–30–95; 8:45 am] the National Council on the Arts will be zircaloy. These demonstration held on July 19–20, 1995 from 9:00 a.m. BILLING CODE 7515±01±M assemblies would be loaded into TMI– to 5:45 p.m. on July 19 and from 9:00 1 during the upcoming September 1995 a.m. to 5:00 p.m. on July 20. This refueling outage and irradiated through meeting will be held in Room M–07, at NATIONAL FOUNDATION ON THE fuel Cycles 11, 12, and 13. the Nancy Hanks Center, 1100 ARTS AND THE HUMANITIES The proposed action is in accordance Pennsylvania Avenue, N.W., with the licensee’s application for Cooperative Agreement for Designing Washington, D.C., 20506. exemption of June 1, 1995. This meeting will be open to the a National System for Collecting The Need for the Proposed Action Economic Data on Arts Organizations public on a space available basis. Any interested person may observe The proposed exemption to 10 CFR AGENCY: National Endowment for the meetings or portions thereof, which are 50.44, 10 CFR 50.46, and appendix K to Arts. open to the public, and may be 10 CFR part 50 is needed because these ACTION: Notification of Availability. permitted to participate in the regulations specifically refer to light- discussions at the discretion of the water reactors containing fuel consisting SUMMARY: The National Endowment for meeting chairman and with the or uranium oxide pellets enclosed in the Arts requests proposals leading to approval of the full-time Federal zircaloy tubes. Zircaloy is a zirconium- the award of a Cooperative Agreement employee in attendance. based alloy currently in use as cladding with the goal of creating specific If you need special accommodations for fuel pellets. A new zirconium-based recommendations regarding practical due to a disability, please contact the cladding has been developed which is steps to be undertaken by the Office of Special Constituencies, not the same chemical composition as 34560 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices zircaloy, and which the licensee wants satisfactorily under conditions Agencies and Persons Consulted to test in reactor operation. Since 10 representative of a reactor environment. In accordance with its stated policy, CFR 50.46 and 10 CFR part 50, In addition, the relatively small number the NRC staff consulted with Richard appendix K limit Emergency Core of fuel rods involved does not represent Janati of the Pennsylvania Department Cooling System (ECCS) calculations to a prohibitively large inventory of of Environmental Resources on June 9, zircaloy and 10 CFR 50.44 relates to the radioactive material which could be 1995, regarding the environmental generation of hydrogen gas from a released into the reactor coolant in the impact of the proposed action. Mr. metal-water reaction with zircaloy, an event of cladding failure. The only Janati had no comments on behalf of the exemption is required in order to place credible consequence of this change Commonwealth of Pennsylvania. two demonstration assemblies in the would be a failure of the demonstration core. The staff has reviewed the claddings. Even in the case of gross fuel Finding of No Significant Impact chemical composition of the new failure, the number of rods involved is Accordingly, the Commission has cladding and found no significant less than 1% of the core and, thus, determined not to prepare an difference between the new composition sufficiently small that environmental environmental impact statement for the and zircaloy. Therefore, pursuant to 10 impact would be negligible and is proposed exemption. CFR 50.12, a special circumstance exists bounded by previous assessments. The Based upon the foregoing in which application of these small number of fuel rods involved in environmental assessment, the regulations is not necessary to achieve conjunction with the chemical Commission concludes that the the underlying purpose of the similarity of the demonstration cladding proposed action will not have a regulations. The NRC staff finds that to zircaloy cladding ensures that significant effect on the quality of the granting the requested exemption is hydrogen production would not be human environment. authorized by law, will not present an significantly different from previous For further details with respect to this undue risk to the public health and assessments. As a result, the proposed action, see the request for exemption safety, and is consistent with the exemption does not affect the dated June 1, 1995, which is available common defense and security. Thus, an consequences of radiological accidents. for public inspection at the exemption is authorized by 10 CFR Consequently, the Commission 50.12. The underlying purpose of 10 Commission’s Public Document Room, concludes that there are no significant 2120 L Street, NW., Washington, DC CFR 50.46 and 10 CFR 50 appendix K radiological impacts associated with the is to establish requirements for 20555 and at the local public document proposed exemption. room located at the Law/Government calculations of emergency core cooling With regard to the potential systems. The licensee addressed the Publication Section, State Library of environmental impacts associated with Pennsylvania, (Regional Depository) safety impact of the demonstration the transportation of the demonstration assemblies on emergency core cooling Walnut Street and Commonwealth assemblies, the advanced cladding have system performance as part of the Avenue, Box 1601, Harrisburg, PA no impact on previous assessments application for exemption and 17105. determined in accordance with 10 CFR demonstrated that the new zirconium Dated at Rockville, Maryland this 26th day 51.52. With regard to potential based cladding does not affect the ECCS of June, 1995. nonradiological impacts, the proposed calculations. The underlying purpose of For the Nuclear Regulatory Commission. exemption does not affect 10 CFR 50.44 is to ensure that means are nonradiological plant effluents and has Ronald W. Hernan, provided for the control of hydrogen gas no other environmental impact. Acting Director, Project Directorate I–3, that may be generated following a Therefore, the Commission concludes Division of Reactor Projects—I/II Office of postulated loss-of-coolant accident. The Nuclear Reactor Regulation. licensee previously addressed hydrogen that there are no significant nonradiological environmental impacts [FR Doc. 95–16248 Filed 6–30–95; 8:45 am] generation following a loss-of-coolant BILLING CODE 7590±1±M accident. The licensee’s proposed action associated with the proposed has no significant effect on the previous exemption. assessment of hydrogen gas production. Alternatives to the Proposed Action [Docket No. 50±272] Environmental Impacts of the Proposed Because the Commission’s staff has Public Service Electric and Gas; Action concluded that there is no significant Environmental Assessment and With regard to potential radiological environmental impact associated with Finding of No Significant Impact impacts to the general public, the the proposed exemption, any alternative The U.S. Nuclear Regulatory proposed exemption involves features to the proposed exemption will have Commission (the Commission) is located entirely within the restricted either no significantly different considering issuance of an exemption area as defined in 10 CFR part 20. It environmental impact or greater from Facility Operating License No. does not affect the potential for environmental impact. The principal DPR–70, issued to the Public Service radiological accidents and does not alternative would be to deny the and Gas Company, (the licensee) for the affect radiological plant effluents. The requested exemption. This would not Salem Nuclear Generating Station, Unit demonstration assemblies meet the reduce environmental impacts as a same design bases as the fuel which is result of plant operations. 1. The plant is located at the licensee’s site in Salem County, New Jersey. currently in the reactor. No safety limits Alternative Use of Resources have been changed or setpoints altered Environmental Assessment as a result of the use of these assemblies. This action does not involve the use The Final Safety Analysis Report of resources not previously considered Identification of Proposed Action (FSAR) analyses are bounding for the in connection with the Final The proposed action would grant an demonstration assemblies as well as the Environmental Statement related to the exemption from a requirement of remainder of the core. The advanced operation of Three Mile Island Nuclear Section III.D.1.(a) of appendix J to 10 zirconium-based alloys have been Station, Units 1 and 2, issued by the CFR part 50, which requires a set of shown through testing to perform Commission in December 1972. three Type A tests (Containment Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices 34561 Integrated Leakage Rate Test or CILRT) the application would result in no Reorganization Plan No. 1 of 1980, be performed at approximately equal change in current environmental whereby all Commission functions are intervals during each 10-year service impacts. The environmental impacts of delegated to the Chairman at such time period. The licensee’s request for an the proposed action and the alternative as a quorum (at least three Members) exemption would defer the next action are similar. ceases to exist. scheduled CILRT for one outage, from Alternative Use of Resources Refuel 12 to Refuel 13. EFFECTIVE DATE: This delegation shall The proposed action is in accordance This action does not involve the use take effect on July 2, 1995 and shall with the licensee’s request for of any resources not previously remain in effect only until a quorum has exemption dated April 4, 1995. considered in the ‘‘Final Environmental been restored. Statement related to the operation of FOR FURTHER INFORMATION CONTACT: The Need for the Proposed Action Salem Nuclear Generating Station,’’ Peter Crane, 301–415–1622. The proposed action is needed dated April 1973. because the licensee’s current schedule SUPPLEMENTARY INFORMATION: The text of Agencies and Persons Consulted would require a CILRT to be performed the delegation of authority follows: during Refuel 12 (September 1995). In accordance with its stated policy, Minimal safety benefit would be on May 31, 1995, the NRC staff Delegation of Authority realized by performing the scheduled consulted with the New Jersey State Under section 201(a) of the Energy CILRT, since the majority of primary official, Mr. Dennis Zannoni of the Reorganization Act of 1974, as amended, a containment leakage has previously Department of Environmental Protection quorum for the transaction of business shall been identified through the performance regarding the environmental impact of consist of at least three Members. While the of the Local Leak Rate Tests (LLRT). the proposed action. The State official Commission has a quorum, it is making Without the exemption, the licensee had no comments. necessary delegations of authority to ensure would incur additional cost and that the agency mission can be carried out in Finding of No Significant Impact downtime of the unit. the event that, unexpectedly, a quorum is no Based upon the environmental longer available due to vacancies or the Environmental Impacts of the Proposed assessment, the Commission concludes incapacitation of a Member. These Action that the proposed action will not have delegations shall take effect immediately The Commission has completed its a significant effect on the quality of the upon the lack of a quorum for the reasons evaluation of the proposed action and human environment. Accordingly, the stated above and shall remain in effect only concludes that the proposed exemption Commission has determined not to until a quorum has been restored. This would not significantly increase the prepare an environmental impact document is to be published in the Federal probability or amount of expected statement for the proposed action. Register by the Secretary of the Commission containment leakage, and that For further details with respect to this should the delegations come into force. containment integrity would thus be proposed action, see the licensee’s letter Under section 1 of Reorganization Plan No. maintained. dated April 4, 1995, which is available 1 of 1980, the Commission’s functions are The change will not increase the for public inspection at the limited to policy formulation, rulemaking probability or consequences of Commission’s Public Document Room, and adjudication. It is imperative that the accidents, no changes are being made in The Gelman Building, 2120 L Street agency be able to carry out these functions the types of any effluents that may be NW., Washington, DC and at the local at all times. Section 1 further provides that released offsite, and there is no public document room located at the the performance of any of these functions can significant increase in the allowable Salem Free Public Library, 112 West be delegated to a member of the Commission, individual or cumulative occupational Broadway, Salem, NJ 08079. including the Chairman. radiation exposure. Accordingly, the To ensure that these functions can be Dated at Rockville, Maryland, this 27th day successfully carried out, the Commission, Commission concludes that there are no of June 1995. pursuant to section 1 of Reorganization Plan significant radiological environmental For the Nuclear Regulatory Commission. impacts associated with the proposed No. 1 of 1980, is hereby delegating the John F. Stolz, action. authority to carry out all Commission With regard to potential Director, Project Directorate I–2, Division of functions, should the absence of a quorum Reactor Projects—I/II, Office of Nuclear arise, to the Chairman of the Commission. In nonradiological impacts, the proposed Reactor Regulation. action does involve features located the event the Chairman is incapacitated or [FR Doc. 95–16247 Filed 6–30–95; 8:45 am] entirely within the restricted area as that position is not filled, the authority is defined in 10 CFR part 20. It does not BILLING CODE 7590±01±M delegated to the Commissioner with the affect nonradiological plant effluents longest service on the Commission. The Chairman or Commissioner exercising the and has no other environmental impact. Delegation of Authority Accordingly, the Commission concludes authority conferred by this delegation is required to consult with the other that there are no significant AGENCY: Nuclear Regulatory Commissioner before taking action on a nonradiological environmental impacts Commission. matter. For the purpose of this delegation the associated with the proposed action. ACTION: Notice of delegation of authority term ‘‘Chairman’’ shall also include ‘‘Acting Alternative to the Proposed Action to the Chairman of the Nuclear Chairman’’. Regulatory Commission. Since the Commission has concluded All existing delegations of authority to NRC officials in effect prior to the effective there is no measurable environmental SUMMARY: On July 2, 1995, due to impacts associated with the proposed vacancies on the Commission, a quorum date of this delegation of authority remain in action, any alternatives with equal or of Members of the Nuclear Regulatory full force and effect. greater environmental impact need not Commission will not be available. This be evaluated. As an alternative to the circumstance is provided for in a proposed action, the staff considered delegation of authority approved by the denial of the proposed action. Denial of Commission under section 1 of 34562 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices Approved at Rockville, Maryland, this 23rd May 24, 1995, specifications for the change is available at the Office of the day of June, 1994. Federal Human Resource Management Secretary, Amex, and at the /S/ Ivan Selin Reinvention Act of 1995. The panel will Commission. Ivan Selin. include representatives from Federal II. Self-Regulatory Organization’s Chairman. employee unions, veterans Statement of the Purpose of, and /S/ Kenneth C. Rogers organizations, and the Coalition for Statutory Basis for, the Proposed Rule Kenneth C. Rogers, Effective Change. To get a copy of the Change Commissioner. Administration’s specifications, call Phyllis G. Foley at (202) 606–2930. In its filing with the Commission, the /S/ Forrest J. Remick PUBLIC PARTICIPATION: We invite self-regulatory organization included Forrest J. Remick, interested persons and organizations to statements concerning the purpose of Commissioner. submit written comments on the and basis for the proposed rule change /S/ E. Gail de Planque Administration’s specifications. Mail or and discussed any comments it received E. Gail de Planque, deliver your comments to Mr. Douglas on the proposed rule change. The text Commissioner. K. Walker at the address shown above. of these statements may be examined at the places specified in Item IV below. Dated at Rockville, Maryland, this 28th day Comments should be submitted before of June, 1995. the July 12 meeting or within 30 days The self-regulatory organization has prepared summaries, set forth in John C. Hoyle, after this notice is published in the Sections A, B, and C below, of the most Federal Register. Secretary of the Commission. significant aspects of such statements. [FR Doc. 95–16316 Filed 6–30–95; 8:45 am] Office of Personnel Management, BILLING CODE 7590±01±P James B. King, A. Self-Regulatory Organization’s Statement of the Purpose of, and Director. Statutory Basis for, the Proposed Rule [FR Doc. 95–16229 Filed 6–30–95; 8:45 am] Change OFFICE OF PERSONNEL BILLING CODE 6325±01±M MANAGEMENT 1. Purpose The National Partnership Council; On January 31, 1995, the Commission Meeting SECURITIES AND EXCHANGE extended its pilot approval of COMMISSION amendments to Exchange Rule 109 until AGENCY: Office of Personnel July 21, 1995.2 The amendments permit [Release No. 34±35909; File No. SR±Amex± Management. 95±14] a specialist, upon request, to grant a ACTION: Notice of meeting. stop 3 in a minimum fractional change Self-Regulatory Organizations; Notice market 4 for any order of 2,000 shares or SUMMARY: The Office of Personnel of Filing of Proposed Rule Change by less, up to a total of 5,000 shares for all Management (OPM) announces the next the American Stock Exchange, Inc. stopped orders, provided there is an meeting of the National Partnership Relating to Permanent Approval of Its order imbalance, without obtaining Council (the Council). Notice of this Pilot Program That Permits Specialists prior Floor Official approval. A Floor meeting is required under the Federal to Grant Stops in a Minimum Fractional Official, however, must authorize a Advisory Committee Act. Change Market greater order size or aggregate share TIME AND PLACE: The Council will meet threshold. July 12, 1995, at 1 p.m., in the June 28, 1995. During the course of the pilot auditorium at the Office of Personnel Pursuant to Section 19(b)(1) of the program, the Exchange has closely Management, Theodore Roosevelt Securities Exchange Act of 1934 monitored compliance with the rule’s Building, 1900 E Street, NW., (‘‘Act’’), 15 U.S.C. 78s(b)(1), notice is requirements, as well as analyzed the Washington, DC 20415–0001. The hereby given that on March 23, 1995, impact on orders on the specialist’s auditorium is located on the ground the American Stock Exchange, Inc. book resulting from the execution of level. (‘‘Amex’’ or ‘‘Exchange’’) filed with the stopped orders at a price that is better TYPE OF MEETING: This meeting will be Securities and Exchange Commission than the stop price, and reviewed open to the public. Seating will be (‘‘Commission’’) the proposed rule available on a first-come, first-served change as described in Items I, II, and Release No. 30603 (Apr. 17, 1992), 57 FR 15340 III below, which Items have been (Apr. 27, 1992) (File No. SR–Amex–91–05) (‘‘1992 basis. Handicapped individuals wishing Approval Order’’). The Commission subsequently to attend should contact OPM at the prepared by the self-regulatory extended the Amex’s pilot program in Securities number shown below to obtain organization. The Commission is Exchange Act Release Nos. 32185 (Apr. 21, 1993), appropriate accommodations. publishing this notice to solicit 58 FR 25681 (Apr. 27, 1993) (File No. SR–Amex– comments on the proposed rule change 93–10) (‘‘April 1993 Approval Order’’); 32664 (July POINT OF CONTACT: Douglas K. Walker, 21, 1993) 58 FR 40171 (July 27, 1993) (File No. SR– National Partnership Council, Executive from interested persons. Amex–93–22) (‘‘July 1993 Approval Order’’); 33791 Secretariat, Office of Personnel (Mar. 21, 1994), 59 FR 14432 (Mar. 28, 1994) (File I. Self-Regulatory Organization’s No. SR–Amex–93–47) (‘‘1994 Approval Order’’); Management, Theodore Roosevelt Statement of the Terms of Substance of and 35310 (Jan. 31, 1995) 60 FR 7236 (Feb. 7, 1995) Building, 1900 E Street, NW., Room the Proposed Rule Change (File No. SR–Amex–95–01) (January 1995 Approval Order’’). 5315, Washington, DC 20415–0001, The Exchange requests permanent (202) 606–1000. 2 See January 1995 Approval Order, supra, note approval of the pilot program that 1. SUPPLEMENTARY INFORMATION: The amended Exchange Rule 109 to permit 3 An agreement to ‘‘stop’’ stock at a specified Council will receive reports on and a specialist, upon request, to grant stops price constitutes a guarantee by the member who discuss activities contained in the grants the stop that the order of the member who in a minimum fractional change accepts the stop will be executed at the stop price strategic action plan for 1995 that was 1 market. The text of the proposed rule or better. See Amex Rule 109(a). adopted at the January 10, 1995, 4 Amex Rule 127 sets forth the minimum meeting. Additionally, there will be a 1 The Amex received approval to amend Rule fractional changes for securities traded on the panel discussion of the Administration’s 109, on a pilot basis, in Securities Exchange Act Exchange. Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices 34563 market depth in a stock when a stop is IV. Solicitation of Comments I. Self-Regulatory Organization’s granted in a minimum fractional change Statement of the Terms of Substance of market. The Exchange believes that the Interested persons are invited to the Proposed Rule Change amendments to Rule 109 have provided submit written data, views, and arguments concerning the foregoing. The Exchange requests permanent a benefit to investors by providing an approval of its pilot program for stopped Persons making written submissions opportunity for price improvement, orders in minimum variation markets. should file six copies thereof with the while increasing market depth and The pilot was originally approved on Secretary, Securities and Exchange continuity without adversely affecting January 14, 1992.1 The first requested 5 Commission, 450 Fifth Street, N.W., orders on the specialist’s book. extension of the pilot was approved by Washington, D.C. 20549. Copies of the The Exchange is therefore proposing the Commission on March 10, 1993.2 permanent approval of the amendments submission, all subsequent The second requested extension of the to Rule 109. amendments, all written statements pilot was approved by the Commission with respect to the proposed rule 3 2. Statutory Basis on June 11, 1993. The third requested change that are filed with the extension of the pilot was approved by The proposed rule change is Commission, and all written the Commission on March 21, 1994.4 consistent with Section 6(b) of the Act communications relating to the The fourth requested extension of the in general and furthers the objectives of proposed rule change between the pilot was approved by the Commission Section 6(b)(5) in particular in that it is Commission and any person, other than on March 1, 1995.5 The pilot program is designed to promote just and equitable those that may be withheld from the set to expire on July 21, 1995. principles of trade, to remove public in accordance with the impediments to and perfect the provisions of 5 U.S.C. 552, will be II. Self-Regulatory Organization’s mechanism of a free and open market, available for inspection and copying at Statement of the Purpose of, and and, in general, to protect investors and the Commission’s Public Reference Statutory Basis for, the Proposed Rule the public interest. The Exchange Section, 450 Fifth Street, NW., Change believes that the proposed amendments Washington, DC 20549. Copies of such In its filing with the Commission, the to Rule 109 are consistent with these filing will also be available for self-regulatory organization included objectives in that they are designed to inspection and copying at the principal statements concerning the purpose of allow stops, in minimum fractional office of the Exchange. All submissions and basis for the proposed rule change markets, under limited circumstances should refer to File No. SR–Amex–95– and discussed any comments it received that provide for the possibility of price 14 and should be submitted by July 24, on the proposed rule change. The text improvement to customers whose orders 1995. of these statements may be examined at are granted stops. the places specified in Item IV below. For the Commission, by the Division of The self-regulatory organization has Market Regulation, pursuant to delegated B. Self-Regulatory Organization’s prepared summaries, set forth in authority. Statement on Burden on Competition Sections A, B, and C below, of the most The Exchange does not believe that Margaret H. McFarland, significant aspects of such statements. Deputy Secretary. the proposed rule change will impose A. Self-Regulatory Organization’s [FR Doc. 95–16399 Filed 6–30–95; 8:45 am] any inappropriate burden on Statement of the Purpose of, and competition. BILLING CODE 8010±01±M Statutory Basis for, the Proposed Rule C. Self-Regulatory Organization’s Change Statement on Comments on the 1. Purpose Proposed Rule Change Received From [Release No. 34±35910; File No. SR±CHX± Members, Participants, or Others 95±10] The purpose of the proposed rule change is to request permanent approval No written comments were either Self-Regulatory Organizations; Notice of the pilot program implemented to solicited or received. of Filing of Proposed Rule Change by establish a procedure regarding the III. Date of Effectiveness of the the Chicago Stock Exchange, execution of ‘‘stopped’’ market orders in Proposed Rule Change and Timing for Incorporated Relating to Permanent minimum variation markets (usually an Commission Action Approval of the Pilot Program for 1⁄8th spread market). In 1992, the Stopped Orders in Minimum Variations Within 35 days of the publication of Markets 1 See Securities Exchange Act Release No. 30189 this notice in the Federal Register or (Jan. 14, 1992), 57 FR 2621 (Jan. 22, 1992) (File No. within such other period (i) as the June 28, 1995. SR–MSE–91–10) (order approving MSE pilot Commission may designate up to 90 program for stopped orders in minimum variation Pursuant to Section 19(b)(1) of the markets) (‘‘1992 Approval Order’’). days of such date if it finds such longer Securities Exchange Act of 1934 2 See Securities Exchange Act Release No. 31975 period to be appropriate and publishes (‘‘Act’’), 15 U.S.C. 78s(b)(1), notice is (Mar. 10, 1993), 58 FR 14230 (Mar. 16, 1993) (File its reasons for so finding or (ii) as to No. SR–MSE–93–04) (order granting accelerated hereby given that on March 23, 1995, which the self-regulatory organization approval of extension of pilot program for stopped the Chicago Stock Exchange, consents, the Commission will: orders in minimum variation markets). Incorporated (‘‘CHX’’ or ‘‘Exchange’’) 3 See Securities Exchange Act Release No. 32457 (A) By order approve the proposed filed with the Securities and Exchange (June 11, 1993), 58 FR 33681 (June 18, 1993) (File rule change, or Commission (‘‘Commission’’) the No. SR–MSE–93–14) (order granting accelerated (B) Institute proceedings to determine approval of extension of pilot program). proposed rule change as described in whether the proposed rule change 4 See Securities Exchange Act Release No. 33790 Items I, II, and III below, which Items should be disapproved. (Mar. 21, 1994), 59 FR 14434 (Mar. 28, 1994) (File have been prepared by the self- No. SR–MSE–93–30) (order granting accelerated regulatory organization. The approval of extension of pilot program). 5 The Exchange has prepared periodic monitoring 5 See Securities Exchange Act Release No. 35431 reports regarding these matters which have been Commission is publishing this notice to (Mar. 1, 1995), 60 FR 12796 (Mar. 8, 1995) (File No. provided to the Commission during the course of solicit comments on the proposed rule SR–CHX–95–04) (order granting accelerated the pilot program. change from interested persons. approval of extension of pilot program). 34564 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices Exchange adopted interpretation and exhausted. In no event will a stopped Commission, 450 Fifth Street, NW., policy .03 to Rule 37 of Article XX on order be executed at a price inferior to Washington, DC 20549. Copies of the a pilot basis to permit ‘‘stopped’’ market the stopped price.10 The Exchange submission, all subsequent orders in minimum variation markets.6 believes that the proposed policy will amendments, all written statements Prior to the pilot program, no Exchange continue to benefit customers because with respect to the proposed rule rule required specialists to grant stops they might receive a better price than change that are filed with the in minimum variation markets if an out- the stop price, yet it also protects Commission, and all written of-range execution would result.7 Exchange specialists by eliminating communications relating to the Although the Exchange has a policy their exposure to executing potentially proposed rule change between the regarding the execution of stopped large amounts of pre-existing bids or Commission and any person, other than market orders generally, the Exchange offers when such executions would those that may be withheld from the believes it is necessary to establish a otherwise not be required under public in accordance with the separate policy for executing stopped Exchange rules. provisions of 5 U.S.C. § 552, will be market orders when there is a minimum available for inspection and copying at variation market. 2. Statutory Basis the Commission’s Public Reference The Exchange’s general policy The proposed rule change is Section, 450 Fifth Street, NW., regarding the execution of stopped consistent with Section 6(b)(5) of the Washington, DC 20549. Copies of such orders is to execute them based on the Act in that it is designed to promote just filing will also be available for next primary market sale. If this policy and equitable principles of trade. inspection and copying at the principal were used in a minimum variation office of the Exchange. All submissions B. Self-Regulatory Organization’s market, it would cause the anomalous should refer to File No. SR–CHX–95–10 Statement on Burden on Competition result of requiring the execution of all and should be submitted by July 24, pre-existing order even if those orders The Exchange does not believe that 1995. 8 are not otherwise entitled to be filled. the proposed rule change will impose For the Commission, by the Division of The Exchange’s proposed policy will any inappropriate burden on Market Regulation, pursuant to delegated prevent unintended results by competition. authority. continuing a pilot program for C. Self-Regulatory Organization’s Margaret H. McFarland, ‘‘stopped’’ market orders in minimum Deputy Secretary. variation markets.9 Specifically, the Statement on Comments on the [FR Doc. 95–16400 Filed 6–30–95; 8:45 am] pilot program requires the execution of Proposed Rule Change Received From stopped market orders in minimum Members, Participants, or Others BILLING CODE 8010-01±M variation markets after a transaction No written comments were either takes place on the primary market at the solicited or received. [Release No. 34±35908; File No. SR±NYSE± stopped price or worse (higher for buy 95±14] III. Date of Effectiveness of the orders and lower for sell orders), or after Proposed Rule Change and Timing for the applicable Exchange share volume is Self-Regulatory Organizations; Notice Commission Action of Filing of Proposed Rule Change by 6 See 1992 Approval Order, supra, note 1. Within 35 days of the publication of the New York Stock Exchange, Inc. 7 The term ‘‘out-of-range’’ means either higher or this notice in the Federal Register or Relating to the Permanent Approval of lower than the price range in which the security within such other period (i) as the Its Pilot Program for Stopping Stock traded on the primary market during a particular Under Amendments to Rule 116.30 trading day. Commission may designate up to 90 8 days of such date if it finds such longer For example, assume the market in ABC stock June 28, 1995. 1 8 1 8 period to be appropriate and publishes is 20–20 ⁄ ; 50 x 50 with ⁄ th being out of range. Pursuant to Section 19(b)(1) of the A customer places an order with the Exchange its reasons for so finding or (ii) as to Securities Exchange Act of 1934 specialist to buy 100 shares of ABC at the market which the self-regulatory organization and a stop is effected. The order is stopped at 201⁄8 (‘‘Act’’), 15 U.S.C. 78s(b)(1), notice is consents, the Commission will: and the Exchange specialist includes the order in hereby given that on March 31, 1995, (A) By order approve the proposed his quote by bidding the 100 shares at 20. If the next the New York Stock Exchange, Inc. sale on the primary market is for 100 shares at 20, rule change, or adopting the Exchange’s existing general policy to (B) Institute proceedings to determine (‘‘NYSE’’ or ‘‘Exchange’’) filed with the minimum variation markets would require the Securities and Exchange Commission specialist to execute the stopped market order at 20. whether the proposed rule change should be disapproved. (‘‘Commission’’) the proposed rule However, because the stopped market order does change as described in Items I, II, and not have time or price priority, its execution triggers the requirement for the Exchange specialist to IV. Solicitation of Comments III below, which Items have been execute all pre-existing bids (in this case 5,000 Interested persons are invited to prepared by the self-regulatory shares) based on the Exchange’s rules of priority submit written data, views, and organization. The Commission is and precedence. This is so even though the pre- publishing this notice to solicit existing bids were not otherwise entitled to be arguments concerning the foregoing. filled. Persons making written submissions comments on the proposed rule change In the above example, Exchange Rule 37 (Article should file six copies thereof with the from interested persons. XX) requires the Exchange specialist to fill orders Secretary, Securities and Exchange at the limit price only if such orders would have I. Self-Regulatory Organization’s been filled had they been transmitted to the primary Statement of the Terms of Substance of market. Therefore, the 100 share print at 20 in the 10 Exchange Rule 28 (Article XX) states: the Proposed Rule Change primary market would cause at the most 100 of the An agreement by a member or member 5,000 share limit order to be filled on the Exchange. organization to ‘‘stop’’ securities at a specified price The proposed rule change consists of However, the Exchange’s general policy regarding shall constitute a guarantee of the purchase or sale a request for permanent approval of stopped orders, if applied to minimum variation by him or it of the securities at the price or its amendments to Rule 116.30 with markets, would require the 100 share stopped equivalent in the amount specified. market order to be filled, and as a result, all pre- respect to the ability of specialists to If an order is executed at a less favorable price 1 existing bids at the same price to be filled in than that agreed upon, the member or member stop stock in eighth point markets. The accordance with Exchange Rule 16 (Article XX) organization which agreed to stop the securities (Precedence of Bids at Same Price). shall be liable for an adjustment of the difference 1 The NYSE received approval to amend Rule 9 See 1992 Approval Order, supra, note.1. between the two prices. 116.30, on a pilot basis, in Securities Exchange Act Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices 34565 text of the proposed rule change is point market).2 The Exchange sought 116.30 permanent is consistent with available at the Office of the Secretary, these amendments on the grounds that these objectives in that it permits the NYSE, and at the Commission. many orders would receive an improved Exchange to better serve its customers price if stopping stock in 1⁄8 point by enabling specialists to execute II. Self-Regulatory Organization’s markets were permitted. The Statement of the Purpose of, and customer orders at improved prices. amendments to Rule 116.30 permit a Statutory Basis for, the Proposed Rule specialist, upon request, to stop B. Self-Regulatory Organization’s Change individual orders of 2,000 shares or less, Statement on Burden on Competition In its filing with the Commission, the up to an aggregate of 5,000 shares of The Exchange does not believe that self-regulatory organization included multiple orders, in an 1⁄8 point market.3 the proposed rule change will impose statements concerning the purpose of A specialist may stop an order of a any inappropriate burden on and basis for the proposed rule change specified larger order size threshold, or competition. and discussed any comments it received a larger aggregate number of shares, after C. Self-Regulatory Organization’s on the proposed rule change. The text obtaining Floor Official approval. of these statements may be examined at In the Commission’s 1994 Approval Statement on Comments on the the places specified in Item IV below. Order, which extended the pilot until Proposed Rule Change Received from The self-regulatory organization has March 21, 1995, the Commission asked Members, Participants, or Others prepared summaries, set forth in the Exchange to submit a fourth The Exchange has neither solicited or Sections A, B, and C below, of the most monitoring report on the stopping stock received written comments on the significant aspects of such statements. pilot.4 Subsequently, the Commission proposed rule change.6 approved an extension of the pilot until A. Self-Regulatory Organization’s III. Date of Effectiveness of the July 21, 1995 so that the Commission Statement of the Purpose of, and Proposed Rule Change and Timing for would have additional time to evaluate Statutory Basis for, the Proposed Rule Commission Action the new information provided in the Change fourth monitoring report and to ensure Within 35 days of the publication of 1. Purpose that Rule 116.30, as amended, does not this notice in the Federal Register or The purpose of the proposed rule harm public customers with limit orders within such other period (i) as the 5 change is to seek permanent approval of on the specialist’s book. Commission may designate up to 90 amendments to Exchange Rule 116.30 The monitoring report has been days of such date if it finds such longer that permit a specialist to grant a stop submitted to the Commission under period to be appropriate and publishes in a minimum variation market. The separate cover. The Exchange believes its reasons for so finding or (ii) as to that the results obtained by its practice of ‘‘stopping’’ stock by which the self-regulatory organization monitoring effort during the pilot period specialists on the Exchange refers to a consents, the Commission will: show that the amendments to Rule guarantee by the specialist that an order (A) By order approve the proposed 116.30 enable specialists to better serve the specialist receives will be executed rule change, or investors through the ability to offer at no worse a price than the contra-side (B) Institute proceedings to determine price improvement to stopped orders, price in the market when the specialist whether the proposed rule change while having relatively little adverse receives the order, with the should be disapproved. impact on other orders on the book. The understanding that the order may in fact Exchange continues to believe that these IV. Solicitation of Comments receive a better price. results support the Commission’s Interested persons are invited to Formerly, Exchange Rule 116.30 granting of permanent approval of the submit written data, views, and permitted a specialist to ‘‘stop’’ stock proposed rule change to Rule 116.30. arguments concerning the foregoing. only when the quotation spread was at Persons making written submissions least twice the minimum variation (i.e., 2. Statutory Basis should file six copies thereof with the for most stocks 1⁄4 point), with the The basis under the Act for the Secretary, Securities and Exchange specialist then being required to narrow proposed rule change is the requirement Commission, 450 Fifth Street, N.W., the quotation spread by making a bid or under Section 6(b)(5) that an Exchange Washington, D.C. 20549. Copies of the offer, as appropriate, on behalf of the have rules that are designed to promote submission, all subsequent order that is being stopped. just and equitable principles of trade, to amendments, all written statements For three years, on March 21, 1991, remove impediments to, and perfect the March 16, 1992, and March 22, 1993, with respect to the proposed rule mechanism of a free and open market change that are filed with the the Commission approved, on a one- and, in general, to protect investors and year pilot basis each time, amendments Commission, and all written the public interest. The Exchange’s communications relating to the to the rule that permit a specialist to proposal to make the provisions of Rule stop stock in a minimum variation proposed rule change between the 1 Commission and any person, other than market (generally referred to as an ⁄8- 2 See 1991, 1992, and 1993 Approval Orders, those that may be withheld from the supra, note 1. Release No. 28999 (Mar. 21, 1991), 56 FR 12964 3 The NYSE has stated, both to the Commission public in accordance with the (Mar. 28, 1991) (File No. SR–NYSE–90–48) (‘‘1991 and to its members, that specialists should only provisions of 5 U.S.C. 552, will be Approval Order’’). The Commission subsequently stop stock in a minimum variation market when an available for inspection and copying at extended the NYSE’s pilot program in Securities imbalance exists on the opposite side of the market the Commission’s Public Reference Exchange Act Release Nos. 30482 (Mar. 16, 1992), and such imbalance is of sufficient size to suggest 57 FR 10198 (Mar. 24, 1992) (File No. SR–NYSE– the likelihood of price improvement. See, e.g., letter Section, 450 Fifth Street, N.W., 92–02) (‘‘1992 Approval Order’’); 32031 (Mar. 22, from James E. Buck, Senior Vice President and 1993), 58 FR 16563 (Mar. 29, 1993) (File No. SR– Secretary, NYSE, to Mary N. Revell, Branch Chief, 6 The Commission has received a negative NYSE–93–18) (‘‘1993 Approval Order’’); 33792 Division of Market Regulation, SEC, dated comment letter regarding permanent approval of the (Mar. 21, 1994), 59 FR 14437 (Mar. 28, 1994) (File December 27, 1990; NYSE information memo NYSE’s procedures for stopping stock in minimum No. SR–NYSE–94–06) (‘‘1994 Approval Order’’); #1809, dated September 12, 1991. variation markets. See letter from Junius W. Peake, and 35309 (Jan. 31, 1995) 60 FR 7247 (Feb. 7, 1995) 4 See 1994 Approval Order, supra, note 1. Monfort Professor of Finance, University of (File No. SR–NYSE–95–02) (‘‘January 1995 5 See January 1995 Approval Order, supra, note Northern Colorado, to Secretary, SEC, dated March Approval Order’’). 1. 1, 1995. 34566 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices Washington, D.C. 20549. Copies of such serving Applicants with a copy of the subaccount are credited to or charged filing will also be available for request, personally or by mail. Hearing against the assets held in that inspection and copying at the principal requests must be received by the subaccount in accordance with the office of the Exchange. All submissions commission by 5:30 p.m. on July 21, terms of the Contracts, without regard to should refer to File No. SR–NYSE–95– 1995, and should be accompanied by other income, gains or losses of any 14 and should be submitted by July 24, proof of service on Applicants in the other subaccount or arising out of any 1995. form of an affidavit or, for lawyers, a other business Anchor National may For the Commission, by the Division of certificate of service. Hearing requests conduct. Market Regulation, pursuant to delegated should state the nature of the writer’s 6. The Contracts are available for authority. interest, the reason for the request, and retirement plans which do not qualify Margaret H. McFarland, the issues contested. Persons may for the special federal tax advantages Deputy Secretary. request notification of a hearing by available pursuant to the International [FR Doc. 95–16398 Filed 6–30–95; 8:45 am] writing to the Secretary of the Revenue Code and for retirement plans Commission. which do qualify for the federal tax BILLING CODE 8010±01±M ADDRESSES: Secretary, Securities and advantages available pursuant to the Exchange Commission, 450 5th Street Internal Revenue Code. The Contracts [Rel. No. IC±21165; No. 812±9392] NW., Washington, DC 20549. provide for the accumulation of contract Applicants, Susan L. Harris, Esq., values and payment of annuity benefits Anchor National Life Insurance SunAmerica Inc., 1 SunAmerica Center, on a fixed and variable basis. Company, et al. Century City, Los Angles, California 7. Purchase payments under the June 26, 1995. 90067–6022. Contracts may be made to the general account of Anchor National under one AGENCY: Securities and Exchange FOR FURTHER INFORMATION CONTACT: Commission (‘‘Commission’’). Kevin M. Kirchoff, Senior Counsel, or of the Contracts’ fixed account options (the ‘‘Fixed Account’’), the Variable ACTION: Notice of application for an Patrice M. Pitts, Special Counsel, Office of Insurance Products (Division of Account, or allocated between them. order pursuant to the Investment The minimum initial purchase payment Company Act of 1940 (the ‘‘1940 Act’’). Investment Management), at (202) 942– 0670. for a Contract issued on a qualified or non-qualified basis is $50,000 and APPLICANTS: Anchor National Life SUPPLEMENTARY INFORMATION: The Insurance Company (‘‘Anchor following is a summary of the additional purchase payments may be National’’), Variable Annuity Account application; the complete application is made in amounts of at least $500. Four (the ‘‘Variable Account’’), and available for a fee from the Public 8. If the contract owner dies during SunAmerica Capital Services, Inc. Reference Branch of the Commission. the accumulation period, a death benefit (‘‘SunAmerica’’). will be payable to the beneficiary upon Applicants’ Representations receipt by Anchor National of due proof RELEVANT 1940 ACT SECTIONS: Order of death. The standard death benefit is requested pursuant to Section 6(c) of the 1. Anchor National is a stock life equal to the greater of: 1940 Act for exemptions from the insurance company incorporated under (1) The contract value at the end of provisions of Sections 26(a)(2)(C) and the laws of the State of California. the valuation period during which due 27(c)(2) thereof. 2. SunAmerica will serve as distributor of the Contracts. SunAmerica proof of death (and an election of the SUMMARY OF APPLICATION: Applicants is registered as a broker-dealer pursuant type of payment to the beneficiary) is seek an order permitting the deduction to the Securities Exchange Act of 1934. received by Anchor National; or of mortality and expense risk and 3. The Variable Account was (2) The total dollar amount of distribution expense risk charges from: established by Anchor National as a purchase payments, minus the sum of: the assets of the Variable Account in separate investment account on (a) The total amount of any partial connection with the offer and sale of November 8, 1994, to act as a funding withdrawals and partial annuitizations, certain flexible payment deferred medium for variable annuity contracts. and annuity contracts (‘‘Existing Contracts’’) The Variable Account is registered (b) Premium taxes incurred. and any annuity contracts substantially pursuant to the 1940 Act as a unit 9. Where permitted by state law, similar in all material respects to the investment trust. Anchor National will provide an Existing Contracts (‘‘Future Contracts,’’ 4. The Variable Account presently enhanced death benefit. During the first together with Existing Contracts, the consists of eighteen subaccounts, each seven contract years, the enhanced ‘‘Contracts’’) which may be sold in the of which will invest in the shares of one death benefit is determined by future by the Variable Account; or the of four available separate investment recomputing the standard death benefit assets of any other separate account series of the Anchor Series Trust or one by accumulating all amounts under (2) (‘‘Future Accounts,’’ together with the of fourteen available separate above annually at 4% (3% if the Variable Account, the ‘‘Accounts’’) investment series of the SunAmerica contract owner was age 70 or order on established in the future by Anchor Series Trust. Additional underlying the date of issue) to the date of death. National in connection with the funds may become available in the After the seventh contract year, the issuance of Future Contracts. future. Both the Anchor Series Trust enhanced death benefit is the greater of FILING DATE: The application was filed and the SunAmerica Series Trust are the amount recomputed as above, or the on December 21, 1994, and amended on registered pursuant to the 1940 Act as following: June 16, 1995. diversified, open-end, management The contract value at the seventh HEARING OR NOTIFICATION OF HEARING: An investment companies. contract anniversary, plus any purchase order granting the application will be 5. The Variable Account and each of payments made since that anniversary, issued unless the Commission orders a its subaccounts is administered and minus the sum of: hearing. Interested persons may request accounted for as part of the general (1) The total amount of partial a hearing on the application by writing business of Anchor National, but the withdrawals and partial annuitizations to the Secretary of the Commission and income, gains or losses of each since such seventh anniversary, and Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices 34567 (2) Premium taxes incurred since the allocated first to investment income, if deducted from each subaccount of the seventh anniversary, all accumulated any (which generally may be withdrawn Variable Account during each valuation annually at 4% (3% if the contract free of withdrawal charge), and then to period at an annual rate of 0.35% of the owner was age 70 or older on the date purchase payments on a first-in, first- net asset value of each portfolio. If the of issue) to the date of death. out basis so that all withdrawals are expense risk charge is insufficient to 10. During the accumulation period, allocated to purchase payments to cover the actual cost of administering amounts allocated to the Variable which the lowest (if any) withdrawal the Contracts, Anchor National will bear Account may be transferred among the charge applies. the loss; however, if the charge is more portfolios and/or the Fixed Account. 14. Anchor National deducts a than sufficient, the excess will be a Both prior to and after the annuity date, distribution expense risk charge from profit for Anchor National. To the extent contract values may be transferred from each portfolio of the Variable Account that Anchor National realizes any such the Variable Account to the Fixed during each valuation period which is profit, it may be used at its discretion, Account. Any amounts allocated or equal, on an annual basis, to 0.15% of including for offsetting losses when the transferred to the Fixed Account may be the net asset value of each portfolio. expense risk charge is insufficient. The transferred from the Fixed Account to This charge is designed to compensate expense risk charge may not be the Variable Account only on or before Anchor National for assuming the risk increased under the Contract. the annuity date. The first fifteen that the cost of distributing the transactions effecting such transfers in Contracts will exceed the revenues from Applicants’ Legal Analysis and any contract year are permitted without the withdrawal charge. In no event will Conditions the imposition of a transfer fee. A this charge be increased. The 1. Applicants request an order transfer fee of $25 ($10 in Pennsylvania distribution expense risk charge is pursuant to Section 6(c) of the 1940 Act and Texas) is assessed on the sixteenth assessed during both the accumulation exempting them from Sections and each subsequent transfer within the period and the annuity period, but it is 26(a)(2)(C) and 27(c)(2) thereof to the contract year. This fee will be deducted not applied to contract values allocated extent necessary to permit the from contract values which remain in to the Fixed Account. deduction of mortality and expense risk the subaccount (or the Fixed Account) 15. The annuity rates may not be and distribution expense risk charges from which the transfer was made. If changed under the Contracts. For (1) from the assets of the Accounts in such remaining contract value is assuming the risk that the life connection with the issue and sale of insufficient to pay the transfer fee, then expectancy of an annuitant will be the Contracts. the fee will be deducted from greater than that assumed in the 2. Pursuant to Section 6(c) of the 1940 transferred contract values. Applicants guaranteed annuity purchase rates, (2) Act the Commission may, by order upon represent that the transfer fee is at cost waiving the withdrawal charge in the application, conditionally or with no anticipation of profit. event of the death of the contract owner, unconditionally exempt any person, 11. Although there is a ‘‘free and (3) providing both a standard and security, or transaction, or any class or withdrawal’’ amount, a contingent enhanced death benefit prior to the classes of persons, securities or deferred sales charge, which is referred annuity date, Anchor National deducts transactions, from any provision or to as the withdrawal charge, may be a mortality risk charge from the Variable provisions of the 1940 Act or from any imposed upon certain withdrawals. Account. The charge is deducted from rule or regulation thereunder, if and to Withdrawal charges will vary in amount each subaccount of the Variable the extent that such exemption is depending upon the contribution year of Account during each valuation period at necessary or appropriate in the public the purchase payment at the time of an annual rate of 1.02% of the net asset interest and consistent with the withdrawal. During the first nine value of each subaccount. The portion protection of investors and the purposes contribution years the withdrawal of the total mortality risk charge fairly intended by the policy and charge percentage will be 0.75%. During attributable to Anchor National’s provisions of the 1940 Act. the tenth and subsequent contribution assuming (1) and (2) above and 3. Sections 26(a)(2)(C) and 27(c)(2) of years there will be no withdrawal providing a standard death benefit is the 1940 Act, in pertinent part, prohibit charge. 0.90%, the balance of 0.12% is assessed a registered unit investment trust and 20. Anchor National currently intends for providing the enhanced death any depositor thereof or underwriter to deduct premium taxes at the time of benefit. therefor from selling periodic payment surrender, upon death of the contract 16. If the mortality risk charge is plan certificates unless the proceeds of owner or upon annuitization. Anchor insufficient to cover the actual costs of all payments (other than sales load) are National reserves the right, however, to assuming the mortality risks, Anchor deposited with a qualified bank as deduct premium taxes when they are National will bear the loss. If the charge trustee or custodian and are held under incurred. Some states assess premium proves more than sufficient, the excess arrangements which prohibit any taxes at the time purchase payments are will be a profit for Anchor National. To payment to the depositor or principal made. Other states assess premium taxes the extent Anchor National realizes any underwriter except a fee, not exceeding at the time of surrender or when annuity such profit, it may be used at its such reasonable amount as the payments begin. Premium taxes range discretion, including for offsetting Commission may prescribe, for from 0% to 3% in the jurisdictions in losses experienced when the mortality performing bookkeeping and other which Anchor National anticipates that risk charge is insufficient. The mortality administrative services of a character the Contracts will be sold. risk charge may not be increased under normally performed by the bank itself. 13. The withdrawal charge is the Contracts. 4. Applicants submit that their deducted from remaining contract 17. There is no annual contract charge request for exemptive relief for values so that the actual reduction in imposed by Anchor National to help deduction of the mortality and expense contract value as a result of the defray the costs of administering the risk and distribution expense risk withdrawal will be greater than the Contracts. However, Anchor National charges from the assets of the Accounts withdrawal amount requested and paid. deducts an expense risk charge from the in connection with the issue and sale of For purposes of determining the Variable Account to cover such the Contracts would promote withdrawal charge, withdrawals will be administrative costs. The charge is competitiveness in the variable annuity 34568 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices contract market by eliminating the need assumed by Anchor National. For the Commission, by the Division of for redundant exemptive applications, Applicants represent that Anchor Investment Management, pursuant to thereby reducing Applicants’ National will maintain and make delegated authority. administrative expenses and available to the Commission upon Margaret H. McFarland, maximizing the efficient use of their request a memorandum setting forth the Deputy Secretary. resources. Applicants further submit basis of such conclusion. [FR Doc. 95–16210 Filed 6–30–95; 8:45 am] that the delay and expense involved in BILLING CODE 8010±01±M having repeatedly to seek exemptive 8. Anchor National has concluded relief would impair their ability that there is a reasonable likelihood that effectively to take advantage of business the Variable Account’s distribution [Rel. No. IC±21164; 812±9508] opportunities as they arise. Further, if financing arrangement will benefit the Variable Account and its investors. Kansas City Life Insurance Company, Applicants were required repeatedly to et al. seek exemptive relief with respect to the Anchor National represents that it will same issues addressed in this maintain and make available to the June 26, 1995. application, investors would not receive Commission upon request a AGENCY: Securities and Exchange any benefit or additional protection. memorandum setting forth the basis of Commission (‘‘SEC’’). Thus, Applicants believe that the such conclusion. ACTION: Notice of application for requested exemptions are appropriate in 9. Applicants represent that, prior to exemption under the Investment the public interest and consistent with relying on exemptive relief resulting Company Act of 1940 (the ‘‘Act’’). the protection of investors and purposes from this application in connection with fairly intended by the policy and APPLICANTS: Kansas City Life Insurance Future Contracts funded through the provisions of the 1940 Act. Company (‘‘Kansas City Life’’), Kansas 5. Applicants assert that the mortality Accounts, Applicants will determine City Life Variable Annuity Separate and expense risk charge of 1.25% that there is a reasonable likelihood that Account (the ‘‘Separate Account’’), and (which includes all risk charges the distribution financing arrangement Sunset Financial Services, Inc. (‘‘Sunset imposed under the Existing Contracts will benefit the Variable Account and its Financial’’). with the exception of the 0.12% risk investors or Future Accounts and their RELEVANT ACT SECTIONS: Order requested charge for the enhanced death benefit) investors. Anchor National represents under section 6(c) of the Act that would is reasonable in relation to the risks that it will maintain and make available exempt applicants from sections assumed by Anchor National under the to the Commission upon request a 26(a)(2)(C) and 27(c)(2) of the Act. Existing Contracts and reasonable in memorandum setting forth the basis of SUMMARY OF APPLICATION: Applicants amount as determined by industry such conclusion. request an order to permit them to practice with respect to comparable 10. Anchor National represents that deduct a mortality and expense risk annuity products. Applicants state that the assets of the Variable Account and charge from the assets of the Separate these determinations are based on their any Future Accounts will be invested Account or any other separate account analysis of publicly available (‘‘Other Accounts’’) that Kansas City information about similar industry only in management investment companies which undertake, in the Life may establish in the future to practices, and on consideration of such support certain individual flexible factors as current charge levels and event they should adopt a plan for financing distribution expenses premium payment deferred variable benefits provided, the existence of annuity contracts (‘‘Contracts’’) as well expense charge guarantees and pursuant to Rule 12b–1 under the 1940 Act, to have such plan formulated and as other variable annuity contracts guaranteed annuity rates. Anchor offered in the future that are similar in approved by their board of directors, the National undertakes to maintain at its all material respects to the Contracts majority of whom are not ‘‘interested home office a memorandum, available (‘‘Future Contracts’’). to the Commission upon request, setting persons’’ of the management investment FILING DATES: The application was filed forth in detail the methodology used in company within the meaning of Section on March 3, 1995, and amended on June making these determinations. 2(a)(19) of the 1940 Act. 6. Applicants assert that the mortality 8, 1995. 11. Applicants represent that the risk charge of 0.12% for the enhanced HEARING OR NOTIFICATION OF HEARING: An death benefit is reasonable in relation to amount of any withdrawal charge order granting the application will be the risks assumed by Anchor National imposed under the Contracts, when issued unless the SEC orders a hearing. under the Existing Contracts for the added to any distribution expense risk Interested persons may request a enhanced death benefit. Anchor charge previously paid thereunder, will hearing by writing to the SEC’s National undertakes to maintain at its not exceed 9% of purchase payments, Secretary and serving applicants with a home office a memorandum, available and that Anchor National will monitor copy of the request, personally or by to the Commission upon request, setting the account of each Contract owner to mail. Hearing requests should be forth in detail the methodology used in ensure that this limitation is not received by the SEC by 5:30 p.m. on July making this determination. exceeded. 18, 1995 and should be accompanied by 7. Applicants represent that, prior to proof of service on applicants, in the relying on exemptive relief resulting Conclusion form of an affidavit or, for lawyers, a certificate of service. Hearing requests from this application in connection with For the reasons summarized above, should state the nature of the writer’s Future Contracts funded through the Applicants represent that the interest, the reason for the request, and Accounts, Applicants will determine exemptions requested are necessary and that any mortality and expense risk the issues contested. Persons may appropriate in the public interest and charges under such contracts are request notification of a hearing by consistent with the protection of reasonable in amount as determined by writing to the SEC’s Secretary. investors and the purposes fairly industry practice with respect to ADDRESSES: Secretary, SEC, 450 5th comparable annuity products and/or intended by the policy and provisions of Street NW., Washington, D.C. 20549. reasonable in relation to the risks the 1940 Act. Applicants, Kansas City Life Insurance Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices 34569 Company, Kansas City Life Variable (‘‘Contract Value’’) is the sum of the owner surrenders part to the Contract, Annuity Separate Account, 3520 value of the Contract’s investments in the Surrender Charge will be deducted Broadway, Kansas City, Missouri the Separate Account and the Fixed from the amount surrendered or from 64141–6139, Sunset Financial Services, Account. the remaining Contract Value, according Inc. 3200 Capital Boulevard South, 5. The Contracts provide for a death to the owner’s instructions. Olympia, Washington 98501–3396. benefit if the annuitant dies before the 8. An owner may participate in a FOR FURTHER INFORMATION CONTACT: maturity date. The death benefit is equal systemic partial surrender plan whereby Sarah A. Buescher, Staff Attorney, at to the greater of: (i) the guaranteed death the owner instructs Kansas City Life to (202) 942–0573, or C. David Messman, benefit less any indebtedness; and (ii) surrender a requested dollar amount on Branch Chief, at (202) 942–0564 the Contract Value less any a periodic basis. If an owner does not (Division of Investment Management, indebtedness on the date applicants participate in the plan, the first partial Office of Investment Company receive proof of the annuitant’s death. surrender during a Contract Year will Regulation). The guaranteed death benefit is equal to not be subject to a Surrender Charge if the initial premium payment plus any it does not exceed 10% of the Contract SUPPLEMENTARY INFORMATION: The subsequent premium payments. Any Value at the time of the surrender. This following is a summary of the partial surrender will decrease the free partial surrender is limited to the application. The complete application guaranteed death benefit by the same first partial surrender of the Contract may be obtained for a fee at the SEC’s percentage that the surrender decreases Year, even if the amount surrendered is Public Reference Branch. the Contract Value. less than 10% of the Contract Value. Applicants’ Representations 6. Before the maturity date, the owner Upon a full surrender, if the owner has may request a transfer of all or part of not elected to participate in the systemic 1. Kansas City Life is a stock life the amount in a subaccount or the Fixed partial surrender plan and has not insurance company organized in Account to another subaccount or to the received any partial surrenders during a Missouri and licensed to do business in Fixed Account. The total amount Contract Year, only 90% of the Contract 45 states and the District of Columbia. transferred each time must be at least Value will be subject to a Surrender 2. The Separate Account is a separate $250, or the entire amount in the Charge. If the owner participates in the investment account established by subaccount or the Fixed Account, if less systemic partial surrender plan, up to Kansas City Life to fund variable than $250. Only one transfer from the 10% of the Contract Value may be annuity contracts. Kansas City Life is Fixed Account may be made in each 12- surrendered each Contract Year without the depositor and sponsor of the month period beginning on the date the a Surrender Charge. Once the amount of Separate Account. The Separate Contract is issued (‘‘Contract Year’’), the surrender exceeds the 10% limit, the Account is registered as a unit and that transfer may not be for more applicable Surrender Charge will be investment trust under the Act. Units of than 25% of the unloaned value of the deducted from the remaining Contract interest in the Separate Account will be Fixed Account. The first six transfers Value. registered under the Securities Act of each Contract Year are free. Kansas City 9. An annual administration fee of 1933. The Separate Account is currently Life will assess a $25 transfer processing $30 will be deducted from the Contract divided into eleven subaccounts. Each fee for subsequent transfers. Kansas City Value for administrative expenses at the subaccount will invest exclusively in Life does not expect a profit from this beginning of each Contract Year. the shares of an investment portfolio of fee, which is guaranteed and cannot be Applicants will waive this fee for one of three registered investment increased. Applicants rely on rule 26a– Contracts with Contract Values of companies. 1 to deduct this fee.1 $50,000 or more at the beginning of the 3. Sunset Financial, an indirect 7. Applicants will charge a contingent Contract Year. No annual administration wholly-owned subsidiary of Kansas City deferred sales charge (‘‘Surrender fee is payable after the maturity date of Life, will serve as the distributor and Charge’’) for certain withdrawals. The the Contract. Prior to the maturity date principal underwriter for the Contracts. amount of the Surrender Charge is as of a Contract, Kansas City Life also will Sunset Financial is registered under the follows: deduct a daily asset-based Securities Exchange Act of 1934 as a administration charge from the assets of broker-dealer and is a member of the Charge the Separate Account at an annual rate National Association of Securities as per- of .15%. Applicants represent that the centage Dealers, Inc. Contract year in which surrender of annual administration fee and the asset- 4. The Contracts are individual occurs amount based administration charge are flexible premium deferred variable surren- guaranteed and will not increase. In annuity contracts. They may be dered addition, applicants represent that they purchased on a non-tax qualified basis 1 ...... 7 do not expect to make a profit from or in connection with retirement plans 2 ...... 7 these charges. Applicants will rely on entitled to special federal income tax 3 ...... 7 rule 26a–1 to deduct these fees. treatment. The Contracts require a 4 ...... 6 10. Prior to the maturity date, Kansas minimum initial premium of $5,000 or 5 ...... 5 City Life proposes to deduct a daily annualized payments of $600. The 6 ...... 4 mortality and expense risk charge from minimum subsequent premium 7 ...... 2 the assets of the Separate Account. The payment is $50. Contract owners may 8 and after ...... 0 aggregate mortality and expense risk allocate premium payments to one or charge will be equal to an annual rate more subaccounts of the Separate If the owner surrenders the entire of 1.25%. Of that amount, Account and to the Fixed Account, Contract, the Surrender Charge will be approximately .70% is for mortality risk which is part of Kansas City Life’s deducted from the Contract Value. If the and .55% is for expense risk. Kansas General Account. Premium payments City Life assumes the mortality risk that 1 Rule 26a–1 allows for payment of a fee for allocated to the Fixed Account will be bookkeeping and other administrative expenses annuitants may live for a longer period credited with a predetermined rate of provided that the fee is no greater than the cost of than estimated when the guarantees in interest. The value of a Contract the services provided, without profit. the Contract were established, thus 34570 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices requiring Kansas City Life to pay out and any Other Account. Applicants memorandum at its home office setting more in annuity income than it had represent that these additional requests forth the basis of such conclusion. planned. Kansas City Life also assumes for exemptive relief would present no 8. Prior to relying on any exemptive a mortality risk in that it may be issues under the Act not already relief granted herein with respect to obligated to pay a death benefit in addressed in this application, and that Future Contracts issued by the Separate excess of the Contract Value. The investors would not receive any benefit Account or Other Accounts, applicants expense risk assumed by Kansas City or additional protections thereby. will determine that there is a reasonable Life is that the other fees may be 4. Applicants represent that the likelihood that the distribution insufficient to cover actual expenses. requested relief is appropriate in the financing arrangement will benefit the 11. If the mortality and expense risk public interest, because it would Separate Account, Other Accounts, and charge is insufficient to cover the actual promote competitiveness in the variable their investors. Kansas City Life will cost of the risks, Kansas City Life will annuity contract market by eliminating maintain and make available to the bear the shortfall. Conversely, if the the need for applicants to file redundant Commission upon request a charge is more than sufficient, the exemptive applications, thereby memorandum at its home office setting excess will be profit to Kansas City Life reducing their administrative expenses forth the basis of such conclusion. and will be available for any proper and maximizing the efficient use of 9. The Separate Account will invest in corporate purpose. resources. Elimination of the delay and a management investment company that 12. If premium taxes are applicable to expense involved in repeatedly seeking has adopted a plan pursuant to rule a Contract, they will be deducted upon exemptive relief would enhance 12b–1 under the Act only if that surrender of the Contract or upon applicants’ ability effectively to take company has undertaken to have such application of the Contract proceeds to advantage of business opportunities as plan formulated and approved by its an annuity payment option or lump sum they arise. Applicants further represent board of directors, a majority of whom payment at the maturity date. that their requested relief is consistent are not ‘‘interested persons’’ of the Applicants’ Legal Analysis with the protection of investors and the company within the meaning of section 1. Applicants request an exemption purposes fairly intended by the policy 2(a)(19) of the Act. pursuant to section 6(c) from sections and provisions of the Act. For the Commission, by the Division of 26(a)(2)(C) and 27(c)(2) to the extent 5. Applicants represent that the Investment Management, pursuant to necessary to permit the deduction from 1.25% per annum mortality and delegated authority. the Separate Account and Other expense risk charge is within the range Margaret H. McFarland, Accounts that Kansas City Life may of industry practice for comparable Deputy Secretary. establish in the future of the 1.25% variable annuity contracts. This [FR Doc. 95–16211 Filed 6–30–95; 8:45 am] Mortality and Expense Risk Charge. representation is based on an analysis of BILLING CODE 8010±01±M Sections 26(a)(2)(C) and 27(c)(2) of the publicly available information regarding Act, in relevant part, prohibit a similar contracts of other companies, registered unit investment trust, its taking into consideration such features depositor or principal underwriter, from as current charge levels, death benefit SMALL BUSINESS ADMINISTRATION selling periodic payment plan guarantees, and investment options under the Contracts. Kansas City Life [Declaration of Economic Injury Disaster certificates unless the proceeds of all Loan Area #8546] payments, other than sales loads, are will maintain at its home office, and make available to the SEC upon request, deposited with a qualified bank and Virginia (And a Contiguous County in a memorandum setting forth in detail held under arrangements which prohibit North Carolina); Declaration of the products analyzed and the any payment to the depositor or Disaster Loan Area principal underwriter except a methodology and results of applicants’ reasonable fee, as the Commission may comparative review. Henry County and the contiguous prescribe, for performing bookkeeping 6. Prior to relying on any exemptive counties of Franklin, Patrick, and and other administrative duties relief granted herein with respect to Pittsylvania, and the independent City normally performed by the bank itself. Future Contracts issued by the Separate of Martinsville in the Commonwealth of 2. Section 6(c) of the Act authorizes Account or Other Accounts, applicants Virginia, and Rockingham County in the the Commission to exempt any person will determine that the mortality and State of North Carolina constitute an from any provision of the Act or any expense risk charge will be within the economic injury disaster area as a result rule or regulation thereunder, if and to range of industry practice for of damages caused by a fire in the City the extent that such exemption is comparable contracts. Kansas City Life of Martinsville which occurred on April necessary or appropriate in the public will maintain at its home office a 25, 1995. Eligible small businesses interest and consistent with the memorandum, available to the without credit available elsewhere and protection of investors and the purposes Commission upon request, setting forth small agricultural cooperatives without fairly intended by the policy and the methodology used in making these credit available elsewhere may file provisions of the Act. determinations. applications for economic injury 3. Applicants also request relief with 7. Kansas City Life acknowledges that assistance until the close of business on respect to Future Contracts that may be distribution expenses may be paid from March 28, 1996, at the address listed issued from the Separate Account and profits derived from the mortality and below: U.S. Small Business Other Accounts. Applicants represent expense risk charges. Kansas City Life Administration, Disaster Area 1 Office, that the terms of the relief requested has concluded that there is a reasonable 360 Rainbow Blvd. South, 3rd Floor, with respect to any Future Contracts are likelihood that the proposed Niagara Falls, NY 14303, or other locally consistent with the standards of section distribution financing arrangement will announced locations. The interest rate 6(c) of the Act. Without the requested benefit the Separate Account and the for eligible small businesses and small relief, applicants represent that they Contract owners. Kansas City Life will agricultural cooperatives is 4 percent. would have to request and obtain maintain and make available to the The economic injury number for the exemptive relief for Future Contracts Commission upon request a State of North Carolina is 854700. Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices 34571 (Catalog of Federal Domestic Assistance and recordkeeping requirements. OMB Administration: National Highway Program No. 59002.) approval of an information collection Traffic Safety Administration. Dated: June 28, 1995. requirement must be renewed at least Title: Owner’s Manual Cassandra M. Pulley, once every three years. Requirements—Motor Vehicle and Motor Vehicle Equipment. Deputy Administrator. Items Submitted to OMB for Review [FR Doc. 95–16299 Filed 6–30–95; 8:45 am] Need for Information: Title 49 USC The following information collection BILLING CODE 8025±01±M 30117 authorizes the Secretary of requests were submitted to OMB on Transportation to require that June 23, 1995: manufacturers provide technical DOT No: 4068. DEPARTMENT OF TRANSPORTATION information related to the performance OMB No: 2138–0041. and safety specified in the Federal Office of the Secretary Administration: Research and Special Motor Vehicle Safety Standards for the Programs Administration. purposes of educating the consumer and Reports, Forms, and Recordkeeping Title: Airline Service Quality providing safeguards against improper Requirements Performance. use. Need for Information: Title 14 CFR Proposed Use of Information: The AGENCY: Department of Transportation part 234 prescribes the requirements for information will be used to inform (DOT), Office of the Secretary. airline service quality performance vehicle owners and passengers about ACTION: Notice. reports. the proper use of the vehicle or Proposed Use of Information: The equipment. SUMMARY: This notice lists those forms, information will be used to produce Frequency: On occasion. reports, and recordkeeping requirements consumer reports for the travelling Burden Estimate: 1,095 hours. imposed upon the public which were public and for air traffic control Respondents: Businesses, small transmitted by the Department of modeling. businesses. Transportation to the Office of Frequency: Monthly. Form(s): None. Management and Budget (OMB) for its Burden Estimate: 2,340 hours. Average Burden Hours Per Response: approval in accordance with the Respondents: Large scheduled 120 minutes. requirements of the Paperwork passenger airlines. Reduction Act of 1980 (44 U.S.C. Form(s): None. DOT No: 4071. Chapter 35). Average Burden Hours Per Response: OMB No: 2127–0039. Administration: National Highway DATES: 20 hours. June 23, 1995. Traffic Safety Administration. DOT No: 4069. ADDRESSES: Written comments on the Title: Petitions for Hearings on OMB No: 2120–0057. DOT information collection requests Notifications and Remedy on Defects. should be forwarded, as quickly as Administration: Federal Aviation Administration. Need for Information: Title 49 USC possible, to Edward Clarke, Office of 30118 and 30120 establish procedures Management and Budget, New Title: Safety Improvement Report/ Accident Prevention Counselor Activity for any person to petition NHTSA for a Executive Office Building, Room 10202, hearing to determine whether a Washington, D.C. 20503. If you Reports. Need for Information: Title 49 USC manufacturer has met its obligation to anticipate submitting substantive notify vehicle owners, purchasers and comments, but find that more than 10 44701(a)(2)(c) authorizes the Secretary of Transportation to exercise and dealers of a defect or noncompliance days from the date of publication are with safety standards, and whether the needed to prepare them please notify perform his or her powers and duties under the law in such manner as will remedy had been satisfactory. the OMB official of your intent Proposed Use of Information: The immediately. best tend to reduce or eliminate the possibility or recurrence of accidents in information will be used to ensure that FOR FURTHER INFORMATION CONTACT: air transportation or other commerce. a manufacturer meets its obligation to Copies of the DOT information Proposed Use of Information: The notify owners, purchasers and dealers of collection requests submitted to OMB information collected on Form 8740–5 any safety-related defects or may be obtained from Susan Pickrel or will be used by the public to alert FAA noncompliance and to remedy the Annette Wilson, Information Resource of conditions that may be hazardous to problems by repair, repurchase or Management (IRM) Strategies Division, flight safety. Once noted by the FAA, replacement. M–32, Office of the Secretary of hazardous conditions can be corrected. Frequency: On occasion. Transportation, 400 Seventh Street, The information collected on Form Burden Estimate: 21 hours. S.W., Washington, D.C. 20590, (202) 8740–6 will provide information used to Respondents: Individuals. 366–4735. document and support the activities of Form(s): None. SUPPLEMENTARY INFORMATION: Section approximately 3,777 volunteer Accident Average Burden Hours Per Response: 3507 of Title 44 of the United States Prevention Counselors who constitute a 60 minutes. Code, as adopted by the Paperwork major resource of the Accident DOT No: 4072. Reduction Act of 1980, requires that Prevention Program. OMB No: 2127–0025. agencies prepare a notice for publication Frequency: As required. Administration: National Highway in the Federal Register, listing those Burden Estimate: 4,614 hours. Traffic Safety Administration. information collection requests Respondents: Individuals, Title: Confidential Business submitted to OMB for approval or governments. Information. renewal under that Act. OMB reviews Form(s): FAA Forms 8740–5 and Need for Information: Title 49 CFR and approves agency submissions in 8740–6. Part 512 establishes procedures to be accordance with criteria set forth in that Average Burden Hours Per Response: followed by vehicle and equipment Act. In carrying out its responsibilities, 6 minutes. manufacturers when they are requesting OMB also considers public comments DOT No: 4070. confidential treatment of information on the proposed forms and the reporting OMB No: 2127–0541. they have submitted to NHTSA. 34572 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices Proposed Use of Information: This SUPPLEMENTARY INFORMATION: The Executive Assistant, Commandant (G– collection will be used to ensure that Department of Transportation MTH–1), U.S. Coast Guard, 2100 Second confidential information submitted to announces the availability for public Street, SW, Washington, DC 20593– NHTSA is accorded the proper inspection of documents pertaining to 0001, telephone (202) 267–1217. treatment. the activities of the LTSS and its Dated: June 26, 1995. Frequency: On occasion. working groups in Docket no. OST–95– G.N. Naccara, Burden Estimate: 600 hours. 246. In addition to certain DOT- Captain, U.S. Coast Guard Acting Chief, Respondents: Motor vehicle generated documents and joint reports Office of Marine Safety, Security and manufacturers. resulting from consultations among the Environmental Protection. Form(s): None. United States, Canada, and Mexico, all [FR Doc. 95–16297 Filed 6–30–95; 8:45 am] Average Burden Hours Per Response: LTSS-related statements received by BILLING CODE 4910±14±M 12 minutes. DOT from industry associations, DOT No: 4073. transportation labor unions, brokers, OMB No: 2132–0008. shippers, public safety advocates, and Federal Aviation Administration Administration: Federal Transit others will be available for review at the Administration. address below, between 9:00 a.m and Approval of Noise Compatibility Title: National Transit Database. Program Need for Information: Title 49 USC 5:00 p.m., e.t., Monday through Friday, except national holidays. The 5335 establishes a reporting system to Palm Beach International Airport accumulate mass transportation Department will deposit information in the docket periodically, and will financial and operating information and West Palm Beach, FL a uniform system of accounts and publish notification of its availability in records. the Federal Register as needed. The AGENCY: Federal Aviation Proposed Use of Information: The docket will remain open until January Administration, DOT. information will be used by transit 31, 2000. ACTION: Notice. systems as a management planning tool. FOR FURTHER INFORMATION CONTACT: It will be used by all levels of David DeCarme, Chief, Maritime, SUMMARY: The Federal Aviation government for making policy analysis Surface, and Facilitation Division, Administration (FAA) announces its and investment decisions. Federal, Office of International Transportation findings on the noise compatibility State, and local governments, transit and Trade, Office of the Secretary of program submitted by Palm Beach agencies/boards, labor unions, Transportation, at (202) 366–2892. County under the provisions of Title I manufacturers, researchers, consultants, ADDRESSES: Documents may be of the Aviation Safety and Noise and universities will use the examined or photo copied at the U.S. Abatement Act of 1979 Pub. L. 96–193) information as a resource for making Department of Transportation, Room and 14 CFR part 150. These findings are transit-related decisions. The PL–401, 400 Seventh Street, S.W., made in recognition of the description information will provide an accurate Washington, DC 20590. of Federal and nonfederal and validated transit information Dated: June 27, 1995. responsibilities in Senate Report No. database. 96–52 (1980). On February 1, 1993, the Frequency: Annually. Arnold Levine, FAA determined that the noise exposure Burden Estimate: 224,890 hours. Director, Office of International Respondents: Beneficiaries and Transportation and Trade. maps submitted by Palm Beach County recipients of Section 5307 (formerly [FR Doc. 95–16242 Filed 6–30–95; 8:45 am] under Part 150 were in compliance with applicable requirements. On November Section 9) funds. BILLING CODE 4910±62±P Form(s): 001, 100, 200, 300 and 400 18, 1994, the FAA determined that the Series. revised future noise exposure map was Average Burden Hours Per Response: Coast Guard in compliance with applicable 430 hours. requirements. On May 17, 1995, the [CGD 95±056] Administrator approved the Palm Beach Issued in Washington, D.C. on June 23, 1995. Chemical Transportation Advisory International Airport noise Paula R. Ewen, Committee (CTAC); Charter Renewal compatibility program. Twenty-four (24) recommendations of the program were Manager, IRM Strategies Division. AGENCY: Coast Guard, DOT. approved and one (1) recommendation [FR Doc. 95–16243 Filed 6–30–95; 8:45 am] ACTION: Notice of charter renewal. was partially approved. BILLING CODE 4910±62±P EFFECTIVE DATE: The effective date of the SUMMARY: The Secretary of FAA’s approval of the Palm Beach Transportation has renewed the CTAC International Airport noise NAFTA Land Transportation Standards charter to remain in effect for a period compatibility program is May 17, 1995. Subcommittee of two years from May 27, 1995 until FOR FURTHER INFORMATION CONTACT: AGENCY: Office of the Secretary, Office May 27, 1997. The purpose of CTAC is Tommy J. Pickering, P.E., Federal of International Transportation and to provide expertise on regulatory Aviation Administration, Orlando Trade. requirements for promoting safety in the transportation of hazardous materials on Airports District Office, 9677 Tradeport ACTION: Notice. vessels and the transfer of these Drive, Suite 130, Orlando, Florida SUMMARY: This notice announces that materials between vessels and 32827–3596, (407) 648–6583. the Department of Transportation (DOT) waterfront activities. CTAC acts solely Documents reflecting this FAA action has established a public docket for in an advisory capacity to the Coast may be reviewed at this same location. information related to the North Guard. SUPPLEMENTARY INFORMATION: This American Free Trade Agreement’s FOR FURTHER INFORMATION CONTACT: notice announces that the FAA has (NAFTA) Land Transportation Captian Kevin J. Eldridge, Executive given its overall approval to the noise Standards Subcommittee (LTSS). Director, or Lieutenant Rick J. Raksnis, compatibility program for the Palm Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices 34573 Beach International Airport, effective agreements, or intrude into areas map was submitted to the FAA on May 17, 1995. preempted by the Federal Government; October 6, 1994. The revised future Under section 104(a) of the Aviation and noise exposure map was determined by Safety and Noise Abatement act (ASNA) d. Program measures relating to the FAA to be in compliance with of 1979 (hereinafter referred to as ‘‘the use of flight procedures can be applicable requirements on November Act’’), an airport operator who has implemented within the period covered 18, 1994. Notice of these determinations previously submitted a noise exposure by the program without derogating was published in the Federal Register. safety, adversely affecting the efficient map may submit to the FAA a noise The Palm Beach International Airport compatibility program which sets forth use and management of the navigable airspace and air traffic control systems, study contains a proposed noise the measures taken or proposed by the compatibility program comprised of airport operator for the reduction of or adversely affecting other powers and responsibilities of the Administrator actions designed for phased existing noncompatible land uses and implementation by airport management prevention of additional noncompatible prescribed by law. Specific limitations with respect to and adjacent jurisdictions from the date land uses within the area covered by the of study completion to the year 1998. It noise exposure maps. The Act requires FAA’s approval of an airport noise was requested that FAA evaluate and such programs to be developed in compatibility program are delineated in approve this material as a noise consultation with interested and FAR part 150, § 150.5. Approval is not compatibility program as described in affected parties including local a determination concerning the section 104(b) of the Act. The FAA communities, government agencies, acceptability of land uses under Federal, airport users, and FAA personnel. state, or local law. Approval does not by began its review of the program on Each airport noise compatibility itself constitute an FAA implementing November 18, 1994, and was required program developed in accordance with action. A request for Federal action or by a provision of the Act to approve or Federal Aviation Regulations (FAR) part approval to implement specific noise disapprove the program within 180 days 150 is a local program, not a Federal compatibility measures may be (other than the use of new flight program. The FAA does not substitute required, and a FAA decision on the procedures for noise control). Failure to its judgment for that of the airport request may require an environmental approve or disapprove such program proprietor with respect to which assessment of the proposed action. within the 180-day period shall be measure should be recommended for Approval does not constitute a deemed to be an approval of such action. The FAA’s approval or commitment by the FAA to financially program. disapproval of FAR part 150 program assist in the implementation of the The submitted program contained recommendations is measured program nor a determination that all twenty-five (25) proposed actions for according to the standards expressed in measures covered by the program are noise mitigation on and off the airport. part 150 and the Act, and is limited to eligible for grant-in-aid funding from the The FAA completed its review and the following determinations; FAA. Where Federal funding is sought, determined that the procedural and a. The noise compatibility program requests for project grants must be substantive requirements of the Act and submitted to the FAA Airports District was developed in accordance with the FAR part 150 have been satisfied. The provisions and procedures of FAR part Office in Orlando, Florida. Palm Beach County submitted to the overall program, therefore, was 150; approved by the Administrator effective b. Program measures are reasonably FAA on January 29, 1993, the noise May 17, 1995. consistent with achieving the goals of exposure maps, descriptions, and other reducing existing noncompatible land documentation produced during the Outright approval was granted for uses around the airport and preventing noise compatibility planning study twenty-four (24) of the specific program the introduction of additional conducted from March 21, 1991, elements. One (1) program element for noncompatible land uses; through October 4, 1994. The Palm local environmental review was c. Program measurers would not Beach International Airport Noise partially approved. Measures pertaining create an undue burden on interstate or exposure maps were determined by to FAR part 77 height criteria associated foreign commerce, unjustly discriminate FAA to be in compliance with with Part 77 height/hazard zoning was against types or classes of aeronautical applicable requirements on February 1, disapproved. The approval action was users, violate the terms of airport grant 1993. A revised future noise exposure for the following program elements: 34574 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices Measure and description NCP pages Operational elements: 1. Noise Abatement Flight Paths for Turbojet Aircraft. Runways 27R, 13 and 31: Eliminate multiple noise abate- NCP, pages 31±34, Tables ment flight paths from these runways. All departing aircraft shall be assigned runway heading or correspond- 2.2 (page 15) and 3.2 ing wind corrected heading, regardless of Part 36 Stage. Runway 9L: Continue the use of multiple departure (page 61); PBIA Noise flight paths but eliminate the north turn departure track (075 heading) at the point in time at which the elimi- Abatement Bulletin. nation of the northern track would not increase the cumulative noise level at any residential noise-sensitive area within the 65 dB DNL contour by 1.5 dB or greater. After the north departure path is eliminated, all air- craft shall be assigned runway heading, or corresponding wind corrected heading regardless of Part 36 Stage. The flight track improvements reduce the population within the [DNL 65 dB] noise contours by approximately 13%, from 9,889 to 8,636. FAA Action: Approved as a voluntary measure, wind weather and traffic permitting. The airport operator intends to prepare annual DNL contours (Measure 17, below), which will assist in carry- ing out the recommendations for Runway 9L. In response to the FAA's notice about the PBIA Part 150 NCP, the FAA received 59 comments, 54 of which were from residents of communities each of the airport (Runway 9 end) and supported continuation of multiple flight tracks. The NCP and a February 15, 1995, letter from the airport sponsor indicate that the Part 150 Technical Advisory Committee (TAC) carefully considered the alter- native of continued use of multiple flight tracks. The TAC included, among others, voting representatives from the Town of Haverhill, the City of West Palm Beach, the Town of Palm Beach, the Citizens Committee on Air- craft Noise, the Old El Cid Noise Reduction Committee, and counsel for the residents who sued the airport in 1989. The alternative selected was considered a compromise because only some neighborhoods to the east supported continuation or increase of fanning, while the City of West Palm Beach Commission, by Resolution, and the majority of neighborhoods within West Palm Beach supported total elimination of fanning. The major- ity of the population within the five-year DNL 65 dB contour reside in West Palm Beach. 2. Preferential Runway Use Program. Corporate jet departures will be assigned Runway 31 when in the west NCP, pages 35±36, Tables flow. During the hours of 10 p.m. to 10 a.m. (off peak), Runway 27R will be the preferred runway, when safety 2.2 and 3.1; PBIA Noise and weather permit; it also will be the preferred calm wind runway during this period. During the hours of 10 Abatement Bulletin; Ap- a.m. to 10 p.m. (peak traffic period), runway 9L will be the preferred and designated calm wind runway. FAA pendix Volume, Table 1, Action: Approved as a voluntary measure. TAC Meeting #9, page 4. 3. Noise Abatement Departure Procedures. The Department of Airports (DOA) is in the process of analyzing the NCP, pages 36±38, and two Noise Abatement Departure Procedures (NADP) alternatives from the revised AC 91±53A. Based on the Tables 2.2 and 3.1; PBIA results of that analysis, the DOA will work with the Citizen's Committee on Aircraft Noise (CCAN) to select a Noise Abatement Bulletin, procedure (or procedures, if the FAA permits) for implementation at the airport. The DOA will provide test re- FAA Advisory Circular sults and final recommendations to the FAA at the earliest possible date, including an evaluation of any effect 91±53A, and letters dated on the Noise Exposure Maps (NEM). FAA Action: Approved as a voluntary measure. Analysis of NADP alter- 1/12/95 and 3/14/95 from natives for air carriers greater than 75,000 pounds (mgtw) is approved FOR STUDY ONLY. The airport opera- PBIA. tor may submit supplemental information, including the noise benefits, upon completion of its study and may request approval under Part 150 of specific departure procedure(s) to be used for large aircraft. 4. Maintenance Runup Procedures. No procedural changes are necessary for maintenance runups except that a NCP, pages 38±39, Figure revised runup request form should be implemented for better record-keeping. FAA Action: Approved. 2.4, and Tables 2.2 and 3.1; PBIA Noise Abate- ment Bulletin; Appendix Volume, Section 1 of Ap- pendix A.2, Section 2.7 of Appendix I.2. LAND USE ELEMENTS: A combination of strategies in areas within the five year forecast 65 dB LDN contours and neighboring ``buffer zones'' for implementation were identified as being the most appropriate for inclusion in the revised NCP. 5. Sound Insulation. The ongoing program proposed for the revised NCP will have three main phases: Develop- NCP, pages 41 and 42, Ta- ment of sound insulation program; validation of the sound insulation program; and procedures for program im- bles 2.2 and 3.1; and Ap- plementation. Modifications may be made based on the technical assistance of the demonstration program. pendix J.2. Any modifications will be based on DOT/FAA/PP±92±5 ``Guidelines for the Sound Insulation of Residences Exposed to Aircraft Operations.'' After the DOA assesses the success of the demonstration program and the potential for the development of a large-scale sound insulation program, prospective participants will be noti- fied. The DOA will follow FAA guidelines by encouraging and possibly requiring participating homeowners to grant an avigation easement in exchange for sound insulation modifications. The DOA will enter into a Home- owner Participation Agreement with interested residents and implement the program as funding becomes available. Four non-residential noise sensitive sites within the revised 5-year NEM will also be offered the op- portunity to participate. The same guidelines will apply to these non-residential sites. FAA Action: Approved. 6. Easement Acquisition. The previous Noise Abatement and Mitigation Study (NAMS) recommended the use of NCP, page 42, Figure 2.5, avigation easements as a remedial land use strategy. The DOA has, on an on-going basis, acquired avigation and Tables 2.2 and 3.1. easements. However, the easement acquisitions have not been part of a formal program. As a recommended measure of the revised NCP, the easement acquisition program will be implemented on a formal basis. Simi- lar to the sound insulation program, the DOA will enter into an easement acquisition agreement and imple- ment the program as funding becomes available. FAA Action: Approved. 7. Transaction Assistance. Transaction assistance was recommended in the previous NCP; however, this meas- NCP, page 42, Figure 2.6, ure was never implemented. The measure relates to assurances by the DOA that a homeowner, within the and Tables 2.2 and 3.1. noise exposure area, will receive assistance in the sale of affected structures. In exchange, the homeowner would grant to the DOA an avigation easement. The form of the assistance will be agreed to by the home- owner and the DOA and will be determined for specific structures on an individual basis. Homeowners' partici- pation is voluntary. The DOA will publicize this program and contact homeowners who may be eligible for par- ticipation. FAA Action: Approved. This measure is subject to an evaluation at the time of implementation with respect to Airport Improvement Program (AIP) eligibility because some elements of the proposed transaction assistance program may be ineligible for Federal funding. Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices 34575 Measure and description NCP pages 8. Land Acquisition and Relocation. The three previously described remedial land use measures (sound insula- NCP, pages 45±46, and tion, easement acquisition, and transaction assistance) are the primary remedial measures. If an individual or Tables 2.2 and 3.1. group of property/home owner(s) and the DOA determine that the implementation of any of the previous re- medial measures are inadequate, then land acquisition and relocation will be considered. The DOA will follow all FAA noise land grant provisions for the purchase and disposal of property purchased under this program. FAA Action: Approved. 9. Comprehensive Planning. Local comprehensive plans presently reflect other impacts. Aircraft noise should NCP, page 47 and Tables also be considered. It is recommended that local governments be strongly encouraged to amend their plans 2.2 and 3.1. through plan amendments. In order to implement this measure successfully, the DOA will coordinate with each jurisdiction as to the timing and content of plan amendments. FAA Action: Approved. 10. Zoning. The previous noise study recommended zoning be addressed through the land development regula- NCP, page 47, Appendix tions. Draft text amendments have been developed which address the conversion of incompatibly zoned land J.2, and Tables 2.2 and to compatibly zoned. The DOA is working with the Palm Beach County Planning, Building, and Zoning Depart- 3.1. ments on strengthening the ordinance. It is a recommendation that the ordinance include: specific reference to the NEMs and the affected areas (including references to the current annual maps within the body of the ordi- nance), a change in the use regulation table to include a noise/land use compatibility determination, specific prohibition on zoning approval for noise sensitive sites within the designated noise affected areas. FAA Ac- tion: Approved. 11. Local Environmental Review. A formal local environmental review program should be established, with NCP, page 48 and Tables thresholds or mechanisms to trigger a local environmental review of proposed development if it lies within the 2.2 and 3.1. environs surrounding PBIA. The following measures are recommended: designation of a governmental/airport liaison staff position to address, among other issues, airport/community development issues; environmental review of new development shall include zoning review, building structure and content, height review using FAR part 77 criteria and local land use regulations, noise/land use compatibility based on FAR part 150 guidelines and, when approved, the Palm Beach County airport land use compatibility zoning ordinance; and formal coordination meetings between the liaison and other local government staff be held on a monthly basis. FAA Action: Approved except for measures pertaining to FAR part 77 height criteria, which is dis- approved for purposes of part 150. Part 77 height/hazard zoning is not a noise mitigation measure and is not approvable under part 150. The airport operator is encouraged to incorporate part 77 into its overall environ- mental review process. 12. Real Estate Disclosure. This measure involves disclosure to a potential property/homeowner of a property's NCP, pages 48±49 and Ta- location relative to noise exposure contours of PBIA. A real estate disclosure program addressing the follow- bles 2.2 and 3.1 ing is recommended: Make the revised NEMs and NCP matters of public record; update the public record of the NEMs and NCP annually; provide all officially listed realtors in Palm Beach County with information detail- ing noise contours every six months; and include a noise notice in the public record and real estate informa- tion. Guidelines of the Florida DOT and Real Estate Code, agents are obligated to inform prospective buyers of any known or potential issues of which they are aware. The burden of notification is shifted from the DOA to the real estate agents. FAA Action: Approved. 13. Building Code Revision. This measure references the revision of the local building codes (Southern Stand- NCP, page 49, Tables 2.2 ard) to require that proper noise insulating materials are used in new construction or re-development. This and 3.1, Appendix J.2. measure was recommended in the original NCP and is included as a recommendation of the Revised NCP. The April 1987 PBIA Noise Abatement and Mitigation Study (NAMS) provided detailed information on how the codes should be revised, in section 5 of the document. The information contained in that report is still valid and is reprinted in Appendix J.2. DOT/FAA document PP±92±5, ``Guidelines for the Sound Insulation of Resi- dences Exposed to Aircraft Operations'', will be made available at all local government building departments. FAA Action: Approved. 14. Easement AcquisitionÐUndeveloped Land. This measure involves acquisition of avigation easements for NCP, page 49, Figure 2.5, undeveloped parcels within and in close proximity to the DNL 65 and DNL 70 noise contours as added pro- and Tables 2.2 and 3.1. tection from noncompatible future development. The DOA, through local government/airport liaison, will iden- tify all undeveloped parcels. Based on the level of success of the other preventive measures, for those par- cels that may still be zoned to allow incompatible development, the DOA will contact the property owners re- garding the acquisition of an avigation easement from the undeveloped parcel's property rights. FAA Action: Approved. The airport operator intends to purchase an easement to prevent noncompatible development. 15. Land AcquisitionÐUndeveloped Land. In some instances, none of the recommended preventive land use NCP, page 49, Tables 2.2 strategies would prevent an undeveloped parcel from being developed incompatibly. In those instances, the and 3.1. DOA may consider acquiring the property. The use of the local environmental review measure [Measure 11 in this Record of Approval] will provide notification to the DOA of such instances. The implementation process will follow the same procedures as those for developed land [Measure 8 in this ROA]. FAA Action: Approved. This measure is subject to an evaluation at the time of implementation that the property is within the DNL 65 dB contour, and to a determination that the undeveloped property either has been zoned incompatibly or is in imminent danger of being developed incompatibly unless it is acquired by the airport operator. IMPLEMENTATION, MONITORING, AND REVIEW ACTIONS: 16. Noise and Operations Monitoring System. The DOA will acquire and install a noise and operations monitor- NCP, page 50 and Tables ing system to support implementation, monitoring, and review of other NCP elements. The major components 2.2 and 3.1. of the system will be flight track monitoring, aircraft performance monitoring, noise monitoring, user interface & database management, meteorological monitoring, audio & tower radio monitoring & recording capabilities, and aircraft & flight identification components. FAA Action: Approved. 17. Prepare Annual Ldn Contours. The DOA Noise Office will continue to develop annual Ldn contours to meet a NCP, page 50 and Tables PBIA commitment to an ongoing annual review of the noise contours. FAA Action: Approved. 2.2 and 3.1. 18. Annual Review of Magnetic Headings. It is recommended that the FAA Air Traffic Control Tower, with DOA NCP, page 51 and Tables assistance, review the magnetic headings annually and revise the departure instructions to pilots to reflect 2.2 and 3.1. changes in the magnetic heading of the airport's runways. FAA Action: Approved. 34576 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices Measure and description NCP pages 19. NEM/NCP Review. At a minimum, the NCP should call for updating the NEM at the end of the five year NCP, page 51 and Tables forecast period. If traffic levels either exceed the forecast levels by 15% or drop below the current levels by 2.2 and 3.1. 15%, the DOA should review the NEM. In addition, should the annual contours show a significant difference between the annual contours and the approved NEM contours, the DOA should consider more in-depth noise analysis and potential revision of the NCP and NEM. A significant change is defined as an area of non-com- patible land use within the 65 dB LDN contour where the annual contour exceeds the relevant NEM contour set by 1.5 decibels or greater. When PBIA has a 100 percent Stage 3 airline fleet, it would be appropriate to review the NEM and NCP. FAA Action: Approved. 20. Runway 27R ILS. The DOA is moving ahead with plans to install an Instrument Landing System (ILS) on NCP, page 51 and Tables Runway 27R. This ILS will greatly improve adherence to the preferred arrival track for that runway. This 2.2 and 3.1. measure was a recommended action of the previous NCP. FAA Action: Approved. This measure was ap- proved in the 1985 NCP. It is noted that the proposed funding source does not include Federal funding (50 percent State and 50 percent DOA). 21. Program Publicity: Pilot Handout. Figure 2.8 presents a draft recommended pilot handout. The pilot handout NCP, page 51, Figure 2.8, would provide information on various noise abatement policies, including: detailed description of noise abate- and Tables 2.2 and 3.1; ment flight paths; requested use of FAA AC 91±53 procedures and Teterboro noise abatement departure pro- PBIA Noise Abatement cedures; preferential runway use program; and ground runup procedures. The DOA will distribute the bulletin. Bulletin; March 14, 1995, Copies also would be posted. The ``Teterboro procedure'' is similar to National Business Aircraft Association's letter from PBIA. (NBAA) departure procedures for aircraft weighing less than 75,000 pounds. The airport operator has stated that: (1) This is an existing NADP that is recommended as a first preference for those pilots who are familiar with the procedure and (2) the NBAA procedure is recommended for other pilots (page 38 of the NCP) and (3) pilots groups have reviewed the procedures (Air Line Pilots Association, Aircraft Owners and Pilots Asso- ciation, and NBAA) (March 14, 1995, letter from PBIA). FAA Action: Approved. The most current version of the above-referenced FAA AC is 91±53A and should be appropriately referenced. The pilot handout should reflect the voluntary nature of the flight procedures, as indicated under the appropriate sections in this ROA (Measures 1, 2, and 3). 22. Revise FAA Tower Order. Changes to the preferential runway use and multiple noise abatement departure NCP, page 54, Figure 2.9, flight track assignment elements in the PBIA Noise Compatibility Program will necessitate changes to FAA and Tables 2.2 and 3.1. Order 8400.9. FAA Action: Approved. These procedures have been approved as voluntary measures in this ROA (Measures 2 and 3). The FAA by formal order under 49 U.S.C. 40103 would implement these measures, which would also be subject to applicable environmental requirements prior to implementation. 23. Program Publicity: National Publications. There are a number of nationally recognized publications that pro- NCP, page 54 and Tables vide pilots with information on airport operating procedures. The DOA will request that these publications in- 2.2 and 3.1. clude appropriate summaries of the PBIA noise abatement procedures. FAA Action: Approved. 24. Public Participation: Ongoing Citizens Meetings. The DOA will continue to meet on a routine basis with the NCP, page 54 and Tables CCAN or a similar group to continue promotion of public participation and to review ongoing noise abatement 2.2 and 3.1. measures and the implementation of the recommendations of this study. FAA Action: Approved. 25. Program Publicity: AIRWAVES Newsletter. The DOA will continue to publish newsletters at regular intervals NCP, page 54 and Tables to update residents and other interested parties of the status of PBIA's noise abatement program. FAA Action: 2.2 and 3.1. Approved. These determinations are set forth in ACTION: Notice of intent to rule on following address: 1000 Glenn Hearn detail in a Record of Approval endorsed application. Blvd, Box 20008, Huntsville, AL 35824. by the Administrator on May 17, 1995. Air carriers and foreign air carriers SUMMARY: The FAA proposes to rule and The Record of Approval, as well as may submit copies of written comments invites public comment on the other evaluation materials and the previously provided to the Huntsville- application to impose and use the documents comprising the submittal, Madison County Airport Authority revenue from a PFC at the Huntsville are available for review at the FAA under section 158.23 of part 158. International Airport under the FOR FURTHER INFORMATION CONTACT: office listed above and at the provisions of the Aviation Safety and administrative offices of Palm Beach Elton E. Jay, Principal Engineer, FAA Capacity Expansion Act of 1990 (Title Airports District Office, 120 North County. IX of the Omnibus Budget Hangar Drive. Suite B, Jackson, Issued in Orlando, Florida on May 23, Reconciliation Act of 1990) (Public Law Mississippi 39208–2306, telephone 1995. 101–508) and part 158 of the Federal number 601–965–4628. The application Charles E. Blair, Aviation Regulations (14 CFR part 158). may be reviewed in person at this same Manager, Orlando Airports District Office. DATES: Comments must be received on location. [FR Doc. 95–16294 Filed 6–30–95; 8:45 am] or before August 2, 1995. SUPPLEMENTARY INFORMATION: The FAA ADDRESSES: Comments on this BILLING CODE 4910±13±M proposes to rule and invites public application may be mailed or delivered comment on the application to impose in triplicate to the FAA at the following and use the revenue from a PFC at the Notice of Intent to Rule on Application address: FAA/Airports District Office, Huntsville International Airport under To Impose and Use the Revenue From 120 North Hangar Drive, Suite B, the provisions of the Aviation Safety a Passenger Facility Charge (PFC) at Jackson, Mississippi 39208–2306. and Capacity Expansion Act of 1990 In addition, one copy of any the Huntsville International Airport, (Title IX of the Omnibus Budget comments submitted to the FAA must Huntsville, AL Reconciliation Act of 1990) (Public Law be mailed or delivered to Mr. Luther H. 101–508) and Part 158 of the Federal Roberts, Jr., Director of Finance/ AGENCY: Federal Aviation Aviation Regulations (14 CFR part 158). Administration, Huntsville-Madison On June 26, 1995, the FAA Administration (FAA), DOT. County Airport Authority, at the determined that the application to Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices 34577 impose and use the revenue from a PFC regulations in North America, with Presidential Advisory Board Meeting, submitted by the Huntsville-Madison particular emphasis on progress in July 6, 1995 County Airport Authority was harmonizing regulations with Mexico. Agenda substantially complete within the DATES: July 26, 1995 at 9:30 a.m. requirements of section 158.25 of Part I. Approval of Minutes II. Resignation of OCB Director 158. The FAA will approve or ADDRESSES: Room 6200, Nassif III. Technical Update disapprove the application, in whole or Building, 400 Seventh Street SW., IV. Update on Radio and T.V. Marti in part, no later than October 19, 1995. Washington, DC 20590. V. The Role and Responsibility of the Office The following is a brief overview of of the Inspector General within USIA FOR FURTHER INFORMATION CONTACT: the application: VI. Old Business Level of the proposed PFC: $3.00 Frits Wybenga, International Standards (a) Pending Investigations Actual charge effective date: June 1, Coordinator, Office of Hazardous (b) Magnavision Update 1992 Materials Safety, Department of VII. New Business Estimated charge expiration date: Transportation, Washington, DC 20590; VIII. Public Testimony October 31, 2008 (202) 366–0656. Meeting will begin at 9:30 a.m. and Total estimated net PFC revenue: SUPPLEMENTARY INFORMATION: will not require a closed portion or $19,120,698 The primary purpose of this meeting will be session. Estimated PFC revenues to be used on Members of the public interested in projects in this application: $16,174 to (1) review the progress made by the tenth session of the UNSCOE which is attending the meeting should contact Brief description of proposed project(s): Ms. Angela R. Washington, at the Replace ATCT airfield lighting being held from July 10–21, 1995 and (2) to begin preparation for the eleventh Advisory Board Office. Ms. Washington controls and acquire security vehicle. can be reached at (202) 401–2178. Class or classes of air carriers which the session of the UNSCOE to be held FAA has previously approved November 4, through December 15, Dated: June 22, 1995. exemption from the requirement to 1995 in Geneva, Switzerland. Topics to Yvonne F. Soler, collect PFCs: Air taxi/commercial be covered include matters related to Executive Director, Presidential Advisory operators, certified air carriers, and explosive including the United Nations Board for Cuba Broadcasting. certified route air carriers having (UN) External Fire (Bonfire) Test, [FR Doc. 95–16202 Filed 6–30–95; 8:45 am] fewer than 500 annual enplanements. restructuring the UN Recommendations BILLING CODE 8230±01±M Any person may inspect the on the Transport of Dangerous Goods application in person at the FAA office into a model rule, criteria for listed above under FOR FURTHER environmentally hazardous substances, DEPARTMENT OF VETERANS INFORMATION CONTACT. In addition, any review of intermodal portable tank AFFAIRS person may, upon request, inspect the requirements, classification of application, notice and other documents individual substances and requirement Performance Review Board Members for bulk and non-bulk packagings used germane to the application in person at AGENCY: Department of Veterans Affairs. the office of the Huntsville-Madison to transport hazardous materials. This ACTION: Notice. County Airport Authority. meeting will also provide an opportunity to report on the activities SUMMARY: Issued in Jackson, Mississippi, on June 26, related to the harmonization of Under the provisions of 5 1995. hazardous materials regulations in U.S.C. 4314(c)(4) agencies are required Elton E. Jay, North America, with particular to publish a notice in the Federal Acting Manager, Airports District Office, emphasis on progress in harmonizing Register of the appointment of Southern Region, Jackson, Mississippi. regulations with Mexico. Performance Review Board (PRB) [FR Doc. 95–16295 Filed 6–30–95; 8:45 am] members. This notice revises the list of BILLING CODE 4910±13±M The public is invited to attend members of the Department of Veterans without prior notification. Affairs (VA) Performance Review Issued in Washington, DC, on June 27, Boards which was published in the Research and Special Programs 1995. Federal Register on October 24, 1994 Administration Robert A. McGuire, (54 FR 53512). EFFECTIVE DATE: June 20, 1995. International Standards on the Deputy Associate Administrator for Hazardous Materials Safety. FOR FURTHER INFORMATION CONTACT: Transport of Dangerous Goods; Public Carol A. Kummer, Office of Human Meeting [FR Doc. 95–16245 Filed 7–3–95; 8:45 am] BILLING CODE 4910±60±M Resources Management (503), AGENCY: Research and Special Programs Department of Veterans Affairs, 810 Administration (RSPA), Department of Vermont Avenue, NW, Washington, DC Transportation. 20420, (202) 273–4937. ACTION: Notice of public meeting. UNITED STATES INFORMATION VA Performance Review Board (PRB) AGENCY SUMMARY: This notice is to advise Eugene A. Brickhouse, Assistant interested persons that RSPA will Meeting of the Advisory Board for Secretary for Human Resources and conduct a public meeting to report on Cuba Broadcasting Administration (Chairperson) the results of the tenth session of the Raymond H. Avent, Deputy Under United Nation’s Sub-Committee of The Advisory Board for Cuba Secretary for Benefits Experts on the Transport of Dangerous Broadcasting will conduct a meeting on Shirley Carozza, Deputy Assistant Goods (UNSCOE), to discuss Thursday, July 6, 1995, at the Doral Secretary for Budget preparations for the eleventh session of Resort and Country Club in Miami, Jule D. Moravec, Ph.D., Associate Chief the UNSCOE and to report on progress Florida. The intended agenda is listed Medical Director for Operations in harmonizing hazardous materials below. (Alternate) 34578 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices Harold F. Garcey, Jr., Chief of Staff of Leo Wurschmidt, Director, Southern David H. Law, M.D., Acting Associate the Secretary Area Deputy CMD for Clinical Programs Thomas L. Garthwaite, M.D., Deputy Veterans Health Administration PRB Lydia B. Mavridis, Associate CMD for Under Secretary for Health Administration Gerald K. Hinch, Deputy Assistant Thomas L. Garthweite, M.D., Deputy Robert A. Perreault, Director, Health Secretary for Equal Opportunity Under Secretary for Health Care Reform Office Kathy E. Jurado, Assistant Secretary for (Chairperson) Public and Intergovernmental Affairs Elizabeth M. Short, M.D., Associate Jule D. Moravec, Ph.D., Associate Chief CMD for Academic Affairs Mary Lou Keener, General Counsel Medical Director for Operations (Co- William T. Merriman, Deputy Inspector David Whatley, Regional Director, Chairperson) General Central Region Roger R. Rapp, Director of Field Sheila M. Cullen, Acting Regional Director, Western Region Charles V. Yarbrough, Associate CMD Operations, National Cemetery for Construction Management System Jim W. Delgado, Director, Voluntary Patricia A. Grysavage, Director, Service Office of Inspector General PRB Barbara L. Gallagher, Regional Driector, Executive Management and Milton M. MacDonald, Deputy Assistant Eastern Region Communications, Veterans Benefits Inspector General for Auditing, Administration (Alternate) Harold F. Gracey, Jr., Chief of Staff, Deputy of State (Chairperson) Office of the Secretary Veterans Benefits Administration PRB David A. Brinkman, Assistant Inspector W. Todd Grames, Chief Financial General for Analysis and Followup, Raymond H. Avent, Deputy Under Officer Deputy of Defense Secretary for Benefits (Chairperson) James L. Green, M.D., Deputy Associate Wilbur Daniels, Assistant Inspector Celia Dollarhide, Director, Education CMD for Rehabilitation and General for Inspections and Service Prosthetics J. Gary Hickman, Director, Evaluations, Department of Compensation and Pension Service John R. Higgins, M.D., Regional Transportation Stephen L. Lemons, Director, Central Director, Southern Region Dated: June 20, 1995. Area Thomas B. Horvath, M.D., Director, Harold F. Gracey, Jr., Chief of Staff, Mental Health and Behavioral Jesse Brown, Office of the Secretary Sciences Service Secretary of Veterans Affairs. Newell Quinton, Director, Veterans Michael J. Hughes, Chief of Staff to the [FR Doc. 95–16168 Filed 6–30–95; 8:45 am] Assistance Service Under Secretary for Health BILLING CODE 8320±01±M 34579 Sunshine Act Meetings Federal Register Vol. 60, No. 127 Monday, July 3, 1995 This section of the FEDERAL REGISTER Credit Administration Board, (703) 883– 28, 1995, at the Renaissance Arlington contains notices of meetings published under 4025, TDD (703) 83–4444. Hotel, 950 North Stafford Street, the ``Government in the Sunshine Act'' (Pub. ADDRESS: Farm Credit Administration, Arlington, VA 22203. L. 94-409) 5 U.S.C. 552b(e)(3). 1501 Farm Credit Drive, McLean, The matters to be considered will Virginia 22102–5090. include: (1) Approval of By-laws for the FARM CREDIT ADMINISTRATION Dated: June 29, 1995. Foundation; (2) Approval of a proposal Floyd Fithian, to implement the Morris K. Udall Farm Credit Administration Board; Secretary, Farm Credit Administration Board. Foundation Scholarship Program; and Regular Meeting [FR Doc. 95–16372 Filed 6–29–95; 10:31 am] (3) Approval of a conference on the BILLING CODE 6705±01±P subject of environmental conflict SUMMARY: Notice is hereby given, resolution. The meeting is open to the pursuant to the Government in the public. Sunshine Act (5 U.S.C. 552b(e)(3)), that MORRIS K. UDALL SCHOLARSHIP AND CONTACT PERSON FOR MORE INFORMATION: the July 13, 1995 regular meeting of the EXCELLENCE IN NATIONAL POLICY Christopher L. Helms, 811 East First Farm Credit Administration Board FOUNDATION Street, Tucson, AZ 85719. Telephone: (Board) will not be held and that a Notice of Meeting Under the (520) 670–5523. special meeting of the Board is Government in the Sunshine Act scheduled for Wednesday, July 19, 1995 Dated this 28th day of June, 1995. The Board of Trustees of the Morris K. at 2 p.m. An agenda for this meeting Udall Scholarship and Excellence in Christopher L. Helms, will be published at a later date. National Environmental Policy Executive Director. FOR FURTHER INFORMATION CONTACT: Foundation will hold a meeting [FR Doc. 95–16471 Filed 6–29–95; 3:30 pm] Floyd Fithian, Secretary to the Farm beginning at 4:00 p.m. on Friday, July BILLING CODE 9630±11±M federal register July 3,1995 Monday or Below19Kilowatts;FinalRule New NonroadSpark-ignitionEnginesAt Control ofAirPollution;Emissionfor 40 CFRParts9and90 Protection Agency Environmental Part II 34581 34582 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations ENVIRONMENTAL PROTECTION SUPPLEMENTARY INFORMATION: 3. OMS BBS ==== MAIN MENU; AGENCY Table of Contents FILE TRANSFERS; Administration (MSHA) in 30 CFR parts from regulation in the State of depending on the use of the equipment 7, 31, 32, 36, 56, 57, 70, and 75; California; for these engines, the in which the engine is installed. A (3) Engines used in motorcycles and effective date of the rule is January 1, handheld engine must meet at least one regulated in 40 CFR part 86, subpart E; 1998. of the following four conditions: (4) Engines used in aircraft, as that New replacement engines (1) The engine must be used in a piece term is defined in 40 CFR 87.1(a); manufactured after the applicable of equipment that is carried by the (5) Engines used in recreational effective date are subject to this rule. vehicles. Recreational vehicles are operator throughout the performance of The Agency is not establishing a the intended function(s). defined as engines which have no speed separate effective date for nonroad governor and which have a rated speed equipment and vehicle manufacturers. (2) The engine must be used in a piece of greater than or equal to 5,000 However, as long as they do not of equipment that must operate revolutions per minute (rpm). Engines stockpile noncertified engines, multipositionally, such as upside-down used in recreational vehicles, by equipment and vehicle manufacturers and/or sideways, to meet its intended definition, are not used to propel marine may continue to use noncertified function(s). vessels, and they cannot be capable of engines built prior to the effective date (3) The engine must be used in a one- meeting the criteria to be categorized as until noncertified engine inventories are person auger for which the combined a Class III, IV, or V engine under this used up. engine and equipment dry weight is rule. under 20 kilograms (kg). 3. Model Year and Effective Date 4. Engine Classes The model year definition employed Engine classes are specified both by (4) The engine must be used in a piece for the engines covered by this engine displacement, as measured in of equipment, other than an augur, for rulemaking is the same as that cubic centimeters (cc), and by the type which the combined engine and employed for on-highway certification. of equipment the engine powers—either equipment dry weight is under 14 kg, no A model year includes January 1 of the handheld or nonhandheld. There are more than two wheels are present, and calendar year for which it is designated, five engine classes covered by this rule. at least one of the following attributes is but does not include a January 1 for any Each has a unique set of emission also present: other calendar year. The maximum standards. Nonhandheld engine classes • The operator must alternately duration of a model year is one calendar are: Class I—engines less than 225 cc in provide support or carry the equipment year plus 364 days. displacement; and Class II—engines throughout the performance of its This rule is effective with model year greater than or equal to 225 cc in intended function(s). 1997. A manufacturer may choose to displacement. Engines powering • The operator must provide support produce both certified engine families equipment defined as handheld are or attitudinal control for the equipment and uncertified engine families during classified as Class III: engines less than throughout the performance of its annual production periods that start 20 cc in displacement, or Class IV: intended function(s). before September 1, 1996. Annual engines equal to or greater than 20 cc • production periods commencing prior and less than 50 cc in displacement, or The engine is used in a hand to September 1, 1996 must not exceed Class V: engines equal to or greater than portable generator or pump. twelve months in duration; this 50 cc in displacement. The emission 6. Emission Standards limitation is only applicable for the standards promulgated today are start-up of this program. Engines considered Phase 1 new small SI engine Under this rule, exhaust emissions manufactured in a production period standards. from new nonroad small SI engines commencing on or after September 1, must not exceed the standards 1996 must be certified. The sole 5. Handheld Engine Qualifications applicable to their engine families based exception among regulated engines is Small SI engines are categorized as on their engine class, as listed in Table for Class V engines that are preempted either handheld or nonhandheld, 1. TABLE 1.ÐEXHAUST EMISSION STANDARDS Engine characteristics Pollutant (gram per kilowatt-hour) Displacement HC CO NO Class Application (cubic cm) HC + NOX X I Nonhandheld ...... <225 16.1 469 II Nonhandheld ...... ≥225 13.4 469 III Handheld ...... <20 295 805 5.36 IV Handheld ...... ≥20, <50 241 805 5.36 V Handheld ...... ≥50 161 603 5.36 The Agency is providing exceptions declining annual production cap; any handheld, unless they opt to certify to to nonhandheld standards for engines excess annual production would have to those standards. The Agency has used in two types of nonhandheld meet nonhandheld standards. Moreover, decided to finalize the combined HC + equipment. Engines used in two-stroke manufacturers of engines used NOX standard for Classes I and II while snowthrowers and engines used in two- exclusively in snowthrowers and ice- requiring that the individual test results stroke lawnmowers are allowed to augers will be required to certify to and for HC and NOX also be submitted, as comply with the handheld standards. In comply with only the applicable proposed. addition, the number of two-stroke nonhandheld or handheld CO standard, The Agency has not addressed lawnmower engines allowed to meet and will not have to meet the HC standards for air toxics in this action. handheld standards is subject to a standards, either nonhandheld or 34586 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 7. Engine Family Categorization The Agency has established a number easily accessed if such access is For the purpose of demonstrating of requirements that an engine determined to be necessary by EPA. emission compliance, EPA is requiring manufacturer must satisfy prior to If changes to an engine family that manufacturers of small SI engines granting a certificate of conformity. configuration occur after the application divide their product line into groups of Engines equipped with adjustable is submitted which cause the changed engines, called engine families, which operating parameters must comply with version to be the engine family’s worst case emitter, then emission testing of are composed of engines having all the applicable emission standards the changed version is required. identical physical characteristics and over the full range of operating Additionally, the Administrator may similar emission characteristics. Small parameters and adjustments. Use of any require a manufacturer to conduct SI engine families are determined by device on a nonroad engine which testing of a changed version that is not using the same criteria currently used to senses operation outside normal a worst case emitter to demonstrate define on-highway motorcycle engine emission test conditions and reduces compliance. families. the ability of the emission control To be placed in the same engine system to control the engine’s emissions 10. Certification Procedures—Testing family, engines are required to be is a prohibited act that is subject to civil Overview and Preliminaries identical in all the following applicable penalties. Use of defeat devices is a prohibited The emission level used to certify an respects: act subject to civil penalties. The engine family must be equal to the (1) Combustion cycle; highest emission test level reported for (2) Cooling mechanism; Agency reserves the right to require (3) The cylinder configuration (inline, testing of a certification test engine over any engine configuration in that family. vee, opposed bore spacings, and so a modified test procedure if EPA The engine manufacturer is responsible for selecting and testing one engine from forth); suspects a defeat device is being used by (4) The number of cylinders; an engine manufacturer on a particular each engine family which is most likely (5) The engine class; engine. to be that engine family’s worst case (6) The number of catalytic converters Finally, EPA is requiring that all emitter. The Agency expects that the (location, volume, and composition), engine crankcases be closed to preclude worst case engine would normally be and the emissions that occur when a that engine configuration which has the (7) The thermal reactor crankcase is vented to the atmosphere. highest weighted brake-specific fuel characteristics. Since most currently produced engines consumption over the certification test At the manufacturer’s option, engines do have closed crankcases, EPA believes cycle, but will allow the manufacturer identical in all the above respects could this requirement will impact relatively to submit data from another engine if it be further divided into different engine few manufacturers. can support its contention that the families if the Administrator determined alternative engine represents the worst 9. Certification Procedures— case emitter. The Agency may verify the that such engines were expected to have Application Process different emission characteristics. This test results by requiring Administrator determination would be based on a Each engine manufacturer must testing of this engine, or it may opt to number of features, such as the intake submit an application to EPA requesting test any available test engine and exhaust valve or port size, the fuel a certificate of conformity for each representing other configurations in the system, exhaust system, and method of engine family for every model year. The engine family if it believes the air aspiration. Agency will issue certificates to cover manufacturer did not make a good faith production for a single model year. An effort to select the worst case emitter. 8. Certificate of Conformity, application must be submitted every Before the manufacturer carries out Requirements of Certification model year even when the engine family emission testing, it must perform a Each manufacturer of a new nonroad does not change from the previous number of hours of service small SI engine is responsible for certificate, although representative test accumulation on each test engine over obtaining from the Administrator a data may be reused in the succeeding the dynamometer cycle of its choice, certificate of conformity covering any model year’s application. based on good engineering practices (for engine introduced into commerce in the The test engine(s) representing an example, an operational cycle United States, before such engine is engine family must demonstrate that its representative of typical ‘‘break-in’’ of a sold, offered for sale, introduced or emissions are less than or equal to each new production engine in actual use). delivered for introduction into separate emission standard. If the For each engine family, the commerce, or imported into the United emissions from the test engine are below manufacturer must determine the States. the applicable standards and all other number of hours required to stabilize Section 203 of the CAA does not requirements of the regulation are met the emissions of the test engine, but this prohibit the production of engines, (including the information required in stabilization period cannot exceed vehicles, or equipment before a 40 CFR part 90), EPA will issue a twelve hours. The manufacturer must certificate of conformity is issued. An certificate of conformity for that engine maintain and provide in its application engine, a vehicle, or equipment may be family. to the Administrator a record of the covered by the certificate provided: The application must provide EPA rationale used both in making the • The engine conformed in all with sufficient information to assess the dynamometer cycle selection and in material respects to the engine appropriate test results and determine making the service accumulation hours described in the application for the the physical and emission determination. certificate of conformity, and characteristics of the engine family, as The manufacturer must conduct • The engine, vehicle, or equipment well as compliance with the applicable emission tests of the selected engine(s) was not sold, offered for sale, emission standards. It is important that using the test procedure established in introduced into commerce, or delivered the engine manufacturer succinctly, 40 CFR part 90. However, this for introduction into commerce prior to fully, and accurately submit all rulemaking does provide for EPA review the effective date of the certificate of pertinent information to EPA and and approval of special test procedures conformity. maintain internal records which can be if the small SI engine is not capable of Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34587 being satisfactorily tested under the Cycle B can be used for those Class I certificate of conformity whenever established test procedures. and II engine families in which 100 additional small SI engines are added to The Agency does not require engine percent of the engines are sold with a an engine family or changes are made to manufacturers to maintain any governor that maintains engine speed a product line covered by a certificate of certification test engine after a within ± 2 percent of rated speed (the conformity. Notification normally certificate has been granted; however, manufacturer-specified maximum would occur prior to either producing the manufacturer may find it useful to power of an engine) under all operating such engines or making such changes to do so for future showings to EPA. For conditions. Cycle B is a six-mode steady a product line. example, a manufacturer may use such state cycle consisting of five power 15. Selective Enforcement Auditing engines for back-to-back testing when modes at rated speed and one no-load Program running changes occur and the mode at idle speed. For all other Class manufacturer wishes to show that no I and II engines, Cycle A is required. The small SI engine SEA program, significant emissions impact has Cycle A is identical to Cycle B, except authorized by CAA section 213, is an resulted. the five power modes are run at emission compliance program for new production nonroad engines that allows 11. Certification Procedures—Fuels intermediate engine speed (85 percent of rated speed). EPA to issue an SEA test order for any For the purposes of Phase 1 nonroad The engine manufacturer must use engine family for which EPA has issued small SI compliance testing, EPA has Cycle C for engines falling into Classes a certificate of conformity. Failure of an decided to allow the optional use of III, IV, and V. Cycle C is a two-mode SEA may result in suspension or Indolene fuel in addition to the Clean steady state cycle consisting of one revocation of the certificate of Air Act Baseline (CAAB) fuel that was power mode (at rated speed) and one conformity for that engine family. To specified in the proposal. (Indolene is no-load mode at idle speed. The test have the certificate reinstated the trade name for the fuel specified at modes for each cycle must be run in a subsequent to a suspension, or reissued 40 CFR 86.113 for most light-duty prescribed order. subsequent to a revocation, the compliance test procedures, referred to The methods used to measure the manufacturer must demonstrate by as ‘‘Otto-cycle test fuel’’ in the gaseous emissions of HC, CO, and NOX showing passing data that regulations.) Since the CARB regulation for all small engines are independent of improvements, modifications, or allows the use of either Indolene or engine type and test cycle. replacements have brought the family Phase 2 fuel, a test performed using Manufacturers may sample emissions into compliance. The manufacturer may Indolene could be used to satisfy both using either the Raw Gas Method or the challenge EPA’s suspension or federal and CARB requirements for Constant Volume Sampling Method. revocation decision based on small SI engines. The Agency reserves Using either method, each test engine application of the sampling plans or the the right to perform confirmatory testing must be stabilized at each mode before manner in which tests were conducted. as well as selective enforcement audits emission measurement began. After 16. No Useful Life Period, In-use on either CAAB or Indolene, regardless stabilizing the power output during Enforcement, or Mandatory In-use of which fuel the manufacturer chooses each mode, the concentration of each Testing Program for its data submittal. pollutant, exhaust volume, and fuel This rule sets forth no special flow is determined. The measured The final rule does not determine a standards nor test procedures for values are weighted and then used to small SI engine useful life period or engines that utilize fuels other than calculate the grams of exhaust pollutant establish an in-use enforcement gasoline. These regulations apply emitted per kilowatt-hour. program. However, as further explained regardless of the fuel utilized by a small in the Response to Comments SI engine, so long as the engine 13. Confirmatory Testing Options document, the Agency is allowing a otherwise meets the criteria for coverage The Agency’s confirmatory testing voluntary in-use testing program under this rule. The Agency will provisions set forth in this rule allow modeled on the testing program it consider whether additional guidance or EPA flexibility in determining when proposed in the NPRM. The Agency will regulation is appropriate regarding any and where engine testing may occur. not require approval of in-house test relevant issues brought to its attention The Agency may require confirmatory programs voluntarily created by concerning engines that use fuels other engine testing at any given location, manufacturers nor creation of such than gasoline. The Agency requests that including at a manufacturer’s facility, programs. Instead, the Agency will such concerns be relayed to EPA as they and may also require the manufacturer provide guidance according to the arise. to make available specified testing program proposed in the NPRM The Agency may revisit the fuel instrumentation and equipment. Any to those manufacturers who choose to specifications issue in a future small testing conducted at a manufacturer’s conduct a program by which they could nonroad engine rulemaking, depending facility must be scheduled by the test a sample of engines while in-use. upon the standards and technology manufacturer as promptly as possible. Although EPA has promulgated no in- anticipated to be necessary for Authorized EPA personnel must be use emission standards for Phase 1 compliance. given access to the facilities to observe engines, it anticipates that such testing. manufacturers would take appropriate 12. Certification Procedures—Emission actions to prevent recurrence of in-use Test Procedure for HC, CO, and NOX 14. Retention of Information; noncompliance should it be discovered. The rule establishes a single test Amendments to the Application Voluntary in-use testing will not be a procedure that includes a test cycle for The manufacturer is responsible for requirement that needs to be fulfilled measuring HC, CO, and NOX. There are retaining certain information applicable under a conditional certificate program. three different cycles available: one to each test engine, along with copies of Therefore, the conditional certificate cycle applies to all Class III, IV, and V the submitted applications for program that was proposed for Phase 1 engines (Cycle C), while two cycles are individual certificates of conformity. is not being adopted. permissible for use with Class I and II The manufacturer must also submit an One commenter suggested that a engines (Cycles A and B). amendment to the application or voluntary testing program be developed 34588 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations in place of a mandatory program to importers (ICI) program for small SI Counsel; Mobile Source Enforcement develop meaningful data. EPA agrees engines. Memorandum No. 1A, June 25, 1974.9) that this type of a program is more Adjustments outside of 19. Defect Reporting and Voluntary appropriate for Phase 1 and will allow manufacturer’s suggested parameters, Recall manufacturers to become familiar with installation of replacement parts, or an in-use testing program. Because the The Agency is adopting the proposed installation of add-on parts might not Agency has chosen not to promulgate an emission defect reporting regulations necessarily be considered to be in-use standard or useful life period which require a manufacturer to report tampering so long as regulated within this rule, it has decided that a emission-related defects that affect a emissions do not increase and engine mandatory in-use testing program given class or category of small SI durability is not adversely impacted as conducted by manufacturers is engines whenever it identifies the a result of such adjustments, unnecessary at this time. existence of a specific emission-related replacement parts, or add-on parts. For defect in twenty-five or more engines in example, a manufacturer may install 17. Labeling a single engine family manufactured in conversion kits so that engines are The engine manufacturer is the same model year. However, no capable of utilizing alternative fuels if responsible for proper labeling of report need be filed with EPA if the testing has been conducted according to engines from each engine family. defect is corrected prior to the sale of the procedures specified in subpart E of Manufacturers must label every engine the affected engines to the ultimate part 90 to ensure that regulated covered by this rulemaking, but they are purchaser. emissions will not increase as a result not required to supply unique numbers The Agency requires that individual of the conversion and use of alternative for each engine. The label indicates that manufacturers establish voluntary recall fuels. A manufacturer is not required to the engine can meet the standards programs, when appropriate. It has send documentation that emissions do appropriate to its class. established limited guidelines for not increase to EPA, but should be able The Agency has decided that an engine manufacturers to follow when to provide such documentation upon engine label that meets the labeling undertaking such a program. request. EPA’s tampering enforcement requirements for engines sold in the 20. Emission Defect Warranty policy memorandum cited above state of California will be accepted as Requirements addresses these issues and should be meeting federal labeling requirements, used as a reference to determine provided the label states that it meets The emission defect warranty will be whether they constitute tampering or federal standards. provided by engine manufacturers for are allowable under the provisions of This action also requires that the first two years of engine use, which this rule. equipment and vehicle manufacturers is harmonious with the two-year apply a supplemental label to the warranty period set forth in California’s 22. Catalyst Durability equipment or vehicle if the engine label lawn and garden regulations. The Although EPA has not established full is obscured. warranty requirements are consistent emission control system durability with emission defect warranty policies demonstration requirements in the 18. Importation Restrictions developed for on-highway vehicles, rulemaking, it expects manufacturers to Nonconforming small SI engines, located in section 207(a) of the Act. design such systems to be durable; that vehicles, and equipment will generally Manufacturers of new nonroad engines is, to be effective in realizing emission not be permitted to be imported for must warrant to the ultimate purchaser reduction benefits under normal in-use purposes of resale, except as specifically and each subsequent purchaser that operating conditions not only when the permitted by this action. This rule such engine was (1) designed, built, and engines are new, but also during provides certain exemptions for various equipped so as to conform at the time operation in-use, over time. While full reasons, including repairs and of sale with applicable regulations emission control system durability alterations, testing, pre-certification, under section 213 of the Act, and (2) demonstration requirements are display, national security, and hardship. free from defects in materials and expected to be included in the Phase 2 In addition, nonconforming small SI workmanship which cause such engine regulations for small SI engines, EPA engines that are exempted from to fail to conform with applicable has concerns that certain emission importation restrictions include engines regulations for its warranty period. control components, namely catalysts, greater than 20 original production 21. Prohibited Acts; Tampering warrant separate consideration. years old, engines used solely in Therefore, EPA is adopting durability The Agency is adopting provisions competition, and certain engines proven demonstration requirements for that will prohibit introducing engines to be identical, in all material respects, catalysts in this rule. If catalysts are into commerce in the United States to their corresponding United States used in an engine family to meet the which are not covered by a certificate of certified versions. emission standards of this regulation, Today’s action will permit conformity issued by EPA. Additionally the engine manufacturer must affirm individuals to import on a single it will be a prohibited act to use a that the durability of the catalysts has occasion up to three nonconforming regulated but uncertified nonroad been confirmed on the basis of the small SI engines, vehicles, or equipment engine in nonroad vehicles or evaluation procedure that is specified in equipment. It is also a prohibited act for items for personal use (and not for this rulemaking. The requirements any person to tamper with any purposes of resale). After an adopted by EPA differ in some ways emission-related component or system individual’s limit of three, or after the from the proposal (regarding thermal installed on or in a small SI engine. The first importation, additional small SI stress testing requirements, exhaust gas Agency has applied the existing policies engines, vehicles, or equipment will not composition for testing of three-way developed for on-highway tampering to be permitted to be imported under this catalysts, and deterioration limits) that engines included in this rule. (See rule unless otherwise provided under are discussed in more detail in the Office of Enforcement and General another exemption or exclusion. Response to Comments. The Agency has also decided not to establish an independent commercial 9 EPA Air Docket #A–93–25, item II-B–01. Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34589 23. No Cap on Noise Several states, associations of state most attention has been focused on While EPA proposed that noise and local air officials, and an engine development for non-preempted produced by new small SI engines environmental association supported an products. would not be allowed to increase over effective date of January 1, 1996. They Comments on the definition of model current levels as a result of the proposed noted that delayed implementation of year were received from manufacturers emission standards, it has decided not this rule decreases the value of a phased and industry, state and local air to promulgate such a requirement. approach to small engine regulation by officials, and an environmental Although EPA continues to believe eroding the near-term benefits of a association. All comments supported noise control is important, without program intended largely to provide the on-highway model year definition. The Agency has decided upon a standards and test procedures, such a near-term benefits. A state, an model year 1997 effective date and has requirement is not enforceable. The environmental association, and adopted the on-highway model year Agency expects that the types of associations of state and local air definition. The 1997 model year will modifications to current engine design officials that are participants in the run from January 2, 1996 to December that will be performed to assure regulatory negotiation for the second phase of small engine regulation stated 31, 1997. compliance with emission standards The Agency acknowledges industry’s will not impact noise levels. However, that their agreement to participate in the negotiated rulemaking was based partly need for sufficient lead time. It also EPA may regulate engine noise if it acknowledges the need of states to becomes aware that noise levels do on a January 1, 1996 effective date for the Phase 1 rulemaking. realize reductions of air pollutant actually increase subsequent to emissions, and to adhere to schedules promulgation of this rulemaking. Several states and a manufacturer supported the proposed effective date of mandated in the CAA for reasonable 24. No Averaging, Banking, and Trading August 1, 1996. One state argued that further progress toward VOC reductions Program manufacturers have had ample notice of from 1990 levels and for attainment of This rule does not extend averaging, the fact that they would be regulated, the National Ambient Air Quality banking, and trading, nor any of the and that to delay would reward parties Standard for ozone. The model year elements of such a program, to the that have not devoted resources in good 1997 effective date provides additional certification program for the engines faith to develop cleaner engines. lead time for those manufacturers that subject to this regulation. Averaging, Another state commented that it would take advantage of the flexibility allowed banking, and trading are being have to adopt California’s regulation for by the model year definition; it also discussed as options for Phase 2. SI engines under 25 horsepower to get allows early introduction of complying the SIP credits it needs if the federal products by manufacturers that are in a IV. Public Participation and Comment rule’s effective date is delayed. position to produce complying products The Agency received submissions Several manufacturers and industry earlier in the model year rather than during the comment period for the associations supported an August 1, later. NPRM from thirty-three commenters. 1997 effective date, citing lead time The Agency is allowing additional Copies of all of the written comments considerations. An association pointed lead time for Class V engines covered by submitted to EPA, as well as records of out that the interval between this rule that are used in farm and all oral comments received during the promulgation of the final rule in May construction equipment or vehicles comment period, can be obtained from 1995 and the effective date of August 1, which CAA section 209(e)(1)(A) the docket for this rule (see ADDRESSES). 1996 would provide only one year of preempts from state regulation. The This section responds to certain lead time prior to implementation, effective date for such Class V engines comments received from the public on which it considered to be insufficient is January 1, 1998. major issues. The docket also contains for engine manufacturers to retool to Under the final rule, the model year a ‘‘Response to Comments’’ document achieve emission compliance for includes January 1 of the calendar year that provides a more detailed summary implementation of nationwide for which it is designated and does not of the comments, including many issues standards. include a January 1 of any other not covered in this preamble because Another industry association and a calendar year. The maximum duration they were minor or less contentious manufacturer commented that an of a model year is one calendar year issues, and EPA’s rationale for its August effective date does not coincide plus 364 days. A certificate of responses. with the production cycle for all engines conformity is issued for each engine covered by this rule; many operate on a family introduced into commerce for a A. Model Year Definition and Effective calendar year basis. That association single model year. The annual Date supported setting an effective date two production period within a model year This rule will become effective years after California’s regulations for any specific model within an engine beginning with the 1997 model year. become effective (e.g., January 1, 1997) family begins either: (1) when such The Agency proposed an effective date for products that are not preempted in engine is first produced, or (2) on of August 1, 1996 for implementation of California and an effective date two January 2 of the calendar year preceding this rulemaking. Regarding the years after this Phase 1 rule takes effect the year for which the model year is definition of model year, EPA requested (e.g., January 1, 1999) for products that designated, whichever date is later. The comment on three options: (1) a model are preempted in California. The annual production period ends either: year beginning August 1 and ending association cited lead time concerns, (1) when the last such engine is July 31 of the succeeding year, (2) a particularly in regard to products that produced, or (2) on December 31 of the model year like that in the on-highway are preempted from regulation in calendar year for which the model year program, beginning January 2 of one California. One manufacturer supported is named, whichever date is sooner. year and ending December 31 of the a January 1998 effective date for engines Introducing a specific model year succeeding year, and (3) a model year used in products that are preempted engine into commerce prior to or after like that in the on-highway program, but from regulation in California, arguing the model year for which the certificate beginning August 1 and ending July 31 that the additional lead time is critical is issued and in effect is a prohibited of the second succeeding year. to prevent disruptions in supply since act. However, in recognition of the fact 34590 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations that some manufacturers will be in a may be called model year 1997 or model preamble, ‘‘Handheld Engine position to ship certified engines prior year 1998 engines, but only model year Qualifications’’). to January 2, 1996, EPA is making an 1998 engines may be built beyond Comments on this issue submitted by exception for engine families that are December 31, 1997. state and environmental organizations certified by EPA prior to January 2, Another example is a string trimmer suggested that EPA tighten the 1996; such engine families may enter engine manufacturer that operates on a definition to further limit the extent of commerce prior to January 2, 1996, once January to December production period. the handheld category and prevent a certificate of conformity has been The manufacturer may choose to certify abuse of the classifications, while issued. Engines produced after any portion of its engine families in manufacturers and their organizations December 31 of the calendar year for January 1996, and must certify all its suggested loosening the definition to which the model year is named are not engine families in January 1997. allow the equipment of concern to their covered by the certificate of conformity The Agency expects that group to fall into the handheld category. for that model year. A new certificate of manufacturers will federally certify a The Agency is retaining its handheld conformity demonstrating compliance substantial number of engine families in equipment definition largely as with applicable standards must be calendar year 1996 to take maximum proposed, with the only changes being obtained for such engines, even if they advantage of ‘‘green’’ marketing the addition of a fourth category for one- are identical to engines built before strategies. Most of the engine families person augers under 20 kg and the December 31. covered by this regulation will already elimination of the term ‘‘exclusively’’ To provide maximum flexibility in have been certified to California from the category for pumps and the start-up of this program, the Agency standards prior to model year 1997. No generators. Based on an extensive is interpreting the Phase 1 model year data are available for EPA to accurately review of product literature, the Agency definition somewhat differently than in predict the percentage of small engine believes that this revised definition the on-highway program. For the 1997 families that will be certified in adequately describes those types of model year only, manufacturers may calendar year 1996. For purposes of equipment that are legitimately choose to produce both certified and state implementation plan submittals, handheld while excluding nonhandheld uncertified engine families during EPA is estimating that half will be applications. annual production periods that begin certified in calendar year 1996. As described more fully in the prior to September 1, 1996. All engines Under no circumstances should the preamble to the proposed rule, the manufactured during annual production model year definition be interpreted to necessity for a distinction between periods that begin on or after September allow existing models to ‘‘skip’’ annual handheld and nonhandheld equipment 1, 1996 must be certified. In addition, certification by pulling ahead the is based in part on the substantial annual production periods that begin production of every other model year. difference between emissions from prior to September 1, 1996 may not While this situation, to the Agency’s current four-stroke and two-stroke exceed twelve months in length, to knowledge, has not occurred in the past, engines, which is an inherent result of ensure that all engines are certified no a practice of producing vehicles or their design differences. Although two- later than calendar year 1997. The equipment for a two-year period would stroke engines have significantly higher Agency has determined that flexibility violate the Congressional intent of emissions, their use is necessary in in the interpretation of the model year annual certification based upon an some applications because they are definition for program start-up is annual production period. The Agency generally lighter for the same rated power and can be used in any necessary in fairness to manufacturers is not currently setting forth rules for orientation, unlike their four-stroke both to provide additional lead time and how to determine when abuse has counterparts. Of course, the Agency is to account for the variability in occurred, since this has not been a not requiring the use of either two- production periods of the small SI problem to date. However, the Agency stroke or four-stroke engines in any engine industry. is requiring that engine manufacturers particular type of equipment. If For example, a manufacturer of certify annually based on an annual technological advances are such that lawnmower engines with an annual production period. production period from July 1996 to two-stroke engines can meet the June 1997 might choose to certify two- B. Definition of Handheld Equipment, nonhandheld standards, manufacturers thirds of its engine families by July Snowthrowers, and Two-stroke are free to utilize that technology or any 1996, with the remainder of its Lawnmowers other technology that can meet the production being uncertified. Normally, standards. The distinction between 1. Definition and General Provisions the manufacturer must certify all its handheld and nonhandheld equipment engines in every annual production The Agency proposed that small SI is not to specifically limit the use of any period; the enhanced flexibility engines be categorized as either type of engine but, rather, to limit provided by this special interpretation, handheld or nonhandheld, depending emissions as much as is achievable which allows the manufacturer to on the usage of the equipment in which while recognizing the unique needs of choose when to begin certifying in the engine is installed. To qualify as handheld applications. production periods beginning before handheld, it was proposed that the The Agency is sympathetic to September 1, 1996, is for the start-up of engine be required to meet at least one comments that it should coordinate its this program only. of three criteria. In summary, the criteria handheld definition with CARB. The lawnmower manufacturer in the are that the engine must be used in a Nevertheless, it believes that its example above may call the engine piece of equipment that is carried by the definition clarifies and expands on the families certified in calendar year 1996 operator; or that it is operate CARB definition in ways important to either model year 1996 or model year multipositionally; or that it is used in a the federal program. Given the different 1997 engines; the advantage to calling two-wheeled piece of equipment having mandates of the two organizations and them model year 1997 engines is that a combined engine and equipment dry the specific air quality problems of the they can then be built past December 31, weight under 14 kg and also has certain State of California, EPA believes it is not 1996. Similarly, the lawnmower engine other specific attributes (for the criteria inappropriate for the definitions to be families certified in calendar year 1997 in detail, see section III.C.5. of this slightly different. Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34591 Also, an investigation into the types handheld; that is, they must not be person augers, and any auger of 20 kg of equipment each definition would completely ground-supported. The or more (including the bit) must meet cover reveals that there is a very high Agency believes that these additional the nonhandheld standards. The Agency degree of overlap. Equipment types constraints will prevent true believes that this slight broadening of considered by the EPA to be handheld nonhandheld equipment from the definition reasonably responds to include, but are not limited to, string inadvertently falling into the handheld the needs of auger manufacturers to trimmers, hedge clippers, brush cutters, category. provide both a lightweight and a high- hover mowers, leaf blowers, chain saws, On the other hand, the mere fact of strength, high-power product during the clearing saws, and concrete, masonry, some degree of ground support should time frame of the Phase 1 regulations. and cutoff saws.10 These equipment not disqualify a piece of equipment Light weight is important for one person types meet EPA’s general definition of from the handheld category. Some to be able to counter the torque handheld equipment, while pumps, lightweight products requiring some generated by the drilling operation, hold generators, snowthrowers,11 edgers, level of ground support, including the auger vertically, lift it from the hole, cultivators, tillers, continuous diggers, products with one or two wheels, would and carry it to and from the drilling and trenchers must be under 14 kg and typically be considered handheld by the location. Also, in contrast to truly have no more than two wheels to be general public. Equipment such as nonhandheld equipment, augers have considered handheld, and augers must lightweight snowthrowers, tillers and no frame or wheels and, thus, require be under 20 kg and be intended for one- edgers with up to two wheels would continuous operator support during use. person use to be considered handheld. require some carrying, support or In contrast to other equipment that is Some commenters suggested that attitudinal control; lawnmowers and clearly handheld, however, augers are of equipment weighing 14 kg is too heavy three- and four-wheeled edgers, a heavier construction to withstand to be handheld, but did not suggest an conversely, would be completely greater forces during use, and are used acceptable alternative weight. Others ground-supported and thus not for very short bursts of time, so that the felt it was too light for an upper limit. handheld.14 14 kg weight limitation is not The Agency agrees that 14 kg is indeed Some commenters stated that pumps applicable. A review of product heavy for some uses and some and generators under 14 kg should not literature and manufacturer comments consumers, but also believes that certain qualify as handheld. The categorization indicate that an upper limit of 20 kg pieces of equipment at that weight was intended primarily for small pumps would include most or all one-person would be used in a handheld manner and generators that would be augers currently on the market. (such as lightweight edgers and tillers). transported into remote areas, and is Auger manufacturers are It is likely that market forces would hereby retained. The State of California predominantly small companies and, limit the manufacture and sale of has a special provision allowing such therefore, are somewhat constrained in ‘‘handheld’’ equipment that is too heavy equipment with non-certified engines to their ability to quickly re-engineer their for the typical consumer of such be purchased by emergency response product, acquire a new engine source, products. Indeed, a review of product organizations. The Agency is taking a and absorb the costs of a four-stroke literature indicates that 14 kg appears to somewhat different route toward a engine. It is for this reason, coupled be the break point that the market has similar end, while making these pieces with the technological reasons cited chosen between equipment types of equipment more widely available but above, that the Agency is allowing one- powered with two-stroke engines and subject to the handheld standards. person augers under 20 kg to meet the those powered by four-stroke.12 13 The Agency wishes to clarify that all handheld definition for this Phase 1 Additionally, for products not falling pumps and generators under 14 kg with regulation of small SI engines. However, into the general handheld definition no more than two wheels will be this definition will not necessarily be (that is, products not carried throughout categorized as handheld equipment. The carried into future regulation of small SI use and not used multipositionally), a phrase ‘‘the engine is used exclusively engines, such as in the Phase 2 product weight of less than 14 kg is not in a generator or pump’’ was not meant negotiated rulemaking activities sufficient to qualify as handheld. Such to preclude handheld status for pumps currently underway. products are also limited to no more and generators with engine models that 2. Snowthrowers than two wheels and must need some are also used in other pieces of degree of operator carrying, support or handheld equipment. The Agency The Agency proposed that attitudinal control in order to qualify as agrees that the term ‘‘exclusively’’ in the snowthrowers meeting the handheld handheld definition is superfluous and definition be considered handheld 10 The Agency is aware that concrete/masonry/ it has been removed. equipment; all other snowthrowers cutoff saws are sometimes attached to carts for extended or heavy-duty cuts. This occasional use For this rule, only earth and ice would be considered nonhandheld. In does not negate their overall status as handheld augers that are under 20 kg (including general, industry either opposed equipment. The Agency agrees with the comment a bit of typical size for that model) and regulating snowthrowers for HC that such saws are often used multipositionally, and are sold for use primarily by one person emissions or favored relaxed emission thus fall into the general handheld category. Thus, 15 the 14 kg weight limit does not apply. The same is will be considered handheld. Two standards for two-stroke snowthrowers, true for hover mowers. while environmental and state and local 11 Certain snowthrowers that do not meet the 14 Additionally, the use of lawnmowers and, air officials’ associations favored more handheld definition are nevertheless allowed to similarly, three- and four-wheeled edgers on stringent standards. meet the handheld, rather than nonhandheld, CO hillsides is not considered to be multipositional use One industry commenter argued that standards. Engines used exclusively in and, hence, they do not qualify as handheld snowthrowers will not be required to meet the HC equipment. Nevertheless, certain lawnmowers are EPA should at a minimum exempt standards, either handheld or nonhandheld, unless allowed to meet the handheld, rather than snowthrowers from the hydrocarbon manufacturers of these engines opt to certify to nonhandheld, standards. See below for further standards, since emissions from those standards. See below for further discussion. discussion. snowthrowers do not demonstrably 12 For augers, this break point is 20 kg. 15 All ice augers, whether or not they qualify as 13 See note to docket summarizing product handheld, will not be required to meet the HC contribute to summertime ozone weights, dated 2/17/95, by Lisa Snapp, U. S. standards, unless manufacturers of engines used in Environmental Protection Agency. (EPA Air Docket those products certify to the HC standards. Under applicable handheld or nonhandheld CO standard. #A–93–25.) today’s rule, ice augers will only be subject to the See below for further discussion. 34592 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations nonattainment concentrations. information submitted by industry, the whole. EPA, instead, must promulgate According to the commenter, Phase I overall weights of two-stroke regulations that apply nationally in accomplishes no demonstrable purpose snowthrowers range from 16.3 kg (36 scope and that address the air quality by regulating snowthrower hydrocarbon pounds) to 39.9 kg (88 pounds); the problems that face the nation generally. emissions, as snowthrowers are used average weight of the two-stroke models Under today’s rule, while exclusively during the winter and listed was 29.5 kg (65 pounds). In EPA’s manufacturers of snowthrowers will reductions achieved by regulating opinion, a product line ranging in still be required to certify to and comply snowthrowers would have no benefit for weight from 16.3 to 39.9 kg cannot fairly with applicable CO standards, they will areas seeking reductions in order to be considered light in weight, or be required to certify to the HC standard attain the ozone NAAQS during the specifically designed to be lifted or only where they opt to become subject high ozone season. carried, and EPA is not inclined to raise to those standards. The Agency expects Industry commented that there are no the weight limit in the handheld that many snowthrowers will in fact be snowthrowers with SI engines that definition to 30 kg to accommodate such certified to meet the HC standards, since weigh under 14 kg. As a result, all equipment. the technology necessary to meet those snowthrowers covered by the proposal Environmental and state and local air standards will be readily available to would be subject to nonhandheld officials’ associations opposed handheld snowthrower manufacturers and since standards. According to industry, if status for two-stroke snowthrowers. manufacturers may wish to be able to snowthrowers with two-stroke engines They expressed concern about the high take advantage of ‘‘green marketing’’ must comply with nonhandheld levels of unburned air toxics emitted by opportunities. However, the Agency standards, EPA would effectively be two-stroke engines, given operator does not believe it is appropriate at this banning such equipment and placing an proximity. The associations pointed out time to absolutely require all unreasonable hardship on that segment that for larger snowthrowers, four-stroke snowthrowers to be certified to meet a of industry. The Nonroad Study models are available, and for the small standard that is meant to address indicates that 26 percent of two-wheeled version, electric models ambient air quality problems that do not snowthrowers have two-stroke engines. are available. exist when when these products are in Industry offered three main lines of Since EPA agreed to undertake a use. This decision in no way affects reasoning for the position that all two- phased approach to small engine snowthrower manufacturer stroke snowthrowers should be regulation in March 1993 (see 59 FR responsibilities with respect to the CO considered handheld. First, 25399 at 25400–25401 for a detailed standards. Moreover, if an engine snowthrower manufacturers assumed explanation), EPA has maintained that manufacturer produces an engine that is that Phase 1 standards would mirror its Phase 1 program would be used in snowthrowers and in other CARB’s standards, including its special compatible with CARB’s and products that are not used exclusively exceptions. Second, snowthrowers do incorporate compatible emission in the winter, that engine must be not contribute to summer ozone standards, where it is appropriate to do certified to the applicable HC standard. nonattainment. Third, two-stroke so in a nationally, rather than Finally, today’s decision applies only snowthrowers have design, regionally, applicable regulation. with respect to regulating snowthrowers performance, and operational After considering the comments, the under this Phase I rule, and does not characteristics that fill a unique market Agency has concluded that the HC prejudge how the Agency will approach niche, and have many of the attributes standard will be optional for this issue in Phase 2. of handheld equipment. snowthrowers. This is because, as is The Agency is persuaded by The unique design, performance, and discussed in the preamble to the comments describing the design, operational characteristics cited by proposed rule (see 59 FR at 25416) and performance, and operational industry include size, weight, by industry comments, snowthrowers characteristics of two-stroke maneuverability, and ease of storage and are operated only in the winter, which snowthrowers that two-stroke transport. Two-stroke snowthrowers means that they do not measurably snowthrowers form a distinct product have only two wheels (neither of which impact ozone nonattainment class from four-stroke snowthrowers. As touch the ground during operation), and concentrations and thus need not be two-stroke snowthrowers are a distinct operators must provide continual subject to stringent control requirements product class that depends on a support and attitudinal control by aimed at controlling ozone relatively lighter-weight product, EPA raising and tilting the equipment in nonattainment. On a national level, does not consider four-stroke order for it to perform. ozone nonattainment is primarily a technology to be generally available Industry commenters noted that two- seasonal problem that occurs during technology for the more light-weight stroke snowthrowers use a 5.4 kg (12 warm sunny weather. Regulating HC two-stroke snowthrowers. pound) engine and a single belt-drive and emissions from products used The Agency shares the concerns system, eliminating the weight of exclusively in the winter, such as raised by commenters about operator additional belts and pulleys. Moreover, snowthrowers, will not advance the proximity to high levels of unburned air almost all two-stroke snowthrowers are Agency’s mission to correct this toxics emitted by two-stroke engines in ‘‘single-stage,’’ according to industry seasonal problem. EPA recognizes that a regulatory manner. However, EPA comments, meaning that they use an California will be regulating HC lacks sufficient data to address those auger to gather snow and expel it from emissions from snowthrowers, and concerns at this time. a single chamber. By contrast, almost all today’s decision should in no way The Agency agrees with comments four-stroke snowthrowers are two-stage prejudice California’s efforts. The that two-stroke snowthrowers would units that use an auger to gather snow Agency notes that California faces a meet the third prong of the handheld into one chamber and a separate uniquely difficult problem in that its definition but for the weight criterion. impeller to discharge it from a second ozone nonattainment season is year Rather than amend the weight criterion chamber, according to comments. The round, and that Congress has recognized in the handheld definition to include engines in four-stroke snowthrowers California’s potential need to adopt two-stroke snowthrowers, however, EPA weigh between 11 kg (25 pounds) and measures that are more stringent than is providing an exception to 27 kg (60 pounds). According to those that apply in the nation as a nonhandheld standards that will require Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34593 two-stroke snowthrowers to comply all lawnmowers, according to these two-stroke lawnmower engines to meet with handheld standards. The exception groups. Phase 2 nonhandheld standards. is based on the distinction between two- Environmental and state and local air Reducing sales below 50 percent would and four-stroke snowthrowers as officials’ associations commented that destroy the market for the product product classes. This result is consistent manufacturers have had ample before Phase 2 technology could be with CARB. opportunity to react to requirements implemented, and reduce plant that might reasonably have been utilization to unacceptable levels, 3. Lawnmowers expected. These manufacturers according to the manufacturer. Under EPA’s proposal, all participated in the process that led to The need for additional lead time was lawnmowers would be classified as the December 1990 adoption of CARB’s a common theme among industry nonhandheld equipment. The Agency standards and have already enjoyed a commenters, although only one two- requested comment on four options for four year period in which to take stroke mower engine manufacturer providing relief for two-stroke appropriate action. Those associations addressed the difficulty, if not lawnmower engine manufacturers. also commented that such regulatory impossibility, of two-stroke mowers Two industry manufacturer relief would compromise the meeting nonhandheld standards by the associations, a dealer association, and effectiveness of Phase 1, and thereby effective date of Phase 1. According to one manufacturer recommended that undermine their acceptance of the this manufacturer, it is not EPA allow two-stroke lawnmower phased approach to regulation of small technologically feasible for two-stroke engine manufacturers to meet handheld engines. engines to meet nonhandheld standards standards. They commented that two- The Agency is promulgating its at this time. The manufacturer argued in stroke lawnmower engines would proposal that lawnmowers be classified its comments that more engineering effectively be eliminated from the as nonhandheld equipment. However, effort is required for two-stroke market under the proposal. in response to the industry comments, lawnmower engines to meet handheld The manufacturer that commented EPA is providing an exception to the standards than for four-stroke engines to would be particularly impacted by the nonhandheld standard to allow two- meet nonhandheld standards. It said requirement that lawnmower engines stroke lawnmower engine that this is partly due to the difference meet nonhandheld standards because it manufacturers to produce a declining in duty cycles for handheld and is the largest producer of two-stroke percentage of two-stroke lawnmower nonhandheld engines, with handheld lawnmower engines. It argued that the engines that meet handheld standards engines having the advantage of a higher definition of handheld and until model year 2003. This relief for horsepower divisor than is obtained nonhandheld should not be used to two-stroke lawnmower engine under the variable nonhandheld load discriminate against engines according manufacturers is justified by the specifications. The manufacturer stated to their application, to bypass the economic hardship to current that it is an engineering uncertainty requirement of technological feasibility, manufacturers of two-stroke whether and how valve-control to distort the competitive balance of the lawnmowers that would result if two- techniques developed in the past, to industry by banning major products, nor stroke lawnmowers were required to enhance power output for smaller two- to place disproportionate burdens on meet nonhandheld standards upon the stroke engines used in products such as one company as the price of effective date of Phase 1, and by the chain saws, might be used to reduce maintaining an important product line. need for additional lead time for current emissions in lawnmowers. Finally, the A state commented that it sees no manufacturers of two-stroke manufacturer claimed that while it is reason to grant special concessions to lawnmowers to develop mowers that conceivable that its technology some manufacturers because their meet nonhandheld standards; EPA has development could permit the current product line uses a more concluded that handheld standards are introduction of engines meeting the polluting technology than their the most stringent standards achievable Phase 1 nonhandheld standards during competitors; such a policy would for lawnmowers currently using two- Phase 1, the prospect of this occurring penalize those manufacturers that have stroke engines in the near term given before the year 2001 is remote. pursued cleaner technologies, according these economic hardship and lead time CAA section 213(a)(3) specifies that to this comment. Complying four-stroke considerations. nonroad emission standards must engines are available and a sufficient Economic hardship that would result achieve the greatest degree of emission number of manufacturers participate in if two-stroke lawnmowers were required reduction achievable through the the market to ensure competition, this to meet nonhandheld standards is application of technology that the comment stated. documented in two sets of comments Administrator determines will be Environmental and state and local air from an engine and equipment available, giving appropriate officials’ associations expressed strong manufacturer. It stated that it would be consideration to cost, lead time, noise, opposition to the options for relief for forced to close a manufacturing plant energy and safety. Taking into account two-stroke lawnmowers; given that that employs 230 people unless some the economic hardship and lead time approximately 90 percent of form of relief from the requirement that considerations discussed above, EPA lawnmowers sold in the United States all lawnmowers comply with has determined that handheld standards already rely on four-stroke technology,16 nonhandheld standards is granted. The subject to a declining production cap plant is devoted to two-stroke engine it can not be argued that four-stroke are the most stringent emission operations, according to the comments. engines are not available technology for standards achievable for lawnmowers The manufacturer commented that the that currently use two-stroke engines. 16 See Table 2–03, ‘‘Inventory A & B National declining production option would Under the declining production cap, Population Estimates’’ from the Nonroad Engine avoid closure of the plant and maintain two-stroke lawnmower engine and Vehicle Emission Study (Report USEPA Office a minimally necessary market presence manufacturers that wish to continue of Air and Radiation document #21A–2001, for its two-stroke lawnmowers during producing two-stroke lawnmower November 1991). The Nonroad Study is available in EPA Air Docket #A–91–24. It is also available Phase 1. The manufacturer stated that engines must establish a production through the National Technical Information its principal goal and long-term strategy baseline. The production baseline is the Service, referenced as document PB 92–126960. is to develop technology that will enable highest number of two-stroke 34594 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations lawnmower engines produced in a commenters that four-stroke technology C. Requirements Applicable to Vehicle single annual production period from is generally available for lawnmowers, and Equipment Manufacturers 1992 through 1994. Documentation and that two-stroke engines are more 1. Requirement To Use Certified Engines verifying the production baseline must polluting than four-stroke engines. be submitted to EPA with the Still, although four-stroke technology The Agency proposed that vehicle application for certification. In model and equipment manufacturers using is theoretically available for all year 1997, two-stroke lawnmower small nonroad engines must use lawnmowers, it is not immediately engine manufacturers may produce 100 appropriate handheld or nonhandheld percent of their production baseline, available for manufacturers of two- certified engines, and prohibited the which must be certified to handheld stroke lawnmower engines. Due to the introduction into commerce of nonroad standards. In model year 1998, two- cost and lead time concerns outlined vehicles and equipment lacking stroke lawnmower engine above, EPA is providing a reasonable appropriate certified engines after the manufacturers may produce 75 percent opportunity for two-stroke lawnmower effective date. The Agency received of their production baseline. From engine manufacturers to come into comments both supporting and model year 1999 until model year 2003, compliance with nonhandheld questioning its authority to require the two-stroke lawnmower engine standards. use of certified engines. One industry manufacturers may produce 50 percent 4. Ice Augers association commented that EPA has no of their production baseline in each authority to require the use of certified annual production period. In model Under EPA’s proposal, all earth and engines. A manufacturer and an year 2003, two-stroke lawnmower ice augers would have been subject to industry association commented that engine manufacturers must meet either the applicable handheld or EPA’s authority under CAA section 213 Phase 1 nonhandheld standards or nonhandheld CO and HC standards. In does not extend to equipment. A state, Phase 2 nonhandheld standards, the preamble to the proposed rule, in an association of state and local air whichever are applicable. discussing snowthrowers, EPA noted officials, and an environmental Although EPA’s approach is not association supported the requirement consistent with CARB regulations, that the exclusively wintertime use of snowthrowers argues against regulating that equipment manufacturers use which require all lawnmowers to meet complying engines. emissions of HC from those products. In nonhandheld standards with no Several industry associations exceptions, EPA believes there are two today’s rule, EPA is in fact exempting commented that the prohibition on valid reasons for the distinction. First, snowthrowers from the requirement to introducing into commerce vehicles and Congress has recognized the need for certify to and comply with the HC equipment lacking appropriate certified California to maintain its own mobile standard, due to the fact that they do not engines after the effective date could source emission control program (see demonstrably contribute to ozone impose a substantial hardship on section 209 of the CAA) because it faces nonattainment concentrations. For the industry and is unnecessary to prevent difficult and distinct air pollution same reasons, today’s rule exempts ice stockpiling. According to their problems and, as a result, may need to augers from the requirement to certify to comments, equipment manufacturers adopt measures more stringent than and comply with HC standards, while now minimize the period they store those that apply in the nation as a still requiring them to meet the whole. Second, EPA’s nonroad emission engines to avoid the substantial costs applicable CO standard. Like associated with financing and standards are not allowed to be more snowthrowers, ice augers are clearly stringent than is achievable after warehousing inventoried engines. Two used only during the winter, and the consideration of cost and lead time associations asked EPA to clarify that Agency does not believe it would be according to section 213(a)(3) of the neither equipment manufacturers nor CAA. Although California is constrained reasonable to subject them to stringent dealers have any special obligation to by similar criteria per the authorization control requirements aimed at convert their inventories to use certified criteria of section 209(e), consideration addressing summertime ozone engines. of such criteria is limited to the State of nonattainment problems. At their The Agency is finalizing the California. The Agency must consider option, ice auger manufacturers will be requirement that nonroad vehicle and cost and lead time when nonroad able to certify to HC standards, if they equipment manufacturers use emission regulations affect the nation as find that complying technology is appropriate handheld or nonhandheld a whole. The Agency has concluded that available and wish to take advantage of certified engines, effective with the 1997 in order for it to meet the section ‘‘green marketing’’ opportunities. This model year. In EPA’s view, the most 213(a)(3) requirements to consider cost relief, however, is provided only for ice effective way to ensure that certified and lead time in setting its nationally augers. Earth augers, since they are in engines are used in nonroad vehicles applicable standard, EPA must provide fact used during the ozone and equipment is to require such for this limited relief for manufacturers nonattainment season, will be required engines to be used. CAA sections 213, of lawnmowers that use two-stroke to certify to applicable HC standards. 216, and 301 provide authority for this engines. This conclusion in no way Moreover, if a manufacturer produces requirement, since EPA is required to establish standards that apply to prejudges whether California should an engine that is used in ice augers and nonroad engines and the vehicles and grant similar relief. other products that are not used In contrast to the its treatment of two- equipment in which they are used. exclusively in the winter, that engine stroke versus four-stroke snowthrowers, must be certified to meet the applicable 2. Separate Effective Date EPA is not distinguishing two-stroke and four-stroke lawnmowers as separate HC standard. Finally, today’s decision The Agency requested comment on a products, but rather is recognizing the applies only with respect to regulating separate effective date for vehicle and technological infeasibility of two-stroke ice augers under this Phase I rule, and equipment manufacturers, due to engines used in lawnmowers meeting does not prejudge how the Agency will concern about inventories of the nonhandheld standard by the approach this issue in Phase 2. noncertified engines that could not be effective date. The Agency agrees with incorporated into vehicles or equipment Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34595 by the effective date. Most comments An association of equipment meet federal requirements for the 49- did not support a separate effective date. manufacturers argued that 402 g/kW-hr state label, and (3) the EPA label. The Agency is not establishing a is too stringent for Class V engines and The Agency will retain the provision separate effective date for nonroad suggested that 603 g/kW-hr would be a described in the NPRM that requires vehicle or equipment manufacturers. more appropriate standard. The Agency equipment and vehicle manufacturers to The Agency recognizes that certified requested and received further data and apply a supplemental label if the engines are not likely to be available in information to establish the appropriate original engine label is obscured. This the numbers needed by nonroad vehicle limit for these engines. Additionally, an provision is consistent with CARB’s and equipment manufacturers on the EPA-performed benefits analysis approach, and ensures that owners, effective date, and that these showed that the CO emission dealers, and repair personnel will have manufacturers will continue to use contribution in 2020 from Class V access to necessary engine information noncertified engines built prior to the engines complying with a 603 g/kW-hr without disassembling the original effective date until noncertified engine standard would decrease the benefits of inventories are used up and certified this rule by only 0.7 percent when vehicle or equipment. engines are available. As long as vehicle compared with the proposed standard of In addition, EPA has dropped the and equipment manufacturers do not 402 g/kW-hr. The environmental impact unique engine identification number inventory engines outside of normal of this change is low due to the small requirement. Based on information business practices (that is, as long as number of engines in this category. supplied by engine manufacturers and they do not stockpile noncertified Based on the technological feasibility their associations, EPA has determined engines), they will be considered to be information submitted and the small that the information to be gained by in compliance. The Agency is adding benefits impact, EPA has concluded that requiring the unique number did not language to 40 CFR 90.1003(b)(4) to this the proposed 402 g/kW-hr standard is justify the additional capital and effect. Neither vehicle and equipment not achievable for Phase 1 Class V administrative costs to the manufacturers nor dealers have any engines. The Agency has therefore manufacturers. Because no useful life obligation under this regulation to decided to raise the CO standard for time period or in-use standard is being convert their inventories to products Class V engines from the proposed 402 established, the Agency has decided to with certified engines. g/kW-hr to 603 g/kW-hr, which EPA allow in-use testing and recall on a believes is the most stringent standard D. CO Standard voluntary basis for Phase 1 and, as a achievable for Phase 1 Class V engines. result, there is no need for EPA to An association of engine Most, if not all, Class V engines are require the unique engine identification manufacturers requested an increase in preempted from state regulation as farm number. the CO emission standard for Class I and and construction equipment. Therefore, II engines from the proposed level of compatibility with CARB is not of such V. Environmental Benefit Assessment 402 g/kW-hr to 469 g/kW-hr. In importance for this engine class. summary, it requested that the standard However, this position on Class V CO The Agency has determined that the be raised so that industry can provide standards is applicable only to Phase 1 standards set in this rule will reduce consumers, original equipment and remains to be determined in emissions of HC and CO and, despite manufacturers, and commercial and upcoming Phase 2 regulations. attendant increased emissions of NOX, industrial users with a more complete will help most areas come into selection of engines (specifically mass E. Labeling compliance with the National Ambient market engines—the largest market for The Agency received several Air Quality Standards for ozone and, to small engines) that can meet the Phase comments on its proposed labeling a lesser extent, CO. Table 2 provides a 1 HC + NOX limits and perform requirements. After considering the summary of the annual nationwide acceptably under nearly all operating comments, EPA has decided to provide emission impacts expected from this conditions.17 equipment manufacturers with some rule, beginning with the first full year of The Agency had to decide whether or additional flexibility requested by implementation.18 Percentage not to grant this request based on its commenters regarding compatibility reductions shown are as compared to assessment of the technological with CARB’s labeling requirements. To the projected levels from small SI feasibility of providing an adequate reduce manufacturer burden and engines if this rule were not put into supply of Class I and II engines that increase consistency with CARB’s place. Note that annual emission could comply with the proposed 402 requirements, EPA will accept a label reductions increase greatly in the first g/kW-hr CO level for the entire nation. that has been approved by CARB and few years of the program and level off Based on the information submitted, that contains language indicating federal as fleet turnover is achieved; complete which is available in the docket for this standards have also been met. The turnover is projected by the year 2020. rulemaking, the Agency has decided Agency will accept any of the following: The underlying analysis and complete that 469 g/kW-hr is the lowest (1) A label for 50-state engine families table of emission reductions are achievable CO standard for Classes I and having language compatible with both provided in the Regulatory Support II, given cost and lead time constraints, CARB and EPA requirements, (2) a Document (RSD), a copy of which is in and has set the standard accordingly. CARB label with additional language to the public docket for this rulemaking. 17 The association states that engine standard, but not meet the 402 g/kW-hr CO ice augers will opt to certify such engines to meet manufacturers have been working for several years standard. the applicable HC standards. To the extent that this to develop products that will meet the Phase 1 18 These figures are based on the assumption that does not occur, estimated annual HC reductions, standards. Improvements in engine design have manufacturers of engines used in snowthrowers and and estimated annual NOX increases, would be been made sufficient to comply with the HC+NOX reduced. 34596 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations TABLE 2.ÐENVIRONMENTAL IMPACT Annual HC reduction Annual CO reduction Annual NOX increase Year Tons Percent Tons Percent Tons Percent 1997 ...... 102,800 13.1 244,600 2.7 11,000 67.5 2000 ...... 221,600 26.9 538,700 5.5 23,900 137.6 2003 ...... 262,700 30.5 651,400 6.3 27,800 150.7 2020 ...... 339,000 32.4 865,200 6.7 36,300 154.4 VI. Economic Effects sales volume is not expected to to any particular manufacturer’s engine The total national average annual cost decrease. or equipment. of this rule is estimated to be On average, the cost to the engine This rule is expected to decrease fuel approximately $70 million. If catalysts manufacturer to install the necessary consumption significantly. The average become necessary, the average annual emission control technology will be sales-weighted engine is expected to cost is estimated to be approximately approximately $2 per engine used in experience a 26 percent decrease in fuel $87 million. The net present value of nonhandheld equipment and $3.50 per consumption for nonhandheld pollution control capital costs is engine used in handheld equipment. equipment and a 13 percent decrease in estimated by EPA to be approximately This includes variable hardware and fuel consumption for handheld $28 million. Energy impacts are production costs, assuming that equipment. These decreases are expected to be positive, freeing up catalytic converters will not be needed translated into small discounted lifetime approximately $8 million for other uses to comply with proposed standards. sales-weighted fuel savings of in the economy. However, engine manufacturers may approximately $3 for nonhandheld voluntarily decide to use catalysts on a equipment and marginal for handheld The following summary presents percentage of engines at risk of only equipment. aggregate costs broken down by engines marginally complying. Should this The Agency expects that the engines used in nonhandheld and those used in occur, EPA estimates that the additional produced to meet the proposed handheld equipment.19 For greater variable hardware costs will be about $4 emission standards will be of higher detail of expected cost impacts, see the per catalyst-equipped engine. Since quality than current engines: the parts RSD. catalysts are not expected to be used and raw materials will be more durable A. Industry Cost Impacts much, the overall sales-weighted and less likely to malfunction, as Industry will bear pollution control average increase due to catalyst usage is discussed in the RSD. This will result in costs that are moderate: roughly 6 estimated to be about $1 for engines equipment that lasts longer and is percent for handheld and 2 percent for used in nonhandheld equipment and operational a higher percentage of the nonhandheld equipment relative to marginal for engines used in handheld time; however, EPA is unable to current production costs. The level of equipment. It should be noted that the quantify the attendant decrease in pollution control costs is largely due to costs between manufacturers will likely consumer cost or increase in useful life the high levels of pollution emitted by vary. at this time. The Agency requested comments on the potential decrease in these engines, especially two-stroke B. Consumer Cost Impacts engines, and the relatively outdated maintenance costs and increase in Consumers will find small increases state of the technology compared to on- useful life, but none were received that in retail prices for most equipment highway engines. However, the costs are shed light on this topic. powered by these engines. The initial still small in absolute terms, and it is Considering that the fuel savings purchase price to the consumer will, anticipated that these costs will be offset the average increase in retail price however, be partially or, in some cases, passed through to consumers in higher per engine, the average sales-weighted completely offset by savings in fuel and product prices. lifetime increase in cost will be about maintenance costs. Thus, over time, The Agency estimates that there will $6.50 per handheld engine, while environmentally friendly equipment be no long run negative impacts on nonhandheld engines will realize a will become less costly to consumers. employment as a result of this rule, as lifetime savings of about $2.50 per The retail price of equipment that costs can be recovered through engine. This does not include the uses nonhandheld engines ranges from increased prices. Any potential lifetime savings in maintenance costs, $90 to $9,000, and the retail price of decreases in employment that might which should further benefit the equipment that uses handheld engines occur due to obsolescence of product consumer. ranges from $60 to $1,000. The sales- line should be offset by increased weighted average increase in retail cost C. Cost-Effectiveness production of engines meeting emission to the consumer due to the rule in 2003 Based upon the costs and benefits standards. Total demand for these is estimated to be about $5 for described above, EPA has prepared a products has traditionally been nonhandheld equipment and $7 for cost-effectiveness analysis and has relatively inelastic and, thus, industry handheld equipment. If catalysts are performed a Regulatory Impact Analysis necessary, the values in 2003 are about (RIA) for this rule, which is contained 19 These estimate costs are based on the assumption that manufacturers of engines used in $7 for both nonhandheld and handheld in the RSD. Presented here is a summary snowthrowers and ice augers will opt to certify equipment. The retail price effects for a of the cost-effectiveness of the small SI such engines to meet the applicable HC standards. specific engine will likely be more or engine Phase 1 program, assuming To the extent that this does not occur, estimated less these values, depending on the catalysts are not used. industry cost impacts and consumer cost impacts would be reduced, and cost-effectiveness of the technology of the engine; these are If all program costs are allocated to program would not be significantly changed, if at average, sales-weighted costs, not HC, this rule has a cost-effectiveness of all. indicative of the price increase specific $280 per ton of HC reduced. Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34597 Alternatively, if all program costs are believes that an RIA is important for this collection of information, including allocated to CO, the cost-effectiveness is rule because small SI engines have not suggestions for reducing this burden to $113 per ton of CO reduced. If the costs previously been regulated. As such, this Chief, Information Policy Branch, EPA, of the program are equally split between action was submitted to OMB for 401 M Street, SW. (PM–223Y), HC and CO, the cost-effectiveness is review. Changes made in response to Washington, DC 20460; and to the $140 per ton of HC reduced and $57 per OMB suggestions or recommendations Office of Information and Regulatory ton of CO reduced. These cost- are documented in the public record. Affairs, Office of Management and effectiveness numbers are significantly B. Paperwork Reduction Act Budget, Washington, DC 20503, marked lower than costs per ton of other ‘‘Attention: Desk Officer for EPA.’’ available control strategies. The cost- The information collection C. Unfunded Mandates Act effectiveness estimates, underlying requirements in this rule have been quantitative methodology, and submitted for approval to the Office of Section 202 of the Unfunded comparisons to other available control Management and Budget (OMB) under Mandates Reform Act of 1995 strategies are explained further in the the Paperwork Reduction Act, 44 U.S.C. (‘‘Unfunded Mandates Act’’) (signed RSD. 3501 et seq. Copies of the ICR document into law on March 22, 1995) requires In summary, the cost-effectiveness of may be obtained from Sandy Farmer, that the Agency prepare a budgetary the rule is favorable relative to the cost- Information Policy Branch, EPA, 401 M impact statement before promulgating a effectiveness of several other control Street, SW (PM–223Y), Washington, DC rule that includes a Federal mandate measures required under the Clean Air 20460 or by calling (202) 260–2740. that may result in expenditure by State, Act. To the extent that cost-effective Table 3 provides a listing of this local, and tribal governments, in nationwide controls are applied to small rulemaking’s information collection aggregate, or by the private sector, of SI engines, the need to apply more requirements along with the appropriate $100 million or more in any one year. expensive additional controls to other information collection request (ICR) Section 203 requires the Agency to mobile and stationary sources of air numbers. The cost of this burden has establish a plan for obtaining input from pollution may be reduced in the future. been incorporated into the cost estimate and informing, educating, and advising for this rule. any small governments that may be VII. Administrative Requirements The Agency has estimated that the significantly or uniquely affected by the public reporting burden for the A. Administrative Designation and rule. collection of information required under Regulatory Analysis this rule would average approximately Under section 205 of the Unfunded Under Executive Order 12866,20 the 5,800 hours annually for a typical Mandates Act, the Agency must identify Agency must determine whether the engine manufacturer.21 The hours spent and consider a reasonable number of regulatory action is ‘‘significant’’ and by a manufacturer on information regulatory alternatives before therefore subject to OMB review and the collection activities in any given year promulgating a rule for which a requirements of the Executive Order. would be highly dependent upon budgetary impact statement must be The order defines ‘‘significant manufacturer specific variables, such as prepared. The Agency must select from regulatory action’’ as one that is likely the number of engine families, those alternatives the least costly, most to result in a rule that may: production changes, emission defects, cost-effective, or least burdensome (1) Have an annual effect on the etc. alternative that achieves the objectives economy of $100 million or more or of the rule, unless the Agency explains adversely affect in a material way the TABLE 3.ÐPUBLIC REPORTING why this alternative is not selected or the selection of this alternative is economy, a sector of the economy, BURDEN productivity, competition, jobs, the inconsistent with law. environment, public health or safety, or Because this final rule is estimated to EPA ICR Type of information OMB con- State, local, or tribal governments or No. trol no. result in the expenditure by State, local, communities; and tribal governments or the private (2) Create a serious inconsistency or 1695.02 . Certification ...... 2060±0338 sector of less than $100 million in any 0282.06 . Emission Defect 2060±0048 one year, the Agency has not prepared otherwise interfere with an action taken Information. or planned by another agency; 1673.01 . Importation of Non- 2060±0294 a budgetary impact statement or (3) Materially alter the budgetary conforming En- specifically addressed the selection of impact of entitlement, grants, user fees, gines. the least costly, most cost-effective or or loan programs or the rights and 1674.01 . Selective Enforce- 2060±0295 least burdensome alternative. Because obligations of recipients thereof; ment Auditing. small governments will not be (4) Raise novel legal or policy issues 0012.07 . Engine Exclusion 2060±0124 significantly or uniquely affected by this arising out of legal mandates, the Determination. rule, the Agency is not required to President’s priorities, or the principles 0095.03 . Pre-certification 2060±0007 develop a plan with regard to small and Testing Ex- set forth in the Executive Order. emption. governments. Pursuant to the terms of Executive 1675.01 . In-use Testing 2060±0292 D. Regulatory Flexibility Act Order 12866, it has been determined (proposed; not fi- that this rule is a ‘‘significant regulatory nalized). The Regulatory Flexibility Act (5 action’’ because this rulemaking U.S.C. 601, et seq.) requires EPA to adversely affects in a material way a Send comments regarding the burden consider potential impacts of proposed sector of the economy, namely estimate or any other aspect of this regulations on small business ‘‘entities.’’ manufacturers of small SI engines, If a preliminary analysis indicates that particularly the manufacturers who 21 This estimate is based on the assumption that a proposed regulation would have a specialize in the production of small manufacturers of engines used in snowthrowers and significant economic impact on 20 ice augers will opt to certify those engines to meet handheld engines. Further, EPA the applicable HC standards. To the extent that this percent or more of small entities, then does occur, the Agency does not estimate the a regulatory flexibility analysis must be 20 58 FR 51735 (October 4, 1993). average reporting burden will change. prepared. 34598 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations The Agency has recently adopted a U.S.C. 1251 et seq., 1311, 1313d, 1314, 1321, 90.114 Requirement of certification—engine new approach to regulatory flexibility: 1326, 1330, 1334, 1345(d) and (e), 1361; E.O. information label. for purposes of EPA’s implementation of 11735, 38 FR 21243, 3 CFR, 1971–1975 Comp 90.115 Requirement of certification— the Act, any impact is a significant p. 973; 42 U.S.C. 241, 242b, 243, 246, 300f, supplying production engines upon 300g, 300g–1, 300g–2, 300g–3, 300g–4, 300g– request. impact, and any number of small 5, 300g–6, 300j–1, 300j–2, 300j–3, 300j–4, 90.116 Certification procedure—determining 22 entities is a substantial number. Thus, 300j–9, 1857 et seq., 6901–6992(k), 7401– engine displacement, engine class, and EPA will consider regulatory options for 7671(q), 7542, 9601–9657, 11023, 11048. engine families. every regulation subject to the Act that 90.117 Certification procedure—test engine can reasonably be expected to have an 2. Section 9.1 is amended by adding selection. impact on small entities. In light of this new entries and a new heading to the 90.118 Certification procedure—service new approach, EPA has determined that table to read as follows: accumulation. 90.119 Certification procedure—testing. this rule will have a significant effect on § 9.1 OMB approvals under the Paperwork a substantial number of small entities. 90.120 Certification procedure—use of Reduction Act. special test procedures. As a result, EPA tailored this rule to * * * * * 90.121 Certification procedure— minimize the cost burdens imposed on recordkeeping. smaller engine manufacturers. (See OMB con- 90.122 Amending the application and ‘‘Small Entities’’ in the Response to 40 CFR citation trol No. certificate of conformity. Comments for more discussion and 90.123 Denial, revocation of certificate of comments.) conformity. The regulations contain certification ***** 90.124 Request for hearing. requirements for new engines, Selective Control of Emissions From New and In-use 90.125 Hearing procedures. Enforcement Auditing provisions for the Nonroad Engines 90.126 Right of entry and access. 90.107±90.108 ...... 2060±0338 testing of production engines, and Subpart CÐ[Reserved] 90.113 ...... 2060±0338 prohibitions on incorrect engine use for 90.115±90.124 ...... 2060±0338 Subpart DÐEmission Test Equipment equipment manufacturers. For example, 90.126 ...... 2060±0338 Provisions the SEA program is structured such that 90.304±90.329 ...... 2060±0338 manufacturers with lower annual 90.301 Applicability. 90.404±90.427 ...... 2060±0338 90.302 Definitions. production volumes have a decreased 90.505±90.509 ...... 2060±0295 90.303 Symbols, acronyms, abbreviations. testing burden. Even though 90.511±90.512 ...... 2060±0295 90.304 Test equipment overview. consideration was given to small 90.604 ...... 2060±0294 90.305 Dynamometer specifications and entities in developing the requirements 90.611±90.613 ...... 2060±0294 calibration accuracy. of this rule, it has recently come to 90.800 ...... 2060±0048 90.306 Dynamometer torque cell calibration. 90.802±90.804 ...... 2060±0048 90.307 Engine cooling system. EPA’s attention that there may be a few 90.806 ...... 2060±0048 businesses that are so small that even 90.308 Lubricating oil and test fuels. 90.903 ...... 2060±0124 90.309 Engine intake air temperature the reduced requirements could 90.905±90.906 ...... 2060±0007 threaten their livelihood. In light of this, measurement. 90.310 Engine intake air humidity the Agency is currently considering 3. Part 90 is added to read as follows: measurement. exemptions or flexible requirements for 90.311 Test conditions. small entities for all of its nonroad rules. PART 90ÐCONTROL OF EMISSIONS 90.312 Analytical gases. List of Subjects in 40 CFR Parts 9 and FROM NONROAD SPARK±IGNITION 90.313 Analyzers required. ENGINES 90.314 Analyzer accuracy and specifications. 90 90.315 Analyzer initial calibration. Environmental protection, Subpart AÐGeneral 90.316 Hydrocarbon analyzer calibration. Administrative practice and procedure, Sec. 90.317 Carbon monoxide analyzer Air pollution control, Confidential 90.1 Applicability. calibration. business information, Imports, 90.2 Effective dates. 90.318 Oxides of nitrogen analyzer Incorporation by reference, Labeling, 90.3 Definitions. calibration. 90.4 Treatment of confidential information. 90.319 NOX converter check. Nonroad source pollution, Reporting 90.320 Carbon dioxide analyzer calibration. and recordkeeping requirements. 90.5 Acronyms and abbreviations. 90.6 Table and figure numbering; position. 90.321 NDIR analyzer calibration. Dated: May 30, 1995. 90.7 Reference materials. 90.322 Calibration of other equipment. Carol M. Browner, 90.323 Analyzer bench checks. Subpart BÐEmission Standards and 90.324 Analyzer leakage check. Administrator. Certification Provisions 90.325 Analyzer interference checks. For the reasons set out in the 90.101 Applicability. 90.326 Pre-and post-test analyzer preamble, title 40, chapter I of the Code 90.102 Definitions. calibration. of Federal Regulations is amended as 90.103 Exhaust emission standards. 90.327 Sampling system requirements. follows: 90.104 Compliance with emission standards. 90.328 Measurement equipment accuracy/ 90.105 Useful life period. calibration frequency table. PART 9Ð[AMENDED] 90.106 Certificate of conformity. 90.329 Catalyst thermal stress test. 90.107 Application for certification. 1. The authority citation for part 9 90.108 Certification. Appendix A to Subpart DÐTables continues to read as follows: 90.109 Requirement of certification—closed Authority: 7 U.S.C. 135 et seq., 136–136y; crankcase. Appendix B to Subpart DÐFigures 15 U.S.C. 2001, 2003, 2005, 2006, 2601–2671; 90.110 Requirement of certification— Subpart EÐGaseous Exhaust Test 21 U.S.C. 331j, 346a, 348; 31 U.S.C. 9701; 33 prohibited controls. 90.111 Requirement of certification— Procedures 22 Habicht, F. Henry II, Deputy Administrator, prohibition of defeat devices. 90.401 Applicability. Internal EPA Memorandum, ‘‘Revised Guidelines 90.112 Requirement of certification— 90.402 Definitions. for Implementing the Regulatory Flexibility Act,’’ adjustable parameters. 90.403 Symbols, acronyms, and April 9, 1992. 90.113 In-use testing programs. abbreviations. Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34599 90.404 Test procedure overview. 90.604 General requirements. (b) Notwithstanding paragraph (a) of 90.405 Recorded information. 90.605–90.610 (Reserved) this section, the following nonroad 90.406 Engine parameters to be measured 90.611 Importation for purposes other than engines and vehicles are not subject to and recorded. resale. the provisions of this part: 90.407 Engine inlet and exhaust systems. 90.612 Exemptions and exclusions. (1) Engines used to propel marine 90.408 Pre-test procedures. 90.613 Prohibited acts; penalties. 90.409 Engine dynamometer test run. 90.614 Treatment of confidential vessels as defined in the General 90.410 Engine test cycle. information. Provisions of the United States Code, 1 90.411 Post-test analyzer procedures. U.S.C. 3 (1992); 90.412 Data logging. Subpart HÐ[Reserved] (2) Engines that are both: 90.413 Exhaust sample procedure—gaseous Subpart IÐEmission-related Defect (i) Used in underground mining or in components. Reporting Requirements, Voluntary underground mining equipment; and 90.414 Raw gaseous exhaust sampling and Emission Recall Program (ii) Regulated by the Mining Safety analytical system description. 90.415 Raw gaseous sampling procedures. 90.801 Applicability. and Health Administration (MSHA) in 90.416 Intake air flow measurement 90.802 Definitions. 30 CFR parts 7, 31, 32, 36, 56, 57, 70, specifications. 90.803 Emission defect information report. and 75; 90.417 Fuel flow measurement 90.804 Voluntary emissions recall. (3) Engines used in motorcycles and specifications. 90.805 Reports, voluntary recall plan filing, regulated in 40 CFR part 86, subpart E; 90.418 Data evaluation for gaseous record retention. (4) Engines used in aircraft as that emissions. 90.806 Responsibility under other legal term is defined in 40 CFR 87.1(a); 90.419 Raw emission sampling provisions preserved. (5) Engines used in recreational 90.807 Disclaimer of production warranty calculations—gasoline fueled engines. vehicles and which are defined by the 90.420 CVS concept of exhaust gas applicability. sampling system. following criteria: Subpart JÐExclusion and Exemption of 90.421 Dilute gaseous exhaust sampling (i) The engine’s rated speed is greater Nonroad Engines From Regulations and analytical system description. than or equal to 5,000 RPM; 90.422 Background sample. 90.901 Applicability. (ii) The engine has no installed speed 90.423 Exhaust gas analytical system; CVS 90.902 Definitions. governor; grab sample. 90.903 Exclusions, applications of section (iii) The engine is not used for the 90.424 Dilute sampling procedures—CVS 216(10) of the Act. propulsion of a marine vessel; and calibration. 90.904 Who may request an exemption. (iv) The engine does not meet the 90.425 CVS calibration frequency. 90.905 Testing exemption. criteria to be categorized as a Class III, 90.426 Dilute emission sampling 90.906 Manufacturer-owned exemption and calculations—gasoline fueled engines. precertification exemption. IV, or V engine, as indicated in § 90.103. 90.427 Catalyst thermal stress resistance 90.907 Display exemption. (c) Engines subject to the provisions evaluation. 90.908 National security exemption. of this subpart are also subject to the 90.909 Export exemptions. provisions of subparts B, D, E, F, G, I, Appendix A to Subpart EÐTables 90.910 Granting of exemptions. J, K, and L of this part. 90.911 Submission of exemption requests. Appendix B to Subpart EÐFigures 90.912 Treatment of confidential § 90.2 Effective dates. information. (a) This subpart applies to nonroad Subpart FÐSelective Enforcement Auditing Subpart KÐProhibited Acts and General spark-ignition engines at or below 19 90.501 Applicability. Enforcement Provisions kW effective with the 1997 model year. 90.502 Definitions. (b) Notwithstanding paragraph (a) of 90.1001 Applicability. 90.503 Test orders. this section, this subpart applies to class 90.504 Testing by the Administrator. 90.1002 Definitions. 90.505 Maintenance of records; submittal of 90.1003 Prohibited acts. V engines, as specified in § 90.116(b)(5), information. 90.1004 General enforcement provisions. that are preempted from regulation in 90.506 Right of entry and access. 90.1005 Injunction proceedings for California by section 209(e)(1)(A) of the 90.507 Sample selection. prohibited acts. Act, effective January 1, 1998. 90.508 Test procedures. 90.1006 Penalties. 90.509 Calculation and reporting of test § 90.3 Definitions. results. Subpart LÐEmission Warranty and The following definitions apply to Maintenance Instructions 90.510 Compliance with acceptable quality part 90. All terms not defined herein level and passing and failing criteria for 90.1101 Applicability. have the meaning given them in the Act. selective enforcement audits. 90.1102 Definitions. Act means the Clean Air Act, as 90.511 Suspension and revocation of 90.1103 Emission warranty, warranty amended, 42 U.S.C. 7401 et seq. certificates of conformity. period. 90.512 Request for public hearing. 90.1104 Furnishing of maintenance Adjustable parameter means any 90.513 Administrative procedures for instructions to ultimate purchaser. device, system, or element of design public hearing. Authority: Sections 203, 204, 205, 206, which is physically capable of being 90.514 Hearing procedures. 207, 208, 209, 213, 215, 216, and 301(a) of adjusted (including those which are 90.515 Appeal of hearing decision. the Clean Air Act, as amended (42 U.S.C. difficult to access) and which, if 90.516 Treatment of confidential 7522, 7523, 7524, 7525, 7541, 7542, 7543, adjusted, may affect emissions or engine information. 7547, 7549, 7550, and 7601(a)). performance during emission testing or normal in-use operation. Appendix A to Subpart FÐSampling Subpart AÐGeneral Administrator means the Plans for Selective Enforcement Administrator of the Environmental Auditing of Nonroad Engines § 90.1 Applicability. Protection Agency or his or her Subpart GÐImportation of Nonconforming (a) This part applies to nonroad spark- authorized representative. Engines ignition engines and vehicles that have Auxiliary emission control device 90.601 Applicability. a gross power output at or below 19 (AECD) means any element of design 90.602 Definitions. kilowatts (kW) and that are used for any that senses temperature, vehicle speed, 90.603 (Reserved) purpose. engine RPM, transmission gear, or any 34600 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations other parameter for the purpose of new model production period, model engines) that replaces an engine at a activating, modulating, delaying, or year means calendar year. location and that is intended to perform deactivating the operation of any part of New, for the purposes of this part, the same or similar function as the the emission control system. means a nonroad engine or nonroad engine replaced will be included in Certification means, with respect to vehicle the equitable or legal title to calculating the consecutive time period. new nonroad engines, obtaining a which has never been transferred to an An engine located at a seasonal source certificate of conformity for an engine ultimate purchaser. Where the equitable is an engine that remains at a seasonal family complying with the nonroad or legal title to the engine or vehicle is source during the full annual operating engine emission standards and not transferred to an ultimate purchaser period of the seasonal source. A requirements specified in this part. until after the engine or vehicle is seasonal source is a stationary source Emission control system means any placed into service, then the engine or that remains in a single location on a device, system, or element of design vehicle will no longer be new after it is permanent basis (i.e., at least two years) which controls or reduces the emission placed into service. A nonroad engine or and that operates at that single location of substances from an engine. vehicle is placed into service when it is approximately three months (or more) Engine as used in this part, refers to used for its functional purposes. With each year. This paragraph does not nonroad engine. respect to imported nonroad engines or apply to an engine after the engine is Engine family means a group of nonroad vehicles, the term ‘‘new’’ removed from the location. engines, as specified in § 90.116. means an engine or vehicle that is not Nonroad vehicle means a vehicle that Engine manufacturer means any covered by a certificate of conformity is powered by a nonroad engine as person engaged in the manufacturing or issued under this part at the time of defined in this section and that is not a assembling of new nonroad engines or importation, and that is manufactured motor vehicle or a vehicle used solely the importing of such engines for resale, after the effective date of a regulation for competition. Nonroad vehicle also or who acts for and is under the control issued under this part which is includes equipment that is powered by of any such person in connection with applicable to such engine or vehicle (or nonroad engines. Nonroad vehicle manufacturer means the distribution of such engines. Engine which would be applicable to such any person engaged in the manufacturer does not include any engine or vehicle had it been manufacturing or assembling of new dealer with respect to new nonroad manufactured for importation into the nonroad vehicles or importing such engines received by such person in United States). vehicles for resale, or who acts for and commerce. Nonroad engine means: is under the control of any such person EPA enforcement officer means any (1) Except as discussed in paragraph in connection with the distribution of officer, employee, or authorized (2) of this definition, any internal such vehicles. A nonroad vehicle representative of the U.S. combustion engine: manufacturer does not include any Environmental Protection Agency so (i) In or on a piece of equipment that dealer with respect to new nonroad designated in writing by the is self-propelled or serves a dual vehicles received by such person in Administrator (or by his or her purpose by both propelling itself and commerce. designee). performing another function (such as garden tractors, off-highway mobile Operating hours means: Exhaust emissions means matter cranes, and bulldozers); or (1) For engine storage areas or emitted into the atmosphere from any (ii) In or on a piece of equipment that facilities, all times during which opening downstream from the exhaust is intended to be propelled while personnel other than custodial port of a nonroad engine. performing its function (such as personnel are at work in the vicinity of Fuel system means all components lawnmowers and string trimmers); or the storage area or facility and have involved in the transport, metering, and (iii) That, by itself or in or on a piece access to it. mixture of the fuel from the fuel tank to of equipment, is portable or (2) For all other areas or facilities, all the combustion chamber(s) including transportable, meaning designed to be times during which an assembly line is the following: fuel tank, fuel tank cap, and capable of being carried or moved in operation or all times during which fuel pump, fuel lines, oil injection from one location to another. Indicia of testing, maintenance, service metering system, carburetor or fuel transportability include, but are not accumulation, production or injection components, and all fuel limited to, wheels, skids, carrying compilation of records, or any other system vents. handles, dolly, trailer, or platform. procedure or activity related to Gross power means the power (2) An internal combustion engine is certification testing, to translation of measured at the crankshaft or its not a nonroad engine if: designs from the test stage to the equivalent, the engine being equipped (i) The engine is used to propel a production stage, or to engine only with the standard accessories (such motor vehicle or a vehicle used solely manufacture or assembly is being as oil pumps, coolant pumps, and so for competition, or is subject to carried out in a facility. forth) necessary for its operation on the standards promulgated under section Presentation of credentials means the test bed. 202 of the Act; or display of the document designating a Handheld equipment engine means a (ii) The engine is regulated by a person as an EPA enforcement officer or nonroad engine that meets the federal New Source Performance EPA authorized representative. requirements specified in § 90.103(a)(2) Standard promulgated under section Scheduled maintenance means any (i) through (iv). 111 of the Act; or adjustment, repair, removal, Model year (MY) means the (iii) The engine otherwise included in disassembly, cleaning, or replacement of manufacturer’s annual new model paragraph (1)(iii) of this definition components or systems required by the production period which includes remains or will remain at a location for manufacturer to be performed on a January 1 of the calendar year, ends no more than 12 consecutive months or a periodic basis to prevent part failure or later than December 31 of the calendar shorter period of time for an engine vehicle or engine malfunction, or those year, and does not begin earlier than located at a seasonal source. A location actions anticipated as necessary to January 2 of the previous calendar year. is any site at a building, structure, correct an overt indication of Where a manufacturer has no annual facility, or installation. Any engine (or malfunction or failure for which Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34601 periodic maintenance is not to this subpart is entitled to confidential VOC—Volatile organic compounds appropriate. treatment, the information covered by ZROD—zirconiumdioxide sensor Test engine means the engine or group that confidentiality claim will be of engines that a manufacturer uses disclosed by the Administrator only to § 90.6 Table and figure numbering; during certification to determine the extent and by means of the position. compliance with emission standards. procedures set forth in part 2, subpart B (a) Tables for each subpart appear in Ultimate purchaser means, with of this chapter. an appendix at the end of the subpart. respect to any new nonroad engine or (e) Information provided without a Tables are numbered consecutively by new nonroad vehicle, the first person claim of confidentiality at the time of order of appearance in the appendix. who in good faith purchases such new submission may be made available to The table title will indicate the topic. nonroad engine or vehicle for purposes the public by EPA without further (b) Figures for each subpart appear in other than resale. notice to the submitter, in accordance an appendix at the end of the subpart. Used solely for competition means with § 2.204(c)(2)(i)(A) of this chapter. Figures are numbered consecutively by exhibiting features that are not easily § 90.5 Acronyms and abbreviations. order of appearance in the appendix. removed and that would render its use The figure title will indicate the topic. other than in competition unsafe, The following acronyms and impractical, or highly unlikely. abbreviations apply to part 90. § 90.7 Reference materials. Warranty period means the period of AECD—Auxiliary emission control (a) Incorporation by reference. The time the engine or part is covered by the device documents in paragraph (b) of this warranty provisions. ASME—American Society of section have been incorporated by Mechanical Engineers § 90.4 Treatment of confidential reference. The incorporation by information. ASTM—American Society for Testing reference was approved by the Director and Materials of the Federal Register in accordance (a) Any manufacturer may assert that CAA—Clean Air Act some or all of the information submitted with 5 U.S.C. 552(a) and 1 CFR part 51. CAAA—Clean Air Act Amendments of Copies may be inspected at U.S. EPA pursuant to this part is entitled to 1990 confidential treatment as provided by Air and Radiation Docket, room M– CLD—chemiluminescent detector 1500, 401 M Street, S.W., Washington part 2, subpart B of this chapter. CO—Carbon monoxide (b) Any claim of confidentiality must D.C. 20460, or at the Office of the CO2—Carbon dioxide accompany the information at the time Federal Register, 800 North Capitol EPA—Environmental Protection Agency Street, NW., suite 700, Washington, DC. it is submitted to EPA. FTP—Federal Test Procedure (b) The following paragraphs and (c) To assert that information g/kW-hr—grams per kilowatt hour tables set forth the material that has submitted pursuant to this subpart is HC—hydrocarbons confidential, a manufacturer must HCLD—heated chemiluminescent been incorporated by reference in this indicate clearly the items of information detector part. claimed confidential by marking, HFID—heated flame ionization detector (1) ASTM material. The following circling, bracketing, stamping, or ICI—independent Commercial Importer table sets forth material from the otherwise specifying the confidential NDIR—non-dispersive infrared analyzer American Society for Testing and information. Furthermore, EPA requests, NIST—National Institute for Standards Materials which has been incorporated but does not require, that the submitter and Testing by reference. The first column lists the also provide a second copy of its NO—Nitric oxide number and name of the material. The submittal from which all confidential NO2—Nitrogen dioxide second column lists the section(s) of information has been deleted. If a need NOX—Oxides of nitrogen this part, other than § 90.7, in which the arises to publicly release O2—Oxygen matter is referenced. The second nonconfidential information, EPA will OEM—original equipment manufacturer column is presented for information assume that the submitter has accurately PMD—paramagnetic detector only and may not be all inclusive. deleted the confidential information SAE—Society of Automotive Engineers Copies of these materials may be from this second copy. SEA—Selective Enforcement Auditing obtained from American Society for (d) If a claim is made that some or all SI—spark-ignition Testing and Materials, 1916 Race St., of the information submitted pursuant U.S.C.—United States Code Philadelphia, PA 19103. Document number and name 40 CFR part 90 reference ASTM D86±93: Standard Test Method for Distillation of Petroleum Products ...... Appendix A to subpart D, Table 3. ASTM D1319±89: Standard Test Method for Hydrocarbon Types in Liquid Petroleum Products by Fluorescent Indica- Appendix A to subpart D, Table 3. tor Adsorption. ASTM D2622±92: Standard Test Method for Sulfur in Petroleum Products by X-ray Spectrometry ...... Appendix A to subpart D, Table 3. ASTM D2699±92: Standard Test Method for Knock Characteristics of Motor Fuels by the Research Method ...... Appendix A to subpart D, Table 3. ASTM D2700±92: Standard Test Method for Knock Characteristics of Motor and Aviation Fuels by the Motor Method Appendix A to subpart D, Table 3. ASTM D3231±89: Standard Test Method for Phosphorus in Gasoline ...... Appendix A to subpart D, Table 3. ASTM D3606±92: Standard Test Method for Determination of Benzene and Toluene in Finished Motor and Aviation Appendix A to subpart D, Table 3. Gasoline by Gas Chromatography. ASTM D5191±93a: Standard Test Method for Vapor Pressure of Petroleum Products (Mini Method) ...... Appendix A to subpart D, Table 3. 34602 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations Document number and name 40 CFR part 90 reference ASTM E29±93a: Standard Practice for Using Significant Digits in Test Data to Determine Conformance with Speci- 90.116; 90.509. fications. (2) SAE material. The following table the material. The second column lists not be all inclusive. Copies of these sets forth material from the Society of the section(s) of this part, other than materials may be obtained from Society Automotive Engineers which has been § 90.7, in which the matter is of Automotive Engineers International, incorporated by reference. The first referenced. The second column is 400 Commonwealth Dr., Warrendale, column lists the number and name of presented for information only and may PA 15096–0001. 40 CFR part Document number and name 90 ref- erence SAE J1930 September 1991, Electrical/Electronic Systems Diagnostic Terms, Definitions, Abbreviations and Acronyms ...... 90.114 SAE Paper 770141, Optimization of a Flame Ionization Detector for Determination of Hydrocarbon in Diluted Automotive Ex- hausts, Glenn D. Reschke, 1977 ...... 90.316 Subpart BÐEmission Standards and meaning given them in the Act. The sinking. It is not necessary for the entire Certification Provisions following definitions also apply to this weight of the equipment to be borne by subpart. the operator. § 90.101 Applicability. Attitudinal control means the operator The requirements of subpart B are regulates either the horizontal or § 90.103 Exhaust emission standards. applicable to all nonroad engines and vertical position of the equipment, or (a) Exhaust emissions from new vehicles subject to the provisions of both. nonroad spark-ignition engines at or Carry means the operator completely subpart A of part 90. below 19 kilowatts (kW), effective with bears the weight of the equipment, the 1997 model year, shall not exceed § 90.102 Definitions. including the engine. The definitions in subpart A of part Support means that the operator holds the following levels: 90 apply to this subpart. All terms not the equipment in position so as to Exhaust Emission Standards (grams per defined herein or in subpart A have the prevent it from falling, slipping or kilowatt-hour) Engine displace- Hydrocarbon plus oxides of ni- ment trogen Hydrocarbon Carbon monoxide Oxides of nitrogen class I 16.1 ...... 469 ...... II 13.4 ...... 469 ...... III ...... 295 805 5.36 IV ...... 241 805 5.36 V ...... 161 603 5.36 (1) Each engine displacement class equipment, and at least one of the (4) Notwithstanding paragraph (a)(2) has a unique set of exhaust emission following attributes is also present: of this section, two-stroke engines used standards. Boundaries for each class are (A) The operator must alternately to power snowthrowers may meet class indicated in § 90.116(b). provide support or carry the equipment III, IV, or V standards. (2) Emission standards for classes III, throughout the performance of its (5) Notwithstanding paragraph (a)(2) IV, V may be used only if an engine intended function(s); of this section, engines used exclusively meets at least one of the following (B) The operator must provide to power snowthrowers or ice augers, at requirements: support or attitudinal control for the the option of the engine manufacturer, (i) The engine must be used in a piece equipment throughout the performance need not certify to or comply with of equipment that is carried by the of its intended function(s); and standards regulating emissions of operator throughout the performance of its intended function(s); (C) The engine must be used in a hydrocarbons. If the manufacturer (ii) The engine must be used in a generator or pump; exercises the option to certify to piece of equipment that must operate (iv) The engine must be used to power standards regulating such emissions, multipositionally, such as upside down one-person augers, with a combined such engines must meet such standards. or sideways, to complete its intended engine and equipment dry weight under If the engine produced by the function(s); 20 kilograms. manufacturer is to be used in any (iii) The engine must be used in a (3) Notwithstanding paragraph (a)(2) equipment or vehicle other than a piece of equipment for which the of this section, two-stroke engines used snowthrower or ice auger, it must be combined engine and equipment dry to power lawnmowers may meet class certified to the applicable standard weight is under 14 kilograms, no more III, IV, or V standards until model year regulating emissions of hydrocarbons. than two wheels are present on the 2003. Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34603 (b) Exhaust emissions will be Administrator prior to selling, offering to be installed on any production or test measured using the procedures set forth for sale, introducing into commerce, or engine(s); in subpart E of this part. importing into the United States the (3) Proposed test engine(s) selection new engine. Engines produced prior to and the rationale for the test engine(s) § 90.104 Compliance with emission the effective date of a certificate of selection; standards. conformity may also be covered by the (4) Special or alternate test (a) If all test engines representing an certificate, once it is effective, if the procedures, if applicable; engine family have emissions less than following conditions are met: (5) A description of the operating or equal to each emission standard in a (1) The engines conform in all cycle and the service accumulation given engine displacement class, that respects to the engines described in the period necessary to break-in the test family complies with that class of application for the certificate of engine(s) and stabilize emission levels emission standards. conformity. and any maintenance scheduled; (b) If any test engine representing an (2) The engines are not sold, offered (6) A description of all adjustable engine family has emissions greater than for sale, introduced into commerce, or operating parameters including the any one emission standard in a given delivered for introduction into following: engine displacement class, that family commerce prior to the effective date of (i) The nominal or recommended will be deemed not in compliance with the certificate of conformity. setting and the associated production that class of emission standards. (3) EPA is notified prior to the tolerances; (c) If catalysts are used in an engine beginning of production when such (ii) The intended physically family, the engine manufacturer must production will start, and EPA is adjustable range; affirm that catalyst durability has been provided a full opportunity to inspect (iii) The limits or stops used to confirmed on the basis of the evaluation and/or test the engines during and after establish adjustable ranges; procedure that is specified in subpart E their production. EPA must have the (iv) Production tolerances of the of this part. opportunity to conduct SEA production limits or stops used to establish each physically adjustable range; and § 90.105 Useful life period. line testing as if the vehicles had been produced after the effective date of the (v) Information relating to why the A useful life period for engines certificate. physical limits or stops used to establish subject to the provisions of subpart A of (e) Engines that are certified by EPA the physically adjustable range of each this part will be set by the Agency in the prior to January 2, 1996 for model year parameter, or any other means used to second phase of small engine regulation 1997 may be delivered for introduction inhibit adjustment, are effective in and will be promulgated no later than into commerce prior to January 2, 1996 preventing adjustment of parameters to April 30, 1997. once a certificate of conformity has been settings outside the manufacturer’s intended physically adjustable ranges § 90.106 Certificate of conformity. issued. (f) Engines imported by an original on in-use engines; (a) Except as specified in § 90.2(b), equipment manufacturer after December (7) The proposed maintenance every manufacturer of new engines 31 of the calendar year for which the instructions the manufacturer will produced during or after model year model year is named are still covered by furnish to the ultimate purchaser of 1997 must obtain a certificate of the certificate of conformity as long as each new nonroad engine and the conformity covering such engines; the production of the engine was proposed engine information label; however, engines manufactured during completed before December 31 of that (8) All test data obtained by the an annual production period beginning year. manufacturer on each test engine; prior to September 1, 1996 are not (9) A statement that the test engine(s), required to be certified. § 90.107 Application for certification. as described in the manufacturer’s (b)(1) The annual production period (a) For each engine family, the engine application for certification, has been begins either when an engine family is manufacturer must submit to the tested in accordance with the applicable first produced or on January 2 of the Administrator a completed application test procedures, utilizing the fuels and calendar year preceding the year for for a certificate of conformity. equipment required under subparts D which the model year is designated, (b) The application must be approved and E of this part, and that on the basis whichever date is later. The annual and signed by the authorized of such tests the engine(s) conforms to production period ends either when the representative of the manufacturer. the requirements of this part; and last engine is produced or on December (c) The application must be updated (10) An unconditional statement 31 of the calendar year for which the and corrected by amendment as certifying that all engines in the engine model year is named, whichever date is provided in § 90.122 to accurately family comply with all requirements of sooner. reflect the manufacturer’s production. this part and the Clean Air Act. (2) Notwithstanding paragraph (b)(1) (d) Required content. Each (e)(1) In addition to the information of this section, annual production application must include the following specified in paragraph (d) of this periods beginning prior to September 1, information: section, manufacturers of two-stroke 1996 may not exceed 12 months in (1) A description of the basic engine lawnmower engines must submit with length. design including, but not limited to, the their application for a certificate of (c) Except as provided in paragraph engine family specifications; conformity: (d) of this section, a certificate of (2) An explanation of how the (i) For model year 1997, information conformity is deemed to cover the emission control system operates, establishing the highest number of two- engines named in such certificate and including a detailed description of all stroke lawnmower engines produced in produced during the annual production emission control system components a single annual production period from period, as defined in paragraph (b) of (Detailed component calibrations are 1992 through 1994. This number will be this section. not required to be included; they must known as the production baseline. (d) Except as provided in paragraph be provided if requested, however.), (ii) For model years 1998 through (e) of this section, the certificate of each auxiliary emission control device 2002, information documenting the conformity must be obtained from the (AECD), and all fuel system components previous year’s production and 34604 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations projected production for the current (b) An engine with an emission (1) For an engine manufacturer with year. control device, system, or element of total projected annual production of (2) In model year 1997, two-stroke design may not emit any noxious or more than 75,000 engines destined for lawnmower engine manufacturers may toxic substance which would not be the United States market for that model produce up to 100 percent of their emitted in the operation of such engine year, the minimum number of engines production baseline established under in the absence of the device, system, or to be tested may be the lowest of the paragraph (e)(1)(i) of this section. element of design except as specifically numbers determined in paragraph (3) In model year 1998, two-stroke permitted by regulation. (b)(1)(i), (ii) or (iii) of this section: lawnmower engine manufacturers may (i) Divide the manufacturer’s total produce up to 75 percent of their § 90.111 Requirement of certificationÐ projected annual production of small SI prohibition of defeat devices. production baseline. engines destined for the United States (4) From model years 1999 through (a) An engine may not be equipped market for that model year by 50,000, 2002, two-stroke lawnmower engine with a defeat device. and round to the nearest whole number; manufacturers may produce up to 50 (b) For purposes of this section, (ii) Test five engines each from 25 percent of their production baseline. ‘‘defeat device’’ means any device, percent of all engine families certified in (5) In model year 2003, two-stroke system, or element of design which that model year; and lawnmower engine manufacturers must senses operation outside normal (iii) Test three engines each from 50 meet class I or II standards specified in emission test conditions and reduces percent of all engine families certified in § 90.103(a). If in model year 2003 those emission control effectiveness. that model year. standards have been superseded by (1) Defeat device includes any (2) An engine manufacturer with total Phase 2 standards, two-stroke auxiliary emission control device projected annual production of 75,000 lawnmower engine manufacturers must (AECD) that reduces the effectiveness of engines or less destined for the United meet the Phase 2 standards that are the emission control system under States market for that model year may equivalent to the class I or II standards. conditions which may reasonably be test a minimum of two engines. (f) At the Administrator’s request, the expected to be encountered in normal (c) Criteria for selecting test engines. manufacturer must supply such operation and use unless such An engine manufacturer may select test additional information as may be conditions are included in the test engines from engine families utilizing required to evaluate the application procedure. the following criteria and in the order including, but not limited to, projected (2) Defeat device does not include specified: nonroad engine production. such items which either operate only (1) Engine families using emission during engine starting or are necessary control technology which most likely § 90.108 Certification. to protect the engine (or vehicle in will be used on Phase 2 engines; (a) If, after a review of the which it is installed) against damage or (2) Engine families using manufacturer’s submitted application, accident during its operation. aftertreatment; information obtained from any § 90.112 Requirement of certificationÐ (3) Engine families certified to inspection, and such other information adjustable parameters. different emission standards; as the Administrator may require, the (4) Different engine designs (such as Administrator determines that the (a) Engines equipped with adjustable parameters must comply with all sidevalve head versus overhead valve application is complete and that the engines); engine family meets the requirements of requirements of this subpart for any specification within the physically (5) Engine families using emission this part and the Clean Air Act, the control technology specifically installed Administrator shall issue a certificate of available range. (b) An operating parameter is not to achieve compliance with emission conformity. standards of this part; (b) The Administrator shall give a considered adjustable if it is permanently sealed by the manufacturer (6) The engine family with the highest written explanation when certification projected annual sales; and is denied. The manufacturer may or otherwise not normally accessible using ordinary tools. (7) Engine families which meet the request a hearing on a denial. (See above criteria, but have not been § 90.124 for procedure.) (c) The Administrator may require that adjustable parameters be set to any included in prior model year in-use § 90.109 Requirement of certificationÐ specification within the adjustable range testing programs as required by these closed crankcase. during certification or a selective provisions. (a) An engine’s crankcase must be enforcement audit to determine (d) Collection of in-use engines. An closed. compliance with the requirements of engine manufacturer may procure in-use (b) For purposes of this section, this subpart. engines which have been operated for ‘‘crankcase’’ means the housing for the between half and three-quarters of the § 90.113 In-use testing program. crankshaft and other related internal engine’s advertised (or projected) useful parts. (a) At the time of certification the life. All testing may be completed engine manufacturer may propose within three years from the date the § 90.110 Requirement of certificationÐ which engine families should be certificate is first issued for an engine prohibited controls. included in an in-use test program. EPA family undergoing in-use testing. (a) An engine may not be equipped will approve a manufacturer’s test (1) Test engines may be procured from with an emission control device, program if the selected engine families sources not associated with the engine system, or element of design for the represent an adequate consideration of manufacturer or vehicle manufacturer, purpose of complying with emission the elements listed in paragraphs (b) except that with prior approval of the standards if such device, system, or and (c) of this section. Administrator, an engine manufacturer element of design will cause or (b) Number of engines to be tested. with annual sales of less than 50,000 contribute to an unreasonable risk to The number of engines to be tested by engines may obtain in-use engines public health, welfare, or safety in its a manufacturer is determined by the associated with itself or its vehicle operation or function. following method: manufacturer. Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34605 (2) A test engine should have a and not normally requiring replacement section. The fuel or lubricant may be maintenance history representative of during engine life; specified elsewhere on the engine. actual in-use conditions. (4) Be written in English; and (2) Exclude the information required (i) A manufacturer may question the (5) Be located so as to be readily by paragraph (c)(6) of this section, if the end user regarding the accumulated visible to the average person after the date the engine was manufactured is usage, maintenance, operating engine is installed in the vehicle. stamped on the engine. conditions, and storage of the test (b) If the nonroad vehicle obscures the (e) The Administrator may, upon engines. label on the engine, the nonroad vehicle request, waive or modify the label (ii) Documents used in the manufacturer must attach a content requirements of paragraphs (c) procurement process may be maintained supplemental label so that this label is and (d) of this section, provided that the as required in § 90.121. readily visible to the average person. intent of such requirements is met. (3) Maintenance and testing of test The supplemental label must: engines. (1) Be attached in such a manner that § 90.115 Requirement of certificationÐ (i) The manufacturer may perform it cannot be removed without destroying supplying production engines upon minimal set-to-spec maintenance on a or defacing the label; request. test engine. Maintenance may include (2) Be secured to a vehicle part Upon the Administrator’s request, the only that which is listed in the owner’s necessary for normal operation and not manufacturer must supply a reasonable instructions for engines with the normally requiring replacement during number of production engines for amount of service and age of the the vehicle life; and testing and evaluation. These engines acquired test engine. (3) Be identical in content to the label must be representative of typical (ii) Documentation of all maintenance which was obscured. production and supplied for testing at and adjustments may be maintained and (c) The label must contain the such time and place and for such retained as required by § 90.121. following information: reasonable periods as the Administrator (4) One valid emission test may be (1) The heading ‘‘Important Engine may require. conducted for each in-use engine. Information;’’ (5) If a selected in-use engine fails to (2) The full corporate name and § 90.116 Certification procedureÐ comply with any applicable certification trademark of the engine manufacturer; determining engine displacement, engine (3) The statement, ‘‘This (specify class, and engine families. emission standard, the manufacturer vehicle or engine, as applicable) is may determine the reason for (a) Engine displacement must be certified to operate on (specify operating noncompliance. The manufacturer may calculated using nominal engine values fuel(s));’’ and rounded to the nearest whole cubic report all determinations for (4) Identification of the Exhaust noncompliance in its annual in-use test centimeter in accordance with ASTM Emission Control System (Abbreviations E29–93a. This procedure has been result report as described below. may be used and must conform to the (e) In-use test program reporting. The incorporated by reference. See § 90.7. nomenclature and abbreviations manufacturer may submit to the (b) Engines will be divided into provided in the Society of Automotive classes by the following: Administrator by January 30 of each Engineers procedure J1930, ‘‘Electrical/ calendar year all emission testing results (1) Class I—engines less than 225 cc Electronic Systems Diagnostic Terms, in displacement, generated from in-use testing. The Definitions, Abbreviations and following information may be reported (2) Class II—engines greater than or Acronyms,’’ September 1991. This equal to 225 cc in displacement, for each test engine: procedure has been incorporated by (1) Engine family; (3) Class III—handheld equipment reference. See § 90.7.); (2) Model; engines less than 20 cc in displacement, (5) All engine lubricant requirements; (3) Engine serial number; (4) Class IV—handheld equipment (6) Date of engine manufacture [day (4) Date of manufacture; engines equal or greater than 20 cc but (5) Estimated hours of use; (optional), month and year]; (7) The statement ‘‘This engine less than 50 cc in displacement, and (6) Results of all emission testing; (5) Class V—handheld equipment (7) Summary of all maintenance and/ conforms to [model year] U.S. EPA regulations for small nonroad engines.’’; engines equal to or greater than 50 cc in or adjustments performed; displacement. (8) Summary of all modifications and/ (8) EPA standardized engine family designation; (c) The manufacturer’s product line or repairs; and will be divided into groupings of engine (9) Determinations of compliance (9) Engine displacement [in cubic centimeters]; and families as specified by paragraph (d) of and/or noncompliance. this section. (f) The Administrator may approve (10) Other information concerning (d) To be classed in the same engine and/or suggest modifications to a proper maintenance and use or family, engines must be identical in all manufacturer’s in-use testing program. indicating compliance or noncompliance with other standards of the following applicable respects: § 90.114 Requirement of certificationÐ may be indicated on the label. (1) The combustion cycle; engine information label. (d) If there is insufficient space on the (2) The cooling mechanism; (a) The engine manufacturer must engine (or on the vehicle where a (3) The cylinder configuration (inline, affix at the time of manufacture a supplemental label is required under vee, opposed, bore spacings, and so permanent and legible label identifying paragraph (b) of this section) to forth); each nonroad engine. The label must accommodate a label including all the (4) The number of cylinders; meet the following requirements: information required in paragraph (c) of (5) The engine class; (1) Be attached in such a manner that this section, the manufacturer may (6) The number of catalytic it cannot be removed without destroying delete or alter the label as indicated in converters, location, volume, and or defacing the label; this paragraph. The information deleted composition; and (2) Be durable and readable for the from the label must appear in the (7) The thermal reactor entire engine life; owner’s manual. characteristics. (3) Be secured to an engine part (1) Exclude the information required (e) At the manufacturer’s option, necessary for normal engine operation in paragraphs (c)(3), (4), and (5) of this engines identical in all the respects 34606 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations listed in paragraph (d) of this section (1) The test procedure to be used is data is only allowable if the data shows may be further divided into different detailed in Subpart E of this part. the test engine would fully comply with engine families if the Administrator (i) Class I and II engines must use Test the emission standards for the determines that they may be expected to Cycle A described in Subpart E of this applicable class. have different emission characteristics. part, except that Class I and II engine (d) Scheduled maintenance during This determination is based upon the families in which 100 percent of the testing. No scheduled maintenance may consideration of features such as: engines sold operate only at rated speed be performed during testing of the (1) The bore and stroke; may use Test Cycle B described in engine. (2) The combustion chamber subpart E of this part. (e) Unscheduled maintenance on test configuration; (ii) Class III, IV, and V engines must engines. (3) The intake and exhaust timing use Test Cycle C described in subpart E (1) Manufacturers may not perform method of actuation (poppet valve, reed of this part. any unscheduled engine, emission valve, rotary valve, and so forth); (2) Emission test equipment control system, or fuel system (4) The intake and exhaust valve or provisions are described in subpart D of adjustment, repair, removal, port sizes, as applicable; this part. disassembly, cleaning, or replacement (5) The fuel system; (b) Administrator testing. (1) The on a test engine without the advance (6) The exhaust system; and Administrator may require that any one approval of the Administrator. (7) The method of air aspiration. or more of the test engines be submitted (2) The Administrator may approve (f) Where engines are of a type which to the Administrator, at such place or unscheduled maintenance if: cannot be divided into engine families places as the Administrator may (i) A preliminary determination has based upon the criteria listed in designate, for the purposes of been made that a part failure or system paragraph (d) of this section, the conducting emission tests. The malfunction, or the repair of such Administrator will establish families for Administrator may specify that testing failure or malfunction, does not render those engines based upon the features will be conducted at the manufacturer’s the engine unrepresentative of engines most related to their emission facility, in which case instrumentation in use, and does not require direct characteristics. and equipment specified by the access to the combustion chamber; and Administrator must be made available (ii) A determination has been made § 90.117 Certification procedureÐtest engine selection. by the manufacturer for test operations. that the need for maintenance or repairs Any testing conducted at a is indicated by an overt malfunction (a) The manufacturer must select, manufacturer’s facility must be such as persistent misfire, engine stall, from each engine family, a test engine scheduled by the manufacturer as overheating, fluid leakage, or loss of oil that the manufacturer determines to be promptly as possible. pressure. most likely to exceed the emission (2)(i) Whenever the Administrator (3) Emission measurements may not standard. conducts a test on a test engine, the be used as a means of determining the (b) The test engine must be results of that test will, unless need for unscheduled maintenance constructed to be representative of subsequently invalidated by the under paragraph (e)(2) of this section. production engines. Administrator, comprise the official (4) The Administrator must have the § 90.118 Certification procedureÐservice data for the engine and the opportunity to verify the extent of any accumulation. manufacturer’s data will not be used in overt indication of part failure (for (a)(1) The test engine must be determining compliance with emission example, misfire, stall), or an activation operated with all emission control standards. of an audible and/or visual signal, prior systems operating properly for a period (ii) Prior to the performance of such to the manufacturer performing any sufficient to stabilize emissions. test, the Administrator may adjust or maintenance related to such overt (2) The period sufficient to stabilize cause to be adjusted any adjustable indication or signal. emissions may not exceed 12 hours. parameter of the test engine which the (5) Unless approved by the (b) No maintenance, other than Administrator has determined to be Administrator prior to use, engine recommended lubrication and filter subject to adjustment for certification manufacturers may not use any changes, may be performed during testing, to any setting within the equipment, instruments, or tools to service accumulation without the physically adjustable range of that identify malfunctioning, maladjusted, or Administrator’s approval. parameter, to determine whether such defective engine components unless the (c) Service accumulation is to be engine conforms to applicable emission same or equivalent equipment, performed in a manner using good standards. instruments, or tools are available at engineering judgment to ensure that (iii) For those engine parameters dealerships and other service outlets emissions are representative of which the Administrator has not and are used in conjunction with production engines. determined to be subject to adjustment scheduled maintenance on such (d) The manufacturer must maintain, for certification testing, the test engine components. and provide to the Administrator, presented to the Administrator for (6) If the Administrator determines records stating the rationale for selecting testing will be calibrated within the that part failure or system malfunction a service accumulation period less than production tolerances applicable to the occurrence and/or repair rendered the 12 hours and records describing the manufacturer specification shown on engine unrepresentative of production method used to accumulate hours on the engine label or in the owner’s engines, the engine cannot be used as a the test engine(s). manual, as specified in the application test engine. for certification. (7) Unless waived by the § 90.119 Certification procedureÐtesting. (c) Use of carryover test data. In lieu Administrator, complete emission tests (a) Manufacturer testing. The of testing, the manufacturer may submit, are required before and after any engine manufacturer must test the test engine with the Administrator’s approval, maintenance which may reasonably be using the specified test procedures and emission test data used to certify expected to affect emissions. appropriate test cycle. All test results substantially similar engine families in (f) Engine failure. A manufacturer must be reported to the Administrator. previous years. This ‘‘carryover’’ test may not use as a test engine any engine Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34607 which incurs major mechanical failure (v) A description of all tests change would still be covered by the necessitating disassembly of the engine. performed to diagnose engine or certificate of conformity then in effect. This prohibition does not apply to emission control performance, giving (2) If the Administrator determines failures which occur after completion of the date and time of each and the that the new or changed engine(s) meets the service accumulation period. reason(s) for the test; and the requirements of this subpart and the (vi) A description of any significant Act, the appropriate certificate of § 90.120 Certification procedureÐuse of event(s) affecting the engine during the conformity will be amended. special test procedures. period covered by the history of the test (3) If the Administrator determines (a) Use of special test procedures by engine but not described by an entry that the proposed amendment would EPA. The Administrator may establish under one of the previous paragraphs of not be covered by the certificate of special test procedures for any engine this section. conformity, the Administrator must that the Administrator determines is not (b) Routine emission test data, such as provide a written explanation to the susceptible to satisfactory testing under those reporting test cell temperature and engine manufacturer of his or her the specified test procedures set forth in relative humidity at start and finish of decision not to amend the certificate. subpart E of this part. test and raw emission results from each The manufacturer may request a hearing (b)(1) Use of alternate test procedures mode or test phase, must be retained for on a denial. by an engine manufacturer. A a period of one year after issuance of all (e)(1) Alternatively, an engine manufacturer may elect to use an certificates of conformity to which they manufacturer may make changes in or alternate test procedure provided that it relate. All other information specified in additions to production engines yields results equal to the results from paragraph (a) of this section must be concurrently with amending the the specified test procedure in subpart retained for a period of eight years after application as set forth in paragraph (b) E, its use is approved in advance by the issuance of all certificates of conformity of this section, if the manufacturer Administrator, and the basis for to which they relate. determines that all affected engines will equivalent results with the specified test (c) Records may be kept in any format still meet applicable emission procedure is fully described in the and on any media, provided that, at the standards. The engine manufacturer manufacturer’s application. Administrator’s request, organized, must supply supporting documentation, (2) An engine manufacturer electing written records in English are promptly test data, and engineering evaluations as to use alternate test procedures is solely supplied by the manufacturer. appropriate to support its responsible for the results obtained. The (d) The manufacturer must supply, at determination. Administrator may reject data generated the Administrator’s request, copies of (2) If, after a review, the under test procedures which do not any engine maintenance instructions or Administrator determines additional correlate with data generated under the explanations issued by the testing is required, the engine specified procedures. manufacturer. manufacturer must provide required test data within 30 days or cease production § 90.121 Certification procedureÐ § 90.122 Amending the application and recordkeeping. of the affected engines. certificate of conformity. (3) If the Administrator determines (a) The engine manufacturer must (a) The engine manufacturer must that the affected engines do not meet maintain the following adequately notify the Administrator when either an applicable requirements, the organized records: engine is to be added to a certificate of Administrator will notify the engine (1) Copies of all applications filed conformity or changes are to be made to manufacturer to cease production of the with the Administrator; a product line covered by a certificate of affected engines. (2) A copy of all data obtained conformity. Notification occurs when through the in-use testing program; and the manufacturer submits an § 90.123 Denial, revocation of certificate of (3) A detailed history of each test amendment to the original application conformity. engine used for certification including prior to either producing such engines (a) If, after review of the engine the following: or making such changes to a product manufacturer’s application, request for (i) A description of the test engine’s line. certification, information obtained from construction, including a general (b) The amendment must request that any inspection, and any other description of the origin and buildup of the engine manufacturer’s existing information the Administrator may the engine, steps taken to insure that it certificate of conformity be amended require, the Administrator determines is representative of production engines, and include the following information: that the test engine does not meet description of components specially (1) A full description of the engine to applicable standards and requirements, built for the test engine, and the origin be added or the change(s) to be made in the Administrator will notify the and description of all emission-related production; manufacturer in writing, setting forth components; (2) The manufacturer’s proposed test the basis for this determination. (ii) A description of the method used engine selection(s); and (b) Notwithstanding the fact that for engine service accumulation, (3) Engineering evaluations or reasons engines described in the application including date(s) and the number of why the original test engine is or is not may comply with all other requirements hours accumulated; still appropriate. of this subpart, the Administrator may (iii) A description of all maintenance, (c) The Administrator may require the deny the issuance of or revoke a including modifications, parts changes, engine manufacturer to perform tests on previously issued certificate of and other servicing performed, and the an engine representing the engine to be conformity if the Administrator finds date(s), and reason(s) for such added or changed. any one of the following infractions to maintenance; (d) Decision by Administrator. (1) be substantial: (iv) A description of all emission tests Based on the submitted amendment and (1) The engine manufacturer submits performed including routine and data derived from such testing as the false or incomplete information; standard test documentation, as Administrator may require or conduct, (2) The engine manufacturer denies specified in subpart E of this part, the Administrator must determine an EPA enforcement officer or EPA date(s), and the purpose of each test; whether the proposed addition or authorized representative the 34608 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations opportunity to conduct authorized EPA enforcement officer or EPA as described in § 90.421. Both systems inspections; authorized representative as provided in require analyzers (see paragraph (c) of (3) The engine manufacturer fails to § 90.506. this section) specific to the pollutant supply requested information or amend being measured. its application to include all engines Subpart CÐ[Reserved] (c) Analyzers used are a non- being produced; dispersive infrared (NDIR) absorption (4) The engine manufacturer renders Subpart DÐEmission Test Equipment type for carbon monoxide and carbon inaccurate any test data which it Provisions dioxide analysis; paramagnetic (PMD), zirconia (ZRDO), or electrochemical submits or otherwise circumvents the § 90.301 Applicability. intent of the Act or this part; or type (ECS) for oxygen analysis; a flame (5) The engine manufacturer denies (a) This subpart describes the ionization (FID) or heated flame an EPA enforcement officer or EPA equipment required in order to perform ionization (HFID) type for hydrocarbon authorized representative reasonable exhaust emission tests on new nonroad analysis; and a chemiluminescent assistance (as defined in § 90.506). spark-ignition engines and vehicles detector (CLD) or heated (c) If a manufacturer knowingly subject to the provisions of subpart A of chemiluminescent detector (HCLD) for commits an infraction specified in part 90. oxides of nitrogen analysis. (b) Exhaust gases, either raw or dilute, paragraph (b)(1) or (b)(4) of this section are sampled while the test engine is or knowingly commits any fraudulent § 90.305 Dynamometer specifications and operated using a steady state test cycle calibration accuracy. act which results in the issuance of a on an engine dynamometer. The exhaust certificate of conformity, the (a) Dynamometer specifications. The gases receive specific component Administrator may deem such dynamometer test stand and other analysis determining concentration of certificate void ab initio. instruments for measurement of speed (d) When the Administrator denies or pollutant. Emission concentrations are and power output must meet the engine revokes a certificate of conformity, the converted to mass emission rates in speed and torque accuracy requirements engine manufacturer will be provided a grams per hour based on either fuel shown in Table 2 in Appendix A of this written determination. The flow, fuel flow and engine intake air subpart. The dynamometer must be manufacturer may request a hearing on flow, or exhaust volume flow. Weighted capable of performing the test cycle the Administrator’s decision. emission rates are reported as grams per described in § 90.410. (e) Any revocation of a certificate of brake-kilowatt hour (g/kW-hr). See (b) Dynamometer calibration conformity extends no further than to subpart E of this part for a complete accuracy. (1) The dynamometer test forbid the introduction into commerce description of the test procedure. stand and other instruments for (c) Additional information about of those engines previously covered by measurement of power output must system design, calibration the certification which are still in the meet the calibration frequency shown in methodologies, and so forth, for raw gas possession of the engine manufacturer, Table 2 in Appendix A of this subpart. sampling can be found in part 86, (2) A minimum of three calibration except in cases of such fraud or other subpart D of this chapter. Examples for weights for each range used is required. misconduct that makes the certification system design, calibration The weights must be equally spaced and void ab initio. methodologies, and so forth, for dilute traceable to within 0.5 percent of § 90.124 Request for hearing. exhaust gas sampling can be found in National Institute for Standards and (a) An engine manufacturer may part 86, subpart N of this chapter. Testing (NIST) weights. Laboratories located in foreign countries may certify request a hearing on the Administrator’s § 90.302 Definitions. denial or revocation of a certificate of calibration weights to local government The definitions in § 90.3 apply to this conformity. bureau standards. subpart. The following definitions also (b) The engine manufacturer’s request apply to this subpart. § 90.306 Dynamometer torque cell must be filed within 30 days of the Rated speed means the speed at calibration. Administrator’s decision, be in writing, which the manufacturer specifies the (a)(1) Any lever arm used to convert and set forth the manufacturer’s maximum rated power of an engine. a weight or a force through a distance objections to the Administrator’s Intermediate speed means the engine into a torque must be used in a decision and data to support the speed which is 85 percent of the rated horizontal position for horizontal shaft objections. speed. dynamometers (± five degrees). For (c) If, after review of the request and vertical shaft dynamometers, a pulley supporting data, the Administrator finds § 90.303 Symbols, acronyms, abbreviations. system may be used to convert the that the request raises a substantial and dynamometer’s horizontal loading into factual issue, the Administrator will (a) The acronyms and abbreviations in the vertical plane. provide the engine manufacturer a § 90.5 apply to this subpart. (2) Calculate the indicated torque (IT) hearing. (b) The symbols in Table 1 in for each calibration weight to be used Appendix A of this subpart apply to this § 90.125 Hearing procedures. by: subpart. × The hearing procedures set forth in IT=Moment Arm (meters) Calibration §§ 90.513, 90.514, and 90.515 apply to § 90.304 Test equipment overview. Weight (Newtons) this subpart. (a) All engines subject to this subpart (3) Attach each calibration weight are tested for exhaust emissions. specified in § 90.305(b)(2) to the § 90.126 Right of entry and access. Engines are operated on dynamometers moment arm at the calibration distance Any engine manufacturer that has meeting the specification given in determined in paragraph (a)(2) of this applied for certification of a new engine § 90.305. section. Record the power measurement or engine family subject to certification (b) The exhaust is tested for gaseous equipment response (N–m) to each testing under this subpart must admit or emissions using a raw gas sampling weight. cause to be admitted to any applicable system as described in § 90.414 or a (4) Compare the torque value facilities during operating hours any constant volume sampling (CVS) system measured to the calculated torque. Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34609 (5) The measured torque must be 3 in Appendix A of this subpart for conditioned air. For this type of intake within two percent of the calculated exhaust emission testing of gasoline air supply, the humidity measurements torque. fueled engines. As an option, must be made within the intake air (6) If the measured torque is not manufacturers may use the fuel supply system and after the humidity within two percent of the calculated specified in § 86.1313–94(a) of this conditioning has taken place. torque, adjust or repair the system. chapter for gasoline fueled engines. (b) Unconditioned air supply. Repeat steps in paragraphs (a)(1) (2) Alternative fuels, such as natural Humidity measurements in through (a)(6) of this section with the gas, propane, and methanol, used for unconditioned intake air supply adjusted or repaired system. exhaust emission testing and service systems must be made in the intake air (b) Option. A master load-cell or accumulation of alternative fuel spark- stream entering the supply system. transfer standard may be used to verify ignition engines must be representative Alternatively, the humidity the torque measurement system. of commercially available alternative measurements can be measured within (1) The master load-cell and read out fuels. the intake air supply stream. system must be calibrated using weights (i) The manufacturer shall § 90.311 Test conditions. specified in § 90.305(b)(2). recommend the alternative fuel to be (2) Attach the master load-cell and used for certification testing and engine (a) General requirements. (1) Ambient temperature levels encountered by the loading system. service accumulation in accordance test engine throughout the test sequence (3) Load the dynamometer to a with paragraph (b)(3) of this section. may not be less than 20 °C or more than minimum of three equally spaced torque (ii) The Administrator shall determine 30 °C. All engines must be installed on values as indicated by the master load- the alternative fuel to be used for testing the test bed at their design installation cell for each in-use range used. and engine service accumulation, taking angle to prevent abnormal fuel (4) The in-use torque measurement into consideration the alternative fuel must be within two percent of the distribution. recommended by the manufacturer. (2) Calculate all volumes and torque measured by the master system (3) Other fuels may be used for testing volumetric flow rates at standard for each load used. provided: conditions for temperature and (5) If the in-use torque is not within (i) They are commercially viable; pressure, and use these conditions two percent of the master torque, adjust (ii) Information acceptable to the consistently throughout all calculations. or repair the system. Repeat steps in Administrator is provided to show that Standard conditions for temperature paragraphs (b)(2) through (b)(4) of this only the designated fuel would be used and pressure are 25 °C and 101.3 kPa. section with the adjusted or repaired in customer service; and (b) Engine test conditions. Measure system. (iii) Fuel specifications are approved the absolute temperature (designated as (c) Calibrated resistors may not be in writing by the Administrator prior to T and expressed in Kelvin) of the engine used for engine flywheel torque the start of testing. air at the inlet to the engine and the dry transducer calibration, but may be used (c) Test Fuels—Service Accumulation. atmospheric pressure (designated as ps to span the transducer prior to engine Unleaded gasoline representative of and expressed in kPa), and determine testing. commercial gasoline generally available the parameter f according to the (d) Other engine dynamometer system through retail outlets must be used in following provisions for naturally calibrations such as speed are service accumulation for gasoline-fueled aspirated engines: performed as specified by the spark-ignition engines. As an dynamometer manufacturer or as alternative, the certification test fuels 0. 7 dictated by good engineering practice. =99 × T specified under paragraph (b) of this f section may be used for engine service p 298 § 90.307 Engine cooling system. s accumulation. Leaded fuel may not be An engine cooling system is required For a certification test to be recognized used during service accumulation. as valid, the parameter f shall be with sufficient capacity to maintain the Additional fuel requirements for service between the limits as shown below: engine at normal operating temperatures accumulation are as follows: 0.96 (Contamination ≤ 1 ppm C, ≤ 1 ppm CO, mixture must contain less than one ppm (5) Oxides of nitrogen (NOX) analysis. ≤ 400 ppm CO2, ≤ 0.1 ppm NO) (Oxygen equivalent carbon response; 98 to 100 (i) This analysis device consists of the content between 18–21 percent vol.). percent hydrogen fuel may be used with following items: (c) Calibration and span gases. (1) advance approval of the Administrator. (A) A NO2 to NO converter. The NO2 Calibration gas values are to be derived (f) Hydrocarbon analyzer burner air. to NO converter efficiency must be at from NIST ‘‘Standard Reference The concentration of oxygen must be least 90 percent. Materials’’ (SRM’s) and are to be single within one mole percent of the oxygen (B) An ice bath located after the NOX blends as specified in this subsection. concentration of the burner air used in converter (optional). (2) Mixtures of gases having the the latest oxygen interference check (C) A chemiluminescent detector following chemical compositions must (percent O2I), see § 90.316(d). If the (CLD) or heated chemiluminescent be available: difference in oxygen concentration is detector (HCLD). (ii) The quench interference must be C3H8 and purified synthetic air and/or greater than one mole percent, then the less than 3.0 percent as measured in C3H8 and purified nitrogen; oxygen interference must be checked CO and purified nitrogen; and, if necessary, the analyzer adjusted § 90.325. (b) Other analyzers and equipment. NOX and purified nitrogen (the amount to meet the percent O2I requirements. Other types of analyzers and equipment of NO2 contained in this calibration The burner air must contain less than gas must not exceed five percent of two ppmC hydrocarbon. may be used if shown to yield the NO content); equivalent results and if approved in § 90.313 Analyzers required. advance by the Administrator. CO2 and purified nitrogen. (a) Analyzers. Analyze measured (c) The following requirements must Note: For the HFID or FID the gases with the following instruments: be incorporated as indicated in systems manufacturer may choose to use as a diluent (1) Carbon monoxide (CO) analysis. (i) used for testing under this subpart. span gas and the calibration gas either The carbon monoxide analyzer shall be purified synthetic air or purified nitrogen. (1) Carbon monoxide and carbon of the non-dispersive infrared (NDIR) dioxide measurements must be made on Any mixture of C3H8 and purified synthetic air which contains a concentration of absorption type. a dry basis (for raw exhaust propane higher than what a gas supplier (ii) The use of linearizing circuits is measurement only). Specific considers to be safe may be substituted with permitted. requirements for the means of drying a mixture of C3H8 and purified nitrogen. (2) Carbon dioxide (CO2) analysis. (i) the sample can be found in § 90.313(e). However, the manufacturer must be The carbon dioxide analyzer shall be of (2) Calibration or span gases for the consistent in the choice of diluent (zero air the non-dispersive infrared (NDIR) NOX measurement system must pass or purified nitrogen) between the calibration absorption type. through the NO2 to NO converter. and span gases. If a manufacturer chooses to (ii) The use of linearizing circuits is (d) The electromagnetic compatibility use C3H8 and purified nitrogen for the permitted. calibration gases, then purified nitrogen must (EMC) of the equipment must be on a (3) Oxygen (O2) analysis. Oxygen (O2) be the diluent for the span gases. level as to minimize additional errors. analyzers may be of the paramagnetic (e) Gas drying. Chemical dryers are (3) The true concentration of a span (PMD), zirconia (ZRDO) or ± not an acceptable method of removing gas must be within two percent of the electrochemical type (ECS). water from the sample. Water removal NIST gas standard. The true (4) Hydrocarbon (HC) analysis. (i) For by condensation is acceptable. If water concentration of a calibration gas must Raw Gas Sampling, the hydrocarbon ± is removed by condensation, the sample be within one percent of the NIST gas analyzer shall be of the heated flame gas temperature or sample dew point standard. The use of precision blending ionization (HFID) type. For constant must be monitored either within the devices (gas dividers) to obtain the volume sampling, the hydrocarbon water trap or downstream and its required calibration gas concentrations analyzer may be of the flame ionization temperature must not exceed 7° C. A is acceptable. Give all concentrations of (FID) type or of the heated flame water trap performing this function is an calibration gas on a volume basis ionization (HFID) type. acceptable method. Means other than (volume percent or volume ppm). (ii) For the HFID system, if the condensation may be used only with (4) The gas concentrations used for temperature of the exhaust gas at the prior approval from the Administrator. calibration and span may also be sample probe is below 190° C, the obtained by means of a gas divider, temperature of the valves, pipe work, § 90.314 Analyzer accuracy and diluting either with purified N2 or with and so forth, must be controlled so as specifications. purified synthetic air. The accuracy of to maintain a wall temperature of 190° (a) Measurement and accuracy— the mixing device must be such that the C ±11° C. If the temperature of the general. The analyzers must have a concentration of the diluted gases may exhaust gas at the sample probe is above measuring range which allows them to be determined to within ± two percent. 190° C, the temperature of the valves, measure the concentrations of the (d) Oxygen interference check gases pipe work, and so forth, must be exhaust gas sample pollutants with the must contain propane with 350 ppmC ± controlled so as to maintain a wall accuracies shown in Table 2 in 75 ppmC hydrocarbon. Determine the temperature greater than 180° C. Appendix A of this subpart. concentration value to calibration gas (iii) For the HFID analyzer, the (1) Precision. The precision of the tolerances by chromatographic analysis detector, oven, and sample-handling analyzer must be, at worst, two percent of total hydrocarbons plus impurities or components within the oven must be of full-scale concentration for each by dynamic blending. For gasoline suitable for continuous operation at range used. The precision is defined as fueled engines, oxygen contentration temperatures to 200° C. It must by 2.5 times the standard deviation(s) of 10 must be between 0 and 1 percent O2. capable of maintaining temperature repetitive responses to a given Nitrogen must be the predominant within ±5.5° C of the set point. calibration or span gas. diluent with the balance oxygen. (iv) Fuel and burner air must conform (2) Noise. The analyzer peak-to-peak (e) Fuel for the hydrocarbon flame to the specifications in § 90.312. response to zero and calibration or span ionization detector (HC-FID) must be a (v) The percent of oxygen interference gases over any 10-second period must blend of 40 ± two percent hydrogen must be less than three percent, as not exceed two percent of full-scale with the balance being helium. The specified in § 90.316(d). chart deflection on all ranges used. Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34611 (3) Zero drift. The analyzer zero- analyzer) with a concentration between analyzer must be optimized in order to response drift during a one-hour period the two lowest non-zero gas divider meet the specifications in § 90.316(b). must be less than two percent of full- increments. This gas must be ‘‘named’’ (c) Zero setting and calibration. Using scale chart deflection on the lowest to an accuracy of ± one percent of NIST purified synthetic air (or nitrogen), set range used. The zero-response is gas standards or other standards the CO, CO2, NOX, and HC analyzers at defined as the mean response including approved by the Administrator. zero. Connect the appropriate noise to a zero-gas during a 30-second (iv) Using the calibration curve fitted calibrating gases to the analyzers and time interval. to the points generated in paragraphs record the values. Use the same gas flow (4) Span drift. The analyzer span drift (c)(2) (i) and (ii) of this section, check rates and pressure as when sampling during a one-hour period must be less the concentration of the gas selected in exhaust. than two percent of full-scale chart paragraph (c)(2)(iii) of this section. The (d) Rechecking of zero setting. deflection on the lowest range used. The concentration derived from the curve Recheck the zero setting and, if analyzer span is defined as the must be within ± 2.3 percent (± 2.8 necessary, repeat the procedure difference between the span-response percent for CO2 span gas) of the gas’s described in paragraph (c) of this and the zero-response. The span- original named concentration. section. response is defined as the mean (v) Provided the requirements of response including noise to a span gas paragraph (c)(2)(iv) of this section are § 90.316 Hydrocarbon analyzer calibration. during a 30-second time interval. met, use the gas divider with the gas (a) Calibrate the FID and HFID (b) Operating procedure for analyzers selected in paragraph (c)(2)(iii) of this hydrocarbon analyzer as described in and sampling system. Follow the start- section and determine the remainder of this section. Operate the HFID to a set up and operating instructions of the the calibration points. Fit a calibration point ± 5.5° C between 185 and 197° C. instrument manufacturer or use good curve per §§ 90.316, 90.317, 90.318, and (b) Initial and periodic optimization engineering practice. Adhere to the 90.320 of this chapter for the entire of detector response. Prior to initial use minimum requirements given in analyzer range. and at least annually thereafter, adjust §§ 90.316 through 90.325 and § 90.409. (d) Emission measurement accuracy— the FID and HFID hydrocarbon analyzer (c) Emission measurement accuracy— continuous sampling. Analyzers used for optimum hydrocarbon response as Bag sampling. (1) Good engineering for continuous analysis must be specified in this paragraph. Alternative practice dictates that exhaust emission operated such that the measured methods yielding equivalent results may sample analyzer readings below 15 concentration falls between 15 and 100 be used, if approved in advance by the percent of full-scale chart deflection percent of full-scale chart deflection. Administrator. should generally not be used. Exceptions to these limits are: (1) Follow good engineering practices (2) Some high resolution read-out (1) The analyzer’s response may be for initial instrument start-up and basic systems, such as computers, data less than 15 percent or more than 100 operating adjustment using the loggers, and so forth, can provide percent of full scale if automatic range appropriate fuel (see § 90.312) and sufficient accuracy and resolution below change circuitry is used and the limits purified synthetic air or zero-grade 15 percent of full scale. Such systems for range changes are between 15 and nitrogen. may be used provided that additional 100 percent of full-scale chart (2) Use of one of the following calibrations are made to ensure the deflection; procedures is required for FID or HFID accuracy of the calibration curves. The (2) The analyzer’s response may be optimization: following procedure for calibration less than 15 percent of full scale if: (i) The procedure outlined in Society below 15 percent of full scale may be (i) The alternative in paragraph (c)(2) of Automotive Engineers (SAE) paper used: of this section is used to ensure that the No. 770141, ‘‘Optimization of a Flame Note to paragraph (c): If a gas divider is accuracy of the calibration curve is Ionization Detector for Determination of used, the gas divider must conform to the maintained below 15 percent; or Hydrocarbon in Diluted Automotive accuracy requirements as follows. The use of (ii) The full-scale value of the range is Exhausts;’’ author, Glenn D. Reschke. precision blending devices (gas dividers) to 155 ppm (C) or less; or This procedure has been incorporated obtain the required calibration gas (iii) The emissions from the engine by reference. See § 90.7. concentrations is acceptable, provided that (ii) The HFID optimization procedures the blended gases are accurate to within ± 1.5 are erratic and the integrated chart percent of NIST gas standards or other gas deflection value for the cycle is greater outlined in § 86.331–79 of this chapter. standards which have been approved by the than 15 percent of full scale; or (iii) Alternative procedures may be Administrator. This accuracy implies that (iv) The contribution of all data read used if approved in advance by the primary gases used for blending must be below the 15 percent level is less than Administrator. ‘‘named’’ to an accuracy of at least ± one 10 percent by mass of the final test (3) After the optimum flow rates have percent, traceable to NIST or other approved results. been determined, record them for future gas standards. reference. (i) Span the full analyzer range using § 90.315 Analyzer initial calibration. (c) Initial and periodic calibration. a top range calibration gas. The span (a) Warming-up time. The warming- Prior to initial use and monthly gases must be accurate to within ± two up time should be according to the thereafter, or within one month prior to percent of NIST gas standards or other recommendations of the manufacturer. the certification test, the FID or HFID gas standards which have been If not specified, a minimum of two hydrocarbon analyzer must be approved by the Administrator. hours should be allowed for warming calibrated on all normally used (ii) Generate a calibration curve up the analyzers. instrument ranges using the steps in this according to, and meeting the (b) NDIR, FID, and HFID analyzer. paragraph. Use the same flow rate and requirements, of the sections describing Tune and maintain the NDIR analyzer pressures as when analyzing samples. analyzer calibrations which are found in per the instrument manufacturer Introduce calibration gases directly at §§ 90.316, 90.317, 90.318, and 90.320. recommendations or specifications or the analyzer. An optional method for (iii) Select a calibration gas (a span using good engineering practice. The dilute sampling described in § 86.1310– gas may be used for calibrating the CO2 combustion flame of the FID or HFID 90(b)(3)(i) may be used. 34612 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations (1) Adjust analyzer to optimize (3) Calibrate on each used operating six evenly spaced points covering at performance. range with calibration gases having least 80 percent of the 10 to 90 range (64 (2) Zero the hydrocarbon analyzer nominal concentrations between 10 and percent) is required (see following with purified synthetic air or zero-grade 90 percent of that range. A minimum of table). nitrogen. Example calibration points (%) Acceptable for calibration? 20, 30, 40, 50, 60, 70 ...... No, range covered is 50 percent, not 64. 20, 30, 40, 50, 60, 70, 80, 90 ...... Yes. 10, 25, 40, 55, 70, 85 ...... Yes. 10, 30, 50, 70, 90 ...... No, though equally spaced and entire range covered, a minimum of six points are needed. For each range calibrated, if the interference optimization as described (3) Recheck zero response. If it has deviation from a least-squares best-fit in this paragraph. Choose a range where changed more than 0.5 percent of full straight line is two percent or less of the the oxygen interference check gases will scale repeat paragraphs (d)(1) and (d)(2) value at each data point, calculate fall in the upper 50 percent. Conduct of this section to correct the problem. concentration values by use of a single the test, as outlined in this paragraph, (4) Introduce the five percent and 10 calibration factor for that range. If the with the oven temperature set as percent oxygen interference check gases. deviation exceeds two percent at any required by the instrument (5) Recheck the zero response. If it has ± point, use the best-fit non-linear manufacturer. Oxygen interference changed by more than one percent of equation which represents the data to check gas specifications are found in full scale, repeat the test. within two percent of each test point to § 90.312(d). (6) Calculate the percent of oxygen determine concentration. interference (designated as percent O2I) (d) Oxygen interference optimization. (1) Zero the analyzer. for each mixture in paragraph (d)(4) of Prior to initial use and monthly (2) Span the analyzer with the 21 this section according to the following thereafter, perform the oxygen percent oxygen blend. equation. − = B Analyzer response (ppmC) Percent O2I (100) B A Analyzer response = % of full-scale analyzer response due to A ×(% of full-scale analyzer response due to B) Where: (10) If the oxygen interference is still (3) Bubble a mixture of three percent A = hydrocarbon concentration (ppmC) greater than the specifications, repair or CO2 in N2 through water at room of the span gas used in paragraph replace the analyzer, FID fuel, or burner temperature and record analyzer (d)(2) of this section. air prior to testing. Repeat this section response. B = hydrocarbon concentration (ppmC) with the repaired or replaced equipment (4) An analyzer response of more than of the oxygen interference check gases or gases. one percent of full scale for ranges used in paragraph (d)(4) of this above 300 ppm full scale or more than § 90.317 Carbon monoxide analyzer three ppm on ranges below 300 ppm full section. calibration. scale requires corrective action. (Use of (7) The percent of oxygen interference (a) Calibrate the NDIR carbon conditioning columns is one form of (designated as percent O2I) must be less monoxide analyzer as described in this corrective action which may be taken.) ± than three percent for all required section. (c) Initial and periodic calibration. oxygen interference check gases prior to Prior to its initial use and monthly testing. (b) Initial and periodic interference. Prior to its initial use and annually thereafter, or within one month prior to (8) If the oxygen interference is greater thereafter, check the NDIR carbon the certification test, calibrate the NDIR than the specifications, incrementally monoxide analyzer for response to water carbon monoxide analyzer. adjust the air flow above and below the (1) Adjust the analyzer to optimize vapor and CO2: manufacturer’s specifications, repeating performance. paragraphs (d)(1) through (d)(7) of this (1) Follow good engineering practices (2) Zero the carbon monoxide section for each flow. for instrument start-up and operation. analyzer with either purified synthetic (9) If the oxygen interference is greater Adjust the analyzer to optimize air or zero-grade nitrogen. than the specification after adjusting the performance on the most sensitive range (3) Calibrate on each used operating air flow, vary the fuel flow and to be used. range with carbon monoxide-in-N2 thereafter the sample flow, repeating (2) Zero the carbon monoxide calibration gases having nominal paragraphs (d)(1) through (d)(7) of this analyzer with either purified synthetic concentrations between 10 and 90 section for each new setting. air or zero-grade nitrogen. percent of that range. A minimum of six Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34613 evenly spaced points covering at least percent) is required (see following 80 percent of the 10 to 90 range (64 table). Example calibration points (%) Acceptable for calibration? 20, 30, 40, 50, 60, 70 ...... No, range covered is 50 percent, not 64. 20, 30, 40, 50, 60, 70, 80, 90 ...... Yes. 10, 25, 40, 55, 70, 85 ...... Yes. 10, 30, 50, 70, 90 ...... No, though equally spaced and entire range covered, a minimum of six points are needed. Additional calibration points may be to approximately 80 percent of the most concentrations obtained into the generated. For each range calibrated, if common operating range. The NO2 following equation: the deviation from a least-squares best- content of the gas mixture must be less fit straight line is two percent or less of than five percent of the NO a− b percent efficiency =1 + × 100 the value at each data point, calculate concentration. concentration values by use of a single (5) With the oxides of nitrogen c− d calibration factor for that range. If the analyzer in the NO mode, record the Where: deviation exceeds two percent at any concentration of NO indicated by the a = concentration obtained in paragraph point, use the best-fit non-linear analyzer. (b)(8), equation which represents the data to (6) Turn on the NOX generator O2 (or b = concentration obtained in paragraph within two percent of each test point to air) supply and adjust the O2 (or air) (b)(9), determine concentration. flow rate so that the NO indicated by the c = concentration obtained in paragraph analyzer is about 10 percent less than (b)(6), § 90.318 Oxides of nitrogen analyzer indicated in paragraph (b)(5) of this calibration. d = concentration obtained in paragraph section. Record the concentration of NO (b)(7). (a) Calibrate the chemiluminescent in this NO+O2 mixture as value ‘‘c.’’ oxides of nitrogen analyzer as described (7) Switch the NOX generator to the If converter efficiency is less than 90 in this section. generation mode and adjust the percent, corrective action will be (b) Initial and Periodic Interference: generation rate so that the NO measured required. Prior to its initial use and monthly on the analyzer is 20 percent of that (c) Initial and periodic calibration. thereafter, or within one month prior to measured in paragraph (b)(5) of this Prior to its initial use and monthly the certification test, check the section. There must be at least 10 thereafter, or within one month prior to chemiluminescent oxides of nitrogen percent unreacted NO at this point. the certification test, calibrate the analyzer for NO2 to NO converter Record the concentration of residual NO chemiluminescent oxides of nitrogen efficiency. Figure 1 in Appendix B of as value ‘‘d.’’ analyzer on all normally used this subpart is a reference for paragraphs (8) Switch the oxides of nitrogen instrument ranges. Use the same flow (b)(1) through (11) of this section: analyzer to the NOX mode and measure rate as when analyzing samples. (1) Follow good engineering practices total NOX. Record this value as ‘‘a.’’ Proceed as follows: for instrument start-up and operation. (9) Switch off the NOX generator but (1) Adjust analyzer to optimize Adjust the analyzer to optimize maintain gas flow through the system. performance. performance. The oxides of nitrogen analyzer will (2) Zero the oxides of nitrogen (2) Zero the oxides of nitrogen indicate the NOX in the NO+O2 mixture. analyzer with purified synthetic air or analyzer with purified synthetic air or Record this value as ‘‘b’’. zero-grade nitrogen. zero-grade nitrogen. (10) Turn off the NOX generator O2 (or (3) Calibrate on each normally used (3) Connect the outlet of the NOX air) supply. The analyzer will now operating range with NO-in-N2 generator to the sample inlet of the indicate the NOX in the original NO-in- calibration gases having nominal oxides of nitrogen analyzer which has N2 mixture. This value should be no concentrations between 10 and 90 been set to the most common operating more than five percent above the value percent of that range. A minimum of six range. indicated in paragraph (b)(4) of this evenly spaced points covering at least (4) Introduce into the NOX generator section. 80 percent of the 10 to 90 range (64 analyzer-system an NO-in-nitrogen (N2) (11) Calculate the efficiency of the percent) is required (see following mixture with an NO concentration equal NOX converter by substituting the table). Example calibration points (%) Acceptable for calibration? 20, 30, 40, 50, 60, 70 ...... No, range covered is 50 percent, not 64 20, 30, 40, 50, 60, 70, 80, 90 ...... Yes. 10, 25, 40, 55, 70, 85 ...... Yes. 10, 30, 50, 70, 90 ...... No, though equally spaced and entire range covered, a minimum of six points are needed. Additional calibration points may be concentration values by use of a single within two percent of each test point to generated. For each range calibrated, if calibration factor for that range. If the determine concentration. the deviation from a least-squares best- deviation exceeds two percent at any (d) The initial and periodic fit straight line is two percent or less of point, use the best-fit non-linear interference, system check, and the value at each data point, calculate equation which represents the data to calibration test procedures specified in 34614 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations § 86.332–79 of this chapter may be used concentration indicated is about 20 The NOX reading of the analyzer may in lieu of the procedures specified in percent less than the indicated not deviate by more than ± five percent this section. calibration concentration given in of the theoretical value of the figure paragraph (a)(2) of this section. Record given in paragraph (a)(2) of this section. § 90.319 NO converter check. X the indicated concentration ‘‘c.’’ The (b) The efficiency of the converter (a) The efficiency of the converter ozonator is kept deactivated throughout must be tested prior to each calibration used for the conversion of NO2 to NO the process. of the NOX analyzer. is tested as given in paragraphs (a)(1) (5) Activate the ozonator to generate (c) The efficiency of the converter through (a)(8) of this section. enough ozone to bring the NO may not be less than 90 percent. (1) Using the test setup as shown in concentration down to about 20 percent Figure 1 in Appendix B of this subpart (minimum 10 percent) of the calibration § 90.320 Carbon dioxide analyzer (see also § 90.318 of this chapter) and concentration given in paragraph (a)(2) calibration. the procedure described in paragraphs of this section. Record the indicated (a) Prior to its initial use and monthly (a)(2) through (a)(8) of this section, test concentration ‘‘d.’’ thereafter, or within one month prior to the efficiency of converters by means of Note: If, with the analyzer in the most the certification test, calibrate the NDIR an ozonator. common range, the NOX converter can not carbon dioxide analyzer as follows: (2) Calibrate the HCLD or CLD in the give a reduction from 80 percent to 20 (1) Follow good engineering practices most common operating range following percent, then use the highest range which for instrument start-up and operation. the manufacturer’s specifications using will give the reduction. Adjust the analyzer to optimize zero and span gas (the NO content of (6) Switch the NO analyzer to the performance. which must amount to about 80 percent NOX mode which means that the gas (2) Zero the carbon dioxide analyzer of the operating range and the NO2 mixture (consisting of NO, NO2, O2 and with either purified synthetic air or concentration of the gas mixture less N2) now passes through the converter. zero-grade nitrogen. than five percent of the NO Record the indicated concentration ‘‘a.’’ (3) Calibrate on each normally used concentration). The NOX analyzer must (7) Deactivate the ozonator. The operating range with carbon dioxide-in- be in the NO mode so that the span gas mixture of gases described in paragraph N2 calibration or span gases having does not pass through the converter. (a)(6) of this section passes through the nominal concentrations between 10 and Record the indicated concentration. converter into the detector. Record the 90 percent of that range. A minimum of (3) Calculate the efficiency of the NOX indicated concentration ‘‘b.’’ six evenly spaced points covering at converter as described in § 90.318(b). (8) Switched to NO mode with the least 80 percent of the 10 to 90 range (64 (4) Via a T-fitting, add oxygen ozonator deactivated, the flow of oxygen percent) is required (see following continuously to the gas flow until the or purified synthetic air is also shut off. table). Example calibration points (%) Acceptable for Calibration? 20, 30, 40, 50, 60, 70 ...... No, range covered is 50 percent, not 64. 20, 30, 40, 50, 60, 70, 80, 90 ...... Yes. 10, 25, 40, 55, 70, 85 ...... Yes. 10, 30, 50, 70, 90 ...... No, though equally spaced and entire range covered, a minimum of six points are needed. Additional calibration points may be §§ 86.316, 86.319, 86.320, 86.321, and (3) Recheck the zero response. If it has generated. For each range calibrated, if 86.322 of this chapter may be used in changed more than 0.5 percent of full the deviation from a least-squares best- lieu of the procedures in this section. scale, repeat the steps given in fit straight line is two percent or less of § 90.321 NDIR analyzer calibration. paragraphs (b)(1) and (b)(2) of this the value at each data point, calculate section. (a) Detector optimization. If necessary, concentration values by use of a single (4) Record the response of calibration calibration factor for that range. If the follow the instrument manufacturer’s gases having nominal concentrations deviation exceeds two percent at any instructions for initial start-up and basic between 10 and 90 percent of full-scale point, use the best-fit non-linear operating adjustments. (b) Calibration curve. Develop a concentration. A minimum of six evenly equation which represents the data to calibration curve for each range used as spaced points covering at least 80 within two percent of each test point to follows: determine concentration. percent of the 10 to 90 range (64 (1) Zero the analyzer. percent) is required (see following (b) The initial and periodic (2) Span the analyzer to give a table). interference, system check, and response of approximately 90 percent of calibration test procedures specified in full-scale chart deflection. Example calibration points (%) Acceptable for calibration? 20, 30, 40, 50, 60, 70 ...... No, range covered is 50 percent, not 64. 20, 30, 40, 50, 60, 70, 80, 90 ...... Yes. 10, 25, 40, 55, 70, 85 ...... Yes. 10, 30, 50, 70, 90 ...... No, though equally spaced and entire range covered, a minimum of six points are needed. Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34615 (5) Generate a calibration curve. The y = concentration (c) Linear calibration criteria. If any calibration curve must be of fourth order x = chart deflection range is within two percent of being or less, have five or fewer coefficients, (6) Option. A new calibration curve linear, a linear calibration may be used. and be of the form of the following need not be generated if: To determine if this criterion is met: (i) A calibration curve conforming to equation (1) or (2). Include zero as a (1) Perform a linear least-square data point. Compensation for known paragraph (b)(5) of this section exists; regression on the data generated. Use an impurities in the zero gas can be made or, equation of the form y=mx, where x is to the zero-data point. The calibration (ii) The responses generated in curve must fit the data points within paragraph (b)(4) of this section are the actual chart deflection and y is the two percent of point or one percent of within one percent of full scale or two concentration. full scale, whichever is less. percent of point, whichever is less, of (2) Use the equation z=y/m to find the the responses predicted by the linear chart deflection (designated as z) y= Ax4 + Bx 3 + Cx 2 + Dx + E ()1 calibration curve for the gases used in for each calibration gas concentration paragraph (b)(4) of this section. (designated as y). x (7) If multiple range analyzers are y = ()2 (3) Determine the linearity 4 3 2 used, the lowest range used must meet Ax+ Bx + Cx + Dx + E the curve fit requirements below 15 (designated as percent L) for each where: percent of full scale. calibration gas by: ()z− x % L = × ()100 Full-scale linear chart deflection (4) The linearity criterion is met if the (2) The maximum allowable leakage full scale of the maximum operating %L is less than ± two percent for each rate on the vacuum side is 0.5 percent range used during testing and record the data point generated. For each emission of the in-use flow rate for the portion of analyzer response. For dry test, use a calibration curve of the form the system being checked. The analyzer measurements, this mixture may be Y=mx. The slope (designated as m) is flows and bypass flows may be used to introduced into the sample system prior defined for each range by the spanning estimate the in-use flow rates. to the water trap. The analyzer response process. (3) The sample probe and the must not be more than one percent of connection between the sample probe § 90.322 Calibration of other equipment. full scale for ranges equal to or above and valve V2, see Figure 2 in Appendix 300 ppm or more than three ppm for Calibrate other test equipment used B of this subpart, may be excluded from ranges below 300 ppm. for testing as often as required by the the leak check. test equipment manufacturer or as (c) NOX analyzer quench check. The (b) Pressure side leak check. The two gases of concern for CLD (and necessary according to good engineering maximum allowable leakage rate on the practice. HCLD) analyzers are CO2 and water pressure side is five percent of the in- vapor. Quench responses to these two use flow rate. § 90.323 Analyzer bench checks. gases are proportional to their (a) Prior to initial use and after major § 90.325 Analyzer interference checks. concentrations and, therefore, require repairs, verify that each analyzer (a) Gases present in the exhaust other test techniques to determine quench at complies with the specifications given than the one being analyzed can the highest expected concentrations in Table 2 in Appendix A of this interfere with the reading in several experienced during testing. subpart. ways. Positive interference occurs in (1) NOX analyzer CO2 quench check. (b) If a stainless steel NO2 to NO converter is used, condition all new or NDIR and PMD instruments when the (i) Pass a CO2 span gas having a replacement converters. The interfering gas gives the same effect as concentration of 80 percent to 100 conditioning consists of either purging the gas being measured, but to a lesser percent of full scale of the maximum the converter with air for a minimum of degree. Negative interference occurs in operating range used during testing four hours or until the converter NDIR instruments by the interfering gas through the CO2 NDIR analyzer and efficiency is greater than 90 percent. broadening the absorption band of the record the value ‘‘a.’’ measured gas, and in CLD instruments The converter must be at operational (ii) Dilute the CO2 span gas temperature while purging. Do not use by the interfering gas quenching the approximately 50 percent with NO span radiation. The interference checks this procedure prior to checking gas and pass through the CO2 NDIR and described in this section are to be made converter efficiency on in-use CLD (or HCLD). Record the CO2 and NO converters. initially and after any major repairs that values as ‘‘b’’ and ‘‘c’’ respectively. could affect analyzer performance. (iii) Shut off the CO2 and pass only § 90.324 Analyzer leakage check. (b) CO analyzer water and CO2 (a) Vacuum side leak check. (1) Check interference checks. Bubble through the NO span gas through the CLD (or HCLD). Record the NO value as ‘‘d.’’ any location within the analysis system water at room temperature a CO2 span where a vacuum leak could affect the gas having a concentration of between (iv) Calculate the percent CO2 quench test results. 80 percent and 100 percent inclusive of as follows, not to exceed three percent: × = × − ()c a × % CO2 quench 100 1 (/)a b ()()d× a − d × b 34616 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations Where: recorded as ‘‘D’’. The NO span gas is (ii) Calculations for water quench a=Undiluted CO2 concentration then bubbled through water at room must consider dilution of the NO span (percent) temperature and passed through the gas with water vapor and scaling of the b=Diluted CO2 concentration (percent) CLD (or HCLD) and the analyzer’s water vapor concentration of the c=Diluted NO concentration (ppm) response recorded as AR. Determine and mixture to that expected during testing. d=Undiluted NO concentration (ppm) record the analyzer’s absolute operating Determine the mixture’s saturated vapor (2) NOX analyzer water quench check. pressure and the bubbler water pressure (designated as Pwb) that (i) This check applies to wet temperature. (It is important that the NO corresponds to the bubbler water measurements only. An NO span gas span gas contains minimal NO2 temperature. Calculate the water having a concentration of 80 percent to concentration for this check. No concentration (‘‘Z1’’, percent) in the 100 percent of full scale of a normal allowance for absorption of NO2 in mixture by the following equation: operating range is passed through the water has been made in the following CLD (or HCLD) and the response quench calculations.) Pwb Z1= 100 × GP where GP is the analyzer’s standard (iii) Calculate the expected dilute NO concentration (designated as D1) by the operating pressure (pascals). span gas and water vapor mixture following equation: Z1 DD1= × 1 − 100 § 90.326 Pre- and post-test analyzer coolest portion of each component (2) Verify that the automatic data calibration. (pump, sample line section, filters, and collection system (if used) meets the Calibrate the range of each analyzer so forth) in the heated portion of the requirements found in Table 2 in used during the engine exhaust sampling system that has a separate Appendix A of this subpart. emission test prior to and after each test source of power or heating element. (3) Check the fuel flow measurement in accordance with the following: Monitor the temperature at that instrument to insure that the (a) Make the calibration by using a location. If several components are specifications in Table 2 in Appendix A zero gas and a span gas. The span gas within an oven, then only the surface of this subpart are met. value must be between 75 percent and temperature of the component with the (f) Verify that all NDIR analyzers meet 100 percent of full scale, inclusive, of largest thermal mass and the oven the water rejection ratio and the CO2 the measuring range. temperature need be measured. rejection ratio as specified in § 90.325. (b) Use the same analyzer(s) flow rate (b) If water is removed by (g) Verify that the dynamometer test and pressure as that used during condensation, monitor the sample gas stand and power output instrumentation exhaust emission test sampling. temperature or sample dew point either meet the specifications in Table 2 in (c) Warm-up and stabilize the within the water trap or downstream. It Appendix A of this subpart. analyzer(s) before the calibration is may not exceed 7° C. made. § 90.329 Catalyst thermal stress test. (d) If necessary clean and/or replace § 90.328 Measurement equipment (a) Oven characteristics. The oven filter elements before calibration is accuracy/calibration frequency table. used for thermally stressing the test made. (a) The accuracy of measurements catalyst must be capable of maintaining (e) Calibrate analyzer(s) as follows: must be such that the maximum a temperature of 500° C ± 5° C and 1000° (1) Zero the analyzer using the tolerances shown in Table 2 in C ± 10° C. appropriate zero gas. Adjust analyzer Appendix A of this subpart are not (b) Evaluation gas composition. (1) A zero if necessary. Zero reading should exceeded. synthetic exhaust gas mixture is used be stable. (b) All equipment and analyzers must for evaluating the effect of thermal stress (2) Span the analyzer using the be calibrated according to the on catalyst conversion efficiency. appropriate span gas for the range being frequencies shown in Table 2 in (2) The synthetic exhaust gas mixture calibrated. Adjust the analyzer to the Appendix A of this subpart. must have the following composition: calibration set point if necessary. (c) Prior to initial use and after major repairs, bench check each analyzer (see (3) Re-check zero and span set points. Volume Parts (4) If the response of the zero gas or § 90.323). Constituent percent per span gas differs more than one percent (d) Calibrate equipment as specified million of full scale, then repeat paragraphs (e) in § 90.306 and §§ 90.315 through 90.322. Carbon Monoxide ...... 1 ...... (1) through (3) of this section. Oxygen ...... 1.3 ...... (e) At least monthly, or after any § 90.327 Sampling system requirements. Carbon Dioxide ...... 3.8 ...... maintenance which could alter Water Vapor ...... 10 ...... (a) Sample component surface calibration, perform the following Sulfer dioxide ...... 20 temperature. For sampling systems calibrations and checks. Oxides of nitrogen ...... 280 which use heated components, use (1) Leak check the vacuum side of the Hydrogen ...... 3500 engineering judgment to locate the system (see § 90.324(a)). Hydrocarbon* ...... 4000 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34617 Appendix A to Subpart D of Part 90— Volume Parts Constituent per Tables percent million Nitrogen = Balance * Propylene/propane ratio = 2/1. TABLE 1.ÐSYMBOLS USED IN SUBPART D Symbol Term Unit CO Carbon monoxide. CO2 Carbon dioxide. NO Nitric oxide. NO2 Nitrogen dioxide. NOX Oxides of nitrogen. O2 Oxygen. conc Concentration (ppm by volume) ...... ppm f Engine specific parameter considering atmospheric conditions. FFCB Fuel specific factor for the carbon balance calculation. FFD Fuel specific factor for exhaust flow calculation on dry basis. FFH Fuel specific factor representing the hydrogen to carbon ratio. FFW Fuel specific factor for exhaust flow calculation on wet basis. GAIRW Intake air mass flow rate on wet basis ...... kg/h GAIRD Intake air mass flow rate on dry basis ...... kg/h GEXHW Exhaust gas mass flow rate on wet basis ...... kg/h GFuel Fuel mass flow rate ...... kg/h H Absolute humidity (water content related to dry air) ...... gr/kg i Subscript denoting an individual mode. KH Humidity correction factor. L Percent torque related to maximum torque for the test mode ...... percent mass Pollutant mass flow ...... g/h nd,i Engine speed (average at the i'th mode during the cycle) ...... 1/min Ps Dry atmospheric pressure ...... kPa Pd Test ambient saturation vapor pressure at ambient temperature ...... kPa P Gross power output uncorrected ...... kW PAUX Declared total power absorbed by auxiliaries fitted for the test ...... kW PM Maximum power measured at the test speed under test conditions ...... kW Pi Pi = PM,i + PAUX, i. PB Total barometric pressure (average of the pre-test and post-test values) ...... kPa Ra Relative humidity of the ambient air ...... percent T Absolute temperature at air inlet ...... C Tbe Air temperature after the charge air cooler (if applicable) (average) ...... C Tclout Coolant temperature outlet (average) ...... C TDd Absolute dew point temperature ...... C Td,i Torque (average at the i'th mode during the cycle) ...... N-m TSC Temperature of the intercooled air ...... C Tref. Reference temperature ...... C 3 VEXHD Exhaust gas volume flow rate on dry basis ...... m /h 3 VAIRW Intake air volume flow rate on wet basis ...... m /h PB Total barometric pressure ...... kPa 3 VEXHW Exhaust gas volume flow rate on wet basis ...... m /h WF Weighing factor. WFE Effective weighing factor. TABLE 2.ÐMEASUREMENT CALIBRATION ACCURACY AND FREQUENCY Permissible deviation from No. Item reading * Calibration frequency Non-idle Idle 1 ...... Engine speed ...... ± 2 % ...... Same ...... Monthly or within one month prior to the certification test. 2 ...... Torque ...... ± 2 % ...... Monthly or within one month prior to the certification test. 3 ...... Fuel consumption ...... ± 2 % ...... ±5% ...... Monthly or within one month prior to the certification test. 4 ...... Air consumption ...... ± 2 % ...... ±5% ...... As required. 5 ...... Coolant temperature ...... ± 2° C ...... Same ...... As required. 6 ...... Lubricant temperature ...... ± 2° C ...... Same ...... As required. 7 ...... Exhaust back pressure ...... ± 5 % ...... Same ...... As required. 8 ...... Inlet depression ...... ± 5 % ...... Same ...... As required. 9 ...... Exhaust gas temperature ...... ± 15° C ...... Same ...... As required. 10 ...... Air inlet temperature (combus- ± 2° C ...... Same ...... As required. tion air). 11 ...... Atmospheric pressure ...... ± 0.5 % ...... Same ...... As required. 34618 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations TABLE 2.ÐMEASUREMENT CALIBRATION ACCURACY AND FREQUENCYÐContinued Permissible deviation from No. Item reading * Calibration frequency Non-idle Idle 12 ...... Humidity (combustion air) (rel- ± 3.0 % ...... Same ...... As required. ative). 13 ...... Fuel temperature ...... ± 2° C ...... Same ...... As required. 14 ...... Temperature with regard to dilu- ± 2° C ...... Same ...... As required. tion system. 15 ...... Dilution air humidity ...... ± 3 % absolute . Same ...... As required. 16 ...... HC analyzer ...... ± 2 %** ...... Same ...... Monthly or within one month prior to the certification test. 17 ...... CO analyzer ...... ± 2 % ** ...... Same ...... Monthly or within one month prior to the certification test. 18 ...... NOX analyzer ...... ± 2 % ** ...... Same ...... Monthly or within one month prior to the certification test. 19 ...... NOX converter check ...... 90 % ...... Same ...... Monthly or within one month prior to the certification test. 20 ...... CO2 analyzer ...... ± 2 % ** ...... Same ...... Monthly or within one month prior to the certification test. * All accuracy requirements pertain to the final recorded value which is inclusive of the data acquisition system. ** If reading is under 100 ppm then the accuracy shall be ± 2 ppm. TABLE 3.ÐTEST FUEL SPECIFICATIONS Item Property Tolerances Procedure (ASTM) 1 Sulfur, ppm max...... 339 ...... D 2622±92 Benzene, max. % ...... 1.5 ...... D 3606±92 RVP, psi ...... 8.7 ...... ±0.2 ...... D 5191± 93a Octane, R+M/2 ...... 87.3 ...... ±0.5 ...... D 2699±92 D 2700±92 IBP, ° C ...... 32.8 ...... ±11.0 ...... D 86±93 10 % point, ° C ...... 53.3 ...... ±5.5 ...... D 86±93 50 % point, ° C ...... 103.3 ...... ±5.5 ...... D 86±93 90 % point, ° C ...... 165.6 ...... ±5.5 ...... D 86±93 End Point, max. ° C ...... 212.8 ...... D 86±93 Phosphorus, g/liter, max...... 0.02 ...... D 3231±89 Lead, g/liter, max...... 0.02 ...... Manganese, g/liter, max...... 0.004 ...... Aromatics, % ...... 32.0 ...... ±4.0 ...... D 1319±89 Olefins, % ...... 9.2 ...... ±4.0 ...... D 1319±89 Saturates, % ...... Remainder ...... D 1319±89 1 All ASTM procedures in this table have been incorporated by reference. See § 90.7. Appendix B to Subpart D—Figures BILLING CODE 6560±50±P Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34619 34620 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations BILLING CODE 6560±50±C Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34621 Subpart EÐGaseous Exhaust Test grams of each pollutant emitted per not required for dilute testing, but is Procedures brake kilowatt hour (g/kW-hr). allowed. If the fuel flow measurement is (c)(1) When an engine is tested for a volume measurement system, record § 90.401 Applicability. exhaust emissions the complete engine the fuel temperature in the (a) This subpart describes the must be tested, with all emission control measurement system for fuel density procedures to follow in order to perform devices installed and functioning. corrections to the mass flow rate. If the exhaust emission tests on new nonroad (2) On air cooled engines, the cooling fuel temperature is within 3° C of the spark-ignition engines and vehicles fan must be installed. For engines calibration temperature, no density subject to the provisions of subpart A of whose cooling fan serves a dual correction is required. part 90. Provisions specific to raw gas purpose, such as an air pump/blower, (7) Engine intake temperature and sampling are in § 90.414 through an external fan may be used to provide humidity, if applicable. § 90.419, provisions specific to constant the engine with cooling air and the (8) Exhaust mixing chamber surface volume sampling are in § 90.420 original cooling fan may be removed. temperature, if applicable. through § 90.426. All other sections in (d) All emission control systems (9) Exhaust sample line temperature, this subpart apply to both raw gas installed on or incorporated in the if applicable. sampling and constant volume sampling application must be functioning during (10) Engine fuel inlet pressure. except where indicated otherwise. all procedures in this subpart. In case of (e) Test data; post-test. (1) Recorder (b) Requirements for emission test component malfunction or failure, no chart or equivalent. Identify the hang-up equipment and calibrating this maintenance is allowed without prior check. equipment are found in subpart D of approval from the Administrator, in (2) Recorder chart or equivalent. this part. accordance with § 90.119. Identify the zero traces for each range used and the span traces for each range § 90.402 Definitions. § 90.405 Recorded information. used. The definitions in § 90.3, § 90.101, (a) Record the information described (3) Total number of hours of operation and § 90.302 apply to this subpart. in this section for each test, where accumulated on the engine (to the applicable. nearest tenth hour). § 90.403 Symbols, acronyms, and (b) Test data; general. (1) Engine abbreviations. (4) Barometric pressure, post-test identification number. segment. (a) The acronyms and abbreviations in (2) Engine emission control system. § 90.5 apply to this subpart. (3) Test operator(s). § 90.406 Engine parameters to be (b) The symbols in Table 1 in (4) Number of hours of operation measured and recorded. Appendix A to Subpart D apply to this accumulated on the engine prior to Measure or calculate, then record the subpart. beginning the warm-up portion of the engine parameters in Table 1 in § 90.404 Test procedure overview. test (to the nearest tenth hour). Appendix A of this subpart. (5) Fuel identification. (a) The test consists of prescribed (6) For 2-stroke engines, fuel/oil § 90.407 Engine inlet and exhaust sequences of engine operating mixture ratio. systems. conditions to be conducted on an engine (7) Date of most recent analyzer bench (a) The engine manufacturer is liable dynamometer or equivalent load and calibration. for exhaust emission compliance over speed measurement device. The exhaust (8) All pertinent instrument the full range of air inlet filter systems gases generated during engine operation information such as tuning, gain, serial and exhaust muffler systems. are sampled either raw or dilute and numbers, detector number, and (b) The air inlet filter system and specific components are analyzed calibration curve(s). As long as this exhaust muffler system combination through the analytical system. information is traceable, it may be used on the test engine must be the (b) The test is designed to determine summarized by system number or systems expected to yield the highest the brake-specific emissions of analyzer identification numbers. emission levels. hydrocarbons, carbon monoxide, carbon (c) Test data; pre-test. (1) Date and dioxide, and oxides of nitrogen and fuel time of day. § 90.408 Pre-test procedures. consumption. The test consists of three (2) Test number. (a) Engine service accumulation and different test cycles which are (3) Barometric pressure; as an option, stabilization procedure. Use the service application specific for engines which barometric pressure can be measured as accumulation procedure determined by span the typical operating range of a modal measurement instead of or in the manufacturer for exhaust emission nonroad spark-ignition engines. Two addition to a pre- and post-test stabilizing of an engine, consistent with cycles exist for Class I and II engines measurement. good engineering practice (see § 90.118). and one is for Class III, IV, and V (4) Recorder chart or equivalent. (1) The manufacturer determines, for engines (see § 90.103(a) and § 90.116(b) Identify for each test segment zero traces each engine family, the number of hours for the definitions of Class I—V for each range used, and span traces for at which the engine exhaust emission engines). The test cycles for Class I and each range used. control system combination is stabilized II engines consist of one idle mode and (d) Test data; modal. (1) Recorder for emission testing. However, this five power modes at one speed (rated or chart or equivalent. Identify for each test stabilization procedure may not exceed intermediate). The test cycle for Class mode the emission concentration traces 12 hours. The manufacturer must III, IV, and V engines consists of one and the associated analyzer range(s). maintain, and provide to the idle mode at idle speed and one power (2) Observed engine torque. Administrator upon request, a record of mode at rated speed. These procedures (3) Observed engine rpm. the rationale used in making this require the determination of the (4) Intake air flow if applicable. determination. If the manufactuer can concentration of each pollutant, fuel (5) Test cell temperature and document that at some time prior to the flow, and the power output during each humidity for each mode. full 12 hour service accumulation mode. The measured values are (6) For raw gas testing; fuel flow for period the engine emissions are weighted and used to calculate the each mode. Fuel flow measurement is decreasing for the remainder of the 12 34622 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations hours, the service accumulation may be Further, check analyzer zero and span minutes. Cylinder head temperature completed at that time. The any time a range change is made or at may be measured at the base of the manufacturer may elect to accumulate the maximum demonstrated time span spark plug. After stability is achieved, 12 hours on each test engine within an for stability for each analyzer used. emission measurements are initiated. engine family without making this (d) Check system flow rates and (8) Record all modal data specified in determination. pressures and reset, if necessary. § 90.405(d) for a minimum time period (2) During service accumulation, the of the last two minutes of each mode. fuel and lubricants specified in § 90.308 § 90.409 Engine dynamometer test run. Longer averaging periods are acceptable, must be used. (a) Engine and dynamometer start-up. but the data averaged must be from a (3) Engine maintenance during service (1) Only adjustments in accordance with continuous time period. The duration of accumulation is allowed only in § 90.119 may be made to the test engine time during which this data is recorded accordance with § 90.118. prior to starting a test. is referred to as the ‘‘sampling period.’’ (b) Engine pre-test preparation. (1) (2) If necessary, warm up the The data collected during the sampling Drain and charge the fuel tank(s) with dynamometer as recommended by the period is used for modal emission the specified test fuel (see § 90.308(b)) to dynamometer manufacturer or use good calculations. 50 percent of the tank’s nominal engineering practice. (9) Continuously record the analyzer’s capacity. If an external fuel tank is used, (3) At the manufacturer’s option, the response to the exhaust gas during each the engine fuel inlet system pressure engine can be run with the throttle in a mode. must be typical of what the engine will fixed position or by using the engine’s (10) Modes may be repeated. see in use. governor (if the engine is manufactured (11) If a delay of more than one hour (2) Operate the engine on the with a governor). In either case, the occurs between the end of one mode dynamometer measuring the fuel engine speed and load must meet the and the beginning of another mode, the consumption (fuel consumption requirements specified in paragraph test is void and must be restarted at required only for raw gas sampling (b)(12) of this section. paragraph (b)(1) of this section. method) and torque before and after the (b) Each test consists of the following (12) The engine speed and load must emission sampling equipment is steps. be maintained within the requirements installed, including the sample probe, (1) Record the general test data as of § 90.410 during the sampling period using the modes specified in the specified in § 90.405(b). of each mode. If this requirement is not following table. (2) Precondition the engine in the met, the mode is void and must be following manner; restarted. (i) Operate the engine at a power (13) If at any time during a mode the Test Oper- Engine class cycle ating greater than or equal to 50 percent test equipment malfunctions or the mode maximum power at the appropriate specifications in § 90.410 can not be speed (rated or intermediate) for 20 I, II ...... A 6 met, the test is void and must be I, II ...... B 1 minutes; aborted. Corrective action should be III, IV, V ...... C 1 (ii) Option. If the engine has been taken and the test restarted. operating on service accumulation for a (14) If at any time during an operating These modes are from Table 2 in minimum of 40 minutes, the service mode the engine stalls, restart the Appendix A of this subpart. The accumulation may be substituted for engine immediately and continue the emission sampling equipment may not step (i). test starting with the steps required by significantly affect the operational (3) Record all pre-test data specified paragraph (b)(6) of this section. If the characteristics of the engine (typically in § 90.405(c). engine will not restart within five the results should agree within five (4) Start the test cycle (see § 90.410) minutes the test is void. If maintenance percent). within five minutes of the completion of is required on the engine, advance (c) Analyzer pre-test procedures. (1) If the steps required by paragraph (b)(2) of approval from the Administrator is necessary, warm up and stabilize the this section. required as specified in § 90.119. After analyzer(s) before calibrations are (5) Modes are to be performed in the corrective action is taken, the engine performed. numerical order specified for the may be rescheduled for testing. Report (2) Replace or clean the filter elements appropriate test cycle (see ‘‘Mode the reason for the malfunction (if and then leak check the system as Points’’ Table 2 in Appendix A of this determined) and the corrective action required by § 90.324(a). If necessary, subpart). taken. allow the heated sample line, filters, (6) For Class I and II engines, during (15) Fuel flow and air flow during the and pumps to reach operating the maximum torque mode calculate the idle condition may be determined just temperature. torque corresponding to 75, 50, 25, and prior to or immediately following the (3) Perform the following system 10 percent of the maximum observed dynamometer sequence, if longer times checks: torque (see Table 2 in Appendix A to are required for accurate measurements. (i) If necessary, check the sample-line this subpart). If the dilute sampling method (Constant temperature. Heated FID sample line (7) Once engine speed and load are set Volume Sampling) is used, neither fuel temperature must be maintained for a mode, run the engine for a flow nor air flow measurements are between 110° C and 230° C; a heated sufficient period of time to achieve required. NOX sample line temperature must be thermal stability. At the manufacturer’s (c) Exhaust gas measurements. (1) maintained between 60° C and 230° C. option, determine and document the Measure HC, CO, CO2, and NOX (ii) Check that the system response appropriate criterion for thermal concentration in the exhaust sample. time has been accounted for prior to stability for each engine family. If the (2) Each analyzer range that may be sample collection data recording. manufacture chooses not to make this used during a test mode must have the (iii) A HC hang-up check is permitted determination, an acceptable alternative zero and span responses recorded prior (see § 90.413(e)). is to run the engine at each mode until to the start of the test. Only the range(s) (4) Check analyzer zero and span the cylinder head temperature remains used to measure the emissions during before and after each test at a minimum. within a 10°C bandwidth for three the test is required to have its zero and Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34623 span recorded after the completion of (b) Begin the analyzer span checks sample. The ADC must store a single the test. Depending on the stability of within six minutes after the completion value representing the average chart each individual analyzer, more frequent of the last mode in the test. Record for deflection over a 10-second stabilized zero checks or spans between modes each analyzer the zero and span period. Alternatively, the ADC may may be necessary. response for each range used during the store the individual instantaneous chart (3) It is permitted to change filter preceding test or test segment. deflections collected over a 10-second elements between modes. (c) If during the test, the filter stabilized period. (4) A leak check is permitted between element(s) were replaced or cleaned, a (2) For continuous analysis systems, modes. vacuum check must be performed per the ADC must store a single value (5) A hang-up check is permitted § 90.324(a) immediately after the span representing the average integrated between modes (see § 90.413). checks. If the vacuum side leak check concentration over a measurement (6) If, during the emission does not meet the requirements of period. Alternatively, the ADC may measurement portion of a mode, the § 90.324(a), the test is void. store the individual instantaneous value of the gauges downstream of the (d) Read and record the post-test data values collected during the NDIR analyzer(s) G3 or G4 (see Figure specified in § 90.405(e). measurement period. 2 in Appendix B of Subpart D), differs (3) The chart deflections or average ± (e) For a valid test, the analyzer drift by more than 0.5kPa from the pretest between the before-segment and after- integrated concentrations required in value, the test mode is void. segment span checks for each analyzer paragraphs (a)(1) and (a)(2) of this § 90.410 Engine test cycle. must meet the following requirements: section may be stored on long-term (a) Follow the appropriate 6-mode test (1) The span drift (defined as the computer storage devices such as cycle for Class I and II engines and 2- change in the difference between the computer tapes, storage discs, punch mode test cycle for Class III, IV, and V zero response and the span response) cards, or they may be printed in a listing engines when testing spark-ignition may not exceed two percent of full-scale for storage. In either case a chart engines (see Table 2 in Appendix A of chart deflection for each range used. recorder is not required and records this subpart). (2) The zero response drift may not from a chart recorder, if they exist, need (b) During each non-idle mode, hold exceed two percent of full-scale chart not be stored. both the specified speed and load deflection for each range used above 155 (4) If ADC equipment is used to within ± five percent of point. During ppm (or ppm C), or three percent of full- interpret analyzer values, the ADC the idle mode, hold speed within ± ten scale chart deflection for each range equipment is subject to the calibration percent of the manufacturer’s specified below 155 ppm (or ppm C). specifications of the analyzer as if the ADC equipment is part of analyzer idle engine speed. § 90.412 Data logging. (c) If the operating conditions system. specified in paragraph (b) of this section (a) A computer or any other automatic (b) Data records from any one or a for Class I and II engines using Mode data collection (ADC) device(s) may be combination of analyzers may be stored Points 2, 3, 4, and 5 cannot be used as long as the system meets the as chart recorder records. maintained, the Administrator may requirements of this subpart. (c) Grab sample analysis. For dilute authorize deviations from the specified (b) Determine from the data collection grab sample analysis perform the load conditions. Such deviations may records the analyzer responses following procedure: not exceed 10 percent of the maximum corresponding to the end of each mode. (1) Calibrate analyzers using the torque at the test speed. The minimum (c) Record data at a minimum of rate procedure described in § 90.326. deviations, above and below the of one Hz (one time per second). (2) Record the most recent zero and specified load, necessary for stable (d) Determine the final value for span response as the pre-analysis operation shall be determined by the power by averaging the individually values. (3) Measure and record HC, CO, CO2, manufacturer and approved by the calculated power points for each value Administrator prior to the test run. of speed and torque recorded during the and NOX concentrations in the exhaust (d) Do not include power generated sampling period. As an alternative, the sample bag(s) and background sample during the idle mode, Mode 11, in the final value for power can be calculated bag(s) using the same flow rates and calculation of emission results. from the average values for speed and pressures. torque, collected during the sampling (4) Good engineering practice dictates § 90.411 Post-test analyzer procedures. period. that exhaust emission sample bag (a) Perform a HC hang-up check (e) Determine the final value for CO2, analyzer readings below 15 percent of within 60 seconds of the completion of CO, HC, and NOX concentrations by full scale should generally not be used. the last mode in the test. Use the averaging the concentration of each (5) A post-analysis zero and span following procedure: point taken during the sample period for calibration check of each range must be (1) Introduce a zero gas or room air each mode. performed and the values recorded. The into the sample probe or valve V2 (see number of events that may occur Figure 2 in Appendix B of Subpart D) § 90.413 Exhaust sample procedureÐ between the pre- and post-checks is not to check the ‘‘hangup zero’’ response. gaseous components. specified. However, the difference Simultaneously start a time (a) Automatic data collection between pre-analysis zero and span measurement. equipment requirements. The analyzer values (recorded in paragraph (c)(2) or (2) Select the lowest HC range used response may be read by automatic data (c)(3) of this section) versus those during the test. collection (ADC) equipment such as recorded for the post-analysis check (3) Within four minutes of beginning computers, data loggers, and so forth. If may not exceed the zero drift limit or the time measurement in paragraph ADC equipment is used, the following is the span drift limit of two percent of (a)(1) of this section, the difference required: full-scale chart deflection for any range between the zero gas response and the (1) For dilute grab (‘‘bag’’) sample used. Otherwise the analysis is void. hang-up zero response may not be analysis, the analyzer response must be (d) Continuous sample analysis. For greater than 5.0 percent of full scale or stable at greater than 99 percent of the continuous sample analysis perform the 10 ppmC, whichever is greater. final reading for the dilute exhaust following procedure: 34624 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations (1) Calibrate analyzers using the (5) If the difference between the (1) The internal volume of the mixing procedure described in § 90.326. readings obtained is two ppm or more, chamber may not be less than ten times (2) Leak check portions of the clean the sample probe and the sample the cylinder displacement of the engine sampling system that operate at negative line. under test. The shape of the mixing gauge pressures when sampling and (6) Reassemble the sample system, chamber must be such that it provides allow heated sample lines, filters, heat to specified temperature, and a well mixed, homogenous sample at pumps, and so forth to stabilize at repeat the procedure in paragraphs the sample probe location. operating temperature. (e)(1) through (e)(5) of this section. (2) Couple the mixing chamber as (3) Option: Determine the HC hang-up closely as possible to the engine muffler. for the FID or HFID sampling system: § 90.414 Raw gaseous exhaust sampling (3) Maintain the inner surface of the and analytical system description. (i) Zero the analyzer using zero gas mixing chamber at a minimum introduced at the analyzer port. (a) Schematic drawing. An example of temperature of 179° C. (ii) Flow zero gas through the a sampling and analytical system which (4) Thermocouple temperature overflow sampling system. Check the may be used for testing under this monitoring of the mixing chamber inner analyzer response. subpart is shown in Figure 2 in surface is required to assure wall (iii) If the overflow zero response Appendix B of Subpart D. All temperatures specified in paragraph exceeds the analyzer zero response by components or parts of components that (c)(3) of this section. The temperature two percent or more of the FID or HFID are wetted by the sample or corrosive measurement must be accurate to within full-scale deflection, hang-up is calibration gases must be either ± 5° C. indicated and corrective action must be chemically cleaned stainless steel or (5) The sample probe must extend taken (see paragraph (e) of this section). inert material (e.g., radially across the exit of the mixing (iv) The complete system hang-up polytetrafluoroethylene resin). The use chamber. The probe must pass through check specified in paragraph (e) of this of ‘‘gauge savers’’ or ‘‘protectors’’ with the approximate center and must extend section is recommended as a periodic nonreactive diaphragms to reduce dead across at least 80 percent of the diameter check. volumes is permitted. of the exit. The exact position of the (4) If necessary, recalibrate analyzer (b) Sample probe. (1) The sample probe may vary from engine family to using the procedure specified in probe must be a straight, closed end, engine family. The probe must be paragraph (d)(1) of this section. stainless steel, multi-hole probe. The located in a position which yields a well (5) Good engineering practice dictates inside diameter may not be greater than mixed, homogenous sample of the that analyzers used for continuous the inside diameter of the sample line exhaust. analysis should be operated such that +0.03 cm. The wall thickness of the (d) Sample transfer line. (1) The the measured concentration falls probe may not be greater than 0.10 cm. maximum inside diameter of the sample between 15 percent and 100 percent of The fitting that attaches the probe to the line may not exceed 1.32 cm. full scale. exhaust pipe must be as small as (2) If valve V2 in Figure 1 of (6) Record the most recent zero and practical in order to minimize heat loss Appendix B of this subpart is used, the span response as the pre-analysis from the probe. sample probe must connect directly to values. (2) The probe must have a minimum valve V2. The location of optional valve (7) Collect background HC, CO, CO2, of three holes. The spacing of the radial V2 in Figure 1 of Appendix B of Subpart and NOX in a sample bag (for dilute planes for each hole in the probe must D may not be greater than 1.22 m from exhaust sampling only, see § 90.422). be such that they cover approximately (8) Perform a post-analysis zero and the exhaust duct. equal cross-sectional areas of the span check for each range used at the (3) The location of optional valve V16, exhaust duct. See Figure 2 in Appendix conditions specified in paragraph (d)(1) Figure 1 of Appendix B of this subpart, of this section. Record these responses B of Subpart D. The angular spacing of may not be greater than 61 cm from the as the post-analysis values. the holes must be approximately equal. sample pump. The leakage rate for this The angular spacing of any two holes in section on the pressure side of the (9) Neither the zero drift nor the span ° ± ° drift between the pre-analysis and post- one plane may not be 180 20 (i.e., sample pump may not exceed the analysis checks on any range used may section view C–C of Figure 2 in leakage rate specification for the exceed three percent for HC, or two Appendix B of Subpart D). The holes vacuum side of the pump. should be sized such that each has percent for NOX, CO, and CO2, of full- (e) Venting. All vents, including scale chart deflection, or the test is void. approximately the same flow. If only analyzer vents, bypass flow, and (If the HC drift is greater than three three holes are used, they may not all pressure relief vents, of regulators percent of full-scale chart deflection, HC be in the same radial plane. should be vented in such a manner as hang-up is likely.) (3) The exhaust gas probe must be to avoid endangering personnel in the (10) Determine background levels of located in a position which yields a well immediate area. mixed, homogenous sample of the HC, NOX, CO, or CO2 (for dilute exhaust (f) Any variation from the sampling only) by the grab (‘‘bag’’) engine exhaust. The probe must extend specifications in this subpart, including technique outlined in paragraph (c) of radially across the exhaust gas stream. performance specifications and this section. The probe must pass through the emission detection methods, may be (e) Hydrocarbon hang-up. If HC hang- approximate center and must extend used only with prior approval by the up is indicated, the following procedure across at least 80 percent of the exhaust Administrator. may be performed: gas stream. The exact position of the (g) Additional components, such as (1) Fill a clean, evacuated sample bag probe may vary from engine family to instruments, valves, solenoids, pumps, with background air. engine family. switches, and so forth, may be (2) Zero and span the HFID at the (c) Mixing chamber. The exhaust employed to provide additional analyzer ports. mixing chamber is located in the information and coordinate the (3) Analyze the background air exhaust system between the muffler and functions of the component systems. sample bag through the analyzer ports. the sample probe. The mixing chamber (h) The following requirements must (4) Analyze the background air is an optional component of the raw gas be incorporated in each system used for through the entire sample probe system. sampling equipment. raw testing under this subpart. Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34625 (1) Take the sample for all operating range during the test. Overall used. An exception is allowed for the components with one sample probe and measurement accuracy must be two idle mode. For this mode, the minimum split it internally to the different percent of full-scale value of the accuracy is ± five percent of full-scale analyzers. measurement device for all modes flow rate for the measurement range (2) Heat the sample transport system except the idle mode. For the idle mode, used. The controlling parameters are the from the engine exhaust pipe to the HC the measurement accuracy must be ± elapsed time measurement of the event analyzer for the raw gas sampling five percent or less of the full-scale and the weight or volume measurement. method as indicated in Figure 1 in value. The Administrator must be advised of the method used prior to § 90.418 Data evaluation for gaseous Appendix B of this subpart. The NOX emissions. analyzer for the raw gas sampling testing. method may be heated as indicated in (b) When an engine system For the evaluation of the gaseous Figure 1 in Appendix B of this subpart. incorporates devices that affect the air emissions recording, record the last four minutes of each mode and determine The HC analyzer and the NOX analyzer flow measurement (such as air bleeds, for the dilute sampling method may be air injection, pulsed air, and so forth) the average values for HC, CO, CO2 and heated as indicated in Figure 1 in resulting in understated exhaust NOX during each mode from the average Appendix B of this subpart. emission results, make corrections to concentration readings determined from the exhaust emission results to account the corresponding calibration data. § 90.415 Raw gaseous sampling for such effects. Longer averaging times are acceptable, procedures. but the sampling period which is Fit all heated sampling lines with a § 90.417 Fuel flow measurement reported must be a continuous set of heated filter to extract solid particles specifications. data. from the flow of gas required for (a) Fuel flow measurement is required only for raw testing. Fuel flow is § 90.419 Raw emission sampling analysis. The sample line for HC calculationsÐgasoline fueled engines. measurement must be heated. The allowed for dilute testing. If the (a) Derive the final weighted brake- sample line for CO, CO2 and NOX measured fuel flow is used in the dilute analysis may be heated or unheated. calculations for brake-specific fuel specific mass emission rates (g/kW–hr) consumption (see § 90.426(e)), the fuel through the steps described in this § 90.416 Intake air flow measurement flow instrument must meet the section. specifications. requirements of this section. (b) Air and fuel flow method. If both (a) If used, the engine intake air flow (b) The fuel flow measurement air and fuel flow mass rates are measurement method used must have a instrument must have a minimum measured, use the following equations range large enough to accurately accuracy of one percent of full-scale to determine the weighted emission measure the air flow over the engine flow rate for each measurement range values for the test engine: MNO 1 WGG=() + ×2 ×WNO × K × NOX AIRD FUEL XH 6 Mexh 10 MHC 1 WGG=() + ×exh ×WHC × HC AIRD FUEL 6 Mexh 10 M 1 WGG=() + ×CO ×WCO × CO AIRD FUEL 2 Mexh 10 Where: MHCexh=Molecular weight of α=Hydrogen/carbon atomic ratio of the hydrocarbons in the exhaust, see fuel WHC=Mass rate of HC in exhaust [g/hr], the following equation: β=Oxygen/carbon atomic ratio of the GAIRD=Intake air mass flow rate on dry = +α + β fuel basis [g/hr], MHC 12... 01 1 008 16 00 exh Mexh=Molecular weight of the total GFUEL=Fuel mass flow rate [g/hr], Where: exhaust, see the following equation: M× WHC 28. 01× WCO44.01× WCO = HCexh + + 2 Mexh 10610 2 102 46... 01× WNO32 00 × WO2 016 × WH + X + 2 + 2 +18. 01 ×() 1 − K 106 102 102 WHC WNO +×−−− −X −−−×−() 28. 01 100 WCO WCO2 WO2 WH 2 100 1 K 104 104 102 34626 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations Where: WCO2=CO2 percent concentration in the WH2=H2 percent concentration in exhaust, wet exhaust, wet WHC=HC volume concentration in DCO2=CO2 percent concentration in the K=correction factor to be used when exhaust, ppmC wet exhaust, dry converting dry measurements to a WCO=CO percent concentration in the WNOX=NO volume concentration in wet basis. Therefore, wet exhaust, wet exhaust, ppm wet concentration=dry concentration × DCO=CO percent concentration in the WO2=O2 percent concentration in the K, exhaust, dry exhaust, wet where K is: 1 K = + × + ×α − 1 0.. 005()DCO DCO2 0 01 DH 2 DH2=H2 percent concentration in is selected as the basis for mass α=Hydrogen to carbon ratio of the test exhaust, dry, calculated from the emission calculations using the raw gas fuel following equation: method. β=Oxygen to carbon ratio of the test fuel MF=Molecular weight of test fuel 0. 5 ×α ×DCO ×() DCO + DCO MHC G WHC = 2 W =exh ×FUEL × GFUEL=Fuel mass flow rate, [g/hr] DH2 HC 4 DCO+()3 × DCO M TC 10 TC=Total carbon in exhaust, see 2 F following equation: Wco=Mass rate of CO in exhaust, [g/hr] MCO GFUEL Mco=Molecular weight of CO=28.01 = × × WHC WCO WCO = + + WNOx=Mass rate of NOX in exhaust, [g/ TC WCO WCO MF TC 2 4 hr] 10 MNO2=Molecular weight of NO2=46.01 M WCO=CO percent concentration in the NOX GFUEL WNOX KH=Factor for correcting the effects of W = × × × K exhaust, wet NOX 4 H humidity on NO2 formation for 4- MF TC 10 WCO2=CO2 percent concentration in the stroke gasoline small engines, see Where: exhaust, wet the equation below : DCO=CO percent concentration in the WHC=Mass rate of HC in exhaust, [g/hr] exhaust, dry 1 MHC exh=Molecular weight of K = DCO2=CO2 percent concentration in the H −() − hydrocarbons in the exhaust, see 1 0.. 0329H 10 71 following equation: exhaust, dry Where: WHC=HC volume concentration in H=absolute humidity of the intake air in MMMM= +α + β exhaust, ppmC wet HCexh C H O grams of moisture per kilogram of WNOX=NOX volume concentration in dry air, see § 90.426(f) for a method MC=Molecular weight of carbon=12.01 exhaust, ppm wet by which H can be calculated. [g/mole] K=correction factor to be used when For two-stroke gasoline engines, KH MH=Molecular weight of converting dry measurements to a should be set to 1. hydrogen=1.008 [g/mole] wet basis. Therefore, wet (c) Fuel flow method. The following MO=Molecular weight of oxygen=16.00 concentration=dry concentration x equations are to be used when fuel flow [g/mole] K, where K is: 1 K = + × + ×α − 1 0.. 005()DCO DCO2 0 01 DH 2 n DH2=H2 percent concentration in = 1 exhaust, dry, calculated from the KH ∑()W× WF 1− 0.. 0329()H − 10 71 i i following equation: = i AWM Where: n 0. 5 ×α ×DCO ×() DCO + DCO ∑()P× WF = 2 H=specific humidity of the intake air in i i DH2 i + × grams of moisture per kilogram of DCO()3 DCO2 dry air. Where: WCO=Mass rate of CO in exhaust, [g/hr] AWM=Final weighted brake-specific For two-stroke gasoline engines, KH mass emission rate (HC, CO, NOX) MCO=Molecular weight of CO=28.01 should be set to 1. [g/kW-hr] WNOX=Mass rate of NOX in exhaust, [g/ (d) Calculate the final weighted brake- Wi=Mass emission rate during mode i hr] specific emission rate for each [g/hr] MNO2=Molecular weight of NO2=46.01 individual gas component using the WFi=Weighting factors for each mode following equation: KH=Factor for correcting the effects of according to § 90.410(a) humidity on NO2 formation for 4- Pi=Gross average power generated stroke gasoline small engines, see during mode i [kW], calculated the following equation: from the following equation, Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34627 π 2 × × rate of the dilute engine exhaust as (1) This sampling system requires the Pi speed torque described in § 90.421. use of a Positive Displacement Pump— 60, 000 (3) Exhaust sample port. A dilute Constant Volume Sampler (PDP–CVS) Where: exhaust sample port must be located in system with a heat exchanger, or a speed=average engine speed measured or downstream of the mixing tunnel at Critical Flow Venturi—Constant during mode i [rev./minute] a point where complete mixing of the Volume Sampler (CFV–CVS) system torque=average engine torque measured engine exhaust and background air is with CFV sample probes and/or a heat during mode i [N-m] (e) Compute assured. exchanger or electronic flow the final reported brake-specific (4) Background sample port. A dilute compensation. Figure 2 in Appendix B fuel exhaust sample port must be located in of this subpart is a schematic drawing the stream of background air before it is of the PDP–CVS system. Figure 3 in n mixed with the engine exhaust. The Appendix B of this subpart is a × ∑ ()GFUEL WF i background probe must draw a schematic drawing of the CFV–CVS i representative sample of the background BSFC = i system. n air during each sampling mode. (2) The HC analytical system requires: ∑ ()PF× (5) Exhaust sampling system. The (i) Grab sampling (see § 90.420, and i i dilute exhaust sampling system controls i Figure 2 or Figure 3 in Appendix B of the flow of samples from the mixing this subpart) and analytical capabilities consumption (BSFC) by use of the tunnel to the analyzer system. This following formula: (see § 90.423, and Figure 4 in Appendix could be either a continuous sampling B of this subpart), or Where: system or grab (bag) sampling system. If (ii) Continuously integrated BSFC=brake-specific fuel consumption a critical flow venturi (CFV) is used on measurement of diluted HC meeting the in grams of fuel per kilowatt-hour the dilute exhaust sample probe, this minimum requirements and technical (g/kW-hr). system must assure that the sample CFV specifications contained in paragraph GFUEL i=Fuel mass flow rate of the is in choke flow during testing. If no (b)(2) of this section. engine during mode i [g/hr] CFV is used, this system must assure a (iii) The dilute HC analytical system WFi=Weighting factors for each mode constant volumetric flow rate through for nonroad small spark-ignition engines according to § 90.410(a) the dilute exhaust sample probe or must does not require a heated flame Pi=Gross average power generated incorporate electronic flow ionization detector (HFID). during mode i [kW]. compensation. (iv) If used, the HFID sample must be § 90.420 CVS concept of exhaust gas (6) Background sampling system. The taken directly from the diluted exhaust sampling system. background sampling system controls stream through a heated probe and the flow of samples from the (a) A dilute exhaust sampling system integrated continuously over the test background air supply to the analyzer is designed to directly measure the true cycle. system. This could be either a (v) The heated probe must be located mass of emissions in engine exhaust continuous sampling system or grab in the sampling system far enough without the necessity of measuring (bag) sampling system. This system downstream of the mixing area to either fuel flow or intake air flow. This must assure a constant volumetric flow ensure a uniform sample distribution is accomplished by diluting the exhaust rate through the background sample across the CVS duct at the sampling produced by a test engine with ambient probe. zone. background air and measuring the total (3) The CO and CO2 analytical system diluted exhaust flow rate and the § 90.421 Dilute gaseous exhaust sampling requires: concentration of emissions within the and analytical system description. (i) Grab sampling (see § 90.420, and dilute flow. Total mass flow of an (a) General. The exhaust gas sampling Figure 2 or Figure 3 in Appendix B of emission is then easily calculated. system described in this section is this subpart) and analytical capabilities (b) A constant volume sampler (CVS) designed to measure the true mass of (see § 90.423, and Figure 4 in Appendix is typically used to control the total gaseous emissions in the exhaust of B of this subpart), or amount of dilute flow through the nonroad small spark-ignition engines. (ii) Continuously integrated system. As the name implies, a CVS This system utilizes the Constant measurement of diluted CO and CO2 restricts flow to a known value Volume Sampling (CVS) concept meeting the minimum requirements and dependent only on the dilute exhaust (described in § 90.420) of measuring technical specifications contained in temperature and pressure. mass emissions of HC, NOX, CO, and paragraph (b)(4) of this section. (c) For the testing described in this CO2. Grab sampling for individual (4) The NOX analytical system subpart, a CVS must consist of: a mixing modes is an acceptable method of dilute requires: tunnel into which the engine exhaust testing for all constituents, HC, NOX, (i) Grab sampling (see § 90.420, and and dilutant (background) air are CO, and CO2. Continuous dilute Figure 2 or Figure 3 in Appendix B of dumped; a dilute exhaust flow metering sampling is not required for any of the this subpart) and analytical capabilities system; a dilute exhaust sample port; a exhaust constituents, but is allowable (see § 90.423, and Figure 4 in Appendix background sample port; a dilute for all. Heated sampling is not required B of this subpart), or exhaust sampling system; and a for any of the constituents, but is (ii) A continuously integrated background sampling system. allowable for HC and NOX. The mass of measurement of diluted NOX meeting (1) Mixing tunnel. The mixing tunnel gaseous emissions is determined from the minimum requirements and must be constructed such that complete the sample concentration and total flow technical specifications contained in mixing of the engine exhaust and over the test period. As an option, the paragraph (b)(4) of this section. background air is assured prior to the measurement of total fuel mass (5) Since various configurations can sampling probe. consumed over a cycle may be produce equivalent results, exact (2) Exhaust flow metering system. A substituted for the exhaust measurement conformance with these drawings is not dilute exhaust flow metering system of CO2. General requirements are as required. Additional components such must be used to control the total flow follows: as instruments, valves, solenoids, 34628 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations pumps, and switches may be used to (iii) The overflow gas flow rates into either the gas stream or the wall of the provide additional information and the sample line must be at least 105 sample probe at its terminus. coordinate the functions of the percent of the sample system flow rate. (vii) The response time of the component systems. Other components, (iv) The overflow gases must enter the continuous measurement system must such as snubbers, which are not needed sample line as close as practical to the be taken into account when logging test to maintain accuracy on some systems, outside surface of the CVS duct or data. may be excluded if their exclusion is dilution system. (3) Sample Mixing. (i) Configure the based upon good engineering judgment. (v) The continuous HC sampling dilution system to ensure a well mixed, (6) Other sampling and/or analytical system consists of a probe (which for a homogeneous sample prior to the systems may be used if shown to yield HFID analyzer must raise the sample to sampling probe(s). equivalent results and if approved in the specified temperature) and, where (ii) Make the temperature of the advance by the Administrator. used, a sample transfer system (which diluted exhaust stream inside the (b) Component description. The for a HFID must maintain the specified dilution system sufficient to prevent components necessary for exhaust temperature). The HFID continuous water condensation. 0sampling must meet the following hydrocarbon sampling system (iii) Direct the engine exhaust requirements: (exclusive of the probe) must: downstream at the point where it is (1) Exhaust dilution system. The PDP– (A) Maintain a wall temperature of introduced into the dilution system. CVS must conform to all of the 190° C ±11° C as measured at every (4) Continuously integrated NOX, CO, requirements listed for the exhaust gas separately controlled heated component and CO2 measurement systems. PDP–CVS in § 90.420 of this chapter. (that is, filters, heated line sections), (i) Sample probe requirements: The CFV–CVS must conform to all of using permanent thermocouples located (A) The sample probe for continously the requirements listed for the exhaust at each of the separate components. intergrated NOX, CO, and CO2 must be gas CFV–CVS in § 90.420 of this (B) Have a wall temperature of 190° C in the same plane as the continuous HC chapter. In addition, the CVS must ±11° C over its entire length. The probe, but sufficiently distant (radially) conform to the following requirements: temperature of the system is from other probes and the tunnel wall (i) The flow capacity of the CVS must so as to be free from the influences of be sufficient to maintain the diluted demonstrated by profiling the thermal characteristics of the system where any wakes or eddies. exhaust stream in the dilution system at (B) The sample probe for continously ° possible at initial installation and after a temperature of 190 C or less at the intergrated NOX, CO, and CO2 must be sampling zone for hydrocarbon any major maintenance performed on the system. The profiling is to be heated and insulated over the entire measurement and as required to prevent length, to prevent water condensation, condensation at any point in the accomplished using the insertion ° thermocouple probing technique. The to a minimum temperature of 55 C. dilution system. Gaseous emission Sample gas temperature immediately samples may be taken directly from this system temperature must be monitored continuously during testing at the before the first filter in the system must sampling point. be at least 55° C. (ii) For the CFV–CVS, either a heat locations and temperature described in § 90.421(b)(2). (ii) Conform to the continuous NOX, exchanger or electronic flow CO, or CO2 sampling and analysis (C) Maintain a gas temperature of 190° compensation is required (see Figure 3 system to the specifications of part 86, C ±11° C immediately before the heated in Appendix B of this subpart). subpart D of this chapter with the filter and HFID. Determine these gas (iii) For the CFV–CVS when a heat following exceptions and revisions: temperatures by a temperature sensor exchanger is used, the gas mixture (A) Heat the system components located immediately upstream of each temperature, measured at a point requiring heating only to prevent water component. immediately ahead of the critical flow condensation, the minimum component ± ° (vi) The continuous hydrocarbon venturi, must be within 11 C of the temperature is 55° C. average operating temperature observed sampling probe: (B) Coordinate analysis system during the test with the simultaneous (A) Is defined as the first 25.4 to 76.2 response time with CVS flow requirement that condensation does not cm of the continuous hydrocarbon fluctuations and sampling time/test occur. The temperature measuring sampling system. cycle offsets, if necessary. system (sensors and readout) must have (B) Has a 0.483 cm minimum inside (C) Use only analytical gases an accuracy and precision of ±2° C. For diameter. conforming to the specifications of systems utilizing a flow compensator to (C) Is installed in the dilution system § 90.312 of this subpart for calibration, maintain proportional flow, the at a point where the dilution air and zero and span checks. requirement for maintaining constant exhaust are well mixed and provide a (D) Use a calibration curve homogenous mixture. temperature is not necessary. conforming to § 90.321 for CO and CO2 (2) Continuous HC measurement (D) Is sufficiently distant (radially) and § 90.318 for NOX for any range on system. (i) The continuous HC sample from other probes and the system wall a linear analyzer below 155 ppm. system (as shown in Figure 2 or 3 in so as to be free from the influence of any (iii) Convert the chart deflections or Appendix B of this subpart) uses an wakes or eddies. voltage output of analyzers with non- ‘‘overflow’’ zero and span system. In (E) For a continuous HFID sample linear calibration curves to this type of system, excess zero or span probe, the probe must increases the gas concentration values by the calibration ° ± ° gas spills out of the probe when zero stream temperature to 190 C 11 C at curve(s) specified in § 90.321 of this and span checks of the analyzer are the exit of the probe. Demonstrate the chapter before flow correction (if used) made. ability of the probe to accomplish this and subsequent integration takes place. (ii) No other analyzers may draw a using the insertion thermocouple sample from the continuous HC sample technique at initial installation and after § 90.422 Background sample. probe, line, or system, unless a common any major maintenance. Demonstrate (a) Background samples are produced sample pump is used for all analyzers compliance with the temperature by drawing a sample of the dilution air and the sample line system design specification by continuously recording during the exhaust collection phase of reflects good engineering practice. during each test the temperature of each test cycle mode. Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34629 (1) An individual background sample (2) If CO instruments are used which comparing the mass indicated by the may be produced and analyzed for each are essentially free of CO2 and water system to the true mass injected. An mode. Hence, a unique background vapor interference, the use of the indicated error does not necessarily value will be used for the emission conditioning column may be deleted. mean that the calibration is wrong, since calculations for each mode. (See § 90.317 and § 90.320.) other factors can influence the accuracy (2) Alternatively, a single background (3) A CO instrument is considered to of the system (for example, analyzer sample may be produced by drawing a be essentially free of CO2 and water calibration, leaks, or HC hangup). A sample during the collection phase of vapor interference if its response to a verification procedure is found in each test cycle mode. Hence, a single mixture of three percent CO2 in N2, paragraph (e) of this section. cumulative background value will be which has been bubbled through water (c) PDP–CVS calibration. (1) The used for the emission calculations for at room temperature, produces an following calibration procedure outlines each mode. equivalent CO response, as measured on the equipment, the test configuration, (b) For analysis of the individual the most sensitive CO range, which is and the various parameters which must sample described in paragraph (a)(1) of less than one percent of full-scale CO be measured to establish the flow rate of this section, a single value representing concentration on ranges above 300 ppm the CVS pump. the average chart deflection over a 10- full scale or less than three ppm on second stabilized period must be stored. (i) All the parameters related to the ranges below 300 ppm full scale. (See pump are simultaneously measured All readings taken during the data § 90.317.) ± with the parameters related to a logging period must be stable within (c) Alternate analytical systems. one percent of full scale. flowmeter which is connected in series Analysis systems meeting the with the pump. (c) Measure HC, CO, CO2, and NOX specifications and requirements of this (ii) The calculated flow rate, in cm3/ exhaust and background concentrations subpart for dilute sampling may be used s, (at pump inlet absolute pressure and in the sample bag(s) with approximately upon approval of the Administrator. temperature) can then be plotted versus the same flow rates and pressures used (d) Other analyzers and equipment. a correlation function which is the value during calibration. Other types of analyzers and equipment of a specific combination of pump may be used if shown to yield § 90.423 Exhaust gas analytical system; parameters. CVS grab sample. equivalent results and if approved in (iii) The linear equation which relates (a) Schematic drawings. Figure 4 in advance by the Administrator. the pump flow and the correlation Appendix B of this subpart is a § 90.424 Dilute sampling proceduresÐCVS function is then determined. schematic drawing of the exhaust gas calibration. analytical systems used for analyzing (iv) In the event that a CVS has a CVS grab ‘‘bag’’ samples from spark- (a) The CVS is calibrated using an multiple speed drive, a calibration for ignition engines. Since various accurate flowmeter and restrictor valve. each range used must be performed. configurations can produce accurate (1) The flowmeter calibration must be (2) This calibration procedure is based results, exact conformance with the traceable to the National Institute for on the measurement of the absolute drawing is not required. Additional Standards and Testing (NIST) and values of the pump and flowmeter components such as instruments, serves as the reference value (NIST parameters that relate the flow rate at valves, solenoids, pumps and switches ‘‘true’’ value) for the CVS calibration. each point. Two conditions must be may be used to provide additional (Note: In no case should an upstream maintained to assure the accuracy and information and coordinate the screen or other restriction which can integrity of the calibration curve: affect the flow be used ahead of the functions of the component systems. (i) The temperature stability must be flowmeter unless calibrated throughout Other components such as snubbers, maintained during calibration. the flow range with such a device.) which are not needed to maintain (Flowmeters are sensitive to inlet (2) The CVS calibration procedures accuracy in some systems, may be temperature oscillations; this can cause are designed for use of a ‘‘metering excluded if their exclusion is based the data points to be scattered. Gradual venturi’’ type flowmeter. Large radius or upon good engineering judgment. changes in temperature are acceptable American Society of Mechanical (b) Major component description. The as long as they occur over a period of Engineers (ASME) flow nozzles are analytical system, Figure 4 in Appendix several minutes.) B of this subpart, consists of a flame considered equivalent if traceable to (ii) All connections and ducting ionization detector (FID) or a heated NIST measurements. Other between the flowmeter and the CVS flame ionization detector (HFID) for the measurement systems may be used if pump must be absolutely void of measurement of hydrocarbons, non- shown to be equivalent under the test leakage. dispersive infrared analyzers (NDIR) for conditions in this section and traceable the measurement of carbon monoxide to NIST measurements. (3) During an exhaust emission test and carbon dioxide, and a (3) Measurements of the various the measurement of these same pump chemiluminescence detector (CLD) (or flowmeter parameters are recorded and parameters enables the user to calculate heated CLD (HCLD)) for the related to flow through the CVS. the flow rate from the calibration measurement of oxides of nitrogen. The (4) Procedures using both PDP–CVS equation. exhaust gas analytical system must and CFV–CVS are outlined in the (4) Connect a system as shown in conform to the following requirements: following paragraphs. Other procedures Figure 5 in Appendix B of this subpart. (1) The CLD (or HCLD) requires that yielding equivalent results may be used Although particular types of equipment the nitrogen dioxide present in the if approved in advance by the are shown, other configurations that sample be converted to nitric oxide Administrator. yield equivalent results may be used if before analysis. Other types of analyzers (b) After the calibration curve has approved in advance by the may be used if shown to yield been obtained, verification of the entire Administrator. For the system indicated, equivalent results and if approved in system may be performed by injecting a the following measurements and advance by the Administrator. known mass of gas into the system and accuracies are required: 34630 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations CALIBRATION DATA MEASUREMENTS Sym- Sensor-read- Parameter bol Units out tolerances Barometric pressure (corrected) ...... PB kPa ±.340 kPa. Ambient temperature ...... TA ° C ±.28° C. Air temperature into metering venturi ...... ETI ° C ±1.11° C. Pressure drop between the inlet and throat of metering venturi ...... EDP kPa ±0.012 kPa. 3 Air flow ...... QS m /min. ±0.5 percent of NIST value. Air temperature at CVS pump inlet ...... PTI ° C ±1.11° C. Pressure depression at CVS pump inlet ...... PPI kPa ±0.055 kPa. Pressure head at CVS pump outlet ...... PPO kPa ±0.055 kPa. Air temperature at CVS pump outlet (optional) ...... PTO ° C ±1.11° C. Pump revolutions during test period ...... N Revs ±1 Rev. Elapsed time for test period ...... t s ±0.5 s. (5) After the system has been Where: values from the equation will be within ± connected as shown in Figure 5 in PB=barometric pressure, kPa 0.50 percent of the measured value of Appendix B of this subpart, set the PPI=Pump inlet depression, kPa. Vo. Values of M will vary from one variable restrictor in the wide open (iii) The correlation function at each pump to another, but values of Do for position and run the CVS pump for 20 test point is then calculated from the pumps of the same make, model, and minutes. Record the calibration data. calibration data: range should agree within ± three (6) Reset the restrictor valve to a more percent of each other. Calibrations restricted condition in an increment of should be performed at pump start-up ∆ pump inlet depression that will yield a = 1 p and after major maintenance to assure Xo minimum of six data points for the total n P the stability of the pump slip rate. calibration. Allow the system to e Analysis of mass injection data will also stabilize for three minutes and repeat Where: reflect pump slip stability. the data acquisition. Xo=correlation function. (d) CFV–CVS calibration. (1) (7) Data analysis: ∆p=The pressure differential from pump Calibration of the CFV is based upon the (i) The air flow rate, Qs, at each test inlet to pump outlet [kPa] flow equation for a critical venturi. Gas point is calculated in standard cubic ∆p=Pe¥Pp. flow is a function of inlet pressure and ° feet per minute 20 C, 101.3 kPa from Where: temperature: the flowmeter data using the Pe=Absolute pump outlet pressure [kPa], manufacturer’s prescribed method. KP Pe=PB+PPI = v (ii) The air flow rate is then converted Qs (iv) A linear least squares fit is T to pump flow, Vo, in cubic meter per revolution at absolute pump inlet performed to generate the calibration Where: equation which has the form: temperature and pressure: 3 Qs=flow rate [m /min.] = − () Kv=calibration coefficient Q Tp 101. 3kPa VDMX0 o o V =s × × P=absolute pressure [kPa] o Where: n 293 Pp T=absolute temperature [°K] Do and M are the intercept and slope Where: constants, respectively, describing the The calibration procedure described 3 in paragraph (d)(3) of this section Vo=Pump flow, m /rev at Tp, Pp. regression line. establishes the value of the calibration Qs=Meter air flow rate in standard cubic (8) A CVS system that has multiple meters per minute, standard speeds should be calibrated on each coefficient at measured values of conditions are 20° C, 101.3 kPa. speed used. The calibration curves pressure, temperature, and air flow. n=Pump speed in revolutions per generated for the ranges will be (2) The manufacturer’s recommended minute. approximately parallel and the intercept procedure must be followed for Tp=Absolute pump inlet temperature in values, Do, will increase as the pump calibrating electronic portions of the Kelvin, =PTI+273 [°K] flow range decreases. CFV. Pp=Absolute pump inlet pressure, kPa. (9) If the calibration has been (3) Measurements necessary for flow =PB¥PPI performed carefully, the calculated calibration are as follows: CALIBRATION DATA MEASUREMENTS Parameter Symbol Units Tolerances Barometric Pressure (corrected) ...... PB kPa ±.34 kPa Air temperature, into flowmeter ...... ETI ° C ±.28° C Pressure drop between the inlet and throat of metering venturi ...... EDP in. H2O ±.05 in H2O 3 Air flow ...... QS m /min ±.5 percent of NIST value CFV inlet depression ...... PPI (kPa) ±.055 kPa Temperature at venturi inlet ...... TV ° C ±2.22° C Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34631 (4) Set up equipment as shown in (3) Operate the CVS in the normal CC− 1 Figure 6 in Appendix B of this subpart manner and release a quantity of pure WQ= ⋅Density ⋅ Di Bi ⋅1 − i i 6 and eliminate leaks. (Leaks between the propane into the system during the 10 DFi flow measuring devices and the critical sampling period (approximately five Where: flow venturi will seriously affect the minutes). Qi=Volumetric flow rate of the dilute accuracy of the calibration.) (4) The calculations are performed in exhaust through the CVS at (5) Set the variable flow restrictor to the normal way except in the case of standard conditions [m3/hr at STP]. the open position, start the blower, and propane. The density of propane (0.6109 Density=Density of a specific emission allow the system to stabilize. Record kg/m3/carbon atom) is used in place of (DensityHC, DensityCO, DensityCO2, data from all instruments. the density of exhaust hydrocarbons. 3 DensityNOx) [g/m ]. (5) The gravimetric mass is subtracted (6) Vary the flow restrictor and make DFi=Dilution factor of the dilute exhaust at least eight readings across the critical from the CVS measured mass and then during mode i. divided by the gravimetric mass to flow range of the venturi. CDi=Concentration of the emission (HC, determine the percent accuracy of the (7) Data analysis. The data recorded CO, NOX) in dilute exhaust during the calibration are to be used in system. extracted from the CVS during the following calculations: (6) Good engineering practice requires mode i [ppm]. that the cause for any discrepancy (i) Calculate the air flow rate CBi=Concentration of the emission (HC, greater than ± two percent must be (designated as Qs) at each test point in CO, NOX) in the background sample standard cubic feet per minute from the found and corrected. during mode i [ppm]. flow meter data using the § 90.425 CVS calibration frequency. STP=Standard temperature and manufacturer’s prescribed method. pressure. All volumetric (ii) Calculate values of the calibration Calibrate the CVS positive displacement pump or critical flow calculations made for the equations coefficient for each test point: in this section are to be corrected to venturi following initial installation, ° Where: major maintenance, or as necessary a standard temperature of 20 C and Qs=Flow rate in standard cubic meters when indicated by the CVS system 101.3 kPa. per minute, at verification (described in § 90.424(e)). (c) Densities for emissions that are to be measured for this test procedure are: § 90.426 Dilute emission sampling 3 QTs v DensityHC=576.8 g/m = calculationsÐgasoline fueled engines. 3 Kv DensityNOX=1912 g/m 3 Pv (a) The final reported emission test DensityCO=1164 g/m results must be computed by use of the 3 the standard conditions of 20° C, 101.3 DensityCO2=1829 g/m following formula: kPa. (1) The value of DensityHC above is ° Tv=Temperature at venturi inlet, K. n calculated based on the assumption that Pv=Pressure at venturi inlet, ⋅ the fuel used has a carbon to hydrogen ∑()Wi WF i kPa=PB¥PPI ratio of 1:1.85. For other fuels DensityHC A = i ⋅K can be calculated from the following Where: WM n Hi ⋅ formula: PPI=Venturi inlet pressure depression, ∑()Pi WF i kPa. i M = HC (iii) Plot Kv as a function of venturi Where: DensityHC R inlet pressure. For choked flow, Kv will AWM=Final weighted brake-specific STP have a relatively constant value. As mass emission rate for an emission Where: pressure decreases (vacuum increases), (HC, CO, CO2, or NOX) [g/kW-hr] MHC=The molecular weight of the the venturi becomes unchoked and K v Wi=Average mass flow rate of an hydrocarbon molecule divided by decreases. (See Figure 7 in Appendix B emission (HC, CO, CO2, NOX) from the number of carbon atoms in the to Subpart D.) a test engine during mode i [g/hr] molecule [g/mole] (iv) For a minimum of eight points in WFi=Weighting factor for each mode i as RSTP=Ideal gas constant for a gas at the critical region, calculate an average defined in § 90.410(a). STP=0.024065 [m3-mole]. Kv and the standard deviation. Pi=Gross average power generated (2) The idealized molecular weight of (v) If the standard deviation exceeds during mode i [kW], calculated the exhaust hydrocarbons, i.e., the 0.3 percent of the average Kv , take from the following equation, corrective action. molecular weight of the hydrocarbon π molecule divided by the number of (e) CVS system verification. The =2 × × following ‘‘gravimetric’’ technique may Pi speed torque carbon atoms in the molecule, MHC, can be used to verify that the CVS and 60, 000 be calculated from the following analytical instruments can accurately Where: formula: measure a mass of gas that has been speed=average engine speed measured MMMM= +α + β injected into the system. (Verification during mode i [rev./minute] HC C H O can also be accomplished by constant torque=average engine torque measured Where: flow metering using critical flow orifice during mode i [N-m] MC=Molecular weight of carbon=12.01 devices.) KHi=NOX humidity correction factor [g/mole] (1) Obtain a small cylinder that has for mode i. This correction factor only MH=Molecular weight of been charged with 99.5 percent or affects calculations for NOX and is equal hydrogen=1.008 [g/mole] greater propane or carbon monoxide gas to one for all other emissions. KHi is also MO=Molecular weight of oxygen=16.00 (CAUTION—carbon monoxide is equal to 1 for all two-stroke engines. [g/mole] poisonous). (b) The mass flow rate, Wi in g/hr, of α=Hydrogen to carbon ratio of the test (2) Determine a reference cylinder an emission for mode i is determined fuel weight to the nearest 0.01 grams. from the following equations: β=Oxygen to carbon ratio of the test fuel 34632 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations (3) The value of DensityNOX above (f) Calculate the absolute humidity of 2π P = ×speed × torque assumes that NOX is entirely in the form the engine intake air H using the i 60, 000 of NO2 following formula: (d) The dilution factor, DF, is the ratio Where: 6. 211P of the volumetric flow rate of the H = dew speed=average engine speed measured background air to that of the P during mode i [rev./minute] − dew Pb torque=average engine torque measured 13. 4 100 DF = during mode i [N–m] + + Where: (h) The fuel mass flow rate, Fi, can be CCCDDD HC CO CO2 either measured or calculated using the Pdew=Saturated vapor pressure at the following formula raw engine exhaust. The following dew point temperature [kPa] formula is used to determine DF: M Pb=Barometric pressure [kPa]. = FUEL Where: Fi (g) Compute the final reported brake- T CD HC=Concentration of HC in the dilute specific fuel consumption (BSFC) by use Where: sample [ppm] of the following formula: MFUEL=Mass of fuel consumed by the CD CO=Concentration of CO in the dilute engine during the mode [g] sample [ppm] n ∑()G× WF T=Duration of the sampling period [hr] CD CO2=Concentration of CO2 in the FUEL i i (i) The mass of fuel consumed during dilute sample [ppm] = i BSFC n the mode sampling period, MFUEL, can (e) The humidity correction factor KH ∑()P× WF be calculated from the following is an adjustment made to the measured i i equation: i NOX. This corrects for the sensitivity that a spark-ignition engine has to the G Where: M = s humidity of its combustion air. The FUEL × following formula is used to determine BSFC=brake-specific fuel consumption R2 27315. in grams of fuel per brake kilowatt- KH for NOX calculations: Where: hour [g/kW-hr]. Gs=Mass of carbon measured during the 1 = GFUEL i=mass flow rate of engine fuel mode sampling period [g] KH during mode i [g/hr] 1− 0.. 0329()H − 10 71 R2=The fuel carbon weight fraction, WFi=Weighting factors for each mode which is the mass of carbon in fuel Where: according to § 90.410(a) per mass of fuel [g/g] H=Absolute humidity of the engine Pi=Gross average power generated The grams of carbon measured during intake air [grams of water per during mode i [kW], calculated the mode, Gs, can be calculated from the kilogram of dry air]. from the following equation, following equation: 12. 011× HC = mass + + Gs 0.. 429COmass 0 273 CO2 mass 12.. 011+ 1 008α Where: are promoted. The application of this (3) The conversion efficiency for each HCmass=mass of hydrocarbon emissions evaluation procedure involves the pollutant is determined by: for the mode sampling period several steps that are described in the (i) Subtracting the effluent [grams] following paragraphs. concentration from the initial CO2mass=mass of carbon monoxide concentration; (b) Determination of initial conversion (ii) Dividing this result by the initial emissions for the mode sampling efficiency. (1) A synthetic exhaust gas period [grams] concentration; and mixture having the composition CO2mass=mass of carbon dioxide (iii) Multiplying this result by 100 specified in § 90.329 is heated to a percent. emissions for the mode sampling ° ± ° period [grams] temperature of 450 C 5 C and passed (c) Imposition of thermal stress. (1) α=The atomic hydrogen to carbon ratio through the new test catalyst or, The catalyst is placed in an oven that of the fuel optionally, a test catalyst that has been has been pre-heated to 1000° C and the exposed to temperatures less than or temperature of the air in the oven is § 90.427 Catalyst thermal stress resistance equal to 500° C for less than or equal to maintained at 1000° C ± 10° C for six evaluation. two hours, under flow conditions that hours. (a) The purpose of the evaluation are representative of anticipated in-use (2) The catalyst is removed from the procedure specified in this section is to conditions. oven and allowed to cool to room determine the effect of thermal stress on temperature. catalyst conversion efficiency. The (2) The concentration of each (d) Determination of final conversion thermal stress is imposed on the test pollutant of interest, that is, efficiency. The steps listed in paragraph catalyst by exposing it to quiescent hydrocarbons, carbon monoxide, or (b) of this section are repeated. heated air in an oven. The evaluation of oxides of nitrogen, in the effluent of the (e) Determination of conversion the effect of such stress on catalyst catalyst is determined by means of the efficiency degradation. performance is based on the resultant instrumentation that is specified for (1) The final conversion efficiency degradation of the efficiency with which exhaust gas analysis in subpart D of this determined in paragraph (c) of this the conversions of specific pollutants part. section is subtracted from the initial Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34633 conversion efficiency determined in (3) This result is multiplied by 100 degradation determined in paragraph (e) paragraph (b) of this section. percent. of this section must not be greater than (2) This result is divided by the initial (f) Determination of compliance with 20 percent. conversion efficiency. degradation limit. The percent Appendix A to Subpart E of Part 90ÐTables TABLE 1.ÐPARAMETERS TO BE MEASURED OR CALCULATED AND RECORDED Parameter Units Airflow rate (dry), if applicable ...... g/h Fuel flow rate ...... g/h Engine Speed ...... rpm Engine Torque Output ...... N m Power Output ...... kW Air inlet temperature ...... ° C Air humidity ...... mg/kg Coolant temperature (liquid cooled) ...... ° C Exhaust mixing chamber surface temperature, if applicable ...... ° C Exhaust sample line temperature, if applicable ...... ° C Total Accumulated hours of Engine Operation ...... h Barometric Pressure ...... kPa TABLE 2.ÐTEST CYCLES FOR CLASS I±V ENGINES Mode Speed 1 2 3 4 5 6 7 8 9 10 11 Rated Speed Intermediate Speed Idle Mode PointsÐA Cycle ...... 1 2 3 4 5 6 Load PercentÐA Cycle ...... 100 75 50 25 10 0 Weighting ...... 9% 20% 29% 30% 7% 5% Mode PointsÐB Cycle ...... 1 2 3 4 5 ...... 6 Load PercentÐB Cycle ...... 100 75 50 25 10 ...... 0 Weighting ...... 9% 20% 29% 30% 7% ...... 5% Mode PointsÐC Cycle ...... 1 ...... 2 Load PercentÐC Cycle ...... 100 ...... 0 Weighting ...... 90% ...... 10% Appendix B to Subpart E—Figures BILLING CODE 6560±50±P 34634 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34635 34636 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34637 34638 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34639 34640 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations BILLING CODE 6560±50±C Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34641 Subpart FÐSelective Enforcement number of engines to be selected per market for that model year, the number Auditing day. Engine manufacturers will be is two; required to select a minimum of four (ii) for manufacturers with a projected § 90.501 Applicability. engines per day unless an alternate annual production of 100,000 or more The requirements of subpart F shall selection procedure is approved engines bound for the United States be applicable to all nonroad engines and pursuant to § 90.507(a), or unless total market for that model year, by dividing vehicles subject to the provisions of production of the specified the manufacturer’s total number of subpart A of part 90. configuration is less than four engines certified engine families by five and per day. If total production of the rounding to the nearest whole number, § 90.502 Definitions. specified configuration is less than four unless the number of engine families is The definitions in subpart A of this engines per day, the manufacturer will less than eight, in which case the part apply to this subpart. The following select the actual number of engines number is two. definitions shall also apply to this produced per day. (2) If a manufacturer submits to EPA subpart. (2) The test order may include in writing prior to or during the model Acceptable quality level (AQL) means alternate families to be selected for year a reliable sales projection update or the maximum percentage of failing testing at the Administrator’s discretion adds engine families or deletes engine engines that can be considered a in the event that engines of the specified families from its production, that satisfactory process average for family are not available for testing information will be used for sampling inspections. because those engines are not being recalculating the manufacturer’s annual Configuration means any manufactured during the specified time, limit of SEA test orders. subclassification of an engine family or are not being stored at the specified (3) Any SEA test order for which the which can be described on the basis of assembly plant, associated storage family fails under § 90.510 or for which gross power, emission control system, facilities or port of entry. testing is not completed will not be governed speed, fuel system, engine (3) If the specified family is not being counted against the annual limit. calibration, and other parameters as manufactured at a rate of at least two (4) When the annual limit has been designated by the Administrator. engines per day in the case of met, the Administrator may issue Inspection criteria means the pass and manufacturers specified in additional test orders to test those fail numbers associated with a § 90.508(g)(1), or one engine per day in families for which evidence exists particular sampling plan. the case of manufacturers specified in indicating noncompliance. An SEA test Test engine means an engine in a test § 90.508(g)(2), over the expected order issued on this basis will include sample. duration of the audit, the Assistant a statement as to the reason for its Test sample means the collection of issuance. engines selected from the population of Administrator or his or her designated an engine family for emission testing. representative may select engines of the § 90.504 Testing by the Administrator. alternate family for testing. (a) The Administrator may require by § 90.503 Test orders. (4) In addition, the test order may test order under § 90.503 that engines of (a) The Administrator shall require include other directions or information a specified family be selected in a any testing under this subpart by means essential to the administration of the manner consistent with the of a test order addressed to the required testing. requirements of § 90.507 and submitted manufacturer. (d) A manufacturer may submit a list to the Administrator at the place (b) The test order will be signed by of engine families and the designated for the purpose of the Assistant Administrator for Air and corresponding assembly plants, conducting emission tests. These tests Radiation or his or her designee. The associated storage facilities, or (in the will be conducted in accordance with test order will be delivered in person by case of imported engines) port facilities § 90.508 to determine whether engines an EPA enforcement officer or EPA from which the manufacturer prefers to manufactured by the manufacturer authorized representative to a company have engines selected for testing in conform with the regulations with representative or sent by registered mail, response to a test order. In order that a respect to which the certificate of return receipt requested, to the manufacturer’s preferred location be conformity was issued. manufacturer’s representative who considered for inclusion in a test order (b) Designating official data. (1) signed the application for certification for a particular engine family, the list Whenever the Administrator conducts a submitted by the manufacturer, must be submitted prior to issuance of test on a test engine or the pursuant to the requirements of the the test order. Notwithstanding the fact Administrator and manufacturer each applicable section of subpart B of this that a manufacturer has submitted the conduct a test on the same test engine, part. Upon receipt of a test order, the list, the Administrator may order the results of the Administrator’s test manufacturer shall comply with all of selection at other than a preferred will comprise the official data for that the provisions of this subpart and location. engine. instructions in the test order. (e) Upon receipt of a test order, a (2) Whenever the manufacturer (c) Information included in test order. manufacturer shall proceed in conducts all tests on a test engine, the (1) The test order will specify the engine accordance with the provisions of this manufacturer’s test data will be family to be selected for testing, the subpart. accepted as the official data, provided manufacturer’s engine assembly plant or (f)(1) During a given model year, the that if the Administrator makes a associated storage facility or port facility Administrator shall not issue to a determination based on testing (for imported engines) from which the manufacturer more Selective conducted under paragraph (a) of this engines must be selected, the time and Enforcement Auditing (SEA) test orders section that there is a substantial lack of location at which engines must be than an annual limit determined by the agreement between the manufacturer’s selected, and the procedure by which following: test results and the Administrator’s test engines of the specified family must be (i) for manufacturers with a projected results, no manufacturer’s test data from selected. The test order may specify the annual production of less than 100,000 the manufacturer’s test facility will be configuration to be audited and/or the engines bound for the United States accepted for purposes of this subpart. 34642 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations (c) If testing conducted under §§ 90.405, 90.406, 90.418, and/or 90.425 their authorized representatives upon paragraph (a) of this section is as applicable. presentation of credentials to enter unacceptable under § 90.503, the (vii) A brief description of any during operating hours any of the Administrator shall: significant audit events commencing following places: (1) Notify the manufacturer in writing with the test engine selection process, (1) Any facility where any engine to of the Administrator’s determination but not described under paragraph (a)(2) be introduced into commerce, including that the test facility is inappropriate for of this section, including such ports of entry, or any emission-related conducting the tests required by this extraordinary events as engine damage component is manufactured, assembled, subpart and the reasons therefor; and during shipment. or stored; (2) Reinstate any manufacturer’s data (3) The manufacturer shall record test (2) Any facility where any tests upon a showing by the manufacturer equipment description, pursuant to conducted pursuant to a test order or that the data acquired under paragraph paragraph (a)(1) of this section, for each any procedures or activities connected (a) of this section was erroneous and the test cell that can be used to perform with these tests are or were performed; manufacturer’s data was correct. emission testing under this subpart. (3) Any facility where any engine (d) The manufacturer may request in (b) The manufacturer shall retain all which is being tested, was tested, or will writing that the Administrator records required to be maintained under be tested is present; and reconsider his or her determination in this subpart for a period of one year (4) Any facility where any record or paragraph (b)(2) of this section based on after completion of all testing in other document relating to any of the data or information which indicates that response to a test order. Records may be above is located. changes have been made to the test retained as hard copy or reduced to (b) Upon admission to any facility facility and these changes have resolved microfilm, floppy disc, and so forth, referred to in paragraph (a) of this the reasons for disqualification. depending upon the manufacturer’s section, EPA enforcement officers or record retention procedure, provided EPA authorized representatives are § 90.505 Maintenance of records; that in every case all the information authorized to perform the following submittal of information. contained in the hard copy is retained. inspection-related activities: (a) The manufacturer of any new (c) The manufacturer shall, upon (1) To inspect and monitor any nonroad engine subject to any of the request by the Administrator, submit the aspects of engine assembly, storage, provisions of this subpart shall following information with regard to testing and other procedures, and the establish, maintain, and retain the engine production: facilities in which these procedures are following adequately organized and (1) Projected U.S. sales data for each conducted; indexed records: engine configuration within each engine (2) To inspect and monitor any aspect (1) General records. A description of family for which certification is of engine test procedures or activities, all equipment used to test engines, as requested; including, but not limited to, engine specified in subpart D of this part, in (2) Number of engines, by selection, preparation, service accordance with § 90.508 pursuant to a configuration and assembly plant, accumulation, emission test cycles, and test order issued under this subpart. scheduled for production for the time maintenance and verification of test (2) Individual records. These records period designated in the request; equipment calibration; pertain to each audit conducted (3) Number of engines, by (3) To inspect and make copies of any pursuant to this subpart and shall configuration and by assembly plant, records or documents related to the include: storage facility or port facility, assembly, storage, selection and testing (i) The date, time, and location of scheduled to be stored at facilities for of an engine in compliance with a test each test; the time period designated in the order; and (ii) The number of hours of service request; and (4) To inspect and photograph any accumulated on the engine when the (4) Number of engines, by part or aspect of any engine and any test began and ended; configuration and assembly plant, component used in the assembly thereof (iii) The names of all supervisory produced during the time period that is reasonably related to the purpose personnel involved in the conduct of designated in the request that are of the entry. the audit; complete for introduction into (c) EPA enforcement officers or EPA (iv) A record and description of any commerce. authorized representatives are repairs performed prior to and/or (d) Nothing in this section limits the authorized to obtain reasonable subsequent to approval by the Administrator’s discretion in requiring assistance without cost from those in Administrator, giving the date, the manufacturer to retain additional charge of a facility to help the officers associated time, justification, name(s) of records or submit information not perform any function listed in this the authorizing personnel, and names of specifically required by this section. subpart, and they are authorized to all supervisory personnel responsible (e) The manufacturer shall address all request the recipient of a test order to for the conduct of the repair; reports, submissions, notifications, and make arrangements with those in charge (v) The date the engine was shipped requests for approvals made under this of a facility operated for the from the assembly plant, associated subpart to: Director, Manufacturers manufacturer’s benefit to furnish storage facility or port facility and date Operations Division, U.S. reasonable assistance without cost to the engine was received at the testing Environmental Protection Agency, EPA, whether or not the recipient facility; 6405–J, 401 M Street S.W., Washington, controls the facility. (vi) A complete record of all emission D.C. 20460. (1) Reasonable assistance includes, tests performed pursuant to this subpart but is not limited to, clerical, copying, (except tests performed directly by § 90.506 Right of entry and access. interpretation and translation services, EPA), including all individual (a) To allow the Administrator to the making available on an EPA worksheets and/or other documentation determine whether a manufacturer is enforcement officer’s or EPA authorized relating to each test, or exact copies complying with the provisions of this representative’s request of personnel of thereof, to be in accordance with the subpart, a test order is issued which the facility being inspected during their record requirements specified in authorizes EPA enforcement officers or working hours to inform the EPA Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34643 enforcement officer or EPA authorized representative appears without a according to the method specified in the representative of how the facility warrant or court order. test order. operates and to answer the officer’s (g) A manufacturer is responsible for (e) The order in which test engines are questions, and the performance on locating its foreign testing and selected determines the order in which request of emission tests on any engine manufacturing facilities in jurisdictions test results are to be used in applying which is being, has been, or will be used in which local foreign law does not the sampling plan in accordance with for SEA testing. prohibit an EPA enforcement officer(s) § 90.510. (2) A manufacturer may be compelled or an EPA authorized representative(s) (f) The manufacturer shall keep on to cause the personal appearance of any from conducting the entry and access hand all untested engines, if any, employee at such a facility before an activities specified in this section. EPA comprising the test sample until a pass EPA enforcement officer or EPA will not attempt to make any or fail decision is reached in accordance authorized representative by written inspections which it has been informed with § 90.510(e). The manufacturer may request for his or her appearance, signed that local foreign law prohibits. ship any tested engine which has not failed in accordance with § 90.510(b). by the Assistant Administrator for Air § 90.507 Sample selection. and Radiation, served on the However, once the manufacturer ships (a) Engines comprising a test sample manufacturer. Any such employee who any test engine, it relinquishes the will be selected at the location and in has been instructed by the manufacturer prerogative to conduct retests as the manner specified in the test order. provided in § 90.508(i). to appear will be entitled to be If a manufacturer determines that the accompanied, represented, and advised test engines cannot be selected in the § 90.508 Test procedures. by counsel. manner specified in the test order, an (a) For nonroad engines subject to the (d) EPA enforcement officers or EPA alternative selection procedure may be provisions of this subpart, the authorized representatives are employed, provided the manufacturer prescribed test procedures are the authorized to seek a warrant or court requests approval of the alternative appropriate small SI engine test order authorizing the EPA enforcement procedure prior to the start of test procedures as described in subpart E of officers or EPA authorized sample selection, and the Administrator this part. representatives to conduct activities approves the procedure. (b)(1) The manufacturer shall not related to entry and access as authorized (b) The manufacturer shall assemble adjust, repair, prepare, or modify the in this section, as appropriate, to the test engines of the family selected engines selected for testing and shall not execute the functions specified in this for testing using its normal mass perform any emission tests on engines section. EPA enforcement officers or production process for engines to be selected for testing pursuant to the test authorized representatives may proceed distributed into commerce. If, between order unless this adjustment, repair, ex parte to obtain a warrant whether or the time the manufacturer is notified of preparation, modification, and/or tests not the EPA enforcement officers or EPA a test order and the time the are documented in the manufacturer’s authorized representatives first manufacturer finishes selecting test engine assembly and inspection attempted to seek permission of the engines, the manufacturer implements procedures and are actually performed recipient of the test order or the party any change(s) in its production or unless these adjustments and/or tests in charge of the facilities in question to processes, including quality control, are required or permitted under this conduct activities related to entry and which may reasonably be expected to subpart or are approved in advance by access as authorized in this section. affect the emissions of the engines the Administrator. (e) A recipient of a test order shall selected, then the manufacturer shall, (2) The Administrator may adjust or permit an EPA enforcement officer(s) or during the audit, inform the cause to be adjusted any engine EPA authorized representative(s) who Administrator of such changes. If the parameter which the Administrator has presents a warrant or court order to test engines are selected at a location determined to be subject to adjustment conduct activities related to entry and where they do not have their for certification and Selective access as authorized in this section and operational and emission control Enforcement Audit testing in as described in the warrant or court systems installed, the test order will accordance with § 90.112(c), to any order. The recipient shall also cause specify the manner and location for setting within the physically adjustable those in charge of its facility or a facility selection of components to complete range of that parameter, as determined operated for its benefit to permit entry assembly of the engines. The by the Administrator in accordance with and access as authorized in this section manufacturer shall assemble these § 90.112(a), prior to the performance of pursuant to a warrant or court order components onto the test engines using any tests. However, if the idle speed whether or not the recipient controls the normal assembly and quality control parameter is one which the facility. In the absence of a warrant or procedures as documented by the Administrator has determined to be court order, an EPA enforcement manufacturer. subject to adjustment, the Administrator officer(s) or EPA authorized (c) No quality control, testing, or shall not adjust it to any setting which representative(s) may conduct activities assembly procedures will be used on the causes a lower engine idle speed than related to entry and access as authorized test engine or any portion thereof, would have been possible within the in this section only upon the consent of including parts and subassemblies, that physically adjustable range of the idle the recipient of the test order or the have not been or will not be used during speed parameter if the manufacturer had party in charge of the facilities in the production and assembly of all other accumulated 12 hours of service on the question. engines of that family, unless the engine under paragraph (c) of this (f) It is not a violation of this part or Administrator approves the section, all other parameters being of the Clean Air Act for any person to modification in assembly procedures identically adjusted for the purpose of refuse to permit an EPA enforcement pursuant to paragraph (b) of this section. the comparison. The manufacturer may officer(s) or an EPA authorized (d) The test order may specify that an be requested to supply information representative(s) to conduct activities EPA enforcement officer(s) or needed to establish an alternate related to entry and access as authorized authorized representative(s), rather than minimum idle speed. The in this section if the officer or the manufacturer, select the test engines Administrator, in making or specifying 34644 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations these adjustments, may consider the close proximity to the point of selection, retest, subject to the provisions of effect of the deviation from the the manufacturer shall assure that test paragraph (c) of this section. manufacturer’s recommended setting on engines arrive at the test facility within (j) A manufacturer may test engines emission performance characteristics as 24 hours of selection, except that the with the test procedure specified in well as the likelihood that similar Administrator may approve more time subpart E of this part to demonstrate settings will occur on in-use engines. In for shipment based upon a request by compliance with the exhaust emission determining likelihood, the the manufacturer accompanied by a standards; however, if alternate Administrator may consider factors satisfactory justification. procedures were used in certification such as, but not limited to, the effect of (f) If an engine cannot complete the pursuant to § 90.120, then those the adjustment on engine performance service accumulation or an emission test alternate procedures shall be used. characteristics and surveillance because of a malfunction, the § 90.509 Calculation and reporting of test information from similar in-use engines. manufacturer may request that the results. (c) Service Accumulation. Prior to Administrator authorize either the performing exhaust emission testing on (a) Initial test results are calculated repair of that engine or its deletion from following the applicable test procedure an SEA test engine, the manufacturer the test sequence. may accumulate on each engine a specified in paragraph (a) of § 90.508. (g) Whenever a manufacturer The manufacturer shall round these number of hours of service equal to the conducts testing pursuant to a test order greater of 12 hours or the number of results, in accordance with ASTM E29– issued under this subpart, the 93a, to the number of decimal places hours the manufacturer accumulated manufacturer shall notify the contained in the applicable emission during certification on the emission data Administrator within one working day standard expressed to one additional engine corresponding to the family of receipt of the test order as to which significant figure. ASTM E29–93a has specified in the test order. test facility will be used to comply with been incorporated by reference. See (1) Service accumulation must be the test order. If no test cells are performed in a manner using good § 90.7. available at a desired facility, the (b) Final test results are calculated by engineering judgment to obtain manufacturer must provide alternate summing the initial test results derived emission results representative of testing capability satisfactory to the in paragraph (a) of this section for each normal production engines. This service Administrator. test engine, dividing by the number of accumulation must be consistent with (1) A manufacturer with projected tests conducted on the engine, and the new engine break-in instructions nonroad engine sales for the United rounding in accordance with ASTM contained in the applicable owner’s States market for the applicable year of E29–93a to the same number of decimal manual. 7,500 or greater shall complete emission (2) The manufacturer shall places contained in the applicable testing at a minimum rate of two standard expressed to one additional accumulate service at a minimum rate of engines per 24-hour period, including 12 hours per engine during each 24- significant figure. each voided test. (c) Within five working days after hour period, unless otherwise approved (2) A manufacturer with projected completion of testing of all engines by the Administrator. nonroad engine sales for the United (i) The first 24 hour period for service pursuant to a test order, the States market for the applicable year of shall begin as soon as authorized manufacturer shall submit to the less than 7,500 shall complete emission checks, inspections, and preparations Administrator a report which includes testing at a minimum rate of one engine are completed on each engine. the following information: (ii) The minimum service or mileage per 24-hour period, including each (1) The location and description of the accumulation rate does not apply on voided test. manufacturer’s exhaust emission test weekends or holidays. (3) The Administrator may approve a facilities which were utilized to conduct (iii) If the manufacturer’s service or lower daily rate of emission testing testing reported pursuant to this section; target is less than the minimum rate based upon a request by a manufacturer (2) The applicable standards or specified (12 hours per day), then the accompanied by a satisfactory compliance levels against which the minimum daily accumulation rate shall justification. engines were tested; (3) A description of the engine and its be equal to the manufacturer’s service (h) The manufacturer shall perform associated emission-related component target. test engine selection, shipping, (3) Service accumulation shall be preparation, service accumulation, and selection method used; (4) For each test conducted; completed on a sufficient number of test testing in such a manner as to assure that the audit is performed in an (i) Test engine description, including: engines during consecutive 24-hour (A) Configuration and engine family expeditious manner. periods to assure that the number of identification; engines tested per day fulfills the (i) Retesting. (1) The manufacturer (B) Year, make and build date; requirements of paragraphs (g)(1) and may retest any engines tested during a (C) Engine identification number; and (g)(2) of this section. Selective Enforcement Audit once a fail (D) Number of hours of service (d) The manufacturer shall not decision for the audit has been reached accumulated on engine prior to testing; perform any maintenance on test in accordance with § 90.510(e). (ii) Location where service engines after selection for testing, nor (2) The Administrator may approve accumulation was conducted and shall the Administrator allow deletion retesting at other times based upon a description of accumulation procedure of any engine from the test sequence, request by the manufacturer and schedule; unless requested by the manufacturer accompanied by a satisfactory (iii) Test number, date, test procedure and approved by the Administrator justification. used, initial test results before and after before any engine maintenance or (3) The manufacturer may retest each rounding and final test results for all deletion. engine a total of three times. The exhaust emission tests, whether valid or (e) The manufacturer shall manufacturer shall test each engine or invalid, and the reason for invalidation, expeditiously ship test engines from the vehicle the same number of times. The if applicable; point of selection to the test facility. If manufacturer may accumulate (iv) A complete description of any the test facility is not located at or in additional service before conducting a modification, repair, preparation, Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34645 maintenance, and/or testing which was (d) The pass and fail decision information provided to the performed on the test engine and has numbers associated with the cumulative Administrator under this subpart. not been reported pursuant to any other number of engines tested are (4) The manufacturer renders paragraph of this subpart and will not determined by using the tables in inaccurate any test data submitted be performed on all other production Appendix A to this subpart, ‘‘Sampling under this subpart. engines; Plans for Selective Enforcement (5) An EPA enforcement officer or (v) Where an engine was deleted from Auditing of Small Nonroad Engines,’’ EPA authorized representative is denied the test sequence by authorization of the appropriate to the projected sales as the opportunity to conduct activities Administrator, the reason for the made by the manufacturer in its report related to entry and access as authorized deletion; to EPA under § 90.505(c)(1). In the in this subpart and a warrant or court (vi) Any other information the tables in Appendix A to this subpart, order is presented to the manufacturer Administrator may request relevant to sampling plan ‘‘stage’’ refers to the or the party in charge of a facility in the determination as to whether the new cumulative number of engines tested. question. engines being manufactured by the Once a pass or fail decision has been (6) An EPA enforcement officer or manufacturer do in fact conform with made for a particular pollutant, the EPA authorized representative is unable the regulations with respect to which number of engines with final test results to conduct activities related to entry and the certificate of conformity was issued; exceeding the emission standard for that access as authorized in § 90.506 because and pollutant shall not be considered any a manufacturer has located a facility in (5) The following statement and further for the purposes of the audit. a foreign jurisdiction where local law endorsement: (e) Passing or failing of an SEA occurs prohibits those activities. This report is submitted pursuant to when the decision is made on the last (e) The Administrator shall notify the Sections 213 and 208 of the Clean Air engine test required to make a decision manufacturer in writing of any Act. This Selective Enforcement Audit under paragraph (c) of this section. suspension or revocation of a certificate was conducted in complete (f) The Administrator may terminate of conformity in whole or in part, except conformance with all applicable testing earlier than required in that the certificate is immediately regulations under 40 CFR Part 90 et seq. paragraph (c) of this section. suspended with respect to any failed and the conditions of the test order. No engines as provided for in paragraph (a) emission-related changes to production § 90.511 Suspension and revocation of of this section. processes or quality control procedures certificates of conformity. (f) The Administrator may revoke a for the engine family tested have been (a) The certificate of conformity is certificate of conformity for a family made between receipt of the test order suspended with respect to any engine when the certificate has been suspended and conclusion of the audit. All data failing pursuant to § 90.510(b) effective pursuant to paragraph (b) or (c) of this and information reported herein is, to from the time that testing of that engine section if the proposed remedy for the the best of (Company Name) knowledge, is completed. nonconformity, as reported by the true and accurate. I am aware of the (b) The Administrator may suspend manufacturer to the Administrator, is penalties associated with violations of the certificate of conformity for a family one requiring a design change or the Clean Air Act and the regulations which does not pass an SEA, pursuant changes to the engine and/or emission thereunder. (Authorized Company to paragraph § 90.510(c), based on the control system as described in the Representative.) first test or all tests conducted on each application for certification of the affected family. § 90.510 Compliance with acceptable engine. This suspension will not occur before ten days after failure of the audit. (g) Once a certificate has been quality level and passing and failing criteria suspended for a failed engine, as for selective enforcement audits. (c) If the results of testing pursuant to these regulations indicate that engines provided for in paragraph (a) of this (a) The prescribed acceptable quality section, the manufacturer shall take the level is 40 percent. of a particular family produced at one plant of a manufacturer do not conform following actions: (b) A failed engine is one whose final (1) Before the certificate is reinstated to the regulations with respect to which test results pursuant to § 90.509(b), for for that failed engine; one or more of the applicable pollutants, the certificate of conformity was issued, (i) Remedy the nonconformity; and exceed the applicable emission the Administrator may suspend the (ii) Demonstrate that the engine standard. certificate of conformity with respect to conforms to applicable standards by (c) The manufacturer shall test that family for engines manufactured by retesting the engine in accordance with engines comprising the test sample until the manufacturer at all other plants. these regulations. a pass decision is reached for all (d) Notwithstanding the fact that (2) Submit a written report to the pollutants or a fail decision is reached engines described in the application Administrator, after successful for one pollutant. A pass decision is may be covered by a certificate of completion of testing on the failed reached when the cumulative number of conformity, the Administrator may engine, which contains a description of failed engines, as defined in paragraph suspend such certificate in whole or in the remedy and test results for each (b) of this section, for each pollutant is part if the Administrator finds any one engine in addition to other information less than or equal to the pass decision of the following infractions to be that may be required by this regulation. number, as defined in paragraph (d) of substantial: (h) Once a certificate for a failed this section, appropriate to the (1) The manufacturer refuses to family has been suspended pursuant to cumulative number of engines tested. A comply with the provisions of a test paragraph (b) or (c) of this section, the fail decision is reached when the order issued by the Administrator under manufacturer shall take the following cumulative number of failed engines for § 90.503. actions before the Administrator will one or more pollutants is greater than or (2) The manufacturer refuses to consider reinstating the certificate: equal to the fail decision number, as comply with any of the requirements of (1) Submit a written report to the defined in paragraph (d) of this section, this subpart. Administrator which identifies the appropriate to the cumulative number of (3) The manufacturer submits false or reason for the noncompliance of the engines tested. incomplete information in any report or engines, describes the proposed remedy, 34646 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations including a description of any proposed limited to the family affected by the test specified by the Administrator. The quality control and/or quality assurance order. manufacturer shall simultaneously serve measures to be taken by the (j) At any time subsequent to an initial two copies of this request upon the manufacturer to prevent future suspension of a certificate of conformity Director of the Manufacturers occurrences of the problem, and states for a test engine pursuant to paragraph Operations Division and file two copies the date on which the remedies will be (a) of this section, but not later than 15 with the Hearing Clerk of the Agency. implemented. days or such other period as may be Failure of the manufacturer to request a (2) Demonstrate that the engine family allowed by the Administrator after hearing within the time provided for which the certificate of conformity notification of the Administrator’s constitutes a waiver of the right to a has been suspended does in fact comply decision to suspend or revoke a hearing. Subsequent to the expiration of with these regulations by testing engines certificate of conformity in whole or in the period for requesting a hearing as of selected from normal production runs of part pursuant to paragraphs (b), (c), or right, the Administrator may, in his or that engine family, at the plant(s), port (f) of this section, a manufacturer may her discretion and for good cause facility(ies) or associated storage request a hearing as to whether the tests shown, grant the manufacturer a hearing facility(ies) specified by the have been properly conducted or any to contest the suspension or revocation. Administrator, in accordance with the sampling methods have been properly (c) A manufacturer shall include in conditions specified in the initial test applied. the request for a public hearing: order. If the manufacturer elects to (k) Any suspension of a certificate of (1) A statement as to which engine continue testing individual engines after conformity under paragraph (d) of this configuration(s) within a family is to be suspension of a certificate, the section shall: the subject of the hearing; certificate is reinstated for an engine (1) Be made only after the (2) A concise statement of the issues actually determined to be in manufacturer concerned has been to be raised by the manufacturer at the conformance with the applicable offered an opportunity for a hearing hearing, except that in the case of the standards through testing in accordance conducted in accordance with hearing requested under § 90.511(j), the with the applicable test procedures, §§ 90.512, 90.513, and 90.514 and hearing is restricted to the following (2) Not apply to engines no longer in provided that the Administrator has not issues: the possession of the manufacturer. revoked the certificate pursuant to (i) Whether tests have been properly paragraph (f) of this section. (l) After the Administrator suspends or revokes a certificate of conformity conducted (specifically, whether the (i) Once the certificate has been pursuant to this section and prior to the tests were conducted in accordance revoked for a family and the commencement of a hearing under with applicable regulations under this manufacturer desires to continue § 90.512, if the manufacturer part and whether test equipment was introduction into commerce of a demonstrates to the Administrator’s properly calibrated and functioning); modified version of that family, the satisfaction that the decision to (ii) Whether sampling plans have following actions shall be taken before suspend, revoke, or void the certificate been properly applied (specifically, the Administrator may consider issuing was based on erroneous information, the whether sampling procedures specified a certificate for that modified family: Administrator shall reinstate the in Appendix A of this subpart were (1) If the Administrator determines certificate. followed and whether there exists a that the proposed change(s) in engine (m) To permit a manufacturer to avoid basis for distinguishing engines design may have an effect on emission storing non-test engines when produced at plants other than the one performance deterioration, the conducting an audit of a family from which engines were selected for Administrator shall notify the subsequent to a failure of an SEA and testing which would invalidate the manufacturer, within five working days while reauditing the failed family it may Administrator’s decision under after receipt of the report in paragraph request that the Administrator § 90.511(c)); (f) of this section, whether subsequent conditionally reinstate the certificate for (3) A statement specifying reasons testing under this subpart will be that family. The Administrator may why the manufacturer believes it will sufficient to evaluate the proposed reinstate the certificate subject to the prevail on the merits of each of the change or changes or whether additional condition that the manufacturer issues raised; and testing will be required; and commits to recall all engines of that (4) A summary of the evidence which (2) After implementing the change or family produced from the time the supports the manufacturer’s position on changes intended to remedy the certificate is conditionally reinstated if each of the issues raised. nonconformity, the manufacturer shall the family fails the subsequent audit at (d) A copy of all requests for public demonstrate that the modified engine the level of the standard and to remedy hearings will be kept on file in the family does in fact conform with these any nonconformity at no expense to the Office of the Hearing Clerk and will be regulations by testing engines selected owner. made available to the public during from normal production runs of that Agency business hours. modified engine family in accordance § 90.512 Request for public hearing. with the conditions specified in the (a) If the manufacturer disagrees with § 90.513 Administrative procedures for initial test order. If the subsequent audit the Administrator’s decision to suspend, public hearing. results in passing of the audit, the revoke or void a certificate or disputes (a) The Presiding Officer shall be an Administrator shall reissue the the basis for an automatic suspension Administrative Law Judge appointed certificate or issue a new certificate, as pursuant to § 90.511(a), the pursuant to 5 U.S.C. 3105 (see also 5 the case may be, to include that family, manufacturer may request a public CFR part 930 as amended). provided that the manufacturer has hearing. (b) The Judicial Officer shall be an satisfied the testing requirements of (b) The manufacturer’s request shall officer or employee of the Agency paragraph (i)(1) of this section. If the be filed with the Administrator not later appointed as a Judicial Officer by the subsequent audit is failed, the than 15 days after the Administrator’s Administrator, pursuant to this section, revocation remains in effect. Any design notification of his or her decision to who shall meet the qualifications and change approvals under this subpart are suspend or revoke, unless otherwise perform functions as follows: Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34647 (1) Qualifications. A Judicial Officer hearing and suspending the certificate that when the period expires on a may be a permanent or temporary of conformity. Saturday, Sunday, or federal legal employee of the Agency who performs (3) Any order issued under paragraph holiday, the period is extended to other duties for the Agency. The Judicial (d)(1) or (d)(2) of this section has the include the next following business day. Officer shall not be employed by the force and effect of a final decision of the (2) A prescribed period of time within Office of Enforcement or have any Administrator, as issued pursuant to which a party is required or permitted connection with the preparation or § 90.515. to do an act is computed from the time presentation of evidence for a hearing (4) If the Administrator determines of service, except that when service is held pursuant to this subpart. The that a genuine and substantial question accomplished by mail, three days will Judicial Officer shall be a graduate of an of fact does exist with respect to any of be added to the prescribed period. accredited law school and a member in the issues referred to in paragraphs (g) Consolidation. The Administrator good standing of a recognized Bar (d)(1) and (d)(2) of this section, the or the Presiding Officer in his or her Association of any state or the District Administrator shall grant the request for discretion may consolidate two or more of Columbia. a hearing and publish a notice of public proceedings to be held under this (2) Functions. The Administrator may hearing in the Federal Register or by section for the purpose of resolving one consult with the Judicial Officer or such other means as the Administrator or more issues whenever it appears that delegate all or part of the finds appropriate to provide notice to consolidation will expedite or simplify Administrator’s authority to act in a the public. consideration of these issues. given case under this section to a (e) Filing and service. (1) An original Consolidation does not affect the right Judicial Officer, provided that this and two copies of all documents or of any party to raise issues that could delegation does not preclude the papers required or permitted to be filed have been raised if consolidation had Judicial Officer from referring any pursuant to this section and § 90.512(c) not occurred. motion or case to the Administrator must be filed with the Hearing Clerk of (h) Hearing Date. To the extent when the Judicial Officer determines the Agency. Filing is considered timely possible, hearings under § 90.512 will such referral to be appropriate. if mailed, as determined by the be scheduled to commence within 14 (c) For the purposes of this section, postmark, to the Hearing Clerk within days of receipt of the application in one or more Judicial Officers may be the time allowed by this section and § 90.512. designated. As work requires, a Judicial § 90.512(b). If filing is to be Officer may be designated to act for the accomplished by mailing, the § 90.514 Hearing procedures. purposes of a particular case. documents must be sent to the address The procedures provided in (d) Summary decision. (1) In the case set forth in the notice of public hearing § 86.1014–84 (i) to (s) apply for hearings of a hearing requested under § 90.511(j), referred to in paragraph (d)(4) of this requested pursuant to § 90.512, when it clearly appears from the data section. suspension, revocation, or voiding of a and other information contained in the (2) To the maximum extent possible, certificate of conformity. request for a hearing that no genuine testimony will be presented in written and substantial question of fact exists form. Copies of written testimony will § 90.515 Appeal of hearing decision. with respect to the issues specified in be served upon all parties as soon as The procedures provided in § 90.512(c)(2), the Administrator shall practicable prior to the start of the § 86.1014–84 (t) to (aa) apply for appeals enter an order denying the request for a hearing. A certificate of service will be filed with respect to hearings held hearing and reaffirming the original provided on or accompany each pursuant to § 90.514. decision to suspend or revoke a document or paper filed with the § 90.516 Treatment of confidential certificate of conformity, if this decision Hearing Clerk. Documents to be served information. has been made pursuant to § 90.511(e) at upon the Director of the Manufacturers any time prior to the decision to deny Operations Division must be sent by The provisions for treatment of the request for a hearing. registered mail to: Director, confidential information described in (2) In the case of a hearing requested Manufacturers Operations Division, U.S. § 90.4 apply to this subpart. under § 90.512 to challenge a proposed Environmental Protection Agency, Appendix A to Subpart F—Sampling suspension of a certificate of conformity 6405–J, 401 M Street S.W., Washington, Plans for Selective Enforcement for the reasons specified in § 90.511(d), D.C. 20460. Service by registered mail is Auditing of Small Nonroad Engines when it clearly appears from the data complete upon mailing. and other information contained in the (f) Computation of Time. (1) In TABLE 1.ÐSAMPLING PLAN CODE request for the hearing that no genuine computing any period of time LETTER and substantial question of fact exists prescribed or allowed by this section, with respect to the issue of whether the except as otherwise provided, the day of Annual engine family sales Code refusal to comply with the provisions of the act or event from which the letter a test order or any other requirement of designated period of time begins to run § 90.503 was caused by conditions and is not included. Saturdays, Sundays, 50±99 ...... A circumstances outside the control of the and federal legal holidays are included 100±299 ...... B 300±499 ...... C manufacturer, the Administrator shall in computing the period allowed for the 500 or greater ...... D enter an order denying the request for a filing of any document or paper, except 34648 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations TABLE 2.ÐSAMPLE PLAN FOR CODE LETTER ``A'' [Sample inspection criteria] Pass Fail Pass Fail Stage No. No. Stage No. No.1 1 ...... (1)(2) 16 6 11 2 ...... (1)(2) 17 7 12 3 ...... (1)(2) 18 7 12 4 ...... 0 (2) 19 8 13 5 ...... 0 (2) 20 8 13 6 ...... 1 6 21 9 14 7 ...... 1 7 22 10 14 8 ...... 2 7 23 10 15 9 ...... 2 8 24 11 15 10 ...... 3 8 25 11 16 11 ...... 3 8 26 12 16 12 ...... 4 9 27 12 17 13 ...... 5 10 28 13 17 14 ...... 5 10 29 14 17 15 ...... 6 11 30 16 17 1 Test sample passing not permitted at this stage. 2 Test sample failure not permitted at this stage. TABLE 3.ÐSAMPLING PLAN FOR CODE 2 Test sample failure not permitted at this TABLE 4.ÐSAMPLING PLAN FOR CODE stage. LETTER ``B'' LETTER ``C''ÐContinued [Sample Inspection Criteria] TABLE 4.ÐSAMPLING PLAN FOR CODE [Sample Inspection Criteria] LETTER ``C'' Pass Fail Stage Pass Fail Stage No. No. [Sample Inspection Criteria] No. No. 1 2 42 ...... 20 25 1 ...... ( )( ) Stage Pass Fail 2 ...... (1)(2) No. No. 43 ...... 20 25 3 ...... (1)(2) 44 ...... 21 26 4 ...... (1)(2) 1 ...... (1)(2) 45 ...... 21 27 1 2 5 ...... 0 (2) 2 ...... ( )( ) 46 ...... 22 27 1 2 6 ...... 1 6 3 ...... ( )( ) 47 ...... 22 27 1 2 7 ...... 1 7 4 ...... ( ) ( ) 48 ...... 23 27 5 ...... 0 (2) 8 ...... 2 7 49 ...... 23 27 6 ...... 0 6 9 ...... 2 8 50 ...... 26 27 7 ...... 1 7 10 ...... 3 8 8 ...... 2 7 1 Test sample passing not permitted at this 11 ...... 3 9 9 ...... 2 8 stage. 12 ...... 4 9 10 ...... 3 9 2 Test sample failure not permitted at this 13 ...... 4 10 11 ...... 3 9 stage. 14 ...... 5 10 12 ...... 4 10 15 ...... 5 11 13 ...... 4 10 TABLE 5.ÐSAMPLING PLAN FOR CODE 16 ...... 6 12 14 ...... 5 11 LETTER ``D'' 17 ...... 6 12 15 ...... 5 11 18 ...... 7 13 16 ...... 6 12 [Sample Inspection Criteria] 19 ...... 8 13 17 ...... 6 12 10 ...... 8 14 18 ...... 7 13 Stage Pass Fail 21 ...... 9 14 19 ...... 7 13 No. No. 22 ...... 9 15 20 ...... 8 14 1 2 23 ...... 10 15 21 ...... 8 14 1 ...... ( )( ) 1 2 24 ...... 10 16 22 ...... 9 15 2 ...... ( )( ) 1 2 25 ...... 11 16 23 ...... 10 15 3 ...... ( )( ) 1 2 26 ...... 11 17 24 ...... 10 16 4 ...... ( )( ) 2 27 ...... 12 17 25 ...... 11 16 5 ...... 0 ( ) 28 ...... 12 18 26 ...... 11 17 6 ...... 0 6 29 ...... 13 18 27 ...... 12 17 7 ...... 1 7 30 ...... 13 19 28 ...... 12 18 8 ...... 2 8 31 ...... 14 19 29 ...... 13 18 9 ...... 2 8 32 ...... 14 20 30 ...... 13 19 10 ...... 3 9 33 ...... 15 20 31 ...... 14 19 11 ...... 3 9 34 ...... 16 21 32 ...... 14 20 12 ...... 4 10 35 ...... 16 21 33 ...... 15 20 13 ...... 4 10 14 ...... 5 11 36 ...... 17 22 34 ...... 15 21 15 ...... 5 11 37 ...... 17 22 35 ...... 16 21 16 ...... 6 12 38 ...... 18 22 36 ...... 16 22 17 ...... 6 12 39 ...... 18 22 37 ...... 17 22 18 ...... 7 13 40 ...... 21 22 38 ...... 18 23 39 ...... 18 23 19 ...... 7 13 1 Test sample passing not permitted at this 40 ...... 19 24 20 ...... 8 14 stage. 41 ...... 19 24 21 ...... 8 14 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34649 TABLE 5.ÐSAMPLING PLAN FOR CODE applicable provisions of the Clean Air (1) Identification of the importer and LETTER ``D''ÐContinued Act. the importer’s address, telephone (b) Regulations prescribing further [Sample Inspection Criteria] number, and taxpayer identification procedures for the importation of small number; Pass Fail SI engines into the Customs territory of (2) Identification of the engine owner, Stage No. No. the United States, as defined in 19 the owner’s address, telephone number, U.S.C. 1202, are set forth in U.S. and taxpayer identification number; 22 ...... 9 15 Customs Service regulations. (3) Identification of the engine 23 ...... 9 15 including make, model, identification 24 ...... 10 16 § 90.602 Definitions. number, and original production year; 25 ...... 11 16 The definitions in subpart A of this (4) Information indicating under what 26 ...... 11 17 part apply to this subpart. The following provision of these regulations the engine 27 ...... 12 17 definitions also apply to this subpart. is to be imported; 28 ...... 12 18 Certificate of conformity. The 29 ...... 13 19 (5) Identification of the place where 30 ...... 13 19 document issued by the Administrator the subject engine is to be stored until 31 ...... 14 20 under section 213 and section 206(a) of EPA approval of the importer’s 32 ...... 14 20 the Act. application to the Administrator for 33 ...... 15 21 Nonconforming engine. An engine final admission; 34 ...... 15 21 which is not covered by a certificate of (6) Authorization for EPA 35 ...... 16 22 conformity prior to final or conditional enforcement officers to conduct 36 ...... 16 22 admission (or for which such coverage inspections or testing otherwise 37 ...... 17 23 has not been adequately demonstrated 38 ...... 17 23 permitted by the Act or regulations 39 ...... 18 24 to EPA). thereunder; and 40 ...... 18 24 Original engine manufacturer (OEM). (7) Such other information as is 41 ...... 19 25 The entity which originally deemed necessary by the Administrator. 42 ...... 19 26 manufactured the engine. 43 ...... 20 26 Original production (OP) year. The § 90.605±90.610 [Reserved] 44 ...... 21 27 calendar year in which the engine was § 90.611 Importation for purposes other 45 ...... 21 27 originally produced by the OEM. than resale. 46 ...... 22 28 Original production (OP) years old. (a) Any individual may import on a 47 ...... 22 28 The age of an engine as determined by one-time basis three or fewer 48 ...... 23 29 subtracting the original production year 49 ...... 23 29 nonconforming engines for purposes of the engine from the calendar year of 50 ...... 24 30 other than resale. Such importation by importation. 51 ...... 24 30 individuals is permitted without 52 ...... 25 31 Production changes. Those changes in the engine configuration, equipment or modification to the engines and without 53 ...... 25 31 prior written approval of EPA. 54 ...... 26 32 calibration which are made by an OEM 55 ...... 26 32 in the course of engine production and Importations under this provision shall 56 ...... 27 33 required to be reported under § 90.123. be made by completing such 57 ...... 27 33 United States. United States includes applications as required by the 58 ...... 28 33 the Customs territory of the United Administrator. Such applications shall 59 ...... 28 33 States as defined in 19 U.S.C. 1202, and contain: 60 ...... 32 33 the Virgin Islands, Guam, American (1) Identification of the importer of the engine and the importer’s address, 1 Test sample passing not permitted at this Samoa and the Commonwealth of the stage. Northern Mariana Islands. telephone number, and taxpayer 2 Test sample failure not permitted at this identification number; stage. § 90.603 [Reserved] (2) Identification of the engine owner, the owner’s address, telephone number, Subpart GÐImportation of § 90.604 General requirements. and taxpayer identification number; Nonconforming Engines (a) A nonconforming engine offered (3) The number of engines imported for importation into the United States § 90.601 Applicability. under § 90.611 by the individual; may only be imported for purposes (4) A statement that the individual (a) Except where otherwise indicated, other than resale under § 90.611, or has not previously imported any this subpart is applicable to engines and under the provisions of § 90.612, engines under § 90.611; vehicles which are offered for provided that an exemption or (5) A statement that the individual is importation or imported into the United exclusion is granted by the not importing the engines for the States and for which the Administrator Administrator. purpose of resale; has promulgated regulations under (b) Final admission shall not be (6) For each engine imported, subpart B of this part prescribing granted unless: identification of the engine including emission standards, but which are not (1) The engine is imported for make, model, identification number, covered by certificates of conformity purposes other than resale under and original production year; issued under section 213 and section § 90.611; or (7) Information indicating under what 206(a) of the Clean Air Act (that is, (2) The engine is exempted or provision of these regulations the engine which are nonconforming engines as excluded under § 90.612. is to be imported; defined below) and under subpart B of (c) An engine offered for importation (8) Authorization for EPA this part at the time of importation or may be admitted into the United States. enforcement officers to conduct conditional importation, as applicable. In order to obtain admission, the inspections permitted by the Act or Compliance with regulations under this importer must submit to the regulations thereunder; subpart shall not relieve any person or Administrator a written request for (9) Such other information as is entity from compliance with other approval containing the following: deemed necessary by the Administrator. 34650 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations (b) EPA will not require a U.S. engine at a dealership, private use, or conformity of individual engines is to Customs Service bond for a other purpose that the Administrator contain sufficiently organized data or nonconforming engine which is determines is not appropriate for evidence demonstrating that the engine imported under § 90.611. display exemptions. A display engine identified pursuant to § 90.604(c) is may not be sold in the United States and identical, in all material respects, to an § 90.612 Exemptions and exclusions. may not be operated in the United engine identified in an OEM’s (a) Individuals shall be eligible for States except for the operation incident application for certification. importing engines into the United States and necessary to the display purpose. (B) If the documentation does not under the provisions of this section, (iii) A temporary display exemption contain all the information required by unless otherwise specified. will be granted for 12 months (one year) this part, or is not sufficiently (b) Notwithstanding other or for the duration of the display organized, EPA will notify the importer requirements of this subpart, an engine purpose, whichever is shorter. Two of any areas of inadequacy, and that the entitled to one of the temporary extensions of up to 12 months (one year) documentation will not receive further exemptions of this paragraph may be each are available upon approval by the consideration until the required conditionally admitted into the United Administrator. In no circumstances, information or organization is provided. States if prior written approval for the however, may the total period of (C) If EPA determines that the conditional admission is obtained from exemption exceed 36 months (three documentation does not clearly or the Administrator. Conditional years). sufficiently demonstrate that an engine admission is to be under U.S. Customs (c) Notwithstanding any other is eligible for importation, EPA will Service bond. The Administrator may requirement of this subpart, an engine notify the importer in writing. request that the U.S. Customs Service may be finally admitted into the United (D) If EPA determines that the require a specific bond amount to States under this paragraph if prior documentation clearly and sufficiently ensure compliance with the written approval for such final demonstrates that an engine is eligible requirements of the Act and this admission is obtained from the for importation, EPA will grant approval subpart. A written request for approval Administrator. Conditional admission of for importation and notify the importer from the Administrator is to contain the these engines under this subpart is not in writing. identification required in § 90.604(c) permitted for the purpose of obtaining (d) Foreign diplomatic and military and information that demonstrates that such written approval from the personnel may import a nonconforming the importer is entitled to the Administrator. A request for approval is engine without bond. At the time of exemption. Noncompliance with to contain the identification information admission, the importer shall submit to provisions of this section may result in required in § 90.604(c) and information the Administrator the written report the forfeiture of the total amount of the that demonstrates that the importer is required in § 90.604(a) and a statement bond or exportation of the engine. The entitled to the exemption or exclusion. from the U.S. Department of State following temporary exemptions are The following exemptions or exclusions confirming qualification for this permitted by this paragraph: are permitted by this paragraph: exemption. Foreign military personnel (1) Exemption for repairs or (1) National security exemption. An may, in lieu of a statement from the U.S. alterations. Upon written approval by engine may be imported under the Department of State, submit to the EPA, an owner of engines may national security exemption found at Administrator a copy of their orders for conditionally import under bond such § 90.908. duty in the United States. The engine engines solely for purpose of repair(s) or (2) Hardship exemption. The may not be sold in the United States and alteration(s). The engines may not be Administrator may exempt on a case-by- must be exported if the individual’s operated in the United States other than case basis an engine from federal diplomatic status is no longer for the sole purpose of repair or emission requirements to accommodate applicable, as determined by the alteration. They may not be sold or unforeseen cases of extreme hardship or Department of State, or the foreign leased in the United States and are to be extraordinary circumstances. military orders for duty in the United exported upon completion of the (3) Exemption for engines identical to States are no longer applicable, unless repair(s) or alteration(s). United States certified versions. subsequently brought into conformity (2) Testing exemption. A test engine (i) A person (including businesses) is with U.S. emission requirements. may be conditionally imported by a eligible for importing an engine into the (e) Competition exclusion. A person subject to the requirements of United States under the provisions of nonconforming engine may be § 90.905. A test engine may be operated this paragraph. An exemption will be conditionally admitted by any person in the United States provided that the granted if the engine: provided the importer demonstrates to operation is an integral part of the test. (A) is owned by the importer; the Administrator that the engine is This exemption is limited to a period (B) is not offered for importation for used to propel a nonroad vehicle used not exceeding one year from the date of the purpose of resale; and solely for competition and obtains prior importation unless a request is made by (C) is proven to be identical, in all written approval from the the appropriate importer concerning the material respects, to an engine certified Administrator. A nonconforming engine engine in accordance with § 90.905(f) by the original equipment manufacturer imported pursuant to this paragraph for a subsequent one-year period. (OEM) for sale in the United States or may not be operated in the United (3) Display exemptions. is proven to have been modified to be States except for that operation incident (i) An engine intended solely for identical, in all material respects, to an and necessary for the competition display may be conditionally imported engine certified by the OEM for sale in purpose, unless subsequently brought subject to the requirements of § 90.907. the United States according to complete into conformity with United States (ii) A display engine may be imported written instructions provided by the emission requirements in accordance by any person for purposes related to a OEM’s United States representative, or with § 90.612(c)(3). business or the public interest. Such his/her designee. (f) Exclusions/exemptions based on purposes do not include collections (ii) Proof of Conformity. (A) date of original manufacture. normally inaccessible or unavailable to Documentation submitted pursuant to (1) Notwithstanding any other the public on a daily basis, display of an this section for the purpose of proving requirements of this subpart, engines Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34651 originally manufactured prior to model engine to the U.S. Customs Service is corrected prior to the sale of the affected year 1997 are excluded from the liable for liquidated damages in the engines to ultimate purchasers. requirements of the Act in accordance amount of the bond required by (c) The manufacturer must submit with section 213 of the Act and may be applicable Customs laws and defect information reports to EPA’s imported by any person. regulations. Manufacturers Operations Division not (2) Notwithstanding other more than 15 working days after an requirements of this subpart, an engine § 90.614 Treatment of confidential emission-related defect is found to affect not subject to an exclusion under information. 25 engines in a given engine family § 90.612(f)(1) but greater than 20 The provisions for treatment of manufactured in the same certificate or original production (OP) years old is confidential information described in model year. Information required by entitled to an exemption from the § 90.4 apply to this subpart. paragraph (d) of this section that is requirements of the Act, provided that either not available within 15 working it has not been modified in those 20 OP Subpart HÐ[Reserved] days or is significantly revised must be years. At the time of admission, the submitted to EPA’s Manufacturers importer shall submit to the Subpart IÐEmission-related Defect Operations Division as it becomes Administrator the written report Reporting Requirements, Voluntary available. required in § 90.604(c). Emission Recall Program (d) Each defect report must contain (g) An application for exemption and § 90.801 Applicability. the following information in exclusion provided for in paragraphs substantially the format outlined below: (b), (c), and (e) of this section is to be The requirements of subpart I are (1) The manufacturer’s corporate mailed to: U.S. Environmental applicable to all nonroad engines and name. Protection Agency, Office of Mobile vehicles subject to the provisions of (2) A description of the defect. Sources, Manufacturers Operations subpart A of part 90. The requirement (3) A description of each class or Division (6405–J), 401 M Street, S.W., to report emission-related defects category of engines potentially affected Washington, D.C. 20460, Attention: affecting a given class or category of by the defect including make, model, Imports. engines will remain applicable for five model year, calendar year produced, years from the end of the calendar year and any other information required to § 90.613 Prohibited acts; penalties. in which such engines were identify the engines affected. (a) The importation of an engine manufactured. (4) For each class or category of engine described in response to which is not covered by a certificate of § 90.802 Definitions. conformity other than in accordance paragraph (d)(3) of this section, the with this subpart and the entry The definitions in subpart A of this following must also be provided: regulations of the U.S. Customs Service part apply to this subpart. All terms not (i) The number of engines known or is prohibited. Failure to comply with defined herein or in subpart A have the estimated to have the defect and an this subpart is a violation of section meaning given them in the Act. explanation of the means by which this 213(d) and section 203 of the Act. Emission-related defect means a number was determined. (b) Unless otherwise permitted by this defect in design, materials, or (ii) The address of the plant(s) at subpart, during a period of conditional workmanship in a device, system, or which the potentially defective engines admission, the importer of an engine assembly described in the approved were produced. (5) An evaluation of the emissions shall not: application for certification which (1) Register, license, or operate the affects any applicable parameter or impact of the defect and a description of any operational problems which a engine in the United States; or specification enumerated in 40 CFR part (2) Sell or offer the engine for sale. 85, Appendix VIII. defective engine might exhibit. (6) Available emission data which (c) An engine conditionally admitted Voluntary emission recall means a pursuant to § 90.612(b), (d), or (e) and relate to the defect. repair, adjustment, or modification (7) An indication of any anticipated not granted final admission within the program voluntarily initiated and manufacturer follow-up. period of time specified for such conducted by a manufacturer to remedy conditional admission in the written any emission-related defect for which § 90.804 Voluntary emissions recall. prior approval obtained from EPA, or notification of engine owners has been (a) When any manufacturer initiates a within such additional time as provided. voluntary emissions recall campaign designated by the Administrator, is involving 25 or more engines, the deemed to be unlawfully imported into § 90.803 Emission defect information report. manufacturer must submit a report the United States in violation of section describing the manufacturer’s voluntary 213(d) and section 203 of the Act, (a) A manufacturer must file a defect emissions recall plan as prescribed by unless the engine has been delivered to information report whenever, on the this section within 15 working days of the U.S. Customs Service for export or basis of data obtained subsequent to the the date owner notification was begun. other disposition under applicable effective date of these regulations: The report must contain the following: Customs laws and regulations. An (1) The manufacturer determines, in (1) A description of each class or engine not so delivered is subject to accordance with procedures established category of engines recalled including seizure by the U.S. Customs Service. by the manufacturer to identify either the number of engines to be recalled, the (d) An importer who violates section safety-related or performance defects, model year, the make, the model, and 213(d) and section 203 of the Act is that a specific emission-related defect such other information as may be subject to a civil penalty under section exists; and required to identify the engines recalled; 205 of the Act of not more than $25,000 (2) A specific emission-related defect (2) A description of the specific for each engine subject to the violation. exists in 25 or more engines of a given modifications, alterations, repairs, In addition to the penalty provided in engine family manufactured in the same corrections, adjustments, or other the Act, where applicable, under the certificate or model year. changes to be made to correct the exemption provisions of § 90.612(b), a (b) No report must be filed under this engines affected by the emission-related person or entity who fails to deliver the section for any emission-related defect defect; 34652 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations (3) A description of the method by (4) The number of engines determined owned and controlled by a nonroad which the manufacturer will notify to be ineligible for remedial action due engine manufacturer and used in a engine owners and, if applicable, the to a failure to properly maintain or use manner not involving lease or sale by method by which the manufacturer will such engines. itself or in a vehicle employed from year determine the names and addresses of to year in the ordinary course of engine owners; § 90.805 Reports, voluntary recall plan business for product development, filing, record retention. (4) A description of the proper production method assessment, and maintenance or use, if any, upon which (a) Send the defect report, voluntary market promotion purposes. the manufacturer conditions eligibility recall plan, and the voluntary recall Testing exemption means an for repair under the recall plan, an progress report to: Director, exemption granted under § 90.1004(b) explanation of the manufacturer’s Manufacturers Operations Division, for the purpose of research, reasons for imposing any such Environmental Protection Agency, 401 investigations, studies, demonstrations conditions, and a description of the M St. S.W., Washington, D.C. 20460. or training, but not including national proof to be required of an engine owner (b) Retain the information gathered by security. to demonstrate compliance with any the manufacturer to compile the reports such conditions; for not less than five years from the date § 90.903 Exclusions, application of section (5) A description of the procedure to of the manufacture of the engines. The 216(10) of the Act. be followed by engine owners to obtain manufacturer must make this (a) For the purpose of determining the correction of the nonconformity. This information available to duly authorized applicability of section 216(10) of the may include designation of the date on officials of the EPA upon request. Act, an internal combustion engine or after which the owner can have the (including the fuel system) that is not § 90.806 Responsibility under other legal used in a motor vehicle is deemed a nonconformity remedied, the time provisions preserved. reasonably necessary to perform the nonroad engine, if it meets the The filing of any report under the labor to remedy the defect, and the definition in subpart A of this part. For provisions of this subpart does not affect designation of facilities at which the the purpose of determining the a manufacturer’s responsibility to file defect can be remedied; applicability of section 216(11) of the reports or applications, obtain approval, (6) A description of the class of Act, a vehicle powered by a nonroad or give notice under any provision of persons other than dealers and engine is deemed a nonroad vehicle, if law. authorized warranty agents of the it meets the definition in subpart A of manufacturer who will remedy the § 90.807 Disclaimer of production warranty this part. Nonroad engines and nonroad defect; applicability. vehicles do not include features (7) When applicable, three copies of (a) The act of filing an Emission ordinarily associated with military any letters of notification to be sent Defect Information Report is combat such as armor and/or weaponry. engine owners; inconclusive as to the existence of a (b) EPA will maintain a list of (8) A description of the system by defect subject to the warranty provided nonroad engines that have been which the manufacturer will assure that by subpart L of this part. determined to be excluded because they an adequate supply of parts is available (b) A manufacturer may include on are used solely for competition or for to perform the repair under the plan, each page of its Emission Defect combat. This list will be available to the and that the supply remains both Information Report a disclaimer stating public and may be obtained by writing adequate and responsive to owner that the filing of a Defect Information to the following address: Chief, demand; Report pursuant to these regulations is Manufacturers Programs Branch, (9) Three copies of all necessary not conclusive as to the applicability of Manufacturers Operations Division instructions to be sent to those persons the warranty provided by subpart L of (6405–J), Environmental Protection who are to perform the repair under the this part. Agency, 401 M Street, S.W., recall plan; Washington, D.C. 20460. (10) A description of the impact of the Subpart JÐExclusion and Exemption (c) Upon written request, EPA will proposed changes on fuel consumption, of Nonroad Engines from Regulations make written determinations as to performance, and safety of each class or whether certain engines are or are not category of engines to be recalled; § 90.901 Applicability. nonroad engines. Engines that are (11) A sample of any label to be The requirements of subpart J are determined not to be nonroad engines applied to engines which participated in applicable to all nonroad engines and are excluded from regulations under the voluntary recall campaign. vehicles subject to the provisions of this part. (b) The manufacturer must submit at subpart A of part 90. least one report on the progress of the § 90.904 Who may request an exemption. recall campaign. Such report must be § 90.902 Definitions. (a) Any person may request a testing submitted no later than 18 months from The definitions in subpart A of this exemption under § 90.905. the date notification was begun and part apply to this subpart. The following (b) Any nonroad engine manufacturer include the following information: definitions also apply to this subpart: may request a national security (1) The methods used to notify both Exemption means exemption from the exemption under § 90.908. engine owners, dealers and other prohibitions of § 90.1003. (c) For nonroad engine manufacturers, individuals involved in the recall Export exemption means an nonroad engines manufactured for campaign; exemption granted under § 90.1004(b) export purposes are exempt without (2) The number of engines known or for the purpose of exporting new application, subject to the provisions of estimated to be affected by the emission- nonroad engines. § 90.909. related defect and an explanation of the National security exemption means an (d) For eligible manufacturers, as means by which this number was exemption granted under § 90.1004(b) determined by § 90.906, manufacturer- determined; for the purpose of national security. owned nonroad engines are exempt (3) The number of engines actually Manufacturer-owned nonroad engine without application, subject to the receiving repair under the plan; and means an uncertified nonroad engine provisions of § 90.906. Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34653 (e) For any person, display nonroad (4) The ownership arrangement with (B) Full corporate name and engines are exempt without application, regard to the engines involved in the trademark of manufacturer; subject to the provisions of § 90.907. test; (C) Engine displacement, engine (5) The intended final disposition of family identification, and model year of § 90.905 Testing exemption. the engines; engine; or person or office to be (a) Any person requesting a testing (6) The manner in which the engines contacted for further information about exemption must demonstrate the used in the test will be identified, and the engine; following: that identification recorded, and made (D) The statement ‘‘This nonroad (1) That the proposed test program available; and engine is exempt from the prohibitions has a purpose which constitutes an (7) The means or procedure whereby of 40 CFR 90.1003.’’ appropriate basis for an exemption in test results will be recorded. (4) No provision of paragraph (a)(3) of accordance with § 90.1004(b), and in (f) A manufacturer of new nonroad this section prevents a manufacturer accordance with subsection (b) of this engines may request a testing exemption from including any other information it section; to cover nonroad engines intended for desires on the label. (2) That the proposed test program use in test programs planned or necessitates the granting of an anticipated over the course of a § 90.907 Display exemption. exemption, in accordance with subsequent one-year period. Unless Where an uncertified nonroad engine subsection (c) of this section; otherwise required by the Director, is a display engine to be used solely for (3) That the proposed test program Manufacturers Operations Division, a display purposes, will only be operated exhibits reasonableness in scope, in manufacturer requesting such an incident and necessary to the display accordance with subsection (d) of this exemption need only furnish the purpose, and will not be sold unless an section; and information required by paragraphs applicable certificate of conformity has (4) That the proposed test program (a)(1) and (d)(2) of this section along been received or the engine has been exhibits a degree of control consonant with a description of the recordkeeping finally admitted pursuant to subpart G with the purpose of the program and and control procedures that will be of this part, no request for exemption of EPA’s monitoring requirements, in employed to assure that the engines are the engine is necessary. accordance with subsection (e) of this used for purposes consistent with § 90.908 National security exemption. section. § 90.1004(b). A manufacturer requesting a national (b) With respect to the purpose of the § 90.906 Manufacturer-owned exemption security exemption must state the proposed test program, an appropriate and precertification exemption. purpose for which the exemption is purpose would be research, (a) Except as provided in paragraph required and the request must be investigations, studies, demonstrations, (b) of this section, any manufacturer- endorsed by an agency of the federal or training, but not national security. A owned nonroad engine, as defined by government charged with responsibility concise statement of purpose is a § 90.902, is exempt from § 90.1003, for national defense. required item of information. without application, if the manufacturer (c) With respect to the necessity that complies with the following terms and § 90.909 Export exemptions. an exemption be granted, necessity conditions: (a) A new nonroad engine intended arises from an inability to achieve the (1) The manufacturer must establish, solely for export, and so labeled or stated purpose in a practicable manner maintain, and retain the following tagged on the outside of the container without performing or causing to be adequately organized and indexed and on the engine itself, is subject to the performed one or more of the prohibited information on each exempted engine: provisions of § 90.1003, unless the acts under § 90.1003. In appropriate (i) Engine identification number; importing country has new nonroad circumstances, time constraints may be (ii) Use of the engine on exempt engine emission standards which differ a sufficient basis for necessity, but the status; and from EPA standards. cost of certification alone, in the (iii) Final disposition of any engine (b) For the purpose of paragraph (a) of absence of extraordinary circumstances, removed from exempt status. this section, a country having no is not a basis for necessity. (2) The manufacturer must provide standards, whatsoever, is deemed to be (d) With respect to reasonableness, a right of entry and access to these records a country having emission standards test program must exhibit a duration of to EPA authorized representatives as which differ from EPA standards. reasonable length and affect a required by § 90.506. (c) EPA will maintain a list of foreign reasonable number of engines. In this (3) Unless the requirement is waived countries that have in force nonroad regard, required items of information or an alternative procedure is approved emission standards identical to U.S. include: by the Director, Manufacturers EPA standards and have so notified (1) An estimate of the program’s Operations Division, the manufacturer EPA. This list may be obtained by duration; and must permanently affix a label to each writing to the following address: Chief, (2) The maximum number of nonroad nonroad engine on exempt status. This Manufacturers Programs Branch, engines involved. label should: Manufacturers Operations Division (e) With respect to control, the test (i) Be affixed in a readily visible (6405–J), Environmental Protection program must incorporate procedures portion of the engine; Agency, 401 M Street, S.W., consistent with the purpose of the test (ii) Be attached in such a manner that Washington, D.C. 20460. New nonroad and be capable of affording EPA it cannot be removed without engines exported to such countries must monitoring capability. As a minimum, destruction or defacement; comply with U.S. EPA certification required items of information include: (iii) State in the English language and regulations. (1) The technical nature of the test; in block letters and numerals of a color (d) It is a condition of any exemption (2) The site of the test; that contrasts with the background of for the purpose of export under (3) The duration and accumulated the label, the following information: § 90.1004(b) that such exemption be engine operation associated with the (A) The label heading ‘‘Emission void ab initio with respect to a new test; Control Information;’’ nonroad engine intended solely for 34654 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations export if such nonroad engine is sold, or Subpart KÐProhibited Acts and is to bypass, defeat, or render offered for sale, to an ultimate purchaser General Enforcement Provisions inoperative a device or element of in the United States for purposes other design installed on or in a nonroad than export. § 90.1001 Applicability. engine in compliance with regulations The requirements of subpart K are issued under this part, and where the § 90.910 Granting of exemptions. applicable to all nonroad engines and person knows or should know that the vehicles subject to the provisions of (a) If upon completion of the review part or component is being offered for subpart A of part 90. of an exemption request made pursuant sale or installed for this use or put to such use. to § 90.905 or § 90.908, EPA determines § 90.1002 Definitions. (4) For a manufacturer of a new it is appropriate to grant such an The definitions in subpart A of this nonroad engine subject to standards exemption, a memorandum of part apply to this subpart. All terms not prescribed under this part: exemption is to be prepared and defined herein or in subpart A have the (i) To sell, offer for sale, or introduce submitted to the person requesting the meaning given them in the Act. or deliver into commerce, a nonroad exemption. The memorandum is to set § 90.1003 Prohibited acts. engine unless the manufacturer has forth the basis for the exemption, its complied with the requirements of scope, and such terms and conditions as (a) The following acts and the causing § 90.1102. are deemed necessary. Such terms and thereof are prohibited: (ii) To sell, offer for sale, or introduce conditions generally include, but are not (1)(i) In the case of a manufacturer of or deliver into commerce, a nonroad limited to, agreements by the applicant new nonroad engines or vehicles for engine unless a label or tag is affixed to distribution in commerce, the sale, the to conduct the exempt activity in the the engine in accordance with offering for sale, or the introduction, or manner described to EPA, create and regulations under this part. delivery for introduction, into maintain adequate records accessible to (iii) To provide directly or indirectly commerce, of any new nonroad engine EPA at reasonable times, employ labels in any communication to the ultimate manufactured after the applicable purchaser or a subsequent purchaser for the exempt engines setting forth the effective date under this part unless nature of the exemption, take that the coverage of a warranty under such engine is covered by a certificate the Act is conditioned upon use of a appropriate measures to assure that the of conformity issued (and in effect) terms of the exemption are met, and part, component, or system under regulations found in this part. manufactured by the manufacturer or a advise EPA of the termination of the (ii) In the case of any person, except person acting for the manufacturer or activity and the ultimate disposition of as provided by regulation of the under its control, or conditioned upon the engines. Administrator, the importation into the service performed by such persons, (b) Any exemption granted pursuant United States of any new nonroad except as provided in subpart L of this to paragraph (a) of this section is engine manufactured after the part. deemed to cover any subject engine only applicable effective date under this part (iv) To fail or refuse to comply with to the extent that the specified terms unless such engine is covered by a the terms and conditions of the and conditions are complied with. A certificate of conformity issued (and in warranty under subpart L of this part. breach of any term or condition causes effect) under regulations found in this (5) For a manufacturer of new part. the exemption to be void ab initio with nonroad vehicles to distribute in (2)(i) For a person to fail or refuse to respect to any engine. Consequently, the commerce, sell, offer for sale, or permit access to or copying of records causing or the performing of an act introduce into commerce, nonroad or to fail to make reports or provide vehicles which contain an engine not prohibited under § 90.1003(a) (1) or (3), information required under § 90.1004. other than in strict conformity with all covered by a certificate of conformity (ii) For a person to fail or refuse to (except as specified in paragraph (b)(4) terms and conditions of this exemption, permit entry, testing or inspection of this section) or which contain a renders the person to whom the authorized under §§ 90.126, 90.506 or handheld engine in a nonhandheld exemption is granted, and any other 90.1004. vehicle. person to whom the provisions of (iii) For a person to fail or refuse to (6) For a person to circumvent or § 90.1003 are applicable, liable to suit perform tests, or to have tests performed attempt to circumvent the residence under sections 204 and 205 of the Act. as required under §§ 90.119, 90.504 or time requirements of Paragraph (a) 90.1004. (2)(iii) of this Section of the nonroad § 90.911 Submission of exemption (iv) For a person to fail to establish or requests. engine definition in § 90.3. maintain records as required under (b) For the purposes of enforcement of Requests for exemption or further § 90.1004. this part, the following apply: information concerning exemptions (3)(i) For a person to remove or render (1) Nothing in paragraph (a) of this and/or the exemption request review inoperative a device or element of section is to be construed to require the procedure should be addressed to: design installed on or in a nonroad use of manufacturer parts in Chief, Manufacturers Programs Branch, engine in compliance with regulations maintaining or repairing a nonroad Manufacturers Operations Division under this part prior to its sale and engine. (6405–J), Environmental Protection delivery to the ultimate purchaser, or for (2) Actions for the purpose of repair Agency, 401 M Street, SW., Washington, a person knowingly to remove or render or replacement of a device or element of design or any other item are not DC 20460. inoperative such a device or element of design after the sale and delivery to the considered prohibited acts under § 90.912 Treatment of confidential ultimate purchaser; or § 90.1003(a) if the actions are a information. (ii) For a person to manufacture, sell necessary and temporary procedure, the or offer to sell, or install, a part or device or element is replaced upon The provisions for treatment of component intended for use with, or as completion of the procedure, and the confidential information described in part of, a nonroad engine, where a action results in the proper functioning § 90.4 apply to this subpart. principal effect of the part or component of the device or element of design. Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34655 (3) Actions for the purpose of a pursuant to paragraph (a)(1) of this § 90.1005 Injunction proceedings for conversion of a nonroad engine for use section; and prohibited acts. of a clean alternative fuel (as defined in (ii) To inspect records, files, papers, (a) The district courts of the United Title II of the Act) are not considered processes, controls, and facilities used States have jurisdiction to restrain prohibited acts under § 90.1003(a) if: in performing an activity required by violations of § 90.1003. (i) The vehicle complies with the paragraph (a)(1) of this section, by the (b) Actions to restrain such violations applicable standard when operating on manufacturer or by a person whom the must be brought by and in the name of the alternative fuel, and the device or manufacturer engaged to perform the the United States. In an action, element is replaced upon completion of activity. subpoenas for witnesses who are the conversion procedure, and (b) Exemption provision. The required to attend a district court in any (ii) In the case of engines converted to district may run into any other district. dual fuel or flexible use, the action Administrator may exempt a new results in proper functioning of the nonroad engine from § 90.1003 upon § 90.1006 Penalties. such terms and conditions as the device or element when the nonroad (a) Violations. A violation of the Administrator may find necessary for engine operates on conventional fuel. requirements of this subpart is a the purpose of export, research, (4) Certified nonroad engines shall be violation of the applicable provisions of investigations, studies, demonstrations, used in all vehicles that are self- the Act and is subject to the penalty or training, or for reasons of national propelled, portable, transportable, or are provisions thereunder. security. intended to be propelled while (1) A person who violates performing their function unless the (c) Importation provision. (1) A new § 90.1003(a)(1), (a)(4), or (a)(5), or a manufacturer of the vehicle can prove nonroad engine or vehicle offered for manufacturer or dealer who violates that the vehicle will be used in a importation or imported by a person in § 90.1003(a)(3)(i), is subject to a civil manner consistent with paragraph (2) of violation of § 90.1003 is to be refused penalty of not more than $25,000 for the definition of nonroad engine in admission into the United States, but each violation. § 90.3 of this part. Nonroad vehicle the Secretary of the Treasury and the (2) A person other than a manufacturers may continue to use Administrator may, by joint regulation, manufacturer or dealer who violates noncertified nonroad engines built prior provide for deferring a final § 90.1003(a)(3)(i) or any person who to the effective date until noncertified determination as to admission and violates § 90.1003(a)(3)(ii) is subject to a engine inventories are depleted; authorizing the delivery of such a civil penalty of not more than $2,500 for however, stockpiling (i.e., build up of an nonroad engine offered for import to the each violation. inventory of engines outside of normal owner or consignee thereof upon such (3) A violation with respect to business practices) of noncertified terms and conditions (including the § 90.1003(a)(1), (a)(3)(i), (a)(4), or (a)(5) nonroad engines will be considered a furnishing of a bond) as may appear to constitutes a separate offense with violation of this section. them appropriate to insure that the respect to each nonroad engine. nonroad engine will be brought into (4) A violation with respect to § 90.1004 General enforcement provisions. conformity with the standards, § 90.1003(a)(3)(ii) constitutes a separate (a) Information collection provisions. requirements, and limitations applicable offense with respect to each part or (1) Every manufacturer of new nonroad to it under this part. engines and other persons subject to the component. Each day of a violation with (2) If a nonroad engine is finally respect to § 90.1003(a)(6) constitutes a requirements of this part must establish refused admission under this paragraph, and maintain records, perform tests separate offense. the Secretary of the Treasury shall cause (5) A person who violates where such testing is not otherwise disposition thereof in accordance with reasonably available under this part, § 90.1003(a)(2) or (a)(6) is subject to a the customs laws unless it is exported, civil penalty of not more than $25,000 make reports and provide information under regulations prescribed by the the Administrator may reasonably per day of violation. Secretary, within 90 days of the date of (b) Civil actions. The Administrator require to determine whether the notice of the refusal or additional time manufacturer or other person has acted may commence a civil action to assess as may be permitted pursuant to the and recover any civil penalty under or is acting in compliance with this part regulations. or to otherwise carry out the provisions paragraph (a) of this section. of this part, and must, upon request of (3) Disposition in accordance with the (1) An action under this paragraph an officer or employee duly designated customs laws may not be made in such may be brought in the district court of by the Administrator, permit the officer manner as may result, directly or the United States for the district in or employee at reasonable times to have indirectly, in the sale, to the ultimate which the violation is alleged to have access to and copy such records. The purchaser, of a new nonroad engine that occurred, the defendant resides, or the manufacturer shall comply in all fails to comply with applicable Administrator’s principal place of respects with the requirements of standards of the Administrator under business is located, and in which the subpart I of this part. this part. court has jurisdiction to assess a civil (2) For purposes of enforcement of (d) Export provision. A new nonroad penalty. this part, an officer or employee duly engine intended solely for export, and (2) In determining the amount of a designated by the Administrator, upon so labeled or tagged on the outside of civil penalty to be assessed under this presenting appropriate credentials, is the container and on the engine itself, paragraph, the court is to take into authorized: shall be subject to the provisions of account the gravity of the violation, the (i) To enter, at reasonable times, any § 90.1003, except that if the country that economic benefit or savings (if any) establishment of the manufacturer, or of is to receive the engine has emission resulting from the violation, the size of any person whom the manufacturer standards that differ from the standards the violator’s business, the violator’s engaged to perform any activity required prescribed under subpart B of this part, history of compliance with Title II of the under paragraph (a)(1) of this section, then the engine must comply with the Act, action taken to remedy the for the purposes of inspecting or standards of the country that is to violation, the effect of the penalty on the observing any activity conducted receive the engine. violator’s ability to continue in 34656 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations business, and such other matters as after its issuance unless a petition for equal to 10 percent of the aggregate justice may require. judicial review is filed under paragraph amount of that person’s penalties and (3) In any such action, subpoenas for (c)(5) of this section. nonpayment penalties which are unpaid witnesses who are required to attend a (5) Judicial review. (i) A person as of the beginning of such quarter. district court in any district may run against whom a civil penalty is assessed into any other district. in accordance with this part may seek Subpart LÐEmission Warranty and (c) Administrative assessment of review of the assessment in the United Maintenance Instructions certain penalties. (1) Administrative States District Court for the District of § 90.1101 Applicability. penalty authority. In lieu of Columbia or for the district in which the commencing a civil action under violation is alleged to have occurred, in The requirements of subpart L are paragraph (b) of this section, the which such person resides, or where the applicable to all nonroad engines and Administrator shall assess any civil person’s principle place of business is vehicles subject to the provisions of penalty prescribed in paragraph (a) of located, within the 30-day period subpart A of part 90. this section, except that the maximum beginning on the date a civil penalty § 90.1102 Definitions. amount of penalty sought against each order is issued. The person must The definitions of subpart A of this violator in a penalty assessment simultaneously send a copy of the filing part apply to this subpart. proceeding can not exceed $200,000, by certified mail to the Administrator unless the Administrator and the and the Attorney General. § 90.1103 Emission warranty, warranty Attorney General jointly determine that (ii) The Administrator must file in the period. a matter involving a larger penalty court within 30 days a certified copy, or (a) Warranties imposed by this amount is appropriate for administrative certified index, as appropriate, of the subpart shall be for the first two years penalty assessment. Any such record on which the order was issued. of engine use from the date of sale to the determination by the Administrator and The court is not to set aside or remand ultimate purchaser. the Attorney General is not subject to any order issued in accordance with the (b) The manufacturer of each new judicial review. Assessment of a civil requirements of this paragraph unless nonroad engine must warrant to the penalty is made by an order made on substantial evidence does not exist in ultimate purchaser and each subsequent the record after opportunity for a the record, taken as a whole, to support purchaser that the engine is designed, hearing held in accordance with the the finding of a violation or unless the built, and equipped so as to conform at procedures found at part 22 of this Administrator’s assessment of the the time of sale with applicable chapter. The Administrator may penalty constitutes an abuse of regulations under section 213 of the Act, compromise, or remit, with or without discretion, and the court is not to and the engine is free from defects in conditions, any administrative penalty impose additional civil penalties unless materials and workmanship which which may be imposed under this the Administrator’s assessment of the cause such engine to fail to conform section. penalty constitutes an abuse of with applicable regulations for its (2) Determining amount. In discretion. In any proceedings, the warranty period. determining the amount of any civil United States may seek to recover civil (c) In the case of a nonroad engine penalty assessed under this subsection, penalties assessed under this section. part, the manufacturer or rebuilder of the Administrator is to take into account (6) Collection. (i) If any person fails to the part may certify according to the gravity of the violation, the pay an assessment of a civil penalty § 85.2112 of this chapter that use of the economic benefit or savings (if any) imposed by the Administrator as part will not result in a failure of the resulting from the violation, the size of provided in this part after the order engine to comply with emission the violator’s business, the violator’s making the assessment has become final standards promulgated in this part. history of compliance with Title II of the or after a court in an action brought (d) For the purposes of this section, Act, action taken to remedy the under paragraph (c)(5) of this section the owner of any nonroad engine violation, the effect of the penalty on the has entered a final judgment in favor of warranted under this part is responsible violator’s ability to continue in the Administrator, the Administrator is for the proper maintenance of the business, and such other matters as to request that the Attorney General engine as stated in the manufacturer’s justice may require. bring a civil action in an appropriate written instructions. Proper (3) Effect of administrator’s action. (i) district court to recover the amount maintenance generally includes Action by the Administrator under this assessed (plus interest at rates replacement and service, at the owner’s paragraph does not affect or limit the established pursuant to section expense at a service establishment or Administrator’s authority to enforce any 6621(a)(2) of the Internal Revenue Code facility of the owner’s choosing, such provisions of this part; except that any of 1986 from the date of the final order items as spark plugs, points, violation with respect to which the or the date of final judgment, as the case condensers, and any other part, item, or Administrator has commenced and is may be). In such an action, the validity, device related to emission control (but diligently prosecuting an action under amount, and appropriateness of the not designed for emission control) this part, or for which the Administrator penalty are not subject to review. under the terms of the last sentence of has issued a final order not subject to (ii) A person who fails to pay on a section 207(a)(3) of the Act, unless such further judicial review and for which timely basis the amount of an part, item, or device is covered by any the violator has paid a penalty assessment of a civil penalty as warranty not mandated by this Act. assessment under this part may not be described in paragraph (c)(6)(i) of this the subject of a civil penalty action section is required to pay, in addition to § 90.1104 Furnishing of maintenance under paragraph (b) of this section. that amount and interest, the United instructions to ultimate purchaser. (ii) No action by the Administrator States’ enforcement expenses, including (a) The manufacturer must furnish or under this part affects a person’s attorney’s fees and costs for collection cause to be furnished to the ultimate obligation to comply with a section of proceedings, and a quarterly purchaser of each new nonroad engine this part. nonpayment penalty for each quarter written instructions for the maintenance (4) Finality of order. An order issued during which the failure to pay persists. needed to assure proper functioning of under this part becomes final 30 days The nonpayment penalty is an amount the emission control system. Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34657 (b) The manufacturer must provide in charge under the terms of the purchase (d) The prohibition of paragraph (c) of boldface type on the first page of the agreement) which is identified by brand, this section may be waived by the written maintenance instructions notice trade, or corporate name. Such Administrator if: that maintenance, replacement, or repair instructions also will not directly or (1) The manufacturer satisfies the of the emission control devices and indirectly distinguish between service Administrator that the engine will systems may be performed by any performed by the franchised dealers of function properly only if the component nonroad engine repair establishment or such manufacturer or any other service or service so identified is used in individual. establishments with which such (c) The instructions under paragraph connection with such engine; and manufacturer has a commercial (b) of this section will not include any (2) The Administrator finds that such relationship and service performed by condition on the ultimate purchaser’s a waiver is in the public interest. using, in connection with such engine, independent nonroad engine repair facilities with which such manufacturer [FR Doc. 95–14221 Filed 6–30–95; 8:45 am] any component or service (other than a BILLING CODE 6560±50±P component or service provided without has no commercial relationship. federal register July 3,1995 Monday Collection toOMB;Notice Submission ofProposedInformation Office ofAdministration Voucher Programs;FinalRule Conforming Section8Certificateand 24 CFRPart882etal. Public andIndianHousing Office oftheAssistantSecretaryfor Development Housing andUrban Department of Part III 34659 34660 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations DEPARTMENT OF HOUSING AND Discussion agencies already participating in the program should be exempt from this URBAN DEVELOPMENT History and Scope of Rule requirement. Office of the Assistant Secretary for On February 24, 1993 HUD published The new rule does not add a new Public and Indian Housing a comprehensive proposed rule to requirement. Since the beginning of the combine and conform the rules for tenant-based programs, agencies have 24 CFR Parts 882, 887, 982, and 983 tenant-based Section 8 rental assistance had to provide evidence of the HA under the certificate and voucher authority and of the area where the HA [Docket No. R±95±1628; FR±2294±F±02] programs. (58 FR 11292) The proposed was authorized to operate the programs RIN 2577±AB14 rule would also have amended under State and local law. A correct requirements for project-based determination of the HA jurisdiction has Section 8 Certificate and Voucher assistance under the Section 8 important consequences for day to day Programs Conforming Rule certificate program. administration of the program by the HUD received approximately 400 HA. Families may move anywhere in AGENCY: Office of the Assistant comments on the proposed rule that the HA jurisdiction, and outside the HA Secretary for Public and Indian generally approve the broad purpose of jurisdiction, under portability Housing, HUD. the rule. Comments object to particular procedures. The new rule does not ACTION: Final rule. features of the rule. Many of the automatically require any new objections pertain to provisions submission by the HA if the HA legal SUMMARY: This rule combines and implementing statutory requirements, opinion is already on file with HUD, conforms rules for tenant-based rental particularly the requirement that an and gives HUD the necessary evidence assistance under the rental certificate owner notify HUD when terminating of the HA jurisdiction and operating and the rental voucher programs. This tenancy for a business or economic area. Of course, the HA must furnish rule also amends requirements for reason, and the prohibition of new information if there is a change in project-based assistance under the rental discrimination by multifamily owners State law or legal authority, such as a certificate program. against certificate or voucher holders. court decision determining the HA EFFECTIVE DATE: Information collections On July 18, 1994 HUD published the jurisdiction. in this rule must be reviewed by the first portion of the comprehensive rule Under the old program regulations Office of Management and Budget under for the tenant-based program: The final and handbook, the HA was required to the Paperwork Reduction Act of 1980. rule on unified admission procedures. show the governmental jurisdiction in Upon OMB approval of the information (59 FR 36662) At that time, part 982, which the HA was ‘‘not legally barred’’ collections, HUD will publish a notice subparts A and E were added. Today’s by State law from entering and in the Federal Register announcing the final rule covers other aspects of the administering assistance contracts for effective date of the rule and adding the comprehensive rule for the tenant-based program participants. This formulation OMB approved control numbers. It is programs, adding 8 subparts and emphasized the freedom of the anticipated that this OMB approval reserving 3 other subparts. The rule also participant to lease a unit anywhere the process will be concluded, and that the contains the regulations for the project- HA was not legally prohibited from rule will be made effective, by 60 days based certificate program, included in administering assistance. Since the after the date of publication of this rule. part 983. beginning of portability, a participant FOR FURTHER INFORMATION CONTACT: Today’s final rule does not include family could move outside the Madeline Hastings, Director, Rental requirements concerning: jurisdiction of the original HA (for non- Assistance Division, Room 4204. —Calculation of the rent and housing resident applicants, portability applies Telephone numbers (202) 708–2841 assistance payment for the tenant or after the first year in the program). In (voice); (202) 708–0850 (TDD). (These project-based programs. the final rule, the term ‘‘jurisdiction’’ is are not toll-free numbers.) —‘‘Special housing types’’: program defined as the area where the HA is variants to meet special housing authorized to administer the program SUPPLEMENTARY INFORMATION: needs, such as congregate housing, under State or local law. (§ 982.4) Paperwork Reduction Act shared housing, single room B. HA Local Policies The information collection occupancy housing and independent The HA must adopt a plan that states requirements contained in this rule have group residences. HA local policies for running the tenant- been submitted to the Office of HUD will issue a final rule on these based program. Under the proposed Management and Budget (OMB) for subjects. Until the final rule is issued, rule, the HA adopted local policies review under the Paperwork Reduction these subjects will be governed by governing all major aspects of HA Act of 1980 (44 U.S.C. 3501–3520). See requirements in the existing program program administration. In accordance the Notice of Information Collections rules. The final rule may also include with past practice, the HA would have published elsewhere in today’s issue of further revisions of program admission been required to adopt both an the Federal Register, inviting public procedures, or subjects in today’s final ‘‘administrative plan’’ for general comment on the estimated burden on rule. program administration, and a separate the public associated with the rule. (Of I. Requirements and Plans for HA ‘‘equal opportunity plan’’ for course, as part of this process, it is Administration of Program compliance with fair housing possible that there will be changes made requirements. The proposed rule to the information collections.) No A. Demonstrating HA Authority and provided that the HA administrative person may be subjected to a penalty for Jurisdiction plan and equal opportunity plan be failure to comply with these information The rule provides that an HA must approved in advance by HUD. collection requirements until they have furnish HUD a legal opinion on the Comments largely commend HUD for been approved and assigned an OMB HA’s jurisdiction and authority to allowing HAs broad discretion to adopt control number, to be announced by administer the tenant-based programs. local policies for operation of the separate notice in the Federal Register. (§ 982.51) A comment suggests that tenant-based program. HUD should Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34661 direct what subjects must be covered by been a comprehensive statement of HA revise its policy more quickly and HA administrative policies, while local policies for administration of the easily. The HA does not need to wait for leaving HAs discretion on how to program. Under the final rule, the HUD approval, or negotiate changes in regulate the prescribed subjects. mandatory coverage of the HA policy to satisfy the HUD reviewer, Comments particularly welcome new administrative plan is only focussed on so there is no need to consider or regulatory provisions confirming that an equal opportunity requirements and establish a deadline for HUD review of HA may adopt local policies concerning programmatic policies for the specific the HA administrative plan, as family absence from the assisted unit, areas listed in the rule. (§ 982.54(d)) suggested by some comments. program participation after break up of While HA policy and practice in other Comments ask if changes in the the assisted family, maximum security areas (such as financial management) administrative plan must be approved deposit, and enforcement of participant have a vital role in operation of the by the HA board. The final rule provides obligations. (Provisions on these tenant-based program, HUD review and that the administrative plan and any subjects are discussed later in the oversight will focus on the results of HA revisions of the plan must be formally preamble.) policies, not on whether the HA has adopted by the HA board or other However, HA comments express adopted a written policy to achieve authorized officials. (§ 982.54(a)) concern with the cost and these results (or has obtained HUD In certain key areas, HUD rules will administrative burden of adopting and approval for such a policy). continue to mandate advance HUD revising HA policies. Comments ask Besides listing specific subjects that approval of HA policies. Residency clarification of a proposed provision had to be included in the administrative preferences for selection of applicants stating that the HA must revise the plan, the proposed rule also would have must be approved by HUD. (§ 982.208(b) administrative plan or equal required the HA to include unspecified (59 FR 36687, July 18, 1994)) As opportunity plan to change the policies ‘‘other local HA policies’’ for required by law, the HA family self- covered by the plan. Comments administration of the program. In the sufficiency (FSS) action plan must also recommend combining the equal final rule, this residual category is be approved by HUD. (42 U.S.C. opportunity and administrative plans. deleted. The HA is only required to 1437u(g)(1)) (If FSS policies are Comments discuss the difficulty and cover the specific subjects listed in the contained in an HA’s administrative delay in securing HUD approval for new rule. In defining this mandatory plan, the policies must be moved to the HA policies. Some comments coverage, HUD does not express any HA’s FSS action plan.) recommend a regulatory time limit for view that other matters are not Comments state that the HA HUD review of the HA policy. important, or that the HA should not administrative plan should include Comments suggest that the HA should adopt formal written policies for the HUD requirements, not just HA be required to give notice of proposed guidance of program officials. However, discretionary policies. HA comments changes in HA policies to participants the decision whether to adopt such ask if an HA must amend the and interested organizations or additional policies is left to the local administrative plan whenever HUD advocates, and that the HA should be judgment and managerial experience of revises regulations or other required to give copies of the HA the individual HA. requirements. The final rule provides policies to each applicant or participant. Before this rule, the HA was required that an administrative plan must state On reconsideration, HUD has made a to submit the administrative plan for HA policy ‘‘on matters for which the HA number of changes in the provisions on HUD approval. In the final rule, this has discretion to establish local HA local policies: requirement is deleted. For most policies.’’ (§ 982.54(a)) —Merging the equal opportunity and purposes, the HA may adopt and revise Since the final rule does not require administrative plans into a single HA policies without asking for HUD that the HA revise the administrative plan; approval. However, the policies in the plan to merely echo HUD regulations or —Limiting the subjects that must be administrative plan must comply with other requirements, the HA is only contained in the plan; and HUD requirements. The HA must give required to revise the administrative —Eliminating the blanket requirement HUD a copy of the administrative plan. plan to reflect the exercise of policy for HUD advance approval of HA (§ 982.54(b)) choices by the individual HA. By policies in the administrative plan. By eliminating the HUD approval definition, HUD ‘‘requirements’’ are In the final rule, HUD has decided to requirement, the new rule substantially binding on the HA in any case. eliminate the requirement for separate increases the HA’s day-to-day autonomy For practical administration of the administrative and equal opportunity in administration of the program, and program, HAs may elect to develop plans. An HA’s discretionary policies minimizes HUD interference in HA procedures or guidance for HA staff that will be contained in the administrative policy decisions. At the same time, HUD reflect both HUD requirements and the plan. This change eliminates the retains the authority for necessary HA’s policy decisions in accordance artificial distinction between equal oversight and audit of HA operations. If with HUD requirements. As noted opportunity issues and ordinary HA policies violate HUD requirements, above, the rule no longer requires that administrative policies. The final rule the HA must revise the administrative the administrative plan must be removes the requirement for separate plan to comply with HUD requirements. approved in advance by HUD, so it is overlapping or duplicative coverage (§ 982.54(b)) Instead of using HUD less critical to distinguish between HA under the prior equal opportunity and administrative resources for routine policy mandated by HUD, as opposed to administrative plans, such as policies review and approval of policies in the HA policy adopted in accordance with for selection of program participants. HA administrative plans, HUD can local HA discretion. All aspects of program administration concentrate available HUD staff on The final rule drops a proposed must be consistent with the HA’s discovery and correction of the most provision that would have required an obligation to operate the program in serious HA problems in managing the HA to adopt policies to encourage accordance with civil rights program. participation by eligible families. Since requirements. Since the rule generally lifts the many eligible families are eager to Under the terms of the proposed rule, requirement for prior HUD approval of participate in the program, and most the administrative plan would have HA administrative policies, an HA can HAs have long waiting lists, HAs have 34662 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations little need to stimulate family interest II. Funding and HA Application for weight to efforts to further fair housing, and demand for participation. Funding and should penalize an applicant HA that has a residency preference or other A. Competition for Funds; Criteria for C. Equal Opportunity Requirements policies that have an ‘‘exclusionary’’ Selection effect. Comments state that the criteria The rule lists federal civil rights law Some program funding is distributed and regulations that apply to the tenant- for selection should give funding by HUD to HAs through a competitive preference to HAs that do not use a based programs. (§ 982.53) process. So HAs can compete for such residency preference for selection of Requirements under Section 3 of the funding, the Department publishes a applicants, and that have an open Housing and Community Development public notice in the Federal Register, waiting list. Act of 1983 apply to construction or called a ‘‘Notice of Funding The competitive selection scheme rehabilitation under the Section 8 Availability’’ or ‘‘NOFA’’. The HUD under a HUD NOFA may emphasize the program, but do not apply to Section 8 Reform Act of 1989 provides that the administrative capability of applicant tenant-based assistance. Under the final Federal Register notice must state the HAs. Comments claim that application rule, reference to Section 3 requirements ‘‘criteria’’ for selection of applicants. of this HUD selection criterion to is moved to 24 CFR part 983, which The competitive criteria in a Federal distribution of fair share funding in contains the requirements for projects Register NOFA may include any some metropolitan areas tends to favor constructed or rehabilitated under the objective measure of housing need, a suburban HA (with greater presumed Section 8 project-based certificate project merit and efficiency. (HUD administrative competence) over the HA program. (§ 982.11(c)(3)) HAs are Reform Act of 1989, Section 102(a)(3), for a core city. Comments also claim encouraged to recruit qualified program Pub. L. 101–235, 103 Stat. 1990; 42 that emphasis on the capability criterion U.S.C. 3545(a)(3)) is too subjective. Other comments staff in a manner that furthers Section Under the law, HUD must publish a 3 goals. recommend that funding should be description of how to apply for distributed by formula, rather than by a Comments recommend that the rule assistance under the NOFA, including competitive process. should require HA compliance with any deadlines. (Id. section 102(a)(2)) HUD believes that award of State and local fair housing laws. HUD The Reform Act requirements are competitive funds according to criteria believes that the federal program rule implemented in a HUD regulation at 24 stated in a Federal Register notice and program enforcement should only CFR part 12. The Section 8 program carries out precisely the process require compliance with federal fair regulation describes the procedure for intended by the 1989 HUD Reform Act, housing requirements. State and local HUD publication of a NOFA to govern and the regulation adopted by HUD to governments can of course impose competitive award of funds in implement the Reform Act requirements additional requirements. The federal accordance with part 12 (§ 982.101(c)), (24 CFR part 12). HUD is not required regulation is not intended to pre-empt for HA submission of applications in to establish competitive criteria by the operation of such State or local laws. accordance with the NOFA notice and comment rulemaking. (§ 982.102(b)), and for evaluation of HA Funding for individual HUD Some comments recommend that the applications based on selection criteria programs, such as the Section 8 tenant- rule should impose extensive additional in the NOFA (§ 982.103(a)(2)). based assistance programs, is typically fair housing procedures, including HA In recent years, HUD has published a appropriated by the Congress in each help for persons who need assistance in number of NOFAs each federal fiscal separate fiscal year. Each year Congress presenting a claim for illegal year to distribute Section 8 tenant-based determines the amount of funding discrimination; HA collection of fair funding for various purposes identified available for different purposes. The housing data and HA analysis of barriers in the appropriation act and conference breakdown of Section 8 program to housing choice; and fair housing report. For example, in federal fiscal funding is not definitively known until training of HA staff. As noted above, HA year 1994, HUD published separate enactment of the appropriation act. (The operation of the program is subject to NOFAs stating criteria for award of detailed breakdown is generally civil rights statutes and regulations. In program funding distributed under a expressed in a Table that is included in addition, the basic structure of the statutory fair share formula, for funds the Conference Report.) In this context, tenant-based program is a powerful set aside for homeless persons with the use of a notice and comment instrument for promoting housing disabilities, for homeless veterans with rulemaking process to determine criteria choice by low income and minority severe psychiatric or substance abuse for competitive award of funds in each families. disorders, for family self-sufficiency fiscal year would paralyze the (FSS) program coordinators, for elderly administrative process, prevent the An HA must certify that it will service coordinators and for the family timely award of appropriated funds, and comply with equal opportunity unification program. deny flexibility in determining regulations and requirements. Some public comments object to appropriate criteria for award of funding (§ 982.53(c)) A comment notes that the award of funding under selection under the annual appropriation. certification is unnecessary, since the criteria in a Federal Register NOFA. Comments recommend that HUD HA must follow the law in any case. The comments recommend that criteria adopt new procedures for denial of HA HUD agrees that the HA is bound by the for award of funds should be funding applications. The comments law and regulations, but retains the determined in a full dress rulemaking, suggest that HUD should give the requirement for equal opportunity with notice and opportunity for public rejected applicant a written statement or certification, in accordance with comment. Comments indicate that the checklist of the reasons for denial of the historical practice in HUD programs. competitive criteria should be included HA’s application. Comments also The certification is not burdensome, and in the standing program regulation. suggest that a rejected applicant should reminds the HA of its responsibility to Comments also object to criteria used be granted the right to appeal HUD’s administer its tenant-based program in by HUD to select HA applications for funding decision. accordance with the federal fair housing funding. Comments state that the For funding awarded by a competitive requirements. selection criteria should give greater process, HUD has issued regulations Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34663 under the HUD Reform Act of 1989. both the certificate and the voucher unification, statutory and other These regulations give broad public programs, admission from the waiting requirements can be stated in the NOFA access to documentation of the basis for list may no longer be based on family offering any family unification funding HUD decision on HA funding size. (§ 982.204(d), as amended 7/18/94, for public competition and award. applications. The Reform Act rule 59 FR 36662 et seq.; see preamble III. Annual Contributions Contract and provides that HUD must ensure that discussion at 36666–36667) This change documentation on each application is automatically eliminated possible HA Administration of Program ‘‘sufficient to indicate the basis on inequities caused by disparities of wait- A. Annual Contributions Contract which HUD provided or denied the times for families of different sizes. The Comments recommend that funding assistance.’’ (24 CFR 12.14(b)(1)) Under length of wait does not depend on the for all increments in an HA’s certificate the Reform Act rule, this documentation size of the family. In addition, the or voucher program should be combined is available for public inspection for five regulation change eliminated the in a consolidated annual contributions years. (12.14(b)(2)) The rule for tenant- problems and complexities of contract (ACC). Under this rule and based assistance is revised to add a administering separate sub-lists for under current HUD practice, all funding cross-reference to the documentation different unit sizes, as well as the for an HA’s Section 8 tenant-based and public inspection requirements requirement for the HA to maintain (in programs is provided under a single under the Reform Act rule. the certificate program) a HUD- consolidated ACC, with separate ACC (§ 982.103(b)(3)) determined unit distribution. HUD has not accepted the Comments ask if the HA will be attachments that show all funding for recommendation to afford the HA required to maintain a HUD-approved the HA’s certificate and voucher applicant a right to appeal HUD’s unit distribution by bedroom size. Since programs. decision on HA funding applications, or the HA is prohibited from selection by The final rule provides that to delay distribution of funds pending unit size for tenant-based assistance, the commitments for all the funding hearing on an HA appeal. HUD is HA is not required to maintain a HUD- increments in an HA’s certificate and deeply concerned that the grant of such approved unit distribution. voucher programs are listed in one a right would severely delay or paralyze HUD believes that the new regulatory consolidated contractual document the process for award of funds, would and administrative system is a better called the consolidated annual encourage fruitless and distracting way of managing program funds. In the contributions contract (consolidated appeals and litigation, and would result annual appropriation process, the ACC). (§ 982.151(a)(2)) The final rule in major waste and diversion of Congress appropriates specific dollar eliminates a proposed provision that administrative energies by HUD and the amounts of funding (budget authority), would have required separate HAs. HUD seeks to award competitive rather than funding to support a specific consolidated ACCs for an HA’s funding by a fair and expeditious number of units under each HA’s certificate and voucher programs. In competition, carried out in accordance consolidated ACC. HUD cannot most respects, the certificate and with criteria stated in a published guarantee that the funding that is voucher tenant-based programs are NOFA. However, HUD will not appropriated by the Congress, and identical. In 1994, HUD combined the encumber this process by adding the obligated by HUD to a specific HA, will ACC forms for these programs into a right to a formal appeal or hearing for support the changing number of units single consolidated ACC. The single the HA. Sometimes NOFAs provide a that will result from the HA’s admission consolidated ACC provides a common procedure for correction of allocation of families without regard to unit size, contractual basis for unified inequities. under the system provided in HUD’s administration of the tenant-based new regulation. Rather, the HA is in the programs. B. Amount of Funding: Units or Dollars best position to manage the available B. Administrative Fees Several comments ask HUD to funding committed to the HA, so that provide funding to an HA for a specific the HA can continue to provide Administrative fees are paid by HUD number of units, rather than for a fixed assistance for families already admitted to cover HA costs to run the Section 8 allocation (amount) of funds. Under the to the program. tenant-based assistance program. certificate program, the HA was (§ 982.152) Fees must be approved by formerly required to maintain a HUD- C. Family Unification HUD. The rule describes the purposes approved unit distribution (by bedroom The proposed rule recites statutory for which fees are paid. The rule does size), using the funding provided under requirements governing award of not state how fees are calculated. The the consolidated ACC, including any funding appropriated for ‘‘family calculation of fees in each federal fiscal amendment funding. (Under the ACC, unification’’ (also called ‘‘foster child year is affected by the HUD budget and there is a separate ACC term for each care’’)—which is special Section 8 annual appropriations, and may be funding increment.) In the voucher certificate program funding to avoid the affected by other temporary legislation. program, the unit distribution is not need to place or keep children in out- Section 8(q) of the U.S. Housing Act established by HUD. The HA is of-home care. Comments recommend of 1937 (42 U.S.C. 1437f(q)) states responsible for management of available against providing categorical funding for requirements for determining voucher funding under the consolidated family unification, object to limits on administrative fees in the certificate and ACC. HUD did not provide voucher competition for family unification voucher tenant-based programs. funding for ACC amendments to funds, and question why family However, the Section 8(q) requirements support a pre-determined unit mix. The unification does not apply to vouchers. only apply if the HUD appropriation act HA controlled the use of available Some comments support special so provides. Under the terms of HUD voucher funding by setting the level of funding for this purpose. appropriations since federal fiscal year subsidy for each family (payment The final rule deletes the rule 1989, Section 8(q) requirements apply to standard), and by controlling provisions stating statutory calculation of administrative fees for so admissions to the program. requirements governing family called ‘‘incremental’’ units. Generally, Under recent amendments of unification set-asides. When the ‘‘incremental units’’ are new federally- regulatory selection requirements for Congress provides funding for family assisted units, as contrasted with 34664 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations renewal or replacement of expiring or voucher program, reflecting the Comments state that HUD should not assistance. Other units are not subject to proportions of these different unit types pay a higher fee for an HA that operates Section 8(q) (generally, units funded in the HA’s program. in a large region. Comments want HUD before fiscal year 1989 and funding for The proposed rule did not state the to clarify the meaning of ‘‘large area’’. renewal or replacement). HUD has full percentage of the FMR that is used to Comments ask HUD to allow a higher discretion to set HA fees for such units. calculate the administrative fee, but fee for an HA that must service HA comments recommend increases provided that the percentage will be portability families outside the HA’s in HA administrative fees. Comments ‘‘HUD-specified’’. For units where the normal State-law jurisdiction. disagree with HUD’s statement, in the ongoing fee is calculated under Section Comments state that the rule should preamble of the proposed rule, that 8(q) of the U.S.H. Act (42 U.S.C. allow higher ongoing fees in other cases administrative fees generally exceed the 1437f(q)) (to date, only ‘‘incremental’’ (not just for an HA operating in a large amount needed to administer the units), the statute provides that the area), including higher fees to program. Comments point out that HAs amount of the administrative fee is 8.2 compensate for ‘‘extenuating problems’’. are now required to carry out many new percent of the fair market rent for a two Comments recommend that the ability tasks, such as administration of family bedroom unit. to pay higher fees should not be tied to self sufficiency, portability and HUD is currently considering how the availability of appropriations. assistance for special populations, such administrative fee system should be Unlike Section 8(q), the proposed rule as homeless persons or persons with revised to fairly and adequately would not have permitted a higher AIDS. Comments urge that the compensate HAs to administer the ongoing fee for ‘‘small programs’’. administrative fee be based on program. In the future, administrative Comments state that the proposed rule measurement of the time needed to fees may or may not be calculated as a discriminates against HAs with small accomplish tasks required by HUD percentage of the fair market rent. Since programs. They state that the rule rules. the future fee system is not known, the should allow a higher fee for small The rule is intended to provide a final rule does not provide that the programs, such as small rural programs, regulatory framework for periodic ongoing administrative fee is calculated as well as programs operating in larger determination of administrative fee. The as a percentage of the fair market rent. areas. HUD can only pay administrative fees detailed procedures for fee calculation The final rule states only that the from funds (budget authority) are not described in the permanent ongoing fee is established by HUD. As appropriated by the Congress. HUD has program rule. From time to time, HUD in the past, the ongoing fee is paid for amended the final rule to provide that issues notices and handbooks each program unit under HAP contract HUD may decide to approve a higher explaining how to compute the on the first day of the month. ongoing fee in the two cases allowed by applicable fees in accordance with the (§ 982.152(b)(1)) This change leaves the Congress under Section 8(q)—for appropriations and other governing flexibility for future adoption of a new small programs and for programs laws. administrative fee system. However, Comments recommend allowing a operating in large areas. (§ 982.152(b)(2)) under current law, the ongoing fee for The two cases stated in the rule one-time fee for implementation of the units under Section 8(q) remains 8.2 new rule. This comment is not adopted. include the major circumstances where percent of the two-bedroom fair market a higher ongoing fee may be justified. This rule does not radically change rent. On January 24, 1995, HUD existing program procedures. In certain An HA operating in a large area may published a notice revising the method incur higher expenses to service the respects, the rule will significantly for calculating administrative fees for simplify HA administration of the assisted units, for example, because of units that are not subject to Section 8(q). longer trips to inspect program units program. Any change in program (60 FR 4764) requirements entails some scattered in rural communities, than an By law, an HA that administers HA whose units are clustered closer to administrative burden in changing Section 8 assistance may contract to existing management practice. However, HA offices. HAs with small programs make assistance payments to itself as a may not benefit from economies of scale HUD does not anticipate that the Section 8 owner. (42 U.S.C. 1437f(a)) transition to operation under the new in administration of the program. The final rule adds a new provision The rule does not give HAs that rule will cause problems justifying a confirming that HUD may pay a lower higher administrative fee. operate in large areas or with small ongoing administrative fee for HA- programs any right to a higher ongoing C. Ongoing Administrative Fee owned units. (§ 982.152(b)(3)) fee. HUD has full discretion whether to 1. How Calculated 2. Higher Ongoing Fee—For Small approve any increase over the normal Program or Program Operating in Large ongoing fee. HUD pays a fee to the HA for every Area At this time, HUD will not attempt, as month after a unit is ‘‘under Housing suggested by comment, to further define Assistance Payments (HAP) Contract’’. For units subject to Section 8(q), the in this rule when a higher fee may be This is called the ‘‘ongoing law provides that HUD may decide to approved for a ‘‘large’’ geographic area administrative fee’’. In accordance with increase the ongoing administrative fee or a ‘‘small’’ HA program. The field current program practice, the proposed ‘‘if necessary to reflect the higher costs office will apply these concepts on a rule provided that the ongoing fee for a of administering small programs and case by case basis, in accordance with unit equals a HUD specified percentage programs operating over large HUD Headquarters instructions, to of the Section 8 existing housing fair geographic areas’’. (U.S.H. Act, Section determine if an HA needs a higher fee market rent for a two-bedroom unit 8(q)(1), 42 U.S.C. 1437f(q)(1)) The for proper administration of its (regardless of the actual unit size). In proposed rule would have provided that individual program. present program usage, different fee HUD could approve a higher ongoing percentages apply to different types of fee for an HA program operating over a D. Preliminary Fee units in the HA’s tenant-based program. ‘‘large area’’. Such fees may only be HUD pays a preliminary fee for each A ‘‘blended fee’’ percentage is approved ‘‘if appropriations are new unit added to the HA program. (By calculated for the HA’s whole certificate available’’ for this purpose. law, the maximum preliminary fee for Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34665 Section 8(q) units is $275 (42 U.S.C. available to the HA for preliminary give the family additional help in 1437f(q)(2)(A)(i)), or $300 for costs. FSS is an ongoing program. HAs finding a rental unit. preliminary costs in the family self may not have additional program G. Help for Elderly and Disabled sufficiency (FSS) program (42 U.S.C. increments (to generate preliminary fees 1437u(h)(1)).) The preliminary fee is that may be used for payment of FSS Under a 1992 law, Section 8(q) primarily used to cover HA costs to costs). Comments recommend payment administrative fees may be used to lease up new units under the ACC (but of a special fee for FSS. employ or retain coordinators of not for turnover or renewal of program The final rule adds authorization for supportive services for elderly or units). approval of a fee for HA costs to disabled families who receive tenant- An HA is required to document coordinate supportive services for based assistance. (42 U.S.C. amounts spent for preliminary costs, up families participating in the FSS 1437f(q)(3)(A), as amended by Section to the allowable per unit maximum. The program. (§ 982.152(a)(1)(v)) This 675 of the Housing and Community HA is only compensated for qualifying special FSS fee is not linked or limited Development Act of 1992, 106 Stat. expenses actually ‘‘incurred’’. Public to FSS coordinator costs in connection 3828) The rule is revised to provide that comments recommend eliminating the with a new funding increment. HUD may approve administrative fees to requirement for an HA to present cost cover HA cost to coordinate supportive F. Helping Families Find Housing justification in order to collect a services for elderly and disabled preliminary fee. The comment is not In accordance with current practice, families. (§ 982.152(a)(1)(iv)) Supportive adopted. The rule is revised to specify, the proposed rule would have provided services include a wide range of as required by law (for units subject to that HUD may approve a ‘‘hard-to- assistance for the elderly and disabled, Section 8(q)), that preliminary fees house’’ fee to cover the cost of special such as health services, nonmedical cover the cost of preliminary expenses assistance to a family with three or more counseling, personal care, case that the HA ‘‘documents it has minors. Unlike the preliminary fee, a management and other appropriate incurred’’ in connection with new hard-to-house fee was to be paid services. (See 42 U.S.C. 13631(c)) funding from HUD. (42 U.S.C. whenever a qualifying family moved to 1437f(q)(2)(A)(i); § 982.152(c)(2)) a new assisted unit, not just for new H. Audit Costs In the past, HAs were required to program funding. The proposed rule The rule provides that HUD may submit justification to HUD for payment also would have provided that a hard- approve an administrative fee to cover of the preliminary fee. Under this rule, to-house fee would not be paid for a cost of audit by an independent public HAs are no longer required to submit unit that is owned by the HA. accountant. (§ 982.152(a)(1)(vi)) up-front justification to HUD to receive Comments recommend an increase in Currently, HUD pays a fee to cover costs the fees. However, HAs must maintain the amount of the hard-to-house fee, and of required audit by an independent accounting records that document that the HA should be paid a hard-to- public accountant (IPA). Public preliminary costs incurred by the HA, house fee to cover costs to help a family comment states HUD should list this and must make the documentation with a child under seven find a lead-free special type of fee in the proposed rule. available when requested for audit by unit. Comments urge that the hard-to- HUD agrees, and has revised the rule to HUD. house fee should also be paid for leasing specify that HUD may approve a Some comments recommend that of an HA-owned unit, since the HA separate fee for IPA audit costs. HUD should eliminate a separate must follow the same procedures as for preliminary fee, or that a preliminary a private dwelling unit. I. Other Costs fee should only be paid for a new Other comments suggest elimination In addition to the listing of specific program. HAs should be compensated of the hard-to-house fee, or recommend fees that may be approved by HUD, the through the ongoing administrative fees. that HUD should not pay a hard-to- final rule provides that HUD may pay an Other comments recommend that HUD house fee unless the HA has in fact additional administrative fee for ‘‘other should pay a preliminary fee for every made special efforts to house a large extraordinary costs’’ approved by HUD. new leasing by an assisted family, not family. Unlike the preliminary fee, HUD (§ 982.152(a)(1)(vii)). This category just for the initial lease-up of a new does not currently require the HA to leaves HUD flexibility to approve funding increment. At this time, HUD is document actual costs or administrative additional amounts needed by an HA retaining provision for a separate effort. The hard-to-house fee is paid for for special purposes. preliminary fee as authorized by current every qualifying move. The final rule does not provide for a law for fees calculated under Section Section 8(q) provides that HUD may special portability fee. Portability fees 8(q) of the U.S. Housing Act of 1937 determine reasonable fees for: ‘‘the costs will be eliminated beginning in federal (when so provided in HUD’s incurred in assisting families who experience fiscal year 1996. difficulty (as determined by the Secretary) in appropriation). As noted above, HUD is J. HA Responsibilities considering modification of the current obtaining appropriate housing under the system for calculating ongoing programs * * *.’’ (42 U.S.C. The rule contains a list of some basic 1437f(q)(2)(A)(ii)) administrative fees. HA responsibilities in administration of The final rule provides only that HUD the tenant-based programs. (§ 982.153) E. Family Self-Sufficiency may approve administrative fees for Comments suggest some additions to the The proposed rule would have ‘‘cost to help families who experience list of HA responsibilities. The final rule provided that the preliminary fee may difficulty renting appropriate housing revises and supplements the list of HA be used to cover ongoing expenses for * * *.’’ (§ 982.152(a)(1)(iii)) The final responsibilities as stated in the family self-sufficiency (FSS) program rule does not use the term ‘‘hard-to- proposed rule. The final rule provides activities. Some comments approve the house’’, and does not specify that the fee that: provision for payment of ongoing family is only paid for a family with three or —The HA determines who can live in self-sufficiency expenses from the more minors. HUD is examining all the assisted unit, at admission and administrative fee. Other comments aspects of the administrative fee system. during the family’s participation in object that the use of preliminary fee for HUD will consider when HUD should the program. (§ 982.153(b)(8)) This this purpose would reduce the amount pay an additional fee so that the HA can new provision is consistent with other 34666 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations provisions concerning the HA’s Such use has precedence over HA use are not needed to cover HA authority to determine when a group of the fee reserve for other non-program administrative expenses through the of persons qualifies as a ‘‘family’’ housing purposes. HUD may prohibit end of HUD’s funding commitment (§ 982.201(c)(3)), to select families for use of the fee reserve for certain under the consolidated ACC—that is, admission to the program (part 982, purposes. (§ 982.155(b)(1)) In addition, to the end of the term of the last subpart E), and to approve additional if the HA fails to administer the program expiring funding increment. occupants of the assisted unit. adequately, the HUD field office may (§ 982.155(b)(1)) (§ 982.551(h)(2)) freeze HA use of fee reserve funds, or —HUD may prohibit use of —The HA must encourage owners to may direct the HA to use fee reserve administrative fee reserve funds for make units available for leasing in the funds to improve program specified purposes. (§ 982.155(b)(1)) program, including owners of suitable administration or to restore funds units located outside areas of poverty disbursed for ineligible expenses. L. Depositary and racial concentration. (§ 982.155(b)(3)) Program funds must be deposited to (§ 982.153(b)(4)) Comments recommend that HUD and disbursed from the HA’s account —The HA is responsible for conducting should relinquish any control over HA with a financial institution acting as an ‘‘informal review’’ of certain HA funds in the administrative fee reserve. program depositary. (§ 982.156) The decisions concerning an applicant for Administrative fees should be treated HUD field office can freeze depositary participation in the program. like payments to other contractors for funds by giving notice to the depositary (§ 982.153(b)(19) and § 982.554) The services rendered. Comments also ask institution that prohibits the depositary final rule restores the distinction in HUD to clarify when the HA may use from permitting HA withdrawals. In the the existing rule between an fee reserve funds for ‘‘other housing final rule, the HUD notice is called a ‘‘informal review’’ of HA decisions purposes.’’ ‘‘freeze notice’’. concerning an applicant for These recommendations are not Comments say that HUD also should participation, and an ‘‘informal adopted. Funds in an HA’s notify the HA when the depositary is hearing’’ on HA decisions concerning administrative fee reserve were paid to frozen. HUD agrees. The rule is revised a family that is already admitted to the HA by HUD to administer the HA’s to provide that HUD must give the HA the program. (See § 982.554 and Section 8 program. It is important to a copy of the freeze notice from HUD to § 982.555) assure that fee reserve funds are used the depositary. —The HA must obtain and verify first to cover HA administrative costs of evidence of citizenship and eligible the HA’s Section 8 program, and only M. Budget and Expenditure immigration status, as required by then are used for other housing-related Under the rule, the HA must comply HUD regulations implementing purposes. The regulatory standard for with HUD program regulations and statutory restrictions on assisted use of fee reserve funds leaves the HA other requirements. (§ 982.52(a)) HUD occupancy by certain noncitizens. great flexibility to apply the funds for requirements include the financial (§ 982.153(b)(9); see 24 CFR part 812) local housing purposes. —The HA must establish and adjust a In accordance with historical program management procedures required by utility allowance for tenant-supplied practice, the rule provides that the HUD HUD. The rule does not state the details utilities. (§ 982.153(b)(16)) field office may freeze or direct use of of HUD-required budget and accounting —The HA must administer an FSS reserve funds if the HA has not procedures. program. (§ 982.153(b)(22)) ‘‘adequately administered’’ any Section The final rule is revised to state that The final rule also specifies that the 8 program. (§ 982.155(b)(3)) Comment the HA may only use program funds in HA bears responsibility to affirmatively asks HUD to clarify the methodology for accordance with a HUD-approved further fair housing goals, as well as to determining when the HA is not budget. (§ 982.157(b)(1)) The budget comply with equal opportunity adequately administering the program. must be submitted to HUD at such time requirements. (§ 982.153(b)(5)) HUD believes that the regulatory and in such form as HUD requires. formula provides sufficient guidance on (§ 982.157(a)) Previously, these K. Administrative Fee Reserve the basis for freezing HA use of funds requirements were stated in the The rule codifies ACC and handbook in the administrative fee reserve. This consolidated ACC, but were not provisions concerning the provision is designed to protect program explicitly recited in the program rule. ‘‘administrative fee reserve’’ (§ 982.155) funds, and provide a remedy for serious Comments recommend that the This account was formerly called the or systemic violations of program Department should consolidate the ‘‘operating reserve’’. The administrative requirements by an HA. Such violations budget and requisition process for the fee reserve is credited with excess can occur in many ways. HUD requires certificate and voucher programs. The administrative fees earned by an HA in a broad authority to restrict HA use of Department agrees, and has established prior years. Generally, if funds in the administrative fee reserve funds if the uniform budget procedures for the reserve are not needed for program HA is not running the program in tenant-based programs. Of course, the administration (to the end of the last accordance with HUD requirements. budget process must continue to reflect ACC funding increment), the HA has The final rule adds three limitations statutory differences in the program broad discretion to use administrative on the HA’s authority to use the subsidy computation for the certificate fee reserve funds for ‘‘other housing administrative fee reserve for ‘‘other and voucher programs. purposes’’. The purposes must be housing purposes’’: Comments ask HUD to eliminate consistent with State and local law. —The HA board of commissioners or separate budgeting and financial (§ 982.155(b)(1)) The allowable purposes other authorized HA officials must reporting for renewal funding (funding may include housing purposes not establish the maximum amount that to provide continued assistance after the connected with the Section 8 programs. may be charged against the end of an ACC funding commitment). In any HA fiscal year, the HA must administrative fee reserve without HUD procedures already have been use fee reserve funds for program specific approval. (§ 982.155(b)(2)) changed to combine budgets and administrative expenses in excess of —The HA may only use the reserve for financial accounting for new units and HUD administrative fees for the year. other housing purposes if the funds renewals. Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34667 N. Program Records and including all of the media in which Community Development Act of 1981 The rule codifies and clarifies basic such data may be maintained. (42 U.S.C. 1437f note), as amended by requirements governing the HA’s HUD has not adopted the 106 Stat. 3711, 10/28/92) The law and obligation to maintain and retain recommendation to specify that access regulation are intended to encourage program records. (§ 982.158) Comments must be reasonable. Of course, all HAs to investigate and pursue fraud and approve HUD’s clarification of requirements should be administered in abuse in the Section 8 program. The rule requirements for retention of program a reasonable fashion. contains a cross-reference to the An HA administering Section 8 is not records. separate regulation on Section 8 fraud Comments recommend that HUD subject to federal Freedom of recoveries. (§ 982.163) Information Act (FOIA) and Privacy Act should reduce the burden of accounting IV. Leasing a Unit and record-keeping requirements. requirements. Comments recommend Comments suggest that the rule should that an HA should be required to make A. Information When Family Is Selected program records available for public describe what record media are allowed 1. Briefing and Information Packet inspection as under the FOIA. This or disallowed, and should specify that When a family is selected to record-keeping requirements apply to recommendation is not adopted. The decision whether to release or deny participate, the family needs to know any form of permanent, retrievable how the program works. The HA gives record (including electronic records), release of program information generally rests in the discretion of the HA, subject the family an oral briefing, and an not just paper files. information packet. In the HA briefing, The rule provides that HUD and the to any restrictions under State or local the family receives a broad description Comptroller General must be allowed law (but see § 813.109(b) concerning disclosure of information obtained of how the program works, family and full and free access to program accounts owner responsibilities, and areas where and records. (§ 982.158(c). See 42 U.S.C. pursuant to the family’s verification release or consent). the family can lease a unit. The 1435) Comments suggests that the rule information packet reinforces the should state specifically that such O. Conflict of Interest briefing, and supplies more detailed access must be reasonable, so that Under the rule, certain officials or information to the family. The final rule examination of HA records doesn’t employees of an HA, contractors, modifies requirements on the briefing jeopardize HA operation. and information packet. (§ 982.301) The final rule does not describe what subcontractors or agents of an HA, and members of Congress, are prohibited In the final rule, several elements are record-keeping media are allowed or removed from the listing of items that prohibited by HUD. Such details will be from holding a direct or indirect interest in any program contract or arrangement. must be covered in the oral briefing, but provided in program handbooks or are included in the written information notices. However, the rule is revised to (§ 982.161(a)) Members of these classes must disclose their interest or packet—a description of the housing specify that program records must be in quality standards (HQS), and of factors the form prescribed by HUD. prospective interest to the HA and to HUD. (§ 982.161(b)) As in the past, a the family should consider in renting a (§ 982.158(a)) unit. Since HAs now make extensive use of HUD field office may waive the conflicts requirements ‘‘for good cause’’ in an The final rule drops a proposed computers in management of the provision that would have required the program, and since HAs often maintain individual case. (§ 982.161(c)) A comment recommends that a HA to give prospective landlords major program record systems in information about the family’s rental computerized form, the rule specifies request for waiver should be deemed automatically allowed unless rejected in history or about drug-trafficking by that the HA must comply with HUD family members. Under the final rule, requirements governing ‘‘computerized 30 days. This recommendation is not adopted. the HA has the choice whether to or electronic forms of record-keeping’’. furnish this type of information to (§ 982.158(a)) In the rule, HUD also P. Contract Forms landlords. (§ 982.307(b)(2)) The HA is recognizes and addresses the special The HA must use the contract and only required to tell a prospective problems in examination and audit of other program forms prescribed by Section 8 landlord (from information in computerized records. Effective HUD. (§ 982.162) Comment asks that HA records) the family’s current examination of such records may HUD list the forms. The regulation lists address, and the family’s current and require knowledge of the system certain basic program contracts that prior landlord. The HA policy on (hardware and software), and of must be used. However, the rule does furnishing other information about the passwords, commands and instructions not give a complete list of the contracts family to landlords must be stated in the needed to access data held in the and other program forms. A HUD HA administrative plan. (§ 982.54(d)(7)) system. The final rule specifically handbook or other HUD directive will The HA policy must be stated in the provides that the HA must grant the list the HUD-prescribed forms. There is information packet for the family. examiner (HUD or the GAO) full and no reason to clutter the regulation with (§ 982.301(b)(8)) free access: this information. The oral briefing and information ‘‘to computerized or other electronic records, packet must explain where the family and to any computers, equipment or facilities Q. Fraud Recovery may lease a unit, inside and outside the containing such records, and shall provide Comments state that an HA has no HA jurisdiction. (§ 982.301(a)(1)(iii) and any information or assistance needed to incentive to recover program funds lost § 982.301(b)(5)) If the family qualifies to access the records.’’ (§ 982.158(c)) because of bad debts or fraud. In move outside the HA jurisdiction under The rule is also revised by restating response, HUD notes that existing portability, the briefing and information terminology and language for regulations permit an HA to retain fifty packet must explain how portability consistency and simplicity. In percent of Section 8 fraud losses that the works. (§ 982.301(a)(2) and particular, the rule now refers to HA is able to recover from a family or § 982.301(b)(5)) ‘‘records’’, to cover all the various owner by litigation, court order or The final rule adds a new provision accounts, forms and documentation repayment agreement. (24 CFR part 792; that if the jurisdiction includes any high used to maintain program information, Section 326(d) of the Housing and poverty census tract, and if the family 34668 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations is living in such a census tract, the HA jurisdiction under portability regulations requires recipients to take briefing must explain the advantages of procedures. (§ 982.301(a)(2)). The HA appropriate steps to assure effective moving to an area that does not have a may not directly or indirectly reduce the communication with applicants and concentration of poor families, such as family’s opportunity to select among beneficiaries. The present rule is revised improved employment, educational available units. (§ 982.353(f)) These by adding a reference to these opportunities and decreased dropout general requirements apply both to the requirements. (§ 982.301(a)(4)) rates. In the briefing, the HA may not provision of landlord and agent listings discourage the family from choosing to to the family, and to other aspects of B. Giving an Owner Information About live anywhere in the HA jurisdiction, or program administration. The HA may a Family outside the HA jurisdiction under not design such lists in order to steer The proposed rule would have portability procedures. (§ 982.301(a)(3)) families to particular areas, thereby provided that the HA must give a The final rule provides that the reducing a family’s opportunity to select prospective owner information in the briefing packet must include a copy of available units, or discouraging the HA’s possession about rental history or the HUD prescribed ‘‘lease addendum’’ family from living anywhere the family drug-trafficking by members of the (required lease language), and the form may choose. family. of request for lease approval. At the same time, the rule leaves the Some comments agree that HUD (§ 982.301(b) (6) and (7)) HA broad discretion and authority to should require or allow the HA to The proposed rule would have provide information to families in a release information about the family to required that the HA supply the family practical and helpful way. The HA is a prospective Section 8 owner. The certain types of information on not required to provide a listing of every comments claim that providing the prevention of lead-based paint possible landlord known to the HA. The information to owners will improve poisoning. The final rule provides that rule does not state that the HA must relations between the HA and landlords. the HA must give the family the HUD- provide any specific number of listings. prescribed lead-based paint brochure. Comments suggest that the HA should Comments state that the HA should both (§ 982.301(b)(11)) be required to give the tenant a list of inform the family about the owner, and owners that are barred from the owner about the family. 2. Information About Landlords participation, so families don’t waste Other comments contend that the HA The proposed rule would have time. HUD agrees that such information should not act as a clearinghouse for provided that if requested by the family, might be helpful in some markets, or for tenant information. HUD should not the HA would give the family available some owners or units. However, HUD is require or allow an HA to give landlords information about prospective not persuaded that this practice will be information about prospective tenants. landlords. Comments state that the HA universally beneficial, or should be Determination of tenant suitability is the should provide information about mandated by federal regulation. In many responsibility of the owner. The HA ‘‘units’’, rather than about prospective cases, it may be difficult for tenants to should not be involved in owner ‘‘landlords’’. Other comments state that correlate lists of barred ‘‘owners’’ with screening of tenants. The owner can the HA should not be allowed to release listings of units available for rental in check tenant references. The proposed landlord information without the the local market. and final rule provide that the HA must landlord’s consent, or that HAs may be tell the owner that the HA has not accused of steering families to landlords 3. Information for Disabled Persons screened the family for suitability, and in particular areas. HUD has not The proposed rule would have that such screening is the owner’s followed these suggestions. required that if a member of the family responsibility. Comments agree that the The final rule requires that the were disabled, the HA must have HA should so inform the owner. briefing packet include a list of provided information about current The rule is revised to add a new landlords or other parties known to the ‘‘available’’ accessible units known to provision stating that: HA who may be willing to lease a unit the HA. Comments state that the HA to the family, or help the family find a ‘‘Owners are permitted and encouraged to does not know whether housing is screen families on the basis of their tenancy unit. (§ 982.301(b)(13)) The list may available. Comments also state that the histories. An owner may consider a family’s include owners or rental agents for HA should be required to give the background with respect to such factors as: specific properties or units known to the family information available to the HA (1) Payment of rent and utility bills; HA (for example, an apartment house of locations and contacts for accessible (2) Caring for a unit and premises; with units rented to other program housing or other assistance. (3) Respecting the rights of others to the participants), or entities that may HUD agrees that HAs can only furnish peaceful enjoyment of their housing; provide access to numerous units and available information on possible (4) Drug-related criminal activity or other locations in the local market, such as openings in accessible units. The final criminal activity that is a threat to the life, real estate agents, rental agents or social rule provides that at the request of a safety or property of others; and (5) Compliance with other essential service agencies with listings of possible family that includes a disabled person conditions of tenancy.’’ (§ 982.307(a)(2)) rental openings. The HA may or may the HA must provide a current listing of not provide a listing of specific ‘‘units’’. accessible units ‘‘known to the HA that Comments state that the release of The name of a single listing agent may may be available’’ for rental to program information about a family to provide access to many specific units in participants. (§ 982.301(b)(14) (emphasis prospective owners may expose the HA the local housing market. supplied)) to potential legal liability, or violate In providing listings to assist a family, Comments suggest that the oral confidentiality requirements under the HA is subject to general program briefing should use appropriate federal or State law. The obligation for requirements designed to protect the procedures for communication with the the HA to give landlords information on family’s practical and legal freedom to disabled. Existing HUD regulations at 24 prospective tenants adds a new search for an available unit. The HA CFR part 8 prohibit discrimination bureaucratic requirement, and forces an may not discourage the family from against disabled persons in HA to maintain rental or behavioral data choosing to live anywhere in the HA administration of HUD assistance on individual tenants. Comments note jurisdiction, or outside the HA programs. Section 8.6 of these that HA release of tenant information Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34669 may block the family’s effort to find confidence and willingness to lease gives the family more time to find a unit suitable housing. units under the tenant-based programs. and request HA approval. (§ 982.302; Comments ask HUD to clarify what Other HAs will elect to avoid the legal § 982.303) types of ‘‘rental history’’ must be exposure and potential administrative Comments offer different communicated to a prospective problems in processing or releasing recommendations on the extent of HA landlord: Whether this term means rent- tenant information. discretion to limit the term of a paying history, and whether the In some States, there may be State or certificate or voucher. Some comments requirement is limited to bona fide file local laws affecting release of tenant stress that an HA should be required to information or first hand information. information to owners. Such laws may give a family ample time to use a Other comments note HA files may require the release of such information, certificate or voucher. Other comments contain hearsay, or inaccurate or or may restrict the release of the state that HAs should have broad disputed information about the family. information. The federal regulation is discretion to set local policies on the Comments state that the HA should not not intended to pre-empt the operation certificate or voucher term, and release tenant information unless the of such State or local laws. concerning any extension or suspension HA obtained the information as the If the HA wants to release tenant of the term. Comments note that the family’s landlord, or has other direct information, the HA must adopt a policy administrative plan should include the knowledge that the information is on providing information to owners. HA standards for granting extensions of truthful. Comments state that the HA The release of information by the HA the term. should not give out information without may not be left to casual ad hoc Comments assert that the initial term a release from the tenant, or that the decisions of HA officials, but must be should be longer than 60 days, or that family should have the right to based on an explicit HA policy. the HA should be required to extend the challenge information in the HA file. initial term. Some comments state that C. Requesting HA Approval To Lease a families need more time to find housing, HA communication gives legitimacy to Unit allegations of a prior landlord. or to find units in non-minority or non- Comments also suggest that landlords After a family is selected, the HA poverty neighborhoods. A comment don’t need information from the HA issues a certificate or voucher to the recommends that the certificate or since landlords can check references, family. The family may search for a voucher should have an initial 120 day and criminal convictions are a matter of unit. The family must get HA approval term. The comment states that the HA public record. to lease a unit with assistance in the should be required to grant further The final rule provides that when a program. The final rule restates and extension if the family has made family wants to lease a dwelling unit, clarifies the procedure for requesting reasonable efforts to find housing during the HA ‘‘may offer’’ an owner HA HA approval. (§ 982.302; § 982.303; the initial term. information about family tenancy § 982.305; § 982.306) Other comments state that HUD should retain the maximum 120 day history or drug trafficking. The proposed rule would have term (60 days plus an extension of up (§ 982.307(b)(2)) The rule does not provided that the family requested to 60 days) as under the old rule. 120 require the HA to release the approval to rent the unit, but did not days is a reasonable time to find a unit. information. refer to a ‘‘request for lease approval’’. Comments also state that allowing HA However, the final rule provides that The old program rules provided that a discretion to set longer terms allows too the HA must give the owner: family submitted a request for lease approval to the HA. Public comments much variation between local HA —The family’s current address, as state the rule should keep the programs. shown in the HA records. requirement to submit a request for Some comments state that the rules —The name and address (if known to lease approval. Comments note that a should require the HA to suspend (toll) the HA) of the landlord at the family’s request for lease approval is signed by running of the term when the family has current and prior address. the landlord, confirms the landlord’s asked the HA for approval to lease a (§ 982.307(b)(1)) agreement to rent the unit, and gives unit, and is waiting for HA action on the The final rule requires the basic information on terms of the family’s request. Unless the HA grants a information packet for a newly selected proposed leasing. The form of the suspension, the term continues to run, family to include a statement of the HA request for lease approval facilitates and the family may be discouraged from policy on providing information to review by the HA. trying to lease a unit in non-minority or owners. (§ 982.301(b)(8)) The HA must The final rule provides that the family non-poverty areas. The family cannot give the same types of information to all must submit a request for lease control the time used by the HA in families and to all owners. approval, and a copy of the proposed deciding to approve or disapprove the (§ 982.307(b)(3)) lease, during the term of the certificate unit. The family may not have time to Under the final rule, the policy on or voucher. (§ 982.302(c)) The HA has find another unit if the original unit is release of family information to the discretion to permit a family to disapproved. Other comments suggest prospective landlords rests in the hands submit more than one request at a time. that suspension is unfair to other of the HA, the local agency charged with (§ 982.302(b)) The final rule also states applicants waiting for housing. administration of the tenant-based that the HA may specify the procedure Under previous HUD rules, the initial program. The final rule merely confirms for requesting approval to lease a unit, term of a certificate or voucher was a that HAs ‘‘may’’ offer the owner and that the family must submit the minimum of 60 days. At its discretion, information about the family in the request ‘‘in the form and manner the HA could extend the initial term up HA’s possession, thus confirming that required by the HA’’. (§ 982.302(d)) to a maximum of 120 days from the there is no federal bar to release of beginning of the initial term. This basic tenant information. However, the choice D. Term of Certificate or Voucher 60 day to 120 day pattern is continued to exercise this option is the election of The family must request lease in the final rule. The proposed rule did the HA. Some HAs will wish to release approval during the term of the not set any maximum term. The HA available information on program certificate or voucher issued by the HA. could decide whether to grant families, to enhance general owner Extension or suspension of the term extensions, and the length of any 34670 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations extension. The final rule provides, as —The landlord and the tenant have for each whole month the unit is under under the old rule, that the initial term executed the lease; and lease. plus any extensions may not exceed a —The HA has approved leasing of the The rule is revised to clarify what total of 120 days. (§ 982.303(b)(1)) unit in accordance with HUD happens if the HAP contract is not The family may ask the HA to extend requirements. (§ 982.305(b)) executed before the beginning of the the term up to the 120 maximum as a A public comment states that the rule lease term. The final rule provides that: reasonable accommodation for a should allow an HA to execute the HAP —The HA may not pay any housing disabled person. (§ 982.303(b)(2)) If the contract up to 60 days after assistance payment to the owner until HA believes that a longer time is commencement of the lease. Another the HAP contract has been executed. necessary for this purpose in a special comment argues that execution of the (§ 982.305(c)(2)) case, HUD will consider a request for HAP contract before the HA has —If the HAP contract is executed during regulatory waiver of the 120 day approved the unit would force the HA the first 60 days of the lease term, the maximum. to pay rent to the owner before the HA HA will pay housing assistance At its discretion, in accordance with has approved the unit and the lease. The payments after execution of the HAP HA policy as described in the final rule is consistent with the contract (in accordance with the terms administrative plan, an HA may grant a recommendations in these comments. of the HAP contract), to cover the ‘‘suspension’’ (tolling) of the certificate The final rule requires that the HAP portion of the lease term before or voucher term if the family submits a contract must be executed no later than execution of the HAP contract (a request for lease approval during the 60 days from the beginning of the lease maximum of 60 days). term of a certificate or voucher. term. (§ 982.305(c)(1)) However, the HA (§ 982.305(c)(3)) (§ 982.303(c)) ‘‘Suspension’’ means must use ‘‘best efforts’’ to execute the —Any HAP contract executed after the stopping the clock on the term of a HAP contract before the beginning of 60 days period is void, and the HA family’s voucher or certificate after the the lease term. The HA may not approve may not pay any housing assistance family submits a request for lease the unit or execute the HAP contract payment to the owner. approval. (§ 982.4; § 982.54(d)(2)) The until the HA has determined that the (§ 982.305(c)(4)) final rule permits the HA to grant a unit and lease meet all program Comments recommend that the rule suspension for ‘‘any part of’’ the period requirements. (§ 982.305(a)) should require the HA to approve the running from the family’s request for Comments object to the requirement unit and lease in a specific short period lease approval up to the time when the that the lease must be executed before from submission of the family request HA approves or denies the request. the beginning of the lease term. The for lease approval. A period of 7 days (§ 982.303(c)) final rule retains this requirement. is suggested. The recommendation to The rule requires the HA to establish From the beginning of the lease term, prescribe a rigid uniform period from in the administrative plan a policy on the family’s tenancy must be subject to family submission to HA approval is not when and whether extensions or the statutory and basic tenancy adopted. The imposition of a uniform suspension of the term may be granted, requirements stated in the required deadline is not practical for HAs including how the HA decides whether lease addendum. By execution of the operating in different housing markets, to grant extensions or suspensions, and lease, containing the required and as applied to the special the length of any extension or provisions, the lease requirements are circumstances of particular cases—for suspension. (§ 982.54(d)(2)) contractually binding on the owner and example, time needed so that an owner can correct HQS deficiencies. As noted E. HA Approval To Lease a Unit the tenant. The lease makes explicit the intention of the family and the owner to above, however, the HA must execute The HA must determine that a unit establish a tenancy in accordance with the HAP contract within 60 days after meets program requirements. Before requirements of the tenant-based commencement of the tenancy. approving rental of a unit with programs. F. HA Disapproval of Owner assistance under the program, the HA Lease execution before must determine that: commencement of the lease term is not 1. Mandatory Denial —The unit is eligible housing; difficult. Each family is given a copy of The rule requires that the HA must —HA inspection shows that condition the lease addendum in the information not approve rental of a unit from an of the unit satisfies the housing packet. In general, owners are also owner if the owner is subject to certain quality standards (HQS); familiar with this requirement. The federal sanctions (debarment, —The lease is approvable and includes requirement to execute the lease before suspension or denial of participation the ‘‘lease addendum’’ language the commencement of the term is also under 24 CFR part 24). (§ 982.306(a)) required by HUD; consistent with general practice in the The HA may or may not know that an —The rent to owner is reasonable; and private rental market. owner is subject to these sanctions. The —If the unit will be assisted under the The HA may not approve the unit or final rule therefore specifies that the certificate program, the total of execute the HAP contract, until the HA HA’s obligation to reject the owner only contract rent plus any allowance for determines that the tenancy meets all applies if the HA has been informed of tenant-paid utilities does not exceed program requirements (as listed in the this fact by HUD or some other source. the FMR/exception rent limit. rule). (§ 982.305(a)) The HA must make The proposed rule would also have (§ 982.305(a)) The HA may not ‘‘best efforts’’ to execute the HAP provided that the HA could never execute a HAP contract until all these contract before the beginning of the approve rental from the owner if HUD requirements are satisfied. lease term. (§ 982.305(c)(1)) The HAP had initiated an enforcement action The rule provides that all of the contract must be executed within a under the Fair Housing Act. The final following actions must be completed maximum of 60 calendar days from the rule is revised to provide that the HA before the beginning of the lease term: beginning of the lease term. must not approve rental from the owner —The HA has inspected the unit, and (§ 982.305(c)(1)) In accordance with if so directed by HUD when the owner determined that the unit satisfies the normal administrative fee procedures, has been the subject of equal HQS; the HA receives its administrative fee opportunity enforcement proceedings. Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34671 (§ 982.306(b)) Automatic disapproval of exercise this discretion for non-payment ‘‘principal or other interested party’’. owners who have committed fair of local fines or assessments, in addition (§ 982.306(e)) Rental real estate is often housing violations might operate to to local real property taxes. held by a legal entity such as a limited deny housing opportunities for low- The proposed rule would have partnership or corporation, rather than income or minority families. Such provided that the HA could deny an individual. A real estate investor may automatic denial may be inconsistent approval to lease a unit from an owner have an interest in various properties with fair housing policies. The who had committed fraud or made any held in the name of different legal appropriate remedy should therefore be false statement in connection with any entities, or may have an interest in determined by HUD in the federal housing program. The final rule various partnerships or enterprises. The circumstances of the particular case. amends and broadens this language to rule clarifies that the ‘‘owner’’ is not In addition, the final rule broadens provide that the HA may deny approval merely the nominal entity that holds the description of the proceedings for if the owner has committed ‘‘fraud, legal title to the property to be rented, which such rejection should apply. The bribery or any other corrupt or criminal but also covers other persons with an HA must disapprove the owner (when act’’ in connection with a federal actual interest in the property. In directed by HUD) if: housing program. (§ 982.306(c)(2)) applying the authority for rejection of an —The federal government has instituted The revision protects the integrity and ‘‘owner’’ in specific cases, the HA may an administrative or judicial action purpose of federal housing assistance. penetrate the veil of the form of against the owner for violation of the The revision is intended to make clear ownership. The HA may deny approval Fair Housing Act or other federal that the HA has broad authority to reject to rent a unit from an entity in which participation of a Section 8 owner who equal opportunity requirements, and the principal or other interested parties has engaged in bribery or any other such action is pending. have engaged in activities that are —A court or administrative agency has corrupt or criminal activity related to a grounds for denial. For example, the HA determined that the owner violated federal housing program. The HA may may deny approval to rent from a decline to accept an owner, regardless of the Fair Housing Act or other federal partnership where a general or limited whether the owner’s crime meets the equal opportunity requirements. partner has committed fraud in technical indicia of ‘‘fraud’’ as defined (§ 982.306(b)) connection with a federal housing by federal or State law. In a parallel The new provisions cover fair housing program. revision, the rule also provides that the enforcement actions: Comments recommend that HUD HA may deny or terminate assistance for should require disclosure of any —By administrative or judicial action. a family that has committed corrupt or individual or corporation with an —For violation of the Fair Housing Act criminal acts in a federal housing ownership interest of more than 10 or other equal opportunity program. (§ 982.551(k); § 982.552(b)(5)) percent. The HA may require a requirements. The rule provides that the HA may prospective owner to disclose Comments suggest that the HA should reject an owner who has engaged in ownership information, so that the HA only be required to reject an owner ‘‘drug-trafficking’’. (§ 982.306(c)(3)) As can determine if the owner should be because of complaints referred by the defined in the rule (§ 982.4), this term rejected or approved. However, HUD HA to a fair housing enforcement refers to commercial drug-dealing will not direct HAs to require agency. This comment is not adopted. (manufacture, sale or distribution of disclosure, and will not regulate the Rejection of an owner supports federal narcotics), but does not cover illegal nature or form of owner disclosure. fair housing statutes, regardless of drug use. Comments ask why the rule Comments recommend that HUD whether the complaint originated with only allows the HA to reject an owner should allow an HA to reject an owner the HA itself. who engages in drug-trafficking, but not who has used foul language or threats for any other drug-related criminal 2. Discretionary Denial against HA staff or tenants. This activity. HUD believes that the rule is comment is not adopted. The rule provides that the HA has appropriately targeted at allowing the administrative discretion to deny HA to bar drug dealing owners from its 3. HA Policy approval to lease a unit from an owner program. Comments suggest that an HA should in certain other specified cases. The HA may reject an owner with a not have discretion to decide the criteria (§ 982.306(c)) ‘‘history or practice’’ of violating for disapproving owners. The HA The proposed rule would have Section 8 HQS or applicable housing should only determine whether an provided that the HA could deny standards under other federal housing owner has committed an action that is approval if the owner had not paid State programs. (§ 982.306(c)(4)) Comments grounds for disapproval. Comments also or local real property taxes. Comments mistakenly assert that the rule would recommend that the rule should require both support and object to allowing or require the HA to reject a unit if any an HA to use the same criteria for requiring the HA to refuse approval of owner has a history of minor HQS approval or disapproval of all owners. an assisted tenancy on this ground. The violation. In fact, the rule leaves the Comments state that HUD should only final rule permits the HA to deny decision whether to reject an owner to permit disapproval based on reliable approval if the owner has not paid State the HA’s administrative discretion. and credible evidence, and that the HA or local real estate taxes, fines or Comments recommend that HUD should should only be allowed to disapprove assessments. (§ 982.306(c)(6)) The rule define ‘‘history or practice’’. HUD an owner because of ‘‘recent’’ owner does not direct the HA to exercise this believes that this is a sufficient action. authority. Each local HA has description of the case to be covered. The final rule provides that the HA administrative discretion whether or not The individual HA may more precisely administrative plan must include the to reject owner participation for this focus on types of owner behavior that HA policies on disapproval of owners. reason. By rejecting participation of should be reason for rejecting owner (§ 982.54(d)(8)) Since HUD has owners who have not paid local levies, participation. eliminated the requirement for HUD the HA gives the locality leverage for The rule specifies that for purpose of approval of the administrative plan, the collection of delinquent accounts. the provisions on HA disapproval of an HA policies on owner approval are not Under the final rule, the HA may owner, the term ‘‘owner’’ includes a routinely submitted for HUD review or 34672 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations approval. (Of course, HA administrative beginning of the term. (§ 982.305(b)(3)) HA model lease. Comments state that policy and practice are subject to HUD Any new lease or revision must be use of a model lease saves an HA the audit, review and required revision.) approved in advance by the HA, and cost of reviewing leases to assure HAs may only reject owners for any must comply with program compliance with required lease of the grounds listed in the rule. requirements. (§ 982.308(b); provisions. HUD believes that However, HAs retain broad discretion is § 982.309(e)(1)) mandating use of a model lease may deciding whether and how to exercise The rule provides that if the tenant unduly restrict family choice of the authority to reject owners for any of and the owner enter into a new lease or available housing. Owners may refuse to the allowable discretionary grounds. revision, the HA and owner must enter execute program leases in the form of The HA may determine the practicality into a new HAP contract to subsidize the HA-prescribed model lease rather and benefit of rejecting owners for such the tenancy under the new lease or than using a form of lease familiar to the grounds, in the locality, and as applied revision. (§ 982.309(e)(1)) Comments owner. to the circumstances of each individual recommend eliminating the requirement Comments recommend that the HA case. for execution of a new HAP for this should be permitted to disapprove a The decision to reject the owner rests purpose. This recommendation is not lease that does not comply with State or in the discretion of the HA. HUD will adopted. The rule continues to require local law. This comment is adopted. not require the HA to establish any the use of a simple and uniform process The final rule provides that the HA may special type of process or evidentiary for commencement of the assisted review the proposed lease to determine standard. HUD believes that the tenancy—by execution of a lease and if the lease complies with State or local imposition of such requirements would HAP contract in each case. The HAP law, and may decline to approve the discourage HAs from rejecting owners contract expresses the HA’s agreement lease if it does not comply with State or for good and substantial reasons, such to subsidize the tenancy under the new local law. (§ 982.308(f)) It should be as the owner’s practice of renting units or revised lease. emphasized, however, that the federal that violate local code. The rule 3. Contents of Lease rule does not require that the HA review confirms explicitly that owners do not the lease for compliance with State or The proposed rule would have have a right to participate in the local law. The decision to undertake required the lease to include word-for- program. (§ 982.306(d)) Therefore the such review, or to decline lease word all provisions required by HUD, rejection of an owner’s participation approval for this reason lies in the HA’s and barred any provisions prohibited by does not affect any owner right or discretion. HUD. The lease language required by property interest. The HA may exercise HUD is called the ‘‘lease addendum’’. 4. Term of Tenancy its discretion to reject an owner in (§ 982.308(c)(1)) The final rule provides accordance with local policy, and The rule provides that the initial term that the lease must include word-for- available information. of the lease must be for at least one year, word all provisions required by HUD. and must provide for ‘‘automatic G. Tenancy (§ 982.308(c)(2)) The rule provides that renewal’’ after the initial term. The lease if there is any conflict between the 1. Tenant Definition may renew by an automatic indefinite provisions required by HUD (lease extension or by automatic extension for The proposed rule would have added addendum) and other provisions of the successive definite terms (for example, a new definition of the term ‘‘tenant’’. lease, the provisions required by HUD month-to-month or year-to-year). The proposed definition would have shall control. (§ 982.308(c)(3)) (§ 982.309(b) (1) and (2)) provided that a tenant was the ‘‘adult’’ The lease addendum must state that The lease terminates if any of the member of the assisted family who certain types of lease provisions are following occurs: executed the lease as lessee of the prohibited. (§ 982.308(d)) The statement dwelling unit. Comments state that the of prohibited lease provisions for the —The owner terminates the lease. new definition is helpful, and approve certificate and voucher programs in the —The tenant terminates the lease. adding this defined term. proposed rule is the same as language —The owner and the tenant agree to The final rule revised the proposed previously used in the old voucher rule. terminate the lease. definition by removing the provision This language is similar to, but more —The HA terminates the HAP contract. that the tenant must be an ‘‘adult’’ simply and clearly stated, than the —The HA terminates assistance for the member of the family. In the final rule, description of prohibited lease family. (§ 982.309(b)(3)) the term ‘‘tenant’’ is defined as ‘‘the provisions in the old certificate rule. A The term of the lease and the HAP person or persons (other than a live-in- comment recommends that HUD should contract are the same. The term of the aide) who executes the lease as lessee of use the version of prohibited lease HAP contract follows the term of the the dwelling unit’’. (§ 982.4) The rule provisions in the old certificate rule. lease. (§ 982.309(a)(1)) The lease ends text clarifies that a tenant must have This comment is not adopted. when the HAP contract ends. legal capacity to enter into a lease under In all cases, the assisted lease must (§ 982.309(b)(2)(iv)) The HAP contract State and local law. (§ 982.308(a)). include the verbatim language of the ends when the lease ends. lease addendum. An HA may develop a (§ 982.309(a)(2)) 2. Approval of Lease model program lease that may be offered Comments approve the clarification Any new lease or revision must be for use by families and owners. A model that the initial lease term is one year. approved by the HA. Before approval, lease must include the language of the Comments also approve the new the HA must determine that the lease lease addendum, and must comply with language on automatic extension of the meets program requirements under the program requirements. However, the initial year term, noting that the new rule. (§ 982.308(b)) new rule prohibits the HA from regulation clears up confusion under the A lease must be executed by the requiring families and owners to use a prior rule. (§ 982.309(b) (1) and (2)) tenant and the owner before the model program lease prescribed by the The owner may offer the family a new beginning of the lease term. HA. (§ 982.308(c)(2)) lease, for a term beginning at any time (§ 982.305(b)(2)) The lease must also be HA comments object to the after the initial term. The owner must approved by the HA before the prohibition against requiring use of an give the tenant at least 60 days written Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34673 notice of the offer. Comments determined by the court in the owner’s The rule permits an owner to evict the recommend that the owner should also eviction action. The good cause tenant for drug-related criminal activity be required to send the HA a copy of the provisions in the present rule are largely ‘‘on or near’’ the premises. offer. The comment is adopted. the same as provisions promulgated by (§ 982.310(c)(3)) Comments state that (§ 982.309(e)(2)) the Department in 1984 for the the program should not assist persons Rent to the owner and the family certificate program (and subsequently who engage in drug-trafficking, whether share of rent may change during the incorporated in regulations for the the activity occurs on or off the assisted lease. The rule does not require voucher program). In the preamble to premises. The law provides that the the execution of a new lease or HAP the 1984 rule, the Department noted owner may terminate tenancy because contract for a change in family share in that: of any drug-related criminal activity ‘‘on accordance with HUD requirements, or ‘‘a comprehensive regulatory definition of or near’’ the assisted premises. (42 a change in rent to owner in accordance good cause in the Section 8 Existing Housing U.S.C. 1437f(d)(1)(B)(iii)) The language with the HA approved lease. Program (i.e., the certificate program) is of the HUD rule follows the eviction 5. Termination of Tenancy neither possible or desirable. The good cause standard prescribed in the law. category should remain open to case by case During the term of an assisted lease, The rule and the statute provide that determination by the courts. It is a prime an owner may not evict a tenant for drug an owner may terminate an assisted virtue of this statutory category that it permits termination by owner in types of crime unless the crime takes place ‘‘on tenancy for serious or repeated violation or near’’ the housing (unless the of the lease, violation of tenancy cases which cannot be readily foreseen.’’ (49 FR 12233, March 29, 1984) behavior is a serious or repeated lease obligations under federal, State or local The rule recites key ‘‘examples’’ of violation or is otherwise ‘‘other good law, or other good cause. (42 U.S.C. cause’’ for eviction of the tenant). 1437f(d)(1)(B)(ii); § 982.310) The final cases that may be good cause, but explicitly states that ‘‘other good cause’’ However, the HA may terminate rule provides that the owner may program assistance for drug-related terminate tenancy for these grounds is not limited to the listed examples. In the 1984 rule, HUD stated that: criminal activity or violent criminal ‘‘during the term of the lease’’. activity by a family member, regardless (§ 982.310(a)) The federal requirements ‘‘The good cause concept should be of where the criminal activity takes for termination of tenancy only apply flexible and open to application in concrete cases, but there is a critical need to provide place. (§ 982.553) HUD has explained during the term of the assisted lease, but the reason for this policy: do not apply after a termination of the explicit regulatory assurance to prospective assisted lease—for example, where the section 8 owners that legitimate owner ‘‘The Department has not limited the concerns will be recognized as grounds for proscribed (drug-related or violent criminal) lease has terminated automatically termination of tenancy * * *. (T)his because the HAP contract has activities under this rule to activities carried assurance may be essential to promote broad out on or near the premises. Section 8 terminated. participation by owners.’’ (Id.) certificates and housing vouchers are a very Other Good Cause Criminal Activity mobile form of housing assistance. The holder can lease suitable housing with As under the old rule, the rule The rule provides that the owner may Federal subsidy assistance anywhere in the provides that ‘‘other good cause’’ for evict a tenant for any criminal action PHA’s jurisdiction, in the metropolitan area, termination of tenancy by the owner that threatens persons who reside in the or in a contiguous metropolitan area. If a may include, but is not limited to, any ‘‘premises’’ or the ‘‘immediate vicinity’’. PHA were (only) permitted to terminate of the following examples: (§ 982.310(c)) In the rule, ‘‘premises’’ is assistance for activities on or near the —Failure by the family to accept the defined as the building or complex in assisted premises, the deterrent effect of this which the dwelling unit is located, policy would be substantially diminished offer of a new lease or revision; because the family could lease housing —A family history of disturbance of including common areas and grounds. outside the area where the family member neighbors or destruction of property, (§ 982.4) Comments support allowing engages in the proscribed activities. or of living or housekeeping habits eviction because of threats to persons Furthermore, if the rule were limited to resulting in damage to the unit or who reside in the vicinity. However, activities engaged in on or near the premises premises; comments also recommend that HUD which are being leased with Section 8 —The owner’s desire to use the unit for should allow the owner to evict because assistance, the rule would not authorize a personal or family use; or of criminal activity that is a threat to the PHA to deny Section 8 assistance to a former —A business or economic reason for owner’s representative or staff. public housing tenant evicted for drug- termination of the tenancy (such as An owner may only terminate a dealing in public housing * * *.’’ (55 FR sale of the property, renovation of the tenancy in Section 8 existing housing 28538, 28540, July 11, 1990) unit, desire to lease the unit at a for the grounds specified in the law. (42 The lease terminates when the HA higher rental). (§ 982.310(d)) U.S.C. 1437f(d)(1)(B)) The rule terminates assistance for the family. Comments recommend that HUD give implements statutory provisions which (§ 982.309(b)(3)(v)) more definition of ‘‘other good cause’’, explicitly confirm that the owner may Under the law and this rule, the and suggest that the existing provisions evict a tenant for criminal activity that owner may evict for drug crime ‘‘on or have been used as ‘‘legal loopholes’’ for is a threat to residents. The statute does near’’ the premises. Comments suggest owner eviction of tenants. The not refer to criminal activity that is a that the rule should cover crime in an recommendation is not adopted. The threat to other persons, who do not adjoining street, alley or other public statute permits eviction after the first reside in the housing or the vicinity, right of way. In this rule, HUD tracks the year for ‘‘other good cause’’, as well as and does not refer to representatives of statutory standard, and does not attempt for family violation of the lease. the owner. However, threats or harm to to further define when a crime location Eviction for good cause is not a owner representatives by the assisted is considered ‘‘near’’ the assisted project ‘‘loophole’’, as asserted by the comment, household or its guests may be ground or building. In general, this standard but is a ground for eviction specifically for eviction if the threatening activity would cover drug crime in a street or provided in the statute. If an owner constitutes a serious or repeated lease other right of way that adjoins the seeks to evict for this reason, the violation or is ‘‘other good cause’’ for project or building where a Section 8 existence or non-existence of cause is eviction of the tenant. unit is located. A landlord-tenant court 34674 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations can apply the statutory standard to the of eviction allows time for the tenant to taken to avoid the termination. circumstances of a particular case. negotiate a resolution, and gives an (§ 982.455(b)(4)(i)) The final rule adds a opportunity for the HA to protect both new provision clarifying that the owner 6. Nature of Assisted Tenancy the tenant and the HA interest. may proceed with eviction whether Comments claim that the rule The final rule clarifies that the owner HUD approves or disapproves, or fails to provides for a perpetual lease, and must give notice of the grounds for complete the required review of the discourages owner participation. eviction at or before commencement of owner notice before expiration of the 90 Comments state that the rule prohibits the eviction action. (§ 982.310(e)(1)(i)) day review period. (§ 982.455(b)(4)(iv)) the owner from selling the assisted unit, The notice may be included in, or may For a unit assisted under the and allows the HA to reduce owner be combined with, any other owner certificate program, the proposed rule rents at will. Comments state that rule eviction notice to the tenant. would have provided that when HUD should allow termination of tenancy (§ 982.310(e)(1)(ii)) Such other owner received notice of an opt-out or without cause by the family or the eviction notice means a notice to vacate, expiration, HUD would have been owner after the first year of the lease or a complaint or other initial pleading required to offer the owner the term. Comments assert that the owner is used under State or local law to opportunity to enter into a new HAP locked in, whereas the family can commence an eviction action. contract at the maximum rent allowed terminate the lease on 60 days notice at (§ 982.310(e)(2)(i)) for a new program tenancy (subject to the end of the first year. By contrast, Comments recommend that the rule the FMR/exception rent limit and the other comments claim that the rule require notice with sufficient specificity reasonable rent limit). The final rule undermines existing protections for the to prepare a defense. The rule does not provides that HUD must offer a new tenant. specify the form or contents of the HAP contract only when the owner In fact, the rule does not undermine statutory notice. The rule also does not gives notice of an opt-out, but not in the existing protections for the tenant or the prescribe the point at which the notice case of an expiration. owner. Rather, HUD believes that the must be given, so long as the owner (§ 982.455(b)(4)(ii)(B)) rule reflects a reasonable balance gives notice of grounds at or before Comments recommend that the 90 between the interest of the assisted commencement of the eviction action. days notice procedure should apply to tenant and the owner within the context Comments propose that the owner a termination because an owner wants of the existing law. On the one hand, the should be required to notify the HA at to use the unit for personal or family lease protects the tenant against the same time as the tenant. The final use. HUD should evaluate the arbitrary and ungrounded termination rule provides that the owner must give lawfulness of the termination, and offer by the owner. On the other hand, the the HA a copy of any owner eviction incentives for the owner to keep the unit owner is not locked in, but may notice to the tenant. (§ 982.310(e)(2)(ii)) in the program. This comment is not terminate the tenancy for lease violation adopted. In the tenant-based programs, Termination of HAP Contract—90 Days or other good cause. an ‘‘opt-out’’ only applies to an owner’s Notice After the initial year, the family may termination of tenancy for a business or terminate the tenancy on notice to the The owner must give 90 days notice economic reason. owner. After the initial year, the owner before a termination of a tenant-based Comments recommend that the may terminate the tenancy for other HAP contract because of: requirement to give notice of grounds good cause—specifically including a —Owner ‘‘opt-out’’. for eviction should not apply to an ‘‘business or economic reason’’ for —‘‘Expiration’’ of the HAP contract. owner opt-out. This comment is not termination of the tenancy. The rule The owner must give written notice of adopted. Owner’s 90 days opt-out notice does not, as claimed by the comments, the termination to the family, the HA must state the reasons for the prohibit the owner from selling the unit. and HUD. (42 U.S.C. 1437f(c)(9) and termination, and will simultaneously The rule specifically states that a (10), § 982.455(b)(3)) satisfy the requirement to give notice of business reason for termination after the The rule provides that expiration grounds for termination. initial year may include ‘‘sale of the occurs in two cases: 8. Rent property’’. (§ 982.310(d)(1)(iv)) —Automatic termination of the HAP 7. Notice by Owner contract. The proposed rule would Nonpayment of Housing Assistance have provided that the contract Payment Notice of Grounds for Termination terminates automatically three The final rule provides that the family By law, the owner must give the months after the last housing is not responsible for payment of the tenant a written notice that specifies the assistance payment. The final rule portion of rent to owner covered by the grounds for termination of tenancy. (42 now provides that the HAP contract housing assistance payment under the U.S.C. 1437f(d)(1)(B)(iv)) terminates six months (180 calendar HAP contract between the owner and The proposed rule would have days) after the last housing assistance the HA. (§ 982.310(b)(1); provided that the owner’s notice of payment. (§ 982.455(a)) § 982.451(c)(4)(iii)) The HA failure to grounds for termination could have —A HUD determination to terminate the pay the housing assistance payment to been combined with and run HAP contract because there is the owner is not a violation of the lease concurrently with any notices required insufficient funding to support between the tenant and the owner. under State or local law. Comments continued assistance for the family. During the HAP contract term, the suggest that the owner should be ‘‘Opt-out’’ refers to owner termination owner may not terminate the tenancy of required to give the notice of grounds of tenancy for a business or economic the family for nonpayment of this with owner’s notice to vacate, not later reason. (§ 982.455(b)(2)(ii); see 42 U.S.C. amount. (§ 982.310(b)(2)) with the summons, complaint or other 1437f(c)(9)) pleading. HUD should require a On receiving the owner notice, the Application of Tenant Payments minimum notice period before HUD field office must review the notice Comments recommend that the rule commencement of the eviction action. and consider whether there are should specify how tenant payments are The comment notes that advance notice additional actions which should be applied. The comments state that HUD Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34675 should require that tenant payments payment of any such late fee. The HA the tenancy during the first year, or that must first be applied to current rent, and may not use other Section 8 program the tenant may terminate on one day or that any excess should be first applied receipts to pay a late fee to the owner. other short notice. In fact, there is to other rent, and only then to other nothing in the HUD rule or HUD- 10. Termination and Notice by Family non-rent purposes. The comment is not prescribed lease addendum permitting adopted. HUD has no reason for such Notice of Termination or Move the tenant to terminate the lease during micromanagement of the Section 8 The family may terminate a lease after the first year of the lease term. tenancy. HUD will leave such questions the first year. The lease may not require The Section 8 tenant may terminate for resolution in accordance with the the family to give the owner more than the lease at any time after the first year. lease and local law. 60 days notice of the termination. (§ 982.309(d)(1)) The program rule and 9. Owner Late Fee (§ 982.309(d)(1)) lease addendum only provide that the lease may not require the tenant to give As in the past, the rules do not The family must notify the HA before moving from the unit, and must give the more than 60 days notice to the owner. include any federally-imposed In other respects, the particulars of the limitation on owner charges of fees HA a copy of any lease termination notice by the family to the owner. tenant’s right to terminate the tenancy against the tenant for late payment of depend on local law and the terms of rent in accordance with the lease and Failure to notify the HA before the family moves, or to give the HA a copy the tenant’s lease. State and local law. Comments In allowing the tenant to terminate recommend that the rule should limit of the family’s termination notice to the owner, is a breach of family obligations after the first year (on no more than 60 owner late fees, should allow a grace days notice to the owner), the rule seeks period for late payment of rent, and under the program. (§ 982.309(d)(2); § 982.309(f); § 982.551(g)(2)) to provide rough symmetry between the should prohibit eviction for non- legal positions of the tenant and the payment of late fees. The comments are Family’s Right To Terminate the Lease owner. During the first year, an owner not adopted. may not terminate the tenancy for HUD seeks to minimize interference Comments express some confusion concerning the family’s right to ‘‘other good cause’’ unless the owner is in the relationship between landlords evicting because of some action or non- and assisted tenants in order to terminate the lease on notice to the action by the family. (§ 982.310(d)(2)) encourage owner participation in the owner (under the existing and the After the first year, the owner may program. In these programs, any proposed rule). Some comments state terminate for any ‘‘other good cause’’ regulation of tenant-paid late fees will that the family can move on one day or (including termination for a business or be left to local policy, rather than other short notice to the landlord. Other economic reason), not limited to encumbered by special HUD-imposed comments state that such short notice to termination because of action or non- requirements that only apply to a landlords is unfair, discourages owner action by the family. After the first year, subsidized tenancy. HUD also believes participation, and is inconsistent with the tenant may terminate the lease on that owner assessment of late fees can standard leasing practice. Other notice to the owner. perform a legitimate role as an comments assume that the tenant is encouragement for timely payment of required to give 60 days notice. 11. Security Deposit and Owner Claims the tenant share of rent. Comments recommend that the family When Family Moves The owner receives the total rent should be required to give the owner (‘‘rent to owner’’) from two sources—the and the HA at least 30 days notice of Proposed Rule housing assistance payment portion termination. Comments state that the The owner may collect a security from the HA, and the tenant portion family should be required to give deposit from the family. As in the past, from the family. Comments propose that minimum notice to the owner in the proposed rule would have limited HUD should prohibit charging late fees accordance with State and local law. the amount of the security deposit. The to the tenant for delays in the HA Comments ask HUD to clarify the proposed rule would have provided that payment to the owner. The rule is relation between termination by tenant the maximum security deposit was one revised to clarify the respective notice, and the provisions for definite or month’s rent. obligations of the HA and the family to indefinite extension of the initial lease The proposed rule would have the owner for payment of the HA and term. provided that an owner could claim tenant portions of the rent, and for late Some Section 8 lease requirements are reimbursement from the HA for tenant fees for late payment by the HA or the prescribed by HUD. These requirements damage and unpaid rent. The owner tenant. The rule now provides that the are contained in the required ‘‘lease could collect a claim for one month’s tenant is not responsible for paying the addendum’’. Except for these program rent minus the maximum security HA share of the rent. This change will lease requirements, the terms of a deposit allowed by the HA. Under the eliminate any basis for a late charge Section 8 tenancy—like any private proposed rule, the HA could therefore against the tenant for the HA share of market tenancy—are governed by State have eliminated owner reimbursement the rent. law and the language of the particular claims by permitting the owner to The final rule is revised to confirm lease executed by the tenant and the collect one month’s rent as a security that the HA must pay the owner owner. The individual lease between a deposit. promptly when the housing assistance particular tenant and owner contains payment is due in accordance with the both the standard lease addendum and Comments HAP contract. (§ 982.451(c)(5)) In any other lease provisions agreed by the Comments make various addition, the rule provides that if the parties. recommendations concerning the HA fails to make timely payment, the A tenant’s right to terminate the lease, amount of the maximum security HA ‘‘may be obligated’’ to pay a late fee and the length of any required deposit. Some comments claim that a ‘‘in accordance with State or local law’’. termination notice, depend on the terms tenant can’t afford to pay a one month However, unless authorized by HUD, of the lease. It is not true, as assumed deposit. Comments claim that the the HA may only use administrative fee by some comments, that the rule gives authorization to collect one month’s income or administrative fee reserve for a Section 8 tenant the right to terminate rent as a security deposit forces the 34676 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations family to lease a unit where the rent is deposit from its own pocket creates a necessary or desirable to give program low. Comments recommend that the greater incentive to avoid damage to families a reasonable access to units in security deposit should be one month’s the unit, and owner claims against the the rental market. The voucher program family contribution (generally 30 security deposit. has functioned well without this percent of family income). —The elimination of owner claims incentive to owner participation. Comments recommend allowing relieves a major administrative owner damage claims for up to two burden. The old owner claim 13. New Rule: Effect on Existing months rent. These comments assert procedure forced HAs to determine Tenancy that the damage claim protection is an whether a unit was damaged during Comments ask how the changes under important tool in persuading owners to occupancy, and whether any damage this rule affect existing tenancies, and rent to program families. Other was the fault of the tenant. Under the HAP contracts, that were entered before comments suggest that it would be old system, it was often hard for the the new rule. Comments ask if existing better to eliminate owner claims by HA to know who caused unit damage, HAP contracts continue until increasing the maximum allowable and to sort out bona fide owner termination, or if contracts must be security deposit. Family payment of the claims. Elimination of the old claim amended at the next recertification. security deposit promotes family system eliminates the need to develop Comments express concern that the responsibility. The security deposit and operate a claims process that is mode of implementing new regulatory gives the tenant an incentive to fair to both families and owners. requirements may cause administrative minimize the owner’s claim for damage —Since HAs will not pay owner claims, burden and expense. or unpaid rent. HAs will not deny or terminate Nothing in the rule overrides or Comments recommend that HUD assistance for failure to pay such impairs the terms of outstanding HAP should direct HAs to comply with a claims. The change will tend to contracts or leases entered into under federally-mandated timetable for eliminate over time issues concerning the old regulations. The rights of owners processing of owner claims. denial or termination of a family’s and tenants are determined by the assistance for failure to reimburse provisions of existing HAP contracts Final Rule amounts paid by the HA in owner and leases. Owners and tenants are not The final rule eliminates the right of claims on behalf of the families, required to enter into new HAP the owner to claim reimbursement from including the need for repayment contracts and leases. Housing assistance the HA for damages or other amounts agreements or for hearings to payments will be made to the owners in owed by the tenant under the lease. In determine whether an owner’s claim accordance with the terms of the this respect, the assisted tenancy will was properly paid. existing HAP contracts. function more like an ordinary tenancy —Elimination of the old claim system An HA may encourage owners and in the private market. The owner must saves both the amounts paid out in tenants to execute new leases and HAP look to the tenant for payment of any claims and the cost of administration. contracts, in place of the existing damages. 12. HA Payment After Family Move-Out contracts. However, the HA is not The final rule also eliminates the required to convert the old contracts, HUD-imposed limit on the amount of The rule provides that if a family and may not force the owners and owner security deposits. The rule moves out, the owner may keep the families to execute new contracts in provides that the owner may collect a housing assistance payment for the accordance with the new requirements. security deposit. (§ 982.313(a)) The HA month when the family moves out. The Any HAP contract entered into after the is not required to set any limit on the HA may not make any further payments. effective date of the new rule must owner security deposit. However, the (§ 982.311(d)(1)) Comments state that comply with requirements of the rule, HA has discretion to prohibit security HUD should allow vacancy payments and must be executed on the HUD- deposits in excess of private market for an additional month. The comments prescribed form. Similarly, the HA may practice, or in excess of security claim that an additional vacancy not approve any new lease or revision deposits for the owner’s unassisted payment is an incentive for owner unless the lease is in accordance with units. (§ 982.313(b)) participation, and is needed to attract the new rule. HUD believes that these changes tend owners of higher quality units. to produce significant benefits. Comments state that the elimination of H. Illegal Discrimination—HA Help for —Elimination of unnecessary vacancy claims for the month after Family distinctions between the tenant-based move-out is unfair to participating Several provisions of the proposed program and a private market tenancy owners. rule indicate that an HA must help a encourages broader participation by The final rule provides, as proposed, family that can’t lease a unit because of owners of units outside of areas of that payments will not be made after the illegal discrimination. Comments ask minority and high poverty month of move-out. In the voucher HUD to state what the HA should do to concentration. program, the statute prohibits assistance assist the family. The final rule requires —The owner can no longer rely on the payments after the month the unit is that when a family claims that illegal HA to pay tenant damages or unpaid vacated. (42 U.S.C. 1437f(o)(4)) The discrimination prevents the family from rent. This change gives the owner a provision of a vacancy payment absorbs leasing a suitable unit under the stronger motivation to screen assisted funds that can be used to subsidize program, the HA must give the family families the same as for unassisted actual occupancies. Further, the use of information on how to fill out and file private market tenants, and to check subsidy payments for vacant units is an a housing discrimination complaint. for unit damage during occupancy. unnecessary departure from normal (§ 982.304) —This change in turn reinforces the private market incentives and practice. incentive for a program family to take In the tenant-based programs as in the I. When Housing Assistance Payments care of its unit before and during private market, owners can charge a rent May Be Paid to Owner assisted occupancy. comparable to rents for a private The proposed rule would have —As suggested by comments, the need unassisted rental. HUD is not persuaded provided that the HA could only have for the tenant to make a larger security that this additional incentive is made housing assistance payments to Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34677 the owner for a period the dwelling unit HA discretion to establish policies on portability. Some comments recommend was leased to and occupied by the the length of family absence from an that HUD should establish uniform rules family. The final rule provides that: assisted unit: on family absence. —Housing assistance payments shall be —The HA should not have any right to Comments also contain a wide range payable to the owner in accordance terminate subsidy because of family of recommendations on the maximum with the terms of the HAP contract. absence. length of absence from the unit (from 30 —Housing assistance payments may —The HA should have total discretion days to one year), and of factors that only be paid to the owner during the to set policy on family absence. should affect the period in which the lease term, and while the family is —The HA should have discretion to set HA continues payments for an residing in the unit. (§ 982.311(a)) policy within limits established by unoccupied unit. For example, The final rule also specifies that HUD. comments propose allowing a longer housing assistance payments terminate —HUD should set policy on family maximum absence period for cases if: absence. The HA should not have where the resident is absent because of documented illness or employment; or —The lease terminates, discretion to determine the policy. —The HAP contract terminates, or Some comments object to granting the that assistance should be terminated —The HA terminates assistance for the HA any power to limit family absence. immediately if the resident is family. (§ 982.311(c)) The HA should not be permitted to imprisoned. Comments propose that the maximum absence period should be the The final rule clarifies the principles terminate assistance unless the family same as the period for automatic governing continuation of payments to abandons the unit. The family should be treated like any renter. Comments also termination of assistance where the HA an owner during an eviction. The final has not made any assistance payment rule provides that: object to requiring that the family must only use the assisted unit for residence under the HAP contract (i.e., where the ‘‘Housing assistance payments terminate income-based family share equals the when the lease is terminated by the owner in by the family. Comments state that this requirement burdens the family’s full rent to owner). accordance with the lease. However, if the Comments note that assistance should freedom of movement and choice of owner has commenced the process to evict terminate right away if the family has occupation. the tenant, and if the family continues to permanently vacated the unit. The HA reside in the unit, the HA must continue to Comments state that the HA should should have power to determine make housing assistance payments to the not establish a fixed cut-off because of owner in accordance with the HAP contract whether the family has vacated the unit. family absence from the units. The HA Comments state that the HA must give until the owner has obtained a court should consider the facts of each case, judgment or other process allowing the the family notice and opportunity for a including the length and reason for hearing before terminating assistance owner to evict the tenant. The HA may absence, and the family’s intention to continue such payments until the family because of family absence. moves from or is evicted from the unit.’’ return. The HA should not be allowed (§ 982.311(b)) to terminate assistance where the Absence From Unit: Final Rule resident is absent: The final rule provides that: ‘‘The J. Absence From Unit —Because of employment, such as family may be absent from the unit for Occupancy of Unit by Family absence of a migrant worker. brief periods. For longer absences, the Section 8 is intended to provide —Because the resident is in drug HA administrative plan establishes the subsidy for a unit leased to and treatment or prison. HA policy on how long the family may occupied by a low-income family. (See —Because the resident is in a nursing be absent from the assisted unit. 42 U.S.C. 1437f) The family is obligated home. However, the family may not be absent to use the assisted dwelling for Comments state that an HA’s absence from the unit for a period of more than residence by members of the family. policy should distinguish between 180 consecutive calendar days in any (§ 982.551(h)(1)) The unit must be the voluntary absence, as opposed to circumstance, or for any reason. At its family’s only residence. absence because the resident is being discretion, the HA may allow absence The proposed and final rule state that treated for a disability. Comments state for a lesser period in accordance with the HA administrative plan must that the HA should not terminate HA policy. (§ 982.312(a)) include provisions governing how long assistance unless the family fails to pay ‘‘Absence’’ is defined to mean that no the family may be absent from the for rent or utilities. Comments claim member of the family is residing in the dwelling unit, and under what that termination of assistance because of unit. (§ 982.312(c)) circumstances. The final rule includes a family absence discriminates against The HA has broad discretion to set more complete statement regarding HA single person families, and violates the local policy on family absence, but must policy on absence of the assisted family Constitutional right to travel. state these policies in the HA from the unit. (§ 982.312) Most comments agree that HAs administrative plan. (§ 982.54(d)(10); The proposed rule would not have set should have broad discretion to § 982.312(e)) The policy includes: any HUD-prescribed limit on the length establish local limits on absence from —How the HA determines whether or of family absence from the assisted unit. the unit. Some comments recommend when the family may be absent, and In the proposed rule HUD invited that HAs should have complete for how long. For example, the HA comment on whether the regulation flexibility to determine policies on may establish policies on absences should establish a specific federally absence from the unit, and that HUD because of vacation, hospitalization or defined outer limit on the time for should not set any maximum. Other imprisonment. (§ 982.312(e)(1)) which subsidy may be paid for an comments propose that HAs should —Any provision for resumption of empty unit, for specific causes or for have discretion within outer limits set assistance after an absence, including any cause. by HUD. Comments state that a HUD- readmission or resumption of imposed maximum is appropriate so assistance to the family. Absence From Unit: Comments that practices of different HAs are (§ 982.312(e)(2)) Public comments contain a spectrum consistent. Comments note that The final rule requires termination of of recommendations on the degree of consistency is desirable because of housing assistance payments if the 34678 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations family is absent from its assisted unit for cooperate with the HA for this purpose. —Whether the assistance should remain longer than the maximum permitted (§ 982.312(d)(1); § 982.551(i)) The HA with family members remaining in the absence. The term of the HAP contract may adopt appropriate techniques to original assisted unit. and assisted lease also terminate. verify family occupancy or absence, —The interest of minor children or of (§ 982.312(b)) Before terminating including letters to the unit, phone ill, elderly or disabled family payments under the HAP contract, the calls, visits, or questions to the landlord members. HA must give the family the or neighbors. (§ 982.312(d)(2)) —Whether family members are forced to opportunity for an informal hearing. leave the unit as a result of actual or (§ 982.555(a)(1)(vi); § 982.555(a)(2)) The K. Family Break-up threatened physical violence against owner must reimburse the HA for any The proposed and final rule provide family members by a spouse or other housing assistance payment for the that the HA administrative plan must member of the household. period after the termination. describe the HA’s discretionary policies —Other factors specified by the HA. (§ 982.312(b)) on how to determine who remains in (§ 982.315(b)) Under the final rule, the HA has great the program if an assisted family breaks The HA is not required to devise a flexibility to establish local policies on up. (final rule § 982.315) Resolution of complete set of rules for disposing of the tenant absence, including different rules these issues is left to HA discretion in issues posed because of family break-up. on the length of allowable absence in accordance with the HA policy. The HA is free to leave room for case by different circumstances. The family may Comments generally agree that HUD case decision, based on the be absent for ‘‘brief’’ periods. However, should leave resolution of such issues to circumstances of individual cases. The a family may not be away from the unit the HA, and that the rule should HA is merely required to adopt a for more than 180 consecutive days in confirm that the HA’s decision is final, procedure for handling these issues, and any circumstances. The HA has broad and not subject to appeal. Some to state the procedure in the discretion to set policy for absences of comments request more guidance on administrative plan. Under this rule, the less than 180 days. how the HA should exercise its HA is not required to routinely submit As suggested by some comments, the discretion. the administrative plan, including the 180 maximum absence interval is the Other comments assert that HUD HA family break-up policy, for HUD same as the interval for termination of should establish a national policy on review or approval. the assistance contract because no who keeps the Section 8 subsidy after a The final rule provides that when a assistance is paid (termination because family break-up. These comments object court determines the disposition of family contribution equals the to granting discretion for local HAs to property between members of the maximum HUD subsidy). (§ 982.455(a)) decide these issues, and object to the assisted family in a divorce or In the case of family absence, assistance separation under a settlement or judicial payments are terminated so that the HA lack of regulatory guidance for exercise of this discretion. These comments state decree, the HA is bound by the court’s does not waste subsidy by continuing to determination of which family members pay for an empty unit. In the case where that the absence of guidance may lead continue to receive assistance in the no assistance has been paid for 180 to arbitrary and inequitable results, or program. (§ 982.315(c)) days, the assistance contract is violations of the Fair Housing laws. terminated so that the program slot can Comments suggest various factors or V. Where Family Can Live and Move be freed-up and used for another family interests that could be considered in A. Eligible Housing (even though the unit is occupied and deciding who receives assistance after a the HA is not making any payment for breakup: The rule provides that Section 8 the unit). —Whether assistance should stay with tenant-based subsidy may not be used As suggested by comments, HAs must the family members who remain in for certain types of housing, and may distinguish between cases of prolonged the unit (during or after the initial not be combined with certain other absence from a unit, and cases where lease term). types of housing subsidy. (§ 982.352) the family simply moves out of the unit. —The interest of children. The final rule revises several provisions If the family moves out, the HA may not —Spousal abuse. on this subject. continue assistance after the month —Medical condition. 1. HUD-Owned Unit when the family moves out. If the family —Special needs of a disabled family has not moved out, but is absent from When the proposed rule was member for accessibility features. the unit, the HA may elect to continue published, the law provided that a assistance payments for a maximum of The final rule confirms that the HA Section 8 ‘‘owner’’ must be either a 180 days, as determined in accordance has authority to determine which family ‘‘private’’ person or entity, or a public with the HA policy. members continue to receive assistance housing agency. (42 U.S.C. 1437f(f)(1)) In practice, of course, HAs will be after a family breaks up. The HA policy HUD is neither a private entity nor a confronted with difficult problems in must describe how the HA determines public housing agency. For this reason, determining whether a family is actually what family members will remain in the the proposed rule would have living in, has moved out, or is otherwise program if the family breaks up. prohibited assistance for a unit that is absent from the unit; and in determining (§ 982.315(a): § 982.54(d)(11)) The final owned by HUD. However, the law was the length or reason for family absences. rule makes clear that the HA has broad amended in 1994 to provide that an Under this rule, a family is obligated to discretion to decide these issues. The owner may be ‘‘an agency of the Federal notify the HA before the family moves rule does not require the HA to use any Government’’. (Pub. L. 103–233, April out. (§ 982.309(f)) However, the family particular procedure for making such 11, 1994, section 101(d), 108 Stat. 357, may fail to give this notice. The HA may decisions, and does not require the HA amending the Section 8 ‘‘owner’’ be uncertain whether the family moved to consider any particular factors. The definition) This amendment was out or intends to return after an absence. rule confirms, as suggested by public intended to permit HUD to receive The final rule specifies that the family comments, that the factors to be Section 8 housing assistance payments is obligated to give the HA information considered by the HA in making this as a Section 8 owner when HUD takes on family absence from the unit, and to decision may include: title to units covered by a Section 8 HAP Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34679 contract. Because of the statutory a federal, State, or local government. selected by the family, without HA change, the final rule deletes the (§ 982.352(c)(9)) This prohibition is pressure or steering. (§ 982.352(b)(i)) prohibition against use of HUD-owned intended to promote maximum coverage 4. Overlapping Assistance units. from available public subsidy resources, to avoid waste of scarce Section 8 A participant family may move to a 2. Prohibition of Other Subsidy subsidy, and to avoid windfall new unit with continued tenant-based The rule prohibits assistance for a payments to a subsidized family or assistance. Comments ask whether the unit that benefits from ‘‘duplicative’’ owner. assisted lease for a new unit can housing subsidy from a federal, State or The rule provides that HUD has commence before the termination of local source. (§ 982.352(c)(9)) The authority to determine whether a assistance on the prior unit, or whether proposed rule would have added a new particular housing subsidy source is any overlap of assistance is a prohibited provision that also prohibits assistance ‘‘duplicative’’. However, the rule double subsidy. for a unit receiving, or which received specifies that for this purpose housing A new provision is added to make in the past 5 years, a local or State subsidy does not include the housing clear that the term of the assisted lease mortgage interest subsidy, construction component of a welfare payment, a for a new assisted unit may begin during or rehabilitation subsidy or project- social security payment received by the the month the family moves out of the based rent-subsidy. family, or a rent reduction because of a first assisted unit. Overlap of the Public comments object to the tax credit. housing assistance payment for the proposed prohibition of assistance for In the voucher program, a family may month when the family moves out and projects that benefit from a State or local choose to lease a unit for a rent the first assistance payment for the new interest subsidy, or construction or exceeding the HA payment standard, unit is not considered to constitute a rehabilitation subsidy. Comments point and the excess rent is not covered by an duplicative housing subsidy. out that this restriction would preclude increase in the Section 8 housing (§ 982.311(d)(2)) use of housing developed with the assistance payment. The family must benefit of State or local subsidy, therefore find funds to pay this B. Portability including housing for the disabled. additional amount. A comment 1. Area Where Family Can Rent Comments note that the development recommends that the rule should allow and rehabilitation subsidies play a a State or local subsidy that covers In the proposed rule, the ‘‘leasing different role from the Section 8 rental excess rent payment by the family, and area’’ was defined as the area where a subsidy. Development subsidy increases thus hold the family share below 30 family can lease a unit with tenant- the supply of affordable housing. percent of adjusted income. This based assistance inside or outside the Although development subsidy reduces comment is not adopted. The final rule HA jurisdiction. In the proposed rule, debt service requirements, operators prohibits any other State or local rent the ‘‘extended operation area’’ was need rent to cover maintenance and subsidy for a family assisted with defined as ‘‘an area which is outside the operating expenses. Rental subsidy Section 8 tenant-based assistance. HA jurisdiction (as determined by State helps families afford the rent. or local law), but is inside the same After consideration of public 3. HA-Owned Housing State, the same MSA, or an MSA that is comment, HUD has eliminated the A family may lease housing that is next to the same MSA’’. The final rule blanket prohibition of Section 8 owned by the HA responsible for does not include either of these terms assistance for housing that has administration of the program. and definitions. benefitted from a State or local subsidy (§ 982.352(b)) By law, an HA may be a The statute requires portability within for construction or rehabilitation, or a Section 8 owner, and the HA as contract the same State, same MSA and a mortgage interest subsidy. HUD agrees administrator may enter into a contract contiguous MSA as the HA. (42 U.S.C. that subsidies to increase the supply of with itself as the Section 8 owner. (42 1437f(r)(1)) Many comments object to affordable housing perform a different U.S.C. 1437f(a)) Because of the inherent expanding portability beyond the same role from Section 8 subsidies for rental conflict in the HA’s roles as contract State as the initial HA. Others of available housing. Section 8 families administrator and unit owner, the recommend national portability, but should not be barred from renting such proposed rule provided that HUD must state that the Department should allow housing. have approved the unit rent before HAs to limit the number of families The proposed rule would have execution of the HAP contract. moving under portability, or require the prohibited use of units that received Comments object to the requirement families to show ‘‘good cause’’. The subsidy in the past 5 years. The final for HUD approval of unit rents. final rule provides that a family may rule does not include any limitation on Comments suggest that approval is not move under portability anywhere in the use of units that received any form of necessary if the rent is within program United States in the jurisdiction of an State or local subsidy before receiving guidelines. Other comments recommend HA administering a Section 8 voucher the Section 8 assistance. The final rule that HUD should establish initial rent or certificate program. (§ 982.353(b)(4)) prohibits a family from receiving tenant- thresholds for the HA program. The HA 2. Portability in First Year After based assistance for housing currently should only need HUD approval if the Admission assisted by a State or local ‘‘rent proposed rents are above the pre- subsidy’’. (§ 982.352(c)(8)) This established level. The final rule revises provisions on prohibition applies whether the rent The final rule retains the requirement portability during the first year after a subsidy is project-based or tenant-based. for HUD approval of the rents for HA- family’s admission to the program. By In addition to the list of specific types owned tenant-based units. law, portability applies during this of housing subsidies that may not be (§ 982.352(b)(iv) and (v)) When a family period if the family is ‘‘living within’’ combined with the Section 8 tenant- wants to rent a unit owned by the HA the HA jurisdiction ‘‘at the time that based subsidy, the final rule continues that runs the program, the HA must such family applies’’ for assistance from to prohibit Section 8 assistance for a inform the family (orally and in writing) the HA. (42 U.S.C. 1437f(r)(1)) unit that is assisted by ‘‘any other’’ that the family may select any eligible The final rule provides that the family duplicative governmental subsidy, from dwelling. The unit must be freely may lease a unit under portability 34680 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations during the first year after admission if where the family is income-eligible at well in all situations, the final rule either the household head or spouse of admission to the receiving HA allows HUD to exercise any of the an assisted family already had a program. (§ 982.353(d)(1)) following options for portability ‘‘domicile’’ (legal residence) in the —If a participant in the initial HA reimbursements: jurisdiction of the initial HA at the time certificate or voucher program is —HUD may transfer funds for assistance when the family first submitted an moving between these programs (the to portable families to the receiving application for participation in the family is either moving from the HA from funds available under the program to the initial HA. initial HA certificate program to the initial HA ACC. (§ 982.353(c)(1)) Generally, transient receiving HA voucher program, or —HUD may provide additional funding occupancy does not constitute legal from the initial HA voucher program (e.g., funds for new units) to the residence in a jurisdiction under State to the receiving HA certificate initial HA to compensate for funds and local law. The individual must program), the family must meet the transferred for portability purposes. intend to establish a home in the eligibility criteria for the program to —HUD may provide additional funding jurisdiction. which the family is being admitted. (e.g., funds for new units) to the If this test is not met, the family does Since a family moving between the receiving HA to reimburse the HA for not have any right to portability during voucher and certificate programs is absorption of portable families. the first year of assisted occupancy. The continuously assisted, the applicable —HUD may require the receiving HA to proposed rule would have provided that income limit is the receiving HA low- absorb portable families. (§ 982.355(f)) in this situation, the family ‘‘may only income limit (80 percent of median It is anticipated that HUD will test all lease a unit in the (initial) HA income) for the area to which the of the portability funding options jurisdiction’’. The final rule specifies family will move. (§ 982.353(d)(2) and authorized by the regulations. In fact, that while the family does not have a (3); see § 982.201(b)(1)) the Notice of Funding Availability —For continued assistance in the same right to portability, the family may lease published in the Federal Register on program, income eligibility is not a unit outside the HA jurisdiction if the March 3, 1995 provides for use of up to redetermined. (§ 982.353(d)(3)) initial and receiving HA voluntarily 50 percent of the fair share allocation of agree to allow a portability move by the 4. Portability—Funding certificate and voucher funding for each family to the jurisdiction of the allocation area to be allocated as receiving HA. (§ 982.353(c)(3)) The proposed rule would have provided that if funding was available, reimbursement to receiving HAs for the 3. Portability—Family Eligibility a receiving HA would be required to costs to assist families that have moved The proposed rule would have absorb the incoming family with under the portability procedures. provided that since a portable family funding under its own consolidated 5. Portability—Billing and had already been determined eligible by ACC. The proposed rule would have Administrative Procedures the initial HA, the receiving HA was not also required that HUD offer funding to The vast majority of comments agreed required to redetermine family the receiving HA to cover the net annual that most problems in administering eligibility for participation in the increase in the HA tenant-based assistance for portable families are program. The final rule provides that program because of portability. These the initial HA is responsible for provisions are not mandated in the final caused by the billing process and determining whether the family is rule. differing HA portability procedures and income eligible in the area where the While the Department received information requirements. In response family wants to lease a unit. positive comments concerning the to this concern, the final rule details the (§ 982.355(c)(1)) However, the receiving mandatory absorption requirement, portability procedures (§ 982.355(c)). HA may opt to conduct a reexamination other comments assert that this The final rule specifies that the initial of income in order to coordinate the approach is flawed. The major concern HA must reimburse the receiving HA anniversary of the HAP contract with was the impact the required absorption ‘‘promptly’’, both for housing assistance the reexamination date, or for other of portable families would have on the payments and administrative fees for a reasons. If the receiving HA opts to receiving HA’s waiting list. By requiring portability family. (§ 982.355(e)(2) and conduct a new reexamination, the HAs to absorb portable families with (3)) HUD may reduce the initial HA’s receiving HA may not delay issuing the any assistance available through new administrative fee for late family a voucher or certificate or funding or turnover, the wait for reimbursement to the receiving HA. otherwise delay approval of a unit applicants at the receiving HA could be (§ 982.355(e)(4)) unless the recertification is necessary to significantly lengthened. Comments The initial and receiving HA must determine income eligibility. express skepticism that appropriated follow financial procedures required by (§ 982.355(c)(4)) funds will fully fund the net annual HUD. The receiving HA must use a Further, the final rule reiterates the increase in the number of families HUD-prescribed portability billing form general program admission absorbed into the receiving HA program. to bill the initial HA for housing requirements (§ 982.201(b)(2)) as Comments recommend that HUD assistance payments and administrative applied to portability: require HAs to absorb a certain number fees. (§ 982.355(e)(5)) The initial and —If the family is not a current of families based on the amount of new receiving HA must comply with billing participant in the initial HA funding or historical turnover rates, and and payment deadlines under the certificate or voucher program, the that HUD reimburse HAs for absorbing financial procedures. applicable income limit for admission families exceeding those thresholds. VI. Dwelling Unit: Housing Quality to the receiving HA certificate Instead of prescribing a portability Standards, Subsidy Standards, program or voucher program is the funding method that relies on allocating Inspection and Maintenance receiving HA income limit for the area appropriated funds that may be where the family will be initially insufficient to reimburse receiving HAs A. Housing Quality Standards (HQS): assisted in the program. The family for portability moves at the desired General may only use the certificate or level, and instead of prescribing The rule provides that the housing voucher to lease a unit in an area detailed procedures that may not work quality standards or ‘‘HQS’’ are the HUD Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34681 minimum quality standards for housing Comments indicate that some HAs bedroom’’. Comments ask for assisted under the tenant-based have been charging families for repeat clarification on whether or not the use programs. Program housing must inspections, and object to this practice. of a different term meant that HUD was comply with HQS, both at initial HUD agrees that charging a family for revising current policy permitting other occupancy and during the term of the inspection of the unit is inappropriate. rooms not classified as bedrooms (e.g., assisted lease. (§ 982.401(a)(1)) The HA The HA earns an administrative fee that a den, living room or dining room with inspects the unit before approving the covers the administration of the tenant- windows) to be counted as a ‘‘sleeping tenancy (§ 982.305(a) and (b)), and must based programs, including HQS room’’. HUD did not intend to change reinspect the unit at least once every inspections. In response to the the policy, which permits families to year. (§ 982.405(a)) comment, the rule is amended to use a room with a window and two Comments note that HUD did not confirm that HA may not charge the electrical outlets as a living/sleeping provide the HA with any latitude to family or the owner for an initial room, to meet the HQS space pass units with minor HQS violations. inspection or a reinspection of the unit. requirement of one bedroom or living/ Comments recommend that HUD allow (§ 982.405(e)) sleeping room for each two persons. HAs to pass units on a conditional basis Editorial changes have been made B. Housing Quality Standards (HQS): throughout the rule to restore the term to enable immediate leasing for at-risk Acceptability Criteria families in desperate need of housing. ‘‘living/sleeping’’. An HA would require the owner of a Comments recommend using local Comments object to the requirement unit with a conditional HQS approval to codes instead of the regulatory HQS, or that persons of opposite sex, other than fully comply with HQS within a recommend adding local code husband and wife or very young specified period of time. requirements to the regulatory HQS. The children, may not be required to occupy HUD has not adopted the final rule states, as proposed, that HUD the same bedroom or living/sleeping recommendation to permit conditional may permit an HA to use acceptability room. An HA comment indicates that approvals of units that fail HQS. criteria variations that are based on local the agency requires unmarried ‘‘live- Conditional HQS approvals were codes or national standards, or may ins’’ who are ‘‘significant others’’ to allowed for the Section 8 certificate permit variations because of local share a bedroom. Comments suggest that program in the 1970’s, but were climatic or geographic conditions. HUD state the requirement as two discontinued because of major (§ 982.401(a)(4)(iv)) persons per bedroom with the proviso that the head of household not be enforcement problems. When The final rule also provides that HUD required to share a bedroom with a conditional approvals were allowed, will not approve HQS variations that child, and let the family make its own many owners did not make promised unduly limit the amount and types of sleeping arrangements. repairs, or HAs did not reinspect the rental housing stock available at or below the FMR that would otherwise The comments indicate confusion conditionally approved units. The goal about the relationship between the HQS of the Section 8 tenant-based programs meet the HQS of the program (e.g., specific square footage requirements for space requirements and the HA’s is to assist eligible families to pay rent occupancy requirements (now called for decent, safe, and sanitary housing. kitchen counter space). (§ 982.401(a)(4)(iv)) ‘‘subsidy standards’’). The HQS space (See 42 U.S.C. 1437, 1437f(a) and requirements set a standard for the 1437f(o)(5)) Assistance for units that do C. Housing Quality Standards (HQS): maximum number of people that can not meet the HQS defeats this goal, and Specific Disposal occupy the unit. The HQS space provides no incentive for owners to 1. Food Preparation and Refuse Disposal standard does not dictate who sleeps in maintain quality housing stock for each bedroom or living/sleeping room. Comment requests that the rental by low-income families. Further, the HQS space requirements acceptability criteria allow microwave Comments suggest that HUD needs to allow space other than bedrooms to be ovens, because some participants are review the whole question of considered ‘‘living/sleeping rooms’’ to willing to live in units that provide appropriate HQS standards. Comments ensure maximum flexibility in them with microwave ovens instead of state that HQS standards are totally determining whether a unit is an oven and/or stove with top burners. inadequate, and that some are too loose overcrowded. In contrast, the subsidy The HQS has been modified to allow and others are ridiculously tight. Other standards set by the HA determine microwave ovens as follows: comment suggests that a Task Force subsidy levels, and are generally based should be assembled to reexamine the —If the oven and stove are tenant- on the ages and sex of the family HQS. supplied: A microwave oven may be members, and on other factors Program experience demonstrates that substituted for an oven and/or stove considered under the HA policy. (See the HQS, when correctly applied and with top burners. § 982.402) administered, are an excellent standard —If the oven and stove are owner- for ensuring minimum livability and supplied: A microwave oven may be Window safety. Alleged problems of the HQS substituted for an oven and/or stove Comment asks if a combination standards often result from inaccurate with top burners if the tenant agrees storm/screen window is lockable, can it interpretations of the standards. For and the owner treats all tenants alike be assumed that the inside window does example, comments on HQS often claim (e.g., microwaves are provided for not have to be lockable. The commenter that requirements concerning gutters, both non-subsidized and subsidized is correct. The rule provides any screens and storm doors are not tenants). (§ 982.401(c)(2)) dwelling unit windows that are essential, and should not be covered by 12. Space and Security accessible from the outside must be the HQS. In fact, these three items are lockable. (§ 982.401(d)(2)(iii)) not HQS requirements. HUD will Space—Bedroom or Living/Sleeping The proposed rule would have continue its efforts to explain the HQS Room provided that windows that are nailed criteria and highlight common The proposed rule would have shut are acceptable if the windows are misunderstandings of HQS deleted the term ‘‘living/sleeping’’ room not needed as an alternate exit in case requirements. and substituted the term ‘‘living/ of fire. Comment suggests that the 34682 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations regulations should be revised to read as The final rule changes the definition porch floor, stair treads in a common follows, ‘‘Windows which are nailed of an elevated blood-lead level (EBL) to stairwell, or an exterior wall.’’ shut are acceptable only if these conform to recommendations of the (§ 982.401(j)(2)) windows are not needed for ventilation Department of Health and Human The requirement to test chewable or as an alternate exit in case of fire’’. Services, Centers for Disease Control surfaces for lead-based paint is amended HUD has adopted this suggestion. (CDC), with respect to blood lead levels to allow laboratory analysis of paint (§ 982.401(d)(2)(iii)) that require environmental intervention. samples. Accordingly, the definition of 3. Thermal Environment This new definition of EBL was also lead-based paint is amended to add 0.5 proposed in the May 12, 1994 proposed percent by weight or 5000 parts per Several comments suggest that HAs rule. The new standard for million (PPM). The final rule includes should be permitted to approve Oxygen environmental intervention would be acceptable treatment methods, Depletion System (ODS) heaters in all equal to or exceeding 20 ug/dl for a prohibited practices, cleanup and tenant rooms not used for sleeping if permitted single test or 15–19 ug/dl in two protection provisions. by local code. The Department has not consecutive tests several months apart. The final rule also requires that the adopted this suggestion. ODS heaters Many people are under the impression owner inform the family and the HA if are unvented space heaters. The HA that the CDC, in its October 1991 the owner has any knowledge of the must request HUD approval of a Statement, ‘‘Preventing Lead Poisoning presence of lead-based paint. In variation in the acceptability criteria. in Young Children’’, effectively lowered addition, the rule adds a requirement for (See § 982.401(e)(2)(ii)) the definition of an EBL to 10 ug/dl. the HA to match the names and 4. Structure and Materials (See, U.S. Department of Health and addresses of Section 8 participants with Human Services, Public Health Service, the names and addresses of children Comment suggests that ceilings, walls that local health officials have and floors requirements be changed Centers for Disease Control, Preventing Lead Poisoning in Young Children, A determined have an EBL. These changes from ‘‘not have any serious defects such were made in response to a May 1994 as severe bulging or leaning, holes, loose Statement by the Centers for Disease Control, October 1991, page 2) It is true GAO briefing report to congressional surface materials, severe buckling, committees. (The report is entitled missing parts, or other serious damage’’ that the Statement indicates that the overall goal is to reduce children’s ‘‘Lead-Based Paint Poisoning—Children to ‘‘must be in good repair’’. The in Section 8 Tenant-Based Housing Are Department has not adopted this blood lead levels below 10 ug/dl. However, the Statement does not Not Adequately Protected’’.) language. Analysis of the need for additional The language in the rule is more recommend medical or environmental intervention at levels of 10–14 ug/dl. changes to the lead-based paint housing specific and less open to subjective quality standard requirements is being interpretations. The Department is, Pursuant to CDC advice in the October 1991 Statement, the Department is also deferred to publication of the proposed however, retaining the word ‘‘large’’ to rule to implement sections 1012 and describe holes that will cause a unit to changing the childhood age of concern from less than 7 years of age to less than 1013 of the Residential Lead-Based fail the HQS standard. Paint Hazard Reduction Act of 1992 and (§ 982.401(g)(2)(i)) 6 years. (§ 982.401(j)) The final rule changes proposed to revise the lead-based paint 5. Lead-Based Paint requirements for the evaluation and requirements for all HUD programs. This final rule adopts much of the treatment of lead-based paint in the May 6. Access 12, 1994 proposed rule. The final rule lead-based paint language in the Comment recommends that HQS describes requirements for testing to proposed rule. However the final rule access requirements should require determine whether paint surfaces also: accessible features for persons with contain lead-based paint, and for —Adds language from a proposed rule disabilities. The Department has not treatment of defective surfaces. published on May 12, 1994 at 59 FR adopted this suggestion. The A defective paint surface must be 24850 concerning evaluation and accessibility requirements for federally treated if the total area of defective paint treatment of lead-based paint. assisted housing are governed by the on a ‘‘component’’ is: —Makes changes to conform to new regulations implementing Section 504 of recommendations of the Department —More than 10 square feet on an the Rehabilitation Act of 1973. The rule of Health and Human Services, exterior wall; requires compliance with disabled Centers for Disease Control (CDC). —More than 2 square feet on an interior accessibility requirements under these —Responds to a May 1994 GAO briefing or exterior component with a large regulations, and with other equal report to congressional committees surface area (other than exterior opportunity requirements. (§ 982.53(a)) entitled ‘‘Lead-Based Paint walls). Such components include Poisoning—Children in Section 8 ceilings, floors, doors, and interior 7. Site and Neighborhood Tenant-Based Housing Are Not walls. Comments object to the inclusion of Adequately Protected’’. —More than 10 percent of the total ‘‘very high crime rate’’ as an example of Comments note that the proposed rule surface area on an interior or exterior a neighborhood condition that would did not delete the requirement for component with a small surface area. cause a unit to fail inspection. repainting an area that has been treated Such components include window Comments indicate that such a for lead paint, and that the requirement sills, baseboards and trim. determination would be a subjective is no longer applicable under 24 CFR (§ 982.401(j)(6)(i)) conclusion by inspectors, and may limit 35.24(b)(2)(ii). The Department For this purpose, component is in certain areas the number of units inadvertently neglected to remove this defined as: available to program participants. Other requirement from the HQS in the ‘‘an element of a residential structure comment requests that ‘‘danger of fire’’ proposed rule. Because the repainting identified by type and location, such as a be deleted or clarified. requirement was eliminated in 1987, the bedroom wall, an exterior window sill, a HUD has deleted ‘‘very high crime final rule does not include the baseboard in a living room, a kitchen floor, rate’’ as an example under the repainting requirement. an interior window sill in a bathroom, a acceptability criteria. Further, ‘‘danger Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34683 of fire’’ has been replaced with ‘‘fire owner. The owner may not terminate market. Comments recommend a six hazards’’, the original wording from the the tenancy of the family for month time frame. The final rule current rules and program handbook. nonpayment of this amount. provides that the HAP contract (§ 982.401(l)) (§ 982.451(c)(4)(iii); § 982.310(b)) (The terminates automatically six months same provision is stated at two points.) (180 calendar days) after the last 8. Smoke Detectors B. Fraud and Other Program Violation housing assistance payment to the The final rule implements the new owner. (§ 982.455(a)). statutory requirements concerning fire The proposed rule would have protection and safety under the Fire provided that an owner breached the E. Late Payment by HA to Owner: Late Administration Authorization Act of HAP contract if the owner committed Fee 1992. (Section 106 of Pub. L. 102–522, fraud or made any false statement in Each month, the HA pays the housing adding a new section 31 to the Federal connection with any federal housing assistance payment to the owner to Fire Prevention and Control Act of assistance program or with a federally subsidize occupancy by the family 1974) The new law prohibits the use of insured mortgage or HUD loan. The under the lease. The rule specifies that housing assistance for certain assisted final rule provides that owner breach the HA is obligated to pay the owner and insured properties, unless various includes fraud, bribery or any other promptly when payment is due to the fire protection and safety standards are corrupt or criminal act in connection owner in accordance with the HAP met. with any federal housing program. contract. (§ 982.451(c)(5)) A comment objects to the provision (§ 982.453(a)(4)) Sometimes an HA may fail to pay the requiring smoke detectors specifically The proposed and final rule provide owner on time. In response to public designed for hearing-impaired persons, that violation of ‘‘any other’’ Section 8 questions, the final rule clarifies that the because the proposed rule did not assistance contract is a breach of the HA may be obligated to pay a late define ‘‘hearing-impaired person’’ and particular tenant-based HAP contract. payment fee in accordance with State or ‘‘hearing-impaired smoke detector’’. (§ 982.453(a)(2)) The HA may terminate local law. However, unless authorized HUD notes that the requirement for a tenant-based HAP contract because the by HUD, the HA may not use program smoke detectors with an alarm system owner has breached a tenant-based or receipts other than the following for for hearing-impaired persons is not new, project-based Section 8 HAP contract payment of any such late payment fee: and has been required by HUD since (between the owner and the same or (1) The HA administrative fee or August 1992. Smoke detectors for the another HA, or between the owner and (2) The administrative fee reserve. hearing-impaired must comply with the HUD). The federal rule does not itself grant detailed technical specifications in Comments assert that it is unfair to an owner any right to a late fee for HA National Fire Protection Association terminate a tenant-based HAP contract delay in payment to the owner. The rule Standard (NFPA) 74 (or its successor with an owner because the owner has is only intended to make clear that the standards). For assistance in breached another Section 8 assistance federal regulatory scheme does not determining specific requirements contract, and recommend that this override State or local law that may give mandated by NFPA 74, HAs should provision be deleted. This the owner a right to recover late fees contact State or local fire safety officials recommendation is not adopted. The from the HA for delinquent payments with jurisdiction over the proposed provision strengthens the HA’s under the HAP contract. property and with expertise concerning authority and leverage to induce owners F. 90 day Owner Termination Notice such requirements. to comply with Section 8 program HUD also declines to define hearing- requirements. The regulatory list of By law, an owner must give notice to impaired person in the rule. Residents provisions which constitute a breach of the family and HUD, 90 days before a who need visual alarms because of the HAP contract is substantially based ‘‘termination’’ of the HAP contract. (42 hearing impairment should advise on language of the assistance contract U.S.C. 1437f(c)(9)) For purpose of the owners and HAs of this need. The forms currently used in the voucher and termination notice requirement, family may request any special certificate programs. (§ 982.453) ‘‘termination’’ means either: equipment from the owner, since the C. HA Remedies for Owner Breach —The owner’s ‘‘refusal to renew’’, family is the best judge of the individual called an ‘‘opt-out’’, or needs of family members. (§ 982.401(n)) The proposed rule provided that HA remedies for owner breach of the HAP —The ‘‘expiration’’ of the HAP contract. VII. Housing Assistance Payments contract included reduction of housing In the tenant-based programs, ‘‘opt- Contract and Owner Responsibility assistance payments. Comments out’’ refers to an owner’s decision to terminate tenancy of an assisted family A. Family Contribution recommend adding a provision confirming that payments may be after the initial year for a business or Comments recommend that the rule ‘‘abated’’. The final rule provides that economic reason (such as desire to rent should specify that the family is not HA remedies include an ‘‘abatement or the unit for a higher rental, or to convert responsible for payment of the portion other reduction’’ of housing assistance the property to another use). of the rent to owner covered by the payments. (§ 982.453(b)) (§ 982.455(b)(2)(ii)) housing assistance payment under the In the tenant-based programs, the HAP contract when the HA stops D. Automatic HAP Contract HAP contract and the assisted lease do making payment to the owner. This Termination: No HA Payment for 6 not have a pre-defined end of term. The recommendation is adopted. Months term of the HAP contract is the same as The final rule makes clear that the The proposed rule provided that the the term of the lease. The contract and family is not responsible for payment of HAP contract terminated automatically lease generally extend indefinitely until the portion of the rent to owner covered three months after the last housing terminated by the owner for lease by the housing assistance payment. The assistance payment. Comments object to violation or other good cause. In this HA failure to pay the housing assistance this provision. Comments indicate that context, the rule provides that payment to the owner is not a violation the time frame was too short, ‘‘expiration’’ means the occurrence of of the lease between the tenant and the considering fluctuations in the job either of the following events: 34684 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations —Automatic termination of the HAP Comments agree that the HA should not grounds for termination of contract when six months (180 have the power to terminate assistance assistance by the HA. Even after calendar days) have passed since the for violation of the family’s program eviction, a family could move to a new last housing assistance payment. obligations. Other comments unit with continued assistance in the —An HA determination (in accordance recommend some changes in these tenant-based program. with HUD requirements) that the HAP provisions. The proposed rule expanded the contract must be terminated because Comments note that family violation obligations of a participant by providing there is insufficient funding under the of program obligations may be that the family was responsible for consolidated ACC to support unintentional, minor or beyond the certain types of HQS violation caused continued assistance for families in family’s control. The comments state by the family. In addition, HUD the program. (§ 982.455(b)(2)(iii)) that the HA should only be authorized specifically invited comment on Comments recommend that the rule to terminate assistance because of whether lease violation by an assisted specify that an owner may not terminate serious or repeated violation of the family should be designated as a any HAP contract, or evict a tenant, if family’s program obligations. This distinct regulatory ground for HUD determines the termination is not recommendation is not adopted. All termination of assistance. family obligations are important. The lawful. The law provides that HUD must Comments review the reasons for terminations as family is responsible for compliance stated in the owner’s termination notice. with all family obligations, and the HA Some comments contend that the Upon such review, HUD must: may terminate assistance for any family’s lease violation or behavior in violation. To terminate assistance, the occupancy should not be a ground for ‘‘issue a written finding of the legality of the termination of assistance. According to termination and the reasons for the HA must show that the family has termination, including the actions considered committed the violation charged. In these comments, the remedy lies with or taken to avoid the termination’’. general, the HA should not be required the family’s landlord, who may evict the to show also that the violation of family family for good cause. The HA should The rule requires that on receiving the obligations is ‘‘serious or repeated’’. To not displace the family if a landlord has owner termination notice (in case of an add this requirement would complicate not elected to evict, and should not ‘‘expiration’’ or ‘‘opt-out’’) the HUD and discourage the enforcement of usurp the decision of another landlord field office must review the notice and program requirements. (However, an HA whether to rent to a family because of consider whether there are additional may only terminate assistance for a actions in a prior unit. actions which should be taken to avoid ‘‘serious or repeated’’ violation of the Comments state that Section 8 tenants the termination. (§ 982.455(b)(4)) After assisted lease. In this case, the should be treated like private tenants. HUD review of the owner notice, the regulatory standard for HA termination The decision whether to accept or reject HUD field office will issue a written of assistance parallels the statutory a tenant should be the landlord’s private finding, as provided by law, on the authorization for eviction by the owner decision. The HA is not a party to the legality of the HAP contract termination, for ‘‘serious or repeated’’ violation of the lease. HUD should not inject the HA and the reasons for termination as stated lease.) into the relation between tenants and in the owner’s notice, including any If the family has violated a program landlords. Comments recommend that actions taken to avoid the termination. obligation, the HA has discretion to the HA should not be permitted to (§ 982.455(b)(4)(iii)) Within 30 calendar terminate assistance based on the facts condition program assistance on the days of HUD’s finding, the owner must of the particular case. (§ 982.552(c)) family’s suitability for tenancy. provide written notice of HUD’s Comments also note that the HA is not decision to the tenant. B. Duty To Supply Required Information equipped to investigate a landlord’s The law does not require HUD The final rule restates provisions claim of tenant misbehavior in approval of the termination. The final describing the family duty to supply occupancy. Comments claim that rule adds a new provision clarifying that information requested by the HA or authorizing the HA to terminate the owner may proceed with eviction HUD. (§ 982.551(b)) The family must assistance for breach of the lease whether HUD approves or disapproves, supply any information that the HA or ‘‘forces’’ the HA to assume the or fails to complete the required review HUD determines is necessary in the landlord’s responsibility of enforcing of the owner notice before expiration of administration of the program. the lease. This new role opens a the 90 day review period. Information includes any certification, pandora’s box for the HA. (§ 982.455(b)(4)(iv)) release or other documentation Other comments urge that the HA VIII. Family Obligations requested by the HA or HUD. should be permitted to terminate (§ 982.551(b)(1)) The final rule adds a assistance for family violation of an A. Statement of Family Obligations new provision explicitly confirming that assisted lease. The family should be The rule lists the grounds for which any information or documentation held responsible for conduct during the HA is authorized to deny assistance supplied by the family must be ‘‘true assisted occupancy. The HA should not to an applicant or terminate assistance and complete’’. (§ 981.551(b)(4)) allow a move by a family that fails to to a participant because of the family’s pay the rent or commits other violations C. Family Behavior and Violation of action or failure to act. (§ 982.552(b)) of the lease. Allowing the HA to The HA may deny or terminate Lease terminate assistance for family lease assistance for violation of family In this rulemaking, HUD has violation encourages improvement in obligations. (§ 982.552(b)(1)) The final reexamined the appropriate role of family behavior. If a family violates the rule modifies the statement of family program sanctions by the HA for family lease, denial of continued assistance obligations under the program. behavior in occupancy of an assisted saves scarce program resources for (§ 982.551) unit, and for family violation of an other, more deserving, families. Some comments support HUD’s assisted lease. Under current program By statute, a Section 8 owner may proposed statement of family rules, breach of the assisted lease with evict for serious or repeated violation of obligations, and other provisions on the landlord was not a violation of the the lease, as well as for other good denial or termination of assistance. family’s program obligations, and was cause. Comments state that the HA Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34685 should not be compelled to issue a new D. HQS Breach Caused by Family —By damaging the unit (other than certificate or voucher after the family is damage from ordinary wear and tear). evicted. Termination of assistance HUD proposed to allow termination of (§ 982.404(b); § 982.551(c).) because of a lease violation would be an assistance for breaches of HQS that are caused by the family. Public comments The proposed rule would also have effective tool in administration of the made the family responsible for vermin program. Action by the HA on this proposal largely mirror the division of views on termination and rodent infestation caused by trash complements eviction by the landlord. accumulation from poor family Under the current system, families are because of a family’s lease violation or other behavior in occupancy. housekeeping. This provision is not evicted from one unit after another. included in the final rule. Comments suggest that this practice Some comments object to termination Generally, owner leases provide that a discourages participation by landlords. of assistance because of family-caused tenant must keep the unit in a clean and HQS violation. The comments indicate Comments state that the HA should be safe condition, dispose of waste that compliance with the tenant’s authorized to terminate assistance properly, and avoid damage to the unit. obligation is a condition of occupancy because of serious or repeated lease An owner may evict if family under the lease. The owner has the violation by the family, or other good housekeeping creates a serious or responsibility to enforce these cause. Termination should only be repeated violation of the lease. obligations. The rule should minimize permitted because of serious lease (§ 982.310(a)) Under the new rule, the HA interference with the relationship of violations, but not for other lease HA may terminate assistance for such the tenant and the owner. violations. Termination should only be violation of the lease. (§ 982.551(e).) permitted for causes in the family’s Comments recommend that the tenant There is no need for a separate control. Comments also state that the should only be responsible for HQS provision on termination of assistance HA should be permitted to terminate violations that substantially interfere because of family housekeeping. with quiet enjoyment of the unit, or that assistance to a family for chronic E. Use and Occupancy of Unit disorder, or for behavior that constitutes make the unit unsafe and unsanitary. a nuisance (and the owner should be Family damage may be accidental or The rule states family obligations permitted to evict for these grounds). minor. Comments suggest that the HA concerning use and occupancy of the The HA should be permitted to should only be permitted to terminate assisted unit: terminate assistance if the tenant moves assistance for HQS violation caused by —The family must reside in the unit. during the first year in violation of the reckless or malicious action by the The unit must be the family’s only lease. family. The HA should not terminate residence. assistance if HQS violation is beyond —The HA must approve composition of Comments state that assistance should the tenant’s control, or if there is other only be terminated if a family has been the resident family. ‘‘good cause’’ for the tenant-caused HQS —The family must promptly inform the evicted by a court action. The existence violation. of good cause should be determined in HA of the birth, adoption or court- Comments object to terminating court. awarded custody of a child. The assistance payments to a landlord family must request HA approval to Final Rule because the family’s housekeeping add any other family member as an results in HQS violation. Termination occupant of the unit. The final rule adds provisions on for this reason punishes the landlord for —The family must promptly notify the family program obligations concerning the family’s behavior, and will be hard HA if any family member no longer tenancy under an assisted lease. to enforce. The comments contend that resides in the unit. The description of family obligations an HA will be forced to go to court to —With HA approval, a foster child or a now states that the family may not defend termination of assistance in this live-in-aide may reside in the commit any serious or repeated circumstance. dwelling unit. The HA may adopt violation of the lease. (§ 982.551(e)) As Other comments welcome HUD’s policies concerning residence by a in the past, such behavior is grounds for proposal to permit termination of foster child or a live-in-aide, and eviction by the owner. In addition, such program assistance for a family that define when HA consent may be behavior is now grounds for termination violates the HQS. This change gives the given or denied. (§ 982.551(h)) of assistance by the HA. For example, HA control over program abusers, and Approval of New Family Members the HA may terminate assistance will rid the program of chronic payments, or deny permission to move apartment destroyers. The Section 8 program provides rental with continued assistance, if the family Comments note that under the old assistance for a dwelling unit leased to has committed any serious or repeated rule the family has been allowed to a low-income ‘‘family’’. (42 U.S.C. violation of the assisted lease. trash a unit, and move on to the next 1437f) The ‘‘family’’ may be a single The rule provides that the family assisted unit. This policy has created person or a group of persons. must notify the HA and the owner bad feelings among landlords, and (§ 982.201(c)(])) The HA determines if a before the family moves out. makes the program harder to sell. group of persons qualifies as a ‘‘family’’. (§ 982.314(d)(2);§ 982.551(f)) The final Landlords can’t understand why HAs (§ 982.201(c)(3)) The HA determines rule would also provide that continue subsidy for negligent tenants. composition of the assisted family at admission to the program, and must also The final rule provides, as proposed, —The family must promptly give the approve later changes in family that the family is responsible for HQS HA a copy of any owner eviction composition. (§ 982.201; violations caused by the family: notice. (§ 982.551(g)) § 982.551(h)(2))] Except for birth, —If the family terminates the lease on —By failing to pay for tenant-supplied adoption or court-awarded custody of a notice to the owner, the family must utilities. child, the family must get HA approval give the HA a copy of the notice at the —By failing to supply appliances (that to add any new family member. same time. (§ 982.314(d)(1); the owner is not required to supply Some comments approve the § 982.551(f)) under the lease). proposed rules on family composition, 34686 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations including the family obligation to obtain requirements, including the prohibition F. Business in Unit HA approval to add a new family of familial status discrimination. The rule provides that members of the member. Comments state that this The final rule does not add, as a family may engage in legal requirement will prevent the practice of family program obligation, a ‘‘profitmaking’’ activities in the assisted ‘‘borrowing’’ children or ‘‘cousins’’ to requirement to obtain the owner’s unit. Any use of the unit for business keep the same unit size. Comments ask approval for any new unit occupants. Of activities by family members must be HUD to make clear whether the resident course, the owner has a legitimate incidental to primary use of the unit for must get HA approval for residence by proprietary interest in controlling residence by members of the family, and a girlfriend or boyfriend. Comments occupancy of the owner’s unit. The must be in accordance with local law. recommend that the owner should have lease may, and typically will, include (§ 982.551(h)(5)) These provisions are the right to approve new unit occupants. provisions that specify who can live in intended to encourage work and earning Some comments suggest that HUD the unit, and require owner approval of by assisted families. should limit HA authority to approve or additional unit occupants. Most comments agree that the rule disapprove adding new family should allow legal profitmaking activity members. The HA should be required to Occupancy by Live-in-Aide or Foster by the assisted family. Other comments adopt ‘‘reasonable policies’’. Comments Child suggest that the authorization for legal recommend that HUD should eliminate The rule provides that a foster child profitmaking activity may encourage the requirement for HA approval of new or live-in-aide may only reside in the family members. The HA should adopt illegal activities. assisted unit with the consent of the Comments argue that business activity a ‘‘hands off’’ policy. The only program HA. The HA may adopt policies should only be allowed with approval of interest is to insure that a unit meets the defining when the HA may give or deny subsidy standards, and subsidy is the owner, and in accordance with the approval for occupancy by a foster child lease. Comments point out that an adjusted to reflect additional income of or live-in-aide. (§ 982.551(h)(4)) new unit occupants. Families are afraid owner has a legitimate interest in A live-in-aide resides in the unit to controlling business activities in the to report new family members. A hands care for a person who is elderly, near- off policy may result in more accurate owner’s unit (for example a laundry elderly (50 to 61) or disabled. (42 U.S.C. business where owner supplies water; reporting of new family members and 1437a(b)(3)(B); ‘‘live-in-aide’’ definition family income. Comments ask if the HA or engine repairs in the living room). at § 813.102; see § 982.201(c)(3)) The HUD agrees that the landlord’s may deny approval of a child not living live-in-aide is not a member of the with the family when admitted to the interest is affected by the tenant’s assisted family. Income of the live-in- conduct of business activity in the program, and question whether such aide is not included in family income denial may constitute familial apartment. Tenant business could (used to calculate family eligibility and discrimination. Comments note that HA damage the unit or disturb other contribution to rent). policy may not discriminate on the basis residents. However, an owner may exert Comments object to granting the HA of familial status. control over occupant activities in the The final rule retains the requirement ‘‘veto-power’’ over occupancy by a same fashion as for any tenancy—by for HA approval to add new family foster child or live-in-aide, and including lease provisions on business members. The rule provides that recommend that the requirement for HA use of the unit, and by enforcing such composition of the assisted family approval should be eliminated. The HA lease provisions. The lease (or owner’s residing in the dwelling unit must be is not qualified to determine whether house rules under the lease) may require approved by the HA. The family must the family can live independently the tenant to get the owner’s permission promptly inform the HA of the birth, without assistance of a live-in-aide. for any business use of the property, and adoption or court-awarded custody of a Comments claim that HAs do not have may otherwise regulate use of the unit child. The family must request HA requisite procedural safeguards for such for business purposes. Provisions approval to add any other family decisions. Denying approval for a live- concerning business use of a unit are member as an occupant of the unit. in-aide could subject the HA to liability commonly included in boilerplate of (§ 982.551(h)(2)) under the Fair Housing Act. residential leases, and are not HUD has not adopted the Other comments state that the rule inconsistent with HUD regulatory recommendations to restrict HA should allow the HA to specify whether requirements or HUD-required lease discretion, or to eliminate HA approval live-in-aides may reside in the unit, how addendum governing the assisted of new family members. Unrestricted many, and in what circumstances. tenancy. admission of family members distorts The final rule retains the requirement, HUD has not added provisions the system for fair and orderly as proposed, that the family must obtain requiring a tenant to secure landlord allocation of Section 8 assistance HA approval for occupancy by a live-in- consent for any business use of the unit. through the HA waiting list. Addition of aide or foster child. In both cases there The rule provisions allowing business new family members may also are important program interests in activity by the assisted resident are overcrowd the unit, or result in need for retaining the HA authority over such intended to define the family’s program a larger unit size and a larger subsidy. occupancy. In both cases, however, the obligation, and therefore the grounds for In addition, assistance may only be HA must exercise its discretion in termination of assistance by the HA. provided to a ‘‘family’’, not to any self- accordance with the Fair Housing Act. Conversely, the statement of family selected group of individuals. The HA The HA must not discriminate on the obligations is not intended or required has the authority and responsibility to basis of disability or familial status. to establish the family’s obligations to determine that the group of assisted the owner under the lease. Reduction in Size of Family individuals, including new residents, Under this rule, an HA may terminate constitutes a family (under the The final rule adds a new provision assistance for serious or repeated definition utilized by the particular stating that the family must promptly violation of the assisted lease. Where HA). In exercising its discretion to notify the HA if any family member no the lease prohibits or regulates business admit or deny new family members, the longer resides in the dwelling unit. activity in the unit, a serious or repeated HA is subject to equal opportunity (§ 982.551(h)(3)) violation of this lease requirement is a Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34687 breach of family obligation. In this program policies. Rehousing of families packet that is given to the family at circumstance, the HA may deny or is not a practical prerequisite for selection for the program. terminate assistance for business termination of housing assistance. (§ 982.301(b)(15), (16) and (17)) The activity that violates the assisted lease. The rule defines when the HA may revision makes clear that this basic Comments recommend that the family deny or terminate assistance because of program information must be given to should only be allowed to engage in an action or failure by a member of the families who are already in the program, business activity with approval of the family. However, the HA decides and have not received this information HA, and that the family should be whether and how to exercise this at selection for the program. The rule required to give the HA information authority and discretion in the does not require two notices to any concerning the nature of activities in the circumstances of a particular case. The family. unit. HUD is not persuaded that HAs final rule specifies that the HA may HUD has not adopted the should be given the power to approve or consider all of the circumstances of the recommendation to prohibit termination disapprove business activity in the unit individual case, including seriousness unless the family has been furnished a (so long as business activity meets the of an offense, the extent of participation list of the allowable grounds of standards expressed in the rule, i.e., that or culpability of individual family termination under the program. Such a the activity is legal, and is incidental to members, and the effects of program requirement might force HAs to residential use of the premises). sanctions on family members not maintain records that the information Assisted families should be treated as involved in a proscribed activity. has been served on program private market tenants, who can engage (§ 982.552(c)(1)) Previously, the rule participants, to show that this in business activities with the consent explicitly confirmed the HA’s discretion termination prerequisite has been met. If of the owner. in exercising the authority to deny or the HA needs to terminate assistance for The HA has an interest in assuring terminate assistance for criminal a family, such a requirement could that the unit is used as the family activity by a family member. There was block termination of assistance for good residence, that the business activity no parallel provision on denial or and substantial grounds (for example, does not result in a violation of the termination for other reasons. The final fraud by the family) on the grounds that HQS, and that business income is rule makes clear that the HA has the the HA did not give the family general reported in calculation of the family same discretion in deciding whether to program information listing the grounds contribution. A family is required to deny or terminate assistance for any for termination of assistance. If the HA supply the HA with information that is allowable grounds, not only for criminal moves to terminate assistance in a necessary for administration of the action by a member of the family. particular case, the family receives program. The HA may therefore require The rule also confirms that the HA specific notice of the reasons for the the family to supply program-related has the authority to devise an proposed termination and opportunity information concerning business appropriate remedy. The HA may for hearing. (§ 982.555(c)(2)) activity in the assisted unit. permit continued assistance for certain 3. Distinction Between Denial or members of the family, but terminate IX. Denial or Termination of Termination Assistance: Grounds and Procedure assistance for other family members who bear a greater responsibility for Comments ask HUD to clarify the A. Grounds violation of family obligations. distinction between ‘‘denial or 1. General (§ 982.552(c)(2)) termination’’ of assistance. HUD’s prior rules refer to ‘‘denial’’ of assistance both The rule lists the grounds on which 2. Information for Family for an applicant and a participant. In an HA may deny or terminate assistance Comments state that the HA should be general, the term ‘‘denial’’ in the old for a family because of the family’s required to give the family a written list rule refers to HA withholding or action or failure to act. of the grounds for termination, and refusing to take any HA action or Comments endorse the proposed rules should be prohibited from terminating approval leading to a commitment or on denial or termination of assistance. unless the family has been given this commencement of assistance for the Comments note that the rules encourage information. family, including refusing to issue a family responsibility, and allow HAs to HUD agrees that HAs should help certificate or voucher, approve a lease or target assistance to families who program families know their obligations, execute a HAP contract. cooperate with program rules. Comments state that the HA should be and the grounds for termination of In the case of a participant, the old required to take all feasible steps to assistance. This knowledge reinforces rule distinguished between: avoid termination of assistance and the family’s sense of responsibility for —The grounds for which the HA could displacement of the family. The its own actions. A participant family ‘‘deny’’ a new commitment of comments state that the rule should should also know that it can ask for a assistance to a program participant prohibit termination unless the family hearing if the HA wants to terminate who wants to move to a new unit (by has been relocated. assistance because of family actions. refusing to issue a new certificate or The comments are not adopted. The The rule is amended to provide that voucher, approve a new lease or decision to proceed with termination in the HA must give the family a written execute a new HAP contract). each case must be left to the description of: —The grounds for which the HA could administrative judgment of the HA, in —Family obligations under the program. ‘‘terminate’’ housing assistance keeping with the statutory policy that —The grounds on which the HA may payments under an outstanding HAP HAs should be vested with the deny or terminate assistance because contract. ‘‘maximum amount of responsibility’’ in of family action or failure to act. The new rule eliminates this the administration of their housing —HA informal hearing procedures. distinction. The rule no longer programs. (42 U.S.C. 1437) The (§ 982.552(f)) distinguishes between grounds for procedures recommended by the For a new program family, ‘‘denial’’ or ‘‘termination’’ of assistance comments would severely impair HA information on these subjects is for a program participant. (This action to enforce local and national included in the family information distinction was the source of the so- 34688 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations called ‘‘ABC’’ problem under the old (§ 982.553(b)(2)) The HA may require a assisted lease. Under this rule, the HA rule.) family member who has engaged in the may terminate program assistance for The final rule states the grounds for illegal use of drugs to submit evidence such violation. (§ 982.551(e); which an HA may ‘‘deny’’ assistance for of participation in, or successful § 982.552(b)) Thus, in addition to the an applicant or ‘‘terminate’’ assistance completion of, a treatment program as a provisions which specifically and for a participant. (§ 982.552(a)(2) and condition to being allowed to reside in separately allow the HA to terminate for (3)) The rule also clarifies that the unit. criminal activity (§ 982.553), the HA ‘‘Termination of assistance for a participant Some comments approve the may terminate assistance for criminal may include any or all of the following: provisions allowing the HA to deny or activity that is a serious or repeated refusing to enter into a HAP contract or terminate assistance for criminal violation of the assisted lease. approve a lease, terminating housing activity by members of the family. Other The final rule provisions on criminal assistance payments under an outstanding comments object to these provisions. activity are largely the same as HAP contract, and refusing to process or Comments state that HAs do not have provisions of the prior program provide assistance under portability capability to investigate criminal procedures.’’ (§ 982.552(a)(3)) regulations, with a few technical activity. Termination because of revisions and editorial changes. The If there are grounds for termination of criminal activity by a family member prior regulations concerning assistance to a participant, the HA may harms other members of the household, termination of certificate or voucher terminate assistance ‘‘at any time’’, and and may cause homelessness. Family assistance because of criminal activity can therefore at any time exercise any of members may be victims of domestic were published on July 11, 1990 (at 55 the remedies comprised in the concept violence, and may need counseling, FR 28538). The issues considered by of termination. (§ 982.552(b)) assistance and advocacy. HUD should HUD in adoption of the prior rule are 4. Crime by Family Member prohibit the HA from terminating discussed at length in the Preamble to assistance for other family members that publication. In particular, the The final rule provides that the HA where the family is unable to control a may deny or terminate assistance at any Preamble discusses a number of the teenage youth. Termination could force issues again raised by comments on the time if members of the family have a mother to give up her children to stay engaged in drug-related criminal present rule. Points discussed in that in the unit. Preamble need not be repeated here. activity or violent criminal activity. Comments recommend that the HA (§ 982.553(a)) ‘‘Drug-related criminal The rule gives the HA discretion to should be directed to provide terminate assistance for criminal activity’’ includes both drug-trafficking continuing program assistance to and illegal use or possession of drugs. activity. However, the rule does not remaining family members. Comments direct the HA to terminate assistance in ‘‘Violent criminal activity’’ refers to claim that HUD does not have statutory criminal use of physical force against a any particular case. The HA has authority to allow termination of therefore the power to adopt and person or property. (§ 982.4) The HA assistance because of crime by family implement local policies, and to decide may deny or terminate assistance if the members (although the law deals with the application of local policies to preponderance of evidence indicates the effect of drug related criminal that a family member has committed the particular cases. activity in preferences for admission, The rule confirms that the HA has crime, regardless of whether the family and in evictions by an owner). discretion to consider all the member has been arrested or convicted. The program statutes do not contain circumstances of each case. (§ 982.553(c)) a comprehensive or exclusive statement (§ 982.552(c)(1)) In exercise of its The rule provides that an HA may of grounds for denial or termination of discretion, the HA may consider the only deny or terminate assistance for assistance. HUD has discretion to issue character of the crime. The HA may also drug use or possession by a family program regulations consistent with consider whether family members have member if the criminal act occurred in statutory requirements (see 42 U.S.C. participated in, colluded in, or benefited the last year before the HA gave notice 3535(d)), including regulations on from criminal activity, and the impact of of proposed denial or termination of denial or termination of assistance by any termination on other family assistance for this reason. The HA may the HA for criminal activity by members members, including children. The HA not terminate assistance for past use of of an applicant or participant family. may also properly consider the broader drugs by a rehabilitated user who has These rules are a reasonable exercise of effects of HA action or non-action on the not used drugs in the last year. HUD’s rulemaking authority. The rules program and community, including: Comments propose that the HA should promote significant national and only deny assistance for drug use or program objectives, including the —How termination of assistance for possession after HA notice. As HUD critical struggle against violent or drug- criminal activity by assisted families understands this proposal, assistance related crime. may affect or discourage criminal could be terminated for future drug use By law and this rule, Section 8 activity in the community. or possession, but could not be owners may terminate tenancy for —The effect of HA termination policy terminated for drug use or possession in certain drug-related or other criminal on the Section 8 program, and the the year preceding the HA notice. The activity by members of the assisted ability of program families to find recommendation is not adopted. household and its guests. (42 U.S.C. good housing. The HA may deny assistance for an 1437f(d)(1)(B)(iii); § 982.310(c)) Under Comments suggest that HUD should addict who currently uses or possesses this rule, the statutory grounds for not merely allow the HA to consider drugs. The proposed rule would have eviction by the owner under the lease ‘‘all’’ circumstances of each case, but provided that the HA may not deny because of criminal activity should require that the HA consider all assistance for past drug use by an addict substantially overlap the regulatory the circumstances. This comment is not who ‘‘has recovered’’ from drug grounds for termination of program adopted. In this rule, HUD does not addiction. The final rule provides that assistance by the HA because of such enumerate or prescribe all the factors the HA may not deny assistance for an activity. that can or should be considered by the addict who ‘‘is recovering, or has In addition, an owner may evict for HA. Rather, the rule confirms that the recovered from’’ an addiction. serious or repeated violation of the HA has ample discretion to consider the Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34689 factors of a particular case. Given this uncertainty as to the meaning or of family debt to the HA. Comments discretion, the HA should have applicability of this limitation. claim that the rule will allow arbitrary flexibility to make a practical After reconsideration, HUD has terminations, and that the HA could determination and consideration in revised the rule to cover violent or drug- terminate assistance without regard to particular cases. The HA exercise of related crime by family members, the statute of limitations. discretion should not be paralyzed, and without regard to whether a crime is In HUD’s view, the family is and opened to challenge by mandating technically classed as a felony. HUD should be held responsible for its own consideration of ‘‘all’’ circumstances in believes that there may be more ‘‘all’’ cases. confusion than benefit in distinguishing program debts to the HA, or for claims the HA paid to a Section 8 owner. As under HUD’s prior rule, this rule between felony and misdemeanor Denying Section 8 assistance because of provides that a PHA may deny or crimes as grounds for HA denial or monies owed or Section 8 claims paid terminate assistance for drug-related or termination of assistance. violent criminal activity: The felony-misdemeanor distinction in connection with the Section 8 or creates a technical discrepancy between public housing programs under the U.S. ‘‘if the preponderance of evidence indicates Housing Act of 1937 is not arbitrary, but that a family member has engaged in such drug crimes that may be cause for activity, regardless of whether the family eviction, as opposed to drug crimes that bears a legitimate and logical member has been arrested or convicted’’. are grounds for termination of connection to the HA responsibility for (§ 982.553(c)) assistance. The statute provides that administration of the Section 8 program. ‘‘drug-related criminal activity’’ is Furthermore, the denial is based on a Comments endorse the use of this grounds for eviction of the assisted specific determination of law and fact. standard for termination or denial of tenant by the owner (or for denial of Contrary to the comment, the rule does program assistance. The Department has federal preference to an applicant). In not allow the HA to deny assistance for previously noted that: the law, this term is defined to cover a debt to an HA that is barred by the ‘‘the (HA) is not being asked to adjudicate ‘‘illegal’’ drug dealing or drug-use, statute of limitations. By definition, an guilt, but rather whether, under a civil without regard to whether the illegal amount the family ‘‘currently owes’’ is standard of preponderance of the evidence, a activity is formally classed as a felony. not barred by the statute of limitations. family member, in fact, is engaging in certain (42 U.S.C. 1437f(f)(5)) Under the final activities. It is the fact of the activity rather 7. Family Self-Sufficiency than assessment of criminal liability that is rule, the HA may also terminate assistance for ‘‘illegal’’ drug-related at issue.’’ (55 FR 28540, third column) The proposed rule would have activity. The same definition of ‘‘drug- The HA may deny or terminate related criminal activity’’ is now used provided that the HA may deny or assistance in the program because of for both purposes (eviction by an owner terminate assistance if a family criminal activity by any member of the or termination of assistance by the HA). participating in the FSS program fails to ‘‘family’’. (§ 982.553(a)) By contrast, an comply with the FSS contract of owner may evict the assisted tenant for 5. Fraud or Other Program Violation participation. Comments suggest that criminal activity by any member of the The proposed rule would have the rule should specify that the HA may ‘‘household’’, a guest or another person provided that the HA could deny or only terminate assistance if the family under the tenant’s control. (§ 982.310(c)) terminate assistance if the family had violates the FSS contract ‘‘without good In addition to the family (i.e., the committed any ‘‘fraud’’ in connection cause’’, in accordance with the 1992 subject of program assistance), the with a federal housing program. The FSS law. (42 U.S.C. 1437u(c)(1), as ‘‘household’’ may include a live-in-aide. final rule provides that the HA may amended by § 106(d)((2) of Pub. L. 102– Comments recommend that the rule deny or terminate assistance at any time 550, 10/28/92 at 106 Stat. 3685) In should also allow the HA to terminate if any member of the family commits accordance with this recommendation, assistance because of drug-trafficking ‘‘fraud, bribery or any other corrupt or the rule is amended to explicitly reflect (manufacture, sale, or distribution) by a criminal act’’. (§ 982.552(b)(5)) The HA this statutory requirement. live-in-aide (who resides in the unit for may deny or terminate assistance (§ 982.552(b)(9)) With this change, the care of a disabled or elderly person). whether or not such criminal act provision conforms to the existing FSS This recommendation is not adopted. occurred while the family was rule, which provide that the HA may The HA may, however, terminate participating in the tenant-based terminate the FSS contract if the FSS assistance to the family if drug- program. The rule provides that such family fails to comply ‘‘without good criminal act is a breach of family trafficking by the live-in-aide (a member cause’’ with the FSS contract of obligations under the program. of the ‘‘household’’) is a serious or participation. (§ 984.303(b)(5)) repeated violation of the assisted lease. (§ 982.551(k)) Comments claim that termination of Moreover, the HA may withdraw or 6. Debt or Reimbursement deny approval for continued residence family participation because of FSS by the live-in-aide in the assisted unit. The HA may ‘‘at any time’’ deny or violation may cause homelessness, and Under the prior and proposed rule, terminate assistance: that the family may drop out of FSS the HA may deny or terminate —If a family currently ‘‘owes’’ money to because of the lack of FSS services. assistance if a crime by a family member the HA (in connection with Section 8 Families in the FSS program must is classed as a ‘‘felony’’ under federal or or public housing), or has not comply with Section 8 and FSS State law (but not for a crime classed as reimbursed amounts the HA paid a obligations. However, HUD does not a misdemeanor or other non-felony Section 8 owner for family rent or expect that many families will be category). This limitation was intended damage. terminated from the Section 8 program to reach types of criminal activity —If the family breaches an agreement to for breach of FSS obligations. However, treated as very serious objectionable pay such amounts to the HA. if the HA terminates assistance for a behavior, as identified by Congress or (§ 982.552(b)(6) to (8)) family, another family can enter the State legislators. (See discussion at 55 Comments state that HUD should not program, and benefit from housing FR 28542) Comments suggest some allow an HA to deny assistance because assistance and FSS services. 34690 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 8. Abuse or Violence Against HA —The applicant may present written or Department noted that the notice and Personnel oral objections. opportunity for meeting: The final rule provides that the HA —The HA must notify the applicant of ‘‘strikes an appropriate balance among the may deny or terminate assistance if the the HA final decision after informal competing interests involved in the denial of family has engaged in or threatened review. The notice must include a a preference. On the one hand, this approach abuse or violent behavior toward HA brief statement of the reasons for the recognizes the importance of qualification for personnel. (§ 982.552(b)(10)) decision. (§ 982.554(b)) a preference in securing housing assistance at On consideration of the comments, the earliest time, by establishing a mandatory mechanism for the prompt resolution of B. Procedures for Informal Review or HUD finds that there is insufficient Hearing factual issues and concerns. On the other reason to change the existing procedures hand, use of this degree of informal 1. Applicants by extending hearing processes to procedure reflects the Department’s belief In the proposed rule, HUD proposed applicants. The nature and justification that the denial of a preference—which has to remove the existing regulatory for the existing review and hearing the effect of prolonging an applicant’s wait distinction between ‘‘hearing’’ requirements is discussed at length in for housing assistance—is not of such the preamble of the 1984 rule that magnitude as to justify imposition of the procedures for participants, and administrative burden on (HAs) * * * that ‘‘review’’ procedures for applicants. originally promulgated these procedures. (49 FR 12215, 12224– are inherent in a more formal process’’. (53 Some comments endorse this change. FR 1122, 1140. For full discussion, see These comments note that the appeal 12230) section X of preamble (‘‘Informal Review of process has serious consequences for Under the HUD rules, there is a Federal Preference Denials’’ at Id.).) the family, and assert that the greater separate procedure for review of an HA The rule provides that the HA protection of a ‘‘hearing’’ process is decision that a family does not qualify administrative plan must state the HA warranted. The change avoids confusion for a preference claimed by the family. procedures for conducting an informal on the appropriate procedure for review (§ 982.210(d)(1); 59 FR 36688, July 18, review for applicants or an informal of the HA decision. 1994) Under this procedure, the Other comments strongly object to the applicant has the right to meet with an hearing for participants. (§ 982.54(d)(12) proposed change extending ‘‘hearing’’ HA representative to review the HA and 13; § 982.554(b); § 982.555(e)(1)) requirements to HA decisions determination. The meeting may be 2. Participant—Informal Hearing concerning program applicants. These conducted by a person designated by comments recommend that HUD should the HA. The designated HA Hearing—When Required retain informal review for applicants. representative may be an officer or The HA must offer a hearing for ‘‘Hearings’’ are unwieldy and time employee of the HA, including the certain HA determinations ‘‘relating to consuming. The change proposed by person who made or reviewed the the individual circumstances of a HUD would create bottlenecks and determination or a subordinate participant family’’. The hearing is held increase HA administrative costs. HAs employee. The HA preference decision to consider whether HA decisions would need additional professional, is not subject to the informal review related to the family circumstances ‘‘are stenographic and clerical staff to process for an HA decision denying in accordance with the law, HUD conduct applicant hearings. assistance to an applicant. (Now at regulations and HA policies’’. The rule From the comments, it appears that § 982.555) lists the cases when the HA must offer some HAs voluntarily operate hearing Comments recommend that the HA a hearing, and cases when a hearing is procedures that exceed HUD should be required to use the same not required. requirements, and are more burdensome procedure on review of denial of The HA must provide the opportunity and expensive than needed to comply preference as for a denial of assistance. for a hearing on: with minimum hearing requirements The comments assert that preference is —An HA determination of the family’s prescribed by HUD. The HAs appear to the most important factor in income. assume that ‘‘hearings’’ for applicants determining whether an applicant gets —An HA determination of the family would be conducted under the more subsidy, and should have the same unit size for the family under the HA elaborate processes used for program procedural protection as other HA subsidy standards. participants, even if those processes decisions on applicant eligibility. —An HA determination of the exceed HUD requirements. In the final rule, HUD has retained the appropriate utility allowance for the In the final rule, HUD has decided to existing procedures granting a family family from the HA utility allowance retain the existing regulatory distinction the opportunity to meet with an HA schedule. between informal review procedures for representative to review an HA —An HA determination to deny or applicants and hearing procedures for preference determination. This terminate assistance because of family program participants. The HA must give procedure has been used since 1988 to actions. the opportunity for informal review of a review denial of a federal preference. —An HA determination to terminate decision denying assistance to an (See revision of § 882.216(k) at 53 FR assistance because the family has applicant. The review procedures under 1122, 1155, column 3, January 15, 1988) been absent from the unit for longer the final rule are essentially unchanged In 1994, this procedure was extended to than the maximum period permitted from the procedures under the old rules review of an HA decision denying a under HA policy and HUD rules. for the tenant-based programs. The HA federal preference, ranking preference or —In the certificate program, an HA informal review procedures must local preference. (See § 982.210(d)(1) at determination that the family’s unit is comply with the following elements: 59 FR 36688) too big. (§ 982.555(a)(1)). —The review may be conducted by any Since the beginning, HA decisions to The HA is not required to grant a person or persons designated by the grant or deny preference have been hearing for HA discretionary HA. However, the HA reviewer may subject to a separate review process, not administrative determinations or for not be a person who made or to the informal review procedure used general policy issues or class grievances. approved the decision under review to review denial of assistance to the (§ 982.555(b) (1) and (2)) The final rule or a subordinate of this person. applicant. In adopting this process, the provides that a hearing is not required Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34691 for an HA determination not to approve reduction of subsidy to zero by allow one year to request a hearing if the an extension or suspension of the operation of the Section 8 subsidy participant is seeking assistance during certificate or voucher term. The HA has formulas). In response, the rule is the appeal. discretion whether to grant an extension revised to specify (§ 982.555(a)(2)) that The HA gives the family notice of the or suspension. (§ 982.303 (b) and (c)) the HA must grant an advance hearing right to a hearing. (§ 982.555(c) (1) and Comments object to the regulatory before terminating payments under an (2)) The HA is required to adopt hearing definition of when hearings are outstanding HAP contract in these three procedures in its administrative plan. required, and the purpose of the HA cases: (§ 982.54(d)) In its hearing procedures, hearing. The comment objects to the —A determination that a certificate the HA can establish HA requirements provision specifying that hearing program family is residing in a unit for requesting a hearing, including any procedures apply to HA decisions with a larger number of bedrooms deadlines. If the HA decides to regarding individual family than appropriate for the family unit terminate assistance for a family, the HA circumstances challenged as not in size under the HA subsidy standards, notice must state the deadline for the accordance with law, regulation or or the HA determination to deny the family to request an informal hearing. rules. The comment states that there family’s request for an exception from (§ 982.555(c)(2)(iii)) should be a uniform set of procedures the standards. In this rule, HUD does not set and appeal rules, and recommends that —A determination to terminate minimum or maximum periods for HUD should eliminate the distinction assistance because of the family’s requesting a hearing. Such details are between types of decision for which action or failure to act. best left to determination by the HA. there is or is not an appeal right. —A determination to terminate housing The HA may decide to establish HUD believes that the rule assistance payments because the different deadlines for different appropriately defines the proper role of participant family has been absent circumstances. The HA is in a better the administrative hearing process. The from the assisted unit for longer than position to judge the practicality and terms of this definition largely follow the maximum period permitted under effect of its hearing policies, and to requirements under existing program HA policy and HUD rules. modify its procedures in the light of regulations concerning the purpose and local experience. subject matter of participant hearings. Notice to Participant (See 49 FR 12215, 12226; March 29, Comments recommend that the HA Hearing: Family Right to Examine HA 1984) The Department has noted that: should be required to notify the family Documents ‘‘The hearing process * * * is designed to of the reasons for termination of The new rule adds one element to assure that decisions by the (HA) with assistance. The rule provides that the hearing procedures under the old rule. respect to a participant family comply with HA must notify the family of its right to The rule now grants the family a right applicable rules. The hearing process does request a hearing on a decision to deny to pre-hearing discovery of HA not displace the regular (HA) administrative or terminate assistance. The notice must documents, including records and process for matters committed to [HA] include a brief statement of reasons for regulations, that are directly relevant to discretion and management judgment’’. (49 the HA decision. (§ 982.555(c)(2)) the hearing. The family must be allowed FR 12226) Other comments object to the to copy any such document at the Comments state that the HA should administrative burden and cost to notify family’s expense. (§ 982.555(e)(2)(i)) not be required to grant a hearing for the family of the right to a hearing These new discovery requirements are determination of the utility allowance. because of changes in family income or essentially the same as the public An HA establishes a utility allowance family size. When the HA determines housing discovery requirements schedule for use in its program. To family income or ‘‘family unit size’’ (the promulgated by HUD under Section 6(k) determine the assistance payment for a appropriate number of bedrooms for the of the 1937 Housing Act. (42 U.S.C. particular family, the HA uses the utility family), the HA must give notice that 1437d(k)) allowance (from the established the family may ask the HA to explain Some comments approve allowing the schedule) for the dwelling unit actually the basis of the HA determination, and family to examine and copy HA leased by the family. that if the family does not agree with the documents. Other comments object to The rule is revised to clarify, as determination, the family may request allowing the family to preview HA intended, that the HA is not required to an informal hearing on the decision. evidence, and claim that this gives the grant a hearing on establishment of the (§ 982.555(c)(1)) Notice of the family family an unfair advantage. Comments HA schedule of utility allowances for right to a hearing can be included in the recommend that the HA should have the families in the program. HA reexamination notice (requesting right to see family documents. (§ 982.555(b)(3)) The rule provides (as information for a reexamination), or in The final rule retains without change proposed) that the HA must grant a the HA notice of the determination after the proposed provisions permitting hearing on the HA determination, based reexamination. The HA does not have to family examination of HA documents on the individual family circumstances, serve or mail any separate notice. For prior to hearing. (§ 982.555(e)(2)(i)) This of the appropriate utility allowance for this reason, the process of giving the process helps the family present its case the particular family from the HA utility notice to the family does not require any and respond to HA documents and allowance schedule. (§ 982.555(a)(1)(ii)) substantial additional cost or argument. The discovery process can The proposed rule would have carried administrative burden. support the basic purpose of the forward a prior rule provision that hearing—to produce an accurate required the HA to grant a family Time To Request Hearing determination of the points at issue. opportunity for an informal hearing Comments recommend that HUD As suggested by comment, the final before terminating assistance under an should specify the minimum period to rule adds a new provision that grants outstanding HAP contract. Comments appeal HA decisions. The comments the HA a parallel right to pre-hearing ask HUD to clarify that the HA is not state that HUD should allow HAs to examination of relevant family required to grant an advance hearing to establish a short minimum appeal time documents. The family would be redetermine the family’s share of the where assistance continues during the required to produce the documents at rent at a reexamination (including a appeal, but should require that HAs the HA offices. (§ 982.555(e)(2)(ii)) 34692 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations The rule provides that the HA may a subordinate of this person. general appraiser. The costs of the PBC not rely on a document not produced in (§ 982.555(e)(4)(i)) appraisal will come from the response to the family’s request. Comments recommend that the administrative fees already paid to HAs. Comments agree with this provision. hearing officer should not be a person The HUD 2530 previous participation Advance disclosure helps the family connected to the HA. The comments requirement has also been eliminated, prepare for the hearing. Other comments state that a hearing officer who is an HA and responsibility for PBC historic indicate that the rule should provide a employee will tend to support a preservation and environmental review stronger sanction for the HA failure to colleague’s decision, and may be responsibilities have been assumed by disclose a document, by prohibiting the familiar with the issues and complaint. States and units of local government HA from raising any issue, fact or claim The recommendation is not adopted. pursuant to section 305(b) of the concerning the document. The designated hearing officer is Multifamily Housing Property In the final rule, the sanctions responsible for exercising an Disposition Reform Act of 1994. In provision is retained as proposed. The independent and good faith judgment addition, the rule eliminates the HA may not rely on a document on the issues presented. Factual requirement for a HUD-approved HA withheld from disclosure. Similarly, the determinations concerning the schedule of leasing. The final rule also rule provides that the family may not individual family must be based on limits the initial PBC HAP contract term rely on a document not produced at evidence presented at hearing. An HA to five years, the typical funding term request of the HA. Any additional employee or officer can render a fair and for new units. sanctions for non-disclosure are left to objective judgment. Conversely, Other changes have been made the authority and judgment of the precluding use of HA employees or throughout the rule to delete hearing officer, and should not be officers will generally increase the requirements on matters which do not prescribed in the rule. The hearing expense of the hearing process. (For full need to be regulated. officer may tailor the character and discussion of the basis of the current PBC: Maximum Number of PBC Units; severity of the sanction to the facts of provisions, see 49 FR 12229–12230) Application to Implement a PBC the immediate case. At request of the other party, the HA X. Section 8 Certificate Program: Program or family must produce documents that Project-Based Assistance (PBC) Comments suggested that HUD should are ‘‘directly relevant’’ to the hearing. PBC: Moving the Rule allow project-basing in the voucher Comments recommend that the rule program, and should increase the designate what documents must be The regulations for the Project-based percentage of certificate units which released in discovery with more Certificate (PBC) Program have been may be project-based. These suggestions specificity. HUD believes that the moved to a separate subpart, 24 CFR have not been adopted. The statute does proposed standard is an adequate guide. part 983, since the tenant-based and not permit project-basing of voucher As under any such standard, there can project-based programs are very units. The statute does not require that be disputes at the margin whether different. HUD permit project basing for more particular documents are directly PBC: Reducing Program Complexity and than 15 percent of assistance under the relevant to the issues at the hearing. HUD Involvement; Initial HAP Contract certificates (or 30 percent for HUD is unable to devise a better Term rehabilitation of certain State-assisted standard, and no such standard is units). suggested in the comments. Comments state that the PBC program In order to further simplify program Comments express concern that the is difficult for HAs and HUD to administration and in recognition that family may lose documents. Under the administer, and operationally complex the ACC no longer lists the number of rule, the HA can devise appropriate for all parties. The extent and timeliness units by bedroom size, the references to procedures for inspection of documents, of HUD review is criticized. Comments the 15 and 30 percent limits in including provision for supervised state that the PBC regulations § 983.702 and § 983.703 have been inspection. The HA is not required to inappropriately require HUD PBC revised to delete reference to ‘‘units allow the family to remove documents reviews similar to the HUD reviews for under ACC’’. The 15 and 30 percent or files from the HA offices. The HA applications for long term subsidy limits apply to the number of budgeted could, if desired, provide document contracts under the Section 202 and certificate units, not the number of units copies to minimize the risk of losing Section 8 new construction programs. under ACC. originals or corruption of HA files. Comments note that the level of HUD Section 983.3 has also been revised to The rule provides that the family may activity for the PBC program is not delete the requirement that HAs copy HA documents ‘‘at the family’s justified by a five-year subsidy indicate the bedroom sizes of the PBC expense’’. (§ 982.555(e)(2)(i)) Comments commitment. units and identify a funding source for suggest that the HA should not be HUD agrees that the HUD oversight is purposes of determining the maximum permitted to charge the family for excessive for a five-year subsidy PBC HAP contract term. When copying documents. The comment is commitment, especially considering the approving the HAP contract term for not adopted. The HA may work out limited HUD field office staff capacity to PBC units, the HA must ensure that the appropriate local policies on copying perform PBC reviews. The final rule contract authority for the funding source charges (for example, policies that allow significantly decreases HUD review exceeds the estimated annual housing free copying of a limited number of responsibilities for the PBC program, assistance payments for all tenant-based pages). and simplifies program administration. and project-based HAP contracts funded The requirements for a HUD cost from the funding source. Hearing Officer containment review and As in the past, the rule provides that intergovernmental review have been PBC: Funding a hearing may be conducted by any deleted. Initial contract rents for non- Several comments recommend that person or persons designated by the HA, HUD insured, non-HA owned PBC HUD provide special funding for the other than a person who made or projects will be set by the HA, based on PBC program. If HUD specifically approved the decision under review or appraisals conducted by a State certified allocated funds for PBC, HAs would be Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34693 coerced to implement a PBC program in requirements such as Davis-Bacon wage not modify current program order to receive funds. Fearing that HUD rates. requirements in these areas. might in fact be considering setting The final rule also deletes the PBC: Organization of the Rule aside funds for the PBC program, prohibition against selecting HUD- Congressional members instructed HUD owned properties for the PBC program. The section numbers have been in March 1988 that fair share allocations revised since the PBC rule is now part PBC: Disabled Issues of certificate funding should be 983 instead of a subpart under part 882. distributed as done in the past without Comment suggested language changes In addition, the housing quality regard to the PBC program, and to use phrase ‘‘disabled’’ instead of standards for rehabilitation and new ‘‘whether or not HAs decide to attach ‘‘handicapped’’. This comment is construction units were combined Section 8 existing contracts to specific accommodated throughout Part 983. In under one section instead of being buildings should not affect HUD’s addition, the rule has been clarified to contained in separate sections. regular selection procedure’’. state that accessibility improvements Likewise, the site and neighborhood which are counted towards the $1000 standards for rehabilitation and new PBC: Ineligible Housing; Use of State, per unit rehabilitation eligibility construction units which were formally Local, and Federal Subsidies threshold are limited to accessibility contained in separate sections were Many comments object to the improvements to the property required combined under one section. proposed prohibition against selecting by Section 504 of the Rehabilitation Act XI. Findings and Certifications housing for the PBC program which in of 1973 and the Fair Housing the past five years received (or will Amendments Act of 1988. (§ 983.8) A. Impact on the Economy receive) local or State government PBC: Relocation This rule does not constitute a ‘‘major below-market mortgage interest subsidy, rule’’ as that term is defined in Section construction or rehabilitation subsidy, There was one comment on the 1(b) of Executive Order 12291, or project-based rent subsidy. revised PBC relocation requirements. Regulatory Planning Process. Analysis Comments state that subsidies from This comment was addressed in the of the rule indicates that it does not: (1) many sources are often necessary to final PBC relocation rule published in Have an annual effect on the economy construct or rehabilitate low-income the Federal Register on June 6, 1994. of $100 million or more; (2) cause a housing. Local and State subsidies may The final rule relocation text is major increase in costs or prices for result in lower rents and shallower incorporated into this rulemaking and is consumers, individual industries, federal subsidies. One comment located in § 983.10. federal, State or local government recommended that any subsidy PBC: Owner Selection Policies agencies or geographic regions; or (3) restrictions should be limited to have a significant adverse effect on programs that prohibit rents in excess of Comment questioned the need for competition, employment, investment, fixed percentages of income equal to or HUD to approve owner PBC tenant productivity, innovation or on the less than the limits used for the public selection policies and notify families of ability of United States-based housing and Section 8 programs. In the reasons why they were not selected. enterprises to compete with foreign- response to these public comments, Comment states that HUD has based enterprises in domestic or export HUD is deleting the proposed subsidy implemented the statute verbatim and markets. prohibition against providing PBC for a requests that HUD provide mandatory project that has received subsidy in the standards concerning tenant suitability B. Impact on the Environment last 5 years. identical to those contained in the A Finding of No Significant Impact Comments objected to the proposed public housing rule at 24 CFR 960.205. (FONSI) with respect to the provision disqualifying housing for the Comment erroneously states that environment was made in connection PBC program if the rehabilitation or standards are necessary since families with the proposed rule in accordance construction is begun before execution rejected for a PBC unit cannot seek other with HUD regulations at 24 CFR part 50 of the Agreement to Enter Into a HAP housing assisted in the tenant-based that implement section 102(2)(C) of the Contract (Agreement). Comments certificate program. The comment is National Environmental Policy Act of pointed out that developers often begin wrong. A family rejected by a PBC 1969, 42 U.S.C. 4332. Since the construction or rehabilitation work prior owner does not lose eligibility for, or provisions of this final rule with respect to Agreement in order to secure tax position on, the waiting list for tenant- to the effect on the environment are not credits and other funding commitments. based assistance. changed from the proposed rule, the HUD has limited flexibility in this area. HUD agrees that a requirement for original FONSI is still valid. The FONSI The statute requires that the owner HUD approval of owner PBC tenant is available for public inspection and ‘‘agree’’ to construct or perform the selection policies is not necessary. Since copying during regular business hours qualifying rehabilitation. Thus, an HUD approval of the owner’s policies in (7:30 a.m. to 5:30 p.m.) in the Office of Agreement must be executed prior to this area is not mandated by the statute, the Rules Docket Clerk, room 10276, 451 any construction or the qualifying the final rule does not include the Seventh Street, SW., Washington, DC rehabilitation. The final rule continues requirement that the owner’s tenant 20410–0500. to restrict all pre-Agreement selection policy be submitted to the C. Federalism Impact construction or rehabilitation. Although HUD field office for review and HUD has latitude under the statute to approval. HUD declines to impose The General Counsel, as the allow commencement of rehabilitation additional regulatory requirements in Designated Official under section 6(a) of in excess of the $1000 per unit this area. Executive Order 12612, Federalism, has qualifying rehabilitation threshold, HUD determined that the policies contained has decided not to exercise this PBC: Contract Rents in this rule have impact on States or authority since owners may begin The comments concerning initial their political subdivisions only to the rehabilitation early to circumvent contract rents and contract rent extent required by the statute being compliance with the PBC relocation adjustments will be addressed in a later implemented. Since the rule merely requirements and other federal rulemaking. Today’s rulemaking does carries out a statutory mandate and does 34694 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations not create any new significant 24 CFR Part 983 §§ 882.103, 882.104, 882.105, 882.107, requirements, it is not subject to review 882.116, 882.117, 882.119 and 882.121 Grant programs—housing and [Removed and Reserved] under the Executive Order. community development, Rent 4. In subpart A of this part 882, the D. Impact on the Family subsidies, Reporting and recordkeeping requirements. following sections are removed and The General Counsel, as the reserved: §§ 882.103, 882.104, 882.105, Accordingly, Parts 882 and 887 of Designated Official under Executive 882.107, 882.116, 882.117, 882.119 and chapter VIII and Parts 982 and 893 of Order 12606, The Family, has 882.121. determined that this rule does not have Chapter IX of title 24 of the Code of potential for significant impact on Federal Regulations are amended as § 882.123 [Amended] family formation, maintenance, and follows: 5. In § 882.123, paragraphs (a) through 1. The heading for part 882 is revised general well-being, and, thus is not (d), and paragraph (f), are removed and to read as follows: subject to review under the Order. reserved, and paragraph (i) is removed. E. Impact on Small Entities PART 882ÐSECTION 8 CERTIFICATE §§ 882.201±882.211, 882.213, 882.215, AND MODERATE REHABILITATION 882.216, and Appendix I of Subpart B The Secretary, in accordance with the PROGRAMS [Amended] Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this rule before 2. The authority citation for part 882 6. In subpart B of this part 882, publication and by approving it certifies is revised to read as follows: §§ 882.201 through 882.211, 882.213, 882.215, and 882.216 are removed and that this rule will not have a significant Authority: 42 U.S.C. 1437f and 3535(d). impact on a substantial number of small reserved, and Appendix I is removed. entities, because it does not place major 3. Section 882.101 is amended by 7. Subpart G of this part 882 is burdens on housing authorities or revising paragraph (b), and by adding amended by revising § 882.701, to read housing owners. new paragraphs (c) and (d), to read as as follows: follows: F. Regulatory Agenda § 882.701 Purpose and applicability. § 882.101 Applicability and scope. This rule was listed as sequence Subpart G of this part states number 1531 under the Office of the * * * * * requirements concerning initial and Assistant Secretary for Public and (b) Existing Housing means housing adjusted Contract Rents in the Section 8 Indian Housing in the Department’s that is in Decent, Safe, and Sanitary project-based certificate program. Other Semiannual Regulatory Agenda condition. Existing Housing does not program regulations for the Section 8 published on May 8, 1995 (60 FR 23368, include public housing. project-based certificate program are (c) Certificate program. (1) Program 23403) in accordance with Executive located at 24 CFR part 983. regulations for the Section 8 tenant- Order 12866 and the Regulatory based certificate and voucher programs §§ 882.702 through 882.713 [Removed and Flexibility Act. are located at 24 CFR part 982. Program Reserved] Regulatory Review regulations for the Section 8 project- 8. Sections 882.702 through 882.713 This rule was reviewed by the Office based certificate program are located at are removed and reserved. of Management and Budget under 24 CFR part 983. (2) The following provisions of §§ 882.716 through 882.759 [Removed] Executive Order 12866, Regulatory subpart A of this part are applicable to 9. Sections 882.716 through 882.759 Planning and Review. Any changes the Section 8 certificate program: are removed. made to the rule as a result of that §§ 882.101, 882.106, 882.108, 882.110, review are clearly identified in the and paragraphs (m), (n), (o), (p) and (q) PART 887ÐHOUSING VOUCHERS docket file, which is available for public of § 882.109. inspection in the office of the 10. The authority citation for part 887 (3) In applying provisions of subpart Department’s Rules Docket Clerk, room is revised to read as follows: A of this part, the definitions in 10276, 451 Seventh St. SW., Authority: 42 U.S.C. 1437f(o) and 3535(d). § 882.102 are applicable to the Section Washington, DC 20410. 8 certificate program. 11. In subpart A of this part 887, List of Subjects (4) Subparts C and F of this part are § 887.3 is revised, to read as follows: applicable to the Section 8 certificate 24 CFR Part 882 § 887.3 Scope and applicability. program. Grant programs—housing and (5) Subpart G of this part is applicable (a) The provisions of this part apply community development, Homeless, to the Section 8 project-based certificate to the Section 8 voucher program Lead poisoning, Manufactured homes, program. authorized by section 8(o) of the 1937 Rent subsidies, Reporting and (d) Moderate rehabilitation programs. Act. This part states voucher program recordkeeping requirements. (1) Subparts D and E of this part are requirements concerning the payment applicable to the Section 8 Moderate standard and housing assistance 24 CFR Part 887 Rehabilitation Program. For payment, and concerning special Grant programs—housing and applicability of other part 882 housing types. Other program community development, Rent provisions to this program, see regulations for the Section 8 tenant- subsidies, Reporting and recordkeeping § 882.401(d). based certificate and voucher programs requirements. (2) Subpart H of this part is applicable are located at 24 CFR part 982. to the Section 8 Moderate Rehabilitation 24 CFR Part 982 (b) The definitions in § 887.7 are Single Room Occupancy Program for applicable in applying the provision of Grant programs—housing and Homeless Individuals. For applicability this part. community development, Housing, Rent of other part 882 provisions to this subsidies, Reporting and recordkeeping program, see references in subpart H of § 887.5 [Removed] requirements. this part. 12. Section 887.5 is removed. Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34695 Subparts B through G and Subpart I Subpart FÐ[Reserved] Subpart MÐSpecial Housing TypesÐ [Reserved] [Removed and Reserved] Subpart GÐLeasing a Unit Subpart AÐGeneral Information 13. Subparts B through G and Subpart 982.301 Information when family is selected. I of this part 887 are removed and 982.302 Issuance of certificate or voucher; § 982.1 Tenant-based programs: Purpose reserved. Requesting HA approval to lease a unit. and structure. 982.303 Term of certificate or voucher. (a) General description. (1) The HUD Subpart L [Removed] 982.304 Illegal discrimination: HA rental voucher program and the HUD assistance to family. rental certificate program provide rent 13a. Subpart L of this part 887 is 982.305 HA approval to lease a unit. subsidies so eligible families can afford removed. 982.306 HA disapproval of owner. rent for decent, safe, and sanitary 982.307 Owner responsibility for screening housing. Both programs are PART 982ÐSECTION 8 TENANT- tenants. administered by State, local BASED ASSISTANCE: UNIFIED RULE 982.308 Lease. governmental or tribal bodies called FOR TENANT-BASED ASSISTANCE 982.309 Term of assisted tenancy. housing agencies (HAs). HUD provides UNDER THE SECTION 8 RENTAL 982.310 Owner termination of tenancy. funds to an HA for rent subsidy on CERTIFICATE PROGRAM AND THE 982.311 When assistance is paid. behalf of eligible families. HUD also SECTION 8 RENTAL VOUCHER 982.312 Absence from unit. provides funds for HA administration of PROGRAM 982.313 Security deposit; Amounts owed the programs. by tenant. (2) Families select and rent units that 14. The authority citation for part 982 982.314 Move with continued tenant-based meet program housing quality is revised, to read as follows: assistance. standards. If the HA approves a family’s 982.315 Family break-up. Authority: 42 U.S.C. 1437f and 3535(d). unit and lease, the HA contracts with Subpart HÐWhere Family Can Live and the owner to make rent subsidy 15. In part 982, Subpart A is revised; Move payments on behalf of the family. An subparts B, C, D, G, H, I, J, and L are 982.351 Overview. HA may not approve a lease unless the added; and subparts F, K, and M are 982.352 Eligible housing. rent is reasonable. reserved, to read as follows: 982.353 Where family can lease a unit with (3) In the certificate program, the tenant-based assistance. rental subsidy is generally based on the Subpart AÐGeneral Information 982.354 Portability: Administration by actual rent of a unit leased by the Sec. initial HA outside the initial HA assisted family. In the voucher program, 982.1 Tenant-based programs: Purpose and jurisdiction. the rental subsidy is determined by a structure. 982.355 Portability: Administration by formula, and is not based on the actual 982.2 Applicability. receiving HA. rent of the leased unit. 982.3 HUD. Subpart IÐDwelling Unit: Housing Quality (4) In the certificate program, the unit 982.4 Definitions. Standards, Subsidy Standards, Inspection rent generally may not exceed a HUD- 982.5 Notices required by this part. and Maintenance published fair market rent for rental Subpart BÐHUD Requirements and HA 982.401 Housing quality standards (HQS). units in the local housing market. For Plan for Administration of Program 982.402 Subsidy standards. most families, the subsidy is the 982.51 HA authority to administer program. 982.403 Terminating HAP contract: When difference between the unit rent and 30 982.52 HUD requirements. unit is too big or too small. percent of adjusted monthly income. In 982.53 Equal opportunity requirements. 982.404 Maintenance: Owner and family the voucher program, the subsidy for 982.54 Administrative plan. responsibility; HA remedies. most families is the difference between 982.405 HA periodic unit inspection. 30 percent of adjusted monthly income Subpart CÐFunding and HA Application for 982.406 Enforcement of HQS. and a ‘‘payment standard’’ that is based Funding on the HUD-published fair market rent. Subpart JÐHousing Assistance Payments 982.101 Allocation of funding. Contract and Owner Responsibility If the unit rent is less than the voucher 982.102 HA application for funding. payment standard, the family pays a 982.103 HUD review of application. 982.451 Housing assistance payments smaller share of the rent. If the unit rent contract. Subpart DÐAnnual Contributions Contract is more than the payment standard, the 982.452 Owner responsibilities. family pays a larger share of the rent. and HA Administration of Program 982.453 Owner breach of contract. (b) Tenant-based and project-based 982.151 Annual contributions contract. 982.454 Termination of HAP contract: Insufficient funding. assistance. (1) Section 8 assistance may 982.152 Administrative fee. be ‘‘tenant-based’’ or ‘‘project-based’’. In 982.153 HA responsibilities. 982.455 Termination of HAP contract: Expiration and opt-out. project-based programs, rental 982.154 ACC reserve account. assistance is paid for families who live 982.155 Administrative fee reserve. 982.456 Third parties. 982.457 Owner refusal to lease. in specific housing developments or 982.156 Depositary for program funds. units. With tenant-based assistance, the 982.157 Budget and expenditure. Subpart KÐRent and Housing Assistance assisted unit is selected by the family. 982.158 Program accounts and records. PaymentÐ[Reserved] The family may rent a unit anywhere in 982.159 Audit requirements. Subpart LÐFamily Obligations; Denial and the United States in the jurisdiction of 982.160 HUD determination to administer a Termination of Assistance local program. an HA that runs a certificate or voucher 982.161 Conflict of interest. 982.551 Obligations of participant. program. 982.162 Use of HUD-required contracts and 982.552 HA denial or termination of (2) Except for project-based assistance other forms. assistance for family. under the certificate program (covered 982.163 Fraud recoveries. 982.553 Crime by family members. in 24 CFR part 983), all assistance under the certificate and voucher programs is * * * * * 982.554 Informal review for applicant. 982.555 Informal hearing for participant. ‘‘tenant-based’’. After the family selects 34696 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations a suitable unit, the HA enters into a policies for administration of the tenant- Drug-related criminal activity. Term contract with the owner to make rent based programs. See Part B of part 982. means: subsidy payments to the owner to Section 982.54 describes subjects that (1) Drug-trafficking; or subsidize occupancy by the family. The must be covered in the administrative (2) Illegal use, or possession for contract only covers a single unit and plan. personal use, of a controlled substance the specific assisted family. If the family Admission. The effective date of the (as defined in section 102 of the moves out of the leased unit, the first HAP contract for a family (first day Controlled Substances Act (21 U.S.C. contract with the owner terminates. In of initial lease term) in a tenant-based 802). the tenant-based programs, the family program. This is the point when the Drug-trafficking. The illegal may move to another unit with family becomes a participant in the manufacture, sale or distribution, or the continued assistance so long as the program. possession with intent to manufacture, family is complying with program Annual contributions contract (ACC). sell or distribute, of a controlled requirements. A written contract between HUD and an substance (as defined in section 102 of HA. Under the contract HUD agrees to the Controlled Substances Act (21 § 982.2 Applicability. provide funding for operation of the U.S.C. 802)). (a) Part 982 is a unified statement of program, and the HA agrees to comply Elderly person. A person who is at program requirements for the tenant- with HUD requirements for the program. least 62 years of age. based housing assistance programs Annual income. Defined in 24 CFR Eligibility. See § 982.201. under Section 8 of the United States 813.106. Exception rent. In the certificate Housing Act of 1937 (42 U.S.C. 1437f). Applicant (applicant family). A family program, an initial rent (contract rent The tenant-based programs are the that has applied for admission to a plus any utility allowance) in excess of Section 8 tenant-based rental certificate program, but is not yet a participant in the published FMR. In the certificate program and the Section 8 rental the program. program, the exception rent is approved voucher program. Budget authority. An amount by HUD, and is used in determining the (b) Unless specifically stated in this authorized and appropriated by the initial contract rent. In the voucher part, requirements for both tenant-based Congress for payment to HAs under the program, the HA may adopt a payment programs are the same. program. For each funding increment in standard up to the exception rent limit an HA program, budget authority is the approved by HUD for the HA certificate § 982.3 HUD. maximum amount that may be paid by program. The HUD field offices have been HUD to the HA over the ACC term of the Fair market rent (FMR). The rent, delegated responsibility for day-to-day funding increment. including the cost of utilities (except administration of the program by HUD. Certificate. A document issued by an telephone), that would be required to be In exercising these functions, the field HA to a family selected for admission to paid in the housing market area to offices are subject to HUD regulations the rental certificate program. The obtain privately owned, existing, and other HUD requirements issued by certificate describes the program, and decent, safe and sanitary rental housing HUD headquarters. Some functions are the procedures for HA approval of a unit of modest (non-luxury) nature with specifically reserved to HUD selected by the family. The certificate suitable amenities. Fair market rents for headquarters. also states the obligations of the family existing housing are established by HUD under the program. for housing units of varying sizes § 982.4 Definitions. Certificate or voucher holder. A (number of bedrooms), and are Absorption. In portability, the point at family holding a voucher or certificate published in the Federal Register in which a receiving HA stops billing the with unexpired search time. accordance with 24 CFR part 888. initial HA for assistance on behalf of a Certificate program. Rental certificate Family. See 24 CFR 812.2. Family portability family. The receiving HA program. composition is discussed at uses funds available under the receiving Consolidated annual contributions § 982.201(c). HA consolidated ACC. contract (consolidated ACC). See Family self-sufficiency program (FSS ACC. Annual contributions contract. § 982.151. program). The program established by ACC reserve account (formerly Contiguous MSA. In portability, an an HA to promote self-sufficiency of ‘‘project reserve’’). Account established MSA that shares a common boundary assisted families, including the by HUD from amounts by which the with the MSA in which the jurisdiction provision of supportive services (42 maximum payment to the HA under the of the initial HA is located. U.S.C. 1437u). See 24 CFR part 984. consolidated ACC (during an HA fiscal Continuously assisted. An applicant is Family unit size. The appropriate year) exceeds the amount actually continuously assisted under the 1937 number of bedrooms for a family. approved and paid. This account is used Housing Act if the family is already Family unit size is determined by the as the source of additional payments for receiving assistance under any 1937 HA under the HA subsidy standards. the program. Housing Act program when the family Federal preference. A preference Adjusted income. Defined in 24 CFR is admitted to the certificate or voucher under federal law for admission of 813.102. program. applicant families that are any of the Administrative fee. Fee paid by HUD Contract authority. The maximum following: to the HA for administration of the annual payment by HUD to an HA for (1) Involuntarily displaced. program. a funding increment. (2) Living in substandard housing Administrative fee reserve (formerly Disabled person. See the definition of (including families that are homeless or ‘‘operating reserve’’). Account Person with disabilities. living in a shelter for the homeless). established by HA from excess Displaced person. Defined in 24 CFR (3) Paying more than 50 percent of administrative fee income. The 812.2. family income for rent. administrative fee reserve must be used Domicile. The legal residence of the Federal preference holder. An for housing purposes. See § 982.155. household head or spouse as applicant that qualifies for a federal Administrative plan. The determined in accordance with State preference. administrative plan describes HA and local law. FMR. Fair market rent. Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34697 FMR/exception rent limit. The Section (1) By exercise of the power of self- MSA. Metropolitan statistical area. 8 existing housing fair market rent government of an Indian Tribe, 1937 Housing Act. The United States published by HUD headquarters, or any independent of State law; or Housing Act of 1937 (42 U.S.C. 1437 exception rent. In the certificate (2) By operation of State law and following sections). The HUD program, the initial contract rent for a providing specifically for housing tenant-based program is authorized by dwelling unit plus any utility allowance authorities for Indians. Section 8 of the 1937 Housing Act (42 may not exceed the FMR/exception rent Initial contract rent. In the certificate U.S.C. 1437f). limit (for the dwelling unit or for the program, the contract rent at the 1937 Housing Act program. Any of family unit size). In the voucher beginning of the initial lease term. the following programs: program, the HA may adopt a payment Initial HA. In portability, the term (1) The public housing program or standard up to the FMR/exception rent refers to both: Indian housing program. limit. (1) An HA that originally selected a (2) Any program assisted under FSS program. Family self-sufficiency family that subsequently decides to Section 8 of the 1937 Act (42 U.S.C. program. move out of the jurisdiction of the 1437f) (including assistance under a Funding increment. Each commitment selecting HA. Section 8 tenant-based or project-based of budget authority by HUD to an HA (2) An HA that absorbed a family that program). under the consolidated annual subsequently decides to move out of the (3) The Section 23 leased housing contributions contract for the HA jurisdiction of the absorbing HA. program. (4) The Section 23 housing assistance program. Initial lease term. The initial term of payments program. (‘‘Section 23’’ means HA. Housing Agency. the assisted lease. The initial lease term HAP contract. Housing assistance must be for at least one year. Section 23 of the United States Housing payments contract. Initial rent to owner. The rent to Act of 1937 before enactment of the Housing agency (HA). A State, county, owner at the beginning of the initial Housing and Community Development municipality or other governmental lease term. Act of 1974.) NOFA. Notice of funding availability. entity or public body (or agency or Jurisdiction. The area in which the HA has authority under State and local Notice of funding availability (NOFA). instrumentality thereof) authorized to For funding (contract or budget engage in or assist in the development law to administer the program. Lease. (1) A written agreement authority) that HUD distributes by or operation of low-income housing, competitive process, HUD headquarters including an Indian housing authority between an owner and a tenant for the leasing of a dwelling unit to the tenant. invites HA applications by publishing a (IHA). (‘‘PHA’’ and ‘‘HA’’ mean the NOFA in the Federal Register. The same thing.) The lease establishes the conditions for occupancy of the dwelling unit by a NOFA explains how to apply for Housing assistance payment. The assistance, and the criteria for awarding monthly assistance payment by an HA. family with housing assistance payments under a HAP Contract the funding. The total assistance payment consists of: Operating reserve. Administrative fee (1) A payment to the owner for rent between the owner and the HA. (2) In cooperative housing, a written reserve. to owner under the family’s lease. Owner. Any person or entity with the agreement between a cooperative and a (2) An additional payment to the legal right to lease or sublease a unit to member of the cooperative. The family if the total assistance payment a participant. exceeds the rent to owner. In the agreement establishes the conditions for Participant (participant family). A certificate program, the additional occupancy of the member’s cooperative family that has been admitted to the HA payment is called a ‘‘utility dwelling unit by the member’s family program, and is currently assisted in the reimbursement’’. with housing assistance payments to the program. The family becomes a Housing assistance payments contract cooperative under a HAP contract participant on the effective date of the (HAP contract). A written contract between the cooperative and the HA. first HAP contract executed by the HA between an HA and an owner, in the For purposes of part 982, the for the family (first day of initial lease form prescribed by HUD headquarters, cooperative is the Section 8 ‘‘owner’’ of term). in which the HA agrees to make housing the unit, and the cooperative member is Payment standard. In the voucher assistance payments to the owner on the section 8 ‘‘tenant’’. program, an amount used by the HA to behalf of an eligible family. Lease addendum. In the lease calculate the housing assistance Housing quality standards (HQS). The between the tenant and the owner, the payment for a family. Each payment HUD minimum quality standards for lease language required by HUD. standard amount is based on the fair housing assisted under the tenant-based Live-in aide. Defined in 24 CFR market rent. The HA adopts a payment programs. See § 982.401. 813.102. standard for each bedroom size and for HQS. Housing quality standards. Local preference. A preference used each fair market rent area in the HA HUD. The U.S. Department of by the HA to select among applicant jurisdiction. The payment standard for a Housing and Urban Development. families without regard to their federal family is the maximum monthly subsidy HUD requirements. HUD preference status. payment. requirements for the Section 8 Local preference limit. Ten percent of PBC. Project-based certificate programs. HUD requirements are issued total annual waiting list admissions to program. See 24 CFR part 983. by HUD headquarters, as regulations, the HA’s tenant-based certificate and Person with disabilities (disabled Federal Register notices or other voucher programs. The local preference person). Defined in 24 CFR 813.102. binding program directives. limit is used to select among applicants PHA. Public housing agency. See IHA. Indian housing authority. without regard to their federal definition of ‘‘housing agency’’. (‘‘Public Indian. Any person recognized as an preference status. housing agency’’ and ‘‘housing agency’’ Indian or Alaska Native by an Indian Low-income family. Defined in 24 mean the same thing.) Tribe, the federal government, or any CFR 813.102. (Section 982.201(b) Portability. Renting a dwelling unit State. describes when a low-income family is with Section 8 tenant-based assistance Indian housing authority (IHA). A income-eligible for admission to the outside the jurisdiction of the initial housing agency established either: certificate or voucher program.) HA. 34698 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations Premises. The building or complex in HA, from the time when the family legislation and a supporting legal which the dwelling unit is located, submits a request for HA approval to opinion satisfactory to HUD. The HA including common areas and grounds. lease a unit, until the time when the HA must submit additional evidence when Program. The tenant-based certificate approves or denies the request. there is a change that affects its status program or voucher program. Tenant. The person or persons (other as an HA, authority to administer the Project-based. Rental assistance that is than a live-in aide) who executes the program, or the HA jurisdiction. attached to the structure. lease as lessee of the dwelling unit. Project-based certificate program Tenant-based. Rental assistance that § 982.52 HUD requirements. (PBC). Project-based assistance under 24 is not attached to the structure. (a) The HA must comply with HUD CFR part 983, using funding under the Tenant rent. In the certificate regulations and other HUD requirements consolidated ACC for the HA certificate program, total tenant payment minus for the program. HUD requirements are program. any utility allowance. issued by HUD headquarters, as Project reserve. ACC reserve account. Total tenant payment. In the regulations, Federal Register notices or See § 982.154. certificate program, defined in 24 CFR other binding program directives. Public housing agency (PHA). A 813.102 and 24 CFR 813.107. (b) The HA must comply with the Housing Agency (HA). Unit. Dwelling unit. consolidated ACC and the HA’s HUD- Ranking preference. A preference United States Housing Act of 1937 approved applications for program used by the HA to select among (1937 Housing Act). The basic law that funding. applicant families that qualify for authorizes the public and Indian § 982.53 Equal opportunity requirements. federal preference. housing programs, and the Section 8 Reasonable rent. A rent to owner that programs. (42 U.S.C. 1437 and following (a) Participation in the tenant-based is not more than either: sections.) program requires compliance with all (1) Rent charged for comparable units Utility allowance. Defined in 24 CFR equal opportunity requirements in the private unassisted market; or 813.102. imposed by contract or federal law, (2) Rent charged by the owner for a Utility reimbursement. In the including applicable requirements comparable assisted or unassisted unit certificate program, the amount, if any, under: in the building or premises. by which any utility allowance for (1) The Fair Housing Act, 42 U.S.C. Receiving HA. In portability, an HA family-paid utilities or other housing 3610–3619 (implementing regulations at that receives a family selected for services exceeds the total tenant 24 CFR parts 100, et seq.); participation in the tenant-based payment. (2) Title VI of the Civil Rights Act of program of another HA. The receiving Very low-income family. Defined in 1964, 42 U.S.C. 2000d (implementing HA issues a certificate or voucher, and 24 CFR 813.102. regulations at 24 CFR part 1); provides program assistance to the Violent criminal activity. Any illegal (3) The Age Discrimination Act of family. criminal activity that has as one of its 1975, 42 U.S.C. 6101–6107 Rental certificate. Certificate. elements the use, attempted use, or (implementing regulations at 24 CFR Rental certificate program. Certificate threatened use of physical force against part 146); program. the person or property of another. (4) Executive Order 11063, Equal Rental voucher. Voucher. Voucher (rental voucher). A Opportunity in Housing (1962), as Rental voucher program. Voucher document issued by an HA to a family amended, Executive Order 12259, 46 FR program. selected for admission to the voucher 1253 (1980), as amended, Executive Rent to owner. The monthly rent program. The voucher describes the Order 12892, 59 FR 2939 (1994) payable to the owner under the lease. program, and the procedures for HA (implementing regulations at 24 CFR Rent to owner includes payment for any approval of a unit selected by the part 107); services, maintenance and utilities to be (5) Section 504 of the Rehabilitation family. The voucher also states the provided by the owner in accordance Act of 1973, 29 U.S.C. 794 obligations of the family under the with the lease. (implementing regulations at 24 CFR program. Residency preference. An HA part 8); and Voucher program. Rental voucher preference for admission of families that (6) Title II of the Americans with program. reside anywhere in a specified area, Disabilities Act, 42 U.S.C. 12101, et seq. Waiting list admission. An admission including families with a member who (b) For the application of equal from the HA waiting list. works or has been hired to work in the opportunity requirements to an Indian area (‘‘residency preference area’’). § 982.5 Notices required by this part. Housing Authority, see 24 CFR 950.115. Residency preference area. The Where part 982 requires any notice to (c) The HA must submit a signed specified area where families must be given by the HA, the family or the certification to HUD of the HA’s reside to qualify for a residency owner, the notice must be in writing. intention to comply with the Fair preference. Housing Act, Title VI of the Civil Rights Special admission. Admission of an Subpart BÐHUD Requirements and HA Act of 1964, the Age Discrimination Act applicant that is not on the HA waiting Plan for Administration of Program of 1975, Executive Order 11063, Section list, or without considering the 504 of the Rehabilitation Act of 1973 applicant’s waiting list position. § 982.51 HA authority to administer and Title II of the Americans with Subsidy standards. Standards program. Disabilities Act. established by an HA to determine the (a) The HA must be a governmental appropriate number of bedrooms and entity or public body with authority to § 982.54 Administrative plan. amount of subsidy for families of administer the tenant-based program. (a) The HA must adopt a written different sizes and compositions. See The HA must provide HUD evidence, administrative plan that establishes definition of ‘‘family unit size’’. satisfactory to HUD, of such authority, local policies for administration of the Suspension. Stopping the clock on the and of the HA jurisdiction. program in accordance with HUD term of a family’s certificate or voucher, (b) The evidence submitted by the HA requirements. The administrative plan for such period as determined by the to HUD must include enabling and any revisions of the plan must be Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34699 formally adopted by the HA Board of (14) For the voucher program: the (c) The application must include all Commissioners or other authorized HA process for establishing and revising information required by HUD. HUD officials. The administrative plan states payment standards, including requirements may be stated in the HUD- HA policy on matters for which the HA affordability adjustments; required form of application, the NOFA, has discretion to establish local policies. (15) Special policies concerning or other HUD instructions. (b) The administrative plan must be in special housing types in the program (d) The application must meet accordance with HUD regulations and (e.g., use of shared housing); and requirements of: other requirements. The HA must revise (16) Policies concerning payment by a (1) HUD’s drug-free workplace the administrative plan if needed to family to the HA of amounts the family regulations at 24 CFR part 24, subpart F; comply with HUD requirements. The owes the HA. and HA must give HUD a copy of the (2) HUD’s anti-lobbying regulations at administrative plan. Subpart CÐFunding and HA 24 CFR part 87. (c) The HA must administer the Application for Funding program in accordance with the HA § 982.103 HUD review of application. administrative plan. § 982.101 Allocation of funding. (a) Processing applications. (1) HUD (d) The HA administrative plan must (a) Allocation to HUD offices. The will provide opportunity for the chief cover HA policies on these subjects: Department allocates budget authority executive officer of the unit of general (1) How the HA selects applicants for the tenant-based programs to HUD local government to review and from the HA waiting list, including field offices. comment on an application for funding applicants with federal and other (b) Section 213(d) allocation. (1) for more than 12 units. The local preferences, and procedures for closing Section 213(d) of the HCD Act of 1974 comment requirements are stated in 24 and reopening the HA waiting list; (42 U.S.C. 1439) establishes CFR part 791, subpart C. (2) Issuing or denying vouchers or requirements for allocation of assisted (2) For competitive funding under a certificates, including HA policy housing budget authority. Some budget NOFA, HUD must evaluate an governing the voucher or certificate authority is exempt by law from application on the basis of the selection term and any extensions or suspension allocation under section 213(d). Unless criteria stated in the NOFA, and must of the term. ‘‘Suspension’’ means exempted by law, budget authority for consider the HA capability to stopping the clock on the term of a the tenant-based programs must be administer the program. family’s certificate or voucher after the allocated in accordance with section (3) HUD must consider any comments family submits a request for lease 213(d). received from the unit of general local approval. If the HA decides to allow (2) Budget authority subject to government. extensions or suspensions of the allocation under section 213(d) is (b) Approval or disapproval of HA certificate or voucher term, the HA allocated in accordance with 24 CFR funding application. (1) HUD must administrative plan must describe how part 791, subpart D. There are three notify the HA of its approval or the HA determines whether to grant categories of section 213(d) funding disapproval of the HA funding extensions or suspensions, and how the allocations under part 791 of this title: application. HA determines the length of any (i) funding retained in a headquarters (2) When HUD approves an extension or suspension; reserve for purposes specified by law application, HUD must notify the HA of (3) Any special rules for use of (e.g., settlement of litigation); the amount of approved funding. available funds when HUD provides (ii) funding incapable of geographic (3) For budget authority that is funding to the HA for a special purpose formula allocation (e.g., for renewal of distributed to HAs by competitive (e.g., desegregation), including funding expiring funding increments); or process, documentation of the basis for for specified families or a specified (iii) funding allocated by an objective provision or denial of assistance is category of families; fair share formula. Funding allocated by available for public inspection in (4) Occupancy policies, including: fair share formula is distributed by a accordance with 24 CFR 12.14(b). (i) Definition of what group of persons competitive process. may qualify as a ‘‘family’’; (c) Competitive process. For budget Subpart DÐAnnual Contributions (ii) Definition of when a family is authority that is distributed by Contract and HA Administration of considered to be ‘‘continuously competitive process, the Department Program assisted’’; (5) Encouraging participation by solicits applications from HAs by publishing one or more notices of § 982.151 Annual contributions contract. owners of suitable units located outside (a) Nature of ACC. (1) An annual areas of low income or minority funding availability (NOFA) in the Federal Register. See 24 CFR part 12, contributions contract (ACC) is a written concentration; contract between HUD and an HA. (6) Assisting a family that claims that subpart B; and 24 CFR 791.406. The Under the ACC, HUD agrees to make illegal discrimination has prevented the NOFA explains how to apply for payments to the HA, over a specified family from leasing a suitable unit; assistance, and specifies the criteria for term, for housing assistance payments to (7) A statement of the HA policy on awarding the assistance. The NOFA may owners and for the HA administrative providing information about a family to identify any special program fee. The ACC specifies the maximum prospective owners; requirements for use of the funding. annual payment by HUD, and the (8) Disapproval of owners; § 982.102 HA application for funding. (9) Subsidy standards; maximum payment over the ACC term. (10) Family absence from the dwelling (a) An HA must submit an application The HA agrees to administer the unit; for program funding to HUD at the time program in accordance with HUD (11) How to determine who remains and place and in the form required by regulations and requirements. in the program if a family breaks up; HUD. (2) HUD’s commitment to make (12) Informal review procedures for (b) For competitive funding under a payments for each funding increment in applicants; NOFA, the application must be the HA program constitutes a separate (13) Informal hearing procedures for submitted by an HA in accordance with ACC. However, commitments for all the participants; the requirements of the NOFA. funding increments in an HA program 34700 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations are listed in one consolidated (2) For each HA fiscal year, outside areas of poverty or racial contractual document called the administrative fees are specified in the concentration; consolidated annual contributions HA budget. The budget is submitted for (4) Encourage owners to make units contract (consolidated ACC). A single HUD approval. Fees are paid in the available for leasing in the program, consolidated ACC covers funding for the amounts approved by HUD. including owners of suitable units HA certificate program and voucher Administrative fees may only be located outside areas of poverty or racial program. approved or paid from amounts concentration; (b) Budget authority and contract appropriated by the Congress. (5) Affirmatively further fair housing authority. (1) Budget authority is the (b) Ongoing administrative fee. (1) goals and comply with equal maximum amount that may be paid by The HA ongoing administrative fee is opportunity requirements; HUD to an HA over the ACC term of a paid for each program unit under HAP (6) Make efforts to help disabled funding increment. Contract authority is contract on the first day of the month. persons find satisfactory housing; the maximum annual payment for the The amount of the ongoing fee is (7) Receive applications from families, funding increment. Budget authority for established by HUD. determine eligibility, maintain the a funding increment is equal to contract (2) If appropriations are available, waiting list, select applicants, issue a authority times the number of years in HUD may pay a higher ongoing voucher or certificate to each selected the increment term. Before adding a administrative fee for a small program family, provide housing information to funding increment to the consolidated or a program operating over a large families selected; ACC for an HA program, HUD reserves geographic area. This higher fee level (8) Determine who can live in the budget authority from amounts will not be approved unless the HA assisted unit, at admission and during authorized and appropriated by the demonstrates that it is efficiently the family’s participation in the Congress for the program. administering its tenant-based program, program; (2) For each funding increment, the and that the higher ongoing (9) Obtain and verify evidence of ACC specifies the initial term over administrative fee is reasonable and citizenship and eligible immigration which HUD will make payments for the necessary for administration of the status in accordance with 24 CFR part HA program, and the contract authority program in accordance with HUD 812; and budget authority for the funding requirements. (10) Review the family’s request for increment. For a given HA fiscal year, (3) HUD may pay a lower ongoing approval of the unit and lease; the amount of HUD’s maximum annual administrative fee for HA-owned units. (11) Inspect the unit before assisted payment for the HA program equals the (c) Preliminary fee. (1) A preliminary occupancy and at least annually during sum of the contract authority for all of fee is paid by HUD for each new unit the assisted tenancy; the funding increments under the added to the HA program. The (12) Determine the amount of the consolidated ACC. However, this preliminary fee is a one time fee for housing assistance payment for a family; maximum amount does not include each new unit supported by a new (13) Determine the maximum rent to contract authority for an expired funding increment. HUD establishes the the owner, and whether the rent is funding increment. If the term of a maximum preliminary fee. reasonable; funding increment expires during the (2) The preliminary fee is used to (14) Make timely housing assistance HA fiscal year, this maximum amount cover expenses that the HA documents payments to an owner in accordance only includes the pro-rata portion of it has incurred to help families who with the HAP contract; contract authority for the portion of the inquire about or apply for the program, (15) Examine family income, size and HA fiscal year prior to expiration. to lease up new units, or to pay for composition, at admission and during (Additional payments may be made family self-sufficiency program the family’s participation in the from the ACC reserve account described activities. program. The examination includes in § 982.154.) However, the amount to (d) Reducing HA administrative fee. verification of income and other family be paid must be approved by HUD, and HUD may reduce or offset any information; may be less than the maximum administrative fee to the HA, in the (16) Establish and adjust HA utility payment. amount determined by HUD, if the HA allowance; fails to perform HA administrative (17) Administer and enforce the § 982.152 Administrative fee. responsibilities correctly or adequately housing assistance payments contract (a) Purposes of administrative fee. (1) under the program (for example, HA with an owner, including taking HUD may approve administrative fees to failure to enforce HQS requirements; or appropriate action, as determined by the the HA for any of the following to reimburse a receiving HA promptly HA, if the owner defaults (e.g., HQS purposes: under portability procedures). violation); (i) Ongoing administrative fee; (18) Determine whether to terminate (ii) Preliminary fee; § 982.153 HA responsibilities. assistance to a participant family for (iii) Cost to help families who (a) The HA must comply with the violation of family obligations; experience difficulty renting consolidated ACC, the application, HUD (19) Conduct informal reviews of appropriate housing; regulations and other requirements, and certain HA decisions concerning (iv) Cost to coordinate supportive the HA administrative plan. applicants for participation in the services for elderly and disabled (b) In administering the program, the program; families; HA must: (20) Conduct informal hearings on (v) Cost to coordinate supportive (1) Publish and disseminate certain HA decisions concerning services for families participating in the information about the availability and participant families; family self-sufficiency (FSS) program; nature of housing assistance under the (21) Provide sound financial (vi) Cost of audit by an independent program; management of the program, including public accountant; and (2) Explain the program to owners and engaging an independent public (vii) Other extraordinary costs families; accountant to conduct audits; and determined necessary by HUD (3) Seek expanded opportunities for (22) Administer an FSS program (if Headquarters. assisted families to locate housing applicable). Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34701 § 982.154 ACC reserve account. (3) If the HA has not adequately (b) The HA must furnish to HUD (a)(1) HUD establishes an unfunded administered any Section 8 program, accounts and other records, reports, reserve account, called the ACC reserve HUD may prohibit use of funds in the documents and information, as required account (formerly ‘‘project reserve’’), for administrative fee reserve, and may by HUD. For provisions on electronic the HA’s program. There are separate direct the HA to use funds in the reserve transmission of required family data, see ACC reserve accounts for the HA’s to improve administration of the 24 CFR part 908. certificate and voucher programs. The program or to reimburse ineligible (c) HUD and the Comptroller General ACC reserve account is established and expenses. of the United States shall have full and free access to all HA offices and maintained in the amount determined § 982.156 Depositary for program funds. by HUD. facilities, and to all accounts and other (2) At the end of each HA fiscal year, (a) Unless otherwise required or records of the HA that are pertinent to HUD credits the ACC reserve account permitted by HUD, all program receipts administration of the program, from the amount by which the sum of must be promptly deposited with a including the right to examine or audit contract authority for all funding financial institution selected as the records, and to make copies. The HA increments under the consolidated ACC depositary by the HA in accordance must grant such access to computerized (maximum annual payment) exceeds the with HUD requirements. or other electronic records, and to any amount actually approved and paid for (b) The HA may only withdraw computers, equipment or facilities the HA fiscal year. However, the deposited program receipts for use in containing such records, and shall maximum annual payment does not connection with the program in provide any information or assistance include contract authority for an accordance with HUD requirements. needed to access the records. expired funding increment. If the term (c) The HA must enter into an (d) The HA must prepare a report of of a funding increment expires during agreement with the depositary in the every unit inspection required under the HA fiscal year, this maximum form required by HUD. this rule. Each report must specify: (d)(1) If required under a written amount only includes the pro-rata (1) Any defects or deficiencies in the freeze notice from HUD to the portion of contract authority for the unit that must be corrected to meet the depositary: funding increment covering the portion HQS; and (i) The depositary may not permit any of the HA fiscal year prior to expiration. (2) Other defects or deficiencies withdrawal by the HA of funds held (b) HUD may approve additional observed by the HA inspector (for use if under the depositary agreement unless payments for the HA program from the owner later claims that the defects expressly authorized by written notice available amounts in the ACC reserve or deficiencies were caused by the from HUD to the depositary; and account. family). (ii) The depositary must permit (e) During the term of each assisted § 982.155 Administrative fee reserve. withdrawals of such funds by HUD. lease, and for at least three years (a) The HA must maintain an (2) HUD must send the HA a copy of thereafter, the HA must keep: administrative fee reserve (formerly the freeze notice from HUD to the (1) A copy of the executed lease; ‘‘operating reserve’’) for the program. depositary. (2) The HAP contract; and There are separate administrative fee § 982.157 Budget and expenditure. (3) The application from the family. (f) The HA must keep the following reserve accounts for the HA’s certificate (a) Budget submission. Each HA fiscal and voucher programs. The HA must records for at least three years: year, the HA must submit its proposed (1) Records that provide income, credit to the administrative fee reserve budget for the program to HUD for the total of: racial, ethnic, gender, and disability approval at such time and in such form status data on program applicants and (1) The amount by which program as required by HUD. administrative fees paid by HUD for an participants; (b) HA use of program receipts. (1) (2) An application from each HA fiscal year exceed the HA program HUD payments under the consolidated administrative expenses for the fiscal ineligible family and notice that the ACC, and any other amounts received applicant is not eligible; year; plus by the HA in connection with the (2) Interest earned on the (3) HUD-required reports.; program, must be used in accordance (4) Unit inspection reports; administrative fee reserve. with the HA HUD-approved budget. (b)(1) The HA must use funds in the (5) Lead-based paint inspection Such HUD payments and other receipts records (as required by § 982.401(j)); administrative fee reserve to pay may only be used for: program administrative expenses in (6) Accounts and other records (i) Housing assistance payments; and supporting HA budget and financial excess of administrative fees paid by (ii) HA administrative fees. HUD for an HA fiscal year. If funds in statements for the program; and (2) The HA must maintain a system to (7) Other records specified by HUD. the administrative fee reserve are not ensure that the HA will be able to make needed to cover HA administrative housing assistance payments for all § 982.159 Audit requirements. expenses (to the end of the last expiring participants within the amounts (a) The HA must engage and pay an funding increment under the contracted under the consolidated ACC. independent public accountant to consolidated ACC), the HA may use conduct audits in accordance with HUD § 982.158 Program accounts and records. these funds for other housing purposes requirements. permitted by State and local law. (a) The HA must maintain complete (b) The HA is subject to the audit However, HUD may prohibit use of the and accurate accounts and other records requirements in 24 CFR part 44. funds for certain purposes. for the program in accordance with (2) The HA Board of Commissioners HUD requirements, in a manner that § 982.160 HUD determination to administer or other authorized officials must permits a speedy and effective audit. a local program. establish the maximum amount that The records must be in the form If the Assistant Secretary for Public may be charged against the required by HUD, including and Indian Housing determines that administrative fee reserve without requirements governing computerized there is no HA organized, or that there specific approval. or electronic forms of record-keeping. is no HA able and willing to implement 34702 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations the provisions of this part for an area, Subpart FÐ[Reserved] centers of employment, schools and HUD (or an entity acting on behalf of shopping; HUD) may enter into HAP contracts Subpart GÐLeasing a Unit (5) Where the family may lease a unit. with owners and perform the functions For a family that qualifies to lease a unit otherwise assigned to HAs under this § 982.301 Information when family is outside the HA jurisdiction under selected. part with respect to the area. portability procedures, the information (a) HA briefing of family. (1) When the packet must include an explanation of § 982.161 Conflict of interest. HA selects a family to participate in a how portability works; (a) Neither the HA nor any of its tenant-based program, the HA must give (6) The HUD-required ‘‘lease contractors or subcontractors may enter the family an oral briefing. The briefing addendum’’. The lease addendum is the into any contract or arrangement in must include information on the language that must be included in the connection with the tenant-based following subjects: lease; (i) A description of how the program programs in which any of the following (7) The form of request for lease works; classes of persons has any interest, approval, and an explanation of how to (ii) Family and owner responsibilities; request HA approval to lease a unit; direct or indirect, during tenure or for and one year thereafter: (8) A statement of the HA policy on (iii) Where the family may lease a providing information about a family to (1) Any present or former member or unit, including renting a dwelling unit prospective owners; officer of the HA (except a participant inside or outside the HA jurisdiction. (9) HA subsidy standards, including commissioner); (2) For a family that qualifies to lease when the HA will consider granting (2) Any employee of the HA, or any a unit outside the HA jurisdiction under exceptions to the standards; contractor, subcontractor or agent of the portability procedures, the briefing must (10) The HUD brochure on how to HA, who formulates policy or who include an explanation of how select a unit; influences decisions with respect to the portability works. The HA may not (11) The HUD lead-based paint (LBP) programs; discourage the family from choosing to brochure; (3) Any public official, member of a live anywhere in the HA jurisdiction, or (12) Information on federal, State and governing body, or State or local outside the HA jurisdiction under local equal opportunity laws, and a legislator, who exercises functions or portability procedures. copy of the housing discrimination (3) If the family is currently living in responsibilities with respect to the complaint form; a high poverty census tract in the HA’s programs; or (13) A list of landlords or other parties jurisdiction, the briefing must also known to the HA who may be willing (4) Any member of the Congress of the explain the advantages of moving to an to lease a unit to the family, or help the United States. area that does not have a high family find a unit; (b) Any member of the classes concentration of poor families. (14) Notice that if the family includes described in paragraph (a) of this (4) In briefing a family that includes a disabled person, the family may section must disclose their interest or any disabled person, the HA must take request a current listing of accessible prospective interest to the HA and HUD. appropriate steps to ensure effective units known to the HA that may be (c) The conflict of interest prohibition communication in accordance with 24 available; under this section may be waived by the CFR 8.6. (15) Family obligations under the HUD field office for good cause. (b) Information packet. When a family program; is selected to participate in the program, (16) The grounds on which the HA § 982.162 Use of HUD-required contracts the HA must give the family a packet may terminate assistance for a and other forms. that includes information on the participant family because of family (a) The HA must use program following subjects: action or failure to act; and contracts and other forms required by (1) The term of the certificate or (17) HA informal hearing procedures. HUD headquarters, including: voucher, and HA policy on any This information must describe when extensions or suspensions of the term. If the HA is required to give a participant (1) The consolidated ACC between the HA allows extensions, the packet family the opportunity for an informal HUD and the HA; must explain how the family can hearing, and how to request a hearing. (2) The HAP contract between the HA request an extension; and the owner; and (2)(i) How the HA determines the § 982.302 Issuance of certificate or (3) The lease language required by housing assistance payment for a family; voucher; Requesting HA approval to lease a unit. HUD (in the lease between the owner (ii) For the certificate program, and the tenant). information on fair market rents and the (a) When a family is selected, the HA HA utility allowance schedule; issues a certificate or voucher to the (b) Required program contracts and family. The family may search for a other forms must be word-for-word in (iii) For the voucher program, information on the payment standard unit. the form required by HUD headquarters. (b) If the family finds a unit, and the Any additions to or modifications of and the HA utility allowance schedule; (3) How the HA determines the owner is willing to lease the unit under required program contracts or other the program, the family may request HA forms must be approved by HUD maximum rent for an assisted unit; (4) What the family should consider approval to lease the unit. The HA has headquarters. in deciding whether to lease a unit, the discretion to permit a family to § 982 Fraud recoveries. including: submit more than one request at a time. (i) The condition of a unit; (c) The family must submit to the HA Under 24 CFR part 792, the HA may (ii) Whether the rent is reasonable; a request for lease approval and a copy retain a portion of program fraud losses (iii) The cost of any tenant-paid of the proposed lease. Both documents that the HA recovers from a family or utilities and whether the unit is energy- must be submitted during the term of owner by litigation, court-order or a efficient; and the certificate or voucher. repayment agreement. (iv) The location of the unit, including (d) The HA specifies the procedure for * * * * * proximity to public transportation, requesting approval to lease a unit. The Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34703 family must submit the request for lease lease a dwelling unit, or execute a HAP (1) The federal government has approval in the form and manner contract, until the HA has determined instituted an administrative or judicial required by the HA. that all the following meet program action against the owner for violation of requirements: the Fair Housing Act or other federal § 982.303 Term of certificate or voucher. (1) The unit is eligible; equal opportunity requirements, and (a) Initial term. The initial term of a (2) The unit has been inspected by the such action is pending; or certificate or voucher must be at least 60 HA and passes HQS; (2) A court or administrative agency calendar days. The initial term must be (3) The lease is approvable and has determined that the owner violated stated on the certificate or voucher. includes the lease addendum; the Fair Housing Act or other federal (b) Extensions of term. (1) At its (4) The rent to owner is reasonable; equal opportunity requirements. discretion the HA may grant a family and (c) In its administrative discretion, the one or more extensions of the initial (5) For a unit leased under the HA may deny approval to lease a unit term in accordance with HA policy as certificate program, the total of contract from an owner for any of the following described in the HA administrative rent plus any utility allowance does not reasons: plan. The initial term plus any exceed the FMR/exception rent limit. (1) The owner has violated obligations extensions may not exceed a total (b) Actions before lease term. All of under a housing assistance payments period of 120 calendar days from the the following must always be completed contract under Section 8 of the 1937 Act beginning of the initial term. Any before the beginning of the lease term: (42 U.S.C. 1437f); extension of the term is granted by HA (1) The HA has inspected the unit, (2) The owner has committed fraud, notice to the family. and has determined that the unit bribery or any other corrupt or criminal (2) If a member of the family is a satisfies the HQS; act in connection with any federal disabled person, and the family needs (2) The landlord and the tenant have housing program; an extension because of the disability, executed the lease; and (3) The owner has engaged in drug- the HA must consider whether to grant (3) The HA has approved leasing of trafficking; a request to extend the term of the the unit in accordance with program (4) The owner has a history or certificate or voucher (up to the requirements. practice of non-compliance with the maximum extension allowed under (c) When HAP contract is executed. HQS for units leased under the tenant- paragraph (b)(1) of this section) as a (1) The HA must use best efforts to based programs, or with applicable reasonable accommodation. execute the HAP contract before the housing standards for units leased with (c) Suspension of term. The HA policy beginning of the lease term. The HAP project-based Section 8 assistance or may or may not provide for suspension contract must be executed no later than leased under any other federal housing program; of the initial or any extended term of the 60 calendar days from the beginning of (5) The owner has a history or certificate or voucher. At its discretion, the lease term. practice of renting units that fail to meet and in accordance with HA policy as (2) The HA may not pay any housing assistance payment to the owner until State or local housing codes; or described in the HA administrative (6) The owner has not paid State or the HAP contract has been executed. plan, the HA may grant a family a local real estate taxes, fines or (3) If the HAP contract is executed suspension of the certificate or voucher assessments. term if the family has submitted a during the period of 60 calendar days (d) Nothing in this rule is intended to request for lease approval during the from the beginning of the lease term, the give any owner any right to participate term of the certificate or voucher. HA will pay housing assistance in the program. (§ 982.4 (definition of ‘‘suspension’’); payments after execution of the HAP (e) For purposes of this section, § 982.54(d)(2)) The HA may grant a contract (in accordance with the terms ‘‘owner’’ includes a principal or other suspension for any part of the period of the HAP contract), to cover the interested party. after the family has submitted a request portion of the lease term before for lease approval up to the time when execution of the HAP contract (a § 982.307 Owner responsibility for the HA approves or denies the request. maximum of 60 days). screening tenants. (d) Progress report by family to the (4) Any HAP contract executed after (a) Owner screening. (1) Listing a HA. During the initial or any extended the 60 day period is void, and the HA family on the HA waiting list, or term of a certificate or voucher, the HA may not pay any housing assistance selecting a family for participation in may require the family to report payment to the owner. the program, is not a representation by progress in leasing a unit. Such reports (d) Notice to family and owner. After the HA to the owner about the family’s may be required at such intervals or receiving the family’s request for expected behavior, or the family’s times as determined by the HA. approval to lease a unit, the HA must suitability for tenancy. At or before HA promptly notify the family and owner approval to lease a unit, the HA must § 982.304 Illegal discrimination: HA whether the assisted tenancy is inform the owner that the HA has not assistance to family. approved. screened the family’s behavior or A family may claim that illegal (e) Procedure after HA approval. If the suitability for tenancy and that such discrimination because of race, color, HA has given approval for the family to screening is the owner’s own religion, sex, national origin, age, lease the unit, the owner and the HA responsibility. familial status or disability prevents the execute the HAP contract. (2) Owners are permitted and family from finding or leasing a suitable encouraged to screen families on the unit with assistance under the program. § 982.306 HA disapproval of owner. basis of their tenancy histories. An The HA must give the family (a) The HA must not approve a unit owner may consider a family’s information on how to fill out and file if the HA has been informed (by HUD background with respect to such factors a housing discrimination complaint. or otherwise) that the owner is debarred, as: suspended, or subject to a limited denial (i) Payment of rent and utility bills; § 982.305 HA approval to lease a unit. of participation under 24 CFR part 24. (ii) Caring for a unit and premises; (a) Program requirements. The HA (b) When directed by HUD, the HA (iii) Respecting the rights of others to may not give approval for the family to must not approve a unit if: the peaceful enjoyment of their housing; 34704 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations (iv) Drug-related criminal activity or the tenant, and a court decision on the of the lease. The lease may provide other criminal activity that is a threat to rights of the parties. This prohibition, either: the life, safety or property of others; and however, does not apply to an (i) For automatic renewal for (v) Compliance with other essential agreement by the tenant concerning successive definite terms (e.g., month- conditions of tenancy. disposition of personal property left in to-month or year-to-year); or (b) HA information about tenant. (1) the dwelling unit after the tenant has (ii) For automatic indefinite extension The HA must give the owner: moved out. The owner may dispose of of the lease term. (i) The family’s current address (as this personal property in accordance (3) The term of the lease terminates if shown in the HA records); and with State and local law. any of the following occurs: (ii) The name and address (if known (3) Excusing owner from (i) The owner terminates the lease; to the HA) of the landlord at the family’s responsibility. Agreement by the tenant (ii) The tenant terminates the lease; current and prior address. not to hold the owner or the owner’s (iii) The owner and the tenant agree (2) When a family wants to lease a agent legally responsible for any action to terminate the lease; dwelling unit, the HA may offer the or failure to act, whether intentional or (iv) The HA terminates the HAP owner other information in the HA negligent. contract; or possession, about the family, including (4) Waiver of notice. Agreement by the (v) The HA terminates assistance for information about the tenancy history of tenant that the owner may bring a the family. family members, or about drug- lawsuit against the tenant without (c) Relation of lease to ACC. The HA trafficking by family members. notice to the tenant. may approve the lease, and execute the HAP contract, even if there is less than (3) The HA must give the family a (5) Waiver of legal proceedings. one year remaining from the beginning statement of the HA policy on providing Agreement by the tenant that the owner of the lease term to the end of the last information to owners. The statement may evict the tenant or household expiring funding increment under the must be included in the information members without instituting a civil consolidated ACC. packet that is given to a family selected court proceeding in which the tenant (d) Lease termination by the family. to participate in the program. The HA has the opportunity to present a (1) The family may terminate the lease policy must provide that the HA will defense, or before a court decision on at any time after the first year. The lease give the same types of information to all the rights of the parties. may not require the family to give more families and to all owners. (6) Waiver of a jury trial. Agreement than 60 calendar days notice of such by the tenant to waive any right to a trial § 982.308 Lease. termination to the owner. (a) Tenant’s legal capacity to enter by jury. (2) If the family terminates the lease lease. The tenant must have legal (7) Waiver of right to appeal court on notice to the owner, the family must capacity to enter into a lease under State decision. Agreement by the tenant to give the HA a copy of the notice of or local law. waive any right to appeal, or to termination at the same time. Failure to (b) HA approval of lease. The assisted otherwise challenge in court, a court do this is a breach of family obligations lease between the tenant and owner decision in connection with the lease. under the program. (including any new lease or lease (8) Tenant chargeable with cost of (e) New lease or revision. (1) Any new revision) must be approved by the HA. legal actions regardless of outcome. lease or lease revision must be approved Before approving the lease or revision, Agreement by the tenant to pay the in advance by the HA. The new lease or the HA must determine that the lease owner’s attorney’s fees or other legal revision must meet the requirements of meets the requirements of this section. costs even if the tenant wins in a court this section. The HA and owner must (c) Required lease provisions. (1) proceeding by the owner against the enter a new HAP contract for the ‘‘Lease addendum’’ means the lease tenant. However, the tenant may be tenancy under the new or revised lease. language required by HUD. obligated to pay costs if the tenant loses. (2) The owner may offer the family a (2) The lease must include word-for- (e) Utilities and appliances. The lease new lease, for a term beginning at any word all provisions of the lease must specify what utilities and time after the initial term. The owner addendum (e.g., by adding the lease appliances are to be supplied by the must give the tenant written notice of addendum to the form of lease used by owner, and what utilities and the offer, with a copy to the HA, at least the owner for unassisted tenants). appliances are to be supplied by the 60 calendar days before the proposed However, the HA may not require family. beginning date of the new lease term. families and owners to use a model (f) State or local law. The HA may The offer must specify a reasonable time program lease. review the lease to determine if the limit for acceptance by the family. (3) If there is any conflict between the lease complies with State or local law. (f) Move from unit. The family must lease addendum and any other The HA may decline to approve the notify the HA and the owner before the provisions of the lease, the provisions lease if the HA determines that the lease family moves out of the unit. Failure to required by HUD shall control. does not comply with State or local law. do this is a breach of family obligations (d) Prohibited lease provisions. The under the program. lease addendum must state that the § 982.309 Term of assisted tenancy. following types of lease provisions are (a) Term of HAP contract. (1) The § 982.310 Owner termination of tenancy. prohibited: term of the HAP contract begins on the (a) Grounds. During the term of the (1) Agreement to be sued. Agreement first day of the term of the lease and lease, the owner may not terminate the by the tenant to be sued, to admit guilt, ends on the last day of the term of the tenancy except on the following or to a judgment in favor of the owner, lease. grounds: in a lawsuit brought in connection with (2) The HAP contract terminates if the (1) Serious or repeated violation of the the lease. lease terminates. terms and conditions of the lease; (2) Treatment of personal property. (b) Term of lease. (1) The initial term (2) Violation of federal, State, or local Agreement by the tenant that the owner of the lease must be for at least one year. law that imposes obligations on the may take, hold, or sell personal property (2) The lease must provide for tenant in connection with the of household members without notice to automatic renewal after the initial term occupancy or use of the premises; or Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34705 (3) Other good cause. residential rental unit; or a business or (c) Termination of payment: Other (b) Nonpayment by HA: Not grounds economic reason for termination of the reasons for termination. Housing for termination of tenancy. (1) The tenancy (see paragraph (d)(1)(iv) of this assistance payments terminate if: family is not responsible for payment of section). (1) The lease terminates; the portion of the rent to owner covered (e) Owner notice.—(1) Notice of (2) The HAP contract terminates; or by the housing assistance payment grounds. (i) The owner must give the (3) The HA terminates assistance for under the HAP contract between the tenant a written notice that specifies the the family. owner and the HA. grounds for termination of tenancy. The (d) Family move-out. (1) If the family (2) The HA failure to pay the housing notice of grounds must be given at or moves out of the unit, the HA may not assistance payment to the owner is not before commencement of the eviction make any housing assistance payment to a violation of the lease between the action. the owner for any month after the tenant and the owner. During the term (ii) The notice of grounds may be month when the family moves out. The of the lease the owner may not included in, or may be combined with, owner may keep the housing assistance terminate the tenancy of the family for any owner eviction notice to the tenant. payment for the month when the family nonpayment of the HA housing (2) Eviction notice. (i) Owner eviction moves out of the unit. assistance payment. (2) If a participant family moves from (c) Criminal activity. Any of the notice means a notice to vacate, or a complaint or other initial pleading used an assisted unit with continued tenant- following types of criminal activity by based assistance, the term of the assisted the tenant, any member of the under State or local law to commence an eviction action. lease for the new assisted unit may household, a guest or another person begin during the month the family under the tenant’s control shall be cause (ii) The owner must give the HA a copy of any owner eviction notice to the moves out of the first assisted unit. for termination of tenancy: Overlap of the last housing assistance (1) Any criminal activity that tenant. payment (for the month when the family threatens the health, safety or right to (3) 90 day notice: HAP contract moves out of the old unit) and the first peaceful enjoyment of the premises by termination. The owner must give 90 assistance payment for the new unit, is other residents; calendar days notice of HAP contract not considered to constitute a (2) Any criminal activity that termination (to HUD, the HA and the duplicative housing subsidy. threatens the health, safety or right to family) in accordance with § 982.455 in peaceful enjoyment of their residences the following cases: § 982.312 Absence from unit. by persons residing in the immediate (i) If the owner terminates the tenancy (a) The family may be absent from the vicinity of the premises; or for other good cause that is a business unit for brief periods. For longer (3) Any drug-related criminal activity or economic reason; or absences, the HA administrative plan on or near the premises. (ii) At ‘‘expiration’’ of the HAP establishes the HA policy on how long (d) Other good cause. (1) ‘‘Other good contract. (‘‘Expiration’’ for this purpose the family may be absent from the cause’’ for termination of tenancy by the is defined at § 982.455(b)(2)(iii).) assisted unit. However, the family may owner may include, but is not limited (f) Eviction by court action. The not be absent from the unit for a period to, any of the following examples: (i) Failure by the family to accept the owner may only evict the tenant from of more than 180 consecutive calendar offer of a new lease or revision; the unit by instituting a court action. days in any circumstance, or for any (ii) A family history of disturbance of (g) Regulations not applicable. 24 CFR reason. At its discretion, the HA may neighbors or destruction of property, or part 247 (concerning evictions from allow absence for a lesser period in of living or housekeeping habits certain subsidized and HUD-owned accordance with HA policy. resulting in damage to the unit or projects) does not apply to a tenancy (b) Housing assistance payments premises; assisted under this part 982. terminate if the family is absent for longer than the maximum period (iii) The owner’s desire to use the unit § 982.311 When assistance is paid. for personal or family use, or for a permitted. The term of the HAP contract purpose other than as a residential (a) Payments under HAP contract. and assisted lease also terminate. rental unit; or Housing assistance payments are paid to (The owner must reimburse the HA (iv) A business or economic reason for the owner in accordance with the terms for any housing assistance payment for termination of the tenancy (such as sale of the HAP contract. Housing assistance the period after the termination.) of the property, renovation of the unit, payments may only be paid to the (c) Absence means that no member of desire to lease the unit at a higher owner during the lease term, and while the family is residing in the unit. rental). (For statutory 90 day notice the family is residing in the unit. (d)(1) The family must supply any requirement if the owner is terminating (b) Termination of payment: When information or certification requested by the tenancy for a business or economic owner terminates the lease. Housing the HA to verify that the family is reason, see § 982.455.) assistance payments terminate when the residing in the unit, or relating to family (2) During the first year of the lease lease is terminated by the owner in absence from the unit. The family must term, the owner may not terminate the accordance with the lease. However, if cooperate with the HA for this purpose. tenancy for ‘‘other good cause’’, unless the owner has commenced the process The family must promptly notify the HA the owner is terminating the tenancy to evict the tenant, and if the family of absence from the unit, including any because of something the family did or continues to reside in the unit, the HA information requested on the purposes failed to do. For example, during this must continue to make housing of family absences. period, the owner may not terminate the assistance payments to the owner in (2) The HA may adopt appropriate tenancy for ‘‘other good cause’’ based on accordance with the HAP contract until techniques to verify family occupancy any of the following grounds: failure by the owner has obtained a court or absence, including letters to the the family to accept the offer of a new judgment or other process allowing the family at the unit, phone calls, visits or lease or revision; the owner’s desire to owner to evict the tenant. The HA may questions to the landlord or neighbors. use the unit for personal or family use, continue such payments until the family (e) The HA administrative plan must or for a purpose other than as a moves from or is evicted from the unit. state the HA policies on family absence 34706 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations from the dwelling unit. The HA absence right to terminate the lease on notice to (4) Other factors specified by the HA. policy includes: the owner, for owner breach or (c) If a court determines the (1) How the HA determines whether otherwise). disposition of property between or when the family may be absent, and (c) How many moves. (1) A members of the assisted family in a for how long. For example, the HA may participant family may move one or divorce or separation under a settlement establish policies on absences because more times with continued assistance or judicial decree, the HA is bound by of vacation, hospitalization or under the program, either inside the HA the court’s determination of which imprisonment; and jurisdiction, or under the portability family members continue to receive (2) Any provision for resumption of procedures. (See § 982.353) assistance in the program. assistance after an absence, including (2) The HA may establish: readmission or resumption of assistance (i) Policies that prohibit any move by Subpart HÐWhere Family Can Live to the family. the family during the initial year of and Move assisted occupancy; and § 982.313 Security deposit: Amounts owed (ii) Policies that prohibit more than § 982.351 Overview. by tenant. one move by the family during any one This subpart describes what kind of (a) The owner may collect a security year period. housing is eligible for leasing, and the deposit from the tenant. (3) The HA policies may apply to areas where a family can live with (b) The HA may prohibit security moves within the HA jurisdiction by a tenant-based assistance. The subpart deposits in excess of private market participant family, and to moves by a covers: practice, or in excess of amounts participant family outside the HA (a) Assistance for a family that rents charged by the owner to unassisted jurisdiction under portability a dwelling unit in the jurisdiction of the tenants. procedures. HA that originally selected the family (c) When the tenant moves out of the (d) Notice that family wants to move. for tenant-based assistance. dwelling unit, the owner, subject to (1) If the family terminates the lease on (b) ‘‘Portability’’ assistance for a State or local law, may use the security notice to the owner, the family must family that rents a unit outside the deposit, including any interest on the give the HA a copy of the notice at the jurisdiction of the initial HA. deposit, in accordance with the lease, as same time. § 982.352 Eligible housing. reimbursement for any unpaid rent (2) If the family wants to move to a payable by the tenant, damages to the new unit, the family must notify the HA (a) Ineligible housing. The following unit or for other amounts the tenant and the owner before moving from the types of housing may not be assisted by owes under the lease. old unit. If the family wants to move to an HA in the tenant-based programs: (d) The owner must give the tenant a a new unit that is located outside the (1) A public housing or Indian written list of all items charged against initial HA jurisdiction, the notice to the housing unit; the security deposit, and the amount of initial HA must specify the area where (2) A unit receiving project-based each item. After deducting the amount, the family wants to move. See assistance under section 8 of the 1937 if any, used to reimburse the owner, the portability procedures in subpart H of Act (42 U.S.C. 1437f); owner must refund promptly the full this part. (3) Nursing homes, board and care (e) When HA may deny permission to amount of the unused balance to the homes, or facilities providing continual move. (1) The HA may deny permission tenant. psychiatric, medical, or nursing to move if the HA does not have (e) If the security deposit is not services; sufficient funding for continued sufficient to cover amounts the tenant (4) College or other school assistance. owes under the lease, the owner may dormitories; (2) At any time, the HA may deny (5) Units on the grounds of penal, seek to collect the balance from the permission to move in accordance with tenant. reformatory, medical, mental, and § 982.552 (grounds for denial or similar public or private institutions; § 982.314 Move with continued tenant- termination of assistance). (6) A unit occupied by its owner or by based assistance. § 982.315 Family break-up. a person with any interest in the (a) Applicability. This section states (a) The HA has discretion to dwelling unit. (However, assistance may when a participant family may move to determine which members of an be provided for a family residing in a a new unit with continued tenant-based assisted family continue to receive cooperative. In the certificate program, assistance: assistance in the program if the family assistance may be provided to the owner (b) When family may move. A family breaks up. The HA administrative plan of a manufactured home leasing a may move to a new unit if: must state HA policies on how to decide manufactured home space. In the case of (1) The assisted lease for the old unit who remains in the program if the shared housing, an owner unrelated to has terminated. This includes a family breaks up. the assisted family may reside in the termination because: (b) The factors to be considered in unit, but assistance may not be paid on (i) The HA has terminated the HAP making this decision under the HA behalf of the resident owner.); and contract for the owner’s breach; or policy may include: (7) For provisions on HA disapproval (ii) The lease has terminated by (1) Whether the assistance should of an owner, see § 982.306. mutual agreement of the owner and the remain with family members remaining (b) HA-owned housing. (1) A unit that tenant. in the original assisted unit. is owned by the HA that administers the (2) The owner has given the tenant a (2) The interest of minor children or assistance under the consolidated ACC notice to vacate, or has commenced an of ill, elderly or disabled family (including a unit owned by an entity action to evict the tenant, or has members. substantially controlled by the HA) may obtained a court judgment or other (3) Whether family members are only be assisted under the tenant-based process allowing the owner to evict the forced to leave the unit as a result or program if: tenant. actual or threatened physical violence (i) The family has been informed by (3) The tenant has given notice of against family members by a spouse or the HA, both orally and in writing, that lease termination (if the tenant has a other member of the household. the family has the right to select any Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34707 eligible dwelling unit, and an HA- provided in paragraph (c) of this rent to owner (voucher program) owned unit is freely selected by the section, the family may receive tenant- exceeds a reasonable rent, the HA may family, without HA pressure or steering; based assistance to lease a unit outside not directly or indirectly reduce the (ii) The unit is not ineligible housing; the initial HA jurisdiction: family’s opportunity to select among (iii) During assisted occupancy, the (1) In the same State as the initial HA; available units. family does not benefit from any form (2) In the same metropolitan statistical of housing subsidy prohibited under area (MSA) as the initial HA, but in a § 982.354 Portability: Administration by initial HA outside the initial HA jurisdiction. paragraph (c) of this section; different State; (iv) The initial contract rent (for a (3) In an MSA that is next to the same (a) When a family moves under certificate program unit) and the initial MSA as the initial HA, but in a different portability (in accordance with rent to owner (for a voucher program State; or § 982.353(b)) to an area outside the unit) has been approved by HUD before (4) In the jurisdiction of an HA initial HA jurisdiction, the initial HA execution of the HAP contract and anywhere in the United States that is must administer assistance for the commencement of the assisted lease administering a tenant-based program. family if: term; and (c) Nonresident applicants. (1) This (1) The unit is located within the (v) Any adjustment of the contract paragraph (c) applies if neither the same State as the initial HA, in the same rent (for a certificate program unit) and household head or spouse of an assisted metropolitan statistical area (MSA) as any changes in the rent to owner (for a family already had a ‘‘domicile’’ (legal the initial HA (but in a different State), voucher program unit) is approved in residence) in the jurisdiction of the or in an MSA that is next to the same advance by HUD. initial HA at the time when the family MSA as the initial HA (but in a different (2) The HA as owner is subject to the first submitted an application for State); and same program requirements that apply participation in the program to the (2) No other HA with a tenant-based to other owners in the program. initial HA. program has jurisdiction in the area (c) Prohibition against other housing (2) During the 12 month period from where the unit is located. subsidy. A family may not receive the the time when the family is admitted to (b) In these conditions, the family benefit of tenant-based assistance while the program, the family does not have remains in the program of the initial receiving the benefit of any of the any right to lease a unit outside the HA. The initial HA has the same following forms of other housing initial HA jurisdiction. During this responsibilities for administration of subsidy, for the same unit or for a period, the family may lease a unit assistance for the family living outside different unit: located anywhere in the jurisdiction of the HA jurisdiction as for other families (1) Public or Indian housing the initial HA. assisted by the HA, within the HA assistance; (3) If both the initial HA and a jurisdiction. For the purpose of (2) Other Section 8 assistance receiving HA agree, the family may permitting HA administration of (including other tenant-based lease a unit outside the HA jurisdiction program assistance for the family in the assistance); under portability procedures. area outside of the HA jurisdiction as (3) Assistance under former Section (d) Income eligibility. (1) For defined by State and local law (and 23 of the United States Housing Act of admission to the certificate or voucher thereby to satisfy the family’s right to 1937 (before amendment by the Housing program, a family must be income portability under federal law), the and Community Development Act of eligible in the area where the family federal law and this regulation preempt 1974); initially leases a unit with assistance in limits on the HA jurisdiction under (4) Section 101 rent supplements; the certificate or voucher program. State and local law. (5) Section 236 rental assistance (2) A portable family transferring (c) The initial HA may choose to use payments; between the certificate and voucher another HA, a private management (6) Tenant-based assistance under the programs must be income-eligible for entity or other contractor or agent to HOME Program; the new program in the area where the help the initial HA administer (7) Rental assistance payments under family leases an assisted unit. This assistance outside the HA jurisdiction as Section 521 of the Housing Act of 1949 requirement applies if the family is defined by State and local law. (a Farmers Home Administration either: (i) Transferring from the initial HA § 982.355 Portability: Administration by program); receiving HA. (8) Any local or State rent subsidy; or certificate program to the receiving HA (9) Any other duplicative federal, voucher program; or (a) When a family moves under State, or local housing subsidy, as (ii) Transferring from the initial HA portability (in accordance with determined by HUD. For this purpose, voucher program to the receiving HA § 982.353(b)) to an area outside the ‘‘housing subsidy’’ does not include the certificate program. initial HA jurisdiction, another HA (the housing component of a welfare (3) If a portable family was already a ‘‘receiving HA’’) must administer payment, a social security payment participant in the initial HA certificate assistance for the family if an HA with received by the family, or a rent or voucher program, income eligibility a tenant-based program has jurisdiction reduction because of a tax credit. is not redetermined unless the family in the area where the unit is located. transfers between the programs. (b)(1) In these conditions, an HA with § 982.353 Where family can lease a unit (e) Leasing in-place. If the dwelling jurisdiction in the area where the family with tenant-based assistance. unit is approvable, a family may select wants to lease a unit must issue the (a) Assistance in the initial HA the dwelling unit occupied by the family a certificate or voucher. If there jurisdiction. The family may receive family before selection for participation is more than one such HA, the initial tenant-based assistance to lease a unit in the program. HA may choose the receiving HA. located anywhere in the jurisdiction (as (f) Freedom of choice. Except as (2) The receiving HA has the choice determined by State and local law) of provided in part 982 (e.g., prohibition of assisting the family under either the the initial HA. on use of ineligible housing, housing certificate program or the voucher (b) Portability: Assistance outside the not meeting HQS, or housing for which program. If the family was receiving initial HA jurisdiction. Except as the contract rent (certificate program) or assistance under the initial HA 34708 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations certificate program, but is ineligible for must perform all HA program functions, well as for families that remain in the admission to the voucher program, a such as reexaminations of family HA program. receiving HA that administers a income and composition. At any time, (7) When a portable family moves out certificate program must provide either the initial HA or the receiving HA of the tenant-based program of a continued assistance under the may make a determination to deny or receiving HA that has not absorbed the certificate program. If the family was terminate assistance to the family in family, the HA in the new jurisdiction receiving assistance under the initial accordance with § 982.552. to which the family moves becomes the HA voucher program, but is ineligible (d) Absorption by the receiving HA. receiving HA, and the first receiving HA for admission to the certificate program, (1) If funding is available under the is no longer required to provide a receiving HA that administers a consolidated ACC for the receiving HA assistance for the family. voucher program must provide certificate or voucher program when the (f) Portability funding. (1) HUD may continued assistance under the voucher portable family is received, the transfer funds for assistance to portable program. receiving HA may absorb the family into families to the receiving HA from funds (c) Portability procedures. (1) The the receiving HA certificate or voucher available under the initial HA ACC. initial HA must determine whether the program. After absorption, the family is (2) HUD may provide additional family is income-eligible in the area assisted with funds available under the funding (e.g., funds for incremental where the family wants to lease a unit. consolidated ACC for the receiving HA units) to the initial HA for funds (2) The initial HA must advise the tenant-based program. transferred to a receiving HA for family how to contact and request (2) HUD may require that the portability purposes. assistance from the receiving HA. The receiving HA absorb all or a portion of (3) HUD may provide additional initial HA must promptly notify the the portable families. funding (e.g., funds for incremental receiving HA to expect the family. (e) Portability Billing. (1) To cover units) to the receiving HA for absorption (3) The family must promptly contact assistance for a portable family, the of portable families. the receiving HA, and comply with receiving HA may bill the initial HA for (4) HUD may require the receiving HA receiving HA procedures for incoming housing assistance payments and to absorb portable families. portable families. administrative fees. This paragraph (e) (4) The initial HA must give the describes the billing procedure. Subpart IÐDwelling Unit: Housing receiving HA the most recent HUD Form (2) The initial HA must promptly Quality Standards, Subsidy Standards, 50058 (Family Report) for the family, reimburse the receiving HA for the full Inspection and Maintenance and related verification information. If amount of the housing assistance the receiving HA opts to conduct a new payments made by the receiving HA for § 982.401 Housing quality standards reexamination, the receiving HA may the portable family. The amount of the (HQS). not delay issuing the family a voucher housing assistance payment for a (a) Performance and acceptability or certificate or otherwise delay portable family in the receiving HA requirements. (1) This section states the approval of a unit unless the program is determined in the same housing quality standards (HQS) for recertification is necessary to determine manner as for other families in the housing assisted in the programs. income eligibility. receiving HA program. Program housing must comply with the (5) When the portable family requests (3) The initial HA must promptly HQS, both at initial occupancy of the assistance from the receiving HA, the reimburse the receiving HA for 80 dwelling unit, and during the term of receiving HA must promptly inform the percent of the initial HA on-going the assisted lease. initial HA whether the receiving HA administrative fee for each unit month (2)(i) The HQS consist of: will bill the initial HA for assistance on that the family receives assistance under (A) Performance requirements; and behalf of the portable family, or will the tenant-based programs from the (B) Acceptability criteria or HUD absorb the family into its own program. receiving HA. approved variations in the acceptability (6) The receiving HA must issue a (4) HUD may reduce the criteria. certificate or voucher to the family. The administrative fee to an initial HA, if the (ii) This section states performance term of the receiving HA certificate or HA does not promptly reimburse the and acceptability criteria for these key voucher may not expire before the receiving HA for housing assistance aspects of housing quality: expiration date of any initial HA payments or fees on behalf of portable (A) Sanitary facilities; certificate or voucher. The receiving HA families. (B) Food preparation and refuse must determine whether to extend the (5) In administration of portability, disposal; certificate or voucher term. The family the initial HA and the receiving HA (C) Space and security; must submit a request for lease approval must comply with financial procedures (D) Thermal environment; to the receiving HA during the term of required by HUD, including the use of (E) Illumination and electricity; the receiving HA certificate or voucher. HUD-required billing forms. The initial (F) Structure and materials; (7) The receiving HA must determine and receiving HA must comply with (G) Interior air quality; the family unit size for the portable billing and payment deadlines under (H) Water supply; family. The family unit size is the financial procedures. HUD may (I) Lead-based paint; determined in accordance with the assess penalties against an initial or (J) Access; subsidy standards of the receiving HA. receiving HA for violation, as (K) Site and neighborhood; (8) The receiving HA must promptly determined by HUD, of HUD portability (L) Sanitary condition; and notify the initial HA if the family has requirements. (M) Smoke detectors. leased an eligible unit under the (6) An HA must manage the HA (3) All program housing must meet program, or if the family fails to submit tenant-based programs in a manner that the HQS performance requirements both a request for lease approval for an ensures that the HA has the financial at commencement of assisted eligible unit within the term of the ability to provide assistance for families occupancy, and throughout the assisted certificate or voucher. that move out of the HA program under tenancy. (9) To provide tenant-based assistance the portability procedures that have not (4)(i) In addition to meeting HQS for portable families, the receiving HA been absorbed by the receiving HA, as performance requirements, the housing Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34709 must meet the acceptability criteria condition, with a sink trap and hot and appliances. The electrical fixtures and stated in this section, unless variations cold running water. The sink must drain wiring must ensure safety from fire. are approved by HUD. into an approvable public or private (2) Acceptability criteria. (i) There (ii) HUD may grant approval for the system. must be at least one window in the HA to use acceptability criteria (iii) The dwelling unit must have living room and in each sleeping room. variations that are based on local codes space for the storage, preparation, and (ii) The kitchen area and the bathroom or national standards that satisfy the serving of food. must have a permanent ceiling or wall purposes of the HQS. (iv) There must be facilities and light fixture in proper operating (iii) HUD may approve acceptability services for the sanitary disposal of food condition. The kitchen area must also criteria variations because of local waste and refuse, including temporary have at least one electrical outlet in climatic or geographic conditions. storage facilities where necessary (e.g., proper operating condition. (iv) HUD will not approve garbage cans). (iii) The living room and each acceptability criteria variations that will (d) Space and security.—(1) bedroom must have at least two unduly limit the amount and types of Performance requirement. The dwelling electrical outlets in proper operating available rental housing stock. unit must provide adequate space and condition. Permanent overhead or wall- (b) Sanitary facilities.—(1) security for the family. mounted light fixtures may count as one Performance requirements. The (2) Acceptability criteria. (i) At a of the required electrical outlets. dwelling unit must include sanitary minimum, the dwelling unit must have (g) Structure and materials.—(1) facilities located in the unit. The a living room, a kitchen area, and a Performance requirement. The dwelling sanitary facilities must be in proper bathroom. unit must be structurally sound. The operating condition, and adequate for (ii) The dwelling unit must have at structure must not present any threat to personal cleanliness and the disposal of least one bedroom or living/sleeping the health and safety of the occupants human waste. The sanitary facilities room for each two persons. Children of and must protect the occupants from the must be usable in privacy. opposite sex, other than very young environment. (2) Acceptability criteria. (i) The children, may not be required to occupy (2) Acceptability criteria. (i) Ceilings, bathroom must be located in a separate the same bedroom or living/sleeping walls, and floors must not have any private room and have a flush toilet in room. serious defects such as severe bulging or proper operating condition. (iii) Dwelling unit windows that are leaning, large holes, loose surface (ii) The dwelling unit must have a accessible from the outside, such as materials, severe buckling, missing fixed basin in proper operating basement, first floor, and fire escape parts, or other serious damage. condition, with a sink trap and hot and windows, must be lockable (such as (ii) The roof must be structurally cold running water. window units with sash pins or sash sound and weathertight. (iii) The dwelling unit must have a locks, and combination windows with (iii) The exterior wall structure and shower or a tub in proper operating latches). Windows that are nailed shut surface must not have any serious condition with hot and cold running are acceptable only if these windows are defects such as serious leaning, water. not needed for ventilation or as an buckling, sagging, large holes, or defects (iv) The facilities must utilize an alternate exit in case of fire. that may result in air infiltration or approvable public or private disposal (iv) The exterior doors of the dwelling vermin infestation. system (including a locally approvable unit must be lockable. Exterior doors are (iv) The condition and equipment of septic system). doors by which someone can enter or interior and exterior stairs, halls, (c) Food preparation and refuse exit the dwelling unit. porches, walkways, etc., must not disposal.—(1) Performance requirement. (e) Thermal environment.—(1) present a danger of tripping and falling. (i) The dwelling unit must have suitable Performance requirement. The dwelling For example, broken or missing steps or space and equipment to store, prepare, unit must have and be capable of loose boards are unacceptable. (v) Elevators must be working and and serve foods in a sanitary manner. maintaining a thermal environment (ii) There must be adequate facilities safe. healthy for the human body. (h) Interior air quality.—(1) and services for the sanitary disposal of (2) Acceptability criteria. (i) There Performance requirement. The dwelling food wastes and refuse, including must be a safe system for heating the unit must be free of pollutants in the air facilities for temporary storage where dwelling unit (and a safe cooling at levels that threaten the health of the necessary (e.g, garbage cans). system, where present). The system occupants. (2) Acceptability criteria. (i) The must be in proper operating condition. (2) Acceptability criteria. (i) The dwelling unit must have an oven, and The system must be able to provide dwelling unit must be free from a stove or range, and a refrigerator of adequate heat (and cooling, if dangerous levels of air pollution from appropriate size for the family. All of applicable), either directly or indirectly, carbon monoxide, sewer gas, fuel gas, the equipment must be in proper to each room, in order to assure a dust, and other harmful pollutants. operating condition. The equipment healthy living environment appropriate (ii) There must be adequate air may be supplied by either the owner or to the climate. circulation in the dwelling unit. the family. A microwave oven may be (ii) The dwelling unit must not (iii) Bathroom areas must have one substituted for a tenant-supplied oven contain unvented room heaters that openable window or other adequate and stove or range. A microwave oven burn gas, oil, or kerosene. Electric exhaust ventilation. may be substituted for an owner- heaters are acceptable. (iv) Any room used for sleeping must supplied oven and stove or range if the (f) Illumination and electricity.—(1) have at least one window. If the window tenant agrees and microwave ovens are Performance requirement. Each room is designed to be openable, the window furnished instead of an oven and stove must have adequate natural or artificial must work. or range to both subsidized and illumination to permit normal indoor (i) Water supply. (1) Performance unsubsidized tenants in the building or activities and to support the health and requirement. The water supply must be premises. safety of occupants. The dwelling unit free from contamination. (ii) The dwelling unit must have a must have sufficient electrical sources (2) Acceptability criteria. The kitchen sink in proper operating so occupants can use essential electrical dwelling unit must be served by an 34710 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations approvable public or private water required under this part), must include paint surface in accordance with supply that is sanitary and free from a visual inspection for defective paint paragraph (j)(6) of this section is contamination. surfaces. If defective paint surfaces are required, and treatment shall be (j) Lead-based paint performance found, such surfaces must be treated in completed within the time limits in requirement.—(1) Purpose and accordance with paragraph (j)(6) of this paragraph (j)(3) of this section. applicability. (i) The purpose of section. (iii) The requirements in paragraph paragraph (j) of this section is to (ii) The HA may exempt from such (j)(4) of this section apply to all implement section 302 of the Lead- treatment defective paint surfaces that protruding painted surfaces up to five Based Paint Poisoning Prevention Act, are found in a report by a qualified lead- feet from the floor or ground that are 42 U.S.C. 4822, by establishing based paint inspector not to be lead- readily accessible to children under six procedures to eliminate as far as based paint, as defined in paragraph years of age: practicable the hazards of lead-based (j)(2) of this section. For purposes of this (A) Within the unit; paint poisoning for units assisted under section, a qualified lead-based paint (B) The entrance and hallway this part. Paragraph (j) of this section is inspector is a State or local health or providing access to a unit in a multi- issued under 24 CFR 35.24 (b)(4) and housing agency, a lead-based paint unit building; and supersedes, for all housing to which it inspector certified or regulated by a (C) Exterior surfaces (including walls, applies, the requirements of subpart C of State or local health or housing agency, stairs, decks, porches, railings, windows 24 CFR part 35. or an organization recognized by HUD. and doors, but excluding outbuildings (ii) The requirements of paragraph (j) (iii) Treatment of defective paint such as garages and sheds). of this section do not apply to 0- surfaces required under this section (5) Treatment of chewable surfaces bedroom units, units that are certified must be completed within 30 calendar without testing. In lieu of the procedures by a qualified inspector to be free of days of HA notification to the owner. set forth in paragraph (j)(4) of this lead-based paint, or units designated When weather conditions prevent section, the HA may, at its discretion, exclusively for elderly. The treatment of the defective paint waive the testing requirement and requirements of subpart A of 24 CFR conditions on exterior surfaces within require the owner to treat all interior part 35 apply to all units constructed the 30 day period, treatment as required and exterior chewable surfaces in prior to 1978 covered by a HAP contract by paragraph (j)(6) of this section may accordance with the methods set out in under part 982. be delayed for a reasonable time. paragraph (j)(6) of this section. (2) Definitions. (iv) The requirements in this (6) Treatment methods and Chewable surface. Protruding painted paragraph (j)(3) apply to: requirements. Treatment of defective surfaces up to five feet from the floor or (A) All painted interior surfaces paint surfaces and chewable surfaces ground that are readily accessible to within the unit (including ceilings but must consist of covering or removal of children under six years of age; for excluding furniture); the paint in accordance with the example, protruding corners, window (B) The entrance and hallway following requirements: sills and frames, doors and frames, and providing ingress or egress to a unit in (i) A defective paint surface shall be other protruding woodwork. a multi-unit building; and treated if the total area of defective paint Component. An element of a (C) Exterior surfaces up to five feet on a component is: residential structure identified by type from the floor or ground that are readily (A) More than 10 square feet on an and location, such as a bedroom wall, accessible to children under six years of exterior wall; an exterior window sill, a baseboard in age (including walls, stairs, decks, (B) More than 2 square feet on an a living room, a kitchen floor, an porches, railings, windows and doors, interior or exterior component with a interior window sill in a bathroom, a but excluding outbuildings such as large surface area, excluding exterior porch floor, stair treads in a common garages and sheds). walls and including, but not limited to, stairwell, or an exterior wall. (4) Additional requirements for pre- ceilings, floors, doors, and interior Defective paint surface. A surface on 1978 units with children under 6 with walls; or which the paint is cracking, scaling, an EBL. (i) In addition to the (C) More than 10 percent of the total chipping, peeling, or loose. requirements of paragraph (j)(3) of this surface area on an interior or exterior Elevated blood lead level (EBL). section, for a dwelling unit constructed component with a small surface area, Excessive absorption of lead. Excessive before 1978 that is occupied by a family including, but not limited to, window absorption is a confirmed concentration with a child under the age of six years sills, baseboards and trim. of lead in whole blood of 20 ug/dl with an identified EBL condition, the (ii) Acceptable methods of treatment (micrograms of lead per deciliter) for a initial and each periodic inspection (as are: removal by wet scraping, wet single test or of 15–19 ug/dl in two required under this part) must include sanding, chemical stripping on or off consecutive tests 3–4 months apart. a test for lead-based paint on chewable site, replacing painted components, HEPA means a high efficiency particle surfaces. Testing is not required if scraping with infra-red or coil type heat accumulator as used in lead abatement previous testing of chewable surfaces is gun with temperatures below 1100 vacuum cleaners. negative for lead-based paint or if the degrees, HEPA vacuum sanding, HEPA Lead-based paint. A paint surface, chewable surfaces have already been vacuum needle gun, contained whether or not defective, identified as treated. hydroblasting or high pressure wash having a lead content greater than or (ii) Testing must be conducted by a with HEPA vacuum, and abrasive equal to 1 milligram per centimeter State or local health or housing agency, sandblasting with HEPA vacuum. squared (mg/cm2), or 0.5 percent by an inspector certified or regulated by a Surfaces must be covered with durable weight or 5000 parts per million (PPM). State or local health or housing agency, materials with joints and edges sealed (3) Requirements for pre-1978 units or an organization recognized by HUD. and caulked as needed to prevent the with children under 6. (i) If a dwelling Lead content must be tested by using an escape of lead contaminated dust. unit constructed before 1978 is X-ray fluorescence analyzer (XRF) or by (iii) Prohibited methods of removal occupied by a family that includes a laboratory analysis of paint samples. are: open flame burning or torching; child under the age of six years, the Where lead-based paint on chewable machine sanding or grinding without a initial and each periodic inspection (as surfaces is identified, treatment of the HEPA exhaust; uncontained Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34711 hydroblasting or high pressure wash; were tested or tested and treated in NFPA 74 (i.e., the owner would not be and dry scraping except around accordance with the standards required to install a smoke detector in electrical outlets or except when prescribed in this section, such a basement not used for living purposes, treating defective paint spots no more chewable surfaces do not have to be nor would the owner be required to than two square feet in any one interior tested or treated at any subsequent time. change the location of the smoke room or space (hallway, pantry, etc.) or (k) Access performance requirement. detectors that have already been totalling no more than twenty square The dwelling unit must be able to be installed on the other floors of the unit). feet on exterior surfaces. used and maintained without (iv) During exterior treatment soil and unauthorized use of other private § 982.402 Subsidy standards. playground equipment must be properties. The building must provide (a) Purpose. (1) The HA must protected from contamination. an alternate means of exit in case of fire establish subsidy standards that (v) All treatment procedures must be (such as fire stairs or egress through determine the number of bedrooms concluded with a thorough cleaning of windows). needed for families of different sizes all surfaces in the room or area of (l) Site and Neighborhood.—(1) and compositions. treatment to remove fine dust particles. Performance requirement. The site and (2) For each family, the HA Cleanup must be accomplished by wet neighborhood must be reasonably free determines the appropriate number of washing surfaces with a lead from disturbing noises and bedrooms under the HA subsidy solubilizing detergent such as trisodium reverberations and other dangers to the standards (family unit size). phosphate or an equivalent solution. health, safety, and general welfare of the (3) The family unit size number is (vi) Waste and debris must be occupants. entered on the certificate or voucher disposed of in accordance with all (2) Acceptability criteria. The site and issued to the family. The HA issues the applicable Federal, state and local laws. neighborhood may not be subject to family a voucher or certificate for the (7) Tenant protection. The owner serious adverse environmental family unit size when a family is must take appropriate action to protect conditions, natural or manmade, such as selected for participation in the residents and their belongings from dangerous walks or steps; instability; program. hazards associated with treatment flooding, poor drainage, septic tank (b) Determining family unit size. The procedures. Residents must not enter back-ups or sewage hazards; mudslides; following requirements apply when the spaces undergoing treatment until abnormal air pollution, smoke or dust; HA determines family unit size under cleanup is completed. Personal excessive noise, vibration or vehicular the HA subsidy standards: belongings that are in work areas must traffic; excessive accumulations of trash; (1) The subsidy standards must be relocated or otherwise protected from vermin or rodent infestation; or fire provide for the smallest number of contamination. hazards. bedrooms needed to house a family (8) Owner information (m) Sanitary condition.—(1) without overcrowding. responsibilities. Prior to execution of the Performance requirement. The dwelling (2) The subsidy standards must be HAP contract, the owner must inform unit and its equipment must be in consistent with space requirements the HA and the family of any knowledge sanitary condition. under the housing quality standards of the presence of lead-based paint on (2) Acceptability criteria. The (See § 982.401(d)). the surfaces of the residential unit. dwelling unit and its equipment must (3) The subsidy standards must be (9) HA data collection and be free of vermin and rodent infestation. applied consistently for all families of recordkeeping responsibilities. (i) The (n) Smoke detectors performance like size and composition. HA must attempt to obtain annually requirement.—(1) Except as provided in (4) A child who is temporarily away from local health agencies the names paragraph (n)(2) of this section, each from the home because of placement in and addresses of children with dwelling unit must have at least one foster care is considered a member of identified EBLs and must annually battery-operated or hard-wired smoke the family in determining the family match this information with the names detector, in proper operating condition, unit size. and addresses of participants under this on each level of the dwelling unit, (5) A family that consists of a part. If a match occurs, the HA must including basements but excepting pregnant woman (with no other determine whether local health officials crawl spaces and unfinished attics. persons) must be treated as a two-person have tested the unit for lead-based Smoke detectors must be installed in family. paint. If the unit has lead-based paint accordance with and meet the (6) Any live-in aide (approved by the the HA must require the owner to treat requirements of the National Fire HA to reside in the unit to care for a the lead-based paint. If the owner does Protection Association Standard (NFPA) family member who is disabled or is at not complete the corrective actions 74 (or its successor standards). If the least 50 years of age) must be counted required by this section, the family must dwelling unit is occupied by any in determining the family unit size; be issued a certificate or voucher to hearing-impaired person, smoke (7) Unless a live-in-aide resides with move. detectors must have an alarm system, the family, the family unit size for any (ii) The HA must keep a copy of each designed for hearing-impaired persons family consisting of a single person inspection report for at least three years. as specified in NFPA 74 (or successor must be either a zero or one-bedroom If a dwelling unit requires testing, or if standards). unit, as determined under the HA the dwelling unit requires treatment of (2) For units assisted prior to April 24, subsidy standards. chewable surfaces based on the testing, 1993, owners who installed battery- (8) In determining family unit size for the HA must keep the test results operated or hard-wired smoke detectors a particular family, the HA may grant an indefinitely and, if applicable, the prior to April 24, 1993 in compliance exception to its established subsidy owner certification of treatment. The with HUD’s smoke detector standards if the HA determines that the records must indicate which chewable requirements, including the regulations exception is justified by the age, sex, surfaces in the dwelling units have been published on July 30, 1992, (57 FR health, handicap, or relationship of tested and which chewable surfaces in 33846), will not be required family members or other personal the units have been treated. If records subsequently to comply with any circumstances. (For a single person establish that certain chewable surfaces additional requirements mandated by other than a disabled or elderly person 34712 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations or remaining family member, such HA (ii) The gross rent for the unit (sum of (ii) The family fails to provide and exception may not override the the contract rent plus any utility maintain any appliances that the owner limitation in paragraph (b)(7) of this allowance for the unit size leased) is not required to provide, but which are section.) exceeds the FMR/exception rent limit to be provided by the tenant; or (c) Effect of family unit size— for the family unit size under the HA (iii) Any member of the household or maximum subsidy. The family unit size, subsidy standards. guest damages the dwelling unit or as determined for a family under the HA (3) The HA must notify the family that premises (damages beyond ordinary subsidy standards, is used to determine exceptions to the subsidy standards may wear and tear). the maximum rent subsidy for the be granted, and the circumstances in (2) If an HQS breach caused by the family: which the grant of an exception will be family is life threatening, the family (1) Certificate program. HUD considered by the HA. must correct the defect within no more establishes fair market rents by number (4) If an acceptable unit is available than 24 hours. For other family-caused of bedrooms. The sum of the initial for rental by the family within the FMR/ defects, the family must correct the contract rent plus any utility allowance exception rent limit, the HA must defect within no more than 30 calendar may not exceed either: terminate the HAP contract in days (or any HA-approved extension). (i) The FMR/exception rent limit for accordance with its terms. (3) If the family has caused a breach the family unit size; or (c) Termination. When the HA of the HQS, the HA must take prompt (ii) The FMR/exception rent limit for terminates the HAP contract (under and vigorous action to enforce the the unit rented by the family. paragraphs (a) or (b) of this section): family obligations. The HA may (2) Voucher program. The HA (1) The HA must notify the family and terminate assistance for the family in establishes payment standards by the owner of the termination; and accordance with § 982.552. number of bedrooms. The payment (2) The HAP contract terminates at the § 982.405 HA periodic unit inspection. standard for the family must be the end of the calendar month that follows lower of: the calendar month in which the HA (a) The HA must inspect the unit (i) The payment standard for the gives such notice to the owner. leased to a family at least annually, and family unit size; or (3) The family may move to a new at other times as needed, to determine (ii) The payment standard for the unit unit in accordance with § 982.314. if the unit meets HQS. rented by the family. (b) The HA must conduct supervisory (d) Size of unit occupied by family. (1) § 982.404 Maintenance: Owner and family quality control HQS inspections. responsibility; HA remedies. The family may lease an otherwise (c) In scheduling inspections, the HA acceptable dwelling unit with fewer (a) Owner obligation. (1) The owner must consider complaints and any other bedrooms than the family unit size. must maintain the unit in accordance information brought to the attention of However, the dwelling unit must meet with HQS. the HA. the applicable HQS space requirements. (2) If the owner fails to maintain the (d) The HA must notify the owner of (2) The family may lease an otherwise dwelling unit in accordance with HQS, defects shown by the inspection. (e) The HA may not charge the family acceptable dwelling unit with more the HA must take prompt and vigorous or owner for initial inspection or bedrooms than the family unit size. action to enforce the owner obligations. HA remedies for such breach of the HQS reinspection of the unit. § 982.403 Terminating HAP contract: When include termination, suspension or § 982.406 Enforcement of HQS. unit is too big or too small. reduction of housing assistance (a) Violation of HQS space standards. payments and termination of the HAP Part 982 does not create any right of (1) Paragraph (a) of this section applies contract. the family, or any party other than HUD to the tenant-based certificate program (3) The HA must not make any or the HA, to require enforcement of the and voucher program. housing assistance payments for a HQS requirements by HUD or the HA, (2) If the HA determines that a unit dwelling unit that fails to meet the HQS, or to assert any claim against HUD or does not meet the HQS space standards unless the owner corrects the defect the HA, for damages, injunction or other because of an increase in family size or within the period specified by the HA relief, for alleged failure to enforce the a change in family composition, the HA and the HA verifies the correction. If a HQS. must issue the family a new certificate defect is life threatening, the owner Subpart JÐHousing Assistance or voucher, and the family and HA must must correct the defect within no more Payments Contract and Owner try to find an acceptable unit as soon as than 24 hours. For other defects, the Responsibility possible. owner must correct the defect within no (3) If an acceptable unit is available more than 30 calendar days (or any HA- § 982.451 Housing assistance payments for rental by the family, the HA must approved extension). contract. terminate the HAP contract in (4) The owner is not responsible for (a) The housing assistance payments accordance with its terms. a breach of the HQS that is not caused contract (HAP contract) is a contract (b) Certificate program only—Subsidy by the owner, and for which the family between the HA and an owner. In the too big for family size. is responsible (as provided in HAP contract for tenant-based (1) Paragraph (b) of this section § 982.404(b) and § 982.551(c)). assistance, the owner agrees to lease a applies to the tenant-based certificate (However, the HA may terminate specified dwelling unit to a specified program. assistance to a family because of HQS eligible family, and the HA agrees to (2) The HA must issue the family a breach caused by the family.) make monthly housing assistance new certificate, and the family and HA (b) Family obligation. (1) The family payments to the owner for the family. must try to find an acceptable unit as is responsible for a breach of the HQS (b)(1) The HAP contract must be in soon as possible if: that is caused by any of the following: the form required by HUD. (i) The family is residing in a dwelling (i) The family fails to pay for any (2) The term of the HAP contract is unit with a larger number of bedrooms utilities that the owner is not required the same as the term of the lease. than appropriate for the family unit size to pay for, but which are to be paid by (c)(1) The amount of the monthly under the HA subsidy standards; and the tenant; housing assistance payment by the HA Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34713 to the owner is determined by the HA (ii) The tenant contribution days after the last housing assistance in accordance with HUD regulations (the part of rent to owner not covered payment to the owner. and other requirements. The amount of by the housing assistance payment). (b) Owner termination notice. (1) Law. the housing assistance payment is (iii) Any charges for unit damage by Paragraph (b) of this section implements subject to change during the HAP the family. Section 8(c) (9) and (10) of the 1937 Act contract term. (6) Enforcing tenant obligations under (42 U.S.C. 1437f(c) (9) and (10)) for the (2) The monthly housing assistance the lease. tenant-based Section 8 programs. payment by the HA is credited toward (7) Paying for utilities and services (2) Definitions. The following terms the monthly rent to owner under the (unless paid by the family under the are defined for purposes of this section: family’s lease. lease). (i) Termination. Termination of the (3) The total of rent paid by the tenant (c) For provisions on modifications to HAP contract because of: plus the HA housing assistance payment a dwelling unit occupied or to be (A) Owner opt-out; or to the owner may not be more than the occupied by a disabled person, see 24 (B) Expiration of the HAP contract. rent to owner. The owner must CFR 100.203. (ii) Opt-out. Owner’s decision to immediately return any excess payment terminate tenancy of an assisted family § 982.453 Owner breach of contract. for ‘‘other good cause’’ that is a business to the HA. (a) Any of the following actions by the (4)(i) The part of the rent to owner or economic reason for termination of owner (including a principal or other which is paid by the tenant may not be tenancy. See § 982.310 (a)(3) and (d). interested party) is a breach of the HAP more than: (iii) Expiration. ‘‘Expiration’’ means contract by the owner: the occurrence of either of the following (A) The rent to owner; minus (1) If the owner has violated any (B) The HA housing assistance events: obligation under the HAP contract for payment to the owner. (A) Automatic termination of the HAP the dwelling unit, including the owner’s (ii) The owner may not demand or contract when 180 calendar days have obligation to maintain the unit in accept any rent payment from the tenant passed since the last housing assistance accordance with the HQS. in excess of this maximum, and must payment. (2) If the owner has violated any immediately return any excess rent (B) An HA determination, in obligation under any other housing payment to the tenant. accordance with HUD requirements, assistance payments contract under (iii) The family is not responsible for that the HAP contract must be Section 8 of the 1937 Act (42 U.S.C. payment of the portion of rent to owner terminated because there is insufficient 1437f). funding under the consolidated ACC to covered by the housing assistance (3) If the owner has committed fraud, payment under the HAP contract support continued assistance for bribery or any other corrupt or criminal families in the program. between the owner and the HA. See act in connection with any federal § 982.310(b). (3) Owner termination notice. Not less housing program. than 90 calendar days before a (5) The HA must pay the housing (4) For projects with mortgages assistance payment promptly when due termination of a tenant-based HAP insured by HUD or loans made by HUD, contract because of an opt-out or to the owner in accordance with the if the owner has failed to comply with HAP contract. If the HA fails to make expiration, the owner must provide the regulations for the applicable written notice of the termination to the timely payment, the HA may be mortgage insurance or loan program, obligated to pay a late payment fee in HUD field office, the HA and the family. with the mortgage or mortgage note, or The owner’s notice must specify the accordance with State or local law. with the regulatory agreement; or if the However, unless authorized by HUD the reasons for the termination. The notice owner has committed fraud, bribery or must contain sufficient detail to enable HA may only use the following sources any other corrupt or criminal act in for payment of any such late payment the HUD field office to evaluate whether connection with the mortgage or loan. the termination is lawful and whether fee: (5) If the owner has engaged in drug- (i) Administrative fee income; or there are additional actions that can be trafficking. taken by HUD to avoid the termination. (ii) The administrative fee reserve. (b) The HA rights and remedies The owner’s notice must state that the against the owner under the HAP § 982.452 Owner responsibilities. owner and the HA may agree to a contract include recovery of (a) The owner is responsible for renewal of the HAP contract, thus overpayments, abatement or other performing all of the owner’s obligations avoiding the termination. reduction of housing assistance under the HAP contract and the lease. (4) HUD review of owner termination (b) The owner is responsible for: payments, termination of housing notice. (i) The HUD field office must (1) Performing all management and assistance payments, and termination of review the owner’s notice, and consider rental functions for the assisted unit, the HAP contract. whether there are additional actions including selecting a certificate-holder § 982.454 Termination of HAP contract: which should be taken to avoid the or voucher-holder to lease the unit, and Insufficient funding. termination. deciding if the family is suitable for The HA may terminate the HAP (ii) For a unit assisted under the tenancy of the unit. contract if the HA determines, in certificate program: (2) Maintaining the unit in accordance accordance with HUD requirements, (A) The HUD field office will with HQS, including performance of that funding under the consolidated determine whether the HA has properly ordinary and extraordinary ACC is insufficient to support continued adjusted the contract rent in accordance maintenance. assistance for families in the program. with the HAP contract and HUD (3) Complying with equal opportunity See § 982.455 concerning owner notice regulations. If not the HUD field office requirements. of termination. will require the HA to make a proper (4) Preparing and furnishing to the adjustment of the contract rent in HA information required under the HAP § 982.455 Termination of HAP contract: accordance with the HAP contract and contract. Expiration and opt-out. the regulation. (5) Collecting from the family: (a) Automatic. The HAP contract (B) In case of termination because of (i) Any security deposit. terminates automatically 180 calendar an opt-out, the owner must be offered 34714 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations the opportunity to enter into a new HAP (b) For the purposes of Section 8(t), approved by the HA. The family must contract (and assisted lease) at the the term multifamily housing project promptly inform the HA of the birth, maximum initial contract rent allowed means a residential building containing adoption or court-awarded custody of a (within the FMR/exception rent limit). more than four dwelling units. child. The family must request HA However, the rent to owner may not approval to add any other family exceed the reasonable rent for a Subpart KÐRent and Housing member as an occupant of the unit. comparable unassisted unit. Assistance PaymentÐ[Reserved] (3) The family must promptly notify (iii) The HUD field office will issue a the HA if any family member no longer written finding of the legality of the Subpart LÐFamily Obligations; Denial resides in the unit. HAP contract termination and the and Termination of Assistance (4) If the HA has given approval, a reasons for the termination as stated in § 982.551 Obligations of participant. foster child or a live-in-aide may reside the owner’s notice, including any (a) Purpose. This section states the in the unit. The HA has the discretion actions taken to avoid the termination. obligations of a participant family under to adopt reasonable policies concerning Within 30 calendar days of HUD’s the program. residence by a foster child or a live-in- finding, the owner must provide written (b) Supplying required information.— aide, and defining when HA consent notice of HUD’s decision to the tenant. (1) The family must supply any may be given or denied. (iv) The owner may proceed with information that the HA or HUD (5) Members of the household may eviction whether the HUD field office determines is necessary in the engage in legal profitmaking activities in approves or disapproves, or fails to administration of the program, the unit, but only if such activities are complete the required review of the including submission of required incidental to primary use of the unit for owner notice, before expiration of the 90 evidence of citizenship or eligible residence by members of the family. calendar day review period. immigration status (as provided by 24 (6) The family must not sublease or let § 982.456 Third parties. CFR part 812). ‘‘Information’’ includes the unit. (a) Even if the family continues to any requested certification, release or (7) The family must not assign the occupy the unit, the HA may exercise other documentation. lease or transfer the unit. (2) The family must supply any any rights and remedies against the (i) Absence from unit. The family information requested by the HA or owner under the HAP contract. must supply any information or HUD for use in a regularly scheduled (b) The family is not a party to or certification requested by the HA to reexamination or interim reexamination third party beneficiary of the HAP verify that the family is living in the of family income and composition in contract. The family may not exercise unit, or relating to family absence from accordance with HUD requirements. For any right or remedy against the owner the unit, including any HA-requested provisions on reexamination and under the HAP contract. (However, the information or certification on the computation of family income, see 24 purposes of family absences. The family tenant may exercise any right or CFR part 813. remedies against the owner under the must cooperate with the HA for this (3) The family must disclose and purpose. The family must promptly lease between the tenant and the verify social security numbers (as owner.) notify the HA of absence from the unit. provided by 24 CFR part 750) and must (j) Interest in unit. The family must (c) The HAP contract shall not be sign and submit consent forms for construed as creating any right of the not own or have any interest in the unit. obtaining information in accordance (k) Fraud and other program family or other third party (other than with 24 CFR part 760 and 24 CFR part violation. The members of the family HUD) to enforce any provision of the 813. must not commit fraud, bribery or any HAP contract, or to assert any claim (4) Any information supplied by the against HUD, the HA or the owner family must be true and complete. other corrupt or criminal act in under the HAP contract. (c) HQS breach caused by family. The connection with the programs. (l) Crime by family members. The § 982.457 Owner refusal to lease. family is responsible for an HQS breach caused by the family as described in members of the family may not engage (a) Section 8(t) of the 1937 Act (42 § 982.404(b). in drug-related criminal activity, or U.S.C. 1437f(t)) provides that an owner (d) Allowing HA inspection. The violent criminal activity (see § 982.553). who has entered into a HAP contract family must allow the HA to inspect the (m) Other housing assistance. An under Section 8 of the 1937 Act on unit at reasonable times and after assisted family, or members of the behalf of any tenant in a multifamily reasonable notice. family, may not receive Section 8 housing project shall not refuse: (e) Violation of lease. The family may tenant-based assistance while receiving (1) To lease any available dwelling not commit any serious or repeated another housing subsidy, for the same unit in any multifamily housing project violation of the lease. unit or for a different unit, under any of the owner that rents for an amount (f) Family notice of move or lease duplicative (as determined by HUD or not greater than the fair market rent for termination. The family must notify the in accordance with HUD requirements) a comparable unit to a holder of a rental HA and the owner before the family federal, State or local housing assistance certificate under Section 8 and to enter moves out of the unit, or terminates the program. into a HAP contract respecting the unit, lease on notice to the owner. See if a proximate cause of the refusal is the § 982.314(d). § 982.552 HA denial or termination of status of the prospective tenant as a (g) Owner eviction notice. The family assistance for family. holder of a certificate; or must promptly give the HA a copy of (a) Action or inaction by family.—(1) (2) To lease any available dwelling any owner eviction notice. This section states the grounds on unit in any multifamily housing project (h) Use and occupancy of unit.—(1) which an HA may deny assistance for of the owner to a voucher holder and to The family must use the assisted unit an applicant or terminate assistance for enter into a HAP contract respecting the for residence by the family. The unit a participant under the programs unit, a proximate cause of which is the must be the family’s only residence. because of the family’s action or failure status of such prospective tenant as a (2) The composition of the assisted to act. The provisions of this section do holder of such voucher. family residing in the unit must be not affect denial or termination of Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34715 assistance for grounds other than action (9) If a family participating in the FSS assistance to a participant family if any or failure to act by the family. program fails to comply, without good member of the family commits: (2) Denial of assistance for an cause, with the family’s FSS contract of (1) Drug-related criminal activity; or applicant may include any or all of the participation. (2) Violent criminal activity. following: denying listing on the HA (10) If the family has engaged in or (b) If the HA seeks to deny or waiting list, denying or withdrawing a threatened abusive or violent behavior terminate assistance because of illegal certificate or voucher, refusing to enter toward HA personnel. use, or possession for personal use, of a into a HAP contract or approve a lease, (c) HA discretion to consider controlled substance, such use or and refusing to process or provide circumstances.—(1) In deciding whether possession must have occurred within assistance under portability procedures. to deny or terminate assistance because one year before the date that the HA (3) Termination of assistance for a of action or failure to act by members of provides notice to the family of the HA participant may include any or all of the the family, the HA has discretion to determination to deny or terminate following: refusing to enter into a HAP consider all of the circumstances in assistance. The HA may not deny or contract or approve a lease, terminating each case, including the seriousness of terminate assistance for such use or housing assistance payments under an the case, the extent of participation or possession by a family member, if the outstanding HAP contract, and refusing culpability of individual family family member can demonstrate that he to process or provide assistance under members, and the effects of denial or or she: portability procedures. termination of assistance on other (1) Has an addiction to a controlled (4) This section does not limit or family members who were not involved substance, has a record of such an affect exercise of the HA rights and in the action or failure. impairment, or is regarded as having remedies against the owner under the (2) The HA may impose, as a such an impairment; and HAP contract, including termination, condition of continued assistance for (2) Is recovering, or has recovered suspension or reduction of housing other family members, a requirement from, such addiction and does not assistance payments, or termination of that family members who participated currently use or possess controlled the HAP contract. in or were culpable for the action or substances. The HA may require a (b) Grounds for denial or termination failure will not reside in the unit. The family member who has engaged in the of assistance. The HA may at any time HA may permit the other members of a illegal use of drugs to submit evidence deny program assistance for an participant family to continue receiving of participation in, or successful applicant, or terminate program assistance. completion of, a treatment program as a assistance for a participant, for any of (d) Requirement to sign consent condition to being allowed to reside in the following grounds: forms. The HA must deny or terminate the unit. (1) If the family violates any family assistance if any member of the family (c) Evidence of criminal activity. In obligations under the program (see fails to sign and submit consent forms determining whether to deny or § 982.551). for obtaining information in accordance terminate assistance based on drug- (2) If any member of the family has with 24 CFR part 760 and 24 CFR part related criminal activity or violent ever been evicted from public housing. 813. criminal activity, the HA may deny or (3) If an HA has ever terminated (e) Restriction on assistance to terminate assistance if the assistance under the certificate or noncitizens. The family must submit preponderance of evidence indicates voucher program for any member of the required evidence of citizenship or that a family member has engaged in family. eligible immigration status. See 24 CFR such activity, regardless of whether the (4) If any member of the family 812.9 for a statement of circumstances family member has been arrested or commits drug-related criminal activity, in which the HA must deny or terminate convicted. or violent criminal activity (see assistance because a family member § 982.553). does not establish citizenship or eligible § 982.554 Informal review for applicant. (5) If any member of the family immigration status, and the applicable (a) Notice to applicant. The HA must commits fraud, bribery or any other informal hearing procedures. See 24 give an applicant for participation corrupt or criminal act in connection CFR 812.10 for provisions on assistance prompt notice of a decision denying with any federal housing program. for mixed families (families whose assistance to the applicant. The notice (6) If the family currently owes rent or members include those with eligible must contain a brief statement of the other amounts to the HA or to another immigration status, and those without reasons for the HA decision. The notice HA in connection with Section 8 or eligible immigration status) instead of must also state that the applicant may public housing assistance under the denial or termination of assistance, and request an informal review of the 1937 Act. for provisions on deferral of termination decision and must describe how to (7) If the family has not reimbursed of assistance. obtain the informal review. any HA for amounts paid to an owner (f) Information for family. The HA (b) Informal review process. The HA under a HAP contract for rent, damages must give the family a written must give an applicant an opportunity to the unit, or other amounts owed by description of: for an informal review of the HA the family under the lease. (1) Family obligations under the decision denying assistance to the (8) If the family breaches an program. applicant. The administrative plan must agreement with the HA to pay amounts (2) The grounds on which the HA may state the HA procedures for conducting owed to an HA, or amounts paid to an deny or terminate assistance because of an informal review. The HA review owner by an HA. (The HA, at its family action or failure to act. procedures must comply with the discretion, may offer a family the (3) The HA informal hearing following: opportunity to enter an agreement to procedures. (1) The review may be conducted by pay amounts owed to an HA or amounts any person or persons designated by the paid to an owner by an HA. The HA § 982.553 Crime by family members. HA, other than a person who made or may prescribe the terms of the (a) At any time, the HA may deny approved the decision under review or agreement.) assistance to an applicant, or terminate a subordinate of this person. 34716 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations (2) The applicant must be given an (vi) A determination to terminate must proceed with the hearing in a opportunity to present written or oral assistance because the participant reasonably expeditious manner upon objections to the HA decision. family has been absent from the assisted the request of the family. (3) The HA must notify the applicant unit for longer than the maximum (e) Hearing procedures—(1) of the HA final decision after the period permitted under HA policy and Administrative plan. The administrative informal review, including a brief HUD rules. plan must state the HA procedures for statement of the reasons for the final (2) In the cases described in conducting informal hearings for decision. paragraphs (a)(1) (iv), (v) and (vi) of this participants. (c) When informal review is not section, the HA must give the (2) Discover—(i) By family. The family required. The HA is not required to opportunity for an informal hearing must be given the opportunity to provide the applicant an opportunity for before the HA terminates housing examine before the HA hearing any HA an informal review for any of the assistance payments for the family documents that are directly relevant to following: under an outstanding HAP contract. the hearing. The family must be allowed (1) Discretionary administrative (b) When hearing is not required. The to copy any such document at the determinations by the HA. HA is not required to provide a family’s expense. If the HA does not (2) General policy issues or class participant family an opportunity for an make the document available for grievances. informal hearing for any of the examination on request of the family, (3) A determination of the family unit following: the HA may not rely on the document size under the HA subsidy standards. (1) Discretionary administrative at the hearing. (4) An HA determination not to determinations by the HA. (ii) By HA. The HA hearing approve an extension or suspension of (2) General policy issues or class procedures may provide that the HA a certificate or voucher term. grievances. must be given the opportunity to (5) An HA determination not to grant (3) Establishment of the HA schedule examine at HA offices before the HA approval to lease a unit under the of utility allowances for families in the hearing any family documents that are program or to approve a proposed lease. program. directly relevant to the hearing. The HA (6) An HA determination that a unit (4) An HA determination not to must be allowed to copy any such selected by the applicant is not in approve an extension or suspension of document at the HA’s expense. If the compliance with HQS. a certificate or voucher term. family does not make the document (7) An HA determination that the unit (5) An HA determination not to available for examination on request of is not in accordance with HQS because approve a unit or lease. the HA, the family may not rely on the (6) An HA determination that an of the family size or composition. document at the hearing. (d) Restrictions on assistance for assisted unit is not in compliance with (iii) Documents. The term noncitizens. The informal hearing HQS. (However, the HA must provide ‘‘documents’’ includes records and provisions for the denial of assistance the opportunity for an informal hearing regulations. on the basis of ineligible immigration for a decision to terminate assistance for (3) Representation of family. At its status are contained in 24 CFR 812.9. a breach of the HQS caused by the own expense, the family may be family as described in § 982.551(c).) represented by a lawyer or other § 982.555 Informal hearing for participant. (7) An HA determination that the unit representative. (a) When hearing is required.—(1) An is not in accordance with HQS because HA must give a participant family an of the family size. (4) Hearing officer: Appointment and opportunity for an informal hearing to (8) A determination by the HA to authority. (i) The hearing may be consider whether the following HA exercise or not to exercise any right or conducted by any person or persons decisions relating to the individual remedy against the owner under a HAP designated by the HA, other than a circumstances of a participant family contract. person who made or approved the are in accordance with the law, HUD (c) Notice to family. (1) In the cases decision under review or a subordinate regulations and HA policies: described in paragraphs (a)(1) (i), (ii) of this person. (i) A determination of the family’s and (iii) of this section, the HA must (ii) The person who conducts the annual or adjusted income, and the use notify the family that the family may ask hearing may regulate the conduct of the of such income to compute the housing for an explanation of the basis of the HA hearing in accordance with the HA assistance payment. determination, and that if the family hearing procedures. (ii) A determination of the appropriate does not agree with the determination, (5) Evidence. The HA and the family utility allowance (if any) for tenant-paid the family may request an informal must be given the opportunity to utilities from the HA utility allowance hearing on the decision. present evidence, and may question any schedule. (2) In the cases described in witnesses. Evidence may be considered (iii) A determination of the family paragraphs (a)(1) (iv), (v) and (vi) of this without regard to admissibility under unit size under the HA subsidy section, the HA must give the family the rules of evidence applicable to standards. prompt written notice that the family judicial proceedings. (iv) A determination that a certificate may request a hearing. The notice must: (6) Issuance of decision. The person program family is residing in a unit with (i) Contain a brief statement of reasons who conducts the hearing must issue a a larger number of bedrooms than for the decision, written decision, stating briefly the appropriate for the family unit size (ii) State that if the family does not reasons for the decision. Factual under the HA subsidy standards, or the agree with the decision, the family may determinations relating to the HA determination to deny the family’s request an informal hearing on the individual circumstances of the family request for an exception from the decision, and shall be based on a preponderance of standards. (iii) State the deadline for the family the evidence presented at the hearing. A (v) A determination to terminate to request an informal hearing. copy of the hearing decision shall be assistance for a participant family (d) Expeditious hearing process. furnished promptly to the family. because of the family’s action or failure Where a hearing for a participant family (f) Effect of decision. The HA is not to act (see § 982.552). is required under this section, the HA bound by a hearing decision: Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34717 (1) Concerning a matter for which the is good cause for not accepting the Subpart DÐHousing Assistance HA is not required to provide an applications (such as a denial of Payments Contract opportunity for an informal hearing assistance because of action or inaction under this section, or that otherwise by members of the family) for the 983.151 Housing assistance payments exceeds the authority of the person contract (HAP contract). grounds stated in § 982.552. 983.152 Reduction of number of units conducting the hearing under the HA * * * * * covered by HAP contract. hearing procedures. (2) Contrary to HUD regulations or 22. Part 983 is added to read as Subpart EÐManagement requirements, or otherwise contrary to follows: federal, State, or local law. 983.201 Responsibilities of the HA. (3) If the HA determines that it is not PART 983ÐSECTION 8 PROJECT- 983.202 Responsibilities of the owner. bound by a hearing decision, the HA BASED CERTIFICATE PROGRAM 983.203 Family participation. must promptly notify the family of the 983.204 Maintenance, operation and Subpart AÐGeneral Information inspections. determination, and of the reasons for the Sec. 983.205 Reexamination of family income determination. and composition. 983.1 Purpose and applicability. (g) Restrictions on assistance for 983.206 Overcrowded and underoccupied noncitizens. The informal hearing 983.2 Additional definitions. units. provisions for the denial of assistance 983.3 Information to be submitted to HUD 983.207 Assisted tenancy and termination on the basis of ineligible immigration by the HA concerning its plan to attach of tenancy. status are contained in 24 CFR 812.9. assistance to units. 983.208 Informal review. 983.4 HUD review of HA plans to attach Authority: 42 U.S.C. 1437f and 3535(d). Subpart MÐSpecial Housing TypesÐ assistance to units. [Reserved] 983.5 Housing quality standards and Subpart AÐGeneral Information construction standards. 16. Subpart E of part 982, is amended 983.6 Site and neighborhood standards. § 983.1 Purpose and applicability. as follows: 983.7 Eligible and ineligible properties and (a) This part 983 establishes the 16a. In § 982.3, the definition for ‘‘EO HA-owned units. procedures under which a Housing plan’’ is removed. 983.8 Rehabilitation: Minimum expenditure Agency (HA) may, at its sole option, 17. Paragraph (f)(2) of § 982.201 is requirement. choose to provide Section 8 project- revised to read as follows: 983.9 Prohibition against new construction based assistance using funds provided or rehabilitation with U.S. Housing Act § 982.201 Eligibility. of l937 assistance and use of flexible to the HA for its Section 8 rental subsidy; pledge of Agreement or HAP certificate program. This part 983 * * * * * implements section 8(d)(2) of the 1937 (f) * * * contract. Act (42 U.S.C. 1437f(d)(2)), which (2) Grounds for decision. For a 983.10 Displacement, relocation, and directs the Department to permit an HA discussion of the grounds for denying acquisition. to ‘‘attach to structures’’ up to 15 assistance because of action or inaction 983.11 Other Federal requirements. 983.12 Initial contract rents. percent of the Section 8 assistance by the applicant, see § 982.552. 18–19. In § 982.202, paragraph (b)(1) 983.13 Annual contract rent adjustments. provided by the HA under the certificate is amended by revising the last 983.14 Special contract rent adjustments. program. (A 30 percent limit is applicable for certain State-assisted sentence, and paragraph (d) is amended Subpart BÐOwner Application Submission by removing the words ‘‘and EO plan’’ to Agreement units). (b) Within this 15 percent limit, the from the end of the first sentence, to 983.51 HA unit selection policy, HA may attach a Section 8 housing read as follows: advertising, and owner application assistance payments (HAP) contract to a requirements. § 982.202 How applicants are selected: structure if the owner agrees to 983.52 Rehabilitation: Initial inspection and General requirements. determination of unit eligibility. construct or rehabilitate the structure * * * * * 983.53 Rehabilitation: HUD field office other than with assistance provided (b) * * * review of applications. under the United States Housing Act of (1) * * * (See § 982.553.) 983.54 Rehabilitation: Work write-ups. 1937. The purpose of the Project-Based * * * * * 983.55 New construction: HA evaluation Certificate (PBC) Program is to induce 20. In § 982.204, paragraph (a) is and technical processing. property owners to construct standard, amended by removing the words ‘‘and 983.56 New construction: HUD field office or upgrade substandard, rental housing EO plan’’ from the end of the second review of applications. stock, and make it available to low- sentence. 983.57 New construction: Working income families at rents within the 21. In § 982.206, paragraphs (a)(2) and drawings and specifications. Section 8 existing housing fair market (b)(2) are revised to read as follows: rents. Subpart CÐAgreement and New (c) This part 983 refers to assistance § 982.206 Waiting list: Opening and Construction or Rehabilitation Period that is attached to units as ‘‘project- closing; public notice. based’’ assistance to distinguish this (a) * * * 983.101 Agreement to enter into HAP assistance from the ‘‘tenant-based’’ (2) The HA must give the public contract, and contract rents in Agreement. assistance provided by the certificate notice by publication in a local 983.102 Owner selection of contractor. and the voucher programs under part newspaper of general circulation, and 983.103 New construction or rehabilitation 982 of this chapter. With tenant-based also by minority media. period. assistance, the assisted unit is selected * * * * * 983.104 New construction or rehabilitation by the family. The HA then enters into (b) * * * completion. a HAP contract, which only covers a (2) If the waiting list is open, the HA single unit and the specific assisted must accept applications from families family. If the family moves out of a unit, for whom the list is open unless there the HAP contract terminates. The family 34718 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations may move with continued tenant-based is to be funded. Each funding increment committed (e.g., certificates issued to assistance to a new unit. With project- identified in the ACC is a separate, families searching for housing or units based assistance, the HA enters into a potential funding source. under an Agreement). HAP contract to make housing Percent limit. The applicable (b) Percent limit. The applicable assistance payments during the contract maximum number of budgeted units for percent limit is either the 15-percent term for a specific unit. The subsidy is an HA’s certificate program that may be limit or the 30-percent limit. The 30- paid when the owner leases the unit to project-based. (The applicable percent percent limit is only applicable if: an eligible family. (The unit may be limit is either the 15-percent limit or the (1) There are no project-based new vacant for a limited time.) To fill vacant 30-percent limit.) construction units in the HA’s project-based units, the HA refers Project-based Certificate (PBC) certificate program; families from its waiting list to the program. A Section 8 program (2) The additional 15 percent of project owner. Because the assistance is administered by an HA pursuant to 24 project-based units (in excess of the 15- tied to the unit, a family that moves CFR part 983. percent limit) is for the rehabilitation of from the unit does not have any right to Repair or replacement of a major units in projects assisted under a State continued assistance. The unit is rented building system or component. The program that permits owners to prepay to another eligible family. complete electrical rewiring of a unit; State-assisted or subsidized mortgages; (d) Except as otherwise expressly the installation of new plumbing supply and modified or excluded by this part 983, or waste pipes in a unit; the installation (3) The additional 15 percent of all provisions of part 982 of this chapter of a new heating distribution system, project-based units is necessary to apply to project-based assistance under including piping and ductwork, or the provide incentives for project owners to this part 983. installation of a new boiler or furnace; preserve the projects for occupancy by (e) The following sections in part 982 the installation of a new roof; or the low and moderate income families for of this chapter, which implement the replacement or major repair of exterior the term of the HAP contract, and assist tenant-based aspect of the certificate structural elements which are essential low-income tenants to afford any rent program, do not apply to project-based to achieve a stable general condition increases. assistance under this part 983: 24 CFR with no threat of further deterioration. (c) HA notification to HUD of intent part 982, subpart H (Where family can State certified appraiser. Any to attach assistance to units. Before live and move); § 982.314 of this chapter individual who satisfies the implementing a PBC program, the HA (Move with continued tenant-based requirements for certification as a must submit the following information assistance); and § 982.303 of this certified general appraiser in a State that to the HUD field office for review: chapter (Term of a certificate or has adopted criteria that currently meet (1) The total number of units for voucher). Other sections in this part 983 or exceed the minimum certification which the HA is requesting approval to identify other tenant-based provisions of criteria issued by the Appraiser attach assistance; part 982 of this chapter that do not Qualifications Board of the Appraisal (2) The number of budgeted certificate apply to project-based assistance under Foundation. The State criteria must units; this part 983. include a requirement that the (3) The number of certificate units (f) Subparts C and F of this part, individual have achieved a satisfactory available to be project-based; i.e., the which implement shared housing and grade upon a State-administered number of budgeted certificate units assistance for owners of manufactured examination consistent with and that are not under a tenant-based or housing for the tenant-based aspect of equivalent to the Uniform State project-based HAP contract or otherwise the certificate program, do not apply to Certification Examination issued or committed (e.g., certificates issued to project-based assistance under this part endorsed by the Appraiser families searching for housing or units 983. Qualifications Board of the Appraisal under an Agreement). (g) HUD does not provide any Foundation. Furthermore, if the separate funding for project-based § 983.4 HUD review of HA plans to attach Appraisal Foundation has issued a assistance to units. assistance. Funding for project-based finding that the policies, practices, or (a) Notice to HA. (1) If the assistance is part of the ACC funding procedures of the state are inconsistent requirements of § 983.3 are satisfied, the authority for the HA’s entire Section 8 with the Financial Institutions Reform, field office must authorize the HA to certificate program. Recovery, and Enforcement Act of 1989, proceed in accordance with this part an individual must comply with any § 983.2 Additional definitions. 983. additional standards for state certified (2) If the submission is approved, the The following definitions apply to appraisers imposed by HUD under 24 field office must notify the HA that the assistance subject to this part 983, in CFR 267.11(c)(1). HA may implement a PBC program addition to the definitions in § 982.3 of 30-Percent limit. Thirty percent of the subject to the requirements of this part this chapter: total number of budgeted units for a 983, including the requirements for Agreement to enter into housing HA’s Section 8 certificate program. assistance payments contract approval by the HUD field office of the (‘‘Agreement’’). A written agreement § 983.3 Information to be submitted to HA unit selection policy and between the owner and the HA that, HUD by the HA concerning its plan to attach advertisement, and competitive upon satisfactory completion of the new assistance to units. selection of eligible units. The approval construction or the rehabilitation in (a) Requirements. An HA may attach letter must specify the maximum accordance with requirements specified certificate assistance to units in number of units for which the HA may in the Agreement, the HA will enter into accordance with this part 983 if: execute Agreements. a HAP contract with the owner. (1) The number of units to be project- (3) If any of the requirements of 15-percent limit. Fifteen percent of based does not exceed the applicable § 983.3 are not satisfied, the field office the total number of budgeted units for percent limit. must not approve the HA submission. an HA’s Section 8 certificate program. (2) The number of units to be project- The field office must notify the HA of Funding source. The ACC funding based are not under a tenant-based or the reasons for disapproval. authority from which the HAP contract project-based HAP contract or otherwise (b) [Reserved] Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34719 § 983.5 Housing quality standards and facilitating and furthering full (1) A significant number of assisted construction standards. compliance with the applicable housing units are available outside areas Section 982.401, Housing quality provisions of title VI of the Civil Rights of minority concentration. standards, applies to assistance under Act of 1964, the Fair Housing Act, (2) There is significant integration of this part. In addition, § 882.109 (m), (n), Executive Order 11063, and assisted housing projects constructed or and (p) of this title apply. implementing HUD regulations. rehabilitated in the past 10 years, relative to the racial mix of the eligible § 983.6 Site and neighborhood standards. (3)(i) The site must not be located in an area of minority concentration, population. (a) Rehabilitation site and except as permitted under paragraph (3) There are racially integrated neighborhood standards. In addition to (b)(3)(ii) of this section, and must not be neighborhoods in the locality. meeting the standards required in located in a racially mixed area if the (4) Programs are operated by the § 982.401(l) of this chapter, the project will cause a significant increase locality to assist minority families that proposed sites for rehabilitation units in the proportion of minority to non- wish to find housing outside areas of must meet the following site and minority residents in the area. minority concentration. neighborhood standards: (5) Minority families have benefited (1) Be adequate in size, exposure and (ii) A project may be located in an from local activities (e.g., acquisition contour to accommodate the number area of minority concentration only if: and write-down of sites, tax relief and type of units proposed; adequate (A) Sufficient, comparable programs for homeowners, acquisitions utilities and streets must be available to opportunities exist for housing for of units for use as assisted housing service the site. (The existence of a minority families, in the income range units) undertaken to expand choice for private disposal system and private to be served by the proposed project, minority families outside of areas of sanitary water supply for the site, outside areas of minority concentration minority concentration. approved in accordance with law, may (see paragraph (b)(3)(iii) of this section (6) A significant proportion of be considered adequate utilities.) for further guidance on this criterion); or minority households has been (2) Be suitable from the standpoint of (B) The project is necessary to meet successful in finding units in non- facilitating and furthering full overriding housing needs that cannot be minority areas under the Section 8 compliance with the applicable met in that housing market area (see certificate and voucher programs. provisions of Title VI of the Civil Rights paragraph (b)(3)(iv) of this section for (7) Comparable housing opportunities Act of 1964, Title VIII of the Civil Rights further guidance on this criterion). have been made available outside areas Act of 1968, E.O. 11063, and HUD (iii)(A) ‘‘Sufficient’’ does not require of minority concentration through other regulations issued pursuant thereto. that in every locality there be an equal programs. (3) Promote greater choice of housing number of assisted units within and (iv) Application of the ‘‘overriding opportunities and avoid undue outside of areas of minority housing needs’’ criterion, for example, concentration of assisted persons in concentration. Rather, application of permits approval of sites that are an areas containing a high proportion of this standard should produce a integral part of an overall local strategy low-income persons. reasonable distribution of assisted units for the preservation or restoration of the (4) Be accessible to social, each year, that, over a period of several immediate neighborhood and of sites in recreational, educational, commercial, years, will approach an appropriate a neighborhood experiencing significant and health facilities and services, and balance of housing choices within and private investment that is demonstrably other municipal facilities and services outside areas of minority concentration. changing the economic character of the that are at least equivalent to those An appropriate balance in any area (a ‘‘revitalizing area’’). An typically found in neighborhoods jurisdiction must be determined in light ‘‘overriding housing need,’’ however, consisting largely of unassisted, of local conditions affecting the range of may not serve as the basis for standard housing of similar market housing choices available for low- determining that a site is acceptable if rents. income minority families and in relation the only reason the need cannot (5) Be so located that travel time and to the racial mix of the locality’s otherwise be feasibly met is that cost via public transportation or private population. discrimination on the basis of race, automobile from the neighborhood to color, religion, sex, national origin, age, places of employment providing a range (B) Units may be considered familial status or disability renders sites of jobs for lower-income workers is not ‘‘comparable opportunities’’ if they have outside areas of minority concentration excessive. (While it is important that the same household type (elderly, unavailable or if the use of this standard housing for the elderly not be totally disabled, family, large family) and in recent years has had the effect of isolated from employment tenure type (owner/renter); require circumventing the obligation to provide opportunities, this requirement need not approximately the same tenant housing choice. be adhered to rigidly for such projects.) contribution towards rent; serve the (4) The site must promote greater (b) New construction site and same income group; are located in the choice of housing opportunities and neighborhood standards. The proposed same housing market; and are in avoid undue concentration of assisted sites for new construction units must be standard condition. persons in areas containing a high approved by the HUD field office as (C) Application of this sufficient, proportion of low-income persons. meeting the following site and comparable opportunities standard (5) The neighborhood must not be one neighborhood standards: involves assessing the overall impact of which is seriously detrimental to family (1) The site must be adequate in size, HUD-assisted housing on the life or in which substandard dwellings exposure, and contour to accommodate availability of housing choices for low- or other undesirable conditions the number and type of units proposed, income minority families in and outside predominate, unless there is actively in and adequate utilities (water, sewer, gas, areas of minority concentration, and progress a concerted program to remedy and electricity) and streets must be must take into account the extent to the undesirable conditions. available to service the site. which the following factors are present, (6) The housing must be accessible to (2) The site and neighborhood must along with other factors relevant to social, recreational, educational, be suitable from the standpoint of housing choice: commercial, and health facilities and 34720 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations services, and other municipal facilities assistance, in whole or in part, and need cost to help a family experiencing and services that are at least equivalent not review each project on a case-by- difficulty in renting appropriate to those typically found in case basis. housing. neighborhoods consisting largely of (d) An HA may attach assistance to (6) HA-owned units are subject to the unassisted, standard housing of similar units under this part 983 for use as same requirements as units that are not market rents. single room occupancy (SRO) housing HA-owned, including the ineligibility of (7) Except for new construction only if: units that are currently public or Indian housing designed for elderly persons, (1) The property is located in an area housing and units constructed or travel time and cost via public in which there is a significant demand rehabilitated with other assistance transportation or private automobile, for these units, as determined by the under the U.S. Housing Act of 1937. from the neighborhood to places of HUD field office; (2) The HA and the unit of general § 983.8 Rehabilitation: Minimum employment providing a range of jobs expenditure requirement. for lower-income workers, must not be local government in which the property (a) To qualify as rehabilitation under excessive. is located approve the attaching of assistance to these units; and this part 983, existing structures must § 983.7 Eligible and ineligible properties (3) The HA and the unit of general require a minimum expenditure of and HA-owned units. local government certify to HUD that the $1000 per assisted unit, including the (a) Section 982.352 of this chapter, property meets applicable local health unit’s prorated share of work to be Eligible Housing, does not apply. Newly and safety standards. accomplished on common areas or constructed and existing structures of (e) Assistance may not be attached to systems, in order to: various types may be appropriate for a unit that is occupied by an owner; (1) Upgrade the property to decent, attaching assistance to the units under however, cooperatives are considered to safe, and sanitary condition to comply this part 983, including single-family be rental housing for purposes of this with the housing quality standards or housing and multifamily structures. part 983. other standards approved by HUD, from (b) An HA may not attach assistance (f) In no event may any occupant of a condition below those standards; (2) Repair or replace major building under this part 983 to units in the a unit with project-based assistance systems or components in danger of following types of housing: under this part 983 receive the benefit failure within two years from the date (1) Housing for which the of any of the following: any other form construction is started before Agreement of the initial HA inspection; of Section 8 assistance, rent (3) Convert or merge units to provide execution; supplement, Section 23 housing (2) Housing for which the housing for large families; or assistance, or Section 236 ‘‘deep (4) For up to seven percent of the rehabilitation is started before subsidy’’ rental assistance payments. units to be assisted, make accessibility Agreement execution; (g)(1) HA-owned unit means a unit improvements to the property necessary (3) Shared housing; nursing homes; (other than public housing) that is to meet the requirements of Section 504 and facilities providing continual owned by the HA which administers the of the Rehabilitation Act of 1973 and the psychiatric, medical, nursing services, assistance under this part 983 pursuant Fair Housing Amendments Act of 1988. board and care or intermediate care; to an ACC between HUD and the HA (b) In determining the minimum (4) Units within the grounds of penal, (including a unit owned by an entity expenditure of $1000 per assisted unit, reformatory, medical, mental, and substantially controlled by the HA). the HA must include the prorated cost similar public or private institutions; (2) An HA-owned unit may only be of common improvements in the costs (5) Housing located in the Coastal assisted under the project-based of the individual units. Barrier Resources System designated certificate program if: under the Coastal Barrier Resources Act; (i) The HA-owned unit is not § 983.9 Prohibition against new or ineligible housing under this section. construction or rehabilitation with U.S. (6) Housing located in an area that has (ii) The HUD field office selects the Housing Act of 1937 assistance and use of been identified by the Federal HA-owned unit pursuant to the flexible subsidy; pledge of Agreement or Emergency Management Agency competitive ranking and rating process HAP contract. (FEMA) as having special flood hazards, specified in the HA’s HUD-approved (a) Assistance may not be attached to unless: unit selection policy (see § 983.51). any unit which was in the five years (i)(A) The community in which the (iii) The HUD field office establishes before execution of the Agreement, or area is situated is participating in the the initial contract rents. will be, constructed or rehabilitated National Flood Insurance Program (see (iv) The HUD field office has with other assistance under the U.S. 44 CFR parts 59 through 79); or conducted all HA reviews required Housing Act of 1937 (e.g., public (B) Less than a year has passed since under this part before execution of the housing (development or FEMA notification regarding such Agreement. modernization), rental rehabilitation hazards; and (3) Any adjustment of the contract grants under 24 CFR part 511, housing (ii) The HA will ensure that flood rent for an HA-owned unit must be development grants under 24 CFR part insurance on the structure is obtained in approved in advance by the HUD field 850, or other Section 8 programs). In compliance with section 102(a) of the office. addition, a unit to which assistance is Flood Disaster Protection Act of 1973 (4) As owner of an HA-owned unit, to be attached under this part 983 may (42 U.S.C. 4001 et seq.). the HA is subject to all of the same not be rehabilitated with flexible (7) A public housing or Indian program requirements that apply to subsidy assistance under part 219 of this housing unit. other owners in the program. title. HUD may approve attachment of (c) An HA may attach assistance (5) HUD headquarters establishes the assistance to a unit that was under this part 983 to a highrise elevator amount of the administrative fee for an rehabilitated with public housing project for families with children only if HA-owned unit. The HA will earn a modernization funds before conveyance HUD determines there is no practical lower ongoing administrative fee for an to a resident management corporation alternative. HUD may make this HA-owned unit than for a unit not under section 21 of the U.S. Housing determination for an HA’s project-based owned by the HA, and no fee for the Act of 1937 (42 U.S.C. 1437s) if Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34721 attachment of project-based assistance (iv) The assistance required under (g) Definition of displaced person. (1) would further the purposes of the sale paragraph (b)(1) of this section. For purposes of this section, the term of the public housing project to the (c) Relocation assistance for displaced displaced person means a person corporation. persons. A ‘‘displaced person’’ (defined (household, business, nonprofit (b) If an owner is proposing to pledge in paragraph (g) of this section) must be organization, or farm) that moves from the Agreement or HAP contract as provided relocation assistance at the real property, or moves personal security for financing, the owner must levels described in, and in accordance property from real property, submit the financing documents to the with the requirements of, the Uniform permanently, as a direct result of HA. In determining the approvability of Relocation Assistance and Real Property acquisition, rehabilitation, or a pledge arrangement, the HA must Acquisition Policies Act of 1970, as demolition for a project assisted under review the documents submitted by the amended (URA) (42 U.S.C. 4201–4655) this part. The term ‘‘displaced person’’ owner to ensure that the financing and implementing regulations at 49 CFR includes, but may not be limited to: documents do not modify the part 24. A ‘‘displaced person’’ must be (i) A person who moves permanently Agreement or HAP contract, and do not advised of his/her rights under the Fair from the real property after receiving a contain any requirements inconsistent Housing Act (42 U.S.C. 3600–3620), notice from the owner requiring such with the Agreement or HAP contract. and, if the representative comparable move, if the move occurs on or after the Any pledge of the Agreement or HAP replacement dwelling used to establish date of the submission of the owner contract must be limited to amounts the amount of the replacement housing application to the HA; payable under the HAP contract in payment to be provided to a minority is (ii) A person who moves permanently accordance with the terms of the HAP located in an area of minority before the submission of the owner contract. concentration, such person must also be application to the HA, if the HA or HUD given, if possible, referrals to determines that the displacement § 983.10 Displacement, relocation, and resulted directly from acquisition, acquisition. comparable and suitable, decent, safe, and sanitary replacement dwellings not rehabilitation, or demolition for the (a) Minimizing displacement. (1) located in such areas. assisted project; or Consistent with the other goals and (d) Real property acquisition (iii) A tenant-occupant of a dwelling objectives of this part, an owner must requirements. The acquisition of real unit who moves from the building or assure that it has taken all reasonable property for a project is subject to the complex, permanently, after execution steps to minimize the displacement of URA and the requirements of 49 CFR of the Agreement between the owner persons (households, businesses, part 24, subpart B. and the HA, if the move occurs before nonprofit organizations, and farms) as a (e) Appeals. A person who disagrees the tenant is provided written notice result of a rehabilitation project assisted with the HA’s determination concerning offering the opportunity to lease and under this part. occupy a suitable, decent, safe, and (2) Whenever a building or complex is whether the person qualifies as a ‘‘displaced person,’’ or the amount of sanitary dwelling in the same building rehabilitated and some, but not all, of or complex under reasonable terms and the rehabilitated units will be assisted relocation assistance for which the person is eligible, may file a written conditions, upon completion of the upon completion of the rehabilitation, project. Such reasonable terms and the relocation requirements described in appeal of that determination with the HA. A person who is dissatisfied with conditions include a monthly rent and this section cover the occupants of each estimated average monthly utility costs rehabilitated unit, whether or not the HA’s determination on the appeal may submit a written request for review that do not exceed the greater of: Section 8 assistance will be provided for (A) The tenant’s monthly rent before of that determination to the HUD field the unit. execution of the Agreement and office responsible for administering the (b) Temporary relocation. The estimated average monthly utility costs; URA requirements in the jurisdiction. following policies cover residential or tenants who will not be required to (f) Responsibility of HA. (1) The HA (B) The total tenant payment, as move permanently but who must must provide assurance of compliance determined under 24 CFR 813.107, if relocate temporarily for the project. as required by 49 CFR part 24 that it the tenant is low-income, or 30 percent Such tenants must be provided: will comply with the URA, the of gross household income, if the tenant (1) Reimbursement for all reasonable regulations at 49 CFR part 24, and the is not low-income; or out-of-pocket expenses incurred in requirements of this section, and must (iv) A tenant-occupant of a dwelling connection with the temporary ensure such compliance who is required to relocate temporarily, relocation, including the cost of moving notwithstanding any third party’s but does not return to the building or to and from the temporary housing and contractual obligation to the HA to complex, if either: any increase in monthly rent/utility comply with these provisions. (A) The tenant is not offered payment costs; (2) The cost of required relocation for all reasonable out-of-pocket (2) Appropriate advisory services, assistance may be paid for with funds expenses incurred in connection with including reasonable advance written provided by the owner, or with local the temporary relocation, including the notice of: public funds, or with funds available cost of moving to and from the (i) The date and approximate duration from other sources. The cost of HA temporarily occupied unit and any of the temporary relocation; advisory services for temporary increased housing costs; or (ii) The location of the suitable, relocation of tenants may be paid from (B) Other conditions of the temporary decent, safe and sanitary dwelling to be preliminary fees or ongoing relocation are not reasonable; or made available for the temporary administrative fees. (v) A tenant-occupant of a dwelling period; (3) The HA must maintain records in who moves from the building or (iii) The terms under which the tenant sufficient detail to demonstrate complex permanently after he or she has may lease and occupy a suitable, decent, compliance with the provisions of this been required to move to another safe, and sanitary dwelling in the section. The HA must maintain data on dwelling unit in the same building or project upon completion of the project; the race, ethnicity, gender, and complex in order to carry out the and disability of displaced persons. rehabilitation or construction, if either: 34722 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations (A) The tenant is not offered (b) Environmental requirements. contract rents. (1) The HA establishes reimbursement for all reasonable out-of- Activities under this part 983 are subject the initial contract rents for PBC units pocket expenses incurred in connection to HUD environmental regulations at 24 that are neither HA-owned nor financed with the move; or CFR part 58. An HA may not attach with a HUD insured or coinsured (B) Other conditions of the move are assistance to a unit unless, before the mortgage. The HA must contract with a not reasonable; or HA enters into an Agreement to provide state certified general appraiser who has (2) Notwithstanding the provisions of project-based assistance for the unit: no interest, direct or indirect, with the paragraph (g)(1) of this section, a person (1) The unit of general local property. The appraiser will submit for does not qualify as a ‘‘displaced person’’ government within which the project is the HA’s review and approval a Form (and is not eligible for relocation located that exercises land use HUD–92273, Estimates of Market Rent assistance under the URA or this responsibility or, as determined by by Comparison, for each unit type using section), if: HUD, the county or State has completed comparable unsubsidized market-rate (i) The person has been evicted for the environmental review required by rental properties. In developing the serious or repeated violation of the 24 CFR part 58 and provided to the HA rental estimates, the appraiser must not terms and conditions of the lease or for submission to HUD the completed consider the proposed Section 8 occupancy agreement, violation of request for release of funds and assistance or any other Federal, state or applicable Federal, State or local law, or certification; and local rent subsidies. The HA must (2) HUD has approved the request for other good cause, and the HA certify that the initial contract rents are release of funds. reasonable and not in excess of rents determines that the eviction was not (c) Other Federal requirements. The undertaken for the purpose of evading being charged for comparable unassisted following requirements must be met, if units. the obligation to provide relocation applicable: assistance; (2) The HUD field office approves the (1) Clean Air Act and Federal Water initial contract rents for HA-owned PBC (ii) The person moved into the Pollution Control Act; property after the submission of the units and projects financed with a HUD (2) Flood Disaster Protection Act of insured or coinsured multifamily owner application to the HA and, before 1973; signing a lease and commencing mortgage. (3) Section 3 of the Housing and (3) HUD or a Housing Credit Agency occupancy, was provided written notice Urban Development Act of 1968 (12 may reduce the initial contract rents as of the owner application, its possible U.S.C. 1701u) and the regulations in 24 a result of a subsidy layering review. impact on the person (e.g., the person CFR part 135; may be displaced, temporarily (4) Executive Order 11246, Equal § 983.13 Annual contract rent adjustments. relocated, or suffer a rent increase) and Employment Opportunity (for all Section 882.715 (a)(1) and (b) of this the fact that the person would not construction contracts of over $10,000); title apply to the Section 8 PBC qualify as a ‘‘displaced person’’ (or for (5) Executive Order 11625, Program. any assistance provided under this Prescribing Additional Arrangements section) if the owner application is for Developing and Coordinating a § 983.14 Special contract rent approved; National Program for Minority Business adjustments. (iii) The person is ineligible under 49 Enterprises; Section 882.715 (a)(2) and (b) of this CFR 24.2(g)(2); or (6) Executive Orders 12432, Minority title apply to the Section 8 PBC (iv) HUD determines that the person Business Enterprise Development, and Program. was not displaced as a direct result of 12138, Creating a National Women’s Subpart BÐOwner Application acquisition, rehabilitation, or Business Enterprise Policy; and Submission to Agreement demolition for the project. (7) Payment of not less than the wages prevailing in the locality, as (3) The HA may request, at any time, § 983.51 HA unit selection policy, predetermined by the Secretary of Labor HUD’s determination of whether a advertising, and owner application pursuant to the Davis-Bacon Act, to all displacement is or would be covered by requirements. laborers and mechanics employed in the this section. (a) General. The HA must adopt a construction or rehabilitation of the (h) Definition of initiation of written policy establishing competitive project under an Agreement covering procedures for owner submission of negotiations. For purposes of nine or more assisted units, and applications and for HA selection of determining the formula for computing compliance with the Contract Work units to which assistance is to be a replacement housing payment to be Hours and Safety Standards Act, attached and must submit the policy to provided to a residential tenant Department of Labor regulations in 29 the HUD field office for review and displaced as a direct result of privately CFR part 5, and other Federal laws and approval. The HA must select units in undertaken rehabilitation or demolition regulations pertaining to labor standards accordance with its approved selection of the real property, the term ‘‘initiation applicable to such an Agreement. of negotiations’’ means the execution of (8) The provisions of part 24 of this policy. The HA’s written selection the Agreement between the owner and title relating to the employment, policy must comply with the the HA. engagement of services, awarding requirements of paragraph (b) of this section. § 983.11 Other Federal requirements. contracts, or funding of any contractors or subcontractors during any period of (b) Advertising requirements. The HA (a) Equal Opportunity and related debarment, suspension, or placement in must advertise in a newspaper of requirements. Participation in this ineligibility status. general circulation that the HA will program requires compliance with the accept applications for assistance under Equal Opportunity requirements § 983.12 Initial contract rents. this part 983 for specific projects. The specified in § 982.53 of this chapter (a) General. Section 882.714 of this advertisement must be approved by the including Section 504 of the title, Initial contract rents, applies to the HUD field office and may not be Rehabilitation Act of 1973 (24 CFR part Section 8 PBC Program. published until after the later of HUD 8) and the Fair Housing Amendments (b) HA, HUD or Housing Credit authorization to implement a project- Act of 1988 (24 CFR part 100). Agency establishment of the initial based program or ACC execution. The Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34723 advertisement must: be published once (iii) The estimated cost of relocation requirement under § 982.8 of this a week for three consecutive weeks; payments and services, and the sources chapter. If the property meets this specify an application deadline of at of funding; and rehabilitation requirement, the HA must least 30 days after the date the (iv) The organization(s) that will carry determine the specific work items that advertisement is last published; specify out the relocation activities; are needed to bring each unit to be the number of units the HA estimates it (v) The identity of the owner and assisted up to the housing quality will be able to assist under the funding other project principals and the names standards specified in § 983.5 (or other the HA is making available for this of officers and principal members, standards as approved in the HA’s purpose; and state that only shareholders, investors, and other application), to complete any other applications submitted in response to parties having a substantial interest; repairs needed to meet the $1000 per the advertisement will be considered. certification showing that the above- assisted unit rehabilitation requirement (c) Selection policy requirements. The mentioned parties are not on the U.S. and, in the case of projects of five or HA’s written selection policy must General Services Administration list of more units, any work items necessary to identify, and specify the weight to be parties excluded from Federal meet the accessibility requirements of given to, the factors the HA will use to procurement and nonprocurement Section 504 of the Rehabilitation Act of rank and select applications. These programs; a disclosure of any possible 1973. factors must include consideration of: conflict of interest by any of these (b) Before selecting a unit or executing site; design; previous experience of the parties that would be a violation of the an Agreement, the HA must also owner and other participants in Agreement or the HAP contract; and consider whether the property is eligible development, marketing, and information on the qualifications and housing under § 983.7; meets the other management; and feasibility of the experience of the principal participants. Federal requirements in § 983.11 and project as a whole (including likelihood Information concerning any participant the site and neighborhood standards of financing and marketability). The HA who is not known at the time of the cross-referenced in § 983.6; and will be may add other factors, such as owner’s submission must be provided to rehabilitated with other than assistance responsiveness to local objectives the HA as soon as the participant is under the U.S. Housing Act of 1937 in specified by the HA. known; accordance with § 983.9. The HA must (d) Owner application. The owner’s (vi) The owner’s plan for managing also determine the number of current submission to the HA of applications and maintaining the units; tenants that are low-income families. An containing: (vii) Evidence of financing or lender HA may not select a unit, or enter into (1) A description of the housing to be interest and the proposed terms of an Agreement with respect to a unit, if constructed or rehabilitated, including financing; the unit is occupied by persons who are the number of units by size (square (viii) The proposed term of the HAP not eligible for participation in the footage), bedroom count, bathroom contract; and program. count, sketches of the proposed new (ix) Such other information as the HA (c) Before executing an Agreement, construction or rehabilitation, unit believes necessary. the HA must contract with a State plans, listing of amenities and services, (e) Resident management corporation certified general appraiser and establish and estimated date of completion. For competitive selection exception. An HA the rents in accordance with § 983.12, or rehabilitation, the description must may select units to which assistance is seek and obtain the HUD-determined describe the property as is, and must to be attached, without advertising initial contract rents for any HA owned also describe the proposed under paragraph (b) of this section and or controlled units or projects financed rehabilitation; without applying the selection factors with a HUD insured or coinsured (2) Evidence of site control, and for otherwise required by paragraph (c) of multifamily mortgage; obtain subsidy new construction identification and this section, if attachment of project- layering contract rent reviews from HUD description of the proposed site, site based assistance would further the or a Housing Credit Agency; obtain plan and neighborhood; purposes of the sale of a public housing environmental clearance in accordance (3) Evidence that the proposed new project to a resident management with § 983.11; submit a certification to construction or rehabilitation is corporation under section 21 of the U.S. the HUD field office stating that the unit permitted by current zoning ordinances Housing Act of 1937 (42 U.S.C. 1437s). or units were selected in accordance or regulations or evidence to indicate with the HA’s approved unit selection that the needed rezoning is likely and § 983.52 Rehabilitation: Initial inspection policy; and receive approval from the and determination of unit eligibility. will not delay the project; HUD field office to execute an (4) The proposed contract rent per (a) Before selecting a unit or executing Agreement pursuant to the reviews unit, including an indication of which an Agreement, the HA must determine required in § 983.53. utilities, services, and equipment are that the application is responsive to and (d) When the HA administering the included in the rent and which are not in compliance with the HA’s written ACC or an entity substantially included. For those utilities that are not selection criteria and procedures, and is controlled by the HA administering the included in the rent, an estimate of the otherwise in conformity with HUD ACC has submitted an application, the average monthly cost for each unit type program regulations and requirements. HUD field office will select the owner for the first year of occupancy; For example, the owner must submit applications. The HA must submit to (5) A statement identifying: with the application evidence of site the HUD field office all owner (i) The number of persons (families, control and the certification required by applications in response to the individuals, businesses and nonprofit § 983.51(d)(5)(v). The HA must advertisement. organizations) occupying the property determine that the proposed initial gross (e) The HUD field office may on the date of the submission of the rents are within the fair market rent terminate the Agreement or HAP application; limitation under § 882.714 of this title. contract upon at least 30 days written (ii) The number of persons to be The HA must inspect the property to notice to the owner by the HUD field displaced, temporarily relocated or determine that rehabilitation has not office if the HUD field office determines moved permanently within the building begun and that the property meets the at any time that the units were not or complex; $1000 per assisted unit rehabilitation selected in accordance with the HA’s 34724 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations approved written selection policy or Housing Amendments Act of 1988 will (b) The HUD field office must that the units did not initially meet the be completed. establish initial contract rents for any HUD eligibility requirements. (b) Before executing an Agreement, HA owned units or projects financed the HA must contract with a State with a HUD insured or coinsured § 983.53 Rehabilitation: HUD field office multifamily mortgage. HUD (or a review of applications. certified general appraiser and establish the rents in accordance with § 983.12 or Housing Credit Agency) must also (a) The HUD field office must seek and obtain the HUD-determined conduct subsidy layering contract rent establish initial contract rents for any initial contract rents for any HA owned reviews. HA owned units or projects financed or controlled units or projects financed (c) When the HA administering the with a HUD insured or coinsured with a HUD insured or coinsured ACC or an entity substantially multifamily mortgage. HUD (or a multifamily mortgage; seek and obtain controlled by the HA administering the Housing Credit Agency) must also subsidy layering contract rent reviews ACC has submitted an application, the conduct subsidy layering contract rent from HUD or a Housing Credit Agency; HA must submit to the HUD field office reviews. seek and obtain environmental all owner applications in response to (b) When the HA administering the clearance in accordance with § 983.11; the advertisement. The HUD field office ACC or an entity substantially and receive approval from the HUD must review the owner applications and controlled by the HA administering the field office to execute an Agreement make the final selections based on the ACC has submitted an application, the pursuant to the reviews required in criteria in the HA selection policy HA must submit to the HUD field office § 983.56. approved by the HUD field office. all owner applications in response to (c) If the HA administering the ACC the advertisement. The HUD field office § 983.57 New construction: Working or an entity substantially controlled by drawings and specifications. must review the owner applications and the HA administering the ACC has make the final selections based on the Before an Agreement is executed for submitted an application, the HA must criteria in the HA selection policy new construction units, the owner must submit to the HUD field office all owner approved by the HUD field office. submit the design architect’s applications in response to the certification that the proposed new § 983.54 Rehabilitation: Work write-ups. advertisement. The HUD field office construction reflected in the working The owner must prepare work write- will select the owner applications to be drawings and specifications complies ups and, where determined necessary funded from the applications received with housing quality standards, local by the HA, specifications and plans. The in response to the HA advertisement. codes and ordinances, and zoning HA has flexibility to determine the (d) If there are no HA-owned or requirements. appropriate documentation to be controlled applicants, the HA must Subpart CÐAgreement and New submitted by the owner based on the submit to the HUD field office for the Construction or Rehabilitation Period nature of the identified rehabilitation. site and neighborhood review only The work write-ups must address the those applications determined by the § 983.101 Agreement to enter into HAP specific work items identified by the HA HA to be eligible for further processing contract, and contract rents in Agreement. under § 983.52. pursuant to paragraph (a) of this section, (a) Agreement. The HA must enter and must submit a certification to the into an Agreement with the owner in § 983.55 New construction: HA evaluation HUD field office stating that the unit or and technical processing. the form prescribed by HUD for units were selected in accordance with assistance provided under this part 983. (a) Before selecting a unit or executing the HA’s approved unit selection policy. The Agreement must be executed before an Agreement, the HA must determine The HA’s submission must not exceed the start of any new construction or that the application is responsive to and the number of uncommitted units for rehabilitation. Under the Agreement, the in compliance with the HA’s written which the HA is authorized to project- owner agrees to construct the units in selection criteria and procedures, and is base assistance in connection with new accordance with the HA-approved otherwise in conformity with HUD construction. If the number of units working drawings and specifications or program regulations and requirements. contained in applications the HA has to rehabilitate the units in accordance For example, the owner must submit determined to be eligible for further with the HA-approved work write-ups. with the application evidence of site processing exceeds the number for (b) Contract rents in Agreement. The control and the certification required by which the HA is authorized to project- Agreement must list the initial contract § 983.51(d)(5)(v). The HA must base assistance, the HA may submit rents that will apply to the units after determine that construction (foundation only the top-ranked applications. they are constructed or rehabilitated. work) has not begun. The HA must (e) The HUD field office may The amounts of the contract rents that determine that the proposed initial gross terminate the Agreement or HAP are listed in the Agreement or, if rents are within the fair market rent contract upon at least 30 days written applicable, as lowered under limitation under § 983.12. The HA must notice to the owner by HUD if the HUD § 983.103(c), must be the initial contract also consider whether the property is field office determines that the units rents upon execution of the HAP eligible housing within the meaning of were not selected in accordance with contract. These initial contract rents § 983.7; meets the other Federal the HA’s approved written selection may only be increased if: requirements in § 983.11 and the site policy or that the units did not initially (1) The project is financed with a and neighborhood standards in § 983.6; meet the HUD eligibility requirements. HUD insured or coinsured multifamily will be constructed with other than mortgage; assistance under the U.S. Housing Act § 983.56 New construction: HUD field (2) The initial contract rents listed in of 1937 in accordance with § 983.9; and, office review of applications. the Agreement were based on the in the case of projects of four or more (a) The HUD field office must review amount determined by HUD to be units, whether any work items the owner applications submitted by an necessary to amortize the insured or necessary to meet the accessibility HA to determine compliance with coinsured mortgage; and requirements of Section 504 of the requirements concerning the site and (3) The HUD field office approves a Rehabilitation Act of 1973 and the Fair neighborhood standards in § 983.6. cost increase prior to closing. In such a Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34725 case, the HUD field office may office for HA owned units or projects required during construction, a redetermine the initial contract rents in financed with a HUD insured or certification from the inspecting accordance with § 983.12 except that the coinsured multifamily mortgage), and architect stating that the units have been field office may use the comparable may require the owner to remedy any constructed in accordance with the rents originally used in processing the deficiencies, prior to, and as a condition certified working drawings and insured or coinsured mortgage in lieu of for, acceptance of the units. Initial specifications, housing quality the amount determined in accordance contract rents, however, must not be standards, local codes and ordinances, with § 983.12. increased because of any change from and zoning requirements. the work specified in the Agreement as (c) Review and inspections. The HA § 983.102 Owner selection of contractor. originally executed. When a HUD must review the evidence of completion The owner is responsible for selecting insured or a HUD coinsured multifamily for compliance with paragraph (b) of a competent contractor to undertake the mortgage is used to finance new this section. The HA also must inspect new construction or rehabilitation work construction or rehabilitation of the the unit(s) to be assisted to determine under the Agreement. The owner may units to which assistance is to be that the unit(s) has been completed in not award contracts to, otherwise engage attached under this part 983, the HUD accordance with the Agreement, the services of, or fund any contractor field office may lower the initial including meeting the housing quality or subcontractor, to perform such work, contract rents to reflect any reduction in standards or other standards approved that fails to provide a certification that the amount necessary to amortize the by the HUD field office for the program. neither it nor its principals is presently insured or coinsured mortgage. If the inspection discloses defects or debarred, suspended, or placed in (d) Notification of vacancies. At least deficiencies, the inspector must report ineligibility status under 24 CFR part 60 days before the scheduled these in detail. 24, or is on the list of ineligible completion of the new construction or (d) Acceptance. (1) If the HA contractors or subcontractors rehabilitation, the owner must notify the determines from the review and established and maintained by the HA of any units expected to be vacant inspection that the unit(s) has been Comptroller General under 29 CFR part on the anticipated effective date of the completed in accordance with the 5. The HA must promote opportunities HAP contract. The HA must refer to the Agreement, the HA must accept the for minority contractors to participate in owner appropriate-sized families from unit(s). the program. the HA waiting list. When the HAP (2) If there are any items of delayed § 983.103 New construction or contract is executed, the owner must completion that are minor items or that rehabilitation period. notify the HA which units are vacant. are incomplete because of weather conditions, and in any case that do not (a) Timely performance of work. After (See also § 983.203). preclude or affect occupancy, and all the Agreement has been executed, the § 983.104 New construction or other requirements of the Agreement owner must promptly proceed with the rehabilitation completion. have been met, the HA may accept the construction or rehabilitation work as (a) Notification of completion. The unit(s). The HA must require the owner provided in the Agreement. In the event owner must notify the HA when the to deposit in escrow with the HA funds the work is not so commenced, work is completed and submit to the HA in an amount the HA determines to be diligently continued, or completed, the the evidence of completion described in sufficient to ensure completion of the HA may terminate the Agreement or paragraph (b) of this section. delayed items. The HA and owner must take other appropriate action. (b) Evidence of completion. To (b) Inspections. The HA must inspect also execute a written agreement, demonstrate completion of the work the specifying the schedule for completion during construction or rehabilitation to owner must furnish the HA with: ensure that work is proceeding on of these items. If the items are not (1) A certificate of occupancy or other completed within the agreed time schedule and is being accomplished in official approvals as required by the accordance with the terms of the period, the HA may terminate the HAP locality. contract or exercise other rights under Agreement. The inspection must be (2) A certification by the owner that: carried out to ensure that the work the HAP contract. (i) The work has been completed in (3) If other deficiencies exist, the HA meets the types of materials specified in accordance with the requirements of the must determine whether and to what the work write-ups or working drawings Agreement; extent the deficiencies are correctable and specifications, and meets typical (ii) There are no defects or and whether a time extension is levels of workmanship in the area. deficiencies in the work except for items warranted, and HUD must determine (c) Changes. The owner must obtain of delayed completion which are minor whether the contract rents should be prior HA approval for any changes from or which are incomplete because of reduced. the work specified in the Agreement weather conditions and, in any case, do that would alter the design or the (4) Otherwise, the unit(s) may not be not preclude or affect occupancy; accepted, and the owner must be quality of the required new construction (iii) The unit(s) has been constructed notified with a statement of the reasons or rehabilitation. The HA may or rehabilitated in accordance with the for nonacceptance. disapprove any changes requested by applicable zoning, building, housing the owner. HA approval of changes may and other codes, ordinances or Subpart DÐHousing Assistance be conditioned on establishing lower regulations, as modified by any waivers Payments Contract initial contract rents in the amount obtained from the appropriate officials; determined by the HA (or the HUD field (iv) Unit(s) built before 1978 is in § 983.151 Housing assistance payments office for HA owned units or projects compliance with § 982.401(j) (Lead- contract (HAP contract). financed with a HUD insured or based paint); and (a) Required form. The HA must enter coinsured multifamily mortgage). If the (v) The owner has complied with any into a HAP contract with the owner in owner makes any changes without prior applicable labor standards requirements the form prescribed by HUD for HA approval, the HA may lower the in the Agreement. assistance provided under this part 983. initial contract rents in the amount (3) For projects where a HUD field (b) Term of HAP contract. (1) The determined by the HA (or the HUD field office construction inspection is not initial HAP contract term may not be 34726 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations less than one year nor more than five programs and reduction of the number within the amounts available under the years, and may not extend beyond the of units under the HAP contract, as set ACC. ACC expiration date for the funding forth in paragraph (b) of this section. source from which the HAP contract is Once the HA has determined that a § 983.202 Responsibilities of the owner. to be funded. violation exists, the HA must notify the Section 982.452 of this chapter, (2) The contract authority for the HUD field office of its determination Owner responsibilities, applies. The funding source must exceed the and the suggested remedies. At the owner is also responsible for performing estimated annual housing assistance direction of the HUD field office, the HA all of the owner responsibilities under payments for all tenant-based and must take the appropriate action. the Agreement and the HAP contract, project-based HAP contracts funded (b) Reduction for failure to lease to disclosing information and submitting from the funding source. eligible families. If, at any time certifications as required by 24 CFR part (3) Within these limitations, the HA beginning 180 calendar days after the 12 and implementing instructions, has the sole discretion to determine the effective date of the HAP contract, the providing the HA with a copy of any HAP contract term. For example, owner fails for a period of 180 termination of tenancy notification, and assuming that the ACC expiration date continuous calendar days to have the offering vacant, accessible units to a for the applicable funding source is June assisted units leased to families Family with one or more members with 30, 1999, and the effective date of a HAP receiving housing assistance or to a disability requiring that accessibility contract will be July 1, 1995, the HAP families who were eligible when they features of the vacant unit and contract could have a fixed term of 1 to initially leased the unit but are no occupying an assisted unit not having 4 years. longer receiving housing assistance, the such features. (c) Renewal of HAP contracts. With HA may, on at least 30 calendar days § 983.203 Family participation. HUD field office approval and at the notice, reduce the number of units Subpart E of part 982 of this chapter, sole option of the HA, HAs may renew covered by the HAP contract. The HA Selection for Tenant-based Program, expiring HAP contracts for such period may reduce the number of units to the does not apply, except as it is expressly or periods as the HUD field office number of units actually leased or made applicable by this section. determines appropriate to achieve long- available for leasing by eligible families (a) HA selection for participation. (1) term affordability of the assisted plus 10 percent (rounded up). If the The following provisions apply to this housing, provided that the term does owner has only one unit under HAP part: §§ 982.201, 982.202 except not extend beyond the ACC expiration contract and if one year has elapsed paragraph (b)(3), 982.203, 982.204 date for the funding source. HAs must since the date of the last housing except paragraph (a) and (d), 982.205 identify the funding source for assistance payment, the HAP contract except paragraph (a), 982.206, 982.207 renewals; different funding sources may may be terminated with the consent of except (b)(1), and 982.208 through be used for the initial term and renewal the owner. 982.213 of this chapter. terms of the HAP contract. In addition (c) Restoration. The HA will agree to (2) For purposes of this part, a family to assessing whether the HAP contract an amendment of the HAP contract to becomes a participant when the family should be renewed to achieve long term provide for subsequent restoration of and owner execute a lease for a unit affordability, HUD will review an HA’s any reduction made pursuant to renewal request to determine that the with project-based assistance. paragraph (b) of this section if: (3) An HA may use the tenant-based requirements listed in § 983.3(a) will be (1) The HA determines that the waiting list, a merged waiting list, or a satisfied, and to determine if a rent restoration is justified by demand, separate PBC waiting list for admission reduction is warranted pursuant to 24 (2) The owner otherwise has a record to the PBC program. If the HA opts to CFR part 12. The owner and owner’s of compliance with obligations under have a separate PBC waiting list, the HA successors in interest must accept all the HAP contract; and HAP contract renewals agreed to by the (3) Contract authority is available. may use a single waiting list for all PBC HA and approved by HUD. projects, or may use a separate PBC (d) Time of execution. The HA must Subpart EÐManagement waiting list for an area not smaller than execute the HAP contract if the HA a county or municipality. § 983.201 Responsibilities of the HA. accepts the unit(s) under § 983.104. The (4) Except for special admissions and effective date of the HAP contract may Section 982.153 of this chapter, HA admissions pursuant to paragraph (c)(3) not be earlier than the date of HA Responsibilities, applies, except for of this section, participants must be inspection and acceptance of the unit(s). § 982.153(b)(7) of this chapter, where it selected from the HA waiting list. The (e) Units under lease. After pertains to the HA issuing a voucher or HA must select participants from the commencement of the HAP contract certificate to each selected family and waiting list in accordance with term, the HA must make the monthly providing housing information to admission policies in the HA housing assistance payments in families selected, and § 982.153(b)(9) of administrative plan. accordance with the HAP contract for this chapter. The HA must also: (5) Local preference limit means 30 each unit occupied under lease by a (a) Brief the family in accordance with percent of total annual waiting list family. § 983.203(d); admissions to an HA’s PBC program (b) Obtain requests for participation (including admissions pursuant to § 983.152 Reduction of number of units from owners, and select projects; paragraph (c)(3) of this section). In any covered by HAP contract. (c) Approve contract rent adjustments, year, the number of families given (a) Limitation on leasing to ineligible and make rent reasonableness preference in admission to the HA PBC families. Owners must lease all assisted determinations for units which are not program pursuant to a local preference units under HAP contract to eligible HA owned; over families with a federal preference families. Leasing of vacant, assisted (d) Inspect the project before, during, may not exceed the local preference units to ineligible tenants is a violation and upon completion of, new limit. of the HAP contract and grounds for all construction or rehabilitation; and (6) Has authorized to use the 30- available legal remedies, including (e) Ensure that the amount of percent limit to prevent prepayments suspension or debarment from HUD assistance that is attached to units is under State mortgage programs must not Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34727 count families selected to occupy units (ii)(A) An owner must promptly (f) Amount of rent payable by family in these State-assisted or subsidized notify in writing any rejected applicant to owner. The amount of rent payable by projects against the local preference of the grounds for any rejection. the Family to the owner must be the limit. (B) If the owner rejects an applicant Tenant Rent. (7) The selection of eligible in-place family who believes that the rejection (g) Lease requirements. (1) The lease families does not count against the local was the result of unlawful between the family and the owner must preference limit. discrimination, the family may request be in accordance with § 983.207 and any (b) HA determination of eligibility of the assistance of the HA in resolving the other applicable HUD regulations and in-place families. Before an HA selects issue. The family may also file a requirements. The lease must include a specific unit to which assistance is to discrimination complaint with the HUD all provisions required by HUD and be attached, the HA must determine field office or exercise other rights must not include any of the provisions whether the unit is occupied, and if provided by law. prohibited by HUD. occupied, whether the unit’s occupants (d) Briefing of families. When a family (2) When offering an accessible unit to are eligible for assistance. If the unit is is selected to occupy a project-based an applicant not having disabilities occupied by an eligible family unit, the HA must provide the family requiring the accessibility features of the (including a single person) and the HA with information concerning the tenant unit, the owner may require the selects the unit, the family must be rent and any applicable utility applicant to agree (and may incorporate afforded the opportunity to lease that allowance and a copy of the HUD- this agreement in the Lease) to move to unit or another appropriately sized, prescribed lead-based paint brochure. a non-accessible unit when available. project-based assisted unit in the project The family must also, either in group or without requiring the family to be individual sessions, be provided with a § 983.204 Maintenance, operation and placed on the waiting list. (The HA is full explanation of the following: inspections. authorized, under § 812.3(b)(1) of this (1) Family and owner responsibilities (a) Section 982.404 of this chapter, chapter and consistent with other under the lease and HAP contract; Maintenance: Owner and family applicable requirements of § 812.3, to (2) Information on Federal, State, and responsibility; HA remedies, pertaining permit occupancy of the project by local equal opportunity laws; to owner responsibilities and HA single persons residing in the project at (3) The fact that the subsidy is tied to remedies, does not apply. Section the time of conversion to project-based the unit, that the family must occupy a 982.405 of this chapter, HA periodic assistance to prevent displacement.) An unit constructed or rehabilitated under unit inspection, and § 982.406 of this HA may not select a unit, or enter into the program, and that a family that chapter, Enforcement of HQS, do not an Agreement with respect to a unit, if moves from the unit does not have any apply. the unit is occupied by persons who are (b) Maintenance and operation. The not eligible for participation in the right to continued assistance; owner must provide all the services, program. (4) The likelihood of the family (c) Filling vacant units. (1) When the receiving a certificate after the HAP maintenance and utilities as agreed owner notifies the HA of vacancies in contract expires; under the HAP contract, subject to the units to which assistance is (5) The family’s options under the abatement of housing assistance attached, the HA will refer to the owner program, if the family is required to payments or other applicable remedies one or more families of the appropriate move because of a change in family size if the owner fails to meet these size on its waiting list. A family that or composition; obligations. refuses the offer of a unit assisted under (6) Information on the HA’s (c) Periodic inspection. In addition to this part 983 keeps its place on the procedures for conducting informal the inspections required prior to waiting list. hearings for participants, including a execution of the HAP contract, the HA (2) The owner must rent all vacant description of the circumstances in must inspect or cause to be inspected units to eligible families referred by the which the HA is required to provide the each dwelling unit under HAP contract HA from its waiting list. The HA must opportunity for an informal hearing at least annually and at such other times determine eligibility for participation in (under § 983.208), and of the procedures as may be necessary to assure that the accordance with HUD requirements. for requesting a hearing. owner is meeting the obligations to (3) If the HA does not refer a sufficient (e) Continued assistance for a family maintain the unit in decent, safe and number of interested applicants on the when the HAP contract is terminated. If sanitary condition and to provide the HA waiting list to the owner within 30 the HAP contract for the unit expires or agreed upon utilities and other services. days of the owner’s notification to the if the HA terminates the HAP contract The HA must take into account HA of a vacancy, the owner may for the unit: complaints and any other information advertise for or solicit applications from (1) The HA must issue the assisted coming to its attention in scheduling eligible very low-income families, or, if family in occupancy of a unit a inspections. authorized by the HA in accordance certificate of family participation for (d) Units not decent, safe and with HUD requirements, low-income assistance under the HA’s certificate sanitary. If the HA notifies the owner families. The owner must refer these program unless the HA has determined that the unit(s) under HAP contract are families to the HA to determine that it does not have sufficient funding not being maintained in decent, safe and eligibility. for continued assistance for the family, sanitary condition and the owner fails to (4)(i) The owner is responsible for or unless the HA denies issuance of a take corrective action within the time screening and selection of tenants. The certificate in accordance with § 982.552 prescribed in the notice, the HA may owner must adopt written tenant of this chapter. exercise any of its rights or remedies selection procedures that are consistent (2) If the unit is not occupied by an under the HAP contract, including with the purpose of improving housing assisted family, then the available funds abatement of housing assistance opportunities for very low-income under the ACC that were previously payments (even if the family continues families, and reasonably related to committed for support of the project- in occupancy), termination of the HAP program eligibility and an applicant’s based assistance for the unit must be contract on the affected unit(s) and ability to perform the lease obligations. used for the HA’s certificate program. termination of assistance to the family 34728 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations in accordance with § 982.552 of this resumption of payments as a result of of this chapter, Owner termination of chapter. later changes in income, rents, or other tenancy, do not apply. relevant circumstances during the term (b) Term of lease. The term of a lease, § 983.205 Reexamination of family income of the HAP contract. However, and composition. including a new lease or a lease eligibility also may be terminated in amendment, executed by the owner and (a) Section 882.212 of this title, accordance with HUD requirements for Reexaminations of family income and the family must be for at least one year, such reasons as failure to submit or the remaining term of the HAP composition, does not apply. requested verification information. (b) Regular and interim contract if the remaining term of the reexaminations. (1) The HA must § 983.206 Overcrowded and HAP contract is less than one year. reexamine the income and composition underoccupied units. (c) Move from unit. The family must of all families at least once every 12 (a) Section 982.403(a)(2) of this notify the HA and the owner before the months. After consultation with the chapter, Termination of HAP contract: family moves out of the unit. violation of HQS space standards; family and upon verification of the (d) Termination of tenancy. (1) § 982.403(b) of this chapter, Certificate information, the HA must make Subpart A of part 247 of this title, program only: Termination of HAP appropriate adjustments in the total Eviction from Certain Subsidized and contract—subsidy too big for family tenant payment in accordance with part HUD-Owned Projects, applies, except size; and § 982.403(c) of this chapter, 813 of this title and determine whether § 247.4(d) of this title. the family’s unit size is still appropriate Termination, do not apply. (see § 982.402 of this chapter). The HA (b) If the HA determines that a (2) The lease may contain a provision must adjust tenant rent and the housing contract unit is not decent, safe, and permitting the family to terminate the assistance payment to reflect any change sanitary because of an increase in family lease on not more than 60 days advance in total tenant payment. size that causes the unit to be written notice to the owner. In the case (2) The family must supply any overcrowded or that a contract unit is of a lease term for more than one year, information requested by the HA or larger than appropriate for the size of the lease must contain a provision HUD concerning changes in income. If the family in occupancy under the HA’s permitting the family to terminate the the HA receives information concerning subsidy standards, housing assistance lease on such notice after the first year a change in the family’s income or other payments with respect to the unit may of the term. circumstances between regularly not be terminated for this reason. The (3) The owner may offer the family a scheduled reexaminations, the HA must owner, however, must offer the family a new lease for execution by the family consult with the family and make any suitable alternative unit if one is for a term beginning at any time after adjustments determined to be available and the family shall be the first year of the term of the lease. required to move. If the owner does not appropriate. Any change in the family’s The owner must give the family written have available a suitable unit within the income or other circumstances that notice of the offer at least 60 days before family’s ability to pay the rent, the HA results in an adjustment in the total the proposed commencement date of the (if it has sufficient funding) must offer tenant payment, tenant rent, and new lease term. The offer may specify Section 8 assistance to the family or housing assistance payment must be a reasonable time for acceptance by the otherwise assist the family in locating verified. family. Failure by the family to accept other standard housing in the HA’s (3) The family must disclose and the offer of a new lease in accordance jurisdiction within the family’s ability verify social security numbers (as with this paragraph shall be ‘‘other good to pay, and require the family to move provided by 24 CFR part 750) and must cause’’ for termination of tenancy to such a unit as soon as possible. The (under § 247.3(a)(3) of this title). sign and submit consent forms for family must not be forced to move, nor obtaining information in accordance shall housing assistance payments § 983.208 Informal review. with 24 CFR part 760 and 24 CFR part under the HAP contract be terminated 813. for the reasons specified in this Section 982.554, Informal review for (c) Continuation of housing assistance paragraph, unless the family rejects, applicant, applies, except payments. A family’s eligibility for without good reason, the offer of a unit § 982.554(c)(3) of this chapter. housing assistance payments shall that the HA judges to be acceptable. Dated: June 8, 1995. continue until the total tenant payment equals the gross rent. The termination of § 983.207 Assisted tenancy and Joseph Shuldiner, eligibility at such point will not affect termination of tenancy. Assistant Secretary. the family’s other rights under its lease, (a) Section 982.309 of this chapter, [FR Doc. 95–15906 Filed 6–30–95; 8:45 am] nor will such termination preclude the Term of assisted tenancy, and § 982.310 BILLING CODE 4210±33±P Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices 34729 DEPARTMENT OF HOUSING AND Urban Development, 451 7th Street, Authority: Section 3507 of the Paperwork URBAN DEVELOPMENT Southwest, Washington, DC 20410, Reduction Act, 44 U.S.C. 3507; sec. 7(d) of telephone (202) 708–0050. This is not a the Department of Housing and Urban Office of Administration toll-free number. Copies of the proposed Development Act, 42 U.S.C. 3535(d). Dated: June 22, 1995. [Docket No. N±95±1628; FR±2294±N±03] forms and other available documents submitted to OMB may be obtained David S. Cristy, Submission of Proposed Information from Ms. Weaver. Director, Information Resources Management Policy and Management Division. Collection to OMB SUPPLEMENTARY INFORMATION: The Department has submitted the proposal Notice of Submission of Proposed AGENCY: Office of Administration, HUD. for the collection of information, as Information Collection to OMB ACTION: Notice. described below, to OMB for review, as required by the Paperwork Reduction PROPOSAL: Section 8 Certificate and SUMMARY: The proposed information Housing Voucher Program (FR–2294). collection requirement described below Act (44 U.S.C. Chapter 35). The Notice lists the following OFFICE: Public and Indian Housing. has been submitted to the Office of DESCRIPTION OF THE NEED FOR THE Management and Budget (OMB) for information: (1) The title of the information collection proposal; (2) the INFORMATION AND ITS PROPOSED review, as required by the Paperwork USE: Under the Section 8 Rental Reduction Act. The Department is office of the agency to collect the information; (3) the description of the Certificate Program and Rental soliciting public comments on the Voucher Program, the Department of subject proposal. need for the information and its proposed use; (4) the agency form Housing and Urban Development ADDRESSES: Interested persons are number, if applicable; (5) what members (HUD) enters into an Annual invited to submit comments regarding of the public will be affected by the Contributions Contract (ACC) with this proposal. Comments must be proposal; (6) an estimate of the total Public Housing Agencies to assist received within thirty (30) days from the number of hours needed to prepare the very low-income families who enter date of this Notice. Comments should information submission including into leases directly with private refer to the proposal by name and number of respondents, frequency of owners of existing rental housing. should be sent to: response, and hours of response; (7) FORM NUMBER: HUD–52515, 52517A, Joseph F. Lackey, Jr., OMB Desk Officer, whether the proposal is new or an 52578, 52578B, 52580, 52580A, Office of Management and Budget, extension, reinstatement, or revision of 52595, 52646, 52663, 52665, 52667, New Executive Office Building, an information collection requirement; 52672, 52673, 52681, 52683. Washington, DC 20503. and (8) the names and telephone RESPONDENTS: Individuals or FOR FURTHER INFORMATION CONTACT: numbers of an agency official familiar Households and State, Local, or Tribal Kay F. Weaver, Reports Management with the proposal and of the OMB Desk Government. Officer, Department of Housing and Officer for the Department. REPORTING BURDEN: Number of × Frequency × Hours per Burden respondents of response response = hours Information collection ...... 252,600 9.30 ...... 40 947,493 TOTAL ESTIMATED BURDEN HOURS: CONTACT: Cecelia Livingston, HUD, Dated: June 22, 1995. 947,493. (202) 708–3887; Joseph F. Lackey, Jr., [FR Doc. 95–15907 Filed 6–30–95; 8:45 am] STATUS: Revision. OMB, (202) 395–7316. BILLING CODE 4210±01±M federal register July 3,1995 Monday Rules Federal AcquisitionRegulations;Final 48 CFRPart1,etal. Space Administration National Aeronauticsand Administration General Services Department ofDefense Part IV 34731 34732 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations DEPARTMENT OF DEFENSE [Federal Acquisition Circular 90±29] SUMMARY: This document serves to introduce the documents which follow GENERAL SERVICES Federal Acquisition Regulation; and which comprise Federal Introduction of Miscellaneous ADMINISTRATION Acquisition Circular (FAC) 90–29. The Amendments Federal Acquisition Regulatory Council NATIONAL AERONAUTICS AND AGENCIES: Department of Defense (DOD), is issuing FAC 90–29 to amend the SPACE ADMINISTRATION General Services Administration (GSA), Federal Acquisition Regulation (FAR) to and National Aeronautics and Space implement changes in the following 48 CFR Parts 1, 2, 3, 4, 5, 6, 7, 8, 9, 12, Administration (NASA). subject areas: 13, 14, 15, 16, 19, 20, 22, 23, 25, 27, 28, 32, 33, 36, 41, 42, 43, 44, 45, 46, 47, 49, ACTION: Summary presentation of 52, and 53 interim rules. Item Subject FAR case Rule type Team leader I ...... FAR guiding principles ...... 95±010 ..... Final ...... O'Neill II ...... Electronic contracting ...... 91±104 ..... Interim ...... Loeb III ..... Simplified acquisition procedures/FACNET ...... 94±770 ..... Interim ...... Maykowskyj DATES: Effective Date: July 3, 1995. However, the FAR and the Act limit the In addition to what the Act provided, Comment Closing Date: September 1, use of simplified acquisition procedures the SAT/FACNET Team has 1995. by procurement activities not having incorporated coverage that provides FOR FURTHER INFORMATION CONTACT: certified interim FACNET to flexibility and latitude that encourages The team leader whose name appears in procurements not exceeding $50,000. the contracting officer to use innovative relation to each FAR case. For general FACNET is a universal electronic approaches in awarding contracts, seek information, contact the FAR capability that will permit potential the ‘‘best value’’ for the Government Secretariat, Room 4037, GS Building, contractors to, as a minimum, obtain which includes past performance and Washington, DC, 20405 (202) 501–4755. information on proposed procurements, quality; permits use of other than fixed Please cite FAC 90–29 and FAR case submit responses, query the system, and price orders/contracts, when authorized numbers(s). receive awards on a Governmentwide by the agency; encourages the use of SUPPLEMENTARY INFORMATION: Federal basis. options; and increases the property Acquisition Circular 90–29 amends the The reader should note the key clause threshold to be commensurate Federal Acquisition Regulation (FAR) as features represented in FAR case 94–770 with the implementation and specified below: certification of FACNET. For the actual revisions and/or which will change the acquisition amendments to these FAR cases, refer to process significantly upon The most significant change in this the specific item number and subject set implementation and continue to do so rule is the implementation of FACNET forth in the documents following these as contracting offices/activities and which is addressed primarily in Subpart item summaries. agencies begin to certify and implement 4.5. FACNET will provide the capability the use of FACNET. These key features of existing computer hardware and Item I—FAR Guiding Principles (FAR are: the small purchase limitation of software to perform certain functions in Case 95–010) $25,000 becomes the simplified a standard manner in order to provide This final rule amends the FAR at acquisition threshold of $100,000 (see one face to industry for the entire 1.102 to incorporate the Statement of 13.101); use of the simplified Government. FACNET is the preferred acquisition procedures is tied to Guiding Principles for the FAR as means for conducting all purchases FACNET—simplified acquisition agreed to by the FAR Council. under the simplified acquisition procedures may be used up to $50,000 threshold ($100,000) and above the Item II—Electronic Contracting (FAR upon FAR implementation without Case 91–104) FACNET and up to $100,000 upon micro-purchase threshold ($2,500). Contracting offices/activities may not This interim rule amends the FAR to interim FACNET certification (see conduct acquisitions using simplified address the use of electronic commerce/ 13.103(b)); for non-FACNET electronic data interchange in acquisitions over $25,000, a synopsis for acquisition procedures between $50,000 Government contracting. This rule is 15 days is still required; solicitation and $100,000, until they have certified intended to remove any barriers that response time must provide a and implemented interim FACNET. existed in the FAR to use of electronic reasonable amount of time to afford However, it is also significant to contracting/electronic data interchange. potential offerors a reasonable highlight what requirements did not opportunity to respond; the regulation change with FASA, such as the Item III—Simplified Acquisition exempts simplified acquisition Procedures/FACNET (FAR Case 94–770) compliance with Part 8, required procedures from 15 statutes and from sources of supply; the policy on not This interim rule implements the certain provisions and clauses; splitting orders; requirement for posting simplified acquisition and Federal contracting officers need to add any $10,000 ($5,000 DOD); the need to Acquisition Computer Network necessary clauses to the back of the synopsize over $25,000; the requirement (FACNET) requirements of the Federal purchase order form; and all purchases for small business set-asides; and Acquisition Streamlining Act (the Act). between $2,500 and $100,000 are contracting reporting. The Act defines the simplified reserved for small business (see 19.502– acquisition threshold as $100,000. 2). Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34733 Dated: June 26, 1995. information, contact the FAR new sections 1.102 through 1.02–4 to C. Allen Olson, Secretariat, Room 4037, GS Building, read as follows: Director, Office of Federal Acquisition Policy. Washington, DC 20405 (202) 501–4755. Please cite FAC 90–29, FAR case 95–10. 1.102 Statement of guiding principles for Federal Acquisition Circular the federal acquisition system. Number 90–29 SUPPLEMENTARY INFORMATION: (a) The vision for the Federal Acquisition System is to deliver on a Federal Acquisition Circular (FAC) A. Background 90–29 is issued under the authority of timely basis the best value product or On Friday, January 20, 1995, the the Secretary of Defense, the service to the customer, while Office of Federal Procurement Policy maintaining the public’s trust and Administrator of General Services, and (OFPP), Office of Management and the Administrator for the National fulfilling public policy objectives. Budget, published in the Federal Participants in the acquisition process Aeronautics and Space Administration. Register at 60 FR 4205, a Notice of Core Unless otherwise specified, all should work together as a team and Guiding Principles for the Federal should be empowered to make decisions Federal Acquisition Regulation (FAR) Acquisition System. The OFPP, in and other directive material contained within their area of responsibility. accordance with a decision of the FAR (b) The Federal Acquisition System in FAC 90–29 is effective July 3, 1995. Rewrite Board of Directors, then will— Dated: June 23, 1995. requested that the Core Guiding (1) Satisfy the customer in terms of Roland A. Hassebrock, Principles be incorporated into the cost, quality, and timeliness of the Col., USAF Director, Defense Procurement regulation. This final rule completes the delivered product or service by, for (Acting). action requested by the Board of example— Dated: June 16, 1995. Directors. (i) Maximizing the use of commercial Ida M. Ustad, B. Regulatory Flexibility Act products and services; (ii) Using contractors who have a Associate Administrator for Acquisition The final rule does not constitute a Policy General Services Administration. track record of successful past significant FAR revision within the performance or who demonstrate a Dated: June 9, 1995. meaning of FAR 1.501 and Public Law current superior ability to perform; and Thomas S. Luedtke, 98–577, and publication for public (iii) Promoting competition; Deputy Associate Administrator for comments is not required. Therefore, (2) Minimize administrative operating Procurement NASA. the Regulatory Flexibility Act does not costs; [FR Doc. 95–16079 Filed 6–30–95; 8:45 am] apply. However, comments from small (3) Conduct business with integrity, BILLING CODE 6820±EP±M entities concerning the affected subpart fairness, and openness; and will be considered in accordance with 5 (4) Fulfill public policy objectives. U.S.C. 610. Such comments must be (c) The Acquisition Team consists of DEPARTMENT OF DEFENSE submitted separately and cite 5 U.S.C. all participants in Government 601, et seq. (FAC 90–29, FAR case 95– acquisition including not only GENERAL SERVICES 10), in correspondence. representatives of the technical, supply, ADMINISTRATION C. Paperwork Reduction Act and procurement communities but also the customers they serve, and the NATIONAL AERONAUTICS AND The Paperwork Reduction Act does contractors who provide the products SPACE ADMINISTRATION not apply because the changes to the and services. FAR do not impose recordkeeping or (d) The role of each member of the 48 CFR Part 1 information collection requirements, or Acquisition Team is to exercise personal collections of information from offerors, initiative and sound business judgment [FAC 90±29; FAR Case 95±10, Item I] contractors, or members of the public in providing the best value product or RIN 9000-AG55 which require the approval of the Office service to meet the customer’s needs. In of Management and Budget under 44 exercising initiative, Government Federal Acquisition Regulation; FAR U.S.C. 3501, et seq. members of the Acquisition Team may Guiding Principles List of Subjects in 48 CFR Part 1 assume if a specific strategy, practice, policy or procedure is in the best AGENCY: Department of Defense (DOD), Government procurement. interests of the Government and is not General Services Administration (GSA), Dated: June 26, 1995. addressed in the FAR nor prohibited by and National Aeronautics and Space C. Allen Olson, law (statute or case law), Executive Administration (NASA). Director, Office of Federal Acquisition Policy. order or other regulation, that the ACTION: Final rule. Therefore, 48 CFR Part 1 is amended strategy, practice, policy or procedure is SUMMARY: The Federal Acquisition as set forth below: a permissible exercise of authority. Regulatory Council agreed on a final 1. The authority citation for 48 CFR 1.102±1 Discussion Part 1 continues to read as follows: rule to amend the Federal Acquisition (a) Introduction. The statement of Regulation (FAR) to incorporate the Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42 U.S.C. 2473(c). Guiding Principles for the Federal Statement of Guiding Principles. This Acquisition System (System) represents regulatory action was not subject to PART 1ÐFEDERAL ACQUISITION a concise statement designed to be user- Office of Management and Budget REGULATIONS SYSTEM friendly for all participants in review under Executive Order 12866, Government acquisition. The following dated September 30, 1993. 1.102–1.105 [Redesignated as 1.103– discussion of the principles is provided EFFECTIVE DATE: July 3, 1995. 1.106] in order to illuminate the meaning of FOR FURTHER INFORMATION CONTACT: 2. Subpart 1.1 is amended by the terms and phrases used. The Mr. Jack O’Neill at 202–501–3856 in redesignating sections 1.102 through framework for the System includes the reference to this FAR case. For general 1.105 as 1.103 through 1.106 and adding Guiding Principles for the System and 34734 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations the supporting policies and procedures clearly exceed the costs of their § 1.102±4 Role of the acquisition team. in the FAR. development, implementation, (a) Government members of the Team (b) Vision. All participants in the administration, and enforcement. This must be empowered to make acquisition System are responsible for making applies to internal administrative decisions within their areas of acquisition decisions that deliver the processes, including reviews, and to best value product or service to the rules and procedures applied to the responsibility, including selection, customer. Best value must be viewed contractor community. negotiation, and administration of from a broad perspective and is (2) The System must provide contracts consistent with the Guiding achieved by balancing the many uniformity where it contributes to Principles. In particular, the contracting competing interests in the System. The efficiency or where fairness or officer must have the authority to the result is a system which works better predictability is essential. The System maximum extent practicable and and costs less. should also, however, encourage consistent with law, to determine the innovation, and local adaptation where application of rules, regulations, and 1.102±2 Performance standards. uniformity is not essential. policies, on a specific contract. (a) Satisfy the customer in terms of (c) Conduct business with integrity, (b) The authority to make decisions cost, quality, and timeliness of the fairness, and openness. (1) An essential and the accountability for the decision delivered product or service. (1) The consideration in every aspect of the principal customers for the product or System is maintaining the public’s trust. made will be delegated to the lowest service provided by the System are the Not only must the System have level within the System, consistent with users and line managers, acting on integrity, but the actions of each law. behalf of the American taxpayer. member of the Team must reflect (c) The Team must be prepared to (2) The System must be responsive integrity, fairness, and openness. The perform the functions and duties and adaptive to customer needs, foundation of integrity within the assigned. The Government is committed concerns, and feedback. Implementation System is a competent, experienced, to provide training, professional of acquisition policies and procedures, and well-trained, professional development, and other resources as well as consideration of timeliness, workforce. Accordingly each member of necessary for maintaining and quality and cost throughout the process, the Team is responsible and accountable improving the knowledge, skills, and must take into account the perspective for the wise use of public resources as abilities for all Government participants of the user of the product or service. well as acting in a manner which on the Team, both with regard to their (3) When selecting contractors to maintains the public’s trust. Fairness particular area of responsibility within provide products or perform services and openness require open the System, and their respective role as the Government will use contractors communication among team members, a team member. The contractor who have a track record of successful internal and external customers, and the community is encouraged to do past performance or who demonstrate a public. current superior ability to perform. (2) To achieve efficient operations, the likewise. (4) The Government must not hesitate System must shift its focus from ‘‘risk (d) The System will foster cooperative to communicate with the commercial avoidance’’ to one of ‘‘risk relationships between the Government sector as early as possible in the management.’’ The cost to the taxpayer and its contractors consistent with its acquisition cycle to help the of attempting to eliminate all risk is overriding responsibility to the Government determine the capabilities prohibitive. The Executive Branch will taxpayers. available in the commercial accept and manage the risk associated (e) The FAR outlines procurement marketplace. The Government will with empowering local procurement policies and procedures that are used by maximize its use of commercial officials to take independent action members of the Acquisition Team. If a products and services in meeting based on their professional judgment. Government requirements. (d) Fulfill public policy objectives. policy or procedure, or a particular (5) It is the policy of the System to The System must support the strategy or practice, is in the best promote competition in the acquisition attainment of public policy goals interest of the Government and is not process. adopted by the Congress and the specifically addressed in the FAR, nor (6) The System must perform in a President. In attaining these goals, and prohibited by law (statute or case law), timely, high quality, and cost-effective in its overalll operations, the process Executive order or other regulation, manner. shall ensure the efficient use of public Government members of the Team (7) All members of the Team are resources. should not assume it is prohibited. required to employ planning as an Rather, absence of direction should be integral part of the overall process of § 1.102±3 Acquisition team. interpreted as permitting the Team to acquiring products or services. The purpose of defining the Federal innovative and use sound business Although advance planning is required, Acquisition Team (Team) in the Guiding judgment that is otherwise consistent each member of the Team must be Principles is to ensure that participants with law and within the limits of their flexible in order to accommodate in the System are identified—beginning authority. changing or unforeseen mission needs. with the customer and ending with the [FR Doc. 95–16080 Filed 6–30–95; 8:45 am] Planning is a tool for the contractor of the product or service. By accomplishment of tasks, and identifying the team members in this BILLING CODE 6820±EP±M application of its discipline should be manner, teamwork, unity of purpose, commensurate with the size and nature and open communication among the of a given task. members of the Team in sharing the (b) Minimize administrative operating vision and achieving the goal of the costs. (1) In order to ensure that System are encouraged. Individual team maximum efficiency is obtained, rules, members will participate in the regulations, and policies should be acquisition process at the appropriate promulgated only when their benefits time. Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34735 DEPARTMENT OF DEFENSE respondents were received during the C. Paperwork Reduction Act public comment period. After The Paperwork Reduction Act does GENERAL SERVICES evaluating the public comments, not apply because the interim rule does ADMINISTRATION another proposed rule was published not impose any information collection because significant changes to the rule requirements which require the NATIONAL AERONAUTICS AND published on December 30, 1993, were approval of the Office of Management SPACE ADMINISTRATION deemed to be necessary. and Budget under 44 U.S.C. 3501, et A revised proposed rule was seq. 48 CFR Parts 1, 2, 4, 5, 7, 8, 9, 12, 14, published in the Federal Register at 60 15, 16, 19, 20, 25, 28, 32, 36, 45, 52, and FR 12384, March 6, 1995. Eighteen D. Determination to Issue an Interim 53 comments were received in response to Rule the proposed rule. A determination has been made by [FAC 90±29; FAR Case 91±104; Item II] This interim rule and the interim rule the Secretary of Defense (DOD), the published elsewhere in this issue under RIN 9000±AE46 Administrator of General Services FAR case 94–770, Simplified (GSA), and the Administrator of the Federal Acquisition Regulation; Acquisition Procedures/FACENET, are National Aeronautics and Space Electronic Contracting interdependent and are meant to be Administration (NASA) under the considered jointly. AGENCY: Department of Defense (DOD), authority provided by section 22 of the General Services Administration (GSA), B. Regulatory Flexibility Act Office of Federal Procurement Policy and National Aeronautics and Space This interim rule is expected to have Act (41 U.S.C. 418b) to issue this Administration (NASA). a significant economic impact on a regulation as an interim rule. ACTION: Interim rule with request for substantial number of small entities The Simplified Acquisition Threshold comment. within the meaning of the Regulatory Procedures/Federal Acquisition Flexibility Act, 5 U.S.C. 601, et seq., Computer Network (SAT/FACNET) rule SUMMARY: The Federal Acquisition because it encourages broader use of (FAR Case 94–770) and the Electronic Regulatory Council (FARC) is issuing an electronic contracting, thereby Contracting (EC) rule (FAR Case 91–104) interim rule to amend the Federal improving industry access to Federal benefit industry and Government by Acquisition Regulation (FAR) to address contracting opportunities. The enhancing efficiency of contracting in the use of electronic commerce/ implementation of Electronic an environment of declining personnel electronic data interchange in Contracting and use of the Federal staffing and resulting increase in Government contracting. This regulatory Acquisition Computer Network workload for contracting personnel. The action was subject to Office of (FACENET) will provide for electronic rules are linked and require Management and Budget review under exchange of acquisition information simultaneous promulgation. The Executive Order 12866, dated between the private sector and the proposed rules were published September 30, 1993. Federal Government that will increase simultaneously in the Federal Register DATES: Effective Date: July 3, 1995. the opportunities for vendors currently on March 6, 1995, with the public Comment Date: Comments should be doing business with the Government, comment period closing on May 5, submitted to the FAR Secretariat at the particularly small businesses. It is 1995. A public meeting was held on address shown below on or before recognized that an initial start-up cost these rules on April 3, 1995, and no September 1, 1995 to be considered in will be incurred for the purchase of a substantive comments were presented at the formulation of a final rule. personal computer, modem, software, the meeting. and telephone lines, estimated to be Section 22 of the Office of Federal ADDRESSES: Interested parties should Procurement Policy Act permits submit written comments to: General $1,500. Additionally, it is anticipated that most small businesses will issuance of procurement policies, Services Administration, FAR subscribe to third party value added regulations, procedures, or forms as Secretariat (VRS), 18th & F Streets, NW, network (VAN) services to facilitate interim rules prior to consideration of Room 4037, Attn: Ms. Beverly Fayson, their communications with the public comments when urgent and Washington, DC 20405. Please cite FAC Government’s computers. The cost of an compelling circumstances make it 90–29, FAR case 91–104 in all advance subscription ranges from impracticable to do otherwise. Urgent correspondence related to this case. approximately $30 to $100 per month, and compelling reasons exist to make FOR FURTHER INFORMATION CONTACT: depending on the type of services these rules effective prior to full Mr. Edward Loeb at (202) 501–4547 in obtained. The interim rule does not consideration of public comment. reference to this FAR case. For general duplicate, overlap, or conflict with any Proceeding with these interim rules is information, contact the FAR other Federal rules. An Initial required to permit the Federal Secretariat, Room 4037, GS Building, Regulatory Flexibility Analysis (IRFA) Government to cope with the Washington, DC 20405 (202) 501–4755. has been prepared and may be obtained fundamental downsizing of its Please cite FAC 90–29 (FAR Case 91– from the FAR Secretariat. A copy of the acquisition workforce and the large end- 104). IRFA will be submitted to the Chief of-fiscal-year workload, with SUPPLEMENTARY INFORMATION: Counsel for Advocacy of the Small diminished resources. The Federal Business Administration. Comments are Acquisition Streamlining Act of 1994 A. BACKGROUND invited from small businesses and other (FASA) and its provisions on SAT/ A proposed rule was published in the interested parties. Comments from small FACNET, provide relief from various Federal Register at 58 FR 69588, entities concerning the affected FAR burdens that affect the Government December 30, 1993. The rule proposed parts will also be considered in acquisition process. For example, amendments to the FAR to remove any accordance with 5 U.S.C. 610. Such purchases under the new simplified barriers to the use of electronic data comments must be submitted separately acquisition approach will become far interchange in Government contracting. and should cite 5 U.S.C. 601, et seq. less complex than today. Using figures Thirty-six comments from ten (FAR case 91–104) in correspondence. from the Department of Defense for 34736 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations illustrative purposes, large purchase year because of personnel downsizing 2.101 Definitions. solicitations run 29 pages on the average that has already occurred and that is * * * * * whereas non-automated small purchases expected before the end of the fiscal In writing or written means any are about 12 pages in length, and year. Additionally, the workload in the worded or numbered expression which automated small purchase solicitations, last quarter of the fiscal year is the most can be read, reproduced, and later used by some DoD purchasing activities, demanding of the fiscal year. communicated, and includes are even less, 1 to 2 pages. The Introduction of new procedures and electronically transmitted and stored beneficial results of implementing these processes in the middle of that quarter information. FASA provisions are evidenced further would be counterproductive to * * * * * by the time saved in awarding orders efficiency and would require operations Signature or signed means the under the existing small purchase to be suspended while retraining of the discrete, verifiable symbol of an procedures as opposed to contracts workforce is accomplished. Therefore, individual which, when affixed to a above the small purchase threshold of the regulations in FAC 90–29 must be writing with the knowledge and consent $25,000. The current average lead-time effective no later than July 3, 1995, to of the individual, indicates a present for awards below $25,000 is 26 days, provide the Federal acquisition intention to authenticate the writing. while above $25,000 the average lead- workforce the labor and cost saving This includes electronic systems. time is 90 days for sealed bids and 210 benefits provided by the statute, or they days for competitive negotiations. These must be delayed until the end of the * * * * * timeframes will be reduced further by fiscal year so as not to interfere with PART 4ÐADMINISTRATIVE MATTERS implementation of the simplified acquisition operations. Immediate acquisition authority in this rule by implementation as an interim rule will 4. Section 4.101 is revised to read as establishing reasonable timeframes for permit time for training of the follows: submission of offers for simplified acquisition workforce and FAR acquisitions in lieu of a rigid 30 days acquisition procedures to be fully 4.101 Contracting officer's signature. period. Through use of the simplified operational before the final quarter of Only contracting officers shall sign acquisition procedures for actions not FY 1995. contracts on behalf of the United States. exceeding $50,000, the lead-time for Pursuant to Public Law 98–577 and The contracting officer’s name and approximately 30,000 contracts per year FAR 1.501, public comments received official title shall be typed, stamped, or will be reduced to a fraction of the in response to these interim rules and printed on the contract. The contracting current lead-time. Use of electronic the prior proposed rules will be officer normally signs the contract after commerce/electronic data interchange considered in formulating the final it has been signed by the contractor. The capabilities at procurement activities rules. contracting officer shall ensure that the certified to use FACNET will reduce signer(s) have authority to bind the lead-times even further and will List of Subjects in 48 CFR Parts 1, 2, 4, contractor (see specific requirements in increase the number of contracts 5, 7, 8, 9, 12, 14, 15, 16, 19, 20, 25, 28, 4.102 of this subpart). 32, 36, 45, 52, and 53 affected to approximately 45,000, since 4.201 [Amended] FACNET users will be able to use the Government procurement. 5 & 6. Section 4.201 is amended in newly authorized simplified acquisition Dated: June 26, 1995. threshold of $100,000 rather than only paragraph (a) by removing the C. Allen Olson, $50,000 where FACNET has not been parenthetical ‘‘(see 4.101(b)),’’; in certified. Use of electronic commerce/ Director, Office of Federal Acquisition Policy. paragraph (b)(1) by removing the electronic data interchange at a DoD test Therefore, 48 CFR Parts 1, 2, 4, 5, 7, parenthetical ‘‘(stamped ‘‘DUPLICATE site reduced lead-time to 11 days. 8, 9, 12, 14, 15, 16, 19, 20, 25, 28, 32, ORIGINAL,’’ see 4.101(b))’’; and in Reducing the lead-time will allow the 36, 45, 52, and 53 are amended as set paragraph (d) by revising the contracting community to be more forth below: parenthetical ‘‘(see 30.401(b)) to read responsive in spite of the already 1. The authority citation for 48 CFR ‘‘(see 30.601(b))’’. reduced personnel resources, focus its Parts 1, 2, 4, 5, 7, 8, 9, 12, 14, 15, 16, PART 5ÐPUBLICIZING CONTRACT efforts on more complex procurements, 19, 20, 25, 28, 32, 45, 52, and 53 ACTIONS reduce the cost of the procurement continues to read as follows: process for both Government and Authority: 40 USC 486(c); 10 U.S.C. 7. Section 5.101 is amended by industry, and provide better service to chapter 137; and 42 U.S.C. 2473(c). adding paragraph (a)(2)(iv) to read as the direct users of the acquisition follows: system, and ultimately to the public. PART 1ÐFEDERAL ACQUISITION REGULATIONS SYSTEM 5.101 Methods of disseminating FASA called for its implementation in information. the FAR by October 1, 1995, or earlier. 1.105 [Amended] Due to the time required to fully * * * * * 2. Section 1.105 is amended in the consider, analyze, and document the (a) * * * FAR segment column by removing entry analysis of public comments received in (2) * * * ‘‘14.406’’ and inserting ‘‘14.407’’ in its response to these proposed rules, it is (iv) Electronic dissemination available place. unlikely that the rules could be to the public at the contracting office may be used to satisfy the public published in the FAR, promulgated to PART 2ÐDEFINITIONS OF WORDS display requirement. Contracting offices procurement personnel and contractors, AND TERMS have procurement personnel and utilizing electronic systems for public contractors trained, and have the new 3. Section 2.101 is amended by posting shall periodically publicize the rules in use by the beginning of the last adding, in alphabetical order, the methods for accessing such information. quarter of the fiscal year. It is essential definitions ‘‘In writing’’ or written’’ and * * * * * that these rules be made effective by the signature’’ or ‘‘Signature’’ or ‘‘signed’’ to 8. Section 5.102(a)(4)(i) is revised to beginning of the last quarter of the fiscal read as follows: read as follows: Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34737 5.102 availability of solicitations. 8.705±3 [Amended] 14.202±2 Telegraphic bids. (a) * * * 14. Section 8.705–3(a) is amended in (a) * * * (4) * * * the first sentence by removing the word (1) The date for the opening of bids (i) A copy of the solicitation ‘‘letter’’ and inserting ‘‘written’’ in its will not allow bidders sufficient time to specifications. In the case of place. submit bids in the prescribed format; or solicitations disseminated by electronic * * * * * data interchange, solicitations may be PART 9ÐCONTRACTOR 20. Section 14.202–8 is added to read furnished directly to the electronic QUALIFICATIONS as follows: address of the small business concern; 9.206±3 [Amended] 14.202±8 Electronic bids. * * * * * 15. Section 9.206–3(b) is amended in In accordance with subpart 4.5, (9) Section 5.207 is amended by the first sentence by removing contracting officers may authorize use of adding a new paragraph (c)(2)(xvii) to ‘‘requested copies of the solicitation’’ electronic commerce for submission of read as follows: and inserting ‘‘expressed interest in the bids. If electronic bids are authorized, acquisition’’ in its place. 5.207 Preparation and transmittal of the solicitation shall specify the synopses. PART 12ÐCONTRACT DELIVERY OR electronic commerce method(s) that * * * * * PERFORMANCE bidders may use. (c) * * * 21. Section 14.203–1 is revised to read (2) * * * 16. Section 12.103(e) is revised to as follows: read as follows: (xvii) If the solicitation will be made 14.203±1 Transmittal to prospective available to interested parties through 12.103 Supplies or services. bidders. electronic data interchange, provide any * * * * * Invitations for bids or presolicitation information necessary to obtain and (e) In invitations for bids, if the notices shall be transmitted as specified respond to the solicitation delivery schedule is based on the date in 14.205, and shall be provided to electronically. of the contract, and a bid offers delivery others in accordance with 5.102. When * * * * * based on the date the contractor receives a contracting office is located in the the contract or notice of award, the United States, any solicitation sent to a PART 7ÐACQUISITION PLANNING contracting officer shall evaluate the bid prospective bidder located at a foreign 7.30 [Amended] by adding 5 calendar days (as address shall be sent by electronic data representing the normal time for arrival 10. Section 7.304(b)(3) is amended in interchange or international air mail if through ordinary mail). If the contract or the first sentence by adding’’, or security classification permits. notice of award will be transmitted 22. Section 14.205–1(a) is revised to electronic equivalent,’’ after the word electronically, (1) the solicitation shall read as follows: ‘‘envelope’’. so state; and (2) the contracting officer 11. Section 7.306(a)(1)(i) is revised to shall evaluate delivery schedule based 14.205±1 Establishment of lists. read as follows: on the date of contract receipt or notice (a) Solicitation mailing lists shall be 7.306 Evaluation. of award, by adding one working day. established by contracting activities to (The term ‘‘working day’’ excludes assure access to adequate sources of * * * * * supplies and services. This rule need (a)(1) * * * weekends and U.S. Federal holidays.) If the offered delivery date computed with not be followed, however, when (1) the (i) Open the sealed cost comparison requirements of the contracting office on which the cost estimate for mailing or transmittal time is later than the delivery date required by the can be obtained through use of Government performance has been simplified acquisition procedures (see entered; invitation for bids, the bid shall be considered nonresponsive and rejected. part 13), (2) the requirements are * * * * * If award is made, the delivery date will nonrecurring, or (3) electronic 7.307 [Amended] be the number of days offered in the bid commerce methods are used which transmit solicitations or presolicitation 12. Section 7.307 is amended in the after the contractor actually receives the notice of award. notices automatically to all interested first sentence of paragraph (b) by sources participating in electronic removing ‘‘14.407–8’’ and inserting PART 14ÐSEALED BIDDING contracting with the purchasing activity. ‘‘14.408–8’’ in its place. Lists may be established as a central list 17. Section 14.201–6(e)(1) is revised for use by all contracting offices within PART 8ÐREQUIRED SOURCES OF to read as follows: SUPPLIES AND SERVICES the contracting activity, or as local lists 14.201±6 Solicitation provisions. maintained by each contracting office. 13. Section 8.405–2 is amended by * * * * * * * * * * revising the first sentence of the (e) * * * 23. Section 14.209(b) is amended by introductory text to read as follows: (1) 52.214–9, Failure to Submit Bid, adding a second sentence to read as 8.405±2 Order placement. except when using electronic data follows: interchange methods not requiring Ordering offices may use Optional solicitation mailing lists; and 14.209 Cancellation of invitations before Form 347, an agency-prescribed form, or opening. * * * * * an established electronic * * * * * communications format to order items 14.202±1 Bidding time. (b) * * * For bids received from schedules and shall place orders 18. Section 14.202–1(b)(6) is amended electronically, the data received shall directly with the contractor within the by removing the word ‘‘mailing’’ and not be viewed and shall be purged from limitations specified in each schedule. inserting ‘‘transmittal’’ in its place. primary and backup data storage *** 19. Section 14.202–2(a)(1) is revised systems. * * * * * to read as follows: * * * * * 34738 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 24. Section 14.301 is amended by and without their fault or negligence PART 15ÐCONTRACTING BY adding paragraph (e) to read as follows: (e.g., flood, fire, accident, weather NEGOTIATION conditions, strikes, or Government 14.301 Responsiveness of bids. equipment blackout or malfunction 31. Section 15.402 is amended by * * * * * when bids are due); or adding paragraph (k) to read as follows: (e) Bids submitted by electronic * * * * * 15.402 General. commerce shall be considered only if the electronic commerce method was 14.406 through 14.408±2 [Redesignated as * * * * * specifically stipulated or permitted by 14.407 through 14.409±2; new 14.406 added] (k) In accordance with subpart 4.5, the solicitation. contracting officers may authorize use of 25. Section 14.303 is amended by 29. Sections 14.406 through 14.406–4; electronic commerce for submission of revising the first sentence of paragraph 14.407 through 14.407–8; and 14.408, offers. If electronic offers are authorized, (a) and adding (c) to read as follows: 14.408–1, and 14.408–2 are redesignated the solicitation shall specify the as 14.407 through 14.407–4; 14.408 electronic commerce method(s) that 14.303 Mofification or withdrawal of bids. through 14.408–8; and 14.409, 14.409– offerors may use. (a) Bids may be modified or 1, and 14.409–2, respectively, and a new 32. Section 15.407(d)(3) is revised to withdrawn by any method authorized section 14.406 is added to read as read as follows: follows: by the solicitation, if notice is received 15.407 Solicitation provisions. in the office designated in the 14.406 Receipt of an unreadable electronic * * * * * solicitation not later than the exact time bid. set for opening of bids. * ** (d) * * * (3) Insert in RFP’s the provision at * * * * * If a bid received at the Government facility by electronic data interchange is 52.215–15, Failure to Submit Offer, (c) Upon withdrawal of an except when using electronic data electronically transmitted bid, the data unreadable to the degree that conformance to the essential interchange methods not requiring received shall not be viewed and shall solicitation mailing lists; and be purged from primary and backup requirements of the invitation for bids data storage systems. cannot be ascertained, the contracting * * * * * 33. Section 15.410(b) is revised to 26. Section 14.304–1 is amended by officer immediately shall notify the read as follows: removing the word ‘‘either’’ at the end bidder that the bid will be rejected of paragraph (a) introductory text, by unless the bidder provides clear and 15.410 Amendment of solicitations before removing the word ‘‘or’’ at the end of convincing evidence— closing date. paragraph (a)(2), by removing the period (a) Of the content of the bid as * * * * * at the end of paragraph (a)(3) and originally submitted; and (b) The contracting officer shall inserting ‘‘; or’’ in its place, and adding (b) That the unreadable condition of determine if the closing date needs to be paragraph (a)(4) to read as follows: the bid was caused by Government changed when amending a solicitation. 14.304±1 General. software or hardware error, malfunction, If the time available before closing is or other Government mishandling. insufficient, prospective offerors or * * * * * quoters shall be notified by electronic 30. Newly-redesignated section (a) * * * data interchange, telegram, or telephone 14.407–2 is amended by adding (4) It was transmitted through an of an extension of the closing date. paragraph (c) to read as follows: electronic commerce method authorized Telephonic and telegraphic notices shall by the solicitation and was received by be confirmed in the written amendment the Government not later than 5:00 p.m. 14.407±2 Apparent clerical mistakes. * * * * * to the solicitation. The contracting one working day prior to the date officer shall not award a contract unless specified for receipt of bids. (c) Correction of bids submitted by any amendments made to an RFP have * * * * * electronic data interchange shall be been issued in sufficient time to be 27. Section 14.401(a) is amended by effected by including in the electronic considered by prospective offerors. revising the second sentence to read as solicitation file the original bid, the * * * * * verification request, and the bid follows: 34. Section 15.412 is amended by verification. 14.401 Receipt and safeguarding of bids. revising the heading and adding (a) * * * Except as provided in 14.407±1, 14.407±3, 14.407±4, 14.408±6, and paragraph (h) to read as follows: 14.409±2 [Amended] paragraph (b) of this section, the bids 15.412 Late proposals, modifications, and shall not be opened or viewed, and shall 30a. In addition to the amendments withdrawals of proposals. remain in a locked bid box, a safe, or in set forth above, newly-redesignated * * * * * a secured, restricted-access electronic sections 14.407–1 through 14.409–2 are (h) Upon withdrawal of an bid box. * * * amended by updating the internal electronically transmitted proposal, the * * * * * references as follows: data received shall not be viewed and 28. Section 14.402–3(a)(1) is revised shall be purged from primary and to read as follows: Section Remove Insert backup data storage systems. 35. Section 15.607 is amended by 14.402±3 Postponement of openings. 14.407±1 ...... 14.406 14.407 adding paragraph (d) to read as follows: (a) * * * 14.407±3 intro. text 14.406±3 14.407±3 (1) The contracting officer has reason 14.406±2 14.407±2 15.607 Disclosure of mistakes before to believe that the bids of an important 14.407±3(e), (h) & award. segment of bidders have been delayed in (i) ...... 14.406±3 14.407±3 * * * * * 14.407±4(f) ...... 14.406±4 14.407±4 the mails, or in the communications (d) If a proposal received at the 14.408±6(c) ...... 14.407±6 14.408±6 system specified for transmission of 14.409±2 ...... 14.408±1 14.409±1 Government facility in electronic format bids, for causes beyond their control is unreadable to the degree that Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34739 conformance to the essential PART 28ÐBONDS AND INSURANCE through the ordinary mails, or (ii) one requirements of the solicitation cannot working day if the solicitation states that the be ascertained from the document, the 28.101±4 [Amended] contract or notice of award will be contracting officer immediately shall 42. Section 28.101–4 is amended in transmitted electronically. (The term notify the offeror and provide the paragraph (c)(5) by removing ‘‘14.406’’ ‘‘working day’’ excludes weekends and U.S. Federal holidays.) * * * opportunity for the offeror to submit and inserting ‘‘14.407’’ in its place. clear and convincing evidence— (End of clause) PART 32ÐCONTRACTING FINANCING (1) Of the content of the proposal as * * * * * originally submitted; and 43. Section 32.503–1(b) is revised to 47. Section 52.212–2 is amended by (2) That the unreadable condition of read as follows: revising the date in the heading of the clause and the fourth sentence in the proposal was caused by Government 32.503±1 Contractor requests. software or hardware error, malfunction, paragraph (b), and removing ‘‘(R 7– or other Government mishandling. * * * * * 104.92(c) 1974 APR)’’, ‘‘(R 1–1.316– (b) Comply with the instructions 5(c))’’ and ‘‘(R 1–1.316–4(c))’’ following 15.607, 15.608, and 15.1005 [Amended] appropriate to the applicable form, and ‘‘(End of clause)’’ to read as follows: 36. In addition to the amendments set the contract terms; and * * * * * 52.212±2 Desired and Required Time of forth above, sections 15.607, 15.608 and Delivery. 15.1005 are amended by updating the PART 36ÐCONSTRUCTION AND * * * * * internal references as follows: ARCHITECT-ENGINEER CONTRACTS Desired and Required Time of Delivery (Jul Section Remove Insert 36.304 [Amended] 1995) * * * * * 15.607(a) ...... 14.406 14.407 44. Section 36.304 is amended in the (b) * * * However, the Government will 15.608(c) ...... 14.407±3 14.408±3 introductory text by removing ‘‘14.407’’ evaluate an offer that proposes delivery based 15.1005 ...... 14.406±4 14.407±4 and inserting ‘‘14.408’’ in its place. on the Contractor’s date of receipt of the PART 45ÐGOVERNMENT PROPERTY contract or notice of award by adding (i) five PART 16ÐTYPES OF CONTRACTS calendar days for delivery of the award 45. Section 45.606–5 is amended by through the ordinary mails, or (ii) one 16.203±2 [Amended] revising paragraphs (b)(3) and (b)(4) to working day if the solicitation states that the 37. Section 16.203–2 is amended in read as follows: contract or notice of award will be the last sentence of the introductory text transmitted electronically. (The term 45.606±5 Instructions for preparing and ‘‘working day’’ excludes weekends and U.S. by removing ‘‘14.407–4’’ and inserting submitting schedules of contractor Federal holidays.) * * * ‘‘14.408–4’’ in its place. inventory. (End of clause) 38. Section 16.506(c) is revised to * * * * * * * * * * read as follows: (b) * * * 48. Section 52.214–5 is amended by 16.506 Ordering. (3) The standard inventory schedule forms may be electronically reproduced revising the date in the heading of the * * * * * by contractors pursuant to 53.105, provision and adding paragraph (d) to (c) Orders may be placed by electronic provided no change is made to the read as follows: commerce methods when permitted name, content or sequence of the data 52.214±5 Submission of Bids. under the contract. elements. All essential elements of data * * * * * * * * * * must be included and the form must be signed. Submission of Bids (Jul 1995) PART 19ÐSMALL BUSINESS AND (4) The appropriate continuation * * * * * SMALL DISADVANTAGED BUSINESS sheet shall be used when more space is (d) Bids submitted by electronic commerce CONCERNS needed. shall be considered only if the electronic commerce method was specifically stipulated 19.811±2 [Amended] * * * * * or permitted by the solicitation. 39. Section 19.811–2 is amended in PART 52ÐSOLICITATION PROVISIONS the introductory text of paragraph (a) by AND CONTRACT CLAUSES 49. Section 52.214–7 is amended by removing ‘‘14.407–1(d)’’ and inserting revising the date in the provision ‘‘14.408–1(d)’’ in its place. 46. Section 52.212–1 is amended by heading, at the end of paragraph (a)(2) revising the date in the heading of the by removing ‘‘or’’, at the end of PART 20ÐLABOR SURPLUS AREA clause and the fourth sentence in paragraph (a)(3) by removing the period CONCERNS paragraph (b), and removing ‘‘(R 7– and inserting ’’; or’’ in its place, and 104.92(b) 1974 APR)’’, ‘‘(R 1–1.316–5)’’ adding paragraph (a)(4) to read as 20.104 [Amended] and ‘‘(R 1–1316–4(c))’’ after ‘‘(End of follows: 40. Section 20.104 is amended in clause)’’ to read as follows: paragraph (f) by removing ‘‘14.407–6’’ 52.214±7 Late Submissions, Modifications, 52.212±1 Time of Delivery. and Withdrawals of Bids. and inserting ‘‘14.408–6’’ in its place. * * * * * * * * * * PART 25ÐFOREIGN ACQUISITION Time of Delivery (Jul 1995) Late Submissions, Modifications, and 25.405 [Amended] * * * * * Withdrawals of Bids (Jul 1995) (b) * * * However, the Government will (a) * * * 41. Section 25.405 is amended in evaluate an offer that proposes delivery based (4) Was transmitted through an electronic paragraph (e) by removing ‘‘14.408– on the Contractor’s date of receipt of the commerce method authorized by the 1(a)(2)’’ and inserting ‘‘14.409–1(a)(2)’’ contract or notice of award by adding (i) five solicitation and was received by the in its place. calendar days for delivery of the award Government not later than 5:00 p.m., one 34740 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations working day prior to the date specified for (2) Was transmitted through an electronic working day prior to the date specified for receipt of bids. commerce method authorized by the receipt of proposals; or * * * * * solicitation and was received by the * * * * * Government not later than 5:00 p.m. one 56. Section 52.215–15 is revised to (End of provision) working day prior to the date specified for 50. Section 52.214–9 is amended by receipt of bids. The term ‘‘working day’’ read as follows: revising the introductory text, the date excludes weekends and U.S. Federal 52.215±15 Failure to Submit Offer. holidays. in the heading of the provision, and the As prescribed in 15.407(d)(3), insert * * * * * second sentence of the provision, and the following provision: by removing ‘‘(R SF 33A, Para 6, 1978 53. Section 52.214–33 is amended by JAN)’’ after ‘‘(End of provision)’’ to read revising the date in the heading of the Failure to Submit Offer (Jul 1995) as follows: provision, at the end of paragraph (a)(1) Recipients of this solicitation not by removing the word ‘‘or’’, responding with an offer should not return 52.214±9 Failure to Submit Bid. redesignating paragraph (a)(2) as (a)(3), this solicitation, unless it specifies otherwise. As prescribed in 14.201–6(e)(1), insert and adding a new paragraph (a)(2) to Instead, they should advise the issuing office the following provision in invitations read as follows: by letter, postcard, or established electronic for bids: commerce methods, whether they want to 52.214±33 Late Submissions, receive future solicitations for similar Failure to Submit Bid (Jul 1995) Modifications, and Withdrawals of requirements. If a recipient does not submit *** Instead, they should advise the Technical Proposals Under Two-Step an offer and does not notify the issuing office issuing office by letter, postcard, or Sealed Bidding (Overseas). that future solicitations are desired, the established electronic commerce methods, * * * * * recipient’s name may be removed from the whether they want to receive future applicable mailing list. solicitations for similar requirements.* ** Late Submissions, Modifications, and (End of provision) Withdrawals of Technical Proposals Under (End of provision) Two-Step Sealed Bidding (Overseas) (Jul 57. Section 52.215–36 is amended by 51. Section 52.214–23 is amended by 1995) revising the date in the provision revising the date in the heading of the (a) * * * heading, at the end of paragraph (a)(1) provision, at the end of paragraph (a)(3) (2) Was transmitted through an electronic by removing the word ‘‘or’’, by removing ‘‘or’’; redesignating commerce method authorized by the redesignating paragraph (a)(2) as (a)(3), paragraph (a)(4) as (a)(5), and adding a solicitation and was received by the and adding a new paragraph (a)(2) to new paragraph (a)(4) to read as follows: Government not later than 5:00 p.m. one read as follows: working day prior to the date specified for 52.214±23 Late Submissions, receipt of technical proposals. The term 52.215±36 Late Submissions, Modifications, and Withdrawals of ‘‘working day’’ excludes weekends and U.S. Modifications, and Withdrawals of Technical Proposals Under Two-Step Federal holidays; or Proposals (Overseas). Sealed Bidding. * * * * * * * * * * * * * * * 54. Section 52.215–9 is amended by Late Submissions, Modifications, and Late Submissions, Modifications, and revising the date in the provision Withdrawals of Proposals (Overseas) (Jul Withdrawals of Technical Proposals Under heading, redesignating paragraph (d) as 1995) Two-Step Sealed Bidding (Jul 1995) (e), and adding a new paragraph (d) to (a) * * * (a) * * * read as follows: (2) Was transmitted through an electronic (4) Was transmitted through an electronic commerce method authorized by the 52.215±9 Submission of Offers. commerce method authorized by the solicitation and was received by the solicitation and was received by the * * * * * Government not later than 5:00 p.m. one Government not later than 5:00 p.m. one Submission of Offers (Jul 1995) working day prior to the date specified for working day prior to the date specified for receipt of proposals; or receipt of technical proposals; or (d) Offers submitted by electronic commerce shall be considered only if the * * * * * * * * * * electronic commerce method was specifically (End of provision) 52. Section 52.214–32 is amended by stipulated or permitted by the solicitation. revising the date in the heading of the 52.223±3 [Amended] * * * * * provision and paragraph (a) to read as 55. Section 52.215–10 is amended by 58. Section 52.223–3, Alternate I, is follows: revising the introductory text and the amended by removing ‘‘(NOV 1991)’’ and inserting ‘‘(JUL 1995)’’ in its place, 52.214±32 Late Submissions, date in the provision heading, at the end Modifications, and Withdrawals of Bids of (a)(3) by removing the word ‘‘or’’, and in the second sentence of paragraph (Overseas). redesignating paragraph (a)(4) as (a)(5), (i)(1) by removing the word ‘‘mail’’ and inserting ‘‘transmit’’ in its place. * * * * * and adding a new paragraph (a)(4) to read as follows: 59. Section 52.242–12 is amended by Late Submissions, Modifications, and revising the date in the clause heading Withdrawals of Bids (Overseas) (Jul 1995) 52.215±10 Late Submissions, and the second and third sentences of (a) Any bid received at the office Modifications, and Withdrawals of the clause to read as follows: designated in the solicitation after the exact Proposals. time specified for receipt will not be As prescribed in 15.407(c)(6), insert 52.242±12 Report of Shipment (REPSHIP). considered unless it is received before award the following provision: * * * * * is made and it— (1) Was sent by mail or, if authorized by Late Submissions, Modifications, and Report of Shipment (Repship) (Jul 1995) the solicitation, was sent by telegram or via Withdrawals of Proposals (Jul 1995) * * * The notice shall be transmitted by facsimile, and it is determined by the (a) * * * rapid means to be received by the consignee Government that the late receipt was due (4) Was transmitted through an electronic transportation officer at least 24 hours before solely to mishandling by the Government commerce method authorized by the the arrival of the shipment. The Government after receipt at the Government installation; solicitation and was received by the bill of lading, commercial bill of lading or or Government not later than 5:00 p.m. one letter or other document that contains all of Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34741 the following shall be addressed and sent generated by the public. Computer Please cite FAC 90–29, FAR case 94– promptly to the receiving transportation generated forms shall either comply 770 in all correspondence related to this officer. * * * with Federal Information Processing case. * * * * * Standard Number 161 or shall retain the FOR FURTHER INFORMATION CONTACT: (End of clause) name, content, or sequence of the data Diana Maykowskyj, Team Leader, 60. Section 52.242–13 is amended by elements, and shall carry the Standard Simplified Acquisition Procedures/ revising the date in the clause and the or Optional Form or agency number and FACNET Team, on (703) 274–6307 in first sentence of the clause to read as edition date (see 53.111). reference to this FAR case. For general information, contact the FAR follows: 53.214 [Amended] Secretariat, Room 4037, GS Building, 52.242±13 Bankruptcy. 63. Section 53.214 is amended in Washington, DC 20405 (202) 501–4755. * * * * * paragraph (a) by removing ‘‘14.407– Please cite FAC 90–29, FAR Case 94– 1(d)’’ and inserting ‘‘14.408–1(d)(1)’’ in 770, Simplified Acquisition Procedures. Bankruptcy (Jul 1995) its place. In the event the Contractor enters into SUPPLEMENTARY INFORMATION: [FR Doc. 95–16081 Filed 6–30–95; 8:45 am] proceedings relating to bankruptcy, whether A. Background voluntary or involuntary, the Contractor BILLING CODE 6820±EP±M agrees to furnish, by certified mail or The Federal Acquisition Streamlining electronic commerce method authorized by Act of 1994, Pub. L. 103–355 (FASA), the contract, written notification of the provides authorities that streamline the DEPARTMENT OF DEFENSE bankruptcy to the Contracting Officer acquisition process and minimize responsible for administering the burdensome Government-unique contract. * * * GENERAL SERVICES ADMINISTRATION requirements. Major changes in the 61. Section 52.247–48 is amended by acquisition process as a result of the revising the introductory text, the date NATIONAL AERONAUTICS AND Act’s implementation include the areas in the clause heading, redesignating the SPACE ADMINISTRATION of commercial item acquisition, introductory text of the clause and simplified acquisition procedures, the paragraphs (a), (b), and (c) as (a) 48 CFR Parts 2, 3, 4, 5, 6, 8, 9, 13, 15, Truth in Negotiations Act and Federal introductory text (a)(1), (a)(2), and (a)(3), 16, 19, 20, 22, 23, 25, 27, 28, 29, 32, 36, Acquisition Computer Network respectively, adding new paragraph (b), 41, 42, 43, 44, 45, 46, 47, 49, 52, and (FACNET). and removing ‘‘(R 7–104.76 1968 JUN)’’ 53 The terms ‘‘simplified acquisition’’ after ‘‘(End of clause)’’ to read as and ‘‘Federal Acquisition Computer follows: [FAC 90±29; FAR Case 94±770; Item III] Network (FACNET)’’ are defined by FASA. FASA defines the simplified 52.247±48 F.o.b. DestinationÐEvidence of Shipment. RIN 9000±AG18 acquisition threshold as $100,000. It limits use of simplified acquisition As prescribed in 47.305–4(c), insert the Federal Acquisition Regulation; procedures by procurement activities following clause: Simplified Acquisition Procedures/ not having certified Interim FACNET to F.O.B. Destination—Evidence of Shipment FACNET procurements not exceeding $50,000. (Jul 1995) Use of simplified acquisition procedures AGENCIES: * * * * * Department of Defense (DOD), is also limited to procurements not (b) Electronic transmission of the General Services Administration (GSA), exceeding $50,000 if any agency does information required by paragraph (a) of this and National Aeronautics and Space not have certified Full FACNET by clause is acceptable. Administration (NASA). January 1, 2000. (End of clause) ACTION: Interim rule with request for Review of the law and this comment. implementing rule requires that the PART 53ÐFORMS difference between the simplified SUMMARY: This interim rule is issued acquisition threshold and the use of 62. Section 53.105 is revised to read pursuant to the new simplified as follows: simplified acquisition procedures be acquisition and Federal Acquisition recognized. The simplified acquisition 53.105 Computer generation. Computer Network (FACNET) threshold is $100,000. The authority to requirements of the Federal Acquisition (a) Agencies may computer-generate use simplified acquisition procedures at Streamlining Act of 1994 (the Act). This the Standard and Optional Forms the $100,000 level depends on regulatory action was subject to Office prescribed in the FAR without implementation and proper certification of Management and Budget review exception approval (see 53.103), of FACNET. under Executive Order 12866 dated provided— This rule, the vast majority of which September 30, 1993. (1) The form is in an electronic format was published as a proposed rule in the that complies with Federal Information DATES: Effective Date: July 3, 1995. Federal Register at 60 FR 12366, March Processing Standard Number 161; or Comment Date: Comments should be 6, 1995, incorporates FAR Subpart 4.5 (2) There is no change to the name, submitted to the FAR Secretariat at the for FACNET information and guidance. content, or sequence of the data address shown below on or before FAR Subpart 4.5 provides definitions, elements, and the form carries the September 1, 1995, to be considered in certification information, and Standard or Optional Form number and the formulation of a final rule. exemptions in accordance with FASA. edition date. ADDRESSES: Interested parties should FAR case 91–104 (‘‘Electronic (b) The forms prescribed by this part submit written comments to: General Commerce’’) and this implementation of may be computer generated by the Services Administration, FAR FASA are interdependent and are meant public. Unless prohibited by agency Secretariat (VRS), 18th & F Streets NW., to be considered jointly. Reviewers are regulations, forms prescribed by agency Room 4037, Attn: Ms. Beverly Fayson, advised that FACNET is not a single FAR supplements may also be computer Washington, DC 20405. electronic system that will be used by 34742 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations all executive agencies. It is, however, a acquisitions under the simplified means for conducting all purchases universal electronic capability that will acquisition threshold and its under the simplified acquisition permit potential contractors to, at a perpetuation would be in conflict with threshold ($100,000) and above the minimum, obtain information on SBA’s Size Regulations, which govern micro-purchase threshold ($2,500). proposed procurements, submit this issue. Based upon this advice, the Contracting offices/activities may not responses, query the system, and receive rule requires all dealers submitting a bid conduct acquisitions using simplified awards on a government-wide basis. or quotation on a procurement reserved acquisition procedures between $50,000 Each agency will determine the for small business to furnish the product and $100,000, until they have certified system(s) that will be used by its of a small business manufacturer unless and implemented interim FACNET. procuring activities so that they can the Small Business Administration has However, it is also significant to certify Interim FACNET for those issued a waiver. highlight what requirements did not activities and Full FACNET for the The reader should note the key change with FASA, such as the agency. The Act and this rule also features represented in FAR case 94–770 compliance with Part 8, required provide for exempting individual which will change the acquisition sources of supply; the policy on not procurements and procuring activities process significantly upon splitting orders; requirement for posting from the use of FACNET. This becomes implementation and continue to do so $10,000 ($5,000 DOD); the need to significant when agencies certify Full as contracting offices/activities and synopsize over $25,000; the requirement FACNET which is based, in part, on the agencies begin to certify and implement for small business setasides; and percentage of non-exempt transactions the use of FACNET. These key features contracting reporting. which were made through FACNET are: the small purchase limitation of This interim rule and the interim rule during the previous fiscal year. $25,000 becomes the simplified published elsewhere in this issue under Implementation of FACNET includes acquisition threshold of $100,000 (see FAR case 91–104, Electronic a vendor registration requirement for 13.101); use of the simplified Contracting, are interdependent and are any business entity wishing to do acquisition procedures is tied to meant to be considered jointly. business with the Government FACNET—simplified acquisition B. Regulatory Flexibility Act electronically. Contractor information procedures may be used up to $50,000 will be submitted to the Central upon FAR implementation without This rule is expected to have a Contractor Registration in accordance FACNET and up to $100,000 upon significant economic impact on a with the Federal implementation interim FACNET certification (see substantial number of small entities conventions. 13.103)(b)); for non-FACNET within the meaning of the Regulatory There are technical requirements and acquisitions over $25,000, a synopsis for Flexibility Act, 5 U.S.C. 601, et seq. This other procedures with respect to 15 days is still required; solicitation interim rule is designated to reduce the FACNET that are not appropriate for response time must provide a burden on entities desiring to do coverage in the FAR but are needed by reasonable amount of time to afford business with the Government and will executive agencies to fully implement potential offerors a reasonable apply to all large and small business FACNET. This information will be opportunity to respond; the regulation entities, and all educational and disseminated via other appropriate exempts simplified acquisition nonprofit organizations who are means. procedures from 15 statutes and from interested in participating in Further, be advised that the micro- certain provisions and clauses; Government acquisitions. The interim purchase coverage that appeared in the contracting officers need to add any rule establishes the simplified Federal Register on December 15, 1994, necessary clauses to the back of the acquisition threshold and sets forth FAR case 94–771 will be merged with purchase order form; and all purchases policies and guidance for the the SAT/FACNET coverage in the final between $2,500 and $100,000 are implementation of FACNET pursuant to rule. This will incorporate all of the reserved for small business (see 19.502– the Act. The implementation of FASA changes under simplified 2). Electronic Contracting and use of the acquisition procedures. In addition to what the Act provided, Federal Acquisition Computer Network This rule also implements section the SAT/FACNET Team has (FACNET) will provide for electronic 4004 of FASA to reserve each contract incorporated coverage that provides exchange of acquisition information for the purchase of goods or services flexibility and latitude that encourages between the private sector and the that have an anticipated value greater the contracting officer to use innovative Federal Government that will increase than $2,500, but not greater than approaches in awarding contracts, seek the opportunities for vendors currently $100,000, for exclusive small business the ‘‘best value’’ for the Government doing business with the Government, participation unless the contracting which includes past performance and particularly small businesses. It is officer determines there is no reasonable quality; permits use of other than fixed recognized that an initial start-up cost expectation of obtaining offers from two price orders/contracts, when authorized will be incurred for the purchase of or more small businesses that are by the agency; encourages the use of personal computer, modem, software, competitive with market price, quality options; and increases the property and telephone lines, estimated to be and delivery. clause threshold to be commensurate $1,500. Additionally, it is anticipated In implementing section 4004, the with the implementation and that most small businesses will issue of the nonmanufacturer rule arose. certification of FACNET. subscribe to third party value added Existing regulations allow a small The most significant change in this network (VAN) services to facilitate business to furnish ‘‘any domestic end rule is the implementation of FACNET their communications with the product’’ under procurements set-aside which is addressed primarily in Subpart Government’s computers. The cost of for small business and utilizing small 4.5. FACNET will provide the capability advance subscription ranges from purchase procedures. Based upon of existing computer hardware and approximately $30 to $100 per month, discussion with SBA’s Office of Size software to perform certain functions in depending on the type of services Standards, it was determined that this a standard manner in order to provide obtained. The interim rule does not automatic waiver of the non- one face to industry for the entire duplicate, overlap, or conflict with any manufacturers rule would not apply to Government. FACNET is the preferred other Federal rules. Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34743 An initial Regulatory Flexibility Contracting (EC) rule (FAR Case 91–104) acquisition procedures for actions not Analysis (IRFA) in support of the benefit industry and Government by exceeding $50,000, the lead-time for interim rule has been prepared and will enhancing efficiency of contracting in approximately 30,000 contracts per year be provided to the Chief Council for an environment of declining personnel will be reduced to a fraction of the Advocacy for the Small Business staffing and resulting increase in current lead-time. Use of electronic Administration. A copy of the IRFA may workload for contracting personnel. The commerce/electronic data interchange be obtained from the FAR Secretariat. rules are linked and require capabilities at procurement activities Comments from small entities simultaneous promulgation. The certified to use FACNET will reduce concerning the affected FAR parts will proposed rules were published lead-times even further and will also be considered in accordance with 5 simultaneously in the Federal Register increase the number of contracts U.S.C. 610. Such comments must be on March 6, 1995, with the public affected to approximately 45,000, since submitted separately and cite 5 U.S.C. comment period closing on May 5, FACNET users will be able to use the 601, et seq., (FAR case 94–770), in 1995. A public meeting was held on newly authorized simplified acquisition correspondence. these rules on April 3, 1995, and no threshold of $100,000 rather than only C. Paperwork Reduction Act substantive comments were presented at $50,000 where FACNET has not been the meeting. This interim rule does impose an certified. Use of electronic commerce/ Section 22 of the Office of Federal additional reporting or recordkeeping electronic data interchange at a DOD Procurement Policy Act permits requirement on the public which test site reduced lead-time to 11 days. requires the approval of the Office of issuance of procurement policies, Reducing the lead-time will allow the Management and Budget under 44 regulations, procedures, or forms as contracting community to be more U.S.C. 3501, et seq. Contractors will be interim rules prior to consideration of responsive in spite of the already required to electronically register with public comments when urgent and reduced personnel resources, focus its the Central Contractor Registration compelling circumstances make it efforts on more complex procurements, operated by the Defense Information impracticable to do otherwise. Urgent reduce the cost of the procurement Megacenter. The information to be and compelling reasons exist to make process for both Government and provided is information currently these rules effective prior to full industry, and provide better service to reported under several existing forms consideration of public comment. the direct users of the acquisition including the SF–129, Solicitation Proceeding with these interim rules is system, and ultimately to the public. required to permit the Federal Mailing List Application, the SF–3881, FASA called for its implementation in ACH Vendor/Miscellaneous Payment Government to cope with the fundamental downsizing of its the FAR by October 1, 1995, or earlier. Enrollment Form, and the DD–1052, Due to the time required to fully Request for Assignment of a Commercial acquisition workforce and the large end of fiscal year workload with diminished consider, analyze, and document the and Government Entity (CAGE) Code. analysis of public comments received in Contractors will also be required to resources. The Federal Acquisition Streamlining Act of 1994 (FASA), and response to these proposed rules, it is provide information pertaining to their unlikely that the rules could be electronic data interchange (EDI) its provisions on SAT/FACNET, provide relief from various burdens that affect published in the FAR, promulgated to capabilities. Establishment of a central procurement personnel and contractors, registration system should eliminate the the Government acquisition process. For example, purchases under the new have procurement personnel and need to submit multiple registrations contractors trained, and have the new with each contracting office the simplified acquisition approach will become far less complex than today. rules in use by the beginning of the last contractor is doing business with. quarter of the fiscal year. It is essential A request for approval of the Using figures from the Department of that these rules be made effective by the information collection requirement Defense for illustrative purposes, large beginning of the last quarter of the fiscal concerning simplified acquisition purchase solicitations run 29 pages on year because of personnel downsizing procedures was submitted to OMB and the average whereas non-automated that has already occurred and that is approved through April 30, 1998, OMB small purchases are about 12 pages in expected before the end of the fiscal Control 9000–0137. Public comments length, and automated small purchase year. Additionally, the workload in the concerning this request were invited solicitations, used by some DOD last quarter of the fiscal year is the most through a Federal Register notice at 60 purchasing activities, are even less, 1 to demanding of the fiscal year. FR 11659, March 2, 1995. 2 pages. The beneficial results of implementing these FASA provisions Introduction of new procedures and D. Determination to Issue an Interim are evidenced further by the time saved processes in the middle of that quarter Rule in awarding orders under the existing would be counterproductive to A determination has been made under small purchase procedures as opposed efficiency and would require operations the authority of the Secretary of Defense to contracts above the small purchase to be suspended while retraining of the (DOD), the Administrator of General threshold of $25,000. The current workforce is accomplished. Therefore, Services (GSA), and the Administrator average lead-time for awards below the regulations in FAC 90–29 must be of the National Aeronautics and Space $25,000 is 26 days, while above $25,000 effective no later than July 3, 1995, to Administration (NASA) pursuant to the average lead-time is 90 days for provide the Federal acquisition section 22 of the Office of Federal sealed bids and 210 days for workforce the labor and cost saving Procurement Policy Act (41 U.S.C. 418b) competitive negotiations. These benefits provided by the statute, or they that compelling reasons exist to timeframes will be reduced further by must be delayed until the end of the promulgate this regulation as an interim implementation of the simplified fiscal year so as not to interfere with rule. acquisition authority in this rule by acquisition operations. Immediate The Simplified Acquisition Threshold establishing reasonable timeframes for implementation as an interim rule will Procedures/Federal Acquisition submission of offers for simplified permit time for training of the Computer Network (SAT/FACNET) rule acquisitions in lieu of a rigid 30-day acquisition workforce, and FAR (FAR Case 94–770) and the Electronic period. Through use of the simplified acquisition procedures to be fully 34744 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations operational before the final quarter of (a) The acquisition is to be made Subpart 4.5ÐElectronic Commerce in FY 1995. under the simplified acquisition Contracting Pursuant to Public Law 98–577 and procedures in part 13; Sec. FAR 1.501, public comments received * * * * * 4.505 Scope of subpart. 4.501 Definitions. in response to these interim rules and 4. Section 3.104–10 is amended by revising paragraph (c) to read as follows: 4.502 Policy. the prior proposed rules will be 4.503 Contractor registration. considered in formulating the final 3.104±10 Solicitation provision and 4.504 FACNET functions. rules. contract clauses. 4.505 FACNET certification. 4.505–1 Interim certification. List of Subjects in 48 CFR Parts 2, 3, 4, * * * * * 4.505–2 Full certification. 5, 6, 8, 9, 13, 15, 16, 19, 20, 22, 23, 25, (c) The contracting officer shall insert 4.505–3 Governmentwide certification. 27, 28, 29, 32, 33, 36, 41, 42, 43, 44, 45, the clause at 52.203–10, Price or Fee 4.505–4 Contract actions excluded. 46, 47, 49, 52, and 53 Adjustment for Illegal for Improper 4.506 Exemptions. Activity, in all solicitations where the 4.507 Contract actions using simplified Government procurement. resultant contract award is expected to acquisition procedures. exceed the simplified acquisition Dated: June 26, 1995. 4.500 Scope of subpart. Jeremy F. Olson, threshold (see part 13) and all contracts This subpart provides policy and Acting Deputy Project Manager for and modifications to contracts exceeding that threshold which do not procedures for the establishment and Implementation of the Federal Acquisition use of the Federal Acquisition Computer Streamlining Act of 1994. already contain the clause when the modification is expected to exceed that Network (FACNET) as required by Therefore, 48 CFR Chapter 1 is threshold. Section 30 of the Office of Federal amended as set forth below: * * * * * Procurement Policy (OFPP) Act (41 U.S.C. 426). 1. The authority citation for 48 CFR 5. Section 3.404 is amended by parts 2, 3, 4, 5, 6, 8, 9, 13, 15, 16, 19, revising paragraphs (b)(1) and (c) to read 4.501 Definitions. 20, 23, 25, 27, 28, 29, 32, 33, 36, 41, 42, as follows: ANSI X.12 means the designation 43, 44, 45, 46, 47, 49, 52, and 53 3.404 Solicitation provision and contract assigned by the American National continues to read as follows: clause. Standards Institute (ANSI) for the Authority: 40 U.S.C. 486(c); 10 U.S.C. * * * * * structure, format, and content of Chapter 137; and 42 U.S.C. 2473(c). (b) * * * electronic business transactions (1) The contract amount is expected to conducted through Electronic Data PART 2ÐDEFINITIONS OF WORDS be at or below the simplified acquisition Interchange (EDI). ANSI is the AND TERMS threshold in part 13; coordinator and clearinghouse for national standards in the United States. 2. Section 2.201 is revised to read as * * * * * (c) The contracting officer shall insert Electronic commerce (EC) means a follows: the clause at 52.203–5, Covenant paperless process including electronic 2.201 Contract clause. Against Contingent Fees, in solicitations mail, electronic bulletin boards, and contracts exceeding the simplified electronic funds transfer, electronic data The contracting officer shall insert the acquisition threshold in part 13. interchange, and similar techniques for clause at 52.202–1, Definitions, in 6. Section 3.502–3 is revised to read accomplishing business transactions. solicitations and contracts except when as follows: The use of terms commonly associated the contract is not expected to exceed with paper transactions (e.g., ‘‘copy’’, the simplified acquisition threshold in 3.502±3 Contract clause. ‘‘document’’, ‘‘page’’, ‘‘printed’’, ‘‘sealed part 13. If the contract is for personal The contracting officer shall insert the envelope’’ and ‘‘stamped’’) shall not be services, construction, architect- clause at 52.203–7, Anti-Kickback interpreted to restrict the use of engineer services, or dismantling, Procedures, in solicitations and electronic commerce. demolition, or removal of contracts exceeding the simplified Electronic data interchange (EDI) improvements, the contracting officer acquisition threshold in part 13. means a technique for electronically shall use the clause with its Alternate I. 7. Section 3.503–2 is revised to read transferring and string formatted Additional definitions may be included, as follows: information between computers provided they are consistent with the 3.503±2 Contract clause. utilizing established and published clause and the FAR. formats and codes, as authorized by the The contracting officer shall insert the applicable Federal Information clause at 52.203–6, Restrictions on PART 3ÐIMPROPER BUSINESS Processing Standards. PRACTICES AND PERSONAL Subcontractor Sales to the Government, Federal Acquisition Computer CONFLICTS OF INTEREST in solicitations and contracts exceeding Network (FACNET) means the the simplified acquisition threshold in 3.102±2 [Amended] Governmentwide Electronic Commerce/ part 13. Electronic Data Interchange (EC/EDI) 2a. Section 3.102–2 is amended by PART 4ÐADMINISTRATIVE MATTERS systems architecture for the acquisition revising the phrase ‘‘in solicitations and of supplies and services that provides contracts,’’ to read ‘‘in solicitations and 4.304 [Amended] for electronic data interchange of contracts exceeding the simplified 8. Section 4.304 is amended by acquisition information between the acquisition threshold,’’. adding the phrase ‘‘greater than the Government and the private sector, 3. Section 3.103–1 is amended by simplified acquisition threshold’’ at the employs nationally and internationally revising paragraph (a) to read as follows: end of the sentence. recognized data formats, and provides 9. Part 4 is amended by adding universal user access. 3.103±1 Solicitation provision. Subpart 4.5, consisting of sections 4.500 Full FACNET means an agency has * * * * * through 4.507, to read as follows: certified that it has implemented all of Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34745 the FACNET functions outlined in ensuring authentication and (3) the senior procurement executive 4.504, and more than 75 percent of confidentiality commensurate with the of the agency, or the Under Secretary of eligible contracts (not otherwise risk and magnitude of the harm from Defense for Acquisition and Technology exempted from FACNET) in amounts loss, misuse, or unauthorized access to for the military departments and exceeding the micro-purchase or modification of the information. defense agencies, has certified to the threshold, but not exceeding the Administrator of OFPP that the simplified acquisition threshold (see 4.503 Contractor registration. contracting office has implemented Part 13), were entered into by the (a) In order for a contractor to conduct interim FACNET. agency during the preceding fiscal year electronic commerce with the Federal (b) The senior procurement executive using FACNET. Government, the contractor must of the agency, or the Under Secretary of Governmentwide FACNET means that provide registration information to the Defense for Acquisition and Technology the Federal Government has certified its Central Contractor Registration. for the military departments and (b) The contractor will be required to FACNET capability, and more than 75 defense agencies, shall notify the private submit information in accordance with percent of eligible contracts (not sector via the Commerce Business Daily the Federal implementation conventions otherwise exempted from FACNET) in that a contracting office of the agency of the ASC ANSI X.12 transaction set for amounts exceeding the micro-purchase has certified interim FACNET. The contractor registration. threshold, but not exceeding the notice shall establish a date after which simplified acquisition threshold (see 4.504 FACNET functions. it will be required that all responses to part 13), entered into by the executive (a) FACNET will permit agencies to solicitations issued by the contracting agencies during the preceding fiscal office through FACNET, must be year were made through full FACNET. do the following electronically— (1) Provide widespread public notice submitted through FACNET, unless Interim FACNET means a contracting otherwise authorized. office has been certified as having of contracting opportunities, and issue implemented a capability to provide solicitations; 4.505±2 Full certification. (2) Receive responses to solicitations widespread public notice of, issue and associated requests for information; (a) An agency is considered to have solicitations, and receive responses to (3) Provide widespread public notice implemented full FACNET if— solicitations and associated requests for of contract awards and issuance of (1) The agency has implemented all of information through FACNET. Such orders (including price); the FACNET functions described in capability must allow the private sector (4) Receive questions regarding 4.504; to access notices of solicitations, access solicitations, if practicable; and review solicitations, and respond to (2) During the entire preceding fiscal (5) Issue contracts and orders, if year, more than 75 percent of the solicitations. practicable; Transaction Set means the data that is agency’s eligible contracts, not (6) Initiate payments to contractors, if exchanged to convey meaning between otherwise exempted (see 4.506), that practicable; and exceeded the micro-purchase threshold Trading Partners engaged in EC/EDI. (7) Archive data relating to each Value-Added Network (VAN) means but did not exceed the simplified procurement action. an entity that provides communications acquisition threshold, were entered into (b) FACNET will permit the private vai FACNET; and. services, electronic mailboxing and sector to do the following (3) The head of the agency, with the other communications services for EDI electronically— transmissions. (1) Access notices of solicitation; concurrence of the Administrator of Value-Added Service (VAS) means an (2) Access and review solicitations; OFPP, has certified to the Congress that entity that provides services beyond (3) Respond to solicitations; the agency has implemented full communications to its customers. These (4) Receive contracts and orders, if FACNET. For the Department of services may range from translation and practicable; Defense, the certification shall be made segregation of the data to complete turn- (5) Access information on contract by the Secretary of Defense for the key business system support for awards and issuance of orders; and Department as a whole. customers. (6) Receive payment by purchase (b) Eligible contracts do not include 4.502 Policy. card, electronic funds transfer, or other any class or classes of contracts that the Federal Acquisition Regulatory Council (a) The Federal Government shall use automated means, if practicable. determines, after October 13, 1997, are FACNET whenever practicable or cost 4.505 FACNET certification. not suitable for acquisition through effective. (b) FACNET is the preferred method 4.505±1 Interim certification. FACNET. of soliciting and receiving quotes and (a) A contracting office is considered 4.505±3 Governmentwide certification. providing notice of Government to have implemented interim FACNET The Federal Government is purchase requirements exceeding the if— considered to have implemented micro-purchase threshold and not (1) The contracting office— Governmentwide FACNET if— exceeding the simplified acquisition (i) Has implemented the FACNET threshold (see 13.103 (b)). functions described in 4.504(a)(1) and (a) During the preceding fiscal year, at (c) Contracting officers may use (2), and (b)(1), (2), and (3); and least 75 percent of eligible contracts FACNET for any contract action (ii) Issues notices of solicitations and entered into by executive agencies, that governed by the FAR, unless receives responses to solicitations in a exceeded the micro-purchase threshold specifically exempted (see 4.506 and system having those functions; but did not exceed the simplified 13.106-1(a)(2)). (2) The contracting office can use acquisition threshold, were made via (d) Before using FACNET, or any FACNET for contracts, not otherwise full FACNET; and other method of electronic data exempted (see 4.506), that exceed the (b) the Administrator of OFPP has interchange, The agency head shall micro-purchase threshold but do not certified implementation of ensure that the electronic data exceed the simplified acquisition Governmentwide FACNET to the interchange system is capable of threshold; and Congress. 34746 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 4.505±4 Contract actions excluded. 4.804±1 Closeout by the office Document Retention Period For purposes of calculating the administering the contract. percentage of FACNET use referred to in (a) * * * ***** 4.505–2 and 4.505–3, actions issued (1) Files for contracts using simplified (13) Solicited and unsolic- against established contracts, such as acquisition procedures should be ited unsuccessful offers delivery orders, task orders, and in- and quotations above considered closed when the contracting the simplified acquisition scope modifications, shall not be officer receives evidence of receipt of threshold in part 13: ...... * * * * * included. property and final payment, unless 4.506 Exemptions. otherwise specified by agency ***** regulations. The following are exempted from the (2) Files for firm-fixed-price contracts, use of FACNET as specified and shall PART 5ÐPUBLICIZING CONTRACT other than those using simplified not be considered when determining ACTIONS acquisition procedures, should be compliance with the requirements to closed within 6 months after the date on 14. Section 5.101 is amended by implement FACNET: revising paragraphs (a)(1), (a)(2) (a) Interim FACNET. (1) Classes of which the contracting officer receives introductory text, and (a)(2)(ii) to read procurements exempted by the head of evidence of physical completion. as follows: the contracting activity after a written * * * * * determination is made that FACNET 12. Section 4.804–2 is amended by 5.101 Methods of disseminating processing of those procurements is not revising paragraph (a) to read as follows: information. cost-effective or practicable; and 4.804±2 Closeout of the contracting office * * * * * specific purchases for which the files if another office administers the (a) * * * contracting officer determines that it is contract. (1) For proposed contract actions not practicable or cost-effective to expected to exceed $25,000, by process via FACNET. Such (a) Contract files for contracts using synopsizing in the Commerce Business determinations shall be centrally simplified acquisition procedures Daily (CBD) (see 5.201); and maintained at the contracting office. should be considered closed when the (2) For proposed contract actions (2) Contracts that do not require contracting officer receives evidence of expected to exceed $10,000 ($5,000 for notice under subpart 5.2. receipt of property and final payment, Defense activities), but not expected to (b) Full FACNET. Contracts awarded unless otherwise specified by agency exceed $25,000, by displaying in a by a contracting office (or a portion of regulation. public place at the contracting office a contracting office), if the office is * * * * * issuing the solicitation, an unclassified exempted from use of FACNET by the 13. Section 4.805 is amended in the notice of the solicitation or a copy of the head of the agency, or the Secretary of table in paragraph (b) by revising the solicitation satisfying the requirements Defense for the military departments entries in the ‘‘Document’’ column of of 5.207 (c) and (f). The notice shall and defense agencies. Any such paragraphs (b) (5), (10), (11), and the include a statement that all responsible exemption shall be based on a written introductory text of (b)(13) to read as sources may submit a quotation which, determination that FACNET processing follows: if timely received, shall be considered is not cost-effective or practicable for by the agency. Such information shall the contracting office, or portions 4.805 Storage, handling and disposal of contract files. be posted not later than the date the thereof. Determinations shall be solicitation is issued, and shall remain maintained in the office of the senior * * * * * posted for at least 10 days or until after procurement executive, or the Under (b) * * * quotations have been opened, Secretary of Defense for Acquisition and whichever is later. Document Retention Period Technology for the military departments * * * * * and defense agencies. (ii) The contracting officer need not 4.507 Contract actions using simplified ***** comply with the display requirements acquisition procedures. (5) Unsuccessful offers or of this section when the exemptions at Contracting officers shall refer to quotations that pertain 5.202(a)(1), (5) through (9), or (11) section 12.106 for evaluation and to contracts using sim- apply, or when oral or FACNET plified acquisition proce- solicitations are used. The exemption documentation requirements when dures...... * * * * * awarding contracts using simplified from display requirements does not acquisition procedures. ***** relieve the contracting officer from the 10. Section 4.800 is revised to read as (10) Records or docu- responsibility to consider all quotations follows: ments other than those timely received from responsible in paragraphs 4.805(b) sources. 4.800 Scope of subpart. (1)±(9) of this section * * * * * This subpart prescribes requirements pertaining to contracts 15. Section 5.202 is amended by for establishing, maintaining, an using simplified acquisi- removing ‘‘or’’ at the end of (a)(11) and disposing of contract files for all tion procedures...... * * * * * the period at the end of (a)(12) and contractual actions. The application of ***** inserting a semicolon in its place; and this subpart to contracts awarded using adding paragraphs (a)(13) and (a)(14) to the simplified acquisition procedures (11) Records or docu- ments other than those read as follows: covered by part 13 is optional. (See also in paragraphs 4.805(b) 5.202 Exceptions. documentation requirements in 12.106– (1)±(10) of this section 2.) pertaining to contracts * * * * * 11. Section 4.804–1 is amended by not using simplified ac- (a) * * * revising paragraphs (a)(1) and (a)(2) to quisition procedures...... * * * * * (13) The contract action is for an read as follows: amount expected to exceed $25,000 but Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34747 not expected to exceed the simplified 5.205 Special situations. awards to the local press or other media. acquisition threshold and is made by a * * * * * When local announcements are made contracting activity that has been (d) * * * for contract awards in excess of the certified as having implemented a (1) Except when exempted by 5.202, simplified acquisition threshold in part system with interim (until December 31, contracting officers shall synopsize each 13, they shall include— 1999) or full (after December 31, 1999) proposed contract action for which the * * * * * FACNET and the contract action will be total fee (including phases and options) 21. Section 5.503 is amended by made through FACNET; or is expected to exceed $25,000. revising paragraph (c)(1) to read as (14) The contract action is for an Reference shall be made to the follows: amount at or below $250,000 and is appropriate CBD Numbered Note. 5.503 Procedures. made through certified FACNET after * * * * * Governmentwide FACNET has been 18. Section 5.207 is amended by * * * * * certified. This exception does not apply redesignating paragraphs (c)(2)(xi) (c) Forms. (1) When contracting when the contract action is not made through (c)(2)(xv) as (c)(2)(xii) through directly with the media for advertising, through certified FACNET (see subpart (c)(2)(xvi), adding new paragraph contracting officers— 4.5). (c)(2)(xi), and revising newly (i) Shall use Standard Form 26, * * * * * redesignated (c)(2)(xiv) to read as Award/Contract, or Standard Form 16. Section 5.203 is amended by follows: 1447, Solicitation/Contract, when the redesignating paragraphs (b) through (f) dollar amount of the acquisition exceeds 5.207 Preparation and transmittal of the simplified acquisition threshold; or as (c) through (g), adding a new synopses. paragraph (b) and revising newly (ii) May use Optional Form 347, Order * * * * * designated (c), (d), and (e) to read as for Supplies or Services, or an approved (c) * * * follows: agency form, when the dollar amount of (2) * * * the acquisition does not exceed the 5.203 Publicizing and response time. (xi) For a contract action in an amount threshold for use of simplified * * * * * estimated to be greater than $25,000 but acquisition procedures (see part 13). (b) The contracting officer shall not greater than the simplified * * * * * establish a solicitation response time acquisition threshold, enter (A) a which will afford potential offerors a description of the procedures to be used PART 6ÐCOMPETITION reasonable opportunity to respond for in awarding the contract (e.g., request REQUIREMENTS each contract action, including actions for oral or written quotation or solicitation), and (B) the anticipated 22. Section 6.001 is amended by via FACNET, in an amount estimated to revising paragraph (a) to read as follows: be greater than $25,000, but not greater award date. than the simplified acquisition * * * * * 6.001 Applicability. threshold. The contracting officer (xiv) In the case of noncompetitive * * * * * should consider the circumstances of contract actions, insert a statement of (a) Contracts awarded using the the individual procurement, such as the the reason justifying other than full and simplified acquisition procedures of complexity, commerciality, availability, open competition, and identify the part 13; intended source(s) (see 5.207(e)(3)). and urgency, when establishing the * * * * * solicitation response time. * * * * * (c) Agencies shall allow at least a 30 19. Section 5.301 is amended by PART 8ÐREQUIRED SOURCES OF day response time for receipt of bids or removing ‘‘or’’ after (b)(5); removing the SUPPLIES AND SERVICES proposals from the date of issuance of period at the end of (b)(6) and inserting a solicitation if the contract action is ‘‘; or’’ in its place; and adding a new 23. Section 8.203–1 is amended by expected to exceed the simplified (b)(7) to read as follows: revising paragraph (a)(1) to read as follows: acquisition threshold. 5.301 General. (d) Agencies shall allow at least a 30 * * * * * 8.203±1 Contract clause and solicitation day response time from the date of provision. (b) * * * publication of a proper notice of intent (7) The contract action is for an (a) * * * to contract for architect-engineer amount greater than $25,000 but not (1) Contract actions not exceeding the services or before issuance of an order greater than the simplified acquisition simplified acquisition threshold in part under a basic ordering agreement or threshold, the contract action is made 13; similar arrangement if the contract by a contracting office that has been * * * * * action is expected to exceed the certified as having implemented a 24. Section 8.404 is amended by simplified acquisition threshold. system with interim (until December 31, revising the last sentence of paragraph (e) Agencies shall allow at least a 45 1999) or full (after December 31, 1999) (a) to read as follows: day response time for receipt of bids or FACNET, and the contract action has proposals from the date of publication been made through FACNET. 8.404 Using schedules. of the notice required in 5.201 for * * * * * (a) * * * When placing orders under contract actions categorized as research 20. Section 5.303 is amended by a Federal Supply Schedule, ordering and development if the contract action revising the introductory text of activities need not seek further is expected to exceed the simplified paragraph (b) to read as follows: competition, synopsize the requirement, acquisition threshold. make a separate determination of fair * * * * * 5.303 Announcement of contract awards. and reasonable pricing, or consider 17. Section 5.205 is amended by * * * * * small business set-asides in accordance revising paragraph (d)(1) to read as (b) Local announcement. Agencies with subpart 19.5. follows: may also release information on contract * * * * * 34748 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations PART 9ÐCONTRACTOR to be used when acquiring architect- 13.103 Policy. QUALIFICATIONS engineering services. (a) Simplified acquisition procedures 29. Section 13.101 is amended by shall be used to the maximum extent 25. Section 9.405–2 is amended by revising the definitions of ‘‘delivery practicable for all purchases of supplies revising the second sentence of order’’ and ‘‘purchase order’’; removing or services not exceeding the simplified paragraph (b) introductory text to read the definitions of ‘‘small purchase’’, and acquisition threshold unless as follows: ‘‘small purchase procedures’’; and requirements can be met by using 9.405±2 Restrictions on subcontracting. adding, in alphabetical order, required sources of supply under part 8 (e.g., Federal Prison Industries, * * * * * definitions for ‘‘imprest fund’’, Committee for Purchase from People (b) * * * Contractors shall not enter ‘‘simplified acquisition procedures’’, who are Blind or Severely Disabled, and into any subcontract in excess of and ‘‘simplified acquisition threshold’’. Federal Supply Schedule contracts) or $25,000 with a contractor that has been 13.101 Definitions. orders under Federal Information debarred, suspended, or proposed for * * * * * Processing multiple award schedule debarment unless there is a compelling contracts. reason to do so. *** Delivery order means an order for supplies or services placed against an (b) Simplified acquisition procedures * * * * * established contract or with may not be used for contract actions 26. Section 9.409 is revised to read as Government sources of supply. exceeding $50,000, and not exceeding follows: * * * * * the simplified acquisition threshold, unless the contracting office making the 9.409 Solicitation provision and contract Imprest fund means a cash fund of a purchase has been certified as having clause. fixed amount established by an advance interim FACNET in accordance with (a) The contracting officer shall insert of funds, without charge to an 4.505–1. The contracting office shall not the provision at 52.209–5, Certification appropriation, from an agency finance use simplified acquisition procedures Regarding Debarment, Suspension, or disbursing officer to a duly appointed for contract actions exceeding $50,000 Proposed Debarment, and Other cashier, for disbursement as needed after December 31, 1999, unless the Responsibility Matters, in solicitations from time to time in making payment in office’s cognizant agency has certified where the contract value is expected to cash for relatively small amounts. full FACNET capability in accordance exceed the simplified acquisition * * * * * with 4.505–2. threshold. Purchase order means an offer by the (c) Simplified acquisition procedures (b) The contracting officer shall insert Government to buy supplies or services, shall not be used in the acquisition of the clause at 52.209–6, Protecting the including construction and research and supplies and services initially estimated Government’s Interests when development, upon specified terms and to exceed the simplified acquisition Subcontracting with Contractors conditions, using simplified acquisition threshold even though resulting awards Debarred, Suspended, or Proposed for procedures. do not exceed that threshold. Debarment, in solicitations and Simplified acquisition procedures Requirements aggregating more than the contracts where the contract value means the methods prescribed in this simplified acquisition threshold shall exceeds $25,000. part for making purchases of supplies or not be broken down into several 27. Section 9.507–1 is amended by services using imprest funds, purchase purchases that are less than the revising paragraph (c) to read as follows: orders, blanket purchase agreements, threshold merely to permit use of 9.507±1 Solicitation provisions. Governmentwide commercial purchase simplified acquisition procedures. * * * * * cards, or any other appropriate (d) Simplified acquisition procedures (c) The contracting officer shall insert authorized method. may be used to acquire personal the provision at 52.209–8, Simplified acquisition threshold services if the agency has specific Organizational Conflicts of Interest means $100,000 (but see 13.103(b)). In statutory authority to acquire personal Certificate—Advisory and Assistance the case of any contract to be awarded services (see 37.104). (e) FACNET is the preferred means for Services, in solicitations for advisory and performed, or purchase to be made, acquiring supplies and services, and assistance services if the contract is outside the United States in support of including construction and research and expected to exceed the simplified a contingency operation, the term means development, in amounts exceeding the acquisition threshold. $200,000. micro-purchase threshold but not * * * * * 30. Section 13.102 is revised to read as follows: exceeding the simplified acquisition PART 13ÐSIMPLIFIED ACQUISITION threshold. (f) Contracting officers shall establish PROCEDURES 13.102 Purpose. The purpose of this part is to deadlines for the submission of 27a. The heading of part 13 is revised prescribe simplified acquisition responses to solicitations which afford to read as set forth above. procedures in order to— contractors a reasonable opportunity to respond. 28. Section 13.000 is revised to read (a) Reduce administrative costs; as follows: (g) Contracting officers are encouraged (b) Improve opportunities for small to use innovative approaches in 13.000 Scope of part. business and small disadvantaged awarding contracts using the simplified This part prescribes policies and business concerns to obtain a fair acquisition procedures under the procedures for the acquisition of proportion of Government contracts; authority of this part. For example, the supplies and services, including (c) Promote efficiency and economy procedures of other FAR parts may, as construction and research and in contracting; and, appropriate, be adapted for use in development, the aggregate amount of (d) Avoid unnecessary burdens for awarding contracts under this part. which does not exceed the simplified agencies and contractors. Other FAR parts that may be adapted acquisition threshold (see 13.103(b)). 31. Section 13.103 is revised to read include, but are not limited to— See 36.602–5 for simplified procedures as follows: (1) Part 14, Sealed Bidding; Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34749 (2) Part 15, Contracting by (b) The requirements of this section 13.106±1 Soliciting competition, Negotiation; apply only to purchases in the United evaluation of quotas, and award. (3) Part 11, Acquisition and States, its territories and possessions, (a) Soliciting competition. (1) Distribution of Commercial Products; Puerto Rico, and the Trust Territory of Contracting officers shall solicit a and the Pacific Islands (see 19.000). Foreign reasonable number of sources to (4) Part 36, Construction and concerns shall not be solicited for promote competition to the maximum Architect-Engineer Contracts, including acquisitions set aside for small business extent practicable, and to ensure that the use of Standard Form 1442, concerns. the purchase is advantageous to the Solicitation, Offer and Award (c)(1) Each written solicitation under Government, based, as appropriate, on (Construction, Alteration, or Repair), for a set-aside shall contain the appropriate either price alone or price and other construction contracts (see 36.701(b)). provisions or clauses prescribed by Part factors (e.g., past performance and 32. Section 13.104 is revised to read 19. If the solicitation is oral, however, quality) including the administrative as follows: information substantially identical to cost of the purchase. Requests for 13.104 Procedures. that which is in the provision or clause quotations or solicitations shall notify shall be given to potential quoters. suppliers of the basis upon which award (a) Contracting officers shall make is to be made. awards under this part in the simplified (2) If the contracting officer (2) FACNET is the preferred method manner that is most suitable, efficient, determines there is no reasonable of soliciting simplified acquisitions. and economical in the circumstances of expectation of obtaining quotations from However, if FACNET is not available, or each acquisition. Contracting officers two or more responsible small business if the contracting officer has made a may use the procedures in this part in concerns that will be competitive in determination that it is not practicable acquisitions from Government supply terms of market price, quality, and or cost-effective to process a specific sources (see part 8), if their use is delivery, the contracting officer need purchase via FACNET, or if the head of authorized by the basic contract or not proceed with the small business set- the contracting activity has made a concurred in by the source. aside and may purchase on an determination that it is not practicable (b) Related items (such as small unrestricted basis. If the SBA or cost-effective to process a class of hardware items or spare parts for procurement center representative purchases via FACNET (see 4.506), vehicles) may be included in one disagrees with a contracting officer’s quotations may be solicited through solicitation and the award made on an decision not to proceed with the small other appropriate means. Requests for ‘‘all-or-none’’ basis if suppliers are so business set-aside, the SBA quotations should be solicited orally to advised when quotations are requested. procurement center representative may (c) Agencies shall use bulk funding to appeal the decision in accordance with the maximum extent practicable for the maximum extent practicable to the procedures set forth in 19.505. contract actions not expected to exceed reduce processing time, handling, and (3) If the contracting officer proceeds $25,000, when FACNET is not available documentation. Bulk funding is with the set-aside and receives a or a determination has been made that particularly appropriate if numerous quotation from only one responsible it is not practicable or cost-effective to purchases using the same type of funds small business concern at a reasonable purchase via FACNET. Oral solicitations are to be made during a given period. price (see 13.106–2(a)), the contracting may not be practicable for most contract (d) Agencies shall inspect items or officer shall make an award to that actions exceeding $25,000 because of services acquired under simplified concern. However, if the contracting the synopsis requirement in 5.101. A acquisition procedures as prescribed in officer does not receive a reasonable synopsis may incorporate enough 46.404. quotation from a responsible small information for the contracting officer to (e) Agencies shall use United States- business concern, the contracting officer receive oral quotes. The contracting owned foreign currency, if appropriate, may cancel the set-aside and complete officer is not required to issue a separate in making payments when using the purchase on an unrestricted basis. written solicitation. Paper solicitations for contract actions not expected to simplified acquisition procedures (see (4) If the purchase is on an exceed $25,000 should only be issued subpart 25.3). unrestricted basis under 13.105(c)(2), when obtaining electronic or oral (f) For proposed purchases covered by the contracting officer shall document quotations is not considered economical this part, see 5.101 for public display in the file the reasons for the or practical. Solicitations for and synopsis requirements. unrestricted purchase. construction contracts over $2,000 shall (g) When a quotation, oral or written, (5) See part 19 for policy is to be rejected because a small only be issued electronically or by paper concerning— solicitation. business firm is determined to be (i) Contracting with the Small nonresponsible (see subpart 9.1), see (3) When not soliciting quotations Business Administration under the 8(a) electronically, maximum practicable subpart 19.6 with respect to certificates Program (subpart 19.8); of competency. competition ordinarily can be obtained 33. Section 13.105 is revised to read (ii) Emerging small business set-aside without soliciting quotations or offers as follows: (19.1006(c)); and from sources outside the local trade (iii) The Small Business area. Generally, solicitation of at least 13.105 Small business set-asides. Competitiveness Demonstration three sources may be considered to (a) Except as provided in paragraphs Program (subpart 19.10). promote competition to the maximum (b) and (c) of this section, each 34. Section 13.106 text is removed extent practicable if the contract action acquisition (non-FACNET and FACNET) and the heading is revised to read as does not exceed $25,000. If practicable, of supplies or services that has an follows: two sources not included in the anticipated dollar value exceeding previous solicitation should be $2,500 and not exceeding $100,000, is 13.106 Purchases exceeding the micro- requested to furnish quotations. The reserved exclusively for small business purchase threshold. following factors influence the number concerns and shall be set aside (see 35. Section 13.106–1 is added to read of quotations required in connection subpart 19.5). as follows: with any particular purchase: 34750 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations (i) The nature of the article or service (2) Standing price quotations may be available only from one source or of to be purchased and whether it is highly used in lieu of obtaining individual educational services from nonprofit competitive and readily available in quotations each time a purchase is institutions. several makes or brands, or is relatively contemplated. In such cases, the buyer (d) Simplified documentation noncompetitive. shall ensure that the price information practices should be used. The following (ii) Information obtained in making is current and that the Government illustrate the extent to which quotation recent purchases of the same or similar obtains the benefit of maximum information should be recorded. item. discounts before award is made. (1) Oral solicitations. The contracting (iii) The urgency of the proposed (3) Contracting officers shall evaluate office should establish and maintain purchase. quotations inclusive of transportation informal records of oral price quotations (iv) The dollar value of the proposed charges from the shipping point of the in order to reflect clearly the propriety purchase. supplier to the delivery destination. of placing the order at the price paid (v) Past experience concerning (4) Contracting officers shall comply with the supplier concerned. In most specific dealers’ prices. with the policy in 7.202 relating to cases this will consist merely of (4) Contracting officers may solicit economic purchase quantities, when showing the names of the suppliers from one source if the contracting practicable. contacted and the prices and other officer determines that the (c) Award. (1) Occassionally an item terms and conditions quoted by each. circumstances of the contract action can be obtained only from a supplier (2) Written solicitations (see 2.101). deem only one source reasonably who quotes a minimum order price or Written records of solicitations may be available (e.g., urgency). quantity that either unreasonably limited to notes or abstracts to show (5) Contracting officers shall not limit exceeds stated quantity requirements or prices, delivery, references to printed solicitations to suppliers of well known results in an unreasonable price for the price lists used, the supplier or and widely distributed makes or brands, quantities required. In these instances, suppliers contacted, and other pertinent or solicit quotations on a personal the contracting officer should inform the data. preference basis. If it is necessary to requiring activity of all facts regarding (e) Purchasing offices shall retain data maintain a list of sources, new supply the quotation and ask it to confirm or supporting purchases using simplified sources disclosed through trade journals alter its requirement. The file shall be acquisition procedures to the minimum or other media shall be continuously documented to support the final action extent and duration necessary for reviewed and, if appropriate, added to taken. management review purposes (see the list. (2) Notification to unsuccessful Subpart 4.8). (6) In accordance with 14.408–3, suppliers shall be given only if 37. Section 13.107 is revised to read contracting officers shall make every requested. When a supplier requests as follows: effort to obtain trade and prompt information on an award which was payment discounts. However, prompt based on factors other than price alone, 13.107 Solicitation forms. payment discounts shall not be the notification shall include a brief (a) Except when quotations are considered in the evaluation of explanation of the basis for the contract solicited via FACNET or orally, quotations. award decision. (See 15.1001(c)(3).) Standard Form 18, Request for (7)(i) Unless exempted from this 36. Section 13.106–2 is added to read Quotations (53.301–18), is available, but requirement by the head of the as follows: not required, for use by all agencies. contracting activity, or unless purchases (b) Optional Form 336, Continuation are made through FACNET, each 13.106±2 Data to support purchases. Sheet, may be used with Standard Form contracting office should maintain a (a) The determination that a proposed 18 when additional space is needed. source list (or lists, if more convenient) price is reasonable should be based on (c) If Standard Form 18 is not used for and should record on the list the status competitive quotations. If only one written solicitations, contracting officers of each source (when the status is made response is received, or the price may request quotations using an agency- known to the contracting office) in the variance between multiple responses designed form, an agency-approved following categories: reflects lack of adequate competition, a automated format, or electronically. (A) Small business. statement shall be included in the (d) Each agency-designed request for (B) Small disadvantaged business. contract file giving the basis of the quotations form shall conform with (C) Women-owned small business. determination of fair and reasonable Standard Form 18, to the maximum (ii) The status information should be price. The determination may be based extent practicable. used to ensure that small business on a comparison of the proposed price (e) When using an unsigned electronic concerns are given opportunities to with prices found reasonable on purchase order (see 13.506) for respond to solicitations issued using previous purchases, current price lists, transmission of a request for quotations, simplified acquisition procedures. catalogs, advertisements, similar items the provisions and clauses applicable to (b) Evaluation of quotes or offers. (1) in a related industry, value analysis, the the solicitation shall be incorporated by Contracting officers may evaluate contracting officer’s personal knowledge reference. quotations or offers based on price alone of the item being purchased or any other 38. Section 13.108 is revised to read or price and other factors (e.g., past reasonable basis. as follows: performance, or quality). Formal (b) When other than price related evaluation plans, conduct of factors are considered in selecting the 13.108 Legal effect of quotations. discussions, and scoring of quotes or supplier (see 13.106–1(b)(1)), the (a) A quotation is not an offer and, offers are not required. Evaluation of contracting officer shall document the consequently, cannot be accepted by the other factors does not require the file to support the final contract award Government to form a binding contract creation or existence of a formal data decision. (see 15.402(e)). Therefore, issuance by base, but may be based on such (c) If only one source is solicited, an the Government of an order for supplies information as the contracting officer’s additional notation shall be made to or services in response to a supplier’s knowledge, previous experience, or explain the absence of competition, quotation does not establish a contract. customer surveys. except for acquisition of utility services The order is an offer by the Government Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34751 to the supplier to buy certain supplies material utilized in the performance of inapplicable to contracts and or services upon specified terms and the contract is inapplicable). subcontracts at or below the simplified conditions. A contract is established (6) 10 U.S.C. 2306(b) and 41 U.S.C. acquisition threshold— when the supplier accepts the offer or 254(a) (Contract Clause Regarding (a) 28.102–3, Miller Act requirements; begins performance. Contingent Fees). (b) 52.203–1, Officials Not to Benefit; (b) When appropriate, the contracting (7) 10 U.S.C. 2313 and 41 U.S.C. (c) 52.203–4, Contingent Fee officer may ask the supplier to indicate 254(c) (Authority to Examine Books and Representation and Agreement; acceptance of an order by notification to Records of Contractors). (d) 52.203–5, Covenant Against the Government, preferably in writing. (8) 10 U.S.C. 2384(b) (Requirement to Contingent Fees; In other circumstances, the supplier Identify Suppliers and Sources of (e) 52.203–6, Restrictions on may indicate acceptance by furnishing Supply). Subcontractor Sales to the Government; the supplies or services ordered or by (9) 10 U.S.C. 2393(d) (Prohibition (f) 52.203–7, Anti-Kickback proceeding with the work to the point Against Doing Business with Certain Procedures; where substantial performance has Offerors or Contractors). (g) 52.215–1, Examination of Records (10) 10 U.S.C. 2402 and 41 U.S.C. occurred. by Comptroller General; 253g (Prohibition on Limiting (c) If the Government issues an order (h) 52.222–4, Contract Work Hours Subcontractor Direct Sales to the United resulting from a quotation, the and Safety Standards Act—Overtime States). Compensation; Government may (by written notice to (11) 10 U.S.C. 2408(a) (Prohibition on the supplier, at any time before (i) 52.223–5, Certification Regarding a Persons Convicted of Defense Related Drug-Free Workplace, except for acceptance occurs) withdraw, amend, or Felonies). cancel its offer. (See 13.504 for individuals; and (12) 10 U.S.C. 2410b (Contractor (j) 52.223–6, Drug-Free Workplace, procedures on termination or Inventory Accounting System except for individuals. cancellation of purchase orders.) Standards). 42. Section 13.112 is added to read as 38. Section 13.109 is revised to read (13) 10 U.S.C. 2534 (Miscellaneous follows: as follows: Procurement Limitations). 13.112 Use of options in acquisitions 13.109 Agency use of indefinite delivery (b) The Federal Acquisition using simplified acquisition procedures. contracts. Regulatory Council will include any law enacted after October 13, 1994, that sets Options may be included in Cost and processing time for forth policies, procedures, requirements, acquisitions using simplified acquisitions at or below the simplified or restrictions for the procurement of acquisition procedures provided that acquisition threshold may be reduced property or services, on the list set forth the requirements of subpart 17.2 are through the use of indefinite delivery in 13.110(a), unless the FAR Council met, and that the aggregate value of the contracts (see subpart 16.5) that permit makes a written determination that it is acquisition and all options does not delivery orders to be placed by several in the best interests of the Government exceed the dollar threshold for use of contracting or ordering offices in one or that the enactment should apply to simplified acquisition procedures under more executive agencies. Therefore, contracts or subcontracts not greater this part. contracting offices are encouraged to than the simplified acquisition 43. Subpart 13.2 is revised to read as seek opportunities to cooperate with threshold. follows: each other to achieve efficiency and (c) The provisions of 13.110(b) do not economy through the use of indefinite Subpart 13.2ÐBlanket Purchase apply to laws that— Agreements delivery contracts. (1) Provide for criminal or civil 40. Section 13.110 is added to read as penalties; or Sec. follows: (2) Specifically state that 13.201 General. notwithstanding the language of Section 13.202 [Reserved] 13.110 Federal Acquisition Streamlining 13.203 Establishment of Blanket Purchase Act of 1994 (FASA) list of inapplicable laws. 4101, Pub. L. 103–355, the enactment Agreements. will be applicable to contracts or (a) The following laws are 13.203–1 General. subcontracts in amounts not greater inapplicable to all contracts and 13.203–2 Clauses. than the simplified acquisition subcontracts (if otherwise applicable to 13.204 Purchases under Blanket Purchase threshold. Agreements. subcontracts) at or below the simplified (d) Any individual may petition the 13.205 Review procedures. acquisition threshold: Administrator of the Office of Federal 13.206 Completion of Blanket Purchase (1) 41 U.S.C. 57 (a) and (b) (Anti- Procurement Policy to include any Agreements. Kickback Act of 1986). (Only the applicable provision of law not 13.201 General. requirement for the incorporation of the included on the list set forth in contractor procedures for the prevention 13.110(a) unless the FAR Council has (a) A blanket purchase agreement and detection of violations, and the already determined in writing that the (BPA) is a simplified method of filling contractual requirement for contractor law is applicable. The Administrator of anticipated repetitive needs for supplies cooperation in investigations are OFPP will include the law on the list in or services by establishing ‘‘charge inapplicable.) 13.110(a) unless the FAR Council makes accounts’’ with qualified sources of (2) 40 U.S.C. 27 (Miller Act). a determination that it is applicable supply (see subpart 16.7 for additional (3) 40 U.S.C. 329 (Contract Work within sixty days of receiving the coverage of agreements). Hours and Safety Standards Act— (b) BPAs should be established for use petition. Overtime Compensation). 41. Section 13.111 is added to read as by the level responsible for providing (4) 41 U.S.C. 701(a)(1) (Section 5152 follows: supplies for its own operations or for of the Drug Free Workplace Act of other offices, installations, projects, or 1988), except for individuals. 13.111 Inapplicable provisions and functions. Such levels, for example, may (5) 42 U.S.C. 6962 (Solid Waste clauses. be organized supply points, separate Disposal Act) (Only the requirement for Pursuant to Pub. L. 103–355, the independent or detached field parties, providing the estimate of recovered following provisions and clauses are or one-person posts or activities. 34752 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations (c) The use of BPAs does not exempt (h) A BPA may be limited to should not be used if the accumulation the agency from the responsibility for furnishing individual items or of the individual invoices by the keeping obligations and expenditures commodity groups or classes, or it may Government materially increases the within available funds. be unlimited for all items or services administrative costs of this purchase that the source of supply is in a position method): 13.202 [Reserved] to furnish. (i) A summary invoice shall be 13.203 Establishment of Blanket Purchase (i) BPAs may be prepared and issued submitted at least monthly or upon Agreements. on any agency-authorized purchase expiration of this BPA, whichever order form. occurs first, for all deliveries made 13.203±1 General. (j) BPAs shall contain the following during a billing period, identifying the (a) The following are circumstances terms and conditions: delivery tickets covered therein, stating under which contracting officers may (1) Description of agreement. A their total dollar value, and supported establish BPAs: statement that the supplier shall furnish by receipt copies of the delivery tickets. (1) If there is a wide variety of items supplies or services, described in (ii) An itemized invoice shall be in a broad class of goods (e.g., hardware) general terms, if and when requested by submitted at least monthly or upon that are generally purchased but the the contracting officer (or the authorized expiration of this BPA, whichever exact items, quantities, and delivery representative of the contracting officer) occurs first, for all deliveries made requirements are not known in advance during a specified period and within a during a billing period and for which and may vary considerably. stipulated aggregate amount, if any. payments has not been received. These (2) If there is a need to provide (2) Extent of obligation. A statement invoices need not be supported by commercial sources of supply for one or that the Government is obligated only to copies of delivery tickets. more offices or projects in a given area the extent of authorized purchases (iii) When billing procedures provide that do not have or need authority to actually made under the BPA. for an individual invoice for each purchase otherwise. (3) Pricing. A statement that the prices delivery, these invoices shall be to the Government shall be as low or accumulated; provided, that— (3) In any other case in which the (A) A consolidated payment will be writing of numerous purchase orders lower than those charged the supplier’s most favored customer for comparable made for each specified period; and can be avoided through the use of this (B) The period of any discounts will procedure. quantities under similar terms and conditions, in addition to any discounts commence on the final date of the (b) A BPA should be established billing period or on the date of receipt without a purchase requisition. for prompt payment. (4) Purchase limitation. A statement of invoices for all deliveries accepted (c) A BPA shall not cite accounting during the billing period, whichever is and appropriation data (see that specifies the dollar limitation for each individual purchase under the later. 13.204(e)(4)). (iv) An invoice for subscriptions or (d) BPAs should be made with firms BPA (see 13.204(b)). (5) Notice of individuals authorized to other charges for newspapers, from which numerous individual purchase under the BPA. A statement magazines, or other periodicals shall purchases will likely be made in a given that a list of individuals authorized to show the starting and ending dates and period. For example, if past experience purchase under the BPA, identified shall state either that ordered has shown that certain firms are subscriptions have been placed in effect either by title of position or by name of dependable and consistently lower in or will be placed in effect upon receipt individual, organizational component, price than other firms dealing in the of payment. and the dollar limitation per purchase same commodities, and if numerous (k) BPAs in which the fast payment for each position title or individual shall purchases at or below the simplified procedure is used shall include the be furnished to the supplier by the acquisition threshold are usually made requirements stated under 13.303(b). contracting officer. from such suppliers, it would be (6) Delivery tickets. A requirement 13.203±2 Clauses. advantageous to establish BPAs with that all shipments under the agreement, those firms. (a) The contracting officer shall insert except subscriptions and other charges (e) To the extent practical, BPAs for in each BPA the clauses prescribed for newspapers, magazines, or other items of the same type should be placed elsewhere in this part that are required periodicals, shall be accompanied by concurrently with more than one for or applicable to the particular BPA. delivery tickets or sales slips which (b) Unless a clause prescription supplier. All competitive sources shall contain the following minimum specifies otherwise, (e.g., see should be given an equal opportunity to information: 22.305(a)(1), 22.605(a)(5), or 22.1006), if furnish supplies or services under (i) Name of supplier. the prescription includes a dollar BPAs. (ii) BPA number. threshold, the amount to be compared to (f) BPAs may also be established with (iii) Date of purchase. that threshold is that of any particular Federal Supply Schedule contractors (iv) Purchase number. order under the BPA. and Federal Information Processing (v) Itemized list of supplies or Multiple Award Schedule contractors services furnished. 13.204 Purchases under Blanket Purchase (see part 39), if not inconsistent with the (vi) Quantity, unit price, and Agreements. terms of the applicable schedule extension of each item, less applicable (a) The use of a BPA does not contract. discounts (unit prices and extensions authorize purchases that are not (g) If it is determined that BPAs need not be shown when incompatible otherwise authorized by law or would be advantageous, suppliers with the use of automated systems; regulation. For example, the BPA, being should be contacted to make the provided, that the invoice is itemized to a method of simplifying the making of necessary arrangements for securing show this information). individual purchases, shall not be used maximum discounts, documenting the (vii) Date of delivery or shipment. to avoid the simplified acquisition individual purchase transactions, (7) Invoices. One of the following threshold. periodic billing, and other necessary statements (except that the statement in (b) Unless otherwise specified in details. paragraph (j)(7)(iii) of this section agency regulations, individual Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34753 purchases under BPAs, except those shall review a sufficient random sample (a) Individual orders do not exceed BPAs established in accordance with of the BPA files at least annually to $25,000 except that executive agencies 13.203–1(f), shall not exceed (i) $50,000, ensure that authorized procedures are may permit higher dollar limitations for or (ii) $100,000 when the contracting being followed. specified activities or items on a case- office has certified interim FACNET (see (b) The contracting officer that by-case basis. 13.103(b)). entered into the BPA shall— (b) Deliveries of supplies are to occur (c) The existence of a BPA does not (1) Ensure that each BPA is reviewed at locations where there is both a justify purchasing from only one source at least annually and, if necessary, geographical separation and a lack of or avoiding small business set-asides. updated at that time; and adequate communications facilities The requirements of 13.105 and 13.106 (2) Maintain awareness of changes in between Government receiving and also apply to each order under a BPA. market conditions, sources of supply, disbursing activities that will make it (d) If there is an insufficient number and other pertinent factors that may impractical to make timely payment of BPAs to ensure maximum practicable warrant making new arrangements with based on evidence of Government competition for a particular purchase, different suppliers or modifying existing acceptance. Use of the fast payment the contracting officer shall— arrangements. procedure would not be indicated, for (1) Solicit quotations from other (c) If an office other than the example, for small purchases by an sources and make the purchase as purchasing office that established a BPA activity if material being purchased is appropriate; and is authorized to make purchases under destined for use at that activity and (2) Establish additional BPAs to that BPA, the agency that has contract administration will be facilitate future purchases if— jurisdiction over the office authorized to performed by the contracting office at (i) Recurring requirements for the make the purchases shall ensure that the that activity. same or similar items or services seem procedures in paragraph (a) of this (c) Title to the supplies will vest in likely, section are being followed. the Government— (ii) Qualified sources are willing to (1) Upon delivery to a post office or accept BPAs, and 13.206 Completion of Blanket Purchase common carrier for mailing or shipment (iii) It is otherwise practical to do so. Agreements. to destination; or (e) Documentation of purchases under An individual BPA is considered (2) Upon receipt by the Government if BPAs shall be limited to essential complete when the purchases under it the shipment is by means other than information and forms as follows: equal its total dollar limitation, if any, Postal Service or common carrier. (1) Purchases under BPAs generally or when its stated time period expires. (d) The supplier agrees to replace, should be made electronically, or orally 44. Subpart 13.3 is revised to read as repair, or correct supplies not received when it is not considered economical or follows: at destination, damaged in transit, or not practical to use electronic methods. Subpart 13.3ÐFast Payment Procedure conforming to purchase requirements. (2) A paper purchase document may (e) The purchasing instrument is a Sec. be issued if written communications are firm-fixed price contract, a purchase necessary to ensure that the vendor and 13.301 General. 13.302 Conditions for use. order, or a delivery order for supplies. the purchaser agree concerning the 13.303 Preparation and execution of orders. (f) A system is in place to ensure— transaction. 13.304 Responsibility for collection of (1) Documenting evidence of (3) If a paper document is not issued, debts. contractor performance under fast the essential elements (e.g., date, 13.305 Contract clause. payment acquisitions; vendor, items or services, price, delivery (2) Timely feedback to the contracting date) shall be recorded on the purchase 13.301 General. officer in case of contractor deficiencies; requisition, in an informal The fast payment procedure allows and memorandum, or on a form developed payment under limited conditions to a (3) Identification of suppliers who locally for the purpose. contractor prior to the Government’s have a current history of abusing the fast (4) Documentation of purchases under verification that supplies have been payment procedure (also see subpart BPAs shall also cite the pertinent received and accepted. The procedure 9.1). purchase requisitions and the provides for payment for supplies based accounting and appropriation data. on the contractor’s submission of an 13.303 Preparation and execution of (5) When delivery is made or the invoice that constitutes a representation orders. services are performed, the vendor’s that— (a) Except when orders are placed via sales document, delivery document, or (a) The supplies have been delivered FACNET, orders incorporating the fast invoice may (if it reflects the essential to a post office, common carrier, or payment procedure should be issued on elements) be used for the purpose of point of first receipt by the Government; Optional Form 347, Order for Supplies recording receipt and acceptance of the and or Services, or other agency authorized items or services. However, if the (b) The contractor agrees to replace, purchase order form (see 13.204(e) for purchase is assigned to another activity repair, or correct supplies not received purchases under BPAs). Orders may be for administration, receipt and at destination, damaged in transit, or not either priced or unpriced. acceptance of supplies or services shall conforming to purchase agreements. (b) Contracts, purchase orders, or be documented by signature and date on BPAs using the fast payment procedure the agency specified form by the 13.302 Conditions for use. shall include the following: authorized Government representative If the conditions in paragraphs (a) (1) A requirement that the supplies be after verification and notation of any through (f) of this section are present, shipped transportation or postage exceptions. the fast payment procedure may be prepaid. used, provided that use of the procedure (2) A requirement that invoices be 13.205 Review procedures. is consistent with the other conditions submitted directly to the finance or (a) The contracting officer placing of the purchase. The conditions for use other office designated in the order, or orders under a BPA, or the designated of the fast payment procedure are as in the case of unpriced purchase orders, representative of the contracting officer, follows: to the contracting officer (see 13.502(c)). 34754 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations (3) The following statement on 13.402 Agency responsibilities. (1) Furnish to the imprest fund consignee’s copy: Each agency using imprest funds cashier a copy of the purchase Consignee’s Notification to Purchasing shall— requisition annotated to reflect— Activity of Nonreceipt, Damage, or (a) Periodically review and determine (i) That an imprest fund purchase has Nonconformance whether there is continuing need for been made; each fund established, and that amounts (ii) The unit prices and extensions; The consignee shall notify the purchasing (iii) The supplier’s name and address; office promptly after the specified date of of those funds are not in excess of actual needs; and delivery of supplies not received, damaged in (iv) The date of anticipated delivery; transit, or not conforming to specifications of (b) Take prompt action to have the purchase order. Unless extenuating imprest funds adjusted to a level and (2) Require the supplier to include circumstances exist, the notification should commensurate with demonstrated needs with delivery of the supplies an invoice, be made not later than 60 days after the whenever circumstances warrant such packing slip, or other sales instrument specified date of delivery. action; and (c) Develop and issue appropriate giving— (4) A requirement that the contractor (i) The supplier’s name and address; mark outer shipping containers ‘‘FAST implementing regulations. These (ii) List and quantity of items; PAY.’’ regulations shall include (but are not (iii) Unit prices and extensions; and limited to) procedures covering— (iv) Cash discount, if any. 13.304 Responsibility for collection of (1) Designation of personnel 46. Subpart 13.5 is revised to read as debts. authorized to make purchases using follows: imprest funds; and The contracting officer shall be (2) Documentation of purchases using Subpart 13.5ÐPurchase Orders primarily responsible for collecting imprest funds, including documentation Sec. debts resulting from failure of of— 13.501 General. contractors to properly replace, repair, (i) Receipt and acceptance of supplies 13.502 Unpriced purchase orders. or correct supplies lost, damaged, or not 13.503 Obtaining contractor acceptance and and services by the Government; modifying purchase orders. conforming to purchase requirements (ii) Receipt of cash payments by the (see 32.605(b) and 32.606). 13.504 Termination or cancellation of suppliers; and purchase orders. 13.305 Contract clause. (iii) Cash advances and 13.505 Purchase order and related forms. reimbursements. 13.505–1 Optional Form (OF) 347, Order for The contracting officer shall insert the Supplies or Services, and Optional Form clause at 52.213–1, Fast Payment 13.403 Conditions for use. 348, Order for Supplies or Services Procedure, in solicitations and contracts Imprest funds may be used for Schedule-Continuation. when the conditions in 13.302 are purchases when— 13.505–2 [Reserved] applicable and it is intended that the (a) The transaction does not exceed 13.505–3 Standard Form 44, Purchase fast payment procedure be used in the $500 or such other limits as have been Order-Invoice-Voucher. 13.506 Unsigned electronic purchase contract (in the case of BPAs, the approved by the agency head; orders. contracting officer may elect to insert (b) The use of imprest funds is 13.507 Provisions and clauses. the clause either in the BPA or in orders considered to be advantageous to the under the BPA). Government; and 13.501 General. 45. Subpart 13.4 is revised to read as (c) The use of imprest funds for the (a) Except as provided under the follows: transaction otherwise complies with any unpriced purchase order method (see additional conditions established by 13.502), purchase orders shall be issued Subpart 13.4ÐImprest Fund agencies and with the policies and on a fixed-price basis unless otherwise Sec. regulations referenced in 13.401. authorized by agency procedures. 13.401 General. (b) Purchase orders shall include any 13.402 Agency responsibilities. 13.404 Procedures. trade and prompt payment discounts 13.403 Conditions for use. (a) Each purchase using imprest funds that are offered, consistent with the 13.404 Procedures. shall be based upon an authorized applicable principles in 14.408–3. 13.401 General. purchase requisition. (c) Purchase orders shall specify the (b) Normally, orders to suppliers quantity of supplies or services ordered. This subpart prescribes policies and should be placed orally and without (d) Inspections under simplified procedures for using imprest funds to soliciting competition if prices are acquisition procedures shall be as purchase supplies or services. Related considered reasonable. prescribed in part 46. Orders generally policies and regulations concerning the (c) Purchases shall be distributed shall provide that inspection and establishment of and accounting for equitably among qualified suppliers. acceptance will be at destination, and imprest funds, including the (d) Prompt payment discounts shall source inspection should be specified responsibilities of designated cashiers be solicited. only if required by part 46. If inspection and alternates, are contained in Part IV (e) Any agency-authorized purchase and acceptance are to be performed at of the Treasury Financial Manual for order form or Standard Form 1165, destination, advance copies of the Guidance of Departments and Agencies, Receipt for Cash-Subvoucher, may be purchase order shall be furnished to Title 7 of the General Accounting Office used if a written order is considered consignee(s) for material receipt Policy and Procedures Manual for necessary (e.g., if required by the purposes. Receiving reports shall be Guidance of Federal Agencies, and the supplier for discount, tax exemption, or accomplished immediately upon receipt agency implementing regulations. other reasons). If a purchase order is and acceptance of material. Agencies shall also be guided by the used for this purpose, it shall be (e) F.o.b. destination shall be Manual of Procedures and Instructions endorsed ‘‘Payment to be made from specified for supplies to be delivered for Cashiers, issued by the Financial Imprest Fund’’. within the United States, except Alaska Management Service, Department of the (f) The individual authorized to make and Hawaii, unless there are valid Treasury. purchases using imprest funds shall— reasons to the contrary. Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34755 (f) Each purchase order shall contain (b) A purchase order may be modified and may print on those forms the a determinable date by which delivery by use of— clauses they consider to be generally of supplies or performance of services is (1) Standard Form 30, Amendment of suitable for their purchases using required. Solicitation/Modification of Contract; simplified acquisition procedures. The (g) The contracting officer’s signature (2) An agency-designed form or an clauses may include agency clauses, if on purchase orders shall be in agency-approved automated format; or they do not conflict with clauses accordance with 4.101. Facsimile (3) A purchase order form, if not prescribed by the FAR and are signature may be used in the procedure prohibited by agency regulations. designated as agency clauses. of purchase orders by automated (c) Each purchase order modification methods. shall identify the order it modifies and 13.505±2 [Reserved] (h) Distribution of copies of purchase shall contain an appropriate 13.505±3 Standard Form 44, purchase orders and related forms shall be limited modification number. order-invoice-voucher. (d) Contracting officers need not to those copies required for essential (a) Standard Form 44, Purchase obtain a contractor’s written acceptance administration and transmission of Order-Invoice-Voucher (illustrated in of a purchase order modification, unless contractual information. 53.301–44) is a pocket-size purchase the written acceptance is— 13.502 Unpriced purchase orders. (1) Determined by the contracting order form designed primarily for on- (a) An unpriced purchase order is an officer to be necessary to ensure the the-spot, over-the-counter purchases of order for supplies or services, the price contractor’s compliance with the supplies and nonpersonal services of which is not established at the time purchase order as revised; or while away from the purchasing office of issuance of the order. (2) Required by agency regulations. or at isolated activities. It is a (b) An unpriced purchase order may multipurpose form that can be used as be used only when— 13.504 Termination or cancellation of a purchase order, receiving report, purchase orders. (1) It is anticipated that the invoice, and public voucher. transaction will not exceed— (a) If a purchase order that has been (b) Standard Form 44 may be used if (i) $50,000; or accepted in writing by the contractor is all of the following conditions are (ii) $100,000 when the contracting to be terminated, the contracting officer satisfied: office of an agency has certified interim shall process the termination action as (1) The amount of the purchase is at or full FACNET (see 13.103(b)). prescribed by part 49. or below the micro-purchase threshold, (2) It is impractical to obtain pricing (b) If a purchase order that has not except for purchases made under in advance of issuance of the purchase been accepted in writing by the unusual and compelling urgency or in order; and contractor is to be canceled, the support of a contingency operation. (3) The purchase if for— contracting officer shall notify the Agencies may establish higher dollar (i) Repairs to equipment requiring contractor in writing that the purchase limitations for specific activities or disassembly to determine the nature and order has been canceled, request the items. extent of repairs; contractor’s written acceptance of the (2) The supplies or services are (ii) Material available from only one cancellation, and proceed as follows: immediately available. source and for which cost cannot be (1) If the contractor accepts the (3) One delivery and one payment readily established; or cancellation and does not claim that will be made. (iii) Supplies or services for which costs were incurred as a result of (4) Its use is determined to be more prices are known to be competitive but beginning performance under the economical and efficient than use of exact prices are not known (e.g., purchase order, no further action is other simplified acquisition methods. miscellaneous repair parts, maintenance required (i.e., the purchase order shall (c) General procedural instructions agreements). be considered canceled). governing the use of Standard Form 44 (c) Unpriced purchase orders may be (2) If the contractor does not accept are printed on the form and on the issued by using written purchase orders the cancellation or claims that costs inside front cover of each book of forms. or electronically (see 13.506). A realistic were incurred as a result of beginning (d) Since there is, for all practical monetary limitation, either for each line performance under the purchase order, purposes, simultaneous placing of item or for the total order, shall be the contracting officer shall process the purchase orders on Standard Form 44 placed on each unpriced purchase termination action as prescribed by part and delivery of the items ordered, order. The monetary limitation shall be 49. clauses are not required for purchases an obligation subject to adjustment 13.505 Purchase order and related forms. using this form. when the firm price is established. The (e) Agencies shall provide adequate contracting office shall follow-up each 13.505±1 Optional Form (OF) 347, order for safeguards regarding the control of order to ensure timely pricing. The supplies or services, and Optional Form forms and accounting for purchases. contracting officer or the contracting 348, order for supplies or services schedule-continuation. 13.506 Unsigned electronic purchase officer’s designated representative shall orders. review the invoice price and, if (a) Optional Form 347 (illustrated in reasonable (see 13.106–2(a)), process the 53.302–347) and Optional Form 348 (a) An unsigned electronic purchase invoice for payment. (illustrated in 53.302–348) are order (EPO) may be issued when the multipurpose forms designed for the following conditions are present— 13.503 Obtaining contractor acceptance following: (1) Its use is more advantageous to the and modifying purchase orders. (1) Negotiated purchases of supplies Government than any other simplified (a) When it is desired to consummate or services. acquisition method; a binding contract between the parties (2) Delivery orders. (2) It is acceptable to the supplier; before the contractor undertakes (3) Inspection and receiving reports. (3) It is approved by the contracting performance, the contracting officer (4) Invoices. officer; shall require written acceptance of the (b) Agencies may use order forms (4) It does not require written purchase order by the contractor. other than Optional Form 347 and 348 acceptance by the supplier; and 34756 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations (5) The purchasing office retains all (a) Acquisitions made under not using simplified acquisition contract administration functions. simplified acquisition procedures (see procedures, the contracting officer shall (b) When an unsigned EPO is used— part 13); and notify unsuccessful offerors in writing (1) Appropriate clauses shall be * * * * * or electronically, unless preaward incorporated by reference; 50. Section 15.602 is amended by notice was given under paragraph (b) of (2) Administrative information that is revising paragraph (b) to read as follows: this section. The notice shall include— not needed by the supplier shall be * * * * * 15.602 Applicability. placed only on copies intended for (3) Upon request, the contracting internal distribution; * * * * * officer shall furnish the information (3) The same distribution shall be (b) This subpart does not apply to described in 15.1001(c)(1) (i) through (v) made of the unsigned EPO as is made acquisitions using simplified to unsuccessful offerors in solicitations of signed purchase orders; and acquisition procedures (see part 13). using simplified acquisition procedures 51. Section 15.804–2 is amended by in part 13. (4) No purchase order form is revising the first sentence of paragraph required. (a)(3) introductory text; and (a)(4) and PART 16ÐTYPES OF CONTRACTS (c) An unsigned EPO may be unpriced (a)(5) to read as follows: if it meets the conditions in 13.502. 54. Section 16.000 is amended by 15.804±2 Requiring certified cost or revising the first sentence to read as 13.507 Provisions and clauses. pricing data. follows: (a) Each purchase order (and each (a) * * * 16.000 Scope of part. purchase order modification (see * * * * * This part describes types of contracts 13.503)) shall incorporate all clauses (3) The contracting officer may obtain that may be used in acquisitions other required for or applicable to the certified cost or pricing data for pricing than those made under simplified particular acquisition. actions below the pertinent threshold in acquisition procedures in part 13, (b) The contracting officer shall insert paragraph (a)(1) of this section provided unless otherwise authorized by agency the clause at 52.213–2, Invoices, in the action exceeds the simplified procedures. * ** purchase orders that authorize advance acquisition threshold. * ** 55. Section 16.103 is amended by payments (see 31 U.S.C. 3324(d)(2)) for * * * * * revising paragraph (d)(1) to read as subscriptions or other charges for (4) The contracting officer shall not follows: newspapers, magazines, periodicals, or require certified cost or pricing data other publications (i.e., any publication 16.103 Negotiating contract type. when awarding a contract below the printed, microfilmed, photocopied, or * * * * * simplified acquisition threshold in part magnetically or otherwise recorded for (d) * * * (1) acquisitions made under 13. auditory or visual usage). simplified acquisition procedures in (5) When certified cost or pricing data (c) The contracting officer shall insert part 13, unless otherwise required under are not required, the contracting officer agency procedures, the clause at 52.213–3, Notice to may request partial or limited data to Supplier, in unpriced purchase orders. determine a reasonable price. * * * * * 56. Section 16.105 is revised to read PART 15ÐCONTRACTING BY * * * * * as follows: NEGOTIATION 52. Section 15.812–2 is amended by revising paragraph (a)(1) to read as 16.105 Solicitation provision. 47. Section 15.106–1 is amended by follows: The contracting officer shall complete revising paragraph (b)(1) to read as and insert the provision at 52.216–1, follows: 15.812±2 Contract clause. Type of Contract, in a solicitation unless (a) * * * it is for— 15.106±1 Examination of Record clause. (1) Acquisitions at or below the (a) A fixed-price acquisition made * * * * * simplified acquisition threshold; under simplified acquisition procedures (b) * * * * * * * * (see part 13); or (1) The contract amount is at or below 53. Section 15.1001 is amended by (b) Information or planning purposes. the simplified acquisition threshold; revising the first sentence of paragraph PART 19ÐSMALL BUSINESS * * * * * (b)(1), and (c)(1) introductory text and PROGRAMS 48. Section 15.106–2 is amended by (c)(3) to read as follows: revising the first sentence in paragraph 19.102 [Amended] 15.1001 Notifications to unsuccessful (b) to read as follows: offerors. 57. Section 19.102 is amended by removing paragraph (f)(3) and 15.106±2 Audit-Negotiation clause. * * * * * redesignating paragraphs (f)(4) through (b) * * * (1) When the proposal * * * * * (f)(7) as (f)(3) through (f)(6). (b) The contracting officer shall insert evaluation period for a solicitation not 58. Section 19.303 is amended by the clause at 52.215–2, Audit- using simplified acquisition procedures revising paragraph (a) to read as follows: Negotiation, in solicitations and in part 13 is expected to exceed 30 days, contracts when contracting by or when a limited number of offerors 19.303 Determining product or service negotiation, unless the acquisition is have been selected as being within the classifications. made under simplified acquisition competitive range (see 15.609), the (a) The contracting officer shall procedures. * ** contracting officer, upon determining determine the appropriate standard 49. Section 15.401 is amended by that a proposal is unacceptable, shall industrial classification code and revising paragraph (a) to read as follows: promptly notify the offeror. * ** related small business size standard and * * * * * include them in solicitations above the 15.401 Applicability. (c) Postaward notices. (1) After award micro-purchase threshold in 13.101. * * * * * of contracts resulting from solicitations * * * * * Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34757 19.104 [Amended] small business set-asides shall not be 65. Section 19.503 is amended by 59. Section 19.304 is amended in made unless such a reasonable revising paragraph (c)(2) to read as paragraph (a) after the word expectation exists (but see 19.502–3 as follows: ‘‘solicitations’’ by adding the to partial set-asides). Although past acquisition history of the item or similar 19.503 Setting aside a class of parenthetical ‘‘(other than micro- acquisitions. purchases)’’, and in paragraphs (b), (c), items is always important, it is not the and (d) by removing the parenthetical only factor to be considered in * * * * * ‘‘(other than those for small purchases)’’ determining whether a reasonable (c) * * * (2) Provide that the set-aside does not and inserting ‘‘(other than micro- expectation exists. In making R&D small apply to any acquisition automatically purchases)’’ in its place. business set-asides, there must also be a reasonable expectation of obtaining reserved for small business concerns 19.501 [Amended] from small businesses the best scientific under 19.502–2(a). 60. Section 19.501 is amended by and technological sources consistent * * * * * removing from paragraph (d) the phrase with the demands of the proposed 66. Section 19.506 is amended by ‘‘small purchase limitation in 13.000’’ acquisition for the best mix of cost, revising the last sentence of paragraph and inserting in its place ‘‘micro- performances, and schedules. (b) to read as follows: purchase threshold in 13.101’’; by (c) For set-asides other than for 19.506 Withdrawing or modifying set- removing paragraphs (f) and (g) and construction or services, any concern asides. redesignating paragraphs (h), (i), and (j) proposing to furnish the product which as (f), (g) and (h); and by removing the * * * * * it did not itself manufacture must (b) * * * However, the procedures last two sentences from paragraph (c). furnish the product of a small business are not applicable to automatic 61. Section 19.502–1 is amended by manufacturer unless the Small Business dissolutions of set-asides (19.507) or adding a sentence at the end of Administration has granted a waiver dissolutions of set-asides of acquisitions paragraph (c) to read as follows: (see 19.102(f)). In industries where the automatically reserved exclusively for 19.502±1 Requirements for setting aside SBA finds that there are no small small business concerns (19.502–2(a)). acquisitions. business manufacturers, it may waive * * * * * * * * * * the nonmanufacturers rule for regular (c) * * * This requirement does not dealers (see 19.102(f)(4)). This would 19.508 [Amended] apply to purchases of $2,500 or less, permit small business regular dealers to 67. Section 19.508 is amended by purchases from required sources of provide any firm’s product. In these removing and reserving paragraph (a); supply under part 8 (e.g., Federal Prison cases, the contracting officer’s by removing ‘‘19.502–2(b)’’ at the end of Industries, Committee for Purchase determination in paragraph (b)(1) of this paragraphs (b), (c) and (d) and inserting From People Who Are Blind or Severely subsection or the decision not to set- ‘‘19.502–2(c)’’ in their place; by Disabled, and Federal Supply Schedule aside a procurement reserved for small removing the word ‘‘not’’ in the last contracts), or orders under Federal business under paragraph (a) of this sentence of paragraphs (b), (c) and (d) Information Processing (FIP) Multiple subsection will be based on the and inserting ‘‘no’’ in their place; and by Award Schedule contracts. expectation of receiving offers from at removing the phrase ‘‘small purchase 62. Section 19.502–2 is revised to read least two responsible small business procedures’’ in paragraph (e) and as follows: regular dealers offering the products of inserting ‘‘simplified acquisition different concerns. procedures’’ in its place. 19.502±2 Total set-asides. (d) The requirements of this 19.702 [Amended] (a) Each acquisition of supplies or subsection do not apply to acquisitions services that has an anticipated dollar 68. Section 19.702 is amended by over $25,000 during the period when removing the phrase ‘‘small purchase value exceeding $2,500, but not over set-asides cannot be considered for the $100,000, is automatically reserved limitation in 13.000’’ from the four designated industry groups (see introductory text and inserting ‘‘the exclusively for small business concerns, 19.1006(b)). unless the contracting officer is unable simplified acquisition threshold in to obtain offers from two or more small 19.502±3 [Amended] 13.101’’ in its place. business concerns that are competitive 63. Section 19.502–3 is amended in 19.708 [Amended] with market prices and with regard to paragraph (a)(4) by removing the phrase 69. Section 19.708 is amended in the quality and delivery of the goods or ‘‘small purchase procedures’’ and paragraph (a) introductory text by services being purchased. This inserting ‘‘simplified acquisition removing the phrase ‘‘small purchase requirement does not preclude the procedures’’ in its place. limitation in 13.000’’ and inserting ‘‘the award of a contract with a value not simplified acquisition threshold in greater than $100,000 under 19.8, 64. Section 19.502–4 is amended by 13.101’’ in its place. Contracting with the Small Business revising paragraph (a) to read as follows: Administration, or under 19.1006(c), 19.502±4 Methods of conducting set- 19.902 [Amended] Emerging small business set-aside. asides. 70. Section 19.902 is amended by (b) The contracting officer shall set removing the phrase ‘‘small purchase (a) Total set-asides may be conducted aside any acquisition over $100,000 for limitation’’ in the introductory text and by using simplified acquisition small business participation when there inserting ‘‘simplified acquisition procedures (see part 13), sealed bids is a reasonable expectation that (1) threshold’’ in its place. offers will be obtained from at least two (see part 14), or competitive proposals responsible small business concerns (see part 15). Partial small business set- 19.1006 [Amended] offering the products of different small asides may be conducted using sealed 71. Section 19.1006 is amended in business concerns (but see paragraph (c) bids (see part 14), or competitive paragraph (c)(3) by removing the phrase of this subsection); and (2) awards will proposals (see part 15). ‘‘small purchase’’ and inserting be made at fair market prices. Total * * * * * ‘‘simplified acquisition’’ in its place. 34758 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations PART 20ÐLABOR SURPLUS AREA (a) Contracts at or below the PART 25ÐFOREIGN ACQUISITION CONCERNS simplified acquisition threshold. 84. Section 25.302 is amended by * * * * * 20.103 [Amended] revising paragraph (b)(1) to read as follows: 72. Section 20.103 is amended by 22.1006 Contract clauses. removing the phrase ‘‘appropriate small 79. Section 22.1006 is amended by 25.302 Policy. purchase limitation in part 13’’ in revising the heading to read as set forth * * * * * paragraph (b) and inserting ‘‘simplified above and by removing from the first (b) * * * acquisition threshold in 13.101’’ in its two sentences of paragraphs (c)(1) and (1) The estimated cost of the product place. (c)(2) the phrase ‘‘small purchase or service is at or below the simplified 20.104 [Amended] limitation’’ and inserting ‘‘simplified acquisition threshold in part 13. acquisition threshold’’ in their places. * * * * * 73. Section 20.104 is amended by 85. Section 25.703 is amended by removing the phrase ‘‘appropriate small PART 23ÐENVIRONMENT revising the third sentence to read as purchase limitation in part 13’’ in the CONSERVATION, OCCUPATIONAL follows: introductory text and inserting SAFETY, AND DRUG-FREE ‘‘simplified acquisition threshold in WORKPLACE 25.703 Exceptions. 13.101’’ in its place. ** * The approval level for this 80. Section 23.101 is amended by exception is the contracting officer for 20.202 [Amended] revising the first sentence to read as acquisitions at or below the simplified 74. Section 20.202 is amended by follows: acquisition threshold unless otherwise removing the phrase ‘‘appropriate small 23.101 Applicability. provided by agency procedures. In the purchase limitation in part 13’’ and case of contracts in excess of the inserting ‘‘simplified acquisition This subpart does not apply to simplified acquisition threshold, the threshold in 13.101’’ in its place. contracts at or below the simplified approval level is the agency head. * ** acquisition threshold or to the use of 20.301 [Amended] facilities outside the United States. PART 27ÐPATENTS, DATA, AND 75. Section 20.301 is amended in *** COPYRIGHTS paragraph (a) by removing the phrase 81. Section 23.501 is amended by 86. Section 27.201–2 is amended by ‘‘appropriate small purchase limitation revising paragraph (a) to read as follows: revising paragraph (a) to read as follows: in part 13’’ and inserting ‘‘simplified acquisition threshold in 13.101’’ in its 23.501 Applicability. 27.201±2 Clauses on authorization and place. * * * * * consent. (a) The contracting officer shall insert 20.302 [Amended] (a) Contracts at or below the simplified acquisition threshold; the clause at 52.227–1, Authorization 76. Section 20.302 is amended in however, the requirements of this and Consent, in solicitations and paragraph (a) introductory text by subpart shall apply to contracts of any contracts (including those for removing the phrase ‘‘appropriate small value if the contract is awarded to an construction; architect-engineer purchase limitation in part 13’’ and individual; services; dismantling, demolition, or inserting ‘‘simplified acquisition removal of improvements; and * * * * * threshold in 13.101’’ in its place. noncommon carrier communication 82. Section 23.504 is amended by services), except when using simplified PART 22ÐAPPLICATION OF LABOR revising the introductory text of acquisition procedures or both complete LAWS TO GOVERNMENT paragraph (a) to read as follows: performance and delivery are outside ACQUISITIONS 23.504 Policy. the United States, its possessions, and 22.202 [Amended] Puerto Rico. Although the clause is not (a) No offeror other than an individual required when simplified acquisition 77. Section 22.202 is amended in the shall be considered a responsible source procedures are used, it may be used introductory text by adding the phrase (see 9.104–1) for a contract that exceeds with them. ‘‘above the micro-purchase threshold,’’ the simplified acquisition threshold, * * * * * after ‘‘contracts’’. unless it has certified, pursuant to 87. Section 27.202–2 is revised to read 78. Section 22.305 is amended by 52.223–5, Certification Regarding a as follows: revising the first sentence of the Drug-Free Workplace, that it will introductory text and paragraph (a), provide a drug-free workplace by— 27.202±2 Clause on notice and assistance. removing paragraph (b) and * * * * * The contracting officer shall insert the redesignating paragraphs (c) through (h) clause at 52.227–2, Notice and 83. Section 23.505 is amended by as (b) through (g) to read as follows: Assistance Regarding Patent and revising paragraph (a)(2) to read as Copyright Infringement, in supply, follows: 22.305 Contract clause. service, or research and development The contracting officer shall insert the 23.505 Solicitation provision and contract solicitations and contracts (including clause at 52.222–4, Contract Work clause. construction and architect-engineer Hours and Safety Standards Act- contracts) which anticipate a contract (a) * * * Overtime Compensation, in solicitations value above the simplified acquisition and contracts (including, for this (2) Expected to exceed the simplified threshold, except when complete purpose, basic ordering agreements) acquisition threshold if the contract is performance and delivery are outside when the contract may require or expected to be awarded to other than an the United States, its possessions, and involve the employment of laborers or individual; or Puerto Rico, unless the contracts mechanics. * * * * * * * * indicate that the supplies or other Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34759 deliverables are ultimately to be PART 32ÐCONTRACT FINANCING following locations: 36.511 and shipped into one of those areas. 36.701(b). 88. Section 27.203–1 is amended by 93. Section 32.617 is amended by revising paragraph (b)(4) to read as revising paragraph (a)(1) to read as 36.502, 36.503, 36.506, 36.508, 36.509, follows: follows: 36.510, 36.512, 36.513, 36.521, and 36.701 [Amended] 27.203±1 General. 32.617 Contract clause. 100. Part 36 is amended by removing (a) * * * * * * * * the phrase ‘‘within the small purchase (b) * * * (1) Contracts at or below the limitation’’ and inserting ‘‘at or below (4) When the contract is awarded simplified acquisition threshold. using simplified acquisition procedures. the simplified acquisition threshold’’ at * * * * * the following locations: 36.502, 36.503, * * * * * 94. Section 32.901 is revised to read 36.506, 36.508, 36.509, 36.510, 36.512, as follows: PART 28ÐBONDS AND INSURANCE 36.513(a), 36.521, 36.701(c). 32.901 Applicability. 89. Section 28.103–2 is amended by 36.511, 36.701, and 36.702 [Amended] This subpart applies to all revising the first sentence of paragraph 101. Part 36 is amended by removing (a) to read as follows: Government contracts (including contracts at or below the simplified the phrase ‘‘within the small purchase 28.103±2 Performance bonds. acquisition threshold as defined in limitations’’ and inserting ‘‘at or below (a) Performance bonds may be subpart 13.1), except contracts with the simplified acquisition threshold’’ at required for contracts exceeding the payment terms and late payment the following locations: 36.511, simplified acquisition threshold when penalties established by other 36.701(b), and 36.702(b)(2). necessary to protect the Government’s governmental authority (e.g., tariffs). interest. * * * 95. Section 32.908 is amended by PART 41ÐACQUISITION OF UTILITY SERVICES * * * * * revising paragraph (c) to read as follows: 90. Section 28.310 is amended by 32.908 Contract clauses. 102. In 41.201(b), the first sentence is revising paragraph (a) introductory text revised to read as follows: to read as follows: * * * * * (c) The contracting officer shall insert 41.201 Policy. 28.310 Contract clause for work on a the clause at 52.232–25, Prompt Government installation. Payment, in all other solicitations and * * * * * (a) The contracting officer shall insert contracts (including contracts at or (b) Except for acquisitions at or below the clause at 52.228–5, Insurance-Work below the simplified acquisition the simplified acquisition threshold in on a Government Installation, in threshold in part 13), except as part 13, agencies shall acquire utility solicitations and contracts when a fixed- indicated in 32.901. services by a bilateral written contract, price contract is contemplated, the * * * * * which must include the clauses contract amount is expected to exceed required by 41.501, regardless of the simplified acquisition threshold in 33.106 [Amended] whether rates or terms and conditions of part 13, and the contract will require 96. Section 33.106(a) is amended by service are fixed or adjusted by a work on a Government installation, removing ‘‘other than small purchases’’ regulatory body. *** unless— and inserting ‘‘contracts expected to * * * * * * * * * * exceed the simplified acquisition threshold’’ in its place. 41.401 [Amended] PART 29ÐTAXES PART 36ÐCONSTRUCTION AND 103. Section 41.401 is amended in the 91. Section 29.401–3 is revised to read ARCHITECT-ENGINEER CONTRACTS first sentence by removing ‘‘small as follows: purchase’’ and inserting ‘‘simplified 36.602±5 Short selection process for 29.401±3 Competitive contracts. acquisition’’ in its place, and in the contracts not to exceed the simplified second sentence by removing ‘‘beneath The contracting officer shall insert the acquisition threshold. the small purchase dollar’’ and inserting clause at 52.229–3, Federal, State, and 97. The heading of 36.602–5 is revised ‘‘at or below the simplified acquisition’’ Local Taxes, in solicitations and to read as set forth above. in its place. contracts if the contract is to be performed wholly or partly within the 36.502, 36.503, 36.506, 36.508, 36.509, PART 42ÐCONTRACT 36.510, 36.512, 36.513, 36.515, 36.521, United States, its possessions, or Puerto ADMINISTRATION Rico, when a fixed-price contract is 36.602±5, and 36.702 [Amended] contemplated and the contract is 98. Part 36 is amended removing the 42.903 [Amended] expected to exceed the simplified phrase ‘‘exceed the small purchase 104. In section 42.903, the phrase acquisition threshold in part 13, unless limitation’’ and inserting ‘‘exceed the ‘‘small purchase limitation in 13.000’’ is the clause at 52.229–4, Federal, State, simplified acquisition threshold’’ in its removed and ‘‘simplified acquisition and Local Taxes (Noncompetitive place in the following locations: 36.502, threshold in part 13’’ is inserted in its Contract), is included in the contract. 36.503, 36.506, 36.508, 36.509, 36.510, 36.512, 36.513(a), 36.515, 36.521, place. 29.401±4 [Amended] 36.602–5 introductory text, 36.702(b)(2). 42.1104 [Amended] 92. Section 29.401–4 is amended by removing the words ‘‘small purchase 36.511 and 36.701 [Amended] 105. In 42.1104(b) the phrase limitation in 13.000’’ after the words 99. Part 36 is amended by removing ‘‘Contracts of values less than the small ‘‘exceeds the’’ and inserting ‘‘simplified the phrase ‘‘exceed the small purchase purchase’’ is removed and ‘‘Contracts at acquisition threshold in part 13’’ in its limitations’’ and inserting ‘‘exceed the or below the simplified acquisition place. simplified acquisition threshold’’ in the threshold’’ is inserted in its place. 34760 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations PART 43ÐCONTRACT the simplified acquisition threshold’’ is purchases under’’ and inserting MODIFICATIONS inserted in its place. ‘‘contracts at or below the simplified acquisition threshold in’’ in its place; 43.205 [Amended] 46.307 [Amended] and revising paragraph (b) to read as 106. In section 43.205(d)(2) and (e), 113. In section 46.307(a)(3), the follows: the phrase ‘‘applicable small purchase phrase ‘‘small purchase limitation’’ is limitation’’ is removed and ‘‘simplified removed and ‘‘simplified acquisition 47.104±4 Contract clauses. acquisition threshold’’ is inserted in its threshold’’ is inserted in its place; and * * * * * place. in paragraph (b) the phrase ‘‘within the (b) The contracting officer may insert small purchase limitation’’ is removed the clause at 52.247–1, Commercial Bill PART 44ÐSUBCONTRACTING and ‘‘at or below the simplified of Lading Notations, in solicitations and POLICIES AND PROCEDURES acquisition threshold’’ is inserted in its contracts made at or below the place. 44.201±2 and 44.204 [Amended] simplified acquisition threshold in part 107. In sections 44.201–2(b) and 46.312 [Amended] 13 when it is contemplated that the 44.204(e), the phrase ‘‘small purchase 114. In the first sentence of section delivery terms will be f.o.b. origin. limitation’’ is removed and ‘‘simplified 46.312, the phrase ‘‘small purchase 47.200 [Amended] acquisition threshold’’ is inserted in its limitation’’ is removed and ‘‘simplified place. acquisition threshold’’ is inserted in its 119. In 47.200(b)(4), remove the place; and in the second sentence the phrase ‘‘Small purchases under’’ and PART 45ÐGOVERNMENT PROPERTY phrase ‘‘within small purchase insert ‘‘Contracts at or below the limitation’’ is removed and ‘‘at or below simplified acquisition threshold in’’ in 108. Section 45.106 is amended by its place. revising paragraph (e) to read as follows: the simplified acquisition threshold’’ is inserted in its place. 47.205 [Amended] 45.106 Government property clauses. 46.316 [Amended] * * * * * 120. In section 47.205(b), remove the (e) When the cost of the item to be 115. In section 46.316, the phrase phrase ‘‘small purchase limitation under repaired does not exceed the simplified ‘‘small purchase limitation’’ is removed the small purchase procedures in part acquisition threshold in part 13, and ‘‘simplified acquisition threshold’’ 13’’ and insert ‘‘simplified acquisition purchase orders for property repair need is inserted each time it appears. threshold at 13.101’’ in its place. not include a Government property 46.404 Government contract quality 47.305±16 [Amended] clause. assurance for acquisitions at or below the 121. In the first sentence of 47.305– * * * * * simplified acquisition threshold. 116. Section 46.404 is amended by 16(b)(1), remove the phrase ‘‘awarded PART 46ÐQUALITY ASSURANCE revising the heading to read as set forth under the small purchase procedures above; by removing the words ‘‘small of’’ and insert ‘‘at or below the 46.202±1 [Amended] purchases’’ in paragraphs (a) and (b)(1) simplified acquisition threshold in’’ in 109. In section 46.202–1(a), the phrase and inserting ‘‘contracts at or below the its place. ‘‘under small purchases’’ is removed simplified acquisition threshold’’ in 122. Section 47.405 is amended by and ‘‘at or below the simplified their place. revising the last sentence to read as acquisition threshold’’ is inserted in its 117. Section 46.805 is amended in the follows: place. heading of paragraph (a) and 47.405 Contract clause. 46.301 [Amended] introductory text of paragraph (a) by removing ‘‘small purchase limitation in ** * This clause does not apply to 110. In section 46.301 in the 13.000’’ and inserting ‘‘simplified contracts awarded using the simplified introductory text the phrase ‘‘within the acquisition threshold in part 13’’; and acquisition procedures in part 13. small purchase limitation’’ is removed by revising paragraph (b) to read as and ‘‘at or below the simplified 123. Section 47.504(d) is revised to follows: acquisition threshold’’ is inserted in its read as follows: place. 46.805 Contract clauses. 47.504 Exceptions. 46.302 [Amended] * * * * * * * * * * (b) Acquisitions at or below the (d) Contracts awarded using the 111. In the first sentence of section simplified acquisition threshold in part simplified acquisition procedures in 46.302, the phrase ‘‘small purchase 13. The clauses prescribed by paragraph part 13. limitation’’ is removed and ‘‘simplified (a) of this section are not required for acquisition threshold’’ is inserted in its contracts at or below the simplified place; and in the second sentence, the PART 49ÐTERMINATION OF acquisition threshold in part 13. CONTRACTS phrase ‘‘within the small purchase However, in response to a contractor’s limitation’’ is removed and ‘‘at or below specific request, the contracting officer 49.504 [Amended] the simplified acquisition threshold’’ is may insert the clauses prescribed in inserted in its place. 124. In section 49.504 at paragraphs paragraph (a)(1) or (a)(4) of this section (a) (1), (b) and (c)(1), in the first 46.304 [Amended] in a contract at or below the simplified sentence remove the phrase ‘‘small 112. In section 46.304, in the first acquisition threshold in part 13 and purchase limitation’’ and insert sentence the phrase ‘‘small purchase may obtain any price reduction that is ‘‘simplified acquisition threshold’’ in its limitation’’ is removed and ‘‘simplified appropriate. place; and in the second sentence, acquisition threshold’’ is inserted in its PART 47ÐTRANSPORTATION remove the phrase ‘‘not expected to place, and in the second sentence, the exceed the small purchase limitation’’ phrase ‘‘within the small purchase 118. Section 47.104–4(a)(2) is and insert ‘‘at or below the simplified limitation’’ is removed and ‘‘at or below amended by removing the phrase ‘‘small acquisition threshold;’’ in its place. Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34761 PART 52ÐSOLICITATION PROVISIONS 52.219±4 [Reserved] paragraph (b) introductory text to read AND CONTRACT CLAUSES 132. Section 52.219–4 is removed and as follows: reserved. 52.203±6 [Amended] 52.223±5 Certification Regarding A Drug- 125. In the clause at 52.203–6, the 52.219±5 [Amended] Free Workplace. date of the clause is revised to read (JUL 133. Section 52.219–5 is amended by * * * * * 1995), and at the end of paragraph (c), revising the date of the clause to read Certification Regarding a Drug-Free add the phrase ‘‘which exceed ‘‘(JUL 1995)’’; and in paragraph (c)(1)(ii) Workplace (Jul 1995) of the clause by removing the phrase $100,000.’’ * * * * * ‘‘small purchase limitation’’ and 52.203±7 [Amended] (b) By submission of its offer, the offeror inserting ‘‘simplified acquisition (other than an individual) responding to a 126. In the clause at 52.203–7, the threshold’’ in its place. solicitation that is expected to exceed the date of the clause is revised to read (JUL simplified acquisition threshold, certifies and 52.219±7 [Amended] 1995) and at the end of paragraph (c)(5) agrees, that with respect to all employees of add the phrase ‘‘which exceed 134. Section 52.219–7 is amended by the offeror to be employed under a contract $100,000.’’ revising the date of the clause to read resulting from this solicitation, it will—no ‘‘(JUL 1995)’’; and in paragraph (c)(2) of later than 30 calendar days after contract 52.209±6 [Amended] the clause by removing the phrase award (unless a longer period is agreed to in 127. In the clause at 52.209–6, the ‘‘small purchase limitation’’ and writing), for contracts of 30 calendar days or date of the clause is revised to read (JUL inserting ‘‘simplified acquisition more performance duration; or as soon as 1995) and in the second sentence of threshold’’ in its place. possible for contracts of less than 30 calendar paragraph (a) and in paragraph (b) 135. Section 52.220–1 is amended by days performance duration, but in any case, remove the phrase ‘‘the small purchase by a date prior to when performance is revising the introductory text to read as expected to be completed— limitation at FAR 13.000’’ and insert follows: ‘‘$25,000’’. * * * * * 52.220±1 Preference for Labor Surplus 128. Sections 52.213–2 and 52.213–3 52.227±1 [Amended] are amended by revising the Area Concerns. introductory paragraphs and removing As prescribed in 20.103(b), insert the 140. In the clause at section 52.227– the derivation lines following ‘‘(End of following provision: 1, revise the clause date to read ‘‘(JUL clause)’’ to read as follows: * * * * * 1995)’’ and in paragraph (b), remove 136. Section 52.220–2 is amended by ‘‘$25,000’’ after the word ‘‘exceed’’ and 52.213±2 Invoices. revising the introductory text; revising insert ‘‘the simplified acquisition As prescribed in 13.507(b), insert the the date of the clause to read ‘‘(JUL threshold’’ in its place; remove the following clause: 1995)’’; in paragraph (c)(2) of the clause phrase ‘‘under or over $25,000’’ and * * * * * by removing the parenthetical ‘‘(if it insert ‘‘including those at or below the exceeds the appropriate small purchase simplified acquisition threshold’’ in its 52.213±3 Notice to supplier. limitation in part 13 of the Federal place; and remove the derivation line As prescribed in 13.507(c), insert the Acquisition Regulation)’’; and removing after ‘‘(End of clause)’’. following clause: the derivation line following ‘‘(End of 52.227±3 [Amended] * * * * * clause)’’. The revised text reads as follows: 52.215±1 [Amended] 141. In section 52.227–3, Alternate III, revise the clause date to read ‘‘(JUL 129. Section 52.215–1 is amended by 52.220±2 Notice of Total Labor Surplus 1995)’’ and remove ‘‘$25,000’’ and insert revising the clause date to read ‘‘(JUL Area Set-Aside. ‘‘the simplified acquisition threshold’’. 1995)’’; in paragraph (a) by removing As prescribed in 20.202, insert the ‘‘small purchase limitation’’ and following clause: 142. The introductory paragraphs in inserting ‘‘simplified acquisition * * * * * sections 52.236–2, 52.236–3, 52.236–6, threshold’’ in its place; in the first 52.236–8, 52.236–9, 52.236–10, 52.236– sentence of paragraph (c) by adding the 52.220±3 [Amended] 11, 52.236–12, 52.236–15, 52.236–21, phrase ‘‘, exceeding $100,000,’’ after the 137. Section 52.220–3 is amended by and 52.243–5 are revised and the first appearance of ‘‘subcontracts’’; and revising the date of the clause to read derivation lines are removed following removing the derivation lines after ‘‘(JUL 1995)’’; removing paragraph (a) ‘‘(End of clause)’’ to read as follows: and redesignating paragraphs (b), (c), ‘‘(End of clause)’’. 52.236±2 Differing Site Conditions. and (d) as (a), (b), and (c), respectively; 52.215±2 [Amended] in newly designated paragraph (b) by As prescribed in 36.502, insert the 130. In the clause in 52.215–2, the removing the phrase ‘‘paragraph (b) following clause: date is revised to read ‘‘(JUL 1995)’’, and above’’ and inserting ‘‘paragraph (a) of * * * * * in paragraph (f), ‘‘are over the small this clause’’ in its place; and removing purchase limitation’’ is removed and the derivation lines following ‘‘(End of 52.236±3 Site Investigation and Conditions ‘‘exceed the simplified acquisition clause)’’. Affecting the Work. threshold’’ is inserted in its place. As prescribed in 36.503, insert the 131. Section 52.216–1 is amended by 52.222±4 [Amended] following clause: revising the introductory paragraph and 138. In the clause at 52.222–4, the removing the derivation line following date is revised to read ‘‘(JUL 1995)’’ and, * * * * * ‘‘(End of clause)’’ to read as follows: in the first sentence of paragraph (e), 52.236±6 Superintendence by the following ‘‘subcontracts’’ the first time it Contractor. 52.216±1 Type of contract. appears, add the phrase ‘‘, exceeding As prescribed in 16.105, complete and $100,000,’’. As prescribed in 36.506, insert the insert the following provision: 139. Section 52.223–5 is amended in following clause: * * * * * the clause by revising the date and * * * * * 34762 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 52.236±8 Other Contracts. 52.246±1 Contractor Inspection 52.247±64 Preference for Privately Owned As prescribed in 36.508, insert the Requirements. U.S.-Flag Commercial Vessels. following clause: As prescribed in 46.301, insert the As prescribed in 47.507(a), insert the * * * * * following clause: following clause: * * * * * * * * * * 52.236±9 Protection of Existing 148. In sections 52.249–8, 52.249–9, Vegetation, Structures, Equipment, Utilities, 52.246±7 Inspection of Research and and Improvements. and 52.249–10 the introductory DevelopmentÐFixed Price. paragraphs are revised and the As prescribed in 36.509, insert the As prescribed in 46.307(a), insert the derivation lines following ‘‘(End of following clause: following clause: clause)’’ are removed to read as follows: * * * * * * * * * * 52.249±8 Default (Fixed-Price Supply and 52.236±10 Operations and Storage Areas. 52.246±12 Inspection of Construction. Service). As prescribed in 36.510, insert the As prescribed in 49.504(a)(1), insert following clause: As prescribed in 46.312, insert the the following clause: following clause: * * * * * * * * * * * * * * * 52.236±11 Use and Possession Prior to 52.249±9 Default (Fixed-Price Research Completion. 52.246±16 Responsibilities for Supplies. and Development). As prescribed in 36.511, insert the As prescribed in 46.316, insert the As prescribed in 49.504(b), insert the following clause: following clause: following clause: * * * * * * * * * * * * * * * 52.236±12 Cleaning Up. 52.246±23 Limitation of Liability. 52.249±10 Default (Fixed-Price As prescribed in 36.512, insert the As prescribed in 46.805, insert the Construction). following clause: following clause: As prescribed in 49.504(c)(1), insert * * * * * * * * * * the following clause: 52.236±15 Schedules for Construction * * * * * 52.246±24 Limitation of LiabilityÐHigh- Contracts. Value Items. PART 53ÐFORMS As prescribed in 36.515, insert the following clause: As prescribed in 46.805, insert the 149. Section 53.213 is amended by following clause: * * * * * revising the heading, the introductory * * * * * paragraph, and paragraphs (a), (c), (e) 52.236±21 Specifications and Drawings for heading, and (e)(1) to read as follows: Construction. 52.246±25 Limitation of LiabilityÐ Services. As prescribed in 36.521, insert the 53.213 Simplified acquisition procedures following clause: As prescribed in 46.805, insert the (SF's 18, 30, 44, 1165, OF's 347, 348). * * * * * following clause: The following forms are prescribed as * * * * * stated below for use in simplified 52.243±5 Changes and Changed acquisition procedures, orders under 146. Section 52.247–1 is amended by Conditions. existing contracts or agreements, and adding introductory text, and removing As prescribed in 43.205(e), insert the orders from required sources of supplies paragraphs (a) and (b) and the following clause: and services: derivation lines following ‘‘(End of * * * * * clause)’’ to read as follows: (a) SF 18 (Rev. 6/95), Request for Quotations. SF 18 prescribed in 53.215– 52.244±2 [Amended] 52.247±1 Commercial Bill of Lading 1(a), shall be used in obtaining price, 143. In section 52.244–2, Alternate I, Notations. cost, delivery, and related information revise the parenthetical date to read As prescribed in 47.104–4, insert the from suppliers as specified in 13.107(a). ‘‘(JUL 1995)’’ and, in paragraph (a)(2), following clause: * * * * * remove the phrase ‘‘small purchase * * * * * (c) SF 44 (Rev. 10/83), Purchase Order limitation’’ and insert ‘‘simplified Invoice Voucher. SF 44 is prescribed for acquisition threshold’’ in its place. 147. Section 52.247–64 is amended by use in simplified acquisition 144. Section 52.244–5 is amended by revising the introductory text; in the procedures, as specified in 13.505–3. revising the introductory text; removing clause heading, the date is revised to paragraphs (a) and (b); and removing the read ‘‘(JUL 1995)’’; in paragraph (d), * * * * * derivation lines following ‘‘(End of remove the words ‘‘small purchases as (e) OF 347 (6/95), Order for Supplies clause)’’ to read as follows: described in 48 CFR 13’’ and insert or Services, and OF 348 (10/83), Order ‘‘contracts at or below the simplified for Supplies or Services—Schedule 52.244±5 Competition in Subcontracting. acquisition threshold as described in Continuation. * ** As prescribed in 44.204(e), insert the FAR part 13’’ in their place; in (1) To accomplish acquisitions under following clause: paragraph (e)(1), remove the words simplified acquisition procedures, as * * * * * ‘‘Small purchases as defined in 48 CFR specified in 13.505–1. 145. The introductory paragraphs of 13’’ and insert ‘‘Contracts at or below * * * * * sections 52.246–1, 52.246–7, 52.246–12, the simplified acquisition threshold as 150. Section 53.215–1 is amended by 52.246–16, 52.246–23, 52.246–24, and defined in FAR part 13’’ in their place; revising the introductory paragraph; and 52.246–25 are revised and the and remove the derivation line after in paragraph (a) by revising ‘‘(REV 5/ derivation lines following ‘‘(End of ‘‘(End of clause)’’. The revised text reads 93)’’ to read ‘‘(REV 6/95)’’. The revised clause)’’ are removed to read as follows: as follows: text reads as follows: Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34763 53.215±1 Solicitation and receipt of proposals and quotations. The following forms are prescribed, as stated below, for use in contracting by negotiation (except for construction, architect-engineer services, or acquisitions made using simplified acquisition procedures): * * * * * 53.236±1 [Amended] 151. Section 53.236–1 is amended in paragraph (e) by removing two references to ‘‘small purchase limitation’’ and inserting ‘‘simplified acquisition threshold’’ in both places; by adding ‘‘6/95)’’ immediately following the first reference to ‘‘OF 347’’ in paragraph (f); and removing ‘‘contracts of $10,000 or less’’ and inserting ‘‘contracts under the simplified acquisition threshold’’ in its place. 152. Section 53.301–18 is revised to read as follows: 53.301±18 SF 18 (REV 6/95), Request for Quotations. BILLING CODE 6820±EP±M 34764 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations BILLING CODE 6820±EP±C 153. Section 53.302–347 is revised to read as follows: 53.302±347 OF 347 (REV 6/95), Order for Supplies or Services. BILLING CODE 6820±EP±M Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34765 34766 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations [FR Doc. 95–16081 Filed 6–30–95; 8:45 am] BILLING CODE 6820±EP±C federal register July 3,1995 Monday Notices Awards forFiscalYear(FY)1995; Awards; InvitingApplicationsforNew Bilingual Education:AcademicExcellence Education Department of Part V 34767 34768 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices DEPARTMENT OF EDUCATION (8) 34 CFR part 85 (Governmentwide 4:30 p.m. (Eastern time) on the date Debarment and Suspension indicated in this notice. [CFDA No.: 84.003G] (Nonprocurement) and Please note that the above address is Bilingual Education: Academic Governmentwide Requirements for not the same address as the one to Excellence Awards Notice Inviting Drug-Free Workplace (Grants)). which the applicant submits its Applications for New Awards for Fiscal (9) 34 CFR part 86 (Drug-Free Schools completed application. Do not send Year (FY) 1995 and Campuses). applications to the above address. Description of Program: Funds under Instructions for transmittal of Note to Applicants: This notice is a this program must be used to enhance applications: complete application package. Together the capacity of States and LEAs to (a) If an applicant wants to apply for with the statute authorizing the program provide high quality academic programs a grant, the applicant shall— and applicable regulations governing for LEP children and youth. (1) Mail the original and two copies the program, including the Education In addition, recipients of funds must of the application on or before the Department General Administrative coordinate activities assisted under this deadline date to: U.S. Department of Regulations (EDGAR), this notice program with activities carried out by Education, Application Control Center, contains all of the information, comprehensive regional assistance Attention: (CFDA# 84.003G), application forms, and instructions centers assisted under part A of title XIII Washington, D.C. 20202–4725 or needed to apply for an award under this of the Elementary and Secondary (2) Hand deliver the original and two program. Education Act of 1965, as amended. copies of the application by 4:30 p.m. Purpose of Program: This program Funding Priority and Selection (Eastern time) on or before the deadline provides assistance to promote the Criteria: The priority and selection date to: U.S. Department of Education, adoption and implementation of criteria in the notice of funding priority Application Control Center, Attention: bilingual education, special alternative and selection criteria for this program, (CFDA# 84.003G), Room #3633, instruction programs, and professional as published elsewhere in this issue of Regional Office Building #3, 7th and D development programs that demonstrate the Federal Register, apply to this Streets SW., Washington, D. C. 20202– promise of assisting limited English competition. 4725. proficient (LEP) children and youth to Intergovernmental Review of Federal (b) An applicant must show one of the meet challenging State standards. Programs: This program is subject to the following as proof of mailing: Eligible Applicants: Local educational requirements of Executive Order 12372 (1) A legibly dated U.S. Postal Service agencies (LEAs), State educational (Intergovernmental Review of Federal postmark. agencies, institutions of higher Programs) and the regulations in 34 CFR (2) A legible mail receipt with the education, and nonprofit organizations. part 79. date of mailing stamped by the U.S. Deadline for Transmittal of The objective of the Executive Order Postal Service. Applications: July 31, 1995. is to foster an intergovernmental (3) A dated shipping label, invoice, or Deadline for Intergovernmental partnership and to strengthen receipt from a commercial carrier. Review: September 29, 1995. federalism by relying on State and local (4) Any other proof of mailing Available Funds: $1 million. processes for State and local acceptable to the Secretary. Estimated Range of Awards: government coordination and review of (c) If an application is mailed through $125,000–$225,000. proposed Federal financial assistance. the U.S. Postal Service, the Secretary Estimated Average Site of Awards: Applicants must contact the does not accept either of the following $175,000. appropriate State Single Point of as proof mailing; Estimated Number of Awards: 6. Contact to find out about, and to comply (1) A private metered postmark. with, the State’s process under (2) A mail receipt that is not dated by Note: The Department is not bound by any Executive Order 12372. If you want to estimates in this notice. the U.S. Postal Service. know the name and address of any State Project Period: Up to 60 months. Single Point of Contact, see the list Notes: (1) The U.S. Postal Service does not Applicable Regulations: published in the Federal Register on uniformly provide a dated postmark. Before The Education Department General relying on this method, an applicant should March 13, 1995 (60 FR 16713). check with its local post office. Administrative Regulations (EDGAR) as In States that have not established a follows: process or chosen a program for review, (2) The Application Control Center (1) 34 CFR part 74 (Administration of State, areawide, regional, and local will mail a Grant Application Receipt Grants and Agreements with Institutions entities may submit comments directly Acknowledgement to each applicant. If of Higher Education, Hospitals, and to the Department. an applicant fails to receive the Other Non-profit Organizations). Any State Process Recommendation notification of application receipt (2) 34 CFR part 75 (Direct Grant and other comments submitted by a within 15 days from the date of mailing Programs). State Single Point of Contact and any the application, the applicant should (3) 34 CFR part 77 (Definitions that comments from State, areawide, call the U.S. Department of Education Apply to Department Regulations). regional, and local entities must be Application Control Center at (202) (4) 34 CFR part 79 (Intergovernmental mailed or hand-delivered by the date 708–9495. Review of Department of Education indicated in this notice to the following (3) The applicant must indicate on the Programs and Activities). address: The Secretary, E.O. 12372— envelope and in Item 10 of the (5) 34 CFR part 80 (Uniform CFDA# 84.003G, U.S. Department of Application for Federal Assistance Administrative Requirements for Grants Education, Room 6213, 600 (Standard Form 424) the CFDA number and Cooperative Agreements to State Independence Avenue SW., and suffix letter of the competition and Local Governments). Washington, DC 20202–6510. under which the application is being (6) 34 CFR part 81 (General Education Proof of mailing will be determined submitted. Provisions Act—Enforcement). on the same basis as applications (see 34 Application Instructions and Forms: (7) 34 CFR part 82 (New Restrictions CFR 75.102). Recommendations or The appendix to this application is on Lobbying). comments may be hand-delivered until divided into three parts, plus a Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices 34769 statement regarding estimated public d. Certification Regarding Debarment, who use a telecommunications device reporting burden and various assurances Suspension, Ineligibility and Voluntary for the deaf (TDD) may call the Federal and certifications. These parts and Exclusion—Lower Tier Covered Information Relay Service (FIRS) at 1– additional materials are organized in the Transactions (ED 80–0014, 9/90) and 800–877–8339 between 8 a.m. and 8 same manner that the submitted instructions. (NOTE: This form is p.m., Eastern time, Monday through application should be organized. The intended for the use of grantees and Friday. parts and additional materials are as should not be transmitted to the Information about the Department’s follows: Department.) funding opportunities, including copies e. Disclosure of Lobbying Activities Part I: Application for Federal of application notices for discretionary (Standard Form LLL) (if applicable) and Assistance (Standard Form 424 (Rev. 4– grant competitions, can be viewed on instructions; and Disclosure of Lobbying 88)) and instructions. the Department’s electronic bulletin Activities Continuation Sheet (Standard Part II: Budget Information—Non- board (ED Board), telephone (202) 260– Construction Programs (ED Form No. Form LLL–A). All applicants must submit ONE 9950; or on the Internet Gopher Server 524) and instructions. original signed application, including at GOPHER.ED.GOV (under Part III: Application Narrative. ink signatures on all forms and Announcements, Bulletins, and Press Releases). However, the official Additional Materials assurances, and TWO copies of the application. Please mark each application notice for a discretionary a. Estimated Public Reporting Burden. application as original or copy. No grant grant competition is the notice b. Assurances—Non-Construction may be awarded unless a complete published in the Federal Register. Programs (Standard Form 424B) and application has been received. Program Authority: 20 U.S.C. 7453. instructions. For Further Information Contact: Dated: June 27, 1995. c. Certifications Regarding Lobbying; Mary T. Mahony, U.S. Department of Eugene E. Garcia, Debarment, Suspension and Other Education, 600 Independence Avenue, Responsibility Matters; and Drug-Free SW., Room 5609, Switzer Building, Director, Office of Bilingual Education and Workplace Requirements (ED 80–0013) Washington, D.C. 20202–6510. Minority Languages Affairs. and instructions. Telephone (202) 205–8728. Individuals BILLING CODE 4000±01±M 34770 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices 34771 34772 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices 34773 34774 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices 34775 34776 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices 34777 34778 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices 34779 34780 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices 34781 34782 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices 34783 34784 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices 34785 [FR Doc. 95–16204 Filed 6–30–95; 8:45 am] BILLING CODE 4000±01±C 34786 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices DEPARTMENT OF EDUCATION nomination of the application. The Selection Criteria Secretary establishes this absolute (a) In evaluating applications for Bilingual Education: Academic priority to ensure that the Department Excellence Awards grants under this competition, the funds only exemplary programs that Secretary uses the following criteria. AGENCY: Department of Education. have the support of a reliable entity, i.e., (b) The maximum score for all of the ACTION: Notice of funding priority and the SEA, that is familiar with the criteria in this section is 115 points. selection criteria for fiscal year (FY) exemplary program. The Secretary (c) The maximum score for each 1995. requires the applicant to have an criterion is indicated in parentheses existing model site to show that it is following the heading of each criterion. SUMMARY: The Secretary establishes the feasible to implement the exemplary (d) The Secretary evaluates each selection criteria for evaluating program. application for a grant under this applications and an absolute funding Section 7133 of the Act provides that program by using the following priority under the Academic Excellence selection criteria, which are based on Awards program for FY 1995. The the Secretary must establish effectiveness criteria for a peer review of section 7133 of the Act: Secretary establishes selection criteria (1) Evidence of effectiveness. (25 and an absolute funding priority to applications for a grant under this program. In accordance with this points) The extent to which the support those applicants that have exemplary program provides implemented high quality education provision, the Secretary will consider the effectiveness of the exemplary demonstrated evidence of effectiveness programs and have been nominated by in assisting LEP students to attain high program, the exemplary program’s their State education agency (SEA) for a academic standards and challenging potential for adoption, and the grant. State standards. applicant’s dissemination plan EFFECTIVE DATES: This notice takes effect (2) Sound research. (15 points) How on August 2, 1995. including sustained training, evaluation well the pedagogical approach and FOR FURTHER INFORMATION CONTACT: plan, and coordination strategies. materials of the exemplary program MAry T. Mahony, U.S. Department of The Secretary believes that new reflect sound research and current Education, 600 Independence Avenue selection criteria are necessary to carry professional development practices. SW., Room 5609, Switzer Building, out the purposes of the new Academic (3) Potential for adoption. (20) points Washington, DC 20202–6510. Excellence Awards program authority. The extent to which the exemplary Telephone: (202) 205–8728. Individuals The new criteria offer applicants program demonstrates potential for who use a telecommunications device flexibility to design new dissemination adoption by other education service for the deaf (TDD) may call the Federal approaches and ensure integration with providers. Information Relay Service (FIRS) at 1– State and local reform efforts. (4) Management plan. (20 points) 800–877–8339 between 8 a.m. and 8 How well the proposed management p.m., Eastern time, Monday through Note: This notice does not solicit plan will support— Friday. applications. A notice inviting applications (i) National dissemination of the under this competition is published SUPPLEMENTARY INFORMATION: The exemplary program; and elsewhere in this issue of the Federal (ii) Sustain training for teachers, other Academic Excellence Awards program Register. is authorized by Title VII of the educational personnel, parents, and Elementary and Secondary Education Priority other members of the school Act of 1965 as amended by the communities where the exemplary Improving America’s Schools Act of Under 34 CFR 75.105(c)(3) and program will be adopted. 1994 (Pub. L. 103–382, enacted October section 7133 of the Act, the Secretary (5) Evaluation plan. (15 points) The 20, 1994) (the Act). gives an absolute preference to extent to which the evaluation plan Under section 7133 of the Act, this applications that meet the following includes collection of impact data on program promotes the adoption and priority. The Secretary funds under this student learning and documentation of implementation of bilingual education, program only applications that meet this the outcomes of technical assistance at special alternative instruction programs, absolute priority: the adoption sites. and professional development programs (a) Applications that are submitted by (6) Key personnel. (10 points) The that demonstrate promise of assisting local educational agencies, nonprofit extent to which key personnel have the limited English proficient (LEP) organizations, and institutions of higher experience, training, and skills to children and youth to meet challenging education must be nominated by their implement the project successfully. State standards by providing grants to SEA. (This requirement does not apply (7) Coordination of activities. (10 SEAs, local educational agencies, to applications submitted by SEAs.) points) The quality of the applicant’s nonprofit organizations, and institutions This nomination must be included with plan to coordinate activities with of higher education. The new law the application and must contain an regional, State, and local reform efforts represents a substantial change from assurance by the SEA that the to assist LEP students. previous legislation governing the applicant’s program is exemplary and Waiver of Proposed Rulemaking Academic Excellence Awards program. consistent with the State plan for The Secretary is establishing an In accordance with the systemic educational reform; and absolute priority for applications that Administrative Procedure Act (5 U.S.C. are nominated by an applicant’s SEA (b) All the exemplary programs that 553), it is the practice of the Department and that have been implemented are submitted for funding under this of Education to offer interested parties already at one or more sites. The program must have been implemented the opportunity to comment on Secretary has exempted applications already at one or more model sites. proposed priorities and regulations. submitted by SEAs from the nomination Applications must describe how all the However, in order to make timely grant requirement because the Secretary essential elements of the exemplary awards in FY 1995, the Director, in believes that an application submitted programs have been implemented at accordance with section 437(d)(1) of the by an SEA is equivalent to an SEA these model sites. General Education Provisions Act, has Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices 34787 decided to issue this final notice of partnership and a strengthened Program Authority: 20 U.S.C. 7453. funding priority and selection criteria, federalism by relying on processes Dated: June 27, 1995. which will apply only to the FY 1995 developed by State and local Eugene E. Garcia, grant competition. governments for coordination and Director, Office of Bilingual Education and Intergovernmental Review review of proposed Federal financial Minority Languages Affairs. assistance. This program is subject to the (Catalog of Federal Domestic Assistance requirements of Executive Order 12372 In accordance with the order, this Number 84.003G Bilingual Education: and the regulations in 34 CFR part 79. document is intended to provide early Academic Excellence Awards) The objective of the Executive order is notification of the Department’s specific [FR Doc. 95–16203 Filed 6–30–95; 8:45 am] to foster an intergovernmental plans and actions for this program. BILLING CODE 4000±01±M federal register July 3,1995 Monday Purchaser Agreement;Notices Property andModelProspective Prospective PurchasersofContaminated Guidance onAgreementswith Containing ContaminatedAquifersand Policy TowardOwnersofProperty Announcement andPublicationofFinal Protection Agency Environmental Part VI 34789 34790 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices ENVIRONMENTAL PROTECTION groundwater remediation systems, will limited to providing access) in AGENCY not, in the absence of exceptional evaluating the need for and circumstances, constitute an ‘‘omission’’ implementing institutional controls or [FRL±5251±7] by the landowner within the meaning of any other response actions at the site.4 Announcement and Publication of this condition. This policy may not The Agency intends to use its Section Final Policy Toward Owners of apply where the property contains a 104(e) information gathering authority Property Containing Contaminated groundwater well, the existence or under CERCLA, 42 U.S.C. 9604(e), as Aquifers operation of which may affect the appropriate, to verify the presence of the migration of contamination in the conditions under which the Policy SUMMARY: This policy states the agency’s affected aquifer. These cases will would be applied, unless the source of position that, subject to certain require fact-specific analysis. contamination and lack of culpability of conditions, where hazardous substances (B) The person that caused the release the property owner are otherwise clear.5 have come to be located on or in a is not an agent or employee of the Accordingly, failure by an property property solely as the result of landowner, and was not in a direct or owner to provide certified responses to subsurface migration in an aquifer from indirect contractual relationship with EPA’s information requests may, by a source or sources outside the property, the landowner. In cases where the itself, be grounds for EPA to decline to EPA will not take enforcement actions landowner acquired the property, offer a Section 122(g)(1)(B) de minimis under CERCLA, 42 U.S.C. 106 and 107, directly or indirectly, from a person that settlement. against the owner of such property to caused the original release, application II. Discussion require the performance of response of this Policy will require an analysis of actions or the payment of response whether, at the time the property was A. Background costs. acquired, the landowner knew or had Nationwide there are numerous sites FURTHER INFORMATION CONTACT: Ellen reason to know of the disposal of that are the subject of response actions Kandell, Policy and Program Evaluation hazardous substances that gave rise to under CERCLA due to contaminated Division, Office of Site Remediation the contamination in the aquifer. groundwater. Approximately 85% of the Enforcement, 401 M St. S.W., 2273–G, (C) There is no alternative basis for sites on the National Priorities List have Washington, D.C. 20460. Phone: 703– the landowner’s liability for the some degree of groundwater 603–8996, Fax: 703–603–9117 contaminated aquifer, such as liability contamination. Natural subsurface as a generator or transporter under processes, such as infiltration and Dated: June 21, 1995. Section 107(a) (3) or (4) of CERCLA, or groundwater flow, often carry Bruce M. Diamond, liability as an owner by reason of the contaminants relatively large distances Director, Office of Site Remediation existence of a source of contamination from their sources. Thus, the plume of Enforcement. on the landowner’s property other than contaminated groundwater may be POLICY TOWARD OWNERS OF PROPERTY the contamination that migrated in an relatively long and/or extend over a CONTAINING CONTAMINATED AQUIFERS aquifer from a source outside the large area. For this reason, it is I. Statement of Policy property. sometimes difficult to determine the In appropriate circumstances, EPA source or sources of such Based on the Agency’s interpretation may exercise its discretion under contamination. of CERCLA, existing EPA guidance, and Section 122(g)(1)(B) to consider de Any person owning property to which EPA’s Superfund program expertise, it minimis settlements with a landowner contamination has migrated in an is the Agency’s position that where that satisfies the foregoing conditions. aquifer faces potential uncertainty with hazardous substances have come to be Such settlements may be particularly respect to liability as an ‘‘owner’’ under located on or in a property solely as the appropriate where such a landowner Section 107(a)(1) of CERCLA, 42 U.S.C. result of subsurface migration in an has been sued or threatened with 9601(a)(1), even where such owner has aquifer from a source or sources outside contribution suits. EPA’s Guidance on had no participation in the handling of the property, EPA will not take Landowner Liability and Section hazardous substances, and has taken no enforcement action against the owner of 122(g)(1)(B) De Minimis Settlements 2 action to exacerbate the release. such property to require the should be consulted in connection with Some owners of property containing performance of response actions or the this circumstance. contaminated aquifers have experienced payment of response costs.1 Further, In exchange for a covenant not to sue difficulty selling these properties or EPA may consider de minimis from the Agency and statutory obtaining financing for development settlements under Section 122(g)(1)(B) contribution protection under Sections because prospective purchasers and of CERCLA where necessary to protect 113(f)(2) and 122(g)(5) of CERCLA, EPA lenders sometimes view the potential such landowners from contribution may seek consideration from the for CERCLA liability as a significant suits. landowner,3 such as the landowner’s risk. The Agency is concerned that such This Policy is subject to the following full cooperation (including but not unintended effects are having an conditions: adverse impact on property owners and (A) The landowner did not cause, 2 See Guidance on Landowner Liability Under contribute to, or exacerbate the release Section 107(a)(1) of CERCLA, De Minimis 4 The Agency has developed guidance which or threat of release of any hazardous Settlements under Section 122(g)(1)(B) of CERCLA, explains the authorities and procedures by which and Settlements with Prospective Purchasers of EPA obtains access or information. See Entry and substances, through an act or omission. Contaminated Property, OSWER Directive No. Continued Access under CERCLA, OSWER The failure to take affirmative steps to 9835.9, June 6, 1989, 54 FR 34235 (August 18, 1989) Directive #9829.2, June 5, 1987; Guidance on Use mitigate or address groundwater (hereinafter ‘‘Guidance on Landowner Liability and and Enforcement of CERCLA Information Requests contamination, such as conducting Section 122(g)(1)(B) De Minimis Settlements’’). and Administrative Subpoenas, OSWER Directive 3 A more complete discussion of the appropriate 9834.4–A, August 25, 1988. groundwater investigations or installing consideration that may be sought under Section 5 See Guidance on Landowner Liability and 122(g)(1)(B) settlements is contained in Section Section 122(g)(1)(B) De Minimis Settlements, supra 1 By this Policy, EPA does not intend to IV.B.3.a. of Guidance on Landowner Liability and note 2, for an outline of the types of information compromise or affect any right it possesses to seek Section 122(g)(1)(B) De Minimis Settlements, supra which should be provided by the landowner to access pursuant to Section 104(e) of CERCLA. note 2. support a request for a de minimis settlement. Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices 34791 on the ability of communities to develop other than an employee or agent of the limited to, the impact of the well and/ or redevelop property. defendant, or than one whose act or or the owner’s use of it on the spread EPA is issuing this policy to address omission occurs in connection with a or containment of the contamination in the concerns raised by owners of contractual relationship existing the aquifer. Accordingly, this Policy property to which contamination has directly or indirectly with the defendant does not apply in the case where the migrated in an aquifer, as well as ** *’’ In order to invoke this defense, property contains a groundwater well, lenders and prospective purchasers of the defendant must additionally the existence or operation of which may such property. The intent of this policy establish, by a preponderance of the affect the migration of contamination in is to lower the barriers to transfer of evidence, that ‘‘(a) he exercised due care the affected aquifer. In such a case, such property by reducing uncertainty with respect to the hazardous substance however, the landowner may choose to regarding the possibility that EPA or concerned taking into consideration the assert a Section 107(b)(3) defense, third parties may take actions against characteristics of such hazardous depending on the case specific facts and these landowners. substance, in light of all relevant facts circumstances, and EPA may still B. Existing Agency Policy and circumstances, and (b) he took exercise its discretion to enter into a precautions against foreseeable acts or Section 122(g)(1)(B) de minimis This policy is related to other omissions of any such third party and settlement. guidance that EPA has issued. The the consequences that could foreseeably b. Contractual Relationship. The Agency has previously published result from such acts or omissions.’’ 42 Section 107(b)(3) defense is not guidance on issues of landowner U.S.C. § 9607(b)(3). liability and de minimis landowner a. Due Care and Precautions. An available if the act or omission causing settlements.6 Moreover, in other EPA owner of property may typically be the release occurred in connection with policies, EPA has asserted its unable to detect by reasonable means a direct or indirect contractual enforcement discretion in determining when or whether hazardous substances relationship between the defendant and which parties not to pursue.7 have come to be located beneath the the third party that caused the release. Under Section 101(35)(A) of CERCLA, a C. Basis for the Policy property due to subsurface migration in an aquifer from a source or sources ‘‘contractual relationship’’ for this 1. The Section 107(b)(3) Defense outside the property. Based on EPA’s purpose includes any land contract, deed, or instrument transferring title to Section 107(a)(1) of CERCLA imposes interpretation of CERCLA, it is the or possession of real property, except in liability on an owner or operator of a Agency’s position that where the release limited specified circumstances. Thus, ‘‘facility’’ from which there is a release or threat of release was caused solely by application of the defense in the or threatened release of a hazardous an unrelated third party at a location off circumstances addressed by this Policy substance.8 A ‘‘facility’’ is defined under the landowner’s property, the requires an examination of whether the Section 101(9) as including any ‘‘area landowner is not required to take any landowner acquired the property, where a hazardous substance has * ** affirmative steps to investigate or come to be located.’’ The standard of prevent the activities that gave rise to directly or indirectly, from a person that liability imposed under Section 107 is the original release in order to satisfy caused the original release. An example strict, and the government need not the ‘‘due care’’ or ‘‘precautions’’ of this scenario would be where the prove that an owner contributed to the elements of the Section 107(b)(3) property at issue was originally part of release in any manner to establish a defense. a larger parcel owned by the person that prima facie case.9 However, Section Not only is groundwater caused the release. If the larger parcel 107(b)(3) provides an affirmative contamination difficult to detect, but was subsequently subdivided, and the defense to liability where the release or once identified, it is often difficult to subdivided property was eventually threat of release was caused solely by mitigate or address without extensive sold to the current landowner, there ‘‘an act or omission of a third party studies and pump and treat may be a direct or indirect ‘‘contractual remediation. Based on EPA’s technical relationship’’ between the person that 6 See Guidance on Landowner Liability and experience and the Agency’s caused the release and the current Section 122(g)(1)(B) De Minimis Settlements, supra interpretation of CERCLA, EPA has landowner. note 2. This guidance analyzes the language in concluded that the failure by such an Even if the landowner acquired the Sections 107(b)(3) and 122(g)(1)(B) of CERCLA. owner to take affirmative actions, such 7 See, e.g., Policy Towards Owners of Residential property, directly or indirectly, from a Property at Superfund Sites, OSWER Directive as conducting groundwater person that caused the original release, #9834.6, (July 3, 1991) (hereinafter ‘‘Residential investigations or installing groundwater this may or may not constitute a Property Owners Policy’’) (stating Agency policy remediation systems, is not, in the ‘‘contractual relationship’’ within the not to take enforcement actions against an owner of absence of exceptional circumstances, a residential property unless homeowner’s activities meaning of Section 101(35)(A), led to a release); National Priorities List for failure to exercise ‘‘due care’’ or ‘‘take precluding the availability of the Uncontrolled Hazardous Waste Sites, 60 FR 20330, precautions’’ within the meaning of Section 107(b)(3) defense. Land 20333 (April 25, 1995). In this notice the Section 107(b)(3). contracts or instruments transferring Residential Property Owners Policy was applied to The latter conclusion does not ‘‘* * * residential property owners whose property title are not considered ‘‘contractual is located above a groundwater plume that is necessarily apply in the case where the relationships’’ if the land was acquired proposed to or on the NPL, where the residential property contains a groundwater well after the disposal or placement of the property owner did not contribute to the and the existence or operation of this contamination of the site.’’ See also, Interim Policy hazardous substances on, in or at the well may affect the migration of facility under Section 101(35)(A) and on CERCLA Settlements Involving Municipalities or contamination in the affected aquifer. In Municipal Waste, OSWER Directive No. 9834.13, the landowner establishes, pursuant to (December 6, 1989). such a case, application of the ‘‘due Section 101(35)(A)(i), that, at the time of 8 EPA has taken the position that lessees may be care’’ and ‘‘precautions’’ tests of Section the acquisition, the landowner ‘‘did not ‘‘owners’’ for purposes of liability. See Guidance on 107(b)(3) and evaluation of the know and had no reason to know that Landowner Liability and Section 122(g)(1)(B) De appropriateness of a de minimis Minimis Settlements, supra note 2, footnote 10. any hazardous substance which is the settlement under Section 122(g)(1)(B) 9 See, e.g., U.S. v. R.W. Meyer, Inc., 889 F.2d 1497, subject of the release * * * was 1507 (6th Cir. 1989)(‘‘CERCLA contemplates strict require a fact-specific analysis of the liability for landowners’’). circumstances, including, but not 34792 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices disposed of on, in, or at the facility.’’ 10 Agency may take action at variance with FOR FURTHER INFORMATION CONTACT: Thus, in the subdivision scenario this Policy. Additional information on the described above, the current landowner For further information concerning prospective purchaser policy is might still qualify for the Section this Policy, please contact Ellen Kandell available from Lori Boughton ((703) 107(b)(3) defense if he or she did not in the Office of Site Remediation 603–8959) or Elisabeth Freed ((703) know or have reason to know that the Enforcement at (703) 603–8996. 603–8936) in the Office of Site original landowner had disposed of [FR Doc. 95–16283 Filed 6–30–95; 8:45 am] Remediation Enforcement, 402 M St., hazardous substances elsewhere on the S.W., 2273–G, Washington, D.C. 20460. BILLING CODE 6560±50±P larger parcel. Information regarding the model 2. Settlements Under Section prospective purchaser agreement and site specific prospective purchaser 122(g)(1)(B) ENVIRONMENTAL PROTECTION inquiries should be directed to Helen AGENCY To address concerns that strict Keplinger ((202) 260–7116) in the Office liability under Section 107(a)(1) could [FRL±5252±1] of Site Remediation Enforcement, 401 M cause inequitable results with respect to St. S.W., 2272, Washington, D.C. 20460. landowners who had not been involved Announcement and Publication of in hazardous substance disposal Guidance on Agreements With Dated: June 21, 1995. activities, Congress authorized the Prospective Purchasers of Bruce M. Diamond, Agency to enter into de minimis Contaminated Property and Model Director, Office of Site Remediation settlements with certain property Prospective Purchaser Agreement Enforcement. owners under Section 122(g)(1)(B) of Memorandum SUMMARY: The new prospective CERCLA, 42 U.S.C. 9622 (g)(1)(B). purchaser guidance supersedes previous Subject: Guidance on Agreements with Under this Section, when the Agency Agency policy on when the Agency will Prospective Purchasers of Contaminated determines that a settlement is Property provide a covenant not to sue a ‘‘practicable and in the public interest,’’ prospective purchaser of contaminated From: Steven A. Herman, Assistant it ‘‘shall as promptly as possible reach Administrator, Office of Enforcement property under CERCLA. Previous a final settlement’’ if the settlement and Compliance Assurance guidance, issued in June 1989, entitled ‘‘involves only a minor portion of the To: Regional Administrators, Regions I–X; ‘‘Guidance on Landowner Liability response costs at the facility concerned’’ Regional Counsel, Region I–X; Waste under Section 107(a) of CERCLA, De and the Agency determines that the Management Division Directors, Regions Minimis Settlements under Section potentially responsible party: ‘‘(i) is an I–X 122(g)(1)(B) of CERCLA, and owner of the real property on or in This memorandum transmits the guidance Settlements with Prospective Purchasers which the facility is located; (ii) did not and model agreement concerning prospective of Contaminated Property’’ (OSWER purchasers of contaminated Superfund conduct or permit the generation, Directive No. 9835.9 and 54 FR 34235 property. The attached guidance supersedes transportation, storage, treatment or (Aug. 18, 1989), had two separate parts, the Agency policy issued in June 1989, disposal of any hazardous substance at including a model administrative order entitled ‘‘Guidance on Landowner Liability the facility; and (iii) did not contribute and a model consent decree for de under Section 107(a) of CERCLA, De Minimis to the release or threat of release * ** Settlements under Section 122(g)(1)(B) of minimis landowner settlements. The through any act or omission.’’ 11 CERCLA, and Settlements with Prospective The requirements which must be first part of the previous guidance, Purchasers of Contaminated Property’’ satisfied in order for the Agency to landowner liability/the innocent (OSWER Directive No. 9835.9 and 54 FR consider a settlement with landowners landowner defense and the Agency’s 34235 (Aug. 18, 1989). The 1989 guidance under the de minimis settlement use of de minimis landowner limited the use of these covenants to settlements including model agreements situations where the Agency planned to take provisions of Section 122(g)(1)(B) are an enforcement action, and where the substantially the same as the elements to use in such settlements remains Agency Policy. The section of the Agency received a substantial benefit for which must be proved at trial in order cleanup of the site by the purchaser, not for a landowner to establish a third guidance dealing with prospective otherwise available. In an effort to promote party defense under Section 107(b)(3), purchasers is changed by new guidance cleanup for the beneficial reuse and as described above.12 approved May 24, 1995. development of these properties, EPA is In an effort to promote cleanup for the expanding the circumstances under which it D. Use of the Policy beneficial reuse and development of will consider entering into prospective This Policy does not constitute contaminated properties, EPA is purchaser agreements. expanding the criteria by which it will Additional information on this policy is rulemaking by the Agency and is not available from Lori Boughton ((703) 603– intended and cannot be relied on to consider entering into prospective purchaser agreements. EPA will 8959) or Elisabeth Freed ((703) 603–8936) in create a right or a benefit, substantive or the Office of Site Remediation Enforcement. procedural, enforceable at law or in consider such agreements if the Information regarding the model agreement equity, by any person. Furthermore, the agreement results in either (1) a and site specific inquiries should be directed substantial direct benefit to the Agency to Helen Keplinger ((202) 260–7116) in the 10 Section 101(35)(A) also excludes from the in terms of cleanup or funds for cleanup Office of Site Remediation Enforcement. definition of ‘‘contractual relationship’’ certain or (2) a substantial indirect benefit to GUIDANCE ON SETTLEMENTS WITH acquisitions of property by government entities and the community coupled with a lesser certain acquisitions by inheritance or bequest, so PROSPECTIVE PURCHASERS OF long as the other requirements of Section 101(35)(A) direct benefit to the Agency. CONTAMINATED PROPERTY Additionally, the new guidance should are met. See 42 U.S.C. 101(35)(A) (ii) and (iii). I. Purpose 11 A detailed discussion of each of these enable the Agency to enter into more components of Section 122(g)(1)(B) and guidance prospective purchaser agreements by This document supersedes EPA’s on structuring settlements under this Section are expanding the universe of eligible sites. policy on agreements with prospective provided in the Guidance on Landowner Liability and Section 122(g)(1)(B) De Minimis Settlements, A model prospective purchaser purchasers of contaminated property as supra note 2. agreement has also been developed and set forth in the June 6, 1989, policy 12 Id. is part of the new guidance. document entitled ‘‘Guidance on Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices 34793 Landowner Liability under Section contamination, the Agency has received 1. An EPA Action at the Facility Has 107(a) of CERCLA, De Minimis numerous requests for covenants not to Been Taken, Is Ongoing, or Is Settlements under Section 122(g)(1)(B) sue from prospective purchasers of Anticipated To Be Undertaken by the of CERCLA, and Settlements with contaminated property.2 It is the Agency Prospective Purchasers of Contaminated Agency’s policy not to become involved 1 This criterion is meant to ensure that Property’’ (‘‘the 1989 guidance’’). This in private real estate transactions. EPA does not become unnecessarily revised guidance reflects both Agency However, an agreement with a covenant involved in purely private real estate experience in implementing the 1989 not to sue a prospective purchaser might transactions or expend its limited guidance and changes to that guidance appropriately be considered if it will resources in negotiations which are that EPA believes are needed. have substantial benefits for the unlikely to produce a sufficient benefit During the past several years, EPA has government and if the prospective to the public. EPA, however, recognizes entered into a number of prospective 3 purchaser satisfies other criteria. the potential gains in terms of clean up purchaser agreements to enable The Agency recognizes that entering and public benefit that may be realized purchasers to buy contaminated into an agreement containing a covenant property for cleanup, redevelopment or with broader application of prospective not to sue with a prospective purchaser purchaser agreements. Therefore, this reuse. The 1989 guidance required EPA of contaminated property, given to receive substantial benefits in terms criterion has been expanded beyond the appropriate safeguards, may result in an limitation in the 1989 guidance to sites of work or reimbursement of response environmental benefit through a costs that otherwise would not have where enforcement action is payment for cleanup or a commitment anticipated, to now include sites where been available. While some agreements to perform a response action. EPA’s required performance of cleanup work federal involvement has occurred or is experience has shown that prospective expected to occur. on contaminated parcels prior to their purchaser agreements have also redevelopment, others provided Accordingly, when requested, the benefitted the community where the site Agency may consider entering into covenants not to sue for purchase of is located by encouraging the reuse or uncontaminated portions of larger prospective purchaser agreements at redevelopment of property at which the sites listed or proposed for listing on the Superfund sites. EPA’s experience has fear of Superfund liability may have demonstrated that prospective National Priorities List (NPL), or sites been a barrier. The Agency believes that where EPA has undertaken, is purchaser agreements might be both it is necessary to provide greater appropriate and beneficial in more undertaking, or plans to conduct a flexibility in offering covenants not to response action. If the Agency receives circumstances than contemplated by the sue. Through this guidance, the Agency 1989 guidance. The Agency now a request for a prospective purchaser adopts a policy which expands the agreement at a site where EPA has not believes that it may be appropriate to circumstances under which prospective enter into agreements resulting in yet become involved, Regions should purchaser agreements may be first evaluate the realistic possibility somewhat reduced benefits to the considered. Agency through cleanup or response that a prospective purchaser may incur costs or in benefits that also may be III. Criteria for Entering Into Covenants Superfund liability when determining available from other parties. These Not To Sue With Prospective the appropriateness of entering into a agreements in turn should provide Purchasers of Contaminated Property prospective purchaser agreement. This substantial benefits to the community The following criteria should be met evaluation should clearly show that through the creation or retention of jobs, before the Agency considers entering EPA’s covenant not to sue is essential to productive use of abandoned property, into agreements with prospective remove Superfund liability barriers and or revitalization of blighted areas. purchasers. These criteria are intended allow the private party cleanup and While this new guidance restates to reflect EPA’s commitment to productive use, reuse, or redevelopment much of the 1989 guidance, it revises removing the barriers imposed by of the site. The Agency should consider the two of the original criteria used to potential CERCLA liability while following factors when evaluating the determine whether a prospective ensuring protection of human health appropriateness of entering into an purchaser agreement is appropriate. The and the environment. The Agency may agreement with a prospective purchaser revised criteria allow the Agency greater also reject any offer if it determines that at any site: flexibility to consider agreements with entering into an agreement with a a. Whether information regarding covenants not to sue to encourage reuse prospective purchaser is not sufficiently releases or potential releases of or development of contaminated in the public interest to warrant hazardous substances at the site property that would have substantial expending the resources necessary to indicates that there is a substantial benefits to the community (e.g., through reach an agreement. Regions should likelihood of federal response or job creation or productive use of consider the following criteria when enforcement action at the site that abandoned property), but also would be evaluating prospective purchaser would justify EPA’s involvement in safe, consistent with site remediation, agreements. and have direct benefits to the Agency. entering into the prospective purchaser agreement. EPA should consider A ‘‘model’’ prospective purchaser 2 Since settlements with typical prospective agreement, which should be used as a purchasers (i.e., those who do not currently own the information that is available through starting point for negotiation of property, are not otherwise involved with the site, EPA’s data systems, such as the and are, therefore, not yet liable under Section 107) agreements, is attached. Comprehensive Environmental will not be reached under Section 122, the Response, Compensation, and Liability procedures and restrictions in that section, such as II. Statement of Policy those relating to covenants not to sue, will not Information System (‘‘CERCLIS’’), a Because of the clear liability which apply. state agency, or through submissions attaches to landowners who acquire 3 This guidance is also applicable to persons from the prospective purchaser, such as seeking prospectively to operate or lease the results of an environmental audit or property with knowledge of contaminated property. Agreements with prospective lessees/operators will be evaluated site assessment. 1 OSWER Directive No. 9835.9 and 54 FR 34235 using the criteria set forth in this guidance, and will b. Whether other available avenues (Aug. 18, 1989). require the current owner’s signature. (e.g., private indemnification 34794 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices agreements) may exist to sufficiently measurable to enable EPA to evaluate restrictions in the agreement which alleviate the threat of Superfund them effectively and to ensure they are prohibit those operations or portions of liability at the site without the need for substantial. Examples of indirect those operations which are likely to EPA involvement. In most cases EPA benefits to the community include aggravate or contribute to the existing will decline to consider an agreement at measures that serve to reduce contamination or interfere with the a site that is currently undergoing substantially the risk posed by the site, remedy. cleanup through a state program, since creation or retention of jobs, The Agency will determine on a case- future EPA activity at such a site is development of abandoned or blighted by-case basis whether the available extremely unlikely. property, creation of conservation or information is sufficient for purposes of Prospective purchaser agreements recreation areas, or provision of this evaluation. One key factor to be generally will not be appropriate at sites community services (such as improved considered is whether the remedial screened out using the above criteria. public transportation and investigation or other site evaluation has For example, sites designated by EPA as infrastructure.) Examples of reduced but been completed and the extent of No Further Response Action Planned measurable benefits to EPA include information which has been generated (NFRAP) and removed from CERCLIS partial cleanup or compensation. in that process. EPA may not enter into will rarely be deemed appropriate for a While this policy is intended to an agreement if the available prospective purchaser agreement. Even provide greater flexibility in providing information is insufficient for purposes at such sites, however, EPA may, in prospective purchaser agreements, EPA of evaluating the impact of the proposed extremely unusual circumstances, is not reducing its commitment to activities. consider a prospective purchaser environmental protection or 4. The Continued Operation or New agreement if it is in the public interest environmental justice. The Agency and the agreement is essential to intends to carefully weigh the public Development of the Property Will Not achieve a very significant public benefit. interest considerations of creating jobs Pose Health Risks to the Community in the inner city, where older and Those Persons Likely To Be Present 2. The Agency Should Receive a contaminated industrial properties are at the Site Substantial Benefit Either in the Form of often located, against the possibility of EPA believes it is important to a Direct Benefit for Cleanup, or as an further environmental degradation of consider the environmental Indirect Public Benefit in Combination industrial property in mixed industrial/ implications of site operations on the With a Reduced Direct Benefit to EPA residential areas. EPA is committed to surrounding community and to those A cornerstone of the Agency’s working with purchasers of such likely to be present or have access to the evaluation process under this policy is property, to the extent possible, to site. the measurement of environmental ensure proper cleanup and promote 5. The Prospective Purchaser Is benefit, in the form of direct funding, or responsible land use. cleanup, or a combination of reduced Financially Viable direct funding or cleanup and an 3. The Continued Operation of the A settling party, including a indirect public benefit. The Agency Facility or New Site Development, With prospective purchaser of contaminated believes that its past practice of limiting the Exercise of Due Care, Will Not property, should demonstrate that it is prospective purchaser agreements to Aggravate or Contribute to the Existing financially viable and capable of those situations where substantial Contamination or Interfere With EPA’s fulfilling any obligation under the benefit was measured only in terms of Response Action agreement. In appropriate cost reimbursement or work performed Information which should be circumstances, EPA may structure may have decreased the effectiveness of considered by the Agency to evaluate payment or work to be performed to this tool. the effect of new site development or avoid or minimize an undue financial This guidance encourages a more continued operation of the facility could burden on the purchaser. balanced evaluation of both the direct include site assessment data and the and indirect benefits of a prospective Engineering Evaluation Cost Analysis IV. Consideration purchaser agreement to the government (EE/CA) or remedial investigation/ As a matter of law, it is necessary for and the public. EPA recognizes that feasibility study (RI/FS), if available, EPA to obtain adequate consideration indirect benefits to a community is an and all other information relevant to the when entering into a prospective important consideration and may justify condition of the facility. If the purchaser agreement. In determining the commitment of the Agency’s prospective purchaser intends to what constitutes adequate resources necessary to negotiate a continue the operations of an existing consideration, Regions should consider prospective purchaser agreement, even facility, the prospective purchaser a number of factors. Initially, Regions where there are reduced direct benefits should submit information sufficient to should examine the amount of past and to the Agency in terms of cleanup and allow the Agency to determine whether future response costs expected to be cost reimbursement. the continued operations are likely to incurred at the site, whether there are Therefore, EPA may continue to aggravate or contribute to the existing other potentially responsible parties consider entering into prospective contamination or interfere with the who can perform the work or reimburse purchaser agreements where there is a remedy. If the prospective purchaser EPA’s costs, and whether there is likely substantial direct benefit to EPA in plans to undertake new operations or to be a shortfall in recovery of costs at terms of a commitment to conduct the development of the property, the site. Regions should then consider cleanup or to reimburse EPA’s cost of comprehensive information regarding the purchase price to be paid by the cleanup. Furthermore, Regions may now these plans should be provided to EPA. prospective purchaser, the market value consider negotiating prospective If the planned activities of the of the property, the value of any lien on purchaser agreements that will result in prospective purchaser are likely to the property under Section 107(1) of substantial indirect benefits to the aggravate or contribute to the existing CERCLA, whether the purchaser is community as long as there is still some contamination or generate new paying a reduced price due to the direct benefit to the Agency. Both direct contamination, EPA generally will not condition of the property, and if so, the and indirect benefits should be enter into an agreement, or will include likely increase in the value of the Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices 34795 property attributable to the cleanup (e.g. relatively short deadlines. In these 1980, as amended (‘‘CERCLA’’), 42 compare purchase price or market price circumstances, Regions should allow U.S.C. § 9601, et seq. [If the state is a with the estimated value of the property sufficient time for appropriate approvals party, insert ‘‘The State of lllll, following completion of the response and public comment prior to the enters into this Agreement pursuant to action). Finally, Regions should deadline. [cite relevant state authority.]’’ and consider the size and nature of the make appropriate reference to state with VI. Process prospective purchaser and the proposed respect to affected provisions, including use of the site (e.g. whether the A mandatory consultation with the payment or work to be performed]. purchaser is a large commercial or Director of the Regional Support [Provide introductory information, industrial venture, a small business, a Division, Office of Site Remediation consistent with Definitions and non-profit or community-based Enforcement, is required for any Statement of Facts, about the party activity). The analysis of any benefits agreement entered with a prospective purchasing the contaminated property received by the Agency also should purchaser of contaminated property. including, name (‘‘Settling contemplate any projected ‘‘windfall’’ Any prospective purchaser agreement Respondent’’), address, corporate status profit to the purchaser when the can only be entered into with the if applicable and include proposed use government has unreimbursed response express concurrence of the Assistant of the property by prospective costs, and whether it is appropriate to Attorney General. It is important that purchaser. Provide name, location and include in the agreement some Regions involve EPA Headquarters and description of Site.] provision to recoup such costs. This the Department of Justice at an early The Parties agree to undertake all analysis should be coupled with an point in the process, and keep them actions required by the terms and examination of any indirect benefit that involved throughout the negotiations. In conditions of this Agreement. The the Agency may receive (e.g., particular, any draft settlement purpose of this Agreement is to settle demolition of structures, document should be forwarded to and resolve, subject to reservations and implementation of institutional Headquarters and the Department of limitations contained in Sections VII, controls) in determining whether a Justice prior to being sent to a VIII, IX, and X [If this Agreement prospective purchaser agreement prospective purchaser. When seeking contains a separate section for Settling provides a substantial benefit. approval for a settlement, it is important Respondent’s reservations, add section V. Public Participation to explain the consideration for the number], the potential liability of the covenant not to sue, whether direct or Settling Respondent for the Existing In light of EPA’s new policy of a combination of direct and indirect Contamination at the Property which accepting indirect public benefit as benefits, how it was determined, and would otherwise result from Settling partial consideration, and the fact that why the Region considers it to be Respondent becoming the owner of the the prospective purchaser agreements adequate. property. will provide contribution protection to This guidance and any internal The Parties agree that the Settling the purchaser, the surrounding procedures adopted for its Respondent’s entry into this Agreement, community and other members of the implementation are intended solely as and the actions undertaken by the public should be afforded opportunity guidance for employees of the U.S. Settling Respondent in accordance with to comment on the settlement, wherever Environmental Protection Agency and the Agreement, do not constitute an feasible. Because settlements with creates no substantive rights in any admission of any liability by the Settling prospective purchasers are not expressly persons. Case specific inquiry should be Respondent. governed by CERCLA Section 122, there directed to the Regional Support The resolution of this potential is no legal requirement for public notice Division. Additional information on this liability, in exchange for provision by and comment. Whenever practicable, policy is available from Lori Boughton the Settling Respondent to EPA [and the however, Regions should publish ((703) 603–8959), Elisabeth Freed ((703) state] of a substantial benefit, is in the notices in the Federal Register to ensure 603–8936) in the Policy and Program public interest. adequate notification of the agreement Evaluation Division, and Helen II. Definitions to all interested parties. Notice of a Keplinger ((202) 260–7116) in the proposed settlement, in the Federal Regional Support Division. Unless otherwise expressly provided Register alone, however, will rarely be Region lll herein, terms used in this Agreement sufficient to appropriately involve a which are defined in CERCLA or in community in the process concerning In the matter of: [name] [Docket Number] regulations promulgated under CERCLA under the authority of the Comprehensive an agreement with a prospective shall have the meaning assigned to them purchaser. Particularly in urban Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. 9601, et seq., in CERCLA or in such regulations, communities and at facilities where as amended. [state law, if appropriate] including any amendments thereto. environmental justice is an issue, Agreement and Covenant Not To Sue [Insert 1. ‘‘EPA’’ shall mean the United States Regions should provide sufficient Settling Respondent’s Name] Environmental Protection Agency and opportunities for public information any successor departments or agencies I. Introduction dissemination and facilitate public of the United States. input. Seeking cooperation with state This Agreement and Covenant Not to 2. ‘‘Existing Contamination’’ shall and local government may also facilitate Sue (‘‘Agreement’’) is made and entered mean any hazardous substances, public awareness and involvement. into by and between the United States pollutants or contaminants, present or Additionally, Regions should make a Environmental Protection Agency existing on or under the Site as of the case-by-case determination of the need (‘‘EPA’’) [state of lll] and lllll effective date of this Agreement. and level of additional measures to [insert name of Settling Respondent] 3. ‘‘Parties’’ shall mean EPA, [State of ensure meaningful community (collectively the ‘‘Parties’’). lllll], and the Settling involvement with respect to the EPA enters into this Agreement Respondent. agreement. Because of business pursuant to the Comprehensive 4. ‘‘Property’’ shall mean that portion considerations some prospective Environmental Response, of the Site which is described in Exhibit purchaser agreements may be subject to Compensation, and Liability Act of 1 of this Agreement. 34796 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices 5. ‘‘Settling Respondent’’ shall mean and Submissions) and to EPA Region 14. The Settling Respondent shall lllll. lll Financial Management Officer ensure that assignees, successors in 6. ‘‘Site’’ shall mean the [Superfund] [insert address]. interest, lessees, and sublessees, of the Site, encompassing approximately 11. Amounts due and owing pursuant Property shall provide the same access lllll acres, located at [address or to the terms of this Agreement but not and cooperation. The Settling description of location] in [name of city, paid in accordance with the terms of Respondent shall ensure that a copy of county, and State], and depicted this Agreement shall accrue interest at this Agreement is provided to any generally on the map attached as Exhibit the rate established pursuant to Section current lessee or sublessee on the 2. The Site shall include the Property, 107(a) of CERCLA, 42 U.S.C. 9607(a), Property as of the effective date of this and all areas to which hazardous compounded on an annual basis. Agreement and shall ensure that any substances and/or pollutants or [lll.] [Work To Be Performed] subsequent leases, subleases, contaminants, have come to be located [Include this section and other assignments or transfers of the Property [provide a more specific definition of appropriate provisions relating to or an interest in the Property are the Site where possible; may also wish performance of the work, such as consistent with this Section, and to include within Site description financial assurance, agency approvals, Section XI (Parties Bound/Transfer of structures, USTs, etc]. reporting, etc., where work to be Covenant), of the Agreement [and where 7. ‘‘United States’’ shall mean the appropriate, Section lll (Work to be United States of America, its performed is the consideration for the Agreement. Performed)]. departments, agencies, and lll instrumentalities. . Statement of Work attached as VI. Due Care/Cooperation Exhibit 3.] 15. The Settling Respondent shall III. Statement of Facts V. Access/Notice to Successors in exercise due care at the Site with 8. [Include only those facts relating to Interest respect to the Existing Contamination the Site that are relevant to the covenant and shall comply with all applicable being provided the prospective 12. Commencing upon the date that it local, State, and federal laws and purchaser. Avoid adding information acquires title to the Property, Settling regulations. The Settling Respondent that relates only to actions or parties Respondent agrees to provide to EPA recognizes that the implementation of that are outside of this Agreement.] [and the state] its authorized officers, response actions at the Site may 9. The Settling Respondent employees, representatives, and all interfere with the Settling Respondent’s represents, and for the purposes of this other persons performing response use of the Property, and may require Agreement EPA [and the state] relies on actions under EPA [or state] oversight, closure of its operations or a part those representations, that Settling an irrevocable right of access at all thereof. The Settling Respondent agrees Respondent’s involvement with the reasonable times to the Property and to to cooperate fully with EPA in the Property and the Site has been limited any other property to which access is implementation of response actions at to the following: [Provide facts of any required for the implementation of the Site and further agrees not to involvement by Settling Respondent response actions at the Site, to the interfere with such response actions. with the Site, for example performing an extent access to such other property is EPA agrees, consistent with its environmental audit, or if Settling controlled by the Settling Respondent, responsibilities under applicable law, to Respondent has had no involvement for the purposes of performing and use reasonable efforts to minimize any with the Site so state.]. overseeing response actions at the Site interference with the Settling under federal [and state] law. EPA Respondent’s operations by such entry IV. Payment agrees to provide reasonable notice to and response. In the event the Settling 10. In consideration of and in the Settling Respondent of the timing of Respondent becomes aware of any exchange for the United States’ response actions to be undertaken at the action or occurrence which causes or Covenant Not to Sue in Section VIII Property. Notwithstanding any threatens a release of hazardous herein [and Removal of Lien in Section provision of this Agreement, EPA substances, pollutants or contaminants XXI herein if that is part of the retains all of its authorities and rights, at or from the Site that constitutes an consideration for the agreement], including enforcement authorities emergency situation or may present an Settling Respondent agrees to pay to related thereto, under CERCLA, the immediate threat to public health or EPA the sum of $lllll, within Solid Waste Disposal Act, as amended welfare or the environment, Settling lll days of the effective date of this by the Resource Conservation and Respondent shall immediately take all Agreement. [A separate section should Recovery Act, 42 U.S.C. 6901, (‘‘RCRA’’) appropriate action to prevent, abate, or be added if the consideration is work to et seq., and any other applicable statute minimize such release or threat of be performed.] The Settling Respondent or regulation, including any release, and shall, in addition to shall make all payments required by this amendments thereto. complying with any applicable Agreement in the form of a certified 13. Within 30 days after the effective notification requirements under Section check or checks made payable to ‘‘EPA date of this Agreement, the Settling 103 of CERCLA, 42 U.S.C. 9603, or any Hazardous Substance Superfund,’’ Respondent shall record a certified copy other law, immediately notify EPA of referencing the EPA Region, EPA Docket of this Agreement with the Recorder’s such release or threatened release. number, and Site/Spill ID#llll Office [or Registry of Deeds or other [insert 4-digit no.; first 2 numbers appropriate office], lllll County, VII. Certification represent Region, second 2 numbers are State of lllll. Thereafter, each 16. By entering into this agreement, Region’s Site/Spill ID no.], [DOJ case deed, title, or other instrument the Settling Respondent certifies that to number lll, if applicable] and name conveying an interest in the Property the best of its knowledge and belief it and address of Settling Respondent. shall contain a notice stating that the has fully and accurately disclosed to [insert Regional Superfund Lockbox Property is subject to this Agreement. A EPA [and the state] all information address where payment should be sent]. copy of these documents should be sent known to Settling Respondent and all Notice of payment shall be sent to those to the persons listed in Section XV information in the possession or control persons listed in Section XV (Notices (Notices and Submissions). of its officers, directors, employees, Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices 34797 contractors and agents which relates in (Payment of Costs, [and, if appropriate, employees, or representatives with any way to any Existing Contamination Section lll (Work to be Performed)]; respect to the Site or this Agreement, or any past or potential future release of (b) any liability resulting from past or including but not limited to, any direct hazardous substances, pollutants or future releases of hazardous substances, or indirect claims for reimbursement contaminants at or from the Site and to pollutants or contaminants, at or from from the Hazardous Substance its qualification for this Agreement. The the Site caused or contributed to by Superfund established pursuant to the Settling Respondent also certifies that to Settling Respondent, its successors, Internal Revenue Code, 26 U.S.C. the best of its knowledge and belief it assignees, lessees or sublessees; § 9507, through CERCLA Sections has not caused or contributed to a (c) any liability resulting from 106(b)(2), 111, 112, 113, or any other release or threat of release of hazardous exacerbation by Settling Respondent, its provision of law, any claim against the substances or pollutants or successors, assignees, lessees or United States, including any contaminants at the Site. If the United sublessees, of Existing Contamination; department, agency or instrumentality States [and the state] determines that (d) any liability resulting from the of the United States under CERCLA information provided by Settling release or threat of release of hazardous Sections 107 or 113 related to the Site, Respondent is not materially accurate substances, pollutants or contaminants, or any claims arising out of response and complete, the Agreement, within at the Site after the effective date of this activities at the Site, including claims the sole discretion of the United States, Agreement, not within the definition of based on EPA’s oversight of such shall be null and void and the United Existing Contamination; activities or approval of plans for such States [and the state] reserves all rights (e) criminal liability; activities. it [they] may have. (f) liability for damages for injury to, 23. The Settling Respondent reserves, destruction of, or loss of natural and this Agreement is without prejudice VIII. United States’ Covenant Not To resources, and for the costs of any to, actions against the United States Sue 4 natural resource damage assessment based on negligent actions taken 17. Subject to the Reservation of incurred by federal agencies other than directly by the United States, not Rights in Section IX of this Agreement, EPA; and including oversight or approval of the (g) liability for violations of local, upon payment of the amount specified Settling Respondent’s plans or State or federal law or regulations. activities, that are brought pursuant to in Section IV (Payment), of this 19. With respect to any claim or cause Agreement [if consideration for any statute other than CERCLA or RCRA of action asserted by the United States and for which the waiver of sovereign Agreement is work to be performed, [or the state], the Settling Respondent insert, as appropriate, ‘‘and upon immunity is found in a statute other shall bear the burden of proving that the than CERCLA or RCRA. Nothing herein completion of the work specified in claim or cause of action, or any part Section lll (Work to Be Performed) shall be deemed to constitute thereof, is attributable solely to Existing preauthorization of a claim within the to the satisfaction of EPA’’], the United Contamination. States [and the state] covenants not to meaning of Section 111 of CERCLA, 42 20. Nothing in this Agreement is U.S.C. 9611, or 40 CFR 300.700(d). sue or take any other civil or intended as a release or covenant not to administrative action against Settling sue for any claim or cause of action, XI. Parties Bound/Transfer of Covenant Respondent for any and all civil liability administrative or judicial, civil or 24. This Agreement shall apply to and for injunctive relief or reimbursement of criminal, past or future, in law or in be binding upon the United States, [and response costs pursuant to Sections 106 equity, which the United States [or the the state], and shall apply to and be or 107(a) of CERCLA, 42 U.S.C. 9606 or state] may have against any person, binding on the Settling Respondent, its 9607(a) [and state law cite] with respect firm, corporation or other entity not a officers, directors, employees, and to the Existing Contamination. party to this Agreement. agents. Each signatory of a Party to this IX. Reservation of Rights 21. Nothing in this Agreement is Agreement represents that he or she is intended to limit the right of EPA [or the fully authorized to enter into the terms 18. The covenant not to sue set forth state] to undertake future response and conditions of this Agreement and to in Section VIII above does not pertain to actions at the Site or to seek to compel legally bind such Party. any matters other than those expressly parties other than the Settling 25. Notwithstanding any other specified in Section VIII (United States’ Respondent to perform or pay for provisions of this Agreement, all of the Covenant Not to Sue). The United States response actions at the Site. Nothing in rights, benefits and obligations [and the State] reserves and the this Agreement shall in any way restrict conferred upon Settling Respondent Agreement is without prejudice to all or limit the nature or scope of response under this Agreement may be assigned rights against Settling Respondent with actions which may be taken or be or transferred to any person with the respect to all other matters, including required by EPA [or the state] in prior written consent of EPA [and the but not limited to, the following: exercising its authority under federal [or state] in its sole discretion. (a) claims based on a failure by state] law. Settling Respondent 26. The Settling Respondent agrees to Settling Respondent to meet a acknowledges that it is purchasing pay the reasonable costs incurred by requirement of this Agreement, property where response actions may be EPA [and the state] to review any including but not limited to Section IV required. subsequent requests for consent to (Payment), Section V (Access/Notice to assign or transfer the Property. Successors in Interest), Section VI (Due X. Settling Respondent’s Covenant Not 27. In the event of an assignment or Care/Cooperation), Section XIV To Sue transfer of the Property or an assignment 22. In consideration of the United or transfer of an interest in the Property, 4 Since the covenant not to sue is from the United States’ Covenant Not To Sue in Section the assignor or transferor shall continue States, Regions negotiating these Agreements VIII of this Agreement, the Settling to be bound by all the terms and should advise the Department of Justice of any Respondent hereby covenants not to sue conditions, and subject to all the other federal agency involved with the Site, or which may have a claim under CERCLA with and not to assert any claims or causes benefits, of this Agreement except as respect to the Site and use best efforts to advise of action against the United States [or EPA [the state] and the assignor or such federal agency of the proposed settlement. the state], its authorized officers, transferor agree otherwise and modify 34798 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Notices this Agreement, in writing, accordingly. this Agreement or otherwise obtain related to this Agreement it will notify Moreover, prior to or simultaneous with compliance. the United States [and the state] in any assignment or transfer of the writing no later than 60 days prior to the XV. Notices and Submissions Property, the assignee or transferee must initiation of such suit or claim. consent in writing to be bound by the 31. [Insert names, titles, and addresses 37. The Settling Respondent also terms of this Agreement including but of those to whom notices and agrees that with respect to any suit or not limited to the certification submissions are due, specifying which claim for contribution brought against it requirement in Section VII of this submissions are required.] for matters related to this Agreement it Agreement in order for the Covenant XVI. Effective Date will notify in writing the United States Not to Sue in Section VIII to be available [and the state] within 10 days of service 32. The effective date of this to that party. The Covenant Not To Sue of the complaint on them. Agreement shall be the date upon which in Section VIII shall not be effective EPA issues written notice to the Settling with respect to any assignees or XX. Exhibits Respondent that EPA [and the state] has transferees who fail to provide such fully executed the Agreement after 38. Exhibit 1 shall mean the written consent to EPA [and the state]. review of and response to any public description of the Property which is the XII. Disclaimer comments received. subject of this Agreement. 39. Exhibit 2 shall mean the map 28. This Agreement in no way XVII. Attorney General Approval depicting the Site. constitutes a finding by EPA [or the 33. The Attorney General of the [lll. Exhibit 3 shall mean the state] as to the risks to human health United States or her designee has issued Statement of Work.] and the environment which may be prior written approval of the settlement XXI. Removal of Lien posed by contamination at the Property embodied in this Agreement. or the Site nor constitutes any 40. [Use this provision only when XVIII. Termination representation by EPA [or the state] that appropriate.] Subject to the Reservation the Property or the Site is fit for any 34. If any Party believes that any or of Rights in Section IX of this particular purpose. all of the obligations under Section V Agreement, upon payment of the XIII. Document Retention (Access/Notice to Successors in Interest) amount specified in Section IV are no longer necessary to ensure (Payment) [or upon satisfactory 29. The Settling Respondent agrees to compliance with the requirements of the completion of work to be performed retain and make available to EPA [and Agreement, that Party may request in specified in Section lll (Work to be the state] all business and operating writing that the other Party agree to Performed)], EPA agrees to remove any records, contracts, site studies and terminate the provision(s) establishing lien it may have on the Property under investigations, and documents relating such obligations; provided, however, Section 107(l) of CERCLA, 42 U.S.C. to operations at the Property, for at least that the provision(s) in question shall 9607(l), as a result of response action ten years, following the effective date of continue in force unless and until the conducted by EPA at the Property. this Agreement unless otherwise agreed party requesting such termination to in writing by the Parties. At the end receives written agreement from the XXII. Public Comment of ten years, the Settling Respondent other party to terminate such 41. This Agreement shall be subject to shall notify EPA [and the state] of the provision(s). a thirty-day public comment period, location of such documents and shall after which EPA may modify or provide EPA [and the state] with an XIX. Contribution Protection withdraw its consent to this Agreement opportunity to copy any documents at 35. With regard to claims for if comments received disclose facts or the expense of EPA [or the state]. contribution against Settling considerations which indicate that this [Where work is to be performed, Respondent, the Parties hereto agree Agreement is inappropriate, improper or consider providing for document that the Settling Respondent is entitled inadequate. retention for ten years or until to protection from contribution actions completion of work to the satisfaction of or claims as provided by CERCLA It is So Agreed: EPA, whichever is longer.] Section 113(f)(2), 42 U.S.C. 9613(f)(2) United States Environmental Protection for matters addressed in this Agreement. Agency XIV. Payment of Costs By: The matters addressed in this lllllllllllllllllllll 30. If the Settling Respondent fails to Agreement are [all response actions lll comply with the terms of this Regional Administrator, Region taken or to be taken and response costs Date Agreement, including, but not limited incurred or to be incurred by the United It is So Agreed: to, the provisions of Section IV States or any other person for the Site lll By: (Payment), [or Section (Work to with respect to the Existing lllllllllllllllllllll be Performed)] of this Agreement, it Contamination]. Name Date shall be liable for all litigation and other 36. The Settling Respondent agrees enforcement costs incurred by the that with respect to any suit or claim for [FR Doc. 95–16282 Filed 6–30–95; 8:45 am] United States [and the state] to enforce contribution brought by it for matters BILLING CODE 6560±50±P federal register July 3,1995 Monday High Standards;FinalRule Helping DisadvantagedChildrenMeet 34 CFRParts200,201,203,205,and212 Education Department of Part VII 34799 34800 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations DEPARTMENT OF EDUCATION from, one another. In addition, rather Changes From the NPRM and Analysis than operating apart from the broader of Comments and Changes 34 CFR Parts 200, 201, 203, 205, and education that children receive, the 212 ESEA reinforces State and community In response to the Secretary’s invitation to comment in the NPRM, 370 RIN 1810±AA73 reform efforts geared to challenging State standards, particularly those letters were received from State and Title IÐHelping Disadvantaged initiated or supported by the Goals LEA officials, teachers, organizations, Children Meet High Standards 2000: Educate America Act. In fact, all Members of Congress, citizens, and of the major ESEA programs are students. An analysis of the comments AGENCY: Department of Education. redesigned to support comprehensive and the Secretary’s responses to those ACTION: Final regulations. State and local reforms of teaching and comments is published as an appendix learning and ensure that all children— to these final regulations. SUMMARY: As specifically required by statute, the U.S. Secretary of Education whatever their background and In these final regulations, the (Secretary) issues a single set of final whatever school they attend—can reap Secretary has considered these regulations implementing the programs the benefit of those reforms. comments, balancing the concerns of under Title I of the Elementary and As the largest by far of all ESEA State and local school officials, parents, Secondary Education Act of 1965, as programs, Title I is the centerpiece of and others with the statutory purposes amended by the Improving America’s the ESEA’s efforts to help the neediest of the program and the needs of the Schools Act of 1994. In order to provide schools and students reach the same children to be served. The following maximum flexibility to grantees challenging standards expected of all sections provide a brief summary of the implementing the programs under Title children. Effective July 1, 1995, the four final regulations that differ from the I, these regulations address only those Title I programs—the basic program in regulations proposed in the NPRM. few provisions for which the Secretary local educational agencies (LEAs) (Part believes rulemaking is absolutely State Responsibilities for Assessment A), the Even Start Family Literacy (§§ 200.1, 200.4) necessary. These regulations replace the program (Part B), the Migrant Education regulations currently found at 34 CFR program (Part C), and the Neglected, The Secretary has revised §§ 200.1 Parts 200, 201, 203, 205 and 212. Delinquent, and At-Risk Youth program and 200.4 to clarify that a State’s set of EFFECTIVE DATE: These regulations take (Part D)—are designed to work together high-quality yearly assessments must effect on August 2, 1995. in support of this common purpose. measure performance in at least FOR FURTHER INFORMATION CONTACT: For Moreover, the programs embrace the mathematics and reading/language arts, subparts A and E, Wendy Jo New, same fundamental new strategies to but need not be focused solely on Telephone: (202) 260–0982; for subpart help ensure that the intended reading/language arts or mathematics. B, Patricia McKee, Telephone: (202) beneficiaries are not left behind in State Rather, as indicated in § 200.4(a)(1), a 260–0991; for subpart D, Paul Brown, and local efforts to promote higher State may meet this requirement by Telephone: (202) 260–0976: standards. These strategies include: a developing or adopting assessments in Compensatory Education Programs, schoolwide focus on improving teaching other academic subjects as long as those Office of Elementary and Secondary and learning, strong program assessments sufficiently measure Education, U.S. Department of coordination by LEAs, flexibility at the performance in mathematics and Education, 600 Independence Avenue, local level combined with clear reading/language arts. For example, an SW, Portals Building, room 4400, accountability for results, more focused assessment in an academic subject such Washington, DC 20202–6132. targeting of resources on the neediest For subparts C and E, James English, as social studies may sufficiently schools, and stronger partnerships measure performance in reading/ Office of Migrant Education, Office of between schools and communities to Elementary and Secondary Education, language arts. Particularly at the support higher achievement for all secondary level, the Secretary believes it U.S. Department of Education, 600 children. Independence Avenue, SW, Portals may be especially appropriate to Building, room 4100, Washington, DC On May 1, 1995, the Secretary measure performance in reading/ 20202–6135. Telephone: (202) 260– published a notice of proposed language arts through assessments in 1394. rulemaking (NPRM) for Title I in the content areas. In addition, the Secretary Individuals who use a Federal Register (60 FR 21400–21419). emphasizes the importance of all telecommunications device for the deaf The preamble to the NPRM included a children attaining high levels of (TDD) may call the Federal Information discussion of the provisions enacted by performance in all core academic Relay Services (FIRS) at 1–800–877– Congress that were addressed in the subjects. Limiting the focus of Title I 8339 between 8 a.m. and 8 p.m., Eastern NPRM. The preamble also included a accountability in no way is intended to time, Monday through Friday. summary of the results of the negotiated alter the overall responsibility of States, SUPPLEMENTARY INFORMATION: The 1994 rulemaking process the Secretary local school districts, and schools for reauthorization of the Elementary and implemented under section 1601(b) of success of all students in the core Secondary Education Act of 1965 Title I. In developing the proposed academic subjects determined by the (ESEA) revised Federal elementary and regulations, the Secretary considered State. If a State has standards and secondary education programs the comments of persons who assessments for all students in subjects extensively to help ensure that all responded to the October 28, 1994 beyond mathematics and reading/ children acquire the knowledge and Federal Register notice requesting language arts, the regulations do not skills they will need to succeed in the advice and recommendations on preclude a State from including, for 21st century. Under the reauthorized regulatory issues under Title I (59 FR accountability purposes, additional 54372–74) and also the comments of ESEA, Federal education programs for subject areas, and the Secretary the first time are designed to work participants in the negotiated encourages them to do so. together with, rather than separately rulemaking process. Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34801 Schoolwide Program Requirements percent poverty by grade span groupings agricultural or fishing activities for only (§ 200.8) to determine the percentage of children a short time are considered ‘‘migratory’’ Section 200.8(c)(3)(ii)(B)(1)(A) of the from low-income families in the LEA as under the MEP, even when they do not proposed regulations would have a whole for each grade span grouping. have a significant economic dependence required a school that combines in its Second, the Secretary has addressed a on the agricultural or fishing activities. schoolwide program funds received significant problem concerning the Because many commenters appeared to under Part C of Title I, in consultation availability of adequate poverty data on have misunderstood the scope and with parents of migratory children or children who reside in participating intent of the ‘‘principal means of organizations representing those public school attendance areas but who livelihood’’ language, and the degree of parents, to first address the identified attend private schools. Paragraph burden that its use would place on State needs of migratory children that result (a)(2)(i) provides that, if the same data and local program staff and parents of from the effects of their migratory are not available for private school migratory children, the regulations have lifestyle or are needed to permit children as are available for public been revised to more clearly define the migratory children to participate school children, an LEA may use term, ‘‘principal means of livelihood,’’ effectively in school. The Secretary has comparable data collected through for purposes of the MEP and clarify the revised this section to clarify that both alternative means such as a survey or term’s applicability to moves within parents and organizations representing from existing sources such as Aid to 15,000 square mile districts. those parents may participate in Families with Dependent Children or tuition scholarship programs. Under Use of Program Funds for Unique consultation together to clarify that the Program Function Costs (§ 200.41) two parties are not mutually exclusive. paragraph (a)(2)(ii), if complete actual poverty data are not available on private The proposed regulations permit an Responsibilities for Providing Services school children, an LEA may SEA to use MEP funds to carry out other to Children in Private Schools extrapolate from actual data on a administrative activities, beyond those (§ 200.10) representative sample of private school allowable under § 200.61, that are Recognizing that some LEAs identify children the number of poor private unique to the MEP ‘‘or that are the same a public school as eligible for Title I on school children. If adequate data are not or similar to those performed by LEAs the basis of student enrollment rather available under paragraph (a)(2)(i) or in the State under subpart A.’’ In than because it serves an eligible (ii), the LEA, for the 1995–96 school response to comment, the regulations attendance area, the Secretary has year only, shall derive the number of have been revised to clarify that amended § 200.10(b) to clarify that if an private school children from low- administrative activities ‘‘that are the LEA identifies a public school as income families by applying the poverty same or similar to those performed by eligible on the basis of enrollment, the percentage of each participating public LEAs in the State under subpart A’’ are LEA must, in consultation with private school attendance area to the number of included under those administrative school officials, determine an equitable private school children who reside in activities that are unique to the MEP. that area. way to identify eligible private school Executive Order 12866 children. For example, if a participating public school area has 50 percent poverty and These final regulations have been Payments to LEAs for Capital Expenses 100 children who reside in that area reviewed in accordance with Executive (§ 200.16) attend private schools, 50 private school Order 12866. Under the terms of the Section 200.16(a)(2)(i)(D) makes clear children would be deemed to be poor order, the Secretary has assessed the that the salaries of noninstructional and thus would generate Part A funds. potential costs and benefits of this technicians who monitor computer- For school years after 1995–96, regulatory action. assisted instruction in private schools however, actual poverty data (or a The benefits associated with these are administrative costs to be taken off reasonable estimate based on an final regulations are clear. Because the the top of an LEA’s allocation. As such, adequate sample) will be required. Secretary has chosen to regulate on very the LEA may fund those technicians Finally, the Secretary has made clear in few statutory provisions, SEAs and from its capital expense funds. paragraph (b)(1) that an LEA must LEAs have considerable flexibility in calculate 125 percent of the per-pupil implementing the provisions of Title I to Reservation of Funds by an LEA amount of funds the LEA receives for a meet their particular needs and (§ 200.27) given fiscal year before the LEA reserves circumstances. Moreover, the potential The Secretary has amended § 200.27 any funds under § 200.27. costs associated with these final to clarify that capital expenses incurred regulations are minimal; they result Migrant Education Program (MEP) to implement alternative delivery from specific statutory requirements or Definitions (§ 200.40) systems necessary to serve private have been determined by the Secretary school students in compliance with The proposed regulations contained to be necessary for administering the Aguilar v. Felton that are not definitions of ‘‘migratory agricultural Title I programs effectively and reimbursed under section 1002(e) of worker’’ and ‘‘migratory fisher’’ to efficiently. Title I are administrative costs that must require a move to obtain temporary or Intergovernmental Review be taken off the top of an LEA’s Part A seasonal agricultural or fishing work ‘‘as allocation. a principal means of livelihood.’’ This Grants to SEAs for the MEP and grants term was proposed to focus MEP to SEAs and LEAs for the Migrant Allocation of Funds to School services on children who are truly Education Coordination Program are Attendance Areas and Schools migratory, i.e., children in families with subject to the requirements of Executive (§ 200.28) an actual, significant dependency on Order 12372 and the regulations in 34 The Secretary has made several migratory agricultural or fishing work. CFR Part 79. The objective of the changes in § 200.28. First, the Secretary In doing so, the new requirement was Executive Order is to foster an has added flexibility in paragraph (a)(3) intended to correct a situation in which intergovernmental partnership and a to permit an LEA that ranks its school persons who move across school district strengthened federalism by relying on attendance areas or schools below 75 lines to perform temporary or seasonal processes developed by State and local 34802 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations governments for coordination and The Secretary amends Title 34 of the 200.25 Applicable hold-harmless review of proposed Federal financial Code of Federal Regulations by provisions. assistance. removing Parts 201, 203, 205, and 212 200.26 [Reserved] In accordance with this order, this and revising Part 200 as follows: Procedures for the Within-District Allocation document is intended to provide early of LEA Program Funds notification of the Secretary’s specific PART 201 [Removed] 200.27 Reservation of funds by an LEA. plans and actions for these programs. 1. Part 201 is removed. 200.28 Allocation of funds to school attendance areas and schools. List of Subjects in 34 CFR Part 200 PART 203 [Removed] 200.29 [Reserved] Administrative practice and 2. Part 203 is removed. Subpart BÐEven Start Family Literacy procedure, Adult education, Children, Programs Coordination, Education, Education of PART 205 [Removed] 200.30 Migrant Education Even Start disadvantaged children, Education of program definition. individuals with disabilities, 3. Part 205 is removed. 200.31–200.39 [Reserved] Elementary and secondary education, Eligibility, Family, Family-centered PART 212 [Removed] Subpart CÐMigrant Education Program education, Grant programs—education, 200.40 Program definitions. 4. Part 212 is removed. 200.41 Use of program funds for unique Indians—education, Institutions of 5. Part 200 is revised to read as higher education, Interstate program function costs. follows: 200.42 Responsibilities of SEAs and coordination, Intrastate coordination, operating agencies for assessing the Juvenile delinquency, Local educational PART 200ÐTITLE IÐHELPING effectiveness of the MEP. agencies, Migratory children, Migratory DISADVANTAGED CHILDREN MEET 200.43 Responsibilities of SEAs and workers, Neglected, Nonprofit private HIGH STANDARDS operating agencies for improving agencies, Private schools, Public services to migratory children. agencies, Reporting and recordkeeping Subpart AÐImproving Basic Programs 200.44 Use of MEP funds in schoolwide requirements, State-administered Operated by Local Educational Agencies projects. programs, State educational agencies, Standards, Assessment, and Accountability 200.45 Responsibilities for participation of Subgrants. children in private schools. Sec. 200.46–200.49 [Reserved] 34 CFR Part 201 200.1 Contents of a State plan. 200.2 State responsibilities for developing Subpart DÐPrevention and Intervention Education of disadvantaged, challenging standards. Programs for Children and Youth Who Are Elementary and secondary education, 200.3 Requirements for adequate progress. Neglected, Delinquent, or At-Risk of Grant programs—education, Migrant 200.4 State responsibilities for assessment. Dropping Out labor, Reporting and recordkeeping 200.5 Requirements for school 200.50 Program definitions. requirements. improvement. 200.51 SEA counts of eligible children. 200.6 Requirements for LEA improvement. 200.52–200.59 [Reserved] 34 CFR Part 203 200.7 [Reserved] Subpart EÐGeneral Provisions Schoolwide Programs Education of disadvantaged, 200.60 Reservation of funds for State Elementary and secondary education, 200.8 Schoolwide program requirements. administration and school improvement. Grant programs—education, Juvenile 200.9 [Reserved] 200.61 Use of funds reserved for State delinquency, Reporting and Participation of Eligible Children in Private administration. recordkeeping requirements. Schools 200.62 [Reserved] 200.63 Supplement, not supplant. 34 CFR Part 205 200.10 Responsibilities for providing 200.64 Maintenance of effort. services to children in private schools. Education of disadvantaged, 200.65 Definitions. 200.11 Factors for determining equitable 200.66–200.69 [Reserved] Elementary and secondary education, participation of children in private Grant programs—education, Migrant schools. Authority: 20 U.S.C. 6301–6514, unless labor. 200.12 Requirements to ensure that funds otherwise noted. do not benefit a private school. 34 CFR Part 212 200.13 Requirements concerning property, Subpart AÐImproving Basic Programs Adult education, Education of equipment, and supplies for the benefit Operated by Local Educational disadvantaged, Elementary and of private school children. Agencies 200.14 [Reserved] secondary education, Grant programs— Standards, Assessment, and education, Indians—education, Infants Capital Expenses Accountability and children, Migrant labor, Reporting 200.15 Payments to SEAs for capital § 200.1 Contents of a State plan. and recordkeeping requirements. expenses. Dated: June 28, 1995. 200.16 Payments to LEAs for capital (a)(1) A State that desires to receive a expenses. grant under this subpart shall submit to Richard W. Riley, 200.17 Use of LEA payments for capital the Secretary a plan that meets the Secretary of Education. expenses. requirements of this section. (Catalog of Federal Domestic Assistance 200.18–200.19 [Reserved] (2) A State plan must be— Numbers: 84.010, Improving Programs Procedures for the Within-State Allocation (i) Developed with broad-based Operated by Local Educational Agencies; consultation throughout the planning 84.011, Migrant Education Basic State of LEA Program Funds Formula Grant Program; 84.013, Prevention 200.20 Allocation of funds to LEAs. process with local educational agencies and Intervention Programs for Children and 200.21 Determination of the number of (LEAs), teachers, pupil services Youth Who Are Neglected, Delinquent, or At- children eligible to be counted. personnel, other staff, parents, and Risk of Dropping Out; 84.144, Migrant 200.22 Allocation of basic grants. administrators, including principals; Education Coordination Program; 84.213, 200.23 Allocation of concentration grants. (ii) Developed with substantial Even Start Family Literacy Program) 200.24 Allocation of targeted grants. involvement of the Committee of Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34803 Practitioners established under section under this subpart to meet the State’s § 200.2 State responsibilities for 1603(b) of the Elementary and student performance standards; or developing challenging standards. Secondary Education Act of 1965, as (ii) If a State has not developed or (a) Standards in general. (1) A State amended (Act), and continue to involve adopted assessments that measure shall develop or adopt challenging the Committee in monitoring the plan’s performance in at least mathematics and content and student performance implementation; and reading/language arts in accordance standards that will be used by the State, (iii) Coordinated with other plans with § 200.4— its LEAs, and its schools to carry out developed under the Act, the Goals this subpart. (A) Describe the State’s quality (2) Standards under this subpart must 2000: Educate America Act, and other benchmarks, timetables, and reporting acts, as appropriate, consistent with include— schedule for completing the (i) Challenging content standards in section 14307 of the Act. development and field-testing of those (3) In lieu of a State plan under this academic subjects that— assessments by the beginning of the (A) Specify what children are section, a State may include programs 2000–2001 school year; and under this part in a consolidated State expected to know and be able to do; plan submitted in accordance with (B) Describe the transitional set of (B) Contain coherent and rigorous section 14302 of the Act. yearly statewide assessments the State content; and (b) A State plan must address the will use to assess students’ performance (C) Encourage the teaching of following: in mastering complex skills and advanced skills; and (ii) Challenging student performance (1) Challenging standards. The State challenging subject matter; and standards that— plan must include— (iii)(A) Identify the languages other (A) Are aligned with the State’s (i) Evidence that demonstrates that— than English that are spoken by the content standards; (A) The State has developed or student population participating under this subpart; and (B) Describe two levels of high adopted challenging content and performance—proficient and student performance standards for all (B) Indicate the languages for which advanced—that determine how well students in accordance with § 200.2; yearly student assessments that meet the children are mastering the material in and requirements of this section are not the State’s content standards; and (B) The State’s procedure for setting available and are needed and develop a (C) Describe a third level of the student performance levels applies timetable for progress toward the performance—partially proficient—to recognized professional and technical development of these assessments. provide complete information to knowledge for establishing the student (3) Adequate yearly progress. The measure the progress of lower- performance levels; or State plan must— performing children toward achieving to (ii) The State’s strategy and schedule (i) Demonstrate, based on the the proficient and advanced levels of for developing or adopting by the assessments described under § 200.4, performance. beginning of the 1997–1998 school what constitutes adequate yearly (b) Standards for all children. A State year— progress toward enabling all children to that has developed or adopted content (A) Challenging content and student meet the State performance standards standards and student performance performance standards for all students of— standards for all students under Title III in accordance with § 200.2(b); or of the Goals 2000: Educate America Act (B) Content and student performance (A) Any school served under this subpart; and or under another process, or will standards for elementary and secondary develop or adopt such standards by the school children served under this (B) Any LEA that receives funds beginning of the 1997–1998 school year, subpart in accordance with § 200.2(c), if under this subpart; or shall use those standards, modified, if the State will not have developed or (ii) For any year in which a State uses necessary, to conform with the adopted content and student transitional assessments under requirements in paragraph (a) of this performance standards for all students § 200.4(e), describe how the State will section and § 200.3, to carry out this by the 1997–1998 school year or does identify schools under § 200.5 and LEAs subpart. not intend to develop such standards. under § 200.6 in accordance with (c) Standards for children served (iii) For subjects in which students § 200.3. under this subpart. (1) If a State will not will be served under this subpart but for (4) Capacity building. Each State plan have developed or adopted content and which a State has no standards, the shall describe— student performance standards for all State plan must describe the State’s (i) How the State educational agency students by the beginning of the 1997– strategy for ensuring that those students (SEA) will help each LEA and school 1998 school year, or does not intend to are taught the same knowledge and affected by the State plan to develop the develop those standards, the State shall skills and held to the same expectations capacity to comply with each of the develop content and student as are all children. requirements of sections 1112(c)(1)(D), performance standards for elementary (2) Assessments. The State plan 1114(b), and 1115(c) of the Act that is and secondary school children served must— applicable to the LEA and school; and under this subpart in subject areas as (i) Demonstrate that the State has determined by the State, but including (ii) Other factors the State deems developed or adopted a set of high- at least mathematics and reading/ appropriate, which may include quality yearly student assessments, language arts. These standards must— including assessments that measure opportunity-to-learn standards or (i) Include the same knowledge, skills, performance in at least mathematics and strategies developed under the Goals and levels of performance expected of reading/language arts, in accordance 2000: Educate America Act, to provide all children; with § 200.4, that will be used as the students an opportunity to achieve the (ii) Meet the requirements in primary means of determining the knowledge and skills described in the paragraph (a) of this section and § 200.3; yearly performance of each school and challenging content standards and LEA served under this subpart in developed or adopted by the State. (iii) Be developed by the beginning of enabling all children participating (Authority: 20 U.S.C. 6311) the 1997–1998 school year. 34804 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations (2) If a State has not developed § 200.4 State responsibilities for diverse learning needs necessary to content and student performance assessment. measure the achievement of those standards in mathematics and reading/ (a) (1) Each State shall develop or students relative to the State’s language arts for elementary and adopt a set of high-quality yearly standards; and secondary school children served under student assessments, including (iii) (A) Inclusion of limited-English this subpart by the beginning of the assessments that measure performance proficient students who shall be 1997–1998 school year, the State shall in at least mathematics and reading/ assessed, to the extent practicable, in then adopt a set of standards in those language arts, that will be used as the the language and form most likely to subjects such as the standards contained primary means of determining the yield accurate and reliable information in other State plans the Secretary has yearly performance of each school and on what those students know and can approved. LEA served under this subpart in do to determine the students’ mastery of enabling all children participating skills in subjects other than English. (3) If and when a State develops or under this subpart to meet the State’s (B) To meet this requirement, the adopts standards for all children, the student performance standards. State— State shall use those standards to carry (2) A State may satisfy this (1) Shall make every effort to use or out this subpart. requirement if the State has developed develop linguistically accessible (Authority: 20 U.S.C. 6311(b)) or adopted a set of high-quality yearly assessment measures; and student assessments in other academic (2) May request assistance from the § 200.3 Requirements for adequate Secretary if those measures are needed. progress. subjects that measure performance in mathematics and reading/language arts. (8) Include, for determining the (a) Except as provided in paragraph (b) Assessments under this section progress of the LEA only, students who (c) of this section, each State shall must meet the following requirements: have attended schools in the LEA for a determine, based on the State (1) Be the same assessments used to full academic year, but who have not assessment system described in § 200.1, measure the performance of all children, attended a single school in the LEA for what constitutes adequate yearly if the State measures the performance of a full academic year. progress of— all children. (9) Provide individual student (2)(i) Be aligned with the State’s interpretive and descriptive reports that (1) Any school served under this challenging content and student include— subpart toward enabling children to performance standards; and (i) Individual scores; or meet the State’s student performance (ii) Provide coherent information (ii) Other information on the standards; and about student attainment of the State’s attainment of student performance (2) Any LEA that receives funds under content and student performance standards. this subpart toward enabling children in standards. (10) Enable results to be disaggregated schools served under this subpart to (3)(i)(A) Be used for purposes for within each State, LEA, and school by— meet the State’s student performance which the assessments are valid and (i) Gender; standards. reliable; and (ii) Each major racial and ethnic (B) Be consistent with relevant, group; (b) Adequate yearly progress must be nationally recognized professional and (iii) English proficiency status; defined in a manner that— technical standards for those (iv) Migrant status; (1) Results in continuous and assessments. (v) Students with disabilities as substantial yearly improvement of each (ii) Assessment measures that do not compared to students without school and LEA sufficient to achieve the meet these requirements may be disabilities; and goal of all children served under this included as one of the multiple (vi) Economically disadvantaged subpart, particularly economically measures if the State includes in its students as compared to students who disadvantaged and limited-English State plan sufficient information are not economically disadvantaged. (c) (1) If a State has developed or proficient children, meeting the State’s regarding the State’s efforts to validate adopted assessments for all students proficient and advanced levels of the measures and to report the results of that measure performance in performance; those validation studies. (4) Measure the proficiency of mathematics and reading/language arts (2) Is sufficiently rigorous to achieve under Title III of the Goals 2000: students in the academic subjects in that goal within an appropriate Educate America Act or under another which a State has adopted challenging timeframe; and process, the State shall use those content and student performance assessments, modified, if necessary, to (3) Links progress primarily to standards. performance on the State’s assessment (5) Be administered at some time conform with the requirements in system under § 200.4, while permitting during— paragraph (b) of this section and § 200.3, progress to be established in part (i) Grades 3 through 5; to carry out this subpart. through the use of other measures, such (ii) Grades 6 through 9; and (2) Paragraph (c)(1) of this section as dropout, retention, and attendance (iii) Grades 10 through 12. does not relieve the State from rates. (6) Involve multiple approaches including students served under this within an assessment system with up- subpart in assessments in any other (c) For any year in which a State uses to-date measures of student subjects the State has developed or transitional assessments under performance, including measures that adopted for all children. § 200.4(e), the State shall devise a assess complex thinking skills and (d) (1) Except as provided in procedure for identifying schools under understanding of challenging content. paragraph (d) (2) and (3) of this section, § 200.5 and LEAs under § 200.6 that (7) Provide for— if a State has not developed or adopted relies on accurate information about the (i) Participation in the assessment of assessments that measure performance continuous and substantial yearly all students in the grades being in at least mathematics and reading/ academic progress of each school and assessed; language arts that meet the requirements LEA. (ii) Reasonable adaptations and in paragraph (b) of this section, the State (Authority: 20 U.S.C. 6311(b)(2), (7)(B)) accommodations for students with shall— Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34805 (i) By the beginning of the 2000–2001 (i) (A) Use the State assessments or staff, parents, students, the community, school year, develop those assessments transitional assessments described in and administrators, including and field-test them for one year; and the State plan; and principals, the results of the State (ii) Develop a timetable and (B) Use any additional measures or review. benchmarks, including reports of indicators described in the LEA’s plan; (Authority: 20 U.S.C. 6317(d)) or validity studies, for completing the (Approved by the Office of Management and development and field testing of those (ii) If the State assessments are not Budget under control number 1810–0581) assessments. conducted in a Title I school, use other (2) The State may request a one-year appropriate measures or indicators to § 200.7 [Reserved] review the school’s progress; and extension from the Secretary to test its Schoolwide Programs new assessments if the State submits a (iii) (A) Disaggregate the results of the strategy to correct problems identified review according to the categories § 200.8 Schoolwide program requirements. in the field testing of its assessments. specified in § 200.4(b)(10); (a) General. (1) An eligible school, in (B) Seek to produce, in schoolwide (3) If a State has not developed consultation with its LEA, may use program schools, statistically sound assessments that measure performance funds or services under this subpart, in results for each category through the use in at least mathematics and reading/ combination with other Federal, State, of oversampling or other means; and and local funds it receives, to upgrade language arts that meet the requirements (C) Report disaggregated data to the the entire educational program in the in paragraph (b) of this section by the public only when those data are school to support systemic reform in beginning of the 2000–2001 school year statistically sound. and is denied an extension, the State (3) The LEA shall— accordance with the provisions of this shall adopt a set of assessments in those (i) Publicize and disseminate to section. subjects such as assessments contained teachers and other staff, parents, (2)(i) Except as provided in paragraph in the plans of other States the Secretary students, the community, and (a)(2)(ii) of this section, a school may has approved. administrators, including principals, the not start a new schoolwide program (e) (1) While a State is developing results of the annual review of all until the SEA provides written assessments under paragraph (d) of this schools served under this subpart in information to each LEA that the SEA section, the State may propose to use a individual school performance profiles; has established a statewide system of transitional set of yearly statewide and support and improvement. assessments that will—(i) Assess the (ii) Provide the results of the annual (ii) If a school desires to start a performance of complex skills and review to schools served under this schoolwide program prior to the challenging subject matter in at least subpart so that the schools can establishment of a statewide system of mathematics and reading/language arts, continually refine their program of support and improvement, the school which may be satisfied through instruction to help all children shall demonstrate to the LEA that the assessments in academic subjects other participating under this subpart meet school has received high-quality than mathematics and reading/language the State’s student performance technical assistance and support from arts if those assessments measure standards. other providers of assistance. performance in mathematics and (b) Eligibility for a schoolwide (Authority: 20 U.S.C. 6317(a)) reading/language arts; program. A school may operate a (Approved by the Office of Management and schoolwide program if— (ii) Be administered at some time Budget under control number 1810–0581) during— (1) The LEA determines that the (A) Grades 3 through 5; § 200.6 Requirements for LEA school serves a participating attendance area or is a participating school under (B) Grades 6 through 9; and improvement. section 1113 of the Act; and (C) Grades 10 through 12; and (a) State review. (1)(i) Each SEA shall (2)(i) For the initial year of the (iii) Include all children in the grades review annually the progress of each LEA served under this subpart to schoolwide program, the school meets being assessed. either of the following criteria: (2) Transitional assessments do not determine whether the schools receiving assistance under this subpart are making (A) For the 1995–1996 school year— need to meet the other requirements of (1) The school serves a school this section. adequate progress toward enabling their students to meet the State’s student attendance area in which not less than (Authority: 20 U.S.C. 6311(b)) performance standards described in the 60 percent of the children are from low- State plan. income families; or § 200.5 Requirements for school (2) Not less than 60 percent of the improvement. (ii) An SEA may review the progress of the schools served by an LEA only for children enrolled in the school are from (a) Local review. (1)(i) Each LEA those students that have been or are low-income families. receiving funds under this subpart shall being served under this subpart. (B) For the 1996–1997 school year and review annually the progress of each (2) In conducting its review, an SEA subsequent years, the percentages of school served under this subpart to shall— children from low-income families in determine whether the school is (i) Disaggregate the results of the paragraph (b)(2)(i)(A) may not be less meeting or making adequate progress review according to the categories than 50 percent. toward enabling its students to meet the specified in § 200.4(b)(10); (ii) The LEA may choose to determine State’s student performance standards (ii) Consider other indicators, if the percentage of children from low- described in the State plan. applicable, in accordance with section income families under paragraph (ii) An LEA may review a targeted 1112(b)(1) of the Act; and (b)(2)(i) based on a measure of poverty assistance school on the progress of only (ii) Report disaggregated data to the that is different from the poverty those students that have been or are public only when those data are measure or measures used by the LEA served under this subpart. statistically sound. to identify and rank school attendance (2) In conducting its review, an LEA (3) The SEA shall publicize and areas for eligibility and participation shall— disseminate to LEAs, teachers, and other under this subpart. 34806 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations (c) Availability of other Federal funds. of Part A of Title IX of the Act in its for teachers and aides and, where (1) In addition to funds under this schoolwide program if the parent appropriate, principals, pupil services subpart, a school may use in its committee established by the LEA under personnel, other school staff, and schoolwide program Federal funds section 9114(c)(4) of the Act approves parents to enable all children in the under any program administered by the the inclusion of those funds. school to meet the State’s student Secretary, except programs under the (iii) This paragraph does not relieve— performance standards. Individuals with Disabilities Education (A) An LEA from complying with all (ii) The school shall devote sufficient Act (IDEA), that is included on the most requirements that do not affect the resources to effectively carry out its recent notice published by the Secretary operation of a schoolwide program; or responsibilities for professional in the Federal Register. (B) A non-schoolwide program school development, either alone or in (2) For the purposes of this section, from complying with all applicable consortia with other schools. the authority to combine funds from requirements. (5) Strategies to increase parental other Federal programs also applies to (d) Components of a schoolwide involvement, such as family literacy services provided to a school with those program. A schoolwide program must services. funds. include the following components: (6) Strategies in an elementary school (3) (i) Except as provided in paragraph (1) A comprehensive needs for assisting preschool children in the (c)(3)(ii) of this section, a school that assessment involving the parties listed transition from early childhood combines funds from any other Federal in paragraph (e)(2)(ii) of this section of programs, such as Head Start, Even program administered by the Secretary the entire school that is based on— Start, or a State-run preschool program, in a schoolwide program— (i) Information on the performance of to the schoolwide program. (A) Is not required to meet the children in relation to the State content (7) Strategies to involve teachers in statutory or regulatory requirements of standards and the State student the decisions regarding the use of that program applicable at the school performance standards under section additional local, high-quality student level; but 1111(b)(1) of the Act; or assessments, if any, under section (B) Shall meet the intent and purposes (ii) Until the State develops or adopts 1112(b)(1) of the Act to provide of that program to ensure that the needs standards under section 1111(b)(1) of information on, and to improve, the of the intended beneficiaries of that the Act, an analysis of available data on performance of individual students and program are addressed. the achievement of students in the the overall instructional program. (ii)(A) An LEA or a school that school. (8) (i) Activities to ensure that chooses to use funds from other (2) Schoolwide reform strategies students who experience difficulty programs shall not be relieved of that— mastering any of the standards required statutory and regulatory requirements (i) Provide opportunities, based on by section 1111(b) of the Act during the applicable to those programs relating best knowledge and practice, for all school year will be provided effective, to— children in the school to meet the timely additional assistance, which (1) Health and safety; State’s proficient and advanced levels of must include— (2) Civil rights; student performance; (3) Gender equity; (A) Strategies to ensure that students’ (4) Participation and involvement of (ii) Are based on effective means of difficulties are identified on a timely parents and students; (5) Private school improving the achievement of children, basis and to provide sufficient children, teachers, and other such as utilizing research-based information on which to base effective educational personnel; teaching strategies; assistance; (6) Maintenance of effort; (iii) Use effective instructional (B) To the extent the school (7) Comparability of services; strategies that— determines feasible using funds under (8) Use of Federal funds to (A) Increase the amount and quality of this subpart, periodic training for supplement, not supplant non-Federal learning time, such as providing an teachers in how to identify those funds in accordance with paragraph extended school year and before- and difficulties and to provide assistance to (f)(1) (iii) and (2) of this section; and after-school and summer programs; individual students; and (9) Distribution of funds to SEAs and (B) Provide an enriched and (C) For any student who has not met LEAs. accelerated curriculum; and those standards, parent-teacher (B) A school operating a schoolwide (C) Meet the educational needs of conferences to discuss— program shall comply with the historically underserved populations; (1) What the school will do to help following requirements if it combines (iv) (A) Address the needs of all the student meet the standards; funds from these programs in its children in the school, particularly the (2) What the parents can do to help schoolwide program: needs of children who are members of the student improve the student’s (1) Migrant education. A school that the target population of any program performance; and combines in its schoolwide program that is included in the schoolwide (3) Additional assistance that may be funds received under Part C of Title I of program under paragraph (c) of this available to the student at the school or the Act shall— section; and elsewhere in the community. (i) In consultation with parents of (B) Address how the school will (ii) This provision does not— migratory children or organizations determine if those needs have been met; (A) Require the school or LEA to representing those parents, or both, first and develop an individualized education address the identified needs of (v) Are consistent with, and designed program (IEP) for each student migratory children that result from the to implement, the State and local identified under paragraph (d)(8) of this effects of their migratory lifestyle or are improvement plans, if any, approved section; or needed to permit migratory children to under Title III of the Goals 2000: (B) Relieve the school or LEA from the participate effectively in school; and Educate America Act. requirement under the IDEA to develop (ii) Document that services to address (3) Instruction by highly qualified IEPs for students with disabilities. those needs have been provided. professional staff. (e) Schoolwide program plan. (1) An (2) Indian education. A school may (4)(i) Professional development, in eligible school that desires to operate a combine funds received under subpart 1 accordance with section 1119 of the Act, schoolwide program shall develop, in Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34807 consultation with the LEA and its (iv) Translated, to the extent feasible, provide special educational services or school support team or other technical into any language that a significant other benefits under this subpart, on an assistance provider, a comprehensive percentage of the parents of equitable basis, to eligible children who plan for reforming the total instructional participating children in the school are enrolled in private elementary and program in the school that— speak as their primary language; and secondary schools in accordance with (i) Incorporates the components under (v) If appropriate, developed in the requirements in §§ 200.11 through paragraph (d) of this section; coordination with other programs, 200.17 and section 1120 of the Act. (ii) Describes how the school will use including those under the School-to- (b) (1) Eligible private school children resources under this subpart and from Work Opportunities Act of 1994, the are children who— other sources to implement those Carl D. Perkins Vocational and Applied (i) Reside in a participating school components; Technology Education Act, and the attendance area of the LEA; and (iii) Includes a list of State and local National and Community Service Act of (ii) Meet the criteria in section 1115(b) programs and other Federal programs 1990. of the Act. under paragraph (c) of this section that (3) The schoolwide program plan (2) If an LEA identifies a public will be included in the schoolwide remains in effect for the duration of the school as eligible on the basis of program; and school’s participation under this enrollment, rather than because it serves (iv) (A) If the State has developed or section. an eligible school attendance area, the adopted a State assessment system (4) A school operating a schoolwide LEA shall, in consultation with private under section 1111(b)(3) of the Act— program shall review and revise its school officials, determine an equitable (1) Describes how the school will plan, as necessary, to reflect changes in provide individual student assessment way to identify eligible private school its schoolwide program or changes to children. results, including an interpretation of reflect State standards established after those results, to the parents of each (3) Among the eligible private school the plan was developed. children, the LEA shall select children child who participates in that (f) Effect of operating a schoolwide to participate in a manner that is assessment; and program. (1) No school operating a consistent with the provisions in (2) Provides for the disaggregation of schoolwide program shall be required § 200.11. data on the assessment results of to— students and the reporting of those data (i) Identify particular children under (Authority: 20 U.S.C. 6315(b); 6321(a)) in accordance with § 200.5(a); or this subpart and under any other (B) If the State has not developed or § 200.11 Factors for determining equitable Federal program included under participation of children in private schools. adopted a State assessment system paragraph (c) of this section as eligible under section 1111(b)(3) of the Act, to participate in the schoolwide (a) Equal expenditures. (1) describes the data on the achievement of program; Expenditures of funds made available students in the school and effective (ii) Document that funds available under this subpart for services for instructional and school improvement under this subpart and any other eligible private school children in the practices on which the plan is based. Federal program included under aggregate must be equal to the amount (2) The schoolwide program plan paragraph (c) of this section are used to of funds generated by private school must be— benefit only the intended beneficiaries children from low-income families (i) Developed during a one-year of the respective programs; or under § 200.28. period unless— (iii) Demonstrate that the particular (2) An LEA shall meet this (A) The LEA, after considering the services paid for with funds under this requirement as follows: recommendation of its technical subpart and under any other Federal (i) Before determining equal assistance providers, determines that program included under paragraph (c) expenditures under paragraph (a)(1) of less time is needed to develop and of this section supplement the services this section, the LEA shall reserve, from implement the schoolwide program; or regularly provided in that school. the LEA’s whole allocation, funds (B) The school is operating a (2) A school operating a schoolwide needed to carry out § 200.27. schoolwide program under section 1015 program shall use funds available under (ii) The LEA shall reserve the amounts of Chapter 1 of Title I of the Act during this subpart and under any other of funds generated by private school the 1994–1995 school year, in which Federal program included under children under § 200.28 and, in case the school may continue its paragraph (c) of this section only to consultation with appropriate private schoolwide program but shall amend its supplement the total amount of funds school officials, may— current plan or develop a new plan in that would, in the absence of those (A) Combine those amounts to create accordance with this section during the funds, be made available from non- a pool of funds from which the LEA first year it receives funds under this Federal sources for that school, provides equitable services to eligible part; including funds needed to provide private school children, in the aggregate, (ii) Developed with the involvement services that are required by law for in greatest need of those services; or of the community to be served and children with disabilities and children (B) Provide equitable services to individuals who will carry out the plan, with limited-English proficiency. eligible children in each private school including— with the funds generated by children (A) Teachers; (Authority: 20 U.S.C. 6314, 6396(b)) (B) Principals; from low-income families under (C) Other school staff; § 200.9 [Reserved] § 200.28 who attend that private school. (D) Pupil services personnel, if Participation of Eligible Children in (b) Services on an equitable basis. (1) appropriate; Private Schools The services that an LEA provides to (E) Parents of students in the school; eligible private school children must be and § 200.10 Responsibilities for providing equitable in comparison to the services (F) If the plan relates to a secondary services to children in private schools. and other benefits provided to public school, students from the school; (a) An LEA shall, after timely and school children participating under this (iii) Available to the LEA, parents, meaningful consultation with subpart. and the public; appropriate private school officials, (2) Services are equitable if the LEA— 34808 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations (i) Addresses and assesses the specific (e) No funds under this subpart may (b) An SEA shall distribute funds it needs and educational progress of be used for repairs, minor remodeling, receives under § 200.15 to LEAs that eligible private school children on a or construction of private school apply on the basis of need. comparable basis as public school facilities. (Authority: 20 U.S.C. 6321(e)) children; (f) For the purpose of this section, the (ii) Meets the equal expenditure term public agency includes the LEA. § 200.17 Use of LEA payments for capital requirements under paragraph (a) of this expenses. (Authority: 20 U.S.C. 6321(c)) section; and (a) Unless an LEA is authorized by the (iii) Provides private school children § 200.14 [Reserved] SEA to reimburse itself for capital with an opportunity to participate Capital Expenses expenses incurred in prior years, the that—(A) Is equitable to the opportunity LEA shall use payments received under provided to public school children; and § 200.15 Payments to SEAs for capital § 200.16 to cover capital expenses the (B) Provides reasonable promise of expenses. LEA is incurring or will incur to those children achieving the high levels (a) From the amount appropriated for maintain or increase the number of called for by the State’s student capital expenses under section 1002(e) private school children being served. performance standards. (b) The LEA may not take the (3) The LEA shall make the final of the Act, the Secretary pays a State an amount that bears the same ratio to the payments received under § 200.16 into decisions with respect to the services to account in meeting the requirements in be provided to eligible private school amount appropriated as the number of § 200.11(a). children. private school children in the State who received services under this subpart in (c) The LEA shall account separately (Authority: 20 U.S.C. 6321(a)) the most recent year for which data for payments received under § 200.16. § 200.12 Requirements to ensure that satisfactory to the Secretary are (Authority: 20 U.S.C. 6321(e)(3)) funds do not benefit a private school. available bears to the total number of § 200.18±200.19 [Reserved] (a) An LEA shall use funds under this private school children served in that subpart to provide services that same year in all the States. Procedures for the Within-State supplement, and in no case supplant, (b) The Secretary reallocates funds not Allocation of LEA Program Funds the level of services that would, in the used by a State for purposes of § 200.16 absence of Title I services, be available among other States on the basis of their § 200.20 Allocation of funds to LEAs. to participating children in private respective needs. (a) Subcounty allocations. (1) Except schools. (Authority: 20 U.S.C. 6321(e)(1)) as provided in paragraph (b) of this (b) An LEA shall use funds under this section, § 200.23(c)(1) and (3)(ii), and subpart to meet the special educational § 200.16 Payments to LEAs for capital § 200.25, an SEA shall allocate the needs of participating private school expenses. county amounts determined by the children, but not for— (a)(1)(i) An LEA may apply to the SEA Secretary for basic grants, concentration (1) The needs of the private school; or for a payment to cover capital expenses grants, and targeted grants to each (2) The general needs of children in that the LEA, in providing equitable eligible LEA within the county on the the private school. services to eligible private school basis of the number of children counted (Authority: 20 U.S.C. 6321(a), 6322(b)) children— in § 200.21. (A) Is currently incurring; or (2) If an LEA overlaps a county § 200.13 Requirements concerning (B) Would incur because of an boundary, the SEA shall make, on a property, equipment, and supplies for the expected increase in the number of proportionate basis, a separate benefit of private school children. private school children to be served. allocation to the LEA from the county (a) A public agency must keep title to (ii) An LEA may apply for a payment aggregate amount for each county in and exercise continuing administrative to cover capital expenses it incurred in which the LEA is located, provided the control of all property, equipment, and prior years for which it has not been LEA is eligible for a grant. supplies that the public agency acquires reimbursed if the LEA demonstrates that (b) Statewide allocations. (1) In any with funds under this subpart for the its current needs for capital expenses State in which a large number of LEAs benefit of eligible private school have been met. overlap county boundaries, an SEA may children. (2) Capital expenses means only apply to the Secretary for authority to (b) The public agency may place expenditures for noninstructional goods make allocations under basic grants or equipment and supplies in a private and services that are incurred as a result targeted grants directly to LEAs without school for the period of time needed for of implementation of alternative regard to counties. the program. (c) The public agency shall ensure delivery systems to comply with the (2) In its application, the SEA shall— that the equipment and supplies placed requirements of Aguilar v. Felton. These (i) Identify the data in § 200.21(b) the in a private school— expenditures— SEA will use for LEA allocations; and (1) Are used only for Title I purposes; (i) Include— (ii) Provide assurances that— and (A) The purchase, lease, and (A) Allocations will be based on the (2) Can be removed from the private renovation of real and personal property data approved by the Secretary under school without remodeling the private (including mobile educational units, this paragraph; and school facility. and leasing of neutral sites or space); (B) A procedure has been established (d) The public agency shall remove (B) Insurance and maintenance costs; through which an LEA dissatisfied with equipment and supplies from a private (C) Transportation; and the determination by the SEA may school if— (D) Other comparable goods and appeal directly to the Secretary for a (1) The equipment and supplies are services, including noninstructional final determination. no longer needed for Title I purposes; or computer technicians; and (c) LEAs containing two or more (2) Removal is necessary to avoid (ii) Do not include the purchase of counties in their entirety. If an LEA unauthorized use of the equipment or instructional equipment such as contains two or more counties in their supplies for other than Title I purposes. computers. entirety, the SEA shall allocate funds Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34809 under paragraphs (a) and (b) of this (ii) The number of those children is (E) Select in rank order, those LEAs section to each county as if such county greater than two percent of the LEA’s that the SEA plans to provide were a separate LEA. total population aged 5 to 17 years, concentration grant funds; and (Authority: 20 U.S.C. 6333–6335) inclusive. (F) Distribute the reserved funds (b) Amount of the LEA grant. An SEA among the selected LEAs based on the § 200.21 Determination of the number of shall allocate basic grant funds to number of children counted under children eligible to be counted. eligible LEAs as provided in § 200.20, § 200.21. (a) General. An SEA shall count the except that the SEA shall apply the (2) Eligible counties with no eligible number of children aged 5–17, hold-harmless provisions described in LEAs. In a county in which no LEA inclusive, from low-income families and § 200.25. meets the eligibility criteria in the number of children residing in local (Authority: 20 U.S.C. 6333) paragraph (a) of this section, an SEA institutions for neglected children. shall— (b) Children from low-income § 200.23 Allocation of concentration (i) Identify those LEAs in which either grants. families. (1) An SEA shall count the the number or percentage of children number of children from low-income (a) Eligibility. An LEA is eligible for a counted under § 200.21 exceeds the families in the school districts of the concentration grant if— average number or percentage of those LEAs using the best available data. The (1) The LEA is eligible for a basic children in the county; and SEA shall use the same measure of low- grant under paragraph § 200.22(a); and (ii) Allocate concentration grant funds (2) The number of children counted income throughout the State. for the county among the LEAs (2) An SEA may use one of the under § 200.21 in the LEA exceeds— (i) 6,500; or identified in paragraph (c)(2)(i) of this following options to obtain its count of section based on the number of children children from low-income families: (ii) 15 percent of the LEA’s total population ages 5 to 17, inclusive. counted under § 200.21 in each LEA (i) The factors under section compared to the number of those 1124(c)(1) of the Act (excluding (b) Amount of the grant. (1) Except as provided in paragraph (c) of this children in all those LEAs. children in local institutions for section, an SEA shall allocate a county’s (3) States receiving minimum neglected or delinquent children), concentration grant funds only to LEAs allocations. In a State that receives a which include— minimum concentration grant under (A) Census data on children in that— (i) Lie, in whole or in part, within the section 1124A(d) of the Act, the SEA families below the poverty level; shall— (B) Data on children in families above county; and (ii) Meet the eligibility criteria in (i) Allocate concentration grant funds poverty receiving payments under the paragraph (a) of this section. among LEAs in the State under program of Aid to Families with (2) An SEA shall allocate paragraphs (a), (b), and (c)(1) and (2) of Dependent Children (AFDC); and concentration grant funds to eligible this section; or (C) Data on foster children. LEAs as provided in § 200.20(a), except (ii) Alternative data that an SEA (ii) Without regard to the counties in that the SEA shall apply the hold- determines best reflect the distribution which the LEAs are located-(A) Identify harmless provision described in of children from low-income families those LEAs in which either the number § 200.25(a). or percentage of children counted under and that are adjusted to be equivalent in (c) Exceptions. (1) Eligible LEAs in proportion to the total number of § 200.21 exceeds the average number or ineligible counties. percentage of those children in the children counted under section 1124(c) (i) An SEA may reserve not more than of the Act (excluding children in local State; and two percent of the amount of (B) Allocate concentration grant funds institutions for neglected or delinquent concentration grant funds it receives to children). among the LEAs identified in paragraph make direct allocations to eligible LEAs (c)(3)(ii)(A) of this section based on the (iii) Data that more accurately reflect that are located in counties that do not the distribution of poverty. number of children counted under receive a concentration grant allocation. § 200.21 in each LEA. (c) Children in local institutions for (ii) If an SEA plans to reserve neglected children. concentration grant funds under (Authority: 20 U.S.C. 6334) The SEA shall count the number of paragraph (c)(1)(i) of this section, the § 200.24 Allocation of targeted grants. children ages 5 to 17, inclusive, in the SEA, before allocating any LEA who resided in a local institution concentration grant funds under (a) Eligibility. An LEA is eligible for a for neglected children—and were not paragraph (b) of this section, shall— targeted grant if— counted under subpart 1 of Part D of (A) Determine which LEAs located in (1) There are at least 10 children Title I (programs for neglected or ineligible counties are eligible to receive counted under § 200.21 in the LEA; and delinquent children operated by State concentration grant funds; (2) The number of those children is at agencies)—for at least 30 consecutive (B) Determine the appropriate amount least five percent of the LEA’s total days, at least one day of which was in to be reserved; population ages 5 to 17 years, inclusive. the month of October of the preceding (C) Proportionately reduce the amount (b) Weighted child count. In fiscal year. available for concentration grants for determining an LEA’s grant, the SEA (Authority: 20 U.S.C. 6333(c)) eligible counties or LEAs to provide the shall compute a weighted child count in reserved amount, except that for school accordance with section 1125(c) of the § 200.22 Allocation of basic grants. year 1996–97 an SEA may not reduce an Act by taking the larger of— (a) Eligibility. An LEA is eligible for a LEA’s allocation below the hold- (1) Percent-weighted child count. The basic grant if—(1) In school year 1995– harmless amount determined under number of children counted under 96, there are at least 10 children § 200.25(a); § 200.21 multiplied by the weights counted under § 200.21 in the LEA; and (D) Rank order the LEAs eligible for shown in the following table, with the (2) Beginning in school year 1996– concentration grant funds that are weights applied in a step-wise manner 97— located in ineligible counties according so that only those children above each (i) There are at least 10 children to the number or percentage of children weighting threshold receive the higher counted under § 200.21 in the LEA; and counted under § 200.21; weight: 34810 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations LEA percentage of children count- LEA number of children counted established under section 1122(c) of the ed under § 200.21 as a percent of Weights under § 200.21 Weights Act. total children ages 5 through 17 (2) The hold-harmless protection 1 to 575 ...... 1.0 limits the maximum reduction in an 576 to 1,870 ...... 1.5 0 to 14.265% ...... 1.00 LEA’s allocation when compared to the More than 14.265% up to 1,871 to 6,910 ...... 2.0 21.553% ...... 1.75 6,911 to 42,000 ...... 2.5 LEA’s allocation for the preceding year. More than 21.553% up to 42,001 or more ...... 3.0 (3) The hold-harmless shall be 29.223% ...... 2.50 applied separately for basic grants, More than 29.223% up to (c) Amount of LEA grant. An SEA concentration grants, and targeted 36.538% ...... 3.25 shall allocate targeted grant funds to grants, and shall be applied for each More than 36.538% ...... 4.00 eligible LEAs as provided in § 200.20 grant formula only in those years based on the weighted child count authorized under section 1122(c) of the Act, as shown in the table contained in or; determined in paragraph (b) of this section, except that the SEA shall apply paragraph (a)(4) of this section. (2) Number-weighted child count. The the hold-harmless provisions described (4) Under section 1122(c) of the Act, number of children counted under in § 200.25. the hold-harmless percentage varies § 200.21 multiplied by the weights (Authority: 20 U.S.C. 6335) based on the year and, for school years shown in the following table, with the 1997–98 and beyond, based on the weights applied in a step-wise manner § 200.25 Applicable hold-harmless LEA’s number of children counted so that only those children above each provisions. under § 200.21 as a percentage of the weighting threshold receive the higher (a) General. (1) An SEA may not total number of children ages 5–17, weight: reduce the allocation of an eligible LEA inclusive, in the LEA, as shown in the below the hold-harmless amounts following table: Hold- harm- LEA's § 200.21 children as a percent- less School year age of children ages 5±17, inclusive per- Applicable grant formulas cent- age 1995±96 ..... Not applicable ...... 85 Basic Grants. 1996±97 ..... Not applicable ...... 100 Basic Grants and Concentration Grants. 1997±98 30% or more ...... 95 Basic Grants and Targeted Grants. and be- yond. 15% or more and less than 30% ...... 90 Less than 15% ...... 85 (5) For school year 1995–96, the SEA (c) Eligibility for hold-harmless (ii) Children in local institutions for shall compute each LEA’s hold- protection. An LEA must be eligible for delinquent children; and harmless amount without regard to the basic grant, concentration grant, and (iii) Neglected and delinquent amount the LEA received for delinquent targeted grant funds in order for the children in community-day school children counted under section 1005 of respective provisions in paragraphs (a) programs; Chapter 1 of Title I of the Elementary and (b) of this section to apply. (b) Meet the requirements for parental and Secondary Education Act of 1965 as (Authority: 20 U.S.C. 6332(c)) involvement in section 1118(a)(3) of the in effect on September 30, 1994. Act; (b) Adjustment for insufficient funds. § 200.26 [Reserved] (c) Administer programs for public (1) School year 1995–96. If the and private school children under this Procedures for the Within-District Secretary’s allocation for a county is not part, including special capital expenses Allocation of LEA Program Funds sufficient to give an LEA 85 percent of not paid for from funds provided under the amount it received for school year § 200.27 Reservation of funds by an LEA. § 200.16 that are incurred as a result of 1994–95, without regard to the amount Before allocating funds in accordance implementing alternative delivery the LEA received for delinquent with § 200.28, an LEA shall reserve systems to comply with the children, the SEA may use funds funds as are reasonable and necessary requirements of Aguilar v. Felton; and received under Part D, subpart 2 (local to— (d) Conduct other authorized agency programs) of the Act to bring activities such as professional (a) Provide services comparable to such LEA up to its hold-harmless development, school improvement, and those provided to children in amount. coordinated services. (2) School years 1997–98 and beyond. participating school attendance areas and schools to serve— (Authority: 20 U.S.C. 6313(c)(3), 6317(c), If the Secretary’s allocation for a county 6319(a)(3), 6320) is not sufficient to meet the LEA hold- (1) Children in local institutions for harmless requirements of paragraph (a) neglected children; and § 200.28 Allocation of funds to school of this section, the SEA shall reallocate (2) Where appropriate— attendance areas and schools. funds proportionately from all other (i) Eligible homeless children who do (a)(1) An LEA shall allocate funds LEAs in the State that are receiving not attend participating schools, under this subpart to school attendance funds in excess of the hold-harmless including providing educationally areas or schools, identified as eligible amounts specified in paragraph (a) of related support services to children in and selected to participate under section this section. shelters; 1113(a) or (b) of the Act, in rank order Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34811 on the basis of the total number of poverty than to areas or schools with including a migratory dairy worker, or children from low-income families in lower concentrations of poverty. a migratory fisher, and who, in the each area or school. (d) An LEA may reduce the amount of preceding 36 months, in order to obtain, (2)(i) In calculating the total number funds allocated under this section to a or accompany such parent, spouse, of children from low-income families, school attendance area or school if the guardian in order to obtain, temporary the LEA shall include children from area or school is spending supplemental or seasonal employment in agricultural low-income families who attend private State or local funds for programs that or fishing work— schools, using— meet the requirements in § 200.62(c). (1) Has moved from one school (A) The same poverty data, if (e) If an LEA contains two or more district to another; available, as the LEA uses to count counties in their entirety, the LEA shall (2) In a State that is comprised of a public school children; or distribute to schools within each county single school district, has moved from (B) If the same data are not available, a share of the LEA’s total grant that is one administrative area to another comparable data— no less than the county’s share of the within such district; or (1) Collected through alternative child count used to calculate the LEA’s grant. (3) Resides in a school district of more means such as a survey; or than 15,000 square miles, and migrates (2) From existing sources such as (Authority: 20 U.S.C. 6313(c), 6333(c)(2)) a distance of 20 miles or more to a AFDC or tuition scholarship programs. § 200.29 [Reserved] temporary residence to engage in a (ii) If complete actual poverty data are fishing activity. not available on private school children, Subpart BÐEven Start Family Literacy (e) Migratory fisher means a person an LEA may extrapolate from actual Program who, in the preceding 36 months, has data on a representative sample of moved from one school district to private school children the number of § 200.30 Migrant Education Even Start another, or from one administrative area Program Definition. children from low-income families who to another within a State that is attend private schools. Eligible participants under the comprised of a single school district, in (iii) For the 1995–96 school year only, Migrant Education Even Start Program order to obtain temporary or seasonal if adequate data on the number of (MEES) are those who meet the employment in fishing activities as a private school children from low- definitions of a migratory child, a principal means of livelihood. This income families are not available under migratory agricultural worker or a definition also includes a person who, paragraph (a)(2) (i) or (ii) of this section, migratory fisher in § 200.40. in the preceding 36 months, resided in the LEA shall derive the number of (Authority: 20 U.S.C. 6362, 6511) a school district of more than 15,000 private school children from low- square miles, and moved a distance of §§ 200.31Ð200.39 [Reserved] income families by applying the poverty 20 miles or more to a temporary percentage of each participating public Subpart CÐMigrant Education residence to engage in a fishing activity school attendance area to the number of as a principal means of livelihood. private school children who reside in Program (f) Principal means of livelihood that area. § 200.40 Program definitions. means that temporary or seasonal (3) If an LEA ranks its school The following definitions apply to agricultural or fishing activity plays an attendance areas or schools below 75 programs and projects operated under important part in providing a living for percent poverty by grade span this subpart: the worker and his or her family. groupings, the LEA may determine the (a) Agricultural activity means— (Authority: 20 U.S.C. 6391–6399, 6511) percentage of children from low-income (1) Any activity directly related to the families in the LEA as a whole for each production or processing of crops, dairy § 200.41 Use of program funds for unique grade span grouping. products, poultry or livestock for initial program function costs. (b)(1) Except as provided in commercial sale or personal paragraphs (b)(2) and (d) of this section, An SEA may use the funds available subsistence; from its State Migrant Education an LEA shall allocate to each (2) Any activity directly related to the participating school attendance area or Program to carry out other cultivation or harvesting of trees; or administrative activities, beyond those school an amount for each low-income (3) Any activity directly related to fish child that is at least 125 percent of the allowable under § 200.61, that are farms. unique to the MEP, including those that per-pupil amount of funds the LEA (b) Fishing activity means any activity are the same or similar to those received for that year under subpart 2 of directly related to the catching or performed by LEAs in the State under Part A of Title I. The LEA shall calculate processing of fish or shellfish for initial subpart A. These activities include but this per-pupil amount before the LEA commercial sale or personal are not limited to— reserves any funds under § 200.27, using subsistence. the poverty measure selected by the (c) Migratory agricultural worker (a) Statewide identification and LEA under section 1113(a)(5) of the Act. means a person who, in the preceding recruitment of eligible migratory (2) If an LEA is serving only school 36 months, has moved from one school children; attendance areas or schools in which the district to another, or from one (b) Interstate and intrastate percentage of children from low-income administrative area to another within a coordination of the State MEP and its families is 35 percent or more, the LEA State that is comprised of a single local projects with other relevant is not required to allocate a per-pupil school district, in order to obtain programs and local projects in the State amount of at least 125 percent. temporary or seasonal employment in and in other States; (c) An LEA is not required to allocate agricultural activities (including dairy (c) Procedures for providing for the same per-pupil amount to each work) as a principal means of educational continuity for migratory participating school attendance area or livelihood. children through the timely transfer of school provided the LEA allocates (d) Migratory child means a child who educational and health records, beyond higher per-pupil amounts to areas or is, or whose parent, spouse, or guardian that required generally by State and schools with higher concentrations of is, a migratory agricultural worker, local agencies. 34812 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations (d) Collecting and using information § 200.45 Responsibilities for participation of except that the terms ‘‘individual’’ and for accurate distribution of subgrant children in private schools. ‘‘children and youth’’ used in those funds; and An SEA and its operating agencies definitions mean ‘‘children and youth’’ (e) Development and implementation shall conduct programs and projects as defined in this section. of a statewide plan for needs assessment under this subpart in a manner Locally operated correctional facility and service delivery. consistent with the basic requirements means a facility in which persons are of section 1120 of the Act. confined as a result of a conviction for (f) Supervision of instructional and (Authority: 20 U.S.C. 6394) a criminal offense, including persons support staff. under 21 years of age. The term also (Authority: 20 U.S.C. 6392, 6511) §§ 200.46±200.49 [Reserved] includes a local public or private institution and community day program § 200.42 Responsibilities of SEAs and Subpart DÐPrevention and or school not operated by the State that operating agencies for assessing the Intervention Programs for Children and serves delinquent children and youth. effectiveness of the MEP. Youth Who Are Neglected, Delinquent, Migrant youth means the same as or At-Risk of Dropping Out (a) Each SEA and operating agency ‘‘migratory child’’ as that term is receiving funds under the MEP has the § 200.50 Program definitions. defined in § 200.40(d). responsibility to determine the (a) The following definitions apply to (Authority: 20 U.S.C. 6432, 6472) effectiveness of its program and projects the programs authorized in Part D, § 200.51 SEA counts of eligible children. in providing migratory students with subparts 1 and 2 of Title I of the Act: the opportunity to meet the same Children and Youth means the same To receive an allocation under Part D, challenging State content and as ‘‘children’’ as that term is defined in subpart 1 of Title I of the Act, an SEA performance standards, required under § 200.65(a). must provide the Secretary with a count § 200.2, that the State has established for (b) The following definitions apply to of children and youth under the age of all children. the programs authorized in Part D, 21 enrolled in a regular program of instruction operated or supported by (b) To determine the effectiveness of subpart 1 of Title I of the Act: State agencies in institutions or its program and projects, each SEA and Institution for delinquent children community day programs for neglected operating agency receiving MEP funds and youth means, as determined by the or delinquent children and youth and shall, wherever feasible, use the same SEA, a public or private residential adult correctional institutions as high-quality yearly student assessments facility that is operated primarily for the specified in paragraphs (a) and (b) of or transitional assessments that the State care of children and youth who— this section: establishes for use in meeting the (1) Have been adjudicated to be (a) Enrollment. (1) To be counted, a requirements of § 200.4. delinquent or in need of supervision; and child or youth must be enrolled in a (c) In a project where it is not feasible (2) Have had an average length of stay regular program of instruction for at to use the same student assessments that in the institution of at least 30 days. least— are being used to meet the requirements Institution for neglected children and (i) 20 hours per week if in an of § 200.4 (e.g., in a summer-only youth means, as determined by the SEA, institution or community day program project, or in a project where no a public or private residential facility, for neglected or delinquent children; or migratory students are enrolled at the other than a foster home, that is (ii) 15 hours per week if in an adult time the State-established assessment operated primarily for the care of correctional institution. takes place), the SEA must ensure that children and youth who— (2) The State agency shall specify the the relevant operating agency carries out (1) Have been committed to the date on which the enrollment of some other reasonable process or institution or voluntarily placed in the neglected or delinquent children is processes for examining the institution under applicable State law determined under paragraph (a)(1) of effectiveness of the project. due to abandonment, neglect, or death this section, except that the date (Authority: 20 U.S.C. 6394) of their parents or guardians; and specified shall be— (2) Have had an average length of stay (i) Consistent for all institutions or § 200.43 Responsibilities of SEAs and in the institution of at least 30 days. community day programs operated by operating agencies for improving services Regular program of instruction means the State agency; and to migratory children. an educational program (not beyond (ii) Represent a school day in the While the specific school grade 12) in an institution or a calendar year preceding the year in improvement requirements of section community day program for neglected which funds become available. 1116 of the statute do not apply to the or delinquent children that consists of (b) Adjustment of enrollment. The MEP, SEAs and local operating agencies classroom instruction in basic school SEA shall adjust the enrollment for each receiving MEP funds shall use the subjects such as reading, mathematics, institution or community day program results of the assessments carried out and vocationally oriented subjects, and served by a State agency by— under § 200.42 to improve the services that is supported by non-Federal funds. (1) Multiplying the number provided to migratory children. Neither the manufacture of goods within determined in paragraph (a) of this the institution nor activities related to section by the number of days per year (Authority: 20 U.S.C. 6394) institutional maintenance are the regular program of instruction operates; and § 200.44 Use of MEP funds in schoolwide considered classroom instruction. projects. (c) The following definitions apply to (2) Dividing the result of paragraph the local agency program authorized in (b)(1) of this section by 180. Funds available under Part C of Title Part D, subpart 2 of Title I of the Act: (c) Date of submission. The SEA must I of the Act may be used in a schoolwide Immigrant children and youth and annually submit the data in paragraph program subject to the requirements of Limited English Proficiency have the (b) of this section no later than January § 200.8(c)(3)(ii)(B)(1). same meanings as those terms are 31. (Authority: 20 U.S.C. 6396) defined in section 7501 of the Act, (Authority: 20 U.S.C. 6432) Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34813 §§ 200.52±200.59 [Reserved] when the amounts remaining are (iv) Uses the State’s system of insufficient to pay all LEAs the hold- assessment to review the effectiveness Subpart EÐGeneral Provisions harmless amounts provided in § 200.25, of the program. § 200.60 Reservation of funds for State the SEA shall ratably reduce each LEA’s (3) A supplemental State or local administration and school improvement. hold harmless allocation to the amount program will be considered to meet the requirements of section 1115 if the (a) State administration. An SEA may available. program— reserve for State administration (Authority: 20 U.S.C. 6303, 6513(c)) (i) Serves only children who are activities authorized in section 1603 of § 200.61 Use of funds reserved for State failing, or most at risk of failing, to meet the Act no more than— administration. the State’s challenging student (1) One percent from each of the An SEA may use any of the funds that performance standards; amounts allocated to the State or (ii) Provides supplementary services Outlying Area under section 1002(a), it has reserved under § 200.60(a) to perform general administrative activities designed to meet the special educational (c), and (d) of the Act; or needs of the children who are (2)(i) $400,000 ($50,000 for the necessary to carry out, at the State level, participating to support their Outlying Areas), whichever is greater. any of the programs authorized under achievement toward meeting the State’s (ii) An SEA reserving $400,000 under Title I of the Act. student performance standards that all paragraph (a)(2)(i) of this section shall (Authority: 20 U.S.C. 6513(c)) children are expected to meet; and reserve proportionate amounts from § 200.62 [Reserved] (iii) Uses the State’s system of each of the amounts allocated to the assessment to review the effectiveness State or Outlying Area under section § 200.63 Supplement, not supplant. of the program. 1002(a), (c), and (d) of the Act. (a) Except as provided in paragraph (4) These conditions also apply to (b) School improvement. (1) To carry (c) of this section, a grantee or supplemental State and local funds out school improvement activities subgrantee under subparts A, C, or D of expended under sections 1113(b)(1)(C) authorized under sections 1116 and this part may use funds available under and 1113(c)(2)(B) of the Act. 1117 of the Act, an SEA may reserve no these subparts only to supplement the (Authority: 20 U.S.C. 6322(b)) more than .5 percent from each of the amount of funds that would be made amounts allocated to the State or available, in the absence of funds made § 200.64 Maintenance of effort. Outlying Area under section 1002(a), available under subparts A, C, and D (a) General. An LEA receiving funds (c), and (d) of the Act. from non-Federal sources for the under subparts A or C may receive its (2)(i) An SEA shall have available education of pupils participating in full allocation of funds under subparts from funds received under section programs assisted under subparts A, C, A and C if it finds that either the 1002(f) of the Act or reserved under and D and in no case may funds combined fiscal effort per student or the paragraph (b)(1) of this section no less available under these subparts be used aggregate expenditures of State and than $200,000 ($25,000 for the Outlying to supplant those non-Federal funds. local funds with respect to the provision Areas) to carry out school improvement (b) To meet the requirement in of free public education in the LEA for activities. paragraph (a) of this section, a grantee the preceding fiscal year was not less (ii)(A) If funds made available for or subgrantee under subparts A, C, or D than 90 percent of combined fiscal effort school improvement under section is not required to provide services under per student or the aggregate 1002(f) of the Act do not equal $200,000 subparts A, C, or D through the use of expenditures for the second preceding ($25,000 for Outlying Areas), the SEA a particular instructional method or in fiscal year. shall reserve funds in accordance with a particular instructional setting. (b) Meaning of ‘‘preceding fiscal paragraph (b)(1) of this section. (c)(1) For purposes of determining year’’. For purposes of determining (B) If the amount reserved under compliance with paragraph (a) of this maintenance of effort, the ‘‘preceding paragraph (b)(1) when added to funds section, a grantee or subgrantee under fiscal year’’ is the Federal fiscal year or received under section 1002(f), does not subparts A or C may exclude the 12-month fiscal period most equal $200,000 ($25,000 for the supplemental State and local funds commonly used in a State for official Outlying Areas), the SEA shall reserve spent in any eligible school attendance reporting purposes prior to the additional funds under section 1002(a), area or eligible school for programs that beginning of the Federal fiscal year in (c), and (d) as are necessary to make meet the requirements of section 1114 which funds are available. $200,000 ($25,000 for the Outlying or section 1115 of the Act. Areas) available to the SEA. (2) A supplemental State or local Example: For funds first made available on July 1, 1995, if a State is using the Federal (c) Reservation from section 1002(a) program will be considered to meet the funds. In reserving funds for State fiscal year, the ‘‘preceding fiscal year’’ is requirements of section 1114 if the Federal fiscal year 1994 (which began on administration and school improvement program— October 1, 1993) and the ‘‘second preceding under section 1002(a) of the Act, an SEA (i) Is implemented in a school that fiscal year’’ is Federal fiscal year 1993 (which shall— meets the schoolwide poverty threshold began on October 1, 1992). If a State is using (1) Reserve proportionate amounts for eligibility in § 200.8(b); a fiscal year that begins on July 1, 1995, the from each of the State’s basic grant, (ii) Is designed to upgrade the entire ‘‘preceding fiscal year’’ is the 12-month concentration grant, and targeted grant educational program in the school to period ending on June 30, 1994, and the allocations; and support students in their achievement ‘‘second preceding fiscal year, is the period (2) Ensure that from the funds toward meeting the State’s challenging ending on June 30, 1993. remaining for basic grants, student performance standards; (c) Expenditures. (1) To be concentration grants, and targeted grants (iii) Is designed to meet the considered. In determining an LEA’s after reserving funds for State educational needs of all children in the compliance with the maintenance of administration and school school, particularly the needs of effort requirement, the SEA shall improvement, no eligible LEA receives children who are failing, or most at risk consider the LEA’s expenditures from less than the hold-harmless amounts of failing, to meet the State’s challenging State and local funds for free public determined under § 200.25, except student performance standards; and education. These include expenditures 34814 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations for administration, instruction, assurances required by section 1111(c) Education and Minority Languages attendance and health services, pupil of Title I to be included in a State plan. Affairs. transportation services, operation and Discussion: The assurances in section Discussion: Section 1111(b)(3)(F)(iii) maintenance of plant, fixed charges, and 1111(c) relate to the additional of Title I requires that each State’s net expenditures to cover deficits for responsibilities of States to support assessments provide for the inclusion of food services and student body teaching and learning. The Department LEP students who shall be assessed, to activities. mailed to all States guidance for the the extent practicable, in the language (2) Not to be considered. The SEA development of a Title I State plan and and form most likely to yield accurate shall not consider the following for consolidated applications that and reliable information on what such expenditures in determining an LEA’s include Title I. There is no need also to students know and can do to determine compliance with the maintenance of reference the assurances in the such students’ mastery of skills in effort requirement: regulations. subjects other than English. Also, (i) Any expenditures for community Changes: None. section 1111(b)(5) of Title I requires that services, capital outlay, and debt Comment: A number of commenters each State plan identify the languages service; and commented on the requirement in other than English that are present in (ii) Any expenditures made from § 200.1(b)(2)(iii) of the regulations to the participating student population and funds provided by the Federal identify the languages other than indicate the languages for which yearly Government for which the LEA is English for which yearly student student assessments are not available required to account to the Federal assessments are needed but not and are needed. Government directly or through the available, and then develop assessments Section 200.1(b)(2)(iii)(B) of the SEA. for all those languages according to a regulations requires each State plan to timetable established in the State plan. include a timetable for progress towards (Authority: 20 U.S.C. 6322(a)) Several commenters contended that this the development of these assessments to § 200.65 Definitions. requirement is unreasonable because it ensure that States match their needs for would be very expensive and time The following definitions apply to LEP assessments to a workable timetable consuming. Moreover, in some cases, programs and projects operated under that, over time, would improve the assessment would apply only to a this part: participation of LEP students in high- few students and might not meet the (a) Children means— quality, yearly assessments. The same standards of validity and (1) Persons up through age 21 who are Secretary recognizes that there are many reliability established for other entitled to a free public education problems that must be addressed in the assessments. Several commenters through grade 12; and process, including issues involving suggested that the development of these (2) Preschool children. time, expense, and usefulness of such assessments in languages other than (b) Fiscal year means the Federal assessments. To help address these English be required only ‘‘to the extent fiscal year—a period beginning on issues, the Department’s Office of practicable,’’ tied to a minimum October 1 and ending on the following Bilingual Education and Minority percentage of students that speak a September 30—or another 12-month Languages Affairs and Office of certain language in a State, or only be period normally used by the SEA for Elementary and Secondary Education required when instruction is actually are developing nonregulatory guidance record-keeping. given in that language. One commenter on options that States might consider in (c) Preschool children means children suggested that the requirement to determining their own policy regarding who are— develop a timetable for progress towards the development of assessments in other (1) Below the age and grade level at the development of these assessments is languages and criteria for inclusion of which the agency provides free public unreasonable because of the large LEP students. education; and number of languages spoken in a State. Changes: None. (2) Of an age at which they can benefit Another commenter suggested that a Comment: Two commenters suggested from an organized instructional program survey rather than a binding regulation that Title I State plans include evidence provided in a school or educational be used to identify languages other than that States used recognized professional setting. English that are spoken by Title I and technical knowledge to develop (Authority: 20 U.S.C. 6315, 6511) participating students. challenging content standards and On the other hand, several performance standards that may serve as §§ 200.66±200.69 [Reserved] commenters supported this benchmarks for student performance Appendix—Analysis of Comments and requirement. One commenter and as a means of issuing rewards and Changes emphasized that States have a special sanctions for schools and districts. obligation with regard to assessing Another commenter recommended that (Note: This appendix will not be codified in the Code of Federal Regulations) limited-English proficient (LEP) performance standards in Title I schools students and must make every effort to be comparable to those established for TITLE IÐHELPING DISADVANTAGED develop assessments in languages that schools that serve middle- and upper- CHILDREN MEET HIGH STANDARDS will yield accurate information. Another income families. commenter suggested that more specific Discussion: Section 1111(b)(1)(D)(i) of Subpart AÐImproving Basic Programs reporting requirements be included for Title I and § 200.2(a)(2)(i) of the Operated by Local Educational identifying spoken languages and regulations require States to Agencies developing assessments. One demonstrate in their plan that they have Standards, Assessment, and commenter suggested that the established, or will establish, Accountability regulations provide guidelines for challenging content standards in inclusion of LEP students in State academic subjects that specify what all Section 200.1 Contents of a State Plan assessments and another commenter children are expected to know and be Comment: One commenter suggested suggested that the regulations address able to do, contain coherent and that the regulations include the access to assistance from the rigorous content, and encourage the assurances or a reference to the Department’s Office of Bilingual teaching of advanced skills to all Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34815 children. In addition, section Section 200.2 State Responsibilities for flexibility to develop and refine, over 1111(b)(1)(D)(ii) of Title I and Developing Challenging Standards the next five years, its own approach for § 200.2(a)(2)(ii) of the regulations Comment: One commenter suggested establishing high-quality assessments require States to establish challenging that the regulations and guidance need that will effectively assess learning. The student performance standards that are to clarify that a State may adopt or definition of adequate yearly progress aligned with the State’s content approve locally developed standards must be flexible to accommodate standards and that include two levels of and assessments under the Goals 2000 changes in State approaches to assessment. It does not make sense to high performance and a third level of process or another State process for use require one standard for determining partial proficiency against which the in the Title I program. Another adequate progress when assessments progress of students and schools can be commenter recommended that the used to measure that progress may be measured. Also, § 200.1(b)(1)(i)(B) of the Department clarify whether State different during the transition period. regulations requires that a State plan standards and assessments must be The Secretary, however, does not expect include evidence that the State’s uniform throughout the State for Title I States to establish lower expectations procedure for setting student accountability purposes. This performance levels applies recognized during the transitional period. commenter suggested that past Changes: None. professional and technical knowledge. experience with LEAs establishing high Comment: One commenter suggested Finally, provisions in sections 1116 and school graduation standards resulted in that references to adequate yearly 1117 of Title I focus on recognized high-level proficiencies for affluent progress in different regulatory sections professional and technical knowledge as communities and low-level are repetitive and could be confusing. a basis for State systems for rewarding proficiencies for poor communities. Discussion: State and local school districts and holding them Discussion: Section 1111(b)(1)(B) of accountability for helping Title I accountable for progress. The Secretary Title I and §§ 200.2(b) and 200.4(c) of children meet high standards is a believes these provisions adequately the regulations make clear that, if a State central theme in the Title I statute. address the concerns of the commenters. has State content standards or State Adequate yearly progress plays a pivotal Changes: None. student performance standards and an role in measuring accountability and it aligned set of assessments for all is part of several different statutory Comment: Several commenters students developed under Title III of the sections. The regulations clarify these suggested that § 200.1(b)(2)(ii)(B) of the Goals 2000: Educate America Act or statutory provisions, first with regard to regulations, which requires the State another process, the State must use the State plan and then in subsequent plan to describe the transitional set of those standards and assessments, sections devoted to implementation. yearly statewide assessments the State modified, if necessary, to conform with The Secretary believes that adequate will use to assess students’ performance the requirements of section 1111 of Title yearly progress needs emphasis in the in mastering complex skills and I, to carry out Part A. Guidance for Goals regulations to help maintain an overall challenging subject matter, be replaced 2000 requires that participating States focus on enabling children in Title I with the statutory language in section develop or adopt challenging content programs to meet the same high 1111(b)(7) of Title I that, in the and performance standards. It does not standards expected of all children. commenters’ opinion, makes require that there be a single set of Changes: None. transitional assessments an option for content or performance standards that Comment: Two commenters argued States instead of a requirement. Two are applied uniformly to every LEA that repetition of the statute regarding commenters expressed concerns that, within the State. A State may choose to adequate yearly progress without because the regulatory provision only develop or adopt model standards or additional explanation provides requires States to describe transitional criteria against which locally developed insufficient guidance to grantees. assessments, it sends the message that standards would be measured and Discussion: Section 200.3(b)(2) of the States need not go through the approval approved. regulations provides that a State’s process. Changes: None. determination of adequate yearly progress must be sufficiently rigorous to Discussion: Section 1111(b)(7) of Title Section 200.3 Requirements for achieve the goal of helping all children I states that, if a State does not have Adequate Progress final assessments that fully meet the served under Part A, particularly Comment: One commenter suggested statutory requirements, ‘‘the State may economically disadvantaged and LEP that the phrase ‘‘except as provided in propose to use a transitional set of children, meet the State’s proficient and paragraph (c) of this section’’ should be yearly statewide assessments that will advanced levels of performance within deleted from § 200.3(a) of the assess the performance of complex skills an appropriate timeframe. Each State regulations, suggesting that it appears to and challenging subject matter.’’ The has the flexibility to develop its own require States to develop two different Secretary does not believe that use of definition within its framework for definitions of adequate yearly progress. standards and assessments. Standards the word ‘‘may’’ in this context means The commenter argued that, while that transitional assessments are and assessments will differ from State to Congress intended for States to use State, along with definitions of adequate optional. Rather, the Secretary believes different measures in transitional and that the word ‘‘may’’ permits the use of progress for each State’s schools and final assessment periods to determine LEAs. Some models and examples will transitional assessments while final adequate yearly progress, Congress also be provided through policy guidance. assessments are being developed, rather intended that States develop one Changes: None. than requiring final assessments standard for determining adequate Comment: One commenter suggested immediately. Moreover, because yearly progress regardless of the that adequate yearly progress be based transitional assessments are part of the assessment period. on empirical data on or knowledge State plan, they are subject to peer Discussion: The Secretary believes about growth in academic performance review and approval under section that § 200.3 (a) and (c) of the regulations of schools and LEAs in the State in 1111(d) of Title I. accurately reflect the statute and is order to prevent States from arbitrarily Changes: None. necessary to give each State the using a benchmark. 34816 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations Discussion: Section 200.3(b)(3) of the schools are doing compared to other are sufficient for Title I accountability regulations requires that adequate yearly schools in the district and State. In purposes as permitted in § 200.4(c)(1) of progress be defined in a manner that addition, Chapter assessments, which the regulations. Many commenters links progress primarily to performance used gains of individual students, rather agreed with the regulations that on the State’s assessment system under than a specified level of expected accountability in math and reading/ § 200.4, while permitting progress to be achievement, often resulted in minimal language arts was sufficient for Title I established in part through the use of expectations of gains being set for purposes. A number of other other measures, such as dropout, Chapter 1 children. While the children commenters, however, recommended retention, and attendance rates. The improved, they were still performing far that Title I schools be held accountable Secretary expects that a State, in below a level needed for successful for all areas in which the State has developing its definition of adequate completion of school and employment. developed standards and assessments in progress, would draw on knowledge and Classroom teachers will continue—as order to break the mold of Title I as a empirical data about the degree of they do now—to assess individual remedial reading and math program progress that should be expected of children to determine their performance with lower expectations for the children effective schools. and improvement on an ongoing basis. served. A handful of commenters Changes: None. Changes: None. recommended a different resolution— Comment: One commenter suggested Comment: One commenter requested that science be assessed in addition to that the regulations require SEAs and that the regulations allow a State to reading and math to reflect the LEAs to make every effort to notify define adequate progress in terms of importance of that subject or that Title private schools about the SEA’s progress made over either a one- or two- I accountability be based on those definition of adequate yearly progress. year period for the purpose of meeting subject areas in which Title I services Discussion: The definition of adequate the requirements of Title I are provided. yearly progress that an SEA establishes accountability. Discussion: This issue continues to be will be the standard against which Discussion: States have the discretion one of the most difficult to resolve schools and LEAs will be measured as to define adequate yearly progress over because each of the two major options to whether they are enabling children to a one- or two-year period as long as the has important advantages but also meet the State’s challenging student definition is sufficiently rigorous to significant drawbacks. A major goal of performance standards. While private achieve the goal that all children served the reauthorization is to redirect Title I schools are not recipients of Title I under Part A, particularly economically from a low-level reading and math add- funds, the Department will issue policy disadvantaged and LEP children, meet on program to a significant resource for guidance that will, for the purpose of the State’s proficient and advanced high-poverty Title I schools to use to private school student Title I levels of performance within an promote comprehensive schoolwide participants, address whether private appropriate timeframe. improvement in teaching and learning school students served by Title I, but Changes: None. geared to the same challenging not private schools, are making standards expected of all children. Section 200.4 State Responsibilities for adequate yearly progress toward There is significant and legitimate meeting the standards. Assessment concern that permitting Title I Changes: None. Comment: One commenter suggested accountability to be limited to reading Comment: One commenter expressed that the regulations inform SEAs and and math will stymie the shift toward concern regarding the statement in the LEAs of their responsibilities regarding comprehensive schoolwide reform, preamble of the Notice of Proposed the assessment of participating private reinforce lower expectations for Title I Rulemaking (NPRM) that the new Title school children and specify that the schools, and send a message that other I will shift from ‘‘an evaluation of how expenses of conducting the assessment subjects are not important for children individual students are performing to an are allowable costs under Title I. in high-poverty schools to learn. There evaluation of how well schools and Discussion: The assessment is also the concern that this provision LEAs are helping students meet the requirements in the statute apply to will lead States, LEAs, and schools to challenging standards’’ since States will private school students as well as public abrogate their responsibility for the be assessing changes in the performance school students who participate in Title performance of students served by Part of different cohorts of students. The I. The Department will clarify in A in all other subject areas besides commenter argued that changes in test guidance that Title I funds may be used reading and math. Extending Title I scores are likely to reflect differences in to assess private school children if they accountability to include all subjects in the groups of students instead of would not otherwise be participating in which a State has standards and changes in school or LEA performance, the State assessment. However, if assessments, including applying Title I particularly in poor urban districts with private school children, in general, are assessment requirements to each of high rates of student mobility. included in the State assessment, Title those subjects, however, also raises Discussion: The impact of the Title I I funds may not be used to pay for the significant concerns about federal program cannot be divorced from that of assessment of those private school overreaching and the imposition of the regular program. This is particularly children participating in Title I. unwarranted and excessive burden. In true as an increasing number of Title I Changes: None. addition, it risks creating additional schools develop schoolwide programs. Comment: Many comments were disincentives to developing new State Although the assessment systems received regarding the issue on which standards and limits the ability of States operated by States and LEAs generally the Secretary specifically invited and LEAs to take advantage of test only some grades, the Secretary comments in the NPRM: whether innovations in performance assessments believes that they will provide more accountability under Title I should be since, in the short run, many of those revealing data than the current Chapter based on all subject areas for which a assessments will not be able to satisfy 1 testing system on the success of Title State has developed or adopted the Title I assessment requirements—at I schools and children served by Title I standards and assessments for all least in a timely and cost-efficient way. because they will be tied to high children or whether assessments in Needing to give effect to the statutory standards and will show how Title I mathematics and reading/language arts language that a State must have Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34817 developed or adopted a set of mathematics and reading/language arts requirements, particularly those relating assessments in at least mathematics and that measure performance in to validity, reliability, and reading/language arts while not mathematics and reading/language arts. disaggregation, may end up frustrating imposing additional requirements at the References to these clarifications are Title I’s longer-term goal of promoting Federal level, the Secretary has retained reflected in § 200.1 regarding State plan high-quality innovative assessments the requirement that a State must use requirements and throughout § 200.4 in aligned with challenging standards. assessments that measure performance provisions related to the development or Developing new, high-quality in math and reading/language arts to adoption of State assessments. assessments that conform with these determine accountability under Part A. Comment: A number of commenters requirements will require time—time Nevertheless, the Secretary is concerned proposed that some or all of the criteria that the transition period is precisely that Title I not continue to be viewed as applicable to the final assessments designed to provide. If the same criteria solely a remedial program in math and under Title I be applied to the are applied to transitional assessments reading. In addition, he wishes to afford transitional assessments. The as to the final assessments, this purpose appropriate flexibility to States as they commenters were concerned that, would be nullified and States, in effect, begin to implement Goals 2000 plans. without additional transitional may have to develop two systems. Therefore, the Secretary has revised requirements, States would be relieved Title I and the regulations, however, § 200.4 to clarify that a State’s of accountability during the entire clearly intend that all children within assessments need not be focused solely reauthorization period. A number of the grades tested during the transition on math and reading/language arts. commenters recommended that the period participate in the assessment. Rather, a State may meet Title I’s regulations require all, or at least one, Moreover, section 1111(b)(7)(B) of Title assessment requirements by developing transitional assessment to be valid and I and § 200.3(c) make clear that LEAs or adopting assessments in other reliable and consistent with existing and schools must be identified for academic subjects as long as those professional and technical standards. A improvement during the transitional assessments sufficiently measure number of commenters also proposed period based on accurate information performance in math and reading/ that disaggregated data be required about the academic progress of each language arts. For example, an during the transition period, such local education agency and school. assessment in an academic subject such particularly for LEP children and poor Changes: Section 200.4(e)(1)(iii) has as social studies may sufficiently children and for schoolwide programs. been added to clarify that transitional measure performance in reading/ Other transitional assessment criteria assessments must include all students language arts. Particularly at the that commenters recommended include; in the grades assessed. secondary level, the Secretary believes it that all students, including LEP, Comment: One commenter may be especially appropriate to minority, and poor students, be recommended that the reliability and measure performance in reading/ included in transitional assessments; validity of assessments used to evaluate language arts through assessments in that transitional assessments be aligned Title I programs be established and content areas. with State standards once these described for each specific purpose or The Secretary emphasizes the standards are developed; that LEP use of the scores. Another commenter importance of all children attaining high criteria for assessments be provided; emphasized the importance of levels of performance in all core that there be individual student and conducting and reporting on validation academic subjects. Limiting the focus of interpretive reports; and that parents studies to ensure that accountability Title I accountability to math and receive the achievement information decisions are not based on flawed reading/language arts in no way is they need to be involved in the results, and another suggested that the intended to alter the overall education of their children. In addition, Department make clear that following a responsibility of States, LEAs, and three commenters supported applying particular validation process is not schools for the success of all students in all of the requirements of the final required. the core academic subjects determined assessments to the interim assessments, Discussion: Section 200.4(b)(3)(i) of by the State. If a State has standards and although one would be willing to the regulations requires that each State’s assessments for all students in subjects exempt specific technical requirements assessments be used for purposes for beyond math and reading/language arts, that need to be field tested, while the which they are valid and reliable and to the regulations do not preclude a State two others would only grant narrow be consistent with relevant, nationally from including, for accountability exceptions after careful examination. recognized professional and technical purposes, additional subject areas, and Discussion: Section 1111(a)(3)(7) of standards for those assessments. The the Secretary encourages them to do so. Title I allows States developing final Secretary believes that this provision Changes: Section 200.4(a)(1) of the assessments to use a transitional set of adequately addresses the commenters’ regulations has been revised to clarify yearly statewide assessments that concerns yet does not require a that a State may satisfy the requirement assesses the performance of complex particular validation process. to develop or adopt a set of high-quality skills and challenging subject matter. Changes: None. yearly assessments, including The Act itself contains no other criteria Comment: One commenter expressed assessments that measure performance for these assessments and § 200.4(e) of concern that the individual, group, total in at least mathematics and reading/ the regulations only clarifies that these school, and district reports required by language arts if the State has developed assessments must be at least in the regulations will be subject to error or adopted a set of high-quality yearly mathematics and reading/language arts from several sources, including student assessments in other academic and be administered during the grade measurement and sampling error: many subjects that measure the performance spans required of the final assessments. schools will have too few students in in mathematics and reading/language Neither the statute nor the legislative some of the groups for which arts. Likewise, § 200.4(e)(1)(i) has been history supports the application of other disaggregated reporting is required to revised to clarify that a State’s requirements on transitional provide reliable estimates of group transitional set of yearly statewide assessments. In fact, the Secretary performance (let alone reliable estimates assessments may be assessments in believes that requiring transitional of change). The requirements also academic subjects other than assessments to meet a host of overlook that some State assessment 34818 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations programs are designed to provide modified to read ‘‘participation in the § 200.4(b)(7)(iii), children with limited school-level rather than student-level assessment of all students, including English proficiency must be assessed, to estimates of performance. At a students served under this subpart, in the extent practicable, in the language minimum, the commenter recommends: the grades being assessed.’’ and form most likely to yield accurate adding language in § 200.4(b)(9) Discussion: Inclusion of the phrase and reliable information on what those requiring that individual student reports ‘‘in the grades being assessed’’ in students know and can do to determine include estimates of measurement error § 200.4(b)(7)(i) of the regulations is the students’ mastery of skills in for the scores and any limitations of the necessary to clarify that assessments subjects other than English. The results to permit accurate interpretation; used for Title I purposes do not have to Secretary believes these provisions adding language in § 200.4(b)(10) that assess all students in a school or all effectively address the commenters’ reports of disaggregated data should be students served by Title I, but only concerns. modified when the results would be those students in the specific grades Changes: None. unreliable or invalid due to inadequate being assessed. Within the grades being Comment: Several commenters numbers of students in the categories; or assessed, however, students being focused specifically on § 200.4(b)(7)(iii) permitting a school to report annual served under Title I must be included in concerning the assessment of limited results in a three-year rolling average to the assessment. English proficient children. One reflect that estimates from individual Changes: None. commenter recommended modifying years contain too much error to be Comment: One commenter stated that this section to make clear that the State interpreted in isolation. the requirement in § 200.4(b) of the must make every effort to use or develop Discussion: Section 200.5(a)(2)(iii)(C) regulations that the ‘‘same assessments linguistically accessible assessment of the regulations clarifies that be used to measure the performance of measures and develop appropriate disaggregated data should be reported to all children’’ should be relaxed to modifications to test formats and the public only when those data would permit appropriate modifications for administration procedures for LEP be statistically sound. It is appropriate children with diverse learning needs. students assessed in English. Another for a State to have considerable The commenter recommended commenter recommended deleting ‘‘to flexibility in determining the content of regulatory language stating that the extent practicable’’ from its assessment reports so long as those ‘‘reasonable adaptations may require § 200.4(b)(7)(iii)(A) to ensure the reports conform with the requirements modifications in item format, item assessment of all students without of the law. content, test structure, administrative regard to primary language. Changes: None. procedures and time limits that result in Discussion: The Secretary believes Comment: One commenter described a different test form and/or procedure.’’ that § 200.4(b)(7) of the regulations, some of the difficulties involved in The commenter would also require which replicates, by and large, the disaggregating data by economically those modifications to be described and language in section 1111(b)(3)(F) of Title disadvantaged children: the definition is the validity and reliability of those I is clear in its requirements that all subject to various interpretations; assessments estimated and reported. students participate in the assessments, schools currently do not collect these Another commenter suggested that the that reasonable adaptations and data in disaggregated form; collection of regulations state that all students, accommodations be provided where such data would be very difficult; and including those who are limited English necessary, and that children with current USDA guidelines limit the use proficient, have a disability, or limited English proficiency be assessed, of individual student eligibility free and otherwise might not always be included to the extent practicable, in the language reduced price lunch data to USDA in State and local assessment systems, and form most likely to yield accurate purposes only. Another commenter, be included under Title I assessment and reliable information on what those reinforcing this position, suggested that requirements, with appropriate students know and can do to determine the regulations provide as much modifications. the students’ mastery of skills in flexibility as possible regarding Discussion: Section 1111(b)(3)(A) of subjects other than English. disaggregation of data by poverty status. Title I and § 200.4(b)(1) of the Changes: None. Discussion: The Secretary recognizes regulations make clear that assessments Comment: Several commenters that there are difficulties involved in used for Title I purposes must be the expressed concerns about the addition complying with this requirement. same assessments used to measure the of the phrase ‘‘to meet this requirement’’ However, the need to determine how performance of all children, if the State in § 200.4(b)(7)(iii)(B) of the regulations. well Title I is assisting poor children to measures the performance of all To some, it suggests that States can meet meet challenging standards is acute. children. These provisions remedy the the requirement that they include LEP Changes: None. situation under Chapter 1, in which a students in their assessment by making Comment: One commenter suggested separate testing system was often used every effort to use linguistically deleting the phrase ‘‘in the grades being to assess only Chapter 1 participants. accessible assessment measures even assessed’’ from § 200.4(b)(7)(i) of the Section 200.4(b)(7)(i) of the regulations though these are two distinct and regulations on the grounds that it may makes clear that State assessments must important provisions. To another cause unnecessary problems for provide for the participation of all commenter, the provision gives the students who are placed in ‘‘ungraded’’ students in the grades being assessed. impression that assessment of LEP classes, or who have disabilities and are Section 200.4(b)(7)(ii) further clarifies students is required only when not in the age-appropriate grade. that all students includes students with assessments are available in the According to the commenter, this diverse learning needs. However, it also students’ native languages. phrase is not necessary to clarify that makes clear that reasonable adaptations Recommendations included either students in all grades need not be and accommodations must be made for deleting the phrase, or substituting the assessed and might create perverse students with diverse learning needs so words ‘‘in meeting’’ for ‘‘to meet’’ in incentives for schools wanting to that the State’s assessment measures the § 200.4(b)(7)(iii)(B). exclude students from assessments. achievement of those students relative Discussion: The Secretary agrees with Another commenter suggested that to the State’s content and performance the commenter that, as proposed, the § 200.4(b)(7)(i) of the regulations be standards. Moreover, under provision did not make clear the Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34819 requirement for including LEP students not expanded the provisions on school the public regarding how well schools in the State assessments. In meeting this improvement through regulations. The are performing. requirement, States must make every Secretary intends, however, to issue Discussion: The Secretary supports effort to develop linguistically nonregulatory guidance on these reporting data to teachers and other accessible assessments. However, even provisions, including examples to staff, parents, students, and the without such assessments, LEP students illustrate possible approaches to school community annually so that this must be included in the State’s improvement. information may be used to determine assessments. Changes: None. the effectiveness of the program and for Changes: Section 200.4(b)(7)(iii)(B) Comment: One commenter suggested school improvement purposes. has been modified by deleting the that, when an LEA reviews a targeted However, informed decisions can be phrase ‘‘to meet this requirement’’ and assistance school to determine if the made only if the data are accurate and inserting ‘‘in meeting this requirement.’’ school has made adequate progress, the statistically sound. Comment: One commenter suggested State should have the flexibility to Changes: None. that clarification is needed in decide whether to include only students Schoolwide Programs § 200.4(b)(8) of the regulations regarding served by Title I or all students who determining of those children from participate in the assessment. Section 200.8 Schoolwide Program mobile families who have attended Discussion: Section 1116(c)(1)(B)(ii) of Requirements schools in the LEA for ‘‘a full academic Title I states that an LEA shall identify Comment: Some commenters year.’’ Specifically, in districts operating for school improvement any school recommended that § 200.8(a)(1) of the year-round programs, the commenter served under this part that has not made regulations be changed to indicate that suggested that students who have adequate progress as defined in the the decision to operate a schoolwide attended school in the district for the State’s plan for two consecutive school program is an LEA decision or an LEA amount of time required of any years, except that, in the case of a decision after consultation with school- particular student must be included in targeted assistance school, such school level staff as opposed to a school determining the progress of the LEA. may be reviewed on the progress of only decision after consultation with the Discussion: The Secretary agrees that those students that have been or are LEA. According to one of the students from mobile families must be served under this part. Additionally, commenters, this change would respect included in determining an LEA’s section 1116(d)(3)(A)(i) of Title I the role of the LEA and, at the same progress if they have attended school in provides a State some flexibility in time, reinforce the concept that that LEA for the period of time reviewing the progress of an LEA. In a schoolwide programs should be necessary to meet the State’s annual State’s review of an LEA, schools served undertaken in a building on a voluntary requirement for compulsory education. by the LEA that are operating targeted basis. Changes: None. assistance programs may be reviewed on Comment: One commenter Discussion: Both section 1114 of Title the basis of the progress of only those recommended that the regulations I on schoolwide programs and section students served under Part A. expressly state that group-administered, 1115 of Title I on targeted assistance Changes: None. norm-referenced tests below grade 4 are schools emphasize greater Comment: One commenter suggested inappropriate. The same commenter decisionmaking authority at the school that language be added to § 200.5(a)(2) recommended that LEAs, not SEAs, level so that schools, in consultation to include parental involvement in the select the particular approaches to with their LEA, determine how to use annual review of the progress of each assess children’s school performance their Title I funds in ways that best meet school for school improvement since during the first 3–4 years of elementary the needs of their students. Section 1114 parental involvement is a key theme in school. contains many provisions addressing a Discussion: Under Title I, States are Title I of the Act. school’s responsibility for conducting a provided with the responsibility of Discussion: The Secretary strongly schoolwide program should the school developing assessments aligned with supports parental involvement efforts choose to operate one. By emphasizing State-developed standards. LEAs may and participation by parents in their that an eligible school makes the also implement any additional children’s learning process and believes decision to operate a schoolwide assessments. The Secretary, therefore, that such participation is crucial to the program, in consultation with its LEA, believes it is inappropriate to prescribe children’s success in school. However, § 200.8(a)(1) recognizes that schoolwide the type of assessments that SEAs and the progress of a school is measured on programs will be successful only when LEAs should use. the basis of student achievement, not the school community is fully behind Changes: None. the process to elicit that achievement. that decision and that accountability at Section 1118 of Title I contains the school level must be coupled with Section 200.5 Requirements for school comprehensive parental involvement decisionmaking authority. improvement requirements, including a requirement Changes: None. Comment: One commenter requested for the yearly review of the effectiveness Comment: One commenter requested that §§ 200.5 and 200.6 of the of the parental involvement policy in that the following language be added to regulations be expanded to cover the increasing the participation of parents. § 200.8(a)(2)(ii): ‘‘If a district selects a numerous interrelated and complex Changes: None. provider of School Support from provisions of Title I on which no Comment: One commenter supported another entity outside of the statewide regulations for program improvement the Secretary’s position in system, it must be subject to the State have been included. § 200.5(a)(2)(iii)(c) that in conducting its Validation System before the SWP plan Discussion: The Secretary is annual review, an LEA must report is approved by the local board.’’ committed to issuing regulations only disaggregated data to the public only Discussion: A State may choose to where absolutely necessary and, when when those data are statistically sound. include, as part of its State support regulating, to promoting flexible This commenter explained that system addressed in section 1117 of approaches to meeting the requirements reporting data that are not statistically Title I, provisions allowing its LEAs to of the law. As a result, the Secretary has sound will mislead policymakers and select technical assistance providers 34820 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations other than those provided by the State. children in the school and their families systems enable assessment results to be Because the responsibility is placed through comprehensive reforms of the disaggregated. Section 1111(b)(7), which upon a State to design its system of entire instructional program, rather than authorizes transitional assessments, support, this is an individual State by providing separate services to does not include the requirement for decision. specific target populations. disaggregation. Therefore, Changes: None. The Secretary emphasizes that a disaggregating assessment data for Comment: Numerous comments were school with a schoolwide program must schoolwide programs during the received on § 200.8(c) of the regulations address the needs of all children in the transitional assessment period is not combining other Federal education school, particularly the needs of required by the statute. Moreover, the program funds to support schoolwide children who are members of the target Secretary believes that requiring programs and exempting those funds population of any other Federal disaggregation during the transition from their specific program education program that is included in period would frustrate Title I’s long- requirements. Two commenters viewed the schoolwide program and that term goal of promoting high-quality, the proposed regulations as going accountability is based on how well innovative assessments aligned with beyond what Congress authorized and children in the target populations challenging standards. If there are data did not believe that the ability to perform with respect to State standards. that can be disaggregated in a combine funds exempts schools from The Secretary has not included schoolwide program, an LEA may other Federal education laws and additional provisions in the regulations certainly disaggregate that data during regulations. Several commenters asked because he does not want to impede a the transitional assessment period. that the authority to combine funds not schoolwide program school from Furthermore, the Secretary encourages extend to Title VII bilingual programs. serving all children through LEAs and schools to use information They also stated that § 200.8(c)(ii)(B), comprehensive reforms of its entire available from other sources such as which requires only that the intent and instructional program. teacher-made assessments to determine purposes of Federal education programs Changes: None. the progress of intended beneficiaries in whose funds are combined be met, is Comment: One commenter stated that the programs included in the § 200.8(c)(3)(ii)(A)(8) and (f)(1)(iii) and too vague and will allow LEAs to evade schoolwide program. (2) of the regulations concerning the intent of Congress. Some Changes: None. commenters suggested deleting application of the supplement, not Comment: One commenter requested § 200.8(c)(3)(i)(A) because they believe supplant requirement in schoolwide that language be added to that provision misconstrues the statute program schools are contradictory and § 200.8(d)(8)(C) of the regulations by exempting ‘‘programs’’ as opposed to confusing. permitting Title I funds to be used to the statutory term ‘‘provisions.’’ Other Discussion: Consistent with section conduct parent-teacher conferences in commenters suggested deleting all 1114(a)(4)(B) of Title I, parents’ native language in order to help references to ‘‘and any other Federal § 200.8(c)(3)(ii)(A)(8) of the regulations program included under (c) in this does not relieve an LEA or school LEP parents be more involved. section.’’ One commenter expressed operating a schoolwide program from Discussion: The use of Title I funds to concern that protection of services applicable supplement, not supplant conduct parent-teacher conferences, children receive will be eliminated, requirements. On the other hand, including in a parent’s native language, especially if parents are not specifically consistent with section 1114(a)(3), is an allowable and appropriate use of informed about funding and program § 200.8(f)(1)(iii) and (2) exempts a Title I funds. Given that many funding design. schoolwide program school from sources may be combined to conduct Discussion: One of the most providing supplemental services to schoolwide programs, any of the promising changes in the recent eligible children, although it requires funding sources, including Title I, could reauthorization of Title I is the the school to demonstrate that Part A provide such language-related services. expansion of schoolwide programs to funds and any other Federal education The Department is planning to issue include other Federal programs. A funds that are combined for use in a guidance on schoolwide programs that schoolwide program permits a school to schoolwide program supplement the covers additional issues, including this use funds under Part A of Title I to total amount of funds that would, in the one. Furthermore, the Department is upgrade the entire educational program absence of such funds, be made consulting with many groups with of the school and to raise academic available to the school from non-Federal knowledge on and experience with achievement for all children in the sources. Thus, the regulations do not issues concerning the specific needs of school, in contrast to categorical contradict one another. Rather, children and their parents with limited- programs in which Federal funds may paragraph (f) clarifies paragraph (c): English proficiency and will produce generally be used only for schoolwide program schools must specific guidance on activities related to supplementary educational services for comply with the modified supplement, working with LEP children and their specific target populations. not supplant requirements in section families. The Secretary strongly believes that 1114(a)(3) of Title I and § 200.8 (f)(1)(iii) Changes: None. schoolwide programs hold the greatest and (2) of the regulations. Comment: One commenter requested promise for raising the achievement of Changes: None. that § 200.8(c)(3)(ii)(B)(1) of the all children in high-poverty schools. He Comment: One commenter suggested regulations concerning a special rule for also believes the success of schoolwide that § 200.8(e)(1)(iv)(A)(2) of the migratory children in schoolwide programs depends on the ability of the regulations conform to the statutory programs be expanded to include schools to combine other Federal requirement for the collection of students from homeless, highly mobile, education program funds along with disaggregated achievement and and isolated families. Part A funds and State and local funds assessment results, which the Discussion: Part C of Title I includes to support their overall instructional commenter argues is required during the a specific provision with respect to programs. This authority affords a transitional assessment period. migratory children in schoolwide schoolwide program school significant Discussion: Section 1111(b)(3)(I) of programs, which is reflected in the flexibility to serve more effectively all Title I requires that final assessment regulations. There is no authority to Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34821 expand that provision to cover other schoolwide program, including, among who are normally served by the school target populations. other things, schoolwide reform reside. To be eligible for Title I services, Changes: None. strategies that provide opportunities for a school attendance area must have a Comment: One commenter requested all children to meet the State’s higher percentage of poverty than the that § 200.8(c)(3)(ii)(B)(1)(i) of the proficient and advanced levels of LEA as a whole. The degree of poverty regulations be revised to refer to parents student performance, that are based on in a private school is irrelevant because of migratory children ‘‘and/or’’ effective means of improving the private schools do not participate in organizations representing those achievement of children, and that use Title I. Rather, private school children parents. effective instructional strategies. are eligible because they reside in a Discussion: The Secretary agrees that Further, section 1114(b)(2) provides that public school attendance area that is an LEA may consult with both parents a school operating a schoolwide participating in Title I; thus, they would of migratory children and organizations program must develop a comprehensive have been eligible for services had they representing those parents. These plan for reforming the school that attended the public school. In essence, parties are not mutually exclusive. incorporates the components required Title I puts private school children in Changes: The Secretary has revised in section 1114(b)(1). Therefore, the the same place they would have been in § 200.8(c)(3)(ii)(B)(1)(i) to include ‘‘or statute already sufficiently ensures that had they attended a public school. both.’’ the schoolwide program plan include Changes: None. Comment: One commenter information on those areas critical to the recommended that § 200.8(d)(8)(ii)(A) Section 200.11 Factors for Determining improvement of teaching and learning. Equitable Participation of Children in and (B) of the regulations be deleted, Changes: None. arguing that the language on Private Schools Individualized Education Programs Participation of Eligible Children in Comment: Several commenters (IEP) is an unnecessary clarification that Private Schools commented on § 200.11(a)(2)(ii) (A)–(B) unfairly targets an effective strategy that Section 200.10 Responsibilities for of the regulations, which provides two helps children with special needs Providing Services to Children in Private options to an LEA for determining which eligible private school children to improve their academic achievement. Schools Discussion: This provision is included serve. One commenter suggested that a to prevent misinterpretation of the Comment: Two commenters suggested combination of the options should be statutory provision that requires a that § 200.10(a) of the regulations be allowed as a third option. Another schoolwide program to discuss with augmented to clarify that timely and commenter recommended that parents what the school will do to help meaningful consultation must occur paragraph (A), which permits the students meet the standards and before decisions are made that affect the pooling of funds generated by poor identify additional assistance that may opportunities of participating private private school children in all be available. Section 200.8(d)(8)(ii)(A) of school children and that a unilateral participating areas, be deleted because it the regulations makes clear the statute offer of services would not suffice. provides greater flexibility in serving does not require that IEPs, like those Discussion: Section 1120(a) of Title I private school children than exists for required under the Individuals with requires an LEA to provide equitable serving public school children. Other Disabilities Education Act, be developed services to eligible private school commenters recommended that for children not served in special children after timely meaningful paragraph (B) be deleted, arguing that it education. This clarification does not, consultation with private school is administratively burdensome and however, prohibit IEPs from being officials. Section 1120(b) further appears to directly benefit private developed should a schoolwide program elaborates on what constitutes timely schools. school elect to do so. and meaningful consultation. Paragraph Discussion: The regulations provide Changes: None. (b)(2) requires consultation to occur two options for utilizing the funds Comment: One commenter suggested ‘‘before the [LEA] makes any decision allocated on the basis of the number of that the Secretary focus on curriculum that affects the opportunities of eligible low-income children who reside in and instruction in its guidance to States, private school children to participate’’ participating Title I attendance area. In school districts, and schools regarding in Part A programs. These statutory consultation with private school the development of schoolwide plans. provisions clearly preclude an LEA from officials, an LEA may select one option The commenter also suggested that making a unilateral offer of services or or combine the options to best serve schools be required to explain how and consulting after services are already eligible private school children. Thus, why they designed their instructional being provided, and no further an LEA does not need to select the program and to describe any evidence regulations are needed. option in paragraph (B) if the LEA that their approach has been researched Changes: None. believes it is administratively and evaluated in peer-reviewed Comment: Several commenters argued burdensome. The Secretary does not publications. In addition, the that the definition of eligible students in believe the option for pooling funds in commenter suggested that the Secretary section 1115 of Title I does not require paragraph (A) favors private school ask schools to explain how their eligible Title I children attending children. Rather, it adds needed schoolwide programs will help students private schools to reside in a flexibility, particularly because the master the knowledge and skills participating attendance area as stated number of poor children who reside in outlined in the State content standards. in § 200.10(b)(1) of the regulations. They participating public school attendance Further, the commenter suggested that argued that the poverty of a private areas and attend a particular private the Secretary urge schools to include a school is reflective of a larger area such school may be so small that the funds timetable in their schoolwide plans as an entire LEA and, therefore, the those children generate are not showing what changes will take place attendance areas of the public school commensurate with the educational immediately and what other changes system are not relevant. needs of eligible children in that school. will follow. Discussion: Section 1113(a) of Title I Changes: None. Discussion: Section 1114(b)(1) of Title defines a public school attendance area Comment: One commenter suggested I contains the components required of a as the geographic area in which children that § 200.11(b)(2)(iii) of the regulations 34822 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations be modified to require that private the quality of equitable services dissatisfied with the SEA’s school children be provided with an provided to private school children. The determination may appeal directly to opportunity to participate in Title I in Secretary did not amend the regulations the Secretary. In reviewing an LEA’s a manner that addresses the particular because these costs would be covered appeal, the Secretary would consider needs of the private school children. under § 200.16(a)(1)(i)(A)—that is, whether the SEA’s allocation Discussion: Section 1120 of Title I capital expenses an LEA ‘‘is currently procedures in general comply with the clearly provides private school children incurring’’ to provide equitable services. statute and regulations. The Secretary an opportunity to participate in Title I Changes: None. could not waive any of the statutory or in a way that addresses their particular Comment: One commenter suggested regulatory requirements related to educational needs. It requires that that § 200.16(a)(1)(ii) of the regulations allocating funds, however. equitable services be provided and be revised to allow an LEA to apply for Changes: None. requires an LEA to consult with private a payment to cover capital expenses it Comment: One commenter requested school officials about how private incurred in prior years for which it has clarification of the provision in school children’s needs will be not been reimbursed ‘‘only’’ if the LEA § 200.20(c) of the regulations concerning identified and what services will be demonstrates that its current needs for LEAs that contain two or more counties provided. Moreover, because there is no capital expenses have been met. in their entirety. In the case of New longer a districtwide needs assessment, Discussion: The Secretary believes York City, for example, the SEA is the needs of private school children can that the regulatory language in required to allocate funds to each be determined independently from the § 200.16(a)(1)(ii) clearly does not permit county within the city school system as needs of public school children. payments for previously incurred if each county were a separate LEA. The Changes: None. capital expenses if the LEA cannot commenter asked whether the LEA or demonstrate that its current needs for Section 200.13 Requirements SEA could adjust individual county capital expenses have been met. Concerning Property, Equipment, and allocations within New York City to Changes: None. Supplies for the Benefit of Private account for poor children who live in School Children Section 200.17 Use of LEA Payments one county but attend school in another for Capital Expenses county. The commenter believes that Comment: Several commenters the Title I allocation procedures would recommended that § 200.13(d) of the Comment: One commenter supported be more equitable if adjustments could regulations be revised to afford LEAs the use of capital expenses for be made to county allocations in cases discretion in deciding whether to reimbursement of costs in prior years where poor children who live in one remove equipment and materials no but suggested that such reimbursement county attend school in another county, longer needed to provide services to not be contingent upon approval by the even though those poor children are in private school children if there is the SEA. the same LEA. possibility that the program would be Discussion: Section 200.16(a)(1)(ii) of Discussion: The situation described resumed in a subsequent year. The the regulations makes clear that an LEA by the commenter is similar to that commenters explained that new zoning may apply to the SEA for capital provided for in section 1126(b) of Title ordinances in many districts make it expense funds to cover expenses it I. Section 1126(b) allows an SEA, in very expensive, once portable units, for incurred in prior years only if the LEA cases where an LEA provides free public example, are removed, to resituate the has demonstrated that its current needs education for children who reside in the units. for capital expenses have been met. school district of another LEA, to adjust Discussion: The Secretary recognizes Section 200.17 reflects this provision. the amount of grants among the affected that, under the new law, services to Changes: None. LEAs. Because the statute requires an eligible private school children may Procedures for the Within-State SEA to treat the individual counties differ from those provided under Allocation of LEA Program Funds within a single school district as Chapter 1. The Secretary has attempted separate LEAs for allocation purposes, in § 200.28 of the regulations to provide Section 200.20 Allocation of Funds to section 1126(b) authorizes an SEA to maximum flexibility to ease the LEAs adjust the counties’ amounts because transition to the new law. Consistent Comment: One commenter asked why they are treated as LEAs. Therefore, the with that flexibility, however, if Sections 1124(a)(2) and 1125(d) of Title SEA may adjust amounts made available equipment is no longer needed to I and § 200.20(b)(2)(ii)(B) of the to the counties within a single LEA to provide equitable services to private regulations concerning direct account for poor children who live in school children, it must be removed as allocations to LEAs require the SEA to one county but attend school in another required in § 200.13(d). establish appeal procedures for an LEA county. Changes: None. dissatisfied with the determination by Changes: None. Capital Expenses the SEA when section 14401(c) of the Comment: Because of the disruption ESEA prohibits the Secretary from the ‘‘one LEA with two or more Section 200.16 Payments to LEAs for waiving any statutory or regulatory counties’’ provision in § 200.20(c) of the Capital Expenses requirement relating to the allocations regulations will cause the New York Comment: Two commenters or distribution of funds to States, LEAs, City school system, one commenter recommended amending or other recipients of funds under the recommended that the regulations allow § 200.16(a)(1)(i)(B) of the regulations to ESEA. such LEAs to use current Chapter 1 also allow capital expenses to pay for Discussion: Section 200.20(b)(2)(ii)(B) allocation procedures for two more costs that would be incurred to improve of the regulations follows the statute, years in order to minimize disruption to the quality of services provided to which requires that a State applying for ongoing projects and make the private school students. authorization to allocate funds directly transition to the new law smoother. Discussion: Capital expenses funds to LEAs without regard to counties Discussion: Section 3(a)(1)(A) of the may pay the costs of noninstructional assure that its SEA has established IASA provides that Title I shall take goods and services needed to improve procedures through which LEAs effect on July 1, 1995. The Secretary Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34823 does not have authority to delay this areas or schools with poverty rates of 35 Title I funds because their children effective date. percent or more is not subject to this made academic gains. Even though Changes: None. requirement. funds are allocated to participating areas Changes: A change has been made. and schools on the basis of poverty, Section 200.25 Applicable Hold- The Secretary has amended however, educationally needy children Harmless Provisions § 200.27(b)(1) of the regulations to make in those schools do not need to be poor Comment: One commenter opposed clear that an LEA subject to the 125 to receive services. Title I continues to the provision in § 200.25(c) of the percent rule must calculate its be an education program. regulations that requires an LEA to be minimum per pupil allocation before Changes: None eligible for basic, concentration, or the LEA reserves any funds. Comment: One commenter stated that targeted grants in order for the Comment: One commenter believed the Secretary should not regulate how respective hold-harmless provisions to the reference to capital expenses in LEAs distribute funds to schools with apply. The commenter believes this § 200.27(c) of the regulations is incorrect poverty rates of at least 35 percent. provision penalizes poor students with because it is a separate Title I program According to the commenter, the educational needs who live in wealthy that the SEA subgrants to LEAs. Several decision on how to allocate funds in districts. other commenters recommended that a such cases should be an LEA decision; Discussion: Sections 1124 (basic separate provision be included for regulations in this area represent a grants), 1124A (concentration grants), reserving funds for capital expenses. Federal intrusion into local school Discussion: Although capital expenses and 1125 (targeted grants) of Title I all decisionmaking. is a separate Title I program, LEAs must contain requirements limiting the Discussion: LEAs that serve only apply to the SEA for these funds. There eligibility of certain LEAs to receive schools with poverty rates of 35 percent is no guarantee an LEA that applies will grants under those sections. The hold- or more do, in fact, have more flexibility receive capital expense funds or that the harmless provisions in section 1122(c) in allocating funds than other LEAs. of Title I apply to ‘‘the amount made amount received will be enough to cover all capital expense costs Nevertheless, the statute does place available to each local educational certain requirements concerning the agency’’ under sections 1124, 1124A, associated with implementing alternative delivery systems needed to allocation of funds on all LEAs. Section and 1125. If an LEA is not eligible, no 1113(a) of Title I requires that an LEA funds would be ‘‘made available’’ to it serve private school students and comply with the requirements of with more than 1,000 students rank its and, thus, the hold-harmless protection school attendance areas in order of would not apply. These sections help Aguilar v. Felton. Thus, an LEA may still need to reserve administrative poverty based on the percentage of implement the statute’s purpose to children from low-income families in target funds more effectively on LEAs funds for the costs of noninstructional goods and services incurred because of each area. Section 1113(c) requires an with the highest concentrations of LEA to allocate funds to eligible school poverty and are supported by research the Felton decision. Change: A change has been made. The attendance areas or schools in rank findings that show children from low- order based on the number of children income families attending schools in Secretary has added language in § 200.27(c) of the regulations to make from low-income families. The relatively wealthy school districts tend Secretary believes that regulations are on average to do better academically clear that an LEA may reserve off the top of its Part A allocation funds needed to clarify that an LEA serving than similar children attending schools only school attendance areas or schools in school districts with high necessary to pay those capital expenses not reimbursed under § 200.16. with poverty rates of 35 percent or more concentrations of poverty. has the flexibility to use an amount per Changes: None Section 200.28 Allocation of Funds to poor child that the LEA deems Procedures for the Within-District School Attendance Areas and Schools appropriate and is not required to Allocation of LEA Program Funds Comment: Several commenters stated allocate an amount based on 125 that requirements to allocate funds to percent of the LEA’s allocation per poor Section 200.27 Reservation of Funds schools based on poverty rather than child. However, for an LEA that serves by an LEA educational need undermine the any school with a poverty level under Comment: One commenter asked for original purpose of Title I by making it 35 percent, this provision applies to all clarification about how the reservation a poverty program rather than an its schools. The regulations further of funds provision in § 200.27 of the educational program. The commenters clarify that an LEA is not required to regulations works with regard to argued that basing Title I allocations on allocate the same amount per poor child calculating 125 percent of an LEA’s the number of poor children residing in to each participating school attendance allocation per poor child and how this an eligible school attendance area area or school, provided that the LEA provision affects an LEA that serves adversely affects the number of allocates higher amounts per poor child only attendance areas or schools with educationally needy public and private to areas or schools with higher poverty rates of 35 percent or more. school students who can participate. concentrations of poverty than to areas Discussion: Section 1113(c)(2)(A) of Discussion: Section 1113(c) of Title I or schools with lower concentrations of Title I requires that, in allocating funds requires an LEA to allocate funds to poverty. to eligible attendance areas or schools, participating attendance areas and Changes: None. an LEA provide an amount per poor schools based on the number of children Comment: One commenter raised the child for each area or school that is at from low-income families. Congress issue that schools with similar least 125 percent of the amount per poor enacted this provision to target funds on allocations may need to spend different child that the LEA received under Part areas with the highest concentrations of amounts because of variations in A of Title I. Thus, an LEA must poverty, recognizing the close relation salaries and benefits of Title I staff. The calculate 125 percent of its allocation between high concentrations of poverty commenter suggested that the per poor child based on its total and low academic achievement and regulations be modified to allow for the allocation before reserving any funds. realizing that successful schools have use of a pupil-teacher ratio instead of a An LEA that serves only attendance been penalized in the past by losing funding ratio or to allow a 15 to 20 34824 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations percent leeway among schools in the Sections 1113(a)(2) defines an eligible the number of children from that per-pupil allocation. school attendance area as one in which attendance area attending private Discussion: Section 1113(c) of Title I the percentage of poor children is at schools to determine a count of poor requires that Part A funds be allocated least as high as the percentage of such private school children. to school attendance areas and schools children in the LEA as a whole. The Discussion: Under Part A of Title I, an based on the number of children from Secretary has determined that it is LEA must distribute funds generally to low-income families in each area or reasonable to continue the flexibility participating school attendance areas school. The provision assumes, for contained in the current Chapter 1 based on the total number of children example, that two schools with the same regulations. Thus, an LEA may base from low-income families residing in number of poor children need similar school eligibility on (1) the overall those attendance areas, including amounts of funds to provide comparable poverty percentage for the LEA as a children from low-income families education programs to participating whole or (2) the districtwide poverty attending private schools. The level of children. The Secretary recognizes that percentage for each grade span. services available for eligible private an inequity may occur, however, if Changes: The Secretary has added school children will be determined by schools with similar allocations offering § 200.28(a)(3) of the regulations, which the amount of funds generated by poor similar instructional programs need to permits an LEA that ranks its school private school children residing in spend different amounts due the salary attendance areas or schools at or below participating areas. The Secretary and fringe benefit costs of the staff 75 percent poverty by grade span to realizes that the collection of data providing the instruction. To address determine the percentage of children needed to implement these provisions this situation, the Secretary has issued from low-income families in the LEA as becomes complicated because many guidance that allows an LEA to consider a whole for each grade span grouping. private schools do not participate in the variations in personnel costs, such as Comment: One commenter noted that free and reduced price lunch program, seniority pay differentials or fringe proposed regulations do not address whose data will likely be used by most benefits differentials, as LEA-wide how LEAs may handle carryover funds LEAs. administrative costs, rather than as part when allocating funds to school Section 200.28(a)(2) of the proposed of the funds allocated to school attendance areas. regulations addressed this issue by attendance areas or schools. The LEA Discussion: LEAs have considerable making clear that, if poverty data are not would pay the differential salary and discretion in handling carryover funds. available for private school children as fringe benefit costs from its For example, an LEA may: (1) allow are available for public school children, administrative funds taken off the top of each school to retain its carryover funds an LEA may use comparable data for the LEA’s Part A allocation. This policy for use in the subsequent year; (2) add private school children collected would have to be applied consistently to carryover funds to the LEA’s subsequent through an alternative means such as a staff serving both public and private year’s allocation and distribute to survey. The Secretary has expanded this school children throughout the LEA. participating areas and schools in provision in the final regulations to also Changes. None. accordance with allocation procedures; make clear that an LEA may use data Comment: One commenter noted that or (3) designate carryover funds for from existing sources such as Aid to § 200.28 of the regulations does not particular activities that could best Families with Dependent Children or specifically address the issue of benefit from additional funding tuition scholarship programs. The variations in per-pupil amounts by (examples: parental involvement Secretary has also added paragraph grade spans. activities or for schools with the highest (a)(2)(ii), which provides that, if Discussion: The Secretary has concentrations of poverty). The complete actual poverty data are not clarified this issue in guidance. An LEA Secretary has provided guidance to available on private school children, an opting to serve schools below 75 percent clarify this issue. LEA may extrapolate from actual data poverty using grade span groupings may Changes: None. on a representative sample of private determine different amounts per poor Comment: A number of commenters school children the number of poor child for different grade spans as long as raised issues concerning the within- private school children residing in a those amounts do not exceed the district allocation of funds to provide particular attendance area. For example, amount allocated to any area or school for children residing in participating if parents of half the private school above 75 percent poverty. Amounts per public school attendance areas but children who reside in a participating poor child within grade spans may also attending private schools. Virtually all school attendance area respond to a vary as long as the LEA allocates higher of the comments focused on problems survey and 50 percent of the private amounts per poor child to areas or with the availability for the 1995–96 school children whose parents respond schools with higher poverty rates than school year of adequate poverty data on are poor, the LEA may project from this it allocates to areas or schools with those children. Because of the difficulty sample that 50 percent of the private lower poverty rates. in obtaining reliable poverty data for school children residing in that Changes: None. private school children, several attendance area are poor. The sample Comment: For LEAs that select commenters suggested that there be a size should be large enough to draw a eligible school attendance areas one-year delay in implementing the reasonable conclusion that the poverty according to grade spans, a commenter within-district allocation procedures estimate is accurate. recommended that the poverty and that the procedures used during the Even with this additional flexibility, percentage to determine eligibility be 1994–95 school year be used for one however, an LEA may still not have based on the districtwide average for the more year. Other commenters adequate poverty data on private school grade span rather than the overall recommended that, if reliable poverty children that it needs for the 1995–96 districtwide poverty percentage. data on private school children residing school year in time to make allocations Discussion: Section 1113(a)(4) of Title in a participating school attendance area to participating school attendance areas, I allows an LEA, after ranking eligible are not available, an LEA be allowed to complete the planning process with attendance areas or schools above 75 apply the poverty percentage of public respect to services for both public and percent, to rank its remaining eligible school children residing in the private school children, and submit school attendance areas by grade span. participating school attendance area to timely plans to their SEA for approval. Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34825 Thus, for the 1995–96 school year only, of private school children the number of Discussion: Section 200.28 deals only an LEA that does not have adequate poor private school children. Finally, with the allocation of funds to poverty data on private school children the Secretary has added paragraph participating school attendance areas must apply the poverty percentage of (a)(2)(iii) to require, for the 1995–96 and schools and makes clear that funds each participating public school school year only, an LEA that does not must be allocated on the basis of the attendance area to the number of private have adequate data on the actual total number of children—public and school children in that area. For number of private school children from private—from low-income families in example, if a participating public school low-income families under either each area or school. Thus, adequate data area has 50 percent poverty and 100 paragraph (a)(2) (i) or (ii) to derive the on the number of private school children who reside in that area attend number of those children by applying children from low-income families in private schools, 50 private school the poverty percentage of each participating school attendance areas is children would be deemed to be poor participating public school attendance essential. To include numbers of private and thus generate Title I funds. For area to the number of private school school children in identifying and school years after 1995–96, actual children who reside in that area. selecting eligible school attendance poverty data (or a reasonable estimate Comment: Several commenters areas and schools, however, would based on an adequate sample) will be recommended that § 200.28 of the require adequate poverty data on private required. regulations permit an LEA, in order to school children throughout the LEA. The Secretary realizes that there may provide services to eligible private Because obtaining these data for the be issues about the adequacy of the school children, to reserve an amount of entire LEA may be extremely difficult, poverty data available for private school funds that is proportionate to the an LEA may identify and rank its children. These issues need to be number of children from low-income eligible school attendance areas and resolved in consultation with private families who attend private school in schools on the basis of children from school officials. Because sampling the entire LEA compared to the number low-income families attending public would be permitted, an LEA would not of children from low-income families schools only. need to have actual data on each private who attend public schools in the LEA. Changes: None. Comment: Several commenters raised school child residing in a participating Discussion: The clear meaning of the the issue of how private school children school attendance area for the data to be statute requires an LEA to allocate Title would be identified as residing in a adequate. Moreover, to allay privacy I funds based on the number of poor participating attendance area if an LEA concerns, an LEA does not need to private school children residing in collect or maintain the names of is operating under an open enrollment, participating public school attendance individual poor children attending a desegregation, or magnet school plan areas. Under section 1113(c)(1) of Title private schools or signatures of their where there are no geographically I, funds are allocated to participating parents or guardians. In determining the defined attendance areas. A number of school attendance areas ‘‘on the basis of adequacy of the data, an LEA should commenters recommended that the the total number of children from low- take into consideration factors such as regulations allow LEAs to allocate Title income families in each area or school.’’ the reliability of the data, the response I funds for poor private school children The ‘‘total number of children from low- rate, and whether the data are based on their relative share of the total income families’’ includes both poor comparable to the data on public school population of public and private school public and private school children children. children for the LEA as a whole. The Secretary urges public and residing in each public school Discussion: An LEA operating under private school officials to continue their attendance area. Consistent with this an open enrollment, desegregation, or efforts to collect actual poverty data for provision, section 1120(a)(4) of Title I magnet school plan must still offer the 1995–96 school year, particularly in requires expenditures for services to equitable services to eligible private light of the flexibility to use sampling. eligible private school children to be school children. Determining which To facilitate these efforts, SEAs and ‘‘equal to the proportion of funds private school children are eligible, LEAs may wish to extend deadlines and allocated to participating school however, is often very difficult because amend applications, as necessary. attendance areas based on the number it is not clear to which public school Assuming adequate poverty data on of children from low-income families they would have gone were they not in private school children are not available who attend private schools (emphasis a private school. Because of the wide for the 1995–96 school year, efforts to added).’’ Determining the amount of variety of open enrollment collect actual data should continue, funds available for services to private arrangements, the Secretary was unable because the alternative method school children at the LEA level would to fashion a regulation that would requiring an LEA to apply the poverty be inconsistent with allocating funds to appropriately govern each situation. rate for each public school attendance participating areas based on the number Rather, the Secretary will assist SEAs area to the private school children in of poor public and private school and LEAs on a case-by-case basis to that area will be allowed only for the children in each area. design reasonable approaches that will 1995–96 school year. Changes: None. allow for the provision of equitable Changes: Several changes have been Comment: One commenter services for eligible private school made. The Secretary has added interpreted § 200.28 of the regulations to children. § 200.28(a)(2)(i)(B)(2) to make clear that require only that the allocation of funds Changes: The Secretary has added an LEA may use data from existing to school attendance areas be based on § 200.10(b)(2) to make clear that an LEA sources such as Aid to Families with the number of children from low- that identifies a school as eligible on the Dependent Children or tuition income families from both public and basis of enrollment because the school scholarship programs. The Secretary has private schools. According to the is operating, for example, under an open also added paragraph (a)(2)(ii), which commenter, § 200.28 would allow an enrollment or desegregation plan, must provides that, if complete actual poverty LEA to select and rank eligible determine an equitable way to identify data on private school children are not attendance areas or schools based only eligible private school children. available, an LEA may extrapolate from on the number of public school poor Comment: Several commenters actual data on a representative sample children. recommended that Title I expenditures 34826 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations for private school children be set at 85 significant dependency on migratory ‘‘principal means of livelihood’’ as used percent of the Title I amount spent on agricultural or fishing work. in § 200.40 (c) and (e) of the regulations them in the previous year. The Secretary never intended the means that ‘‘temporary or seasonal Discussion: The statute does not proposed language to mean that employment in an agricultural or fishing authorize a hold harmless for services to agricultural or fishing activities had to activity plays an important part in private school students based on the constitute the principal means of providing a living for the worker and his prior year’s expenditures. livelihood for a worker. That is to say, or her family.’’ The Secretary will issue Changes: None. this work need not be the only type of guidance regarding how SEAs and their work performed by a worker during the Subpart C—Migrant Education Program operating agencies may exercise year, nor the one which provides the flexibility in the ways in which they Section 200.40 Program Definitions largest portion of income or which identify and recruit migratory children employed the worker for a majority of Comment: One hundred and sixty- consistent with this regulatory time. Additionally, the Secretary never seven letters were received objecting to requirement. intended the proposed language to the proposal to require that, to be a Comment: Thirty-four commenters require a worker or his or her family to migratory agricultural worker or fisher, noted that the ‘‘principal means of maintain, or an SEA or operating agency temporary or seasonal employment in livelihood’’ language included in the to review, written documentation on an agricultural or fishing activity must proposed MEP regulatory definitions income or work history as a condition be a ‘‘principal means of livelihood.’’ was not found in the statute. Seven of determining the eligibility of children Most of the commenters on this issue commenters suggested that the for the MEP. inclusion of this language in the read into the proposed language a With regard to the concern about the requirement that, for a child to qualify regulations would violate the burden the proposed language might Department’s principles for regulating for services under the Migrant place on State and local MEP staff, the Education Program (MEP), the child’s insofar as the proposed language was Secretary believes that it is necessary for not absolutely necessary and/or contrary parents or guardians either must derive SEAs and operating agencies receiving the majority of their income from, or to the intent of the statute to give MEP funds to determine that children flexibility to States and local operating spend the majority of their time eligible for the MEP are those for whom performing, agricultural or fishing agencies in implementing the new temporary or seasonal employment in statute. activities. Most of the commenters were an agricultural or fishing activity Discussion: The Secretary believes concerned that the proposed language constitutes an important part of their that the proposed language regarding imposed a specific recordkeeping families’ livelihood. However, this ‘‘principal means of livelihood’’ is a burden on migratory workers. determination should be no more necessary addition to the longstanding Specifically, they believed that, for a difficult than the determinations definitions of ‘‘migratory agricultural child to be determined eligible under currently made by State and local MEP the MEP, his/her parent or guardian staff regarding the reasonableness of worker’’ and ‘‘migratory fisher’’ and, now would be required to maintain, and other eligibility information provided by therefore, conforms to the Department’s produce for inspection by State and a parent or guardian as to work regulatory principles. Because the local MEP staff, records documenting activities and mobility. State and local existing definitions had been frozen by the percentage of time or income officials responsible for determining prior statutes, children have been associated with their agricultural or MEP eligibility often rely on oral identified and served as migratory fishing work. information from parents, guardians, as children simply because they moved Many commenters also suggested that well as employers and others regarding with or to join a parent or guardian who, the proposed language would place an a move to seek or obtain seasonal though having another full-time unreasonable burden on local MEP staff, agricultural or fishing employment. occupation, indicated that he or she by requiring them to make subjective State and local MEP staff currently use moved across a school district line to determinations of eligibility based on their best judgment regarding the perform, however briefly, an review of parents’ income or accuracy of this information, especially agricultural or fishing activity. ESEA occupational history records. Several in cases where agricultural or fishing has removed this statutory freeze. commenters noted that these work was sought but not found. The Continuing to allow children to be determinations would vary from place Secretary’s interpretation of eligibility served as migratory children on the to place and from MEP staff member to requirements under the MEP will basis of a purely technical application of staff member. continue to permit reliance on any the definition would perpetuate an While the majority of commenters credible source, without the need to injustice against those children whose suggested eliminating the proposed secure written documentation from a lives are disrupted by moves made language, several commenters suggested parent or guardian. The Secretary only because their families are truly that the Secretary should clarify the intends, with this new eligibility dependent, to a significant degree, on proposed language and/or issue clear requirement, that State and local staff be temporary or seasonal agricultural or guidance on how to determine whether reasonably assured that, in view of a fishing activities. In this way, the a migratory worker’s agricultural or family’s circumstances, it is sensible to Secretary continues to believe that this fishing work constitutes ‘‘a principal conclude that temporary or seasonal change in the MEP definitions is means of livelihood.’’ employment in an agricultural or fishing absolutely necessary. Discussion: The commenters have activity is one important way of Changes: None. misinterpreted the scope and intent of providing a living for the worker and his Comment: None. the proposed language regarding what or her family. Discussion: In order to conform to the constitutes ‘‘a principal means of Changes: In order to clarify the statutory language, the Secretary has livelihood.’’ As noted in the preamble to meaning of the new language, the revised the definition of a ‘‘migratory the NPRM, the Secretary proposed this Secretary has revised the regulatory child’’ in § 200.40(d) by replacing the language to better focus MEP services on definition in § 200.40(f) of the term, ‘‘has moved,’’ in subsection (3) children of persons with an actual, regulations to clarify that the term with the term, ‘‘migrates.’’ Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34827 Changes: Section 200.40(d)(3) is Section 200.42 Responsibilities of permit them to function effectively in changed accordingly. SEAs and Operating Agencies for school; and (2) document that services Comment: None. Assessing the Effectiveness of the MEP to address those needs have been Discussion: The second sentence of Comment: Two commenters provided. One commenter expressed the definition of a ‘‘migratory fisher’’ in concern that the special needs of § 200.40(e) notes that the definition also addressed this section of the proposed regulations. One commenter agreed with migratory children will not be includes a person who resides in a addressed in a schoolwide program school district of more than 15,000 the proposed language. The other commenter noted that the schoolwide without a requirement to ‘‘identify and square miles, and moves a distance of document the services that program requirements in § 200.8 of the 20 miles or more to a temporary supplemented the regular academic regulations do not require the residence to engage in a fishing activity. program.’’ Another commenter identification of particular children as As purely an editorial clarification, the suggested that the language of eligible to participate, and questioned Secretary has revised this sentence to § 200.8(c)(3)(ii)(B) of the regulations was how an operating agency can meet its read, ‘‘This definition also includes a too vague and flexible, and would responsibility under § 200.42 of the person who, in the preceding 36 ‘‘allow school districts to evade the regulations to evaluate the effectiveness months, resided in a school district of intentions of Congress.’’ more than 15,000 square miles, and of how a school within the agency Discussion: The Secretary continues moved a distance of 20 miles or more which combines MEP funds in a to believe that the language in to a temporary residence to engage in a schoolwide program serves migratory § 200.8(c)(3)(ii)(B)(1) of the regulations, fishing activity as a principal means of children. as drafted in negotiated rulemaking, livelihood.’’ Discussion: The commenter provides an adequate safeguard that the Changes: Section 200.40(e) is changed misconstrues the applicable provisions special needs of migratory children will accordingly. of § 200.8, regarding schoolwide be addressed in schoolwide programs. programs. While § 200.8(f)(1) does not In particular, subsection (1)(B) requires Section 200.41 Use of Program Funds require a schoolwide program to for Unique Program Function Costs that schoolwide programs document identify particular children as eligible to that services have been provided to Comment: Two commenters participate (emphasis added), a address the identified needs of addressed this section of the proposed schoolwide program will have to migratory children. The Secretary regulations. Both commenters agreed identify a given child in terms of needs. continues to believe that it is neither that it was appropriate to use program This is necessary in order for the school necessary nor desirable—and, in fact, is funds to address those administrative to meet other schoolwide program contrary to the purpose of schoolwide functions that are unique to the MEP; requirements to (1) employ instructional programs—for schoolwide programs to however, one commenter questioned strategies which address the needs of have a requirement to demonstrate that why the proposed regulation also children who are members of the target services provided using Federal funds, mentioned the use of program funds for population of any program whose funds e.g. MEP funds, combined under the ‘‘administrative activities * * * that are are included in the schoolwide program schoolwide program authority the same or similar to those performed [§ 200.8(d)(2)(iv)(A)]; and 2) address the supplement the services regularly by LEAs in the State under subpart A.’’ identified needs of migratory children provided in that school. This commenter suggested deleting the specifically, and document how these Changes: None. language or providing examples of what needs have been met in the schoolwide these activities might include. program [§ 200.8(c)(3)(ii)(B)(1)]. A Subpart D—Prevention and Discussion: The MEP is a State- schoolwide program is also required, Intervention Programs for Children and operated as well as a State-administered under § 200.8(e)(1)(iv)(A)(2), to Youth Who Are Neglected, Delinquent, program. In cases where it directly disaggregate assessment data according or At-Risk of Dropping Out operates aspects of the program, rather to specific categories, including migrant Comment: One commenter indicated than having local operating agencies do status. In this way, a schoolwide that the regulations do not adequately so, an SEA has to perform the same kind program which includes MEP funds will address many of the statutory changes, of administrative activities that an LEA be able to meet the requirements of particularly as they relate to prevention carries out when it administers a project § 200.42 to determine the effectiveness and intervention. The commenter under subpart A. While these activities of the program for migratory students. suggests organizing the regulations into could be described as unique to the Changes: None. State agency and locally operated nature of the MEP, the Secretary program categories. Section 200.44 Use of MEP Funds in believes deleting the term, which has Discussion: In developing regulations Schoolwide Programs been in the prior regulations, would for programs authorized by Title I, the create unnecessary confusion about the Comment: Nine comments were Department sought to regulate only scope of permissible uses of funds received regarding the inclusion of MEP where absolutely necessary, and when under § 200.41 of the regulations. funds in schoolwide programs. Seven of regulating, to promote flexible Instead, the Secretary has decided to the commenters expressed support for approaches to meeting the requirements make minor modifications to clarify that the continued inclusion of the proposed of the law. The Secretary believes that those ‘‘administrative activities * ** language in § 200.8(c)(3)(ii)(B)(1) of the the statute provides sufficient direction that are unique to the MEP’’ include regulations. As developed through the to State agencies (SAs) and local ‘‘administrative activities * * * that are negotiated rulemaking process, this educational agencies (LEAs) operating the same or similar to those performed subsection requires schoolwide Part D subpart 1 and 2 programs for by LEAs in the State under subpart A.’’ programs to (1) first address, in children and youth who are neglected, The list of permissible activities has also consultation with parents and other delinquent, or at-risk of dropping out been expanded to include an example of representatives, or both, of migratory and does not require regulations. The this type of administrative activity. children, the identified needs of those Department, however, is developing Changes: Section 200.41 is changed children that result from the effects of more detailed guidance to help SAs and accordingly. their migratory lifestyle or are needed to LEAs design programs that meet the 34828 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations needs of this population. This guidance State’s Committee of Practitioners assign those funds to another agency or will be organized to provide guidance include a representative from State LEA that agrees to assume educational related specifically to the Part D, agencies (SAs) operating N or D responsibility for those children. Subpart 1 State agency N or D program institutions. Changes: None. and the Subpart 2 local agency program. Discussion: Section 1603 of Title I Changes: None. requires that the Committee of Section 200.51 SEA Counts of Eligible Comment: For the Part D, Subpart 2 Practitioners review and comment on all Children local agency program, a commenter proposed rules, regulations, and policies Comment: One commenter strongly asked for clarification about the relating to programs authorized in Title supported the change requiring the use distinction in funds and services I, including Part D. The Secretary of enrollment rather than average daily between delinquent and at-risk children expects that a representative from SAs attendance. and youth. The commenter further operating Title I N or D programs will Discussion: Section 200.51 of the asked if LEAs may reserve a portion of be included on the Committee of regulations follows the statute, which their funds for at-risk students who have Practitioners so it can address issues requires that counts used for allocating not been adjudicated delinquent or must related to the State agency N or D Part D, State agency N or D funds be LEAs use those funds only for program. based on the number of children and delinquent youth transferring from Changes: None. youth under aged 21 enrolled in a institutions into the district’s schools. Comment: A commenter noted that regular program of instruction for 20 Discussion: LEAs must use a portion the regulations do not address how an hours per week if in a institution or of its Title I, Part D, Subpart 2 funds to SEA awards Part D, Subpart 2 grants to community day program for N or D operate a dropout prevention program LEAs with high numbers or percentages children and youth and 15 hours per for at-risk youth in local schools in the of youth residing in locally operated week if in an adult correctional facility. LEA. At the same time, the LEA must correctional facilities for youth Changes: None. also use some of its Subpart 2 funds for (including institutions and community Comment: One commenter objected to programs that will serve children and day programs or schools that serve requirements in the proposed youth in locally operated correctional delinquent children and youth). regulations that State agency N or D facilities and in locally operated Discussion: The SEA has flexibility in allocations be based on counts of institutions or community day programs establishing the criteria used to children enrolled in a regular program for delinquent children and youth in determine which LEAs have high of instruction for 20 hours per week if accordance with the requirements in numbers or percentages of children and in an institutions or community day section 1425 of Title I. youth in local correctional facilities or program for N or D children; and only The statute, however, provides that if institutions and community day children and youth in institutions with more than 30 percent of the children or programs for delinquent children. Once an average length of stay of 30 days or youth in a local correctional facility or an SEA determines which LEAs are more can be counted. The commenter delinquent institution within an LEA do eligible, the SEA may award Part D, argued these requirements will result in not reside in the LEA after leaving the Subpart 2 subgrant to eligible LEAs an under count of the children and facility or institution, the LEA is not through a formula or on a discretionary youth that State institutions serve and required to operate a dropout basis. does not take turnover into account. prevention program in a local school. Changes: None. Discussion: The criteria that children Changes: None. Section 200.50 Program Definitions be enrolled in a regular program of Comment: One commenter expressed instruction for 15 or 20 hours of Comment: One commenter expressed concern about the low status of ‘‘prison instruction per week, depending on the concern that the definition for locally education,’’ particularly in his State, type of institution, reflect statutory operated correctional facility does not where the lack of support for juvenile requirements. The statute, however, include institutions or community day institutions has reduced both the addresses the issue of turnover in part programs that serve neglected children number and the quality of course by requiring that enrollment be adjusted and that the Part D, Subpart 2 local offerings and has relegated correctional to take into consideration the relative agency program does not address the education to a supplemental or support length of the program’s school year. educational needs of these neglected role. The commenter indicated that Although short-term institutions such children. there should be more recognition of the as detention, diagnostic, and reception status of correctional education and Discussion: The specific educational needs of neglected children are met centers provide basic education services hopes that the Title 1 program in these for youth, the Secretary believes that institutions will help N or D children through several Title I programs. The State agency N or D program, authorized Title I services are most effective when and youth attain the high standards their duration is longer and is requiring expressed in Goals 2000 and State in Part D, Subpart 1 of Title I, serves the needs of neglected children in State- in regulations that the average length of school reform initiatives. stay in institutions and programs Discussion: The Secretary expects operated or supported institutions or eligible for Title I funds average at least consolidated State plans for ESEA community day programs. Part A, section 1113 of Title I requires that an 30 days. programs or individual State plans for Changes: None . Part D funds to provide an overall plan LEA receiving Title I funds reserve for meeting the needs of N or D children funds to meet the educational needs of Subpart E—General Provisions children in local institutions for and youth and, where applicable, youth Section 200.60 Reservation of Funds at-risk of dropping out of school that is neglected children. If the LEA is unable or unwilling to provide services to for State Administration and School integrated with the State’s other Improvement educational programs. children in local institutions for Changes: None. neglected children, the State Comment: One commenter argued Comment: One commenter expressed educational agency must reduce the that Congress appropriated fiscal year concern that section 1603 of Title I does LEA’s allocation by the amount 1995 funds specifically for School not require that the membership of the generated by the neglected children and Improvement as a limitation or cap on Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations 34829 the amount that could be spent by States Changes: None. ‘‘high quality,’’ ‘‘sufficient,’’ and for this activity in the same manner that Comment: One commenter asked ‘‘compacts’’. Congress provided funds specifically for what the phrases ‘‘any of the funds’’ and Discussion: The Secretary believes State Administration in prior years. ‘‘general administrative activities’’ mean that including specific definitions of According to the commenter, the line in § 200.61 of the regulations. these terms in the regulations would item appropriation, therefore, provides Discussion: Section 200.61 of the lessen State and local flexibility. To the the entire amount that may be expended regulations provides that an SEA may extent clarification is needed, the for school improvement activities for use any of the funds it has reserved Department will include it in policy 1995–96, and SEAs have no authority to under § 200.60(a) to perform general guidance. reserve any additional funds for that administrative activities necessary to Changes: None. purpose from their allocations under carry out, at the State level, any of the Comment: One commenter suggested sections 1002 (a), (c), and (d) of Title I programs authorized under Title I. This that sections 14401 and 14501 of Title in 1995–96. authority, provided under section 1603 XIV regarding ESEA waivers and Discussion: In the 1995 of Title I, is very broad and includes maintenance of effort waivers, Appropriations Act (P.L. 103–333), activities that the SEA considers respectively, appear contradictory; Congress appropriated funds for necessary to the proper and efficient under section 14401, maintenance of activities authorized by Title I and performance of its duties under Title I. effort may not be waived yet under specifically provided $27,560,000 for Such activities may, for example, section 14501, the Secretary has the ‘‘program improvement activities.’’ include reviewing plans submitted by authority to waive maintenance of effort Because the ESEA had not been enacted LEAs and State agencies, monitoring under certain circumstances. at the time P.L. 103–333 became law, program activities at the local level, Discussion: Because section 14501 these funds were not appropriated providing technical assistance, and contains specific maintenance of effort under the authority in section 1002(f) of developing rules and policy guidance provisions, including the authority to Title I. However, legislative history needed to implement the law. waive those provisions under certain circumstances, that section takes accompanying the 1995 Appropriations Changes: None. Act (Senate Report 318, p. 177) precedence over the general waiver indicates that Congress provided a Subpart E—General Provisions provisions in section 14401. Thus, the specific amount for program Comment: One commenter strongly Secretary may waive maintenance of improvement grants with the knowledge supported the language in § 200.63 of effort requirements under programs that the Senate ESEA bill, S. 1513, also the regulations concerning the covered by section 14501, if the authorized each State to reserve a supplement, not supplant requirement jurisdiction meets the statutory criteria portion of its Title I LEA and State and believed that it clarifies the for a waiver. If a jurisdiction does not agency grants for school improvement. language of the Title I statute. Another meet those criteria or is not covered Thus, the Secretary believes that commenter suggested that the under section 14501, the Secretary may Congress intended to provide funds for regulations further clarify section not waive maintenance of effort under school improvement as a separate line 1120A(b)(1)(B) of Title I pertaining to section 14401. item and still allow States to reserve Changes: None. the exclusion of supplemental State and additional funds under sections 1003 local funds from supplement, not Comments on Issues Not Addressed in (a), (c), and (d) from its LEA and State supplant determinations, given the Final Regulations agency grants. Changes: None. likelihood of unintended Comment: One commenter requested noncompliance in the near future. that the Secretary specify a date by Section 200.61 Use of Funds Reserved Discussion: Although the Title I which an SEA must distribute its plan for State Administration legislation on the exclusion of to its LEAs (suggesting July 1, 1995) and Comment: One commenter believed supplemental State and local funds from further specify that the draft plan and § 200.61 of the regulations should be Title I supplement, not supplant and final plan be made public, stressing that, expanded to address the use of funds comparability determinations is because of the LEAs’ heavy reliance on reserved for school improvement. The different from that in the Chapter 1 the SEA plan, it is imperative that LEAs commenter recommended that any legislation, the Secretary believes that have access to the SEA plan for review alternative system established by the the statutory language does not need prior to the plan becoming final. State should be addressed in its State further clarification beyond that Discussion: The Secretary agrees that plan and thereby subject to peer review. contained in § 200.63(c) of the an SEA must adequately communicate The commenter argued that States may regulations. To the extent additional with its LEAs. In fact, the SEA must be tempted to use school improvement clarification becomes necessary, the consult with LEAs, teachers and other funds to support SEA staff costs that Department will provide it in policy school staff, and parents in developing should otherwise be funded with State guidance. its State plan. Given the variation Administration funds. Changes: None. among States, however, the Secretary Discussion: The Secretary believes Comment: One commenter suggested does not believe establishing a national that sections 1116 and 1117 of Title I that § 200.65 of the regulations include ‘‘due date’’ would be appropriate. adequately address how States must use definitions of terms and requirements Changes: None. school improvement funds. States are that are not clearly described in the Comment: One commenter expected to address in individual State statute so that wide variation in State recommended that regulations be added plans how they will monitor LEA school and local interpretation does not result. to address the provisions of section improvement activities, provide The commenter suggested that States 1115(b) of Title I that are designed to technical assistance, identify LEAs in and LEAs need examples or minimum ensure that students with educational need of school improvement assistance, standards that can be used to interpret needs are not excluded on the basis of take necessary corrective action, and and measure terms such as ‘‘joint English proficiency, family income, establish a State school improvement development,’’ ‘‘comprehensive needs disability, or migrant status. The support system. assessment,’’ ‘‘adequate progress,’’ commenter found that many LEP 34830 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules and Regulations students were inappropriately excluded development’’ and ‘‘agreement’’ be in the regulations with respect to parent from Chapter 1 participation. defined in the regulations. Two involvement in local plan and policy Discussion: Section 1115(b)(2) makes commenters also suggested that the development. Another commenter clear that children who are regulations specify the manner in which recommended that the regulations economically disadvantaged, children these activities are to be carried out to outline a framework for parent with disabilities, migrant children, and ensure that (1) parents and school involvement as described in section LEA children are eligible for services system personnel can understand 1118 of Title I and, in addition to under Part A on the same basis as other concretely the steps for implementing repeating the statute, expand on the children selected to receive services. the provisions; and (2) the parental newer parent involvement provisions The Secretary does not believe that involvement policies provide the SEA such as ‘‘Shared Responsibilities for regulations are needed to enforce this and LEA with sufficient information to High Student Performance’’ and statutory provision. enable them to determine that the ‘‘Building Capacity for Involvement.’’ Changes: None. policies are fully adequate to meet the Discussion: The Secretary strongly Comment: One commenter statutory requirements. The commenters agrees that parental involvement is recommended that the regulations also recommended that the regulations essential for the education of children; encourage the use of technology to make clear that the SEA and LEAs are the many detailed statutory provisions increase learning, parental involvement, responsible for ensuring that the parent on parental involvement reflect this and professional development and cited involvement policies and processes are belief. Because the statute is very the Conference Report on the sufficient to meet Title I’s parent detailed, however, the Secretary does legislation, which states: ‘‘The conferees involvement requirements. not believe additional regulations are One commenter suggested that the intend to allow maximum flexibility for necessary. the use of funds under this Act to regulations provide additional encourage schools to think of new ways clarification regarding school-parent Changes: None. to use technology to expand the learning compacts, specifying that the compact Comment: Two commenters noted day in the home, increase parental must be agreed upon, through informed that the regulations did not contain involvement with their children’s consent, by parents as part of the complaint procedures. One commenter education, and provide readily school-level parent involvement policy. offered very detailed language to be accessible professional development for The commenter also asked that the added. The other commenter expressed teachers and staff.’’ regulations contain qualifying language concern that, without complaint Discussion: As reflected in the providing that nothing in the school- procedures, many low-income parents Improving America’s Schools Act parent compact section shall permit would have nowhere to turn to attempt (IASA), the use of technology is school officials to limit or deny families’ to redress individual and systemic certainly strongly encouraged. Because rights to privacy and to determine the wrongs, and also that LEAs and schools the design of Title I programs is a upbringing of their children. The would receive a message that responsibility of schools and LEAs, commenter also suggested that the compliance is not important. however, the Secretary believes it is regulations connect parental Discussion: The Secretary will be inappropriate to regulate on this issue. involvement sections with other related issuing in the near future proposed Changes: None. sections so that parent involvement regulations implementing Title XIV of Comment: One commenter expressed provisions are not used in isolation. the ESEA and covering other general concern that parental involvement is One commenter strongly supported areas. These proposed regulations will hardly addressed in the regulations. the terms ‘‘broad-based’’ and contain provisions on complaint Specifically, because LEA and school- ‘‘throughout the planning process’’ that procedures that would apply to Title I. level parent involvement policies must are contained in the provisions related Changes: None. be developed jointly with and agreed parental involvement in the upon with parents, the commenter development of the State plan and [FR Doc. 95–16355 Filed 6–29–95; 10:48 am] suggested that the terms ‘‘joint suggested the same language be added BILLING CODE 4000±01±P federal register July 3,1995 Monday Rule Grown inMichoacan,Mexico;Proposed Importation ofFreshHassAvocadoFruit 7 CFRPart319 Service Animal andPlantHealthInspection Agriculture Department of Part VIII 34831 34832 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Proposed Rules DEPARTMENT OF AGRICULTURE Washington, DC, between 8 a.m. and are allowed to be imported as proposed 4:30 p.m., Monday through Friday, in this document. Animal and Plant Health Inspection except holidays. Persons wishing to Participation in the Washington, DC, Service inspect comments are requested to call hearing will be limited to those who ahead on (202) 690–2817 to facilitate register and who identify themselves as 7 CFR Part 319 entry into the comment reading room. having expertise in the areas of pest risk [Docket No. 94±116±3] The public hearings will be held in assessment and mitigation measures. Washington, DC; southern Florida; New Experts wishing to participate will be Importation of Fresh Hass Avocado York, NY; Chicago, IL; and southern asked to furnish for the record their Fruit Grown in Michoacan, Mexico California. A notice detailing the educational background and their AGENCY: Animal and Plant Health specific location of each hearing will be expertise and qualifications relevant to Inspection Service, USDA. published in a future issue of the pest risk assessment and mitigation Federal Register. measures. Such experts include ACTION: Proposed rule and notice of public hearings. FOR FURTHER INFORMATION CONTACT: Mr. scientists, technical experts, and Victor Harabin, Head, Permit Unit, Port academicians expert in entomology, SUMMARY: We are proposing to amend Operations, PPQ, APHIS, 4700 River plant health, plant pathology, risk the regulations governing the Road Unit 136, Riverdale, MD 20737– assessment, and risk mitigation. Federal, importation of fruits and vegetables to 1236, (301) 734–8645, or FAX (301) State, and local officials, growers, and allow fresh Hass avocado fruit grown in 734–5786. handlers who have experience with risk approved orchards in approved assessment, plant protection, SUPPLEMENTARY INFORMATION: municipalities in Michoacan, Mexico, to quarantine, or risk mitigation measures be imported into certain areas of the Public Hearings will also be welcome to participate in United States, subject to certain Five public hearings will be held on this first public hearing. conditions. We are proposing this action this notice of proposed rulemaking. The Presenters are welcome to register as in response to a request from the Animal and Plant Health Inspection a panel if they believe a panel of experts Mexican Government and following a Service (APHIS) will hold one public from several fields would foster a more review of public comments received hearing dedicated exclusively to the complete discussion and evaluation of regarding that request. The conditions to scientific basis for this proposed rule. issues related to the pest risk assessment which the proposed importation of fresh The first hearing will be open to the underlying this proposal. Hass avocado fruit would be subject, public, but participation will be limited Additional Public Hearings including pest surveys and pest risk- to experts in the fields of pest risk reducing cultural practices, assessment and pest risk mitigation Four additional hearings will be held packinghouse procedures, inspection measures. Four additional hearings will during the period between August 21, and shipping procedures, and be held to provide a full opportunity to 1995, and August 31, 1995, to address restrictions on the time of year all interested parties to address every all aspects of this proposed rule. These shipments may enter the United States, aspect of the proposed rule. four public hearings are scheduled to be would reduce the risk of pest held in southern Florida; New York, introduction to an insignificant level. The First Public Hearing—Presentations NY; Chicago, IL; and southern Furthermore, climatic conditions in by Experts in Risk Assessment California. The California hearing is those areas of the United States into The first public hearing, on the scheduled to be held on August 30 and which the avocados would be allowed scientific basis for this proposed rule, is 31, 1995; the exact dates of the other would preclude the establishment in the scheduled to be held in Washington, three hearings and the specific locations United States of any of the plant pests DC, on August 17 and 18, 1995. A notice of all four hearings will be announced known to attack avocados in Michoacan, will be published in a future issue of the in a notice published in a future issue Mexico. Federal Register detailing the specific of the Federal Register. DATES: Consideration will be given only location of the Washington, DC, hearing. Any interested party may appear and to comments received on or before This hearing will focus exclusively on be heard in person, or through an October 16, 1995. We also will consider the APHIS pest risk assessment attorney or other representative. We are comments made at five public hearings documents upon which the proposed interested in obtaining the views of the to be held between August 17, 1995, and rule is based, and will provide an public on all aspects of this proposed August 31, 1995. Hearings will be held opportunity for experts in relevant rule, including the APHIS pest risk in Washington, DC, on August 17 and disciplines to present their views on assessment documents and the 18, 1995, and in southern California on those documents and the scientific conclusions contained therein. August 30 and 31, 1995. A notice issues raised by them. General Information Applicable to All detailing the specific dates of the The APHIS pest risk assessment Five Public Hearings remaining hearings will be published in documents upon which this proposal is a future issue of the Federal Register. based identify the plant pest risks The APHIS pest risk assessment ADDRESSES: Please send an original and associated with the importation of Hass documents upon which this proposal is three copies of your comments to avocados grown in approved orchards based are available. Parties interested in Docket No. 94–116–3, Regulatory in approved municipalities in receiving copies may obtain them by Analysis and Development, PPD, Michoacan, Mexico, discuss the contacting APHIS’ Legislative and APHIS, Suite 3C03, 4700 River Road mitigation measures identified as Public Affairs Staff at (301) 734–3256 or Unit 118, Riverdale, MD 20737–1238. reasonable and necessary to prevent the by writing to Legislative and Public Please state that your comments refer to introduction of plant pests into the Affairs, 4700 River Road Unit 51, Docket No. 94–116–3. Comments United States, and contain a Riverdale, Maryland 20737–1232. received may be inspected at USDA, quantitative risk analysis examining the Copies of the risk assessment room 1141, South Building, 14th Street likelihood of plant pest introduction documents will be available at each of and Independence Avenue SW., into the United States if Hass avocados the scheduled public hearings. Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Proposed Rules 34833 Persons who wish to speak at the Background issues raised in the comments that are hearings will be asked to provide their The Fruits and Vegetables regulations not addressed by the proposed names and their affiliations. Those who contained in 7 CFR 319.56 through phytosanitary requirements are wish to form a panel to present their 319.56–8 (referred to below as the discussed below, following the views will be asked to provide the name regulations) prohibit or restrict the explanation of our proposal. of each member of the panel and the importation of fruits and vegetables into Mexican Government Request organizations the panel members the United States to prevent the represent. Parties wishing to make oral In July 1994, Sanidad Vegetal, the introduction and dissemination of plant protection branch of the Mexican presentations may register in advance injurious insects that are new to or not by calling the Regulatory Analysis and Ministry of Agriculture and Water widely distributed within and Resources, requested that APHIS Development voice mail at (301) 734– throughout the United States. The 4346 and leaving a message stating their consider allowing the importation of regulations do not provide for the name, telephone number, organization, fresh Hass avocado fruit grown in importation of fresh avocado fruits and location of the hearing at which approved orchards in approved grown in Mexico into the United States, they wish to speak. If a party is municipalities in Michoacan, Mexico, except to Alaska under the conditions registering for a panel, the party will into Connecticut, Delaware, Illinois, specified in § 319.56–2bb. also be asked to provide the name of Indiana, Kentucky, Maine, Maryland, On November 15, 1994, we published each member of the panel and the Massachusetts, Michigan, New an advance notice of proposed organization each panel member Hampshire, New Jersey, New York, rulemaking in the Federal Register (59 represents. Ohio, Pennsylvania, Rhode Island, The hearings will begin at 9 a.m. and FR 59070–59071, Docket No. 94–116–1) Vermont, Virginia, West Virginia, and are scheduled to end at 5 p.m. each day. announcing that APHIS had received a Wisconsin. A detailed plan that The Washington, DC, and California request from the Government of Mexico accompanied the request contained hearings may conclude at any time on that we allow, under certain conditions, specific phytosanitary guidelines for the second day if all persons who have the importation of fresh Hass avocado mitigating the risk of plant pest registered to participate have been fruit grown in approved orchards in introduction associated with the heard. Similarly, the other three approved municipalities in Michoacan, importation of Mexican avocados into hearings may conclude earlier than 5 Mexico, into certain areas of the United the United States. The risk mitigation p.m. if all persons who have registered States. The advance notice solicited plan was based, in part, on research have been heard. The presiding officer public comment on the Mexican conducted in 1993 by Sanidad Vegetal may extend the time of any hearing or Government request and advised the to determine the susceptibility of Hass limit the time for each presentation so public that two public meetings would avocados to fruit fly infestation; it was that everyone is accommodated and all be held to provide interested persons also based on historical avocado pest interested persons appearing on the with an opportunity to present their survey data for Michoacan and recent scheduled dates have an opportunity to views regarding the possible Sanidad Vegetal surveys of Michoacan participate. importation of fresh Hass avocado fruit for pests specific to avocados. Registration for each hearing may be grown in Mexico. The insect pests of concern are three accomplished in advance in accordance We solicited comments concerning species of fruit flies (Anastrepha ludens, with the above-described instructions, the Mexican Government request for 28 A. serpentina, and A. striata), four or by registering with the presiding days ending on December 13, 1994. species of avocado weevils officer between 8:30 a.m. and 9 a.m. on During that period, we received over (Conotrachelus perseae, C. aguacatae, any hearing day. 100 comments (including those given at Heilipus lauri, and Copturus aguacatae), A representative of APHIS will the hearings), several of which and one species of avocado seed moth preside at each public hearing. Written requested that we extend the comment (Stenoma catenifer). These pests would statements are encouraged, but not period so that interested persons would present a significant pest risk to U.S. required. Any written statement have additional time to analyze the crops if introduced, particularly in the submitted will be made part of the Mexican Government request before southeastern and southwestern United record of the public hearing. Anyone submitting comments. On December 19, States. who reads a written statement should 1994, we published a document in the provide two copies to the presiding Federal Register (59 FR 65280, Docket Risk Management Analysis and Pest officer at the hearing. A transcript will No. 94–116–2) informing the public that Risk Analysis Documents be made of each public hearing and the we had reopened the comment period This proposed rule is based in part on transcript will be placed in the and would continue to accept comments a document prepared by APHIS entitled rulemaking record and will be available until January 3, 1995, including any ‘‘Risk Management Analysis: A Systems for public inspection. comments received between December Approach for Mexican Avocado,’’ which The purpose of these public hearings 13—the close of the original comment assesses the pest risks and risk is to give all interested parties an period—and December 19. By the close management options associated with the opportunity to present data, views, and of the extended comment period, we proposed importation of fresh Hass information to the Department had received over 300 comments. avocado fruit grown in Michoacan, concerning this proposed rule. Twenty of the comments favored Mexico. Risk mitigation measures Questions about the content of the allowing the importation of fresh Hass discussed in that document are proposal may be part of a commenter’s avocado fruit grown in Mexico; the included in this proposed rule as oral presentation. However, neither the remainder objected. We carefully requirements for the proposed presiding officer nor any other considered all of the comments during importation. APHIS has also prepared a representative of the Department will the formulation of this proposed rule quantitative pest risk analysis for the respond to the comments at the hearing, and have included proposed proposed importation of fresh Hass except to clarify or explain the proposed phytosanitary requirements that we avocado fruit grown in Michoacan, rule and the documents upon which the believe address many of the concerns Mexico, that examines the likelihood of proposal is based. expressed in the comments. Other pest introduction into susceptible areas 34834 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Proposed Rules of the United States. Copies of those Using a systems approach, APHIS both growing and packing. Therefore, documents may be obtained by developed a series of complementary the importation of wild or backyard contacting APHIS’ Legislative and phytosanitary measures, including pest avocados would present a greater risk of Public Affairs staff at (301) 734–3256 or surveys and pest risk reducing cultural pest introduction than would the by writing to Legislative and Public practices, packinghouse procedures, a importation of commercially produced Affairs, Public Affairs, 4700 River Road limited shipping season, inspection and avocados. Unit 51, Riverdale, MD 20737–1232. shipping procedures, and restrictions on Seasonal Restrictions distribution within the United States, all Systems Approaches intended to prevent the introduction of We would allow Hass avocados to be Using systems approaches to avocado seed and stem weevils, an imported into the United States from phytosanitary security, APHIS avocado seed moth, and three species of Michoacan only from November establishes growing, packing, shipping, fruit flies that can infest avocados and through February. The risk of and other conditions whereby fruits and other host fruits and vegetables. Anastrepha fruit flies infesting avocados vegetables may be imported into the and subsequently being introduced into United States from countries that are not Proposed Import Requirements for Hass the United States through importation is free of certain plant pests. APHIS has Avocados Grown in Mexico virtually eliminated by restricting used systems approaches to establish We are proposing to allow fresh Hass avocado importation to these months. conditions for the importation of several variety avocados to be imported into the Anastrepha fruit flies reduce mating commodities, including Unshu oranges United States from Michoacan, Mexico, and oviposition activities when from Japan (7 CFR 319.28), tomatoes if they are grown, packed, and shipped temperatures drop below 70 °F. from Spain (7 CFR 3119.56–2dd), and under specified phytosanitary Generally, temperatures in the growing peppers from Israel (7 CFR 319.56–2u). conditions designed to mitigate the risk areas in Michoacan are below 70 °F For the Unshu oranges mentioned of plant pest introduction. The between November and February. above, APHIS used a systems approach conditions for importation would be set Furthermore, any risk that fruit flies and to establish growing, treatment, packing, out in a new section of the regulations, other pests of avocados could become and inspection requirements designed § 319.56–2ff. Some of our proposed established in the United States during to prevent the introduction of citrus requirements were originally suggested these months would be greatly reduced canker, which exists in Japan and can in the mitigation plan that accompanied because of low temperatures and infect Unshu oranges. The rule requires the request submitted by the Mexican subsequent lack of host material in the Japanese growers and agricultural Government. Other proposed areas proposed for distribution. agencies to survey groves for citrus requirements go beyond those suggested Distribution Within the United States canker, undertake measures to exclude in the plan and are based in part on citrus canker from groves of Unshu comments we received in response to Hass avocados imported from oranges intended for export, and apply our November 1994 advance notice of Michoacan could be distributed only in surface sanitary treatments to Unshu proposed rulemaking, as we agree with Connecticut, Delaware, the District of oranges being exported to the United many of the comments that some Columbia, Illinois, Indiana, Kentucky, States. For the tomatoes and peppers additional safeguards would be Maine, Maryland, Massachusetts, mentioned above, APHIS used a systems necessary to prevent the introduction of Michigan, New Hampshire, New Jersey, approach to develop measures to plant pests if Mexican avocados were New York, Ohio, Pennsylvania, Rhode prevent the introduction of imported into the United States. Island, Vermont, Virginia, West Mediterranean fruit fly (Medfly), which Virginia, and Wisconsin. We do not exists in Spain and Israel and can infest Permit Required believe that any of the pests of concern tomatoes and peppers. These rules Section 319.56–3 of the regulations could become established if introduced require Spanish and Israeli agricultural requires that a person who wishes to into these States, due to the cold climate agencies and growers to periodically import fruits or vegetables under the and a lack of suitable host material survey growing areas for Medfly, regulations must first apply for a permit during the months imports would be undertake measures to exclude Medfly from APHIS’ Plant Protection and allowed. As noted below, we would from growing and packing areas, and Quarantine Programs. Section 319.56–4 require that the boxes in which the pack tomatoes and peppers in flyproof states that, upon receipt of an avocados are shipped be marked with packaging to prevent infestation. Each of application and approval by an the statement ‘‘Distribution limited to these programs has performed inspector, a permit will be issued that the following States: CT, DC, DE, IL, IN, successfully. specifies the conditions of entry and the KY, ME, MD, MA, MI, NH, NJ, NY, OH, APHIS also uses systems approaches port of entry. Therefore, our proposed PA, RI, VA, VT, WV, and WI.’’ to establish growing, packing, shipping, regulations would require that the Trust Fund Agreement and APHIS and other conditions whereby domestic avocados be imported under a permit Participation fruits and vegetables may be exported issued in accordance with § 319.56–4. from areas in the United States that are APHIS would be directly involved not free of certain plant pests. Systems Commercial Shipments with Sanidad Vegetal in the monitoring approaches are currently used to We would allow only commercial and supervision of avocado exports to establish export conditions for certain shipments of Hass avocados to be the United States. APHIS would not be citrus fruit from Florida and Texas, imported from Michoacan into the involved in a preclearance program for apples from Washington, and stonefruit United States. Wild or ‘‘backyard’’ the fruit in Mexico; rather, APHIS from California. Each of these programs avocados generally grow under very would monitor orchard surveys, has performed successfully. different conditions than commercial trapping, harvest, and packinghouse In developing this proposal to allow produce. Avocados growing in the wild operations to ensure that our export the importation of fresh Hass avocado or in backyard gardens usually grow requirements are met. The costs of fruit grown in Michoacan, Mexico, among different varieties of plants and APHIS’ involvement during each APHIS again has used a systems produce, with little or no pest control shipping season would be covered by a approach to phytosanitary security. and a lack of sanitary controls during trust fund agreement between APHIS Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Proposed Rules 34835 and an industry association representing Municipality Requirements this same period, the Japanese Ministry Mexican avocado growers, packers, and A municipality would have to be of Agriculture, Forestry, and Fisheries, exporters. Under the agreement, the listed as an approved municipality in which extensively samples and cuts Mexican industry association would pay the annual work plan provided to avocados imported from Mexico, in advance all estimated costs that APHIS by Sanidad Vegetal and would recorded no interceptions of any of the APHIS expected to incur through its have to be determined to be free from pests of concern (Anastrepha ludens, A. involvement in the required trapping, the seed weevils Heilipus lauri, serpentina, A. striata, Conotrachelus survey, harvest, and packinghouse Conotrachelus perseae, and C. perseae, C. aguacatae, Heilipus lauri, Copturus aguacatae, Stenoma operations prescribed in proposed aguacatae, and the seed moth Stenoma catenifer). § 319.56–2ff(c). Those costs would catenifer before Hass avocados could be include administrative expenses While our proposed regulations exported to the United States from would place conditions on avocado incurred in conducting the services and orchards in that municipality. Sanidad all salaries (including overtime and the growers, orchards, and packinghouses Vegetal would determine the pest status beyond those required by the Sanidad Federal share of employee benefits), of municipalities by conducting annual Vegetal program, we believe that travel expenses (including per diem surveys during the growing season that requiring participation in the Sanidad expenses), and other incidental would have to be completed before Vegetal avocado export program would expenses incurred by the inspectors in harvest. We would require that Sanidad help minimize the risk that Hass performing those services. The Vegetal survey at least 300 hectares in avocados infested with weevils or other agreement would require the Mexican any municipality with orchards wishing pests would be exported to the United industry association to deposit a to export to the United States. Portions States. certified or cashier’s check with APHIS of each registered orchard would have for the amount of the costs, as estimated to be included in these surveys. Also, Orchard and Grower Requirements by APHIS. If the deposit was not areas with backyard and wild fruit The orchard and the grower would sufficient to meet all costs incurred by would have to be included. We have have to be registered with the Sanidad APHIS, the agreement would further determined that surveying 300 hectares Vegetal avocado export program require the Mexican industry within a municipality results in a 95 discussed above and would have to be association to deposit another certified percent confidence level that an listed as an approved orchard or an or cashier’s check with APHIS for the infestation of one percent or greater approved grower in the annual work amount of the remaining costs, as within the municipality would be plan provided to APHIS by Sanidad determined by APHIS, before APHIS’ detected. As stated above, APHIS would Vegetal. services would be completed. After a monitor these pest surveys. We are proposing to require that final audit at the conclusion of each Also, APHIS would require Sanidad Sanidad Vegetal conduct surveys, at shipping season, any overpayment of Vegetal to trap for Medfly at a rate of least annually, for the avocado stem funds would be returned to the Mexican one trap per 1 to 4 square miles weevil Copturus aguacatae in each industry association or held on account throughout each Michoacan orchard wishing to export avocados to until needed. municipality containing orchards the United States and in all contiguous growing avocados for export to the orchards and properties. These surveys Safeguards in Mexico United States. Although Medfly would have to be conducted during the outbreaks have occurred only in growing season and completed before We are proposing to require that the southern Mexico, we feel such trapping harvest. Orchards would have to be free avocados be grown in the Mexican State is necessary as a safeguard against the of this pest in order to be eligible to of Michoacan in an orchard located in possible migration of the pest to export avocados to the United States. a municipality that has been surveyed Michoacan. To monitor the fruit fly population for certain pests and found to be free within avocado production areas, from those pests. A trapping program Sanidad Vegetal Avocado Export APHIS would require Sanidad Vegetal would also have to be in place in the Program to conduct trapping throughout the year municipality to detect the presence of Only growers, orchards, and for the three Anastrepha fruit fly species certain fruit flies. We would require that packinghouses participating in the of concern at a rate of one trap per 10 Sanidad Vegetal submit an annual avocado export program administered hectares within certified avocado workplan to APHIS that detailed the by Sanidad Vegetal could export Hass orchards. If one fruit fly were captured activities Sanidad Vegetal would carry avocados to the United States. The within an orchard, export could out to meet the surveying, trapping, and Sanidad Vegetal avocado export continue, but 10 traps would have to be other phytosanitary requirements of the program has been in place for more than deployed in the 50-hectare area proposed regulations. Sanidad Vegetal 7 years to monitor the export of immediately surrounding the find. If would be required to supervise all of the avocados to several European countries, additional fruit flies were caught within trapping and pest surveys required of Japan, and elsewhere. Sanidad Vegetal 30 days within the 260-hectare area municipalities and orchards wishing to requires participants to comply with surrounding the first find, exports could export Hass avocados to the United inspection, packing, and shipping continue only after malathion bait States. Although Hass avocado growers practices to ensure that seed weevils treatments of the orchards involved. The could pay for trapping and survey and other pests are not present in purpose of this pesticide treatment expenses, Sanidad Vegetal would be avocados exported from Mexico. would be to lower fruit fly populations responsible for hiring, training, and The Sanidad Vegetal avocado export in avocado production areas, thus supervision of all personnel involved in program has been very successful in lessening the chances of infestation. trapping and conducting the pest ensuring that only pest-free avocados APHIS uses similar procedures in citrus surveys. APHIS would be directly are exported from Michoacan. For fruit production areas of Florida and involved with Sanidad Vegetal in the example, during the last 3 years, over 5 Texas where Anastrepha fruit flies exist. monitoring and supervision of the million kilograms of avocados were Growers would be required to trapping and surveying activities. exported from Michoacan to Japan. Over undertake regular field sanitation 34836 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Proposed Rules measures. APHIS would require that 95 percent confidence level of detecting pest risk mitigation measures taken. The fallen avocado fruit be removed from one percent or greater infestation. municipality in which the infestation orchards prior to harvest and that the The identity of the avocados would occurred would lose its pest-free fallen fruit not be included in shipments have to be maintained from the field certification, and avocado exports from of fruit to be packed for export. Fallen boxes or containers, which would bear that municipality would be suspended avocado fruit can be overripe or the Sanidad Vegetal registration of the until APHIS and Sanidad Vegetal agreed damaged, and such fruit is more likely orchard of origin, to the shipping boxes. that the pest eradication measures taken to be infested by pests. Also, dead The fruit would have to be packed in had been effective and that the pest risk branches on avocado trees would have new, clean boxes, with the grower, within that municipality had been to be cut back periodically and the dead packer, and exporter clearly identified eliminated. branches removed from the orchard. on those boxes. Maintaining the identity If Sanidad Vegetal discovered the Pruning discourages stem weevil of the avocados from the field boxes or stem weevil Copturus aguacatae in an infestations. Both APHIS and Sanidad containers to the shipping boxes would orchard during an orchard survey or Vegetal would periodically inspect field ensure that any infested fruit could be other monitoring or inspection activity sanitation in certified avocado orchards. traced back to the orchard where it was in the orchard, Sanidad Vegetal would APHIS would require harvested grown. Also, the shipping boxes would have to provide APHIS with information avocados to be moved from the orchard have to be clearly labeled to indicate the regarding the circumstances of the to the packinghouse within 3 hours of restrictions on the distribution of the infestation and the pest risk mitigation harvest; if more than 3 hours pass avocados in the United States. measures taken. Similarly, if the stem between the time the avocados are After being loaded into the boxes, the weevil Copturus aguacatae was harvested and the time they are moved avocados would have to be placed into discovered in fruit at a packinghouse, to the packinghouse, the avocados a refrigerated truck or refrigerated Sanidad Vegetal would have to would have to be protected from fruit container for transit through Mexico to investigate the origin of the infested fly infestation while awaiting transport. the port of first arrival in the United fruit and provide APHIS with For movement, the avocados would States. After the avocados had been information regarding the circumstances have to be placed in field boxes or inspected, packed, and loaded into a of the infestation and the pest risk containers marked with the Sanidad refrigerated truck or refrigerated mitigation measures taken. In either Vegetal registration number of the container, Sanidad Vegetal personnel instance, the orchard where the infested orchard of origin and, during their would be required to secure the fruit originated would lose its export movement from the orchard to the refrigerated truck or refrigerated certification immediately for the entire packinghouse, the avocados would have container with a seal before the truck or shipping season of November through to be protected from fruit fly infestation. container left the packinghouse. Any February. Vehicles transporting the avocados avocados that had not been loaded into Shipping Requirements and would be required to carry a field record a refrigerated truck or refrigerated Restrictions specifying that the fruit is from a container by the end of the work day certified orchard. would have to be kept in the screened Although the safeguards discussed packing area. above make it unlikely that avocados Packinghouse Requirements A phytosanitary certificate issued by infested with seed pests or fruit flies Under our proposed regulations, the Sanidad Vegetal certifying that all of would enter into the United States, we packinghouse would have to be these conditions have been met would propose to require the following registered with the Sanidad Vegetal have to accompany each shipment of safeguards for movement of the avocado export program and listed as an avocados. avocados to the northeastern United approved packinghouse in the annual States in order to prevent the escape and work plan provided to APHIS by Avocado Pest Interception establishment of an insect pest outside Sanidad Vegetal. Fruit from orchards As discussed above, we are proposing of the northeast should any be present that are not certified by Sanidad Vegetal that Hass avocado fruit be imported on the fruit. for participation in the avocado export only from orchards located in We propose to allow Hass avocados program would not be allowed on the municipalities in Michoacan certified from Mexico to enter the United States premises of a packinghouse while free of the four seed pests Heilipus lauri, at any port within the 20 northeastern avocados intended for export to the Conotrachelus perseae, C. aguacatae, States that would be allowed to receive United States were being packed. and Stenoma catenifer, and only from Hass avocados from Michoacan. We are All openings in the packinghouse orchards in Michoacan certified free of also proposing to allow Hass avocados would have to be covered by screening the stem weevil Copturus aguacatae. from Michoacan to enter the United with openings of not more than 1.6 mm We are also proposing that Sanidad States at certain additional ports to prevent the entry of insects. Also, Vegetal undertake certain actions in the provided the avocados are moved packinghouses would have to have event any of these avocado pests are within a specified transit corridor to the double door systems at the entrances to discovered during the required annual 20 northeastern States that would be the facility, as well as at the entrance to pest survey or during other monitoring allowed to receive the avocados. We the packing area for avocados intended or inspection activities in the orchards would allow the avocados to enter at the for export to the United States. or packinghouses. ports of Galveston and Houston, TX, Prior to the culling process, Sanidad Upon the discovery of any of the four and the border ports at Nogales, AZ; Vegetal would have to select, cut, and avocado seed pests, Sanidad Vegetal Brownsville, Eagle Pass, El Paso, inspect a sample of 250 avocados per would be required to immediately Hidalgo, and Laredo, TX, all of which shipment to detect the presence of initiate an investigation and take are staffed by APHIS inspectors. These weevils, fruit flies, or other pests (e.g., measures to isolate and eradicate the ports are among those currently listed a shipment of 500 boxes would have a pests. Sanidad Vegetal would also have for avocados from Mexico moved fruit selected from every second box). to notify APHIS and provide through the United States to We have determined that sampling 250 information regarding the origin of the destinations outside the United States avocados in this manner would yield a circumstances of the infestation and the under the plant quarantine safeguard Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Proposed Rules 34837 regulations in 7 CFR 352.29, so the truck or rail car. If the avocados are favored allowing the importation of inspectors at these ports are experienced moved in refrigerated containers on a Mexican avocados. The remainder in dealing with avocado shipments. We truck or rail car, an APHIS inspector raised objections, most of which are would also allow the avocados to enter would have to seal the containers with summarized, with our responses, below. at other ports located within that area of a serially numbered seal at the port of Most of the comments assert that the United States bordered by the first arrival in the United States. If the research conducted in 1993 by the proposed transit corridor discussed avocados are moved in a refrigerated Sanidad Vegetal concerning Hass below. truck or a refrigerated rail car, an APHIS avocado susceptibility to Anastrepha We also propose to establish inspector would have to seal the truck fruit flies was inconclusive and did not boundaries restricting the corridor or rail car with a serially numbered seal demonstrate that Hass avocados are through which the avocados may transit at the port of first arrival in the United non-hosts to the fruit flies. The the United States en route to the States. If the avocados are transferred to comments contend that before APHIS northeastern United States. Except as another vehicle or container in the considers any proposal to import Hass explained below for avocados entering United States, an APHIS inspector avocados from Mexico, Sanidad Vegetal the United States at Nogales, AZ, would have to be present to supervise should (1) replicate and expand avocados moved by truck or rail car the transfer and would have to apply a laboratory and field research regarding would be allowed to transit only that new serially numbered seal. The host status of Hass avocados under fully area of the United States bounded on avocados would have to be moved controlled conditions and (2) undertake the west by a line extending from El through the United States under a multi-site, multi-year trapping Paso, TX, to Denver, CO, and due north Customs bond. These safeguards are the program to establish the population and from Denver; and on the east and south same as those currently in effect for seasonal abundance of Anastrepha fruit by a line extending from Brownsville, avocados from Mexico that are moved flies in Michoacan. Only after TX, to Galveston, TX, to Kinder, LA, to through the United States to examining the results of such research, Memphis, TN, to Knoxville, TN, destinations outside the United States according to the comments, could following Interstate 40 to Raleigh, NC, (see 7 CFR 352.29(e)). Because this APHIS and Sanidad Vegetal develop and due east from Raleigh. All cities on proposed rule and the avocado transit effective measures for preventing the these boundary lines would be included regulations in 7 CFR 352.29 share a introduction of Anastrepha fruit flies in this area. If the avocados are moved similar purpose (i.e., the avocados must into the United States through the by air, the aircraft would not be allowed move through areas of the United States importation of Hass avocados. to land outside this area. Avocados that considered to be low-risk areas for the We agree that the 1993 research was enter the United States at Nogales, AZ, establishment of tropical and limited in scope and did not prove the would have to be moved to El Paso, TX, subtropical fruit pests), we believe it is Hass avocado to be a non-host for by the route specified on the permit, reasonable that the safeguards required Anastrepha fruit flies. However, after and would then have to remain within by both regulations should be the same. considering the 1993 research and other the shipping area described above. available evidence, including These proposed boundaries are similar Inspection interception data and past studies, we to those currently in effect for Mexican The avocados would be subject to believe the Hass avocado to be a non- avocados moved through the United APHIS inspection at the port of first preferred host for Anastrepha fruit flies States to destinations outside the United arrival, at any stops in the United States prior to harvest. Although we believe States (see 7 CFR 352.29(f)), but differ in en route to the Northeast, and upon Hass avocados become better hosts for two significant ways. First, because arrival at the terminal market to ensure Anastrepha fruit flies shortly following avocados imported under this proposed they are being moved in compliance harvest, we are confident that the rule could be distributed only in the with APHIS regulations. At the port of phytosanitary requirements we would northeastern United States, the first arrival, APHIS would sample and place on harvesting, packing, transport, proposed western boundary would not cut avocado fruit to detect infestation by and distribution, which are more provide for movement through the fruit flies, avocado seed and stem extensive and redundant than those northwestern United States. Second, the weevils, the avocado seed moth, and proposed by Sanidad Vegetal, would southeastern boundary would be other pests. The number of avocados prevent infested Hass avocado fruit from situated further to the south to give that the inspectors would sample and being exported from Michoacan into the shippers access to the entire States of cut in any given shipment would United States. Kentucky, West Virginia, and Virginia, depend upon the size of the shipment. Several comments specifically which are among the States in which Inspectors also would ensure that a questioned the laboratory testing the avocados could be distributed under valid phytosanitary certificate was conducted in 1993 by Sanidad Vegetal this proposed rule; those States are not present, that the limited distribution to determine the susceptibility of Hass fully included in the transit corridor statement appeared on all boxes, and avocados to Anastrepha fruit flies. The described in 7 CFR 352.29(f). These that the shipment was consigned to a comments claim that induced boundaries would provide protection to State allowed to receive Hass avocados infestation tests both in the laboratory the western and southeastern regions of from Michoacan. and under controlled field conditions the United States, where avocados and were conducted improperly (e.g., Responses to Comments other hosts of fruit flies and are grown, allegedly, laboratory climatic conditions while allowing shippers to utilize the As stated above, we received over 300 were not controlled, sample sizes of most direct interstate routes to the comments by the closing date of the fruit were too small, inappropriate cages northeastern United States. comment period for the advance notice were used in field testing), thus Further, we propose that when of proposed rulemaking. The comments invalidating any results of those tests. moving within these boundaries to the were submitted by avocado growers, Furthermore, these comments maintain northeastern United States, avocados processors, packers, and importers; that because Anastrepha fruit flies did would have to be moved either by air or trade and grower associations; grocers; infest Hass avocados during these tests, in a refrigerated truck or refrigerated rail and State and local departments of the host status of Hass avocados is car or in refrigerated containers on a agriculture. Twenty of the comments confirmed. 34838 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Proposed Rules We agree that the induced infestation require trapping year-round. We would detecting infestation and that Sanidad research was limited in scope and did hold such trapping to a higher quality Vegetal took pest biology into account not prove Hass avocado to be a non-host standard and monitor its execution. while conducting the surveys. Data from for Anastrepha fruit flies. However, we Also, we believe that the trapping these surveys is of varying quality, but do not agree that the infestation that did conducted by Sanidad Vegetal, although we believe inconsistencies are occur during the testing proves Hass it was conducted imperfectly and for a indicative of authentic pest survey data. avocados to be preferred hosts. Under short duration, does provide valuable While we did not supervise the surveys, artificial laboratory conditions, females preliminary data regarding the we did observe several as they were of some Anastrepha species, including population of Anastrepha fruit flies in being conducted. A. ludens, will oviposit in almost any avocado production areas in Michoacan. It is important to remember that the fruit available, or even in wax spheres The density of the 1993 trapping—one phytosanitary requirements we propose (Norrbom, Allen L., and Ke Chung Kim, McPhail trap per 10 hectares—is to place on the avocado imports from ‘‘A List of the Reported Host Plants of standard for population monitoring and Michoacan are not based solely upon the Species of Anastrepha (Diptera: was approved by APHIS prior to the the pest surveys and other studies Tephritidae),’’ APHIS, 1988). Moreover, trapping. Trapping at this rate is conducted by Sanidad Vegetal in 1993. other evidence indicates that Hass currently required by APHIS in Sonora, Much of their findings were of a limited avocados are non-preferred hosts while Mexico, to maintain the fruit-fly free quality and only supplement the data on the tree. In the cage studies zone in that State. We are proposing that we have used in developing this conducted in the field by Sanidad Sanidad Vegetal trap at the rate of 1 trap proposal. If this proposal is finalized, Vegetal, which we feel were conducted per 10 hectares throughout the year and we will monitor closely the pest surveys properly, Hass avocados on the tree that this trapping be monitored by we are proposing to require for were shown to be non-preferred hosts to APHIS. determining municipality and orchard Anastrepha. Also, APHIS records from Some trapping was conducted while freedom from the avocado pests. trees were being treated with pesticides. interceptions of avocados smuggled into Several comments raised concerns However, since this sort of pesticide the United States from Mexico indicate that the Sanidad Vegetal studies did not treatment is routine in Michoacan, and that the Hass avocado is a non-preferred address risks presented by Anastrepha since similar pesticide treatment would host to Anastrepha. In fact, according to distincta, A. leptozona, or A. obliqua, or occur in orchards growing avocados for APHIS and Agricultural Research several other possible pests of avocados export to the United States, we believe Service records, Anastrepha fruit flies known to inhabit Mexico. Avocado is that trapping conducted during or after have never been found in Hass avocados not a host to these other pests (Norrbom, pesticide treatment provided accurate outside of laboratory tests. We are Allen L., and Ke Chung Kim, ‘‘A List of population data. confident that the phytosanitary the Reported Host Plants of the Species measures we are proposing would We agree that Sanidad Vegetal did not conduct trapping with regard to wild or of Anastrepha [Diptera: Tephritidae],’’ prevent infested Hass avocado fruit from APHIS, 1988). being exported from Michoacan into the alternative commercial hosts. However, our interest in the 1993 Sanidad Vegetal Other comments argue that APHIS United States. should not allow Hass avocado imports Several of the comments claim that study is to determine populations in the from Michoacan until Sanidad Vegetal the fruit fly trapping conducted in 1993 production areas, not in areas where can establish Michoacan as a pest-free by Sanidad Vegetal was inadequate to wild or alternative hosts were being zone. accurately determine fruit fly grown. As explained above, APHIS uses populations in production areas in Because of our reservations systems approaches to phytosanitary Michoacan and subsequently develop concerning Sanidad Vegetal’s 1993 fruit security to allow fruits and vegetables to effective pest mitigation measures based fly trapping, we have proposed to allow be imported safely into the United on the population data. These the Hass avocados from Michoacan to be States from countries that are not free of comments maintain that: imported only between November and • Traps were not moved frequently February, when temperatures in certain plant pests. APHIS has enough or maintained correctly; Michoacan significantly lower the level successfully used systems approaches to • Trapping was conducted for too of fruit fly activity. establish conditions for the importation short a duration; Several comments expressed concerns of several commodities, including • Trapping density was too low, that Sanidad Vegetal studies of the pests Unshu oranges from Japan, tomatoes especially considering that the McPhail Heilipus lauri, Stenoma catenifer, from Spain, and peppers from Israel. trap was used; Conotrachelus perseae, C. aguacatae, APHIS also uses systems approaches to • Some trapping was conducted and Copturus aguacatae did not attempt establish conditions whereby domestic while trees were being sprayed with to identify their seasonal abundance or fruits and vegetables may be exported methyl parathion, thus distorting geographical distribution in Michoacan. from areas in the United States that are trapping results, as populations in Furthermore, the comments claim that not free of certain plant pests, such as sprayed areas would be unnaturally Sanidad Vegetal surveys for these pests citrus fruit from Florida and Texas, low; and in Hass avocado production areas in apples from Washington, and stonefruit • No trapping was conducted with Michoacan were too limited to produce from California. We now are proposing regard to wild or alternative commercial meaningful results, were not supervised to use a systems approach to allow Hass hosts. by APHIS, and were not conducted avocado fruit to be imported into the We agree that the trapping conducted carefully, that is, the surveys were not northeastern United States from by Sanidad Vegetal in 1993 was flawed conducted in accord with scientific Michoacan, Mexico, an area where fruit in its execution; many traps were standards or in the context of pest flies and certain avocado pests are neither moved often enough nor biology. Finally, the comments maintain known to exist. We believe this systems maintained properly. Initial quality that the data reflect significant finds of approach would prevent the control problems occur in most trapping these pests in production areas. introduction of plant pests into the programs. If we allow the importation of We believe that the design of the 1993 United States from Michoacan and that Hass avocados from Michoacan, we will pest surveys was appropriate for therefore, it is unnecessary to establish Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Proposed Rules 34839 Michoacan as a pest-free zone prior to of Hass avocados and immunity to requirements in Michoacan orchards importing Hass avocados. Anastrepha infestation. The APHIS and packinghouses, we believe much of Several comments maintain that prior avocado interception records and past the resources needed for this program to allowing the importation of Hass research mentioned above do indicate, are already in place, in the form of avocados from Mexico, APHIS should however, that the Hass avocado may existing APHIS overseas and port develop treatments able to eliminate all have some natural physiological personnel. Funding levels and agency exotic pests from avocado fruit at a resistance to infestation by Anastrepha personnel may vary from year to year. ‘‘probit 9’’ mortality level. (A treatment fruit flies. Further research must be Import authorizations would not be yielding a probit 9 mortality effects a conducted before any such conclusions provided if the level of resources 99.9968 percent mortality in a can be applied to the quarantine status decreases below the level needed to population of live organisms, that is, a of Hass avocados from Michoacan. ensure that all imported regulated population of pests in fruit.) One comment expresses concerns that articles are subject to the level of Currently, there is no effective pests known to attack Hass avocados in inspection and monitoring necessary to treatment for eliminating Anastrepha Mexico could be introduced into the prevent the introduction of plant pests fruit flies or any of the avocado pests of northeastern United States through into the United States. In terms of concern from Hass avocado fruit. We importation from Michoacan, colonize enforcing the restrictions on the believe the multiple safeguards that we the area, and damage fruit crops grown distribution of Mexican Hass avocados are proposing for the importation of there. within the United States, APHIS would Hass avocados from Michoacan, Mexico, We are proposing to allow Hass be assisted by the Fruit and Vegetable into the northeastern United States avocados to be imported into the Division of the Agricultural Marketing would mitigate pest risk at a level Northeastern United States only during Service, which has agreed to notify us equivalent to that provided by a the winter, from November through if Mexican avocado fruit, which they treatment yielding a probit 9 mortality. February. The cold temperatures during would grade, showed up at terminal If a treatment for Hass avocado fruit these months would preclude markets in prohibited States. from Michoacan were developed, colonization by these tropical and One comment criticizes the Sanidad APHIS would consider its use. subtropical pests, because they could Vegetal proposal to have growers hire One comment criticized the not survive under the climatic the technical personnel involved in conclusion drawn by Sanidad Vegetal conditions and/or because there would surveys and trapping, citing a conflict of that a 1993–1994 orchard and be no host material. interests. packinghouse fruit sampling research Several comments state that avocado study indicated that there was zero risk growers in Michoacan use pesticides not As explained above, we would not of live immature stages of fruit flies approved for use on avocados in the allow growers to hire or supervise the entering the United States in Hass United States, such as methyl parathion, technical personnel involved in avocados. We agree that such a and that avocados imported from trapping or pest surveys, but they would conclusion is unsupported by statistical Michoacan containing residues of these be allowed to pay expenses. analysis, since it is statistically pesticides would, therefore, be Several comments question Sanidad impossible to prove zero risk for any prohibited from importation. Vegetal’s claim that Anastrepha fruit commodity. Accordingly, this proposed The United States Food and Drug flies have never infested Hass avocados rule contains no provisions that are Administration samples and tests in Mexico and that Anastrepha fruit based on an assumption of zero risk imported fruits and vegetables for flies have never been intercepted in regarding the possibility of live pesticide residues. If residue of a Hass avocados intended for export. immature stages of fruit flies entering pesticide unapproved in the United According to APHIS and Agricultural the United States in Hass avocados. States is found in a shipment of Research Service records, Anastrepha One comment concluded that APHIS imported fruit or vegetables, the fruit flies have never been found in Hass must prove Hass avocados to be non- shipment is denied entry into the avocados outside of laboratory tests, in hosts to Anastrepha fruit flies before we United States. which infestation was artificially allow their importation from Many of the comments argue that induced. Michoacan. APHIS lacks the resources to enforce Executive Order 12866 and Regulatory As stated above, we believe Hass phytosanitary restrictions on Hass Flexibility Act avocados to be a non-preferred host to avocado imports from Michoacan, Anastrepha fruit flies while on the tree particularly restrictions on the This proposed rule has been reviewed and better hosts following harvest. The distribution of Mexican Hass avocados under Executive Order 12866. The rule phytosanitary requirements we are within the United States. has been determined to be not proposing, especially in light of the We agree that adequate resources and significant for purposes of Executive Hass avocado’s poor host status, would personnel, especially inspectors, would Order 12866, and, therefore, has not prevent Anastrepha flies from being have to be devoted to prevent the been reviewed by the Office of introduced into the United States introduction of avocado and other plant Management and Budget. through the importation of Hass pests into the United States. In accordance with 5 U.S.C. 603, we avocados. Adjustments in the level of personnel have performed an Initial Regulatory One comment states that Sanidad and resources devoted to APHIS Flexibility Analysis, which is set out Vegetal’s conclusions regarding a programs are a normal part of below, regarding the impact of this rule correlation between maturity of Hass management in the agency. Duties and on small entities. However, we do not avocado fruit (measured by the percent staffing levels would be adjusted, in currently have all the data necessary for of dry matter) and fruit immunity to Michoacan, at ports, and elsewhere, to a comprehensive analysis of the effects Anastrepha fruit fly infestation are satisfy the needs of a new avocado of this rule on small entities. Therefore, invalid. import program. While APHIS would we are inviting comments concerning We agree that Sanidad Vegetal assign some additional personnel to potential effects. In particular, we are research did not prove that there is a monitor trapping and surveys and interested in determining the number correlation between dry matter content compliance with phytosanitary and kind of small entities that may 34840 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Proposed Rules incur benefits or costs from of avocados. For example, a 10 percent increase the U.S. supply of fresh implementation of this proposed rule. decline in avocado price would likely avocados by about 12 percent, reducing Under the Plant Quarantine Act and induce only a 4.8 percent increase in the average price for U.S. avocados to the Federal Plant Pest Act (7 U.S.C. avocado consumption. In the case of about $0.42 per lb. The U.S. producers 150dd, 150ee, 150ff, 151–167), the avocados, quality considerations might would thus be negatively affected. Secretary of Agriculture is authorized to have greater impact on consumer However, current Interstate Commerce regulate the importation of fruits and purchase decisions than the price of the Commission regulations forbid Mexican vegetables to prevent the introduction of product. carriers from hauling the product injurious plant pests. As the preceding paragraphs indicate, beyond the border zone, so there would We are proposing to amend the both California and Michoacan are large be some benefit to small U.S. regulations governing the importation of producers of Hass variety avocados. specialized transport companies and fruits and vegetables to allow fresh Hass However, here the similarity between brokerage houses. At present, the cost of avocado fruit grown in approved the two states ceases, with marked transporting a truckload (40,000 lb) of orchards in approved municipalities in differences in avocado price, cost avocados from Michoacan to the U.S. Michoacan, Mexico, to be imported into structure, and expansion capacity. The border at El Paso is $1,080. This certain areas of the United States, weighted average wholesale price for includes the margin for truckers and subject to certain conditions. California production was $0.48 per brokerage houses. The number of these Mexico is the largest producer of pound between 1991 and 1993 while entities is difficult to determine at this avocados in the world, accounting for the Michoacan price was $0.28. Land time. The total impact would depend approximately 45 percent of total and labor costs are much lower in upon the volume of export from production. Mexican growers produced Michoacan than in California. Michoacan to the United States. Finally, about 696,000 tons of avocados in 1990. Development costs and costs of caring even with the low elasticity of demand Additionally, Mexico is the world’s for avocado-bearing trees average for avocado, consumers could be largest consumer of avocados; per capita $26,000 per acre in California, those positively affected by the increased consumption is close to 17 pounds. same costs are only about $8,000 per competition and expanded choices that Because of this large domestic demand, acre in Michoacan. Furthermore, the would be induced by this proposal. exports remain small, at approximately labor share of production costs is 52 The alternative to this proposed rule 3 percent of production, or 20,880 tons. percent in California, while the average Most of the avocado production in was to make no changes in the fruits labor share is only 35 percent in and vegetables regulations. After Mexico occurs in the state of Michoacan. Finally, the two states differ consideration, we rejected this Michoacan, where approximately 77 in their capacity to expand production. alternative since there appeared to be no percent of the total crop is grown. California has little or no non-bearing pest risk reason to maintain the Ninety-five percent of the avocados acreage remaining while Michoacan has prohibition on the avocados in light of grown in Michoacan are of the Hass 30 percent non-bearing acreage. variety. In 1990, therefore, the total Michoacan producers face three the safeguards that would be applied to export of Hass variety avocados from additional costs in order to deliver their their importation. Michoacan was approximately 15,000 products to the U.S. border. These This proposed rule contains no tons. include the cost of transportation ($0.03 paperwork or recordkeeping In comparison, domestic growers per pound), the border crossing cost requirements. produced 151,650 tons of avocados in ($0.027 per pound), and a tariff rate of Executive Order 12778 1993; California growers produced $0.054 per pound. Taking these factors approximately 97 percent (147,000 into consideration, the break-even point This proposed rule would allow fresh tons), Florida growers produced a little for California production is $0.48 (the Hass avocado fruit to be imported into less than 3 percent (4,400 tons), and average wholesale price per pound in the United States from the Mexican Hawaiian growers produced less than 1 California); Michoacan Hass avocados State of Michoacan. If this proposed rule percent (250 tons) of the 1993 total. In could be delivered to the U.S. border for is adopted, State and local laws and Florida and Hawaii non-Hass varieties $0.34 (the price of avocado sold regulations regarding fresh Hass are predominant, while in California the domestically in Mexico ($0.23 per avocado fruit imported under this rule Hass variety accounts for approximately pound) plus the cost of placing would be preempted while the fruit is 85 percent of the total production. Michoacan avocados at the U.S. border in foreign commerce. Fresh avocados Although Mexico has well established ($0.11 per pound). Thus, at the U.S. are generally imported for immediate export markets in Europe, Japan, and border the Mexican producers would distribution and sale to the consuming Canada, shipping avocados to these have a cost advantage over U.S. Hass public, and would remain in foreign markets involves traversing great avocado producers. However, which of commerce until sold to the ultimate distances, thus incurring high these two would gain the market for consumer. The question of when foreign transportation costs. As in Mexico, a avocados in the 20 northeastern States commerce ceases in other cases must be substantial proportion of U.S. would depend on their respective addressed on a case-by-case basis. If this production of avocados is consumed ability to deliver the best quality proposed rule is adopted, no retroactive internally. In 1993 the United States avocado in the most efficient way. effect will be given to this rule, and this exported 15,292 tons, while it imported Allowing the importation of fresh rule will not require administrative 8,232 tons. However, the U.S. per capita Hass avocado fruit from Michoacan, proceedings before parties may file suit consumption, which is approximately Mexico, would directly affect avocado in court challenging this rule. 1.36 pounds, is much smaller than the growers, mainly in California. There Paperwork Reduction Act per capita consumption in Mexico. The were 7,300 avocado growers in the demand for avocados in the United United States in 1993, most of which This document contains no new States is inelastic (¥0.48). In other were located in California. Of these, information or recordkeeping words, a reduction in the price of 6,729 are considered to be small requirements under the Paperwork avocados would not result in a entities. The importation of Hass Reduction Act of 1980 (44 U.S.C. 3501 proportionate increase in the purchase avocados from Mexico would likely et seq.). Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Proposed Rules 34841 List of Subjects in 7 CFR Part 319 agreement requires the Mexican avocado export program and must be Bees, Coffee, Cotton, Fruits, Honey, avocado industry association to deposit listed as an approved orchard or an Imports, Nursery Stock, Plant diseases a certified or cashier’s check with approved grower in the annual work and pests, Quarantine, Reporting and APHIS for the amount of those costs, as plan provided to APHIS by Sanidad recordkeeping requirements, Rice, estimated by APHIS. If the deposit is not Vegetal. The operations of the orchard Vegetables. sufficient to meet all costs incurred by must meet the following conditions: Accordingly, 7 CFR part 319 would be APHIS, the agreement further requires (i) The orchard and all contiguous amended as follows: the Mexican avocado industry orchards and properties must be association to deposit with APHIS a surveyed annually and found to be free PART 319ÐFOREIGN QUARANTINE certified or cashier’s check for the from the avocado stem weevil Copturus NOTICES amount of the remaining costs, as aguacatae. The survey must be determined by APHIS, before the conducted during the growing season 1. The authority citation for part 319 services will be completed. After a final and completed prior to the harvest of would continue to read as follows: audit at the conclusion of each shipping the avocados. Authority: 7 U.S.C. 150dd, 150ee, 150ff, season, any overpayment of funds (ii) Trapping must be conducted in 151–167; 7 CFR 2.17, 2.51, and 371.2(c), would be returned to the Mexican the orchard for the fruit flies Anastrepha unless otherwise noted. avocado industry association or held on ludens, A. serpentina, and A. striata at 2. A new § 319.56–2ff would be added account until needed. the rate of one trap per 10 hectares. If to read as follows: (c) Safeguards in Mexico. The one fruit fly is trapped, at least 10 avocados must have been grown in the additional traps must be deployed in a § 319.56±2ff Administrative instructions Mexican State of Michoacan in an 50-hectare area immediately governing movement of Hass avocados orchard located in a municipality that surrounding the trap in which the fruit from Mexico to the northeastern United meets the requirements of paragraph fly was found. If within 30 days of the States. (c)(1) of this section. The orchard in first finding any additional fruit flies are Fresh Hass variety avocados (Persea which the avocados are grown must trapped within the 260-hectare area americana) may be imported from meet the requirements of paragraph surrounding the first finding, malathion Mexico into the United States for (c)(2) of this section. The avocados must bait treatments must be applied in the distribution in the northeastern United be packed for export to the United affected orchard in order for the orchard States only under a permit issued in States in a packinghouse that meets the to remain eligible to export avocados. accordance with § 319.56–4, and only requirements of paragraph (c)(3) of this (iii) Avocado fruit that has fallen from under the following conditions: section. Sanidad Vegetal must provide the trees must be removed from the (a) Shipping restrictions. (1) The an annual work plan to APHIS that orchard prior to harvest and may not be avocados may be imported in details the activities that Sanidad included in field boxes of fruit to be commercial shipments only; Vegetal will carry out to meet the packed for export. (2) The avocados may be imported requirements of this section; APHIS will (iv) Dead branches on avocado trees only during the months of November, be directly involved with Sanidad in the orchard must be pruned and December, January, and February; and Vegetal in the monitoring and removed from the orchard. (3) The avocados may be distributed supervision of those activities. The (v) Harvested avocados must be only in the following northeastern personnel conducting the trapping and placed in field boxes or containers of States: Connecticut, Delaware, the pest surveys must be hired, trained, and field boxes that are marked to show the District of Columbia, Illinois, Indiana, supervised by Sanidad Vegetal. Sanidad Vegetal registration number of Kentucky, Maine, Maryland, (1) Municipality requirements. (i) The the orchard. The avocados must be Massachusetts, Michigan, New municipality must be listed as an moved from the orchard to the Hampshire, New Jersey, New York, approved municipality in the annual packinghouse within 3 hours of harvest Ohio, Pennsylvania, Rhode Island, work plan provided to APHIS by or they must be protected from fruit fly Vermont, Virginia, West Virginia, and Sanidad Vegetal. infestation until moved. Wisconsin. (ii) The municipality must be (vi) The avocados must be protected (b) Trust fund agreement. The surveyed at least annually and found to from fruit fly infestation during their avocados may be imported only if the be free from the large avocado seed movement from the orchard to the Mexican avocado industry association weevil Heilipus lauri, the avocado seed packinghouse and must be accompanied representing Mexican avocado growers, moth Stenoma catenifer, and the small by a field record indicating that the packers, and exporters has entered into avocado seed weevils Conotrachelus avocados originated from a certified a trust fund agreement with APHIS for persea and C. aguacatae. The survey orchard. that shipping season. That agreement must cover at least 300 hectares in the (3) Packinghouse requirements. The requires the Mexican avocado industry municipality and include portions of packinghouse must be registered with association to pay in advance all each registered orchard and areas with Sanidad Vegetal’s avocado export estimated costs that APHIS expects to wild or backyard avocado trees. The program and must be listed as an incur through its involvement in the survey must be conducted during the approved packinghouse in the annual trapping, survey, harvest, and growing season and completed prior to work plan provided to APHIS by packinghouse operations prescribed in the harvest of the avocados. Sanidad Vegetal. The operations of the paragraph (c) of this section. These costs (iii) Trapping must be conducted in packinghouse must meet the following will include administrative expenses the municipality for Mediterranean fruit conditions: incurred in conducting the services and fly (Medfly) (Ceratitis capitata) at the (i) During the time the packinghouse all salaries (including overtime and the rate of 1 trap per 1 to 4 square miles. is used to prepare avocados for export Federal share of employee benefits), Any findings of Medfly must be to the United States, the packinghouse travel expenses (including per diem reported to APHIS. may accept fruit only from orchards expenses), and other incidental (2) Orchard and grower requirements. certified by Sanidad Vegetal for expenses incurred by the inspectors in The orchard and the grower must be participation in the avocado export performing these services. The registered with Sanidad Vegetal’s program. 34842 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Proposed Rules (ii) All openings to the outside must Sanidad Vegetal must immediately transit only that area of the United be covered by screening with openings initiate an investigation and take States bounded on the west by a line of not more than 1.6 mm or by some measures to isolate and eradicate the extending from El Paso, TX, to Denver, other barrier that prevents insects from pests. Sanidad Vegetal must also CO, and due north from Denver; and on entering the packinghouse. provide APHIS with information the east and south by a line extending (iii) The packinghouse must have regarding the circumstances of the from Brownsville, TX, to Galveston, TX, double doors at the entrance to the infestation and the pest risk mitigation to Kinder, LA, to Memphis, TN, to facility and at the interior entrance to measures taken. The municipality in Knoxville, TN, following Interstate 40 to the area where the avocados are packed. which the pests are discovered will lose Raleigh, NC, and due east from Raleigh. (iv) Prior to the culling process, a its pest-free certification and avocado All cities on these boundary lines are sample of 250 avocados per shipment exports from that municipality will be included in this area. If the avocados are must be selected, cut, and inspected by suspended until APHIS and Sanidad moved by air, the aircraft may not land Sanidad Vegetal and found free from Vegetal agree that the pest eradication outside this area. Avocados that enter pests. measures taken have been effective and the United States at Nogales, AZ, must (v) The identity of the avocados must that the pest risk within that be moved to El Paso, TX, by the route be maintained from field boxes or municipality have been eliminated. specified on the permit, and then must containers to the shipping boxes so the (2) If Sanidad Vegetal discovers the remain within the shipping area avocados can be traced back to the stem weevil Copturus aguacatae in an described above. orchard in which they were grown if orchard during an orchard survey or (h) Shipping requirements. The pests are found at the packinghouse or other monitoring or inspection activity avocados must be moved through the the port of first arrival in the United in the orchard, Sanidad Vegetal must United States either by air or in a States. provide APHIS with information refrigerated truck or refrigerated rail car (vi) The avocados must be packed in regarding the circumstances of the or in refrigerated containers on a truck clean, new boxes. The boxes must be infestation and the pest risk mitigation or rail car. If the avocados are moved in clearly marked with the identity of the measures taken. The orchard in which refrigerated containers on a truck or rail grower, packinghouse, and exporter, the pest was found will lose its export car, an inspector must seal the and the statement ‘‘Distribution limited certification immediately and will be containers with a serially numbered seal to the following States: CT, DC, DE, IL, denied export certification for the entire at the port of first arrival in the United IN, KY, ME, MD, MA, MI, NH, NJ, NY, shipping season of November through States. If the avocados are moved in a OH, PA, RI, VA, VT, WV, and WI.’’ February. refrigerated truck or a refrigerated rail (vii) The boxes must be placed in a (3) If Sanidad Vegetal discovers the car, an inspector must seal the truck or refrigerated truck or refrigerated stem weevil Copturus aguacatae in fruit rail car with a serially numbered seal at container and remain in that truck or at a packinghouse, Sanidad Vegetal the port of first arrival in the United container while in transit through must investigate the origin of the States. If the avocados are transferred to Mexico to the port of first arrival in the infested fruit and provide APHIS with another vehicle or container in the United States. Prior to leaving the information regarding the circumstances United States, an inspector must be packinghouse, the truck or container of the infestation and the pest risk present to supervise the transfer and must be secured by Sanidad Vegetal mitigation measures taken. The orchard must apply a new serially numbered with a seal that will be broken when the where the infested fruit originated will seal. The avocados must be moved truck or container is opened. lose its export certification immediately through the United States under (viii) Any avocados that have not been and will be denied export certification Customs bond. packed or loaded into a refrigerated for the entire shipping season of (i) Inspection. The avocados are truck or refrigerated container by the November through February. subject to inspection by an inspector at end of the work day must be kept in the (f) Ports. The avocados may enter the the port of first arrival, at any stops in screened packing area. United States at: the United States en route to the (d) Certification. All shipments of (1) Any port located in the northeastern States, and upon arrival at avocados must be accompanied by a northeastern States specified in the terminal market in the northeastern phytosanitary certificate issued by paragraph (a)(3) of this section; States. At the port of first arrival, an Sanidad Vegetal certifying that the (2) The ports of Galveston or Houston, inspector will sample and cut avocados conditions specified in this section have TX, or the border ports of Nogales, AZ, from each shipment to detect pest been met. or Brownsville, Eagle Pass, El Paso, infestation. (e) Pest detection. (1) If any of the Hidalgo, or Laredo, TX; or avocado seed pests Heilipus lauri, (3) Other ports within that area of the Done in Washington, DC, this 29th day of Conotrachelus perseae, C. aguacatae, or United States specified in paragraph (g) June 1995. Stenoma catenifer are discovered in a of this section. Lonnie J. King, municipality during an annual pest (g) Shipping areas. Except as Acting Administrator, Animal and Plant survey, orchard survey, packinghouse explained below for avocados that enter Health Inspection Service. inspection, or other monitoring or the United States at Nogales, AZ, [FR Doc. 95–16405 Filed 6–30–95; 8:45 am] inspection activity in the municipality, avocados moved by truck or rail car may BILLING CODE 3410±34±P i Reader Aids Federal Register Vol. 60, No. 127 Monday, July 3, 1995 INFORMATION AND ASSISTANCE CFR PARTS AFFECTED DURING JULY Federal Register At the end of each month, the Office of the Federal Register Index, finding aids & general information 202±523±5227 publishes separately a List of CFR Sections Affected (LSA), which Public inspection announcement line 523±5215 lists parts and sections affected by documents published since the Corrections to published documents 523±5237 revision date of each title. Document drafting information 523±3187 Machine readable documents 523±4534 Code of Federal Regulations Index, finding aids & general information 523±5227 Printing schedules 523±3419 Laws Public Laws Update Service (numbers, dates, etc.) 523±6641 Additional information 523±5230 Presidential Documents Executive orders and proclamations 523±5230 Public Papers of the Presidents 523±5230 Weekly Compilation of Presidential Documents 523±5230 The United States Government Manual General information 523±5230 Other Services Data base and machine readable specifications 523±4534 Guide to Record Retention Requirements 523±3187 Legal staff 523±4534 Privacy Act Compilation 523±3187 Public Laws Update Service (PLUS) 523±6641 TDD for the hearing impaired 523±5229 ELECTRONIC BULLETIN BOARD Free Electronic Bulletin Board service for Public Law numbers, Federal Register finding aids, and list of documents on public inspection. 202±275±0920 FAX-ON-DEMAND You may access our Fax-On-Demand service. You only need a fax machine and there is no charge for the service except for long distance telephone charges the user may incur. The list of documents on public inspection and the daily Federal Register’s table of contents are available using this service. The document numbers are 7050-Public Inspection list and 7051-Table of Contents list. The public inspection list will be updated immediately for documents filed on an emergency basis. NOTE: YOU WILL ONLY GET A LISTING OF DOCUMENTS ON FILE AND NOT THE ACTUAL DOCUMENT. Documents on public inspection may be viewed and copied in our office located at 800 North Capitol Street, N.W., Suite 700. The Fax-On-Demand telephone number is: 301±713±6905 FEDERAL REGISTER PAGES AND DATES, JULY 34453±34842...... 3 ii Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Reader Aids CFR CHECKLIST Title Stock Number Price Revision Date 14 Parts: 1–59 ...... (869–026–00042–5) ...... 33.00 Jan. 1, 1995 This checklist, prepared by the Office of the Federal Register, is 60–139 ...... (869–026–00043–3) ...... 27.00 Jan. 1, 1995 published weekly. It is arranged in the order of CFR titles, stock 140–199 ...... (869–026–00044–1) ...... 13.00 Jan. 1, 1995 numbers, prices, and revision dates. 200–1199 ...... (869–026–00045–0) ...... 23.00 Jan. 1, 1995 An asterisk (*) precedes each entry that has been issued since last 1200–End ...... (869–026–00046–8) ...... 16.00 Jan. 1, 1995 week and which is now available for sale at the Government Printing 15 Parts: Office. 0–299 ...... (869–026–00047–6) ...... 15.00 Jan. 1, 1995 A checklist of current CFR volumes comprising a complete CFR set, 300–799 ...... (869–026–00048–4) ...... 26.00 Jan. 1, 1995 also appears in the latest issue of the LSA (List of CFR Sections 800–End ...... (869–026–00049–2) ...... 21.00 Jan. 1, 1995 Affected), which is revised monthly. 16 Parts: The annual rate for subscription to all revised volumes is $883.00 0–149 ...... (869–026–00050–6) ...... 7.00 Jan. 1, 1995 domestic, $220.75 additional for foreign mailing. 150–999 ...... (869–026–00051–4) ...... 19.00 Jan. 1, 1995 Mail orders to the Superintendent of Documents, Attn: New Orders, 1000–End ...... (869–026–00052–2) ...... 25.00 Jan. 1, 1995 P.O. Box 371954, Pittsburgh, PA 15250±7954. All orders must be accompanied by remittance (check, money order, GPO Deposit 17 Parts: Account, VISA, or Master Card). Charge orders may be telephoned 1–199 ...... (869–022–00054–3) ...... 20.00 Apr. 1, 1994 ...... to the GPO Order Desk, Monday through Friday, at (202) 512±1800 200–239 (869–022–00055–1) 23.00 Apr. 1, 1994 ...... from 8:00 a.m. to 4:00 p.m. eastern time, or FAX your charge orders 240–End (869–022–00056–0) 30.00 Apr. 1, 1994 to (202) 512-2233. 18 Parts: Title Stock Number Price Revision Date 1–149 ...... (869–026–00057–3) ...... 16.00 Apr. 1, 1995 150–279 ...... (869–026–00058–1) ...... 13.00 Apr. 1, 1995 1, 2 (2 Reserved) ...... (869–026–00001–8) ...... $5.00 Jan. 1, 1995 280–399 ...... (869–026–00059–0) ...... 13.00 Apr. 1, 1995 3 (1994 Compilation 400–End ...... (869–022–00060–8) ...... 11.00 Apr. 1, 1994 and Parts 100 and 19 Parts: 1 101) ...... (869–026–00002–6) ...... 40.00 Jan. 1, 1995 1–140 ...... (869–026–00061–1) ...... 25.00 April 1, 1995 4 ...... (869–026–00003–4) ...... 5.50 Jan. 1, 1995 *141–199 ...... (869–026–00062–0) ...... 21.00 Apr. 1, 1995 200–End ...... (869–026–00063–8) ...... 12.00 Apr. 1, 1995 5 Parts: 1–699 ...... (869–026–00004–2) ...... 23.00 Jan. 1, 1995 20 Parts: 700–1199 ...... (869–026–00005–1) ...... 20.00 Jan. 1, 1995 1–399 ...... (869–026–00064–6) ...... 20.00 Apr. 1, 1995 1200–End, 6 (6 400–499 ...... (869–022–00064–1) ...... 34.00 Apr. 1, 1994 Reserved) ...... (869–026–00006–9) ...... 23.00 Jan. 1, 1995 500–End ...... (869–026–00066–2) ...... 34.00 Apr. 1, 1995 7 Parts: 21 Parts: 0–26 ...... (869–026–00007–7) ...... 21.00 Jan. 1, 1995 1–99 ...... (869–022–00066–7) ...... 16.00 Apr. 1, 1994 27–45 ...... (869–026–00008–5) ...... 14.00 Jan. 1, 1995 100–169 ...... (869–022–00067–5) ...... 21.00 Apr. 1, 1994 46–51 ...... (869–026–00009–3) ...... 21.00 Jan. 1, 1995 170–199 ...... (869–026–00068–7) ...... 22.00 Apr. 1, 1995 52 ...... (869–026–00010–7) ...... 30.00 Jan. 1, 1995 200–299 ...... (869–026–00070–1) ...... 7.00 Apr. 1, 1995 53–209 ...... (869–026–00011–5) ...... 25.00 Jan. 1, 1995 300–499 ...... (869–026–00071–9) ...... 39.00 Apr. 1, 1995 210–299 ...... (869–026–00012–3) ...... 34.00 Jan. 1, 1995 500–599 ...... (869–022–00071–3) ...... 16.00 Apr. 1, 1994 300–399 ...... (869–026–00013–1) ...... 16.00 Jan. 1, 1995 600–799 ...... (869–022–00072–1) ...... 8.50 Apr. 1, 1994 400–699 ...... (869–026–00014–0) ...... 21.00 Jan. 1, 1995 800–1299 ...... (869–022–00073–0) ...... 22.00 Apr. 1, 1994 700–899 ...... (869–026–00015–8) ...... 23.00 Jan. 1, 1995 1300–End ...... (869–026–00075–1) ...... 13.00 Apr. 1, 1995 900–999 ...... (869–026–00016–6) ...... 32.00 Jan. 1, 1995 1000–1059 ...... (869–026–00017–4) ...... 23.00 Jan. 1, 1995 22 Parts: 1060–1119 ...... (869–026–00018–2) ...... 15.00 Jan. 1, 1995 1–299 ...... (869–022–00075–6) ...... 32.00 Apr. 1, 1994 1120–1199 ...... (869–026–00019–1) ...... 12.00 Jan. 1, 1995 300–End ...... (869–026–00077–8) ...... 24.00 Apr. 1, 1995 1200–1499 ...... (869–026–00020–4) ...... 32.00 Jan. 1, 1995 23 ...... (869–022–00077–2) ...... 21.00 Apr. 1, 1994 1500–1899 ...... (869–026–00021–2) ...... 35.00 Jan. 1, 1995 24 Parts: 1900–1939 ...... (869–026–00022–1) ...... 16.00 Jan. 1, 1995 ...... 1940–1949 ...... (869–026–00023–9) ...... 30.00 Jan. 1, 1995 0–199 (869–022–00078–1) 36.00 Apr. 1, 1994 1950–1999 ...... (869–026–00024–7) ...... 40.00 Jan. 1, 1995 200–499 ...... (869–022–00079–9) ...... 38.00 Apr. 1, 1994 2000–End ...... (869–026–00025–5) ...... 14.00 Jan. 1, 1995 500–699 ...... (869–022–00080–2) ...... 20.00 Apr. 1, 1994 700–1699 ...... (869–022–00081–1) ...... 39.00 Apr. 1, 1994 8 ...... (869–026–00026–3) ...... 23.00 Jan. 1, 1995 1700–End ...... (869–026–00085–9) ...... 17.00 Apr. 1, 1995 9 Parts: 25 ...... (869–026–00086–7) ...... 32.00 Apr. 1, 1995 1–199 ...... (869–026–00027–1) ...... 30.00 Jan. 1, 1995 200–End ...... (869–026–00028–0) ...... 23.00 Jan. 1, 1995 26 Parts: §§ 1.0-1–1.60 ...... (869–026–00087–5) ...... 21.00 Apr. 1, 1995 10 Parts: *§§ 1.61–1.169 ...... (869–026–00088–3) ...... 34.00 Apr. 1, 1995 0–50 ...... (869–026–00029–8) ...... 30.00 Jan. 1, 1995 §§ 1.170–1.300 ...... (869–022–00086–1) ...... 24.00 Apr. 1, 1994 51–199 ...... (869–026–00030–1) ...... 23.00 Jan. 1, 1995 §§ 1.301–1.400 ...... (869–022–00087–0) ...... 17.00 Apr. 1, 1994 200–399 ...... (869–026–00031–0) ...... 15.00 6Jan. 1, 1993 §§ 1.401–1.440 ...... (869–022–00088–8) ...... 30.00 Apr. 1, 1994 400–499 ...... (869–026–00032–8) ...... 21.00 Jan. 1, 1995 §§ 1.441-1.500 ...... (869-022-00089-6) ...... 22.00 Apr. 1, 1994 500–End ...... (869–026–00033–6) ...... 39.00 Jan. 1, 1995 §§ 1.501–1.640 ...... (869–022–00090–0) ...... 21.00 Apr. 1, 1994 11 ...... (869–026–00034–4) ...... 14.00 Jan. 1, 1995 §§ 1.641–1.850 ...... (869–022–00091–8) ...... 24.00 Apr. 1, 1994 §§ 1.851–1.907 ...... (869–022–00092–6) ...... 26.00 Apr. 1, 1994 12 Parts: §§ 1.908–1.1000 ...... (869–022–00093–4) ...... 27.00 Apr. 1, 1994 1–199 ...... (869–026–00035–2) ...... 12.00 Jan. 1, 1995 §§ 1.1001–1.1400 ...... (869–022–00094–2) ...... 24.00 Apr. 1, 1994 200–219 ...... (869–026–00036–1) ...... 16.00 Jan. 1, 1995 *§§ 1.1401–End ...... (869–026–00098–1) ...... 33.00 Apr. 1, 1995 220–299 ...... (869–026–00037–9) ...... 28.00 Jan. 1, 1995 2–29 ...... (869–022–00096–9) ...... 24.00 Apr. 1, 1994 300–499 ...... (869–026–00038–7) ...... 23.00 Jan. 1, 1995 30–39 ...... (869–022–00097–7) ...... 18.00 Apr. 1, 1994 500–599 ...... (869–026–00039–5) ...... 19.00 Jan. 1, 1995 40–49 ...... (869–022–00098–4) ...... 14.00 Apr. 1, 1994 ...... 600–End (869–026–00040–9) 35.00 Jan. 1, 1995 50–299 ...... (869–026–00102–2) ...... 14.00 Apr. 1, 1995 13 ...... (869–026–00041–7) ...... 32.00 Jan. 1, 1995 300–499 ...... (869–022–00100–1) ...... 24.00 Apr. 1, 1994 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Reader Aids iii Title Stock Number Price Revision Date Title Stock Number Price Revision Date 500–599 ...... (869–026–00104–9) ...... 6.00 4 Apr. 1, 1990 700–789 ...... (869–022–00154–0) ...... 28.00 July 1, 1994 600–End ...... (869–022–00102–7) ...... 8.00 Apr. 1, 1994 790–End ...... (869–022–00155–8) ...... 27.00 July 1, 1994 27 Parts: 41 Chapters: 1–199 ...... (869–022–00103–5) ...... 36.00 Apr. 1, 1994 1, 1–1 to 1–10 ...... 13.00 3 July 1, 1984 200–End ...... (869–026–00107–3) ...... 13.00 8Apr. 1, 1994 1, 1–11 to Appendix, 2 (2 Reserved) ...... 13.00 3 July 1, 1984 3–6 ...... 14.00 3 July 1, 1984 28 Parts: ...... 7 ...... 6.00 3 July 1, 1984 1-42 ...... (869–022–00105–1) ...... 27.00 July 1, 1994 8 ...... 4.50 3 July 1, 1984 43-end ...... (869-022-00106-0) ...... 21.00 July 1, 1994 9 ...... 13.00 3 July 1, 1984 29 Parts: 10–17 ...... 9.50 3 July 1, 1984 0–99 ...... (869–022–00107–8) ...... 21.00 July 1, 1994 18, Vol. I, Parts 1–5 ...... 13.00 3 July 1, 1984 100–499 ...... (869–022–00108–6) ...... 9.50 July 1, 1994 18, Vol. II, Parts 6–19 ...... 13.00 3 July 1, 1984 500–899 ...... (869–022–00109–4) ...... 35.00 July 1, 1994 18, Vol. III, Parts 20–52 ...... 13.00 3 July 1, 1984 900–1899 ...... (869–022–00110–8) ...... 17.00 July 1, 1994 19–100 ...... 13.00 3 July 1, 1984 1900–1910 (§§ 1901.1 to 1–100 ...... (869–022–00156–6) ...... 9.50 July 1, 1994 1910.999) ...... (869–022–00111–6) ...... 33.00 July 1, 1994 101 ...... (869–022–00157–4) ...... 29.00 July 1, 1994 1910 (§§ 1910.1000 to 102–200 ...... (869–022–00158–2) ...... 15.00 July 1, 1994 end) ...... (869–022–00112–4) ...... 21.00 July 1, 1994 201–End ...... (869–022–00159–1) ...... 13.00 July 1, 1994 1911–1925 ...... (869–022–00113–2) ...... 26.00 July 1, 1994 42 Parts: 1926 ...... (869–022–00114–1) ...... 33.00 July 1, 1994 1–399 ...... (869–022–00160–4) ...... 24.00 Oct. 1, 1994 1927–End ...... (869–022–00115–9) ...... 36.00 July 1, 1994 400–429 ...... (869–022–00161–2) ...... 26.00 Oct. 1, 1994 30 Parts: 430–End ...... (869–022–00162–1) ...... 36.00 Oct. 1, 1994 1–199 ...... (869–022–00116–7) ...... 27.00 July 1, 1994 43 Parts: 200–699 ...... (869–022–00117–5) ...... 19.00 July 1, 1994 1–999 ...... (869–022–00163–9) ...... 23.00 Oct. 1, 1994 700–End ...... (869–022–00118–3) ...... 27.00 July 1, 1994 1000–3999 ...... (869–022–00164–7) ...... 31.00 Oct. 1, 1994 31 Parts: 4000–End ...... (869–022–00165–5) ...... 14.00 Oct. 1, 1994 0–199 ...... (869–022–00119–1) ...... 18.00 July 1, 1994 44 ...... (869–022–00166–3) ...... 27.00 Oct. 1, 1994 200–End ...... (869–022–00120–5) ...... 30.00 July 1, 1994 45 Parts: 32 Parts: 1–199 ...... (869–022–00167–1) ...... 22.00 Oct. 1, 1994 1–39, Vol. I ...... 15.00 2 July 1, 1984 200–499 ...... (869–022–00168–0) ...... 15.00 Oct. 1, 1994 1–39, Vol. II ...... 19.00 2 July 1, 1984 500–1199 ...... (869–022–00169–8) ...... 32.00 Oct. 1, 1994 1–39, Vol. III ...... 18.00 2 July 1, 1984 1200–End ...... (869–022–00170–1) ...... 26.00 Oct. 1, 1994 1–190 ...... (869–022–00121–3) ...... 31.00 July 1, 1994 191–399 ...... (869–022–00122–1) ...... 36.00 July 1, 1994 46 Parts: 400–629 ...... (869–022–00123–0) ...... 26.00 July 1, 1994 1–40 ...... (869–022–00171–0) ...... 20.00 Oct. 1, 1994 630–699 ...... (869–022–00124–8) ...... 14.00 5 July 1, 1991 41–69 ...... (869–022–00172–8) ...... 16.00 Oct. 1, 1994 ...... 700–799 ...... (869–022–00125–6) ...... 21.00 July 1, 1994 70–89 (869–022–00173–6) 8.50 Oct. 1, 1994 90–139 ...... (869–022–00174–4) ...... 15.00 Oct. 1, 1994 800–End ...... (869–022–00126–4) ...... 22.00 July 1, 1994 140–155 ...... (869–022–00175–2) ...... 12.00 Oct. 1, 1994 33 Parts: 156–165 ...... (869–022–00176–1) ...... 17.00 7Oct. 1, 1993 1–124 ...... (869–022–00127–2) ...... 20.00 July 1, 1994 166–199 ...... (869–022–00177–9) ...... 17.00 Oct. 1, 1994 125–199 ...... (869–022–00128–1) ...... 26.00 July 1, 1994 200–499 ...... (869–022–00178–7) ...... 21.00 Oct. 1, 1994 200–End ...... (869–022–00129–9) ...... 24.00 July 1, 1994 500–End ...... (869–022–00179–5) ...... 15.00 Oct. 1, 1994 34 Parts: 47 Parts: 1–299 ...... (869–022–00130–2) ...... 28.00 July 1, 1994 0–19 ...... (869–022–00180–9) ...... 25.00 Oct. 1, 1994 300–399 ...... (869–022–00131–1) ...... 21.00 July 1, 1994 20–39 ...... (869–022–00181–7) ...... 20.00 Oct. 1, 1994 400–End ...... (869–022–00132–9) ...... 40.00 July 1, 1994 40–69 ...... (869–022–00182–5) ...... 14.00 Oct. 1, 1994 70–79 ...... (869–022–00183–3) ...... 24.00 Oct. 1, 1994 35 ...... (869–022–00133–7) ...... 12.00 July 1, 1994 80–End ...... (869–022–00184–1) ...... 26.00 Oct. 1, 1994 36 Parts: 48 Chapters: 1–199 ...... (869–022–00134–5) ...... 15.00 July 1, 1994 1 (Parts 1–51) ...... (869–022–00185–0) ...... 36.00 Oct. 1, 1994 200–End ...... (869–022–00135–3) ...... 37.00 July 1, 1994 1 (Parts 52–99) ...... (869–022–00186–8) ...... 23.00 Oct. 1, 1994 37 ...... (869–022–00136–1) ...... 20.00 July 1, 1994 2 (Parts 201–251) ...... (869–022–00187–6) ...... 16.00 Oct. 1, 1994 38 Parts: 2 (Parts 252–299) ...... (869–022–00188–4) ...... 13.00 Oct. 1, 1994 ...... 0–17 ...... (869–022–00137–0) ...... 30.00 July 1, 1994 3–6 (869–022–00189–2) 23.00 Oct. 1, 1994 7–14 ...... (869–022–00190–6) ...... 30.00 Oct. 1, 1994 18–End ...... (869–022–00138–8) ...... 29.00 July 1, 1994 15–28 ...... (869–022–00191–4) ...... 32.00 Oct. 1, 1994 39 ...... (869–022–00139–6) ...... 16.00 July 1, 1994 29–End ...... (869–022–00192–2) ...... 17.00 Oct. 1, 1994 40 Parts: 49 Parts: 1–51 ...... (869–022–00140–0) ...... 39.00 July 1, 1994 1–99 ...... (869–022–00193–1) ...... 24.00 Oct. 1, 1994 52 ...... (869–022–00141–8) ...... 39.00 July 1, 1994 100–177 ...... (869–022–00194–9) ...... 30.00 Oct. 1, 1994 53–59 ...... (869–022–00142–6) ...... 11.00 July 1, 1994 178–199 ...... (869–022–00195–7) ...... 21.00 Oct. 1, 1994 60 ...... (869-022-00143-4) ...... 36.00 July 1, 1994 200–399 ...... (869–022–00196–5) ...... 30.00 Oct. 1, 1994 61–80 ...... (869–022–00144–2) ...... 41.00 July 1, 1994 400–999 ...... (869–022–00197–3) ...... 35.00 Oct. 1, 1994 81–85 ...... (869–022–00145–1) ...... 23.00 July 1, 1994 1000–1199 ...... (869–022–00198–1) ...... 19.00 Oct. 1, 1994 86–99 ...... (869–022–00146–9) ...... 41.00 July 1, 1994 1200–End ...... (869–022–00199–0) ...... 15.00 Oct. 1, 1994 100–149 ...... (869–022–00147–7) ...... 39.00 July 1, 1994 50 Parts: 150–189 ...... (869–022–00148–5) ...... 24.00 July 1, 1994 1–199 ...... (869–022–00200–7) ...... 25.00 Oct. 1, 1994 190–259 ...... (869–022–00149–3) ...... 18.00 July 1, 1994 200–599 ...... (869–022–00201–5) ...... 22.00 Oct. 1, 1994 260–299 ...... (869–022–00150–7) ...... 36.00 July 1, 1994 600–End ...... (869–022–00202–3) ...... 27.00 Oct. 1, 1994 300–399 ...... (869–022–00151–5) ...... 18.00 July 1, 1994 400–424 ...... (869–022–00152–3) ...... 27.00 July 1, 1994 CFR Index and Findings 425–699 ...... (869–022–00153–1) ...... 30.00 July 1, 1994 Aids ...... (869–026–00053–1) ...... 36.00 Jan. 1, 1995 iv Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Reader Aids Title Stock Number Price Revision Date Subscription (mailed as issued) ...... 264.00 1995 Complete 1995 CFR set ...... 883.00 1995 Individual copies ...... 1.00 1995 1 Because Title 3 is an annual compilation, this volume and all previous volumes Microfiche CFR Edition: should be retained as a permanent reference source. 2 Complete set (one-time mailing) ...... 188.00 1992 The July 1, 1985 edition of 32 CFR Parts 1–189 contains a note only for Parts 1–39 inclusive. For the full text of the Defense Acquisition Regulations Complete set (one-time mailing) ...... 223.00 1993 in Parts 1–39, consult the three CFR volumes issued as of July 1, 1984, containing Complete set (one-time mailing) ...... 244.00 1994 those parts. 3 The July 1, 1985 edition of 41 CFR Chapters 1–100 contains a note only for Chapters 1 to 49 inclusive. For the full text of procurement regulations in Chapters 1 to 49, consult the eleven CFR volumes issued as of July 1, 1984 containing those chapters. 4 No amendments to this volume were promulgated during the period Apr. 1, 1990 to Mar. 31, 1995. The CFR volume issued April 1, 1990, should be retained. 5 No amendments to this volume were promulgated during the period July 1, 1991 to June 30, 1994. The CFR volume issued July 1, 1991, should be retained. 6 No amendments to this volume were promulgated during the period January 1, 1993 to December 31, 1994. The CFR volume issued January 1, 1993, should be retained. 7 No amendments to this volume were promulgated during the period October 1, 1993, to September 30, 1994. The CFR volume issued October 1, 1993, should be retained. 8 No amendments to this volume were promulgated during the period April 1, 1994 to March 31, 1995. The CFR volume issued April 1, 1994, should be retained. 9 Note: Title 19, CFR Parts 141-199, revised 4-1-95 volume is being republished to restore inadvertently omitted text. Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Reader Aids v CFR ISSUANCES 1995 24 Parts: JanuaryÐJuly 1995 Editions and Projected October, 18 Parts: 0±199 1995 Editions 1±149 200±499 150±279 500±699 280±399 700±1699 This list sets out the CFR issuances for the January±July 1995 400±End 1700±End editions and projects the publication plans for the October, 1995 quarter. A projected schedule that will include the January, 1996 19 Parts: 25 quarter will appear in the first Federal Register issue of October. 1±140 For pricing information on available 1994±1995 volumes 141±199 26 Parts: consult the CFR checklist which appears every Monday in 200±End 1 (§§ 1.0-1±1.60) the Federal Register. 1 (§§ 1.61±1.169) Pricing information is not available on projected issuances. The 20 Parts: 1 (§§ 1.170±1.300) weekly CFR checklist and the monthly List of CFR Sections 1±399 1 (§§ 1.301±1.400) 400±499 Affected will continue to provide a cumulative list of CFR titles 1 (§§ 1.401±1.440) 500±End and parts, revision date and price of each volume. 1 (§§ 1.441±1.500) 1 (§§ 1.501±1.640) Normally, CFR volumes are revised according to the following 21 Parts: schedule: 1±99 1 (§§ 1.641±1.850) 1 (§§ 1.851±1.907) Titles 1±16ÐJanuary 1 100±169 170±199 1 (§§ 1.908±1.1000) Titles 17±27ÐApril 1 1 (§§ 1.1001±1.1400) Titles 28±41ÐJuly 1 200±299 300±499 1 (§ 1.1401±End) Titles 42±50ÐOctober 1 500±599 2±29 All volumes listed below will adhere to these scheduled revision 600±799 30±39 dates unless a notation in the listing indicates a different revision 800±1299 40±49 date for a particular volume. 1300±End 50±299 300±499 Titles revised as of January 1, 1995: 22 Parts: 500±599 (Cover only) 1±299 600±End Title 300±End CFR Index 1±199 27 Parts: 200±End 23 1±199 1±2 200±End (Cover only) 10 Parts: 3 (Compilation) 0±50 Titles revised as of July 1, 1995: 51±199 Title 4 200±399 (Cover only) 28 Parts: 34 Parts: 400±499 0±42 1±299 5 Parts: 500±End 1±699 43±End 300±399 400±End 700±1199 11 1200±End 29 Parts: 0±99 35 12 Parts: 6 [Reserved] 100±499 1±199 500±899 36 Parts: 200±219 7 Parts: 900±1899 1±199 220±299 0±26 1900±1910 (§§ 1901.1± 200±End 300±499 27±45 1910.999) 46±51 500±599 1910 (§§ 1910.1000±End) 37 52 600±End 1911±1925 53±209 1926 38 Parts: 210±299 13 1927±End 0±17 300±399 18±End 400±699 14 Parts: 30 Parts: 700±899 1±59 1±199 39 900±999 60±139 200±699 1000±1059 140±199 700±End 40 Parts: 1060±1119 200±1199 1±51 1120±1199 1200±End 31 Parts: 52 1200±1499 0±199 53±59 1500±1899 15 Parts: 200±End 60 1900±1939 0±299 61±71 1940±1949 300±799 32 Parts: 72±85 1950±1999 800±End 1±190 86 2000±End 191±399 87±149 16 Parts: 400±629 150±189 8 0±149 630±699 (Cover only) 190±259 150±999 700±799 260±299 9 Parts: 1000±End 800±End 300±399 400±424 Titles revised as of April 1, 1995: 33 Parts: 425±699 1±124 700±789 Title 125±199 790±End 200±End 17 Parts: 200±239 41 Parts: 1±199 240±End vi Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Reader Aids Chs. 1±100 Chs. 102±200 156±165 Chs. 7±14 Ch. 101 Ch. 201±End 166±199 Ch. 15±28 200±499 Ch. 29±End Projected October 1, 1995 editions: 500±End 49 Parts: Title 47 Parts: 1±99 0±19 42 Parts: 45 Parts: 100±177 20±39 178±199 1±399 1±199 40±69 200±399 400±429 200±499 70±79 400±999 430±End 500±1199 80±End 1200±End 1000±1199 43 Parts: 48 Parts: 1200±End 1±999 46 Parts: Ch. 1 (1±51) 1000±3999 1±40 Ch. 1 (52±99) 50 Parts: 4000±End 41±69 Ch. 2 (201±251) 1±199 70±89 Ch. 2 (252±299) 200±599 44 90±139 Chs. 3±6 600±End 140±155 Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Reader Aids vii TABLE OF EFFECTIVE DATES AND TIME PERIODSÐJULY 1995 This table is used by the Office of the dates, the day after publication is A new table will be published in the Federal Register to compute certain counted as the first day. first issue of each month. dates, such as effective dates and When a date falls on a weekend or comment deadlines, which appear in holiday, the next Federal business day agency documents. In computing these is used. (See 1 CFR 18.17) DATE OF FR 15 DAYS AFTER 30 DAYS AFTER 45 DAYS AFTER 60 DAYS AFTER 90 DAYS AFTER PUBLICATION PUBLICATION PUBLICATION PUBLICATION PUBLICATION PUBLICATION July 3 July 18 August 2 August 17 September 1 October 2 July 5 July 20 August 4 August 21 September 5 October 3 July 6 July 21 August 7 August 21 September 5 October 4 July 7 July 24 August 7 August 21 September 5 October 5 July 10 July 25 August 9 August 24 September 8 October 10 July 11 July 26 August 10 August 25 September 11 October 10 July 12 July 27 August 11 August 28 September 11 October 10 July 13 July 28 August 14 August 28 September 11 October 11 July 14 July 31 August 14 August 28 September 12 October 12 July 17 August 1 August 16 August 31 September 15 October 16 July 18 August 2 August 17 September 1 September 18 October 16 July 19 August 3 August 18 September 5 September 18 October 17 July 20 August 4 August 21 September 5 September 18 October 18 July 21 August 7 August 21 September 5 September 19 October 19 July 24 August 8 August 23 September 7 September 22 October 23 July 25 August 9 August 24 September 8 September 25 October 23 July 26 August 10 August 25 September 11 September 25 October 24 July 27 August 11 August 28 September 11 September 25 October 25 July 28 August 14 August 28 September 11 September 26 October 26 July 31 August 15 August 30 September 14 September 29 October 30