Pages 1707±1988 Vol. 60 1±5±95 No. 3 federal register January 5,1995 Thursday announcement ontheinsidecoverofthisissue. For informationonbriefingsinWashington,DC,see Briefings onHowToUsetheFederalRegister 1 II Federal Register / Vol. 60, No. 3 / Thursday, January 5, 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. 3 Thursday, January 5, 1995 Agriculture Department Energy Efficiency and Renewable Energy Office See Commodity Credit Corporation NOTICES See Forest Service Consumer products; energy conservation program: See Rural Utilities Service Representative average unit costs of energy, 1773–1774 Army Department Environmental Protection Agency RULES Army claims system; investigation, processing, and RULES settlement of claims against and in favor of U.S. Air quality implementation plans: Withdrawn, 1735 Preparation, adoption, and submittal— Vehicle inspection/maintenance program requirements; Children and Families Administration redesignation provisions, 1735–1738 NOTICES Air quality implementation plans; approval and Agency information collection activities under OMB promulgation; various States: review, 1785 Pennsylvania, 1738–1741 Grants and cooperative agreements; availability, etc.: Clean Air Act: Runaway and homeless youth program, 1785–1788 State operating permits programs— Nevada, 1741–1744 Coast Guard Hazardous waste: PROPOSED RULES Identification and listing— Pollution: Exclusions, 1744–1747 Oil off-load (lightering) zones; designation, 1958–1967 NOTICES Agency information collection activities under OMB Commerce Department review, 1775 See National Institute of Standards and Technology Toxic and hazardous substances control: See National Oceanic and Atmospheric Administration Chemical testing— Data receipt, 1775–1776 Commodity Credit Corporation RULES Executive Office of the President Loan and purchase programs: See Management and Budget Office Grains and similarly handled commodities— See Trade Representative, Office of United States Oilseeds, etc., 1709 Upland and extra long staple cotton; 1994 loan and loan deficiency payments provisions, 1709–1710 Federal Aviation Administration NOTICES RULES Feed grain donations: Airworthiness directives: Flathead Indian Reservation, MT, 1765 Boeing, 1712–1716 Pueblo of Laguna Indian Reservation, NM, 1765 Federal Communications Commission Defense Department See Federal Communications Commission See Army Department NOTICES RULES Rulemaking proceedings; petitions filed, granted, denied, Acquisition regulations: etc., 1776 Restructuring costs associated with business Applications, hearings, determinations, etc.: combinations; reimbursement, 1747–1749 Ellis Thompson Corp., 1776 Personnel: Military personnel indebtedness; involuntary allotment, 1720–1735 Federal Contract Compliance Programs Office NOTICES RULES Meetings: Affirmative action obligations of contractors and Electron Devices Advisory Group, 1770–1771 subcontractors for disabled veterans and Vietnam era Science Board task forces, 1771 veterans; statutory changes, 1986–1987 Education Department Federal Election Commission NOTICES NOTICES Administrative Law Judges Office hearings: Meetings; Sunshine Act, 1844 Claim compromises— Ohio Rehabilitation Services Commission, 1771–1773 Federal Emergency Management Agency Energy Department NOTICES See Energy Efficiency and Renewable Energy Office Disaster and emergency areas: See Federal Energy Regulatory Commission Florida, 1777 IV Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Contents Federal Energy Regulatory Commission Health Resources and Services Administration RULES See Public Health Service Natural Gas Policy Act: Electronic Bulletin Boards Standards— Housing and Urban Development Department Capacity release data sets modifications, 1718–1720 RULES Practice and procedure: Community development block grants: Electronic filing of FERC Form No. 1 and delegation to Project costs and financial requirements; economic Chief Accountant, 1716–1718 development guidelines, 1922–1954 NOTICES Community planning and development programs; Electric rate and corporate regulation filings: consolidation, 1878–1919 Nelson Industrial Steam Co., 1774 NOTICES Applications, hearings, determinations, etc.: Public and Indian housing: Cambridge Electric Light Co., 1774 Drug elimination program, 1846–1863 Midwestern Gas Transmission Co., 1774 Indian Affairs Bureau Federal Maritime Commission PROPOSED RULES NOTICES Land and water: Agreements filed, etc., 1777–1778 Alaska Native land acquisitions; rulemaking petition, Freight forwarder licenses: 1956 Alumar, Inc., et al., 1778–1779 NOTICES Environmental statements; availability, etc.: Federal Railroad Administration Fort Mojave Indian Reservation, NV and CA, 1876 PROPOSED RULES Indian tribes, acknowledgment of existence determinations, Railroad workplace safety: etc.: Roadway worker protection; regulatory negotiation MOWA Band of Choctaw, 1874 advisory committee; establishment and meeting, 1761–1764 Interior Department See Fish and Wildlife Service Federal Reserve System See Indian Affairs Bureau NOTICES See Land Management Bureau Agency information collection activities under OMB review, 1779–1781 International Trade Commission Applications, hearings, determinations, etc.: NOTICES AMBANC Corp. et al., 1781 Import investigations: Bank of Ireland et al., 1781–1782 Recombinantly produced human growth hormones, 1793 Persons Banking Co., Inc., 1782 Port St. Lucie National Bank Holding Corp. et al., 1782 Interstate Commerce Commission Federal Trade Commission NOTICES NOTICES Environmental statements; availability, etc.: Prohibited trade practices: Louisiana Southern Railway Co. et al., 1793 IVAX Corp., 1782–1784 Railroad operation, acquisition, construction, etc.: Canadian American Railroad Co., 1794–1795 Fish and Wildlife Service Eastern Maine Railway Co., 1794 NOTICES Minnesota Central Railroad Co., 1793 Endangered and threatened species permit applications, Pioneer Railcorp, 1793–1794 1792 Judicial Conference of the United States Food and Consumer Service NOTICES RULES Meetings: Food stamp program: Judicial Conference Advisory Committee on— Employment and training performance-based funds Civil Procedure Rules et al., 1795 distribution, 1707–1709 NOTICES Justice Department Child nutrition programs: See Juvenile Justice and Delinquency Prevention Office Child and adult care food program— NOTICES Summer food service program; reimbursement rates, Agency information collection activities under OMB 1768 review, 1795–1796 Grants and cooperative agreements; availability, etc.: Forest Service Alien unaccompanied minors shelter care program, 1796– NOTICES 1800 Environmental statements; availability, etc.: Pollution control; consent judgments: Custer National Forest, ND, 1765–1767 ASARCO Inc., 1800–1801 Wallowa-Whitman National Forest, OR, 1767 Bay Area Battery, Inc., 1801–1802 Blackbird Mining Co. et al., 1802 Health and Human Services Department Brodhead, KY, et al., 1802 See Children and Families Administration Gulf Chemical & Metallurgical Corp., 1802–1803 See Public Health Service J.F. Shea, Inc., 1803 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Contents V Juvenile Justice and Delinquency Prevention Office Occupational Safety and Health Administration NOTICES NOTICES Grants and cooperative agreements; availability, etc.: Meetings: Missing and exploited children’s program, 1970–1981 Occupational Safety and Health Federal Advisory Council, 1803–1804 Labor Department See Federal Contract Compliance Programs Office Office of Management and Budget See Mine Safety and Health Administration See Management and Budget Office See Occupational Safety and Health Administration Office of United States Trade Representative Land Management Bureau See Trade Representative, Office of United States NOTICES Recreation management restrictions, etc.: Public Health Service Ukiah District, CA; supplemental shooting regulations, NOTICES 1791–1792 Privacy Act: Systems of records, 1788–1791 Management and Budget Office NOTICES Rural Utilities Service Budget rescissions and deferrals RULES Cumulative reports, 1984 Telecommunications standards and specifications: Materials, equipment, and construction— Mine Safety and Health Administration Codified regulations list update, 1711–1712 PROPOSED RULES Reporting and recordkeeping requirements, 1710–1711 Metal and nonmetal mine safety and health: PROPOSED RULES Explosives, 1866–1871 Telecommunications standards and specifications: Materials, construction, and equipment— National Credit Union Administration Construction of telephone facilities financed with RUS NOTICES loan funds; rescission of obsolete guidance Grants and cooperative agreements; availability, etc.: bulletins, 1758–1759 Community development revolving loan program for Materials, equipment, and construction— credit unions, 1804 Digital, stored program controlled central office equipment, general specification; multiparty National Highway Traffic Safety Administration service requirement elimination, 1759–1761 RULES NOTICES Motor vehicle safety standards: Meetings: Lamps, reflective devices, and associated equipment— Electric distribution mortgage; standard form, 1768 Trailer conspicuity requirements; tank trailers and width of retroreflective conspicuity sheeting, 1750– Securities and Exchange Commission 1757 NOTICES Theft prevention standard compliance; temporary Agency information collection activities under OMB exemptions, 1749–1750 review, 1805 NOTICES Self-regulatory organizations; proposed rule changes: Motor vehicle safety standards; exemption petitions, etc.: National Association of Securities Dealers, Inc., 1808– Excalibur Automobile Corp., 1823–1824 1818, 1820–1823 Motor vehicle theft prevention standard: New York Stock Exchange, Inc., 1818 Passenger motor vehicle theft data (1992 CY); correction, Applications, hearings, determinations, etc.: 1824–1828 FN Network Tax Free Money Market Fund, Inc., 1807– 1808 National Institute of Standards and Technology Putnam Adjustable Rate U.S. Government Fund et al., NOTICES 1805–1807 Post-earthquake fires; technology development and research to reduce number and severity; comment request, Trade Representative, Office of United States 1768–1769 NOTICES Intellectual property rights protection, countries denying; National Oceanic and Atmospheric Administration policies and practices: RULES China, 1829–1843 Fishery conservation and management: Summer flounder, 1757 Transportation Department NOTICES See Coast Guard Environmental statements; availability, etc.: See Federal Aviation Administration Gulf of Mexico shrimp fishery, 1769–1770 See Federal Railroad Administration Permits: See National Highway Traffic Safety Administration Marine mammals, 1770 Treasury Department Nuclear Regulatory Commission NOTICES NOTICES Agency information collection activities under OMB Meetings: review, 1828–1829 Nuclear Waste Advisory Committee, 1804–1805 VI Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Contents Separate Parts In This Issue Part IX Department of Transportation, Coast Guard, 1958–1967 Part II Department of Housing and Urban Development, 1846– Part X 1863 Department of Justice, Juvenile Justice and Delinquency Prevention Office, 1970–1981 Part III Department of Labor, Mine Safety and Health Part XI Administration, 1866–1871 Office of Management and Budget, 1984 Part IV Part XII Department of the Interior, Bureau of Indian Affairs, 1874 Department of Labor, Federal Contract Compliance Program Office, 1986–1987 Part V Department of the Interior, Bureau of Indian Affairs, 1876 Reader Aids Part VI Additional information, including a list of public laws, Department of Housing and Urban Development, 1878– telephone numbers, and finding aids, appears in the Reader 1919 Aids section at the end of this issue. Part VII Department of Housing and Urban Development, 1922– Electronic Bulletin Board 1954 Free Electronic Bulletin Board service for Public Law numbers, Federal Register finding aids, and a list of Part VIII documents on public inspection is available on 202–275– Department of the Interior, Bureau of Indian Affairs, 1956 1538 or 275–0920. Federal Register / Vol. 59, No. 3 / Thursday, January 5, 1995 / Contents VII 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 272...... 1707 273...... 1707 1421...... 1709 1427...... 1709 1755 (2 documents) ...... 1710, 1711 Proposed Rules: 1755 (2 documents) ...... 1758, 1759 14 CFR 39...... 1712 18 CFR 141...... 1716 284...... 1718 375...... 1716 385...... 1716 24 CFR 91...... 1878 92...... 1878 570 (2 documents) ...... 1878, 1922 574...... 1878 576...... 1878 968...... 1878 25 CFR Proposed Rules: 151...... 1956 30 CFR Proposed Rules: 56...... 1866 57...... 1866 32 CFR 43a...... 1720 112...... 1720 113...... 1720 536...... 1735 537...... 1735 33 CFR Proposed Rules: 156...... 1958 40 CFR 51...... 1735 52...... 1738, 70...... 1741 261...... 1744 41 CFR 60-250...... 1986 48 CFR 231...... 1747 242...... 1747 49 CFR 555...... 1749 571...... 1750 Proposed Rules: 214...... 1761 50 CFR 625...... 1757 1707 Rules and Regulations Federal Register Vol. 60, No. 3 Thursday, January 5, 1995 This section of the FEDERAL REGISTER However, State agencies are not program retailers and wholesalers contains regulatory documents having general required to implement a more intensive —administrative procedures issued applicability and legal effect, most of which E&T program and may continue to pursuant to 7 U.S.C. 2023 set out at 7 are keyed to and codified in the Code of operate broad-based programs. CFR 278.8. Federal Regulations, which is published under 50 titles pursuant to 44 U.S.C. 1510. EFFECTIVE DATE: October 1, 1993. Regulatory Flexibility Act FOR FURTHER INFORMATION CONTACT: This rule has been reviewed with The Code of Federal Regulations is sold by Questions regarding this rulemaking the Superintendent of Documents. Prices of regard to the requirements of the should be directed to Ellen Henigan, Regulatory Flexibility Act (5 U.S.C. 601 new books are listed in the first FEDERAL Supervisor, Work Program Section, REGISTER issue of each week. through 612). The Administrator of the Food Stamp Program, Food and Food and Consumer Service (FCS), has Consumer Service, USDA, 3101 Park certified that this action does not have DEPARTMENT OF AGRICULTURE Center Drive, Room 716, Alexandria, a significant economic impact on a Virginia 22302. The telephone number substantial number of small entities. Food and Consumer Service is (703) 305–2762. State and local welfare agencies will be SUPPLEMENTARY INFORMATION: the most affected because they 7 CFR Parts 272 and 273 administer the Program and the rule Classification [Amendment No. 351] will affect the performance-based Executive Order 12866 funding levels for each State agency. Food Stamp ProgramÐDistribution of Paperwork Reduction Act Employment and Training This rule has been determined to be Performance-Based Funds not significant for purposes of Executive The provisions of this final rule do Order 12866 and therefore has not been not contain new or additional reporting AGENCY: Food and Consumer Service, reviewed by the Office of Management or recordkeeping requirements subject USDA. and Budget. to approval by the Office of ACTION: Final rule. Executive Order 12372 Management and Budget (OMB) under the Paperwork Reduction Act of 1980 SUMMARY: State welfare agencies are The Food Stamp Program is listed in (44 U.S.C. 3507). responsible for administering the Food the Catalog of Federal Domestic Stamp Program and are required to Assistance Programs under No. 10.551. Background operate the Food Stamp Employment For reasons set forth in the final rule On January 19, 1994, the Department and Training (E&T) program. To assist related Notice(s) of 7 CFR Part 3015, published a proposed rule at 59 FR 2779 in the operation of their E&T programs, subpart V (48 FR 29115, June 24, 1983), designed to amend 7 CFR the State agencies receive a Federal E&T this Program is excluded from the scope 273.7(d)(1)(i)(B) to specify that the $15 grant, a portion of which is distributed of Executive Order 12372 which million Food Stamp E&T performance- on the basis of each State agency’s requires intergovernmental consultation based funds be frozen at the levels the performance in serving the targeted with State and local officials. State agencies respectively received in mandatory population. This final rule FY 1993. On April 11, 1994, the Executive Order 12778 amends Food Stamp Program Department published the final rule regulations as a result of the Food, This final rule has been reviewed implementing revised performance Agriculture, Conservation, and Trade under Executive Order 12778, Civil standards which supports efforts to Act Amendments of 1991, enacted Justice Reform. This rule is intended to allow State agencies to target the E&T December 13, 1991 (FACT Act). The have preemptive effect with respect to program toward fewer participants. This FACT Act reduces the annual any State or local laws, regulations or final rule amends the regulations at performance standard for State agencies policies which conflict with its 273.7(d), to allow State agencies the from 50 percent to no more than 10 provisions or which would otherwise option of placing fewer participants percent in FYs 1992 and 1993 and no impede its full implementation. This through E&T programs and/or operate more than 15 percent in FYs 1994 and rule is not intended to have retroactive more intensive components of the E&T 1995. This final rule freezes the effect unless so specified in the program, in keeping with Section 907(b) performance-based E&T grants at the ‘‘Effective Date’’ paragraph of this of the FACT Act. Comments were level the State agencies received in preamble. Prior to any judicial challenge solicited on the provisions of the Federal Fiscal Year 1993, for two years to the provisions of this rule or the performance-based funding proposed from the fiscal year in which this final application of its provisions, all rulemaking through March 21, 1994. rule is promulgated. The Department is applicable administrative procedures This final action addresses the taking this action in order to enable must be exhausted. In the Food Stamp commenters’ concerns. Readers are State agencies to exercise their option to Program the administrative procedures referred to the proposed rule for a more serve fewer people, as provided by the are as follows: (1) For program benefit complete understanding of this final FACT Act without reduction of recipients—State administrative action. performance-based E&T funds. This procedures issued pursuant to 7 U.S.C. The Department received two final rule supports efforts to target the 2020(e)(10) and 7 CFR 273.15; (2) For comment letters from State agencies on E&T program toward more intensive State agencies—administrative the proposed rule; both concurred with components for a smaller segment of the procedures issued pursuant to 7 U.S.C. the proposed provisions. The first targeted mandatory population. 2023 set out at 7 CFR 276.7; and (3) For commenter noted that the freeze of 1708 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations performance-based funds at the levels year. The Department will recalculate amend 7 CFR 273.7(d) are effective the State agencies received in Fiscal the performance-based funds payable to October 1, 1993. State agencies are not Year 1993 for two years from the State agencies on the basis of required to take any action to promulgation of the final rule will allow Calendar Year 1991 data, but excluding implement these provisions. State agencies to anticipate the available the State agencies which did not meet grant and plan for future needs. their standard. PART 273ÐCERTIFICATION OF The second commenter favored the The Department will not take into ELIGIBLE HOUSEHOLDS proposed provision because the freeze account corrected E&T report forms minimizes changes in funding until the (FNS–583) received later than March 1 3. In § 273.7, paragraph (d)(1)(i)(B) is implementation of outcome-based when determining whether a State revised to read as follows: performance standards for the E&T agency is eligible for performance-based program, and distributes funds based funding. If the data on the reports show § 273.7 Work requirements. upon data reflecting State agency that a State agency did not meet its * * * * * performance prior to the point in time performance standard or a good cause (d) Federal financial participation. when most states would have begun determination was not made by the targeting their E&T programs to fewer Department by March 1, the State (1) Employment and training grants. participants. No other comments were agency shall not be eligible for (i) * * * received on the proposed rule. The performance-based funding. (B) In Federal fiscal year 1993, the Department is adopting the provisions Secretary shall allocate $15 million of of the proposed rule as final without Implementation change. The Department is amending 7 CFR the Federal funds available for 272.1 to add a new paragraph (g)(139) to unmatched employment and training Federal Funding for E&T Programs reflect that the provisions of this final grants based on the ratio of the number Section 16(h), 7 U.S.C. 2025(h), of the rule are effective October 1, 1993. State of E&T mandatory participants placed Food Stamp Act of 1977 (Act) agencies are not required to take any (as defined under paragraph (o) of this authorizes the Secretary to distribute action to implement these provisions. section) in a food stamp E&T program in $75 million each year in unmatched Federal fiscal year 1993 levels will be an eligible State to the number of E&T Federal funds to State agencies to used for the two Federal fiscal years mandatory participants placed in all operate their E&T programs. As following the Federal fiscal year in eligible States in Calendar Year 1991. specified under Section 16(h)(1)(C) of which this rule is published. The Beginning in Federal fiscal year 1994, the Food Stamp Act, $60 million of the Department is anxious to receive and each subsequent Federal fiscal year Federal E&T grant—the nonperformance suggestions for ways the performance- until FY 1998, the Secretary shall based portion—is distributed on the based funds could be distributed allocate $15 million of Federal funds on basis of each State agency’s work beyond that, until outcome-based the basis of the amount of performance- registrant population as a percent of the performance standards are based funding each State agency total work registrant population implemented. received in Federal fiscal year 1993, nationwide. Pursuant to Section 16(h)(1)(B), the remaining $15 million of List of Subjects provided the State agency has met the performance standard (as defined under the Federal E&T grant must be 7 CFR Part 272 distributed on the basis of State agency paragraph (o) of this section) for the performance. Alaska, Civil rights, Food stamps, second preceding Federal fiscal year. Accordingly, the Department is Grant programs—social programs, For example, to receive performance- amending 7 CFR 273.7(d)(1)(i)(B) in this Reporting and recordkeeping based funding in Federal fiscal year rulemaking to specify that the $15 requirements. 1996, the State agency must have met its million performance-based funds will 7 CFR Part 273 performance standard in Federal fiscal be frozen at the levels the State agencies year 1994. Corrections to reports Administrative practice and received in FY 1993. In accordance with required to be submitted in accordance procedure, Aliens, Claims, Food stamps, current rules, performance-based funds with paragraph (c) of this section must will be allocated by the ratio of the Fraud, Grant programs—social programs, Penalties, Reporting and be received by FCS, and State agency number of E&T mandatory participants good cause appeals must be resolved no placed in an E&T program by an eligible recordkeeping requirements, Social security, Students. later than March 1, to be used in State agency to the number of E&T determining whether a State agency is Accordingly, 7 CFR Parts 272 and 273 mandatory participants placed in all eligible for performance-based funding eligible State agencies in Calendar Year are amended as follows: 1. The authority citation for 7 CFR for the Federal fiscal year beginning the 1991. following October. If the data on the Each State agency must continue to Parts 272 and 273 continues to read as reports show that a State agency did not meet established performance standards follows: meet its performance standard or a good (e.g., 10 percent in FY 1994) in order to Authority: 7 U.S.C. 2011–2032. be eligible for its share of these funds as cause determination was not made by is required under 7 CFR PART 272ÐREQUIREMENTS FOR FCS by March 1, the State agency shall 273.7(d)(1)(i)(B). Should a State agency PARTICIPATING STATE AGENCIES not be eligible for performance-based fail to meet the performance standard in funding. In this instance, the Secretary 2. In § 272.1, a new paragraph (g)(139) shall redistribute the $15 million a given fiscal year, the Department will is added to read as follows: determine if good cause exists to excuse Federal funds to eligible State agencies the shortfall. Should the Department § 272.1 General terms and conditions. on the basis of Calendar Year 1991 data determine that no good cause exists, the * * * * * as prescribed under this paragraph, State agency would be ineligible to (g) * * * excluding the noncompliant States. receive its share of performance-based (139) Amendment No. 351. The * * * * * funding in the second following fiscal provisions of Amendment No. 351 to Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations 1709 Dated: December 28, 1994. action will have no significant impact farmer friendly and at the same time Yvette S. Jackson, on the quality of human environment. achieve program objectives. Acting Administrator, Food and Consumer Executive Order 12372 List of Subjects in 7 CFR Part 1421 Service. [FR Doc. 95–239 Filed 1–4–95; 8:45 am] This program is not subject to the Grains, Loan programs/agriculture, BILLING CODE 3410±30±U provisions of Executive Order 12372, Oilseeds, Peanuts, Price support which requires intergovernmental programs, Reporting and recordkeeping consultation with State and local requirements, Soybeans, Surety bonds, Commodity Credit Corporation officials. See the Notice related to 7 CFR Warehouses. part 3015, subpart V, published at 48 FR Accordingly, the interim rule which 7 CFR Part 1421 29115 (June 24, 1983). amended 7 CFR part 1421 published at RIN 0560±AD74 Executive Order 12778 59 FR 34345 on July 5, 1994, is adopted as a final rule without change. This final rule has been reviewed General Price Support Regulations for pursuant to Executive Order 12778. To Signed in Washington, DC on December Grain, Rice, and Oilseeds for 1993 and the extent State and local laws are in 23, 1994. Subsequent Crop Years conflict with these regulatory Bruce R. Weber, AGENCY: Commodity Credit Corporation, provisions, it is the intent of CCC that Acting Executive Vice President, Commodity USDA. the terms of the regulations prevail. The Credit Corporation. [FR Doc. 95–243 Filed 1–4–95; 8:45 am] ACTION: Final rule. provisions of this final rule are not retroactive. Prior to any judicial action BILLING CODE 3410±05±P SUMMARY: This final rule adopts, in a court of competent jurisdiction, without change, the interim rule administrative review under 7 CFR part published in the Federal Register at 59 780 must be exhausted. 7 CFR Part 1427 FR 34345 on July 5, 1994, with respect Paperwork Reduction Act to the price support loan programs for RIN 0560±AD82 Public reporting burden for the grains and similarly handled 1994 Cotton Loan and LDP Provisions commodities, including oilseeds information collections contained in (canola, mustard seed, rapeseed, this regulation with respect to price AGENCY: Commodity Credit Corporation, safflower seed, soybeans, and sunflower support programs is estimated to USDA. average 15 minutes per response, seed). ACTION: including the time for reviewing Final rule. EFFECTIVE DATE: January 5, 1995. instructions, searching existing data SUMMARY: On August 2, 1994, the FOR FURTHER INFORMATION CONTACT: sources, gathering and maintaining the Margaret Wright, Program Specialist, Commodity Credit Corporation (CCC) data needed, and completing and issued an interim rule with respect to Consolidated Farm Service Agency reviewing the collections of (CFSA), USDA, P.O. Box 2415, the cotton price support program which information. The information is conducted by the CCC in accordance Washington, DC 20013–2415; telephone collections have previously been cleared 202–720–8481. with The Agricultural Act of 1949, as under the current regulations by OMB, amended (the 1949 Act). This interim SUPPLEMENTARY INFORMATION: and assigned OMB Nos. 0560–0087 and rule provided greater clarity, enhanced 0560–0129. In accordance with the Executive Order 12866 the administration of CCC programs by provisions of 44 U.S.C. 35, the providing uniformity between CCC This rule has been determined to be information collection requirements that price support programs, provided more not- significant for purposes of are revised as a result of this rule will authority to State and county Executive Order 12866 and therefore be resubmitted to OMB for review. committees in administering the has not been reviewed by Office of Interim Rule programs, lessened administrative Management and Budget (OMB). actions CCC imposes on producers who The interim rule published in the Federal Assistance Program violate the loan and loan deficiency Federal Register on July 5, 1994, payment agreements, eliminated The title and number of the Federal amended the regulations governing the obsolete provisions, and more Assistance Program, as found in the price support loan programs for grains appropriately reflected loan eligibility Catalog of Federal Domestic Assistance, and similarly handled commodities to: requirement for the 1994 and to which this rule applies are Provide greater clarity, enhance the subsequent year crops. This rule adopts Commodity Loans and Purchases— administration of CCC programs by as final the interim rule published on 10.051. providing uniformity between CCC August 2, 1994 at 59 FR 39251. In price support programs, eliminate Regulatory Flexibility Act addition, this rule amends 7 CFR obsolete provisions, provide more Chapter XIV to reflect the abolishment It has been determined that the authority to State and county of ASCS and the establishment of the Regulatory Flexibility Act is not committees in administering the Consolidated Farm Service Agency in applicable because the Commodity programs, lessen the administrative the recent Department of Agriculture Credit Corporation (CCC) is not required actions CCC imposes on producers who reorganization. by 5 U.S.C. 553 or any other provision violate the loan and loan deficiency of law to publish a notice of proposed payment agreements, and correct errors. EFFECTIVE DATE: January 5, 1995. rulemaking with respect to the subject FOR FURTHER INFORMATION CONTACT: matter of these determinations. Discussion of Comments Philip Sharp, Program Specialist, Comments were received by one Consolidated Farm Service Agency Environmental Evaluation respondent supporting CCC’s proposed (CFSA), USDA, P.O. Box 2415, It has been determined by an price support regulations. They believe Washington, DC 20013–2415; telephone environmental evaluation that this the changes make the programs more 202–720–7988. 1710 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations SUPPLEMENTARY INFORMATION: the information collections have not Agency’’ and all references to ‘‘ASCS’’ Executive Order 12866 changed as a result of this amendment are revised to read ‘‘CFSA’’. to 7 CFR part 1427; however, the 2. Under authority of 7 U.S.C. 1421, This rule has been determined to be frequency of reporting has been 1423, 1425, 1444, and 1444–2; 15 U.S.C. not- significant for purposes of reduced. CFSA will submit a burden 714b and 714c, the interim rule Executive Order 12866 and therefore correction worksheet to OMB for amending 7 CFR part 1427 that was has not been reviewed by Office of review. published at 59 FR 39251 on August 2, Management and Budget (OMB). 1994 is adopted as a final rule without Discussion of Comments change. Federal Assistance Program One letter was timely received in Signed in Washington, DC, on December The title and number of the Federal response to the interim rule published 23, 1994. Assistance Program, as found in the on August 2, 1994, requesting public Bruce R. Weber, Catalog of Federal Domestic Assistance, comments on the interim regulations for Acting Executive Vice President, Commodity to which this rule applies are: implementing the price support loan Credit Corporation. Commodity Loans and Purchases— programs for upland cotton and extra [FR Doc. 95–241 Filed 1–4–95; 8:45 am] 10.051. long staple cotton which are administered by the CCC. BILLING CODE 3410±05±P Regulatory Flexibility Act The respondent was generally It has been determined that the supportive of the provisions of the Rural Utilities Service Regulatory Flexibility Act is not interim rule; however, they expressed a applicable because CCC is not required need for a more detailed explanation of 7 CFR Part 1755 by 5 U.S.C. 553 or any other provision why the reference to incentive payments of law to publish a notice of proposed was removed from section Telecommunications Standards and rulemaking with respect to the subject 1427.5(c)(2)(ii). The removal of the Specifications for Materials, matter of these determinations. reference to incentive payments was to Equipment and Construction; remove the possible interpretation that Correcting Amendments Environmental Evaluation incentive payments automatically AGENCY: Rural Utilities Service, USDA. It has been determined by an resulted in the loss of beneficial interest. ACTION: environmental evaluation that this In fact, payments by buyers to producers Correcting amendments. action will not have a significant impact for services, such as transportation and SUMMARY: The Rural Utilities Service on the quality of human environment. storage, will not cause beneficial (RUS) is correcting its telephone Executive Order 12372 interest to be transferred if such regulations in order to add a recently payment is not conditioned on the approved Office of Management and This program is not subject to the eventual sale of the cotton. Budget (OMB) information collection provisions of Executive Order 12372, If buyers question whether or not control number to recently published which requires intergovernmental incentive payments made to producers RUS telephone specifications and to consultation with State and local will result in the producer losing replace the old control numbers in the officials. See the Notice related to 7 CFR beneficial interest prematurely, such existing regulations with the recently part 3015, subpart V, published at 48 FR buyers are encouraged to have their approved control number. 29115 (June 24, 1983). contracts reviewed by the CFSA. EFFECTIVE DATE: January 5, 1995. Executive Order 12778 Establishment of the Consolidated Farm FOR FURTHER INFORMATION CONTACT: Ms. This rule has been reviewed pursuant Service Agency Jill M. Eberhart, Management Analyst, to Executive Order 12778. To the extent Pursuant to Public Law 103–354, the Program Support Staff, Rural Utilities State and local laws are in conflict with Federal Crop Insurance Reform and Service, room 2242, South Building, these regulatory provisions, it is the Department of Agriculture U.S. Department of Agriculture, intent of CCC that the terms of the Reorganization Act of 1994, the Washington, DC 20250–1500, telephone regulations prevail. The provisions of Secretary of Agriculture issued number (202) 720–0380. this rule are not retroactive. Prior to any Secretary’s Memorandum 1010–1, SUPPLEMENTARY INFORMATION: judicial action in a court of jurisdiction, Reorganization of the Department of Background administrative review under 7 CFR part Agriculture, on October 20, 1994. That 780 must be exhausted. memorandum orders the abolishment of Pursuant to the Department of Agriculture Reorganization Act of 1994 Paperwork Reduction Act the Agricultural Stabilization and Conservation Service and the (Pub. L. 103–354, 108 Stat. 3178), the Public reporting burden for the establishment of the Consolidated Farm United States Secretary of Agriculture information collections contained in Service Agency, which assumes the simultaneously abolished the Rural this regulation with respect to price functions previously performed by the Electrification Administration (REA) support programs is estimated to Agricultural Stabilization and and established the Rural Utilities average 15 minutes per response, Conservation Service. This rule includes Service (RUS). The Rural Utilities including the time for reviewing amendments to 7 CFR chapter XIV Service (RUS) recently issued three instructions, searching existing data which are necessary to bring agency standards and specifications that need sources, gathering and maintaining the regulations into alignment with the the addition of an Office of Management data needed, and completing and departmental reorganization. and Budget (OMB) control number in reviewing the collection of information. Accordingly, 7 CFR Chapter XIV and the regulatory text. RUS stated in the The information collections have part 1427 are amended as follows: preambles of these three rules that RUS previously been cleared under the 1. In 7 CFR chapter XIV, all references would publish a technical amendment current regulations by OMB, and to ‘‘Agricultural Stabilization and to add this number to the rules when assigned OMB Nos. 0560–0087 and Conservation Service’’ are revised to the information collection was 0560–0129. The content and format of read ‘‘Consolidated Farm Service reapproved. As OMB recently Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations 1711 reapproved this information collection, 7 CFR Part 1755 National Environmental Policy Act RUS is hereby adding this number to the Certification three specifications. Also, RUS is Telephone Standards and Specifications The Administrator of RUS has replacing the old control number in determined that this final rule will not existing codified telecommunications AGENCY: Rural Utilities Service, USDA. significantly affect the quality of the specifications found in 7 CFR part 1755 ACTION: Final rule; technical human environment as defined by the which need new control numbers to amendment. National Environmental Policy Act of replace the previously approved 1969 (42 U.S.C. 4321 et seq.). Therefore, number. SUMMARY: The Rural Utilities Service this action does not require an environmental impact statement or List of Subjects in 7 CFR Part 1755 (RUS) is amending its list of codified regulations on telecommunications assessment. Loan programs—communications, standards and specifications for Executive Order 12372 Reporting and recordkeeping materials, equipment and construction requirements, Rural areas, Telephone. to add new entries in order to bring it This final rule is excluded from the up to date. scope of Executive Order 12372, Accordingly, 7 CFR part 1755 is EFFECTIVE DATE: January 5, 1995. Intergovernmental Consultation, that corrected by making the following requires intergovernmental consultation amendments: FOR FURTHER INFORMATION CONTACT: F. with state and local officials. A Notice Lamont Heppe, Jr., Deputy Director, of Final rule titled Department Programs PART 1755ÐTELECOMMUNICATIONS Program Support Staff, Rural Utilities and Activities Excluded from Executive STANDARDS AND SPECIFICATIONS Service, room 2234, South Building, Order 12372 (50 FR 47034) exempts FOR MATERIALS, EQUIPMENT AND U.S. Department of Agriculture, RUS and RTB loans and loan CONSTRUCTION Washington, DC 20250–1500, telephone guarantees, and RTB bank loans, to number (202) 720–0380. governmental and nongovernmental 1. The authority citation for 7 CFR SUPPLEMENTARY INFORMATION: entities from coverage under this Order. part 1755 continues to read as follows: Executive Order 12866 Background Authority: 7 U.S.C. 901 et seq., 1921 et seq. This final rule has been determined to Pursuant to the Department of §§ 1755.390, 1755.522, 1755.860, 1755.890 be not significant for the purposes of Agriculture Reorganization Act of 1994 [Amended] Executive Order 12866 and therefore (Pub. L. 103–354, 108 Stat. 3178), the 2. At the end but before Appendix A has not been reviewed by the Office of United States Secretary of Agriculture simultaneously abolished the Rural of §§ 1755.390, 1755.522, 1755.860, and Management and Budget. Electrification Administration (REA) 1755.890, remove the Office of Executive Order 12778 and established the Rural Utilities Management and Budget control This final rule has been reviewed Service (RUS). The term ‘‘RUS number ‘‘0572–0077’’ in the under Executive Order 12778, Civil standards and specifications’’, has the parentheticals, and add, in its place, the Justice Reform. If adopted, this final rule same meaning as the term ‘‘REA number ‘‘0572–0059’’. will not: (1) Preempt any State or local standards and specifications’’, unless § 1755.397 [Amended] laws, regulations, or policies; (2) have otherwise indicated. RUS issues any retroactive effect; and (3) require standards and specifications for 3. At the end of § 1755.397 administrative proceeding before parties construction of telephone facilities introductory text, remove the Office of may file suit challenging the provisions financed with RUS loan funds. In this Management and Budget control of this rule. document, RUS is setting out for the number ‘‘0572–0062’’ in the public for informational purposes the Regulatory Flexibility Act Certification parentheticals, and add, in its place, the currently completed list of codified number ‘‘0572–0059’’. The Administrator of RUS has specifications. Due to the nature of this determined that this final rule will not document and the Administrative §§ 1755.525, 1755.870, 1755.900 have a significant economic impact on Procedure Act, this action is being [Amended] a substantial number of small entities, published as a final rule and is effective 4. At the end of § 1755.525, and at the as defined by the Regulatory Flexibility date of publication. Act (5 U.S.C. 601 et seq.). This final rule end but before Appendix A of List of Subjects in 7 CFR Part 1755 §§ 1755.870 and 1755.900, add the simply involves telephone standards following statement to read as follows: and specifications already codified and Loan programs—communications, determined not to have a significant Rural areas, Telephone. (The information collection and economic impact on a substantial For reasons set out in the preamble, recordkeeping requirements of this number of small entities. RUS amends Chapter XVII of title 7 of section have been approved by the Information Collection and the Code of Federal Regulations as Office of Management and Budget Recordkeeping Requirements follows: (OMB) under control number 0572– 0059.) In compliance with the Office of PART 1755ÐTELECOMMUNICATIONS Management and Budget (OMB) STANDARDS AND SPECIFICATIONS Dated: December 1, 1994. regulations (5 CFR part 1320) which FOR MATERIALS, EQUIPMENT AND Bob J. Nash, implements the Paperwork Reduction CONSTRUCTION Under Secretary, Rural Economic and Act of 1980 (Pub. L. 96–511) and section Community Development. 3504 of that Act, there are no 1. The authority citation for part 1755 [FR Doc. 95–245 Filed 1–4–95; 8:45 am] information collection and continues to read as follows: BILLING CODE 3410±15±P recordkeeping requirements contained Authority: 7 U.S.C. 901 et seq.; 1921 et in this final rule. seq.; Pub. L. 103–354, 108 Stat. 3178. 1712 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations 2. Section 1755.98 is amended by applicable to certain Boeing Model 757 the LPC and into the HPC, where blade adding in numerical order new entries series airplanes. This action requires a damage may occur. to the table to read as follows: revision to the FAA-approved Airplane During ground operation in icing Flight Manual to include procedures to conditions, ice may build up on the first § 1755.98 List of telephone standards and perform periodic engine run-ups during stage of the LPC stator of the engines. specifications included in other 7 CFR The engine anti-ice system will not parts. ground operation in icing conditions in order to shed ice before it accumulates, remove or prevent the formation of ice * * * * * sheds, and is ingested into the engine, on this component; it only protects the which could cause damage to the core inlet cowl. Ice accumulation on the first Issue Section date Title of the engine. This action provides stage of the LPC stator is an urgent procedures for a visual check to detect safety concern since it may be ingested ice build-up on the first stage of the low into the core of the compressor, which ***** pressure compressor (LPC) stator and can cause damage to the engine. If the 1755.390 .. 6±21±93 RUS Specification removal of any ice, as necessary. This ice accumulation is sufficiently large for Filled Tele- amendment is prompted by reports of and is subsequently shed and ingested, phone Cables. damage to the high pressure compressor the resulting damage to the engine may of the engines due to ice ingestion. The lead to surges in or loss of power from ***** actions specified in this AD are the affected engine. 1755.522 .. 6±28±93 RUS General Speci- intended to prevent damage to engines The FAA has determined that fication for Digital, periodic engine run-ups will shed the Stored Program due to the ingestion of ice into the Controlled Central compressor, which can result in the loss ice from the first stage of the LPC stator Office Equipment. of power from the affected engine. before it accumulates in sufficiently 1755.525 .. 7±18±94 RUS Form 525, DATES: Effective January 20, 1995. large quantities that, when shed, may Central Office Comments for inclusion in the Rules result in damage to the engine. Ice Equipment Con- Docket must be received on or before shedding occurs when the air loads tract (Including In- March 6, 1996. exceed the adhesion force between the stallation). ice and the stator. However, the quantity ADDRESSES: Submit comments in 1755.860 .. 12±20±93 RUS Specification of ice that is shed is not proportional to triplicate to the Federal Aviation for Filled Buried rotor speed. The FAA finds that a Administration (FAA), Transport Wires. minimum of 50 percent rotation speed 1755.870 .. 7±14±94 RUS Specification Airplane Directorate, ANM–103, of the engine fan (N1) is necessary to for Terminating Attention: Rules Docket No. 94–NM– shed ice; power settings below 50 Cables. 231–AD, 1601 Lind Avenue, SW., percent N1 are ineffective for ice 1755.890 .. 6±21±93 RUS Specification Renton, Washington 98055–4056. for Filled Tele- Information concerning this removal. In addition, the FAA has phone Cables amendment may be obtained from or determined that these engine run-ups with Expanded In- examined at the FAA, Transport should be based on temperature and sulation. visible moisture, rather than on icing Airplane Directorate, Rules Docket, 1755.900 .. 8±4±94 RUS Specification indications on the airframe of the 1601 Lind Avenue, SW., Renton, for Filled Fiber airplane. Optic Cables. Washington 98055–4056. Ice accumulation, if not detected and FOR FURTHER INFORMATION CONTACT: removed, can be ingested into the ***** Tamra J. Elkins, Aerospace Engineer, compressor and cause damage to the Propulsion Branch, ANM–140S, FAA, engine, which could result in the loss of Dated: December 6, 1994. Transport Airplane Directorate, Seattle power from the affected engine. Bob J. Nash, Aircraft Certification Office, 1601 Lind Since an unsafe condition has been Under Secretary, Rural Economic and Avenue, SW., Renton, Washington identified that is likely to exist or Community Development. 98055–4056; telephone (206) 227–2669; develop on other airplanes of the same [FR Doc. 95–244 Filed 1–4–95; 8:45 am] fax (206) 227–1181; or John Fisher, type design, this AD is being issued to BILLING CODE 3410±15±P Aerospace Engineer, Engine prevent damage to these engines due to Certification Branch, ANE–141, FAA, ice ingestion into the compressor, which Engine and Propeller Directorate, may result in the loss of power from the DEPARTMENT OF TRANSPORTATION Engine Certification Office, 12 New affected engine. This AD requires England Executive Park, Burlington, revising the Limitations Section of the Federal Aviation Administration Massachusetts 01803; telephone (617) FAA-approved Airplane Flight Manual 238–7149; fax (617) 238–7199. (AFM) to include procedures that will 14 CFR Part 39 SUPPLEMENTARY INFORMATION: Recently, ensure that during inclement weather, [Docket No. 94±NM±231±AD; Amendment the FAA has received reports of damage periodic engine run-ups will shed ice 39±9116; AD 95±01±05] to the high pressure compressor (HPC) before it accumulates and causes of the engines on several Boeing Model damage to the engine. Airworthiness Directives; Boeing 757 series airplanes equipped with Pratt This action also provides procedures Model 757 Equipped With Pratt & & Whitney Model PW2000 series for a visual check to detect ice build-up Whitney Model PW2000 Series Engines engines. Investigation into the cause of on the first stage of the LPC stator and AGENCY: Federal Aviation this damage revealed that, during removal of any ice, if necessary. The Administration, DOT. prolonged ground operation in icing FAA has determined that these visual ACTION: Final rule; request for conditions, ice can accumulate on the checks may be properly performed by comments. first stage of the low pressure pilots because the checks do not require compressor (LPC) stator. Subsequent the use of tools, precision measuring SUMMARY: This amendment adopts a acceleration to high thrust levels equipment, training, pilot logbook new airworthiness directive (AD) that is releases this ice, which travels through endorsements, or the use of or reference Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations 1713 to technical data that are not contained The FAA has determined that this temperature (OAT) is +3 degrees Centigrade in the body of the AD. regulation is an emergency regulation (37 degrees Fahrenheit) or less. Since a situation exists that requires that must be issued immediately to These momentary run-ups must be performed to a minimum of 50 percent N1 in the immediate adoption of this correct an unsafe condition in aircraft, order to shed ice from the first stage of the regulation, it is found that notice and and that it is not a ‘‘significant low pressure compressor (LPC) stator. The opportunity for prior public comment regulatory action’’ under Executive run-up interval is established according to hereon are impracticable, and that good Order 12866. It has been determined either paragraph a. or paragraph b., below: cause exists for making this amendment further that this action involves an a. If a visual check of the leading edge of effective in less than 30 days. emergency regulation under DOT the first stage of the LPC stator has NOT been Regulatory Policies and Procedures (44 accomplished prior to engine start, run-ups Comments Invited FR 11034, February 26, 1979). If it is must be performed at intervals not to exceed 15 minutes (including time to taxi-in and Although this action is in the form of determined that this emergency taxi-out, and ground hold time); or a final rule that involves requirements regulation otherwise would be b. If a visual check of the leading edge of affecting flight safety and, thus, was not significant under DOT Regulatory the first stage of the LPC stator has been preceded by notice and an opportunity Policies and Procedures, a final accomplished prior to engine start and it is for public comment, comments are regulatory evaluation will be prepared determined to be free of ice, run-ups must be invited on this rule. Interested persons and placed in the Rules Docket. A copy performed at intervals not to exceed 30 are invited to comment on this rule by of it, if filed, may be obtained from the minutes (including time to taxi-in and taxi- out, and ground hold time). Any ice submitting such written data, views, or Rules Docket at the location provided accumulation on the first stage of the LPC arguments as they may desire. under the caption ADDRESSES. must be removed prior to dispatch. Communications shall identify the List of Subjects in 14 CFR Part 39 In no case can the engines be operated for Rules Docket number and be submitted more than 30 minutes without either a visual in triplicate to the address specified Air transportation, Aircraft, Aviation check or an engine run-up. under the caption ADDRESSES. All safety, Safety. If either of the time limits in paragraph a. communications received on or before or paragraph b., above, is exceeded without Adoption of the Amendment performing a run-up, the aircraft must be the closing date for comments will be Accordingly, pursuant to the taxied to an area where the engines can be considered, and this rule may be shut down, a visual check for ice amended in light of the comments authority delegated to me by the Administrator, the Federal Aviation accumulation must be accomplished, and received. Factual information that any ice must be removed prior to the next supports the commenter’s ideas and Administration amends part 39 of the run-up or takeoff. During taxi to the area for suggestions is extremely helpful in Federal Aviation Regulations (14 CFR the visual inspection, engine speeds greater evaluating the effectiveness of the AD part 39) as follows: than 40 percent N1 should be avoided to action and determining whether minimize the potential for ice shedding into PART 39ÐAIRWORTHINESS the engine compressor. If these requirements additional rulemaking action would be DIRECTIVES cannot be met, takeoff is not authorized. needed. The procedures for accomplishing the Comments are specifically invited on 1. The authority citation for part 39 visual check of and ice removal from the first the overall regulatory, economic, continues to read as follows: stage of the LPC stator are contained in environmental, and energy aspects of Authority: 49 U.S.C. App. 1354(a), 1421 paragraphs (b) and (c) of AD 95–01–05. the rule that might suggest a need to and 1423; 49 U.S.C. 106(g); and 14 CFR (b) Perform visual checks of the engine to modify the rule. All comments 11.89. detect ice build-up on the first stage of the LPC stator in accordance with the procedures submitted will be available, both before § 39.13 [Amended] specified in paragraphs (b)(1) and (b)(2) of and after the closing date for comments, 2. Section 39.13 is amended by this AD, at the times specified in the revision in the Rules Docket for examination by to the AFM required by paragraph (a) of this interested persons. A report that adding the following new airworthiness directive: AD. These visual checks may be performed summarizes each FAA-public contact either by the cockpit flight crew or by concerned with the substance of this AD 95–01–05 Boeing: Amendment 39–9116. certificated maintenance personnel. will be filed in the Rules Docket. Docket 94–NM–231–AD. (1) Use adequate lighting to illuminate the Commenters wishing the FAA to Applicability: Model 757 series airplanes first stage of the LPC stator. This stator can be viewed by standing at ground level, off to acknowledge receipt of their comments equipped with Pratt & Whitney Model PW2000 series engines, certificated in any the side of the centerline of the engine, and submitted in response to this rule must category. viewing through the opening between the fan submit a self-addressed, stamped Compliance: Required as indicated, unless blades. (See Appendix 1, Figure 1 of this postcard on which the following accomplished previously. AD.) If ice is present, it will be seen to build statement is made: ‘‘Comments to To prevent damage to these engines due to up on the leading edge of the first stage of Docket Number 94–NM–231–AD.’’ The ice ingestion into the compressor, which may the LPC stator or the lip of the splitter. (See postcard will be date stamped and result in the loss of power from the affected Appendix 1, Figure 2.) returned to the commenter. engine, accomplish the following: (2) This visual check is to be performed (a) Within 14 days after the effective date after engine shutdown. The visual check can The regulations adopted herein will of this AD, revise the Limitations Section, be performed on a windmilling engine not have substantial direct effects on the Section 1, page 11, of the FAA-approved without bringing the fan rotor to a stop. It States, on the relationship between the Airplane Flight Manual (AFM) to include the will actually become easier to see the first national government and the States, or following statement. This may be stage of the LPC stator if the rotor is turning. on the distribution of power and accomplished by inserting a copy of this AD The ice will be visible, if present. responsibilities among the various in the AFM. (c) If any ice is detected on the first stage of the LPC stator (see Appendix 1, Figure 2) levels of government. Therefore, in Ground Operations During Icing Conditions accordance with Executive Order 12612, during the visual check required by Periodic engine run-ups must be performed paragraph (b) of this AD, it must be removed it is determined that this final rule does during prolonged ground operation in icing prior to dispatch of the aircraft, in not have sufficient federalism conditions (including time to taxi-in and accordance with the procedures specified in implications to warrant the preparation taxi-out, and ground hold time), when engine paragraph (c)(1) or (c)(2) of this AD, as of a Federalism Assessment. anti-ice is required and the outside air applicable. 1714 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations (1) If the total ground operating time since air source (e.g., heating cart). At no time provides an acceptable level of safety may be the last run-up to 50 percent N1 is less than should the temperature of the air supplied used if approved by the Manager, Seattle 30 minutes, the engine may be run-up to 50 exceed 175 degrees Fahrenheit. Direct the air Aircraft Certification Office (ACO), FAA, percent N1 to remove the ice, or it may be past the fan blades toward the first stage of Transport Airplane Directorate. Operators removed in accordance with the ‘‘Ice the LPC stator. Continue hot air de-icing this shall submit their requests through an Removal’’ procedures described in paragraph LPC stator until all of the ice has been appropriate FAA Principal Operations (c)(2) of this AD. melted. Melted ice and ice chunks, which (2) If the total ground operating time since Inspector, who may add comments and then have been dislodged, should not be allowed send it to the Manager, Seattle ACO. the last run-up to 50 percent N1 is greater to accumulate at the bottom of the fan duct than 30 minutes, and the engine has been where they could refreeze and become Note 2: Information concerning the visually checked and it has been determined ingested into the engine during the next existence of approved alternative methods of that ice has accumulated on the leading edge engine run-up. compliance with this AD, if any, may be of the first stage of the LPC stator, the obtained from the Seattle ACO. following ‘‘Ice Removal’’ (hot air de-icing) Note 1: The only acceptable means to method must be used. Do not use hot water remove ice from the first stage of the LPC (e) This amendment becomes effective on or aircraft de-icing fluids. stator are listed in paragraphs (c)(1) and (c)(2) January 20, 1995. of this AD. Ice Removal BILLING CODE 4910±13±U De-ice the leading edge of the first stage of (d) An alternative method of compliance or the LPC stator with the use of a suitable hot adjustment of the compliance time that Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations 1715 Appendix 1 BILLING CODE 4910±13±C 1716 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations Issued in Renton, Washington, on document during normal business hours Response to Comments (Notice).2 The December 27, 1994. in Room 3104, at 941 North Capitol Commission deferred issuance of a final James V. Devany, Street, N.E., Washington, D.C. 20426. rule pending development and testing of Acting Manager, Transport Airplane The Commission Issuance Posting the necessary software. The Commission Directorate, Aircraft Certification Service. System (CIPS), an electronic bulletin stated that it anticipated that the [FR Doc. 95–176 Filed 1–4–95; 8:45 am] board service, provides access to the development and testing process would BILLING CODE 4910±13±U text of formal documents issued by the be complete in time for the electronic Commission. CIPS is available at no filing of Form 1 for report year 1994, charge to the user and may be accessed due on or before April 30, 1995. The DEPARTMENT OF ENERGY using a personal computer with a Commission also stated its views on a modem by dialing (202) 208–1397. To number of issues raised by the Federal Energy Regulatory access CIPS, set your communications commenters. 3 The procedures outlined Commission software to 19200, 14400, 12000, 9600, in the Notice have been successfully 7200, 4800, 2400, 1200 or 300bps, full completed, and the Commission is now 18 CFR Parts 141, 375, and 385 duplex, no parity, 8 data bits, and 1 stop adopting a final rule amending its [Docket No. RM93±20±000] bit. The full text of this document will regulations to provide for the electronic be available on CIPS for 60 days from filing of Form 1 and also for the Electronic Filing of FERC Form No. 1 the date of issuance in ASCII and delegation of authority to the Chief and Delegation to Chief Accountant WordPerfect 5.1 format. After 60 days Accountant or his designee to rule on Order No. 574 the document will be archived, but still requests for waiver of the electronic accessible. The complete text on filing requirements. Issued December 29, 1994. diskette in WordPerfect format may also II. Public Reporting Burden AGENCY: Federal Energy Regulatory be purchased from the Commission’s Commission. copy contractor, La Dorn Systems The current annual reporting burden ACTION: Final rule. Corporation, also located in Room 3104, for the industry for collection of 941 North Capitol Street, N.E., information is estimated to be 235,000 SUMMARY: The Federal Energy Washington, D.C. 20426. hours for the Form 1. The industry Regulatory Commission is amending its burden is based on an estimate of 1,217 regulations to provide for the electronic Before Commissioners: Elizabeth Anne Moler, Chair; Vicky A. Bailey, James J. average hours on an annual basis for the filing of FERC Form No. 1, Annual 193 entities which complete a Form 1 Report of Major electric utilities, Hoecker, William L. Massey, and Donald F. Santa, Jr. filing. These estimates include the time licensees and others. Commencing with Electronic Filing of FERC Form No. 1 and for reviewing instructions, searching the report for reporting year 1994, due Delegation to Chief Accountant; Docket No. existing data sources, gathering and on or before April 30, 1995, filing will RM93–20–000. maintaining the data needed, and be required in the form of a computer Order No. 574 Final Rule completing and reviewing the collection diskette in addition to the currently of information. required number of paper copies. No Issued December 29, 1994. The Commission anticipates that any changes are being made to the FERC I. Introduction increase in reporting burden for Form No. 1 itself. The Commission has collection of information from this rule concluded that the automation of Form On July 23, 1993, the Federal Energy will be minimal. Initially, there may be 1 filing will yield significant benefits, Regulatory Commission (Commission) some increase in reporting burden as including more timely analysis and issued a notice of proposed rulemaking respondents develop procedures and 1 publication of data, increased data (NOPR) in which the Commission adapt equipment to implement analysis capability, reduced cost of data proposed to amend 18 CFR Parts 141 electronic filing. However, for the last entry and retrieval, simplification of and 385 to provide for the electronic several years, most Form 1 respondents form design, and overall reduction of filing of FERC Form No. 1, ‘‘Annual have already prepared their Form 1 reporting burden. Report of Major electric utilities, paper copies from computer-based EFFECTIVE DATE: This rule is effective licensees and others’’ (Form 1). Under systems. This rule will thus result February 6, 1995. the proposed rule, in addition to paper largely in a standardization of preparing FOR FURTHER INFORMATION CONTACT: copies, future Form 1 filings would also and filing the form electronically. be made by means of a computer Send comments regarding reporting Richard Mattingly (Legal Information), diskette incorporating software Electric Rates and Corporate burden or any other aspect of the programming developed by the Commission’s collection of information, Regulation, Office of the General Commission. Electronic reporting of Counsel, Federal Energy Regulatory including suggestions for reducing this Form 1 was proposed to commence with burden, to the Federal Energy Commission, 825 North Capitol reporting year 1993, due on or before Street, N.E., Washington, D.C. 20426, Regulatory Commission, 941 North April 30, 1994. No change was proposed Capitol Street, N.E., Washington, D.C. (202) 208–2070 in Form 1 itself. Robert J. Lynch (Technical Information), 20426 (Attention: Michael Miller, Interested parties were requested to Office of Chief Accountant, Federal Information Services Division, 202– submit written comments. Comments Energy Regulatory Commission, 810 208–1415), and to the Office of were received from numerous electric First Street, N.E., Washington, D.C. utilities, industry associations, and the 2 20426, (202) 219–3012 59 FR 1687 (Jan. 12, 1994). In an order issued Energy Information Administration of concurrently, on December 30, 1993, the SUPPLEMENTARY INFORMATION: In the United States Department of Energy. Commission also adopted a final rule delegating to addition to publishing the full text of On December 30, 1993, the Commission the Chief Accountant or his designee the authority this document in the Federal Register, to act on requests for waiver of the Form Nos. 1 and issued a Notice of Intent to Act and 1–F. Order No. 564, 59 FR 1917 (Jan. 13, 1994); III the Commission also provides all FERC Stats. & Regs. ¶ 30,990 (1993). interested persons an opportunity to 1 58 FR 40606 (July 29, 1993); IV FERC Stats. & 3 The discussion and analysis in the Notice is inspect or copy the contents of this Regs. ¶ 32,498 (1993). hereby incorporated by reference in this order. Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations 1717 Information and Regulatory Affairs of Form 1, schedule by schedule, on the other pertinent information regarding the Office of Management and Budget respondent’s PC. The required data the filing requirements and procedures. (Attention: Desk Officer for Federal could then be manually key-entered on The Form 1 report, which will be Energy Regulatory Commission). the respondent’s PC. The program was incorporated on a single diskette, must intended to permit the respondent to be submitted by each respondent on or III. Background ‘‘import’’ the required data from its PC before April 30 of each year, The Commission, in the exercise of its or mainframe computer directly into the commencing April 30, 1995. Each authority under the Federal Power Act, software package, thus avoiding the respondent will be required to submit collects data pertaining to the electric manual data-entry process. When the two duplicate diskettes, together with utility industry in the United States.4 data entry process was completed, the the required original and six paper One of the principal forms used for respondent, using the software, would copies. collection of this information is Form 1, be able to produce a data diskette that The Commission is adopting one which is submitted annually by some would be submitted to the Commission, change in reporting procedure as a 193 electric utilities and licenses. Form along with the required paper copies.8 result of the adoption of the electronic 1 consists of cover pages, four pages of The Commission noted that it had filing requirement. Heretofore, revisions general information and instructions, already initiated the process of to Form 1 data were made by means of and 113 pages of schedules procuring the necessary software submitting only those individual pages incorporating financial and operational package for automating Form 1 or schedules requiring correction. In the information pertaining to the reporting and stated that, upon receipt future, in cases where changes are respondent companies. Form 1 also of the software package, the required, respondents will be required requires that certain financial Commission staff would test all aspects to submit a complete Form 1 report information be certified by an of the system, including data input, data incorporating the necessary changes and independent certified public output, and print capability. The corrections. Two new diskettes and an accountant 5 as conforming to the Commission also stated its intention to original and six conforming paper Commission’s Uniform System of conduct a thorough field test of the copies will be required to be filed. This Accounts.6 software package with volunteer Form 1 requirement is necessary in order to Form 1 has heretofore been submitted respondents. facilitate electronic collation of the in a paper or hardcopy format. reported data and to assure the Currently, Form 1 respondents must file V. Development of the Software completeness and consistency of an original and six copies. As noted in Program reporting. the NOPR, the Commission and its staff Development of software for VII. Regulatory Flexibility Act have been approached by individual electronic reporting of Form 1 was Certification electric utilities and state commission carried out in accordance with the staffs inquiring whether the outline set forth in the NOPR. Working The Regulatory Flexibility Act 9 Commission had developed or planned with members of the Commission staff, requires rulemakings to contain either a to develop an automated data filing a software contractor developed an description and analysis of the effect system for Form 1. These parties initial program, which was submitted that a rule will have on small entities or suggested that such a procedure could for preliminary testing. The program to certify that the rule will not have a yield significant benefits in terms of was thoroughly tested by the staff and significant economic effect on a process simplification and savings of numerous adjustments and revisions substantial number of small entities. time and expense. were adopted. Following completion of Because most respondents do not fall The Commission has concluded that these tests, the staff established a within the definition of ‘‘small the automation of Form 1 filing will working group of volunteer electric entity,’’ 10 the Commission certifies that yield significant benefits, including utilities to design a field test for the this rule will not have a significant more timely analysis and publication of program. The field test was undertaken economic impact on a substantial data, increased data analysis capability, and successfully completed. The results number of small entities. reduced cost of data entry and retrieval, of the field test confirm that the Form VIII. Information Collection Statement simplification of form design, and 1 software program is practical, reliable, overall reduction of reporting burden. The regulations of the Office of and suitable for the purpose of 11 Accordingly, in this Final Rule, the electronic filing of Form 1. Management and Budget (OMB) Commission is requiring the automation require that OMB approve certain of Form 1 filing. VI. Reporting Procedure information and recordkeeping IV. Summary of Proposal The Commission intends to mail the requirements imposed by an agency. program to each Form 1 respondent in The information collection requirements The NOPR outlined a plan under late December 1994 or early January in this Final Rule are contained in FERC which the Commission would develop a 1995. The program is incorporated in Form No. 1, ‘‘Annual Report of Major personal computer (PC) based software three diskettes, which will be electric utilities, licensees and others’’ package for Form 1 reporting.7 The accompanied by a user manual and a (OMB approval No. 1902–0021). Since software would be available on standard cover letter. The cover letter will this Final Rule does not involve new computer diskettes with instructions include (1) an explanation of the information requirements and will have and documentation and would be sent principal features of the program, (2) the a minimal effect on current information to each Form 1 respondent without names and telephone numbers of staff collections, there is no need to obtain charge. The program would display the contacts for any respondents requiring assistance, (3) diskette labelling 9 5 U.S.C. 601–612. 4 16 U.S.C. 825, 825c. 10 instructions, (4) instructions for filing See 5 U.S.C. 601(3), citing to section 3 of the 5 18 CFR 41.11. The Commission did not propose Small Business Act, 15 U.S.C. 632, which defines any change in the requirements for filing the corrections (resubmissions), and (5) a ‘‘small-business concern’’ as a business which is independent certified public accountant’s report. independently owned and operated and which is 6 18 CFR Part 101. 8 The software package would also enable not dominant in its field of operation. 7 An IBM compatible, DOS-based system. respondents to print paper copies of the Form 1. 11 5 CFR 1320.14. 1718 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations OMB approval. However, the (b) Filing requirements. (3) The electronic media must be Commission is sending a copy to OMB * * * * * accompanied by the traditional for informational purposes only. prescribed number of paper copies. (2) When to file and what to file. This IX. Environmental Statement report form shall be filed on or before * * * * * April 30 of each year for the previous (e) Waiver—(1) Filing of petition. If a Commission regulations require that natural gas company, electric utility, an environmental assessment or an calendar year. This report form must be filed as prescribed in § 385.2011 of this licensee or other entity does not have environmental impact statement be and is unable to acquire the computer prepared for any Commission action chapter and as indicated in the general instructions set out in this report form, capability to file the information that may have a significant adverse required to be filed on electronic media, effect on the human environment.12 No and must be properly completed and verified. Filing on electronic media the company may request waiver from environmental consideration is the requirement of this part, by filing an necessary for the promulgation of a rule pursuant to § 385.2011 of this chapter will be required commencing with original and two copies of a petition. that involves information gathering, The natural gas company, electric analysis and dissemination.13 The final report year 1994, due on or before April 30, 1995. utility, licensee or other entity may rule only affects the way in which the renew the waiver if the company can Commission gathers information. PART 375ÐTHE COMMISSION continue to show that it does not have Accordingly, no environmental and is unable to acquire the computer consideration is necessary. 3. The authority citation for Part 375 capability for electric filing. X. Effective Date is revised to read as follows: (2) Standard for waiver. The petition Authority: 5 U.S.C. 551–557; 15 U.S.C. for waiver must show that the natural This final rule is effective February 6, gas company, electric utility, licensee or 1995. 717–717w, 3301–3432; 16 U.S.C. 791–825r, 2601–2645; 42 U.S.C. 7101–7352. other entity does not have the computer List of Subjects capability to file the information 4. Section 375.303 is amended by required under this section on 18 CFR Part 141 revising paragraph (l) to read as follows: electronic media and that acquisition of the capability would cause the company Electric power, Reporting and § 375.303 Delegations to the Chief recordkeeping requirements. Accountant. severe economic hardship. This waiver may be granted for up to one year. 18 CFR 375 * * * * * * * * * * Authority delegations (Government (1) Deny or grant, in whole or part, (4) Decision on petition. The agencies), Seals and insignia, Sunshine requests for waiver of the requirements Commission or its designee will review Act. for statements or reports under § 141.1 a petition for waiver and notify the of this chapter (FERC Form No. 1, 18 CFR Part 385 applicant of its grant or denial. Once the Annual Report of Major electric utilities, petition is decided, the natural gas Administrative practice and licensees and others) and § 141.2 of this company, electric utility, licensee or procedure, Electric power, Penalties, chapter (FERC Form No. 1–F, Annual other entity will have 30 days from the Pipelines, Reporting and recordkeeping report for Nonmajor public utilities and date of notification of the decision to requirements. licensees), and of the filing of FERC submit any information, in the manner Form No. 1 on electronic media By the Commission. specified by the Commission in the (§ 385.2011 of this chapter, Procedures decision on the waiver petition, that Lois D. Cashell, for filing on electronic media, Secretary. was required to be filed while the paragraphs (a)(6), (c), and (e)). petition was pending. In consideration of the foregoing, the Commission amends Parts 141, 375 and PART 385ÐRULES OF PRACTICE AND [FR Doc. 95–263 Filed 1–4–95; 8:45 am] 385 in Chapter I, Title 18, Code of PROCEDURE BILLING CODE 6717±01±P Federal Regulations, as set forth below. 5. The authority citation for Part 385 PART 141ÐSTATEMENTS AND continues to read as follows: 18 CFR Part 284 REPORTS (SCHEDULES) Authority: 5 U.S.C. 551–557; 15 U.S.C. [Docket No. RM93±4±006; Order No. 563± 717–717z, 3301–3432; 16 U.S.C. 791a–825r, D] 1. The authority citation for Part 141 2601–2645; 31 U.S.C. 9701; 42 U.S.C. 7101– continues to read as follows: 7352; 49 U.S.C. 60502; 49 App. U.S.C. 1–85. Standards for Electronic Bulletin Boards Required Under Part 284 Of Authority: 15 U.S.C. 79; 16 U.S.C. 791a– The Commission's Regulations 828c, 2601–2645; 31 U.S.C. 9701; 42 U.S.C. 6. Section 385.2011 is amended by 7101–7352. revising the heading, by adding Issued December 29, 1994. paragraph (a)(6) and by revising AGENCY: Federal Energy Regulatory 2. In § 141.1, the heading of paragraph paragraphs (c)(3), (e)(1), (e)(2) and (e)(4) Commission. (b) is revised and paragraph (b)(2) is to read as follows: ACTION: Final rule; Order modifying revised to read as follows: capacity release data sets. § 385.2011 Procedures for filing on § 141.1 FERC Form No. 1, Annual report of electronic media (Rule 2011). Major electric utilities, licensees and others. SUMMARY: In response to a proposed (a) * * * modification submitted by the * * * * * Electronic Bulletin Board Working (6) FERC Form No. 1, Annual report Group, the Federal Energy Regulatory 12 of Major electric utilities, licensees and Regulations Implementing National Commission (Commission) is issuing an Environmental Policy Act, 52 FR 47897 (Dec. 17, others. 1987); FERC Stats. & Regs. Regulations Preambles order making changes to the capacity 1986–90 ¶ 30,783 (1987). * * * * * release data sets. The Commission’s 13 18 CFR 380.4(a)(5). (c) * * * order revises its ‘‘Standardized Data Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations 1719 Sets and Communication Protocols,’’ Hoecker, William L. Massey, and Donald F. transaction point information for the PI available at the Commission’s Public Santa, Jr. Grid Common Code Data Base. Reference and Files Maintenance Standards For Electronic Bulletin Boards The National Registry of Capacity Branch, to add two fields in the Award Required Under Part 284 Of The Rights, Inc. (Registry) supports the Commission’s Regulations; Docket No. Working Group filing, but contends that Data Set for reporting the maximum RM93–4–006. natural gas pipeline tariff rate related to the maximum rate fields be made released capacity. With the electronic Order No. 563–D; Order Modifying mandatory to ensure that the data is data on maximum rates, the Capacity Release Data Sets provided by all pipelines. The Registry states that due to the operating principle Commission can use computers to Issued December 29, 1994. within the Working Group of requiring automatically evaluate the relationship On November 4, 1994, the Electronic 100% consensus in support of a between release and maximum rates. Bulletin Board (EBB) Working Group proposed change, consensus could not DATES: New fields must be implemented submitted a proposed modification of be reached for requiring that the fields by February 1, 1995. the capacity release data sets adopted by be mandatory. The Registry further the Commission in Order No. 563.1 The ADDRESSES: Federal Energy Regulatory states that, based on its experience with approved data sets are included in a Commission, 825 North Capitol Street, EDI data, retention of optional status for document entitled ‘‘Standardized Data NE, Washington, DC 20426. these fields will mean that the FOR FURTHER INFORMATION CONTACT: Sets and Communication Protocols,’’ maximum rate information will not be available at the Commission’s Public Michael Goldenberg, Office of the included in many instances. The Reference and Files Maintenance General Counsel, Federal Energy Registry maintains that changing to Branch. mandatory status would require no Regulatory Commission, 825 North The Working Group states that to substantive change in the data sets or Capitol Street, NE., Washington, DC accommodate a suggestion from implementation guide; the only change 20426, (202) 208–2294 Commission staff at the August 11, 1994 would be redesignate the fields as Marvin Rosenberg, Office of Economic conference, it is proposing to add fields Policy, Federal Energy Regulatory mandatory. in the Award Data Set for reporting the The Commission will accept the Commission, 825 North Capitol maximum tariff rate for service relating Street, NE., Washington, DC 20426, additional fields, but will require the to capacity posted for release at the time fields to be mandatory, so that all (202) 208–1283 the offer to release is made. The Brooks Carter, Office of Pipeline and pipelines will be required to include proposed fields would report the them. Having electronically transmitted Producer Regulation, Federal Energy maximum reservation rate and Regulatory Commission, 825 North data on the maximum rate for releases maximum volumetric rate for released on all pipelines in the Award Data Set Capitol Street, NE., Washington, DC capacity. The Working Group proposes 20426, (202) 208–0292 is important for the Commission, as well to make these fields optional, because as the other members of the gas SUPPLEMENTARY INFORMATION: In pipelines tariffs do not currently require industry, to be able to efficiently addition to publishing the full text of 2 posting of maximum rate. The filing evaluate the capacity release market by this document in the Federal Register, also contains proposed revisions to the determining the extent to which the Commission also provides all Electronic Data Interchange (EDI) capacity releases are discounted from interested persons an opportunity to implementation guide relating to this maximum rates. With the electronic inspect or copy the contents of this change. data on maximum rates, the document during normal business hours Pursuant to the process adopted by Commission can use computers to in room 3104, 941 North Capitol Street the Commission to make modifications automatically evaluate the relationship NE., Washington, DC 20426. to the data sets,3 public notice of the between release and maximum rates. The Commission Issuance Posting filing was issued on November 17, 1994, Without electronic data, Commission System (CIPS), an electronic bulletin with comments due by November 29, staff would have to determine the board service, provides access to the 1994. Panhandle Eastern Pipelines 4 maximum release rate for each release texts of formal documents issued by the filed a comment supporting the data sets from the pipelines’ individual tariffs Commission. CIPS is available at no as submitted. They request and manually enter that information in charge to the user and may be accessed implementation not be required earlier its computer data base. Given the large using a personal computer with a than February 1, 1995, because during number of capacity release offers and modem by dialing (202) 208–1397. To December and January, many pipelines’ the difficulty in ascertaining the access CIPS, set your communications computer staffs are occupied with the maximum rate that will apply to each software to 19200, 14400, 12000, 9600, tasks of beta-testing EDI confirmation release, manual entry would prove to be 7200, 4800, 2400, 1200 or 300bps, full and nomination data sets and finalizing very tedious and time consuming.5 duplex, no parity, 8 data bits, and 1 stop For those pipelines that do not bit. The full text of this document will 1 Standards For Electronic Bulletin Boards already include maximum rate be available on CIPS for 60 days from Required Under Part 284 of the Commission’s information on their EBBs, the burden the date of issuance in ASCII and Regulations, Order No. 563, 59 FR 516 (Jan. 5, 1994), III FERC Stats. & Regs. Preambles ¶ 30,988 of adding this data should not be WordPerfect 5.1 format. After 60 days (Dec. 23, 1993), order on reh’g, Order No. 563–A, significant. All pipelines must know the document will be archived, but still 59 FR 23624 (May 6, 1994), III FERC Stats. & Regs. (and in many cases will already have accessible. The complete text on Preambles ¶ 30,994 (May 2, 1994), reh’g denied, Order No. 563–B, 68 FERC ¶ 61,002 (1994). diskette in WordPerfect format may also 5 2 There are number of factors that make Optional means the pipeline must include the computation of maximum rates for specific releases be purchased from the Commission’s field only if the pipeline chooses to do so or its copy contractor, La Dorn Systems difficult. For example, many pipelines have a tariff requires it to include the information. significant number of rate zones, with the Corporation, also located in room 3104, 3 Order No. 563–A, III FERC Stats. & Regs. maximum rate depending on the number of zones 941 North Capitol Street, NE., Preambles at 31,036–37. the release crosses. In addition, surcharges and Washington, DC 20426. 4 Algonquin Gas Transmission Company, other requirements in pipeline tariffs may affect the Panhandle Eastern Pipe Line Company, Texas maximum rate. Maximum rates also will change Before Commissioners: Elizabeth Anne Eastern Transmission Corporation, and Trunkline each time a pipeline makes a tariff filing to revise Moler, Chair; Vicky A. Bailey, James J. Gas Company. its rates. 1720 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations computerized) the maximum rate Sailors’ Civil Relief Act of 1940; and otherwise interfere with an action taken information so that they can verify that which gives consideration for the or planned by another agency; (3) bids for release packages do not exceed absence of a member of the Armed Materially alter the budgetary impact of the maximum rate. Forces from an appearance in a judicial entitlements, grants, user fees, or loan Pipelines will be required to proceeding resulting from exigencies of programs or the rights and obligations of implement the new fields by February 1, military duty. recipients thereof; or (4) Raise novel 1995. The ‘‘Standardized Data Sets and EFFECTIVE DATE: January 1, 1995. legal or policy issues arising out of legal Communication Protocols’’ will be FOR FURTHER INFORMATION CONTACT: mandates, the President’s priorities, or modified to include the new fields and Major Alan L. Cook, (703) 697–3387. the principles set forth in this Executive will be made available at the SUPPLEMENTARY INFORMATION: Following Order. It has also been determined that Commission’s Public Reference and publication of the Department of this rule is not subject to the Regulatory Files Maintenance Branch. Defense’s proposed rule, the Department Flexibility Act (5 U.S.C. 601) because it The Commission Orders received several public comments. After will not have a significant adverse review of the comments, the Department economic impact on a substantial (A) The Commission will accept the amended its proposed rule accordingly. proposed fields for maximum number of small entities. The primary Some of the major changes included financial effect on administering the reservation rate and maximum increasing the percentage of a member’s volumetric rate and the related EDI rule will be a reduction in pay that could be collected by a debtor administrative costs and other burdens implementation guide changes as pursuant to an involuntary allotment; proposed in the November 4, 1994 filing resulting from the simplification and deleting the requirement that a clarification of certain policies. with the modification that the judgment could not be more than two Additionally, it has been determined maximum rate fields will be mandatory. years old in order for the Department to that 32 CFR part 112 does not impose (B) Pipelines must implement these process an involuntary allotment new fields by February 1, 1995. request; and establishing appeal any reporting or recordkeeping By the Commission. procedures for debtors from requirements under the Paperwork Reduction Act of 1980 (44 U.S.C. 3501– Lois D. Cashell, determinations by commanders that 3520). 32 CFR part 113 imposes an Secretary. preclude collection by involuntary information collection requirement for [FR Doc. 95–264 Filed 1–4–95; 8:45 am] allotment because of exigencies of military duties. Additionally, the Coast which the paperwork has been BILLING CODE 6717±01±P Guard coordinated with the Department completed. The OMB approval number of Defense to be included in the is 0704–0367. Specifically, OMB regulations published by the provided their approval for the DEPARTMENT OF DEFENSE Department of Defense. Note, the collection of information required by Office of the Secretary Department originally intended to DD Form 2653, appendix C to 32 CFR publish its final regulation, which part 113, that was originally intended to 32 CFR Parts 43a, 112, and 113 included both policy and procedural be included in the DoD directive but provisions, in the form of a DoD had to be moved to the DoD instruction [DoD Directive 1344.9 and DoD Instruction directive. However, due to internal 1344.12] (for internal reasons as noted above). Department of Defense guidance Finally, application forms for RIN 0790±AF65 and RIN 0790±AF80 published in DoD 5025.1–M 1 (August involuntary allotment (DD Form 2653, 1994), directives may no longer include ‘‘Involuntary Allotment Application,’’ Indebtedness of Military Personnel procedures. The procedures that were as described in 32 CFR part 113, contained in the proposed rule have AGENCY: Office of the Secretary, appendix C) may be obtained from the Department of Defense. been placed in a DoD instruction. Defense Finance and Accounting Accordingly, the final rule is now in ACTION: Final rule. Service, Cleveland Center, Code L, PO two parts. The first part, 32 CFR part Box 998002, Cleveland, Ohio 44199– 112, is based on the DoD directive that SUMMARY: 5 U.S.C. 5520a(k) required the 8002, telephone (216) 522–5301. Department of Defense to ‘‘promulgate contains broad policy guidance. The regulations’’ by April 4, 1994 for the second part, 32 CFR part 113, reflects List of Subjects in 32 CFR Parts 43a, involuntary allotment of pay from the DoD instruction and contains the 112 and 113 members of the Armed Forces for debts Department’s procedural guidance. The Claims, Credit, Military personnel. reduced to judgments. The Department substance of both parts are derived from published its proposed rule in the the proposed rule as originally L.M. Bynum, Federal Register on April 26, 1994 (59 published on April 26. Additionally, it Alternate OSD Federal Register Liaison FR 21713). This final rule satisfies 5 has been determined that 32 CFR parts Officer, Department of Defense. U.S.C. 5520a(k) by promulgating 112 and 113 are not significant regulation actions. The rules do not: (1) Accordingly, under the authority of regulations with regard to members of 10 U.S.C. 301, Title 32 of the Code of the Armed Forces which include Have an annual effect on the economy of $100 million or more or adversely Federal Regulations, Chapter I, provisions for the involuntary allotment affect in a material way the economy, a Subchapter C, is amended to read as of the pay of a member of the Armed sector of the economy, productivity, follows: Forces for indebtedness owed a third competition, jobs, the environment, party as determined by the final Dated: December 28, 1994. public health or safety, or State, local, judgment of a court of competent or tribal governments or communities; jurisdiction, and as further determined PART 43aÐ[REMOVED] (2) Create a serious inconsistency or by competent military or executive authority, as appropriate, to be in 1. Part 43a is removed. 1 Copies may be obtained, at cost, from the compliance with the procedural National Technical Information Service, 5285 Port 2. 32 CFR parts 112 and 113 are added requirements of the Soldiers’ and Royal Road, Springfield, VA 22161. to read as follows: Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations 1721 PART 112ÐINDEBTEDNESS OF judicial process, as evidenced by failing (2) Personnel in a prisoner of war or MILITARY PERSONNEL to physically attend court proceedings; missing in action status, as determined failing to be represented at court by the Secretary of the Military Sec. proceedings by counsel of the member’s Department concerned. 112.1 Purpose. choosing; or failing to timely respond to 112.2 Applicability and scope. § 112.4 Policy. 112.3 Definitions. pleadings, orders, or motions. 12.4 Policy. (b) Court. A court of competent (a) Members of the Military Services 112.5 Responsibilities. jurisdiction within any State, territory, are expected to pay their just financial Authority: 5 U.S.C. 5520a(k) and 10 U.S.C. or possession of the United States. obligations in a proper and timely 113(d). (c) Debt collector. An agency or agent manner. A Service member’s failure to engaged in the collection of debts pay a just financial obligation may § 112.1 Purpose. described under 15 U.S.C. 1601 note result in disciplinary action under the This part: (a) Updates policy and and 1692–1692o (‘‘Fair Debt Collection Uniform Code of Military Justice (10 responsibilities governing delinquent Practices Act’’). U.S.C. 801–940) or a claim pursuant to indebtedness of members of the Military (d) Exigencies of military duty. A Article 139 of the Uniform Code of Services, and prescribes policy for military assignment or missing-essential Military Justice (10 U.S.C. 939). Except processing involuntary allotments from duty that, because of its urgency, as stated in this section, and in the pay of military members to satisfy importance, duration location, or paragraphs (a)(1) and (a)(2) of this judgment indebtedness in accordance isolation, necessitates the absence of a section, the Department of Defense with 5 U.S.C. 5520a(k). member of the Military Services from Components have no legal authority to (b) Establishes responsibility for appearance at a judicial proceeding or require members to pay a private debt procedures implementing 5 U.S.C. prevents the member from being able to or to divert any part of their pay for 5520a(k), 15 U.S.C. 1601 note, 1601– respond to a notice of application for an satisfaction of a private debt. 1614, 1631–1646, 1661–1665a, 1666– involuntary allotment. Exigency of (1) Legal process instituted in civil 1666j, and 1667–1667e (‘‘Truth in military duty is normally presumed courts to enforce judgments against Lending Act’’), and 15 U.S.C. 1601 note, military personnel for the payment of and 1692–1692o (‘‘Fair Debt Collection during periods of war, national emergency, or when the member is alimony or child support shall be acted Practices Act’’). on in accordance with 42 U.S.C. 651– (c) Designates the Director, Defense deployed. (e) Judgment. A final judgment must 665, and Part 7, Chapter 7, Section B. of Finance and Accounting Service Department of Defense 7000.14–R 1, (DFAS), as the Department of Defense be a valid, enforceable order or decree, by a court from which no appeal may Volume 7, Part A. Executive Agent for forms necessary to (2) Involuntary allotments under 5 process involuntary allotments. The be taken, or from which no appeal has been taken within the time allowed, or U.S.C. 5520a(k) shall be established in Executive Agent shall publish, print, accordance with this part. stock, distribute, and revise forms. from which an appeal has been taken and finally decided. The judgment must (b) Whenever possible, indebtedness § 112.2 Applicability and scope. award a sum certain amount and specify disputes should be resolved through (a) Applies to the Office of the that the amount is to be paid by an amicable means. Claimants may contact Secretary of Defense, the Military individual who, at the time of military members by having Departments (including the Coast Guard application for the involuntary correspondence forwarded through the when it is not operating as a Military allotment, is a member of the Military military locator services for an Service in the Navy by agreement with Services. appropriate fee, as provided under DoD 2 the Department of Transportation), the (f) Just financial obligations. A legal Instruction 7230.7. Chairman of the Joint Chiefs of Staff, the debt acknowledged by the military (c) The following general policies Unified Combatant Commands, the member in which there is no reasonable apply to processing of debt complaints Inspector General of the Department of dispute as to the facts or the law; or one (not involuntary allotments): Defense, the Defense Agencies, and the reduced to judgment that conforms to (1) Debt complaints meeting the Department of Defense Field Agencies the Soldiers’ and Sailors’ Civil Relief requirements of this part, and (hereafter referred to collectively as ‘‘the Act of 1940, as amended (50 U.S.C. procedures established by the Under Department of Defense Components’’). appendix sections 501–591). Secretary of Defense (Personnel and The term ‘‘Military Services,’’ as used (g) Member of the military services. Readiness), as required by 32 CFR part herein, refers to the Army, the Navy, the Any member of the Regular Army, Air 113, shall receive prompt processing Air Force, the Marine Corps, and the Force, Navy, Marine Corps, or Coast assistance from commanders. Coast Guard. Guard, and any member of a Reserve (2) Assistance in indebtedness matters (b) The provisions of this part do not component of the Army, Air Force, shall not be extended to those creditors: apply to: Navy, Marine Corps or Coast Guard (i) Who have not made a bona fide (1) Indebtedness of a member of the (including the Army National Guard of effort to collect the debt directly from Military Services to the Federal the United States and the Air National the military member; Government. Guard of the United States) on active (ii) Whose claims are patently false (2) Processing of indebtedness claims duty pursuant to 10 U.S.C. 672, for a and misleading; or to enforce judgments against military (iii) Whose claims are obviously members for alimony or child support. period in excess of 180 days at the time an application for involuntary allotment exorbitant; (3) Claims by State or municipal (3) Some States have enacted laws governments under the processing is received by the Director, DFAS, or Commanding Officer, Coast Guard Pay that prohibit creditors from contacting a guidelines for complaints, including tax debtor’s employer about indebtedness or collection actions. and Personnel Center. The following shall not be considered members: 1 § 112.3 Definitions. Copies may be obtained, at cost, from the (1) Retired personnel, including those National Technical Information Service, 5285 Port (a) Absence. A member’s lack of an placed on the temporary or permanent Royal Road, Springfield, VA 22161. ‘‘appearance,’’ at any stage of the disabled retired list; and 2 See footnote 1 to § 112.4(a)(1) 1722 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations communicating facts on indebtedness to of debt complaints and involuntary with court orders and judgments for the an employer unless certain conditions allotments. payment of alimony or child support. are met. The conditions that must be (2) Have policy oversight on the (3) Emphasize prompt command met to remove this prohibition are assistance to be provided by military action to assist with the processing of generally such things as reduction of a authorities to creditors of military involuntary allotment applications. debt to judgment or obtaining written personnel who have debt complaints, (e) The Chief, Office of Personnel and permission of the debtor. and on involuntary allotment of military Training, for the Coast Guard shall: (i) At Department of Defense pay. (1) Establish, as necessary, procedures installations in States having such laws, (b) The Under Secretary of Defense supplemental to those promulgated by the processing of debt complaints shall (Comptroller) shall: the Under Secretary of Defense not be extended to those creditors who (1) Establish, as necessary, procedures (Personnel and Readiness) to administer are in violation of the State law. supplemental to those promulgated by and process involuntary allotments from Commanders may advise creditors that the Under Secretary of Defense the pay of members of the Military this rule has been established because it (Personnel and Readiness) to administer Services; this includes the authority to is the general policy of the Military and process involuntary allotments from promulgate forms necessary for the Services to comply with State law when the pay of members of the Military efficient administration and processing that law does not infringe upon Services; this includes the authority to of involuntary allotments. significant military interests. promulgate forms necessary for the (2) Ensure that the Commanding (ii) The rule in § 112.4(c)(3)(i) shall efficient administration and processing Officer, Coast Guard Pay and Personnel govern even though a creditor is not of involuntary allotments. Center: licensed to do business in the State (2) Ensure that the Director, DFAS: (i) Implements procedures established where the debtor is located. A similar (i) Implements procedures established by the Under Secretary of Defense practice shall be started in any State by the Under Secretary of Defense (Personnel and Readiness) and Chief, enacting a similar law regarding debt (Personnel and Readiness) and the Office of Personnel and Training. collection. Under Secretary of Defense (ii) Considers whether the Soldiers’ (4) Under 15 U.S.C. 1601 note and (Comptroller). and Sailors’ Civil Relief Act of 1940, as 1692–1692o (‘‘Fair Debt Collection (ii) Considers whether the Soldiers’ amended (50 U.S.C. appendix sections Practices Act’’), contact by a debt and Sailors’ Civil Relief Act of 1940, as 501–591), has been complied with collector with third parties, such as amended (50 U.S.C. appendix sections under 5 U.S.C. 5520a(k) prior to commanding officers, for aiding debt 501–591), has been complied with establishing an involuntary allotment collection is prohibited without a court under 5 U.S.C. 5520a(k) prior to against the pay of a member of the order, or the debtor’s prior consent establishing an involuntary allotment Military Services. given directly to the debt collector. against the pay of a member of the (iii) Acts as the Coast Guard Executive Creditors are generally exempt from this Military Services. Agent for forms necessary to process requirement, but only when they collect (iii) Acts as the Department of Defense involuntary allotments. on this own behalf. Executive Agent for Department of (d) The following general policies Defense forms necessary to process PART 113ÐINDEBTEDNESS OF apply to processing of involuntary involuntary allotments. MILITARY PERSONNEL allotments under 5 U.S.C. 5520a(k). (c) The Heads of the Department of (1) In those cases in which the Defense Components shall urge military Sec. personnel to meet their just financial 113.1 Purpose. indebtedness of a military member has 113.2 Applicability. been reduced to a judgment, an obligations, since failure to do so 113.3 Definitions. application for an involuntary allotment damages their credit reputation and 113.4 Policy. from the pay of the member may be affects the public image of all 113.5 Responsibilities. made under procedures prescribed by Department of Defense personnel. See 113.6 Procedures. the Under Secretary of Defense DoD Directives 1000.10,3 1000.11,4 and Appendix A to part 113—Certificate of (Personnel and Readiness). Such 5500.7.5 Compliance procedures shall provide the exclusive (d) The Secretaries of the Military Appendix B to part 113—Standards of remedy available under 5 U.S.C. Departments shall: Fairness Appendix C to part 113—Sample DD Form 5520a(k). (1) Establish, as necessary, procedures to administer and process involuntary 2653, ‘‘Involuntary Allotment (2) An involuntary allotment from a Application’’ member’s pay shall not be started in any allotments from the pay of members of Appendix D to part 113—Sample DD Form indebtedness case in which: the Military Services. This includes 2654, ‘‘Involuntary Allotment Notice and (i) Exigencies of military duty caused designating those commanders, or other Processing’’ the absence of the member from the officials who may act in the absence of Authority: 5 U.S.C. 5520a(k) and 10 U.S.C. judicial proceeding at which the the commander, who shall be 113(d). judgment was rendered; or responsible for determining whether a (ii) There has not been compliance member’s absence from a judicial § 113.1 Purpose. with the procedural requirements of the proceeding was caused by exigencies of This part implements policy, assigns Soldiers’ and Sailors’ Civil Relief Act of military duty, and establishing appeal responsibilities, and prescribes 1940, 50 U.S.C. appendix sections 501– procedures regarding such procedures under 32 CFR part 112 591. determinations. governing delinquent indebtedness of (2) Require commanders to counsel members of the Military Services. § 112.5 Responsibilities. members to pay their just debts, (a) The Under Secretary of Defense for including complying, as appropriate, § 113.2 Applicabichlity. Personnel and Readiness shall: This part applies to the Office of the (1) In consultation with the Under 3 See footnote 1 to § 112.4(a)(1). Secretary of Defense, the Military Secretary of Defense (Comptroller), 4 See footnote 1 to § 112.4(a)(1). Departments (including the Coast Guard establish procedures for the processing 5 See footnote 1 to § 112.4(a)(1). when it is not operating as a Military Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations 1723 Service in the Navy by agreement with pay items to compute the final earnings shall be reduced or stopped as necessary the Department of Transportation), the value of the pay subject to involuntary to avoid exceeding the maximum Chairman of the Joint Chiefs of Staff, the allotment: percentage allowed. Unified Combatant Commands, the (i) Federal and State employment and (d) The Truth in Lending Act (15 Inspector General of the Department of income tax withholding (amount U.S.C. 1601 note, 1601–1614, 1631– Defense, the Defense Agencies, and the limited only to that which is necessary 1646, 1661–1666j, and 1667–1667e) DoD Field Activities (hereafter referred to fulfill member’s tax liability). prescribes the general disclosure to collectively as ‘‘the DoD (ii) FICA tax. requirements that must be met by those Components’’). The term ‘‘Military (iii) Amounts mandatorily withheld offering or extending consumer credit Services,’’ as used herein, refers to the for the United States Soldiers’ and and Federal Reserve Board Regulation Z Army, the Navy, the Air Force, the Airmen’s Home. (12 CFR 226) prescribes the specific Marine Corps, and the Coast Guard. (iv) Deductions for the Servicemen’s disclosure requirements for both open- Group Life Insurance coverage. end and installment credit transactions. § 113.3 Definitions. (v) Retired Serviceman’s Family In place of Federal Government (a) Appearance. The presence and Protection Plan. requirements, State regulations apply to participation of a member of the (vi) Indebtedness to the United States. credit transactions when the Federal Military Services, or an attorney of the (vii) Fines and forfeitures ordered by Reserve Board has determined that the member’s choosing, throughout the a court-martial or a commanding officer. State regulations impose substantially judicial proceeding from which the (viii) Amounts otherwise required by similar requirements and provide judgment was issued that is the basis for law to be deducted from a member’s pay adequate enforcement measures. a request for enforcement through (except payments under 42 U.S.C. 659, Commanding officers, with the involuntary allotment. 661, 662, and 665). assistance of judge advocates, should (b) Applicant. The original judgment (d) Preponderence of the evidence. A check regulations of the Federal Reserve holder, a successor in interest, or greater weight of evidence that is more Board to determine whether Federal or attorney or agent thereof who requests credible and convincing to the mind. State laws and regulations govern. an involuntary allotment from a member That which best accords with reason of the Military Services pursuant to DoD and probability. (See Black’s Law § 113.5 Responsibilities. 1 Directive 1344.9. Dictionary 2) (a) The Under Secretary of Defense for (c) Pay subject to involuntary (e) Proper and Timely Manner. A Personnel and Readiness shall monitor allotment. For purposes of complying manner that under the circumstances compliance with this part. with 32 CFR part 112 and 5 U.S.C. does not reflect discredit on the Military (b) The Under Secretary of Defense 5520a(k), pay subject to involuntary Service. (Comptroller) shall ensure Defense allotment shall be determined by: Finance and Accounting Service (DFAS) (1) Including: § 113.4 Policy (i) Basic pay but excluding reduction (a) It is DoD policy under 32 CFR part implementation of this part. for education for education benefits 112 that procedures be established for (c) The Heads of the DoD Components under section 38 U.S.C. 1411 (‘‘New G.I. the processing of debt complaints shall ensure compliance with this part. Bill’’). against members of the Military Services § 113.6 Procedures. (ii) Special pay (including enlistment and involuntary allotments from the pay and reenlistment bonuses). of members of the Military Services. (a) The following procedures apply to (iii) Incentive pay. (b) An involuntary allotment shall not the processing of debt complaints (iv) Accrued leave payments (basic exceed the lesser of 25 percent of a against members of the Military pay portion only). member’s pay subject to involuntary Services. (v) Readjustment pay. allotment or the maximum percentage of (1) It is incumbent on those (vi) Severance pay (including pay subject to garnishment proceedings submitting indebtedness complaints to disability severance pay). under the applicable State law. show that they have met the disclosure (vii) Lump-sum Reserve bonus. (c) The amount of an involuntary requirements of the Truth in Lending (viii) Inactive duty training pay. allotment under 32 CFR part 112 and Act (15 U.S.C. 1601 note, 1601–1614, (2) Excluding: this part when combined with 1631–1646, 1661–1666j, and 1667– (i) Retired pay (including) disability deductions as a result of garnishments 1667e) and Federal Reserve Board retired pay). or statutory allotments for spousal Regulation Z (12 CFR 226), and that (ii) Retainer pay. they complied with the Standards of (iii) Separation pay, Voluntary support and child support under 42 U.S.C. 659, 661, 662, or 665, may not Fairness (appendix B to this part). Separation Incentive (VSI), and Special (2) Creditors subject to Federal Separation Benefit (SSB). exceed the lesser of 25 percent of a member’s pay subject to involuntary Reserve Board Regulation Z (12 CFR (iv) Allowances paid under titles 10 226), and assignees claiming and 37 of the United States Code (e.g., allotment or the maximum percentage of pay subject to garnishment proceedings thereunder, shall submit with their debt Chapter 53 of title 10 and Chapter 7 of complaint an executed copy of the title 37, respectively) and other under applicable State law. In any case in which the maximum percentage Certificate of Compliance (appendix A reimbursements for expenses incurred to this part), and a true copy of the in connection with duty in the Military would be exceeded, garnishments and involuntary allotments for spousal and general and specific disclosures Service or allowances in lieu thereof. provided the member of the Military (v) Payments not specifically child support shall take precedence over Service as required by the Truth in enumerated in § 113.3(c)(1). involuntary allotments authorized (3) After including the items in under 32 CFR part 112 and this part. Lending Act (15 U.S.C. 1601 note, 1601– § 113.3(c)(1), subtracting the following Involuntary allotments established 1614, 1631–1646, 1661–1666j, and under 32 CFR part 112 and this part 1667–1667e). Debt complaints that 1 Copies may be obtained, at cost, from the request assistance but do not meet these National Technical Information Service, 5285 Port 2 Black’s Law Dictionary, Fourth Edition, West requirements will be returned without Royal Road, Springfield, VA 22161. Publishing Company, Saint Paul, Minnesota (1952). action to the claimant. 1724 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations (3) A creditor not subject to Federal taken, or will be taken, against the (D) A certification that the judgment Reserve Board Regulation Z (12 CFR member as a result of the complaint. has not been amended, superseded, set 226), such as a public utility company, (b) The following procedures apply to aside, or satisfied; or, if the judgment shall submit with the request a the processing of involuntary allotments has been satisfied in part, the extent to certificate that no interest, finance from the pay of members of the Military which the judgment remains charge, or other fee is in excess of that Services. unsatisfied. permitted by the law of the State in (1) Involuntary allotment application. (E) A certification that the judgment which the obligation was incurred. (i) Regardless of the Service Affiliation was issued while the member was not (4) A foreign-owned company having of the member involved, with the on active duty (in appropriate cases). If debt complaints shall submit with its exception of members of the Coast the judgment was issued while the request a true copy of the terms of the Guard an application to establish an member was on active duty, a debt (English translation) and shall involuntary allotment from the pay of a certification that the member was certify that it has subscribed to the member of the Military Services shall be present or represented by an attorney of Standards of Fairness (appendix B to made by sending a completed DD Form the member’s choosing in the this part). 2653, ‘‘Involuntary Allotment proceedings, or if the member was not (5) Debt complaints that meet the Application’’ (appendix C to this part) present or represented by an attorney of requirements of this part shall be to the appropriate address listed below. the member’s choosing, that the processed by Department of Defense Applications sent to any other address judgment complies with the Soldiers’ Components. ‘‘Processed’’ means that shall be returned without action to the and Sailors’ Civil Relief Act of 1940, as Heads of the Department of Defense applicant. amended (50 U.S.C. appendix sections Components, or designees, shall: (For Army, Navy, Air Force, or Marine 501–591). (i) Review all available facts Corps) (F) A certification that the member’s surrounding the transaction forming the Defense Finance and Accounting pay could be garnished under basis of the complaint, including the Service, Cleveland Center, Code L, applicable State law and section member’s legal rights and obligations, P.O. Box 998002, Cleveland, OH 5520a(k) of the United States Code, if and any defenses or counterclaims the 44199–8002 the member were a civilian employee. member may have. (G) A certification that, to the (For Coast Guard only) (ii) Advise the member concerned knowledge of the applicant, the debt has that: Coast Guard Pay and Personnel Center not been discharged in bankruptcy, nor (A) Just financial obligations are (LGL), 444 S.E. Quincy Street, has the member filed for protection from expected to be paid in a proper and Topeka, KS 66683–3591 creditors under the bankruptcy laws of timely manner, and what the member (ii) Each application must include a the United States. should do to comply with that policy; copy of the final judgment certified by (H) A certification that if the judgment (B) Financial and legal counseling the clerk of court and such other is satisfied prior to the collection of the services are available under DoD documents as may be required by total amount through the involuntary Directive 1344.7 3 in resolving § 113.6(b)(1)(iv). allotment process, the applicant will indebtedness; and (iii) A garnishment summons or order provide prompt notice that the (C) That a failure to pay a just debt is insufficient to satisfy the final involuntary allotment must be may result in the creditor obtaining a judgment requirement of § 113.6(b)(1)(ii) discontinued. judgment from a court that could form and is not required to apply for an (I) A certification that if the member the basis for collection of pay from the involuntary allotment under this part. overpays the amount owed on the member pursuant to an involuntary (iv) Involuntary allotment judgment, the applicant shall refund the allotment. applications must contain the following amount of overpayment to the member (iii) If a member acknowledges a debt information, certifications, and within 30 days of discovery or notice of as a result of creditor contact with a acknowledgment: the overpayment, whichever, is earlier, DoD Component, advise the member (A) The full name, social security and that if the applicant fails to repay that assistance and counseling may be number, and branch of Service of the the member, the applicant understands available from the on-base military military member against whose pay an he or she may be denied the right to banking office, the credit union serving involuntary allotment is sought. collect by involuntary allotment on the military field of membership, or Although not required, inclusion of the other debt reduced to judgments. other available military community member’s current duty station and duty (J) Acknowledgment that as a service organizations. address on the application form will condition of application, the applicant (iv) Direct the appropriate commander facilitate processing of the application. agrees that neither the United States, to advise the claimant that: (B) The applicant’s full name and nor any disbursing official or Federal (A) Those aspects of DoD policy address. If the applicant is not a natural employee whose duties include prescribed in 32 CFR part 112.4, are person, the application must be signed processing involuntary allotment pertinent to the particular claim in by an individual with the authority to applications and payments, shall be question; and act on behalf of such entity. If the liable for any payment or failure to (B) The member concerned has been allotment is to be in favor of a person make payment from moneys due or advised of his or her obligations on the other than the original judgment holder, payable by the United States to any claim. proof of the right to succeed to the person pursuant to any application (v) The commander’s response to the interest of the original judgment holder made in accordance herewith. claimant shall not undertake to arbitrate is required and must be attached to the (v) The original and three copies of any disputed debt, or admit or deny the application. the application and supporting validity of the claim. Under no (C) The dollar amount of the documents must be submitted by the circumstances shall the response judgment. Additionally, if the judgment applicant to DFAS. indicate whether any action has been awarded interest, the total dollar (vi) A complete ‘‘application package’’ amount of the interest on the judgment (the DD Form 2653, supporting 3 See footnote 1 to § 113.3(b). accrued to the date of application. documentation, and three copies of the Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations 1725 application and supporting documents), specified in Section I of DD Form 2654. calendar days may be granted. That if is required for processing of any request In the absence of a response, DFAS may the member fails to respond within the to establish an involuntary allotment automatically process the involuntary time allowed, the commander will note pursuant to this part and 32 CFR part allotment application on the fifteenth the member’s failure to respond in 112. calendar day after the date a response Section V of DD Form 2654 and send (vii) Applications that do not conform was due. When DFAS has received the form to DFAS for appropriate action. to the requirements of this part shall not notice of an extension, automatice (C) That the member’s response will be processed. If an application is processing shall not begin until the either consent to the involuntary ineligible for processing, the application fifteenth calendar day after the allotment or contest it. package shall be returned to the approved extension date. (D) That the member may contest the applicant with an explanation of the (D) Retain the original of the application for any one of the following deficiency. In cases involving repeated application package and DD Form 2654. reasons: false certifications by an applicant, the (ii) Upon receipt of an application, the (1) There has not been compliance designated DFAS official may refuse to commander shall determine if the with the procedural requirements of the accept or process additional member identified in Section I of DD Soldiers’ and Sailors’ Civil Relief Act of applications by that applicant for such Form 2654 is assigned or attached to the 1940, as amended (50 U.S.C. appendix period of time as the official deems commander’s unit and available to sections 501–591) during the judicial appropriate to deter against such respond to the involuntary allotment proceeding upon which the involuntary violations in the future. application. If the member is not allotment application is sought. (2) Processing of involuntary assigned or attached, or not available to (2) ‘‘Exigencies of military duty’’ (as allotment applications. (i) Promptly respond (e.g., retired, in a prisoner of defined in 32 CFR part 112.3(d)) caused upon receipt of DD Form 2653 war status, or in a missing in action the ‘‘absence’’ of the member from (Appendix C to this part), the status), the commander will promptly appearance in a judicial proceeding designated DFAS official shall review complete Section II of DD Form 2654 forming the basis for the judgment upon the ‘‘application package’’ to ensure and attach appropriate documentation which the application is sought. compliance with the requirements of supporting the determination. The (3) Information in the application is this part. If the application package is commander will then mail the patently false or erroneous in material complete, the DFAS official shall: application package and DD Form 2654 part. (A) Complete Section I of DD Form to DFAS. Section II shall also be used (4) The judgment has been fully 2654, ‘‘Involuntary Allotment Notice by the commander to notify DFAS of satisfied, superseded, or set aside. and Processing’’ (Appendix D to this extensions beyond the due date for a (5) The judgment has been materially part), by inserting the name, social response contained in Section I of DD amended, or partially satisfied. When security number, rank, and branch of Form 2654. When such extensions are asserting this defense, the member shall service of the military member against authorized, the commander will include evidence of the amount of the whom an application for involuntary complete Section II, make a copy of judgment that has been satisfied. allotment is being processed. Sections I and II, and promptly mail the (6) There is a legal impediment to the Additionally, the DFAS official shall copy to DFAS. establishment of the involuntary provide the due date for receipt of a (iii) Within 5 days of receipt of an allotment (for example, the judgment response at DFAS. The due date shall be application package and DD Form 2654 debt has been discharged in bankruptcy, 90 days from the date DFAS mails the from the designated DFAS official, the the judgment debtor has filed for DD Form 2654 to the commander and commander shall notify the member of protection from the creditors under the member concerned as provided for in the receipt of the application, provide bankruptcy laws of the United States, § 113.6(b)(2)(i)(B). the member a copy of the entire the applicant is not the judgment holder (B) Mail one copy of the application application package, and counsel the nor a proper successor in interest to that package to the member and two copies member using and completing Section holder, or the applicant has been of the application package, along with III of DD Form 2654 about the following: enjoined by a Federal or state court from DD Form 2654, to the commander of the (A) That an application for the enforcing the judgment debt). military member or other official as establishment of an involuntary (7) Or other appropriate reasons that designated by the Military Service allotment for the lesser of 25 percent of must be clearly specified and explained concerned during times of war, national the member’s pay subject to involuntary by the member. emergency, deployment, or other similar allotment or the maximum percentage of (E) That, if the member contests the circumstances, who may act for the pay subject to garnishment proceedings involuntary allotment, the member shall commander, provided the Military under the applicable State law has been provide evidence (documentary or Service concerned has provided DFAS received. otherwise) in support thereof. with the name or position of the official (B) That the member has 15 calendar Furthermore, that any evidence and the appropriate address days from the date of receipt of the submitted by the member may be (hereinafter, the meaning of the term commander’s notice to complete Section disclosed to the applicant for the ‘‘commander’’ includes such other IV of DD Form 2654. That for good involuntary allotment. official). cause shown, the commander may grant (F) That the member may consult with (C) Within 60 days of mailing the an extension of reasonable time a legal assistance attorney, if reasonably copies of the application package and (normally not exceeding 30 calendar available, or a civilian attorney at no DD Form 2654, DFAS shall provide days) to submit a response. That during expense to the government. That if a notice to the member and the member’s times of deployment, war, national legal assistance attorney is available, the commander that automatic processing of emergency, assignment outside the member should immediately arrange for the involuntary allotment application United States, hospitalization, or other an appointment. That the member may shall occur if a response (including similar situations that prevent the request a reasonable delay from the notice of an approved extension as member from obtaining necessary commander to obtain legal assistance (in authorized in § 113.6(b)(2)(iii)(B) and evidence or from responding in a timely cases where an approved delay will (F), is not received by the due date manner, extensions exceeding 30 cause DFAS to receive the member’s 1726 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations response after the due date identified in the time authorized under this part to entire application package, DD Form Section I of DD Form 2654, the review the application package and take 2654, and any evidence submitted by commander must immediately notify appropriate action. If the member the member, to determine whether the the designated DFAS official of the consents to the involuntary allotment, application for an involuntary allotment delay, the date for an expected response, the commander shall direct the member should be approved and established. and the reason for the delay by to appropriately complete Section IV of (A) In those cases where the member’s completing Section II of DD Form 2654 DD Form 2654. The commander must commander has completed Section V of and forwarding a copy of Sections I and then complete the appropriate item in DD Form 2654, and determined that II to DFAS). Additionally, that requests Section V and promptly forward the exigencies of military duty caused the for extensions of time based on the need completed DD Form 2654 to the absence of the member from an for legal assistance shall be denied to designated DFAS official. appearance in a judicial proceeding members who fail to exercise due (D) Complete the appropriate items in upon which the involuntary allotment diligence in seeking such assistance. Section V of DD Form 2654 when the application is sought, the designated (G) That if the member contests the member fails to respond within the time DFAS official shall deny the involuntary involuntary allotment on the grounds authorized for a response, or asserts that allotment application and provide the that exigencies of military duty caused exigencies of military duty caused the applicant written notice of the denial the absence of the member from the absence of the member from an and the reason therefor. The designated judicial proceeding at which the appearance in the judicial proceeding DFAS official shall also advise the judgment was rendered, then the upon which the Involuntary Allotment applicant that: member’s commander shall review and Application is sought. (1) The responsibility for determining make the final determination on this (1) In determining whether exigencies whether exigencies of military duty contention, and notify the designated of military duty caused the absence of existed belonged to the member’s DFAS official of the commander’s the member, the commander, at the commander and the Military decision by completing Section V of DD level designated by the Service Department concerned. Form 2654 and forwarding the form to concerned, shall consider the definition (2) The commander’s decision may be DFAS. of ‘‘exigencies of military duty’’ (as appealed within 60 days of the date (1) In determining whether exigencies defined in 32 CFR part 112.3(d)), the DFAS mailed the notice of the decision of military duty caused the absence of evidence provided by the member, any to the applicant. the member, the commander at the level other reasonably available evidence (3) An Appeal must be submitted to designated by the Service concerned (e.g., a copy of the member’s personnel the appeal authority at the address shall consider the definition of record), and whether the commander at provided by DFAS (as found in Section ‘‘exigencies of military duty’’ (as the time determined the military duties V of the DD Form 2654) in their written defined in 32 CFR part 112.3(d)). in question to be of such paramount notice of denial, and that an appeal (2) Additionally, consideration shall importance that they prevented making submitted to an appeal authority and be given to whether the commander at the member available to attend the address different from the one provided the time determined the military duties judicial proceedings, or rendered the by DFAS may be returned without in question to be of such paramount member unable to timely respond to action. importance that they prevented making process, motions, pleadings, or orders of (4) An appeal must be submitted in the member available to attend the the court. writing and contain sufficient evidence judicial proceedings, or rendered the (2) The evidentiary standard for a to overcome the presumption that the member unable to timely respond to commander to determine whether commander’s exigency determination process, motions, pleadings, or orders of existences of military duty caused the was correct. the court. absence of the member from an (5) The appellate authority shall (H) That if the member contests the appearance in the judicial proceeding decide an appeal within 30 days of its involuntary allotment on any basis other upon which the Involuntary Allotment receipt and promptly notify the than exigencies of military duty, the Application is sought is a applicant in writing of the decision. The application package and DD Form 2654 ‘‘preponderance of the evidence’’ (as 30 day decision period may be extended shall be returned to the commander who defined in § 113.3(d) of this part). during times of deployment, war, shall forward it to the designated DFAS (3) If the commander has made a national emergency, or other similar official for appropriate action. determination on exigencies of military situations. (I) That if the member fails to respond duty, the commander must insert in (6) If an appeal is successful, the to the commander within the time Section V of DD Form 2654, the title and applicant must submit a written request, allowed under § 113.6(b)(2)(iii)(B), the address of the appeal authority. along with a copy of the appellate commander shall notify the designated (E) Promptly following the date the authority’s decision, to DFAS within 15 DFAS official of the member’s failure to member’s response is due to the days of receipt of the appellate respond by completing Section V of DD commander as determined by authority’s decision. Form 2654, and forwarding the form to § 113.6(b)(2)(iii)(B), ensure that the DD (B) Upon receiving written notice that DFAS. Form 2654 is appropriately completed an applicant has successfully appealed (iv) After counseling the member in and mail the form, along with any a commander’s determination on accordance with § 113.6(b)(2)(iii)(A)–(I), response received from the member, to exigencies of military duty that resulted the commander shall: DFAS. in denial of an involuntary allotment (A) Date and sign Section III of DD (F) Provide the member a copy of the application, DFAS shall review the Form 2654. completed DD Form 2654 within 5 days application in accordance with (B) Obtain the member’s of mailing to the designated DFAS § 113.6(b)(2)(v)(C), and determine acknowledgment of counseling by official. whether the involuntary allotment having the member sign the appropriate (v) Upon receipt of DD Form 2654 and should be approved and initiated. space on Section III of DD Form 2654. any additional evidence submitted by (C) In all cases, other than as (C) Determine if the member consents the member, the designated DFAS described in § 113.6(b)(2)(v)(A), the to the involuntary allotment or needs official shall conduct a review of the designated DFAS official shall deny an Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations 1727 involuntary allotment application, and continue because of the existence of the promptly adjust or discontinue the give written notice to the applicant of factors enumerated in § 113.6(b)(2)(v)(A) involuntary allotment. the reason(s) for denial, if the and (C)(1)–(8). (vii) The Under Secretary of Defense designated DFAS official determines (3) Payments (Comptroller) may, in DoD 7000.14–R 4 that: (i) Payment of an approved Volume 7, Part A, designate the priority (1) There has not been compliance involuntary allotment under 32 CFR to be given to involuntary allotments with the procedural requirements of the part 112 and this part shall commence pursuant to 32 CFR part 112 and this Soldier’s and Sailor’s Civil Relief Act of within 30 days after the designated part, among the deductions and 1940, as amended (50 U.S.C. appendix DFAS official has approved the collections taken from a member’s pay, sections 501–591) during the judicial involuntary allotment. except that they may not give proceeding upon which the involuntary (ii) Payments under this part shall not precedence over deductions required to allotment application is sought. be required more frequently than once arrive at a member’s disposable pay for (2) Information in the application is each month, and the designated official garnishments or involuntary allotments patently false or erroneous in material shall not be required to vary normal pay authorized by statute for alimony and part. and disbursement cycles. child support payments. In the absence (3) The judgment has been fully (iii) If the designated DFAS official of a contrary designation by the satisfied, superseded, or set aside. receives several applications on the Comptroller, all other lawful deductions (4) The judgment has been materially same member of a Military Service, (except voluntary allotments by the amended, or partially satisfied. In such payments shall be satisfied on a first- member) and collections shall take a case, the request for involuntary come, first-served basis. precedence over these involuntary allotment may be approved only to (iv) Payments shall continue until the allotments. satisfy that portion of the judgment that judgment is satisfied or until canceled remains in effect and unsatisfied; the or suspended. Appendix A to Part 113—Certificate of Compliance remainder of the request shall be (A) DFAS shall collect the total denied. judgment, including interest when I certify that the (Name of Creditor) upon (5) There is a legal impediment to the awarded by the judgment. Within 30 extending credit establishment of the involuntary days following collection of the amount to lllllllllllllllllll allotment (for example, the judgment of the judgment, including interest as on lllllllllllllllllll debt has been discharged in bankruptcy, annotated by the applicant in Section I (Date) the judgment debtor has filed for of DD Form 2654, the applicant may complied with the full disclosure protection from the creditors under the submit a final statement of interest that requirements of the Truth-in-Lending Act bankruptcy laws of the United States, accrued during the pay-off period. This and Regulation Z, and the Fair Debt final statement of interest request must Collection Practices Act (or the laws and the applicant is not the judgment regulations of State of llllllllll), creditor nor a proper successor in be accompanied by a statement of and that the attached statement is a true copy interest to that creditor, or the applicant account showing how the applicant of the general and specific disclosures has been enjoined by a Federal or State computed the interest amount. DFAS provided the obligor as required by law. court from enforcing the judgment debt). will collect this post-application interest I further certify that the Standards of (6) The member’s pay is already provided it is an amount owed pursuant Fairness set forth in DoD Directive 1344.9 1 subject to one or more involuntary to the judgment. DFAS shall not accept have been applied to the consumer credit allotments or garnishments that equal any further interest requests. transaction to which this form refers. (If the (B) Interest or other costs associated unpaid balance has been adjusted as a the lesser of 25 percent of the member’s consequence, the specific adjustments in the pay subject to involuntary allotment or with the debt forming the basis for the finance charge and the annual percentage the maximum percentage of pay subject judgment, but not included as an rate should be set forth below.) to garnishment proceedings under the amount awarded by the judgment, shall lllllllllllllllllllll applicable State law. not be paid to applicants for involuntary (Adjustments) (7) The applicant has abused the allotments. lllllllllllllllllllll processing privilege (e.g., an applicant, (v) If the member is found not to be lllllllllllllllllllll having been notified of the requirements entitled to money due from or payable lllllllllllllllllllll of this part, repeatedly refuses or fails to by the Military Services, the designated (Date of Certification) comply therewith). official shall return the application and lllllllllllllllllllll (8) Or other appropriate reasons that advise the applicant that no money is (Signature of Creditor or Authorized must be clearly explained to the due from or payable by the Military Representative) applicant. Service to the member. When it appears lllllllllllllllllllll (D) In all cases other than as described that pay subject to an involuntary (Street) in § 113.6(b)(2)(v) (A) and (C), the allotment is exhausted temporarily or lllllllllllllllllllll designated DFAS official shall approve otherwise unavailable, the applicant (City, State and Zip Code) the involuntary allotment application shall be told why and for how long that and establish an involuntary allotment money is unavailable, if known. Appendix B to Part 113—Standards of against the pay subject to involuntary Involuntary allotments shall be canceled Fairness allotment of the member. on or before the date a member retires, 1. No finance charge contracted for, made, (vi) The designated DFAS official is discharged, or is released from active or received under any contract shall be in shall, at any time after establishing an duty. The designated DFAS official shall excess of the charge that could be made for involuntary allotment, cancel or such contract under the law of the place in notify the applicant of the reason for which the contract is signed in the United suspend such allotment and notify the cancellation. States by the military member. applicant of that cancellation if the (vi) Upon receiving notice from an member concerned, or someone acting applicant that a judgment upon which 4 See footnote 1 to § 113.3(b). on his or her behalf, submits legally an involuntary allotment is based has 1 Copies may be obtained, at cost, from the sufficient proof, by affidavit or been satisfied, vacated, modified, or set National Technical Information Service, 5285 Port otherwise, that the allotment should not aside, the designated DFAS official shall Royal Road, Springfield, VA 22161. 1728 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations a. In the event a contract is signed with a security will be located. Removal of the be in equal or substantially equal amounts, U.S. company in a foreign country, the security shall not accelerate payment of the and installments shall be successive and of lowest interest rate of the State or States in obligation. equal or substantially equal duration. which the company is chartered or does 5. No late charge shall be made in excess 9. If the security for the debt is repossessed business shall apply. of 5 percent of the late payment, or $5.00, and sold in order to satisfy or reduce the b. However, interest rates and service whichever is the lesser amount, or as debt, the repossession and resale shall be charges applicable to overseas military provided by law or applicable regulatory governed by the laws of the State in which banking facilities shall be as established by agency determination. Only one late charge the security is requested. the Department of Defense. may be made for any tardy installment. Late 10. A contract for personal goods and 2. No contract or loan agreement shall charges shall not be levied where an services may be terminated at any time before provide for an attorney’s fee in the event of allotment has been timely filed, but payment default unless suit is filed, in which event of the allotment has been delayed. Late delivery of the goods or services without the fee provided in the contract shall not charges by overseas banking facilities are a charge to the purchaser. However, if goods exceed 20 percent of the obligation found matter of contract with the Department of made to the special order of the purchaser due. No attorney fees shall be authorized if Defense. result in preproduction costs, or require the attorney is a salaried employee of the 6. The obligation may be paid in full at any preparation for delivery, such additional holder. time or through accelerated payments of any costs shall be listed in the order form or 3. In loan transactions, defenses that the amount. There shall be no penalty for contract. debtor may have against the original lender prepayment. In the event of prepayment, that a. No termination charge shall be made in or its agent shall be good against any portion of the finance charges that has inured excess of this amount. Contracts for delivery subsequent holder of the obligation. In credit to the benefit of the seller or creditor shall at future intervals may be terminated as to transactions, defenses against the seller or its be prorated on the basis of the charges that the undelivered portion. agent shall be good against any subsequent would have been ratably payable had finance b. The purchaser shall be chargeable only holder of the obligation, provided that the charges been calculated and payable as equal for that proportion of the total cost that the holder had actual knowledge of the defense periodic payments over the terms of the goods or services delivered bear to the total or under conditions where reasonable contract, and only the prorated amount to the goods called for by the contract. (This is in inquiry would have apprised the holder of date of prepayment shall be due. As an addition to the right to rescind certain credit this fact. alternative, the ‘‘Rule of 78’’ may be applied. transactions involving a security interest in 4. The military member shall have the right 7. If a charge is made for loan insurance real estate provided by the Truth in Lending to remove any security for the obligation protection, it must be evidenced by delivery Act (15 U.S.C. 1601 note, 1601–1614, 1631– beyond State or national boundaries if the of a policy or certificate of insurance to the 1646, 1661–1665a, 1666–1666j, and 1667– military member or family moves beyond military member within 30 days. 1667e) and Federal Reserve Board Regulation such boundaries under military orders and 8. If the loan or contract agreement Z (12 CFR 226)). notifies the creditor, in advance of the provides for payments in installation, each removal, of the new address where the payment, other than the down payment, shall BILLING CODE 5000±04±M Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations 1729 1730 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations 1731 1732 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations 1733 1734 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations 1735 [FR Doc. 95–224 Filed 1–4–95; 8:45 am] SUMMARY: Today’s action revises the the area under section 175A of the Act. BILLING CODE 5000±04±C motor vehicle Inspection/Maintenance Section 175A in turn requires states that Program Requirements final rule submit a redesignation request to submit promulgated on November 5, l992. EPA a plan, and any additional measures if Department of the Army proposed these revisions on June 28, necessary, for maintenance of the air l994, allowing stakeholders ample quality standard, for at least a 10 year 32 CFR Parts 536 and 537 opportunity for review and comment, period following EPA’s final approval of and is taking final action on the the redesignation. It also requires the The Army Claims System revisions to include additions and plan to include contingency provisions AGENCY: Department of the Army, DOD. modifications, regarding State to ensure prompt correction of any ACTION: Final rule. Implementation Plan submissions for violation of the standard which occurs states with nonattainment areas that are after redesignation. The contingency SUMMARY: This document withdraws the in a position to redesignate to measures must include a provision amendments to 32 CFR Parts 536 and attainment. The revisions specify SIP requiring the state to implement 537, The Army Claims System; requirements only for areas that are measures which were contained in the published in the Federal Register subject to the basic Inspection/ State Implementation Plan (SIP) prior to Monday, December 12, 1994 (59 FR Maintenance program requirement and redesignation as an attainment area. 64016) and reinstates Parts 536 and 537 that otherwise qualify for redesignation Today’s action revises subpart S of as published in the Code of Federal from nonattainment to attainment for part 51 of title 40 of the Code of Federal Regulations revised as of July 1, 1994. the carbon monoxide or ozone national Regulations (subpart S) to address Reasons for this rescission are ambient air quality standards. This rule Inspection/Maintenance (I/M) program changes to legal references and other allows such areas to defer adoption and requirements for areas subject to the editorial changes. Publication of the implementation of some of the Act’s basic I/M requirements and that December 12, 1994 document as a Final otherwise applicable requirements otherwise would qualify for and Rule was premature. This document established in the original promulgation ultimately obtain approval by EPA of will not be resubmitted as a Final Rule of the Inspection/Maintenance rule. It is redesignation requests to attainment. an appropriate time to take this action until such time as all legal reviews have This final rule adds a new paragraph to since the rule applies only to areas that been completed and has been the regulation pertaining to State by virtue of their air quality authenticated at the Army Secretariat Implementation Plan (SIP) submissions classification are required to implement level. for areas required to implement a basic a basic I/M program and that submit, EFFECTIVE DATE: December 12, 1994. I/M program that are submitting and and otherwise qualify for, a ADDRESSES: Director, U.S. Army Claims otherwise qualify for approval of a redesignation request. Service, Building 4411, Llewellyn Ave., redesignation request. Areas subject to ATTN: LTC Michael Millard, Fort EFFECTIVE DATE: The effective date of basic I/M fall into several categories. Meade, Maryland 20755–5360. this rule is January 5, 1995. There are basic areas that will be ADDRESSES: FOR FURTHER INFORMATION CONTACT: Materials relevant to this submitting redesignation requests that LTC Michael Millard, (303) 677–7009, rulemaking are contained in Public do not currently have I/M programs, or Ext. 202 or the undersigned at (703) Docket No. A–93–21. The docket is have either a basic program 325–6277. located at the Air Docket, room M–1500 implemented pursuant to the l977 (LE–131), Waterside Mall SW., Kenneth L. Denton, amendments to the Act or a basic Washington, DC 20640. The Docket may Army Federal Register Liaison Officer. program required to be upgraded to be inspected from 8 a.m. to 4:30 p.m. on meet the requirements of EPA’s I/M Accordingly, the amendments to 32 weekdays. A reasonable fee may be regulations. For purposes of today’s CFR parts 536 and 537 published charged for coping docket material. final rulemaking, EPA is using the word December 12, 1994, at 59 FR 64016, are FOR FURTHER INFORMATION CONTACT: ‘‘upgraded’’ to refer to a basic I/M withdrawn and the text of 32 CFR parts Eugene J. Tierney, Office of Mobile program that meets all the basic I/M 536 and 537 as published in the Code Sources, National Vehicle and Fuel program requirements of the I/M rule, of Federal Regulations revised as of July Emissions Laboratory, 2565 Plymouth subpart S, part 5l, title 40 of the Code 1, 1994, is reinstated. Road, Ann Arbor, Michigan, 48105. of Federal Regulations in addition to [FR Doc. 95–183 Filed 1–4–95; 8:45 am] (313) 668–4456. pre-l990 Clean Air Act I/M program BILLING CODE 3710±08±M SUPPLEMENTARY INFORMATION: Section policy. This rule applies only to areas l07(d)(3)(E) of the Clean Air Act, as that by virtue of their air quality amended in l990 (the Act), states that an classification are required to implement ENVIRONMENTAL PROTECTION area can be redesignated to attainment a basic I/M program, and that submit, AGENCY if the following conditions are met: EPA and otherwise qualify for a has determined that the National redesignation request.Pursuant to 40 CFR Part 51 ambient air quality standards have been sections 182(a)(2)(B)(i) and 182(b)(4) of attained; EPA has fully approved the the Act, basic I/M areas must submit a [FRL±5132±7] applicable implementation plan under SIP revision that includes any RIN 2060±AE21 section 110(k); EPA has determined that ‘‘provisions necessary to provide for a the improvement in air quality is due to vehicle inspection and maintenance Inspection/Maintenance Program permanent and enforceable reductions program’’ of no less stringency than RequirementsÐProvisions for in emissions due to the implementation either the program that was in the SIP Redesignation plan and other permanent and at the time of passage of the Act or the AGENCY: Environmental Protection enforceable reductions; the State has minimum basic program requirements, Agency. met all applicable requirements of whichever is more stringent. For section 110 and part D; and, EPA has purposes of this final rule EPA ACTION: Final rule. fully approved a maintenance plan for interprets the statutory language of 1736 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations section 182(a)(2)(B)(i) and section needed to implement the program. relevant to the particular types of l82(b)(4) as providing a degree of NRDC argues that EPA ignores the submissions. 1 flexibility compared with the statutory impact of the word ‘‘any’’ and claims To be complete, a plan submission language in section l82(c)(3), which that Congress used this term to require typically must supply the elements requires enhanced I/M areas to submit that the State submit ‘‘all’’ that is necessary to comply with the provisions a SIP revision ‘‘to provide for an necessary to put a basic I/M program in of the CAA, including, among other enhanced program’’. For areas that place. NRDC further argues that without things, specific enforceable measures. otherwise qualify for redesignation to adopted regulations a SIP is incomplete 40 CFR part 51, appendix V. section attainment and ultimately obtain EPA and cannot be approved. 2.l(d). As discussed earlier, however, approval to be redesignated, EPA is EPA disagrees with NRDC’s EPA believes that it may provide that today amending Subpart S to allow such comments. The plain language of the adopted regulations are not necessary to areas to be redesignated if they submit statute requires that each SIP include meet the statutory requirements of a SIP that contains the following four ‘‘any provisions necessary to provide sections 182(a)(2)(B)(i) and 182(b)(4) of elements: (1) Legal authority for a basic for’’ the required I/M program. It is the CAA. EPA interprets these sections I/M program (or an enhanced program, EPA’s view that what is ‘‘necessary’’ to to provide that in some circumstances as defined in this final rule, if the state provide for the required I/M program areas should be allowed to submit plans chooses to opt up), meeting all of the depends on the area in question. For which lack specific enforceable requirements of Subpart S such that areas which have attained the ambient measures, as long as the SIP includes implementing regulations can be standard with the benefit of only the provisions necessary to provide for the adopted without further legislation; (2) current program, or no program at all, required program. It makes little sense a request to place the I/M plan or EPA does not believe it is ‘‘necessary’’ for Congress to provide such flexibility upgrades, as defined in this rule, (as to revise or adopt new regulations and under these sections, only to require applicable) in the contingency measures undertake other significant planning that such submissions be summarily portion of the maintenance plan upon efforts which are not essential for clean rejected on the grounds of redesignation as described in the fourth air, and which would not be incompleteness. A reasonable reading of element below; (3) a contingency implemented after redesignation the statute would give effect to both measure to go into effect as soon as a occurred because they are not provisions by permitting areas that triggering event occurs, consisting of a ‘‘necessary’’ for maintenance. For such otherwise qualify for, and ultimately commitment by the Governor or the areas that would otherwise be eligible receive, redesignation to have their Governor’s designee to adopt for redesignation to attainment, EPA redesignation requests determined regulations to implement the I/M believes that a contingency plan that ‘‘complete’’ if the submission contains program in response to the specified includes already enacted legislative ‘‘provisions necessary to provide for’’ triggering event; and (4) a commitment authority and provides for adoption of the I/M program. Thus, as long as such that includes an enforceable schedule an I/M program on an expeditious an area submits a SIP that contains the for adopting and implementing the I/M schedule if the area develops a problem four elements discussed in this rule, program, including appropriate is the only set of provisions necessary EPA will deem that submission milestones, in the event the contingency to provide for an I/M program. ‘‘complete’’ only for the purposes of measure is triggered (milestones shall be Although for most purposes EPA will determining whether an area seeking defined by states in terms of months continue to interpret ‘‘provisions redesignation has met the basic I/M since the triggering event). EPA believes necessary to provide for’’ a basic I/M requirements. that for areas that otherwise qualify for program to require full adoption and NRDC also commented that Congress redesignation a SIP meeting these four expeditious implementation of such a did not intend the phrase ’any requirements would satisfy the program it is appropriate, based on the provisions necessary’ to justify a mere obligation to submit ‘‘provisions to flexible language provided in section commitment to adopt I/M regulations at provide’’ for a satisfactory I/M program, 182(a)(2)(B)(i) and 182(b)(4) as some later date. NRDC cites Natural as required by the statute. compared with section l82(c)(3), to Resources Defense Council v. With these amendments the revise the SIP revision requirements Environmental Protection Agency, 22 determination of whether a state fulfills applicable to basic I/M areas that F.3d 1125 (D.C. Cir. 1994) (‘‘NRDC v. the basic I/M SIP requirements will otherwise qualify for, and ultimately EPA’’) for further support of their depend, for the purposes of receive, redesignation. argument. redesignation approval only, on whether Contrary to NRDC’s assertions, a SIP As discussed in the proposal, in the state meets the four requirements revision applicable to basic I/M areas NRDC v. EPA, 22 F.3d 1125 (D. C. Cir. listed above. EPA believes that it is that otherwise qualify for, and l994) the D. C. Court of Appeals held permissible to interpret the basic I/M ultimately receive, redesignation would that EPA did not have authority to requirement to provide this flexibility meet the minimum completeness construe section ll0(k)(4) to authorize and that it should apply only for the criteria without adopted regulations. conditional approval of an I/M limited purpose of considering a EPA promulgated criteria setting forth committal SIP that contains no specific redesignation request to attainment. the minimum criteria necessary for any substantive measures. A premise of the submittal to be considered complete. 40 case is that I/M SIP submissions are Summary of Comments CFR part 51, appendix V. However, EPA required to have fully adopted rules. In EPA received comments from the recognizes that not all of the listed Natural Resources Defense Council criteria are necessarily applicable to all 1 Emission inventories required pursuant to 42 (NRDC) opposing the proposal to of the various types of submissions U.S.C. 7511a(a)(1) for ozone nonattainment areas are also an example of a required submittal that by redesignate an area as in attainment which require a completeness definition could never satisfy all of the when such an area has not yet determination. Accordingly, EPA completeness criteria. As with committal SIPs, submitted regulations for a basic I/M interprets the completeness criteria to emission inventories are not in the form of program. NRDC argues that the phrase apply only those criteria that are regulations and do not include other technical items identified in the completeness criteria such ‘‘any provisions necessary’’ plainly as emission limits or test methods. 40 CFR part 51, encompasses any adopted regulations appendix V, section 2.1(d), (g). Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations 1737 today’s rule, EPA continues to interpret section l72(c)(9) requires that Paperwork Reduction Act section 182 as generally requiring I/M contingency measures for Today’s rule places no information programs to have fully adopted rules. nonattainment plans ‘‘take effect in any collection or record-keeping burden on However, EPA here is reinterpreting the such case without further action by the respondents. Therefore, an information relevant statutory sections to permit an State or the Administrator.’’ Since 175A collection request has not been prepared exception to this general requirement contains no such requirement that the and submitted to the Office of for areas otherwise qualifying for contingency measures take effect Management and Budget (OMB) under redesignation to attainment. Based on without further action, it is clear that the Paperwork Reduction Act U.S.C. this interpretation, the SIPs for states Congress did not intend to require 3501 et seq. that otherwise qualify for redesignation contingency measures under section may receive full approval, not 175A to contain fully adopted programs. Judicial Review conditional approval under section If an area did not require adoption or Under section 307(b)(1) of the Act, ll0(K)(4),if they contain legislative implementation of an I/M program in EPA finds that these regulations are of authority for, and a commitment to order to otherwise qualify to be national applicability. Accordingly, adopt, an I/M program in their redesignated to attainment, EPA judicial review of this action is available contingency plan. Thus, the court’s believes it would be a wasteful exercise only by the filing of a petition for review holding in NRDC v. EPA is not and impose needless costs to force states in the United States Court of Appeals implicated here. to go through full adoption of for the District of Columbia within sixty Without these amendments, states regulations only to have these days of publication of this action in the that are being redesignated to regulations used as a contingency Federal Register. attainment would have to adopt a full I/ measure once the redesignation is M program for the purpose of obtaining Administrative Designation and approved. full approval of their SIPs as meeting all Regulatory Analysis In today’s action, it should be applicable SIP requirements, which is a Under Executive Order 12866, (58 FR understood that, pursuant to section prerequisite for approval of a 51735 (October 4, 1993)) the Agency 175A(c), while EPA considers the redesignation request. Once must determine whether the regulatory redesignation request, the state shall be redesignated, these areas could action is ‘‘significant’’ and therefore required to continue to meet all the discontinue implementation of this subject to OMB review and the requirements of this subpart. This program (assuming it was not needed requirements of the Executive Order. includes the submission of another SIP for maintenance of the ozone or CO The Order defines ‘‘significant standard) as long as it was converted to revision meeting the existing regulatory action’’ as one that is likely a contingency measure meeting all the requirements for fully adopted rules and to result in a rule that may: requirements of EPA redesignation the specific implementation deadline policy. Section 175A(d) provides that applicable to the area as required under (1) Have an annual effect on the each plan revision contain contingency 40 CFR 51.372 of the I/M rule. If the economy of $100 million or more or adversely affect in a material way the provisions necessary to assure that the state does not comply with these economy, a sector of the economy, State will promptly correct any requirements it shall be subject to productivity, competition, jobs, the violation of the standard which occurs sanctions pursuant to section l79. environment, public health or safety, or after the redesignation of the area to Because the possibility for sanctions State, local, or tribal governments or attainment. These provisions must exists, states which do not have a solid communities; include a requirement that the state will basis for approval of the redesignation implement all measures which were (2) Create a serious inconsistency or request and maintenance plan shall otherwise interfere with an action taken contained in the SIP for the area before proceed to fully prepare and plan to redesignation. There are four possible or planned by another agency; implement a basic I/M program that (3) Materially alter the budgetary scenarios under which an area can meets all the requirements of subpart S. submit a redesignation request: (1) impact of entitlement, grants, user fees, Areas without operating I/M programs; The SIP revision must demonstrate or loan programs or the rights and (2) areas with operating I/M programs that the performance standard in either obligations of recipients thereof; or that continue operation without 40 CFR 53.351 or 40 CFR 51.352 will be (4) Raise novel legal or policy issues upgrades; (3) areas with operating I/M met using an evaluation date (rounded arising out of legal mandates, the programs; and (4) areas with operating to the nearest January for carbon President’s priorities, or the principles I/M programs that are discontinued. A monoxide and July for hydrocarbons) set forth in the Executive Order. detailed explanation of each scenario is seven years after the trigger date. It has been determined that this rule in the proposal. Emission standards for vehicles subject is not a significant regulatory action NRDC commented that the CAA does to an IM240 test may be phased in under the terms of Executive Order not authorize conversion of I/M during the program but full standards l2866 and is, therefore exempt from programs to contingency measures and must be in effect for at least one OMB review. This rule would only that section 175A imposes a mandatory complete test cycle before the end of the relieve states of some regulatory duty on an area that is redesignated to five year period. All other requirements requirements, not add costs or otherwise continue the emission control programs shall take effect within 24 months of the adversely affect the economy. the area adopted prior to redesignation. trigger date. Furthermore, a state may Pursuant to section 605(b) of the NRDC further argued that failure to not discontinue implementation of an I/ Regulatory Flexibility Act, 5 U.S.C. adopt regulations will result in more air M program until the redesignation 605(b), the Administrator certifies that pollution. request and maintenance plan (that does this rule will not have a significant EPA disagrees. Section 175A requires not rely on reductions from I/M) are economic impact on a substantial that the state ‘‘promptly’’ correct any finally approved. If the redesignation number of small entities and, therefore, violation of the standard, but does not request is approved, any sanctions not subject to the requirement of a mandate that the contingency measures already imposed, or any sanctions clock Regulatory Impact Analysis. A small be fully adopted programs. In contrast, already triggered, would be terminated. entity may include a small government 1738 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations entity or jurisdiction. A small upgraded) into the contingency 40 CFR Part 52 government jurisdiction is defined as measures portion of the maintenance [PA32±1±5966; FRL±5126±1] ‘‘governments of cities, counties, towns, plan upon redesignation. townships, villages, school districts, or (3) A contingency measure consisting Approval and Promulgation of Air special districts, with a population of of a commitment by the Governor or the Quality Implementation Plans; less than 50,000.’’ This certification is Governor’s designee to adopt Commonwealth of Pennsylvania Small based on the fact that the I/M areas regulations to implement the required I/ Business Assistance Program impacted by the rule do not meet the definition of a small government M program in response to a specified AGENCY: Environmental Protection jurisdiction, that is, ‘‘governments of triggering event. Such contingency Agency (EPA). measures must be implemented on the cities, counties, towns, townships, ACTION: Final rule. villages, school districts, or special trigger date, which is a date determined districts, with a population of less than by the State to be no later than the date SUMMARY: EPA is approving a State 50,000.’’ EPA notifies the state that it is in Implementation Plan (SIP) revision violation of the ozone or carbon submitted by the Commonwealth of List of Subjects in 40 CFR Part 51 monoxide standard. Pennsylvania. This revision establishes Environmental protection, (4) A commitment that includes an a Small Business Stationary Source Administrative practice and procedure, enforceable schedule for adoption and Technical and Environmental Compliance Assistance Program Air pollution control, Carbon monoxide, implementation of the I/M program, and (PROGRAM). This SIP revision was Intergovernmental relations, Lead, appropriate milestones, including the submitted by the State to satisfy the Motor vehicle pollution, Nitrogen oxide, items in paragraphs (a)(l)(ii) through Federal mandate of the Clean Air Act Ozone, Particulate matter, Reporting (a)(l)(vii) of this section. In addition, the and recordkeeping requirements, Sulfur (‘‘the CAA’’ or ‘‘the Act’’) which lists schedule shall include the date for Oxides, Volatile organic compounds. specific program criteria to ensure that submission of a SIP meeting all of the Dated: December 23, 1994. small businesses have access to the requirements of this subpart, excluding technical assistance and regulatory Carol M. Browner, schedule requirements. Schedule Administrator. information necessary to comply with milestones shall be listed in months the CAA. The intended effect of this For the reasons set out in the from the trigger date, and shall comply action is to approve this SIP revision. preamble part 51 of title 40 of the Code with the requirements of paragraph (e) This action is being taken under section of Federal Regulations is amended to of this section. SIP submission shall 110 of the CAA. read as follows: occur no more than l2 months after the DATES: This action will become effective trigger date as specified by the State. PART 51ÐREQUIREMENTS FOR March 6, 1995, unless adverse PREPARATION, ADOPTION, AND (d) Basic areas continuing operation comments received on or before SUBMITTAL OF IMPLEMENTATION of I/M programs as part of their February 6, 1995, that adverse or critical PLANS maintenance plan without implemented comments will be submitted. If the upgrades shall be assumed to be 80% as effective date is delayed, timely notice l. The authority citation for part 51 is effective as an implemented, upgraded will be published in the Federal revised as follows: version of the same I/M program design, Register. Authority: 42 U.S. C. 740l(a)(2), 7475(e), unless a state can demonstrate using ADDRESSES: Comments may be mailed to 7502(a) and (b). 7503. 9601(a)(1) and 7602. operating information that the I/M Thomas J. Maslany, Director, Air, 2. Section 51.372 is amended by program is more effective than the 80% Radiation, and Toxics Division (3AT00), adding new paragraphs (c), (d) and (e) level. U.S. Environmental Protection Agency, to read as follows: Region III, 841 Chestnut Building, (e) SIP submittals to correct Philadelphia, Pennsylvania 19107. § 51.372 State implementation plan violations. SIP submissions required submissions. Copies of the documents relevant to this pursuant to a violation of the ambient action are available for public * * * * * ozone or CO standard (as discussed in (c) Redesignation requests. Any inspection during normal business § 51.372(c)) shall address all of the hours at the Air, Radiation, and Toxics nonattainment area that EPA determines requirements of this subpart. The SIP would otherwise qualify for Division, U.S. Environmental Protection shall demonstrate that performance Agency, Region III, 841 Chestnut redesignation from nonattainment to standards in either § 51.351 or § 51.352 attainment shall receive full approval of Building, Philadelphia, Pennsylvania shall be met using an evaluation date a State Implementation Plan (SIP) 19107; Pennsylvania Department of (rounded to the nearest January for submittal under sections 182(a)(2)(B) or Environmental Resources Bureau of Air carbon monoxide and July for l82(b)(4) if the submittal contains the Quality Control, P.O. Box 8468, 400 following elements: hydrocarbons) seven years after the Market Street, Harrisburg, Pennsylvania trigger date. Emission standards for (1) Legal authority to implement a 17105. vehicles subject to an IM240 test may be basic I/M program (or enhanced if the FOR FURTHER INFORMATION CONTACT: phased in during the program but full state chooses to opt up) as required by Makeba Morris, (215) 597–2923. standards must be in effect for at least this subpart. The legislative authority one complete test cycle before the end SUPPLEMENTARY INFORMATION: for an I/M program shall allow the adoption of implementing regulations of the 5-year period. All other Background without requiring further legislation. requirements shall take effect within 24 Implementation of the provisions of (2) A request to place the I/M plan (if months of the trigger date. The phase- the CAA, will require regulation of no I/M program is currently in place or in allowances of § 51.373(c) of this many small businesses so that areas may if an I/M program has been terminated,) subpart shall not apply. attain and maintain the national or the I/M upgrade (if the existing I/M [FR Doc. 95–254 Filed 1–4–95; 8:45 am] ambient air quality standards (NAAQS) program is to continue without being BILLING CODE 6560±50±F and reduce the emission of air toxics. Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations 1739 Small businesses frequently lack the Section 507(a) of the CAA sets forth will allow sources to download up to technical expertise and financial seven requirements that states must date information regarding regulations resources necessary to evaluate such meet to have an approvable SBAP. Six and other policy documents. regulations and to determine the requirements will be discussed in this The second requirement will be met appropriate mechanisms for section of this document, while the through the outreach and audit compliance. In anticipation of the seventh requirement, establishment of a programs. Pamphlets will contain impact of these requirements on small state Small Business Ombudsman, will information regarding accidental release businesses, section 507 of the CAA be discussed in the next section. prevention and pollution prevention. In requires that states adopt a Small The first requirement is to establish addition, pollution prevention and Business Stationary Source Technical adequate mechanisms for developing, accidental release information will be and Environmental Compliance collecting and coordinating information provided during onsite audits, which Assistance Program (PROGRAM), and concerning compliance methods and may be requested by the small submit this PROGRAM as a revision to technologies for small business businesses. the federally approved SIP. In addition, stationary sources, and programs to The third requirement is to develop a section 507 of the CAA directs EPA to encourage lawful cooperation among compliance and technical assistance oversee these small business assistance such sources and other persons to program for small business stationary programs and report to Congress on further compliance with the CAA. The sources which assists small businesses their implementation. The requirements second requirement is to establish in determining applicable requirements for establishing a PROGRAM are set out adequate mechanisms for assisting small and in receiving permits under the CAA in section 507 of Title V of the CAA. In business stationary sources with in a timely and efficient manner. February 1992, EPA issued Guidelines pollution prevention and accidental Pennsylvania has met this requirement for the Implementation of Section 507 of release detection and prevention, by providing contractor assistance in the the 1990 Clean Air Act Amendments, in including providing information application process. The contractor will order to delineate the federal and state concerning alternative technologies, assist the small business in determining roles in meeting the new statutory process changes, products and methods if a permit is required and provide the provisions, and as a tool to provide of operation that help reduce air source with all applicable permit further guidance to the states on pollution. application forms as well as the proper submitting acceptable SIP revisions. Pennsylvania has met the first interpretation of the application forms. requirement through the use of a In addition, the proactive outreach and On February 1, 1993, the independent contractor, who will reactive technical assistance portion of Commonwealth of Pennsylvania conduct the reactive technical the program, discussed above, will be submitted a SIP revision to EPA in order assistance and proactive outreach used to assure small business will be to satisfy the requirements of Section portion of the program. The DER will informed of the applicable requirements 507. In order to gain full approval, the train the contractor in state and federal in a timely manner. state submittal must provide for each of permitting and enforcement policies. The fourth requirement is to develop the following elements: (1) the The contractor will then have the adequate mechanisms to assure that establishment of a Small Business responsibility of serving as a small businesses stationary sources Assistance Program (SBAP) to provide clearinghouse for information related to receive notice of their rights under the technical and compliance assistance to compliance methods and control Act in such manner and form as to small businesses; (2) the establishment technologies, pollution prevention and assure reasonably adequate time for of a state Small Business Ombudsman to accidental release prevention and such sources to evaluate compliance represent the interests of small business detection. In the reactive portion of the methods and any relevant or applicable stationary sources in connection with program, the contractor will maintain a proposed or final regulation or the implementation of the CAA; and (3) toll free telephone line for small standards issued under the CAA. The the creation of a Compliance Advisory businesses and be responsible for fifth requirement is to develop adequate Panel (CAP) to determine and report on responding to questions raised by small mechanisms for informing small the overall effectiveness of the SBAP businesses. All answers will be verified business stationary sources of their and the state Small Business with the DER prior to issuance. In obligations under the CAA, including Ombudsman. The plan must also addition, the contractor will maintain a mechanisms for referring such sources determine the eligibility of small database of all questions and answers. to qualified auditors or, at the option of business stationary sources for The DER will also monitor permit the State, for providing audits of the assistance in the program. The plan applications and compliance reports, operations of such sources to determine must include the duties, funding and contact trade associations and the EPA compliance with the CAA. Pennsylvania schedule for implementation for the for information regarding the has met these requirements by planning three program components. appropriate compliance techniques for to maintain a toll free telephone line to small businesses and maintain a allow easy access to information Analysis database of this information, which will regarding federal and/or state 1. Small Business Assistance Program be used to advise small businesses of requirements. In addition the State will compliance alternatives. inform affected small businesses, in a Sections 7.7 through 7.9 of the 1992 The contractor, in conjunction with timely manner by the proactive Pennsylvania Air Pollution Control Act, the DER and the small business mechanisms described above. The State authorize the establishment of a Small ombudsman will implement the will provide material, through the Business Assistance Program which proactive outreach portion of the outreach portion of the program on meets the requirements of section 507 of program through the development of environmental auditors to assist small the CAA. In developing the PROGRAM outreach documents (pamphlets and businesses in meeting the requirements submittal, the Commonwealth has brochures, etc.), and seminars for small of CAA. The environmental audit will delegated the majority of its functions to businesses and trade associations. In determine applicable requirements, the Department of Environmental addition, the DER will maintain a compliance status, control options and Resources (DER). computer bulletin board system which pollution prevention alternatives. 1740 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations The sixth requirement is to develop established by the State Air Pollution revision provides a mechanism for procedures for consideration of requests Control Act, Section 7.8. The Committee source inclusion upon approval by EPA. from a small business stationary source will include eleven members, seven of Except for source categories which the for modification of: (A) any work which will be chosen consistent with EPA Administrator or the practice or technological method of the requirements of section 507(e) of the Commonwealth of Pennsylvania compliance, or (B) the schedule of CAA. The four additional members determines (in accordance with sections milestones for implementing such work consist of the Secretary of Commerce, 507(c)(3) (A) and (B)), to have sufficient practices or compliance methods. the Small Business Ombudsman and financial and technical capabilities to Pennsylvania has met this requirement two additional members selected by the meet the requirements of the Act by establishing a mechanism to receive, Governor. without PROGRAM assistance, all small review and process requests for work In addition to establishing the business stationary sources located in practice, compliance method or minimum membership of the CAP, the Pennsylvania will be eligible to receive milestone modifications. The CAA delineates four responsibilities of assistance under the PROGRAM. mechanism provides that the small the Panel: (A) to render advisory Pennsylvania’s PROGRAM criteria for business must submit the request in opinions concerning the effectiveness of defining a ‘‘small business stationary writing to the DER, which will review the SBAP, difficulties encountered and source’’ is substantially equivalent to said request in 30 days and make a the degree and severity of enforcement the criteria listed in Section 507(c)(1) of decision no later than 6 months from actions; (B) to review and assure that the CAA. The Commonwealth has the date of submittal. Requests will be information for small business provided for the extension of eligibility reviewed to ensure that no violation of stationary sources is easily for assistance under the PROGRAM state or federal requirement occur. understandable; (C) to develop and beyond the requirements of Sections disseminate the reports and advisory 2. Ombudsman 507(c)(1)(C–E) with notice and opinions made through the SBAP; and opportunity for public comment as Section 507(a)(3) of the CAA requires (D) to periodically report to EPA provided in Section 7.5 of the the designation of a state office to serve concerning the SBAP’s adherence to the Pennsylvania Air Pollution Control Act. as the Ombudsman for small business principles of the Paperwork Reduction stationary sources. The Pennsylvania Act, the Equal Access to Justice Act, and Summary of SIP Revision Air Pollution Control Act, Section 7.9 the Regulatory Flexibility Act. (Section The Commonwealth of Pennsylvania designates the Department of Commerce 507(e)(1)(B) requires the CAP to report has submitted a SIP revision to house the Office of Small Business on the compliance of the SBAP with implementing each of the PROGRAM Ombudsman. The Ombudsman will be these three statutes. However, since elements required by section 507 of the readily accessible to small businesses state agencies are not required to CAA. The Small Business Assistance and, on their behalf, be authorized to comply with them, EPA believes that Program (SBAP) will be administered by provide reports to and communicate the state PROGRAM must merely the Department of Environmental with state air pollution control require the CAP to report on whether authorities. In addition, the Resources. Program implementation the SBAP is adhering to the general will begin no later than November 1994. Ombudsman will review and handle principles of these Federal Statutes.) complaints from small businesses By this action, EPA is hereby approving Pennsylvania has met these the SIP revision submitted by the regarding improper treatment by the requirements by delegating the above DER, and recommend procedural Commonwealth of Pennsylvania. mentioned duties to the Compliance Accordingly, § 52.2060 is added to 40 changes that may improve relations Advisory Committee, specifically the with small businesses. The Ombudsman CFR part 52, subpart NN in order to SIP submittal states: the Committee will reflect EPA’s approval action and the may sponsor meetings and conferences report on the program’s compliance and work directly with trade fact that it is considered part of the with the requirements of the Paperwork Pennsylvania SIP. associations. Finally, on an annual basis Reduction Act, the Regulatory the Ombudsman must report to the Flexibility Act and the Equal Access to Final Action Governor and State Legislature on the Justice Act and report on the program effectiveness of the PROGRAM, and also EPA is approving the Commonwealth and recommend changes that are of Pennsylvania SIP revision submittal prepare reports evaluating proposed needed as well as new material that may regulations for their economic impact for the establishment of the Small be necessary to improve the Business Assistance Program submitted on small businesses. effectiveness of the program. Ombudsman’s office will be staffed by February 1, 1993. Accordingly, two individuals, an Ombudsman and a 4. Eligibility § 52.2060 is added to 40 CFR part 52, secretary. Section 507(c)(1) of the CAA defines subpart NN—Pennsylvania to reflect EPA’s approval action. EPA has 3. Compliance Advisory Panel the term ‘‘small business stationary source’’ as a stationary source that: reviewed this request for revision of the Section 507(e) of the CAA requires the (A) is owned or operated by a person federally-approved state state to establish a Compliance Advisory who employs 100 or fewer individuals, implementation plan for conformance Panel (the CAP) that must include two (B) is a small business concern as with the CAA including section 507 and members selected by the Governor who defined in the Small Business Act; section 110(a)(2)(E). are not owners or representatives of (C) is not a major stationary source; Nothing in this action should be owners of small businesses; four (D) does not emit 50 tons per year construed as permitting or allowing or members selected by the state (tpy) or more of any regulated pollutant; establishing a precedent for any future legislature who are owners, or represent and request for revision to any state owners, of small businesses; and one (E) emits less than 75 tpy of all implementation plan. Each request for member selected by the head of the regulated pollutants. revision to the state implementation agency in charge of the Air Pollution Under Section 507(c)(2) major sources plan shall be considered separately in Permit Program. The Pennsylvania may petition for admittance to the light of specific technical, economic, Compliance Advisory Committee was PROGRAM. The Pennsylvania SIP and environmental factors and in Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations 1741 relation to relevant statutory and Dated: August 11, 1994. Region IX, 75 Hawthorne Street, San regulatory requirements. W.T. Wisniewski, Francisco, CA 94105. Under the Regulatory Flexibility Act, Acting Regional Administrator, Region III. FOR FURTHER INFORMATION CONTACT: 5 U.S.C. 600 et. seq., EPA must prepare 40 CFR part 52 is amended as follows: Celia Bloomfield (telephone 415/744– a regulatory flexibility analysis 1249), Mail Code A–5–2, U.S. assessing the impact of any proposed or PART 52Ð[AMENDED] Environmental Protection Agency, final rule on small entities. 5 U.S.C. 603 Region IX, Air & Toxics Division, 75 and 604. Alternatively, EPA may certify 1. The authority citation for part 52 Hawthorne Street, San Francisco, CA that the rule will not have a significant continues to read as follows: 94105. impact on a substantial number of small Authority: 42 U.S.C. 7401–7671q. SUPPLEMENTARY INFORMATION: entities. Small entities include small Subpart NNÐPennsylvania businesses, small not-for-profit I. Background and Purpose 2. Section 52.2060 is added to read as enterprises, and government entities Title V of the Clean Air Act (Act), and follows: with jurisdiction over populations of implementing regulations at 40 CFR part less than 50,000. § 52.2060 Small Business Assistance 70 require that states develop and By this action, EPA is approving a Program. submit operating permit programs to state program created for the purpose of On February 1, 1993, the Secretary of EPA by November 15, 1993, and that assisting small businesses in complying the Pennsylvania Department of EPA act to approve or disapprove each with existing statutory and regulatory Environmental Resources submitted a program within 1 year after receiving requirements. The program being plan for the establishment and the submittal. The EPA’s program approved does not impose any new implementation of the Small Business review occurs pursuant to section 502 of regulatory burden on small businesses; Assistance Program as a state the Act and the part 70 regulations, it is a program under which small implementation plan (SIP) revision, as which together outline criteria for businesses may elect to take advantage required by Title V of the Clean Air Act approval or disapproval. Where a of assistance provided by the state. Amendments. EPA approved the Small program substantially, but not fully, Therefore, because EPA’s approval of Business Assistance Program on March meets the requirements of part 70, EPA this program does not impose any new 6, 1995, and made it part of the may grant the program interim approval regulatory requirements on small Pennsylvania SIP. As with all for a period of up to 2 years. If EPA has businesses, the Administrator certifies components of the SIP, Pennsylvania not fully approved a program by 2 years after the November 15, 1993 date, or by that it does not have a economic impact must implement the program as the end of an interim program, it must on any small entities affected. submitted and approved by EPA. establish and implement a Federal This action has been classified as a [FR Doc. 95–259 Filed 1–4–95; 8:45 am] program. Table 2 action for signature by the BILLING CODE 6560±50±P On August 24, 1994, EPA proposed Regional Administrator under the interim approval of the operating procedures published in the Federal permits program for Washoe County, Register on January 19, 1989 (54 FR 40 CFR Part 70 Nevada. See 59 FR 43523. The August 2214–2225), as revised by an October 4, 24, 1994 Federal Register document [AD±FRL±5134±2] 1993 memorandum from Michael H. also proposed approval of Washoe’s Shapiro, Acting Assistant Administrator Clean Air Act Final Interim Approval of interim mechanism for implementing for Air and Radiation. The OMB has the Operating Permits Program; section 112(g) and program for exempted this regulatory action from Washoe County District Health delegation of section 112 standards as E.O. 12866 review. Department, Nevada promulgated. Public comment was Under section 307(b)(1) of the Clean solicited on these proposed actions. Air Act, petitions for judicial review of AGENCY: Environmental Protection EPA received one comment on the this action to approve the Pennsylvania Agency (EPA). section 112(g) proposal and is Small Business Stationary Source ACTION: Final rule. responding to that comment in this Technical and Environmental document and in a separate ‘‘Response Compliance Assistance Program must be SUMMARY: The EPA is promulgating to Comments’’ document that is filed in the United States Court of interim approval of the operating available in the docket. The proposed Appeals for the appropriate circuit by permits program submitted by the actions have not been altered as a result March 6, 1995. Filing a petition for Washoe County District Health of public comment or for any other reconsideration by the Administrator of Department (Washoe or District) for the reason. Hence, this final rule is granting this final rule does not affect the finality purpose of complying with Federal interim approval to Washoe’s operating of this rule for the purposes of judicial requirements that mandate that states permits program and approving the review nor does it extend the time develop, and submit to EPA, programs 112(g) and 112(l) mechanisms noted within which a petition for judicial for issuing operating permits to all above. major stationary sources, and to certain review may be filed, and shall not II. Final Action and Implications postpone the effectiveness of such rule other sources. or action. This action may not be EFFECTIVE DATE: March 6, 1995. A. Analysis of State Submission challenged later in proceedings to ADDRESSES: Copies of the District’s Washoe’s title V operating permits enforce its requirements. (See section submittal and other supporting program was submitted by the Nevada 307(b)(2).) information used in developing the final Division of Environmental Protection, List of Subjects in 40 CFR Part 52 interim approval are available for on behalf of Washoe, on November 18, inspection (docket number NV–WSH– 1993 and found to be complete on Environmental protection, Air 94–1–OPS) during normal business January 13, 1994. The regulations that pollution control, Small business hours at the following location: U.S. comprise the program were adopted by assistance program. Environmental Protection Agency, the Washoe County District Board of 1742 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations Health on October 20, 1993. EPA implementing section 112(g) prior to the of MACT in such a case even if review proposed interim approval, in promulgation of final EPA regulations under its own preconstruction review accordance with § 70.4(d), on August (See June 28, 1994 memorandum program would not be triggered. 24, 1994 (59 FR 43523) on the basis that entitled, ‘‘Guidance for Initial C. Interim Approval and Implications the program ‘‘substantially meets’’ part Implementation of Section 112(g),’’ 70 requirements. The analysis in the signed by John Seitz, Director of the 1. Title V Operating Permits Program proposed document remains unchanged Office of Air Quality Planning and The EPA is granting interim approval and will not be repeated in this final Standards.) EPA has issued guidance, in to the operating permits program document. The program deficiencies the form of a proposed rule, which may submitted to EPA by the Nevada be used to determine whether a physical identified in the proposed document, Division of Environmental Protection, and outlined below, also remain or operational change at a source is not on behalf of Washoe, on November 18, unchanged and must be corrected for a modification either because it is below 1993. The District must make the the District to have a fully approvable de minimis levels or because it has been following changes to receive full program. offset by a decrease of more hazardous approval: At the time of proposal, EPA believed emissions. See 59 FR 15004 (April 1, (1) Revise insignificant activity that an implementation agreement 1994). The EPA believes the proposed provisions so that they comply with would be completed prior to final rule provides sufficient guidance to § 70.5(c). Specifically, rule 030.905(B)(3) interim approval. EPA and Washoe have Washoe and sources until such time as must state that any activity at a title V not yet finalized the implementation EPA’s section 112(g) rulemaking is facility that is subject to an applicable agreement, however, but are working to finalized. do so as soon as practicable. The EPA is aware that Washoe lacks requirement may not qualify as an As discussed in the proposed a program designed specifically to insignificant activity. Because Washoe document, Washoe has authority under implement section 112(g). However, defines insignificant activities by size, State and local law to issue a variance Washoe does have authority to regulate both rule 030.020(C)(4) and the from State and local requirements. The hazardous air pollutants (HAP) in its application form must require the EPA would like to reiterate that the preconstruction review program, and applicant to list all insignificant Agency has no authority to approve hence, the preconstruction review activities in enough detail to determine provisions of state or local law that are program can serve as a procedural applicability and fees, and to impose inconsistent with the Act, and EPA does vehicle for rendering a case-by-case any applicable requirements. not recognize the ability of a permitting MACT or offset determination federally (2) Revise 030.020 to state that each authority to grant relief from the duty to enforceable. The EPA believes Washoe’s application must contain the following comply with a federally enforceable part preconstruction review program will be information: (1) Description of any 70 permit, except where such relief is adequate because it will allow Washoe processes and products associated with granted through procedures allowed by to select control measures that would alternate scenarios (§ 70.5(c)(2)); (2) part 70. meet MACT, as defined in section 112, description of compliance monitoring and incorporate those measures into a devices or activities (§ 70.5(c)(3)(v)); (3) B. Public Comment federally enforceable preconstruction when emissions trading provisions are EPA received one public comment permit. By approving Washoe’s requested by a source, proposed regarding the proposed approval of preconstruction review program under replicable procedures and permit terms Washoe’s preconstruction permitting the authority of title V and part 70, EPA (§ 70.4(b)(12)(iii)); and (4) a statement program for the purpose of is clarifying that it may be used for the that the source will, in a timely manner, implementing section 112(g) during the purpose of implementing section 112(g) meet all applicable requirements that transition period between title V during the transition period. will become effective during the permit approval and adoption of a District rule One consequence of the fact that term (§ 70.5(c)(8)). EPA has also noted implementing EPA’s section 112(g) Washoe lacks a program designed in the Technical Support Document regulations. In opposition to the specifically to implement section 112(g) recommended revisions to Washoe’s proposed action, one commenter argued is that the applicability criteria found in permit application form so that the form that Washoe should not, and cannot, its preconstruction review program may will better reflect the information implement section 112(g) until: (1) EPA differ from those in section 112(g). required by regulation. These has promulgated a section 112(g) However, whether a particular source recommended revisions, however, are regulation; and (2) the District has a change qualifies as a modification, not required for full approval. In section 112(g) program in place. construction, or reconstruction for addition, rule 030.020 must clearly EPA disagrees with the commenter’s section 112(g) purposes will be require that any application form, contention that section 112(g) does not determined according to the statutory report, or compliance certification take effect until after EPA has provisions of section 112(g), using the submitted in the permit application promulgated implementing regulations. proposed rule as guidance. As noted in include a certification based on The statutory language in section the June 28, 1994 guidance, EPA intends information and belief formed after 112(g)(2) prohibits the modification, to defer wherever possible to a state’s reasonable inquiry. (§ 70.5(d)) construction, or reconstruction of a judgement regarding applicability (3) Add a provision to the rule that source after the effective date of a title determinations. This deference must be imposes a general duty on the permit V program unless MACT (determined subject to obvious limitations. For applicant to submit supplementary facts on a case-by-case basis, if necessary) is instance, a physical or operational or corrected information upon becoming met. The plain meaning of this change resulting in a net increase in aware of any failure to submit relevant provision is that the prohibition takes HAP emissions above 10 tons per year facts or submittal of incorrect effect on the effective date of title V could not be viewed as a de minimis information. (§ 70.5(b)) regardless of whether EPA or a state has increase under any interpretation of the (4) Revise 030.930 to provide public promulgated implementing regulations. Act. The EPA would expect Washoe to notice ‘‘by other means if necessary to The EPA has acknowledged that states issue a preconstruction permit assure adequate notice to the affected may encounter difficulties containing a case-by-case determination public.’’ (§ 70.7(h)(1)) Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations 1743 (5) Revise 030.960(C)(8) to state that the expiration of that 18-month period, duration and will expire 12 months after the certifications must be based on EPA will be required to apply one of the EPA promulgates section 112(g) information and belief formed after sanctions in section 179(b) of the Act, regulations. reasonable inquiry. (§ 70.6(c)(1) and which will remain in effect until EPA § 70.5(d)) determines that Washoe has corrected 4. Program for Delegation of Section 112 (6) Revise 030.970(B) to state that the deficiency by submitting a complete Standards as Promulgated schedules for compliance shall resemble corrective program. Moreover, if the The EPA is approving under section and be at least as stringent as that Administrator finds a lack of good faith 112(l)(5) and 40 CFR section 63.91 contained in any judicial consent decree on the part of Washoe, both sanctions Washoe’s program for receiving or administrative order. under section 179(b) will apply after the (§ 70.5(c)(8)(iii)(C) and § 70.6(c)(3)) expiration of the 18-month period until delegation of section 112 standards that (7) Part 70 prohibits sources from the Administrator determines that are unchanged from the Federal implementing significant permit Washoe has come into compliance. In standards as promulgated. Washoe has modifications prior to final permit any case, if, six months after application informed EPA that it intends to obtain action unless the changes have of the first sanction, Washoe still has the regulatory authority necessary to undergone preconstruction review not submitted a corrective program that accept delegation of section 112 pursuant to section 112(g) or a program EPA has found complete, a second standards by incorporating section 112 approved into the SIP pursuant to part sanction will be required. standards into District regulations by C or D of title I, and the changes are not If EPA disapproves Washoe’s reference to the Federal regulations. The otherwise prohibited by the source’s complete corrective program, EPA will details of this delegation mechanism existing part 70 permit. Washoe’s be required to apply one of the section will be set forth in a Memorandum of regulations require sources to submit 179(b) sanctions on the date 18 months Agreement between Washoe and EPA. applications for significant permit after the effective date of the This program for delegations only modifications 6 months prior to disapproval, unless prior to that date applies to sources covered by the title V implementing the change, yet final Washoe has submitted a revised program. permit action may not occur until 9 program and EPA has determined that it months after receipt of a complete corrected the deficiencies that prompted III. Administrative Requirements application. Hence, rule 030.950(E) the disapproval. Moreover, if the A. Docket must be revised to eliminate the 3 Administrator finds a lack of good faith month time frame that sources are able on the part of Washoe, both sanctions Copies of Washoe’s submittal and to implement significant permit under section 179(b) shall apply after other information relied upon for the modifications without revised permits. the expiration of the 18-month period final interim approval, including the (§ 70.5(a)(1)(ii)) until the Administrator determines that one public comment received and 2. Implications of Title V Interim Washoe has come into compliance. In reviewed by EPA on the proposal, are all cases, if, six months after EPA Approval contained in docket number NV–WSH– applies the first sanction, Washoe has 94–1–OPS maintained at the EPA As a result of today’s final interim not submitted a revised program that Regional Office. The docket is an approval of Washoe’s part 70 program, EPA has determined corrects the organized and complete file of all the the requirement to submit a permit deficiencies, a second sanction is application to Washoe applies to all part information submitted to, or otherwise required. considered by, EPA in the development 70 sources, as defined in the approved In addition, discretionary sanctions of this final interim approval. The program, within Washoe’s jurisdiction, may be applied where warranted any docket is available for public inspection except for any source of air pollution time after the expiration of an interim over which a federally recognized approval period if Washoe has not at the location listed under the Indian Tribe has jurisdiction. See, e.g., submitted a timely and complete ADDRESSES section of this document. 59 FR 55813, 55815–55818 (November corrective program or EPA has B. Executive Order 12866 9, 1994). disapproved its submitted corrective This interim approval, which may not program. Moreover, if EPA has not The Office of Management and Budget be renewed, extends until February 5, granted full approval to the Washoe has exempted this action from Executive 1997. During this interim approval program by the expiration of this Order 12866 review. period, Washoe is protected from interim approval and that expiration C. Regulatory Flexibility Act sanctions, and EPA is not obligated to occurs after November 15, 1995, EPA promulgate, administer and enforce a must promulgate, administer and The EPA’s actions under section 502 Federal operating permits program in enforce a Federal permits program for of the Act do not create any new Washoe County. Permits issued under a Washoe County upon interim approval requirements, but simply address program with interim approval have full expiration. operating permit programs submitted to standing with respect to part 70, and the satisfy the requirements of 40 CFR part 1-year time period for submittal of 3. District Preconstruction Permit 70. Because this action does not impose permit applications by subject sources Program Implementing Section 112(g) any new requirements, it does not have begins upon the effective date of this The EPA is approving Washoe’s a significant impact on a substantial interim approval, as does the 3-year preconstruction permitting program number of small entities. time period for processing the initial found in District rules 030.000 and permit applications. 030.002 under the authority of title V List of Subjects in 40 CFR Part 70 If Washoe fails to submit a complete and part 70 solely for the purpose of corrective program for full approval by implementing section 112(g) during the Environmental protection, August 5, 1996. EPA will start an 18- transition period between title V Administrative practice and procedure, month clock for mandatory sanctions. If approval and adoption of a District rule Air pollution control, Intergovernmental Washoe then fails to submit a corrective implementing EPA’s section 112(g) relations, Operating permits, Reporting program that EPA finds complete before regulations. This approval is limited in and recordkeeping requirements. 1744 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations Dated: December 16, 1994. M2616) from 9 a.m. to 4 p.m., Monday ‘‘Wastewater treatment sludges from Felicia Marcus, through Friday, excluding Federal electroplating operations except from Regional Administrator. holidays. Call (202) 260–9327 for the following processes: (1) Sulfuric Part 70, title 40 of the Code of Federal appointments. The reference number for acid anodizing of aluminum; (2) tin Regulations is amended as follows: this docket is ‘‘F–94–B8EF-FFFFF’’. The plating on carbon steel; (3) zinc plating public may copy material from any (segregated basis) on carbon steel; (4) PART 70Ð[AMENDED] regulatory docket at no cost for the first aluminum or zinc-aluminum plating on 100 pages, and at $0.15 per page for carbon steel; (5) cleaning/stripping 1. The authority citation for part 70 additional copies. associated with tin, zinc and aluminum continues to read as follows: FOR FURTHER INFORMATION, CONTACT: For plating on carbon steel; and (6) chemical Authority: 42 U.S.C. 7401, et seq. general information, contact the RCRA etching and milling of aluminum’’. The 2. Appendix A to part 70 is amended Hotline, toll free at (800) 424–9346, or listed constituents of concern for EPA by adding the entry for Nevada in at (703) 412–9810. For technical Hazardous Waste No. F006 waste are alphabetical order to read as follows: information concerning this notice, cadmium, hexavalent chromium, nickel, contact Shen-yi Yang, Office of Solid and cyanide (complexed) (see Part 261, Appendix A to Part 70—Approval Waste (5304), U.S. Environmental Appendix VII). Status of State and Local Operating Protection Agency, 401 M Street, S.W., In support of its petition, BSC Permits Programs Washington, D.C. 20460, (202) 260– submitted: * * * * * 1436. (1) Detailed descriptions of its manufacturing, waste treatment, and Nevada SUPPLEMENTARY INFORMATION: stabilization processes, including (a) (Reserved) I. Background schematic diagrams; (b) Washoe County District Health (2) Material Safety Data Sheets A. Authority Department: submitted on November 18, (MSDSs) for all trade name products 1993; interim approval effective on Under §§ 260.20 and 260.22, facilities used in the manufacturing and waste March 6, 1995; interim approval expires may petition the Agency to remove their treatment processes; February 5, 1997. wastes from hazardous waste control by (3) Results from total constituent analyses for the eight Toxicity * * * * * excluding them from the lists of hazardous wastes contained in Characteristic (TC) metals listed in [FR Doc. 95–253 Filed 1–4–95; 8:45 am] §§ 261.31 and 261.32. Petitioners must § 261.24, nickel, cyanide, zinc, and BILLING CODE 6560±50±P provide sufficient information to EPA to sulfide from representative samples of allow the Agency to determine that: the dewatered (unstabilized) filter cake (1) The waste to be excluded is not and the stabilized filter cake; 40 CFR Part 261 hazardous based upon the criteria for (4) Results from the EP Toxicity Test [SW±FRL±5130±6] which it was listed, and and the Toxicity Characteristic Leaching (2) No other hazardous constituents or Procedure (TCLP, SW–846 Method Hazardous Waste Management factors that could cause the waste to be 1311) for the eight TC metals (except for System; Identification and Listing of hazardous are present in the wastes at barium and selenium) and nickel from Hazardous Waste; Final Exclusion levels of regulatory concern. representative samples of the dewatered (unstabilized) filter cake, uncured AGENCY: Environmental Protection B. History of This Rulemaking stabilized filter cake, and the cured Agency. Bethlehem Steel Corporation, located stabilized filter cake; ACTION: Final rule. in Sparrows Point, Maryland, petitioned (5) Results from total oil and grease SUMMARY: The Environmental Protection the Agency to exclude from hazardous analyses from representative samples of Agency (EPA or Agency) is granting a waste control its chemically stabilized the dewatered (unstabilized) filter cake final exclusion from the lists of wastewater treatment filter cake and stabilized filter cake; hazardous wastes contained in EPA presently listed as EPA Hazardous (6) Results from the Multiple regulations for certain solid wastes Waste No. F006. After evaluating the Extraction Procedure (MEP, SW–846 generated at Bethlehem Steel petition, EPA proposed, on March 4, Method 1320) for the eight TC metals Corporation (BSC), Sparrows Point, 1994, to exclude BSC’s waste from the (except for barium and selenium) and Maryland. This action responds to a lists of hazardous wastes under nickel from representative samples of delisting petition submitted under §§ 261.31 and 261.32 (see 59 FR 10352). the stabilized filter cake; (7) Test results and information § 260.20, which allows any person to This rulemaking finalizes the proposed regarding the hazardous characteristics petition the Administrator to modify or decision to grant BSC’s petition. of ignitability, corrosivity, and revoke any provision of Parts 260 II. Disposition of Delisting Petition reactivity; through 265 and 268 of Title 40 of the Bethlehem Steel Corporation, (8) Results from the TCLP analyses for Code of Federal Regulations, and under Sparrows Point, Maryland. the TC volatile and semivolatile organic § 260.22, which specifically provides compounds from representative samples A. Proposed Exclusion generators the opportunity to petition of the dewatered (unstabilized) filter the Administrator to exclude a waste on Bethlehem Steel Corporation (BSC), cake; and a ‘‘generator-specific’’ basis from the located in Sparrows Point, Maryland, is (9) Results from total constituent hazardous waste lists. involved in the production of tin and analyses for hexavalent chromium from EFFECTIVE DATE: January 5, 1995. chromium plated parts and steel strip. representative samples of dewatered ADDRESSES: The public docket for this BSC petitioned the Agency to exclude, (unstabilized) filter cake. final rule is located at the U.S. from hazardous waste control, its The Agency evaluated the information Environmental Protection Agency, 401 chemically stabilized wastewater and analytical data provided by BSC in M Street, S.W., Washington, D.C. 20460, treatment filter cake presently listed as support of its petition and determined and is available for viewing (room EPA Hazardous Waste No. F006— that the hazardous constituents found in Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations 1745 the petitioned waste would not pose a waste must either treat, store, or dispose of EPA’s hazardous waste management threat to human health and the of the waste in an on-site facility, or regulations. This reduction is achieved environment. Specifically, the Agency ensure that the waste is delivered to an by excluding waste generated at a used the modified EPA Composite off-site storage, treatment, or disposal specific facility from EPA’s lists of Model for Landfills (EPACML) to facility, either of which is permitted, hazardous wastes, thereby enabling this predict the potential mobility of the licensed, or registered by a state to facility to treat its waste as non- hazardous constituents found in the manage municipal or industrial solid hazardous. There is no additional petitioned waste. Based on this waste. Alternatively, the delisted waste economic impact due to today’s rule. evaluation, the Agency determined that may be delivered to a facility that Therefore, this rule is not a significant the constituents in BSC’s petitioned beneficially uses or reuses, or regulation, and no cost/benefit waste would not leach and migrate at legitimately recycles or reclaims the assessment is required. The Office of levels that would result in groundwater waste, or treats the waste prior to such Management and Budget (OMB) has also concentrations above the Agency’s beneficial use, reuse, recycling, or exempted this rule from the requirement health-based levels used in delisting reclamation (see 40 CFR part 260, for OMB review under section (6) of decision-making. See 59 FR 10352, appendix I). Executive Order 12866. March 4, 1994, for a detailed III. Limited Effect of Federal Exclusion explanation of why EPA proposed to VI. Regulatory Flexibility Act grant Bethlehem Steel Corporation’s The final exclusion being granted today is being issued under the federal Pursuant to the Regulatory Flexibility petition for its chemically stabilized Act, 5 U.S.C. 601–612, whenever an wastewater treatment filter cake. (RCRA) delisting program. States, however, are allowed to impose their agency is required to publish a general B. Response to Public Comments own, non-RCRA regulatory notice of rulemaking for any proposed The Agency did not receive any requirements that are more stringent or final rule, it must prepare and make comments on the proposed rule. than EPA’s, pursuant to section 3009 of available for public comment a RCRA. These more stringent regulatory flexibility analysis which C. Final Agency Decision requirements may include a provision describes the impact of the rule on small For the reasons stated in the proposal which prohibits a federally-issued entities (i.e., small businesses, small and in this final rule, the Agency exclusion from taking effect in the State. organizations, and small governmental believes that BSC’s chemically Because a petitioner’s waste may be jurisdictions). No regulatory flexibility stabilized wastewater treatment filter regulated under both Federal and State analysis is required, however, if the cake should be excluded from listing as programs, petitioners are urged to Administrator or delegated a hazardous waste. The Agency, contact their State regulatory authority representative certifies that the rule will therefore, is granting a final exclusion to to determine the current status of their not have any impact on any small Bethlehem Steel Corporation, located in wastes under State law. entities. Sparrows Point, Maryland for its This amendment will not have any IV. Effective Date chemically stabilized wastewater adverse economic impact on any small treatment filter cake, described in its This rule is effective January 5, 1995. entities since its effect will be to reduce petition as EPA Hazardous Waste No. The Hazardous and Solid Waste the overall costs of EPA’s hazardous F006. Amendments of 1984 amended section waste regulations and it is limited to This exclusion only applies to the 3010 of RCRA to allow rules to become one facility. Accordingly, I hereby processes and waste volume (a effective in less than six months when certify that this regulation will not have maximum of 1,100 cubic yards the regulated community does not need a significant economic impact on a generated annually in stabilized filter the six-month period to come into substantial number of small entities. cake form) covered by the original compliance. That is the case here This regulation, therefore, does not demonstration. The facility would because this rule reduces, rather than require a regulatory flexibility analysis. require a new or amended exclusion if increases, the existing requirements for there is an adverse change in persons generating hazardous wastes. In VII. Paperwork Reduction Act composition of treated waste such that light of the unnecessary hardship and Information collection and levels of hazardous constituents expense that would be imposed on this recordkeeping requirements associated increase significantly (e.g., from changes petitioner by an effective date of six with this final rule have been approved to manufacturing or treatment months after publication and the fact by the Office of Management and processes). (Note, however, that changes that a six-month deadline is not Budget (OMB) under the provisions of in the stabilization process are allowed necessary to achieve the purpose of the Paperwork Reduction Act of 1980 as described in Condition (4).) section 3010, EPA believes that this rule (Pub. L. 96–511, 44 USC § 3501 et seq.) Continued evaluation for levels of should be effective immediately upon and have been assigned OMB Control hazardous constituents will be achieved publication. These reasons also provide Number 2050–0053. by the annual verification testing a basis for making this rule effective specified in Condition (1)(C). immediately, upon publication, under List of Subjects in 40 CFR Part 261 Accordingly, the facility would need to the Administrative Procedures Act, file a new petition for the altered waste. pursuant to 5 U.S.C. 553(d). Environmental protection, Hazardous The facility must treat waste generated waste, Recycling, and Reporting and either in excess of 1,100 cubic yards per V. Regulatory Impact recordkeeping requirements. year or from changed processes as Under Executive Order 12866, EPA Dated: December 19, 1994. must conduct an ‘‘assessment of the hazardous until a new exclusion is Elizabeth A. Cotsworth, granted. potential costs and benefits’’ for all Although management of the waste ‘‘significant’’ regulatory actions. This Acting Director, Office of Solid Waste. covered by this petition is relieved from rule to grant an exclusion is not For the reasons set out in the Subtitle C jurisdiction by this final significant, since its effect, is to reduce preamble, 40 CFR part 261 is amended exclusion, the generator of a delisted the overall costs and economic impact as follows: 1746 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations PART 261ÐIDENTIFICATION AND Authority: 42 U.S.C 6905, 6912(a), 6921, alphabetical order by facility to read as LISTING OF HAZARDOUS WASTE 6922, and 6938. follows: 1. The authority citation for part 261 2. In Table 1 of Appendix IX of Part Appendix IX to Part 261ÐWastes continues to read as follows: 261, add the following wastestream in Excluded Under §§ 260.20 and 260.22 TABLE 1.ÐWASTES EXCLUDED FROM NON-SPECIFIC SOURCES Facility Address Waste description ** * * * * * Bethlehem Steel Sparrows Point, Stabilized filter cake (at a maximum annual rate of 1100 cubic yards) from the treatment of Corporation. Maryland. wastewater treatment sludges (EPA Hazardous Waste No. F006) generated from electroplating op- erations after [insert date of publication in FEDERAL REGISTER]. Bethlehem Steel (BSC) must imple- ment a testing program that meets the following conditions for the exclusion to be valid: (1) Testing: Sample collection and analyses (including quality control (QC) procedures) must be performed according to SW±846 methodologies. If EPA judges the stabilization process to be effec- tive under the conditions used during the initial verification testing, BSC may replace the testing re- quired in Condition (1)(A) with the testing required in Condition (1)(B). BSC must continue to test as specified in Condition (1)(A) until and unless notified by EPA in writing that testing in Condition (1)(A) may be replaced by Condition (1)(B) (to the extent directed by EPA). (A) Initial Verification Testing: During at least the first eight weeks of operation of the full-scale treatment system, BSC must collect and analyze weekly composites representative of the stabilized waste. Weekly composites must be composed of representative grab samples collected from every batch during each week of stabilization. The composite samples must be collected and analyzed, prior to the disposal of the stabilized filter cake, for all constituents listed in Condition (3). BSC must report the analytical test data, including a record of the ratios of lime kiln dust and fly ash used and quality control information, obtained during this initial period no later than 60 days after the collec- tion of the last composite of stabilized filter cake. (B) Subsequent Verification Testing: Following written notification by EPA, BSC may substitute the testing condition in (1)(B) for (1)(A). BSC must collect and analyze at least one composite rep- resentative of the stabilized filter cake generated each month. Monthly composites must be com- prised of representative samples collected from all batches that are stabilized in a one-month pe- riod. The monthly samples must be analyzed prior to the disposal of the stabilized filter cake for chromium, lead and nickel. BSC may, at its discretion, analyze composite samples more frequently to demonstrate that smaller batches of waste are non-hazardous. (C) Annual Verification Testing: In order to confirm that the characteristics of the treated waste do not change significantly, BSC must, on an annual basis, analyze a representative composite sam- ple of stabilized filter cake for all TC constituents listed in 40 CFR § 261.24 using the method speci- fied therein. This composite sample must represent the stabilized filter cake generated over one week. (2) Waste Holding and Handling: BSC must store, as hazardous, all stabilized filter cake generated until verification testing (as specified in Conditions (1)(A) and (1)(B)) is completed and valid analy- ses demonstrate that the delisting levels set forth in Condition (3) are met. If the levels of hazard- ous constituents measured in the samples of stabilized filter cake generated are below all the levels set forth in Condition (3), then the stabilized filter cake is non-hazardous and may be managed and disposed of in accordance with all applicable solid waste regulations. If hazardous constituent lev- els in any weekly or monthly composite sample equal or exceed any of the delisting levels set in Condition (3), the stabilized filter cake generated during the time period corresponding to this sam- ple must be retreated until it is below these levels or managed and disposed of in accordance with Subtitle C of RCRA. (3) Delisting Levels: All concentrations must be measured in the waste leachate by the method specified in 40 CFR § 261.24. The leachable concentrations for the constituents must be below the following levels (ppm): arsenicÐ4.8; bariumÐ100; cadmiumÐ0.48; chromiumÐ5.0; leadÐ1.4; mercuryÐ0.19; nickelÐ9.6; seleniumÐ1.0; silverÐ5.0. (4) Changes in Operating Conditions: After completing the initial verification test period in Condition (1)(A), if BSC decides to significantly change the stabilization process (e.g., stabilization reagents) developed under Condition (1), then BSC must notify EPA in writing prior to instituting the change. After written approval by EPA, BSC may manage waste generated from the changed process as non-hazardous under this exclusion, provided the other conditions of this exclusion are fulfilled. (5) Data Submittals: Two weeks prior to system start-up, BSC must notify in writing the Section Chief, Delisting Section (see address below) when stabilization of the dewatered filter cake will begin. The data obtained through Condition (1)(A) must be submitted to the Section Chief, Delisting Section, OSW (5304), U.S. EPA, 401 M Street, SW, Washington, DC 20460 within the time period specified. The analytical data, including quality control information and records of ratios of lime kiln dust and fly ash used, must be compiled and maintained on site for a minimum of five years. These data must be furnished upon request and made available for inspection by EPA or the State of Maryland. Failure to submit the required data within the specified time period or maintain the re- quired records on site for the specified time will be considered by the Agency, at its discretion, suf- ficient basis to revoke the exclusion to the extent directed by EPA. All data must be accompanied by a signed copy of the following certification statement to attest to the truth and accuracy of the data submitted: Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations 1747 TABLE 1.ÐWASTES EXCLUDED FROM NON-SPECIFIC SOURCESÐContinued Facility Address Waste description ``Under civil and criminal penalty of law for the making or submission of false or fraudulent state- ments or representations (pursuant to the applicable provisions of the Federal Code, which include, but may not be limited to, 18 U.S.C § 1001 and 42 U.S.C § 6928), I certify that the information con- tained in or accompanying this document is true, accurate and complete. As to the (those) identified section(s) of this document for which I cannot personally verify its (their) truth and accuracy, I certify as the company official having supervisory responsibility for the persons who, acting under my direct instructions, made the verification that this information is true, accurate and complete. In the event that any of this information is determined by EPA in its sole discretion to be false, in- accurate or incomplete, and upon conveyance of this fact to the company, I recognize and agree that this exclusion of waste will be void as if it never had effect or to the extent directed by EPA and that the company will be liable for any actions taken in contravention of the company's RCRA and CERCLA obligations premised upon the company's reliance on the void exclusion.'' **** * * * [FR Doc. 95–255 Filed 1–4–95; 8:45 am] SUPPLEMENTARY INFORMATION: or pricing data. This interim DFARS BILLING CODE 6560±50±P A. Background rule applies only to defense contractors which incur restructuring costs Section 818 of the National Defense coincident to a business combination Authorization Act for Fiscal Year 1995 and are subject to the contract cost DEPARTMENT OF DEFENSE (Public Law 103–337) restricts the principles. Most contracts awarded to Department of Defense from small entities are awarded on a 48 CFR Parts 231 and 242 reimbursing restructuring costs competitive, fixed-price basis. An Initial associated with a business combination Regulatory Flexibility Analysis has, Defense Federal Acquisition undertaken by a defense contractor therefore, not been performed. Regulation Supplement; Restructuring unless certain conditions are met. This Comments are invited from small Costs interim DFARS rule provides policies business entities and other interested and procedures for allowing appropriate parties. Comments from small entities AGENCY: Department of Defense (DoD). contractor costs which involve external concerning the affected DFARS subparts restructuring activities. A proposed will also be considered in accordance ACTION: Interim rule with request for DFARS rule addressing the allowability with section 610 of the Act. Such comments. of contractor costs associated with comments must be submitted separately internal restructuring activities will be and cite DFARS Case 94–D316 in SUMMARY: The Director of Defense published separately. correspondence. Procurement has issued an interim rule which amends the Defense Federal B. Determination to Issue an Interim D. Paperwork Reduction Act Acquisition Regulation Supplement Rule The Paperwork Reduction Act (Pub. (DFARS) to implement section 818 of A determination has been made under L. 96–511) does not apply because the the National Defense Authorization Act the authority of the Secretary of Defense interim rule does not impose any for Fiscal Year 1995 (Public Law 103– to issue this rule as an interim rule. additional reporting or recordkeeping 337) concerning the reimbursement of Compelling reasons exist to promulgate requirements which require the restructuring costs associated with this rule without prior opportunity for approval of OMB under 44 U.S.C. 3501 business combinations. public comment because section 818 of et. seq. the National Defense Authorization Act DATES: Effective date: December 29, List of Subjects in 48 CFR Parts 231 and for Fiscal Year 1995 (Public Law 103– 1994. 242 337) requires the Secretary of Defense to Comment date: Comments on the prescribe regulations no later than Government procurement. interim rule should be submitted in January 1, 1995. However, comments Claudia L. Naugle, writing at the address shown below on received in response to the publication Deputy Director, Defense Acquisition or before March 6, 1995, to be of this rule will be considered in Regulations Council. considered in the formulation of a final formulating the final rule. Therefore, 48 CFR parts 231 and 242 rule. C. Regulatory Flexibility Act are amended as follows: ADDRESSES: Interested parties should 1. The authority citation for 48 CFR The interim rule is not expected to submit written comments to: Defense parts 231 and 242 continues to read as have a significant economic impact on Acquisition Regulations Council, ATTN: follows: a substantial number of small entities Mr. Eric R. Mens, PDUSD(A&T)DP/DAR, within the meaning of the Regulatory Authority: 41 U.S.C. 421 and 48 CFR IMD 3D139, 3062 Defense Pentagon, Flexibility Act, 5 U.S.C. 601 et seq., chapter 1. Washington, DC 20301–3062. Telefax because most small entities are not number (703) 602–0350. Please cite PART 231ÐCONTRACT COST subject to the contract cost principles in DFARS Case 94–D316 in all PRINCIPLES AND PROCEDURES FAR part 31 or DFARS part 231. The correspondence. contract cost principles normally apply 2. Section 231.205 is amended by FOR FURTHER INFORMATION CONTACT: Mr. where contract award exceeds $500,000 adding a new subsection 231.205–70 to Eric R. Mens, (703) 602–0131. and the price is based on certified cost read as follows: 1748 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations 231.205±70 Restructuring costs. (i) Such costs are allowable in contractor’s normal severance pay (a) Scope. This subsection prescribes accordance with FAR part 31 and practice if their employment terminates policies and procedures for allowing DFARS part 231; following a change in the management appropriate contractor restructuring (ii) An audit of projected restructuring control over, or ownership of, the costs when allowing such costs would costs and restructuring savings is company or a substantial portion of its result in net savings for DoD. This performed; assets (see FAR 31.205–6(l)(1)). subsection also implements Section 818 (iii) The cognizant administrative (vii) Payments to employees of special of the National Defense Authorization contracting officer (ACO) reviews the compensation which is contingent upon Act for Fiscal Year 1995 (Public Law audit report and the projected costs and the employee remaining with the 103–337). projected savings, determines that contractor for a specified period of time (b) Definitions. As used in this overall reduced costs should result for following a change in the management subsection: DoD, and negotiates an advance control over, or ownership of, the (1) Business combination means a agreement in accordance with 231.205 company or a substantial portion of its transaction whereby assets or operations (d)(8); and assets (see FAR 31.205–6(l)(2)). of two previously separate companies (iv) A certification is made by the (d) Procedures and ACO are combined, whether by merger, Under Secretary of Defense (Acquisition responsibilities. As soon as it is known acquisition, or sale/purchase of assets. & Technology), his Principal Deputy or that the contractor will incur (2) External restructuring activities designee (in all cases, an individual restructuring costs associated with means restructuring activities occurring appointed by the President and external restructuring activities, the after a business combination that confirmed by the Senate), that cognizant ACO shall: (1) Direct the contractor to segregate involve facilities or workforce from both projections of future restructuring restructuring costs and to suspend these of the previously separate companies. savings resulting for DoD from the amounts from any billings, final (3) Internal restructuring activities business combination are based on contract price settlements, and overhead means restructuring activities occurring audited cost data and should result in settlements until the certification in after a business combination that overall reduced costs for DoD. (2) The certification required by (c)(1)(iv) is obtained. involve facilities or workforce from only 231.205–70(c)(1)(iv) shall not apply to (2) Require the contractor to submit one of the previously separate any business combination for which an overall plan of restructuring companies, or, when there has been no payments for restructuring costs were activities and an adequately supported business combination, restructuring made before August 15, 1994, or for proposal for planned restructuring activities undertaken within one which the cognizant ACO executed an projects. The proposal must include a company. advance agreement establishing cost detailed breakout by year by cost (4) Restructuring activities means ceilings based on audit/negotiation of element, showing the projected nonroutine, nonrecurring, or detailed cost proposals for individual restructuring costs, both direct and extraordinary activities associated with restructuring projects before August 15, indirect, and projected restructuring the reduction of facilities or workforce, 1994. savings, both direct and indirect. or consolidation of facilities or (3) Costs that may be incurred after a (3) Negotiate a Memorandum of operations (including disposal or business combination but are not Understanding with the contractor abandonment undertaken to effect such allowed in accordance with FAR part 31 setting forth, at a minimum, the types consolidation), in an effort to improve and DFARS part 231 include, but are and treatments of restructuring costs future operations and reduce overall not limited to: and the methodology to be used to costs. Restructuring activities do not (i) Incorporation fees; costs of demonstrate reduced costs to DoD. include routine or ongoing repositioning attorneys, accountants, brokers, (4) Notify major buying activities of and redeployments of a contractor’s promoters, organizers, management contractor restructuring actions and productive facilities or workforce (e.g., consultants, and investment counselors inform them about any potential normal plant rearrangement or (see FAR 31.205–27). monetary impacts on major weapons employee relocation). (ii) The cost of any change in the programs, when known. (5) Restructuring costs means the contractor’s financial structure (see FAR (5) Upon receipt of the contractor’s costs, including both direct and 31.205–27). proposal, immediately adjust forward indirect, associated with restructuring (iii) Interest or other costs of pricing rates to reflect the impact of activities. Restructuring costs that may borrowing to finance the acquisition or projected restructuring savings. Pending be allowed include, but are not limited merger (however represented) (see FAR execution of an advance agreement in to, severance pay for employees, early 31.205–20). accordance with 231.205–70(d)(8), retirement incentive payments for (iv) When the purchase method of restructuring costs may be included in employees, employee retraining costs, accounting for a business combination forward pricing rates if a repricing relocation expense for retained is used, increased depreciation, clause is included in each fixed-price employees, and relocation and amortization, or cost of money action that is priced based on the rates. rearrangement of plant and equipment. attributable to increases in the book The repricing clause must provide for a (6) Restructuring savings means cost value of plant, equipment, and other downward price adjustment to remove reductions, including both direct and tangible assets of the acquired company restructuring costs if the certification indirect cost reductions, that are above the amount that would have been required by 231.205–70(c)(1)(iv) is not directly associated with or result allowed if the business combination had obtained. directly from restructuring activities. not taken place (see FAR 31.205–52). (6) Upon receipt of the contractor’s Reassignments of cost to future periods (v) Any costs for amortization, proposal, immediately request an audit are not restructuring savings. expensing, write-off, or write-down of review of the contractor’s proposal. (c) Limitations on cost allowability. (1) goodwill (however represented) (see (7) Upon receipt of the audit report, Restructuring costs associated with FAR 31.205–49). determine if restructuring savings will external restructuring activities shall not (vi) Payments to employees of special exceed restructuring costs on a present be allowed unless— compensation in excess of the value basis. Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations 1749 (8) Negotiate an advance agreement Agreement would have been obligated to pay compliance with one or more of the with the contractor setting forth, at a or reimburse under the terms of the contracts. Federal motor vehicle safety standards, minimum, cost ceiling amounts on (ii) The Government recognizes that to conform it to the requirements of 49 restructuring projects and, when restructuring by the Transferee incidental to CFR 567.4(g)(5) for nonexempted the acquisition/merger may be in the best necessary, a cost amortization schedule. interests of the Government. Restructuring vehicles by including a reference to the Cost ceilings may not exceed the costs that are allowable under part 31 of the Theft Prevention Standard (58 FR amount of projected restructuring Federal Acquisition Regulation (FAR) or part 58103). savings on a present value basis. The 231 of the Defense Federal Acquisition As amended, the manufacturer of an advance agreement shall not be Regulation Supplement (DFARS) may be exempted vehicle, under paragraph executed until the certification required reimbursed under flexibly-priced novated 555.9(c)(1), shall: by 231.205–70(c)(1)(iv) is obtained. contracts, provided the Transferee (c) Meet all applicable requirements (9) Submit to the Director of Defense demonstrates that the restructuring will of Part 567 of this chapter, except that— Procurement, Office of the Under reduce overall costs to the Department of (1) Instead of the statement required Defense (DoD) and/or the National Secretary of Defense (Acquisition & Aeronautics and Space Administration by Sec. 567.4(g)(5) of this chapter, the Technology), ATTN: OUSD(A&T)DP/ (NASA), and the requirements included in following statement shall appear: CPF, a recommendation for certification DFARS 231.205–70 are met. These costs and ‘‘THIS VEHICLE CONFORMS TO ALL of net benefit. Include the information the contracting parties’ responsibilities shall APPLICABLE FEDERAL MOTOR described in 231.205–70(e). be addressed in a Memorandum of VEHICLE SAFETY AND THEFT (e) Information needed to obtain Understanding to be negotiated between the PREVENTION STANDARDS (and, if a certification of net benefit. (1) The cognizant contracting officer and the passenger car), BUMPER STANDARD novation agreement (if one is required). Transferee. The Memorandum of IN EFFECT ON THE DATE OF (2) The contractor’s restructuring Understanding will specify the types and MANUFACTURE SHOWN ABOVE treatment of restructuring costs and the proposal. methodology to be used to demonstrate EXCEPT FOR STANDARDS NOS. (3) The proposed advance agreement. reduced costs to DoD and/or NASA. (listing the standards by number and (4) The audit report. Restructuring costs shall not be allowed on title for which an exemption has been (5) Any other pertinent information. novated contracts unless there is an audit of granted) EXEMPTED PURSUANT TO (6) The cognizant ACO’s the restructuring proposal; a determination NHTSA EXEMPTION NO. recommendation for certification. This by the contracting officer of overall reduced llllll.’’ recommendation must clearly indicate costs to DoD/NASA; and an Advance Michael Grossman, representing that contractor projections of future cost Agreement setting forth cost ceiling amounts Automobili Lamborghini, telephoned savings resulting for DoD from the on restructuring projects and the period to NHTSA to comment that this wording which such costs shall be assigned.’’ business combination are based on would require an exempted audited cost data and should result in [FR Doc. 95–158 Filed 1–4–95; 8:45 am] manufacturer of a passenger car to overall reduced costs for the BILLING CODE 5000±04±M certify in part to ‘‘* * * THEFT Department. PREVENTION STANDARDS, BUMPER STANDARD. * * *’’ He recommended SUBPART 242.12ÐNOVATION AND DEPARTMENT OF TRANSPORTATION that NHTSA correct this grammatical CHANGE-OF-NAME AGREEMENTS error by incorporating the language of National Highway Traffic Safety the general certification requirement at 3. Sections 242.1202 and 242.1204 are Administration added to read as follows: Sec. 567.4(g)(5) with the exception now in effect under which the exempted 49 CFR Part 555 242.1202 Responsibility for executing standards are listed. NHTSA concurs agreements. [Docket 93±40; Notice 3] with this comment, and is amending paragraph 555.9(c)(1) in an appropriate The contracting officer responsible for RIN 2127±AE88 processing and executing novation and manner. A manufacturer of an exempted change-of-name agreements shall ensure Temporary Exemption From Motor vehicle shall now: agreements are executed promptly. Vehicle Safety Standards (c) Meet all applicable requirements of Part 567 of this chapter, except that— 242.1204 Agreement to recognize a AGENCY: National Highway Traffic (1) The statement required by successor in interest (novation agreement). Safety Administration (NHTSA), DOT. paragraph 567.4(g)(5) of this chapter (e) When a novation agreement is ACTION: Technical correction; final rule. shall end with the phrase ‘‘except for required and the transferee intends to Standards Nos. [listing the standards by incur restructuring costs as defined at SUMMARY: This notice corrects a number and title for which an 231.205–70, the cognizant contracting grammatical error in the language of the exemption has been granted] exempted officer shall include the following certification label required for a vehicle pursuant to NHTSA Exemption No. provision as paragraph (b)(7) of the temporarily exempted from compliance llllllll’’. with the Federal motor vehicle safety novation agreement instead of the This amendment also addresses a recent standards. paragraph (b)(7) provided in the sample observation by Chrysler Corporation format at FAR 42.1204(e): DATES: The effective date of the final that vehicles other than passenger cars, ‘‘(7)(i) Except as set forth in subparagraph rule is February 6, 1995. such as its electric vans which are (7)(ii) below, the Transferor and the FOR FURTHER INFORMATION CONTACT: covered by a Temporary Exemption, are Transferee agree that the Government is not Taylor Vinson, Office of Chief Counsel, not yet subject to 49 CFR Part 541 obligated to pay or reimburse either of them NHTSA (202–366–5263). Federal Motor Vehicle Theft Prevention for, or otherwise give effect to, any costs, SUPPLEMENTARY INFORMATION: taxes, or other expenses, or any related On Standard, and its recommendation that increases, directly or indirectly arising out of October 29, 1993, NHTSA amended 49 the parenthetical reference to passenger or resulting from the transfer or this CFR 555.9(c)(1), the certification cars should precede and not follow the Agreement, other than those that the requirements for motor vehicles that reference to the theft prevention Government in the absence of this transfer or have been temporarily exempted from standard in paragraph 555.9. 1750 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations Although the wording of the two Executive Order 12612 on 49 CFR Part 571 labels varies slightly, the variation is not ‘‘Federalism.’’ It has been determined substantive. The agency therefore has no that the rule does not have sufficient [Docket No. 80±9; Notice 10] objection if exempted manufacturers federalism implications to warrant the RIN 2127±AE86 wish to exhaust their present supply of preparation of a Federalism Assessment. labels with the old wording. National Environmental Policy Act. Lamps, Reflective Devices, and The notice also revises the authority NHTSA has analyzed this rulemaking Associated Equipment citation for Part 555 to reflect the action for purposes of the National recodification in Title 49 of the United Environmental Policy Act. The rule will AGENCY: National Highway Traffic States Code of the statutory provisions not have a significant effect upon the Safety Administration (NHTSA), DOT. previously in Title 15. environment. Manufacturers subject to ACTION: Final rule. Effective Date this regulation must already provide a certification label for their vehicles. The SUMMARY: This notice amends the trailer Because the amendment is technical rule will not have an effect upon fuel conspicuity requirements of Motor in nature and has no substantive impact, consumption. Vehicle Safety Standard No. 108 to it is hereby found that notice and Civil Justice. This rule does not have provide clarifications of the existing comment thereon are unnecessary. any retroactive effect. Under 49 U.S.C. rule with respect to tank trailers and to Further, because the amendment is 30103, whenever a Federal motor the width of retroreflective conspicuity technical in nature and has no vehicle safety standard is in effect, a sheeting. substantive impact, it is hereby found state may not adopt or maintain a safety DATES: The final rule is effective for good cause shown that an effective standard applicable to the same aspect February 6, 1995. date earlier than 180 days after issuance of performance which is not identical to FOR FURTHER INFORMATION CONTACT: of the rule is in the public interest, and the Federal standard. Section 30161 of Patrick Boyd, Office of Vehicle Safety the amendment is effective February 6, Title 49 sets forth a procedure for Standards, NHTSA (202–366–6346). 1995. As the amendment makes no judicial review of final rules SUPPLEMENTARY INFORMATION: Motor substantive change, it does not affect establishing, amending or revoking any of the impacts previously Vehicle Safety Standard No. 108 Lamps, Federal motor vehicle safety standards. Reflective Devices and Associated considered in the promulgation of part That section does not require 555. Equipment was amended on December submission of a petition for 10, 1992, to add S5.7 Conspicuity Rulemaking Analyses reconsideration or other administrative Systems, and associated Figure 30, Executive Order 12866 and DOT proceedings before parties may file suit requirements establishing a visibility Regulatory Policies and Procedures. in court. enhancement scheme for large trailers This rulemaking action has not been List of Subjects in 49 CFR Part 555 (57 FR 58406). In response to petitions considered under Executive Order for reconsideration, S5.7 was amended Imports, Motor vehicle safety, Motor 12866. However, it has been determined on October 6, 1993 (58 FR 52021). vehicles. to be not significant under the The requirements, which became Department of Transportation’s PART 555ÐTEMPORARY effective December 1, 1993, have been regulatory policies and procedures. The EXEMPTIONS FROM MOTOR VEHICLE the subject of a number of questions agency has determined that the SAFETY STANDARDS which the agency has answered through economic effects of the amendment are interpretation letters. After due so minimal that a full regulatory In consideration of the foregoing, 49 consideration, NHTSA has decided that evaluation is not required. CFR part 555 is amended as follows: incorporating these interpretations into Manufacturers subject to the final rule 1. The authority citation for part 555 the standard by making minor changes are not affected by the technical is revised to read as follows: in the regulatory text and Figure 30 correction. Authority: 49 U.S.C. 30113; delegation of would better serve the needs of trailer Regulatory Flexibility Act. The agency authority at 49 CFR 1.50. manufacturers and users. These changes has also considered the effects of this are not intended to create additional rulemaking action in relation to the 2. Section 555.9 is amended by burdens on any person, and should not Regulatory Flexibility Act. I certify that revising paragraph (c)(1) to read as be interpreted as requiring a change in this rulemaking action will not have a follows: practice by any manufacturer who has significant economic effect upon a § 555.9 Temporary exemption labels. been certifying conformance to S5.7 and substantial number of small entities. * * * * * Figure 30 of Standard No. 108 on the Although manufacturers who receive (c) * * * basis of Standard No. 108 as it existed temporary exemptions are generally (1) The statement required by before the effective date of these small businesses within the meaning of § 567.4(g)(5) of this chapter shall end amendments. the Regulatory Flexibility Act, the with the phrase ‘‘except for Standards Upper Rear Treatment of Tank Trailers agency estimates that there will be no Nos. [listing the standards by number The notice proposing conspicuity cost to conform to the final rule. and title for which an exemption has treatment for trailers (December 4, 1991, Further, small organizations and been granted] exempted pursuant to 56 FR 63474) contained an alternative governmental jurisdictions will not be NHTSA Exemption No. that dealt specifically with trailers such significantly affected as the price of new llllllll.’’ exempted motor vehicles will not be as tank trailers whose rear configuration impacted. Accordingly, no Regulatory * * * * * was other than rectangular. On such Issued on December 28, 1994. Flexibility Analysis has been prepared. trailers, under proposed S5.7.1.4.1(d), Executive Order 12612 (Federalism). Ricardo Martinez, the conspicuity treatment would ‘‘be This rulemaking action has been Administrator. applied to follow the contours of the analyzed in accordance with the [FR Doc. 95–100 Filed 1–4–95; 8:45 am] rear in the uppermost and outermost principles and criteria contained in BILLING CODE 4910±59±P areas of the rear of the trailer body on Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations 1751 the upper and left sides.’’ This treatment located where they are visible Typographical Errors was illustrated in proposed Figure 31C. throughout a geometric range of +/¥10 In Notice 8 published on October 6, When the final rule was published, a degrees vertically and +/¥20 degrees 1993, S5.7.1.4.1(c) erroneously stated a more general requirement applicable to horizontally. There is no geometric minimum width of 388 mm for all trailers without reference to rear visibility specification for conspicuity conspicuity material placed on the configuration was adopted with the material which may be located as close horizontal member of the rear underride thought that a less detailed specification to between 375 mm and 1525 mm as guard; the correct minimum is 38 mm. would afford greater flexibility to trailer practicable. NHTSA is aware of at least The text of Standard No. 108 that is manufacturers. Under S5.7.1.4.1(b), the two common examples of trailer treatment is ‘‘applied horizontally and published annually in the Code of conspicuity treatments which could not vertically to the right and upper left Federal Regulations omits underlining be placed at the same location as reflex contours of the body, as viewed from from the captions of paragraphs S5.4, the rear * * * .’’ Figure 31C was not reflectors. Container chassis use a side S7.5 and S7.7. These are added. conspicuity treatment on the frame adopted and Figure 30, which was Effective Date adopted, depicts van and platform because there is no alternative. The Because the final rule clarifies trailers only. Further, NHTSA provided material near the ends of a container existing requirements and imposes no no explanation of why the tank trailer chassis frame is shrouded by the additional burden upon any person, it is proposals were not adopted. It has since forward and rear bolsters (full width hereby found for good cause shown that explained to the industry in cross members), and is not visible interpretation letters that the tank trailer throughout the +/¥20 degrees an effective date earlier than 180 days proposal, as illustrated in Figure 31C, is horizontal range required of reflex after issuance of the final rule is in the an acceptable scheme for compliance reflectors. Therefore, the reflex public interest. Accordingly these with S5.7.1.4.1(b). To reflect these reflectors mounted at the tips of the amendments are effective 30 days after interpretations, NHTSA is amending bolsters must be retained. The other their publication in the Federal S5.7.1.4.1(b) to specify that ‘‘if the rear example appears in the new Figures. A Register. of the trailer is other than rectangular, tank trailer with conspicuity material on Rulemaking Analyses and Notices the strips may be applied to follow the the fenders is shown in Figure 30–3, Executive Order 12866 and DOT contours of the rear in the uppermost and the reflex reflectors may be omitted, Regulatory Policies and Procedures. and outermost areas of the rear of the but Figure 30–4 shows a tank trailer trailer body on the left and right sides.’’ This rulemaking has not been reviewed with a conspicuity treatment on the tank under Executive Order 12866. It has Trailer Illustrations at a height much greater than 1525 mm. been determined that the rulemaking is The height of the conspicuity material Figure 30 shows a side stripe with not significant under Department of in Figure 30–4 is dictated by two breaks to illustrate that the side Transportation regulatory policies and stripe is not required to be continuous. practicability, but the reflex reflectors procedures. The purpose of the rule is This Figure has been interpreted must be located in the required range of to clarify existing requirements. Since literally by some small manufacturers as 375 mm to 1525 mm and cannot be the rule does not have any significant requiring three long pieces of material. omitted. cost or other impacts, preparation of a full regulatory evaluation is not NHTSA is replacing Figure 30 with four Width of Retroreflective Tape drawings (Figures 30–1 through 30–4) warranted. which are more realistic. They include Paragraph S5.7.1.3(e) establishes three National Environmental Policy Act. two examples of tank trailers which grades of retroreflective sheeting NHTSA has analyzed this rule for the illustrate interpretations that side material (C2, C3, and C4) based on purposes of the National Environmental material may be mounted at the tank minimum levels of retroreflective Policy Act. It is not anticipated that the centerline when practicable locations brightness. Paragraph S5.7.1.3(d) rule will have a significant effect upon closer to the ground are unavailable, establishes the width of C2, C3, and C4 the environment simply because of the another source of questions from tank sheeting. The intent of Standard No. 108 clarifications made to existing trailer manufacturers. The new Figure is to establish a minimum amount of requirements. also shows other required lamps and light return per linear unit of Regulatory Flexibility Act. The agency has also considered the impacts of this reflectors, which had not been conspicuity treatment. Thus, C2 rule in relation to the Regulatory illustrated in the original Figure 30. material (with the stated width of 50 Flexibility Act. Based on the discussion Paragraph S5.1.1.29 (as amended mm) could be used in widths of 75 mm October 6, 1993 (58 FR 52021)) states above, I certify that this rule will not (C3) or 100 mm (C4) because it exceeds that ‘‘A trailer equipped with have a significant economic impact the minimum performance requirements conspicuity treatment in conformance upon a substantial number of small of C3 and C4 material. For the same with S5.7 * * * need not be equipped entities. Accordingly, no regulatory with the reflex reflectors required by reason, C3 material could be used in a flexibility analysis has been prepared. Table I of this standard if the width of 100 mm. Some trailer Manufacturers of motor vehicles and conspicuity material is placed at the manufacturers would like to use C2 motor vehicle equipment, those affected locations of the reflex reflectors required material in 75 mm or 100 mm widths by the rule, are generally not small by Table I (emphasis added). The but regard the unqualified width value businesses within the meaning of the following discussion addresses the as precluding them from doing so. Regulatory Flexibility Act. Further, issues that have been raised by trailer NHTSA therefore is amending the width small organizations and governmental manufacturers in their attempts to figures to be expressed as minimum jurisdictions will not be significantly interpret S5.1.1.29. values. This will also cure a technical affected by these minor amendments. Table II of Standard No. 108 requires problem affecting C2 material, which is Executive Order 12612 (Federalism). side reflex reflectors on large trailers to available in 2-inch widths, but not the This rule has also been analyzed in be located from 375 mm to 1525 mm slightly lesser 50 mm width expressed accordance with the principles and above the road surface and they must be in Standard No. 108. criteria contained in Executive Order 1752 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations 12612, and NHTSA has determined that Authority: 49 U.S.C. 322, 30111, 30115, S5.7.1.4.1 Rear. *** this rule does not have sufficient 30117, 30161; delegation of authority at 49 * * * * * CFR 1.50. federalism implications to warrant the (b) Element 2: Two pairs of white preparation of a Federalism Assessment. 2. Sec. 571.108 is amended by strips of sheeting, each pair consisting Civil Justice Reform. This final rule revising the heading of S5.4, paragraphs of strips 300 mm long of grade DOT-C2, does not have any retroactive effect. S5.7.1.3(a), S5.7.1.3(d), S5.7.1.4.1(b), DOT-C3, or DOT-C4, applied Under 49 U.S.C. 30103, whenever a and the last sentence of S5.7.1.4.1(c), horizontally and vertically to the right Federal motor vehicle safety standard is and the headings of S7.5 and S7.7 to and left upper contours of the body, as in effect, a state may not adopt or read as follows: viewed from the rear, as close to the top maintain a safety standard applicable to § 571.108 Motor Vehicle Safety Standard of the trailer and as far apart as the same aspect of performance which No. 108 Lamps, Reflective Devices, and practicable. If the perimeter of the body, is not identical to the Federal standard. Associated Equipment as viewed from the rear, is other than Forty-nine U.S.C. 30161 sets forth a * * * * * rectangular, the strips may be applied procedure for judicial review of final S5.4 Equipment along the perimeter, as close as rules establishing, amending or revoking combinations. *** practicable to the uppermost and outermost areas of the rear of the body Federal motor vehicle safety standards. * * * * * on the left and right sides. That section does not require S5.7.1.3 Sheeting pattern, (c) Element 3: * * * Grade DOT-C2 submission of a petition for dimensions, and relative coefficients of material not less than 38 mm wide may reconsideration or other administrative retroreflection. proceedings before parties may file suit (a) Retroreflective sheeting shall be be used. in court. applied in a pattern of alternating white * * * * * and red color segments to the side and S7.5 Replaceable bulb headlamp List of Subjects in 49 CFR Part 571 rear of each trailer, and in white to the system. *** Imports, Motor vehicle safety, Motor upper rear corners of each trailer, in the * * * * * vehicles. locations specified in S5.7.1.4, and S7.7 Replaceable light Figures 30–1 through 30–4, as sources. *** PART 571ÐFEDERAL MOTOR appropriate. * * * * * VEHICLE SAFETY STANDARDS * * * * * (d) Retroreflective sheeting shall have § 571.108 [Amended] In consideration of the foregoing, 49 a width of not less than 50 mm (Grade 3. Section 571.108 is amended by CFR part 571 is amended as follows: DOT-C2), 75 mm (Grade DOT-C3), or removing Figure 30 and adding Figures 1. The authority citation for Part 571 100 mm (Grade DOT-C4). 30–1 through 30–4 as set forth below: continues to read as follows: * * * * * BILLING CODE 4910±59±P Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations 1753 1754 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations 1755 1756 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations BILLING CODE 4910±59±C Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations 1757 Issued on: December 28, 1994. EFFECTIVE DATE: December 30, 1994. Federal Register advising a state, and Ricardo Martinez, FOR FURTHER INFORMATION CONTACT: notifying Federal vessel permit and Administrator. Hannah Goodale, 508–281–9101. dealer permit holders, that effective [FR Doc. 95–102 Filed 1–4–95; 8:45 am] SUPPLEMENTARY INFORMATION: upon a specific date, a portion of a BILLING CODE 4910±59±P Regulations implementing Amendment state’s commercial quota has been 2 to the Fishery Management Plan for transferred to, or combined with, the the Summer Flounder Fishery are found commercial quota of another state. DEPARTMENT OF COMMERCE at 50 CFR part 625. The regulations North Carolina has agreed to transfer require annual specification of a 150,000 lb (68,040 kg) of commercial National Oceanic and Atmospheric commercial quota that is apportioned Administration quota to New York. The Regional among the coastal states from North Director has determined that the criteria Carolina through Maine. The process to 50 CFR Part 625 set forth in § 625.20(f) have been met, set the annual commercial quota and the and publishes this notification of quota [I.D. 122794C] percent allocated to each state is transfers. described in § 625.20. Summer Flounder Fishery The final rule implementing Classification AGENCY: National Marine Fisheries Amendment 5 to the FMP was This action is taken under 50 CFR Service (NMFS), National Oceanic and published December 17, 1993 (58 FR Atmospheric Administration (NOAA), 65936), and allows two or more states, part 625 and is exempt from review Commerce. under mutual agreement and with the under E.O. 12866. ACTION: Notification of commercial concurrence of the Director, Northeast Authority: 16 U.S.C. 1801 et seq. quota transfer. Region, NMFS, (Regional Director) to transfer or combine summer flounder Dated: December 30, 1994. SUMMARY: NMFS announces that the commercial quota. The Regional David S. Crestin, State of North Carolina is transferring Director is required to consider the Acting Director, Office Of Fisheries 150,000 lb (68,040 kg) of commercial criteria set forth in § 625.20(f)(1), in the Conservation and Management, National summer flounder quota to the State of evaluation of requests for quota transfers Marine Fisheries Service. New York. NMFS adjusted the quotas or combinations. [FR Doc. 94–32337 Filed 12–30–94; 11:39 and announces the revised commercial Further, the Regional Director is am] quota for each state involved. required to publish notification in the BILLING CODE 3510±22±F 1758 Proposed Rules Federal Register Vol. 60, No. 3 Thursday, January 5, 1995 This section of the FEDERAL REGISTER 1500, telephone number (202) 720– Catalog of Federal Domestic Assistance contains notices to the public of the proposed 8674. issuance of rules and regulations. The The program described by this purpose of these notices is to give interested SUPPLEMENTARY INFORMATION: proposed rule is listed in the Catalog of persons an opportunity to participate in the Executive Order 12866 Federal Domestic Assistance Programs rule making prior to the adoption of the final under number 10.851, Rural Telephone rules. This proposed rule has been Loans and Loan Guarantees, and 10.582, determined to be not significant and Rural Telephone Bank Loans. This therefore has not been reviewed by the catalog is available on a subscription DEPARTMENT OF AGRICULTURE Office of Management and Budget. basis from the Superintendent of Rural Utilities Service Executive Order 12778 Documents, the United States Government Printing Office, 7 CFR Part 1755 This proposed rule has been reviewed Washington, DC 20402. under Executive Order 12778, Civil Executive Order 12372 RIN 0572±AA66 Justice Reform. If adopted, this proposed rule will not: (1) Preempt any This proposed rule is excluded from Telephone Program Regulations State or local laws, regulations, or the scope of Executive Order 12372, AGENCY: Rural Utilities Service, USDA. policies; (2) have any retroactive effect; Intergovernmental Consultation that ACTION: Proposed rule. and (3) require administrative requires intergovernmental consultation proceedings before parties may file suit with state and local officials. A Notice SUMMARY: The Rural Utilities Service challenging the provisions of this rule. of Final Rule entitled Department (RUS) proposes to amend its regulations Programs and Activities Excluded from Regulatory Flexibility Act Certification on Telecommunications Standards and Executive Order 12372 (50 FR 47034) Specifications for Materials, Equipment The Administrator of RUS has exempts RUS and RTB loans and loan and Construction, by rescinding a determined that this proposed rule will guarantees, and RTB bank loans, to number of outdated bulletins. These not have a significant economic impact governmental and nongovernmental bulletins are incorporated by reference on a substantial number of small entities from coverage under this Order. in RUS telecommunications regulations entities, as defined by the Regulatory Background and thus are regulatory in nature. Flexibility Act (5 U.S.C. 601 et seq.). Therefore, RUS is requesting public This proposed rule streamlines and Pursuant to the Department of comments on this proposed rescission. updates RUS requirements for telephone Agriculture Reorganization Act of 1994 DATES: Comments concerning this borrowers by rescinding obsolete (Pub. L. 103–354, 108 Stat. 3178), the proposed rule must be received by RUS, standards and specifications. Borrowers United States Secretary of Agriculture or postmarked no later than February 6, unable to use products meeting only the simultaneously abolished the Rural 1995. specifications being eliminated may Electrification Administration (REA) ADDRESSES: Comments should be experience increased short-term costs. and established the Rural Utilities mailed to Director, Telecommunications However, RUS believes that borrowers Service (RUS). The terms ‘‘RUS Standards Division, Rural Utilities will benefit from reduced overall costs bulletin’’ and ‘‘RUS standards and Service, room 2835, South Building, due to the greater durability and lower specifications’’ have the same meaning U.S. Department of Agriculture, maintenance costs over time. These as the term ‘‘REA bulletin’’ and ‘‘REA Washington, DC 20250–1500. RUS bulletins no longer meet industry standards and specifications’’, unless requests an original and three copies of standards. otherwise indicated. RUS issues all comments (7 CFR part 1700). All publications titled ‘‘bulletins’’ which Information Collection and comments received will be made serve to guide borrowers regarding Recordkeeping Requirements available for public inspection at room already codified policy, procedures, and 2835, South Building, U.S. Department This proposed rule contains no requirements needed to manage loans, of Agriculture, Washington, DC 20250– information collection or recordkeeping loan guarantee programs, and the 1500 between 8 a.m. and 4 p.m. (7 CFR requirements under the Paperwork security instruments which provide for 1.27(b)). Reduction Act of 1980 (Pub. L. 96–511). and secure RUS financing. RUS issues FOR FURTHER INFORMATION CONTACT: standards and specifications for the National Environmental Policy Act Richard J. Peterson, Assistant Director, construction of telephone facilities Certification Telecommunications Standards financed with RUS loan funds. After Division, Rural Utilities Service, room The Administrator has determined review of RUS’s bulletin and 2835, South Building, U.S. Department that this proposed rule will not specification issuances, RUS has of Agriculture, Washington, DC 20250– significantly affect the quality of the decided to propose to rescind the 1500, telephone number (202) 720– human environment as defined by the outdated RUS bulletins listed below. 8663. Copies of individual bulletins are National Environmental Policy Act of RUS felt rescission was the best option available from the Publications Branch, 1969 (42 U.S.C. 4321 et seq.). Therefore, for these bulletins and welcomes public Rural Utilities Service, room 0180, this action does not require an comment. These bulletins are South Building, U.S. Department of environmental impact statement or incorporated by reference at 7 CFR Agriculture, Washington, DC 20250– assessment. 1755.97. Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Proposed Rules 1759 LIST OF RUS BULLETINS PROPOSED FOR RESCISSION Specification Date last is- RUS bulletin No. No. sued Title of standard or specification 345±13 ...... PE±22 ...... Jan. 1983 ...... RUS Specification for Aerial and Underground Telephone Cable. 345±29 ...... PE±38 ...... Feb. 1982 ...... RUS Specification for Self-Supporting Cable. 345±75 ...... PE±65 ...... Jan. 1977 ...... RUS Specification for Electronic Trunk Circuits. 345±168 ...... Form 538 ...... Oct. 1977 ...... RUS Specification for Equipment for Direct Distance Dialing. RUS Bulletins 345–13, RUS both bulletins because of obsolescence. 345–168 is no longer required therefore Specification for Aerial and RUS borrowers may refer to 7 CFR making the document obsolete. Underground Telephone Cable, PE–22 1755.390, RUS Specification for Filled List of Subjects in 7 CFR Part 1755 and 345–29, RUS Specification for Self- Telephone Cables, and/or 7 CFR Supporting Cable, PE–38 specify the 1755.890, RUS Specification for Filled Incorporation by reference, Loan technical requirements for air core Telephone Cables With Expanded programs—communications, Rural cables that are primarily used in aerial Insulation, for further information on areas, Telephone. plant installations. With the filled cables. For reasons set out in the preamble, development of filled cables having 80 RUS Bulletin 345–75, RUS RUS proposes to amend Chapter XVII of degree Centigrade filling compounds, Specification for Electronic Trunk title 7 of the Code of Federal filled cables, which are primarily used Circuits, PE–65, is proposed for Regulations as follows: for direct buried and underground plant rescission because RUS trunk circuits installations, can now be used for aerial are now digitally derived making RUS PART 1755ÐTELECOMMUNICATIONS plant installations. Since filled cables Bulletin 345–75 obsolete. STANDARDS AND SPECIFICATIONS provide greater service reliability than RUS Bulletin 345–168, RUS FOR MATERIAL, EQUIPMENT AND air core cables, filled cables for aerial Specification for Equipment for Direct CONSTRUCTION plant installations have increased on Distance Dialing, Form 538, specified RUS borrower construction projects. the technical requirements for 1. The authority citation for part 1755 This increasing use of filled cables for equipment use in direct distance continues to read as follows: aerial installations has resulted in a dialing. Since the equipment Authority: 7 U.S.C. 901 et seq. 1921 et seq. decline of air core cables for aerial plant requirements for direct distance dialing construction projects. Since the use of are now specified in RUS 7 CFR § 1755.97 [Amended] air core cables in aerial plant 1755.522, RUS General Specification for 2. Section 1755.97 is amended by construction is declining on RUS Digital, Stored Program Controlled removing the entries listed below from borrower projects, RUS is rescinding Central Office Equipment, RUS Bulletin the table: Specification Date last is- RUS bulletin No. No. sued Title of standard or specification ******* 345±13 ...... PE±22 ...... Jan. 1983 ...... RUS Specification for Aerial and Underground Telephone Cable. ******* 345±29 ...... PE±38 ...... Feb. 1982 ...... RUS Specification for Self-Supporting Cable. ******* 345±75 ...... PE±65 ...... Jan. 1977 ...... RUS Specification for Electronic Trunk Circuits. ******* 345±168 ...... Form 538 ...... Jan. 1977 ...... RUS Specification for Equipment for Direct Distance Dialing. ******* Dated: 12–6–94. 7 CFR Part 1755 Equipment by eliminating the Bob J. Nash, requirement for multiparty service and Under Secretary, Rural Economic and RUS General Specification for Digital, certain other technical aspects Community Development. Stored Program Controlled Central associated with this service. This Office Equipment (Form 522) [FR Doc. 95–246 Filed 1–4–95; 8:45 am] amendment does not diminish public telephone service integrity. BILLING CODE 3410±15±P AGENCY: Rural Utilities Service, USDA. DATES: Written comments must be ACTION: Proposed rule. received by RUS or postmarked no later SUMMARY: This document proposes to than February 6, 1995. amend the Rural Utilities Service (RUS) ADDRESSES: Written comments should General Specification for Digital, Stored be addressed to Orren E. Cameron III, Program Controlled Central Office Director, Telecommunications 1760 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Proposed Rules Standards Division, U.S. Department of and Regulatory Affairs of OMB, 7 U.S.C. 901 et seq., (RE Act). RUS Agriculture, Rural Utilities Service, Attention: Desk Officer for USDA, room issues construction standards and room 2835–S, Washington, DC 20250– 10102, New Executive Office Building, specifications for materials and 1500. RUS requires a signed original Washington, DC 20503. equipment. In accordance with the RUS and three copies of all comments (7 CFR loan contract, these standards and National Environmental Policy Act 1700.30(e)). Comments will be available specifications apply to facilities Certification for public inspection during regular constructed by RUS telephone business hours (7 CFR 1.27 (b)). RUS has determined that this borrowers. The Rural Electrification FOR FURTHER INFORMATION CONTACT: John proposed rule will not significantly Loan Restructuring Act of 1993 (RELRA) J. Schell, Chief, Central Office affect the quality of the human (107 Stat. 1356) mandates the Equipment Branch, environment as defined by the National elimination of multiparty service. This Telecommunications Standards Environmental Policy Act of 1969 (42 proposed rule will eliminate the Division, Rural Utilities Service, room U.S.C. 4321 et seq.). Therefore, this requirement in 7 CFR 1755.522 for 2836–S, U.S. Department of Agriculture, action does not require an multiparty service along with features Washington, DC 20250–1500, telephone environmental impact statement or which are associated with that service (202) 720–0671. assessment. such as revertive calling and multifrequency ringing. SUPPLEMENTARY INFORMATION: Catalog of Federal Domestic Assistance The program described by this List of Subjects in 7 CFR Part 1755 Executive Order 12866 proposed rule is listed in the Catalog of Loan programs—communications, This proposed rule has been Federal Domestic Assistance Programs Reporting and recordkeeping determined to be not-significant for under No. 10.851, Rural Telephone requirements, Rural areas, Telephone. purposes of Executive Order 12866 and Loans and Loan Guarantees, and 10.852, For the reasons set out in the therefore has not been reviewed by Rural Telephone Bank Loans. This preamble, chapter XVII of title 7 of the OMB. catalog is available on a subscription Code of Federal Regulations is amended Executive Order 12778 basis from the Superintendent of as follows: Documents, the United States This proposed rule has been reviewed Government Printing Office, PART 1755ÐTELECOMMUNICATIONS under Executive Order 12778, Civil Washington, DC 20402–9325. STANDARDS AND SPECIFICATIONS Justice Reform. This proposed rule will FOR MATERIALS, EQUIPMENT AND Executive Order 12372 not: CONSTRUCTION (1) Preempt any State or local laws, This proposed rule is excluded from regulations, or policies, unless they the scope of Executive Order 12372, 1. The authority citation for part 1755 present an irreconcilable conflict with Intergovernmental Consultation. A continues to read as follows: this rule; Notice of Final rule entitled Department Authority: 7 U.S.C. 901 et seq., 1921 et seq. (2) Have any retroactive effect; and Programs and Activities Excluded from 2. Section 1755.522 is amended by (3) Require administrative Executive Order 12372 (50 FR 47034) revising paragraphs (e)(5), (e)(6), (e)(7), proceedings before parties may file suit exempts RUS and RTB loans and loan (e)(11), and (e)(19)(vii), removing challenging the provisions of this rule. guarantees to governmental and paragraph (f)(1)(ii), redesignating Regulatory Flexibility Act Certification nongovernmental entities from coverage paragraph (f)(1)(iii) as paragraph under this Order. (f)(1)(ii), removing paragraphs (g)(2)(ii), RUS has determined that this (g)(2)(iii), (g)(8), (g)(8)(i), and (g)(8)(ii), proposed rule will not have a significant Background redesignating paragraphs (g)(2)(iv) economic impact on a substantial Since publication of the regulation on through (g)(2)(xv) as paragraphs (g)(2)(ii) number of small entities, as defined by REA General Specification for Digital, through (g)(2)(xiii), and paragraphs the Regulatory Flexibility Act (5 U.S.C. Stored Program Controlled Central (g)(9) through (g)(12)(iii) as paragraphs 601 et seq.). The changes to the General Office Equipment, the Federal Crop (g)(8) through (g)(11)(iii), revising Specification for Digital, Stored Program Insurance Reform and Department of paragraphs (i)(2)(ix) and (p)(1)(vi), Controlled Central Office Equipment in Agriculture Reorganization Act of 1994, introductory text, amending paragraph this proposed rule are updates which Public Law 103–354, 181 Stat. 3178 (p)(3)(i) by removing the entry have been made so that RUS telephone (Reorganization Act) has been enacted. ‘‘Revertive’’ from the table, removing borrowers can continue to provide their Pursuant to the Reorganization Act the paragraph (r)(6), redesignating subscribers with the most up-to-date United States Secretary of Agriculture paragraphs (r)(7) through (r)(8)(vii) as and efficient telephone service. simultaneously abolished the Rural paragraphs (r)(6) through (r)(7)(vii), and Electrification Administration (REA) Information Collection and revising paragraphs (s)(5)(ii)(A), and established the Rural Utilities Recordkeeping Requirements (s)(5)(ii)(C), introductory text and Service (RUS). Rules formerly published (s)(6)(ii) to read as follows: In compliance with the Office of by REA were reassigned to RUS Management and Budget (OMB) pursuant to a final rule published in the § 1755.522 RUS general specification for regulations (5 CFR Part 1320) which Federal Register at 59 FR 66438. digital, stored program controlled central implements the Paperwork Reduction Therefore, this proposed rule office equipment. Act of 1980 (Pub. L. 96–511) and section culminating a rulemaking proceeding * * * * * 3504 of that Act, the information initiated by REA is being published by (e) * * * collection and recordkeeping RUS. (5) The basic switching system shall requirements contained in this proposed RUS makes loans and loan guarantees include the provision of software rule have been approved by OMB under to telephone systems to provide and programming and necessary hardware, control number 0572–0059. Comments improve telecommunications service in including memory, for optional custom concerning these requirements should rural areas, as authorized by the Rural calling services such as call waiting, call be directed to the Office of Information Electrification Act of 1936, as amended, forwarding, three-way calling, and Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Proposed Rules 1761 abbreviated dialing. It shall be possible harmonic ringing may also be specified DEPARTMENT OF TRANSPORTATION to provide these services to any in appendix A of this section. individual line (single-party) subscriber. * * * * * Federal Railroad Administration The addition of these services shall not (C) The output of each generator shall reduce the anticipated ultimate have three or more voltage taps or a 49 CFR Part 214 engineered line, trunk, and traffic single tap with associated variable [FRA Docket No. RSOR 13, Notice No. 2 capacity of the switching system as control. Taps or control shall be easily RIN 2130±AA86] specified in appendix A of this section. accessible as installed in the field. (6) The requirements in this Software control of ringing generator Roadway Worker Protection specification apply only to single party outputs via I/O devices may be provided AGENCY: Federal Railroad lines. Although only single frequency in lieu of taps. The taps, or equivalent, Administration (FRA); DOT. ringing is required, other types may be shall be designated L, M, and H. The requested in appendix A of this section. variable control shall have a locking ACTION: Notice of establishment of (7) Provision shall be made for local device to prevent accidental advisory committee for regulatory automatic message accounting (LAMA), readjustment. The outputs at the negotiation session and notice of first and for traffic service position system terminals of the generators with a meeting. (TSPS) trunks, or equivalent, to the voltage input of 52.1 volts and rated full SUMMARY: The Federal Railroad operator’s office when required either resistive load shall be as follows for the Administration is announcing the initially or in the future. ringing frequencies provided. * * * establishment of an advisory committee * * * * * * * * * * to develop a report including a (11) Provision shall be made for hotel- (6) * * * recommended proposed rule concerning motel arrangements, as required by the (ii) The ringing cycle provided by the the protection of railroad employees owner, to permit the operation of interrupter equipment shall not exceed who work on or adjacent to track and message registers at the subscriber’s 6 seconds in length. The ringing period face the risk of injury from moving premises to record local outdial calls by shall be 2 seconds. trains and equipment. The committee guests (see Item 10.5, appendix A of this * * * * * will adopt its recommendation through section). a negotiation process. The committee is Appendix A to 7 CFR 1755.522 composed of persons who represent * * * * * [Amended] (19) * * * interests affected by any rule adopted on (vii) If the 911 service bureau is 3. Appendix A to 7 CFR 1755.522 is this issue. This notice also announces holding a calling line, it shall be amended by removing items 6.1.3, 6.1.4, the time and place of the first advisory possible for the 911 line to cause the and 6.1.5, redesignating items 6.1.6 committee meeting. equipment to ring back the calling line. through 6.1.16.2 as items 6.1.3 through DATES: The first meeting of the advisory This is done by providing a flash of on- 6.1.13.2, amending item 7.1 by committee will begin at 9:30 a.m. on hook signal from the 911 line lasting removing from the table the entries January 23–25, 1995. from 200 to 1,100 milliseconds. The ‘‘Two-party—Res’’, ‘‘Two-party—Bus’’, ADDRESSES: The first meeting of the signal to the calling line shall be ringing and ‘‘Four-party’’, removing items 10.2 advisory committee will be held in current if the line is on-hook, or receiver through 10.2.1.3, and redesignating Room 3200–3204 of the Nassif Building, off-hook (ROH) tone if the line is off- items 10.3 through 10.8.5 as items 10.2 U.S. Department of Transportation, 400 hook. through 10.7.5. 7th Street, SW., Washington, DC. * * * * * Appendix B to 7 CFR 1755.522 Subsequent meetings will be held at (i) * * * [Amended] locations to be announced. (2) * * * FOR FURTHER INFORMATION CONTACT: (ix) Distinctive tone, when required 4. Appendix B to 7 CFR 1755.522 is Christine Beyer or Cynthia Walters, for alarm calls, or other features, shall amended by removing items 1.2 and 1.3 Trial Attorneys, Office of Chief Counsel, consist of high tone interrupted at 200 and redesignating items 1.5 through 1.9 FRA, 400 Seventh Street, SW., Room IPM with tone on 150 ms and off 150 as items 1.4 through 1.7. 8201, Washington, DC 20590 ms. Appendix C to 7 CFR 1755.522 (Telephone: 202–366–0621). * * * * * [Amended] SUPPLEMENTARY INFORMATION: (p) * * * (1) * * * 5. Appendix C to 7 CFR 1755.522 is I. Background (vi) The traffic capacity in the amended by revising item 3.1.3.1 to read The Rail Safety Enforcement and following table should be used for small as follows: Review Act, Pub. L. No. 102–365, 106 trunk groups such as pay station, special * * * * * Stat. 972, enacted September 3, 1992, service trunks, intercept, and PBX 3.1.3.1 The number of directory required FRA to review and revise its trunks, unless otherwise specified in numbers provided shall be based on the track safety standards, and to complete appendix A of this section. * * * total directory numbers required (Item ‘‘an evaluation of employee safety.’’ * * * * * 6.1.11, appendix (A), as modified by the FRA issued an Advance Notice of (s) * * * memory increment of the proposed Proposed Rulemaking (ANPRM) on (5) * * * system. November 16, 1992 (57 FR 54038) to (ii) * * * * * * * * begin the proceeding to amend the (A) The ringing generators shall have Dated: December 6, 1994. Federal Track Safety Standards (49 an output voltage which approximates a Bob J. Nash, C.F.R. Part 213). Following publication sine wave and, as a minimum, shall be Under Secretary, Rural Economic and of the ANPRM, FRA conducted a series suitable for ringing straight-line ringers. Community Development. of workshops to gather the industry’s Although not a requirement for RUS [FR Doc. 95–247 Filed 1–4–95; 8:45 am] views on the need for changes to FRA’s listing, decimonic, synchromonic, or BILLING CODE 3410±15±P track regulations. One such workshop 1762 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Proposed Rules held on March 31, 1993 was devoted develop new standards to protect Burlington Northern Railroad (BN) specifically to employee safety and roadway workers. Consolidated Rail Corporation (Conrail) addressed the hazards associated with On August 17, 1994 FRA published a CSX Transportation, Inc. (CSX) working adjacent to moving trains and notice of intent to establish an advisory Florida East Coast Railway Company equipment. It was determined that for committee (Committee) for regulatory (FEC) the purposes of any proceeding, the negotiation to develop a report Metra term ‘‘roadway worker’’ would be used including a recommended proposed and National Railroad Passenger Corporation rather than ‘‘maintenance of way final rule concerning protection for (AMTRAK) employee’’ to describe the group of roadway workers (59 FR 42200). The Norfolk Southern Corporation (NS) notice requested comment on Regional Railroads of America (RRA) employees at risk. This term Transport Workers Union of America membership, the interests affected by encompasses all employees of a railroad (TWU) or a contractor to a railroad who the rulemaking, the issues the Union Pacific Railroad Company (UP) construct, maintain, inspect or repair Committee should address, and the United Transportation Union (UTU) procedures it should follow. The notice railroad tracks, structures, signal and In order to ensure balance on the also announced the intent to seek the train control systems, communication Committee, the BMWE and BRS will be services of a professional neutral to systems, utility systems, or any other represented by more than one facilitate the negotiations and requested fixed property of a railroad while in individual: five for the BMWE and three nominations for this position from the close or potentially close proximity to for the BRS. FRA was not able to grant industry. tracks on which trains or equipment can requests for multiple seats made by two be operated. The term applies regardless FRA received over 30 comments on the notice of intent. None of the other organizations. APTA and RRA of the craft or class title of the employee, each submitted two names for affiliation with any labor organization, comments opposed using regulatory negotiation for this rulemaking; most membership, and FRA chose one name or rank within the railroad organization. from each organization. In making those Because FRA decided that this issue endorsed the process and included requests to serve on the Committee. decisions, the agency selected the should be addressed quickly and individuals with operating experience because the hazards involved relate Based on this response and for the reasons stated in the notice of intent, rather than the lawyers that were more closely to employee safety than to nominated by APTA and RRA. FRA track standards, FRA moved roadway FRA has determined that establishing an advisory committee on this subject is believes that the Committee will benefit worker safety from the track safety greatly from members who have actual standard review (FRA Docket No. RST– necessary and in the public interest. In accordance with Section 9(c) of the knowledge of railroad operating 90–1) and placed it in FRA Docket No. practices and hands-on field experience RSOR 13. Federal Advisory Committee Act, 5 U.S.C. App. I § 9(c), FRA prepared a with those practices. Since 1989, 24 roadway workers have FRA regrets being unable to Charter for the establishment of the been fatally injured by moving trains or accommodate all requests for Roadway Worker Safety Advisory equipment. Ten workers were struck by membership on the Committee. Several Committee. On December 27, 1994 the trains while performing work, four were factors, which were listed in the notice Office of Management and Budget struck by trains on track adjacent to the of intent, guided FRA’s decision to limit approved the Charter, authorizing the work location, five stepped into a train’s the Committee’s size to 25. The Committee to begin negotiating the path, and five were struck by Committee must be kept to a size that provisions of a proposed rule. maintenance-of-way equipment. These permits effective negotiation, but that fatalities are among the following crafts: II. Mediators ensures all interests a voice in the signal maintainers, machine operators, In the notice of intent, FRA stated that recommendation adopted. Although welders, track foremen, track inspectors, it was seeking an impartial mediator to FRA would have preferred a smaller and track laborers. These figures reflect conduct the negotiations. FRA is Committee, the agency erred on the side a serious problem that may require pleased to announce that the Federal of inclusion to be certain that all changes in railroad operating rules, Mediation and Conciliation Service interests affected by a rule would be training and practices. In the past year, (FMCS) has agreed to provide mediation represented in this process. the Brotherhood of Maintenance of Way personnel for this purpose. Summarized below is FRA’s rationale Employes and the Brotherhood of for denying the remaining applications Railroad Signalmen have filed petitions III. Membership for membership. for emergency order and rulemaking In addition to a representative from The Chicago and North Western that suggest procedures to reduce FRA, the Committee will consist of the Railway Company (CNW) requested roadway worker fatalities and injuries. following members: representation on the Committee, but On June 3, 1994 FRA Administrator American Public Transit Association unfortunately could not be selected. Jolene M. Molitoris convened a meeting (APTA) Other Class 1 railroads on the with all affected industry The American Short Line Railroad Committee work with operating representatives to discuss what actions Association (ASLRA) procedures, environmental conditions, the industry and the agency should take Association of American Railroads topographical characteristics, and to prevent injuries and fatalities among (AAR) employee relations that are quite similar roadway workers. FRA and the industry Brotherhood of Locomotive Engineers to those of CNW. Each of these factors concluded that extensive input from all (BLE) may impact the content of a interested parties would be necessary to Brotherhood of Locomotive Engineers, recommended proposed rule and so it is develop a rule that will address both the American Train Dispatchers important that they be fully represented. risk of injury from moving railroad Department (ATDA) However, FRA believes that AAR, BN, equipment and the operational concerns Brotherhood of Maintenance of Way CSX, Conrail, NS, and UP adequately that the issue presents. Therefore, it was Employes (BMWE) represent CNW’s interests. determined that the agency should Brotherhood of Railroad Signalmen The Massachusetts Bay initiate a negotiated rulemaking to (BRS) Transportation Authority (MBTA) Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Proposed Rules 1763 petitioned for membership on the all Committee meetings will be open to matters the Committee finds necessary Committee, but was not selected. MBTA the public, and the Committee is to explore. is a commuter line in the northeast with expected to devise procedures that will VI. Procedure and Schedule operational characteristics that are very periodically permit comment from the similar to those of Amtrak, a Committee public. FRA will hold a public hearing Those who commented on the notice member. Also, APTA’s Committee after issuing a proposed rule, and will of intent generally did not address member will represent all commuter invite and consider comments from Committee procedures. FRA anticipates lines in this proceeding. Therefore, FRA organizations such as the NRCMA that all or a substantial majority of the believes that MBTA’s interests will be before promulgating any final standard. negotiation sessions will take place in adequately represented by the other Washington, D.C. at DOT headquarters. IV. Participation by Non-Members commuter rail organizations on the Given FRA’s limited resources, travel Committee. FRA believes that public participation outside of Washington, D.C. for the The Long Island Rail Road (LIRR) is critical to the success of this purpose of holding negotiation sessions requested Committee membership and proceeding. Participation is not limited is unlikely. However, FRA will consider nominated its Executive Director of to Committee members. Negotiation any recommendations made by the System Safety to serve as its sessions will be open to the public, so Committee in this regard. representative. Although FRA was not interested parties may observe the FRA will not make any able to select LIRR for Committee negotiations and communicate their determinations at this time concerning membership, its nominee will serve on views in the appropriate time and the frequency or timing of public the Committee representing the interests manner to Committee members. Also, hearings, or the development of of APTA and all public transit interested groups or individuals may negotiation subcommittees. FRA’s organizations. Therefore, LIRR’s have the opportunity to participate with ability to hold public hearings will be interests will be effectively considered working groups of the Committee. FRA subject to the availability of funds for during the negotiation process. believes that this sort of participation this purpose. However, FRA will The Wisconsin Central Ltd. (WC) will produce meaningful information consider any recommendations the requested representation on the and lead to a more effective roadway Committee makes on these matters. Committee and nominated its Vice worker safety program. Of course, FRA Consistent with requirements of the President of Engineering to represent its will invite comment on the proposed Federal Advisory Committee Act, a clear interests. This individual was also rule resulting from the Committee’s nominated to represent RRA. FRA was and comprehensive record of the deliberations and hold a public hearing Committee’s deliberations should be unable to select WC individually, but its to hear additional comments. nominee has been chosen to represent kept and circulated to Committee RRA and all regional railroads. V. Major Issues members. FRA will provide an administrative specialist to the Therefore, WC’s interests will be In its notice of intent, FRA tentatively adequately addressed in the negotiation Committee to complete these duties and identified major issues to consider in assist with drafting any additional process. the negotiation and asked for comment Finally, the National Railroad documents, including the Committee’s on whether the issues presented were Construction and Maintenance report. The Committee may also choose appropriate and if alternate or Association, Inc. (NRCMA) filed a to designate additional individuals to additional issues should be considered. request for membership jointly with draft documents. Unfortunately, most comments RRA, and nominated its Executive Vice The objective of the negotiation, in submitted were devoted to issues of President to represent the interests of FRA’s view, is for the Committee to membership rather than rule substance. NRCMA and RRA. As indicated above, produce a report recommending a Listed below are subjects FRA believes RRA filed a second application for course of action for FRA to follow that the negotiation process should address: representation asking that WC’s Vice will prevent roadway worker injuries President of Engineering also represent 1. Devices available that would and fatalities. FRA anticipates that the their interests. As already stated, this reduce the risk of injury to roadway report will include a draft NPRM on individual has been chosen to represent workers; which the Committee has reached RRA (and WC implicitly) because he 2. Practices and training programs consensus. This approach is consistent brings extensive hands-on experience to currently in use or that may be with recommendations of the the proceeding. FRA deliberated over instituted to reduce the risk of injury to Administrative Conference of the NRCMA’s application, and determined roadway workers; United States on regulatory negotiation. that its interests will be effectively 3. The extent to which environmental, As stated in the notice of intent, FRA represented by the railroads and labor topographical, and operational will proceed on its own if the organizations on the Committee who conditions do or should cause variations Committee cannot reach consensus on a currently have primary responsibilities in any roadway worker safety program; recommended course of action. In that for protecting roadway workers. 4. The type and extent of FRA event, FRA will make every attempt to NRCMA’s duties derive from and are enforcement and recordkeeping include provisions that the Committee subject to those of the railroads with requirements necessary to protect did reach agreement on in the agency’s whom they contract for maintenance roadway workers; and NPRM. Also, as stated in the notice of and construction work. Given the 5. The costs associated with intent, FRA must review the limitations the agency faces in creating developing an effective roadway worker Committee’s recommendations for a Committee of reasonable size, and the safety program. (The costs include but enforceability and effectiveness. If the broad spectrum of railroads and are not limited to the burden on agency determines that the report employee crafts represented on the railroads and local, state, and federal contains recommendations which are Committee, FRA believes that NRCMA’s government entities.) unenforceable, contrary to existing law, interests will be effectively addressed in FRA believes that the negotiation or completely ineffective, FRA may this process. Also, public participation process should be open to discussion abandon or amend the Committee’s will be a key component of this process; about these and any other relevant recommendations. However, we believe 1764 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Proposed Rules likelihood of such a situation is remote, Committee devises at the first meeting and calendar, and will then begin and will seek to avoid this result. to be held on January 23–25, 1995. As substantive deliberations on roadway In view of the high priority FRA has time permits, FRA will publish notices worker safety. FRA has given advance given this proceeding and the of future meetings in the Federal notice of this meeting to all Committee facilitation contract limitations, the Register. The first meeting is scheduled members and believes that all members agency is asking the advisory committee to begin at 9:30 a.m. in Room 3200–3204 will be present for this first and to complete negotiations for the NPRM of the Nassif Building, DOT important meeting. by May 1, 1995. FRA realizes that this headquarters. This session will Issued this 29th day of December, 1994. deadline is ambitious, but we believe commence with an orientation and that it will encourage serious and regulatory negotiation training program S. Mark Lindsey, efficient negotiation by all parties. conducted by facilitators from the Acting Administrator, Federal Railroad The negotiation process will Federal Mediation and Conciliation Administration. otherwise proceed according to a Service. After the training program, the [FR Doc. 95–201 Filed 1–4–95; 8:45 am] schedule of specific dates that the Committee will devise its procedures BILLING CODE 4910±06±P 1765 Notices Federal Register Vol. 60, No. 3 Thursday, January 5, 1995 This section of the FEDERAL REGISTER livestock owners who are determined by Laguna Indian Reservation will not contains documents other than rules or the Bureau of Indian Affairs, United displace or interfere with normal proposed rules that are applicable to the States Department of the Interior, to be marketing of agricultural commodities. public. Notices of hearings and investigations, needy members of the Confederated 3. Based on the above determinations, committee meetings, agency decisions and Salish and Kootenai Tribes utilizing rulings, delegations of authority, filing of the Pueblo of Laguna Indian Reservation petitions and applications and agency such lands. These donations by the CCC of New Mexico is declared an acute statements of organization and functions are may commence upon November 15, distress area and the donation of feed examples of documents appearing in this 1994, and shall be made available grain owned by the CCC is authorized section. through April 30, 1995, or such other to livestock owners who are determined date as may be stated in a notice issued by the Bureau of Indian Affairs, United by the Executive Vice President, CCC. States Department of the Interior, to be DEPARTMENT OF AGRICULTURE Signed at Washington, DC, on December needy members of the Pueblo of Laguna 23, 1994. utilizing such lands. These donations by Commodity Credit Corporation Bruce R. Weber the CCC may commence upon Feed Grain Donations; Flathead Indian Acting Executive Vice President, Commodity September 22, 1994, and shall be made Reservation of Montana Credit Corporation. available through December 20, 1994, or [FR Doc. 95–240 Filed 1–4–95; 8:45 am] such other date as may be stated in a AGENCY: Commodity Credit Corporation, BILLING CODE 3410±05±P notice issued by the Executive Vice USDA. President, CCC. ACTION: Notice. Signed at Washington, DC, on December Feed Grain Donations; Pueblo of 23, 1994. SUMMARY: Executive Vice President, Laguna Indian Reservation of New Bruce R. Weber, Commodity Credit Corporation (CCC) is Mexico announcing that the Flathead Indian Acting Executive Vice President, Commodity Credit Corporation. Reservation of Montana is an acute AGENCY: Commodity Credit Corporation, distress area and that CCC-owned feed USDA. [FR Doc. 95–242 Filed 1–4–95; 8:45 am] BILLING CODE 3410±05±P grain will be donated to needy livestock ACTION: Notice. owners on the reservation. SUMMARY: The Executive Vice President, FOR FURTHER INFORMATION CONTACT: John Forest Service Newcomer, Consolidated Farm Service Commodity Credit Corporation (CCC) is Agency, P.O. Box 2415, Washington, DC announcing that the Pueblo of Laguna Bennett-Cottonwood Oil and Gas 20013–2415, 202–720–6157. Indian Reservation of New Mexico is an Development EIS Custer National acute distress area and that CCC-owned SUPPLEMENTARY INFORMATION: Pursuant Forest, McKenzie County, North to the authority set forth in section 407 feed grain will be donated to needy Dakota of the Agricultural Act of 1949, as livestock owners on the reservation. amended (7 U.S.C. 1427), and Executive FOR FURTHER INFORMATION CONTACT: John AGENCY: Forest Service, USDA. Order 11336, notice is being given that Newcomer, Consolidated Farm Service ACTION: Notice; intent to prepare it is determined that: Agency, P.O. Box 2415, Washington, DC environmental impact statement. 1. The chronic economic distress of 20013–2415, 202–720–6157. the needy members of the Confederated SUPPLEMENTARY INFORMATION: Pursuant SUMMARY: The USDA, Forest Service, Salish and Kootenai Tribes located on to the authority set forth in section 407 will prepare an environmental impact the Flathead Indian Reservation of of the Agricultural Act of 1949, as statement (EIS) to disclose the Montana has been materially increased amended (7 U.S.C. 1427), and Executive environmental effects of further oil and and become acute because of severe Order 11336, notice is being given that gas development in the Bennett- drought during the 1994 growing season it is determined that: Cottonwood area, approximately 22 air and ensuing wild fires, thereby creating 1. The chronic economic distress of miles south of Watford City, North a serious shortage of feed and causing the needy members of the Indians on Dakota. The lands involved include increased economic distress. This the Pueblo of Laguna Indian Reservation portions of the McKenzie Ranger reservation is utilized by members of of New Mexico has been materially District, Little Missouri National the Confederated Salish and Kootenai increased and become acute because of Grasslands, Custer National Forest. Tribes for grazing purposes. drought during the 1992, 1993, and DATES: Written comments concerning 2. The use of feed grain or products 1994 growing seasons, thereby creating the scope of the analysis must be thereof made available by CCC for a serious shortage of feed and causing received by February 21, 1995. livestock feed for such needy members increased economic distress. on the Flathead Indian Reservation will This reservation is designated for ADDRESSES: Written comments not displace or interfere with normal Indian use and is utilized by members concerning the analysis should be sent marketing of agricultural commodities. of the Pueblo of Laguna for grazing to District Ranger, McKenzie Ranger 3. Based on the above determinations, purposes. District, Little Missouri National the Flathead Indian Reservation of 2. The use of feed grain or products Grasslands, Custer National Forest, HCO Montana is declared an acute distress thereof made available by CCC for 2, Box 8, Watford City, North Dakota, area and the donation of feed grain livestock feed for such needy members 58854. owned by the CCC is authorized to of the Pueblo Indians on the Pueblo of FOR FURTHER INFORMATION CONTACT: 1766 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices Questions about the proposed action Forest Service decision authority is management), 2,900 acres to and EIS should be directed to Lesley W. limited to the lands the Forest Service Management Area C (key wildlife Thompson, District Ranger, McKenzie administers. Thus, in this instance, the habitat area, in this case, bighorn Ranger District. Phone (701) 842–2393. Forest Service proposes to approve the sheep), and the rest to Management SUPPLEMENTARY INFORMATION: Until surface use and operations plans for the Area J (low development area). recently, there has been only one construction of five (5) new oil wells, In the Forest Plan Record of Decision, productive oil well in the Bennett- associated roads, and production it was recognized that because of Cottonwood area. The lease for this well facilities in the Bennett-Cottonwood existing commitments (private mineral was issued in 1970 and has been held area. As well as, consider approving a rights and existing leases), it would be in production since 1980 by Apache special use permit for a road to access difficult to manage this area in an Corporation. It’s establishment and private property surrounded by Federal undeveloped state. However, the maintenance has had little impact on lands within the same area. Production designation of Management Area C and the area. facilities includes the connection of J was considered the best attempt of The high potential for oil and the proposed wells to an oil and gas managing for these values while still development of leased mineral rights, as pipeline system. The Forest Service will recognizing existing rights (CNF ROD well as, private mineral rights, has not make any decision(s) regarding the page 20). resulted in the establishment of eight use of private or state lands, but must, The issue of oil and gas development new oil wells within the area since 1991 pursuant to the National Environmental on the roadless character of the area (four Federal minerals and four private Policy Act, consider the cumulative surfaced again during the Oil and Gas minerals). Successful oil production effects of actions ‘‘regardless of what Leasing FEIS for the Northern Little from these well has resulted in agency (Federal or non-Federal) or Missouri National Grasslands. While the additional applications to drill on person undertakes such other actions’’ decision was to lease the land within existing leases within the area. (40 CFR 1508.7). the Bennett-Cottonwood Management Since 1970, the year of the oldest This is a project level decision. The Area C with an NSO stipulation, close lease in the area, several resource project area is located in the following to 60 percent of the management area management plans were prepared that Townships, Ranges, and Sections: was already leased and held by inventoried and analyzed the area. They T146N, R100W, S(s) 3, 4, 5, 8, 9, and 10; production (NLM FEIS page 3–35). are: the Badlands Unit Plan (1974/75); and T147N R100W, S(s) 22, 26, 27, 28, Some additional development was Roadless Area Resource Inventory 32, 33, and 34. This is approximately envisioned in this area as a result of (RARE II, 1979); the Custer National 7,360 acres. The analysis area will be these existing leases, as shown in the Forest Land and Resource Management larger and will include the Bennett- Reasonably Foreseeable Development Plan, EIS, and Record of Decision (June Cottonwood Inventoried Roadless area Scenario (RFD) that was a part of this 10, 1987); and the Oil and Gas Leasing and suitable bighorn sheep habitat for leasing analysis (NLM FEIS page 4–6). EIS and ROD for the Northern Little the Sheep Creek herd. Managing these lands for low Missouri National Grasslands (1991). The decision(s) to be made are to development has been compromised by In addition to the noted plans, the approve or deny for implementation, in the need for access and development of North Dakota Game and Fish, re- part or whole, as submitted or modified, existing leases and due to limited introduced bighorn sheep (California individual development actions. control of privately owned minerals subspecies) into the Sheep Creek area in under Federal Surface ownership (NLM Additional Resource Information 1987. Bighorn sheep are a sensitive ROD page 19). Lands within the analysis area species in the Northern Region (R–1) of Wildlife, Bighorn Sheep the Forest Service. include portions of the following The McKenzie Ranger District intends Townships and Ranges: T147N, R100 Bighorn sheep (believed to be the on preparing an EIS because further and 101W; T146N, R99, 100, and 101W, Audubon subspecies), once a native of development in this area may 5th PM. There are approximately 28,500 the North Dakota badlands, disappeared significantly affect bighorn sheep and/or acres of land within the analysis area from the state when the last reported the Bennett-Cottonwood inventoried boundary, including 5,440 acres of ram was killed in 1905. The North roadless area (L1DAY). privately owned lands, and 1,280 acres Dakota Game and Fish Department There are a total of thirteen (13) new of North Dakota state lands. There are began re-introducing California bighorn oil wells proposed to be developed approximately thirty-one (31) leases sheep into the badlands of North Dakota within the Bennett-Cottonwood area. Of within the analysis area. The scope and in 1955. Since that time nearly 260 the thirteen proposed wells, five (5) will area of the decision will include sheep populate, through breeding and sit on Federal surface accessing Federal National Forest System lands or those release, private, state, and Federal lands minerals, two (2) will sit on Federal administered by the U.S. Forest Service throughout western North Dakota. The surface accessing private minerals, two only. Sheep Creek herd was re-introduced (2) will sit on private surface accessing near the Sheep Creek/Bennett- Federal minerals, one (1) will sit on Roadless Resource Cottonwood area in 1987. The Sheep private surface accessing private Part of the project area falls within the Creek herd is comprised of minerals, two (2) will sit on North Bennett-Cottonwood inventoried approximately of 30–35 sheep and is a Dakota state surface accessing Federal roadless area. There are 13,760 acres of component of the Sheep Creek-Magpie minerals, and one (1) will sit on North National Forest System lands within metapopulation which numbers Dakota state surface accessing state this roadless area. Its potential for approximately 50 to 60 sheep. leased minerals. Of the wells noted wilderness recommendation was The Forest Service in conjunction above, three that will sit on the same considered in the Forest Planning effort. with the North Dakota Game and Fish parcel of private property will require In the Forest Plan Record of Decision, Department and some oil companies are new road construction, across the none of this area was recommended for engaged in a research study of bighorn Federal surface, for access. This will wilderness consideration. Rather, sheep on the National Grasslands. One require approval of a special use permit approximately 4,600 acres was allocated of the anticipated outcomes is to shed by the Forest Service. to Management Area B (intensive range light on the effects of oil and gas Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices 1767 activities on bighorn sheep. The Release of Draft and Final EIS Dated: December 29, 1994. information gained through this study Lesley W. Thompson, will be used in developing a The draft environmental impact District Ranger. statement (DEIS) is expected to be filed conservation strategy that addresses the [FR Doc. 95–197 Filed 1–4–95; 8:45 am] with the Evironmental Protection long term management of California BILLING CODE 3410±11±M bighorn sheep on the Little Missouri Agency (EPA) and available for public National Grasslands. review in May 1, 1995. At that time, the This EIS will tier to the Custer EPA will publish a Notice of availability Eagle Creek Wild and Scenic River National Forest Land and Resource of the Draft EIS in the Federal Register. Management Plan Environmental Management Plan, EIS, and Record of The comment period on the Draft EIS Assessment, Wallowa-Whitman Decision (1987), as amended, and the will be 45 days from the date the EPA’s National Forest, Baker and Union Oil and Gas Leasing EIS for the notice of availability appears in the Counties, OR Northern Little Missouri National Federal Register. It is very important Grasslands and Record of Decision that those interested in management of AGENCY: Forest Service, USDA. (1991). This is a project level decision the Bennett-Cottonwood area participate ACTION: Notice of Availability. and the scope of the analysis will be at this time. To be most helpful, confined to issues associated with the comments on the Draft EIS should be as SUMMARY: On December 22, 1994, proposed action. site-specific as possible. The Final EIS Wallowa-Whitman Forest Supervisor, Federal, state,and local agencies, is scheduled to be completed by July 1, R.M. Richmond, signed a Decision lessees, permittees, and other 1995. Notice which adopted into the Forest individuals or organizations interested The Forest Service believes, at this Plan the Eagle Creek Wild and Scenic in or potentially affected by the decision early stage, it is important to give River Management Plan which required are invited to participate in the scoping reviewers notice of several court rulings an amendment to the Wallowa-Whitman process. Input to identify issues and related to public participants in the Forest Plan. alternatives to be addressed in this environmental review process. First, This management plan outlines use analysis will be gathered from the reviewers of draft environmental impact levels, development levels, resource public through mailing of scoping statements must structure their protection measures, and outlines a information to all known interested participation in the environmental general management direction for the publics. review of the proposal so that it is river corridor. This amendment is Based on comments made by the meaningful and alerts an agency to the necessary to implement the Wild and public on past proposals, the following reviewer’s position and contentions. Scenic Rivers Act which required the Forest Service to develop a management list of preliminary environmental issues Vermont Yankee Nuclear power Corp. v. plan for Eagle Creek. Interim direction has been identified. This list will be NRDC, 435 U.S. 519, 553 (1978). Also, was identified in the Forest Plan as confirmed of modified based on further environmental objections that could be Management Area 7 (Wild and Scenic input from the public. raised at the draft environmental impact Rivers). The environmental assessment 1. Consider the effects of oil well and statement stage but that are not raised documents the analysis of alternatives associated access road(s) development, until after completion of the final to managing the Eagle Creek Wild and including Federally leased minerals and environmental impact statement may be Scenic River in accordance with the where private minerals are overlain by waived or dismissed by the courts. Wild and Scenic Rivers Act. Federal surface and/or are accessed Wisconsin Heritages, Inc. v. Harris, 490 This decision is subject to appeal across Federal surface, on: F. Supp. 1334, 1338 (E.D. Wis. 1980). pursuant to Forest Service regulations a. Sensitive plant and/or animal Because of these court rulings, it is very 36 CFR Part 217. Appeals must be filed species, including bighorn sheep; important that those interested in this within 45 days from the date of proposed action participate by the close b. The Bennett-Cottonwood publication in the Baker City Herald. of the 45-day comment period so that inventoried roadless area; Notices of Appeals must meet the substantive comments and objections c. Canyon lands/complexes, including requirement of 36 CFR 217.9. are made available to the Forest Service riparian areas; The environmental assessment for the at a time when it can meaningfully d. Visual quality, especially as seen Eagle Creek Wild and Scenic River consider them and respond to them in from the North Unit of Theodore Management Plan is available for the the final environmental impact Roosevelt National Park, and the Little public review at the Wallowa-Whitman statement. Missouri Scenic River; National Forest Supervisor’s Office in e. Grazing; To assist the Forest Service in Baker City, Oregon. f. Private lands and access to these identifying and considering tentative EFFECTIVE DATE: Implementation of this lands within the analysis area; issues and proposed alternatives it is decision shall not occur within 30 days g. The Maah-Daah-Hey Trail; and helpful if comments are as specific as following publication of the legal notice h. The transportation system. possible. Reviewers may wish to refer to of the decision in the Baker City Herald. Alternatives to be considered in this the Council on Environmental Quality FOR FURTHER INFORMATION CONTACT: analysis depend on the final list of Regulations for implementing the Steve Davis, Wallowa-Whitman environmental issues. The following is procedural provisions of the National National Forest, P.O. Box 907, Baker a list of preliminary alternatives. Environmental Act at 40 CFR 1503.3 in addressing these points. City, Oregon 97814 or phone (503) 523– 1. No Action, deny, or defer to a later 1316. time, further development within the I am the responsible official for this area. decision and EIS. My address is Dated: December 22, 1994. 2. Approve as submitted, applications McKenzie Ranger District, Little R. M. Richmond, for permit to drill (Proposed Action); Missouri National Grasslands, Custer Forest Supervisor. 3. Approve but modify, applications National Forest, HC02 Box 8, Watford [FR Doc. 95–198 Filed 1–4–95; 8:45 am] for permit to drill. City, North Dakota 58854. BILLING CODE 3410±11±M 1768 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices Food and Consumer Service Consumers for the period November form of mortgage published in the 1993 through November 1994. Federal Register on September 29, 1994 Summer Food Service Program for The new 1995 reimbursement rates in at 59 FR 49594. Children; Program Reimbursement for dollars are as follows: DATES: The meeting will be held on 1995 Maximum Per Meal Reimbursement January 18, 1995, starting at 9:00 a.m. eastern time, and will end no later than AGENCY: Food and Consumer Service, Rates 3:30 p.m. USDA. Operating Costs ADDRESSES: The meeting will be held in ACTION: Notice. Breakfast—1.1800; Lunch or Supper— room 1255, South Building, U.S. SUMMARY: This notice informs the public 2.1200; Supplement—.5550. Department of Agriculture, 14th and Independence Ave., SW, Washington, of the annual adjustments to the Administrative Costs reimbursement rates for meals served in DC. a. For meals served at rural or self- the Summer Food Service Program for FOR FURTHER INFORMATION CONTACT: preparation sites: Charles R. Miller, Assistant to the Children (SFSP, or Program). These Breakfast—.1100; Lunch or Supper— adjustments reflect changes in the Administrator for Policy Analysis, Rural .2000; Supplement—.0550. Utilities Service, 14th and Consumer Price Index and are required b. For meals served at other types of by the statute governing the Program. Independence Ave., SW, Washington, sites: DC 20250–1500. Telephone: (202) 720– EFFECTIVE DATE: January 1, 1995. Breakfast—.0875; Lunch or Supper— 0424. .1675; Supplement—.0425. FOR FURTHER INFORMATION CONTACT: SUPPLEMENTARY INFORMATION: The Robert M. Eadie, Chief, Policy and The total amount of payments to State agencies for disbursement to Program meeting will be an informal work Program Development Branch, Child session to discuss questions and Nutrition Division, Food and Consumer sponsors will be based upon these Program reimbursement rates and the comments from the ad hoc Committee Service, U.S. Department of Agriculture, regarding the overall structure and number of meals of each type served. 3101 Park Center Drive, Room 1007, specific provisions of the proposed The above reimbursement rates, before Alexandria, Virginia 22302, (703) 305– electric distribution mortgage. Emphasis being rounded-off to the nearest quarter- 2620. will be mainly on technical discussions cent, represent a 1.8 per cent increase SUPPLEMENTARY INFORMATION: This of individual issues. In addition to the during 1994 (from 144.2 in November action is not a rule as defined by the ad hoc Committee and government 1993 to 146.8 in November 1994) in the Regulatory Flexibility Act (5 U.S.C. representatives, the meeting room will food away from home series of the 601–612) and thus is exempt from the accommodate 15 to 20 observers, who Consumer Price Index for All Urban provisions of that Act. In accordance will be allowed entry to the room on a Consumers, published by the Bureau of with the Paperwork Reduction Act of first-come first-served basis. RUS is Labor Statistics of the Department of 1980 (44 U.S.C. 3507), no new willing to schedule other meetings with Labor. The Department points out that recordkeeping or reporting requirements any interested individual or group to the administrative rate for Supplements have been included that are subject to discuss the proposed mortgage. ‘‘for meals served at other types of sites’’ approval from the Office of Management is the same rate that was in effect last Authority: 7 U.S.C. 901 et seq. and Budget. year because the increase in the Dated: December 20, 1994. This action is exempted from review Consumer Price Index was insufficient Wally Beyer, by the Office of Management and to raise the rounded rate to the next Administrator. Budget under Executive Order 12866. higher quarter cent. [FR Doc. 95–248 Filed 1–4–95; 8:45 am] This program is listed in the Catalog of Federal Domestic Assistance under Authority: Secs. 9, 13 and 14, National BILLING CODE 3410±15±P No. 10.559 and is subject to the School Lunch Act, as amended (42 U.S.C. 1758, 1761 and 1762a). provisions of Executive Order 12372 which requires intergovernmental Dated: December 29, 1994. DEPARTMENT OF COMMERCE Yvette S. Jackson, consultation with State and local National Institute of Standards and Acting Administrator, Food and Consumer officials, (7 CFR Part 3015, subpart V, Technology and final rule related notice published Service. at 48 FR 29114, June 24, 1983). [FR Doc. 95–251 Filed 1–4–95; 8:45 am] [Docket No. 941243±4343] BILLING CODE 3410±30±M Definitions Request for Public Comment on The terms used in this Notice shall Technology Development and have the meaning ascribed to them in Rural Utilities Service Research Needs To Reduce the Loss the regulations governing the SFPS (7 From Post-Earthquake Fires CFR Part 225). Notice of Meeting on Proposed Electric Distribution Mortgage AGENCY: National Institute of Standards Background and Technology, Commerce. AGENCY: Rural Utilities Service, USDA. ACTION: Notice; Request for Public Pursuant to section 13 of the National ACTION: Notice of meeting. Comment. School Lunch Act (42 U.S.C. 1761) and the regulations governing the SFSP (7 SUMMARY: The Rural Utilities Service SUMMARY: The National Institute of CFR Part 225), notice is hereby given of (RUS), formerly the Rural Electrification Standards and Technology requests adjustments in Program payments for Administration, will be meeting with public suggestions and comments on meals served to children participating in the ad hoc Mortgage Committee of the technology development and research the SFSP during the 1995 Program. National Rural Electric Cooperative needs that will be used in developing Adjustments are based on changes in Association, at their request, to answer recommendations to reduce the number the food away from home series of the questions and discuss comments by the and severity of post-earthquake fires. Consumer Price Index for All Urban Committee on the proposed standard This is not a solicitation for proposals. Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices 1769 DATES: Written suggestions and National Oceanic and Atmospheric The Council developed a draft Fishery comments (letter, fax, or e-mail) Administration Management Plan for Groundfish in received by January 25, 1995 will be 1981 that proposed shrimp trawl-gear considered. [I.D. 122094B] requirements contingent on development of bycatch excluder ADDRESSES: Written comments should Shrimp Fishery of the Gulf of Mexico devices in shrimp trawls that would be sent to Mr. W. Douglas Walton, reduce bycatch by 50 percent, with no AGENCY: National Marine Fisheries National Institute of Standards and more than a 3–percent loss of shrimp. In Service (NMFS), National Oceanic and Technology, Polymers Building, Room 1990, the Council, with pledges of Atmospheric Administration (NOAA), A345, Gaithersburg, MD 20899. In assistance from the shrimp industry, Commerce. addition, the fax number may be used announced its intent to reduce bycatch (301–869–3531) or e-mail ACTION: Notice of intent to prepare a mortality of juvenile red snapper in the ([email protected]). supplemental environmental impact shrimp fishery by 50 percent by 1993. statement (SEIS); request for comments. FOR FURTHER INFORMATION CONTACT: The 3-year delay was provided to develop the methodology in cooperative Anyone requesting information should SUMMARY: NMFS announces the intention of the Gulf of Mexico Fishery studies with the industry. The Council’s contact Mr. W. Douglas Walton, goal for bycatch reduction was affected telephone: 301–975–6872; fax: 301– Management Council (Council) to prepare an SEIS for proposed by the 1990 amendments to the 869–3531; e-mail: Magnuson Act that mandated a 3-year [email protected]. Amendment 9 to the Fishery Management Plan for the Shrimp research program to assess the impacts SUPPLEMENTARY INFORMATION: The Fishery of the Gulf of Mexico (FMP). of shrimp trawl bycatch on fishery Building and Fire Research Laboratory The FMP was prepared by the Council resources under the management of the at the National Institute of Standards and approved and implemented by Council. The results of this research and Technology (NIST), U.S. NMFS under provisions of the program will be considered as an Department of Commerce, is developing Magnuson Fishery Conservation and important basis for any specific recommendations to address the Management Act (Magnuson Act). The management actions. reduction of life and property loss purpose of Amendment 9 is to manage Recent advances in gear development resulting from post-earthquake fires. shrimp trawling in the Gulf of Mexico through government and shrimp The recommendations will focus on to reduce the bycatch mortality of fish, industry efforts have produced Bycatch concepts that would lead to the particularly juvenile stages. Reduction Devices (BRDs) that successfully exclude juvenile fish from prevention of fires following an DATES: Written comments on the scope earthquake and the means to reduce the shrimp trawls with a minimal loss of of the SEIS must be submitted by shrimp. In September 1994, the Council spread of fires that do occur. The February 6, 1995. recommendations will emphasize began development of Amendment 9 to ADDRESSES: Scoping comments and technologies with the potential for the FMP to address bycatch reduction. requests for additional information direct and near term impact on reducing The Council is considering the should be sent to Terrance Leary, Gulf the loss from fire in future earthquakes. following management alternatives for of Mexico Fishery Management Council, The recommendations will include the this amendment: 5401 West Kennedy Boulevard, Suite role of water, gas, liquid fuel, electrical 1. No management action; 331, Tampa, FL 33609–2486. power, communications, and 2. Require the use of NMFS-approved transportation lifeline systems in the FOR FURTHER INFORMATION CONTACT: BRDs in shrimp trawls in the exclusive ignition of fires and in the mitigation of Terrance R. Leary, 813–228–2815. economic zone (EEZ) within the 110– fire spread. SUPPLEMENTARY INFORMATION: The FMP fathom (201.17 m) contour; was approved by NMFS and 3. Require the use of NMFS-approved The Laboratory is seeking public implemented in 1981; it documented a BRDs in shrimp trawls in specified areas input in the form of concepts for significant problem in the Gulf Mexico of the Gulf of Mexico EEZ; technology development and research shrimp fishery involving adverse effects 4. Criteria for NMFS approval of needs which will be used in developing on other fisheries such as the groundfish BRDs, including specifications for a research plan. Technology and reef fish fisheries resulting from the exclusion of bycatch and retention of development and research needs may bycatch of fish in shrimp trawling shrimp; and include concepts related to pre- operations. 5. Seasonal and area restrictions to earthquake preparations, post- In the process of trawling for shrimp, reduce bycatch. earthquake operations, new and retrofit various species of fish are inadvertently The FMP was prepared by the Council construction techniques, and the rapid caught. Many of these fish, often at in 1980 and approved and implemented restoration of fire protection and lifeline juvenile stages, die before being in 1981. A draft and final environmental systems following an earthquake. discarded. Some overfished species, impact statement was prepared for the This request is only for the purpose of such as Gulf red snapper, are FMP which evaluated the identifying technology development and significantly and adversely affected environmental effects of the FMP and research needs. This request is not because of the bycatch mortality which the shrimp fishery. The SEIS to be directed at the implementation of is hampering stock recovery. Annual prepared for Amendment 9 will specific measures for reducing the loss stock assessments for red snapper for examine the environmental impacts of from post-earthquake fires. the period 1990–94 have indicated that the major alternative management Dated: December 29, 1994. the red snapper resource cannot recover measures considered by the Council as from its overfished status, even with a well as assessing, based on currently Samuel Kramer, total closure of the directed fishery, available information, the impacts of the Associate Director. without a 50 percent reduction in red Gulf shrimp trawl fisheries on the [FR Doc. 95–265 Filed 1–4–95; 8:45 am] snapper mortality resulting from shrimp human environment, the shrimp BILLING CODE 3510±13±M trawl bycatch. resources, protected species 1770 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices (endangered or threatened), and marine Dated: December 29, 1994. Dated: December 30, 1994. mammals within the Gulf of Mexico. Steven L. Swartz, L M. Bynum, The Council will begin developing Acting Director, Office of Protected Resources, Alternate, OSD Federal Register Liaison Amendment 9 and the draft SEIS in National Marine Fisheries Service. Officer, Department of Defense. early 1995, after consulting with its [FR Doc. 95–208 Filed 1–4–95; 8:45 am] [FR Doc. 95–219 Filed 1–4–95; 8:45 am] Shrimp Advisory Panel and Scientific BILLING CODE 3510±22±F BILLING CODE 5000±04±±M and Statistical Committee. Public hearings on the amendment documents and draft SEIS, as well as the formal Meeting of the DOD Advisory Group on filing of the draft SEIS with the DEPARTMENT OF DEFENSE Electron Devices Environmental Protection agency for a 45-day public comment period, are Office of the Secretary of Defense AGENCY: Department of Defense, expected to occur in the summer of Advisory Group on Electron Devices. Meeting of the DOD Advisory Group on 1995. Electron Devices ACTION: Notice. Authority: 16 U.S.C. 1801 et seq. Dated: December 28, 1994. AGENCY: Department of Defense, SUMMARY: Working Group A (Microwave Devices) of the DoD Advisory Group on Richard H. Schaefer, Advisory Group on Electron Devices. Electron Devices (AGED) announces a ACTION: Notice. Director, Office of Fisheries Conservation and closed session meeting. Management, National Marine Fisheries Service. SUMMARY: The DoD Advisory Group on DATES: The meeting will be held at [FR Doc. 95–180 Filed 1–4–95; 8:45 am] Electron Devices (AGED) announces a 0900, Wednesday, 11 January 1995. BILLING CODE 3510±22±F closed session meeting. ADDRESSES: The meeting will be held at DATES: The meeting will be held at Palisades Institute for Research 0900, Tuesday, 10 January 1995. Services, Inc., 1745 Jefferson Davis [I.D. 121594A] ADDRESSES: The meeting will be held at Highway, Crystal Square Four, Suite 500, Arlington, Virginia. Marine Mammals Palisades Institute for Research Services, Inc. 1745 Jefferson Davis FOR FURTHER INFORMATION CONTACT: AGENCY: National Marine Fisheries Highway, Crystal Square Four, Suite Walter Gelnovatch, AGED Secretariat, Service (NMFS), National Oceanic and 500, Arlington, Virginia. 1745 Jefferson Davis Highway, Crystal Atmospheric Administration (NOAA), FOR FURTHER INFORMATION CONTACT: Square Four, Suite 500, Arlington, Commerce. Becky Terry, AGED Secretariat, 1745 Virginia 22202. ACTION: Issuance of modification to Jefferson Davis Highway, Crystal Square SUPPLEMENTARY INFORMATION: The permit No. 916 (P552). Four, Suite 500, Arlington, Virginia mission of the Advisory Group is to 22202. provide advice to the Under Secretary of SUMMARY: Notice is hereby given that on Defense for Acquisition and December 29, 1994, permit No. 916, SUPPLEMENTARY INFORMATION: The Technology, to the Director of Defense issued to Michael T. Williams, mission of the Advisory Group is to Research and Engineering (DDR&E), and University of Alaska Fairbanks, provide advice to the Under Secretary of through the DDR&E to the Director, Department of Biology & Wildlife, Defense for Acquisition and Advanced Research Projects Agency Fairbanks, AK 99775, was modified to Technology, to the Director of Defense (ARPA) and the Military Departments in extend the expiration date until Research and Engineering (DDR&E), and planning and managing an effective and December 31, 1995. through the DDR&E to the Director, Advanced Research Projects Agency and economical research and development ADDRESSES: The modification and the Military Departments in planning program in the area of electron devices. related documents are available for and managing an effective and The Working Group A meeting will be review upon written request or by economical research and development limited to review of research and appointment in the following offices: program in the area of electron devices. development programs which the Permits Division, Office of Protected The AGED meeting will be limited to Military Departments propose to initiate Resources, NMFS, 1315 East-West review of research and development with industry, universities or in their Highway, Room 13130, Silver Spring, programs which the Military laboratories. This microwave device MD 20910 (301/713–2289); and Departments propose to initiate with area includes programs on Director, Alaska Region, NMFS, P.O. industry, universities or in their developments and research related to Box 21668, Juneau, AK 99802 (907/586– laboratories. The agenda for this microwave tubes, solid state microwave 7131). meeting will include programs on devices, electronic warfare devices, SUPPLEMENTARY INFORMATION: The Radiation Hardened Devices, electronic warfare devices, millimeter subject modification has been issued Microwave Tubes, Displays and Lasers. wave devices, and passive devices. The under the authority of the Marine The review will include details of review will include details of classified Mammal Protection Act of 1972, as classified defense programs throughout. defense programs throughout. amended (16 U.S.C. 1361 et seq.), the In accordance with Section 10(d) of In accordance with Section 10(d) of provisions of §§ 216.33(d) and (e) of the Pub. L. No. 92–463, as amended, (5 Pub. L. No. 92–463, as amended, (5 Regulations Governing the Taking and U.S.C. App. II§ 10(d) (1988)), it has been U.S.C. App. II¶10(d) (1988)), it has been Importing of Marine Mammals (50 CFR determined that this Advisory Group determined that this Advisory Group part 216), the Fur Seal Act of 1966, as meeting concerns matters listed in 5 meeting concerns matters listed in 5 amended (16 U.S.C. 1151 et seq.), and U.S.C. § 552b(c)(1) (1988), and that U.S.C. § 552b(c)(1) (1988), and that the fur seal regulations (50 CFR part accordingly, this meeting will be closed accordingly, this meeting will be closed 215). to the public. to the public. Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices 1771 Dated: December 30, 1994. recommendations and suggested DEPARTMENT OF EDUCATION L.M. Bynum, implementations for improvements to Alternate OSD Federal Register Liaison the Department’s depot maintenance Office of Special Education and Officer, Department of Defense. operations. Rehabilitative Services [FR Doc. 95–220 Filed 1–4–95; 8:45 am] In accordance with Section 10(d) of Office of Administrative Law Judges; BILLING CODE 5000±04±M the Federal Advisory Committee Act, P.L. No. 92–463, as amended (5 U.S.C. Intent To Compromise Claims, Ohio App. II, (1988)), it has been determined Rehabilitation Services Commission Defense Science Board Task Force on that this DSB Task Force meeting, AGENCY: Department of Education. Combat Identification concerns matters listed in 5 U.S.C. § 552b(c) (1) (1988), and that ACTION: Notice of intent to compromise ACTION: Notice of Advisory Committee accordingly this meeting will be closed claims. Meetings. to the public. SUMMARY: The Department intends to SUMMARY: The Defense Science Board Dated: December 30, 1994. compromise claims against the Ohio Task Force on Combat Identification L. M. Bynum, Rehabilitation Services Commission will meet in closed session on January Alternate OSD Federal Register Liaison now pending before the Office of 17, 1995 at the MITRE Corporation, Officer, Department of Defense. Administrative Law Judges (OALJ), Bedford, Massachusetts. [FR Doc. 95–222 Filed 1–4–95; 8:45 am] Docket Nos. 93–76–R and 93–120–R (20 The mission of the Defense Science BILLING CODE 5000±04±M U.S.C. 1234a(j)). Board is to advise the Secretary of DATES: Interested persons may comment Defense through the Under Secretary of on the proposed action by submitting Defense (Acquisition and Technology) Defense Science Board Task Force on written data, views, or arguments on or on scientific and technical matters as Global Positioning System (GPS) before February 21, 1995. they affect the perceived needs of the ADDRESSES: Department of Defense. At this meeting ACTION: Notice of advisory committee All comments concerning the Task Force will evaluate the DoD meeting. this notice should be addressed to long term strategy and plan for SUMMARY: The Defense Science Board Jeffrey B. Rosen, Office of the General development and fielding of a Task Force on Global Positioning Counsel, U.S. Department of Education, comprehensive situational awareness System (GPS) will meet in closed 600 Independence Avenue, S.W., Room (SA) and combat identification (CID) session on January 11–12, 1995 at Los 5411, FB–10B, Washington, D.C. 20202– architecture. Angeles Air Force Base, California. In 2242. In accordance with Section 10(d) of order for the Task Force to obtain time FOR FURTHER INFORMATION CONTACT: the Federal Advisory Committee Act, sensitive classified briefings, critical to Jeffrey B. Rosen. Telephone: (202) 401– P.L. No. 92–463, as amended (5 U.S.C. the understanding of the issues, this 6009. Individuals who use a App. II, (1988)), it has been determined meeting is scheduled on short notice. telecommunications device for the deaf that this DSB Task Force meeting, The mission of the Defense Science (TDD) may call the Federal Information concerns matters listed in 5 U.S.C. Board is to advise the Secretary of Relay Service (FIRS) at 1–800–877–8339 § 552b(c)(1) (1988), and that accordingly Defense through the Under Secretary of between 8 a.m. and 8 p.m., Eastern time, this meeting will be closed to the Defense for Acquisition and Technology Monday through Friday. public. on scientific and technical matters as SUPPLEMENTARY INFORMATION: Pursuant Dated: December 30, 1994. they affect the perceived needs of the to the Single Audit Act of 1984 (Pub. L. L. M. Bynum, Department of Defense. At this meeting 98–502) and the provisions of Office of the Task Force will review and Alternate OSD Federal Register Liaison Management and Budget (OMB) Officer, Department of Defense. recommend options available to Circular A–128, the Ohio Auditor of improve GPS jam resistance with [FR Doc. 95–221 Filed 1–4–95; 8:45 am] State conducted an audit of the State of particular emphasis on GPS tactical Ohio for the period July 1, 1989 through BILLING CODE 5000±04±M weapon applications. The main focus of June 30, 1990. A final audit report was the Task Force shall be the investigation issued on January 18, 1993 (ACN: 05– Defense Science Board Task Force on of techniques for improving the 23444G) (hereinafter ‘‘Ohio I’’). Depot Maintenance Operations and resistance of GPS embedded receivers in Based upon this audit report, the Management tactical missiles and precision Regional Commissioner, Region IV, munitions and their delivery platforms. Rehabilitation Services Commission, ACTION: Notice of Advisory Committee In accordance with Section 10(d) of U.S. Department of Education (ED), Meetings. the Federal Advisory Committee Act, issued a Preliminary Department P.L. No. 92–463, as amended (5 U.S.C. Decision (PDD) on June 24, 1993 in SUMMARY: The Defense Science Board App. II, 1988)), it has been determined which he requested that Ohio repay Task Force on Depot Maintenance that this DSB Task Force meeting $883,517 of funds misspent under Title Operations and Management will meet concerns matters listed in 5 U.S.C. I of the Rehabilitation Act of 1973, as in closed session on January 17, 1995 at § 552b(c)(1) (1988), and that accordingly amended (the Act), 29 U.S.C. 701 et seq. the Pentagon, Arlington, Virginia. this meeting will be closed to the There were six different findings as The mission of the Defense Science public. follows: Board is to advise the Secretary of Defense through the Under Secretary of Dated: December 30, 1994. 1. Finding 16—$10,395—late payment Defense for Acquisition and Technology L.M. Bynum, penalties. on scientific and technical matters as Alternate OSD Federal Register Liaison 2. Finding 18—$77,962—State match they affect the perceived needs of the Officer, Department of Defense. charged to the Federal program. Department of Defense. At this meeting [FR Doc. 95–00223 Filed 1–4–95; 8:45 am] 3. Finding 19—$227,400—payment of the Task Force will provide advice, BILLING CODE 5000±04±M back pay award. 1772 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices 4. Finding 20—$157,417—exceeded regulations. These overmatch funds can Ohio provided credible evidence that statutory limitation for indirect be substituted for disallowed Federal shows that this finding was based on costs. expenditures on a dollar-for-dollar some erroneous assumptions by the 5. Finding 21—$410,343—indirect costs basis. State auditors. Of the $410,343, a total not appropriately allocated. As a result, the repayment amount is of $26,018 was for telephone charges On October 29, 1993 Ohio filed an $143,299.64, to be paid within 30 days and a total of $115,116 was for rent application for review of the PDD with of execution of the agreement by ED. charges. These expenses are clearly the the Office of Administrative Law Judges Ohio would be assessed interest at a rate type of expenses that are charged (OALJ). of 4 percent per year if full payment is directly to grants, and the evidence The Ohio Auditor of State conducted not made within 30 days. Failure to submitted by the State demonstrates another audit covering the period July 1, make timely repayment within 40 days that these expenses were charged to the 1988 through June 30, 1989. A final would result in a late payment fee of 10 HHS grant. Thus, it appears that these audit report was issued on October 1, percent of the $143,299.64 principal. charges should no longer be disallowed. 1992 (ACN: 05–23033G) (hereinafter Finally, under the agreement, the parties The remaining charges of $269,209 ‘‘Ohio II’’). In Ohio II, the Regional would jointly move for dismissal of the consisted of equipment, building Commissioner issued a PDD on August appeal. For the following reasons, ED maintenance, and consultants for the 31, 1993 in which he requested that recommends approval of the proposed BDD. Documentation submitted by Ohio Ohio repay $10,798 of funds under the Settlement Agreement. showed that the HHS grant was charged for substantially all of these costs. Act. The demand for a refund was based A. Late Payment Penalties—100% There is no direct evidence that the upon Ohio using funds under the Act to Recovery pay late charges on overdue invoices. ED grant was also charged. Even one of Ohio filed an appeal of the PDD with In both Ohio I and Ohio II, the State the auditors, who made the initial audit the OALJ on September 30, 1993. incurred late charges on invoices that finding, expressed some doubt as to the On November 15, 1993 the were not properly paid. Ohio charged validity of the initial findings. Administrative Law Judge (ALJ) granted $10,395 and $10,798, respectively, to There is clearly a high litigation risk a motion to consolidate the two cases. the VR Basic Support Program under the in attempting to uphold the original On May 27, 1994 the Regional Act. Maintaining throughout the finding. At this time, ED has no Commissioner filed a Notice of negotiations that there was no basis to information to establish that any of the Reduction of Claim notifying the ALJ use Federal funds for late charges, ED disallowed costs were charged that, based upon new information refused to compromise this portion of inappropriately to the ED grant. submitted by Ohio, the claim in Ohio I the findings. Ohio has agreed to repay Although there is clearly a problem with was reduced by $106,840.86. The entire the $21,193, in full, as part of the the State’s recordkeeping with respect to outstanding amount in Finding #18 of proposed agreement. this issue, Ohio has presented other less $77,962 was eliminated and the reliable and circumstantial evidence B. Unallowable Indirect Costs—100% outstanding amount in Finding #20 was that could persuade a judge or a Federal Recovery reduced by $28,878.86 to $128,538.14. court to rule in substantial part or in full Thus, the total amount outstanding in In Ohio I, the State exceeded the for its position. Furthermore, it is highly the two appeals was reduced to statutory limitation for indirect costs unlikely that ED would have made the $787,474.14. and charged the excess funds to the ED cost disallowance if this information Ohio and ED have agreed to settle all VR grants. ED maintained that the had been available earlier. of the issues in these cases with the practice of charging unallowable costs Ohio has agreed to repay $62,014.50. exception of Finding #19 in Ohio I in to the VR program represented a Based upon the foregoing, ED believes the amount of $227,400. The parties will substantial harm to the Federal interest that it is prudent to accept the litigate this issue. The remaining of ensuring that Federal programs are settlement offer of 15 percent of the amount of $560,074.14 is covered by the not charged more than their fair and original costs disallowed in the PDD for Settlement Agreement. appropriate share of the costs. Ohio has this finding. Under the terms of the proposed agreed to pay the $128,538.14 D. Other Considerations agreement, Ohio owes ED a total of outstanding on this violation, in full, as $211,745.64. Of this amount, a total of part of the proposed agreement. If these issues are not settled, ED will $68,446.00 is credited to Ohio for incur further litigation costs. With C. Allocable Indirect Costs—15% overmatch reported on its SF–269 for respect to the back pay award that will Recovery fiscal year 1990. Under the Act, grant be litigated further, there are no factual funds are awarded to States on a In Ohio I, the auditors found that all issues in dispute. The only area of matching basis. Depending upon the indirect costs were charged to ED grants, contention is a legal issue—whether fiscal year, the Federal Government rather than to a centralized indirect cost Federal funds can pay for costs if no contributes approximately 80 percent of pool. As a result, the auditors concluded services were provided and there was the funding for the State’s vocational that the State received duplicative no benefit to the Federal interest. rehabilitation (VR) program. (34 CFR reimbursement from ED and the U.S. However, the allocable indirect costs 361.86.) The State is required to provide Department of Health and Human issue is predicated upon factual the remainder of the funding to earn the Services (HHS). In particular, 33 disputes and the lack of corroborating Federal contribution. State and Federal employees of the State’s Bureau of documentation. Extensive discovery VR funds are commingled so that it is Disability Determination (BDD) Fiscal efforts would be necessary before this not possible to identify which funds are Accounting Section worked entirely on issue could be litigated. In addition, ED used for particular program the HHS grant activities. The auditors could hope to recover, at best, only the expenditures. In this case, Ohio found that the related indirect costs for $269,209 that appears to be in dispute provided more State funds for VR these employees were charged at this time. The recovery in the services than was mandated by the inappropriately to the ED grants. A total proposed agreement is almost 23 matching requirement in § 361.86 of the of $410,343 was disallowed. percent of this amount. Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices 1773 While the other two issues appear to energy sources are used in the Energy established by Section 324 of the Act be very strongly in favor of ED, there Conservation Program for Consumer and in connection with advertisements would be some litigation risk during the Products established by the Energy of appliance energy use and energy administrative process. Moreover, Ohio Policy and Conservation Act, Pub.L. No. costs which are covered by Section also would have the right to appeal any 94–163, 89 Stat. 871, as amended, 323(c) of the Act. decision to the U.S. Court of Appeals. (EPCA). The Department last published See 20 U.S.C. 1234g. There is no EFFECTIVE DATE: The representative representative average unit costs of certainty that ED would recover 100 average unit costs of energy contained residential energy for use in the percent on these two issues as is in this notice will become effective Conservation Program for Consumer contemplated in the settlement. [Insert date 30 days after publication] Products on December 29, 1993. (58 FR After weighing the risks in litigating and will remain in effect until further 68901). Effective February 6, 1995, the the issues that are the subject of the notice. cost figures published on December 29, settlement, it is ED’s assessment that the 1993, will be superseded by the cost proposed Settlement Agreement is the FOR FURTHER INFORMATION CONTACT: figures set forth in this notice. most advantageous resolution of these Dr. Barry P. Berlin, U.S. Department of The Department’s Energy Information outstanding issues. Energy, Office of Energy Efficiency Administration (EIA) has developed the The public is invited to comment on and Renewable Energy, Forrestal 1995 representative average unit after- the Department’s intent to compromise Building, Mail Station EE–43, 1000 tax costs of electricity, natural gas, No. these claims. Additional information Independence Avenue, SW, 2 heating oil, propane and kerosene may be obtained by writing to Jeffrey B. Washington, DC 20585, (202) 586– prices found in this notice. The cost Rosen at the address given at the 9127 beginning of this notice. Eugene Margolis, Esq., U.S. Department projections for electricity and natural Program Authority: 20 U.S.C. 1234a(j) of Energy, Office of General Counsel, gas are found in the fourth quarter, (1990) Forrestal Building, Mail Station GC– 1994, EIA Short-Term Energy Outlook, Dated: December 29, 1994. 41, 1000 Independence Avenue, SW, DOE/EIA–0226 (94/4Q) and reflect the mid-price scenario. Projections for Donald R. Wurtz, Washington, DC 20585, (202) 586– residential (No.2) heating oil, propane Chief Financial Officer. 9507 and kerosene are based on the Short- [FR Doc. 95–217 Filed 1–4–95; 8:45 am] SUPPLEMENTARY INFORMATION: Section Term Energy Outlook net-of-tax 1 BILLING CODE 4000±01±P 323 of the EPCA (Act) requires that projection for heating oil costs and the DOE prescribe test procedures for the relative prices of those three fuels in determination of the estimated annual 1992 (the most recent year available) in DEPARTMENT OF ENERGY operating costs and other measures of the State Price and Expenditure Report, energy consumption for certain DOE/EIA–0376 (92). Both the Short- Office of Energy Efficiency and consumer products specified in the Act. Term Energy Outlook and the State Renewable Energy These test procedures are found in 10 Price and Expenditure Report are CFR Part 430, Subpart B. Energy Conservation Program for available at the National Energy Section 323(b) of the Act requires that Information Center, Forrestal Building, Consumer Products; Representative the estimated annual operating costs of Average Unit Costs of Energy Room 1F–048, 1000 Independence a covered product be computed from Avenue, SW., Washington, DC 20585, AGENCY: Office of Energy Efficiency and measurements of energy use in a (202) 586–8800. Renewable Energy, Department of representative average-use cycle and from representative average unit costs of The 1995 representative average unit Energy. costs stated in Table 1 are provided ACTION: Notice. energy needed to operate such product during such cycle. The section further pursuant to Section 323(b)(4) of the Act SUMMARY: In this notice, the Department requires DOE to provide information and will become effective February 6, of Energy (DOE or Department) is regarding the representative average 1995. They will remain in effect until forecasting the representative average unit costs of energy for use wherever further notice. unit cost of five residential energy such costs are needed to perform Issued in Washington, DC, December 29, sources for the year 1995. The five calculations in accordance with the test 1994. sources are electricity, natural gas, No. procedures. Most notably, these costs Christine A. Ervin, 2 heating oil, propane, and kerosene. are used under the Federal Trade Assistant Secretary, Energy Efficiency and The representative unit cost of these Commission appliance labeling program Renewable Energy. TABLE 1.ÐREPRESENTATIVE AVERAGE UNIT COSTS OF ENERGY FOR FIVE RESIDENTIAL ENERGY SOURCES (1995) Type of energy In common terms As required by test procedure Per million Btu 1 Electricity ...... 8.67¢/kWh 2, 3 ...... $.0867/kWh ...... $25.41 Natural gas ...... 63.0¢/therm 4 or $6.49/ .00000630/Btu ...... 6.30 MCF 5, 6. No. 2 Heating Oil ...... 1.008/gallon 7 ...... 00000727/Btu ...... 7.27 Propane ...... 0.985/gallon 8 ...... 00001079/Btu ...... 10.79 Kerosene ...... 1.094/gallon 9 ...... 00000810/Btu ...... 8.10 1 Btu stands for British thermal units. 1 References to the ‘‘Act’’ refer to the Energy 1987, the National Appliance Energy Conservation Policy and Conservation Act, as amended by the Amendments of 1988, and the Energy Policy Act of National Energy Conservation Policy Act, the 1992. 42 U.S.C. §§ 6291–6309. National Appliance Energy Conservation Act of 1774 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices 2 kWh stands for kilowatt hour. 3 1 kWh = 3,412 Btu. 4 1 therm = 100,000 Btu. Natural gas prices include taxes. 5 MCF stands for 1,000 cubic feet. 6 For the purposes of this table, one cubic foot of natural gas has an energy equivalence of 1,030 Btu. 7 For the purposes of this table, one gallon of No. 2 heating oil has an energy equivalence of 138,690 Btu. 8 For the purposes of this table, one gallon of liquid propane has an energy equivalence of 91,333 Btu. 9 For the purposes of this table, one gallon of kerosene has an energy equivalence of 135,000 Btu. [FR Doc. 95–236 Filed 1–4–95; 8:45 am] effective date of December 1, 1994. Federal Energy Regulatory BILLING CODE 6450±01±P Midwestern states that it is filing these Commission sheets to eliminate its Take or Pay Volumetric Surcharge. [Docket No. QF95±41±000] Federal Energy Regulatory Commission Midwestern states that it filed a Nelson Industrial Steam Co. Notice of Stipulation and Agreement governing Application for Commission [Docket No. ES95±16±000] resolution of take-or-pay matters in Certification of Qualifying Status of a Docket No. RP91–78 on October 17, Cambridge Electric Light Co.; Notice of Small Power Production Facility 1991, providing in part that Midwestern Application would collect $600,000 through its December 29, 1994. December 29, 1994. volumetric surcharge. The Commission On December 19, 1994, Nelson Take notice that on December 23, approved the Stipulation by order dated Industrial Steam Company of 3400 1994, Cambridge Electric Light June 25, 1992. Midwestern Gas Houston River Road, Westlake, Company filed an application under Transmission Co., 59 FERC 61, 358 Louisiana, submitted for filing an § 204 of the Federal Power Act seeking (1994). Midwestern states that it has application for certification of a facility authorization to issue not more than $35 collected the $600,000 through its as a qualifying small power production million of short-term debt during a two- volumetric surcharge and now seeks to facility pursuant to Section 292.207(b) year period commencing on the eliminate the volumetric surcharge of the Commission’s Regulations and effective authorization date and charge and all references to it in its Section 3(17) of the Federal Power Act. maturing less than one year after the tariff. No determination has been made that date of issuance. the submittal constitutes a complete Any person desiring to be heard or to Midwestern requests a waiver of the filing. protest said filing should file a motion thirty day notice period for tariff According to the applicant, the small to intervene or protest with the Federal changes so that the proposed changes power production facility, which will be Energy Regulatory Commission, 825 can go into effect December 1, 1994. located in Westlake, Louisiana, will North Capitol Street, NE., Washington, Midwestern states that copies of the consist of a circulating fluidized bed D.C. 20426 in accordance with Rules filing have been mailed to all of its combustion boiler and a steam turbine 211 and 214 of the Commission’s Rules jurisdictional customers and affected generator. The net electric power of Practice and Procedure (18 CFR state regulatory commission. production capacity of the facility will 385.211 and 385.214). All such motions be approximately 150 MW. The primary Any person desiring to be heard or to or protests should be filed on or before energy source of the facility will be January 23, 1995. Protests will be make any protest with reference to said petroleum coke, a by-product from the considered by the Commission in filing should file a petition to intervene refining of crude oil. determining the appropriate action to be or protest with the Federal Energy Any person desiring to be heard or taken, but will not serve to make the Regulatory Commission, 825 North objecting to the granting of qualifying protestants parties to the proceeding. Capitol Street, N.E., Washington, D.C. status should file a motion to intervene Any person wishing to become a party 20426, in accordance with Sections 211 or protest with the Federal Energy must file a motion to intervene. Copies and 214 of the Commission’s Rules of Regulatory Commission, 825 North of this filing are on file with the Practice and Procedure, 18 CFR 385.211 Capitol Street, NE., Washington, DC Commission and are available for public and 385.214. All such petitions or 20426, in accordance with rules 211 and inspection. protests should be filed on or before 214 of the Commission’s Rules of Lois D. Cashell, January 6, 1995. Protests will be Practice and Procedure. All such Secretary. considered by the Commission in motions or protests must be filed within [FR Doc. 95–178 Filed 1–4–95; 8:45 am] determining the appropriate action to be 30 days after the date of publication of this notice in the Federal Register and BILLING CODE 6717±01±M taken, but will not serve to make protestants parties to this proceeding. must be served on the applicant. Any person wishing to become a party Protests will be considered by the [Docket No. RP95±100±000] must file a petition to intervene. Copies Commission in determining the appropriate action to be taken but will Midwestern Gas Transmission Co.; of this filing are on file and available for public inspection. not serve to make protestants parties to Notice of Rate Filing the proceeding. Any person wishing to Lois D. Cashell, become a party must file a petition to December 29, 1994. Secretary. Take notice that on December 22, intervene. Copies of this filing are on [FR Doc. 95–179 Filed 1–4–95; 8:45 am] 1994, Midwestern Gas Transmission file with the Commission and are Company (Midwestern), filed its Fourth BILLING CODE 6717±01±M available for public inspection. Revised Sheet No. 5 and First Revised Lois D. Cashell, Sheet Nos. 35, 41, 52, 102, 103, and 104, Secretary. of Second Revised Volume No. 1 of its [FR Doc. 95–177 Filed 1–4–95; 8:45 am] FERC Gas Tariff, with a proposed BILLING CODE 6717±01±M Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices 1775 ENVIRONMENTAL PROTECTION environmental impacts and the SUPPLEMENTARY INFORMATION: Section AGENCY applicant’s financial status. If an 4(d) of TSCA requires EPA to publish a application meets a State’s [FRL±5134±3] notice in the Federal Register reporting requirements, the State prepares the the receipt of test data submitted Agency Information Collection appropriate loan agreement documents. pursuant to test rules promulgated Activities Under OMB Review Burden Statement: The public under section 4(a) within 15 days after reporting burden for this collection of it is received. Under 40 CFR 790.60, all AGENCY: Environmental Protection information is estimated to average 60 results of testing conducted pursuant to hours per response for reporting, and 50 Agency (EPA). a consent order must be announced to hours per recordkeeper annually. This ACTION: Notice. the public in accordance with the estimate includes the time needed to SUMMARY: In compliance with the review instructions, search existing data procedures specified in section 4(d) of Paperwork Reduction Act (44 U.S.C. sources, gather and maintain the data TSCA. 3501 et seq.), this notice announces that needed, and complete and review the I. Test Data Submissions the Information Collection Request (ICR) collection of information. abstracted below has been forwarded to Respondents: State and local Test data for refractory ceramic fibers the Office of Management and Budget government agencies. (RCFs) were submitted by three member (OMB) for review and comment. The Estimate No. of Respondents: 51 State companies of the Refractory Ceramic ICR describes the nature of the and 1,224 local government agencies. Fiber Coalition (RFCF) (Carborundum information collection and its expected Estimated No. of Responses per Company, Premier Refractories and cost and burden; where appropriate, it Respondent: An average of 24 per State Chemicals, Incorporated, and Thermal includes the actual data collection government and one per local Ceramics, Incorporated) pursuant to a government agency. instrument. Testing Consent Order at 40 CFR Estimated Total Annual Burden on DATES: Comments must be submitted on Respondents: 153,340 hours. 799.5000. They were received by EPA or before [Insert date 30 days after date Frequency of Collection: Annually. on December 23, 1994. The submission of publication in the Federal Register]. Send comments regarding the burden describes workplace exposure FOR FURTHER INFORMATION CONTACT: For estimate, or any other aspect of the monitoring data from RCFC company further information, or to obtain a copy information collection, including facilities, as well as from their of this ICR, contact Sandy Farmer at suggestions for reducing the burden, to: customers’ facilities. The customers 202–260–2740. Ms. Sandy Farmer, U.S. Environmental selected include those chosen at random SUPPLEMENTARY INFORMATION: Protection Agency, Information Policy and those who specifically requested Branch (2136), 401 M Street, SW, monitoring. Air monitoring samples Office of Water Washington, DC 20460 and were collected from employees engaged Title: (EPA ICR No. 1391.03; OMB No. Mr. Tim Hunt, Office of Management in RCF fiber production and processing, 2040–0118). This is a request for and Budget, Office of Information and or use in functional categories such as renewal of a currently approved Regulatory Affairs, 725 17th Street, forming, finishing, and installation. NW, Washington, DC 20503. information collection without any RCFs are used as insulation for change in the substance or in the Dated: December 29, 1994. industrial insulation applications such method of collection. David Schwarz, as high temperature furnaces, heaters, Abstract: Title VI of the Clean Water Acting Director, Regulatory Management and kilns. RCFs are also used in Act authorizes EPA to provide grants to Division. automotive applications, aerospace States for the establishment of State [FR Doc. 95–256 Filed 1–4–95; 8:45 am] Water Pollution Control Revolving uses, and in certain commercial BILLING CODE 6560±50±M Funds (SRFs). Before receiving a appliances such as self-cleaning ovens. capitalization grant for its revolving EPA has initiated its review and fund, a State must agree to contribute [OPPTS±44615; FRL±4928±8] evaluation process for these data partial funding of its own, and to meet submissions. At this time, the Agency is certain accounting, compliance, and Receipt of Test Data unable to provide any determination as enforcement commitments. States must AGENCY: Environmental Protection to the completeness of the submissions. provide EPA with an Intended Use Agency (EPA). Plan/Capitalization Grant Agreement, II. Public Record ACTION: Notice. Annual Reports, and perform and report EPA has established a public record on annually State financial and SUMMARY: This notice announces the for this TSCA section 4(d) receipt of compliance audits. Upon approval of receipt of test data on refractory ceramic data notice (docket number OPPTS– the capitalization grant application, fibers (RCFs) (CAS No. 142844–00–6), 44615). This record includes copies of each State establishes its SRF program. submitted pursuant to a Testing Consent all data reported in this notice. The Local communities submit Order under the Toxic Substances record is available for inspection from applications to their State for SRF Control Act (TSCA). Publication of this financial assistance. Typically, the local 12 noon to 4 p.m., Monday through notice is in compliance with section Friday, except legal holidays, in the community applicants are required to 4(d) of TSCA. TSCA Nonconfidential Information submit a project description, cost FOR FURTHER INFORMATION CONTACT: estimate, disbursement and construction James B. Willis, Acting Director, Center (NCIC) (also known as the TSCA schedules, an analysis of environmental Environmental Assistance Division Public Docket Office), Rm. NE–B607, and cost impacts, and a description of (7408), Office of Pollution Prevention 401 M St., SW., Washington, DC 20460. their financial capability and repayment and Toxics, Environmental Protection Authority: 15 U.S.C. 2603. plans. States review these applications Agency, Rm. E–545B, 401 M St., SW., List of Subjects for their conformance with the Intended Washington, DC 20460, (202) 554–1404, Use Plan, as well as for their TDD (202) 554–0551. Environmental protection, Test data. 1776 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices Dated: December 28, 1994. the case disclosed a pattern of proceedings listed in this Public Notice David J. Kling, circumstances raising a substantial and and published pursuant to 47 CFR material question of fact as to whether Acting Director, Office of Pollution Prevention Section 1.429(e). The full text of these and Toxics. Thompson permitted American Cellular documents are available for viewing and Network Corporation (Amcell) to copying in Room 239, 1919 M Street, [FR Doc. 95–252 Filed 1–4–95; 8:45 am] become a real-party-in-interest in its NW., Washington, DC or may be BILLING CODE 6560±50±F application. Those circumstances purchased from the Commission’s copy included: (1) Amcell’s status as the contractor ITS, Inc. (202) 857–3800. prospective purchaser of the system; (2) Opposition to these petitions must be FEDERAL COMMUNICATIONS the failure of Thompson to receive filed January 20, 1995. See Section COMMISSION profits; (3) Amcell’s substantial 1.4(b)(1) of the Commission’s rules (47 financial exposure; (4) Amcell’s specific [CC Docket No. 94±136, FCC 94±298] CFR 1.4(b)(1)). Replies to an opposition assumption of control over litigation must be filed within 10 days after the AGENCY: Federal Communications related to its management; (5) Amcell’s time for filing oppositions has expired. Commission. broad management responsibilities ACTION: Notice of Hearing Designation under a long-term agreement; and (6) Subject: Order. the consolidation of the facilities and Implementation of Sections 3(n) and staff of the Atlantic City system and SUMMARY: Cellular application of Ellis 332 of the Communications Act. Amcell’s operations in adjacent areas. (GN Docket No. 93–252) Thompson Corporation (Thompson) is Because the Commission believes that designated for hearing. The Commission a substantial and material question of Regulatory Treatment of Mobile has determined that a substantial and fact exists about the relationship Services. material question of fact exists as to between Thompson and Amcell, it has Amendment of Part 90 of the whether American Cellular Network designated an issue for hearing to Commission’s Rules To Facilitate Corporation (Amcell) is a real-party-in- determine whether Amcell is a real- Future Development of SMR interest in Thompson’s application. The party-in interest in Thompson’s System in the 800 MHz Frequency hearing will examine the relationship application. The hearing will also Band. (PR Doc. No. 93–144) between Thompson and Amcell and determine, based upon the evidence, determine whether Thompson has the whether Thompson has the necessary Amendment of Parts 2 and 90 of the requite character qualifications qualifications to hold the license for Commission’s Rules To Provide for necessary to hold the cellular license for Block A in Market No. 134, Atlantic the Use of 200 Channels Outside Frequency Block A in Market 134, City, New Jersey. the Designated Filing Areas in the Atlantic City, New Jersey. Pursuant to Section 309(e) of the 896–901 MHz and 935–940 MHz ADDRESSES: Federal Communications Communications Act of 1934, as Band Allotted to the Specialized Commission, Washington, D.C. 20554. amended, Thompson’s application has Mobile Radio Pool. (PR Doc. No. FOR FURTHER INFORMATION CONTACT: been designated for hearing upon the 89–553) Joseph Weber, Mobile Services Division, following issue listed below: Number of Petitions filed: 16. Common Carrier Bureau (202) 418– To determine whether American 1300. Cellular Network Corporation is a real- Subject: party-in-interest in the application of SUPPLEMENTARY INFORMATION: This is a Revision of Part 22 of the summary of Memorandum Opinion and Ellis Thompson Corporation for a Commission’s Rules Governing the Order and Hearing Designation Order in cellular radio system on frequency Public Mobile Services. (CC Docket CC Docket 94–136, adopted November Block A in Atlantic City, New Jersey No. 92–115) and, if so, the effect thereof on Ellis 18, 1994, and released November 28, Amendment of Part 22 of the 1994. Thompson corporation’s qualifications to be a Commission licensee. Commission’s Rules to Delete The full text of Commission decisions Section 22.119 and Permit the are available for inspection and copying The Commission further noted that the applicant and parties to this Concurrent Use of Transmitters in during normal business hours in the Common Carrier and Non-Common FCC Dockets Branch (Room 230), 1919 proceeding may avail themselves of an opportunity to be heard by filing written Carrier Service. (CC Docket No. 94– M Street, NW., Washington, D.C. The 46, RM–8367) complete text of this decision may also notices of appearance under 47 CFR be purchased from the Commission’s 1.221(c), within 20 days of the mailing Amendment of Part 22 of the copy contractor, International of this order by the Secretary of the Commission’s Rules Pertaining to Transcription Service, Inc., 2100 M Commission. Power Limits for Paging Stations Street, NW., Suite 140, Washington, William F. Caton, Operating in the 931 MHz Band in D.C. 20037, (202) 857–3800. Acting Secretary. the Public Land Mobile Service. (CC [FR Doc. 95–211 Filed 1–4–95; 8:45 am] Docket No. 93–116) Summary of Memorandum Opinion BILLING CODE 6712±01±M and Order and Hearing Designation Number of Petitions filed: 36. Order Federal Communications Commission. [Report No. 2049] The Commission has designated for William F. Caton, hearing the application of Ellis Petition for Reconsideration and Acting Secretary. Thompson Corporation for facilities in Clarification of Actions in Rulemaking [FR Doc. 95–212 Filed 1–4–95; 8:45 am] the Domestic Public Cellular Radio Proceedings BILLING CODE 6712±01±M Telecommunications Service on Frequency Block A in Market No. 134, December 30, 1994 Atlantic City, New Jersey. The Petition for reconsideration have been Commission found that the evidence in filed in the Commission rulemaking Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices 1777 FEDERAL EMERGENCY section before communicating with the rationalize sailings in the trade between MANAGEMENT AGENCY Commission regarding a pending U.S. Atlantic and Gulf Coasts ports and agreement. points and ports and points in Aruba, [FEMA±1043±DR] Any person filing a comment or Bonnaire and Curacao. The parties have Florida; Amendment to Notice of a protest with the Commission shall, at required a shortened review period. Major Disaster Declaration the same time, deliver a copy of that Agreement No.: 224–004161–009. document to the person filing the Title: Nonexclusive Management AGENCY: Federal Emergency agreement at the address shown below. Agreement between Marine Terminals Management Agency (FEMA). Agreement No.: 224–200686–001. Corporation and San Francisco Port ACTION: Notice. Title: Lakes Charles Harbor & Commission. Terminal District/Lake Charles Parties: SUMMARY: This notice amends the notice Stevedores, Inc. Terminal Agreement. of a major disaster for the State of Marine Terminals Corporation Parties: San Francisco Port Commission Florida (FEMA–1043–DR), dated Synopsis: The proposed amendment November 28, 1994, and related Lake Charles Harbor & Terminal extends the term of the Agreement determinations. District Lake Charles Stevedores, Inc. through March 31, 1995. EFFECTIVE DATE: December 28, 1994. Filing Agent: Agreement No.: 224–010600–003. FOR FURTHER INFORMATION CONTACT: Michael K. Dees, Esquire Title: Port of New Orleans/Ceres Gulf, Pauline C. Campbell, Response and Inc. for the Lease of Jourdan Road Recovery Directorate, Federal McHale, Bufkin & Dees, PLC 1901 Oak Park Blvd. Terminal. Emergency Management Agency, Parties: Washington, DC 20472, (202) 646–3606. Lake Charles, LA 70601–8991 Synopsis: The proposed modification Port of New Orleans SUPPLEMENTARY INFORMATION: The notice amends the Contract Equipment; Ceres Gulf, Inc. of a major disaster for the State of Maintenance, etc., provision and Synopsis: The proposed amendment Florida dated November 28, 1994, is restates the Agreement. replaces a former lease agreement hereby amended to include the between the Board of Commissioners of following area among those areas Dated: December 30, 1994. the Port of New Orleans and Ceres Gulf, determined to have been adversely By Order of the Federal Maritime Inc. affected by the catastrophe declared a Commission. Agreement No.: 224–200355–001. Joseph C. Polking, major disaster by the President in his Title: Port of San Francisco/Flota declaration of Florida: Secretary. Mercante Grancolombiana S.A. Brevard County for Individual [FR Doc. 95–257 Filed 1–4–95; 8:45 am] Terminal Agreement. Assistance. BILLING CODE 6730±01±M Parties: (Catalog of Federal Domestic Assistance No. Port of San Francisco 83.516, Disaster Assistance.) Flota Mercante Grancolombiana S.A. Notice of Agreement(s) Filed Richard W. Krimm, Synopsis: The proposed amendment Associate Director, Response and Recovery The Federal Maritime Commission extends the current contract term in Directorate. hereby gives notice of the filing of the exchange for consideration of the [FR Doc. 95–206 Filed 1–4–95; 8:45 am] following agreement(s) pursuant to combined container cargoes of Serpac, BILLING CODE 6718±02±M section 5 of the Shipping Act of 1984. FMC Agreement No. 203–011298, for Interested parties may inspect and the purposes of compensation to the obtain a copy of each agreement at the Port. FEDERAL MARITIME COMMISSION Washington, DC. Office of the Federal Agreement No.: 224–200375–002. Maritime Commission, 800 North Title: Port of San Francisco/Naviera Notice of Agreement(s) Filed Capitol Street, N.W., 9th Floor. Interamericana Navicana S.A./ The Federal Maritime Commission Interested parties may submit comments Columbus Line Terminal Agreement. Parties: hereby gives notice that the following on each agreement to the Secretary, agreements(s) has been filed with the Federal Maritime Commission, Port of San Francisco Commission pursuant to section 15 of Washington, DC. 20573, within 10 days Naviera Interamericana Navicana S.A. the Shipping Act, 1916, and section 5 of after the date of the Federal Register in (‘‘Navicana’’) Columbus Line the Shipping Act of 1984. which this notice appears. The Synopsis: The proposed amendment Interested parties may inspect and requirements for comments are found in permits Navicana to assign its rights, obtain a copy of each agreement at the § 572.603 of Title 46 of the Code of title and interests in the Agreement to Washington, D.C. Office of the Federal Federal Regulations. Interested persons Columbus Line. Maritime Commission, 800 North should consult this section before Agreement No.: 224–200375–003. Capitol Street, N.W., 9th Floor. communicating with the Commission Title: Port of San Francisco/Columbus Interested parties may submit protests regarding a pending agreement. Line Terminal Agreement. or comments on each agreement to the Agreement No.: 232–011485. Parties: Secretary, Federal Maritime Title: Caribbean K Line/SeaFreight Port of San Francisco (‘‘Port’’) Commission, Washington, D.C. 20573, Space Charter and Sailing Agreement. Columbus Line within 10 days after the date of the Parties: Synopsis: The proposed amendment Federal Register in which this notice Caribbean K Line Ltd. (‘‘Caribbean extends the current contract term in appears. The requirements for K’’) exchange for consideration of the comments and protests are found in SeaFreight Line Ltd. (‘‘SeaFreight’’) combined container cargoes of Serpac, § 560.602 and/or 572.603 of Title 46 of Synopsis: The proposed Agreement FMC Agreement No. 203–011298, for the Code of Federal Regulations. permits Caribbean K to charter space fro the purposes of compensation to the Interested persons should consult this SeaFreight. It also permits the parties to Port. 1778 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices Agreement No.: 224–200444–001. Zim American Israeli Shipping Co., Port Authority of New York & New Title: Port of San Francisco/Compania Inc. (‘‘Zim’’) Jersey (‘‘Port’’) Atlantic Container Sud-Americana de Vapores Terminal Synopsis: The Agreement provides for Line (‘‘ACL’’) Agreement. the Port to pay Zim an incentive of Synopsis: The Agreement provides for Parties: $15.00 for each import container and the Port to pay ACL an incentive of Port of San Francisco $25.00 for each export container loaded $15.00 for each import container and Compania Sud-Americana de Vapores or unloaded from a vessel at the Port’s $25.00 for each export container loaded (‘‘CSAV’’) marine terminals during calendar year or unloaded from a vessel at the Port’s Synopsis: The proposed amendment 1995, provided each container is marine terminals during calendar year extends the current contract term in shipped by rail to or from points more 1995, provided each container is exchange for consideration of the than 260 miles from the Port. shipped by rail to or from points more combined container cargoes of Serpac, Agreement No.: 224–200899. than 260 miles from the Port. FMC Agreement No. 203–011298, for Title: Port Authority of New York & Agreement No.: 224–200903. the purposes of compensation to the New Jersey/NYK Line (North America), Title: Port Authority of New York & Port. Inc.. New Jersey/Bermuda Agencies Agreement No.: 224–200479–001. Parties: Container Incentive Agreement. Title: Port of San Francisco/Maruba Port Authority of New York & New Parties: S.C.A. Terminal Agreement. Jersey (‘‘Port’’) NYK Line (North Port Authority of New York & New Parties: America), Inc. (‘‘NYK’’) Jersey (‘‘Port’’) Bermuda Agencies Port of San Francisco Synopsis: The Agreement provides for (‘‘Bermuda’’) Maruba S.C.A. (‘‘Maruba’’) the Port to pay NYK an incentive of Synopsis: The Agreement provides for Synopsis: The proposed amendment $15.00 for each import container and the Port to pay Bermuda an incentive of authorizes Maruba to transfer their $25.00 for each export container loaded $15.00 for each import container and operations from the North Container or unloaded from a vessel at the Port’s $25.00 for each export container loaded Terminal to the South Container marine terminals during calendar year or unloaded from a vessel at the Port’s Terminal. 1995, provided each container is marine terminals during calendar year Agreement No.: 224–200896. shipped by rail to or from points more 1995, provided each container is Title: Port Authority of New York & than 260 miles from the Port. shipped by rail to or from points more New Jersey/Gdynia America Line, Inc. Agreement No.: 224–200900. than 260 miles from the Port. Incentive Agreement. Title: Port Authority of New York & Dated: December 30, 1994. Parties: New Jersey/Safbank Line Ltd. Container By Order of the Federal Maritime Port Authority of New York & New Incentive Agreement. Commission. Jersey (‘‘Port’’) Parties: Joseph C. Polking, Gdynia America Line, Inc. (‘‘GALI’’) Port Authority of New York & New Secretary. Synopsis: The Agreement provides for Jersey (‘‘Port’’) Safbank Line Ltd. [FR Doc. 95–258 Filed 1–4–95; 8:45 am] the Port to pay GALI an incentive of (‘‘Safbank’’) BILLING CODE 6730±01±M $15.00 for each import container and Synopsis: The Agreement provides for $25.00 for each export container loaded the Port to pay Safbank an incentive of or unloaded from a vessel at the Port’s $15.00 for each import container and Ocean Freight Forwarder License marine terminals during calendar year $25.00 for each export container loaded Applicants 1995, provided each container is or unloaded from a vessel at the Port’s shipped by rail to or from points more marine terminals during calendar year Notice is hereby given that the than 260 miles from the Port. 1995, provided each container is following applicants have filed with the Agreement No.: 224–200897. shipped by rail to or from points more Federal Maritime Commission Title: Port Authority of New York & than 260 miles from the Port. applications for licenses as ocean freight forwarders pursuant to section 19 of the New Jersey/Mitsui O.S.K. Lines Agreement No.: 224–200901. Shipping Act of 1984 (46 U.S.C. app. Incentive Agreement. Title: Port Authority of New York & Parties: 1718 and 46 CFR part 510). New Jersey/P&O Containers Container Persons knowing of any reason why Port Authority of New York & New Incentive Agreement. any of the following applicants should Parties: Jersey (‘‘Port’’) Mitsui O.S.K. Lines not receive a license are requested to (‘‘Mitsui’’) Port Authority of New York & New contact the Office of Freight Forwarders, Synopsis: The Agreement provides for Jersey (‘‘Port’’) P&O Containers Federal Maritime Commission, the Port to pay Mitsui an incentive of (‘‘P&O’’) Washington, DC 20573. $15.00 for each import container and Synopsis: The Agreement provides for $25.00 for each export container loaded the Port to pay P&O an incentive of Alumar, Incorporated, 4809 N. Armenia Ave., or unloaded from a vessel at the Port’s Ste. 104, Tampa, FL 33603. Officers: Marla $15.00 for each import container and L. Ruth, President, Marla C. Greer, Vice marine terminals during calendar year $25.00 for each export container loaded President. 1995, provided each container is or unloaded from a vessel at the Port’s Logistic Excel Corporation, 1521 W. shipped by rail to or from points more marine terminals during calendar year Magnolia Blvd., Ste. B, Burbank, CA 91506. than 260 miles from the Port. 1995, provided each container is Officers: Edgardo V. Almendras, President. Agreement No.: 224–200898. shipped by rail to or from points more Air Tiger Express (Seattle), Inc., Park Ridge Title: Port Authority of New York & than 260 miles from the Port. Bldg. 15215 52nd Ave. So., Ste. 21, Seattle, WA 98188. Officer: Bryn Heimbeck, New Jersey/Zim American Israeli Agreement No.: 224–200902. Shipping Co., Inc. Incentive Agreement. President. Title: Port Authority of New York & Vidura Phojanakong, 150-50 87th Ave., Parties: New Jersey/Atlantic Container Line Jamaica, NY 11432. Sole Proprietor. Port Authority of New York & New Container Incentive Agreement. Colonial Storage Co. dba Nations Capitol Jersey (‘‘Port’’) Parties: Forwarding, 9900 Fallard Ct., Upper Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices 1779 Marlboro, MD 20772. Officers: Richard C. be considered by the Board in light of Frequency: Annual. FR Y–7A Myers, President, Carol L. Weinburg, Asst. comments and recommendations frequency annual, with changes after Secretary, Sai Sam Hla, Asst. Treasurer. received. The Board will then take final initial filing to be reported on a flow Savannah Steamship Company, Inc., 12 West State Street, Savannah, GA 31402. Officers: action on the proposal under OMB basis within 30 days of occurrence. William M. Ferrelle, President, Christine B. delegated authority. The specific Reporters: Foreign Banking Ferrelle, Secretary. proposed changes to the reports are Organizations Overseas Express Services, 8901 South summarized below. Annual reporting hours: 13,244 # LaCienega Blvd., 205A, Inglewood, CA DATES: Comments must be submitted on Estimated average hours per response: 90301. Abdulrazak Morgan, Sole or before February 6, 1995. 20.5 Proprietor. Number of respondents: 323 ADDRESSES: Comments, which should G.O.D. Express Co., 6684 Grant Street, Chino, Small businesses are not affected. CA 91710. Fen Lan, Wang, Sole Proprietor. refer to the OMB Docket number, should General description of report: This Time Definite Services, Inc., 2745 South be addressed to Mr. William W. Wiles, information collection is mandatory [12 Armstrong Court, Des Plaines, IL 60018. Secretary, Board of Governors of the U.S.C. §§ 1844(c), 3106, and 3108(a)]. Officer: Michael Suarez, President. Federal Reserve System, 20th and C Upon request from a respondent, certain World Cargo Corporation, 4408 NW 74th Streets, N.W., Washington, D.C. 20551, Ave., Miami, FL 33166. Officer: Diana information in the FR Y–7 and FR Y– or delivered to the Board’s mail room Obregon-Bader, President. 7A may be given confidential treatment between 8:45 a.m. and 5:15 p.m., and to Trans Express, Inc., 7801 NW 37th Street, pursuant to the Freedom of Information the security control room outside of Miami, FL 33166. Officer: Hector J. Act (5 U.S.C. §§ 552(b) (4) and (6)). Guzman, President. those hours. Both the mail room and the The FR 2068 is a confidential report Combined Transport Services, Inc., 16234 security control room are accessible of operations that is exempted from 42nd Ave. South, Seattle, WA 98188. from the courtyard entrance on 20th public disclosure pursuant to the Officers: Paul Newcombe, President, Jal Street between Constitution Avenue and Freedom of Information Act, 5 U.S.C. Dinshaw, Exec. Vice President. C Street, N.W. Comments received may Hankyu International Transport (U.S.A.), § 552(b) (8) and 12 C.F.R. § 261.11(h). be inspected in room B–1122 between Inc., 1039 Hillcrest Blvd., Inglewood, CA SUMMARY: The Board of Governors of the 90301. Officers: Kimio Sawada, President, 9:00 a.m. and 5:00 p.m., except as Katsuaki Yoshida, Vice President, Toru provided in section 261.8 of the Board’s Federal Reserve System proposes to give Fuji, Secretary. Rules Regarding Availability of approval, under delegated authority Dated: December 28, 1994. Information, 12 CFR 261.8(a). from the Office of Management and Budget (OMB), to the extension, with By the Federal Maritime Commission. A copy of the comments may also be revisions, of the Annual Report of Joseph C. Polking, submitted to the OMB desk officer for the Board: Milo Sunderhauf, Office of Foreign Banking Organizations (FR Y–7; Secretary. OMB No. 7100–0125) and the Foreign [FR Doc. 95–200 Filed 1–4–95; 8:45 am] Information and Regulatory Affairs, Office of Management and Budget, New Banking Organization Confidential BILLING CODE 6730±01±M Executive Office Building, Room 3208, Report of Operations (FR 2068; OMB Washington, DC 20503. No. 7100–0125) for three years through December 31, 1997, and to discontinue FEDERAL RESERVE SYSTEM FOR FURTHER INFORMATION CONTACT: A the Notification Required Pursuant to copy of the proposed form, the request Section 211.23h of Regulation K on Agency Forms Under Review for clearance (OMB No. 83–I), Acquisitions by Foreign Banking supporting statement, instructions, and Organizations (FR 4002; OMB No. 7100– AGENCY: Board of Governors of the other documents that will be placed into Federal Reserve System. 0110). The FR Y–7 and FR 2068 reports OMB’s public docket files once currently are scheduled to expire on ACTION: Notice and a request for public approved may be requested from Mary comments. May 31, 1995. The Federal Reserve M. McLaughlin, Federal Reserve Board proposes that the revisions be effective BACKGROUND: On June 15, 1984, the Clearance Officer (202–452–3829), for reports covering the period ending Office of Management and Budget Division of Research and Statistics, December 31, 1994. The deadline for (OMB) delegated to the Board of Board of Governors of the Federal filings as of this date would be April 30, Governors of the Federal Reserve Reserve System, Washington, DC 20551. 1995. The Federal Reserve also proposes System (Board) its approval authority For the hearing impaired only, contact to collect information currently in under the Paperwork Reduction Act of Telecommunications Device for the Deaf Section II of the existing FR Y–7 and the 1980, as per 5 CFR 1320.9, to approve (TTD) (202–452–3544), Dorothea FR 4002 in a new FR Y–7A, which will of and assign OMB control numbers to Thompson, Board of Governors of the provide for more efficient collection of collection of information requests and Federal Reserve System, Washington, structure information. requirements conducted or sponsored DC 20551. These reports reflect annual reporting by the Board under conditions set forth SUPPLEMENTARY INFORMATION: Proposal requirements for foreign banking in 5 CFR 1320.9. Board-approved to approve under OMB delegated organizations that engage in banking in collections of information will be authority the extension with revision (or the United States either indirectly incorporated into the official OMB the implementation) of the following through a subsidiary bank, Edge inventory of currently approved report(s): corporation, agreement corporation, or collections of information. A copy of the 1. Report title: Annual Report of commercial lending company, or OMB 83–I and supporting statement and Foreign Banking Organizations; directly through a branch or agency. The the approved collection of information Structure Report of U.S. Banking and information contained in these reports instrument(s) will be placed into OMB’s Nonbanking Activities, Foreign Banking is used by the Federal Reserve System public docket files. The following items Organization Confidential Report of to assess the foreign banking have received initial Board approval for Operations organization’s ability to be a continuing publication and comment. Following Agency form number: FR Y–7; FR Y– source of strength to its U.S. banking review of public comments, the 7A; FR 2068 operations and to determine compliance proposed information collections will OMB Docket number: 7100–0125 with U.S. laws and regulations. 1780 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices The Annual Report of Foreign stockholders’ equity, and net income of proposed reporting format will include Banking Organizations (FR Y–7) and the such companies. a principal schedule consisting of thirty- Foreign Banking Organization Finally, the FR 2068 requires that one balance sheet and income statement Confidential Report of Operations (FR reporters provide an organization chart items (such as loans, securities, assets, 2068) are filed as of the end of the that details all foreign companies that capital, and income) and four reporter’s fiscal year. These reports are the foreign banking organization supporting schedules. U.S. nonbanking filed by all foreign banking directly or indirectly owns, controls, or subsidiaries with total assets of more organizations that engage in the holds with power to vote 25 percent or than $1 billion would complete the business of banking in the United more of any class of voting stock. This principal and supporting schedules; States. The FR Y–7 collects information requirement differs from the U.S. nonbanking subsidiaries with total on the structure of their activities in the organization chart required by the FR assets between $150 million and $1 United States, as well as the following Y–7 in that the FR Y–7 is limited to all billion would complete only the financial and managerial information: related U.S. companies and foreign principal schedule; and U.S.nonbanking financial statements prepared in companies that engage in business in subsidiaries with total assets of less than accordance with home country the United States. In the instructions for $150 million would respond to only accounting principles and practices; both reports, foreign banking four core items: total assets, equity separate financial statements for U.S. organizations are advised that they must capital, net income, and total off- nonbanking subsidiaries; an request alternative reporting criteria balance-sheet items. organization chart reflecting when the specific reporting (5) Eliminate report item 5B which investments in U.S. companies and requirements would result in undue currently requires foreign banking foreign companies that do business in burden or expense or when the organizations to report the ownership of the United States; disclosure of large information is otherwise unavailable in shares by directors and officers of the shareholders of registered shares and the requested format. foreign banking organization in that disclosure of known large shareholders Proposed Revisions organization and each related company. of bearer shares; a list of officers and (6) Expand the organization chart to directors; information to determine The Federal Reserve proposes the identify U.S. companies that are owned continuing eligibility as a qualified following revisions to the FR Y–7 by individuals who own 25 percent or foreign banking organization under report. more of the foreign banking (1) Move information collected in sections 2(h) and 4(c)(9) of the Bank organization. Section II of the current FR Y–7, Holding Company Act; and information (7) Add several questions that require Activities Conducted in the United on U.S. banking and nonbanking a yes or no response to assist the States, to a new report: the FR Y–7A, activities. respondents in providing a complete Structure Report on U.S. Banking and report. These include questions relating A foreign banking organization is Nonbanking Activities, containing two currently exempt from filing the FR to certification and consolidation of report items: U.S. Banking Activities financial statements, home country 2068 if it meets certain criteria related and U.S. Nonbanking Activities. to the size and type of its U.S. banking requirements regarding the Basle Capital Existing reporters would complete the Accord and changes, if any, in operations. This report collects FR Y–7A as of December 31, 1994; new information that enables the Federal accounting policies, and ownership of FR Y–7 filers would complete the FR Y– nonbank subsidiaries since the most Reserve System to carry out its 7A at the time of their first filing. responsibilities by assessing the impact recent filing of the FR Y–7. Subsequent changes would be reported (8) Add a glossary as part of the FR of the worldwide operations of a foreign within 30 days of the change. Y–7 and FR 2068 instructions, and banking organization on its U.S. banking As a result, the FR 4002, Notification require that the general discussion business. The FR 2068 currently Pursuant to Section 211.23(h) of provided by respondents of the requires disclosure of revenues and Regulation K on Acquisitions by Foreign accounting principles used in the expenses as calculated in accordance Banking Organizations (OMB No. 7100– preparation of the initial submission of with local accounting practices; it also 0100), will no longer be needed. the FR Y–7 be updated by all requests an explanation or general (2) Add a new schedule to the FR Y– respondents every five years, beginning description of the accounting practices 7 report item 1, Financial Statements, with the 1995 fiscal year filing. used in the recognition and the timing that breaks out the details of a foreign The Federal Reserve proposes the of revenue and expense items. The banking organization’s risk-based following revisions to the FR 2068 report requests disclosure of loan loss capital computations. Foreign banking report. experience, asset quality, gains and organizations would have the option of (1) Eliminate the filing exemption for losses on securities, and hidden reserves providing this information in the FR those foreign banking organizations not disclosed in the FR Y–7. The report 2068. For banks from countries that do with small U.S. operations. The provides flexibility to enable a foreign not follow a risk-based capital format, exemption was made several years ago banking organization to submit information on their capital under the premise that ‘‘small’’ requested information in a manner that computations, as required by the home organizations, because of their size, will not impose any undue burden. country banking supervisor(s), would be would not pose a threat to the financial The FR 2068 also collects financial required. system. The Federal Reserve no longer data on non-U.S. subsidiaries. The (3) Include with report item 1 copies supports this premise. report requires financial statements on of the foreign banking organizations’ (2) Eliminate the ‘‘Earnings’’ item on all majority-owned, unconsolidated, most recent 20–F filing with the SEC, if the current page 5. material foreign subsidiaries. The report applicable. (3) Collect information on past due requires that foreign banking (4) Replace the existing free form loans in a more comprehensive and organizations with investments of financial statements for U.S. nonbank consistent format. between 25 and 50 percent in material subsidiaries with specific schedules to (4) As with the FR Y–7, expand the foreign companies provide financial gather core financial information that organization chart to include non-U.S. data detailing the total assets, total will be processed electronically. The companies that are owned by Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices 1781 individuals who own 25 percent or Reserve Bank or to the offices of the Bank of Ireland; Formation of, more of the foreign banking Board of Governors. Any comment on Acquisition by, or Merger of Bank organization. an application that requests a hearing Holding Companies; and Acquisition (5) Change the official place of filing must include a statement of why a of Nonbanking Company from the Board to the appropriate written presentation would not suffice Federal Reserve Bank in a manner in lieu of a hearing, identifying The company listed in this notice has consistent with all other regulatory specifically any questions of fact that applied under § 225.14 of the Board’s filings. This will promote more timely are in dispute and summarizing the Regulation Y (12 CFR 225.14) for the analysis of financial information by the evidence that would be presented at a Board’s approval under section 3 of the Federal Reserve System. hearing. Bank Holding Company Act (12 U.S.C. 1842) to become a bank holding Legal Status Unless otherwise noted, comments regarding each of these applications company or to acquire voting securities The Legal Division of the Board of must be received not later than January of a bank or bank holding company. The Governors of the Federal Reserve 27, 1995. listed company has also applied under System has determined that 12 U.S.C. A. Federal Reserve Bank of St. Louis § 225.23(a)(2) of Regulation Y (12 CFR §§ 1844(c), 3106, and 3108(a) authorize (Randall C. Sumner, Vice President) 411 225.23(a)(2)) for the Board’s approval the Federal Reserve to require each Locust Street, St. Louis, Missouri 63166: under section 4(c)(8) of the Bank report. 1. AMBANC Corp., Vincennes, Holding Company Act (12 U.S.C. Upon request from a respondent, Indiana; to acquire 100 percent of the 1843(c)(8)) and § 225.21(a) of Regulation certain information in the FR Y–7 and voting shares of First Robinson Bancorp, Y (12 CFR 225.21(a)) to acquire or FR Y–7A may be given confidential Robinson, Illinois, and thereby control voting securities or assets of a treatment pursuant to the Freedom of indirectly acquire First National Bank in company engaged in a nonbanking Information Act (5 U.S.C. §§ 552(b) (4) Robinson, Robinson, Illinois. activity that is listed in § 225.25 of and (6)). 2. First Tennessee National Regulation Y as closely related to All information provided in the FR Corporation, Memphis, Tennessee; to banking and permissible for bank 2068 report is confidential. The Legal acquire 100 percent of the voting shares holding companies, or to engage in such Division, in consultation with the of Peoples Commercial Services an activity. Unless otherwise noted, Department of Justice, has determined Corporation, Senatobia, Mississippi, and these activities will be conducted that the data are exempt from disclosure thereby indirectly acquire Peoples Bank, throughout the United States. pursuant to section (b)(8) of the Senatobia, Mississippi. The application is available for Freedom of Information Act (5 U.S.C. B. Federal Reserve Bank of Kansas immediate inspection at the Federal § 552(b)(8)). Section (b)(8) provides City (John E. Yorke, Senior Vice Reserve Bank indicated. Once the exemption for information ‘‘contained President) 925 Grand Avenue, Kansas application has been accepted for in or related to examinations, operating City, Missouri 64198: processing, it will also be available for or condition reports prepared by, or on 1. First Centralia Bancshares, Inc., inspection at the offices of the Board of behalf of, or for the use of an agency Centralia, Kansas; to acquire 16.5 Governors. Interested persons may responsible for the regulation or percent of the voting shares of Onaga express their views in writing on the supervision of financial institutions.’’ Bancshares, Inc., Onaga, Kansas, and question whether consummation of the Board of Governors of the Federal Reserve thereby indirectly acquire First National proposal can ‘‘reasonably be expected to System, December 30, 1994. Bank of Onaga, Onaga, Kansas. produce benefits to the public, such as William W. Wiles, 2. Morrill Bancshares, Inc., Sabetha, greater convenience, increased Secretary of the Board. Kansas; to acquire 46.5 percent of the competition, or gains in efficiency, that outweigh possible adverse effects, such [FR Doc. 95–269 Filed 1–4–95; 8:45 am] voting shares of Onaga Bancshares, Inc., as undue concentration of resources, BILLING CODE 6210±01±P Onaga, Kansas, and thereby indirectly acquire First National Bank of Onaga, decreased or unfair competition, Onaga, Kansas. conflicts of interests, or unsound AMBANC Corp., et al.; Formations of; C. Federal Reserve Bank of Dallas banking practices.’’ Any request for a Acquisitions by; and Mergers of Bank (Genie D. Short, Vice President) 2200 hearing on this question must be Holding Companies North Pearl Street, Dallas, Texas 75201– accompanied by a statement of the 2272: reasons a written presentation would The companies listed in this notice 1. Peoples Bancorp of Delaware, Inc., not suffice in lieu of a hearing, have applied for the Board’s approval Dover, Delaware; to become a bank identifying specifically any questions of under section 3 of the Bank Holding holding company by acquiring 100 fact that are in dispute, summarizing the Company Act (12 U.S.C. 1842) and § percent of the voting shares of Plano evidence that would be presented at a 225.14 of the Board’s Regulation Y (12 Bank & Trust, Plano, Texas. hearing, and indicating how the party CFR 225.14) to become a bank holding 2. Peoples Bancorp, Inc., Plano, commenting would be aggrieved by company or to acquire a bank or bank Texas; to become a bank holding approval of the proposal. holding company. The factors that are company by acquiring 100 percent of Comments regarding the application considered in acting on the applications the voting shares of Peoples Bancorp of must be received at the Reserve Bank are set forth in section 3(c) of the Act Delaware, Inc., Dover, Delaware, and indicated or the offices of the Board of (12 U.S.C. 1842(c)). thereby indirectly acquire Plano Bank & Governors not later than January 18, Each application is available for Trust, Plano, Texas. 1995. immediate inspection at the Federal A. Federal Reserve Bank of Boston Reserve Bank indicated. Once the Board of Governors of the Federal Reserve (Robert M. Brady, Vice President) 600 System, December 29, 1994. application has been accepted for Atlantic Avenue, Boston, Massachusetts processing, it will also be available for Jennifer J. Johnson, 02106: inspection at the offices of the Board of Deputy Secretary of the Board. 1. Bank of Ireland, Dublin, Ireland; Governors. Interested persons may [FR Doc. 95–203 Filed 1–4–95; 8:45 am] Bank of Ireland, First Holdings, Inc. express their views in writing to the BILLING CODE 6210±01±F Manchester, New Hampshire; and First 1782 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices NH Bank, Manchester, New Hampshire; conflicts of interest, or unsound banking are set forth in section 3(c) of the Act have applied to acquire 100 percent of practices.’’ Any request for a hearing on (12 U.S.C. 1842(c)). the voting shares of Great Bay this question must be accompanied by The application is available for Bankshares, Inc. Dover, New a statement of the reasons a written immediate inspection at the Federal Hampshire, and thereby indirectly presentation would not suffice in lieu of Reserve Bank indicated. Once the acquire Southeast Bank for Savings, a hearing, identifying specifically any application has been accepted for Dover, New Hampshire. questions of fact that are in dispute, processing, it will also be available for In connection with this application, summarizing the evidence that would inspection at the offices of the Board of Applicants also have applied to acquire be presented at a hearing, and indicating Governors. Interested persons may Constitution Trust Company, Dover, how the party commenting would be express their views in writing to the New Hampshire (‘‘Constitution’’), and to aggrieved by approval of the proposal. Reserve Bank indicated for that merge Constitution into an existing Unless otherwise noted, comments application or to the offices of the Board subsidiary of First NH Bank, First NH regarding the applications must be of Governors. Any comment on an Investment Services, Inc., Manchester, received at the Reserve Bank indicated application that requests a hearing must New Hampshire. The applicants are or the offices of the Board of Governors include a statement of why a written seeking prior approval for the resulting not later than January 18, 1995. presentation would not suffice in lieu of entity to engage in trust company A. Federal Reserve Bank of Atlanta a hearing, identifying specifically any functions, pursuant to § 225.25(b)(3) of (Zane R. Kelley, Vice President) 104 questions of fact that are in dispute and the Board’s Regulation Y; and providing Marietta Street, N.W., Atlanta, Georgia summarizing the evidence that would investment of financial advice, pursuant 30303: be presented at a hearing. to § 225.25(b)(4) of the Board’s 1. Port St. Lucie National Bank Comments regarding this application Regulation Y. These activities will be Holding Corp., Port St. Lucie, Florida; to must be received not later than January conducted in New Hampshire and engage de novo through its subsidiary 30, 1995. Southern Maine. Spirit Mortgage Company, Port St. A. Federal Reserve Bank of Atlanta Board of Governors of the Federal Reserve Lucie, Florida, in making, acquiring, or (Zane R. Kelley, Vice President) 104 System, December 29, 1994. servicing mortgage loans, pursuant to § Marietta Street, N.W., Atlanta, Georgia Jennifer J. Johnson, 225.25(b)(1)(iii) of the Board’s 30303: Deputy Secretary of the Board. Regulation Y. 1. Persons Banking Company, Inc., [FR Doc. 95–204 Filed 1–4–95; 8:45 am] B. Federal Reserve Bank of Chicago Lithonia, Georgia; to acquire 100 BILLING CODE 6210±01±F (James A. Bluemle, Vice President) 230 percent of the voting shares of Spivey South LaSalle Street, Chicago, Illinois Bank Shares, Inc., Swainsboro, Georgia, 60690: and thereby indirectly acquire Spivey Port St. Lucie National Bank Holding 1. Banner Bancorp, Ltd., Birnamwood, State Bank, Swainsboro, Georgia. Corp., et al.; Notice of Applications To Wisconsin; to engage de novo through Board of Governors of the Federal Reserve Engage de novo in Permissible its subsidiary Eitzen Independents, Inc., System, December 30, 1994. Nonbanking Activities Eitzen, Minnesota, in insurance agency Jennifer J. Johnson, The companies listed in this notice activities, pursuant to § Deputy Secretary of the Board. have filed an application under § 225.25(b)(8)(iii)(A) of the Board’s [FR Doc. 95–270 Filed 1–4–95; 8:45 am] 225.23(a)(1) of the Board’s Regulation Y Regulation Y. These activities will be BILLING CODE 6210±01±F (12 CFR 225.23(a)(1)) for the Board’s conducted in Eitzen, Minnesota. approval under section 4(c)(8) of the 2. ISB Financial Corp., Iowa City, Bank Holding Company Act (12 U.S.C. Iowa; to engage de novo through its FEDERAL TRADE COMMISSION 1843(c)(8)) and § 225.21(a) of Regulation subsidiary Paymaster, Inc., Solon, Iowa, [File No. 951 0001] Y (12 CFR 225.21(a)) to commence or to through a joint venture with Thomas L. Goedken, in providing payroll services engage de novo, either directly or IVAX Corporation; Proposed Consent through a subsidiary, in a nonbanking to small business entities, pursuant to § 225.25(b)(7) of the Board’s Regulation Y. Agreement With Analysis To Aid activity that is listed in § 225.25 of Public Comment Regulation Y as closely related to Board of Governors of the Federal Reserve banking and permissible for bank System, December 29, 1994. AGENCY: Federal Trade Commission. holding companies. Unless otherwise Jennifer J. Johnson, ACTION: Proposed Consent Agreement. noted, such activities will be conducted Deputy Secretary of the Board. SUMMARY: In settlement of alleged throughout the United States. [FR Doc. 95–205 Filed 1–4–95; 8:45 am] Each application is available for violations of federal law prohibiting BILLING CODE 6210±01±F immediate inspection at the Federal unfair acts and practices and unfair Reserve Bank indicated. Once the methods of competition, this consent application has been accepted for Persons Banking Company, Inc.; agreement, accepted subject to final processing, it will also be available for Formation of, Acquisition by, or Commission approval, would permit, inspection at the offices of the Board of Merger of Bank Holding Companies among other things, IVAX, a Florida Governors. Interested persons may corporation, to acquire Zenith express their views in writing on the The company listed in this notice has Laboratories, except for Zenith’s rights question whether consummation of the applied for the Board’s approval under to market or sell extended release proposal can ‘‘reasonably be expected to section 3 of the Bank Holding Company generic verapamil under Zenith’s produce benefits to the public, such as Act (12 U.S.C. 1842) and § 225.14 of the exclusive distribution agreement with greater convenience, increased Board’s Regulation Y (12 CFR 225.14) to G.D. Searle & Co. The consent competition, or gains in efficiency, that become a bank holding company or to agreement also would require IVAX, for outweigh possible adverse effects, such acquire a bank or bank holding ten years, to obtain Commission as undue concentration of resources, company. The factors that are approval before acquiring any stock in decreased or unfair competition, considered in acting on the applications any entity that manufactures, or is an Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices 1783 exclusive distributor for another statement of findings of fact and 7. Proposed respondent has read the manufacturer of, extended release conclusions of law; proposed complaint and order generic verapamil in the United States. c. all rights to seek judicial review or contemplated hereby. Proposed DATES: Comments must be received on otherwise to challenge or contest the respondent understands that once the or before March 6, 1995. validity of the order entered pursuant to order has been issued, it will be ADDRESSES: Comments should be this agreement; and required to file one or more compliance directed to: FTC/Office of the Secretary, d. any claim under the Equal Access reports showing that it has fully Room 159, 6th St. and Pa. Ave., NW., to Justice Act. complied with the order. Proposed Washington, DC 20580. 4. This agreement shall not become respondent further understands that it may be liable for civil penalties in the FOR FURTHER INFORMATION CONTACT: part of the public record of the amount provided by law for each Ann Malester, FTC/S–2224, proceedings unless and until it is violation of the order after it becomes Washington, DC 20580. (202) 326–2682. accepted by the Commission. If this agreement is accepted by the final. SUPPLEMENTARY INFORMATION: Pursuant Commission it, together with the draft of to Section 6(f) of the Federal Trade Order complaint contemplated thereby, will be Commission Act, 38 Stat. 721, 15 U.S.C. placed on the public record for a period I 46 and Section 2.34 of the Commission’s of sixty (60) days and information in It is ordered That, as used in this Rules of Practice (16 CFR 2.34), notice respect thereto publicly released. The order, the following definitions shall is hereby given that the following Commission thereafter may either apply: consent agreement containing a consent withdraw its acceptance of this A. ‘‘Respondent’’ or ‘‘IVAX’’ means order to cease and desist, having been agreement and so notify the proposed IVAX Corporation, its subsidiaries, filed with and accepted, subject to final respondent, in which event it will take divisions, and groups and affiliates approval, by the Commission, has been such action as it may consider controlled by IVAX Corporation, their placed on the public record for a period appropriate, or issue and serve its directors, officers, employees, agents, of sixty (60) days. Public comment is complaint (in such form as the and representatives, and their invited. Such comments or views will circumstances may require) and successors and assigns. be considered by the Commission and decision, in disposition of the B. ‘‘Zenith’’ means Zenith will be available for inspection and proceeding. Laboratories, Inc., its subsidiaries, copying at its principal office in 5. This agreement is for settlement divisions, and groups and affiliates accordance with Section 4.9(b)(6)(ii) of purposes only and does not constitute controlled by Zenith, their directors, the Commission’s Rules of Practice (16 an admission by proposed respondent officers, employees, agents, and CFR 4.9(b)(6)(ii)). that the law has been violated as alleged representatives, and their successors In the Matter of: IVAX Corporation, a in the draft of complaint, or that the and assigns. corporation. facts as alleged in the draft complaint, C. ‘‘Commission’’ means the Federal Trade Commission. [File No. 951–0001] other than jurisdictional facts, are true. 6. This agreement contemplates that, D. ‘‘Acquisition’’ means the Agreement Containing Consent Order if it is accepted by the Commission, and acquisition of all voting securities of The Federal Trade Commission if such acceptance is not subsequently Zenith by IVAX. E. ‘‘FDA’’ means the United States (‘‘Commission’’), having initiated an withdrawn by the Commission pursuant to the provisions of Section 2.34 of the Food & Drug Administration. investigation of the proposed F. ‘‘Isoptin SR’’ means the sustained- Commission’s Rules, the Commission acquisition by IVAX Corporation release form of Verapamil hydrochloride may, without further notice to proposed (‘‘IVAX’’) of all of the voting securities for which Knoll Pharmaceutical respondent, (1) issue its complaint of Zenith Laboratories, Inc. (‘‘Zenith’’), Company holds an approved New Drug corresponding in form and substance and it now appearing that IVAX, Application. hereinafter sometimes referred to as with the draft of complaint and its G. ‘‘Verapamil HC1’’ means any ‘‘proposed respondent,’’ is willing to decision containing the following order pharmaceutical drug receiving the enter into an agreement containing an in disposition of the proceeding, and (2) therapeutic equivalence evaluation code order to cease and desist from making make information public with respect ‘‘AB’’ by the FDA, which designates certain acquisitions, and providing for thereto. When so entered, the order such product as being therapeutically other relief: shall have the same force and effect and equivalent to Isoptin SR. It is hereby agreed by and between may be altered, modified, or set aside in H. ‘‘Searle Distribution Agreement’’ IVAX, by its duly authorized officer and the same manner and within the same means the agreement, dated March 7, its attorney, and counsel for the time provided by statute for other 1994, between G.D. Searle & Co. Commission that: orders. The order shall become final (‘‘Searle’’) and Zenith, pursuant to 1. Proposed respondent IVAX is a upon service. Delivery by the United which Zenith is appointed the exclusive corporation organized, existing, and States Postal Service of the complaint distributor of Verapamil HC1 for Searle. doing business under and by virtue of and decision containing the agreed-to the laws of Florida, with its offices and order to proposed respondent’s address II principal place of business located at as stated in this agreement shall It is further ordered That respondent 8800 Northwest 36th Street, Miami, constitute service. Proposed respondent shall not acquire, or otherwise obtain, Florida 33178–2404. waives any right it may have to any any rights to market or sell Verapamil 2. Proposed respondent admits all the other manner of service. The complaint HC1 pursuant to the Searle Distribution jurisdictional facts set forth in the draft may be used in construing the terms of Agreement. of complaint. the order, and no agreement, 3. Proposed respondent waives: understanding, representation, or III a. any further procedural steps; interpretation not contained in the order It is further ordered That, for a period b. the requirements that the or the agreement may be used to vary or of ten (10) years from the date this order Commission’s decision contain a contradict the terms of the order. becomes final, respondent shall not, 1784 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices without the prior approval of the VI Searle, a company that manufactures a Commission, directly or indirectly, It is further ordered That, for the branded equivalent of the generic drug. through subsidiaries, partnerships, or purpose of determining or securing The proposed Consent Order would otherwise: compliance with this order, subject to remedy the alleged violation by A. Acquire any stock, share capital, any legally recognized privilege and prohibiting IVAX from acquiring equity or other interest in any concern, upon written request with reasonable Zenith’s rights to market or sell generic corporate or non-corporate, engaged at notice, respondent shall permit any verapamil pursuant to the exclusive the time of such acquisition in, or duly authorized representatives of the distribution agreement between Zenith within the two (2) years preceding such Commission: and Searle. In an effort to address acquisition engaged in, the manufacture A. Access, during office hours and in antitrust concerns, Zenith and Searle of Verapamil HC1 in the United States, the presence of counsel, to inspect and had terminated the exclusive or any concern that is an exclusive copy all books, ledgers, accounts, distribution agreement on November 28, distributor of Verapamil HC1 in the correspondence, memoranda and other 1994, and agreement that Zenith would United States for a manufacturer of records and documents in the transfer its generic verapamil customers possession or under the control of Verapamil HC1, provided, however, that to Searle or Searle’s designee, which respondent relating to any matters each pension, benefit, or welfare plan or would continue to sell generic contained in this order; and trust controlled by respondent may verapamil. As a result, two independent acquire, for investment purposes only, B. Upon five (5) days’ notice to respondent and without restraint or competitors will remain in the market an interest of not more than two (2) following the proposed acquisition. The percent of the stock or share capital of interference from it, to interview proposed Consent Order ensures that such person or concern, and further officers, directors, or employees of IVAX will not be able to renegotiate an provided, however, that an acquisition respondent, who may have counsel exclusive arrangement with Searle after will be exempt from the requirements of present regarding such matters. it acquires Zenith. this Paragraph III.A. if it is solely for the Analysis of Proposed Consent Order To purposes of investment and respondent Aid Public Comment Under the provisions of the Consent will hold cumulatively no more than Order, IVAX is also required to provide two (2) percent of the shares of any class The Federal Trade Commission to the Commission a report of its of security; (‘‘Commission’’) has accepted, subject to compliance with the provisions of the final approval, an agreement containing Order one (1) year from the date the B. Acquire any assets used in or a proposed Consent Order from IVAX Order becomes final, and annually previously used in (and still suitable for Corporation (‘‘IVAX’’), which prohibits thereafter for nine (9) years. use in) the manufacture of Verapamil IVAX from acquiring any rights to HC1 in the United States; provided market or sell generic verapamil The proposed Order will prohibit however, that this Paragraph III.B. shall hydrochloride in the extended release IVAX, for a period of ten (10) years, not apply to any acquisition of goods, form (‘‘generic verapamil’’) pursuant to from acquiring, without Federal Trade services, or equipment in the ordinary Zenith Laboratories’ exclusive Commission approval, any stock in any course of business; distribution agreement with G.D. Searle concern engaged in the manufacture of C. Enter into any agreement with a & Co. (‘‘Searle’’). generic verapamil or in any concern that manufacturer of Verapamil HC1 The proposed Consent Order has been is an exclusive distributor in the United granting respondent the exclusive right placed on the public record for sixty States for another manufacturer of to distribute such manufacturer’s (60) days for reception of comments by generic verapamil, or any assets used in Verapamil HC1 for resale. interested persons. Comments received the manufacture of generic verapamil in during this period will become part of the United States, unless they are IV the public record. After sixty (60) days, acquired in the ordinary course of the Commission will again review the It is further ordered That one year (1) business. In addition, the Proposed agreement and the comments received from the date this order becomes final, Order requires IVAX to seek prior and will decide whether it should annually for the next nine (9) years on Commission approval before entering withdraw from the agreement or make the anniversary of the date this order into any exclusive agreement to final the agreement’s proposed Order. distribute another manufacturer’s becomes final, and at such other times On August 26, 1994, IVAX and Zenith generic verapamil. The Consent Order as the Commission may require, Laboratories, Inc., (‘‘Zenith’’) entered respondent shall file a verified written into an agreement whereby IVAX agreed also requires IVAX to notify the report setting forth in detail the manner to acquire all of the voting securities of Commission at least thirty (30) days and form in which it has complied and Zenith in a share exchange valued at prior to any change in the structure of is complying with this order. $593 million. The proposed complaint IVAX resulting in the emergence of a successor. V alleges that the proposed acquisition, if consummated, would constitute a The purpose of this analysis is to It is further ordered That respondent violation of Section 7 of the Clayton facilitate public comment on the shall notify the Commission at least Act, as amended, 15 U.S.C. § 18, and proposed Order, and it is not intended thirty (30) days prior to any proposed Section 5 of the FTC Act, as amended, to constitute an official interpretation of change in the corporate respondent such 15 U.S.C. § 45, in the market for the sale the agreement and proposed Order or to as dissolution, assignment, sale of generic verapamil in the United modify in any way their terms. resulting in the emergence of a States. IVAX is the only company with Benjamin I. Berman, successor corporation, or the creation or an approved Abbreviated New Drug dissolution of subsidiaries or any other Application (‘‘ANDA’’) to manufacture Acting Secretary. change in the corporation that may and sell generic verapamil in the United [FR Doc. 95–250 Filed 1–4–95; 8:45 am] affect compliance obligations arising out States, and Zenith has exclusive rights BILLING CODE 6750±01±M of the order. to market and sell generic verapamil for Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices 1785 DEPARTMENT OF HEALTH AND Runaway and Homeless Youth Juvenile Justice and Delinquency HUMAN SERVICES Program Proposed Priorities for Fiscal Prevention Act of 1974, as amended) Year 1995 and are the primary subject of the Administration for Children and priorities proposed in this notice. Families AGENCY: Administration for Children The Act specifically authorizes the and Families (ACF), Department of Secretary to make grants to entities that Agency Information Collection Under Health and Human Services (HHS). establish and operate local runaway and OMB Review ACTION: Notice of Proposed Fiscal Year homeless youth centers (Basic Centers) 1995 Runaway and Homeless Youth to address the immediate needs of at- Under the provisions of the Program Priorities for the risk youth. Currently, 341 such projects Paperwork Reduction Act (44 U.S.C. Administration for Children and are being supported. The Act also Chapter 35), the Administration for Families. authorizes activities that support the Children and Families (ACF) has local centers, and that gather knowledge SUMMARY: submitted to the Office of Management Section 384 of the Runaway about the conditions of runaway and and Budget (OMB) a request for the and Homeless Youth Act, 42 U.S.C. homeless youth and their families. 5732, requires the Secretary to publish continued use of an information The Act further authorizes the annually, for public comment, a collection titled: ACF–233–AT–RISK Secretary to make grants to entities that proposed plan specifying priorities the CHILD CARE PROGRAM QUARTERLY establish and operate transitional living Department will follow in awarding REPORT OF EXPENDITURES AND projects for homeless youth to enable grants and contracts under the Act. The ESTIMATES. the youth to become self-sufficient and final priorities selected will take into Addresses: Copies of the request for to avoid long-term dependency on consideration the comments and approval may be obtained from Robert social services. Currently, 74 such recommendations received from the A. Sargis of the Office of Information projects are being supported. public in response to this notice. Systems Management, ACF, by calling The Act also authorizes financial The public, particularly those (202) 690–7275. support for: knowledgeable about and experienced • A national communications system Consideration will be given to in providing services to runaway and (a toll-free 24-hour runaway hotline) comments and suggestions received homeless youth, are urged to respond. which serves as a neutral channel of within 60 days of publication. Written The actual solicitations for grant communication between at-risk youth comments and recommendations for the applications will be published at a later and their families and as a source of proposed information should be sent date in the Federal Register. directly to the following: Wendy Taylor, referral to needed services; Solicitations for contracts will be • OMB Desk Officer for ACF, OMB published in the ‘‘Commerce Business Grants to statewide and regional Reports Management Branch, New Daily’’ or addressed to the eight Master non-profit organizations for the Executive Office Building, Room 10235, Contractors for the ‘‘Policy and Program provision of training and technical 725 17th Street, N.W., Washington, D.C. Studies’’ consortium recently assistance to agencies and organizations 20503, (202) 395–7316. established by the Administration on eligible to establish and operate Children, Youth and Families (ACYF). runaway and homeless youth centers; Information on Document and No proposals, concept papers or other • Title: ACF–233–At–Risk Child Care forms of application should be Grants to conduct research, Program Quarterly Report of submitted at this time. demonstration, evaluation, and service projects. Expenditures and Estimates DATES: To be considered, comments Annual Program Priorities. The OMB No.: must be received no later than February Runaway and Homeless Youth Act Description: The At-Risk Program 21, 1995. instructs the Secretary to develop for provides child care to families who ADDRESSES: Please address comments each fiscal year, and to publish annually are not receiving AFDC, need child to: Olivia A. Golden, Commissioner, in the Federal Register for public care to work and would otherwise be Administration on Children, Youth and comment, a proposed plan specifying at risk of becoming eligible for AFDC. Families. Attention: Family and Youth the subject priorities the Department The information required on this form Services Bureau, P.O. Box 1182, will follow in making grants under the will allow the Federal Government to Washington, D.C. 20013. Act (Section 384. [42 U.S.C. 5732] (a)). compute the quarterly grant awards SUPPLEMENTARY INFORMATION: The Secretary is further instructed to for the program and to compute funds take into consideration the comments required to operate the program for I. Background received in developing and publishing the upcoming quarter. The Family and Youth Services the subsequent plan specifying the final Annual Number of Respondents: 54 Bureau (FYSB) administers three fiscal year priorities (Section 384. [42 sites Federal programs dealing with runaway U.S.C. 5732] (b)). The present notice constitutes the Department’s proposed Number of responses per respondent: 4 and homeless youth: • The Runaway and Homeless Youth priorities for fiscal year 1995. Total annual responses: 216 sites Basic Center Program (BCP), No acknowledgement will be made of Hours per response: 2 • The Transitional Living Program for the comments received in response to Total Burden Hours: 432 Homeless Youth (TLP), and this notice, but all comments received • The Drug Abuse Prevention by the deadline will be considered in Dated: December 23, 1994. Program for Runaway and Homeless preparing the runaway and homeless Larry Guerrero, Youth (DAPP). youth final priorities. Final priorities Deputy Director, Office of Information The first two of the FYSB programs will be published in the Federal Systems Management. listed above—the BCP and the TLP—are Register prior to or at the time of [FR Doc. 95–181 Filed 1–4–95; 8:45 am] authorized under the Runaway and solicitation of grant proposals BILLING CODE 4184±01±M Homeless Youth Act (Title III of the competing for fiscal year 1995 funds. 1786 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices II. Proposed Priorities for Fiscal Year Islands, Guam, American Samoa, Palau, Eligible organizations include the Basic 1995 and the Commonwealth of the Northern Centers authorized under Part A of the The proposed priorities are similar to Marianas. Act (The Runaway and Homeless Youth those of earlier years in that the An announcement of the availability Grant Program) and the service grantees Department proposes to award 90 of funds for the Basic Centers, along authorized under Part B of the Act (The percent or more of the funds with the instructions and forms needed Transitional Living Grant Program). appropriated under the BCP and to prepare and submit applications, will Section 3511 of the Anti-Drug Abuse approximately 90 percent of the funds be published in the Federal Register. Act of 1988, which authorizes the Drug Abuse Prevention Program for Runaway appropriated under the DAPP and the B. Priorities for Transitional Living and Homeless Youth (DAPP), also TLP to grantees providing direct Grants services to runaway and homeless authorizes support for T&TA to runaway Part B, Section 321 of the Runaway youth. and homeless youth service providers. and Homeless Youth Act, as amended, The proposed priorities are further The purpose of this T&TA is to authorizes grants to establish and similar to those of earlier years in that strengthen the programs and to enhance operate transitional living projects for the Department proposes to award the knowledge and skills of youth homeless youth. This program is continuation funding to the National service workers. structured to help older, homeless youth Communications System and to a In FY 1994, the Family and Youth achieve self-sufficiency and avoid long- number of program support activities. Services Bureau made ten Cooperative term dependency on social services. The proposed priorities differ from Agreement Awards, one in each of the Transitional living projects provide those of earlier years in two major ways: ten Federal Regions, to provide T&TA to • The Family and Youth Services shelter, skills training, and support agencies funded under the three Federal Bureau is proposing an approach to services to homeless youth ages 16 programs for runaway and homeless youth services that emphasizes through 21 for a continuous period not youth (the BCP, the TLP, and the comprehensive youth development over exceeding 18 months. DAPP). Each Cooperative Agreement is attempts to correct the dysfunctional In FY 1995, approximately $12.3 unique, being based on the behaviors of youth and their families, million will be available for TLP direct characteristics and different T&TA and service grants. Approximately $6.0 needs in the respective Regions. Each • The FYSB is proposing million has already been awarded as has a five-year project period that will administrative changes designed for new start FY 1995 funding to applicants expire in FY 1999. It is anticipated that continuation more efficient delivery of services and that were successful in the competition funding will be awarded to the ten more stability among service providers. conducted at the end of FY 1994 and the remaining $6.3 million will be awarded T&TA grantees in FY 1995 and FY 1996. A. Priorities for Basic Centers as continuation funding to TLP grants 2. National Clearinghouse on Runaway awarded in FY 1994. Further, it is Approximately 340 Basic Center and Homeless Youth grants, of which about one-third will be projected that all potential FY 1996 TLP In June 1992, a five-year contract was competitive new starts and two-thirds funds will be awarded in the form of awarded by the Department to establish will be non-competitive continuations, continuation grants. In consequence, it and operate the National Clearinghouse will be funded in FY 1995. It is is anticipated that no applications for on Runaway and Homeless Youth. The expected that an equal number and new start Transitional Living Program purpose of the Clearinghouse is to serve distribution will be funded in FY 1996. grants will be solicited for FY 1995 or as a central information point for It is anticipated that applications for FY 1996. professionals and agencies involved in BCP new starts will be solicited in the C. The National Communications the development and implementation of second or third quarters of FY 1995 System services to runaway and homeless (January–June 1995). Eligible applicants Part C, Section 331 of the Runaway youth. To this end, the Clearinghouse: for these new starts will be current • Collects, evaluates and maintains grantees with project periods ending in and Homeless Youth Act, as amended, mandates support for a National reports, materials and other products FY 1995 and otherwise eligible regarding service provision to runaway applicants not holding current grants. Communications System to assist runaway and homeless youth in and homeless youth; The applications will be reviewed by • Develops and disseminates reports State, and awards will be made during communicating with their families and with service providers. In FY 1994, a and bibliographies useful to the field; the last quarter of FY 1995 (July– • Identifies areas in which new or September 1995). five-year grant was awarded to the National Runaway Switchboard, Inc., in additional reports, materials and Section 385(a)(2) of the Act requires products are needed; and that 90 percent of the funds Chicago, Illinois, to operate the system. • It is anticipated that continuation Carries out other activities designed appropriated under Part A (The to provide the field with the information Runaway and Homeless Youth Grant funding will be awarded to the grantee in FY 1995 and FY 1996. needed to improve services to runaway Program) be used to establish and and homeless youth. strengthen runaway and homeless youth D. Support Services for Runaway and • It is anticipated that non- Basic Centers. Total funding under Part Homeless Youth Programs competitive continuation funding will A of the Act for FY 1995 is expected to 1. Training and Technical Assistance be awarded to sustain the Clearinghouse be approximately $40.5 million. This in FY 1995 and FY 1996. sum, which is an increase over the FY Part D, Section 342 of the Act 1994 level, will trigger the provision in authorizes the Department to make 3. Runaway and Homeless Youth the Act calling for a minimum award of grants to statewide and regional Management Information System $100,000 to each State, the District of nonprofit organizations to provide (RHYMIS) Implementation Columbia, and Puerto Rico, and a training and technical assistance In FY 1992, a three-year contract was minimum award of $45,000 to each of (T&TA) to organizations that are eligible awarded to implement the Runaway and the five offshore territories: the Virgin to receive service grants under the Act. Homeless Youth Management Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices 1787 Information System (RHYMIS) across separate, autonomous Basic Center program was established independently three FYSB programs: the BCP, the TLP, programs. The need exists for by the Congress, each to address a and the DAPP. In FY 1993, using an innovative and effective models for the specific need or problem related to existing computer-based, information provision of runaway and homeless runaway and homeless youth. Funds for gathering protocol, the contractor began youth services in rural areas, including each program are appropriated annually providing training and technical Indian reservations. The new models by the Congress and are awarded to assistance to these grantees in the use of would make services accessible to youth individual grantees across the country the RHYMIS. The data generated by the without setting up inordinately following submission and review of system will be used to produce reports expensive service agencies in low separate applications. In practice, there populated areas. In FY 1993, first-year and information regarding the programs, is considerable overlap among the funding was awarded to eight grants to including information for the required populations and problems addressed by reports to Congress on each of the three develop such models. Continuation the separate programs as well as programs. The RHYMIS is also designed funding was provided in FY 1994, and considerable overlap among the grantee- to serve as a management tool for FYSB it is anticipated that final continuation and for the individual programs. funding of these grants will be provided administrators of the local projects; It is anticipated that optional in FY 1995. some grantees administer two of the three programs (BCP and DAPP, for continuation funding for the RHYMIS b. Analysis, Synthesis, and will be provided in FY 1995 and FY example) and a few administer all three Interpretation of New Information programs. 1996. Concerning Runaway and Homeless 4. Monitoring Support for FYSB Youth Programs The overlap among targeted youth populations and youth services grantees Programs Over the past few years, considerable suggests that program efficiency and new knowledge and information has In FY 1992, FYSB began developing a coordination might be improved by comprehensive monitoring instrument been developed concerning the runaway consolidating the three programs into and set of site visit protocols, including and homeless youth programs one, setting up in their stead a peer-review component for the BCP, administered by FYSB, and concerning the TLP, and the DAPP. Pilot the youth and families served. The main comprehensive youth services programs implementation of the instrument and sources of this new information are the designed to address the broad range of related protocols began in FY 1993. Also Runaway and Homeless Youth needs of at-risk runaway and homeless in FY 1993 a new contract to provide Management Information System youth populations. An obvious logistical support for the peer review (RHYMIS) and a number of evaluation immediate benefit would be that monitoring process was awarded, studies underway or recently applicants wishing to provide services including nationwide distribution of the completed. The RHYMIS and the in all three areas would have to submit new materials. Use of the new evaluation studies contain descriptions only one application instead of the three instrument and peer review process of FYSB’s grantee agencies, along with now required. during the first full year of operation has detailed data on the youth and families To this end, ACYF may consider resulted in identification of a number of served, such as demographic profiles, funding in FY 1995 four to six presenting problems, services provided, strengths and weaknesses among ‘‘Consolidated Youth Services and service outcomes. There is need for individual grantees. These findings have Demonstration Grants,’’ each for a four- been used by the Regional T&TA analysis, synthesis, and interpretation of this new information, leading to year project period and each at a providers as a basis for their activities. funding level of $325,000 to $400,000 It is anticipated that continuation development of comprehensive plans per year. Applicants would be invited to funding for the logistical contractor will and policies for the Family and Youth be provided in FY 1995 and that a new Services Bureau. design and, if successful in the contract for the effort may be solicited A contract may be considered in FY competition, to implement youth in FY 1996. 1995 to analyze, synthesize, and service models combining features of develop the program and policy the BCP, the DAPP, and the TLP. 5. Research and Demonstration implications of the new information Successful applicants would, in fact, be Initiatives now becoming available. The study required to provide in their respective Section 315 of the Act authorizes the would be developed within a context of geographic areas the complete array of Department to make grants to States, the most significant, current services mandated for the three localities, and private entities to carry comprehensive theories of youth programs and to coordinate these out research, demonstration, and service development, drawing from the fields of services through a single administration. projects designed to increase knowledge physical and mental health, biology, In consequence, it would be appropriate concerning and to improve services for psychology, sociology, education, and to fund these demonstration grants from runaway and homeless youth. These preparation for careers and family life. the regular BCP, DAPP, and TLP activities are important in order to Proposals to conduct the study would appropriations from the Congress. identify emerging issues and to develop be solicited from the eight Master Further, grantees funded from and test models which address such Contractors for the ‘‘Policy and Program consolidated BCP, DAPP, and TLP issues. Studies’’ consortium recently appropriations must be able to show established by the Administration on a. Services for Youth in Rural Areas that the funds from each appropriation Children, Youth and Families. Because of geographic distances, were expended to serve the purposes of population density and, in some cases, c. Consolidated Youth Services that appropriation. Each grantee would cultural differences, it is difficult to Demonstration Grants document the advantages and provide effective services to runaway The Family and Youth Services disadvantages of the consolidated and homeless youth in rural areas. In Bureau now administers three programs approach and would participate in a many such areas, scarcity of funds and targeting runaway and homeless youth: comprehensive evaluation of the other resources precludes funding of the BCP, the TLP, and the DAPP. Each projects. 1788 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices d. Demonstration Grants for grow out of a ‘‘developmental’’ • The Administration on Children Developmentally Disabled Runaway and perspective. A developmental and Families (ACF) may consider Homeless Youth perspective views adolescence and changing the deadline for receipt of It is proposed that from two to four youth as the passage from the almost grant applications from the postal date demonstration grants be awarded to total dependence of the child into the of the application to the actual receipt develop models of service provision to independence and self-sufficiency of the date of the application by ACF. developmentally disabled runaway and young adult. The various changes, Applicants should carefully examine homeless youth, or to youth at risk of stages, and growth spurts of the passage upcoming announcements to assure that becoming so. The models would address may be considered as the youth’s they meet deadlines in the manner issues of coordination of services, natural, healthy responses to the prescribed. • Efforts will be continued to avoid removing barriers to service delivery, challenges and opportunities provided the problems of gaps in financial identification of effective training by functional families, peers, support between the expiration of one materials, and development of policies neighborhoods, schools and churches. grant and the beginning of a new grant and strategies. The grants would be The tasks of youth services providers for current grantees that are successful funded jointly by FYSB and the are seen, thus, not as correcting the in competition. Administration on Developmental ‘‘pathologies’’ of troubled youth, but • Procedures may be established to Disabilities (DD) at a level of $150,000 rather as providing for the successive increase grant funding levels so that all per year for three-year project periods. ‘‘needs’’ of maturing individuals: the grantees will receive an award sufficient Eligible applicants would include psychological need to develop a clear to support the required youth services. current and potential BCP, DAPP, and self-identity; the sociological need to Therefore, we suggest that all applicants TLP grantees. Funded grantees would be resolve disagreements through talking examine carefully the program required to show that the funds from and not through flight or fighting; the announcements to ensure that they each appropriation were expended to economic need to prepare for and enter request sufficient funds. A minimum serve the purposes of that appropriation. into a career; and the familial needs for sharing, for trusting, for giving love and annual BCP award of $75,000 is E. Priority for a Comprehensive Youth receiving love, for commitment, and for proposed. Development Approach all that establishing a family entails. (Catalogue of Federal Domestic Assistance, Over the past several decades, the This developmental approach will Program Number 93.623, Runaway and Federal government has established become central to all FYSB activities Homeless Youth Program, and Program many programs designed to alleviate and programs over the next two years. Number 93.550, Transitional Living Program for Homeless Youth.) discrete problems identified among F. Priorities for Administrative Changes American youth. Examples are programs Dated: December 27, 1994. for school dropout prevention, juvenile To support the increased emphasis on Olivia A. Golden, delinquency prevention, abuse and youth development, a number of Commissioner, Administration on Children, neglect prevention, compensatory management or administrative changes Youth and Families. programs to improve the performance of are being considered for implementation [FR Doc. 95–237 Filed 1–4–95; 8:45 am] minority and non-English-speaking over the coming years: BILLING CODE 4184±01±P youth in the public schools, adolescent • Current holders of BCP and TLP pregnancy prevention, youth gang grants may be invited to submit prevention, and drug abuse prevention applications for Demonstration Grants Public Health Service among youth. Among these many for Developmentally Disabled Runaway Office of the Assistant Secretary for programs are the BCP, the DAPP, and and Homeless Youth, or for DD youth Health; Privacy Act of 1974; New the TLP. who are at risk of running away or System of Records A shared feature of all these programs becoming homeless. Holders of is their emphasis on undesirable Consolidated Youth Services AGENCY: Public Health Service, HHS. behavior, with a number of negative Demonstrations Grants may also be ACTION: Notification of a new system of consequences. Youth ‘‘problems’’ are asked to incorporate DD services into records. commonly used to define and blame, their projects, always with the proviso even to punish, the youth. Further, the that grantees be able to show that funds SUMMARY: In accordance with the labeling of a youth as a drug abuser or from the DD appropriation were requirements of the Privacy Act, the a delinquent may lead to interventions expended to serve the purposes of that Public Health Service (PHS) is too narrow to take into account the full appropriation. publishing a notice of a new system of array of causes leading to the abuse or • The Regional Offices currently play records, 09–37–0024, ‘‘Studies of delinquency, such as parental neglect, a significant role in the assessment of Preventive Medicine, Health Promotion, school failure, or poverty. Practicing grant applications. We are considering and Disease Prevention, HHS/OASH/ youth workers are well aware that an expansion of this role that will ODPHP.’’ records. We are also ‘‘single-problem’’ youth are rare, and involve allowing Regional Office staff to proposing routine uses for this new that interventions from many different add from zero (0) to ten (10) additional system. perspectives, and supports, including points to the total average score of the DATES: PHS invites interested parties to funding, from many different sources, application based on (1) the experience, submit comments on the proposed are required to effectively help troubled effectiveness, quality, and potential of routine use on or before (30 days after youth. the applicant agencies and staffs and (2) publication). PHS has sent a Report of The disjointed services that often the geographic distribution of the New System of Records to the Congress follow from this Federal pattern of grantees in their respective States and and to the Office of Management and categorical funding to correct Regions. Final funding decisions will Budget (OMB) on December 28, 1994. undesirable behavior (funding that remain the responsibility of the The system of records will be effective targets a single problem behavior of the Commissioner of the Administration on 40 days after the date of publication youth) may be avoided if interventions Children, Youth and Families. unless PHS receives comments that Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices 1789 would result in a contrary supervisors; project managers; and research data for this system. Primary determination. statisticians involved in designing record storage sites are listed in ADDRESSES: Please submit comments to: sampling plans. Other one-time and Appendix I. A current list of additional PHS Privacy Act Officer, Room 17–45, special access by other employees is contractor sites is available by writing to Parklawn Building, 5600 Fishers Lane, granted on a need-to-know basis as the System Manager at the address Rockville, Maryland 20857, Telephone: specifically authorized by the System below. Manager. Researchers authorized to 301–443–2055 (This is not a toll-free CATEGORIES OF INDIVIDUALS COVERED BY THE number). conduct research will typically access SYSTEM: the system through the use of encrypted Comments received will be available Patients (adults and children) of the identifiers sufficient to link individuals for inspection at the above address from clinicians participating in these studies; with records in such a manner that does 8:30 a.m. to 4 p.m. Monday through individuals who are representative of Friday. not compromise confidentiality of the the general population or of special FOR FURTHER INFORMATION CONTACT: individual. The collection and groups including, but not limited to: Dr. Hurdis M. Griffith, Senior Policy maintenance of data is consistent with Normal controls, normal volunteers, Advisor, Office of Disease Prevention legislation and regulations regarding the family members and relatives; providers and Health Promotion, 2132 Switzer protection of human subjects, informed of services. Building, 330 C Street, SW, Washington, consent, and confidentiality. DC 20201, 202–205–8660 (This is not a The proposed routine uses are CATEGORIES OF RECORDS IN THE SYSTEM: toll-free number). compatible with the stated purposes of The system contains records about SUPPLEMENTARY INFORMATION: PHS the system. The first routine use permits individuals as relevant to these studies: proposes to establish a new system of the disclosure of information to (1) Medical records (treatment, records: 09–37–0024, ‘‘Studies of researchers under carefully controlled laboratory screening and diagnostic Preventive Medicine, Health Promotion, conditions. The second routine use tests, and preventive services); (2) and Disease Prevention, HHS/OASH/ permits the disclosure of information to clinician surveys (use of screening, ODPHP.’’ This system of records will be a member of Congress when a counseling and preventive services); used by the Office of Disease Prevention constituent has requested assistance. and (3) patient surveys (height, weight, and Health Promotion (ODPHP) in the The third routine use permits HHS to race/ethnicity, health behavior, health Office of the Assistant Secretary for disclose information to the Department conditions). Examples of information Health (OASH) to study the impact of of Justice in the event of litigation. The include, but are not limited to: Patient preventive medicine interventions and fourth routine use permits disclosure of or provider name, study identification public education efforts on health information to a contractor for the number, address, relevant telephone service delivery, patient behavior, and purpose of analyzing or refining the numbers, Social Security Number health outcome. data. The fifth routine use permits (voluntary), date of birth, weight, height, The system will contain records of disclosure of information for the sex, race; medical, psychological and patients of the clinicians participating purpose of quality assessment, audit, or dental information, laboratory and in these studies, as well as normal utilization review. The sixth routine use diagnostic testing results; registries; volunteers, relatives of the patients, and permits disclosure to Federal and State social, economic and demographic data; the providers of services. Examples of agencies, and private organizations for health services utilization; the information collected are: Patient or the purpose of locating individuals for immunization status; insurance and provider name, study identification follow-up studies. The seventh routine hospital cost data, employers; number, address, relevant telephone use permits the disclosure of characteristics and activities of health numbers, Social Security Number information to student volunteers who care providers. need the records to carry out their (voluntary), date of birth, weight, height, AUTHORITY FOR MAINTENANCE OF THE SYSTEM: official functions. sex, race; medical, psychological and Authorization to collect these data is dental information, laboratory and The following notice is written in the present, rather than the future tense, to provided under section 301 of the diagnostic testing results; registries; Public Health Service Act (42 U.S.C. social, economic and demographic data; avoid the unnecessary expenditures of public funds for republishing the notice 241), General Powers and Duties of health services utilization; Public Health Service. immunization status; insurance and after the system has become effective. hospital cost data, employers; Dated: December 30, 1994. PURPOSE(S): characteristics and activities of health Ellen Wormser, The purpose of this system of records care providers. Director, Office of Organization and is to enable the study of the impact of The records in this system will be Management Systems. preventive medicine interventions and maintained in a secure manner public education efforts of health commensurate with their content and 09±37±0024 service delivery, patient behavior, and use. The System Manager will control SYSTEM NAME: health outcome. Information from the access to the data. Access to identifiers system of records will be shared within Studies of Preventive Medicine, and to link files is strictly limited to the the Department of Health and Human Health Promotion, and Disease authorized personnel whose duties Services (DHHS) with such Public Prevention, HHS/OASH/ODPHP. require such access. Procedures for Health Service (PHS) agencies as the determining authorized access to SECURITY CLASSIFICATION: Centers for Disease Control and identified data are established as None. Prevention (CDC) including the National appropriate for each location. Personnel, Center for Health Statistics (NCHS), the including contractor personnel, who SYSTEM LOCATION: Health Resource Services may be so authorized include those Records are located at the Office of Administration (HRSA), the Indian directly involved in data collection and Disease Prevention and Health Health Service (IHS), the National in the design of research studies, e.g., Promotion (ODPHP) and Contractor Institutes for Health (NIH), the Agency interviewers and interviewer research facilities that collect or provide for Health Care Policy and Research 1790 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices (AHCPR), and the Health Care 2. Disclosure may be made to a for PHS who do not technically have the Financing Administration (HCFA). congressional office from the record of status of agency employees, if they need an individual in response to a verified the records in the performance of their ROUTINE USES OF RECORDS MAINTAINED IN THE inquiry from a congressional office SYSTEM, INCLUDING CATEGORIES OF USERS AND agency functions. THE PURPOSES OF SUCH USES: made at the written request of that individual. POLICIES AND PRACTICES FOR STORING, 1. A record may be disclosed for a RETRIEVING ACCESSING RETAINING AND 3. In the event of litigation, where the , , , research purpose, when the Department: DISPOSING OF RECORDS IN THE SYSTEM: defendant is (a) the Department, any (A) Has determined that the use or component of the Department, or any STORAGE: disclosure does not violate legal or employee of the Department in his or Records may be stored in hard copy, policy limitations under which the her official capacity; (b) the United index cards, file folders, computer tapes record was provided, collected, or States where the Department determines and disks (including optical disks), obtained; e.g., disclosure of alcohol or that the claim, if successful, is likely to drug abuse patient records will be made photography media, microfiche, directly affect the operations of the only in accordance with the restrictions microfilm, and audio and video tapes. Department or any of its components; or of confidentiality statutes and Typically, factual data with study code (c) any Department employee in his or regulations (42 U.S.C. 290 (dd–2), 42 numbers are stored on computer tape or her individual capacity where the U.S.C. 241 and 405, 42 CFR part 2), and disk, while the key to personal Justice Department has agreed to where applicable, no disclosures will be identifiers is stored separately, without represent such employee, for example, made inconsistent with an authorization factual data, in locked paper files. in defending a claim against the Public of confidentiality under 42 U.S.C. 242a Health Service, based upon an RETRIEVABILITY: and 42 CFR part 2a; (B) has determined individual’s mental or physical During data collection stages and that the research purpose (1) cannot be condition and alleged to have arisen follow-up retrieval is by personal reasonably accomplished unless the because of activities of the Public Health identifier (e.g., name, Social Security record is provided in individually Service in connection with such an Number, medical record or study identifiable form, and (2) warrants the individual, the Department may identification number etc.). During the risk to the privacy of the individual that disclose such records as it deems data analysis stage, data are normally additional exposure of the record might desirable or necessary to the Department retrieved by the variables of interest bring; (C) has required the recipient to of Justice to enable that Department to (e.g., diagnosis, age, occupation). (1) establish reasonable administrative, present an effective defense, provided SAFEGUARDS: technical, and physical safeguards to such disclosure is compatible with the prevent unauthorized use or disclosure purpose for which the records were 1. Authorized Users: Access to of the record, (2) remove or destroy the collected. identifiers and to link files is strictly information that identifies the 4. ODPHP may contract with a private limited to the authorized personnel individual at the earliest time at which firm for the purpose of collecting, whose duties require such access. removal or destruction can be analyzing, aggregating, or otherwise Procedures for determining authorized accomplished consistent with the refining records in this system. Relevant access to identified data are established purpose of the research project, unless records may be disclosed to such as appropriate for each location. the recipient has presented adequate contractor. The contractor shall be Personnel, including contractor justification of a research or health required to maintain Privacy Act personnel, who may be so authorized nature for retaining such information, safeguards with respect to such records. include those directly involved in data and (3) make no further use or 5. Disclosure may be made to collection and in the design of research disclosure of the record except (a) in organizations deemed qualified by the studies, e.g., interviewers and emergency circumstances affecting the Secretary to carry out quality interviewer supervisors; project health or safety of any individual, (b) for assessments, medical audits or managers, and statisticians involved in use in another research project, under utilization review. designing sampling plans. these same conditions, and with written 6. Information from this system may Other one-time and special access by authorization of the Department, (c) for be disclosed to Federal agencies, State other employees is granted on a need- disclosure to a properly identified agencies (including the Motor Vehicle to-know basis as specifically authorized person for the purpose of an audit Administration and State vital statistics by the System Manager. related to the research project, if offices), private organizations, and other Researchers authorized to conduct information that would enable research third parties (such as current or prior research will typically access the system subjects to be identified is removed or employers, acquaintances, relatives), in through the use of encrypted identifiers destroyed at the earliest opportunity order to obtain information on sufficient to link individuals with consistent with the purpose of the audit, morbidity and mortality experiences records in such a manner that does not or (d) when required by law; and (D) has and to locate individuals for follow-up compromise confidentiality of the secured a written statement attesting to studies. Social Security numbers may be individual. the recipient’s understanding of, and disclosed to the Social Security 2. Physical Safeguards: Records are willingness to abide by, these Administration to ascertain disabilities stored in locked rooms, locked file provisions. Examples of organizations and/or location of participants. Social cabinets, and/or secured computer and agencies of which records from this Security numbers may also be given to facilities. Personal identifiers and link system may be disclosed include, but other Federal agencies, and State and files are separated as much as possible are not limited to Health Maintenance local agencies for purposes of locating and stored in locked files. Computer Organizations (HMOs) and other service individuals for participation in follow- data access is limited through the use of providers participating in the studies up studies. key words known only to authorized and various federal and state agencies, 7. Records may be disclosed to personnel. such as the Veteran’s Administration, student volunteers, individuals working A separate key list linking ID codes to branches of the Armed Forces, and state under a personal services contract, and respondents will be maintained by the and local health department. other individuals performing functions contractor conducting the survey, Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices 1791 during the data collection period in individual’s name; current address; date obtained from other sources, including order to permit follow-up with non- of birth; date, place and nature of but not limited to: referring physicians; respondents. This key list will be kept participation in the research study; hospitals; State and local health in a locked file when not actively in use. address at the time of participation. The agencies; relatives; guardians; schools, As soon as data cleaning is completed System Manager may accept a written employers; and clinical research this key list will be destroyed. No data certification that the requester is who he records. that could be used to identify or she claims to be and understands that respondents will be entered on the the knowing and willful request for SYSTEMS EXEMPTED FROM CERTAIN PROVISIONS OF THE ACT: computer database. acquisition of a record pertaining to an Likewise the name of individual individual under false pretenses is a None. settings will not appear on data criminal offense under the Act, subject Appendix I: System Location sites collection forms or the computerized to a five thousand dollar fine. Office of Disease Prevention and Health database. Again a separate key matching An individual who requests Promotion (ODPHP), 2132 Switzer the ID code to the hospital name will be notification of, or access to, a medical/ Building, 330 C Street, SW, Washington, maintained during the course of data dental record shall, at the time the DC 20201 collection in order to permit follow-up request is made, designate in writing a Battelle Memorial Institute, Centers for of non-respondents. They key listing responsible representative who will be Public Health Research and Evaluation, will be kept in a secure location when willing to review the record and inform 2101 Wilson Boulevard, Suite 800, not actively in use, and destroyed as the subject individual of its contents at Arlington, VA 22201 soon as the data cleaning is completed. the representative’s discretion. The Battelle Memorial Institute, Centers for Public Health Research and Evaluation, 3. Procedural Safeguards: Collection representative may be a physician, or Room 100E, 505 King Avenue, Columbus, and maintenance of data is consistent other health professional, or other OH 43201–2693 with legislation and regulations responsible individual. The subject Battelle/SRA, 401 North Lindbergh regarding the protection of human individual will be granted direct access Boulevard, Suite 330, St. Louis, MO subjects, informed consent, and unless it is determined that such access 63141–7816 confidentiality. When anonymous data is likely to have a adverse effect on him [FR Doc. 95–268 Filed 1–4–95; 8:45 am] is provided to research scientists for or her. In this case, the medical/dental BILLING CODE 4160±17±M analysis, study numbers which can be record will be sent to the designated matched to personal identifiers will be representative. eliminated, scrambled, or replaced by Individuals will be informed in the agency or contractor with random writing if the record is sent to the DEPARTMENT OF THE INTERIOR numbers which cannot be matched. representative. Bureau of Land Management Contractors who maintain records in A parent or guardian who requests this system are instructed to make no notification of, or access to, a child’s or [CA±050±1220±00±24±1A] further disclosure of the records. incompetent person’s medical record Privacy Act requirements are shall designate a family physician or Supplemental Shooting Regulations specifically included in contracts for other health professional (other than a AGENCY: Bureau of Land Management, survey and research activities related to family member) to whom the record, if Interior. this system. The ODPHP project officers any, will be sent. The parent or guardian ACTION: Notice of proposed and contract officers oversee must verify relationship to the child or supplementary rules. compliance with these requirements. incompetent person as well as his or her own identity. RETENTION AND DISPOSAL: SUMMARY: The following supplemental shooting regulations would apply to The records are maintained with RECORD ACCESS PROCEDURE: developed recreational areas/sites and individual identifiers only until analysis Same as notification procedures. to undeveloped Bureau of Land and follow-up are completed, generally Requesters should also reasonably Management administered public lands a two- to three-year period. Removal or specify the record contents being (that are not closed to shooting) within disposal of identifiers will be done sought. An individual may also request the Ukiah District, California. according to the storage medium (e.g., an accounting of disclosures of his/her (1) No person shall have in their erase computer tape, shred, pulp or record, if any. possession an assault weapon(s) as burn paper records etc.). A staff person CONTESTING RECORD PROCEDURE: defined under the California ‘‘Assault designated by the System Manager or an Weapons Control Act of 1989’’ and authorized Contractor will oversee and Contact the appropriate official at the listed under the authority of Assembly confirm the disposal in writing. Long- address specified under Notification Bill 357 (CPC 12276.5) and further term retention is only in aggregate form Procedures above and reasonably identified under Senate Bill 263, without individual identifiers in identify the record, specify the Chapter 954 STATS 1991. accordance with the OASH Records information being contested, and state (2) Unless otherwise posted, no Disposition Schedule. the corrective action sought and the reason(s) for requesting the correction, persons shall target shoot with a SYSTEM MANAGER AND ADDRESS: along with supporting justification to weapon within 50 feet of the center line Senior Policy Advisor, Office of show how the record is inaccurate, of any public road. ‘‘Target Shoot’’ is Disease Prevention and Health incomplete, untimely, or irrelevant. defined as shooting a weapon for Promotion, 2132 Switzer Building, 330 recreational purposes for which game is C Street, SW, Washington, DC 20201. RECORD SOURCE CATEGORIES: not being pursued. Under this The system contains information definition, the shooting of clay pigeons NOTIFICATION PROCEDURE: obtained directly from the subject is considered to be a form of target To determine if a record exists, write individual by interview (face-to-face or shooting. ‘‘Public Road’’ is defined as to the System Manager listed above. telephone), written questionnaire, or any road, dirt or otherwise, on which Notification requests should include: observations. Information is also public vehicular traffic is permitted. 1792 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices ‘‘Weapon’’ is defined as any firearm, considered loaded for the purposes of Fish and Wildlife Service cross bow, bow and arrow, paint gun, this section when there is an fireworks or explosive device capable of unexpended cartridge of powder and a Notice of Receipt of Applications for propelling a projectile either by means bullet or shot, in, or attached in any Permit of an explosion or by, string or spring. manner to, the firearm, including but ‘‘Firearm’’ is defined as an instrument not limited to, in the firing chamber, The following applicants have used in the propulsion of shot, shell, or magazine, or clip thereof, attached to applied for a permit to conduct certain bullets by the action of gunpowder the firearm; except, that a muzzle loader activities with endangered species. This exploded within it. firearm shall be deemed to be loaded notice is provided pursuant to Section (3) No person shall shoot or discharge when it is capped or primed and has a 10(c) of the Endangered Species Act of any weapon within 150 yards of any powder charge and ball or shot in the 1973, as amended (16 U.S.C. 1531, et developed recreational area/site. cylinder or barrel. seq.): ‘‘Developed Recreational Area/Site’’ is (9) No person shall have a loaded defined as any site or area that contains Applicant: American Type Culture firearm on display when in any Collection, Rockville, MD, PRT–773392 structures or capital improvements developed recreational area. primarily used by the public for (10) No person shall discharge any The applicant has applied for a permit recreation purposes. Such areas or sites weapon from a powerboat, sailboat, to export frozen cell lines of may include such features as: delineated motor vehicle or aircraft while under chimpanzee (Pan troglodytes), spaces for parking, camping or boat power or still moving from use of sail orangutan (Pongo pygmaeus), gorilla launching; sanitary facilities; potable or motor. (Gorilla gorilla) and golden lion tamarin water; grills or fire rings; tables; or (Leontopithecus rosalia) for the purpose controlled access. (11) Except with a valid permit, no of scientific research. (4) No person shall shoot or discharge person shall carry a concealed weapon. any weapon towards or in the direction (12) No person shall have in their Applicant: American Type Culture of any public road, signed trail, or possession a shotgun which has an Collection, Rockville, MD, PRT–773390 developed recreational areas/site where overall length of less than 26 inches this action could create a hazard to life and/or barrel or barrels of less than 18 The applicant has applied for a permit or property. inches in length. to export frozen cell lines of cotton-top (5) For safety reasons, no person shall (13) No person shall have in their tamarin (Saguinus oedipus) and white- have in their possession, an open possession a rifle which has an overall handed Gibbon (Hylobates lar) for the container of alcoholic liquor while length of less than 26 inches and/or purpose of scientific research. shooting or discharging any weapon. barrel of less than 16 inches in length. Applicant: Robert Dunn, Sylmar, CA, PRT– And, no person shall be under the DATES: All comments and information 795517 influence of a controlled substance or shall be submitted in writing by have a blood alcohol content (BAC) of February 6, 1995. The applicant has applied for a permit 0.05 (0.01 if under 21 years of age) while to export and re-import a pair of shooting or discharging any weapon. ADDRESSES: All comments concerning captive-born orangutans (Pongo ‘‘Alcoholic Liquor’’ is defined in Black’s this proposed rulemaking should be pygmaeus) to Canada for the purpose of Law Dictionary as any intoxicating addressed to David Howell, District conservation education. Manager, Bureau of Land Management, liquors which can be used as a beverage, Written data or comments should be and which, when drunk to excess, will Ukiah District Office, 2550 North State Street, Ukiah, CA 95482. submitted to the Director, U.S. Fish and produce intoxication. ‘‘Controlled Wildlife Service, Office of Management Substance’’ is defined in Black’s Law FOR FURTHER INFORMATION CONTACT: Authority, 4401 North Fairfax Drive, Dictionary as any drug so designated by Patrick Hagan, Ranger, Ukiah District Room 420(c), Arlington, Virginia 22203 law whose availability is restricted, Office, (707) 468–4076. and must be received by the Director included are narcotics, stimulants, SUPPLEMENTARY INFORMATION: These within 30 days of the date of this depressants, hallucinogens, and shooting regulations are being publication. marijuana. established to provide consistency and (6) No person shall shoot or discharge Documents and other information uniformity for shooting on Bureau of submitted with these applications are any firearm loaded with tracers, armor Land Management administered lands available for review, subject to the piercing or steel jacketed bullets. throughout the Ukiah District of requirements of the Privacy Act and (7) No person shall shoot or discharge California, and to prevent user conflicts Freedom of Information Act, by any any weapon at any appliance, and provide greater safety to the visiting party who submits a written request for television, object containing glass, or public. These supplementary rules or a copy of such documents to the other target material which can shatter shooting do not supersede regulations following office within 30 days of the and cause a public safety hazard as a already established. result of the projectile impact or date of publication of this notice: U.S. Authority for these regulations is explosion. The shooting or discharging Fish and Wildlife Service, Office of contained in CFR title 43, Chapter II, of any shotgun at ‘‘clay pigeons’’ is Management Authority, 4401 North Part 8360, Subpart 8364.1 and 8365.1– permitted. Persons on these public Fairfax Drive, Room 420(c), Arlington, 6. Violations of the supplementary rules lands which shoot or discharge any Virginia 22203. Phone: (703/358–2104); under authority of 43 CFR 8365.1–6 are weapon are required to remove and FAX: (703/358–2281). subject to a fine not to exceed $1,000 properly dispose of all shooting and/or imprisonment not to exceed 12 Dated: December 30, 1994. materials; including shell boxes, targets, months. shell casings, etc. Caroline Anderson, (8) No person shall transport in a David Howell, Acting Chief, Branch of Permits Office of vehicle or conveyance or its attachments District Manager. Management Authority. on any public road a firearm unless it [FR Doc. 95–207 Filed 1–4–95; 8:45 am] [FR Doc. 95–216 Filed 1–4–95; 8:45 am] is unloaded or dismantled. A firearm is BILLING CODE 4310±40±M BILLING CODE 4310±55±P Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices 1793 INTERNATIONAL TRADE Copies of the ID and all other [Finance Docket No. 32629] COMMISSION nonconfidential documents filed in connection with this investigation are or Pioneer Railcorp; Continuance in [Investigation No. 337±TA±358] will be available for inspection during Control Exemption; Minnesota Central Railroad Company Certain Recombinantly Produced official business hours (8:45 a.m. to 5:15 Human Growth Hormones; Notice of p.m.) in the Office of the Secretary, U.S. Pioneer Railcorp (Pioneer), a Commission Determination Not To International Trade Commission, 500 E noncarrier holding company, has filed a Review an Initial Determination Street S.W., Washington, DC 20436, notice of exemption to continue in stock Granting Complainant's Motion To telephone 202–205–2000. Hearing- ownership control of Minnesota Central Amend the Complaint and Notice of impaired persons are advised that Railroad Company (MNCR), its wholly Investigation To Withdraw a Patent information on the matter can be owned noncarrier subsidiary, when Claim obtained by contacting the MNCR becomes a class III rail carrier. Commission’s TDD terminal on 202– MNCR concurrently filed a notice of AGENCY: U.S. International Trade 205–1810. exemption in Minnesota Central Commission. Issued: December 28, 1994. Railroad Company—Acquisition and ACTION: Notice. By order of the Commission. Operation Exemption—MNVA Railroad, Inc., Finance Docket No. 32628, to Donna R. Koehnke, SUMMARY: Notice is hereby given that acquire from MNVA Railroad, Inc. the U.S. International Trade Secretary. (MNVA), a class III rail carrier, and Commission has determined not to [FR Doc. 95–202 Filed 1–4–95; 8:45 am] operate a 146-mile rail line in review the presiding administrative law BILLING CODE 7020±02±P Minnesota. Consummation was judge’s (ALJ’s) initial determination (ID) scheduled for December 13, 1994. in the above-captioned investigation Pioneer owns and controls seven granting complainant Genentech, Inc.’s other class III rail carriers: West Jersey motion to amend the complaint and INTERSTATE COMMERCE Railroad Co., operating in New Jersey; notice of investigation by withdrawing COMMISSION Fort Smith Railroad Co., operating in claim 38 of U.S. Letters Patent 5,221,619 Arkansas; Alabama Railroad Co., from the investigation. Availability of Environmental operating in Alabama; Mississippi Assessments FOR FURTHER INFORMATION CONTACT: Central Railroad Co. (formerly Natchez Mark D. Kelly, Esq., Office of the Pursuant to 42 U.S.C. 4332, the Trace Railroad), operating in General Counsel, U.S. International Commission has prepared and made Mississippi and Tennessee; Alabama & Trade Commission, telephone 202–205– available environmental assessments for Florida Railway Co., operating in 3106. the proceedings listed below. Dates Alabama; Decatur Junction Railway Co., SUPPLEMENTARY INFORMATION: The environmental assessments are available operating in Illinois; and Vandalia Commission instituted this investigation are listed below for each individual Railroad Company, operating in 1 on September 29, 1993, based on a proceeding. Illinois. Pioneer states that: (1) The properties complaint filed by Genentech, Inc. of To obtain copies of these operated by these carriers do not South San Francisco, California. 58 FR environmental assessments contact Ms. connect with each other or any railroads 50954. The following five firms were Tawanna Glover-Sanders or Ms. Judith in their corporate family; (2) the named as respondents: Novo Nordisk A/ Groves, Interstate Commerce continuance in control is not part of a S of Denmark; Novo Nordisk of North Commission, Section of Environmental series of anticipated transactions that America, Inc. of New York; Analysis, Room 3219, Washington, DC would connect the railroads with each ZymoGenetics, Inc. of Seattle, 20423, (202) 927–6203 or (202) 927– other or any railroad in their corporate Washington (collectively, ‘‘the Novo 6246. respondents’’); Bio-Technology General family; and (3) the transaction does not Comments on the following involve a class I carrier. Therefore, the Corp. of New York; and Bio-Technology assessment are due 15 days after the General Corp. (Israel) Ltd. (collectively, transaction is exempt from the prior date of availability: approval requirements of 49 U.S.C. ‘‘the BTG respondents’’). AB–290 (Sub-No. 164X), Louisiana At the pre-hearing conference on 11343. See 49 CFR 1180.2(d)(2). Southern Railway Company— As a condition to use of this April 8, 1994, complainant Genentech Abandonment—at Chalmette, exemption, any employees affected by orally moved to amend the complaint by Louisiana—Notice of Exemption. EA the transaction will be protected by the withdrawing claim 38 of the ’619 patent available 12/16/94. conditions set forth in New York Dock from the investigation. The parties AB–290 (Sub-No. 165X), Norfolk & Ry.—Control—Brooklyn Eastern Dist., addressed complainant Genentech’s Western Railway Company— 360 I.C.C. 60 (1979). motion in their post-hearing Abandonment—In Cincinnati, Ohio. EA Petitions to revoke the exemption submissions. The Commission available 12/19/94. under 49 U.S.C. 10505(d) may be filed investigative attorneys (IAs) supported AB–103 (Sub-No. 10X), Kansas City at any time. The filing of a petition to complainant’s motion. The Novo revoke will not automatically stay the respondents and the BTG respondents Southern Railway Company— Abandonment—Independence Air Line transaction. Pleadings must be filed opposed complainant’s motion. No with the Commission and served on: petitions to review the ID were filed and Branch. EA available 12/26/94. Comments on the following assessment Donald G. Avery and Patricia E. no government agency comments were Dietrich, Slover & Loftus, 1224 received. are due 30 days after the date of availability: None. Seventeenth Street, N.W., Washington, This action is taken under the DC 20036. authority of section 337 of the Tariff Act Vernon A. Williams, Acting Secretary. of 1930, 19 U.S.C. 1337, and 1 See Pioneer Railcorp—Continuance in Control Commission interim rule 210.53 (19 [FR Doc. 95–225 Filed 1–4–95; 8:45 am] Exemption—Vandalia Railroad Company, Finance C.F.R. 210.53). BILLING CODE 7035±01±P Docket No. 32594 (ICC served Oct. 28, 1994). 1794 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices Decided: December 23, 1994. This notice is filed under 49 CFR class III rail carrier upon consummation By the Commission, David M. Konschnik, 1150.31. If the notice contains false or of the acquisition. Consummation of the Director, Office of Proceedings. misleading information, the exemption acquisition by Eastern Maine in the Vernon A. Williams, is void ab initio. Petitions to revoke the instant proceeding is contingent upon Secretary. exemption under 49 U.S.C. 10505(d) the Commission granting the petition in [FR Doc. 95–229 Filed 1–4–95; 8:45 am] may be filed at any time. The filing of the related Finance Docket No. 32651. Any comments must be filed with the BILLING CODE 7035±01±P a petition to revoke will not automatically stay the transaction. Commission and served on: William C. Decided: December 15, 1994. Evans, 901 15th Street, N.W., Suite 700, [Finance Docket No. 32628] Washington, DC 20005–2301; and W. By the Commission, David M. Konschnik, David Jamieson, P.O. Box 5777—300 Minnesota Central Railroad Company; Director, Office of Proceedings. Vernon A. Williams, Union Street, 12th Floor, Saint John, Acquisition and Operation Exemption; New Brunswick, Canada E2L 4M3. Rail Lines of MNVA Railroad, Inc. Secretary. This notice is filed under 49 CFR [FR Doc. 95–228 Filed 1–4–94; 8:45 am] 1150.31. If the notice contains false or Minnesota Central Railroad Company BILLING CODE 7035±01±P misleading information, the exemption (MNCR), a noncarrier,1 has filed a notice is void ab initio. Petitions to revoke the of exemption to acquire and operate exemption under 49 U.S.C. 10505(d) approximately 146 miles of MNVA [Finance Docket No. 32650] may be filed at any time. The filing of Railroad, Inc.’s (MNVA) Hanley Falls- Eastern Maine Railway Company; a petition to revoke will not Minneapolis rail line between milepost Acquisition Exemption; Rail Line of automatically stay the transaction. 145.08, at Hanley Falls, MN, and 2 Canadian Pacific Limited Between Because this line is the subject of a milepost 0.0, at Minneapolis, MN. As Brownville Junction and Vanceboro, pending abandonment application (see part of this transaction MNCR will ME n.2 supra), and labor protective purchase MNVA’s right, title and conditions would have been imposed if Eastern Maine Railway Company interest in certain incidental trackage abandonment had been authorized in (Eastern Maine), a noncarrier,1 has filed rights agreements. MNCR and MNVA that proceeding, the Commission will a notice of exemption to acquire the executed an agreement on November 4, seriously consider in this case the eastern portion of Canadian Pacific 1994 for the purchase and operation of imposition of the conditions imposed in Limited’s (CP) rail line between Skinner MNVA’s Hanley Falls-Minneapolis rail Oregon Short Line R. Co.— and Vanceboro, ME.2 The portion of the line, along with its incidental trackage Abandonment—Goshen, 360 I.C.C. 91 line involved in the transaction is 99.5 rights agreements, rail operating assets, (1979). Petitions to revoke for purposes miles and extends from milepost 105.1 and other contract rights. The parties of imposing labor protective conditions at Brownville Junction, ME, to milepost intend to consummate the transaction should address the exceptional 5.6 at the Maine-New Brunswick border on or after December 14, 1994, the circumstances which would permit the effective date of the exemption. near Vanceboro, ME.3 Eastern Maine, Irving, and NBR, have Commission to impose such conditions This proceeding is directly related to on this 49 U.S.C. 10901 transaction. a concurrently filed notice of exemption concurrently filed a related petition in in Finance Docket No. 32629, Pioneer Eastern Maine Railway Company, J.D. Decided: December 29, 1994. Railcorp—Continuance in Control Irving, Limited and New Brunswick By the Commission, David M. Konschnik, Exemption—Minnesota Central Railway Company—Petition for Director, Office of Proceedings. Railroad Company, wherein Pioneer Disclaimer of Jurisdiction or, Vernon A. Williams, Railcorp seeks to continue in control of Alternatively, for an Exemption From 49 Secretary. MNCR when MNCR becomes a class III U.S.C. 11343(a)(5), Finance Docket No. [FR Doc. 95–227 Filed 1–4–95; 8:45 am] rail carrier upon consummation of the 32651. In that proceeding, Eastern BILLING CODE 7035±01±P transaction described in this notice.3 Maine, NBR, and Irving seek to enable Any comments must be filed with the Irving to continue in control of Eastern [Finance Docket No. 32646] Commission and served on: Donald G. Maine should Eastern Maine become a Avery, 1224 Seventeenth Street, N.W., Canadian American Railroad Washington, D.C. 20036. 1 Eastern Maine, is a wholly owned subsidiary of New Brunswick Railway Company (NBR). Both Company; Acquisition and Operation Eastern Maine and NBR are represented to be Exemption; Certain Lines of Canadian 1 MNCR is a wholly owned subsidiary of Pioneer noncarriers. NBR is controlled by J.D. Irving Pacific Limited in Maine Railcorp, a noncarrier holding company. Limited (Irving). 2 Originally established in 1983, MNVA operates 2 This CP line is the subject of a pending Canadian American Railroad over a former Chicago & North Western (C&NW) rail abandonment application in Canadian Pacific Company (CDAC), a noncarrier, has line between milepost 145.08 at Hanley Falls, Limited—Abandonment—Line Between Skinner Yellow Medicine County, MN, and milepost 51.3, and Vanceboro, ME, Docket No. AB–213 (Sub-No. filed a notice of exemption to acquire at Norwood, Carver County, MN, under a contract 4). and/or operate Canadian Pacific for sale agreement with the Minnesota Valley 3 Acquisition of the western portion of CP’s line Limited’s (CP) line between Skinner and Regional Rail Authority. MNVA also has trackage between Brownville Junction and the Maine- Vanceboro, ME.1 CDAC will acquire and rights over the C&NW from milepost 51.3, at Quebec border near Skinner and operation of the Norwood to milepost 0.0, at Minneapolis, Hennepin entire CP line between Skinner and Vanceboro is operate 101.7 miles of the western County, MN. the subject of a notice of exemption filed portion of CP’s line of railroad between 3 Pioneer Railcorp already controls seven class III concurrently by Canadian American Railroad milepost 0.0 at Brownville Junction, shortline rail carriers: West Jersey Railroad Co. Company (CDAC) in Canadian American Railroad ME, and milepost 101.7 at the Maine- (operating in New Jersey); Fort Smith Railroad Co. Company—Acquisition and Operation Exemption— (operating in Arkansas); Alabama Railroad Co. Certain Lines of Canadian Pacific Limited in Maine, Quebec border near Skinner, ME, and (operating in Alabama); Mississippi Central Finance Docket No. 32646. Related to that notice is Railroad Co. (operating in Mississippi and a petition for exemption filed concurrently in 1 This CP line is the subject of a pending Tennessee); Alabama & Florida Railway Co. Fieldcrest Cannon, Inc. and Downeast Securities abandonment application in Canadian Pacific (operating in Alabama); Decatur Junction Railway Corporation—Continuance in Control—Canadian Limited—Abandonment—Line Between Skinner Co. (operating in Illinois); and Vandalia Railroad American Railroad Company, Finance Docket No. and Vanceboro, ME, Docket No. AB–213 (Sub-No. Company, (operating in Illinois). 32647. 4). Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices 1795 will operate 99.5 miles of the eastern n.1 supra), and labor protective for review under the provisions of the portion of CP’s line of railroad between conditions would have been imposed if Paperwork Reduction Act (44 USC milepost 105.1 at Brownville Junction abandonment had been authorized in Chapter 35) and the Paperwork and milepost 5.6 at the Maine-New that proceeding, the Commission will Reduction Reauthorization Act since the Brunswick border, near Vanceboro, seriously consider in this case the last list was published. Entries are ME.2 imposition of the conditions imposed in grouped into submission categories, This proceeding is related to a Oregon Short Line R. Co.— with each entry containing the petition for exemption filed Abandonment—Goshen, 360 I.C.C. 91 following information: concurrently in Fieldcrest Cannon, Inc. (1979). Petitions to revoke for purposes (1) the title of the form/collection; and Downeast Securities Corporation— of imposing labor protective conditions (2) the agency form number, if any, Continuance in Control—Canadian should address the exceptional and the applicable component of the American Railroad Company, Finance circumstances which would permit the Department sponsoring the collection; Docket No. 32647. In that proceeding, Commission to impose such conditions (3) how often the form must be filled Fieldcrest Cannon, Inc. (Fieldcrest), and on this 49 U.S.C. 10901 transaction. out or the information is collected; Downeast Securities Corporation (4) who will be asked or required to Decided: December 29, 1994. (Downeast) (collectively, petitioners), respond, as well as a brief abstract; noncarriers, seek an exemption under By the Commission, David M. Konschnik, (5) an estimate of the total number of 49 U.S.C. 10505 from the prior approval Director, Office of Proceedings. respondents and the amount of time requirements of 49 U.S.C. 11343–11344 Vernon A. Williams, established for an average respondent to for the acquisition of control by Secretary. respond; petitioners of CDAC, upon CDAC [FR Doc. 95–226 Filed 1–4–95; 8:45 am] (6) an estimate of the total public becoming a class III rail carrier.3 BILLING CODE 7035±01±P burden (in hours) associated with the Consummation of the acquisition and/or collection; and, operation by CDAC in the instant (7) an indication as to whether proceeding is contingent upon an JUDICIAL CONFERENCE OF THE Section 3504(h) of Public Law 96–511 exemption being granted by the UNITED STATES applies. Commission in the related Finance Comments and/or suggestions regarding Docket No. 32647. Hearings of the Judicial Conference the item(s) contained in this notice, Any comments 4 must be filed with Advisory Committee on Rules of Civil especially regarding the estimated the Commission and served on: James E. Procedure and the Advisory public burden and associated response Howard, One International Place, Committee on Rules of Evidence time, should be directed to the OMB Boston, MA 02110. reviewer, Mr. Jeff Hill on (202) 395– AGENCY: Judicial Conference of the This notice is filed under 49 CFR 7340 and to the Department of Justice’s United States Advisory Committee on 1150.31. If the notice contains false or Clearance Officer, Mr. Robert B. Briggs, Rules of Civil Procedure and the misleading information, the exemption on (202) 514–4319. If you anticipate Advisory Committee on Rules of is void ab initio. Petitions to revoke the commenting on a form/collection, but Evidence. exemption under 49 U.S.C. 10505(d) find that time to prepare such comments may be filed at any time. The filing of ACTION: Notice of cancellation of open will prevent you from prompt a petition to revoke will not hearings. submission, you should notify the OMB automatically stay the transaction. SUMMARY: The Evidence Rules public reviewer and the Department of Justice Because this line is the subject of a Clearance Officer of your intent as soon pending abandonment application (see hearing scheduled to be held in New York, New York on January 5, 1995, has as possible. Written comments regarding the burden estimate or any other aspect 2 Acquisition of the eastern portion of CP’s line been cancelled. The Civil Rules public is the subject of another notice of exemption hearing scheduled to be held in Dallas, of the collection may be submitted to simultaneously filed by Eastern Maine Railway Texas on January 10, 1995, has been Office of Information and Regulatory Company (Eastern Maine) in Eastern Maine Railway cancelled. [Original notice of both Affairs, Office of Management and Company—Acquisition Exemption—Rail Line of Budget, Washington, DC 20503, and to Canadian Pacific Limited Between Brownville hearings appeared in the Federal Junction, ME, and Vanceboro, ME, Finance Docket Register of November 18, 1994 (59 FR Mr. Robert B. Briggs, Department of No. 32650. Eastern Maine is represented to be a 59793).] Justice Clearance Officer, Systems noncarrier and is a wholly owned subsidiary of Policy Staff/Information Resources FOR FURTHER INFORMATION CONTACT: John New Brunswick Railway Company (NBR), also Management/Justice Management represented to be a noncarrier controlled by J.D. K. Rabiej, Chief, Rules Committee Irving Limited (Irving). Eastern Maine, NBR and Support Office, Administrative Office of Division Suite 850, WCTR, Washington, Irving have filed a related petition in Eastern Maine the United States Courts, Washington, DC 20530. Railway Company, J.D. Irving, Limited and New Brunswick Railway Company—Petition for D.C., telephone (202) 273–1820. New Collection Disclaimer of Jurisdiction or, Alternatively, for an Dated: December 28, 1994. (1) COPS MORE Application Kit. Exemption From 49 U.S.C. 11343(a)(5), Finance Docket No. 32651. John K. Rabiej, (2) COPS 004/01. Office of 3 Fieldcrest owns all of the outstanding stock of Chief, Rules Committee Support Office. Community Oriented Policing Services. Downeast. Downeast owns all of the outstanding [FR Doc. 95–168 Filed 1–4–95; 8:45 am] (3) On occasion. stock of Bangor and Aroostook Railroad Company (4) State and local governments. The BILLING CODE 2210±01±M (BAR), a class II carrier, which owns and operates COPS MORE Application Kit is a grant approximately 400 miles of rail line in Maine. Downeast also owns all of the outstanding stock of application to be used to apply for grants to redeploy current sworn law CDAC. Upon CDAC becoming a class III rail carrier, DEPARTMENT OF JUSTICE Fieldcrest and Downeast will control two carriers. enforcement officers to community 4 A comment was filed on December 28, 1994, Information Collections Under Review policing by state, local, and Indian tribal by Springfield Terminal Railway Company (ST) law enforcement agencies. requesting issuance of certain orders by the Commission. ST’s requests will be dealt with by the The Office of Management and Budget (5) 1150 annual respondents Commission in the related Finance Docket No. (OMB) has been sent the following estimated at 26 hours per response. 32647. collection(s) of information proposals (6) 35,880 annual burden hours. 1796 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices (7) Not applicable under Section Chase, Maryland, 20815; Attention: Orin practices, principles, and procedures. 3504(h) of Public Law 96–511. McCrae, Grants Officer. Services must be delivered in an open Public comment on this item is Proposal Application Packages may type of setting without a need for encouraged. also be obtained by contacting CRS at extraordinary security measures′. Robert B. Briggs, (301) 492–5995, or FAX (301) 492–5984. However, the Recipients are required Department Clearance Officer, United States SUPPLEMENTARY INFORMATION: to design programs and strategies to Department of Justice. discourage runaways and prevent the Purpose and Scope [FR Doc. 95–196 Filed 1–4–95; 8:45 am] unauthorized absence of minors in care. BILLING CODE 4410±21±M The purpose of the AUMSCPs is to Service delivery is expected to be provide temporary shelter care and accomplished in a manner which is other related services to alien minors in sensitive to the culture, native language, Shelter Care and Child Welfare INS custody. Shelter care services will and needs of these children. Services to Alien Minors; Availability be provided for the interim period Application review of Funding for Cooperative beginning when the minor is transferred Agreements into the AUMSCP and ending when a Applications submitted by the closing final disposition of the child’s status is date and meeting the requirements of AGENCY: Community Relations Service implemented. Final disposition may this Notice will be competitively (CRS), DOJ. result in either the bond, release, or reviewed, evaluated, rated, and ACTION: Notice of Availability of removal of the minor from the United numerically ranked by an independent Funding for Cooperative Agreements to States. panel of experts on the basis of support a program which provides These minors, although released to weighted criteria listed in this Notice. shelter care and other related child the physical custody of the CRS All final funding decisions are at the welfare services to alien minors Recipient, shall remain in the legal discretion of the Associate Director, detained in the custody of the United custody of the INS. Office of Immigration and Refugee States Department of Justice, The population level of alien minors Affairs, Community Relations Service. Immigration and Naturalization Service is expected to fluctuate as arrivals and The awards made are subject to the (INS). case dispositions occur. Program availability of funds and the content must, therefore, reflect concurrence of the Assistant SUMMARY: This announcement governs differential planning of services to Commissioner, Detention and the award of Cooperative Agreements to children in various stages of personal Deportation, Immigration and public or private non-profit adjustment and administrative Naturalization Service. organizations or agencies, and, under processing. Although the population of Authorization certain conditions, to for-profit minors is projected to consist primarily organizations or agencies, to provide of adolescents, the Recipient is expected Authority for the provisions of shelter shelter care and related child welfare to be able to serve some minors who are care and related child welfare services services to alien minors detained in the 12 years of age or younger. to alien minors detained in the custody custody of the United States Department The CRS Recipients are expected to of the Immigration and Naturalization of Justice, Immigration and facilitate the provision of assistance and Service is contained in a Memorandum Naturalization Service. The programs services for each alien minor including, of Agreement and Cost Reimbursable providing such services shall hereafter but not limited to: physical care and Agreement, dated October 1, 1994, be referred to as the Alien maintenance, access to routine and between the Immigration and Unaccompanied Minors Shelter Care emergency medical care, comprehensive Naturalization Service and the Programs (AUMSCPs). needs assessment, education, recreation, Community Relations Service. AUMSCPs have the specific goal of individual and group counseling, access Legislative authority for CRS Cuban/ providing shelter care and other related to religious services and other social Haitian Entrant child welfare activities child welfare services to male and services. is contained in Title V, Section 501(c), female alien minors under 18 years of Other services that are necessary and of Public Law 96–422 (The Refugee age who are referred to the CRS by the appropriate for these minors may be Education Assistance Act of 1980). INS. These child welfare services will provided if CRS determines in advance Available Funds afford alien minors a structured, safe that the service is reasonable and and productive environment which necessary for a particular minor. Funds will be available on a Fiscal meets or exceeds respective State The Recipients are expected to Year basis to support the number of guidelines and standards for similar develop and implement an appropriate shelters needed to provide 100 beds (90 services designed to serve minors in individualized service plan for the care shelter beds and 10 foster home beds). AUMSCP care and custody. and maintenance of each minor in The number of shelters to be funded Applications submitted pursuant to this accordance with his/her needs as will depend on the design of the announcement must plan for the determined in an intake assessment. In programs proposed. delivery of services to a population of addition, the Recipients are required to The awards made will not exceed a 36 alien minors (90 shelter and 10 foster implement and administer a case month program performance period. care beds). management system which tracks and Funding will be for 12 month budget DATES: Closing Date: 5:00 p.m. Eastern monitors client’s progress on a regular periods. Continuation of funding is Daylight Time; February 21, 1995. basis to ensure that each minor receives dependent upon successful completion APPLICATION REQUESTS AND CONTACT the full range of program services in an of prior year objectives, the level of need PERSON: Eligible applicants may request integrated and comprehensive manner. as defined by the Federal government, Proposal Application Packages from the Shelter care services shall be provided and the availability of future fiscal year United States Department of Justice, in accordance with applicable State funding. Community Relations Service, Suite child welfare statutes and generally The number of beds listed above do 330, 5550 Friendship Boulevard, Chevy accepted child welfare standards, not bind CRS to any specific number of Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices 1797 Cooperative Agreements or to any children may be illiterate in their own 2. Its particular demonstrated specific level of funding. language. experience with respect to: provision of services to unaccompanied alien Award Instrument Definition of Alien Minor minors; the administration of residential The awards issued by CRS to support An alien minor is defined as a male shelters for minors; or, the AUMSCP services will be in the form of or female foreign national under 18 administration of similar type of Cooperative Agreements, as defined in years of age who is detained in the shelters; and the Federal Grant and Cooperative custody of the Immigration and 3. The applicant’s history of service Agreement Act of 1977, P.L. 95–224. Naturalization Service and is the subject delivery and institutional presence in The administration of the Cooperative of exclusion or deportation proceedings the proposed city where the shelter will Agreement awards will require the under the Immigration and Nationality be located. substantial programmatic involvement Act. If the applicant is a national-level of the Federal Government. Designated Program Area: organization which proposes to deliver CRS will negotiate Cooperative services through a local-level affiliate, Agreements with the applicants The shelters should be within a fifty the proposed affiliate must be approved by the Associate Director for mile radius of the INS District Office- identified. Within the context of the Immigration and Refugee Affairs, CRS. San Diego, California; the INS District topics outlined above, the application Prior to these negotiations, the CRS will Office-Los Angeles, California; the INS must address the local-level affiliate’s visit the proposed program locations to District Office-Phoenix, Arizona; the qualifications and provide a rationale conduct a management review and to INS Suboffice-Tucson, Arizona; the INS for its particular selection as their evaluate the applicants’ financial and District Office-Chicago; the INS District service provider and for use of such a programmatic capability. Office-El Paso; the INS District Office- subcontractual arrangement. Eligible Applicants New Orleans, Louisiana; the INS District C. Program Design: The applicants Office-Newark, New Jersey; the INS Non-profit organizations incorporated must set forth in detail information District Office-Philadelphia, concerning the following: under State law which have Pennsylvania; the INS District Office- demonstrated child welfare, social Baltimore; and the INS District Office- 1. Target Population service or related experience and are Washington, D.C. appropriately licensed or can A comprehensive overview of the expeditiously meet applicable State Geographical Location: applicant agency, agency qualifications and history, including philosophy, goals licensing requirements for the provision The geographical location of the and history of experience with respect of shelter care, foster care, group care, applicants is not restricted to its to the provision of child welfare or and related services to dependent selected area of service; however, the related services to minors under 18 children are eligible to apply. applicants must be able to substantiate years of age. For-profit organizations Incorporated that its network of local affiliates or its under State law which have subcontractor(s) or subrecipient(s) will 2. Management Plan demonstrated child welfare, social be able to deliver the required services a. A plan for overall fiscal and service or related experience, and are effectively and appropriately and that appropriately licensed or can program management and local service provider organizations are accountability. expeditiously meet State licensing licensed under applicable State law to requirements for the provision of shelter b. A description of the organizational provide emergency shelter care and structure and lines of authority. care, foster care, group care, and other related services to dependent children. related services to dependent children, c. A comprehensive program staffing and which can clearly demonstrate that Technical Assistance Conference: plan and information regarding staff only actual costs and not profits, fees, or The CRS will hold a public meeting qualifications. other elements above cost have been regarding this solicitation. Further d. A comprehensive plan for budgeted, are also eligible to apply. information regarding the time, date and coordination of activities between the various program components and Client Population location will be included in the Proposal Application Package. coordination with other community and It is anticipated that the client governmental agencies. population will consist primarily of Application Contents e. Staff supervisory model. males, 13–17 years of age. Females Applicants are required to set forth in f. Provisions for staff training. generally comprise 15% of the total detail a proposal that meets the program g. Proposed staff schedule(s). population of alien minors. These requirements described in this Notice h. A description of the role(s) and minors are primarily nationals of El and as supplemented by the ‘‘Alien responsibility(ies) of the proposed Salvador, Nicaragua, Guatemala, Unaccompanied Minors Shelter Care consultants and the rationale for their Honduras, and the People’s Republic of Program—Program Guidelines and use. China; however, the Recipients should Requirements’’ (available with the 3. Individual Client Service Plans expect to provide services to children application package). Applicants are from other countries. The Recipients required to set forth in detail the Applicants shall describe in detail: should also be prepared to provide following: a. The methodology regarding the emergency shelter care to a limited A. Program Abstract. The Program development of individual client service number of children 12 years of age and Abstract is intended to be a brief plans; younger. Clients would generally be summary of the proposal. b. The process to ensure that service considered to be dependent children B. Organization/Agency Background. plans will be periodically reviewed and without significant behavioral or Applicants must include a detailed updated; and, psychological problems. Many children, discussion of: c. The staff who will have however, have inconsistent or sporadic 1. The applicant’s professional responsibility for the development and educational histories, and some history, philosophy, and goals; updating of the plans. 1798 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices 4. Case Management 5. Group Counseling; (3) Copies of Article of Incorporation; Describe in detail the case 6. Acculturation/Adaptation; (4) Proof of IRS status as a non-profit 7. Education; management system for tracking and organization, if applicable; 8. Recreational, Social and Work (5) List of Officers and Board monitoring client progress on a regular Activities; Members, if applicable; basis to ensure that each minor receives 9. Visitation Procedures; (6) List of professional affiliations and the full range of program services in an 10. Access to Legal Services; and, certifications, and; integrated and comprehensive manner. 11. Family Reunification Services. (7) Copy(ies) of applicable State child Identify the staff positions responsible welfare license(s). for coordinating the implementation G. Client Records and maintenance of the case Applicants must provide descriptive b. Organizational Standards/Policies management system. information regarding the development, and Policies Regarding Clients 5. Structure and Accountability maintenance and content of individual (1) Personnel Handbook and client case records, including a Standards of Conduct; Applicants must fully describe: description of all material/information (2) Statement regarding professional a. The plan for developing and which will be maintained in these and agency liability; maintaining internal structure, control records. (3) Copy of Disciplinary Procedures; and accountability through (4) Copy of Agency policy regarding programmatic means. H. Program Records the confidentiality of client information b. Utilization of daily logs, statistical Applicants are required to set forth and records; reports, etc. comprehensive information regarding (5) Discussion of the method to be c. Other security measures. the types of program records to be used to inform clients of program rules, D. Characteristics of Program Site maintained by the program (daily regulations and policies, including the activity logs, records of staff meetings, confidentiality of client information; Residential/Office Facility. cash disbursement systems, daily and (6) Copy of Grievance Policy and Applicants are required to set forth in weekly status of population reports, Procedures, and; detail comprehensive information etc.). (7) Fire and earthquake evacuation regarding: procedures, as applicable. 1. A physical description of the I. Program Evaluation proposed facility including the Applicants must set forth a plan for c. Staff proposed allocation of shelter and office program evaluation including (1) Job/Position Descriptions and space; and identification of evaluative criteria. resumes (if individuals have been 2. Documentation that the facility identified for certain positions) for all meets all relevant zoning, licensing, fire, J. Budget and Budget Narrative personnel to be hired for the program safety and health codes required to Applicants are required to submit a including documented evidence of the operate a residentially-based social comprehensive line item budget. availability of bi-lingual and culturally service program. Copies of relevant The following budget structure should sensitive personnel, and; documents must be submitted at the be used to provide appropriate costs (2) Resumes and qualifications of time of application. breakdown: program consultants. If a properly zoned, licensed, or a. Personnel; inspected facility is not available at the b. Fringe Benefits; d. Community Support of the Program time of application, the applicant must c. Travel Costs; (1) Letters of program support from submit a report on the progress made in d. Equipment, including computer local political representatives, social obtaining the appropriate hardware and software; service agencies, etc. Letters should documentation, as noted above. This e. Supplies; reflect writers’ awareness of program’s report must consist of a description of f. Contractual Obligations; intent, potential Federal funding source the required documents, copies of g. Rearrangement and Alteration Costs and location of the program. Letters correspondence to relevant local (if applicable); should also contain a recommendation officials or offices from which they will h. Direct Client Costs; or comment regarding the proposed i. Other; and be obtained, and that means and time- j. Indirect Costs. program; lines from obtaining the documentation. A narrative explanation for each line (2) A listing of service providers to whom clients will be referred, including E. Community Support item, included in each object class, must accompany the proposed budget. name, address and description of Applicants must identify those service(s) to be provided, and; measures the agency will take or has K. Supportive Addenda Material (3) A listing of voluntary and/or taken, to assure and maintain Applicants are required to submit the donated resources, including letters of community receptivity and support following supporting material as an intent from the agency or entity and/or reduce community opposition to addendum to the proposal: providing the resources, if applicable. the program. 1. Administrative Requirements: e. Implementation Plan F. Client Services A plan for program implementation a. Agency Administration and Applicants are required to describe, in including timelines regarding Organization a detailed and comprehensive manner, significant milestones. the following services and the (1) Agency organizational chart 2. Finance methodology for service delivery: describing the agency as a whole and 1. Physical Care and Maintenance; the organizational relationship of the a. A copy of the most recent agency/ 2. Routine and Emergency Medical/ proposed program to other agency organization audit. Dental Care; programs; b. A description of the agency/ 3. Orientation; (2) Comprehensive organizational organization Financial Management 4. Individual Counseling; chart of the proposed program; System. Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices 1799 c. A listing of other Federal, State, b. The adequacy of the plan for documented evidence of community local or foundation grants, cooperative coordination with community and support and acceptance of the program. agreements or contracts, etc., being governmental agencies. (5 points) administered by the applicant. This c. The adequacy of the qualifications Application Submission material should include information of the applicant organization, and the regarding the funding source(s); grant, extent to which this organization has a Applicants must submit a signed cooperative agreements or contract demonstrated record as a provider of original and two copies of the Proposal number; level of financial support; child welfare or other social services. and supporting documentation to the purpose of award; grant, cooperative d. The extent to which the applicant United States Department of Justice, agreement or contract performance has a demonstrated capacity for Community Relations Service, Suite period; and name, address and effective fiscal management and 330, 5550 Friendship Boulevard, Chevy telephone number of grant, cooperative accountability. Chase, Maryland, 20815; Attention: agreement and/or contract office e. The extent to which sub- Odin McCrae, Grants Officer by 5 p.m. (Federal, State or local). recipient(s)/subcontractor(s) have a (Eastern Time) of the closing date. demonstrated capacity for effective d. Subrecipients and/or Applications Delivered by Mail Subcontractors. fiscal and program management and (1) Identify all proposed services accountability. An applicant must show proof of which are to be awarded to f. The adequacy of the plans for staff mailing consisting of the following: 1. A legible dated U.S. Postal Service subrecipients/subcontractors; supervision and intro-program postmark. (2) Provide relevant background communication. g. The adequacy of the staffing plans 2. A legible mail receipt with the date material regarding the proposed of mailing stamped by the U.S. Postal subrecipient(s)/subcontractor(s), and; in terms of the relationship between the proposed functions and responsibilities Service. (3) Provide letters from the proposed 3. A dated shipping label, invoice, or subrecipient(s)/subcontractor(s) of the staff in the program, and the education and relevant experience receipt from a commercial carrier. indicating their commitment and the If an application is sent through the specific services to be provided. required for the position. h. Clear organizational charts U.S. Postal Service, CRS does not accept e. (1) Itemized budget. delineating organizational relationships either of the following as proof of (2) A narrative explaining the budget. and levels of authority, including the mailing: Screening Criteria identification of the staff position (1) a private metered postmark, or (2) accountable for the overall management, a mail receipt that is not dated by the CRS will screen all applications U.S. Postal Service. submitted pursuant to this Notice to direction and progress of the program. (20 points) Applicants should note that the U.S. determine whether an application is Postal Service does not uniformly sufficiently complete to warrant 3. Program Services—The applicant’s response to the required program provide a dated postmark. Before consideration and review by the CRS services, including a description of relying on this method, the applicant Review Panel. An application may be program resources which demonstrates: should check with its local Post Office. rejected if: a. The capacity of the program to offer Applicants are encouraged to use 1. The application is from an comprehensive, integrated and registered or at least First Class mail. ineligible applicant; differential services which meet the Each late applicant will be notified that 2. The application is received after the needs of the clients. the application will not be considered. closing date; b. Utilization of resources in a manner Applications postmarked on or before 3. The application omits: which enhances program control, 5 p.m. (Eastern Daylight Time), a. Documented written evidence of structure and accountability. February 21, 1995, shall be considered community support for the program; c. Provision of services in a manner as timely applications. b. A comprehensive line-item budget which promotes and fosters cultural Applications Delivered by Hand with appropriate descriptive narrative, identification and mutual support. or; d. Sensitivity to the issues of culture, An application that is hand delivered c. A copy of the latest financial audit race, ethnicity and native language. (20 must be taken to the United States of the applicant. points) Department of Justice, Community Criteria for Evaluating Applications 4. The degree to which the applicant Relations Service, Suite 330, 5550, provides effective strategies of Friendship Boulevard, Chevy Chase, Applications will be reviewed, programmatic control, predictability Maryland 20815. evaluated, and ranked numerically and accountability as evidenced by the The Grants Management Office will according to the following weighted structure and continuity inherent in the accept hand delivered applications criteria: program design. (15 points) between 9:00 a.m. and 5:00 p.m., 1. The degree to which the entire 5. The adequacy of the plans for: Eastern Daylight Time, daily, except proposed plan for developing, a. developing and updating individual Saturdays, Sundays, and Federal implementing and administering a client service plans; and, holidays. An application that is hand shelter care program is clear, succinct, b. the proposed system of case delivered will not be accepted after 5:00 integrated, efficient, cost effective and management. (10 points) p.m., Eastern Daylight Time, on the likely to achieve program objectives. (15 6. The reasonableness of the proposed closing date. Applications hand points) budget and budget narrative, in relation delivered on or before the closing date 2. The quality of the applicant’s to proposed program activities. (10 shall be considered as timely program management and staffing plans points) applications. as demonstrated by: 7. The plan for program evaluation, a. The adequacy of the plan for including the methodology and criteria Public Program Orientation Meeting for program management and the plan for for evaluation of the program. (5 points) Prospective Applicants coordination between the components 8. The degree to which the CRS will hold a public program of the program. application has provided written orientation meeting for prospective 1800 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices applicants in regard to this Notice. A. Nonprocurement Debarment and financed with Federal money; and 2) the Information regarding the time, date and Suspension. Prospective participants (as dollar amount of Federal funds for the location of the meeting(s) will be defined at 15 CFR Part 26, Section 105) project or program. All grantees and included in the proposal application are subject to 15 CFR Part 26, subgrantees shall make this statement package. ‘‘Nonprocurement Debarment and when issuing statements, press releases, Proposal Review: Proposals will be Suspension’’ and the related section of requests for proposals, bid solicitations, reviewed, evaluated, and ranked the certification form prescribed above and other documents describing projects numerically by an independent review applies; or programs funded in whole or in part panel on the basis of weighted criteria B. Drug-Free Workplace. Grantees (as with Federal funds. listed on this Notice. All funding defined at 15 CFR Part 26, Section 605) Federal Policies and Procedures: decisions are at the discretion of the are subject to 15 CFR Part 26, Subpart Recipients and subrecipients are subject Associate Director for Immigration and F, ‘‘Government-wide Requirements for to all applicable Federal laws and Refugee Affairs, CRS. Awards will be Drug-Free Workplace (Grants)’’ and the Federal, Department of Justice, and CRS subject to the availability of funds. related section of the certification form policies, regulations, and procedures Processing Time: CRS expects that all prescribed above applies; applicable to Federal financial eligible submissions will be reviewed C. Anti-Lobbying. Persons (as defined assistance awards. and rated within 45 days of the closing at 15 CFR Part 28, Section 105) are date. subject to the lobbying provisions of 31 Dated: December 27, 1994. Past Performance: Unsatisfactory U.S.C. 1352, ‘‘Limitation on use of Catalog of Federal Domestic Assistance performance under prior Federal awards appropriated funds to influence certain Number: 16.201 may result in an application not being Federal contracting and financial Jeffrey Weiss, considered for funding. transactions,’’ and the lobbying section Acting Director, Community Relations Preaward Activities: Any costs of the certification form prescribed Service. incurred by an applicant prior to an above applies to applications/bids for Intergovernmental Review award being made are incurred solely at grants, cooperative agreements, and the applicant’s own risk, and will not be contracts for more than $100,000; Application Requirements reimbursed by the Government. D. Anti-Lobbying Disclosures. Any Pursuant to Executive Order 12372, Notwithstanding any verbal assurance applicant that has paid or will pay for Intergovernmental Review of Federal that an applicant may have received, lobbying using any funds must submit Programs, all States have the option of there is no obligation on the part of the an SF–LLL, ‘‘Disclosure of Lobbying designing procedures for review and Department of Justice to cover pre- Activities,’’ as required under 15 CFR comment on applications for Federally award costs. Part 28, Appendix B. assisted programs from State and local No Obligation for Future Funding: If Lower-Tier Certifications: Recipients applicants. an application is selected for funding, shall require applicants/bidders for Each applicant is required to notify the Department of Justice has no subgrants, contracts, subcontracts, or each State in which it is proposing obligation to provide any additional other lower-tier covered transactions at activities under this announcement and future funding beyond the first budget any tier under the award to submit, if to comply with the State’s established period. Renewal of an award to increase applicable, a completed OJP Form review procedures. This may be done by funding or extend the period of 4061–6, ‘‘Certifications Regarding contacting the applicable State Single performance is at the total discretion of Debarment, Suspension, Ineligibility Point of Contact (SPOC). the Department of Justice. and Voluntary Exclusion Lower-Tier Delinquent Federal Debts: No award Covered Transactions and Lobbying’’ State Requirements of Federal funds shall be made to an and disclosure form, SF–LLL, Comments and recommendations applicant who has an outstanding ‘‘Disclosure of Lobbying Activities.’’ OJP relative to applications submitted under delinquent Federal debt until either: (1) Form 4061–6 is intended for the use of this solicitation should be mailed no the delinquent account is paid in full; Recipients and should not be later than 30 days after the date of (2) a negotiated repayment schedule is transmitted to the Department of Justice. publication, addressed to: Kenneth established and at least one payment is SF–LLL submitted by any tier recipient Leutbecker, Associate Director, received; or, (3) other arrangements or subrecipient should be submitted to Immigration and Refugee Affairs, satisfactory to the Department of Justice the Department of Justice in accordance Community Relations Service, Suite are made. with the instructions contained in the 330, 5550 Friendship Boulevard, Chevy Name Check Review: All non-profit award document. Chase, Maryland 20815. and for-profit applicants are subject to a False Statements: A false statement on [FR Doc. 95–175 Filed 1–4–95; 8:45 am] name check review process. Name an application is grounds for denial or checks are intended to reveal if any key termination of funds, and for possible BILLING CODE 4410±01±M individuals associated with the punishment by a fine or imprisonment applicant have been convicted of, or are as provided in 18 U.S.C. 1001. Notice of Lodging of Consent Decree presently facing, criminal charges such Disclosure of Federal Participation: Pursuant to the Comprehensive as fraud, theft, perjury, or other matters Recipients and subrecipients receiving Environmental Response, which significantly reflect on the Federal funds must adhere to the Compensation, and Liability Act and applicant’s management, honesty or requirements of Section 136 of the the Resource Conservation and financial integrity. Department of Defense Appropriation Recovery Act; ASARCO Inc. Primary Applicant Certification: All Act (Steven’s Amendment of October 1, primary applicants must submit 1988). The Steven’s Amendment In accordance with Department of completed OJP Form–4061–6, requires grantees and subgrantees to Justice Policy, 28 CFR 50.7, 38 FR ‘‘Certifications Regarding Debarment, state clearly in writing, during time of 19029, and 42 U.S.C. 9622(d), notice is Suspension and Other Responsibility application submission: 1) the hereby given that on December 23, 1994, Matters; Drug-Free Workplace percentage of the total cost of the a proposed Consent Decree was lodged Requirements and Lobbying:’’ program or project which will be with the United States District Court for Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices 1801 the Western District of Washington in implement a soil testing, collection and Notice of Lodging of Consent Decree United States v. ASARCO Inc., Civil disposal program to apply when Pursuant to Comprehensive Action No. C94–5714RJB. The proposed contaminated soil is excavated in the Environmental Response, Consent Decree settles claims asserted future from beneath a clean cap or other Compensation, and Liability Act; Bay by the United States at the request of the area where contaminated soil remains, Area Battery Inc. United States Environmental Protection including from areas beneath roadways In accordance with the policy of the Agency (EPA) for releases of hazardous and other hard surfaces. Asarco will substances at the Ruston/North Tacoma United States Department of Justice, as also reimburse EPA for $2,668,443 in provided in 28 CFR 50.7, notice is Study Area operable unit of the past response costs that EPA has Commencement Bay Nearshore/ hereby given that on December 21, 1994, incurred in the Study Area and will Tideflats Superfund Site in the Town of a proposed Consent Decree in United reimburse EPA for all of its future Ruston and City of Tacoma, States v. Bay Area Battery, Inc., Civil Washington. The defendant in the response costs. No. 94–50390–RV, was lodged with the action is ASARCO Incorporated In exchange, Asarco will receive a United States District Court for the (Asarco). The claims of the United covenant not to sue from the United Northern District of Florida. The States on behalf of EPA are based upon States with respect to the Study Area for proposed Consent Decree concerns the contamination of the Ruston/North claims pursuant to Sections 106 and Sapp Battery Superfund Site in Jackson County, Florida. The Site is Tacoma Study Area (the Study Area), an 107(a) of CERCLA and Section 7003 of contaminated with heavy metals caused area of approximately 950 acres that lies RCRA, 42 U.S.C. 6973. within approximately a one mile radius by a battery cracking business that The Department of Justice will receive of the former Asarco smelter. operated on the Site from 1970 until In the complaint, the United States written comments relating to the 1980. Pursuant to Sections 106 and asserted claims against Asarco pursuant proposed Consent Decree for thirty (30) 107(a) of CERCLA, 42 U.S.C. 9696 and to Sections 106 and 107(a) of the days from the date of publication of this 9607(a), the Complaint in this action Comprehensive Environmental notice. Comments should be addressed seeks defendants’ performance of the Response, Compensation, and Liability to the Assistant Attorney General of the remedy selected by EPA for the Site, as Act (CERCLA), as amended, 42 U.S.C. Environment and Natural Resources well as recovery of previously 9606 and 9607(a), and Section 7003 of Division, U.S. Department of Justice, unreimbursed response costs incurred the Resource Conservation and Washington, D.C. 20530, and should and to be incurred by the United States Recovery Act (RCRA), 42 U.S.C. 6973, refer to United States v. ASARCO Inc., in connection with the Site. for injunctive relief to abate an D.J. Ref. No. 90–11–2–698C. The 20 Settling Defendants have imminent and substantial endangerment agreed in the proposed Consent Decree The proposed Consent Decree and to reimburse the United States in the to public health or welfare or the exhibits may be examined at the environment due to the release or amount of $214,500, which comprises a following locations: the Region 10 threatened release of hazardous portion of its response costs incurred at Office of EPA, 7th Floor Records Center, substances at the Study Area. The the Site. The proposed decree also United States also sought recovery of 1200 Sixth Avenue, Seattle, WA 98101; provides that the settlors will pay costs that have been and will be ASARCO Information Center, 5311 $54,800 to another group of potentially incurred in response to releases and North Commercial, Ruston, Washington responsible parties, who are performing threatened releases of hazardous 98407; the Tacoma Public Library, Main a portion of the remedy selected by EPA substances at the Study Area. Branch, 1102 Tacoma Avenue South, for the Site under consent decree Pursuant to the Consent Decree, Northwest Room, Tacoma, WA 98402; entered by the Court in United States v. Asarco has agreed to sample properties and Citizens for a Healthy Bay, 771 Aaron Scrap, et al., Civ. No. 92–50244/ and areas within the Study Area, Broadway, Tacoma, WA 98402. The LAC, on March 10, 1993. excavate soil and slag from properties complete Administrative Record for the The Department of Justice will receive that exceed action levels for lead and Ruston/North Tacoma Study Area may for a period of thirty (30) days from the arsenic, and replace excavated soil and be reviewed at the EPA Region 10 office date of this publication comments slag with clean soil and gravel. The in Seattle and at the Main Branch of the concerning the proposed Consent estimated value of the work to be Tacoma Public Library. Decree. Comments should be addressed performed is $26 million. Asarco will to the Assistant Attorney General, also develop and implement a A copy of the Consent Decree and Environment and Natural Resources community protection measures (CPM) exhibits (if requested) may be obtained Division, U.S. Department of Justice, program for the Study Area. The CPM in person or by mail from the Consent P.O. Box 7611, Ben Franklin Station, program will contain provisions to Decree Library, 1120 G Street, N.W., 4th Washington, D.C., 20044, and should ensure the integrity of clean soil caps Floor, Washington, D.C. 20005, (202) refer to United States v. Bay Area where they are placed over 624–0892. In requesting copies, please Battery, Inc., D.J. Ref. 90–11–2–699G. contaminated soil that is deeper than enclose a check in the amount of $20.25 The proposed Consent Decree may be the maximum depth to which Asarco (without exhibits) or $202.50 (with examined at any of the following offices: must excavate, and to inform current exhibits) (25 cents per page (1) the Office of the United States and future property owners wherever a reproduction cost) payable to the Attorney for the Northern District of clean soil cap covering contaminated ‘‘Consent Decree Library.’’ Florida, 114 E. Gregory Street, soil exists on their property. The CPM Bruce Gelber, Pensacola, Florida; (2) the U.S. program will also advise residents how Environmental Protection Agency, Acting Chief, Environmental Enforcement to reduce exposure to soils that are not Region 4, 345 Courtland Street, N.E., Section, Environment and Natural Resources removed but that contain concentrations Division. Atlanta, Georgia; and (3) the Consent of arsenic or lead that exceed either Decree Library, 1120 G Street, N.W., 4th [FR Doc. 95–184 Filed 1–4–95; 8:45 am] action levels or levels commonly found Floor, Washington, D.C. 20005, (202) in urban areas. The Consent Decree BILLING CODE 4410±01±M 624–0892. Copies of the proposed further requires Asarco to develop and Decree may be obtained by mail from 1802 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices the Consent Decree Library, 1120 G contributed to the Site from the Haynes December 16, 1994, with the United Street, N.W., 4th Floor, Washington, Stellite Company is minimal. The States District Court for the Eastern D.C. 20005. For a copy of the Consent proposed consent decree resolves the District of Kentucky, (London Division). Decree, please enclose a check for United States’ and Idaho’s claims only The proposed modified consent $11.50 ($.25 per page reproduction against Union Carbide and has no effect decree resolves the United States’ civil charge) payable to ‘‘Consent Decree on the claims against any of the other claims against the City of Brodhead Library.’’ defendants, or any counterclaims or (‘‘City’’) and the Commonwealth of Bruce Gelber, cross-claims against any of the other Kentucky for violations of the City’s Acting Chief, Environmental Enforcement parties. Pursuant to the proposed National Pollutant Discharge Section, Environment & Natural Resources consent decree, Union Carbide Elimination System (‘‘NPDES’’) Permit, Division. Corporation will pay $250,000 to the the Clean Water Act, 33 U.S.C. §§ 1251 [FR Doc. 95–185 Filed 1–4–95; 8:45 am] Plaintiff Governments in return for et seq. and the consent decree originally BILLING CODE 4410±01±M dismissal from the action and entered in this case on January 31, 1989. contribution protection. The proposed modified consent decree The Department of Justice will receive requires that the City pay the United Notice of Lodging of Consent Decree comments relating to the proposed States $5,000 in stipulated penalties for Pursuant to the Comprehensive consent decree for a period of thirty (30) its violations of the original consent Environmental; Blackbird Mining days from the date of this publication. decree. The proposed modified decree Response, Co. et al., Compensation, Comments should be addressed to the also requires the City to perform and Liability Act Assistant Attorney General, additional construction and Environment and Natural Resources rehabilitation of its existing wastewater Consistent with Department of Justice Division, Department of Justice, P.O. treatment plant. policy, 28 CFR 50.7, notice is hereby Box 7611, Ben Franklin Station, The Department of Justice will given that on December 22, 1994, a Washington, D.C. 20044, and refer to receive, for a period of thirty (30) days proposed consent decree in United United States v. Blackbird Mining Co., et from the date of this publication, States v. Blackbird Mining Co., et al. and al. and State of Idaho, et al. v. The M.A. comments relating to the proposed State of Idaho, et al. v. The M.A. Hanna Hanna Company, DOJ number 90–11– modified consent decree. Comments Company, Consolidated Case No. 83– 2–816. should be addressed to the Assistant 4179 (D. Idaho), was lodged with the Copies of the proposed consent decree Attorney General for the Environment United States District Court for the may be examined at the Office of the and Natural Resources Division, District of Idaho. The consent decree Attorney General, Chief Natural Department of Justice, Washington, DC resolves claims against the Union Resources Division, 700 W. Jefferson, 20530, and should refer to United States Carbide Corporation, one of several Suite 210, Boise, Idaho; Office of the v. City of Brodhead, and defendants named in this action, United States Attorney, 877 W. Main Commonwealth of Kentucky, DOJ Ref. brought under Sections 106 and 107 of Street, Suite 201, Boise, Idaho; and the #90–5–1–1–3205A. the Comprehensive Environmental Consent Decree Library, 1120 G Street, The proposed consent decree may be Response, Compensation and Liability N.W., 4th Floor, Washington, D.C. examined at the office of the United Act, as amended (‘‘CERCLA’’), 42 U.S.C. 20005, (202) 624–0892. A copy of the States Attorney, 110 W. Vine Street, 9606 and 9607, to accomplish the clean proposed consent decree may be Suite 400, Lexington, Kentucky 40507; up of the contamination, and restoration obtained by mail or in person from the the Region IV Office of the of the natural resources, at the Blackbird Consent Decree Library. When Environmental Protection Agency, 345 Mine in central Idaho and for the requesting a copy of the consent decree, Courtland Street, NE, Atlanta, Georgia recovery of past and future response please enclose a check in the amount of 30365; and at the Consent Decree costs. The United States’ claims were $4.25 (25 cents per page reproduction Library, 1120 G Street, NW., 4th Floor, filed in June 1993 against the past and costs) payable to the ‘‘Consent Decree Washington DC 20005, (202) 624–0892. current owners and operators of the Library’’. When requesting a copy please A copy of the proposed consent decree mine on behalf of the United States refer to United States v. Blackbird may be obtained in person or by mail Forest Service and United States Mining Co., et al. and State of Idaho, et from the Consent Decree Library, 1120 National Oceanic and Atmospheric al. v. The M.A. Hanna Company, G Street, NW., 4th Floor, Washington, Administration acting as natural Consolidated Case No. 83–4179 (D. DC 20005. In requesting a copy please resource trustees and on behalf of the Idaho), DOJ Case number 90–11–2–816. refer to the referenced case and enclose EPA. The United States case was Bruce Gelber, a check in the amount of $6.00 (25 cents consolidated with a case filed by the per page reproduction costs), payable to State of Idaho in 1983 against most of Acting Chief, Environmental Enforcement Section, Environment and Natural Resources the Consent Decree Library. the same parties. Division. This settlement is with Union Bruce Gelber, Carbide, a successor to the Haynes- [FR Doc. 95–186 Filed 1–4–95; 8:45 am] Acting Chief, Environmental Enforcement Stellite Company, which mined a very BILLING CODE 4410±01±M Section, Environment and Natural Resources Division. small amount of copper and cobalt at the Site for a brief period during World [FR Doc. 95–187 Filed 1–4–95; 8:45 am] Notice of Lodging of Consent Decree BILLING CODE 4410±01±M War I. With the exception of Union Pursuant to the Clean Water Act Carbide, all the named defendants either conducted mining activities during the In accordance with Departmental Notice of Lodging of Consent Decree later years of production or are the policy, 28 C.F.R. § 50.7, notice is hereby Pursuant to the Clean Water Act; Gulf current owners. The area of the Site given that a proposed modified consent Chemical & Metallurgical Corp. impacted by the Haynes-Stellite decree in United States v. City of Company is distinct and separated Brodhead, Kentucky and In accordance with Departmental geographically from the main mine Commonwealth of Kentucky, Civil policy, 28 CFR and 50.7, notice is workings of concern. The total waste Action No. 88–331, was lodged on hereby given that on December 21, 1994, Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices 1803 a proposed consent decree in United Street, N.W., 4th Floor, Washington, Region IX Office of the Environmental States v. Gulf Chemical & Metallurgical D.C. 20005. A copy of the proposed Protection Agency, 75 Hawthorne Corp., Civil Action No. H–93–0100, was consent decree may be obtained in Street, San Francisco, California 94105; lodged with the United States District person or by mail from the Consent and at the Consent Decree Library, 1120 Court for the Southern District of Texas. Decree Library, 1120 G Street, N.W., 4th G Street, NW., 4th Floor, Washington, This consent decree represents a Floor, Washington, D.C. 20005. In DC 20005, (202) 624–0892. A copy of settlement of claims against Gulf requesting a copy, please enclose a the proposed consent decree may be Chemical and Metallurgical Corp. for check in the amount of $4.75 (25 cents obtained in person or by mail from the violations of the Clean Water Act. per page reproduction costs) payable to Consent Decree Library, 1120 G Street, On January 12, 1994, the United the Consent Decree Library. NW., 4th Floor, Washington, DC 20005. States filed a Complaint pursuant to Bruce Gelber, In requesting a copy please refer to the Section 309 of the Clean Water Act Acting Chief, Environmental Enforcement referenced case and enclose a check in (‘‘CWA’’ or ‘‘the Act’’), 33 U.S.C. 1319, Section, Environment and Natural Resources the amount of $4.75 (25 cents per page for injunctive relief and assessment of Division. reproduction costs), payable to the civil penalties against Gulf Chemical [FR Doc. 95–188 Filed 1–4–95; 8:45 am] Consent Decree Library. and Metallurgical Corporation. On BILLING CODE 4410±01±M Bruce Gelber, December 6, 1993, the United States Acting Chief, Environmental Enforcement filed its Second Amended Complaint. Section, Environment and Natural Resources The Second Amended Complaint sought Notice of Lodging of Consent Decree Division. injunctive relief and the assessment of Pursuant to the Clean Air Act; J.F. [FR Doc. 95–189 Filed 1–4–95; 8:45 am] civil penalties from GCMC and alleged Shea, Inc. BILLING CODE 4410±01±M that Gulf violated the conditions and limitations of its NPDES Permit No. In accordance with Departmental TX0034738 by discharging pollutants in policy, 28 CFR 50.7, notice is hereby excess of the permit’s effluent given that a proposed consent decree in DEPARTMENT OF LABOR limitations, failing to comply with the United States v. J.F. Shea, Inc., Civil Action No. 94–2100 GEB (E.D. Calif.), Occupational Safety and Health compliance schedule in Part I.B. of the Administration permit, failing to comply with the was lodged on December 21, 1994, with permit’s monitoring and reporting the United States District Court for the Federal Advisory Council on requirements, and bypassing Outfall 001 Eastern District of California. This is a Occupational Safety and Health; Notice in violation of Part II.B.4 of the permit; civil action against J.F. Shea, Inc., under of Meeting and that Gulf failed to comply with the Section 113(b) of the Clean Air Act requirements of Administrative Order (‘‘Act’’), 42 U.S.C. 7413(b), for violation Notice is hereby given that the VI–89–058 issued by EPA on November of provisions of the Act and of the Federal Advisory Council on 30, 1988. Subsequently, the United regulations for New Source Performance Occupational Safety and Health, States and Gulf Chemical and Standards (‘‘NSPS’’) applicable to established under Section 1–5 of Metallurgical Corp. reached a settlement owners and operators of hot mix asphalt Executive Order 12196 of February 26, which resolves the issues set forth in the facilities, 40 CFR Part 60, Subpart I. 1980, published in the Federal Register, Second Amended Complaint. Under The violations of the NSPS February 27, 1980 (45 FR 1279), will this settlement between the United regulations involved emissions of meet on February 1, 1995, starting at 1 States and Gulf Chemical and excessive particulate matter at J.F. Shea, p.m., in Room S–4215 ABC, of the Metallurgical Corp, Gulf Chemical and Inc.’s hot mix asphalt facility at Frances Perkins Department of Labor Metallurgical Corp. will pay the United Redding, California. The Complaint Building, 200 Constitution Avenue, States a civil penalty of $750,000. In sought civil penalties and injunctive N.W., Washington, D.C. 20210. The addition, the consent decree provides relief to ensure future compliance with meeting will adjourn at approximately 4 for stipulated penalties for violations by the NSPS regulations. Under the p.m., and will be open to the public. Gulf Chemical and Metallurgical Corp. Consent Decree, J.F. Shea will pay a The agenda provides for: of effluent limitations in NPDES permit civil penalty of $100,000. J.F. Shea is I. Call to Order TX0034738. required by the Consent Decree to II. Appointments to FACOSH The Department of Justice will receive conduct a source performance test III. Voluntary Protection Program (VPP) for a period of thirty (30) days from the within one year to establish continued in the Federal sector date of this publication comments compliance with the applicable IV. Re-energizing the Federal safety and relating to the proposed Consent Decree. particulate matter emission limitation. health program Comments should be addressed to the The Department of Justice will V. OSHA Reform in the Federal sector Assistant Attorney General of the receive, for a period of thirty (30) days VI. Priorities of OSHA’s Office of Environment and Natural Resources from the date of this publication, Federal Agency Programs Division, Department of Justice, comments relating to the proposed VII. Revise Executive Order 12196 Washington, D.C. 20530, and should consent decree. Comments should be VIII. Revising the 1960 Regulations refer to United States v. Gulf Chemical addressed to the Assistant Attorney IX. Evaluations of Federal safety and and Metallurgical Corp., D.J. ref. 90–5– General for the Environment and health programs 1–1–2297A. Natural Resources Division, Department X. New Business The proposed consent decree may be of Justice, Washington, DC 20530, and XI. Adjournment examined at the Office of the United should refer to United States v. J.F. Written data, views or comments may States Attorney, Southern District of Shea, Inc., DOJ Ref. #90–5–2–1–1904. be submitted, preferably with 20 copies, Texas, 910 Travis, Suite 1500, Houston, The proposed consent decree may be to the Office of Federal Agency TX, and at Region VI, Office of The examined at the office of the United Programs, at the address provided Environmental Protection Agency, 1445 States Attorney, Eastern District of below. All such submissions, received Ross Ave, Dallas, TX 75202–2733, and California, 555 Capitol Mall, Suite 1550, by close of business January 25, 1995, at the Consent Decree Library, 1120 G Sacramento, California 95814; the will be provided to the members of the 1804 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices Committee and will be included in the The Office of Community Development regulatory analysis, the engineered record of the meeting. Anyone wishing Credit Unions at the above address or barrier system and the integrated waste to make an oral presentation should telephone (703) 518–6610. package program are anticipated. notify the Office of Federal Agency SUPPLEMENTARY INFORMATION: Part 705, B. History of Groundwater Travel Programs by close of business January NCUA Rules and Regulations, Time—The Committee will hear a 25, 1995. The request should state the implements the Community presentation on the history and amount of time desired, the capacity in Development Revolving Loan Program perceived significance of the which the person will appear and a brief for Credit Unions. The purpose of the unsaturated zone in the 10 CFR Part 60 outline of the content of the Program is to assist officially designated regulation. presentation. Persons who request the ‘‘low-income’’ credit unions in C. Meet with the Director, Division of opportunity to address the Advisory providing basic financial services to Waste Management, NMSS—The Committee may be allowed to speak, as residents in their communities which Director will provide information to the time permits, at the discretion of the result in increased income, ownership Committee on current waste Chairperson of the Advisory Committee. and employment. The Program makes management issues, such as the NRC Individuals with disabilities who wish available low interest loans and deposits staff’s perspectives on the proposed to attend the meeting should contact in amounts up to $300,000 in qualified Environmental Protection Agency’s low- John E. Plummer at the address participating ‘‘low-income’’ credit level waste standard. D. Rock Mechanics Research and indicated below, if special unions. Program participation is limited Technical Assistance Programs—The accommodations are needed. to existing credit unions with an official Committee will receive an overview by For additional information, please ‘‘low-income’’ designation. representatives from the NRC’s Office of contact John E. Plummer, Director, This notice is published pursuant to NMSS and RES on related technical Office of Federal Agency Programs, U.S. Part 705.9, NCUA Rules and assistance and research projects. A Department of Labor, Occupational Regulations, which states that NCUA discussion of selected research and Safety and Health Administration, will provide notice in the Federal technical assistance projects will follow Room N–3112, 200 Constitution Register when funds in the Program are the overview presentation. Avenue, N.W., Washington, D.C. 20210, available. E. NRC Probabilistic Risk Assessment telephone: (202) 219–9329. An official Dated: December 14, 1994. Policy and Implementation Plan record of the meeting will be available Becky Baker, (tentative)—An overview by NRC Office for public inspection at the Office of of Nuclear Reactor Regulation (NRR) Federal Agency Programs. Secretary, NCUA Board. [FR Doc. 95–169 Filed 1–4–95; 8:45 am] and NMSS representatives will be Signed at Washington, DC, this 29th day of BILLING CODE 7535±01±M followed by a general discussion of the December 1994. policy and its applicability to Joseph A. Dear, radioactive waste disposal issues. Assistant Secretary. NUCLEAR REGULATORY F. Committee Activities/Future [FR Doc. 95–210 Filed 1–4–95; 8:45 am] COMMISSION Agenda—The Committee will consider BILLING CODE 4510±26±M topics proposed for future consideration Advisory Committee on Nuclear by the full Committee and working Waste; Notice of Meeting groups. The Committee will also discuss organizational and personnel matters NATIONAL CREDIT UNION The Advisory Committee on Nuclear related to ACNW members and ACNW ADMINISTRATION Waste (ACNW) will hold its 70th staff. A portion of this session may be meeting on January 18 and 19, 1995, in closed to public attendance to discuss Community Development Revolving Room T–2B3, 11545 Rockville Pike, information the release of which would Loan Program for Credit Unions Rockville, Maryland. The entire meeting constitute a clearly unwarranted will be open to public attendance, with AGENCY: National Credit Union invasion of personal privacy pursuant to the exception of a portion that may be administration. 5 U.S.C. 552b(c)(6). closed to discuss information the release G. Miscellaneous—Discuss ACTION: Notice of application period. of which would constitute a clearly miscellaneous matter related to the unwarranted invasion of personal SUMMARY: The National Credit Union conduct of Committee activities and privacy pursuant to 5 U.S.C. 552b(c)(6). Administration (NCUA) will accept organizational activities and complete The agenda for the subject meeting applications for participation in the discussion of matters and specific issues shall be as follows: Community Development Revolving that were not completed during Loan Program for Credit Unions Wednesday, January 18, 1995—8:30 previous meetings, as time and throughout calendar year 1995, subject A.M. until 6:00 P.M. availability of information permit. to availability of funds. Application Procedures for the conduct of and Thursday, January 19, 1995—8:30 A.M. participation in ACNW meetings were procedures for qualified low-income until 6:00 P.M. credit unions are set forth in Part 705, published in the Federal Register on NCUA Rules and Regulations. During this meeting the Committee October 7, 1994 (59 FR 51219). In plans to consider the following: accordance with these procedures, oral DATES: Applications may be submitted A. Nuclear Waste Container Materials or written statements may be presented throughout calendar year 1995. Research Program—The Committee will by members of the public, electronic ADDRESSES: Applications for hear presentations for representatives of recordings will be permitted only participation may be obtained from and the NRC Office of Nuclear Materials during those portions of the meeting should be admitted to: NCUA, Office of Safety and Safeguards (NMSS), the NRC that are open to the public, and Community Development Credit Office of Nuclear Regulatory Research questions may be asked only by Unions, 1775 Duke Street, Alexandria, (RES) and the Center for Nuclear Waste members of the Committee, its VA 22314–3428. Regulatory Analyses. Relevant consultants, and staff. Persons desiring FOR FURTHER INFORMATION CONTACT: discussions on topics such as the use of to make oral statements should notify Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices 1805 the ACNW Executive Director, Dr. John the appropriate regulatory agency Putnam Arizona Tax Exempt Income T. Larkins, as far in advance as whenever the transfer agent fails to meet Fund, Putnam Asia Pacific Growth practicable so that appropriate certain minimum performance Fund, Putnam Asset Allocation Funds, arrangements can be made to allow the standards as set by Commission rules. Putnam Balanced Government Fund, necessary time during the meeting for The proposed amendment expands the Putnam California Tax Exempt Income such statements. Use of still, motion group of such reportable items, by Trust, Putnam California Tax Exempt picture, and television cameras during requiring the transfer agent to report all Money Market Fund, Putnam Capital this meeting may be limited to selected items held in its possession for more Appreciation Fund, Putnam Capital portions of the meeting as determined than three business days, instead of four Growth and Income Fund, Putnam by the ACNW Chairman. Information business days as currently required. As Capital Manager Trust, Putnam regarding the time to be set aside for this proposed, an average of ten respondents Convertible Income-Growth Trust, purpose may be obtained by contacting will incur a total of five annual burden Putnam Corporate Asset Trust, Putnam the ACNW Executive Director prior to hours to comply with Rules 17Ad–2(c), Diversified Equity Trust, Putnam the meeting. In view of the possibility (d), and (h). Diversified Income Trust, Putnam that the schedule for ACNW meetings Rule 17Ad–10 (17 CFR § 240.17a–10) Dividend Growth Fund, Putnam Equity may be adjusted by the Chairman as under the Securities Exchange Act of Funds, Putnam Equity Income Fund, necessary to facilitate the conduct of the 1934 (15 U.S.C. §§ 78a et seq.), requires Putnam Europe Growth Fund, Putnam meeting, persons planning to attend transfer agents to create and maintain Federal Income Trust, Putnam Florida should check with the ACNW Executive accurate securityholder files. The Tax Exempt Income Fund, The George Director if such rescheduling would proposed amendment to Rule 17Ad–10 Putnam Fund of Boston, Putnam Global result in major inconvenience. would require certain exempt transfer Governmental Income Trust, Putnam Further information regarding topics agents to update the master Global Growth Fund, Putnam Growth to be discussed, whether the meeting securityholder files every 10 days of Fund, The Putnam Fund for Growth and has been cancelled or rescheduled, the transfer instead of 30 days, as is Income, Putnam Growth and Income Chairman’s ruling on requests for the currently required. Approximately 1,800 Fund II, Putnam Health Sciences Trust, opportunity to present oral statements recordkeepers incur a total of 36,000 Putnam High Yield Advantage Fund, and the time allotted therefor can be hours complying with Rule 17Ad–10. Putnam High Yield Trust, Putnam obtained by contacting the ACNW General comments regarding the Income Fund, Putnam Intermediate Tax Executive Director, Dr. John T. Larkins estimated burden hours should be Exempt Fund, Putnam Investors Fund, (telephone 301/415–7360), between 7:30 directed to the Clearance Officer for the Putnam Managed Income Trust, Putnam A.M. and 4:15 P.M. EST. Securities and Exchange Commission at Massachusetts Tax Exempt Income Dated: December 29, 1994. the address below. Any comments Fund II, Putnam Michigan Tax Exempt concerning the accuracy of the Andrew L. Bates, Income Fund II, Putnam Minnesota Tax estimated average burden hours for Exempt Income Fund II, Putnam Money Advisory Committee Management Officer. compliance with Commission rules and [FR Doc. 95–218 Filed 1–4–95; 8:45 am] Market Fund, Putnam Municipal forms should be directed to Richard T. Income Fund, Putnam Natural BILLING CODE 7590±01±M Redfearn, Acting Director, Office of Resources Fund, Putnam New Jersey Information Technology, Securities and Tax Exempt Income Fund, Putnam New Exchange Commission, 450 Fifth Street, Opportunities Fund, Putnam New York SECURITIES AND EXCHANGE NW., Washington, DC 20549 and Tax Exempt Income Trust, Putnam New COMMISSION Clearance Officer for the Securities and York Tax Exempt Money Market Fund, Exchange Commission, Office of Putnam New York Tax Exempt Request Under Review by Office of Management and Budget, (Project Management and Budget Opportunities Fund, Putnam Ohio Tax Numbers 3235–0130 and 3235–0273), Exempt Income Fund II, Putnam OTC Acting Agency Clearance Officer: Room 3208, New Executive Office Emerging Growth Fund, Putnam Richard T. Redfearn, (202) 942–8800 Building, Washington, DC 20503. Overseas Growth Fund, Putnam Upon written request copy available Dated: December 27, 1994. Pennsylvania Tax Exempt Income Fund, from: Securities and Exchange Margaret H. McFarland, Putnam Research Analysts Fund, Commission, Office of Filings and Deputy Secretary. Putnam Tax Exempt Income Fund, Information Services, Washington, DC [FR Doc. 95–190 Filed 1–4–95; 8:45 am] Putnam Tax Exempt Money Market 20549. BILLING CODE 8010±91±M Fund, Putnam Tax-Free Income Trust, Proposed Amendments: Putnam Total Return Bond Funds, Rule 17Ad–2(c) Putnam U.S. Government Income Trust, File No. 270–149 [Rel. No. IC±20807; 812±9152] Putnam Utilities Growth and Income Rule 17Ad–10 Fund, Putnam Vista Fund and Putnam File No. 270–265 Putnam Adjustable Rate U.S. Voyager Fund, (collectively, the ‘‘Open- Government Fund, et al.; Notice of Notice is hereby given that pursuant End Trusts’’), Putnam California Application to the Paperwork Reduction Act of 1980 Investment Grade Municipal Trust, (44 U.S.C. § 3501 et seq.), the Securities December 29, 1994. Putnam Dividend Income Fund, Putnam and Exchange Commission has AGENCY: Securities and Exchange High Income Convertible and Bond submitted to the Office of Management Commission (‘‘SEC’’). Fund, Putnam High Yield Municipal and Budget request for approval on ACTION: Notice of Application for Trust, Putnam Intermediate Government proposed amendments to the following Exemption under the Investment Income Trust, Putnam Investment Grade rules: Company Act of 1940 (the ‘‘Act’’). Intermediate Municipal Trust, Putnam Rule 17Ad–2(c) under the Securities Investment Grade Municipal Trust, Exchange Act of 1934 (15 U.S.C. § 78 et APPLICANTS: Putnam Adjustable Rate Putnam Investment Grade Municipal seq.), requires registered transfer agents U.S. Government Fund, Putnam Trust II, Putnam Investment Grade to file a notice with the Commission or American Government Income Fund, Municipal Trust III, Putnam Managed 1806 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices High Yield Trust, Putnam Managed Applicant’s Representations 4. The Fund’s obligation to make Municipal Income Trust, Putnam Master payments from a Deferred Fee Account Income Trust, Putnam Master 1. Each Open-End Trust is a registered will be a general obligation of the Fund Intermediate Income Trust, Putnam open-end management investment and payments made pursuant to the Municipal Opportunities Trust, Putnam company organized as a Massachusetts Plan will be made from each Fund’s New York Investment Grade Municipal business trust. Certain of the Open-End general assets and property. With Trust, Putnam Premier Income Trust Trusts consist of more than one series of respect to the obligations created under and Putnam Tax-Free Health Care Fund shares. Each Closed-End Trust is a the Plan, the relationship of a trustee to (collectively, the ‘‘Closed-End Trusts,’’ registered closed-end management the Fund will be only that of a general and together with the Open-End Trusts, investment company organized as a unsecured creditor. The Fund will be the ‘‘Trusts’’), and Putnam Investment Massachusetts business trust and each under no obligation to the trustee to Management, Inc. (the ‘‘Manager’’). consists of only a single series of shares. purchase, hold or dispose of any The Manager serves as the investment investments but, if the Trust chooses to RELEVANT ACT SECTIONS: Order requested adviser for the Trusts. Putnam Mutual purchase investments to cover its under section 6(c) of the Act for an Funds Corp. serves as the Open-End obligations under the Plan, then any and exemption from sections 13(a)(2), Trusts’ principal underwriter. all such investments will continue to be 13(a)(3), 18(a), 18(c), 18(f)(1), 22(f), 22(g) Applicants request that the proposed a part of the general assets and property and 23(a) of the Act, and rule 2a–7 relief apply to the Trusts and all of the Trust. thereunder, under sections 6(c) and subsequently registered investment 5. As a matter of prudent risk 17(b) of the Act for an exemption from companies advised by the Manager management, each Fund intends to, and section 17(a)(1) of the Act, and under (such registered investment companies, with respect to any money market Fund section 17(d) of the Act and rule 17d– together with the Trusts, being referred that values its assets by the amortized 1 thereunder. to collectively as the ‘‘Funds’’). Any cost method will, purchase and SUMMARY OF APPLICATION: Applicants relief granted from section 13(a)(3) of maintain Underlying Securities in an request an order that would permit the the Act would extend only to existing amount equal to the deemed Trusts to enter into deferred Trusts. investments of the Deferred Fee compensation arrangements with their 2. Each Trust has a board of trustees, Accounts. The Plan will not obligate trustees. a majority of whom are not interested any Fund to retain the services of a persons of the Manager or any of the trustee, nor will it obligate any Fund to FILING DATE: The application was filed Trusts. Each trustee of the Trusts pay any (or any particular level of) on August 9, 1994 and amended on trustee’s fees to any trustee. December 9, 1994. receives an annual retainer fee and an additional fee for each trustees’ meeting Applicants’ Legal Analysis HEARING OR NOTIFICATION OF HEARING: An attended. Trustees who are not 1. Applicants request an order that order granting the application will be interested persons of the Manager or any would exempt the Funds under section issued unless the SEC orders a hearing. of the Trusts and who serve on 6(c) of the Act from sections 13(a)(2), Interested persons may request a committees of the trustees receive hearing by writing to the SEC’s 18(a), 18(c), 18(f)(1), 22(f), 22(g) and additional fees for attendance at 23(a) of the Act, the rule 2a–7 Secretary and serving applicants with a committee meetings. The proposed thereunder, under sections 6(c) and copy of the request, personally or by deferred fee arrangements would be 17(b) of the Act from section 17(a)(1) of mail. Hearing requests should be implemented by means of a fee deferral the Act, and under section 17(d) of the received by the SEC by 5:30 p.m. on plan (the ‘‘Plan’’), which would permit Act and rule 17d–1 thereunder to permit January 23, 1995, and should be individual trustees to elect to defer the Funds to enter into the deferred fee accompanied by proof of service on receipt of all or a portion of their fees. arrangements. The existing Trusts also applicants, in the form of an affidavit or, This would enable these trustees to request an exemption under section 6(c) for lawyers, a certificate of service. defer payment of income taxes on such from section 13(a)(3) of the Act. The Hearing requests should state the nature fees. finding required by section 17(b)(2) for of the writer’s interest, the reason for the 3. Under the Plan, the deferred the existing Trusts is predicated on the request, and the issues contested. trustee’s fees will be credited to a book assumption that relief is granted from Persons who wish to be notified of a entry account established by each section 13(a)(3). hearing may request notification by participating Fund (the ‘‘Deferred Fee 2. Sections 18(a) and 18(c) restrict the writing to the SEC’s Secretary. Account’’), as of the date the fees would ability of a registered closed-end ADDRESSES Secretary, SEC, 450 Fifth have been paid to a trustee. The value investment company to issue senior Street, N.W., Washington, D.C. 20549. of the Deferred Fee Account will be securities. Section 18(f)(1) generally Applicants, One Post Office Square, periodically adjusted by treating the prohibits a registered open-end Boston, Massachusetts 02111. Deferred Fee Account as though an investment company from issuing equivalent dollar amount had been senior securities. Section 13(a)(2) FOR FURTHER INFORMATION CONTACT: invested and reinvested in certain requires that a registered investment Deepak T. Pai, Staff Attorney, at (202) designated securities (the ‘‘Underlying company obtain shareholder 942–0574, or Robert A. Robertson, Securities’’). The Underlying Securities authorization before issuing any senior Branch Chief, at (202) 942–0564 for a Deferred Fee Account will be security not contemplated by the (Division of Investment Management, shares of the Funds that a participating recitals of policy in its registration Office of Investment Company trustee designates. Each Deferred Fee statement. Applicants state that the Plan Regulation). Account shall be credited or charged possesses none of the characteristics of SUPPLEMENTARY INFORMATION: The with book adjustments representing all senior securities that led Congress to following is a summary of the interest, dividends and other earnings enact these sections. The Plan would application. The complete application and all gains and losses that would have not induce speculative investments or may be obtained for a fee at the SEC’s been realized had such account been provide opportunities for manipulative Public Reference Branch. invested in such Underlying Securities. allocation of any Fund’s expenses or Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices 1807 profits, affect control of any Fund, arrangement, the relief requested from 2. If a Fund purchases Underlying confuse investors or convey a false section 13(a)(3) would extend to Securities issued by an affiliated Fund, impression as to the safety of their existing Trusts only. the purchasing Fund will vote such investments, or be inconsistent with the 6. Rule 2a–7 imposes certain shares in proportion to the votes of all theory of mutuality of risk. All liabilities restrictions on the investments of other holders of shares of such affiliated created under the Plan would be offset ‘‘money market funds,’’ as defined Fund. by equal amounts of assets that would under the rule, that would prohibit a For the Commission, by the Division of not otherwise exist if the fees were paid Fund that is a money market fund from Investment Management, under delegated on a current basis. investing in the shares of any other authority. 3. Section 22(f) prohibits undisclosed Fund. Applicants believe that the Margaret H. McFarland, restrictions on transferability or requested exemption would permit the Deputy Secretary. negotiability of redeemable securities Funds to achieve an exact matching of [FR Doc. 95–234 Filed 1–4–95; 8:45 am] issued by open-end investment Underlying Securities with the deemed BILLING CODE 8010±01±M companies. The Plan would set forth all investments of the Deferred Fee such restrictions, which would be Accounts, thereby ensuring that the included primarily to benefit the deferred fees would not affect net asset [Investment Company Act Release No. participating trustees and would not value. 20806; 811±5535] adversely affect the interests of the 7. Section 17(a)(1) generally prohibits FN Network Tax Free Money Market trustee, the Fund or of any shareholder. an affiliated person of a registered Fund, Inc. 4. Sections 22(g) and 23(a) prohibit investment company from selling any registered open-end investment security to such registered investment companies and closed-end investment December 29, 1994. company, except in limited companies, respectively, from issuing AGENCY: Securities and Exchange circumstances. Funds that are advised any of their securities for services or for Commission (‘‘SEC’’). by the same entity may be ‘‘affiliated property other than cash or securities. ACTION: Notice of Application for persons’’ under section 2(a)(3)(C) of the These provisions prevent the dilution of Deregistration under the Investment Act. Applicants believe that an equity and voting power that may result Company Act of 1940 (the ‘‘Act’’). exemption from this provision would when securities are issued for not implicate Congress’ concerns in APPLICANT: consideration that is not readily valued. FN Network Tax Free Money enacting section 17(a)(1) but would Applicants believe that the Plan merely Market Fund, Inc. (the ‘‘Fund’’). would provide for deferral of payment facilitate the matching of each Fund’s RELEVANT ACT SECTION: Section 8(f). of such fees and thus should be viewed liability for deferred trustees’ fees with SUMMARY OF APPLICATION: Applicant as being issued not in return for services the Underlying Securities that would requests an order declaring that it has but in return for a Fund not being determine the amount of such Fund’s ceased to be an investment company. liability. Applicants assert that the required to pay such fees on a current FILING DATE: The application was filed proposed transaction satisfies the basis. on December 8, 1994. criteria of sections 6(c) and 17(b). 5. Section 13(a)(3) provides that no HEARING OR NOTIFICATION OF HEARING: 8. Section 17(d) and rule 17d–1 An registered investment company shall, order granting the application will be unless authorized by the vote of a generally prohibit a registered investment company’s joint or joint and issued unless the SEC orders a hearing. majority of its outstanding voting Interested persons may request a securities, deviate from any investment several participation with an affiliated person in a transaction in connection hearing by writing to the SEC’s policy that is changeable only if Secretary and serving applicant with a authorized by shareholder vote. Certain with any joint enterprise or other joint arrangement without SEC approval. copy of the request, personally or by of the Trusts have a fundamental mail. Hearing requests should be investment restriction specifically or Under the Plan, participating trustees will not receive a benefit that otherwise received by the SEC by 5:30 p.m. on effectively prohibiting them from January 23, 1995 and should be investing in securities of other would inure to a Fund or its shareholders. When all payments have accompanied by proof of service on the investment companies, except in applicant, in the form of an affidavit or, connection with a merger, consolidation been made to a participating trustee, the participating trustee will be no better off for lawyers, a certificate of service. or acquisition of assets. Applicants Hearing requests should state the nature believe that it is appropriate to exempt (apart from the effect of tax deferral) of the writer’s interest, the reason for the applicants as necessary from section than if he or she had received trustees request, and the issues contested. 13(a)(3) so as to enable the existing fees on a current basis and invested Persons may request notification of a Trusts to invest in Underlying Securities them in Underlying Securities. hearing by writing to the SEC’s without a shareholder vote. Applicants Applicants’ Conditions Secretary. will provide notice to shareholders in the statement of additional information Applicants agree that the order ADDRESSES: Secretary, SEC, 450 5th of the deferred fee arrangement with the granting the requested relief shall be Street, N.W., Washington, D.C. 20549. trustees. The value of the Underlying subject to the following conditions: Applicant, 144 Glenn Curtiss Boulevard, Securities will be de minimis in relation 1. With respect to the requested relief Uniondale, NY 11556–0144. to the total net assets of the respective from rule 2a–7, any money market Fund FOR FURTHER INFORMATION CONTACT: Fund, and will at all times equal the that values its assets by the amortized Sarah A. Buescher, Law Clerk, at (202) value of the Fund’s obligations to pay cost method or the penny-rounding 942–0573, or Robert A. Robertson, deferred fees. Because investment method will buy and hold Underlying Branch Chief, at (202) 942–0564 companies that might exist in the future Securities that determine the (Division of Investment Management, could establish fundamental policies performance of Deferred Fee Accounts Office of Investment Company that would accommodate purchases of to achieve an exact match between such Regulation). shares of investment companies in Fund’s liability to pay deferred fees and SUPPLEMENTARY INFORMATION: The connection with the deferred fee the assets that offset that liability. following is a summary of the 1808 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices application. The complete application necessary for the winding-up of its [(c)] (d) ‘‘branch office’’ means an may be obtained for a fee from the SEC’s affairs. office defined as a branch office in Public Reference Branch. 7. Applicant intends to file all Rule.2 documents required to terminate its [(d)] (e) ‘‘broker’’ means any Applicant’s Representations existence as a Maryland corporation. individual, corporation, partnership, 1. Applicant is an open-end For the Commission, by the Division of association, joint stock company, management investment company Investment Management, pursuant to business trust, unincorporated organized as a Maryland corporation. delegated authority. organization or other legal entity On April 14, 1988, applicant filed a Margaret H. McFarland, engaged in the business of effecting notice of registration pursuant to section Deputy Secretary. transactions in securities for the account 8(a) of the Act on Form N–8A and a of others, but does not include a bank; [FR Doc. 95–233 Filed 1–4–95; 8:45 am] registration statement on Form N–1A to [(e)] (f) ‘‘Commission’’ means the register its shares. The registration BILLING CODE 8010±01±M Securities and Exchange Commission; statement became effective on June 7, [(f)] (g) ‘‘Corporation’’ means the National Association of Securities 1988, and the initial public offering Self-Regulatory Organizations; Notice Dealers, Inc.; commenced on June 28, 1988. of Proposed Rule Change by National [(g)] (h) ‘‘dealer’’ means any 2. On March 8, 1994, applicant’s Association of Securities Dealers, Inc. individual, corporation, partnership, board of directors approved a proposal Relating To Numbering and association, joint stock company, to liquidate and distribute applicant’s Terminology of Rules and Correction business trust, unincorporated assets to shareholders. Shareholders of Cross References with account values of at least $1,000 organization or other legal entity were provided with a Notice of [Release No. 34±35150; File No. SR±NASD± engaged in the business of buying and Liquidation and Offer of Exchange 94±64] selling securities for his own account, through a broker or otherwise, but does allowing them the option of exchanging December 23, 1994. not include a bank, or any person Fund shares for shares of General Pursuant to Section 19(b)(1) of the Municipal Money Market Fund, Inc. insofar as he buys or sells securities for Securities Exchange Act of 1934 his own account, either individually or (‘‘General Fund’’), a money market (‘‘Act’’), 15 U.S.C. 78s(b)(1), notice is mutual fund managed by The Dreyfus in some fiduciary capacity, but not as hereby given that on December 13, 1994, part of a regular business; Corporation, or to redeem their shares the National Association of Securities with the remaining shareholders. [(p)] (i) means ‘‘government securities Dealers, Inc. (‘‘NASD’’ or ‘‘Association’’) broker’’ shall have the same meaning as Shareholders were required to respond filed with the Securities and Exchange by April 17, 1994 to accept the offer of in Section 3(a)(43) of the Act except that Commission (‘‘SEC’’ or ‘‘Commission’’) it shall not include financial institutions exchange. No formal vote by the proposed rule change as described shareholders was required to take any as defined in Section 3(a)(46) of the Act. in Items I, II, and III below, which Items [(q)] (j) means ‘‘government securities action to exchange out of or to liquidate 1 have been prepared by the NASD. The dealer’’ shall have the same meaning as Fund shares. On April 18, 1994, all Commission is publishing this notice to outstanding shares of applicant were in Section 3(a)(44) of the Act except that solicit comments on the proposed rule it shall not include financial institutions liquidated at the then-current net asset change from interested persons. value of $1.00 per share and the as defined in Section 3(a)(46) of the Act. proceeds of such liquidation were paid I. Self-Regulatory Organization’s [(s)] (k) ‘‘Governor’’ means a member to the record holders of applicant’s Statement of the Terms of Substance of of the Board. [(h)] (l) ‘‘investment banking or shares or exchanged into the General the Proposed Rule Change securities business’’ means the business, Fund. The NASD is herewith filing a carried on by a broker, dealer, or 3. Distributions to all securityholders proposed rule change to Articles I, III, municipal securities dealer (other than in complete liquidation of their interests IV, V, VII, VIII, IX, XII and XVII of the a bank or department or division of a have been made. No brokerage By-Laws; and Articles I, II, III, IV and V bank), or government securities broker commissions were incurred. of the Rules of Fair Practice. Below is or dealer of underwriting or distributing 4. On April 17, 1994, approximately the text of the proposed rule change. issues of securities, or of purchasing 23,371,812.98 shares of common stock Proposed new language is in italics; securities and offering the same for sale were outstanding at a net asset value of proposed deletions are in brackets. as a dealer, or of purchasing and selling $1.00 per share. At such date, aggregate By-Laws securities upon the order and for the net assets of applicant were account of others; $23,371,812.98. Article I [(i)] (m) ‘‘member’’ means any broker 5. In connection with its liquidation, Definitions or dealer admitted to membership in the applicant incurred approximately Corporation; $4,000 of aggregate expenses, consisting When used in these By-Laws, and any [(j)] (n) ‘‘municipal securities’’ means primarily of printing and mailing costs, rules of the Corporation, unless the securities which are direct obligations all of which were paid by FN context otherwise requires, the term: of, or obligations guaranteed as to Investment Center, a subsidiary of 1st (a) Unchanged. principal or interest by, a State or any Nationwide Bank F.S.B. (b) Unchanged. political subdivision thereof, or any 6. As of the date of this application, [(r)] (c) ‘‘Board’’ means the Board of agency or instrumentality of a State or applicant has no outstanding debts or Governors of the Corporation. any political subdivision thereof, or any liabilities. Applicant has no municipal corporate instrumentality of shareholders and is not a party to any 1 The NASD originally submitted the proposed one or more States, or any security litigation or administrative proceeding. rule change on November 28, 1994. On December 13, 1994, the NASD filed Amendment No. 1 to its which is an industrial development Applicant is not presently engaged in, filing requesting that certain language be deleted nor does it propose to engage in, any and substituted with the word ‘‘unchanged.’’ This 2 Rule numbers will be inserted upon completion business activities other than those notice reflects the amendment. of the Manual revision project. Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices 1809 bond as defined by Section 3(a)(29) of provided that all obligations of the Article V the Act; membership under the By-Laws and Affiliates [(k)] (o) ‘‘municipal securities broker’’ Rules [of Fair Practice] of the means a broker, except a bank or Corporation have been fulfilled. Agreement of Affiliate department or division of a bank, * * * * * Sec. 3. No applicant may become an engaged in the business of effecting affiliate of the Corporation unless it transactions in municipal securities for District Committees’ Right to Classify agrees: the account of others; Branches (a) Unchanged. [(l)] (p) ‘‘municipal securities dealer’’ (b) Unchanged. means any person, except a bank or Sec. 10. A District Committee may (c) That, after affiliation, it will at all department or division of a bank, classify any branch of a member not times keep its charter, by-laws, [rules of engaged in the business of buying and meeting the definition of Article [I(c)] fair practice and code of procedure] and selling municipal securities for his own I(d) of the By-Laws as a ‘‘branch office’’ account, through a broker or otherwise, other rules so integrated with the if such Committee is satisfied that the corresponding Charter, By-Laws, [Rules but does not include any person insofar definition of Article [I(c)] I(d) of the By- as he buys or sells securities for his own of Fair Practice and Code of Procedure] Laws is substantially met and that the and other rules of the Corporation as not account either individually or in some business of said branch in the district is fiduciary capacity but not as a part of a to conflict in any way therewith; and of sufficient importance to justify such (d) Unchanged. regular business; a classification. [(m)] (q) ‘‘person associated with a Conditions of Affiliation member’’ or ‘‘associated person of a Article IV member’’ means every sole proprietor, Sec. 4. No applicant may become an partner, officer, director, or branch Registered Representatives and affiliate of the Corporation unless it manager of any member, or any natural Associated Persons appears to the Board of Governors. (a) Unchanged. person occupying a similar status or Retention of Jurisdiction performing similar functions, or any (b) That the charter, by-laws, [rules of natural person engaged in the Sec. 4. A person whose association fair practice and code of procedure] and investment banking or securities with a member has been terminated and other rules of the applicant are so business who is directly or indirectly is no longer associated with any integrated with the Corresponding controlling or controlled by such member of the Corporation or a person Charter, By-Laws, [Rules of Fair Practice and Code of Procedure] and other rules member, whether or not any such whose registration has been revoked of the Corporation as not to conflict in person is registered or exempt from shall continue to be subject to the filing any way therewith. registration with the Corporation of a complaint under the Code of pursuant to these By-Laws; Procedure based upon conduct which * * * * * [(n)] (r) ‘‘registered broker, dealer, commenced prior to the termination or Article VII municipal securities broker or dealer, or revocation or upon such person’s government securities broker or dealer’’ Board of Governors failure, while subject to the means any broker, dealer, municipal Corporation’s jurisdiction as provided Powers and Authority of Board of securities broker or dealer, or herein, to provide information requested Governors government securities broker or dealer which is registered with the by the Corporation pursuant to [Article Sec. 1. (a) Unchanged. IV, Section 5 of the NASD Rules of Fair (1) Unchanged. Commission under the Act; lll [(o)] (s) ‘‘rules of the Corporation’’ Practice] Rule , but any such (2) adopt such Rules [of Fair Practice] means all rules of the Corporation complaint shall be filed within: and changes or additions thereto as it including the Certificate of (a) two (2) years after the effective deems necessary or appropriate, Incorporation, By-Laws, Rules of Fair date of termination of registration provided, however, that the Board may Practice, Government Securities Rules, pursuant to Section 3 above, provided, at its option submit to the membership Code of Procedure, Uniform Practice however, that any amendment to a any such adoption, change or addition Code, any other rules, and any notice of termination filed pursuant to to the Rules [of Fair Practice]; [(3) (a) adopt such rules as the Board interpretation thereunder. Section [2(b)] 3(b) that is filed within of Governors deems appropriate to * * * * * two years of the original notice which implement the provisions of the Act as discloses that such person may have Article III amended and the rules and regulations engaged in conduct actionable under Membership promulgated thereunder, and (b) make any applicable statute, rule or regulation such regulations, issue such orders, Transfer and Termination of shall operate to recommence the resolutions, interpretations, including Membership running of the two-year period under interpretations of the rules adopted Sec. 7. (a) Except as provided this paragraph. pursuant to this Section, and directions, hereinafter, no member of the (b) Two (2) years after the effective and make such decisions as it deems Corporation may transfer its date of revocation of registration necessary or appropriate.] membership or any right arising pursuant to [Article V, Section 2 of the [(4) )3) make such regulations, issue therefrom and the membership of a Association’s Rules of Fair Practice] such orders, resolutions, interpretations, corporation, partnership or any other Rule lll; or, including interpretations of the Rules business organization which is a [of Fair Practice], and directions, and (c) in the case of an unregistered member of the Corporation shall make such decisions as it deems terminate upon its liquidation, person, within two (2) years after the necessary or appropriate; dissolution or winding up, and the date upon which such person ceased to [(5)](4) prescribe a code of arbitration membership of a sole proprietor which be associated with the member. procedure providing for the required or is a member shall terminate at death, * * * * * voluntary arbitration of controversies 1810 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices between members and between counter securities market, the operation Election of Board Members members and customers or others as it of any automated system owned or Sec. 7. The Governors elected under shall deem necessary or appropriate; operated by the Corporation or any subsection (b) of Section 4 of this [(6)](5) establish rules and procedures subsidiary thereof, and the participation Article shall be chosen as follows: to be followed by members in in any such system of any or all persons connection with the distribution of or the trading therein of any or all Procedure for Nominations by securities issued by members and securities and [(ii)](2) the operation of Nominating Committees affiliates thereof; any or all member firms’ offices or [(7)](6) require all over-the-counter systems, if, in the opinion of the Board (a) Unchanged. transactions in securities between of the Committee hereby constituted, Nomination of Additional Candidates members, other than transactions in such action is necessary or appropriate exempted securities, to be cleared and for the protection of investors or the (b) Unchanged. settled through the facilities of a public interest or for the orderly Contested Elections clearing agency registered with the operation of the marketplace or the Commission pursuant to the Act, which system. (c) If any additional candidate or clears and settles such over-the-counter candidates are nominated, as provided (b) Unchanged. transactions in securities; in subsection (b) of this Section, the [(8)](7) organize and operate (c) Unchanged. District Committee shall forthwith cause automated systems to provide qualified Composition of Board the names of the regular candidate and subscribers with securities information of all other duly nominated candidates and automated services. The systems Sec. 4. (a) The management and for each office to be placed upon a may be organized and operated by a administration of the affairs of the ballot, which shall be sent to all division or subsidiary company of the Corporation shall be vested in a Board members of the Corporation eligible to Corporation or by one or more of Governors composed of from twenty- vote in the district. Each member of the independent firms under contract with five to twenty-nine Governors as Corporation having its principal place of the Corporation as the Board of determined from time to time by the business in the district shall be entitled Governors may deem necessary or Board. The Board shall consist of: [(i)](1) to one vote, and each member having appropriate. The Board of Governors at least thirteen but not more than one or more registered branch offices in may adopt rules for such automated fifteen Governors to be elected by the the district shall be entitled to vote as systems, establish reasonable members of the various districts in provided in Section [8] 9 of Article III. qualifications and classifications for accordance with the provisions of The District Committee shall fix a date members and other subscribers, provide subsection (b) hereof; [(ii)](2) at least before which ballots must be returned to qualification standards for securities eleven but not more than thirteen be counted. All ballots shall be opened included in such systems, require Governors to be elected by the Board in and counted by such officer or members to report promptly information accordance with the provisions of employee of the Corporation as the in connection with securities included subsection (c) hereof; [(iii)](3) the Chairman of the District Committee may in such systems, and establish charges President of the Corporation to be designate and in the presence of a to be collected from subscribers and selected by the Board in accordance representative of each of the candidates others; with the provisions of Article X, Section if such representation is requested in [(9)](8) require the prompt reporting 2 of the By-Laws. The Board, in writing by any candidate named on the by members of such original and exercising its power to determine its ballot. The candidate for each office to supplementary trade data as the Board size and composition under this be filled receiving the largest number of deems appropriate. Such reporting subsection (a), shall be required to select votes cast shall be declared elected to requirements may be administered by its members in a manner such that when membership on the Board of Governors, the Corporation, a division or subsidiary all vacancies, if any, are filled, the and certification thereof shall be made thereof, or a clearing agency registered number of Governors elected by the forthwith to the Board of Governors. In under the Act; and members of the various districts in the event of a tie, there shall be a run- [(10)](9) engage in any activities or accordance with subsection (b) hereof off election. In all elections held under conduct necessary or appropriate to shall exceed the number of Governors this subsection voting shall be made by carry out the Corporation’s purposes (including the President) not so elected. secret ballot, the procedure for which under its Certificate of Incorporation (b) Unchanged. shall be prescribed by the Board of and the federal securities laws. Governors. (b) Unchanged. (c) The Board shall elect [(i)](1) at * * * * * least three Governors representative of Tansitional Procedures investors, none of whom are associated Authority to Take Action Under with a member or any broker or dealer; (d) Unchanged. Emergency or Extraordinary Market [(ii)](2) at least three Governors Filling of Vacancies on Board Conditions representative of issuers, at least one of Sec. 3. (a) The Board of Governors, or whom is not associated with a member Sec. 8. All vacancies in the Board between meetings of the Board, a or any broker or dealer; [(iii)](3) at least other than those caused by the Committee consisting of the Chairman three Governors chosen from members; expiration of a Governor’s term of office, of the Board (or in his absence, a Vice [(iv)](4) at least one Governor shall be filled as follows: Chairman of the board), the President of representative of the principal (a) Unchanged. the Corporation, and a member of the underwriters of investment company (b) Unchanged. Executive Committee, in the event of an shares or affiliated members; and [(v)](5) (c) If the unexpired term is that of a emergency or extraordinary market at least one Governor representative of Governor elected by the Board such conditions, shall have the authority to insurance companies or insurance vacancy shall be filled in accordance take any action regarding [(i)](1) the company affiliated members. with the provisions of subsections trading in or operation of the over-the- * * * * * [(c)(i)](c)(1) through [(c)(v)] (c)(5) of Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices 1811 Section 4 of this Article as the case may Procedures for Nominations by with members, and such amendments be. Nominating Committees thereto as it may, from time to time, * * * * * (a) Unchanged. deem necessary or appropriate. If any such Rules [of Fair Practice] or Article VIII Nomination of Additional Candidates amendments thereto are approved by District Committees (b) Unchanged. the Commission as provided in the Act, * * * * * Contested Elections they shall become effective [Rules of Fair Practice] Rules of the Corporation Election of District Committee Members (c) If additional candidates are as of such date as the Board of nominated, as provided in paragraph (b) Governors may prescribe. The Board of Sec. 4. Members of the District of this Section, the District Committee Governors is hereby authorized, subject Committees shall be elected as follows: shall forthwith cause the names of the regular candidate and all other to the provisions of the By-Laws and the Procedure for Nominations by Act, to administer, enforce, suspend, or Nominating Committees candidates for any contested office to be placed upon a ballot, which shall be cancel any Rules [of Fair Practice] (a) Unchanged. sent to all members of the Corporation adopted hereunder. Nomination of Additional Candidates eligible to vote in the District. Each * * * * * member of the Corporation having its (b) Unchanged. principal place of business in the Article XVII Contested Elections District shall be entitled to one vote, and Procedure for Adopting Amendments to each member having one or more By-Laws (c) If any additional candidate or registered branch offices in the District candidates are nominated, as provided shall be entitled to vote as provided in Sec. 1. Any member of the Board of in paragraph (b) of this Section, the Section [8] (9) of Article III. The District Governors by resolution, any District District Committee shall forthwith cause Committee shall fix the date before Committee by resolution, or any twenty- the names of the regular candidate for which ballots must be returned to be five members of the Corporation by any contested office and of all other counted. All ballots shall be opened by petition signed by such members, may candidates for such office to be placed such officer or employee of the propose amendments to these By-Laws. upon a ballot, which shall be sent to all Corporation as the Chairman of the Every proposed amendment shall be members of the Corporation eligible to District Committee may designate, and presented in writing to the Board of vote in the district. Each member of the in the presence of a representative of Governors and a record shall be kept Corporation having its principal place of each of the candidates, if such thereof. The Board of Governors may business in the district shall be entitled representation is requested in writing by adopt any proposed amendment to these to one vote, and each member having any candidate named in the ballot. The By-Laws by affirmative vote of a one or more registered branch offices in candidate for each office to be filled majority of the members of the Board of the district shall be entitled to vote as receiving the largest number of votes Governors then in office. The Board of provided in Section [8] (9) of Article III. cast shall be declared elected to The District Committee shall fix the date membership on the Nominating Governors, upon adoption of any such before which ballots must be returned to Committee and certification thereof amendment to these By-Laws, except as be counted. All ballots shall be opened shall be made forthwith to the Board of to spelling or numbering corrections or by such officer or employee of the Governors. In the event of a tie, there as otherwise provided in these By-Laws, Corporation as the Chairman of the shall be run-off election. In all elections shall forthwith cause a copy to be sent District Committee may designate, and held under this Section, voting shall be to and voted upon by each member of in the presence of a representative of by secret mail ballot, the procedure for the Corporation. If such amendment to each of the candidates if such which shall be prescribed by the Board these By-Laws is approved by a majority representation is requested in writing by of Governors. of the members voting within thirty (30) any candidate named in the ballot. The * * * * * days after the date of submission to the candidate for each office to be filled membership, and is approved by the receiving the largest number of votes Article XII Commission as provided in the Act, it cast shall be declared elected to Rules [of Fair Practice] shall become effective as of such date as membership on the District Committee, the Board of Governors may prescribe. and certification thereof shall be made Sec. 1. To promote and enforce just * * * * * forthwith to the Board of Governors. In and equitable principles of trade and business, to maintain high standards of the event of a tie, there shall be a run- Rules [of Fair Practice] off election. In all elections held under commercial honor and integrity among this Section, voting shall be by secret members of the Corporation, to prevent Article I fraudulent and manipulative acts and mail ballot, the procedure for which Adoption and Application shall be prescribed by the Board of practices, to provide safeguards against Governors. unreasonable profits or unreasonable Adopting of Rules rates commissions or other charges, to * * * * * protect investors and the public interest, Sec. 1. The following provisions are Article IX to collaborate with governmental and adopted pursuant to Article VII of the other agencies in the promotion of fair By-Laws of the Corporation and the Nominating Committees practices and the elimination of fraud, provisions of Article III hereof are * * * * * and in general to carry out the purposes adopted as the Rules [of Fair Practice] of the Corporation and of the Act, the Election of Nominating Committees of the Corporation, pursuant to Section Board of Governors is hereby authorized 1 of [the] Article VII. Sec. 3 Members of the Nominating to adopt such Rules [of Fair Practice] for Committee shall be elected as follows: the members and persons associated 1812 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices Effective Date (a)–(c) Unchanged. be handled in accordance with the Code Sec. 2. The Rules shall become [(d) Power of the Board of Governors of Procedure as set forth in the Rule The Board of Governors shall have the effective as provided in Section 1 of series and in the same manner as if it power to alter, amend, supplement or Article [VII] XII of the By-Laws. had been filed by an individual or modify the provisions of Subsection (b) member. * * * * * of this Section from time to time Applicability without recourse to the membership for Complaints by the Board of Governors approval as would otherwise be Sec. 5. (a) These Rules [of Fair required by Article III of the By-Laws.] Sec. 4. The Board of Governors shall Practice] shall apply to all members and have authority when on the basis of persons associated with a member, other * * * * * information and belief it is of the than those members registered with the Article IV opinion that any act, practice or Securities and Exchange Commission omission of any member of the Complaints solely under the provisions of Section Corporation or of any person associated 15C of the Act and persons associated Availability to Customers of [Certificate, with a member is in violation of any with such members. Persons associated By-Laws, Rules and Code of Procedure] [rule of fair practice] Rule of the with a member shall have the same Rules of the Corporation Corporation to file a complaint against duties and obligations as a member Sec. 1. Every member of the such member or such person associated under these Rules [of Fair Practice]. Corporation shall keep in each branch with a member in respect thereto or to (b) Unchanged. office maintained by him, in the form to instruct any District Business Conduct (c) A member or person associated be supplied by the Board of Governors, Committee to do so, and any such with a member who has been suspended a copy of the [Certificate of complaint shall be handled in from membership or from registration Incorporation, By-Laws, Rules of Fair accordance with the Code of Procedure shall be considered as a non-member Practice, and Code of Procedure] rules as set forth in the Rule series. during the period of suspension for of the Corporation, and of all additions Reports and Inspection of Books for purposes of applying the provisions of and amendments from time to time Purpose of Investigating Complaints these Rules [of Fair Practice of the made thereto, and of all published Corporation] which govern dealings interpretive rulings made by the Board Sec. 5. For the purpose of any between members and non-members. of Governors, all of which shall be However, such member or person investigation, or determination as to available for the examination of any filing of a complaint or any hearing of associated with a member shall have all customer who makes requests therefor. of the obligations imposed by the [By- any complaint against any member of Laws, Rules of Fair practice and other Complaints by Public Against Members the Corporation or any person regulations] rules of the Corporation. for Violations of Rules associated with a member made or held in accordance with the Code of Sec. 2. Any person feeling aggrieved Article II Procedure as set forth in the Rule series, by any act, practice or omission of any any Local Business Conduct Committee, Definitions member or any person associated with any District Business Conduct a member of the Corporation, which Definitions in Rules Committee, or the Board of Governors, such person believes to be in violation Sec. 1. When used in these Rules, or any duly authorized member or of any of the Rules [of Fair Practice] of unless the context otherwise requires— members of any such Committees or the Corporation, may, on the form to be (a)–(c) Unchanged. Boards or any duly authorized agent or supplied by the Board of Governors, file agents of any such Committee or Board ‘‘Rules’’ a complaint against such member or shall have the right (1) to require any such persons associated with a member (d) The term ‘‘Rules’’ means [the] member of the Corporation, person Rules [of Fair Practice] as adopted and in regard thereto with any District Business Conduct Committee of the associated with a member, or person no approved pursuant to Article VII of the longer associated with a member when By-Laws, or as the same may be Corporation, and any such complaint shall be handled in accordance with the such person is subject to the hereafter amended or supplemented, as Corporation’s jurisdiction to report, provided in the By-Laws. Code of Procedure of the Corporation as set forth in the Rule series. either informally or on the record, orally ‘‘Code of Procedure’’ or in writing with regard to any matter Complaints by District Business involved in any such investigation or (e) The term ‘‘Code of Procedure’’ Conduct Committees means the [Code of Procedure for hearing, and (2) to investigate the books, Handling Trade Practice Complaints Sec. 3. Any District Business Conduct records and accounts of any such prescribed by the Board of Governors Committee which, on information and member or person with relation to any pursuant to Article VII of the By-Laws] belief, is of the opinion that any act, matter involved in any such procedural rules contained in the Rule practice, or omission of any member of investigation or hearing. No such series. the Corporation or any person member or person shall fail to make any (f) through (m) Unchanged. associated with a member is in violation report as required in this Section, or fail to permit any inspection of books, * * * * * of any of the Rules [of Fair Practice] of the Corporation, may, on the form to be records and accounts as may be validly Article III supplied by the Board of Governors, file called for under this Section. Any notice Rules [of Fair Practice] a complaint against such member or requiring an oral or written report or such person associated with a member calling for an inspection of books, * * * * * in regard thereto with itself or with any records and accounts pursuant to this The Corporate Financing Rule other District Business Conduct Section shall be deemed to have been Committee of the Corporation, as the received by the member or person to Underwriting Terms and Arrangements necessities of the complaint may whom it is directed by the mailing Sec. 44. require, and any such complaint shall thereof to the last known address of Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices 1813 such member or person as reflected on II. Self-Regulatory Organization’s project, all rules of the Corporation the Corporation’s records. Statement of the Purpose of and other than the Certificate of * * * * * Statutory Basis for, the Proposed Rule Incorporation and By-Laws will be Change referred to as ‘‘Rules,’’ with a capital Article V In its filing with the Commission, the ‘‘R.’’ For purposes of proposed Section(s), however, the existing names Sanctions for Violation of the Rules NASD included statements concerning for these types of rules have been the purpose of and basis for the retained to make clear exactly what Sec. 1. Any District Business Conduct proposed rule change and discussed any types of rules are included. To make the Committee, Market Surveillance comments it received on the proposed provision more broadly applicable as Committee, the National Business rule change. The text of these statements well, the language ‘‘any other rules’’ has Conduct Committee, any other may be examined at the places specified been added. This would include, for committee exercising powers assigned in Item IV below. The NASD has example, the text of any Schedules that by the Board, or the Board in the prepared summaries, set forth in are converted to rules in the Manual Sections (A), (B), and (C) below, of the administration and enforcement of these revision project. Rules, and after compliance with the most significant aspects of such In Article III, Section 7, the term Code of Procedure as set forth in the statements. ‘‘Rules of Fair Practice’’ is proposed to Rule series, may (1) censure any A. Self-Regulatory Organization’s be replaced with the general term member or person associated with a Statement of the Purpose of, and ‘‘Rules,’’ as described above. In Section member, and/or (2) impose a fine upon Statutory Basis for, the Proposed Rule 10, the reference to Article I(c) has been any member or person associated with Change changed to reflect the new letter for the a member, and/or (3) suspend the definition of ‘‘branch office,’’ which was (a) The amendments are part of a membership of any member or suspend placed in alphabetical order and multi-phase program in which the the registration of a person associated relettered as I(d). NASD is reorganizing the NASD Manual with a member, if any, for a definite In Article IV, Section 4, references to to make it more usable by members and specific Rules of Fair Practice will be period, and/or for a period contingent other users of the Manual. It is on the performance of a particular act, changed to the proposed new rule contemplated that this will be a non- numbers that will be used in the Manual and/or (4) expel any member or revoke substantive reordering of the existing the registration of any person associated revision project. These new numbers rules, interpretations, and other will not be printed in the By-Laws until with a member, if any, and/or (5) provisions of the Manual to establish a the entire Manual revision is completed. suspend or bar a member or person more logical progression of rules within In accordance with authorization associated with a member from the Manual. The program envisions that provided in Article XVII of the By-Laws, association with all members, and/or (6) all rules in the NASD Manual, including which is proposed to be amended in impost any other fitting sanction not only the current Rules of Fair this filing, the staff will be able to adjust deemed appropriate under the Practice but also such specialized rules the final cross-references to various Rule circumstances, for each or any violation as the Government Securities Rules, numbers as the Manual revision of any of these Rules by a member or Nasdaq Rules, Code of Arbitration proceeds. In Section 4(a), an existing, person associated with a member or for Procedure, etc., will be numbered erroneous reference to Section 2(b) has any neglect or refusal to comply with consecutively throughout the Manual been corrected. That change will be any orders, directions or decisions and considered together as ‘‘Rules.’’ made in the Manual when this rule issued by any such committee or by the This project will require certain changes filing is approved. Board in the enforcement of these Rules, in numbering and terminology in the In Article V, Sections 3 and 4, including any interpretative ruling By-Laws and Rules of the NASD. In references to Rules of Fair Practice and made by the Board, as any such addition, a common numbering and the Code of Procedure have been committee or the Board, in its naming scheme for subdivisions within changed to the more general term ‘‘other discretion, may deem to be just; a Rule will be used. Discussion of rules’’ as part of the Manual revision provided, however, that no such specific changes is set forth below. project. In Article VII, Section 1, references to sanction imposed by any such By-Laws committee shall take effect until the the ‘‘Rules of Fair Practice’’ have been The sections of Article I have been changed to ‘‘Rules’’ to conform to the period for appeal therefrom or review rearranged, so that the definitions are new terminology used in the Manual thereof by the National Business now in alphabetical order for easier use. revision. In light of this change, former Conduct Committee or the Board, as In Section (d), space has been left for the subsection (a)(3), which referred to the applicable, has expired and any such proposed new number for Article III, Rules of Fair Practice, would duplicate appeal or review has been completed in Section 27, to be inserted. That number subsections (a)(2) and (4), which give accordance with the Code or Procedure will not be printed in the Manual until the Board general authority to adopt as set forth in the Rule series; and the Rules have been entirely rules and issue orders relating to the provided, further, that all parties to any renumbered. The number is subject to rules. The reference to implementing proceeding resulting in a sanction shall later change by Board and staff action, the provisions of the Act in Section be deemed to have assented to or to if necessary, as provided in the 1(a)(3) is duplicative of Article XII, Sec. have acquiesced in the imposition of proposed rule change to Article XVII of 1, which provides that the Board is such sanction unless any party the By-Laws, below. The term ‘‘rules of authorized to adopt Rules ‘‘to carry out aggrieved thereby shall have made the Corporation’’ in proposed Section(s) the purposes of the Corporation and of application for review thereof pursuant currently includes all rules that may the Act.’’ Therefore, it is proposed to to the Code of Procedure as set forth in now be referred to as Rules of Fair delete subsection (a)(3) as part of the the Rule series, within fifteen (15) days Practice, Government Securities Rules, Manual revision project. The remaining after the date of the decision rendered the Code of Procedure, and the Uniform subsections have been renumbered in such proceeding. Practice Code. In the Manual revision accordingly. In Sections 3 and 4, in 1814 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices order to make the numbering scheme of in Article XII, not VII, of the By-Laws. be used in the Manual until the Code of the By-Laws internally consistent, using In Section 5, paragraph (c), the term Procedure has been renumbered. the method employed throughout the ‘‘rules’’ (of the Corporation) has been (b) The NASD believes that the rules in the proposed Manual revision substituted for the longer list of proposed rule change is consistent with wherein subdivisions follow the format provisions imposing obligations upon the provisions of Section 15A(b)(6) of of (a)(1)(A)(i), the subsection numbers in members, because, as defined in Article the Act,3 in that the proposed rule lower-case Roman numerals have been I, Section (o) of the By-Laws (to be change does not alter the substance of replaced with Arabic numerals. In relettered as Section (s) in this filing), the NASD’s By-Laws or Rules of Fair Section 7(b), the reference to the term ‘‘rules for the Corporation’’ Practice; rather the proposed rule ‘‘subsections (1) through (5) of Section includes all such provisions. In changes simplifies the terminology used 3(b)’’ is incorrect, as there are no longer addition, a hyphen has been inserted in for rules and corrects inadvertent errors such subsections. These provisions were the word ‘‘nonmember’’ to conform to and omissions. Making the NASD’s replaced by Section 4(b) in 1990, but the usage elsewhere in the Rules. Manual easier to use enhances the cross reference was inadvertently left InArticle II, Section 1(d), the reference protection of investors and the public unchanged at that time. In Section 7(c), to ‘‘Rules of Fair Practice’’ has been interest. the reference to Section 8 of Article III shortened to ‘‘Rules’’ in connection with should have been changed to Section 9 the Manual revision, as described B. Self-Regulatory Organization’s when those sections were renumbered previously. In Section 1(e), the reference Statement on Burden on Competition in 1992. The proposed changes to to the Code of Procedure has been The Association does not believe that Section 8 are related to the renumbering amended to refer to the new portion of the proposed rule change will result in of subsections in Section 4 to conform the Rules in which the Code will be any burden on competition that is not to the standard numbering scheme. found, and to correct an obsolete necessary or appropriate in furtherance The proposed changes to Article VIII, reference to the former name of the of the purposes of the Act, as amended. Section 4, and Article IX, Section 3, Code. The Board’s authority to correct the same erroneous cross promulgate any type of rule is already C. Self-Regulatory Organization’s reference described previously under stated in Section 1(d) above, and need Statement on Comments on the Article VII, Section 7(c). The changes not be repeated in Section 1(e). The Proposed Rule Change Received From are not related to the Manual revision proposed rule change would insert the Members, Participants, or Others project and will be implemented upon new term ‘‘Rules’’ throughout the NASD No comments were solicited or Commission approval. Manual wherever the term ‘‘Rules of received by the NASD. The change to Article XII, Section 1, Fair Practice’’ is currently used. The III. Date of Effectiveness of the reflects the new terminology of ‘‘Rules’’ new terminology and references to new Proposed Rule Change and Timing for rather than ‘‘Rules of Fair Practice’’ that Rule numbers will not be added to the Commission Action will be used in the Manual the revision. Manual until the Rules are renumbered The proposed amendment to Article in connection with the Manual revision Within 35 days of the date of XVII, Section 1, would provide latitude project. publication of this notice in the Federal for the Board to approve minor changes In Article III, the title ‘‘Rules of Fair Register or within such longer period (i) to spelling or numbering in the By-Laws Practice’’ is proposed to be shortened to as the Commission may designate up to in order to correct errors or to conform ‘‘Rules,’’ as described above. In Section 90 days of such date if it finds such to the renumbering of Rules referred to 44, the provision allowing the Board to longer period to be appropriate and in the By-Laws, without the necessity of amend the Filing Requirements publishes its reasons for so finding or a membership vote. Such changes paragraph of the Corporate Financing (ii) as to which the self-regulatory would continue to be called to the Rule is no longer necessary in light of organization consents, the Commission attention of members through the the recent amendments to Article VII will: regular CH Report Letters updating the and XII of the By-Laws, which allow the A. by order approve such proposed looseleaf Manuals. Board to amend any Rules of the NASD. rule change, or * * * * * It is, therefore, proposed to be deleted B. institute proceedings to determine at this time. The previous amendments whether the proposed rule change Rules of Fair Practice were contained in SR-NASD–93–48, should be disapproved. The amendments to Article I, Sections which was approved by the Commission IV. Solicitation of Comments 1 and 5 reflect the change in on March 8, 1994. terminology from ‘‘Rules of Fair In Article IV, Section 1, references to Interested person are invited to Practice’’ to ‘‘Rules’’ as described above. the Certificate of Incorporation, By- submit written data, views, and These introductory provisions to the Laws, Rules of Fair Practice and Code of arguments concerning the foregoing. Rules of Fair Practice will be placed at Procedure have been changed to ‘‘rules Persons making written submissions the beginning of the entire set of Rules of the Corporation,’’ as that term is should file six copies thereof with the in the Manual revision. The Rules will defined in Article I, Section (o) of the Secretary, Securities and Exchange then include not only the former Rules By-Laws (to be relettered as Section(s) Commission, 450 Fifth Street, N.W., of Fair Practice, but also all other rules in this filing). In Sections 2, 3 and 4, the Washington, D.C. 20549. Copies of the and codes of the NASD, by whatever new terminology for Rules has been submission, all subsequent name they may now be known. At that inserted. In Article IV, Sections 2, 3, 4, amendments, all written statements time, the Rules will no longer be and 5; and Article V, Section 1, the term with respect to the proposed rule divided into Articles, and the reference ‘‘Code of Procedure’’ has been retained change that are filed with the to ‘‘Article III’’ will be deleted. Also in for ease of recognition by members, but Commission, and all written Section 1, a superfluous word ‘‘the’’ has reference is also included to the communications relating to the been deleted. In Section 2, a reference proposed new Rule number series for proposed rule change between the to the process for setting the effective the Code (to be inserted at a later date) Commission and any person, other than date of Rules is proposed to be changed so that it can easily be found in the to clarify that the relevant provision is Manual. The new Rule number will not 3 15 U.S.C. Sec. 78o–3. Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices 1815 those that may be withheld from the [Release No. 34±35157; File No. SR±NASD± I. Self-Regulatory Organization’s public in accordance with the 94±73] Statement of the Terms of Substance of provisions of 5 U.S.C. 552, will be the Proposed Rule Change available for inspection and copying in Self-Regulatory Organizations; Notice and Immediate Effectiveness of The NASD is proposing to increase, the Commission’s Public Reference by 15%, all existing service fees paid by Section. Copies of such filing will also Proposed Rule Change by National Association of Securities Dealers, Inc. NASD members that participate in the be available for inspection and copying Automated Confirmation Transaction Relating to an Increase in the at the principal office of the NASD. All Service (‘‘ACT’’ or ‘‘Service’’).1 The Automated Confirmation Transaction submissions should refer to the file revised fees, which will take effect number in the caption above and should Service Fees January 1, 1995, will be set forth in be submitted by January 26, 1995. December 27, 1994. Section A(10) of Part VIII of Schedule D For the Commission, by the Division of to the NASD By-Laws. The full text of Pursuant to section 19(b)(1) of the the proposed rule change reflecting the Market Regulation, pursuant to delegated Securities Exchange Act of 1934 authority.4 15% increase in ACT fees is set forth (‘‘Act’’), 15 U.S.C. 78s(b)(1), notice is below. (New language is underlined and Margaret H. McFarland, hereby given that on December 8, 1994 deletions are bracketed). Deputy Secretary. the National Association of Securities [FR Doc. 95–191 Filed 1–4–95; 8:45 am] Dealers, Inc. (‘‘NASD’’ or ‘‘Association’’) Part VIII—Schedule for NASD Charges for Services and Equipment BILLING CODE 8010±01±M filed with the Securities and Exchange Commission (‘‘SEC’’ or ‘‘Commission’’) A. System Services the proposed rule change as described * * * * * in Items I, II, and III below, which Items 10. Automated Confirmation have been prepared by the NASD. The Transaction Service Commission is publishing this notice to The following charges shall be paid solicit comments on the proposed rule by the participant for use of the change from interested persons. Automated Confirmation Transaction Service (ACT): Transaction related charges: Comparison ...... [$0.0125] $0.0144/side per 100 shares (minimum 40 shares; maximum 7,500 shares). Late report—T+1 ...... [$0.25] $0.288/side. Browse/query ...... [$0.25] $.288/query.1 Terminal fee ...... [$50.00] $57.00/month (ACT only terminals). CTCI fee ...... [$500.00] $575.00/month. Service desk ...... [$50.00] $57.50/month.2 Trade reporting ...... [$.025] $0.029/month (applicable only to reportable transactions not subject to trade com- parison through ACT).3 Risk Management Charges ...... [$.03] $0.035/side and [$15] $17.25/month per correspondent firm. 1 Each Act query incurs the [$0.25] $0.288 fee; however, the first accept or decline processed for a transaction is free, to insure that no more than [$0.25] $0.288 is charged per comparison. Subsequent queries for more data on the same security will also be processed free. Any subsequent query on a different security will incur the [$0.25] $0.288 query charge. 2 No change. 3 No change. II. Self-Regulatory Organization’s (A) Self-Regulatory Organization’s service (‘‘OTCBB’’) and (ii) the NASD Statement of the Purpose of, and Statement of the Purpose of, and mandate of real-time trade reporting in Statutory Basis for, the Proposed Rule Statutory Basis for, the Proposed Rule Nasdaq SmallCap issues and OTC Change Change equities. The aforementioned factors have caused ACT processing to In its filing with the Commission, the The purpose of this proposed rule consume a much larger share of network NASD included statements concerning change is to effect a 15% across-the- capacity than was originally projected the purpose of and basis for the board increase in each of the service in 1989. proposed rule change and discussed any fees related to usage of ACT. This comments it received on the proposed increase, which would take effect on In this regard, a positive correlation rule change. The text of these statements January 1, 1995, constitutes the first exists between Act usage and growth in may be examined at the places specified increase in ACT fees since the Service trade volume as well as the number of in Item IV below. The NASD has became operational in the fourth quarter securities subject to the NASD’s trade prepared summaries, set forth in of 1989.2 The necessity for this fee reporting requirements. Between 1989 Sections (A), (B), and (C) below, of the change traces to expanded ACT usage as and 1993, the total share volume of most significant aspects of such a result of (i) increased trading volumes Nasdaq grew from 33.5 to 66.5 billion statements. in The Nasdaq Stock Market (‘‘Nasdaq’’) shares, an increase of 98.5%. For the and in the segment of the over-the- first ten months of 1994, the counter (‘‘OTC’’) equities market corresponding figure is approximately supported by the OTC Bulletin Board 62 billion shares. With respect to growth 4 17 CFR 200.30–3(a)(12). 2 See Securities Exchange Act Release No. 27551 1 The computer facilities that support the (December 19, 1989); 54 FR 53408 (December 28, provision of ACT are operated by The Nasdaq Stock 1989). Market, Inc. (‘‘NSMI’’), a wholly owned subsidiary of the NASD. 1816 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices in the number of Nasdaq-listed ACT participants. The proposed fee Commission, 450 Fifth Street, N.W., securities, there were 4,965 Nasdaq increase is the first such increase since Washington, D.C. 20549. Copies of the listings at year-end 1989 compared with ACT became operational in 1989 and is submission, all subsequent 5,731 in October, 1994; this represents necessary to offset the network costs amendments, all written statements an increase of 15.5%. Real-trade associated with delivering ACT to with respect to the proposed rule reporting for OTC equities was initiated approximately 1300 member firms.6 As change that are filed with the in December, 1993 with a total of 3,652 noted above, the increased network Commission, and all written issues in the OTCBB at year-end. By costs which this proposal is designed to communications relating to the October, 1994, this figure increased to recoup have occurred as a result of the proposed rule change between the 5,168 issues, which represents an NASD’s expanded trade reporting Commission and any person, other than increase of 41.5%.3 Thus, at the present requirements, the growth in trade those that may be withheld from the time, NASD members routinely use the volume experienced by the Nasdaq and public in accordance with the Service to report and compare trades in OTCBB market segments in recent years, provisions of 5 U.S.C. 552, will be nearly 11,000 securities. The foregoing and the roll-out of the NWII. In light of available for inspection and copying in information was factored into the these factors, the NASD and NSMI the Commission’s Public Reference calculation of the revised ACT fees. submit that the proposed increase in Room. Copies of such filing with also be Additionally, the proposal is designed ACT fees is necessary and appropriate available for inspection and copying at to recoup certain network costs to achieve an equitable allocation of the principal office of the NASD. All attributable to provisions of ACT reasonable fees among NASD members submissions should refer to the file through the Enterprise Wide Network using the Service. (‘‘EWN’’).4 The EWN is the number in the caption above (SR– communications component of Nasdaq’s (B) Self-Regulatory Organization’s NASD–94–73) and should be submitted system upgrade which will deliver the Statement on Burden on Competition by [insert date 21 days from the date of second generation of Nasdaq The NASD does not believe that the publication]. Workstation service functionality proposed rule change will result in any For the Commission, by the Division of (‘‘NWII’’) to market participants. NWII is burden on competition that is not Market Regulation, pursuant to delegated currently being phased-in. While the necessary or appropriate in furtherance authority.7 NWII phase-in proceeds, ACT of the purposes of the Act, as amended. Margaret H. McFarland, functionality must be provided via the (C) Self-Regulatory Organization’s Deputy Secretary. EWN as well as the older network. Statement on Comments on the [FR Doc. 94–192 Filed 1–4–95; 8:45 am] Therefore, a portion of the fee increase Proposed Rule Change Received From BILLING CODE 8010±01±M will recoup the network costs associated Members, Participants, or Others with providing ACT to member firms using the NWII service.5 Written comments were neither The NASD believe that the proposed solicited nor received. [Release No. 34±35167; File No. SR±NASD± rule change is consistent with the III. Date of Effectiveness of the 94±75] requirements of Section 15A(b)(5) of the Proposed Rule Change and Timing for Act. Section 15A(b)(5) specifies that the Commission Action Self-Regulatory Organizations; Notice rules of a national securities association of Filing and Immediate Effectiveness shall provide for the equitable allocation The foregoing rule change has become of Proposed Rule Change by National of reasonable dues, fees, and other effective pursuant to Section 19(b)(3)(A) Association of Securities Dealers, Inc. charges among members, issuers, and of the Act and subparagraph (e) of Relating to the Modification of Filing other persons using any facility or Securities Exchange Act Rule 19b–4 Fees Under Sections 43(e) and 44(e) of system that the association operates or because the proposal constitutes a the NASD's Code of Arbitration controls. In this instance, the increased change in a due, fee, or other charge for Procedure fees being proposed relate to a package a package of automated services of automation services available only to provided only to NASD member firms. December 28, 1994. At any time within 60 days of the filing NASD member firms that qualify as Pursuant to Section 19(b)(1) of the of such proposed rule change, the Commission may summarily abrogate Securities Exchange Act of 1934 3 Additionally, ACT processes trade reports and (‘‘Act’’), 15 U.S.C. 78s(b)(1), notice is effects trade comparisons on approximately 1,000 such rule change if it appears to the OTC equities that are not quoted in the OTCBB. Commission that such action is hereby given that on December 13, 1994, This subset of OTC equities is characterized by necessary or appropriate in the public the National Association of Securities moderate trade volume and the regular submission interest, for the protection of investors, Dealers, Inc. (‘‘NASD’’ or ‘‘Association’’) of trade reports by member firms. filed with the Securities and Exchange 4 The EWN will increase the capacity of the or otherwise in furtherance of the communications network supporting Nasdaq more purposes of the Act. Commission (‘‘SEC’’ or ‘‘Commission’’) than fivefold (9,600 baud to 56,000 baud). The the proposed rule change as described software driving NWII is windows-based and will IV. Solicitation of Comments in Items I, II, and III below, which Items contain a number of data management features that Interested persons are invited to have been prepared by the NASD. The are not available in the original Nasdaq Workstation service that resides in the 9600 baud network. submit written data, views, and NASD has designated this proposal as 5 Section (a)(2) of the Rules of Practice and arguments concerning the foregoing. one establishing or changing a fee under Procedure for the Automated Confirmation Persons making written submissions Section 19(b)(3)(A)(ii) of the Act, which Transaction Service defines an ACT participant to should file six copies thereof with the renders the rule effective upon the be a member firm registered with the NASD in a market making capacity, or a member firm that Secretary, Securities and Exchange Commission’s receipt of this filing. The functions as an order entry firm, a clearing broker- Commission is publishing this notice to dealer, correspondent executing broker-dealer, or 6 During the second half of 1995, ACT fees and solicit comments on the proposed rule introducing broker-dealer. Because ACT ACT-related network costs will be reviewed to change from interested persons. participation is defined in this manner, ACT fees determine if the 1995 increase was sufficient to are only assessed against those member firms that recover those costs. That review may reveal that a actually use the Service. further increase is necessary. 7 17 CFR 200.30–3(a)(12). Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices 1817 I. Self-Regulatory Organization’s provisions of Section 15A(b)(5) 1 of the with respect to the proposed rule Statement of the Terms of Substance of Act, which require that the rules of the change that are filed with the the Proposed Rule Change Association provide for the equitable Commission, and all written The NASD is proposing to amend allocation of reasonable dues, fees and communications relating to the Sections 43(e) and 44(e) of the Code of other charges among members, and the proposed rule change between the Arbitration Procedure (‘‘Code’’) to provisions of Section 15A(b)(6) of the Commission and any person, other than modify the non-refundable filing fee for Act, which require that the rules of the those that may be withheld from the industry parties when submitting Association be designed to prevent public in accordance with the claims, disputes or controversies which fraudulent and manipulative acts, provisions of 5 U.S.C. 552, will be do not involve, disclose or specify promote just and equitable principles of available for inspection and copying in monetary relief. trade, and protect investors and the the Commission’s Public Reference public interest, in that the proposed rule Room. Copies of such filing will also be II. Self-Regulatory Organization’s clarifies that the correct filing fee for available for inspection and copying at Statement of the Purpose of, and industry parties in an arbitration case, the principal office of the NASD. All Statutory Basis for, the Proposed Rule regardless of whether an amount of submissions should refer to the file Change claim is stated, is $500, which prevents number in the caption above (SR– In its filing with the Commission, the industry parties from unfairly and NASD–94–75) and should be submitted NASD included statements concerning improperly avoiding the proper amount by [insert date 21 days from the date of the purpose of and basis for the of fees to be assessed when filing a publication]. proposed rule change and discussed any claim under the Code. For the Commission, by the Division of comments it received on the proposed (B) Self-Regulatory Organization’s Market Regulation, pursuant to delegated rule change. The text of these statements Statement on Burden on Competition authority, 17 CFR 200.30–3(a)(12). may be examined at the places specified Margaret H. McFarland, The NASD does not believe that the in Item IV below. The NASD has Deputy Secretary. prepared summaries, set forth in proposed rule change will result in any [FR Doc. 95–193 Filed 1–4–95; 8:45 am] Sections (A), (B), and (C) below, of the burden on competition that is not most significant aspects of such necessary or appropriate in furtherance BILLING CODE 8010±01±M statements. of the purposes of the Act, as amended. (A) Self-Regulatory Organization’s (C) Self-Regulatory Organization’s [Release No. 34±35170; File No. SR±NASD± 94±74] Statement of the Purpose of, and Statement on Comments on the Statutory Basis for, the Proposed Rule Proposed Rule Change Received From Self-Regulatory Organizations; Notice Change Members, Participants, or Others of Filing and Immediate Effectiveness The Code presently provides in Written comments were neither of Proposed Rule Change by National Section 43(a) that an industry claimant solicited nor received. Association of Securities Dealers, Inc. whose dispute, claim or controversy Relating to Member Arbitration III. Date of Effectiveness of the involves, discloses or specifies a money Surcharge Proposed Rule Change and Timing for claim, regardless of the amount, must Commission Action submit a non-refundable claim filing fee December 28, 1994. of $500. However, the Code also The foregoing rule change has become Pursaunt to Section 19(b)(1) of the provides in Sections 43(e) and 44(e) that effective upon filing pursuant to Section Securities Exchange Act of 1934 any party, including public customers 19(b)(3)(A)(ii) of the Act and (‘‘Act’’), 15 U.S.C. 78s(b)(1), notice is and industry parties, whose dispute, subparagraph (e) of Rule 19b–4 hereby given that on December 8, 1994, claim or controversy does not involve, thereunder in that it constitutes a due, the National Association of Securities disclose or specify monetary damages fee or other charge. Dealers, Inc. (‘‘NASD’’ or ‘‘Association’’) shall submit a non-refundable filing fee At any time within 60 days of the filed with the Securities and Exchange of only $250. filing of a rule change pursuant to Commission (‘‘SEC’’ or ‘‘Commission’’) The NASD has determined that there Section 19(b)(3)(A) of the Act, the the proposed rule change as described have been situations in which industry Commission may summarily abrogate in Items I, II, and III below, which Items parties have purposely not disclosed the the rule change if it appears to the have been prepared by the NASD. The monetary amount of their claim in order Commission that such action is NASD has designated this proposal as to reduce the non-refundable fee from necessary or appropriate in the public one establishing or changing a fee under $500 to $250. Therefore, the NASD is interest, for the protection of investors, Section 19(b)(3)(A)(ii) of the Act, which proposing to amend Sections 43(e) and or otherwise in furtherance of the renders the rule effective upon the 44(e) of the Code to require that a purposes of the Act. Commission’s receipt of this filing. The uniform, non-refundable $500 filing fee Commission is publishing this notice to be assessed against all industry parties, IV. Solicitation of Comments solicit comments on the proposed rule regardless of whether the dispute, claim Interested persons are invited to change from interested persons. or controversy involves, discloses or submit written data, views, and I. Self-Regulatory Organization’s specifies a money claim. However, arguments concerning the foregoing. Statement of the Terms of Substance of Section 43(e) will retain the current Persons making written submissions the Proposed Rule Change claim-filing fee of $250 for public should file six copies thereof with the customers whose dispute, claim or Secretary, Securities and Exchange The NASD is proposing a rule change controversy does not involve, disclose, Commission, 450 Fifth Street, NW., to the Code of Arbitration Procedure or specify a money-claim. Washington, DC 20549. Copies of the amending Section 45(a) to adjust the The NASD believes that the proposed submission, all subsequent surcharge on members applied to all rule change is consistent with the amendments, all written statements new case filings from a flat rate to a graduated rate based on the amount in 1 15 U.S.C. § 78o–3. dispute. Proposed new language is in 1818 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices italics; proposed deletions are in order to offset significantly increasing IV. Solicitation of Comments brackets. resourcing needs resulting from, among Interested persons are invited to other things, case growth and increased Part III—Uniform Code of Arbitration submit written data, views, and arbitrator recruitment and training. arguments concerning the foregoing. * * * * * However, the NASD has long recognized Persons making submissions should file Member Surcharge that the amount in dispute in arbitration six copies thereof with the Secretary, cases and controversies is generally Sec. 45. Securities and Exchange Commission, directly proportional to the amount of 450 Fifth Street, NW., Washington, DC (a) Each member who is named as a resources the NASD needs to expend in party to an arbitration proceeding, 20549. Copies of the submission, all order to resolve the case or controversy. subsequent amendments, all written whether in a Claim, Counterclaim, In recognition of the fact that larger Crossclaim or Third-Party claim, shall statements with respect to the proposed cases require greater resources, the rule change that are filed with the be assessed a [$200] non-refundable NASD is proposing to replace the flat surcharge pursuant to the schedule Commission, and all written surcharge of $200 in Section 45 with a communications relating to the below when the Arbitration Department graduated surcharge based on the perfects service of the claim naming the proposed rule change between the amount in dispute, ranging from a low Commission and any person, other than member on any party to the proceeding. surcharge of $100 for amounts in For each associated person who is those that may be withheld from the dispute not exceeding $10,000 to public in accordance with the named, the surcharge shall be assessed surcharge of $500 for amounts in against the member or members which provisions of 5 U.S.C. 552, will be dispute exceeding $500,000. available for inspection and copying in employed the associated person at the The NASD believes that the proposed the Commission’s Public Reference time of the events which gave rise to the rule change is consistent with the Room. Copies of such filing will also be dispute, claim or controversy. No provisions of Section 15A(b)(5) of the available for inspection and copying at member shall be assessed more than a Act,1 which require that the rules of the the principal office of the NASD. All single surcharge in any arbitration Association provide for the equitable submissions should refer to the file proceeding. The surcharge shall not be allocation of reasonable dues, fees and number in the caption above and should subject to reimbursement under other charges among members in that be submitted by January 26, 1995. Subsections 43(c) and 44(c) of the Code. the proposed rule fairly adjusts the surcharge on members for new cases to For the Commission, by the Division of Amount in Dispute Sur- more closely reflect the costs associated Market Regulation, pursuant to delegated charge authority.2 with resolving controversies involving Margaret H. McFarland, $.01Ð$10,000 ...... $100 varying amounts in dispute. Deputy Secretary. $10,000.01Ð$50,000 ...... 200 (B) Self-Regulatory Organization’s $50,000.01Ð$100,000 ...... 300 [FR Doc. 95–194 Filed 1–4–95; 8:45 am] $100,000.01Ð$500,000 ...... 350 Statement on Burden on Competition BILLING CODE 8010±01±M Over $500,000 ...... 500 The NASD does not believe that the proposed rule change will result in any (b) For purposes of this Section, [Release No. 34±35171; File No. SR±NYSE± burden on competition that is not 94±46] service is perfected when the Director of necessary or appropriate in furtherance Arbitration properly serves the of the purposes of the Act, as amended. Self-Regulatory Organizations; Notice Respondents to such proceeding under of Filing of Proposed Rule Change by Subsection 25(a) of the Code. (C) Self-Regulatory Organization’s Statement on Comments on the the New York Stock Exchange, Inc. II. Self-Regulatory Organization’s Proposed Rule Change Received From Relating to Amendments to the New Statement of the Purpose of, and Members, Participants, or Others York Stock Exchange's Specialist Statutory Basis for, the Proposed Rule Combination Review Policy Written comments were neither Change solicited nor received. December 28, 1994. In its filing with the Commission, the Pursuant to Section 19(b)(1) of the NASD included statements concerning III. Date of Effectiveness of the Securities Exchange Act of 1934 the purpose of and basis for the Proposed Rule Change and Timing For (‘‘Act’’), 15 U.S.C. § 78s(b)(1), notice is proposed rule change and discussed any Commission Action hereby given that on December 9, 1994, comments it received on the proposed The foregoing rule change has become the New York Stock Exchange, Inc. rule change. The text of these statements effective upon filing pursuant to Section (‘‘NYSE’’ or ‘‘Exchange’’) filed with the may be examined at the places specified 19(b)(3)(A)(ii) of the Act and Securities and Exchange Commission in Item IV below. The NASD has subparagraph (e) of Rule 19b–4 (‘‘Commission’’) the proposed rule prepared summaries, set forth in thereunder in that it constitutes a due, change as described in Items I, II and III Sections (A), (B), and (C) below, of the fee or other charge. below, which Items have been prepared most significant aspects of such At any time within 60 days of the by the self-regulatory organization. The statements. filing of a rule change pursuant to Commission is publishing this notice to Section 19(b)(3)(A) of the Act, the (A) Self-Regulatory Organization’s solicit comments on the proposed rule Commission may summarily abrogate change from interested persons. Statement of the Purpose of, and the rule change if it appears to the Statutory Basis for, the Proposed Rule Commission that such action is I. Self-Regulatory Organization’s Change necessary or appropriate in the public Statement of the Terms of Substance of In early 1994, the NASD added new interest, for the protection of investors, the Proposed Rule Change Section 45 to the Code requiring any or otherwise in furtherance of the The proposed rule change consists of member named as a party to an purposes of the Act. amendments to the New York Stock arbitration proceeding to be assessed a non-refundable, flat $200 surcharge in 1 15 U.S.C. § 78o–3. 2 17 CFR 200.30–3(a)(12) Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices 1819 Exchange’s Specialist Combination Committee also considers the proposed requirement specified in Rule 104.20 2 Review Policy (the ‘‘Policy’’) which unit’s commitment to the Exchange with respect to the combined entity’s would require proponents of certain market and the effect of the proposed stocks; specialist unit combinations to address combination on overall concentration of • Agree to maintain 2 times (2.5 issues related to the capitalization, risk specialist organizations. times, in the case of a 15% combination) management, and operational efficiency Where a proposed combination would the capital requirement specified in of large sized specialist units. result in a specialist unit which Rule 104.20 with respect to each of the accounts for more than ten percent of a combined entity’s stocks that are II. Self-Regulatory Organization’s concentration measure, the primary component stocks of the Standard and Statement of the Purpose of, and consideration during the Committee’s Poor’s 500 Stock Price Index; and Statutory Basis for, the Proposed Rule review is the effect of the proposed • Agree that all capital required to be Change combination on overall concentration of dedicated to specialist operations be In its filing with the Commission, the specialist units. If the new unit accounts accounted for separate and apart from self-regulatory organization included for more than ten percent, but less than any other capital of the combined entity, statements concerning the purpose of or equal to 15%, of a concentration and that such specialist capital may not and basis for the proposed rule change measure, the Policy requires the be used for any other aspect of the and discussed any comments it received proponents of the combination to prove, combined entity’s operations. on the proposed rule change. The text by a preponderance of the evidence, that The Exchange is also proposing to of these statements may be examined at the proposed combination: require that proponents of a proposed the places specified in Item IV below. (i) would not cause detrimental combination that would result in a The self-regulatory organization has concentration, in the specialist business, specialist unit accounting for more than prepared summaries, set forth in to the Exchange and its markets; five percent, but less than or equal to Sections A, B, and C below, of the most (ii) would foster competition among 10%, of a concentration measure, significant aspects of such statements. specialist units; and maintain 1.5 times the capital (iii) would enhance the performance requirement specified in Rule 104.20 A. Self-Regulatory Organization’s of the constituent specialist unit and the with respect to each of the combined Statement of the Purpose of, and quality of the markets in the stocks entity’s stocks that are components Statutory Basis for, the Proposed Rule involved. stocks of the Standard and Poor’s 500 Change The Policy also requires the Stock Price Index. 1. Purpose proponents of any combination greater The Exchange believes that these new than ten percent, but less than 15%, to requirements are appropriate in that the The purpose of the proposed rule prove, by a preponderance of the requirements are intended to minimize change is to provide uniformity to the evidence, that the proposed the risk of financial and/or operational Quality of Markets Committee’s combination, if approved, is otherwise failure of larger-sized units, and to consideration of combinations of in the public’s interest. ensure that such units have sufficient, specialist units with respect to matters Where the proposed combination separately dedicated capital with which of capitalization, risk management, and would result in a specialist unit which to meet their market making operational efficiency. accounts for greater than 15% of a responsibilities. The Policy requires Exchange concentration measure, the Policy approval of proposed specialist unit requires the proponents of the 2. Statutory Basis combinations exceeding five percent of combination to provide clear and The basis under the Securities any one of four concentration convincing evidence of the factors Exchange Act of 1934 (the ‘‘Act’’) for measures.1 In any instance where a stated in (i) through (iii) above. The this proposed rule change is the proposed combination will result in a proponents of the combination would requirement under Section 6(b)(5) that specialist unit accounting for more than also be required to provide clear and an Exchange have rules that are five percent of any concentration convincing evidence that the proposed designed to promote just and equitable measure, the Exchange’s Quality of combination is otherwise in the public’s principles of trade, to remove Markets Committee (the ‘‘Committee’’) interest. impediments to and perfect the is required to conduct a review of the The Exchange is proposing to amend mechanism of a free and open market proposed combination. This review the Policy to add several requirements and a national market system and, in includes an analysis of specialist which address issues related to the general, to protect investors and the performance and market quality in the capitalization, risk management, and public interest. The proposed stocks subject to the proposed operational efficiency of large sized amendments are consistent with these combination. The Committee looks at specialist units. The proposed rule objectives in that they address concerns the effects of the proposed combination changes require proponents of a about capitalization, operational in terms of strengthening the capital combination that would exceed 10% of efficiency, and risk management where base of the new unit, minimizing the a concentration measure to: proposed combinations would result in potential for financial failure of the new • Submit an acceptable risk large sized specialist units. unit and maintaining or increasing management plan with respect to any operational efficiencies within the line of business in which they engage; B. Self-Regulatory Organization’s resulting specialist organization. The • Submit an operational certification Statement on Burden on Competition prepared by an independent, nationally The Exchange does not believe that 1 The measures include specialist share of: recognized management consulting the proposed rule change will impose • Allocation for all listed common stocks organization with respect to all aspects • Allocation for the 250 most active listed of the firm’s management and 2 NYSE Rule 104.20 lists the capital requirements common stocks operations; of specialist units with respect to the requisite: • Total share volume of stock trading on the • position of trading units it is capable of assuming Exchange Agree to maintain a minimum of 1.5 for various forms of securities; net liquid assets; and • Total dollar value of stock trading on the times (2 times, in the case of a 15% minimum capital requirement it is capable of Exchange. combination) the total capital meeting with its own net liquid assets. 1820 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices any burden on competition that is not [Release No. 34±35172; File No. SR±NASD± under interim approval that expires on necessary or appropriate in furtherance 94±79] December 31, 1994.3 of the purposes of the Act. The NASD hereby files this proposed Self-Regulatory Organizations; Notice rule change, pursuant to Section C. Self-Regulatory Organization’s of Filing and Order Granting 19(b)(1) of the Act and Rule 19b–4 Statement on Comments on the Accelerated Approval of Proposed thereunder, to obtain authorization for Proposed Rule Change Received From Rule Change by the National an interim extension of the Service Members, Participants, or Others Association of Securities Dealers, Inc., through January 31, 1995. During this Relating to an Interim Extension of the interval, there will be no material The Exchange has neither solicited OTC Bulletin Board Service Through change in the OTCBB Service’s not received written comments on the January 31, 1995 operational features, absent Commission proposed rule change. December 28, 1994. approval of a corresponding Rule 19b– III. Date of Effectiveness of the Pursuant to Section 19(b)(1) of the 4 filing. Proposed Rule Change and Timing for Securities Exchange Act of 1934 II. Self-Regulatory Organization’s Commission Action (‘‘Act’’), 15 U.S.C. 78s(b)(1), notice is Statement of the Purpose of, and hereby given that on December 23, 1994, Statutory Basis for, the Proposed Rule Within 35 days of the publication of the National Association of Securities Change this notice in the Federal Register or Dealers, Inc. (‘‘NASD’’) filed with the In its filing with the Commission, the within such longer period (i) as the Securities and Exchange Commission NASD included statements concerning Commission may designate up to 90 (‘‘Commission’’) the proposed rule the purpose of and basis for the days of such date if its finds such longer change as described in Items I, II and III below, which Items have been prepared proposed rule change and discussed any period to be appropriate and publishes comments it received on the proposed its reasons for so finding or (ii) as to by the NASD. The Commission is publishing this notice to solicit rule change. The text of these statements which the self-regulatory organization may be examined at the places specified consents, the Commission will: comments on the proposed rule change from interested persons and is in Item IV below. The NASD has (A) by order approve the proposed simultaneously approving the proposal. prepared summaries, set forth in rule change, or Sections (A), (B), and (C) below, of the I. Self-Regulatory Organization’s most significant aspects of such (B) institute proceedings to determine Statement of the Terms of Substance of statements. whether the proposed rule change the Proposed Rule Change should be disapproved. A. Self-Regulatory Organization’s On June 1, 1990, the NASD, through Statement of the Purpose of, and IV. Solicitation of Comments a subsidiary corporation, initiated Statutory Basis for, the Proposed Rule operation of the OTC Bulletin Board Change Interested persons are invited to Service (‘‘OTCBB Service’’ or ‘‘Service’’) submit written data, views and in accord with the Commission’s 1. Purpose arguments concerning the foregoing. approval of File No. SR–NASD–88–19, The purpose of this filing is to ensure Persons making written submissions as amended.1 The OTCBB Service continuity in the operation of the should file six copies thereof with the provides a real-time quotation medium OTCBB Service while the Commission Secretary, Securities and Exchange that NASD member firms can elect to considers an earlier NASD rule filing Commission, 450 Fifth Street, N.W., use to enter, update, and retrieve (File No. SR–NASD–92–7) that Washington, D.C. 20549. Copies of the quotation information (including requested permanent approval of the submission, all subsequent unpriced indications of interest) for Service.4 For the month ending amendments, all written statements securities traded over-the-counter that November 30, 1994, the Service with respect to the proposed rule are neither listed on The Nasdaq Stock reflected the market making positions of change that are filed with the MarketSM nor on a primary national 378 NASD member firms displaying Commission, and all written securities exchange (collectively quotations/indications of interest in communications relating to the referred to as ‘‘OTC’’ Equities’’).2 approximately 5,223 OTC Equities. proposed rule change between the Essentially, the Service supports NASD During the proposed extension, Commission and any person, other than members’ market making in OTC foreign securities and American those that may be withheld from the Equities through authorized Nasdaq Depositary Receipts (collectively, public in accordance with the Workstation units. Real-time access to ‘‘foreign/ADR issues’’) will remain provisions of 5 U.S.C. § 552, will be quotation information captured in the subject to the twice-daily, update available for inspection and copying at Service is available to subscribers of limitation that traces back to the the Commission’s Public Reference Level 2/3 Nasdaq service as well as Commission’s original approval of the subscribers of vendor-sponsored OTCBB Service’s operation. As a result, Section, 450 Fifth Street, N.W., services that now carry OTCBB Service all priced bids/offers displayed in the Washington, D.C. 20549. Copies of such data. The Service is currently operating Service for foreign/ADR issues will filing will also be available for remain indicative. inspection and copying at the principal 1 Securities Exchange Act Release No. 27975 (May office of the NYSE. All submissions 1, 1990), 55 FR 19124 (May 8, 1990). 3 Securities Exchange Act Release No. 34613 should refer to File No. SR–NYSE–94– 2 With the Commission’s January 1994 approval (August 30, 1994), 59 FR 46278. 46 and should be submitted by January of File No. SR–NASD–93–24, the universe of 4 The Commission notes that the NASD has filed securities eligible for quotation in the OTCBB now with the Commission Amendment Nos. 1 and 2 to 26, 1995. includes certain equities listed on regional stock File No. SR–NASD–92–07, concerning the exchanges that do not qualify for dissemination of eligibility of unregistered foreign securities and Margaret H. McFarland, transaction reports via the facilities of the American Depositary Receipts for inclusion in the Deputy Secretary. Consolidated Tape Association. Securities OTCBB. The amendments were published in the [FR Doc. 95–232 Filed 1–4–94; 8:45 am] Exchange Act Release No. 33507 (January 24, 1994), Federal Register for comment on November 18, 59 FR 4300 (order approving File No. SR–NASD– 1994. See Securities Exchange Act Release No. BILLING CODE 8010±01±M 93–24). 34956 (November 9, 1994), 59 FR 59808. Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices 1821 In conjunction with the start-up of the quotations, and promoting orderly Part XII of Schedule D to the NASD By- Service in 1990, the NASD implemented procedures for collecting and Laws. a filing requirement (under Section 4 of disseminating quotations. Finally, IV. Solicitation of Comments Schedule H to the NASD By-Laws) and Section 17B contains Congressional review procedures to verify member findings and directives respecting the Interested persons are invited to firms’ compliance with Rule 15c2-11 collection and distribution of quotation submit written data, views, and under the Act. During the proposed information on low-priced equity arguments concerning the foregoing. extensions, this review process will securities that are neither Nasdaq nor Persons making written submissions continue to be an important component exchange-listed. should file six copies thereof with the of the NASD’s oversight of broker- The NASD believes that extension of Secretary, Securities and Exchange dealers’ market making in OTC Equities. the Service through January 31, 1995, is Commission, 450 Fifth Street, N.W., The NASD also expects to work closely fully consistent with the foregoing Washington, DC 20549. Copies of the with the Commission staff in developing provisions of the Act. submission, all subsequent further enhancements to the Service to B. Self-Regulatory Organization’s amendments, all written statements fulfill the market structure requirements Statement on Burden on Competition with respect to the proposed rule mandated by the Securities Enforcement change that are filed with the Remedies and Penny Stock Reform Act The NASD believes that the rule Commission, and all written of 1990, particularly Section 17B of the change will not result in any burden on communications relating to the Act.5 The NASD notes that competition that is not necessary or proposed rule change between the implementation of the Reform Act appropriate in furtherance of the Commission and any person, other than entails Commission rulemaking in purposes of the Act. those that may be withheld from the several areas, including the C. Self-Regulatory Organization’s public in accordance with the development of mechanisms for Statement on Comments on the provisions of 5 U.S.C. 552, will be gathering and disseminating reliable Proposed Rule Change Received From available for inspection and copying in quotation/transaction information for Members, Participants, or Others the Commission’s Public Reference ‘‘penny stocks.’’ Written comments were neither Room. Copies of such filing will also be 2. Statutory Basis solicited nor received. available for inspection and copying at the principal office of the NASD. All The NASD believes that the proposed III. Date of Effectiveness of the submissions should refer to the file rule change is consistent with Sections Proposed Rule Change and Timing for number in the caption above and should 11A(a)(1), 15A(b) (6) and (11), and Commission Action be submitted by [insert date 21 days Section 17B of the Act. Section from the date of publication]. 11A(a)(1) sets forth the Congressional The NASD requests that the findings and policy goals respecting Commission find good cause, pursuant V. Commission’s Findings and Order operational enhancements to the to Section 19(b)(2) of the Act, for Granting Accelerated Approval securities markets. Basically, the approving the proposed rule change Congress found that new data prior to the 30th day after its The Commission finds that approval processing and communications publication in the Federal Register to of the proposed rule change is techniques should be applied to avoid any interruption of the Service. consistent with the Act and the rules improve the efficiency of market The current authorization for the and regulations thereunder and, in operations, broaden the distribution of Service extends through December 31, particular, with the requirements of market information, and foster 1994. Hence it is imperative that the Section 15A(b)(11) of the Act, which competition among market participants. Commission approve the instant filing provides that the rules of the NASD Section 15A(b)(6) requires, among other on or before that date. Otherwise, the relating to quotations must be designed things, that the NASD’s rules promote NASD will be required to suspend to produce fair and informative just and equitable principles of trade, operation of the Service pending quotations, prevent fictitious or facilitate securities transactions, and Commission action on the proposed misleading quotations, and promote protect public investors. Subsection (11) extension. orderly quotations, and promote orderly thereunder authorizes the NASD to The NASD believes that accelerated procedures for collecting, distributing, adopt rules governing the form and approval is appropriate to ensure and publishing quotations. content of quotations for securities continuity in the Service’s operation The Commission finds good cause for traded over-the-counter for the purposes pending a determination on permanent approving the proposed rule change of producing fair and informative status for the Service, as requested in prior to the 30th day after the date of quotations, preventing misleading File No. SR–NASD–92–7. Continued publishing notice of the filing thereof. operation of the Service will ensure the Accelerated approval of the NASD’s 5 On November 24, 1992, the NASD filed an availability of an electronic quotation proposal is appropriate to ensure application with the Commission for interim medium to support member firms’ continuity in the Service’s operation as designation of the Service as an automated market making in approximately 5,223 an electronic quotation medium that quotation system pursuant to Section 17B(b) of the Act. On December 30, 1992, the Commission OTC Equities and the widespread supports NASD members’ market granted Qualifying Electronic Quotation System dissemination of quotation information making in these securities and that (‘‘QEQS’’) status for the Service for purposes of on these securities. The Service’s facilitates price discovery and the certain penny stock rules that became effective on operation also expedites price discovery execution of customers’ orders at the January 1, 1993. On August 26, 1993, the Commission granted the NASD’s request for an and facilitates the execution of customer best available price. Additionally, extension of QEQS status until such time as the orders at the best available price. From continued operation of the Service will OTCBB meets the statutory requirements of Section a regulatory standpoint, the NASD’s materially assist the NASD’s 17B(b)(2). Finally, on May 13, 1994, the NASD filed capture of quotation data from surveillance of its members trading in an application with the Commission for permanent designation of the Service as an automated participating market makers OTC Equities that are eligible and quotations system for penny stocks pursuant to supplements the price and volume data quoted in the Service, and in non-Tape Section 17B(b). reported by member firms pursuant to B securities that are listed on regional 1822 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices exchanges and quoted in the OTCBB by responsible to the National Arbitration the Association or an Executive Vice NASD members. Committee and shall report to it at President may appoint an interim it is therefore ordered, pursuant to periodic intervals established by the Director to perform this functions and Section 19(b)(2) of the Act, that the Committee and at such other times as responsibilities of the Director. proposed rule change be, and hereby is, called upon by the Committee to do so. The NASD believes that the proposed approved for an interim period through The duties and functions of the Director rule change is consistent with the January 31, 1995. may be delegated by the Director, as provisions of Section 15A(b) of the Act 2 For the Commission, by the Division of appropriate. In the event of the in that the proposed rule change will Market Regulation, pursuant to delegated incapacitation, resignation, removal, or protect investors and the public interest authority, 17 CFR 200.30–3(a)(12) other permanent or indefinite inability by avoiding disruptions and uncertainly Margaret H. McFarland, of the Director to perform the duties and about the authority to Act under the Deputy Secretary. responsibilities of the Director, the Code by permitting the duties and [FR Doc. 95–231 Filed 1–4–95; 8:45 am] President or an Executive Vice President functions of the Director to be delegated of the Association may appoint an BILLING CODE 8010±01±M by the Director and by permitting interim Director. certain other NASD officers to appoint * * * * * an interim Director if certain [Release No. 34±35168; File No. SR±NASD± circumstances render the Director 94±77] II. Self-Regulatory Organization’s unable to discharge the duties vested in Statement of the Purpose of, and the Director. Self-Regulatory Organizations; Notice Statutory Basis for, the Proposed Rule of Filing of Proposed Rule Change by Change (B) Self-Regulatory Organization’s National Association of Securities In its filing with the Commission, the Statement on Burden on Competition Dealers, Inc. Relating To Granting the NASD included statements concerning The NASD does not believe that the Director of Arbitration the Authority to the purpose of and basis for the proposed rule change will result in any Delegate Duties Under the Code of proposed rule change and discussed any burden on competition that is not Arbitration Procedure comments it received on the proposed necessary or appropriate in furtherance December 29, 1994. rule change. The text of these statements of the purposes of the Act, as amended. Pursuant to Section 19(b)(1) of the may be examined at the places specified in Item IV below. The NASD has (C) Self-Regulatory Organization’s Securities Exchange Act of 1934 Statement on Comments on the (‘‘Act’’), 15 U.S.C. 78s(b)(1), notice is prepared summaries, set forth in Sections (A), (B), and (C) below, of the Proposed Rule Change Received From hereby given that on December 20, 1994, Members, Participants, or Others the National Association of Securities most significant aspects of such The proposed rule change was Dealers, Inc. (‘‘NASD’’ or ‘‘Association’’) statements. published for comment by the SEC as filed with the Securities and Exchange (A) Self-Regulatory Organization’s part of SR–NASD–93–51 in Securities Commission (‘‘SEC’’ or ‘‘Commission’’) Statements of the Purpose of, and Exchange Act Release No. 33108 the proposed rule change as described Statutory Basis for, the Proposed Rule (October 26, 1993), 58 FR 58573 in Items I, II, and III below, which Items Change (November 2, 1993). No comments were have been prepared by the NASD. The The current provisions of Section 3 of received by the SEC specifically Commission is publishing this notice to the Code provide for the appointment of directed at the proposed amendment to solicit comments on the proposed rule a Director of Arbitration by the NASD Section 3. change from interested persons. Board of Governors to perform all III. Date of Effectiveness of the I. Self-Regulatory Organization’s administrative duties and functions in Proposed Rule Change and Timing for Statement of the Terms of Substance of connection with matters submitted to Commission Action the Proposed Rule Change the NASD for arbitration. The Director has found it necessary to delegate Within 35 days of the date of The NASD is proposing to amend certain functions of the Director to publication of this notice in the Federal Section 3 of the Code of Arbitration senior management employees of the 1 Register or within such longer period (i) Procedure to expressly provide that the NASD’s Arbitration Department, as the Commission may designate up to Director of Arbitration may delegate especially as a result of the significant 90 days of such date if it finds such decision making authority as growth in the Department’s staff and longer period to be appropriate and appropriate. Below is the text of the workload. The NASD believes this publishes its reasons for so finding or proposed rule change. Proposed new delegation power is inherent in the (ii) as to which the self-regulatory language is in italics; proposed elections authority of the Director to manage the organization consents, the Commission are in brackets. functions of the NASD’s Arbitration will: Code of Arbitration Procedure Department. Nevertheless, the NASD is A. by order approve such proposed proposing to amend Section 3 of the rule change, or Director of Arbitration Code to expressly provide for such B. institute proceedings to determine Sec. 3. The Board of Governors of the delegation. whether the proposed rule change Association shall appoint a Director of The proposed rule change to Section should be disapproved. 3 provides that the duties and functions Arbitration (‘‘Director’’) who shall be IV. Solicitation of Comments charged with the performance of all of the Director may be delegated by the administrative duties and functions in Director as appropriate. Further, in the Interested persons are invited to connection with matters submitted for event that the Director is incapacitated, submit written data, views, and arbitration pursuant to this Code. The resigns, is removed or is permanently or arguments concerning the foregoing. Director [He] shall be directly indefinitely disabled from the Persons making written submissions performance of the duties and functions should file six copies thereof with the 1 NASD Manual, Code of Arbitration Procedure, of the Director, the proposed rule (CCH) ¶ 3703. change provides that the President of 2 15 U.S.C. § 78o–3. Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices 1823 Secretary, Securities and Exchange Paragraph S4.1.4 of FMVSS No. 208 type of automobiles generally drive Commission, 450 Fifth Street, N.W., requires that vehicles manufactured on these automobiles no more than 4000 Washington, D.C. 20549. Copies of the or after September 1, 1989, be equipped miles per year. submission, all subsequent with a restraint system at each front Excalibur has never planned to amendments, all written statements outboard designated seating position produce many JAC 427 Cobras due to with respect to the proposed rule that meets the standard’s frontal crash the limited capacity of its change that are filed with the protection requirements by means that manufacturing facilities and the nature Commission, and all written require no action by vehicle occupants. of its manufacturing process. For communications relating to the This type of system is referred to as an example, the highest monthly total of proposed rule change between the automatic restraint system. JAC 427 Cobra automobiles ever Commission and any person, other than Excalibur manufactured 59 model produced was 17. Only 59 of these those that may be withheld from the year 1993, 1994, and 1995 JAC 427 automobiles were produced for sale in public in accordance with the Cobras without automatic restraint the U.S. between January 1993 and provisions of 5 U.S.C. 552, will be systems. These vehicles all contain September 1994, a 21-month period. In available for inspection and copying in Type 2, three-point harness active 1995, Excalibur’s total planned the Commission’s Public Reference restraint systems. production is only 100–180 JAC 427 Room. Copes of such filing will also be Excalibur supports its application for Cobras for sale worldwide, or no more available for inspection and copying at inconsequential noncompliance with than 15 per month. Of the 100–180, only the principal office of the NASD. All the following. Excalibur also included a 60% of the JAC 427 Cobras, or 60–108, submissions should refer to the file brochure with pictures and a are proposed for sale in the U.S. description of the subject vehicles. This number in the caption above and should The collector’s nature of the JAC 427 be submitted by January 26, 1995. brochure is available in the NHTSA docket. Cobra, the low number of miles that For the Commission, by the Division of The 59 JAC 427 Cobras that are the these types of vehicles are driven on any Market Regulation, pursuant to delegated subject of this exemption petition all consistent basis, and the small number authority, 17 CFR 200.30–3(a)(12). contain Type 2, three-point harness of actual JAC 427 Cobras that do not Margaret H. McFarland, active restraint systems. Automatic comply with FMVSS 208 illustrate the Deputy Secretary. restraint systems are required for overall reduced safety risk of these [FR Doc. 95–230 Filed 1–4–95; 8:45 am] vehicles produced on or after September vehicles, especially when compared to BILLING CODE 8010±01±M 1, 1989. Bringing into compliance with the overall risk posed by the average use paragraph S4.1.4 of FMVSS 208 the 59 of the standard family passenger JAC 427 Cobras that are the subject of vehicle. Thus, the total effect of the this exemption petition would be very existence of only 59 JAC 427 DEPARTMENT OF TRANSPORTATION difficult from an engineering noncomplying automobiles—which are perspective, and whatever feasible meant for weekend pleasure driving—is National Highway Traffic Safety solutions may be available, would most inconsequential in relation to the Administration likely result in significant expense for overall level of motor vehicle safety in Excalibur, a small financially-strapped the U.S. [Docket No. 94±107; Notice 1] company. 2. The Safety Risk From Noncompliance As set forth below, Excalibur submits of Excalibur’s 59 JAC 427 Cobras With Excalibur Automobile Corp.; Receipt of that the overall safety risk from FMVSS 208 Is Inconsequential Due to Application for Decision of noncompliance with paragraph S4.1.4 of Probable Existing Cobra Safety Belt Use Inconsequential Noncompliance FMVSS 208 by the 59 JAC Cobras at and to Excalibur’s Proposal To Boost issue is inconsequential because of (1) Cobra Safety Belt Use Excalibur Automobile Corporation the vehicle’s specialized and limited use (Excalibur) of Milwaukee, Wisconsin, and small number and (2) Excalibur’s The use of safety belts has been has determined that some of its vehicles belief that Cobra owners have a shown to significantly reduce injuries fail to comply with the automatic relatively high level of safety belt use and fatalities in automobile crashes. See restraint system requirements of 49 CFR and Excalibur’s proposal to boost generally, NHTSA, Evaluation of the 571.208, Federal Motor Vehicle Safety further Cobra safety belt use by placing Effectiveness of Occupant Protection— Standard (FMVSS) No. 208, ‘‘Occupant a warning label in the vehicle. FMVSS 208 Interim Report, June 1992 Crash Protection,’’ and has filed an (hereinafter referred to as ‘‘Interim appropriate report pursuant to 49 CFR 1. The Overall Safety Risk From Report’’). Use of safety belts has Part 573, ‘‘Defect and Noncompliance Noncompliance of Excalibur’s 59 JAC increased dramatically since 1983 due Reports.’’ Excalibur has also applied to 427 Cobras With FMVSS 208 Is to the enactment of state mandatory be exempted from the notification and Inconsequential Given Their Specialized safety belt laws and the installation of remedy requirements of 49 U.S.C. And Limited Use and Small Number automatic safety belt systems. By May of Chapter 301—‘‘Motor Vehicle Safety’’ The JAC 427 Cobra is not an ordinary 1992, 42 states plus the District of on the basis that the noncompliance is passenger automobile designed for daily Columbia and Puerto Rico had enacted inconsequential to motor vehicle safety. use. It is a classically-styled automobile laws requiring the use of safety belts. This notice of receipt of an viewed as a collector’s item by Interim Report at v. Safety belt use application is published under 49 automobile purchasers. . . . The JAC overall increased nationwide to nearly U.S.C. 30118 and 30120 (formerly 427 Cobra is a convertible which seats 59% in late 1991, ranging from 24% in Section 157 of the National Traffic and two persons, and has a small trunk. As Mississippi to 83% in Hawaii. NHTSA, Motor Vehicle Safety Act (15 U.S.C. a result, it is not designed to be used as Effectiveness of Occupant Protection 1417)) and does not represent any a family’s primary passenger vehicle. Systems and Their Use—Report to agency decision or other exercise of Instead, the JAC 427 Cobra is typically Congress, January 1993. Manual safety judgment concerning the merits of the driven only short distances from an belt use nationwide reached 56% in application. owner’s home. Owners of these (sic) 1991, and may be even higher today due 1824 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices to increased safety awareness. See Comment closing date: February 6, a multipurpose passenger vehicle, was Interim Report at viii. 1995. not subject to coverage under 49 U.S.C. An informal survey of Excalibur (15 U.S.C. 1417; delegations of authority at chapter 331 Theft Prevention because automobile owners, including those of 49 CFR 1.50 and 501.8) the Land Cruiser’s gross vehicle weight the JAC 427 Cobra, revealed that these Dated: December 28, 1994. rating exceeded the statutory limitation owners on average are 45-year-old males Barry Felrice, of not more than 6,000 pounds. with greater incomes and higher levels In response to Toyota’s letter, NHTSA Associate Administrator for Rulemaking. of education than the general is making the necessary corrections to population. Unlike youthful segments of [FR Doc. 95–167 Filed 1–4–95; 8:45 am] the final theft data. NHTSA took into the population who are more prone to BILLING CODE 4910±59±M account all of Toyota’s corrections. As a reckless driving, Excalibur automobile result of the adjustments, the Toyota owners are predominantly established, [Docket No. 94±67; Notice 3] Land Cruiser, previously ranked No. 6 responsible people who value their was removed, reducing the number of RIN 2127±AE92 personal safety and the quality and vehicle lines listed for CY 1992 from uniqueness of their investment in an 215 to 214. Changes to the remaining 14 Excalibur automobile. As a result, Theft Data; Motor Vehicle Theft Prevention Standard Toyota lines were: the Toyota 4-Runner, Excalibur opines that the owners of the previously ranked No. 15 with a theft JAC 427 Cobras are more likely to be AGENCY: National Highway Traffic rate of 10.1542, is now ranked No. 16, wearing a safety belt while driving than Safety Administration (NHTSA), with a theft ranking of 9.7346; the other segments of the population, such Department of Transportation. Toyota Supra, previously ranked No. 60 as young single males. ACTION: Publication of final theft data; with a theft rate of 5.5556, is now To ensure even higher safety belt use correction. ranked No. 56 with a theft rate of in its JAC 427 Cobras, and thereby 5.7937; and the Toyota MR2, previously increase the safety of the driver and SUMMARY: This document corrects the ranked No. 66, with a theft rate of passenger, Excalibur proposes final data on thefts of model year 1992 5.2381, is now ranked No. 63 with a reminding in the strongest terms passenger motor vehicles that occurred theft rate of 5.3619. possible both the driver and passenger in calendar year 1992. The corrections The Toyota Corolla/Corolla Sport, of the consequences of not using their are based on information provided by previously ranked No. 72, with a theft safety belts. Excalibur would vehicle manufacturers. rate of 5.1778, is now ranked No. 74 accomplish this by posting a warning FOR FURTHER INFORMATION CONTACT: with a theft rate of 5.0594; the Toyota label plainly and clearly visible to both Ms. Barbara A. Gray, Office of Market Cressida, previously ranked No. 87, the driver and passenger which states as Incentives, NHTSA, 400 Seventh Street, follows: with a theft rate of 4.4737, is now S.W., Washington, D.C. 20590. Ms. ranked No. 86 with a theft rate of WARNING: YOU MUST USE THE Gray’s telephone number is (202) 366– 4.5057; the Toyota Celica, previously SEATBELT PROVIDED IN THIS VEHICLE. IT 1740. ranked No. 99 with a theft rate of IS THE LAW. FAILURE TO USE THE SEATBELT COULD RESULT IN SERIOUS SUPPLEMENTARY INFORMATION: On August 3.8929, is now ranked No. 142 with a INJURY OR DEATH SINCE THIS CAR DOES 8, 1994, NHTSA published the theft rate of 2.3936; the Toyota Paseo, NOT HAVE AN AIRBAG OR AUTOMATIC preliminary theft rates for calendar year previously ranked No. 107, with a theft RESTRAINT SYSTEM. 1992 passenger motor vehicles in the rate of 3.7162, is now ranked No. 103, Such a label should boost safety belt Federal Register (59 FR 40409). The with a theft rate of 3.7430; and the use by the drivers and passengers of the public was asked to comment on the Toyota Tercel, previously ranked No. 59 JAC 427 Cobras, making the safety accuracy of the data and to provide final 121, with a theft rate of 3.1452, is now risk inconsequential by comparison to production figures for individual ranked No. 118, with a theft rate of the safety risk associated with vehicle lines. NHTSA officials took the 3.1411. automobiles having automatic restraint precaution of contacting individual The Toyota Camry, previously ranked systems. manufacturers by telephone, asking No. 133 with a theft rate of 2.6462, is Interested persons are invited to them to submit in writing any necessary now ranked No. 130, with a theft rate of submit written data, views, and corrections of the preliminary data. Ten 2.6455; the Toyota Lexus SC, previously arguments on the application of manufacturers provided written ranked 137 with a theft rate of 2.5694, Excalibur, described above. Comments corrections. Using all written comments is now ranked No. 135 with a theft rate should refer to the docket number and to make necessary corrections to the of 2.5445; the Toyota Lexus LS, be submitted to: Docket Section, data, NHTSA published on November previously ranked No. 140, with a theft National Highway Traffic Safety 29, 1994 (59 FR 61023) the final data on rate of 2.4390, is now ranked No. 137, Administration, Room 5109, 400 passenger motor vehicle thefts that with a theft rate of 2.4517; the Toyota Seventh Street, SW., Washington, D.C., occurred in calendar year (CY) 1992. Pickup Truck, previously ranked No. 20590. It is requested but not required Subsequently, in a letter dated 149, with a theft rate of 2.3149, is now that six copies by submitted. December 7, 1994, Toyota informed this ranked No. 141, with a theft rate of All comments received before the agency that: ‘‘Although we had been 2.4175; the Toyota Lexus ES, previously close of business on the closing date given the opportunity to comment on ranked No. 165, with a theft rate of indicated below will be considered. The the preliminary theft data . . . we failed 1.9067, is now ranked No. 163 with a application and supporting materials, to do so.’’ With the letter, Toyota theft rate of 1.9286; and the Toyota and all comments received after the provided final production figures, as Previa, previously ranked No. 172, with closing date will also be filed and will they were reported to the U.S. a theft rate of 1.6972, is now ranked No. be considered to the extent possible. Environmental Protection Agency, for 171, with a theft rate of 1.6993. When the application is granted or 14 model year (MY) 1992 Toyota This notice also corrects the final denied, the notice will be published in passenger motor vehicle lines. In production numbers for the Mazda the Federal Register pursuant to the addition, Toyota informed the agency Navajo. The Mazda Navajo, previously authority indicated below. that the MY 1992 Toyota Land Cruiser, ranked No. 100 with a theft rate of Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices 1825 3.8601, is now ranked No. 166 with a to inform the public of calendar year Authority: 49 U.S.C. 33104(b)(4); theft rate of 1.8474. 1992 motor vehicle thefts of model year delegation of authority at 49 CFR 1.50. The following corrected list 1992 vehicles, and does not have any Issued on: December 30, 1994. represents NHTSA’s recalculation of effect on the obligations of regulated Barry Felrice, theft rates for 1992 passenger motor parties under 49 U.S.C. chapter 331. Associate Administrator for Rulemaking. vehicle lines. This list is intended only THEFT RATES OF MODEL YEAR 1992 PASSENGER MOTOR VEHICLES STOLEN IN CALENDAR YEAR 1992 (1992 Thefts per 1,000 ve- Manufacturer Make/model (line) Thefts 1992 Production hicles pro- (Mfgr's) 1992 duced) theft rate 1. GENERAL MOTORS ...... OLDSMOBILE BRAVADA ...... 282 11,863 23.7714 2. FORD MOTOR CO...... MUSTANG ...... 1,634 72,499 22.5382 3. GENERAL MOTORS ...... GMC JIMMY S±15 ...... 746 34,229 21.7944 4. VOLKSWAGEN ...... GOLF/GTI ...... 218 10,775 20.2320 5. GENERAL MOTORS ...... CHEVROLET BLAZER S±10 ...... 1,895 117,085 16.1848 6. NISSAN ...... PATHFINDER ...... 494 34,905 14.1527 7. MITSUBISHI ...... 3000GT ...... 105 7,620 13.7795 8. CHRYSLER CORP...... LEBARON COUPE/CONVERTIBLE ...... 536 40,297 13.3012 9. VOLKSWAGEN ...... CABRIOLET ...... 112 8,628 12.9810 10. FORD MOTOR CO...... LINCOLN MARK VII ...... 67 5,443 12.3094 11. CHRYSLER CORP...... JEEP CHEROKEE ...... 1,432 125,544 11.4064 12. MITSUBISHI ...... DIAMANTE ...... 269 24,607 10.9318 13. GENERAL MOTORS ...... CADILLAC BROUGHAM ...... 127 11,892 10.6794 14. GENERAL MOTORS ...... GMC SIERRA C±1500 ...... 731 73,392 9.9602 15. GENERAL MOTORS ...... CHEVROLET C±1500 ...... 2,217 225,458 9.8333 16. TOYOTA ...... 4-RUNNER ...... 395 40,577 9.7346 17. CHRYSLER CORP...... NEW YORKER 5TH AVE/IMPERIAL ...... 386 41,463 9.3095 18. NISSAN ...... 300ZX ...... 64 6,959 9.1967 19. CHRYSLER CORP...... JEEP WRANGLER ...... 443 48,278 9.1760 20. ISUZU ...... IMPULSE ...... 3 335 8.9552 21. CHRYSLER CORP...... DODGE RAMCHARGER ...... 25 2,925 8.5470 22. VOLKSWAGEN ...... CORRADO ...... 30 3,548 8.4555 23. CHRYSLER CORP...... DODGE DYNASTY ...... 717 85,218 8.4137 24. SUZUKI ...... SAMURAI ...... 29 3,599 8.0578 25. GENERAL MOTORS ...... PONTIAC LEMANS ...... 172 21,482 8.0067 26. BMW ...... 8 ...... 5 625 8.0000 27. MITSUBISHI ...... MONTERO ...... 141 18,340 7.6881 28. GENERAL MOTORS ...... PONTIAC TRANS SPORT APV ...... 237 30,912 7.6669 29. VOLKSWAGEN ...... JETTA ...... 250 33,331 7.5005 30. GENERAL MOTORS ...... BUICK CENTURY ...... 824 112,586 7.3188 31. HONDA/ACURA ...... VIGOR ...... 174 23,793 7.3131 32. GENERAL MOTORS ...... OLDSMOBILE CUTLASS CIERA ...... 870 120,417 7.2249 33. NISSAN ...... SENTRA ...... 949 133,275 7.1206 34. GENERAL MOTORS ...... CHEVROLET CORVETTE ...... 134 18,943 7.0739 35. GENERAL MOTORS ...... CHEVROLET LUMINA APV ...... 334 47,357 7.0528 36. AUDI ...... V8 QUATTRO SEDAN ...... 1 142 7.0423 37. CHRYLSER CORP...... DODGE STEALTH ...... 115 16,458 6.9875 38. HONDA ...... PRELUDE ...... 280 40,516 6.9109 39. FORD MOTOR CO...... PROBE ...... 281 41,067 6.8425 40. GENERAL MOTORS ...... CHEVROLET CORSICA ...... 825 123,871 6.6602 41. BMW ...... 7 ...... 37 5,563 6.6511 42. GENERAL MOTORS ...... GEO PRIZM ...... 564 85,000 6.6353 43. MITSUBISHI ...... EXPO ...... 109 16,586 6.5718 44. FORD MOTOR CO...... LINCOLN TOWN CAR ...... 712 109,142 6.5236 45. GENERAL MOTORS ...... OLDSMOBILE SILHOUETTE APV ...... 101 15,499 6.5165 46. GENERAL MOTORS ...... PONTIAC SUNBIRD ...... 502 77,170 6.5051 47. CHRYSLER CORP ...... DODGE SPIRIT ...... 429 66,927 6.4100 48. GENERAL MOTORS ...... CHEVROLET BERETTA ...... 300 47,244 6.3500 49. NISSAN ...... MAXIMA ...... 542 86,448 6.2697 50. GENERAL MOTORS ...... CHEVROLET CAMARO ...... 422 67,909 6.2142 51. GENERAL MOTORS ...... GEO TRACKER ...... 224 36,230 6.1827 52. FORD MOTOR CO ...... MERCURY TRACER ...... 145 24,398 5.9431 53. NISSAN ...... PICKUP TRUCK ...... 396 66,873 5.9217 54. MITSUBISHI ...... GALANT/SIGMA ...... 251 42,392 5.9209 55. HONDA/ACURA ...... LEGEND ...... 273 47,071 5.7997 56. TOYOTA ...... SUPRA ...... 5 863 5.7937 57. GENERAL MOTORS ...... CHEVROLET ASTRO ...... 708 122,540 5.7777 58. CHRYSLER CORP ...... PLYMOUTH ACCLAIM ...... 427 74,118 5.7611 59. GENERAL MOTORS ...... GMC SONOMA ...... 254 44,152 5.7529 60. CHRYSLER CORP ...... PLYMOUTH SUNDANCE ...... 348 62,645 5.5551 61. ISUZU ...... AMIGO ...... 50 9,122 5.4813 1826 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices THEFT RATES OF MODEL YEAR 1992 PASSENGER MOTOR VEHICLES STOLEN IN CALENDAR YEAR 1992ÐContinued (1992 Thefts per 1,000 ve- Manufacturer Make/model (line) Thefts 1992 Production hicles pro- (Mfgr's) 1992 duced) theft rate 62. HONDA ...... ACCORD ...... 2,195 403,898 5.4345 63. TOYOTA ...... MR2 ...... 22 4,103 5.3619 64. GENERAL MOTORS ...... PONTIAC FIREBIRD ...... 134 25,187 5.3202 65. MITSUBISHI ...... MIRAGE ...... 277 52,845 5.2417 66. MITSUBISHI ...... PRECIS ...... 11 2,102 5.2331 67. FORD MOTOR CO ...... THUNDERBIRD ...... 386 74,011 5.2154 68. GENERAL MOTORS ...... CADILLAC ALLANTE ...... 10 1,920 5.2083 69. GENERAL MOTORS ...... GEO METRO ...... 497 95,840 5.1857 70. MERCEDES-BENZ ...... 129 ...... 39 7,532 5.1779 71. SUZUKI ...... SIDEKICK ...... 66 12,862 5.1314 72. CHRYSLER CORP ...... DODGE SHADOW ...... 390 76,286 5.1123 73. CHRYSLER CORP ...... DODGE MONACO ...... 10 1,960 5.1020 74. TOYOTA ...... COROLLA/COROLLA SPORT ...... 1,034 204,374 5.0594 75. FORD MOTOR CO ...... ESCORT ...... 784 156,043 5.0243 76. BMW ...... 3 ...... 229 45,603 5.0216 77. NISSAN ...... 240SX ...... 135 27,033 4.9939 78. MAZDA ...... 626/MX±6 ...... 170 34,207 4.9697 79. GENERAL MOTORS ...... CADILLAC FLEETWOOD/DEVILLE ...... 667 136,318 4.8930 80. GENERAL MOTORS ...... GEO STORM ...... 335 69,001 4.8550 81. FORD MOTOR CO ...... MERCURY COUGAR ...... 228 47,032 4.8478 82. PORSCHE ...... 911 ...... 9 1,870 4.8128 83. GENERAL MOTORS ...... PONTIAC GRAND PRIX ...... 514 106,831 4.8113 84. MERCEDES-BENZ ...... 140 ...... 72 15,183 4.7421 85. CHRYSLER CORP ...... DODGE DAYTONA ...... 50 10,943 4.5691 86. TOYOTA ...... CRESSIDA ...... 17 3,773 4.5057 87. NISSAN ...... STANZA ...... 272 61,040 4.4561 88. GENERAL MOTORS ...... GMC SAFARI ...... 178 40,242 4.4232 89. CHRYSLER CORP ...... LEBARON SEDAN ...... 174 39,553 4.3992 90. FORD MOTOR CO ...... TEMPO ...... 912 208,614 4.3717 91. GENERAL MOTORS ...... GMC RALLY SPORTVAN ...... 5 1,167 4.2845 92. CHRYSLER CORP ...... EAGLE TALON ...... 121 28,246 4.2838 93. SUZUKI ...... SWIFT ...... 35 8,220 4.2579 94. FORD MOTOR CO ...... MERCURY TOPAZ ...... 326 77,030 4.2321 95. GENERAL MOTORS ...... OLDSMOBILE CUTLASS SUPREME ...... 338 82,532 4.0954 96. GENERAL MOTORS ...... BUICK SKYLARK ...... 223 55,658 4.0066 97. GENERAL MOTORS ...... CHEVROLET S±10 PICKUP ...... 725 183,145 3.9586 98. ROVER GROUP ...... RANGE ROVER MPV ...... 21 5,350 3.9252 99. GENERAL MOTORS ...... CHEVROLET SPORTVAN G±10 ...... 11 2,867 3.8368 100. MAZDA ...... MX±3 ...... 104 27,674 3.7580 101. BMW ...... 5 ...... 82 21,859 3.7513 102. FORD MOTOR CO ...... LINCOLN CONTINENTAL ...... 149 39,792 3.7445 103. TOYOTA ...... PASEO ...... 220 58,776 3.7430 104. NISSAN ...... INFINITI Q45 ...... 48 13,126 3.6569 105. GENERAL MOTORS ...... CHEVROLET CAVALIER ...... 804 220,896 3.6397 106. GENERAL MOTORS ...... CHEVOLET CAPRICE ...... 258 71,559 3.6054 107. HONDA/ACURA ...... INTEGRA ...... 176 49,099 3.5846 108. FORD MOTOR CO...... F150 PICKUP TRUCK ...... 420 117,887 3.5627 109. GENERAL MOTORS ...... PONTIAC GRAND AM ...... 670 190,312 3.5205 110. NISSAN ...... NX COUPE ...... 32 9,202 3.4775 111. MITSUBISHI ...... ECLIPSE ...... 210 61,005 3.4423 112. ALFA ROMEO ...... 164 ...... 2 583 3.4305 113. CHRYSLER CORP ...... EAGLE PREMIER ...... 16 4,730 3.3827 114. FORD MOTOR CO ...... FESTIVA ...... 72 21,350 3.3724 115. FORD MOTOR CO ...... MERCURY SABLE ...... 398 118,357 3.3627 116. HYUNDAI ...... SONATA ...... 98 29,152 3.3617 117. MAZDA ...... B SERIES PICKUP ...... 142 44,943 3.1596 118. TOYOTA ...... TERCEL ...... 312 99,329 3.1411 119. HONDA/ACURA ...... NSX ...... 4 1,281 3.1226 120. GENERAL MOTORS ...... CHEVROLET LUMINA ...... 642 217,390 2.9532 121. MAZDA ...... 323/PROTEGE ...... 276 95,583 2.8875 122. GENERAL MOTORS ...... OLDSMOBILE CUTLASS CRUISER ...... 20 6,963 2.8723 123. MAZDA ...... MX±5 MIATA ...... 78 27,749 2.8109 124. GENERAL MOTORS ...... BUICK REGAL ...... 276 98,281 2.8083 125. ISUZU ...... RODEO ...... 154 55,013 2.7993 126. SUBARU ...... LOYALE ...... 56 20,046 2.7936 127. FORD MOTOR CO ...... TAURUS ...... 927 338,120 2.7416 128. NISSAN ...... INFINITI M30 ...... 9 3,319 2.7117 129. MAZDA ...... 929 ...... 76 28,704 2.6477 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices 1827 THEFT RATES OF MODEL YEAR 1992 PASSENGER MOTOR VEHICLES STOLEN IN CALENDAR YEAR 1992ÐContinued (1992 Thefts per 1,000 ve- Manufacturer Make/model (line) Thefts 1992 Production hicles pro- (Mfgr's) 1992 duced) theft rate 130. TOYOTA ...... CAMRY ...... 760 287,275 2.6455 131. NISSAN ...... INFINITI G20 ...... 38 14.398 2.6393 132. GENERAL MOTORS ...... OLDSMOBILE 98/TOURING ...... 117 44,521 2.6280 133. ALFA ROMEO ...... SPIDER ...... 2 765 2.6144 134. CHRYSLER CORP ...... PLYMOUTH VOYAGER/GRAND ...... 485 189,043 2.5656 135. TOYOTA ...... LEXUS SC ...... 74 29,082 2.5445 136. HYUNDAI ...... EXCEL ...... 189 74,802 2.5267 137. TOYOTA ...... LEXUS LS ...... 80 32,630 2.4517 138. VOLKSWAGEN ...... PASSAT ...... 36 14,801 2.4323 139. CHRYSLER CORP ...... DODGE CARAVAN/GRAND ...... 660 271,572 2.4303 140. CHRYSLER CORP ...... TOWN & COUNTRY MPV ...... 32 13,207 2.4230 141. TOYOTA ...... PICKUP TRUCK ...... 397 164,222 2.4175 142. TOYOTA ...... CELICA ...... 109 45,538 2.3936 143. MERCEDES-BENZ ...... 201 ...... 35 14,677 2.3847 144. FORD MOTOR CO ...... EXPLORER ...... 737 309,206 2.3835 145. ISUZU ...... PICKUP ...... 94 40,366 2.3287 146. CHRYSLER CORP ...... JEEP COMANCHE ...... 7 3,008 2.3271 147. GENERAL MOTORS ...... PONTIAC BONNEVILLE ...... 272 117,010 2.3246 148. GENERAL MOTORS ...... BUICK ROADMASTER ...... 137 59,765 2.2923 149. MERCEDES-BENZ ...... 124 ...... 64 28,082 2.2790 150. GENERAL MOTORS ...... CADILLAC ELDORADO ...... 68 29,851 2.2780 151. HONDA ...... CIVIC ...... 447 200,959 2.2243 152. FORD MOTOR CO...... RANGER PICKUP ...... 553 249,834 2.2135 153. FORD MOTOR CO...... MERCURY CAPRI ...... 16 7,304 2.1906 154. HYUNDAI ...... ELANTRA ...... 139 64,146 2.1669 155. FORD MOTOR CO...... CROWN VICTORIA ...... 241 111,263 2.1660 156. VOLVO ...... 240 ...... 45 20,875 2.1557 157. GENERAL MOTORS ...... OLDSMOBILE TORONADO/TROFEO ...... 13 6,141 2.1169 158. SAAB ...... 900 ...... 30 14,943 2.0076 159. FORD MOTOR CO...... MERCURY GRAND MARQUIS ...... 292 146,546 1.9925 160. VOLVO ...... 960 ...... 14 7,139 1.9611 161. DAIHATSU ...... ROCKY MPV ...... 7 3,600 1.9444 162. JAGUAR ...... XJS ...... 4 2,065 1.9370 163. TOYOTA ...... LEXUS ES ...... 74 38,370 1.9286 164. MITSUBISHI ...... PICKUP TRUCK ...... 47 24,650 1.9067 165. AUDI ...... 80/90 ...... 1 541 1.8484 166. MAZDA ...... NAVAJO ...... 17 9,202 1.8474 167. CHRYSLER CORP...... PLYMOUTH LASER ...... 39 21,808 1.7883 168. JAGUAR ...... XJ6 ...... 10 5,671 1.7634 169. HYUNDAI ...... SCOUPE ...... 70 40,420 1.7318 170. SUBARU ...... LEGACY ...... 113 66,424 1.7012 171. TOYOTA ...... PREVIA ...... 76 44,724 1.6993 172. GENERAL MOTORS ...... OLDSMOBILE ACHIEVA ...... 123 73,880 1.6649 173. MAZDA ...... MPV WAGON ...... 73 45,934 1.5892 174. CHRYSLER CORP...... DODGE DAKOTA PICKUP ...... 197 125,804 1.5659 175. VOLVO ...... 740 ...... 16 10,718 1.4928 176. GENERAL MOTORS ...... BUICK RIVIERA ...... 18 12,324 1.4606 177. CHRYSLER CORP...... EAGLE SUMMIT ...... 51 35,535 1.4352 178. ISUZU ...... TROOPER/TROOPER II ...... 22 15,580 1.4121 179. GENERAL MOTORS ...... SATURN SC ...... 37 26,865 1.3773 180. GENERAL MOTORS ...... OLDSMOBILE 88 ROYALE ...... 127 106,099 1.1970 181. GENERAL MOTORS ...... BUICK PARK AVENUE ...... 70 63,474 1.1028 182. ISUZU ...... STYLUS ...... 2 1,953 1.0241 183. FORD MOTOR CO...... E150 VAN ...... 10 9,990 1.0010 184. GENERAL MOTORS ...... SATURN SL ...... 127 128,142 0.9911 185. SUBARU ...... SVX ...... 9 9,288 0.9690 186. GENERAL MOTORS ...... CADILLAC SEVILLE ...... 39 40,346 0.9666 187. DAIHATSU ...... CHARADE ...... 17 18,200 0.9341 188. FORD MOTOR CO...... AEROSTAR ...... 144 155,838 0.9240 189. AUDI ...... 100/S4 ...... 10 10,823 0.9240 190. PORSCHE ...... 968 ...... 1 1,195 0.8368 191. GENERAL MOTORS ...... BUICK ESTATE/ROADMAST WAGON ...... 9 11,020 0.8167 192. CHRYSLER CORP...... PLYMOUTH COLT/COLT VISTA ...... 24 29,971 0.8008 193. GENERAL MOTORS ...... OLDSMOBILE CUSTOM CRUISER ...... 3 4,347 0.6901 194. GENERAL MOTORS ...... BUICK LESABRE ...... 104 162,068 0.6417 195. CHRYSLER CORP...... DODGE COLT/COLT VISTA ...... 19 32,372 0.5869 196. SAAB ...... 9000 ...... 5 9,486 0.5271 197. VOLKSWAGEN ...... FOX ...... 1 2,043 0.4895 1828 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices THEFT RATES OF MODEL YEAR 1992 PASSENGER MOTOR VEHICLES STOLEN IN CALENDAR YEAR 1992ÐContinued (1992 Thefts per 1,000 ve- Manufacturer Make/model (line) Thefts 1992 Production hicles pro- (Mfgr's) 1992 duced) theft rate 198. CHRYSLER CORP...... DODGE RAM PICKUP ...... 10 83,090 0.1204 199. CHRYSLER CORP...... DODGE RAM WAGON/VAN B150 ...... 4 50,618 0.0790 200. VOLVO ...... 940 ...... 0 17,750 0.0000 201. SUBARU ...... JUSTY ...... 0 1,213 0.0000 202. ROLLS-ROYCE ...... SIL SPIRIT/SPUR/MULS/EIGHT ...... 0 44 0.0000 203. ROLLS-ROYCE ...... CORNICHE/CONTINENTAL ...... 0 15 0.0000 204. ROLLS-ROYCE ...... TURBO R ...... 0 37 0.0000 205. PEUGEOT ...... 405 ...... 0 218 0.0000 206. PEUGEOT ...... 505 ...... 0 224 0.0000 207. MAZDA ...... RX±7 ...... 0 1 0.0000 208. LAMBORGHINI ...... DIABLO ...... 0 52 0.0000 209. FERRARI ...... TESTAROSSA ...... 0 240 0.0000 210. FERRARI ...... MONDIAL ...... 0 49 0.0000 211. FERRARI ...... F40 ...... 0 60 0.0000 212. FERARRI ...... 348 ...... 0 161 0.0000 213. CHRYSLER CORP...... DODGE VIPER ...... 0 285 0.0000 214. ASTON MARTIN ...... SALOON/VANTAGE/VOLANTE ...... 0 2 0.0000 [FR Doc. 95–262 Filed 1–4–95; 8:45 am] Description: Currently, when an Office Building, Washington, DC BILLING CODE 4910±59±M individual taxpayer requests tax forms 20503 and/or instruction of the Substitute Lois K. Holland, for Return (SFR) Staff, the SFR Departmental Reports Management Officer. employee gives the taxpayer a toll-free [FR Doc. 95–214 Filed 1–4–95; 8:45 am] DEPARTMENT OF THE TREASURY number through which the forms and/ BILLING CODE 4830±01±P or instructions can be requested. To Public Information Collection promote better customer service, the Requirements Submitted to OMB for Public Information Collection Review Automated Substitute for Return (ASR) Core Business Process Team Requirements Submitted to OMB for December 29, 1994. and the SFR Staff developed a Review The Department of Treasury has procedure that eliminates the need for December 29, 1994. submitted the following public the taxpayer to make the toll-free call The Department of Treasury has information collection requirement(s) to and also provides for next-day submitted the following public OMB for review and clearance under the shipment of the forms and/or Paperwork Reduction Act of 1980, information collection requirement(s) to instructions requested. The procedure OMB for review and clearance under the Public Law 96–511. Copies of the allows ASFR to electronically request submission(s) may be obtained by Paperwork Reduction Act of 1980, forms and instructions for taxpayers Public Law 96–511. Copies of the calling the Treasury Bureau Clearance through the Centralized Inventory Officer listed. Comments regarding this submission(s) may be obtained by Distribution System (CIDS). To calling the Treasury Bureau Clearance information collection should be determine the effectiveness of this addressed to the OMB reviewer listed Officer listed. Comments regarding this procedure and service, this customer information collection should be and to the Treasury Department survey was developed. Clearance Officer, Department of the addressed to the OMB reviewer listed Treasury, Room 2110, 1425 New York Respondents: Individuals or and to the Treasury Department Avenue, NW., Washington, DC 20220. households, Businesses or other for- Clearance Officer, Department of the profit, Small businesses or Treasury, Room 2110, 1425 New York SPECIAL REQUEST: In order to conduct Avenue, NW., Washington, DC 20220. the survey described below in February organizations 1995, the Department of Treasury is Estimated Number of Respondents: 500 SPECIAL REQUEST: In order to conduct requesting Office of Management and the survey described below in February Estimated Burden Hours Per 1995, the Department of Treasury is Budget (OMB) review and approve this Respondent: 1 minute, 30 seconds information collection by January 10, requesting Office of Management and 1995. 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To obtain a copy of this survey, please contact the IRS Clearance Officer Internal Revenue Service (IRS) Clearance Officer: Garrick Shear (202) at the address listed below. 622–3869, Internal Revenue Service, OMB Number: 1545–1432 Room 5571, 1111 Constitution Internal Revenue Service (IRS) Survey Project Number: IRS PC:V 94– Avenue, N.W., Washington, DC 20224 014–G OMB Number: 1545–432 Type of Review: Revision OMB Reviewer: Milo Sunderhauf (202) Survey Project Number: IRS PC:V 94– Title: Automated Substitute For Return 395–7340, Office of Management and 015–G (ASFR) Customer Satisfaction Survey Budget, Room 10226, New Executive Type of Review: Revision Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices 1829 Title: Hartford District Practitioner Type of Review: Extension OFFICE OF THE UNITED STATES Survey Estate and Gift Tax Returns Title: Special Loss Discount Account TRADE REPRESENTATIVE Description: The Hartford District has and Special Estimated Tax Payments established a Total Quality for Insurance Companies [Docket No. 301±92] Organization (TQO) Group to Description: Form 8816 is used by Extension of 301 Investigation of the specifically study the Estate and Gift insurance companies claiming an People's Republic of China's Tax process. The efforts of this group additional deduction under IRC Protection of Intellectual Property and support the IRS Business Master Plan section 847, to reconcile their special Provision of Market Access to Persons objective to maximize customer loss discount, and special estimated Who Rely on Intellectual Property satisfaction and reduce burden as well tax payments, and to determine their Protection; Proposed Determinations; as to achieve quality-driven tax benefit associated with the Request for Public Comment; and productivity. The TQO Group has deduction. The information is needed Notice of Public Hearing developed this survey to gather by the IRS to determine that the information from customers (attorneys proper additional deduction was AGENCY: Office of the United States and bank trust officers) who are claimed and to insure the proper Trade Representative. amount of special estimated tax was currently involved in estate and gift ACTION: Notice of determination under tax return preparation and taxpayer computed and deposited. Respondents: Businesses or other for- section 304(a)(3)(b) of the Trade Act of representation, for their insights into 1974, as amended (Trade Act), 19 U.S.C. problems they have identified in the profit Estimated Number of Respondents/ 2414(a)(3)(B), to extend the processing of estate and gift tax investigation of the acts, policies and returns. Recordkeepers: 3,000 Estimated Burden Hours Per practices of the Government of the Respondents: Businesses or other for- People’s Republic of China (China) on profit, Small businesses or Respondent/Recordkeeper: Recordkeeping–6 hrs., 42 min. the enforcement of intellectual property organizations Learning about the law or the form– rights and the provision of market Estimated Number of Respondents: 150 47 min. access to persons who rely on Estimated Burden Hours Per Preparing, copying, assembling, and intellectual property protection; notice Respondent: 10 minutes sending the form to the IRS–56 min. of proposed determination pursuant to Frequency of Response: Other Frequency of Response: Annually Estimated Total Reporting Burden: 25 section 304(a)(1) of the Trade Act, 19 Estimated Total Reporting/ U.S.C. 2414; request for public comment hours Recordkeeping Burden: 25,290 hours Clearance Officer: Garrick Shear (202) pursuant to section 304(b) of the Trade OMB Number: 1545–1151 622–3869, Internal Revenue Service, Act on the proposed determinations; Form Number: IRS Form 8818 notice of public hearing. Room 5571, 1111 Constitution Type of Review: Extension Avenue, N.W., Washington, DC 20224 Title: Optional Form to Record SUMMARY: Pursuant to section OMB Reviewer: Milo Sunderhauf (202) Redemption of College Savings Bonds 304(a)(3)(B) of the Trade Act, the United 395–7340, Office of Management and Description: If an individual redeems States Trade Representative (USTR) has Budget, Room 10226, New Executive U.S. Savings Bonds issued after 1989 determined to extend the investigation Office Building, Washington, DC and pays qualified higher education initiated under section 302(b)(2)(A) of 20503 expenses during the year, the interest the Trade Act of certain acts, policies Lois K. Holland, on the bonds is excludable from and practices of China that deny Departmental Reports Management Officer. income. The form can be used by the adequate and effective protection of [FR Doc. 95–215 Filed 1–4–95; 8:45 am] individual to keep a record of the intellectual property rights and market BILLING CODE 4830±01±P bonds cashed so that he or she can access to person who rely on claim the proper interest exclusion. intellectual property protection. The Respondents: Individuals or households USTR is seeking public comment Estimated Number of Respondents/ Public Information Collection concerning a proposed determination Recordkeepers: 25,000 Requirements Submitted to OMB for that certain acts, policies and practices Review Estimated Burden Hours Per Respondent/Recordkeeper: of China with respect to its protection December 29, 1994 Recordkeeping–7 mins. of intellectual property and provision of The Department of Treasury has Learning about the law or the form– market access to persons who rely on submitted the following public 3 mins. intellectual property protection are information collection requirement(s) to Preparing the form–17 mins. unreasonable and constitute a burden or OMB for review and clearance under the Frequency of Response: On occasion restriction on U.S. commerce. The Paperwork Reduction Act of 1980, Estimated Total Reporting/ USTR is also seeking public comment Public Law 96–511. Copies of the Recordkeeping Burden: 21,500 hours and will hold a public hearing on Clearance Officer: Garrick Shear (202) submission(s) may be obtained by January 24 and 25, 1995, regarding a 622–3869, Internal Revenue Service, calling the Treasury Bureau Clearance determination on appropriate action Room 5571, 1111 Constitution Officer listed. Comments regarding this under section 301 being considered in Avenue, N.W., Washington, DC 20224 information collection should be response to these acts, policies and OMB Reviewer: Milo Sunderhauf (202) addressed to the OMB reviewer listed practices. 395–7340, Office of Management and and to the Treasury Department EFFECTIVE DATE: The investigation is Budget, Room 10226, New Executive Clearance Officer, Department of the extended, through Saturday, February 4, Office Building, Washington, DC Treasury, Room 2110, 1425 New York 1995. Written comments on the 20503 Avenue, NW., Washington, DC 20220. proposed determinations are due by Lois K. Holland, noon Monday, January 30, 1995. Internal Revenue Service (IRS) Departmental Reports Management Officer. Requests to testify at the hearing must OMB Number: 1545–1130 [FR Doc. 95–213 Filed 1–4–95; 8:45 am] be submitted by noon Friday, January Form Number: IRS Form 8816 BILLING CODE 4830±01±P 13, 1995; written testimony is due by 1830 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices noon Wednesday, January 18, 1995; and of transparency, a lack of consistency in Public Comment on Determinations and written rebuttals are due by noon application, monopoly control over the Hearing Participation Friday, January 27, 1995. importation and distribution of products In accordance with section 304(b) of FOR FURTHER INFORMATION CONTACT: embodying intellectual property, and a the Trade Act, the USTR invites all Questions concerning the ongoing prohibition on the production or interested persons to provide written investigation or the products under distribution of products embodying comments on the proposed consideration should be directed to intellectual property that is not related determinations. With respect to the Deborah Lehr, Director for China and to the content of those products. proposed trade action under section Mongolian Affairs (202) 395–5050, or 301, comments may address: (1) the Extension of Investigation Thomas Robertson, Assistant General appropriateness of subjecting the Counsel (202) 395–6800; questions Numerous bilateral negotiations have products listed in the Annex to this about the public hearing, written been held on these issues since the notice to an increase in duties; (2) the testimony and written comments should levels at which duties on particular be directed to Sybia Harrison, Staff initiation of this investigation. While China has indicated that it will take products should be set; and (3) the Assistant to Section 301 Committee, degree to which an increase in duties on (202) 395–3432. All of the above some actions to address U.S. concerns, significant movement on a majority of particular products might have an persons are located at the Office of the adverse effect on U.S. consumers. the U.S. issues has not been shown. United States Trade Representative, 600 Comments will be considered in These issues are too complex and 17th Street, NW., Washington, DC recommending any determination or 20506. complicated to resolve before the end of action under section 301 to the USTR. SUPPLEMENTARY INFORMATION: On June the six-month statutory deadline for The USTR will also consider the 30, 1994, pursuant to section 302(b) of concluding this investigation. written, oral, and rebuttal comments the Trade Act, the USTR initiated an In light of the need for further time for submitted in the context of public investigation of those acts, policies and negotiations to resolve these remaining hearings held pursuant to section 304(b) practices of China that were the basis for issues, the USTR has determined of the Trade Act and in accordance with identification of China as a priority pursuant to section 304(a)(3)(B)(i) of the 15 CFR 2006.7 through 2006.9. The foreign country (PFC) under section 182 Trade Act, that ‘‘complex or hearings will commence at 10 a.m. on of the Trade Act. See 59 FR 35558 (July complicated issues are involved in the Tuesday, January 24, 1995, and 12 1994). China’s identification as a PFC investigation that require additional continue on Wednesday, January 25, was primarily based on its failure to time.’’ The investigation has thus been 1995, if necessary. The hearings will be create an effective intellectual property extended to Saturday, February 4, 1995. held in the Truman Room of the White enforcement regime, causing rampant House Conference Center, 726 Jackson copyright piracy and trademark Proposed Determinations and Action Place, NW., Washington, DC 20506. infringement resulting in significant Request to Testify: Interested persons damage to U.S. interests. Appropriate If the issues which are the basis of wishing to testify orally at the hearings implementation of China’s new patent this investigation are not resolved, the must provide a written request to do so law and administrative protection USTR proposes to determine pursuant by noon Friday, January 13, 1994, to program for pharmaceuticals and to section 304(a)(1)(A)(ii) of the Trade Sybia Harrison, Staff Assistant to the agricultural chemicals was also of Act that acts, policies and practices of Section 301 Committee, Office of the concern. Particular problems with the Chinese Government with respect to U.S. Trade Representative, 600 17th China’s present enforcement regime the enforcement of intellectual property Street NW., Washington DC 20506. In include, among other things, internally rights and the provision of market their request, they must provide the inconsistent laws; a lack of transparency access to persons that rely on following information: (1) Name, in the enforcement structure; a lack of intellectual property protection are address, telephone number, and firm or protection for existing works; gaps in unreasonable and constitute a burden or affiliation; and (2) a brief summary of responsibility in the enforcement restriction on U.S. commerce. their presentation. Requests must structure; a lack of consistent In the event the USTR makes such a conform to the requirements of 15 CFR application of the laws throughout the determination, the USTR must 2006.8(a). After the Chairman of the central, provincial and local determine pursuant to section Section 301 Committee considers the governments; a lack of funding, training 304(a)(1)(B) what action to take in request to present oral testimony, Ms. and education; conflicts of interest; Harrison will notify the applicant of the response. The USTR proposes that, burdensome and discriminatory agency time of his or her testimony. Remarks at pursuant to the authority provided requirements that restrict foreign access the hearing will be limited to 5 minutes. under section 301(c)(1)(B) of the Trade to trademark protection; overly-broad Written Testimony: In addition, compulsory licensing provisions; a Act, to take the following action: To persons presenting oral testimony must failure of enforcement authorities to impose increased duties on certain submit their complete written testimony coordinate; and the absence of an products of China to be drawn from the by noon Wednesday, January 19, 1995. effective border control mechanism. list of products set forth in the Annex In order to assure each party an China’s identification as a PFC was to this notice. These products represent opportunity to contest the information also based on its failure to provide fair approximately 2.5 billion dollars in U.S. provided by other parties, USTR will and equitable market access for persons imports of Chinese-origin goods over the entertain rebuttal briefs filed by any who rely on intellectual property last quarter of 1993 and the first three party by noon Friday, January 27, 1995. protection. The most serious market quarters of 1994. The decision on what In accordance with 15 CFR 2006.8(c), access problems are found in the areas specific products could be subject to rebuttal briefs should be strictly limited of audiovisual products, sound increased tariffs will take into to demonstrating errors of fact or recordings, and published written consideration the written comments analysis not pointed out in the briefs or materials. Particular concerns include a provided and any written and oral hearing and should be as concise as is hidden system of internal quotas, a lack testimony offered at the public hearing. possible. Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices 1831 Requirements for Submissions: 301 Committee, Room 223, USTR, 600 2006.15(b), and such information must Written comments on the proposed 17th St., NW., Washington, DC 20506. be clearly marked ‘‘Business determinations under section 304 of the Written comments, testimony, and Confidential’’ in a contrasting color ink Trade Act, written testimony, and briefs will be placed in a file (Docket at the top of each page on each of the rebuttal briefs must be filed in 301–92) open to public inspection twenty copies and must be accompanied accordance with the requirements set pursuant to 15 CFR 2006.13, except by a nonconfidential summary of the forth in 15 CFR 2006.8(b) and are due confidential business information confidential information. The according to the relevant deadlines exempt from public inspection in nonconfidential summary will be placed noted above. Comments must state accordance with 15 CFR 2006.15. in the Docket open to public inspection. clearly the position taken and describe Persons wishing to submit confidential Irving A. Williamson, with particularly the supporting business information must certify in rationale, be in English, and be provided writing that such information is Chairman, Section 301 Committee. in twenty copies to: Chairman, Section confidential in accordance with 15 CFR BILLING CODE 3190±01±M 1832 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices 1833 1834 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices 1835 1836 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices 1837 1838 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices 1839 1840 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices 1841 1842 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices 1843 [FR Doc. 95–261 Filed 1–3–95; 8:45 am] BILLING CODE 3190±01±C 1844 Sunshine Act Meetings Federal Register Vol. 60, No. 3 Thursday, January 5, 1995 This section of the FEDERAL REGISTER DATE AND TIME: Wednesday, January 11, Peter H. Rodgers, Gregory L. Wortham on contains notices of meetings published under 1995 at 10:00 a.m. behalf of NYMEX PAC the ``Government in the Sunshine Act'' (Pub. AOR 1994–37 PLACE: L. 94-409) 5 U.S.C. 552b(e)(3). 999 E Street, NW., Washington, David A. Barrett on behalf of DC. Representative Charles E. Shumer STATUS: This meeting will be opened to AOR 1994–39 FEDERAL ELECTION COMMISSION the public. J. Martin Huber of National Association of Surety Bond Producers DATE AND TIME: Tuesday, January 10, ITEMS TO BE DISCUSSED: 1995 at 10:00 a.m. Regulations: Legislative Recommendations—1995 Requests for a Public Hearing on the PLACE: 999 E Street, NW., Washington, Administrative Matters. Proposed Disclaimer Rules DC. Requests for Public Hearing on Proposed STATUS: This meeting will be closed to DATE AND TIME: Thursday, January 12, Amendments to the Public Finance the public. 1995 at 10:00 a.m. Rules PLACE: 999 E Street, NW., Washington, Administrative Matters. ITEMS TO BE DISCUSSED: DC, (Ninth Floor). PERSON TO CONTACT FOR INFORMATION: Compliance matters pursuant to 2 U.S.C. STATUS: This meeting will be open to the Ron Harris, Press Officer, Telephone: § 437g. public. Audits conducted pursuant to 2 U.S.C. (202) 219–4155. § 437g, § 438(b), and Title 26, U.S.C. ITEMS TO BE DISCUSSED: Marjorie W. Emmons, Matters concerning participation in civil Secretary of the Commission. actions or proceedings or arbitration. Correction and Approval of Minutes. Internal personnel rules and procedures or Advisory Opinions: [FR Doc. 95–00372 Filed 1–3–95; 3:04 pm] matters affecting a particular employee. AOR 1994–34 BILLING CODE 6715±01±M federal register January 5,1995 Thursday for FiscalYear1995;Notice Elimination Program;FundingAvailability Public andIndianHousingDrug Public andIndianHousing Office oftheAssistantSecretaryfor Development Housing andUrban Department of Part II 1845 1846 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices DEPARTMENT OF HOUSING AND Involvement (CRI) Clearinghouse, Native American Programs (Appendix URBAN DEVELOPMENT telephone: 1–800–578–3472. The ‘‘A’’ of this NOFA), or Tracy Outlaw, application kit contains information on Office of Native American Programs, Office of the Assistant Secretary for all exhibits and certifications required Public and Indian Housing, Department Public and Indian Housing under this NOFA. of Housing and Urban Development, [Docket No. N±94±3839; FR±3822±N±01] (b) Application Submission: An Room B133, 451 Seventh Street, SW., applicant may submit only one Washington, DC 20410, telephone (202) Public and Indian Housing Drug application per housing authority under 708–0088. A telecommunications device Elimination Program Notice of Funding each Notice of Funding Availability for hearing or speech impaired persons AvailabilityÐFY 1995 (NOFA). Joint applications are not (TDD) is available at (202) 708–0850. permitted under this program with the (These are not toll-free telephone AGENCY: Office of the Assistant following exception: housing authorities numbers.) Secretary for Public and Indian (HA) under a single administration Housing, HUD. (such as housing authorities managing FOR FURTHER INFORMATION REGARDING ACTION: Notice of Funding Availability another housing authority under ASSISTED (NON-PUBLIC AND INDIAN) (NOFA) for Fiscal Year (FY) 1995. contract or housing authorities sharing a HOUSING DRUG ELIMINATION PROGRAM common executive director) may submit CONTACT: Lessley Wiles, Office of SUMMARY: This NOFA announces HUD’s a single application, even though each Multifamily Housing Management, FY 1995 funding of $290,000,000 under housing authority has its own operating Department of Housing and Urban the Public and Indian Housing Drug budget. Applications (original and two Development, Room 6176, 451 Seventh Elimination Program (PHDEP) for use in copies) must be received by the deadline Street, SW., Washington, DC 20410. eliminating drug-related crime. Funded at the local HUD Field Office with Telephone (202) 708–2654. TDD programs must be part of a responsibilities over the applying public number (202) 708–4594. (These are not comprehensive plan for addressing the housing authorities, Attention: Director, toll-free numbers.) problem of drug-related crime. In the Public Housing Division or, in the case SUPPLEMENTARY INFORMATION: body of this document is information of Indian housing authorities, to the concerning the purpose of the NOFA, local HUD Field Office of Native Paperwork Reduction Act Statement applicant eligibility, available amounts, American Programs, Attention: The information collection selection criteria, financial Administrator, Native American requirements contained in this notice requirements, management, and Programs with jurisdiction over the application processing, including how applying Indian housing authorities, as have been submitted to the Office of to apply, how selections will be made, appropriate. A complete listing of these Management and Budget for review and how applicants will be notified of offices, is provided in appendix ‘‘A’’ of under the provisions of the Paperwork results. Hereafter, the term housing this NOFA. It is not sufficient for an Reduction Act of 1980 (44 U.S.C. 3501– authority (HA) shall include public application to bear a postage date within 3520) and have been assigned OMB housing agencies (PHAs) and Indian the submission time period. control number 2577–0124, expiration housing authorities (IHAs). Applications submitted by facsimile are date November 30, 1995. DATES: Applications must be received at not acceptable. Applications received Environmental Review the local HUD Field Office on or before after the deadline date and hour, Friday, April 14, 1995, at 3 p.m., local Friday, April 14, 1995, at 3 p.m., local Grants under this program are time. This application deadline is firm time, will not be considered. categorically excluded from review as to date and hour. In the interest of FOR FURTHER INFORMATION ON THE PUBLIC under the National Environmental fairness to all competing applicants, the AND INDIAN HOUSING DRUG ELIMINATION Policy Act of 1969 (NEPA) in Department will treat as ineligible for PROGRAM, PUBLIC HOUSING, CONTACT: The accordance with 24 CFR 50.20(p). consideration any application that is local HUD Field Office, Director, Public However, prior to an award of grant received after the deadline. Applicants Housing Division (Appendix ‘‘A’’ of this funds, HUD will perform an should take this practice into account NOFA), or Malcolm E. Main, Crime environmental review to the extent and make early submission of their Prevention and Security Division required by HUD’s environmental materials to avoid any risk of loss of (CPSD), Office of Community Relations regulations at 24 CFR part 50, including eligibility brought about by any and Involvement (OCRI), Public and the applicable related authorities at 24 unanticipated or delivery-related Indian Housing, Department of Housing CFR 50.4. problems. A FAX is not acceptable. and Urban Development, Room 4116, Coordination of Anti-Crime Efforts ADDRESSES: (a) Application Kit: An 451 Seventh Street, SW., Washington, application kit may be obtained, and DC 20410, telephone (202) 708–1197. A To coordinate anti-crime related assistance provided, from the local HUD telecommunications device for hearing activities across local, State, tribal, and Field Office with delegated public or speech impaired persons (TDD) is Federal levels for the purpose of housing responsibilities over an available at (202) 708–0850. (These are maximizing their effectiveness, applying public housing authority, or not toll-free telephone numbers.) applicants are encouraged to contact, from the Field Offices of Native FOR FURTHER INFORMATION ON THE PUBLIC and work with, such programs as American Programs (FONAPs) having AND INDIAN HOUSING DRUG ELIMINATION Operation Weed and Seed, Operation jurisdiction over an Indian housing PROGRAM FOR NATIVE AMERICAN Safe Home, and Operation Pulling authority making an application, or by PROGRAMS CONTACT: The local HUD America’s Communities Together calling HUD’s Community Relations and Field Office Administrator, Office of described below. Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices 1847 Operation Weed and Seed, conducted Justice, 366 Indiana Avenue, NW., Community Development Act of 1992 through the U.S. Department of Justice, Washington, DC 20531. Telephone (202) (HCDA 1992) (Pub. L. 102–550, is a comprehensive, multi-agency 307–5966. approved October 28, 1992). approach to combatting violent crime, Operation Safe Home was announced (b) Allocation Amounts drug use, and gang activity in high- jointly by Vice President Albert Gore, crime neighborhoods. The goal is to HUD Secretary Henry G. Cisneros, (1) Federal Fiscal Year 1995 Funding. ‘‘weed out’’ crime from targeted Treasury Secretary Lloyd Bentsen, The amount available, to remain neighborhoods and then to ‘‘seed’’ the Attorney General Janet Reno, and available until expended, for funding targeted sites with a wide range of crime ONDCP Director Dr. Lee Brown at a under this NOFA in FY 1995 is and drug prevention programs, and White House briefing on February 4, $250,391,741. The Departments of human services agency resources to 1994. Operation Safe Home will combat Veterans Affairs and Housing and Urban prevent crime from reoccurring. violent crime in public housing through Development, and Independent Operation Weed and Seed further tightly coordinated law enforcement Agencies Appropriations Act 1995, emphasizes the importance of and crime prevention operations at (approved September 28, 1994, Pub. community involvement in combatting targeted sites; Federal initiatives and Law 103–327), (95 App. Act) drugs and violent crime. Community policies to strengthen law enforcement appropriated $290 million for the Drug residents need to be empowered to and crime and drug prevention in Elimination Program. Of the total $290 assist in solving crime-related problems public housing; and improved million appropriated, $13,925,000 will in their neighborhoods. In addition, the consultation and coordination between fund the Youth Sports Program; private sector needs to get involved in HUD and Federal law enforcement $17,406,250 will fund the Assisted reducing crime. All of these entities, agencies and ONDCP on design and Housing Drug Elimination Program; $10 Federal, State, and local government, implementation of HUD crime- million will fund drug elimination the community and the private sector prevention initiatives. technical assistance, contracts and other must work together in partnership to For more information on Operation assistance training, program create a safer, drug-free environment. Safe Home, contact Crime Prevention assessments, and execution for or on The Weed and Seed strategy involves and Security Division, Office of behalf of public housing and resident four basic elements: Community Relations and Involvement, organizations (including the cost of 1. Law enforcement must ‘‘weed out’’ Public and Indian Housing, Department necessary travel for participants in such the most violent offenders by of Housing and Urban Development, training); and $1,500,000 will fund drug coordinating and integrating the efforts Room 4116, 451 Seventh Street, SW., information clearinghouse services. The of Federal, State, and local law Washington, DC 20410, telephone (202) remaining $247,168,750 of FY 1995 enforcement agencies in targeted high- 708–1197. A telecommunications device funds are being made available under crime neighborhoods. No social program for hearing or speech impaired persons this NOFA. In addition, $3,222,991 of or community activity can flourish in an (TDD) is available at (202) 708–0850. carryover FY 1994 PHDEP program will atmosphere poisoned by violent crime (These are not toll-free telephone be made available under this NOFA for and drug abuse. numbers.) 2. Local police departments should a total amount of $250,391,741. Operation Pulling America’s (2) Maximum Grant Award Amounts. implement community policing in each Communities Together (PACT) of the targeted sites. Under community HUD is distributing grant funds under conducted through the U.S. Department this NOFA on a national competition policing, law enforcement works closely of Justice, is a comprehensive, multi- with residents of the community to basis. Maximum grant award amounts agency approach to combatting violent are computed on a sliding scale, using develop solutions to the problems of crime in selective metropolitan areas. violent and drug-related crime. an overall maximum cap, depending The goal is to develop a single, seamless upon the number of public housing Community policing serves as a strategy and plan using a variety of State ‘‘bridge’’ between the ‘‘weeding’’ (law agency or Indian housing authority and Federal sources, reducing the units. The unit count includes rental, enforcement) and ‘‘seeding’’ complexity of applications and program (neighborhood revitalization) Turnkey III Homeownership, Mutual requirements of the variety of agencies Help Homeownership and Section 23 components. and programs. The PACT cities are 3. After the ‘‘weeding’’ takes place, leased housing bond-financed projects. Atlanta, Georgia; Aurora/Denver, law enforcement and social services Units in the Turnkey III Colorado; District of Columbia; and agencies, the private sector, and the Homeownership and Mutual Help Omaha, Nebraska. community must work to prevent crime programs are counted if they have not For further information on Operation and violence from reoccurring by been conveyed to the homebuyers prior Pulling America’s Communities concentrating a broad array of human to the application deadline in this Together contact the U.S. Department of services—drug and crime prevention NOFA. For Section 23 bond-finance Justice, Office of Justice Programs, 633 programs, drug treatment, educational projects, units are counted if they have Indiana Avenue, NW., Washington, DC opportunities, family services, and not been conveyed or will not be 20531. Telephone (202) 307–5966. recreational activities—in the targeted conveyed with clear title to the housing sites to create an environment where I. Purpose and Substantive Description authorities until the end of the bond crime cannot thrive. term. Eligible projects must be covered 4. Federal, State, tribal, local, and (a) Authority by an annual contributions contract private sector resources must focus on These grants are authorized under (ACC) or annual operating agreement revitalizing distressed neighborhoods Chapter 2, Subtitle C, Title V of the (AOA) during the period of the grant through economic development and Anti-Drug Abuse Act of 1988 (42 U.S.C. award. Unit counts will be taken from must provide economic opportunities 11901 et seq.), as amended by Section the housing authority low-rent operating for residents. 581 of the National Affordable Housing budget (form HUD–52564) for the For further information on Operation Act of 1990 (NAHA), approved housing authority fiscal year ending Weed and Seed, contact the Office of November 28, 1990, Pub. L. 101–625, June 30, September 30, December 31, Justice Programs, U.S. Department of and Section 161 of the Housing and 1994 or March 31, 1995. 1848 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices Amendments to the Drug Elimination Section III.(d) (Checklist of Application management corporations (RMCs) Program made by the Housing and Requirements) of this NOFA requires eligible for Drug Elimination Program Community Development Act of 1992 applicants to compute the maximum funding, the 95 App. Act limited the (Pub. L. 102–550, approved October 28, grant award amount for which they are funds appropriated ‘‘for grants to public 1992), permit grants, under certain eligible, as follows: eligible dollar housing agencies’’. The authorizing conditions as given in section (c)(9) of amount per unit × (times) number of statute includes Indian housing this NOFA, below, to be used to units listed in the housing authority authorities (IHAs) in the term ‘‘public eliminate drug-related crime in housing low-rent operating budget (form HUD– housing agencies’’ and, therefore, IHAs owned by PHAs that is not housing 52564) for housing authority fiscal year are eligible for funding. Because RMCs, assisted under the United States ending, June 30, September 30, unlike IHAs, constitute a separate entity Housing Act of 1937 and is not December 31, 1994 or March 31, 1995. from PHAs under the authorizing otherwise federally assisted. Where an The applicant is required to confirm the statute, no funds are appropriated for application is submitted for this unit count with the local HUD Field RMCs as direct applicants under the 95 category of housing, the amount of Office prior to submission of the App. Act. However, RMCs may continue eligible funding will be determined on application. to receive funding from housing the same per-unit basis as for federally The amount computed in this way authority grantees to develop security assisted housing units, above. must be compared with the dollar and drug abuse prevention programs The maximum grant awards are as amount requested in the application to involving site residents as they have in follows, although, as discussed below, make certain the amount requested does the past. in section I.(b)(4) (Reduction of not exceed the maximum grant award. An application for funding under this Requested Grant Amounts and Special (3) Reallocation. All awards will be program may be for one or more of the Conditions), the Department may adjust made to fund fully an application, following eligible activities. An the amount of any grant award: except as provided in paragraph I.(b)(4) applicant may submit only one (i) For housing authorities with 1–499 (Reduction of Requested Grant Amounts application under this Notice of units: The maximum grant award is and Special Conditions) below. Funding Availability (NOFA). Joint either a maximum grant award cap of (4) Reduction of Requested Grant applications are not permitted under $500.00 per unit, or a total minimum Amounts and Special Conditions. HUD this program with the following grant award of $50,000, whichever is may approve an application for an exception: housing authorities (HA) greater; amount lower than the amount under a single administration (such as (ii) For housing authorities with 500– requested, withhold funds after housing authorities managing another 1,249 units: The maximum grant award approval, and/or the grantee will be housing authority under contract or is either a maximum grant award cap of required to comply with special housing authorities sharing a common $300.00 per unit, or a total minimum conditions added to the grant executive director) may submit a single grant award of $250,000, whichever is agreement, in accordance with 24 CFR application, even through each housing greater; 85.12 (PHAs), and 24 CFR 905.135 authority has its own operating budget. (iii) For housing authorities with (IHAs) as applicable, and the The following is a listing of eligible 1,250 or more units: The maximum requirements of this NOFA, or where: activities under this program and grant award is either a maximum grant (i) HUD determines the amount guidance as to their parameters: award cap of $250.00 per unit, or a total requested for one or more eligible (1) Employment of Security Personnel. minimum grant award of $375,000 activities is unreasonable or (i) Contracted Security Guard whichever is greater; unnecessary; Personnel. Contracting for security Example: A housing authority with (ii) The application does not guard personnel services in public and 780 units could apply for a maximum otherwise meet applicable cost Indian housing developments proposed grant award of $250,000, i.e. the limitations established for the program; for funding is permitted under this minimum grant award of $250,000 for (iii) The applicant has requested an program. Contracting for security guard housing authorities with 500–1,249 ineligible activity; personnel services is defined as a units is greater than the per unit award (iv) Insufficient amounts remain in competitive process in which individual calculation computed at $300.00 per that funding round to fund the full companies and/or individuals unit × 780 units = $234,000. amount requested in the application and participate. Example: A housing authority with HUD determines that partial funding is (A) Contracted security personnel 4,234 units could apply for a minimum a viable option; funded by this program must perform grant award of $1,058,500, i.e. (v) The applicant fails to implement services not usually performed by local computed at $250.00 per unit × 4,234 the program in its plan and/or fails to law enforcement agencies on a routine units = $1,058,500. submit required reports; basis, such as, patrolling inside An applicant shall not apply for more (vi) The applicant has demonstrated buildings, providing guard services at funding than is permitted in accordance an inability to manage HUD grants, building entrances to check for with the maximum grant award amount particularly Drug Elimination Program identification cards (Ids), or patrolling as described above. Any application grants; or and checking car parking lots for requesting funding that exceeds the (vii) For any other reason where good appropriate parking decals. maximum grant award amount cause exists. (B) Contracted security personnel permitted will be rejected and will not funded by this program must meet all be eligible for any funding unless a (c) Eligibility relevant tribal, state or local government computational error was involved in the Funding under this NOFA is available insurance, licensing, certification, funding request. Section IV of this only for Public Housing Agencies and training, bonding, or other similar law NOFA provides guidance regarding Indian Housing Authorities. Although enforcement requirements. application curable and noncurable section 161 of the Housing and (C) The applicant, the cooperating deficiencies. Community Development Act of 1992 local law enforcement agency, and the Such an error will be considered a (Pub. L. 102–550, approved October 28, provider (contractor) of the security curable deficiency in the application. 1992) makes public housing resident personnel are required to enter into and Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices 1849 execute a security personnel contract authority police departments, which are of services provided by the local law that includes the following: the following housing authorities: enforcement agency and then (1) The activities to be performed by (1) Baltimore Housing Authority and demonstrate to what extent the the security personnel, their scope of Community Development, Baltimore, additional housing authority police authority, established policies, MD. officers will represent an increase over procedures, and practices that will (2) Boston Housing Authority, Boston, these services. For purposes of this govern their performance (i.e., a Policy MA. NOFA, the current level of services is Manual as described in section (3) Chicago Housing Authority, defined as ordinary and routine services I.(c)(1)(i)(D)) and how they will Chicago, IL. provided or required to be provided coordinate their activities with the local (4) Cuyahoga Metropolitan Housing under a cooperation agreement to the law enforcement agency; Authority, Cleveland, OH. residents of public housing (2) The types of activities that the (5) Housing Authority of the City of developments as a part of the overall, security personnel are expressly Los Angeles, LA, CA. city and county-wide deployment of prohibited from undertaking. (6) New York City Department of police resources, to respond to crime (3) Expenditures for activities under Housing Preservation and Development, and other public safety incidents. These this section will not be incurred by the NYC, NY. include the number of officers and grantee and/or funds released by the (7) Housing Authority of the City of equipment and the actual percent of local HUD Field Office until the grantee Oakland, Oakland, CA. their time assigned to the developments has executed a contract for security (8) Philadelphia Housing Authority, proposed for funding, and the kinds of guard services. Philadelphia, PA. services provided, e.g., 9–1–1 (D) Security guard personnel funded (9) Housing Authority of the City of communications, processing calls for under this program shall be guided by Pittsburgh, Pittsburgh, PA. service, and investigative follow-up of a policy manual (see below) that (10) Waterbury Housing Authority, criminal activity. regulates, directs, and controls the Waterbury, CT. (D) Housing authority police funded conduct and activities of its personnel. (11) Virgin Islands Housing Authority, by this program must meet all relevant All security guard personnel must be Virgin Islands. state, tribal or local government trained at a minimum in the areas Housing authorities that have their insurance, licensing, certification, described below in paragraph (2) of this own housing authority police training, bonding, or other similar law section. departments, but that are not included enforcement requirements. (1) An up-to-date policy manual, on this list must contact Malcolm E. (E) The applicant and the cooperating which contains the policies, procedures, Main, Crime Prevention and Security local law enforcement agency are and general orders that regulate conduct Division (CPSD), Office of Community required to enter into and execute a and describe in detail how jobs are to Relations and Involvement (OCRI), contract that describes the following: be performed, must exist or be Public and Indian Housing, Department (1) The activities to be performed by completed before a contract for services of Housing and Urban Development, the housing authority police, their scope can be executed. Room 4116, 451 Seventh Street, SW., of authority, established policies, (2) Areas that must be covered in the Washington, DC 20410, telephone (202) procedures, and practices that will security guard manual include but are 708–1197 to request approval before govern their performance (i.e., a Policy not limited to: use of force, resident they may apply for funding under this Manual as described in section contacts, response criteria to calls, paragraph. A telecommunications I.(c)(1)(ii)(F)), and how they will pursuits, arrest procedures, reporting of device for hearing or speech impaired coordinate their activities with the local, crimes and workload, feedback persons (TDD) is available at (202) 708– state and Federal law enforcement procedures to victims, citizens 0850. (These are not toll-free telephone agencies; complaint procedures, internal affairs numbers.) (2) The types of activities that the investigations, towing of vehicle, (A) If additional housing authority housing authority police are expressly authorized weapons and other police officers are to be employed for a prohibited from undertaking. equipment, radio procedures internally service that is also provided by a local (F) Housing authority police and with local police, training law enforcement agency, the applicant departments funded under this program requirements, patrol procedures, must provide a cost analysis/budget shall be guided by a policy manual (see scheduling of meetings with residents, narrative that demonstrates the paragraph (1) below) that regulates, record keeping and position employment of additional housing directs, and controls the conduct and descriptions on every post and authority police officers is more cost activities of its personnel. All HA police assignment. efficient than obtaining the service from officers must be trained at a minimum (F) If the security guard contractor the local law enforcement agency. in the areas described in paragraph (2), collects officer activity information (B) Additional housing authority below. (which the Department recommends) for police officers to be funded under this (1) An up-to-date public housing the housing authority, the contractor program must be an increase in the police department policy manual, must use a housing authority approved number of HA police officers authorized which contains the policies, procedures, activity form for the collection, analysis by the housing authority, although such and general orders that regulate conduct and reporting of activities by officers additional housing authority police and describe in detail how jobs are to funded under this section. Computers officers funded under a prior Drug be performed, must either exist or be and software may be included as an Elimination Program Grant may qualify completed within 12 months of the eligible item in support of this housing for funding as a continuing activity execution of the grant agreement. authority data collection activity. under section I.(c)(8) (Continuation of Applicants must submit a plan and (ii) Employment of Housing Authority Current Program Activities) of this timetable for the implementation of Police. Employment of additional NOFA. training staff. housing authority police officers is (C) An applicant seeking funding for (2) Areas that must be covered in the permitted only by housing authorities this activity must describe the baseline public housing police department that already have their own housing services by describing the current level manual include but are not limited to: 1850 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices use of force, resident contacts, response government agencies; assure feedback of vehicles; including cars, vans, buses, criteria to calls, pursuits, arrest police actions to victims of crime; and protective vests, and any other procedures, prisoner transport promote a law enforcement value supportive equipment, etc. procedures, reporting of crimes and system on the needs and rights of (K) Expenditures for activities under workload, feedback procedures to residents. this section will not be incurred by the victims, citizens complaint procedures, (J) Housing authority police grantee and/or funds released by the internal affairs investigations, towing of departments funded under this program local HUD Field Office until the grantee vehicle, authorized weapons and other that are not nationally or state has met all the above requirements. equipment, radio procedures internally accredited must submit a plan and (L) In order to assist housing and with local police, training timetable that may not exceed 24 authorities to develop and administer requirements, patrol procedures, months, from the execution of the grant relevant, fair, and productive contracts scheduling of meetings with residents, agreement, for such accreditation. with local law enforcement agencies for record keeping and position Housing authorities may use either their the delivery of effective services to descriptions on every post and state accreditation program, if one public housing residents, a sample assignment. exists, or the Commission on contract for law enforcement services is (G) If the housing authority police Accreditation for Law Enforcement provided with the application kit. department collects officer activity Agencies (CALEA) for this purpose. (2) Reimbursement of local law information (which the Department (1) The law enforcement community enforcement agencies for additional recommends), a housing authority developed a body of standards in 1981 security and protective services. approved activity form must be used for against which law enforcement agencies (i) Additional security and protective the collection, analysis and reporting of could be evaluated. While some states services to be funded under this activities by officers funded under this have their own law enforcement program must be over and above the section. Computers and software may be accreditation program, the nationwide baseline services, as defined below, that included as an eligible item in support accreditation program is managed by the the tribal, state or local government of this housing authority data collection CALEA, which is located in Fairfax, VA. provides to the applying housing activity. The purpose of accreditation is to authority. (H) Applicants for funding of reduce liability exposure of agencies (A) An applicant seeking funding for additional housing authority police and personnel, and to assure that law this activity must first establish a officers must have car-to-car (or other enforcement agencies meet a uniform baseline by describing the current level vehicles) and portable-to-portable radio body of standards. of services (in terms of the kinds of communications links between housing (2) The accreditation concept services provided, the number of authority police officers and local law emphasizes a voluntary, self-motivated officers and equipment and the actual enforcement officers to assure a approach by which organizations seek percent of their time assigned to the coordinated and safe response to crimes to achieve and maintain objectively developments proposed for funding) or calls for services. The use of scanners verified high quality operations through and then demonstrate to what extent the (radio monitors) is not sufficient to meet periodic evaluations conducted by an funded activity will represent an the requirements of this section. independent, non-governmental body increase over this baseline. Applicants that do not have such links that has established standards for its Baseline services are defined as those must submit a plan and timetable for the ‘‘clientele’’. In simple terms, ‘‘to law enforcement services the locality is implementation of such accredit’’ means to recognize or vouch contractually obligated to provide under communications links. for an agency as conforming to a body its Cooperation Agreement with the (I) Housing authority police of standards related to a specific applying housing authority (as required departments funded under this program discipline—in this instance, law by the housing authority’s Annual that are not employing a community enforcement. Contributions Contract). policing concept must submit a plan (3) The process for CALEA consists of (ii) Communications and security and timetable for the implementation of formal application, mutual aid contract, equipment to improve the collection, community policing. an in-depth self assessment, an on-site analysis, and use of information about (1) Community policing has a variety assessment by Commission-selected drug-related criminal activities in a of definitions; however, for the purposes practitioner assessors from outside the public housing community, such as of this program, it is defined as follows: state of the requesting agency, and final surveillance equipment (e.g., Closed Community policing is a method of Commission review and decision. Self- Circuit Television (CCTV), software, providing law enforcement services that assessment enables an agency to cameras, monitors, components and stresses a partnership among residents, establish proofs of compliance with supporting equipment), computers police, government services, the private standards specific to the agency to accessing national, tribal, state or local sector, and other local, state and Federal review its organization, management, government security networks and law enforcement agencies to prevent operations, and administrative activities databases, facsimile machines, crime by addressing the conditions and to determine if it believes it meets the telephone equipment, bicycles, and problems that lead to criminal activity requirements. Certain standards are motor scooters may be eligible items if and the fear of this type of activity. mandatory based on health, life, safety, used exclusively in connection with the (2) This method of policing involves a and importance to the community and establishment of a law enforcement philosophy of proactive measures, such the agency. substation on the funded premises or as foot patrols, bicycle patrols, and (4) Use of grant funds for public scattered site developments of the citizen contacts. This concept empowers housing police department accreditation housing authority. police officers at the beat and zone level activities is permitted. (iii) If the local law enforcement and residents in neighborhoods in an (5) Funding is not permitted to agency collects officer activity effort to: reduce crime and fear of crime; purchase or lease any military or law information (which the Department assure the maintenance of order; enforcement clothing or equipment, recommends) for the housing authority, provide referrals of residents, victims, such as vehicles, uniforms, ammunition, it must use a housing authority and the homeless to social services and firearms/weapons, military or police approved activity form for the Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices 1851 collection, analysis and reporting of (v) Funding is not permitted for the completed within 12 months of the activities by officers funded under this acquisition of real property. execution of the grant agreement. section. Computers and software may be (vi) All physical improvements must Applicants must submit a plan and included as an eligible item in support also be accessible to persons with timetable for the implementation of of this housing authority data collection disabilities. For example, some types of training staff. activity. locks, buzzer systems, doors, etc., are (B) Areas that must be covered in the (iv) The Department encourages not accessible to persons with limited manual include but are not limited to: housing authorities that are funded strength, mobility, or to persons who are use of force, resident contacts, response under this program to promote the hearing impaired. All physical criteria to calls, pursuits, arrest implementation of community policing. improvements must meet the procedures, reporting of crimes and For additional background on accessibility requirements of 24 CFR workload, feedback procedures to community policing, see the discussion part 8. victims, citizens complaint procedures, at section I.(c)(1)(ii)(I), above. (4) Employment of Investigators. internal affairs investigations, towing of (v) Funding is not permitted to (i) Employment of one or more vehicle, authorized weapons and other purchase or lease any military or law individuals is permitted under this equipment, radio procedures internally enforcement clothing or equipment, program to: and with local police, training such as vehicles, uniforms, ammunition, (A) Investigate drug-related crime in requirements, patrol procedures, firearms/weapons, military or police or around the real property comprising scheduling of meetings with residents, vehicles; including cars, vans, buses, any public and Indian housing record keeping and position protective vests, and any other development; and descriptions on every post and supportive equipment, etc. (B) Provide evidence relating to any assignment. (vi) Expenditures for activities under such crime in any administrative or (vi) If an investigator(s) collect activity this section will not be incurred by the judicial proceedings. information (which the Department (ii) Investigators funded by this recommends) for the housing authority, grantee and/or funds released by the program must meet all relevant tribal, a housing authority approved activity local HUD Field Office until the grantee state or local government insurance, form must be used for the collection, and the local law enforcement agency licensing, certification, training, analysis and reporting of activities by execute a contract for the additional law bonding, or other similar law investigators funded under this section. enforcement services. enforcement requirements. Computers and software may be (vi) In order to assist housing (iii) The applicant, the cooperating included as an eligible item in support authorities to develop and administer local law enforcement agency, and the of this housing authority data collection relevant, fair, and productive contracts investigator(s) are required, before any activity. with local law enforcement agencies for investigators are employed, to enter into (vii) Funding is not permitted to the delivery of effective services to and execute a written agreement that purchase or lease any military or law public and Indian housing residents a describes the following: enforcement clothing or equipment, sample contract for law enforcement (A) The nature of the activities to be such as vehicles, uniforms, ammunition, services is provided with the performed by the investigators, their firearms/weapons, military or police application kit. scope of authority, established policies, vehicles; including cars, vans, buses, (3) Physical Improvements To procedures, and practices that will protective vests, and any other Enhance Security. govern their performance (i.e., a Policy supportive equipment, etc. (i) Physical improvements that are Manual as described in section (viii) Expenditures for activities under specifically designed to enhance I.(c)(4)(v), below) and how they will this section will not be incurred by the security are permitted under this coordinate their activities with the local, grantee and/or funds released by the program. These improvements may state and Federal law enforcement local HUD Field Office until the grantee include (but are not limited to) the agencies; and has met all the above requirements. installation of barriers, lighting systems, (B) The types of activities that the (5) Voluntary Tenant Patrols. fences, surveillance equipment (e.g., investigators are expressly prohibited (i) The provision of training, Closed Circuit Television (CCTV), from undertaking. communications equipment, and other software, cameras, monitors, (iv) Under this section, reimbursable related equipment (including uniforms), components and supporting equipment) costs associated with the investigation for use by voluntary tenant patrols bolts, locks; the landscaping or of drug-related crime (e.g., travel acting in cooperation with officials of reconfiguration of common areas so as directly related to the investigator’s local law enforcement agencies is to discourage drug-related crime; and activities, or costs associated with the permitted under this program. Members other physical improvements in public investigator’s testimony at judicial or must be volunteers and must be tenants and Indian housing developments that administrative proceedings) may only of the public and Indian housing are designed to enhance security and be those incurred by the investigator. development that the tenant (resident) discourage drug-related activities. (v) Investigators funded under this patrol represents. Patrols established (ii) An activity that is funded under program shall be guided by a policy under this program are expected to any other HUD program, such as the manual (see below) that regulates, patrol for drug-related criminal activity modernization program at 24 CFR part directs, and controls their conduct and in the developments proposed for 968, shall not also be funded by this activities. All investigators must be assistance, and to report these activities program. trained at a minimum in the areas to the cooperating local law (iii) Funding is not permitted for described below in paragraph (B) of this enforcement agency and tribal, state and physical improvements that involve the section. Federal agencies, as appropriate. demolition of any units in a (A) An up-to-date policy manual, Grantees are required to obtain liability development. which contains the policies, procedures, insurance to protect themselves and the (iv) Funding is not permitted for any and general orders that regulate conduct members of the voluntary tenant patrol physical improvements that would and describe in detail how jobs are to against potential liability for the result in the displacement of persons. be performed, must either exist or be activities of the patrol under this 1852 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices program. The cost of this insurance will youth activities, and facilitate bringing must demonstrate that they will provide be considered an eligible program these resources onto the premises, or directly or otherwise make available expense. providing resident referrals to treatment services designed to distribute drug (ii) The applicant, the cooperating programs or transportation to out- education information, to foster local law enforcement agency, and the patient treatment programs away from effective parenting skills, and to provide members of the tenant patrol are the premises. Funding is permitted for referrals for treatment and other required, before putting the tenant reasonable, necessary and justified available support services in the patrol into effect and expending any purchasing or leasing of vehicles development or the community for grant funds, to enter into and execute a (whichever can be documented as the public and Indian housing families. written agreement that describes the most cost effective) for resident youth (C) Youth Services. Drug prevention following: and adult education and training programs must demonstrate that they (A) The nature of the activities to be activities directly related to ‘‘Programs have included groups composed of performed by the tenant patrol, the to reduce the use of drugs’’ under this young people as a part of their patrol’s scope of authority, the section. Alcohol-related activities/ prevention programs. These groups established policies, procedures, and programs are not eligible for funding must be coordinated by adults with the practices that will govern the tenant under this program. active participation of youth to organize patrol’s performance and how the patrol (i) Drug Prevention. Drug prevention youth leadership, sports, recreational, will coordinate its activities with the programs that will be considered for cultural and other activities involving local law enforcement agency; funding under this part must provide a public and Indian housing youth. The (B) The types of activities that a comprehensive drug prevention dissemination of drug education tenant patrol is expressly prohibited approach for public and Indian housing information, the development of peer from undertaking, to include but not residents that will address the leadership skills and other drug limited to, the carrying or use of individual resident and his or her prevention activities must be a firearms or other weapons, nightstick, relationship to family, peers, and the component of youth services. Activities clubs, handcuffs, or mace in the course community. Prevention programs must or services funded under this program of their duties under this program; include activities designed to identify may not also be funded under the Youth (C) Initial tenant patrol training and and change the factors present in public Sports Program. continuing training the members receive housing that lead to drug-related (D) Economic and Educational from the local law enforcement agency problems, and thereby lower the risk of Opportunities for Residents and Youth. (training by the local law enforcement drug usage. Drug prevention programs must agency is required before putting the Many components of a demonstrate a capacity to provide tenant patrol into effect); and comprehensive approach, such as public and Indian housing residents the (D) Tenant patrol members must be refusal and restraint skills training opportunities for interaction with or advised that they may be subject to programs or drug-related family referral to established higher education individual or collective liability for any counseling, may already be available in or vocational institutions with the goal actions undertaken outside the scope of the community of the applicant’s of developing or building on the their authority and that such acts are not housing developments, and the residents’ skills to pursue educational, covered under a housing authority’s applicant must act to bring those vocational and economic goals. The liability insurance. available program components onto the program must also demonstrate the (iii) Communication and related premises. Funding is permitted for ability to provide public and Indian equipment eligible for funding under reasonable, necessary and justified housing residents the opportunity to this program shall be equipment that is program costs, such as meals, beverages interact with private sector businesses reasonable, necessary, justified and and transportation, incurred only for in their immediate community for the related to the operation of the tenant training and education activities same desired goals. patrol and that is otherwise permissible directly related to ‘‘drug prevention (ii) Intervention. The aim of under tribal, State or local law. programs’’. Activities that should be intervention is to identify public and (iv) Under this program, bicycles, included in these programs are: Indian housing resident drug users and motor scooters and uniforms (caps and (A) Drug Education Opportunities. assist them in modifying their behavior other all seasonal clothing items that The causes and effects of illegal drug and in obtaining early treatment, if identify voluntary tenant patrol usage must be discussed in a formal necessary. The applicant must establish members, including patrol t-shirts and setting to provide both young people a program with the goal of preventing jackets) to be used by the members of and adults the working knowledge and drug problems from continuing once the tenant patrol are eligible items. skills they need to make informed detected. (v) Drug elimination grant funds may decisions to confront the potential and (iii) Drug Treatment. not be used for any type of financial immediate dangers of illegal drugs. (A) Treatment funded under this compensation, such as any full-time Grantees may contract (in accordance program shall be in or around the wages or salaries for voluntary tenant with 24 CFR 85.36) with professionals premises of the public and Indian patrol participants. to provide appropriate training or housing developments proposed for (6) Programs To Reduce the Use of workshops. The professionals funding. Drugs. Programs that reduce the use of contracted to provide these services (B) Funds awarded under this drugs in and around the premises of shall be required to base their services program shall be targeted towards the public and Indian housing upon the needs assessment and program development and implementation of developments, including drug abuse plan of the grantee. These educational new drug referral treatment services prevention, intervention, referral and opportunities may be a part of resident and/or aftercare (short and long care treatment programs, are permitted under meetings, youth activities, or other aftercare), or the improvement of, or this program. The program should gatherings of public and Indian housing expansion of such program services for facilitate drug prevention, intervention residents. public and Indian housing residents. and treatment efforts, to include (B) Family and Other Support (C) Each proposed drug program outreach to community resources and Services. Drug prevention programs should address the following goals: Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices 1853 (1) Increase public and Indian (RCs), and Resident Organizations problems that adversely impact the rest resident accessibility to drug treatment (ROs). Funding under this program is of the country. These areas are designed services; permitted for housing authorities to as HIDTA by the Director, Office of (2) Decrease criminal activity in and contract with RMCs and incorporated National Drug Control Policy pursuant around public and Indian housing RCs and ROs to develop security and to the Anti-Drug Abuse Act of 1988. As developments by reducing illicit drug drug abuse prevention programs of November 1994 the following areas use among public and Indian housing involving site residents. Such programs were confirmed by the Office of residents; and may include (but are not limited to) National Drug Control Policy Office, as (3) Provide services designed for voluntary tenant patrol activities, drug designated high intensity drug youth and/or maternal drug abusers, education, drug intervention, youth trafficking areas: e.g., prenatal and postpartum care, programs, referral, and outreach efforts. —Washington, DC–Baltimore, MD specialized counseling in women’s (8) Continuation of Current Program which includes: Washington, DC, issues, parenting classes, or other drug Activities. An applicant may apply to Alexandria, Arlington Cty, Fairfax supportive services. continue an existing activity funded Cty, Montgomery Cty, Prince Georges (D) Approaches that have proven under this program. The Department Cty, Charles Cty, Anne Arundel Cty, effective with similar populations will will evaluate an applicant’s Howard Cty, Baltimore Cty, and be considered for funding. Programs performance of the activity that the Baltimore, MD. should meet the following criteria: applicant wants to continue with —New York City (and a surrounding (1) Applicants may provide the additional funding under this NOFA. area that includes Nassau Cty, Suffolk service of formal referral arrangements The Department will review and County, and Westchester Cty, New to other treatment programs not in or evaluate the applicant’s conduct of the York, and all municipalities therein; around public and Indian housing activity under the previous grant, and Union Cty, Hudson Cty, and developments where the resident is able including financial and program Essex Cty, New Jersey, and all to obtain treatment costs from sources performance; reporting and special municipalities therein). other than this program. condition compliance; accomplishment —Los Angeles (and a surrounding area (2) Provide family and collateral of stated goals and objectives under the that includes Los Angeles Cty, Orange counseling. previous grant; and program Cty, Riverside Cty, and San (3) Provide linkages to educational adjustments made in response to Bernardino Cty, and all municipalities and vocational counseling. previous ineffective performance. Since therein). (4) Provide coordination of services to this is a competitive program, HUD does —Miami (and a surrounding area that appropriate tribal or local drug agencies, not guarantee continued funding of any includes Broward Cty, Dade County, HIV-related service agencies, and previously funded Drug Elimination and Monroe Cty, and all mental health and public health Program Grant. municipalities therein). programs. (9) PHA-Owned Housing. Funding (E) Applicants must demonstrate a may be used for the activities described —Houston (and a surrounding area that working partnership with the Single in sections I.(c) (1) through (7) (Eligible includes Harris Cty, Galveston Cty, State Agency or current tribal or state activities) of this NOFA, to eliminate and all municipalities therein). license provider or authority with drug/ drug-related crime in housing owned by —The Southwest Border (and adjacent prevention program coordination public housing agencies that is not areas that include San Diego and responsibilities to coordinate, develop public housing that is assisted under the Imperial Cty, California, and all and implement the drug treatment United States Housing Act of 1937 and municipalities therein; Yuma Cty, proposal. is not otherwise federally assisted (for Maricopa Cty, Pinal Cty, Pima Cty, (F) The Single State Agency or example, housing that receives tenant Santa Cruz Cty, and Cochise Cty, authority with drug/prevention program subsidies under Section 8 is federally Arizona, and all municipalities coordination responsibilities must assisted and would not qualify, but therein; Hidalgo Cty, Grant Cty, Luna certify that the drug/prevention housing that receives only state, tribal or Cty, Dona Ana Cty, Eddy Cty, Lea Cty, treatment proposal is consistent with local assistance would qualify), but only and Otero Cty, New Mexico, and all the state treatment plan; and that the if they meet all of the following: municipalities therein; El Paso Cty, treatment service meets all state (i) The housing is located in a high Hudspeth Cty, Culberson Cty, Jeff licensing requirements. intensity drug trafficking area Davis Cty, Presidio Cty, Brewster Cty, (G) Funding Is Not Permitted for designated pursuant to section 1005 of Pecos Cty, Terrell Cty, Crockett Cty, treatment of residents at any in-patient the Anti-Drug Abuse Act of 1988; and Val Verde Cty, Kinney Cty, Maverick medical treatment programs and (ii) The PHA owning the housing Cty, Zavala Cty, Dimmit Cty, La Salle facilities. demonstrates, on the basis of Cty, Webb Cty, Zapata Cty, Jim Hogg (H) Funding Is Not Permitted for information submitted in accordance Cty, Starr Cty, Hidalgo Cty, Willacy detoxification procedures, short term or with the requirements of sections Cty, and Cameron Cty, Texas, and all long term, designed to reduce or I.(d)(1), below, of this NOFA, that drug- municipalities therein). eliminate the presence of toxic related activity, and the problems —U. S. Virgin Islands and Puerto Rico. substances in the body tissues of a associated with such activity, at the For further information on high patient. housing has a detrimental affect on or intensity drug trafficking areas contact: (I) Funding Is Not Permitted for about the housing. For the purposes of Rich Yamamoto, at the Office of maintenance drug programs. this NOFA ‘‘on or about’’ means: on the National Drug Control Policy, Executive Maintenance drugs are medications that premises or immediately adjacent to the Office of the President, Washington, DC are prescribed regularly for a long premises of the real property comprising 20500. Telephone number: (202) 395– period of supportive therapy (e.g., the public or other federally-assisted 6755. methadone maintenance), rather than housing. (10) Ineligible Activities. Funding is for immediate control of a disorder. The High Intensity Drug Trafficking not permitted for any of the activities (7) Resident Management Areas (HIDTA) are areas identified as listed below or Those Specified as Corporations (RMCs), Resident Councils having the most critical drug trafficking Ineligible Elsewhere In This NOFA. 1854 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices (i) Funding Is Not Permitted for costs (xiii) Funding Is Not Permitted under (Maximum Points: 40) To permit HUD incurred before the effective date of the this NOFA for establishing councils, to make an evaluation on the basis of grant agreement, including, but not resident associations, resident this criterion, an application must limited to, consultant fees related to the organizations, and resident corporations include a description of the extent of development of an application or the since HUD funds these activities under drug-related crime and/or problems actual writing of the application. a separate NOFA. associated with it, in the developments (ii) Funding Is Not Permitted for the (xiv) Indirect costs as defined in OMB proposed for funding. An applicant purchase of controlled substances for Circular A–87 are not permitted under must explain, in the application, in any purpose, including law enforcement this program. Only direct costs are what way a problem claimed to be sting operations. permitted. associated with drug-related crime is a (iii) Funding Is Not Permitted for (xv) Funding Is Not Permitted for any result of drug-related crime. The compensating informants, including cash awards, such as scholarships, description should provide the confidential informants. prizes, etc. following information: (iv) Funding Is Not Permitted for the (xvi) Grant funds shall not be used to (i) Objective data. The best available purchase of law enforcement and/or any supplant existing positions or programs. objective data on the nature, source, and other vehicles, including cars, vans, (d) Selection Criteria frequency of the problem of drug-related buses, and motorcycles. crime and/or the problems associated (v) Funding Is Not Permitted to HUD will review each application with drug-related crime. This data may purchase or lease any military or law that it determines meets the include (but not necessarily be limited enforcement clothing or equipment, requirements of this NOFA and assign to): such as, vehicles, uniforms, points in accordance with the selection (A) The nature and frequency of drug- ammunition, firearms/weapons, military criteria. An application for funding related crime and problems associated or police vehicles, protective vests, and under this program may be for one or with drug-related crime as reflected by any other supportive equipment, etc. more eligible activities. crime statistics and other data from (vi) Drug elimination grant funds may An applicant may submit only one Federal, tribal, state or local law not be Used for any full-time wages or application under each Notice of enforcement agencies. salaries for voluntary tenant patrol Funding Availability (NOFA). Joint (B) Information from records on the participants. applications are not permitted under types and sources of drug-related crime (vii) Funding Is Not Permitted for the this program with the following in the developments proposed for costs of leasing, acquiring, constructing exception: housing authorities under a assistance. or rehabilitating any facility space in a single administration (such as housing (C) Descriptive data as to the types of building or unit. authorities managing another housing offenders committing drug-related crime (viii) Funding Is Not Permitted for authority under contract or housing in the applicant’s developments (e.g., organized fund raising, advertising, authorities sharing a common executive age, residence, etc.). financial campaigns, endowment drives, director) may submit a single (D) The number of lease terminations solicitation of gifts and bequests, rallies, application, even though each housing or evictions for drug-related criminal marches, community celebrations and authority has its own operating budget. activity. similar expenses. The number of points that an (E) The number of emergency room (ix) Funding Is Not Permitted for the application receives will depend on the admissions for drug use or that result costs of entertainment, amusements, or extent to which the application is from drug-related crime (such social activities, and for the expenses of responsive to the information requested information may not be available from items such as meals, beverages, in the selection criteria. An application police departments but only from fire lodgings, rentals, transportation, and must receive a score of at least 70 points departments or emergency medical gratuities related to these ineligible out of the maximum of 100 points that services agencies). activities. However, funding is permitted may be awarded under this competition (F) The number of police calls for for reasonable, necessary and justified to be eligible for funding. service (not just drug-related) such as, program costs, such as meals, beverages After applications have been scored, officer-initiated calls, domestic violence and transportation, incurred only for Headquarters will rank the applications calls, drug distribution complaints, training, and education activities on a national basis. Awards will be found drug paraphernalia, gang activity, directly related to ‘‘drug prevention made in ranked order until all funds are graffiti that reflects drugs or gang-related programs.’’ expended. HUD will select the highest activity, vandalism, drug arrests, and (x) Funding Is Not Permitted for the ranking applications that can be fully abandoned vehicles. costs (court costs, attorneys fees, etc.) funded. Applications with tie scores (G) The number of residents placed in related to screening or evicting residents will be selected in accordance with the treatment for substance abuse. for drug-related crime. However, procedures in paragraph I.(e) (Ranking (H) The school dropout rate and level investigators funded under this program Factors). The terms ‘‘housing’’ and of absenteeism for youth that the may participate in judicial and ‘‘development(s)’’ as used in the applicant can relate to drug-related administrative proceedings as provided application selection criteria and crime. (If crime or other statistics are not in paragraph I.(c)(4)(i)(B) (Employment submission requirements may include, available at the development or precinct of Investigators) of this NOFA. as appropriate, housing described in level, the applicant may use other (xi) Although participation in section I.(c)(9) (PHA-Owned Housing), reliable, objective data including those activities with Federal drug interdiction above, of this NOFA. Each application derived from its records or those of or drug enforcement agencies is submitted for a grant under this NOFA RMCs, RCs or ROs). encouraged, the transfer of drug will be evaluated on the basis of the (I) Where appropriate, the statistics elimination program funds to any following selection criteria: should be reported both in real federal agency is not permitted. (1) First Criterion: The Extent of the numbers, and as an annual percentage (xii) Alcohol-related activities and Drug-Related Crime Problem in the of the residents in each development programs are not eligible for funding Applicant’s Development or (e.g., 20 arrests in a year for distribution under this program. Developments Proposed for Assistance. of heroin in a development with 100 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices 1855 residents reflects a 20% occurrence (B) Vandalism cost and related Justice records do not contain rate). The data should cover the most vacancies attributable to drug-related community submission data, points will recent one-year period (a one-year crime. be assigned based on state metropolitan period ending within 3 months of the (C) Information from schools, health and nonmetropolitan averages relevant date of the application). If the data from service providers, residents and local, to such areas. (Maximum Points: 10) the most recent one-year period is not state, tribal, and Federal law (2) Second Criterion: The Quality of used, an explanation must be provided. enforcement agencies; and the opinions the Plan To Address the Crime Problem To the extent feasible, the data provided and observations of individuals having in the Public or Indian Housing should be compared with data from a direct knowledge of drug-related crime Developments Proposed for Assistance, prior one-year period to show whether and/or the problems associated with it Including the Extent to Which the Plan the current data reflects a percentage concerning the nature and frequency of Includes Initiatives That Can Be increase or decrease in drug-related these problems in the developments Sustained Over a Period of Several crime and/or its associated problems proposed for assistance. (These Years. (Maximum Points: 30) In during that prior period of time. individuals may include local, state, assessing this criterion, HUD will tribal, and Federal law enforcement consider the following factors: (J) A reduction in drug-related crime officials, resident or community leaders, (i) To permit HUD to make an in public and Indian housing school officials, community medical evaluation on the basis of this criterion, developments where previous Drug officials, drug treatment or counseling an application must include the Elimination grants have been in effect professionals, or other social service applicant’s plan for addressing drug- will not be considered a disadvantage to providers.) related crime and/or its associated the applicant. (iii) In awarding points, HUD will problems. This means a narrative (K) If funding is being sought for evaluate the extent to which the description of the applicant’s activities housing owned by public housing applicant has provided the above data for addressing drug-related crime and/or agencies that is not public housing that reflects a drug-related crime its associated problems in each of the assisted under the United States problem, both in terms of the frequency developments proposed for assistance Housing Act of 1937 and is not and nature of the drug-related problems under this part must be included in the otherwise federally assisted, the associated with drug-related crime in application. The activities eligible for application must demonstrate that the the developments proposed for funding funding under this program are listed in housing is located in a high intensity as reflected by information submitted section I.(c) of this NOFA, above, drug trafficking area designated under paragraph (1)(i) (objective data), although the applicant’s plan must pursuant to section 1005 of the Anti- and (ii) (other data) of this section; and include all of the activities that will be Drug Abuse Act of 1988, and the the extent to which such data reflects an undertaken to address the problem, application must demonstrate that drug- increase in drug-related crime over a whether or not they are funded under related activity, and the problems period of one year in the developments this program. If the same activities are associated with it, at the housing has a proposed for assistance. (Maximum proposed for all of the developments detrimental affect on or about the real Points Under Paragraphs (i) and (ii) of that will be covered by the plan, the property comprising the public or other This Section: 15) activities do not need to be described federally assisted low-income housing. (iv) In awarding points, HUD will separately for each development. Where For the purposes of this NOFA ‘‘on or evaluate the extent to which the different activities are proposed for about’’ means: on the premises or applicant has analyzed the data different developments, these activities immediately adjacent to the premises of compiled under paragraphs (1)(i) and and the developments where they will the real property comprising the public (ii) of this section, and has clearly take place must be separately described. or other federally-assisted housing. articulated its needs for reducing drug- The description of the plan in the related crime in developments proposed application must include (but not (ii) Other data on the extent of drug- for assistance. (Maximum Points: 5) necessarily be limited to) the following related crime. To the extent that (v) In awarding points, HUD will information: objective data as described above may evaluate and assign points between zero (A) A narrative describing each not be available, or to complement that (0) and ten (10) according to the per activity proposed for Drug Elimination data, the assessment may use data from capita incidence of robbery and Program funding in the applicant’s plan, other sources that have a direct bearing homicide in their community relative to any additional relevant activities being on drug-related crime and/or the their per capita incidence on a undertaken by the applicant (e.g., a drug problems associated with it in the nationwide basis. Data on robbery and treatment program for residents funded developments proposed for assistance homicide incidence were chosen by an agency other than HUD), and how under this program. However, if other because of the demonstrated all of these activities interrelate. The relevant information is to be used in relationship of a substantial portion of applicant should specifically address place of, rather than to complement, these crimes with drug abuse. The whether it plans to implement a objective data, the application must community data will be taken from the comprehensive drug elimination indicate the reasons why objective data Uniform Crime Reports (UCRs) of the strategy that involves management could not be obtained and what efforts U.S. Department of Justice (FBI crime practices, enforcement/law enforcement were made to obtain it. Examples of data) and will be at the city level, when techniques (such as community these data include (but are not available, or at the county level. The policing), and a combination of drug necessarily limited to): crime incidence data and the point abuse prevention, intervention, referral, (A) Resident and staff surveys on values will be computed by HUD. and treatment programs. In addition, the drug-related issues or on-site reviews to (Maximum Points: 10) applicant should indicate how its determine drug activity; and local (vi) In awarding points, HUD will proposed activities will complement, government or scholarly studies or other evaluate and assign points between zero and be coordinated with, current research in the past year that analyze (0) and ten (10) according to the per activities. drug activity in the targeted capita incidence of drug arrests. In (1) If grant amounts are to be used for developments. instances where the Department of contracting security guard personnel 1856 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices services in public and Indian housing milestones, and completing) each proposed activities provide for a developments the application must activity in the plan. comprehensive approach to eliminate describe how the requirements of (D) The role of tenants, and RMCs, drug-related crime and/or its associated section I.(c)(1)(i) (Employment of RCs, and ROs (where these problems (as described under the first Security Personnel) of this NOFA will organizations exist) in planning and criterion, section I.(d)(1), ‘‘The extent of be met. developing the application for funding the drug-related crime problem’’ of this (2) If grant amounts are to be used for and in implementing the applicant’s NOFA, above) in the developments public housing authority police officers plan. The application must provide the proposed for funding. (Maximum the application must describe how the name of the RMC or incorporated RC or Points: 10) requirements of section I.(c)(1)(ii) (HA RO that will develop any security and (B) The applicant’s plan provides a Police Departments) of this NOFA will drug abuse prevention programs under budget narrative with cost analysis for be met. section I.(c)(7) (RMCs, RCs, and ROs) of each activity and describes the financial (3) If grant amounts are to be used for this NOFA involving site residents. and other resources (under this program reimbursement of local law enforcement (E) The role of any other entities (e.g., and other sources) that may reasonably agencies for additional security and tribal, local and state governments, be expected to be available to carry out protective services the application must community organizations and Federal each activity. (Maximum Points: 5) describe how the requirements of agencies) in planning and carrying out (C) The applicant’s plan is realistic in section I.(c)(2) (Reimbursement of Local the plan. This can be shown, for terms of time, personnel, and other Law Enforcement Agencies) of this example, by providing letters of support resources, considering the applicant’s NOFA will be met. or commitment from governmental or timetable for beginning and completing (4) If grant amounts are to be used for private entities of the financial or other each component of the plan and the physical improvements in public and resources (e.g., staff or in-kind amount of funding requested under this resources) that they agree to provide. Indian housing developments proposed program and other identified resources (F) The resources that the applicant for funding under section I.(c)(3) available to the applicant. (Maximum may reasonably expect to be available at (Physical Improvements) of this NOFA Points: 2) the end of the grant term to continue the (D) As described in the plan, tenants, the application must discuss how these plan, and how they will be allocated to improvements will be coordinated with and RMCs/RCs/ROs, where they exist, plan activities that can be sustained are involved in planning and the applicant’s modernization program, over a period of years. if any, under 24 CFR part 968 or 24 CFR developing the application for funding (G) A discussion of how the and in implementing the applicant’s part 905, subpart I. applicant’s plan will serve to provide (5) If grant amounts are to be used for plan. (Maximum Points: 3) training and employment or business (E) As described in the plan, other employment of investigators the opportunities for lower income persons entities (e.g., tribal, local and state application must describe how the and businesses located in, or governments and community requirements of section I.(c)(4) substantially owned by persons residing organizations) are involved in planning (Employment of Investigators) of the within the area of the section 3 covered and carrying out the applicant’s plan. NOFA will be met. project (as defined in 24 CFR part 135) (Maximum Points: 2) (6) If grant amounts are to be used for in accordance with 24 CFR 961.26(d) (F) The plan includes activities that voluntary tenant patrols the application and 24 CFR 961.29(b)(4). Housing can be sustained over a period of years must describe how the requirements of authorities are encouraged to hire and identifies resources that the section I.(c)(5) (Voluntary tenant patrol) qualified residents in all positions. applicant may reasonably expect to be of this NOFA will be met. (H) Program evaluation. The plan available for the continuation of the (7) If grant amounts are to be used for must specifically discuss how the activities at the end of the grant term. a prevention, intervention or treatment activities funded under this program (Maximum Points: 3) program to reduce the use of drugs in will be evaluated by the applicant, so (G) The applicant’s plan will serve to and around the premises of public and that the program’s progress can be provide training and employment or Indian housing developments as measured. The evaluation may also be business opportunities for lower income provided in I.(c)(6) (Programs to Reduce used to modify activities to make them persons and businesses located in, or the Use of Drugs) of this NOFA, the more successful or to identify substantially owned by persons residing application must discuss the nature of unsuccessful strategies. The evaluation within the area of the section 3 covered the program, how the program must identify the types of information project (as defined in 24 CFR part 135) represents a prevention or intervention the applicant will need to measure the in accordance with 24 CFR 961.26(d) strategy, and how the program will plan’s success (e.g. tracking changes in and 24 CFR 961.29(b)(4). (Maximum further the HA’s strategy to eliminate identified crime statistics); and indicate Points: 2) drug-related crime and/or its associated the method the applicant will use to (H) The applicant has developed an problems in the developments proposed gather and analyze this information. evaluation process to measure the for assistance. (ii) In assessing this criterion, HUD success of the plan. (Maximum Points: (B) The anticipated cost of each will consider the quality and 3) activity in the plan, a description of how thoroughness of an applicant’s plan in (3) Third Criterion: The Capability of funding decisions were reached (cost terms of the information requested in the Applicant To Carry Out the Plan. analysis), and the financial and other section I.(d)(2)(i), ‘‘Quality of the plan,’’ (Maximum Points: 15) In assessing this resources (including funding under this of this NOFA, including the extent to criterion, HUD will consider the program, and from other resources) that which: following factors: may reasonably be expected to be (A) The applicant’s plan clearly (i) The extent of the applicant’s available to carry out each activity. describes the activities that are being administrative capability to manage its (C) An implementation timetable that proposed by the applicant, including housing developments, as measured by includes tasks, deadlines, cost and those activities to be funded under this its performance with respect to persons responsible for implementing program and those to be funded from operative HUD requirements under the (beginning, achieving identified other sources, and indicates how these ACC or ACA and the Public Housing Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices 1857 Management Assessment Program at 24 reports, and HUD reviews. (Maximum no resident or resident organization CFR part 901. In evaluating Points: Plus (+) 7 or Minus (¥) 7 Points) comments, the applicant must provide administrative capability under this (4) Fourth Criterion: The Extent to an explanation of the steps taken to factor, HUD will also consider, and the Which Tenants, the Local Government encourage participation, even though application must include in the form of and the Local Community Support and they were not successful. (Maximum a narrative discussion, the following Participate in the Design and Points: 2) information: Implementation of the Activities (iv) The extent to which the applicant (A) Whether there are any unresolved Proposed To Be Funded Under the is already undertaking, or has findings from prior HUD reports (e.g. Application. (Maximum Points: 15) In undertaken, participation in local, state, performance or finance), reviews or assessing this criterion, HUD will tribal or Federal anti-drug related crime audits undertaken by HUD, the Office of consider the following factors: efforts (such as Operation Weed and the Inspector General, the General (i) The application must include a Seed, Operation Safe Home, or Accounting Office, or independent discussion of the extent to which Operation PACT) or is successfully public accountants; community representatives and tribal, coordinating its law enforcement (B) Whether the applicant is operating local, state and Federal government activities with local, state, tribal or under court order; and, officials are actively involved in the federal law enforcement agencies. (C) If applicable, the progress made by design and implementation of the (Maximum Points: 4) applicant’s plan, as evidenced by a troubled housing authority in (e) Ranking Factors achieving goals established under a descriptions of planning meetings held Memorandum of Agreement (MOA) with community representatives and (1) Each application for a grant award local government officials, letters of executed with HUD. (Maximum Points that is submitted in a timely manner to commitment to provide funding, staff, Under Paragraph (3)(i)(A)(B) and (C) of the local HUD Field Office with or in-kind resources, or written This Section: 2) delegated public housing comments on the applicant’s planned responsibilities or, in the case of IHAs, (ii) The application must discuss the activities. (Maximum Points: 5) to the appropriate Field Office of Native extent to which the applicant has (ii) The application must discuss the American Programs (FONAPs), that implemented effective screening extent to which the relevant otherwise meets the requirements of this procedures to determine an individual’s governmental jurisdiction has met its NOFA, will be evaluated in accordance suitability for public housing (consistent law enforcement obligations under the with the selection criteria specified with the requirements of 42 U.S.C. Cooperation Agreement with the above. 3604(f), 24 CFR 100.202, 29 U.S.C. 794 applicant (as required by the grantee’s (2) An application must receive a and 24 CFR 8.4 which deal with Annual Contributions Contract with score of at least 70 points out of the individuals with disabilities); HUD). The application must also maximum of 100 points that may be implemented a plan to reduce include a certification by the Chief awarded under this competition to be vacancies; implemented eviction Executive Officer (CEO) of a state or a eligible for funding. procedures in accordance with 24 CFR unit of general local government in (3) After applications have been part 966, subpart B, 25 CFR 905.340 and which the developments proposed for scored, Headquarters will rank the Section 503 of NAHA; or undertaken assistance are located that the locality is applications on a national basis. other management actions to eliminate meeting its obligations under the (4) In the event that two eligible drug-related crime and/or its associated Cooperation Agreement with the applications receive the same score, and problems in its developments. housing authority, Particularly with both cannot be funded because of (Maximum Points: 2) regard to current baseline law insufficient funds, the application with (iii) The application must identify the enforcement services. If the jurisdiction the highest score in Selection Criterion applicant’s participation in HUD grant is not meeting its obligations under the 3 ‘‘The Capability of the Applicant To programs (such as CGP, CIAP, youth Cooperation Agreement, the CEO should Carry Out the Plan’’ will be selected. If sports, child care, resident management, identify any special circumstances Selection Criterion 3 is scored Drug Elimination Program grants, etc.) relating to its failure to do so. Whether identically for both applications, the within the preceding three years, and or not a locality is meeting its scores in Selection Criteria 1, 2, and 4 discuss the degree of the applicant’s obligations under the Cooperation will be compared in this order, one at success in implementing and managing Agreement with the applicant, the a time, until one application scores these grant programs. (Maximum Points: application must describe the current higher in one of the factors and is 4) level of law enforcement services being selected. If the applications score (iv) The local HUD Field Office shall provided to the developments proposed identically in all factors, the application evaluate the extent of the applicant’s for assistance. (Maximum Points: 4) that requests less funding will be success, effort, or failure in (iii) The extent to which public and selected. implementing and managing an Indian housing development residents (5) All awards will be made to fund effective program under previous Drug (tenants), and an RMC, RC or RO, where fully an application, except as provided Elimination grants (preceding three they exist, are involved in the planning in paragraph I.(b)(4) (Reduction of years). Successful and effective and development of the grant Requested Grant Amounts and Special management of previous Drug application and plan strategy, and Conditions). Elimination grant program(s) will result support and participate in the design (f) General Grant Requirements. The in up to 7 (seven) extra points. Evidence and implementation of the activities following requirements apply to this of an unjustified failure to make proposed to be funded under the program: adjustments to an ineffective program application. The application must (1) Grantees are required to use grant will result in a deduction of up to 7 include a summary of each written funds under this program in accordance (seven) points. This evaluation will be resident and resident organization with this NOFA, 24 CFR part 961, 24 based upon HUD’s Line of Credit comment, as required by 24 CFR 961.18, CFR part 85, 24 CFR part 84, applicable Control System (LOCCS) reports, and the applicant’s response to and statutes, HUD regulations, Notices, PHDEP performance and financial action on these comments. If there are Handbooks, OMB circular, grant 1858 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices agreements/amendments, and the coordinator, and support staff, such as (G) Does not submit reports; or grantee’s approved plan, budget (SF– counselors and clerical staff) hired for (H) Files a false certification, for 424A), budget narratives and timetable. grant activities IS PERMITTED and may example, those listed under section I.(d) (2) Applicability of OMB Circular and include wages, salaries, and fringe of this NOFA. HUD fiscal and audit controls. The benefits. (ii) HUD may impose the following policies, guidelines, and requirements (iii) All grant personnel must be sanctions: of this NOFA, 24 CFR part 961, 24 CFR necessary, reasonable and justified. Job (A) Temporarily withhold cash part 85, 24 CFR part 84, and OMB descriptions must be provided for all payments pending correction of the Circular A–87 apply to the acceptance grant personnel. Excessive staffing is not deficiency by the grantee or subgrantee; and use of assistance by grantees under permitted. (B) Disallow all or part of the cost of this program; and OMB Circular Nos. (iv) Housing authority staff the activity or action not in compliance; A–110 and A–122 apply to the responsible for management/ (C) Wholly or partly suspend or acceptance and use of assistance by coordination of PHDEP programs shall terminate the current award for the private nonprofit organizations be compensated with grant funds only grantee’s or subgrantee’s program; (including RMCs, RCs and ROs). In for work performed directly for PHDEP (D) Require that some or all of the addition, grantees and subgrantees must grant-related activities and shall grant amounts be remitted to HUD; comply with fiscal and audit controls document the time and activity involved (E) Condition a future grant and elect and reporting requirements prescribed in accordance with 24 CFR 85.20. not to provide future grant funds to the by HUD, including the system and audit (5) Term of Grant. The FY 95 grant grantee until appropriate actions are requirements under the Single Audit project must be completed within, and taken to ensure compliance; Act, OMB Circular No. A–128 and shall not exceed, 24 months from the (F) Withhold further awards for the HUD’s implementing regulations at 24 date of execution of the grant agreement, program or CFR part 44; and OMB Circular No. A– unless an extension and grant (G) Take other remedies that may be 133. amendment (HUD Form 1044) are legally available. (3) Cost Principles. Specific guidance approved by the local HUD Field Office. (8) Notification. After completion of in this NOFA, 24 CFR part 961, 24 CFR After the award of the grant the the ranking and environmental reviews part 85, 24 CFR part 84, OMB Circular maximum extension allowable for any as required by 24 CFR 961.15(d), HUD A–87, other applicable OMB cost project period is 6 months. Any funds will send written notification to all principles, HUD program regulations, not expended at the end of the grant applicants of whether or not they have Notices, HUD Handbooks, and the terms term shall be remitted to HUD. been selected. of grant/special conditions and subgrant (6) Duplication of Funds. To prevent (9) Grant Agreement. After an agreements will be followed in duplicate funding of any activity, the application has been approved, HUD determining the reasonableness and grantee must establish controls to assure and the applicant shall enter into a grant allocability of costs. All costs must be that an activity or program that is agreement (Form HUD–1044) setting reasonable, necessary and justified with funded by other HUD programs, such as forth the amount of the grant and its cost analysis. PHDEP Funds must be modernization or CIAP, or programs of applicable terms, conditions, financial disbursed by the grantee within seven other Federal agencies, shall not also be controls, payment mechanism/schedule, calendar days after receipt of funded by the Drug Elimination Grant and special conditions, including drawdown. Grant funds must be used Program. The grantee must establish an sanctions for violation of the agreement. only for Drug Elimination Program auditable system to provide adequate The grant agreement (Form HUD–1044) purposes. Direct costs are those that can accountability for funds which it has will be effective upon the signature of be identified specifically with a been awarded. The applicant has the the Director, Public Housing Division or particular activity or function in this responsibility to ensure there is no Administrator, FONAP. NOFA and cost objectives in OMB duplication of funding sources. II. Application Process Circular A–87. Indirect cost are not (7) Sanctions. permitted in this program. (i) HUD may impose sanctions if the (a) Application Kit: An application kit Administrative requirements for Drug grantee: may be obtained, and assistance Elimination Program grants will be in (A) Is not complying with the provided, from the local HUD Field accordance with 24 CFR part 85. requirements of 24 CFR part 961 or of Office with delegated public housing Acquisition of property or services shall other applicable Federal law; responsibilities over an applying public be in accordance with 24 CFR 85.36. All (B) Fails to make satisfactory progress housing agency, or from the Field Office equipment acquisitions will remain the toward its drug elimination goals, as of Native American Programs having property of the grantee in accordance specified in its plan and as reflected in jurisdiction over the Indian housing with 24 CFR 85.32. ONAP procurement its performance and financial status authority making an application, or by standards are in 24 CFR part 905. reports under 24 CFR 961.28; calling HUD’s Community Relations and (4) Grant Staff Personnel. (i) All (C) Does not establish procedures that Involvement Clearinghouse, telephone persons or entities compensated by the will minimize the time elapsing 1–800–578–3472. The application kit grantee for services provided under a between drawdowns and contains information on all exhibits and Drug Elimination Program grant must disbursements; certifications required under this NOFA. meet all applicable personnel or (D) Does not adhere to grant (b) Application Submission: procurement requirements and shall be agreement requirements or special Applications are due on or before required as a condition of employment conditions; Friday, April 14, 1995, at 3:00 PM, local to meet all relevant state, local and (E) Proposes substantial plan changes time. This application deadline is firm tribal government, insurance, training, to the extent that, if originally as to date and hour. In the interest of licensing, or other similar standards and submitted, would have resulted in the fairness to all competing applicants, the requirements. application not being selected for Department will treat as ineligible for (ii) Compensation for personnel funding; consideration any application that is (including supervisory personnel, such (F) Engages in the improper award or received after the deadline. Applicants as a grant administrator or drug program administration of grant subcontracts; should take this practice into account Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices 1859 and make early submission of their prior to submitting the application. Chief Executive Officer (CEO) of a state, materials to avoid any risk of loss of Applicants must compute the maximum tribal or a unit of general local eligibility brought about by grant award amount for which they are government in which the developments unanticipated delays or other delivery- eligible (eligible dollar amount per unit proposed for assistance are located that: related problems. x (times) number of units listed in the (i) Grant funds provided under this Applications (original and two copies) housing authority low-rent operating program will not substitute for activities must be physically received by the budgets (form HUD–52564) for housing currently being undertaken on behalf of deadline at the local HUD Field Office authority fiscal year ending June 30, the applicant by the jurisdiction to with delegated public housing September 30, December 31, 1994 or address drug-related crime and/or its responsibilities Attention: Director, March 31, 1995 and compare it with the associated problems; Public Housing Division, or, in the case dollar amount requested in the (ii) Any reimbursement of local law of IHAs, to the local HUD Field Office application to make certain the amount enforcement agencies for additional of Native American Programs Attention: requested does not exceed the permitted security and protective services to be Administrator, Field Office of Native maximum grant award. provided under section I.(c)(2) of this American Programs, as appropriate. It is (e) Standard Form SF–424B, NOFA meet the requirements of that not sufficient for an application to bear Assurances, (non-construction section. a postage date within the submission programs) for pre-award assurances. (5) A certification from the chief of time period. Applications submitted by The applicant must complete and sign the local law enforcement agency: facsimile are not acceptable. the form. The form is provided in the (i) If the application is for Applications received after the deadline application kit. employment of security guard (f) Certifications. Applications must date and hour, Friday, April 14, 1995, personnel, that the law enforcement include the following certifications at 3:00 PM, local time, will not be agency has entered into, or will enter (certifications are provided in the considered. into, an agreement with the applicant application kit): III. Checklist of Application (1) A certification that the applicant and the provider of the security Submission Requirements will maintain a drug-free workplace in personnel in accordance with the To qualify for a grant under this accordance with the requirements of the requirements of sections I.(c)(1) program, the application submitted to Drug-Free Workplace Act of 1988, 24 (Employment of security guard HUD shall include, in addition to those CFR part 24, subpart F. (Applicants may personnel) of this NOFA; requirements listed under section I.(d) submit a copy of their most recent drug- (ii) If the application is for (Selection Criteria) of this NOFA, free workplace certification, which must employment of investigators, that the including the plan to address the be dated within the past year.) law enforcement agency has entered problem of drug-related crime in the (2) A certification and disclosure in into, or will enter into, an agreement developments proposed for funding, at accordance with the requirements of with the applicant and the investigators, least the following items: section 319 of the Department of the in accordance with the requirements of (a) Applicant Data Form. The Interior and Related Agencies sections I.(c)(4) (Employment of applicant must complete the form for Appropriations Act for Fiscal Year 1990 investigators) of this NOFA; database entry. The form is provided in (31 U.S.C. 1352) and the implementing (iii) If the application is for voluntary the application kit. regulations at 24 CFR part 87. These tenant (resident) patrol funding, that the (b) Application for Federal authorities generally prohibit recipients law enforcement agency has entered Assistance, Standard Form SF–424. The and subrecipients of Federal contracts, into, or will enter into, an agreement SF–424 is the face sheet for the grants, cooperative agreements and with the applicant and the voluntary application. The applicant must loans from using appropriated funds for tenant patrol, in accordance with the complete and sign the form. The form is lobbying the Executive or Legislative requirements of sections I.(c)(5) provided in the application kit. Branches of the Federal Government in (voluntary tenant (resident) patrol) of (c) Standard Form SF–424A Budget connection with a specific, contract, this NOFA. Information (non-construction grant, or loan. Indian housing (6) A certification by the RMC, RC or programs), with attached budget authorities established by an Indian RO, or other involved resident group narrative(s) for budget preparation, with tribe as a result of the exercise of their where an RMC, RC or RO do not exist, all supporting justification and sovereign power are excluded from that the residents participated in the documentation. The SF–424A, with coverage, but Indian housing authorities preparation of the grant application attached budget narrative, must be established under state law are not with the applicant, and that the completed and the applicant must excluded from coverage. applicant’s description of the activities describe each major activity proposed (3) If applying for drug treatment that the resident group will implement for funding, e.g., employment of program funding, a certification by the under the program is accurate and security personnel (security guards and applicant that the applicant has notified complete. housing authority police officers), and consulted with the relevant local (g) HUD Form 2880, Applicant reimbursement of local law enforcement tribal commission, Single State Agency Disclosures. The form is provided in the services, physical improvements, or other local authority with drug application kit. employment of investigators, voluntary program coordination responsibilities IV. Corrections To Deficient tenant (resident) patrols, drug concerning its application; and that the Applications prevention, intervention, and treatment proposed drug prevention/treatment programs to reduce the use of drugs. program has been reviewed by the (a) HUD will notify an applicant, in The budget narrative form(s)/cost relevant local tribal commission, Single writing, of any curable technical analysis must be attached to the SF– State Agency or other local authority deficiencies in the application. The 424A. The form is provided in the and is consistent with the tribal or State applicant must submit corrections in application kit. treatment plan. accordance with the information (d) Applicants must verify their unit (4) A certification (the certification is specified in HUD’s letter within 14 count with the local HUD field office provided in the application kit) by the calendar days from the date of HUD’s 1860 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices letter notifying the applicant of any the Age Discrimination Act of 1975 (42 well-being within the meaning of the such deficiency. U.S.C. 6101–07) and implementing Order. This rule would implement a (b) Curable technical deficiencies regulations at 24 CFR part 146, and the program that would encourage HAs to relate to items that: prohibitions against discrimination develop a plan for addressing the (i) Are not necessary for HUD review against handicapped individuals under problem of drug-related crime, and to under selection criteria/ranking factors; section 504 of the Rehabilitation Act of make available grants to help housing and 1973 (29 U.S.C. 794) and implementing authorities to carry out this plan. As (ii) Would not improve the quality of regulations at 24 CFR part 8; such, the program is intended to the applicant’s program proposal. (4) The requirements of Executive improve the quality of life of public and (c) An example of a curable technical Order 11246 (Equal Employment Indian housing development residents, deficiency would be the failure of an Opportunity) and the regulations issued including families, by reducing the applicant to submit a required under the Order at 41 CFR Chapter 60; incidence of drug-related crime. assurance, budget narrative, (5) The requirements of Executive (e) Section 102 HUD Reform Act— certification, applicant data form, Orders 11625, 12432, and 12138. Documentation and Public Access summaries of written resident Consistent with HUD’s responsibilities Requirements; Applicant/Recipient comments, incomplete forms such as under these Orders, recipients must Disclosures. Documentation and public the SF–424 or lack of required make efforts to encourage the use of access. HUD will ensure that signatures, appendixes and minority and women’s business documentation and other information documentation referenced in the enterprises in connection with funded regarding each application submitted application or a computational error activities. pursuant to this NOFA are sufficient to based on the use of an incorrect (b) Environmental Impact. Grants indicate the basis upon which number(s) such as incorrect unit counts. under this program are categorically assistance was provided or denied. This These items are discussed in the excluded from review under the material, including any letters of application kit and samples, as National Environmental Policy Act of support, will be made available for appropriate, are provided. 1969 (NEPA) in accordance with 24 CFR public inspection for a five-year period (d) An example of a non-curable 50.20(p). However, prior to an award of beginning not less than 30 days after the defect or deficiency would be a missing grant funds, HUD will perform an award of the assistance. Material will be SF–424A (Budget Information). environmental review to the extent made available in accordance with the required by HUD’s environmental Freedom of Information Act (5 U.S.C. V. Other Matters regulations at 24 CFR part 50, including 552) and HUD’s implementing (a) Nondiscrimination and Equal the applicable related authorities at 24 regulations at 24 CFR part 15. In Opportunity. The following CFR 50.4. addition, HUD will include the nondiscrimination and equal (c) Federalism impact. The General recipients of assistance pursuant to this opportunity requirements apply: Counsel, as the Designated Official NOFA in its quarterly Federal Register (1) The requirements of Title VIII of under section 6(a) of Executive Order notice of all recipients of HUD the Civil Rights Act of 1968, 42 U.S.C. 12612, Federalism, has determined that assistance awarded on a competitive 3600–20 (Fair Housing Act) and the policies contained in this rule will basis. (See 24 CFR 12.14(a) and 24 CFR implementing regulations issued at not have substantial direct effects on 12.16(b), and the notice published in the subchapter A of title 24 of the Code of States or their political subdivisions, or Federal Register on January 16, 1992 Federal Regulations, as amended by 54 the relationship between the Federal (57 FR 1942), for further information on FR 3232 (published January 23, 1989); government and the states, or on the these requirements.) Executive Order 11063 (Equal distribution of power and Disclosures. HUD will make available Opportunity in Housing) and responsibilities among the various to the public for five years all applicant implementing regulations at 24 CFR part levels of government and, therefore, the disclosure reports (HUD Form 2880) 107; and title VI of the Civil Rights Act provisions of this rule do not have submitted in connection with this of 1964 (42 U.S.C. 2000d-2000d-4) ‘‘Federalism implications’’ within the NOFA. Update reports (also Form 2880) (Nondiscrimination in Federally meaning of the Order. The rule will be made available along with the Assisted Programs) and implementing implements a program that encourages applicant disclosure reports, but in no regulations issued at 24 CFR Part 1; housing authorities to develop a plan for case for a period less than three years. (2) The Indian Civil Rights Act (ICRA) addressing the problem of drug-related All reports—both applicant disclosures (Title II of the Civil Rights Act of 1968, crime, and makes available grants to and updates—will be made available in 25 U.S.C. 1301–1303) provides, among housing authorities to help them carry accordance with the Freedom of other things, that ‘‘no Indian tribe in out their plans. As such, the program Information Act (5 U.S.C. 552) and exercising powers of self-government would help housing authorities combat HUD’s implementing regulations at 24 shall...deny to any person within its serious drug-related crime problems in CFR part 15. (See 24 CFR subpart C, and jurisdiction the equal protection of its their developments, thereby the notice published in the Federal laws or deprive any person of liberty or strengthening their role as Register on January 16, 1992 (57 FR property without due process of law.’’ instrumentalities of the States. In 1942), for further information on these The Indian Civil Rights Act applies to addition, further review under the Order disclosure requirements.) any tribe, band, or other group of is unnecessary, since the rule generally (f) Section 103 HUD Reform Act. Indians subject to the jurisdiction of the tracks the statute and involves little HUD’s regulation implementing section United States in the exercise of implementing discretion. 103 of the Department of Housing and recognized powers of self-government. (d) Family Impact. The General Urban Development Reform Act of 1989 The ICRA is applicable in all cases Counsel, as the Designated Official for was published May 13, 1991 (56 FR where an IHA has been established by Executive Order 12606, the Family has 22088) and became effective on June 12, exercise of tribal powers of self- determined that the provisions of this 1991. That regulation, codified as 24 government. rule have the potential for a positive, CFR part 4, applies to the funding (3) The prohibitions against although indirect, impact on family competition announced today. The discrimination on the basis of age under formation, maintenance and general requirements of the rule continue to Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices 1861 apply until the announcement of the appropriated funds for lobbying the Buffalo, New York HUD Field Office selection of successful applicants. Executive or Legislative branches of the Public Housing Division, Lafayette Court, 5th HUD employees involved in the federal government in connection with Floor, 465 Main Street, Buffalo, New York review of applications and in the a specific contract, grant, or loan. The 14203–1780, (716) 846–5755, TDD making of funding decisions are limited prohibition also covers the awarding of Number: Number not available, Office by part 4 from providing advance contracts, grants, cooperative hours: 8:00 am–4:30 pm local time. information to any person (other than an agreements, or loans unless the Newark, New Jersey HUD Field Office authorized employee of HUD) recipient has made an acceptable Public Housing Division, One Newark concerning funding decisions, or from certification regarding lobbying. Center—12th Floor, Newark, New Jersey otherwise giving any applicant an unfair Under 24 CFR part 87, applicants, 07102–5260, (201) 622–7900, TDD competitive advantage. Persons who recipients, and subrecipients of Number: (201) 645–6649, Office hours: apply for assistance in this competition assistance exceeding $100,000 must 8:30 am–5:00 pm local time. should confine their inquiries to the certify that no federal funds have been HUD—Midatlantic Area: Pennsylvania, subject areas permitted under 24 CFR or will be spent on lobbying activities in Washington, D.C., Maryland, Delaware, part 4. connection with the assistance. Indian Virginia, West Virginia Applicants who have questions Housing Authorities (IHAs) established Philadelphia, Pennsylvania HUD Field Office should contact the HUD Office of Ethics by an Indian tribe as a result of the Public Housing Division, Liberty Square (202) 708–3815. (This is not a toll-free exercise of their sovereign power are Building, 105 South 7th Street, number.) The Office of Ethics can excluded from coverage, but IHAs provide information of a general nature Philadelphia, Pennsylvania 19106–3392, established under state law are not (215) 597–2560, TDD Number: (215) 597– to HUD employees, as well. However, a excluded from coverage. 5564, Office hours: 8:00 am–4:30 pm local HUD employee who has specific time. program questions, such as whether Authority: Sec. 5127, Public Housing Drug Elimination Act of 1988 (42 U.S.C. 11901 et Washington, D.C. HUD Field Office particular subject matter can be seq.); sec. 7(d), Department of Housing and Public Housing Division, 820 First Street discussed with persons outside the Urban Development Act (42 U.S.C. 3535(d)). Department, should contact his or her N.E., Washington, D.C. 20002–4502, (202) Dated: December 21, 1994. 275–9200, TDD Number: (202) 275–0967, Regional or Field Office Counsel, or Joseph Shuldiner, Headquarters counsel for the program to Office hours: 8:00 am–4:30 pm local time. Assistant Secretary for Public and Indian Baltimore, Maryland HUD Field Office which the question pertains. Housing. (g) Section 112 HUD Reform Act. Public Housing Division, 10 South Howard Section 13 of the Department of Housing Appendix A: Listing of Addresses for HUD Street, 5th Floor, Baltimore, Maryland and Urban Development Act contains Field Offices Accepting Applications for the 21201–2505, (401) 962–2520, TDD two provisions dealing with efforts to FY 1995 Public Housing Drug Elimination Number: (410) 962–0106, Office hours: influence HUD’s decisions with respect Program. 8:00 am–4:30 pm local time. to financial assistance. The first imposes HUD—New England Area: Connecticut, Pittsburgh, Pennsylvania HUD Field Office disclosure requirements on those who Maine, Massachusetts, New Hampshire, Public Housing Division, Old Post Office are typically involved in these efforts— Rhode Island, Vermont Courthouse Building, 700 Grant Street, those who pay others to influence the Boston, Massachusetts HUD Field Office Pittsburgh, Pennsylvania 15219–1939, award of assistance or the taking of a Public Housing Division, Thomas P. O’Neill, (412) 644–6428, TDD Number: (412) 644– management action by the Department Jr. Federal Building, 10 Causeway Street, 5747, Office hours: 8:00 am–4:30 pm local and those who are paid to provide the Room 375, Boston, MA 02222–1092, (617) time. influence. The second restricts the 565–5234, TDD Number: (617) 565–5453, Richmond, Virginia HUD Field Office payment of fees to those who are paid Office hours: 8:30 am–5:00 pm local time. Public Housing Division, The 3600 Centre, to influence the award of HUD Hartford, Connecticut HUD Field Office 3600 West Broad Street, P.O. Box 90331, assistance, if the fees are tied to the Public Housing Division, 330 Main Street, Richmond, Virginia 23230–0331, (804) number of housing units received or are Hartford, Connecticut 06106–1860, (203) 278–4507, TDD Number: (804) 278–4501, based on the amount of assistance 240–4522, TDD Number: (203) 240–4665, Office hours: 8:00 am–4:30 pm local time. received, or if they are contingent upon Office hours: 8:00 am–4:30 pm local time. Charleston, West Virginia HUD Field Office the receipt of assistance. Manchester, New Hampshire HUD Field Public Housing Division, 405 Capitol Street, Section 13 was implemented by final Office Suite 708, Charleston, West Virginia rule published in the Federal Register Public Housing Division, Norris Cotton 25301–1795, (304) 347–7000, TDD on May 17, 1991 (56 FR 22912). If Federal Building, 275 Chestnut Street, Number: (304) 347–5332, Office hours: readers are involved in any efforts to Manchester, New Hampshire 03101–2487, 8:00 am–4:30 pm local time. influence the Department in these ways, (603) 666–7681, TDD Number: (603) 666– HUD—Southeast Area: Alabama, Florida, they are urged to read the final rule, 7518, Office hours: 8:00 am–4:30 pm local Georgia, Kentucky, Mississippi, North particularly the examples contained in time. Carolina, South Carolina, Tennessee, appendix A of the rule. Providence, Rhode Island HUD Field Office Caribbean, Virgin Islands (h) Prohibition Against Lobbying Public Housing Division, 10 Weybosset Atlanta, Georgia HUD Field Office Street, Sixth Floor, Providence, Rhode Activities. The use of funds awarded Public Housing Division, Richard B. Russell Island 02903–2808, (401) 528–5351, TDD under this NOFA is subject to the Federal Building, 75 Spring Street, S.W., Number: (401) 528–5364, Office hours: disclosure requirements and Atlanta, Georgia 30303–3388, (404) 331– 8:00 am–4:30 pm local time. prohibitions of section 319 of the 5136, TDD Number: (404) 730–2654, Office Department of Interior and Related HUD—New York, New Jersey Area: New hours: 8:00 am–4:30 pm local time. Agencies Appropriations Act for Fiscal York, New Jersey Birmingham, Alabama HUD Field Office Year 1990 (31 U.S.C. 1352) (The ‘‘Byrd New York HUD Field Office Public Housing Division, 600 Beacon Amendment’’) and the implementing Public Housing Division, 26 Federal Plaza, Parkway West, Suite 300, Birmingham, regulations at 24 CFR part 87. These New York, New York 10278–0068, (212) Alabama 35209–3144, (205) 290–7601, authorities prohibit recipients of federal 264–6500, TDD Number: (212) 264–0927, TDD Number: (205) 290–7624, Office contracts, grants, or loans from using Office hours: 8:30 am–5:00 pm local time. hours: 7:45 am–4:30 pm local time. 1862 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices Louisville, Kentucky HUD Field Office 46204–2526, (317) 226–6303, TDD New Orleans, Louisiana HUD Field Office Public Housing Division, 601 West Number: (317)226–7081, Office hours: 8:00 Public Housing Division, Fisk Federal Broadway, P.O. Box 1044, Louisville, am–4:45 pm local time. Building, 1661 Canal Street, Suite 3100, Kentucky 40201–1044, (502) 582–6161, Grand Rapids, Michigan HUD Field Office New Orleans, Louisiana 70112–2887, (504) TDD Number: (502) 582–5139, 589–7251, TDD Number: Number not Public Housing Division, 2922 Fuller Jackson, Mississippi HUD Field Office available, Office hours: 8:00 am–4:30 pm Avenue, N.E., Grand Rapids, Michigan local time. Public Housing Division, Doctor A.H. McCoy 49505–3499, (616) 456–2127, TDD Federal Building, 100 West Capitol Street, Number: Number not available, Office Oklahoma City, Oklahoma HUD Field Office Room 910, Jackson, Mississippi 39269– hours: 8:00 am–4:45 pm local time. Public Housing Division, Alfred P Murrah 1096, (601) 975–4746, TDD Number: (601) Minneapolis-St. Paul, Minnesota HUD Field Federal Building, 200 N.W. 5th Street, 975–4717, Office hours: 8:00 am–4:45 pm Office Room 803, Oklahoma City, Oklahoma local time. 73102–3202, (405) 231–4857, TDD Public Housing Division, Bridge Place Greensboro, North Carolina HUD Field Office Number: (405) 231–4891, Office hours: Building, 220 2nd Street South, 8:00 am–4:30 pm local time. Public Housing Division, 2306 West Minneapolis, Minnesota 55401–2195, (612) Albuquerque, New Mexico HUD Field Office Meadowview Road, Greensboro, North 370–3000, TTD Number: (612) 370–3186, Carolina 27407, (919) 547–4000, TDD Office hours: 8:00 am–4:30 pm local time. Public Housing Division, 625 Truman Street Number: 919–547–4055, Office hours: 8:00 N.E., Albuquerque, NM 87110–6472, (505) am–4:45 pm local time. Cincinnati, Ohio HUD Field Office 262–6463, TDD Number: (505) 262–6463, Caribbean HUD Field Office Public Housing Division, 525 Vine Street, Office hours: 7:45 am–4:30 pm local time. Suite 700, Cincinnati, Ohio 45202–3188, Public Housing Division, New San Office Great Plains: Iowa, Kansas, Missouri, (513) 684–2884, TDD Number: (513) 684– Building, 159 Carlos East Chardon Avenue, Nebraska, 6180, Office hours: 8:00 am– 4:45 pm local San Juan, Puerto Rico 00918–1804, (809) time. Kansas City, Kansas HUD Field Office 766–6121, TDD Number: Number not available, Office hours: 8:00 am–4:30 pm Cleveland, Ohio HUD Field Office Public Housing Division, Gateway Tower II, local time. 400 State Avenue, Room 400, Kansas City, Public Housing Division, Renaissance Kansas 66101–2406, (913) 551–5488, TDD Columbia, South Carolina HUD Field Office Building, 1375 Euclid Avenue, Fifth Floor, Number: (913) 551–5815, Office hours: Public Housing Division, Strom Thurmond Cleveland, Ohio 44115–1815, (216) 522– 8:00 am–4:30 pm local time. 4065, TTD Number: Number not available, Federal Building, 1835 Assembly Street, Omaha, Nebraska HUD Field Office Columbia, South Carolina 29201–2480, Office hours: 8:00 am–4:40 pm local time. (803) 765–5592, TDD Number: Number not Columbus, Ohio HUD Field Office Public Housing Division, 10909 Mill Valley available, Office hours: 8:00 am–4:45 pm Road, Omaha, Nebraska 68154–3955, (402) Public Housing Division, 200 North High local time. 492–3100, TDD Number: (402) 492–3183, Street, Columbus, Ohio 43215–2499, (614) Office hours: 8:00 am–4:30 pm local time. Knoxville, Tennessee HUD Field Office 469–5737, TDD Number: Number not St. Louis, Missouri HUD Field Office Public Housing Division, John J. Duncan available, Office hours: 8:30 am–4:45 pm Federal Building, 710 Locust Street, S.W., local time. Public Housing Division, 1222 Spruce Street, St. Louis, Missouri 63103–2836, (314) 539– Room 333, Knoxville, Tennessee 37902– Milwaukee, Wisconsin HUD Field Office 2526, (615) 545–4384, TDD Number: (615) 6583, TDD Number: (314) 539–6331, Office 545–4379, Office hours: 7:30 am–4:15 pm Public Housing Division, Henry S. Reuss hours: 8:00 am–4:30 pm local time. local time. Federal Plaza, 310 West Wisconsin Des Moines, Iowa HUD Field Office Avenue, Suite 1380, Milwaukee, Nashville, Tennessee HUD Field Office Wisconsin 53203–2289, (414) 291–3214, Public Housing Division, Federal Building, Public Housing Division, 251 Cumberland TDD Number: Number not available, Office 210 Walnut Street, Room 239, Des Moines, Bend Drive, Suite 200, Nashville, hours: 8:00 am–4:30 pm local time. Iowa 50309–2155, (515) 284–4512, TDD Tennessee 37228–1803, (615) 736–5213, Number: (515) 284–4728, Office hours: TDD Number: (615) 736–2886, Office HUD—Southwest Area: Arkansas, Louisiana, 8:00 am–4:30 pm local time. New Mexico, Oklahoma, Texas hours: 7:45 am–4:15 pm local time. HUD—Rocky Mountains Area: Colorado, Jacksonville, Florida HUD Field Office Fort Worth, Texas HUD Field Office Montana, North Dakota, South Dakota, Utah, Pubic Housing Division, Southern Bell Public Housing Division, 1600 Throckmorton Wyoming Towers, 301 West Bay Street, Suite 2200, Street, Room 304, P.O. Box 2905, Fort Denver, Colorado HUD Field Office Jacksonville, Florida 32202–5121, (904) Worth, Texas 76113–2905, (817) 885–5934, Public Housing Division, First Interstate 232–2626, TDD Number: (904) 232–2357, TDD Number: (817) 885–5447, Office Tower North, 633 17th Street, Denver, CO Office hours: 7:45 am–4:30 pm local time. hours: 8:00 am–4:30 pm local time. 80202–3607, (303) 672–5248, TDD HUD—Midwest Area: Illinois, Indiana, Houston, Texas HUD Field Office Number: (303) 672–5248, Office hours: Michigan, Minnesota, Ohio, Wisconsin Public Housing Division, Norfolk Tower, 8:00 am–4:30 pm local time. Chicago, Illinois HUD Field Office 2211 Norfolk, Suite 300, Houston, Texas HUD—Pacific/Hawaii Area: Arizona, 77098–4096, (713) 834–3235, TDD Public Housing Division, Ralph H. Metcalfe California, Hawaii, Nevada, Guam, America Federal Building, 77 West Jackson Number: Number not available, Office Samoa hours: 7:45 am–4:30 pm local time. Boulevard, Chicago, IL 60604, (312) 353– San Francisco, California HUD Field Office 5680, TTD Number: (312) 353–7143, Office San Antonio, Texas HUD Field Office hours: 8:15 am–4:45 pm local time. Public Housing Division, Philip Burton Public Housing Division, Washington Square, Federal Building and U.S. Courthouse, 450 Detroit, Michigan HUD Field Office 800 Dolorosa Street, Room 206, San Golden Gate Avenue, P.O. Box 36003, San Public Housing Division, Patrick V. Antonio, Texas 78207–4563, (512) 229– Francisco, California 94102–3448, (415) McNamara Federal Building, 477 Michigan 6783, TDD Number: (512) 229–6783, Office 556–4752, TDD Number: (415) 556–8357, Avenue, Room 1645, Detroit, Michigan hours: 8:00 am–4:30 pm local time. Office hours: 8:15 am–4:45 pm local time. 48226–2592, (313) 226–6880, TDD Little Rock, Arkansas HUD Field Office Honolulu, Hawaii HUD Field Office Number: (313) 226–7812, Office hours: Public Housing Division, TCBY Tower, 425 8:00 am–4:30 pm local time. Public Housing Division, 7 Waterfront Plaza, West Capitol Avenue, Room 900, Little 500 Ala Moana Boulevard, Room 500, Indianapolis, Indiana HUD Field Office Rock, Arkansas 72201–3488, (501) 324– Honolulu, Hawaii 96813–4918, (808) 541– Public Housing Division, 151 North Delaware 5935, TDD Number: (501) 324–5931, Office 1323, TDD Number: (808) 541–1356, Office Street, Suite 1200, Indianapolis, Indiana hours: 8:00 am–4:30 pm local time. hours: 8:00 am–4:00 pm local time Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices 1863 Los Angeles, California HUD Field Office HUD Offices of Native American Programs Southwest Area—Tribes and IHAs: Arizona, California, New Mexico, Nevada, and Isleta Public Housing Division, 1615 West Olympic Eastern/Woodlands Area Tribes and IHAs: Del Sur in Texas Boulevard, Los Angeles, California 90015– East of the Mississippi River, Including All of Phoenix, Arizona HUD Field Office of Native 3801, (213) 251–7122, TDD Number: (213) Minnesota and Iowa American Programs 251–7038, Office hours: 8:00 am–4:30 pm Eastern/Woodlands HUD Field Office of Southwest Office of Native American local time. Native American Programs Programs, Two Arizona Center, Suite 1650, Sacramento, California HUD Field Office Eastern/Woodlands Office of Native Phoenix, Arizona 85004–2361, (602) 379– American Programs, Ralph H. Metcalfe 4156, TDD Number: (602) 379–4461, Office Public Housing Division, 777 12th Avenue, Federal Building, 77 West Jackson hours: 8:15 am–4:45 pm local time or Suite 200, P.O. Box 1978, Sacramento, Boulevard, Room 2400, Chicago, IL Albuquerque, HUD Division of Native California 95814–1997, (916) 498–5270, 60604, (312) 353–1282 or (800) 735– American Programs TDD Number: (916) 498–5220, Office 3239, TDD Number: (312) 886–3741 or hours: 8:00 am–4:30 pm local time. Albuquerque Division of Native American (800) 927–9275, Office hours: 8:15 am– Programs, Albuquerque Plaza, 201 3rd Phoenix, Arizona HUD Field Office 4:45 pm local time. Street, NW, Suite 1830, Albuquerque, New Mexico 87102–3368, (505) 766–1372, TDD Southern Plains Area—Tribes and IHAs: Public Housing Division, Two Arizona Number: None available, Office hours: 7:45 Center, 400 North 5th Street, Suite 1600, Louisiana, Missouri, Kansas, Oklahoma, and am–4:30 pm local time or Phoenix, Arizona 85004–2361, (602) 261– Texas, Except for Isleta Del Sur in Texas Northern California Division of Native 4434, TDD Number: (602) 379–4461, Office Oklahoma City, Oklahoma HUD Field Office American Programs, 450 Golden Gate hours: 8:00 am–4:30 pm local time. of Native American Programs Avenue, 8th Floor, Box 36003, San Francisco, CA 94102–3448, (415) 556– Southern Plains Office of Native American HUD—Northwest/Alaska Area: Alaska, 9200, TDD Number: (415) 556–8357. Idaho, Oregon, Washington Programs, Alfred P Murrah Federal Building, 200 N.W. 5th Street, 8th Floor, Northwest Area—Tribes and IHAs: Idaho, Seattle, Washington HUD Field Office Oklahoma City, OK 73102–3201, (405) Oregon, and Washington 231–4101, TDD Number: (405) 231–4891 or Seattle, Washington HUD Field Office of Public Housing Division, Seattle Federal (405) 231–4181, Office hours: 8:00 am–4:30 Native American Programs Office Building, 909 First Avenue, Suite pm local time. 200, Seattle, WA 98104–1000, (206) 220– Northwest Office of Native American Programs, Seattle Federal Office Building, 5292, TDD Number: (206) 220–5185, Office Northern Plains Area—Tribes and IHAs: 909 First Avenue, Suite 300, Seattle, WA hours: 8:00 am–4:30 pm local time. Colorado, Montana, Nebraska, North Dakota, 98104–1000, (206) 220–5270, TDD South Dakota, and Wyoming Portland, Oregon HUD Field Office Number: (206) 220–5185, Office hours: Denver, Colorado HUD Field Office of Native 8:00 am–4:30 pm local time. American Programs Public Housing Division, 520 S.W. 6th Alaska Area—Tribes and IHAs: Alaska Avenue, Portland, Oregon 97203–1596, Northern Plains Office of Native American Anchorage, Alaska HUD Field Office of (503) 326–2561, TDD Number: (503) 326– Programs, First Interstate Tower North, 633 3656, Office hours: 8:00 am–4:30 pm local Native American Programs 17th Street, 14th Floor, Denver, CO 80202– time. Alaska Office of Native American Programs, 3607, (303) 672–5462, TDD Number: (303) University Plaza Building, 949 East 36th Anchorage, Alaska HUD Field Office 844–6158, Office hours: 8:00 am–4:30 pm Avenue, Suite 401, Anchorage, Alaska local time. 99508–4399, (907) 271–4633, TDD Public Housing Division, University Plaza Number: (907) 271–4328. Building, 949 East 36th Avenue, Suite 401, Anchorage, Alaska 99508–4399, (907) 271– [FR Doc. 95–260 Filed 1–4–95; 8:45 am] 4170, TDD Number: (907) 271–4328. BILLING CODE 4210±33±P federal register January 5,1995 Thursday and NonmetalMines;ProposedRule Safety StandardsforExplosivesatMetal 30 CFRParts56and57 Mine SafetyandHealthAdministration Department ofLabor Part III 1865 1866 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Proposed Rules DEPARTMENT OF LABOR standards for metal and nonmetal mines temperatures, clarifying MSHA’s in January 1991 (56 FR 2070). Prior to original intent. Mine Safety and Health Administration the effective date of the rule, MSHA B. Section-by-Section Analysis stayed several provisions due to 30 CFR Parts 56 and 57 compliance issues raised by the mining The following analysis examines the RIN 1219±AA84 community and explosives proposed rule and its effect on existing manufacturers. The provisions involved standards. Safety Standards for Explosives at were subsequently reproposed on Definitions Metal and Nonmetal Mines October 16, 1992, (57 FR 47524) for Sections 56/57.6000 definition of AGENCY: Mine Safety and Health revision and clarification. On December 30, 1993, (58 FR 69596), MSHA laminated partition. The existing Administration, Labor. definition of ‘‘laminated partition’’ in 30 published the final rule which became ACTION: Proposed rule. CFR 56/57.6000 describes the effective on January 31, 1994. composition of partitions that may be SUMMARY: This proposed rule would In February 1994, the American Mining Congress (AMC) and the used to separate detonators from other revise certain provisions of the Mine explosive materials and specifically Institute of Makers of Explosives (IME) Safety and Health Administration’s states that the IME–22 container or each filed a petition for review of the (MSHA) safety standards for explosives compartment meets the criteria of a final rule with the United States Court at metal and nonmetal mines. The ‘‘laminated partition.’’ This definition of Appeals for the District of Columbia proposal would revise the standards for and the nominal dimensions of the Circuit, in American Mining Congress, use of a ‘‘laminated partition’’ as it partition’s requirements were derived et al. v. MSHA, Docket No. 94–1146, relates to requirements for powder from IME’s Safety Library Publication and in IME v. MSHA, Docket No. 94– chests and the separation of transported No. 22, ‘‘Recommendations for the Safe 1144. AMC requested that MSHA explosive material. The proposal would Transportation of Detonators in a reconsider evidence in the rulemaking also revise existing provisions related to Vehicle with other Explosive record regarding the ‘‘continuous loading and firing of explosive Materials,’’ 1985. The IME has informed loading’’ requirements of §§ 56/ materials, and establish new MSHA that use of the term ‘‘laminated 57.6306(c), Loading and blasting. In requirements when loading is partition’’ as defined by MSHA, under addition, AMC requested that the interrupted or firing of explosive the provisions of §§ 56/57.6133 and 56/ materials is delayed. The proposal also Agency clarify the preamble discussion 57.6201, raises safety concerns. clarifies the application of existing to §§ 56/57.6202(a)(1), concerning Specifically, the IME stated that the provisions concerning the protection of vehicles containing explosive materials. IME–22 compartment or container explosive materials from impact and IME argued for revision of §§ 56/ should not be used as a ‘‘laminated exposure to high temperatures. In 57.6000, the definition of ‘‘laminated partition’’ when certain detonators are addition, the proposal would revise and partition,’’ and corresponding changes transported with explosives or blasting clarify the existing provisions in §§ 56/57.6133(b), Powder chests, and agents in the same vehicle or stored addressing static electricity dissipation §§ 56/57.6201 (a)(2) and (b)(2), together in powder chests because such during loading. The Agency’s intent Separation of transported explosive use is contrary to IME’s concerning requirements for vehicles material. Also, IME requested that containing explosive material is recommendations. MSHA reconsider information in the The use of a ‘‘laminated partition’’ to clarified, with no proposed regulatory rulemaking record regarding the separate certain detonators from change. requirements of §§ 56/57.6602, Static explosives or blasting agents when DATES: All comments, information and electricity dissipation during loading. transported or stored together in powder MSHA is conducting this rulemaking requests for a public hearing must be chests is an accepted practice with a pursuant to section 101 of the Federal submitted by March 6, 1995. good safety record in the mining Mine Safety and Health Act of 1977 ADDRESSES: Send written comments to industry. It is, therefore, MSHA’s (Mine Act). Patricia W. Silvey, Director, Office of intention to continue to recognize this Standards, Regulations and Variances, III. Discussion and Summary of the practice. At the same time, MSHA MSHA, Room 631, Ballston Tower No. Proposed Rule acknowledges that the limitations for 3, 4015 Wilson Boulevard, Arlington, use of such compartments or containers A. General Discussion Virginia 22203. Interested persons are must be followed to protect miners from encouraged to send comments on a Historically, hazards associated with the hazards of an unplanned ignition. computer disk along with their original the storage, transportation, and use of MSHA, therefore, proposes to revise comments in hard copy. explosive materials have been a cause of the existing definition of ‘‘laminated FOR FURTHER INFORMATION CONTACT: serious injuries and fatalities in metal partition.’’ The proposed definition will Patricia W. Silvey, Director, Office of and nonmetal mines. Precautions to specify the construction requirements Standards, Regulations and Variances, safeguard against these hazards are an for a ‘‘laminated partition’’ as described MSHA, (703) 235–1910. essential part of any effective mine in the IME Safety Library Publication safety program. SUPPLEMENTARY INFORMATION: No. 22 (May 1993) and the Generic This proposal addresses issues raised Loading Guide for the IME–22 Container I. Paperwork Reduction Act in the rule challenges noted above. The (October 1993). The definition would This proposed rule contains no proposal also addresses issues based also recognize alternative construction information collection or paperwork upon MSHA’s experience and requirements specified in these requirements subject to the Paperwork establishes new requirements for blast publications. Reduction Act of 1980. site security when loading is interrupted In addition, MSHA proposes to revise or firing is delayed. In addition, the the existing requirements for Powder II. Rulemaking Background proposal would revise the scope of the chests, §§ 56/57.6133, and Separation of MSHA published comprehensive existing requirements for protecting transported explosive material, §§ 56/ revisions to its explosives safety explosive material from impact and high 57.6201, to incorporate by reference the Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Proposed Rules 1867 IME Safety Library Publication No. 22, would be incorporated by reference and compliance with MSHA regulatory ‘‘Recommendations for the Safe are available at MSHA headquarters in provisions. This was not a requirement Transportation of Detonators in a Arlington, VA and at all Metal and included in the regulation, nor the Vehicle with other Explosive Nonmetal Mine Safety and Health Agency’s intent. Materials,’’ (May 1993) and the ‘‘Generic District Offices. In the future, MSHA On September 30, 1994, MSHA issued Loading Guide for the IME–22 will consider modifying these Program Policy Letter No. P94–IV–3, Container,’’ (October 1993). With these incorporations to reflect substantive clarifying the meaning of the term ‘‘good revisions, using a ‘‘laminated partition’’ updates of the publications. condition.’’ MSHA’s use of the term to separate certain detonators from ‘‘good condition’’ is intended to mean Transportation explosives or blasting agents would that the mine vehicle must be in a continue to be permitted, provided the Sections 56/57.6201 Separation of condition consistent with safe operating limitations set by IME for use of a transported explosive material. Existing practices. A vehicle that is road worthy ‘‘laminated partition’’ are followed. §§ 56/57.6201 contain requirements for can generally be expected to be in good These IME publications would be transporting detonators with other condition. MSHA does not intend for available at MSHA headquarters in explosive material. Specifically, the term ‘‘good condition’’ to mean that Arlington, VA and at all Metal and paragraphs (a)(2) and (b)(2) provide for mine vehicles must pass Federal, State Nonmetal Mine Safety and Health detonators to be separated from and local licensing requirements for District Offices. In the future, MSHA explosives or blasting agents by 4 inches over-the-road use. Vehicles carrying will consider modifying these of hardwood, laminated partition or explosive materials must comply with incorporations to reflect substantive equivalent. the requirements of subpart M of §§ 56/ updates of the publications. As discussed above, since the early 57.14000 et seq. Subpart M—Machinery 1970’s, MSHA has required 4 inches of and Equipment, addresses the Storage hardwood or equivalent to separate maintenance requirements for all self- Sections 56/57.6133 Powder chests. detonators from explosives or blasting propelled mobile equipment used on Existing §§ 56/57.6133, concerning agents when transported together in the mine property. powder chests, provide for the storage of same vehicle. The purpose of the 4 detonators with other explosive inches of hardwood is to provide Use materials. Specifically, existing sufficient separation of explosive Sections 56/57.6302 Separation of paragraph (b) requires that detonators be materials from detonators to protect explosive material and Sections 56/ kept in separate chests from explosives against propagation should detonators 57.6905 Separation of explosive or blasting agents, except that be initiated by outside forces, such as material and hang-up blasting. detonators and explosives may be kept impact. Paragraph (a) of existing §§ 56/57.6302 in the same compartment or container if Likewise, the proposal will continue requires that explosives and blasting separated by 4 inches of hardwood, to allow the use of other construction agents be kept separate from detonators laminated partition, or equivalent. materials that are equivalent to 4 inches until loading begins. This provision Since the early 1970’s, MSHA has of hardwood. This equivalent material remains unchanged. The section required 4 inches of hardwood or must provide at least the same heading of §§ 56/57.6302 would be equivalent to separate detonators from protection as the 4 inches of hardwood revised to read ‘‘Separation of explosive explosives or blasting agents when as demonstrated by testing. material.’’ stored together. The purpose of the 4 As discussed above under the Existing paragraph (b) requires that inches of hardwood is to provide definition of ‘‘laminated partition,’’ the explosive material be protected from sufficient separation of explosive proposal would permit a compartment impact and temperatures in excess of materials from detonators to protect or container meeting the definition of a 150 °F when taken to the blast site. As against propagation should detonators ‘‘laminated partition’’ to be used to discussed below, experience in the be initiated by outside forces. separate certain detonators from application of this standard has led The proposal will also continue to explosives or blasting agents. When a MSHA to propose that these two allow the use of other construction ‘‘laminated partition’’ is used, the paragraphs be separated and clarified. materials that are equivalent to 4 inches proposal would require the provisions In 1993, MSHA promulgated §§ 56/ of hardwood. This equivalent material of IME Safety Library Publication No. 22 57.6302 under the ‘‘Use’’ portion of the must provide at least the same ‘‘Recommendations for the Safe explosives regulations, thereby creating protection as the 4 inches of hardwood Transportation of Detonators in a confusion as to whether explosives must as demonstrated by testing. Vehicle with other Explosive be protected from impact during As discussed above under the Materials,’’ (May 1993) and the ‘‘Generic transportation and storage as well. definition of ‘‘laminated partition,’’ the Loading Guide for the IME–22 MSHA’s intent was to require protection proposal would permit a compartment Container,’’ (October 1993) to be of explosive material from impact and or container meeting the definition of a followed. These IME publications high temperatures generally, not just ‘‘laminated partition’’ to be used to would be incorporated by reference and during use. The proposal would move separate certain detonators from are available at MSHA headquarters in existing paragraph (b) of §§ 56/57.6302 explosives or blasting agents. When a Arlington, VA and at all Metal and to ‘‘General Requirements’’ and ‘‘laminated partition’’ is used, the Nonmetal Mine Safety and Health ‘‘General Requirements—Surface and proposal would require the provisions District Offices. Underground’’. For surface mines, the of IME Safety Library Publication No. Sections 56/57.6202 Vehicles. The provision would be codified as 22, ‘‘Recommendations for the Safe 1993 preamble discussion to §§ 56/ § 56.6905, with the section heading Transportation of Detonators in a 57.6202(a)(1) led to some ‘‘Explosive material protection.’’ For Vehicle with other Explosive misunderstanding in the mining underground mines, the provision Materials,’’ (May 1993), and the community that vehicles used on mine would be codified as § 57.6905, with the ‘‘Generic Loading Guide for the IME–22 property must be able to pass Federal, section heading ‘‘Separation of Container,’’ (October 1993) to be State, and local licensing requirements explosive material and hang-up followed. These IME publications for over-the-road use to be in blasting.’’ 1868 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Proposed Rules It is well recognized that exposure of Existing paragraphs (a) and (b) would where explosive materials are present explosive material to impact or high be redesignated as paragraphs (b) and (c) can present hazards to those persons temperatures can be hazardous. From without change and a new paragraph (a) and to miners. For example, a person 1977 to 1988, as reported in MSHA’s would be added. Existing paragraph (d) may throw lighted smoking materials Program Circular (PC–7026) on would be redesignated as (e). Existing into a blast hole, disturb the initiation ‘‘Blasting Incidents in Mining,’’ (August paragraphs (c) and (e) would be revised system, or kick material into a hole— 1988), there were at least 22 impact- and and combined with the provisions of any one of which could contribute to a temperature-related blasting incidents, existing §§ 56/57.6313 as proposed premature detonation. Even if six of which resulted in fatalities. paragraph (d). No changes are proposed premature detonation does not occur, Therefore, MSHA is proposing that to existing paragraphs (f) and (g). these incidents could later expose paragraphs (a) and (b) of §§ 56.6905 and When explosive materials or initiating miners to the hazards associated with 57.6905 require protection against systems are brought to the blast site, misfires. Further, trespassers could temperatures in excess of 150 °F and proposed paragraph (a) would require remove explosive materials from a impact with the exception of tamping that the area be barricaded and posted, loaded hole which would constitute a and dropping during loading. When or flagged against unauthorized entry. violation of Bureau of Alcohol, Tobacco tamping and dropping explosive MSHA intends that this new and Firearms (BATF) security materials during loading, operators must requirement would prevent regulations. MSHA enforces security comply with existing §§ 56/57.6304, unauthorized or inadvertent entry by regulations on mine property under a Primer protection. persons onto the blast site. The proposal Memorandum of Understanding with Proposed paragraph (c) of § 57.6905 is would ensure that the blast site is BATF (45 FR 25564). Requiring the derived from the general requirement in clearly demarcated so that all persons mine to be attended would provide a § 57.6302 that explosives be protected are aware of the perimeter of the blast reasonable measure of protection against from impact. It would require the use of site. This precaution would protect these risks. detonating cord to initiate explosives against the risk of unplanned MSHA believes that the proposed placed in raises, chutes, and ore passes detonations and possible subsequent requirement is practicable for the to free hang-ups. Freeing hang-ups is misfires caused by unauthorized mining industry because interruptions inherently hazardous because it persons, including trespassers, are rare and when they do occur work potentially exposes both explosives and disturbing the blast site. Trespassing is schedules and the availability of mine miners to unsupported material. a continuing, recognized problem on personnel generally could be adapted to Detonators could be hit by falling mine property. Although explosives satisfy the proposed requirement. For material and prematurely detonate. were not involved, MSHA records show example, many large mines are operated Virtually all detonators used in that there have been four deaths of continuously with personnel routinely mining contain highly sensitive primary trespassers on mine property to date in on site around the clock, seven days a explosive compositions which make 1994. week. In some cases, these operations them impact sensitive. Detonators, Proposed paragraph (d)(1) of §§ 56/ load a series of blast holes sequentially whether electric or nonelectric, are the 57.6306 revises provisions in existing before firing. At small operations most impact sensitive of commercially paragraphs (c) and (e) which require working one shift a day, specific used explosive products. Detonating loading to be continuous and the blast arrangements may have to be made for cord is not highly impact sensitive so to be fired without undue delay. This the mine to be attended when an long as the outer covering material paragraph also replaces §§ 56/57.6313 interruption in loading or delay in firing remains intact. by addressing blast site security when of explosives results in a delay beyond MSHA has reviewed the available loading is interrupted or firing is the end of the shift. It is MSHA’s literature on freeing hang-ups and delayed. experience, however, that small surveyed its field offices and found that The proposal would require that operations ordinarily load and fire a variety of procedures are used. Hang- loading and firing of a blast be explosives during a single work shift. ups are commonly freed by placing conducted without undue interruption The presence and routine activities of charges of explosives in contact with, or or delay. This requirement reflects the these persons on site could be sufficient as near as possible to, the blockage, longstanding and generally accepted to prevent unauthorized entry to the often with poles. Some mine operators safety practice that loading and firing be blast site. use detonating cord to initiate the completed as soon as practicable after With regard to underground blasting, charges while others use detonators. the process begins. The Agency the proposal would require that the MSHA believes that the use of recognizes that there are circumstances mine be attended when loading is detonating cord to initiate the which cause an interruption of loading interrupted or firing of explosives is explosives allows for complete control or a delay in firing. Examples of these delayed. However, the proposal would of the firing time and provides greater circumstances include emergencies, recognize that underground areas of a safety for the miners involved. unfavorable atmospheric conditions, mine are secure against unauthorized The proposal would not preclude the shift changes, and large equipment entry if entrance to the mine is through use of such devices as ballistic disks failure. vertical shafts. Slope and adit mines are which are initiated by a detonating cord. When loading is interrupted or firing secure if surface entries are locked to Sections 56/57.6306 Loading, is delayed for any reason, the proposal prevent access by unauthorized persons. blasting, and security. The proposal would require the mine to be When underground blast sites are not would revise existing §§ 56/57.6306, ‘‘attended’’ to prevent unauthorized secure against unauthorized entry, which address loading and blasting entry to the blast site. ‘‘Attended’’ is however, the proposed rule would precautions. In addition, the proposal defined in §§ 56/57.6000. MSHA require a person to be present at the would add provisions to ensure that the believes that requiring the mine be mine to prevent unauthorized entry to blast site is secure from unauthorized attended when loading is interrupted or the blast site when loading is entry when loading is interrupted or firing is delayed provides the protection interrupted or firing of explosives is firing is delayed. It would replace the needed to miners. Entry by delayed. Agency experience indicates security provisions of §§ 56/57.6313. unauthorized persons on a blast site that maintenance and other personnel Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Proposed Rules 1869 are often present during off-shifts and manner that generates static electricity, the payment of additional wages to weekends at underground mines. The certain precautions be taken as specified perform this duty. presence of these persons could satisfy in the regulation. Based on these assumptions and its the requirements of the proposal, experience, MSHA estimates that the IV. Executive Order 12866 and the provided they prevent unauthorized revisions to §§ 56/57.6306 would affect Regulatory Flexibility Act entry to the blast site when loading is 0.5 percent of the small open pit mines interrupted or firing is delayed. Executive Order 12866 requires that and quarries, 5 percent of the medium Paragraph (d)(2) would require regulatory agencies assess both the costs underground mines, and 5 percent of persons securing a blast site at a surface and benefits of proposed regulations. the medium and large open pit mines mine or at blast site at the surface area MSHA has determined that this and quarries. MSHA estimates further of an underground mine to withdraw rulemaking is not a significant that an overnight interruption or delay from the blast site during the approach regulatory action and, therefore, has not would occur once every 2 years at the and progress of an electrical storm. prepared a separate analysis of costs and smallest mines and up to once every Persons securing an underground blast benefits. The Regulatory Flexibility Act other month at the largest mines. An site involving an electrical blasting requires regulatory agencies to consider interruption in loading or a delay in operation that is capable of being a rule’s impact on small entities. This firing that extends over a weekend initiated by lightning also would be proposed rule would not have a would occur about once a year at about required to withdraw from the blast site significant economic impact on a 5 percent of the medium underground to a safe location. These storm substantial number of small entities. mines and the medium and large open precautions correspond with those The analysis contained in this preamble pit mines and quarries. required under existing §§ 56/57.6604. meets MSHA’s responsibilities under MSHA estimated that § 57.6905(c) The proposed rule would delete the Executive Order 12866 and the would affect fewer than 60 underground provision in existing paragraph (e) of Regulatory Flexibility Act. mines which have ore passes, raises, or §§ 56/57.6306 which require MSHA to Based on an analysis of the impact of chutes as an integral part of their mining be notified if loaded holes are not fired the proposed rule, MSHA estimates that method. Some of these already may use within 72 hours. MSHA believes that the total annual recurring cost impact detonating cord to eliminate ‘‘hang- would be about $70,000. All of these the proposed requirements that loading ups.’’ Depending upon how the costs are attributable to paragraph (d)(1) and firing be done without undue detonating cord is used, for example, of §§ 56/57.6306 which requires that if interruption or delay, and the frequency of use, etc., MSHA believes loading is interrupted or firing of the provisions for blast site security in the that the proposed requirement may blast is delayed for any reason, the mine event of an interruption or delay in result in increased compliance costs. must be attended to prevent loading and firing, provide greater However, these cost increases are unauthorized entry to the blast site. The protection than the existing 72-hour expected to be negligible. notification requirement. total cost impact on all small mines, Sections 56/57.6313 Blast site those employing fewer than 20 miners, List of Subjects in 30 CFR Parts 56 and security. Under the proposal, the would be nominal. 57 MSHA anticipates that the revisions security provisions of §§ 56/57.6313 Explosives, Incorporation by to §§ 56/57.6306 would affect all would be revised and incorporated into reference, Metal and nonmetal mining, quarries, medium-sized underground §§ 56/57.6306 to afford blast site Mine safety and health. protection when loading is interrupted mines, and most open pit mines, except or when firing is delayed. for certain operations which mine Dated: December 24, 1994. commodities such as clays and J. Davitt McAteer, Extraneous Electricity phosphates and do not use explosives. Assistant Secretary for Mine Safety and Sections 56/57.6602 Static electricity MSHA does not expect small Health. dissipation during loading. Existing underground mines to be affected as It is proposed to amend parts 56 and §§ 56/57.6602 address the build-up of these mines would experience a delay 57, subchapter N, chapter I, title 30 of static electricity during pneumatic in firing or an interruption in loading the Code of Federal Regulations as loading or dropping of explosive only rarely, if ever. Neither does MSHA follows: material into a blasthole. Following anticipate that the largest underground publication of the December 30, 1993, mines would be more than nominally PART 56Ð[AMENDED] safety standards for explosives, MSHA affected as many of these mines are 1. The authority citation for part 56 received technical information operated around the clock, seven days a continues to read as follows: indicating that the scope of this week. The presence of these persons provision is too broad because the term could satisfy the requirements of the Authority: 30 U.S.C. 811, 956, and 961. ‘‘dropping’’ encompasses dropping, proposal if they are assigned to prevent 2. Section 56.6000 is amended by pouring, or auguring explosive materials unauthorized entry to the blast site. revising the definition of ‘‘laminated into blastholes. Specifically, it was MSHA recognizes that it is a common partition’’ to read as follows: noted that dropping, pouring, and industry practice to load continuously auguring explosives are performed at a and to fire explosives promptly. § 56.6000 Definitions. low velocity. As a result the generation Interruptions in loading and delays in * * * * * of static electricity is not sufficient to firing, however, can occur infrequently, Laminated partition. A partition initiate the primer. almost always due to emergency composed of the following material and Based on this information, MSHA circumstances. In most of these minimum nominal dimensions: 1⁄2-inch- agrees and, therefore, proposes to delete instances, the mine operator would have thick plywood, 1⁄2-inch-thick gypsum ‘‘dropping’’ from the introductory text personnel available on the mine site wallboard, 1⁄8-inch-thick low carbon of §§ 56/57.6602. As revised, the who could prevent unauthorized entry steel, and 1⁄4-inch-thick plywood, standard would require that when to the blast site. On occasion, however, bonded together in that order. explosive material is loaded circumstances may require the Alternative construction materials pneumatically into a blasthole in a assignment of additional personnel or described in the IME Safety Library 1870 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Proposed Rules Publication No. 22, ‘‘Recommendations (2) Separated from explosives or protects them from concussion (shock for the Safe Transportation of blasting agents by 4 inches of hardwood wave), flying material, and gases. Detonators in a Vehicle with other or equivalent. The hardwood or (f) Before firing a blast— Explosive Materials,’’ (May 1993), and equivalent shall be fastened to the (1) Ample warning shall be given to the ‘‘Generic Loading Guide for the vehicle or conveyance. A compartment allow all persons to be evacuated; IME–22 Container,’’ (October 1993) may or container meeting the definition of a (2) Clear exit routes shall be provided be used. These publications are laminated partition may be used to for persons firing the round; and incorporated by reference and are separate detonators from explosives or (3) All access routes to the blast area available at MSHA, 4015 Wilson blasting agents. When a laminated shall be guarded or barricaded to Boulevard, Room 728, Arlington, VA partition is used, the provisions of IME prevent the passage of persons or 22203, and at all Metal and Nonmetal Safety Library Publication No. 22 (May vehicles. Mine Safety and Health District Offices. 1993) and the Generic Loading Guide (g) Work shall not be resumed in the * * * * * for the IME–22 Container (October 1993) blast area until a post-blast examination 3. Section 56.6133 is amended by shall be followed. These publications addressing potential blast-related revising paragraph (b) to read as follows: are incorporated by reference and are hazards has been conducted by a person available at MSHA, 4015 Wilson with the ability and experience to § 56.6133 Powder chests. Boulevard, Room 728, Arlington, VA perform the examination. * * * * * 22203 and at all Metal and Nonmetal § 56.6313 [Removed] (b) Detonators shall be kept in Mine Safety and Health District Offices. separate chests from explosives or 5. Section 56.6302 is revised to read 7. Section 56.6313 is removed. blasting agents, unless separated by 4 as follows: 8. Section 56.6602 is amended by inches of hardwood or equivalent. A revising the introductory text to read as compartment or container meeting the § 56.6302 Separation of explosive material. follows: definition of a laminated partition may Explosives and blasting agents shall be kept separated from detonators until § 56.6602 Static electricity dissipation be used to separate detonators from during loading. explosives or blasting agents. When a loading begins. When explosive material is loaded laminated partition is used, the 6. Section 56.6306 is revised to read pneumatically into a blasthole in a provisions of the IME Safety Library as follows: manner that generates static Publication No. 22, ‘‘Recommendations § 56.6306 Loading, blasting, and security. electricity— for the Safe Transportation of Detonators in a Vehicle with other (a) When explosive materials or * * * * * Explosive Materials,’’ (May 1993), and initiating systems are brought to the 9. Section 56.6905 is added to read as the ‘‘Generic Loading Guide for the blast site, the area shall be barricaded follows: and posted, or flagged against IME–22 Container,’’ (October 1993) § 56.6905 Explosive material protection. shall be followed. These publications unauthorized entry. (b) Vehicles and equipment shall not (a) Explosive material shall be are incorporated by reference and are be driven over explosive material or protected from temperatures in excess of available at MSHA, 4015 Wilson initiating systems in a manner which 150 °F. Boulevard, Room 728, Arlington, VA could contact the material or system, or (b) Explosive material shall be 22203 and at all Metal and Nonmetal create other hazards. protected from impact, except for Mine Safety and Health District Offices. 4. Section 56.6201 is amended by (c) Once loading begins, the only tamping and dropping during loading. activities permitted within the blast site revising paragraphs (a)(2) and (b)(2) to PART 57Ð[AMENDED] read as follows: shall be those activities directly related to the blasting operation and the 10. The authority citation for part 57 § 56.6201 Separation of transported activities of surveying, stemming, continues to read as follows: explosive material. sampling of geology, and reopening of * * * * * holes, provided that reasonable care is Authority: 30 U.S.C. 811, 956, and 961. (a) * * * exercised. Haulage activity is permitted 11. Section 57.6000 is amended by (2) Separated from explosives or near the base of the highwall being revising the definition of ‘‘laminated blasting agents by 4 inches of hardwood loaded, provided no other haulage partition’’ to read as follows: or equivalent. The hardwood or access exists. equivalent shall be fastened to the (d)(1) Loading and firing of a blast § 57.6000 Definitions. vehicle or conveyance. A compartment shall be performed without undue * * * * * or container meeting the definition of a interruption or delay. If loading is Laminated partition. A partition laminated partition may be used to interrupted or firing of the blast is composed of the following material and separate detonators from explosives or delayed for any reason, the mine shall minimum nominal dimensions: 1⁄2-inch- blasting agents. When a laminated be attended to prevent unauthorized thick plywood, 1⁄2-inch-thick gypsum partition is used, the provisions of the entry to the blast site. wallboard, 1⁄8-inch-thick low carbon IME Safety Library Publication No. 22 (2) During the approach and progress steel, and 1⁄4-inch-thick plywood, (May 1993) and the Generic Loading of an electrical storm, persons bonded together in that order. Guide for the IME–22 Container preventing unauthorized entry to a Alternative construction materials (October 1993) shall be followed. These surface blast site shall withdraw from described in the IME Safety Library publications are incorporated by the blast area to a safe location. Publication No. 22, ‘‘Recommendations reference and are available at MSHA, (e) In electric blasting prior to for the Safe Transportation of 4015 Wilson Boulevard, Room 728, connecting to the power source, and in Detonators in a Vehicle with other Arlington, VA 22203 and at all Metal nonelectric blasting prior to attaching an Explosive Materials,’’ (May 1993), and and Nonmetal Mine Safety and Health initiating device, all persons shall leave the ‘‘Generic Loading Guide for the District Offices. the blast area except persons in a IME–22 Container,’’ (October 1993) may (b) * * * blasting shelter or other location that be used. These publications are Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Proposed Rules 1871 incorporated by reference and are vehicle or conveyance. A compartment withdraw from the blast area to a safe available at MSHA, 4015 Wilson or container meeting the definition of a location; and Boulevard, Room 728, Arlington, VA laminated partition may be used to (ii) Persons preventing unauthorized 22203 and at all Metal and Nonmetal separate detonators from explosives or entry to an underground blast site Mine Safety and Health District Offices. blasting agents. When a laminated involving an electrical blasting * * * * * partition is used, the provisions of IME operation that is capable of being 12. Section 57.6133 is amended by Safety Library Publication No. 22 (May initiated by lightning shall withdraw revising paragraph (b) to read as follows: 1993) and the Generic Loading Guide from the blast area to a safe location. for the IME–22 Container (October 1993) (e) In electric blasting prior to § 57.6133 Powder chests. shall be followed. These publications connecting to the power source, and in * * * * * are incorporated by reference and are nonelectric blasting prior to attaching an (b) Detonators shall be kept in available at MSHA, 4015 Wilson initiating device, all persons shall leave separate chests from explosives or Boulevard, Room 728, Arlington, VA the blast area except persons in a blasting agents, unless separated by 4 22203 and at all Metal and Nonmetal blasting shelter or other location that inches of hardwood or equivalent. A Mine Safety and Health District Offices. protects them from concussion (shock compartment or container meeting the 14. Section 57.6302 is revised to read wave), flying material, and gases. definition of a laminated partition may as follows: (f) Before firing a blast— be used to separate detonators from explosives or blasting agents. When a § 57.6302 Separation of explosive material. (1) Ample warning shall be given to allow all persons to be evacuated; laminated partition is used, the Explosives and blasting agents shall (2) Clear exit routes shall be provided provisions of the IME Safety Library be kept separated from detonators until for persons firing the round; and Publication No. 22 (May 1993) and the loading begins. (3) All access routes to the blast area Generic Loading Guide for the IME–22 15. Section 57.6306 is revised to read shall be guarded or barricaded to Container (October 1993) shall be as follows: followed. These publications are prevent the passage of persons or incorporated by reference and are § 57.6306 Loading, blasting, and security. vehicles. available at MSHA, 4015 Wilson (a) When explosive materials or (g) Work shall not be resumed in the Boulevard, Room 728, Arlington, VA initiating systems are brought to the blast area until a post-blast examination 22203 and at all Metal and Nonmetal blast site, the area shall be barricaded addressing potential blast-related Mine Safety and Health District Offices. and posted, or flagged against hazards has been conducted by a person 13. Section 57.6201 is amended by unauthorized entry. with the ability and experience to revising paragraphs (a)(2) and (b)(2) to (b) Vehicles and equipment shall not perform the examination. read as follows: be driven over explosive material or § 57.6313 [Removed] § 57.6201 Separation of transported initiating systems in a manner which could contact the material or system, or 16. Section 57.6313 is removed. explosive material. 17. Section 57.6602 is amended by * * * * * create other hazards. (c) Once loading begins, the only revising the introductory text to read as (a) * * * follows: (2) Separated from explosives or activities permitted within the blast site blasting agents by 4 inches of hardwood shall be those activities directly related § 57.6602 Static electricity dissipation or equivalent. The hardwood or to the blasting operation and the during loading. equivalent shall be fastened to the activities of surveying, stemming, When explosive material is loaded vehicle or conveyance. A compartment sampling of geology, and reopening of pneumatically into a blasthole in a or container meeting the definition of a holes provided that reasonable care is manner that generates static laminated partition may be used to exercised. Haulage activity is permitted electricity— near the base of the highwall being separate detonators from explosives or * * * * * blasting agents. When a laminated loaded, provided no other haulage 18. Section 57.6905 is added to read partition is used, the provisions of the access exists. as follows: IME Safety Library Publication No. 22 (d)(1) Loading and firing of a blast (May 1993) and the Generic Loading shall be performed without undue § 57.6905 Explosive material protection Guide for the IME–22 Container interruption or delay. If loading is and hang-up blasting. (October 1993) shall be followed. These interrupted or firing is delayed for any (a) Explosive material shall be publications are incorporated by reason, the mine shall be attended to protected from temperatures in excess of reference and are available at MSHA, prevent unauthorized entry to the blast 150 °F. site. Underground areas are secure 4015 Wilson Boulevard, Room 728, (b) Explosive material shall be against unauthorized entry if entrance to Arlington, VA 22203 and at all Metal protected from impact, except for the mine is through vertical shafts. and Nonmetal Mine Safety and Health tamping and dropping during loading. Inclined shafts or adits are secure when District Offices. (c) Only detonating cord shall be used locked at the surface. (b) * * * to initiate explosives placed in raises, (2) Separated from explosives or (2) During the approach and progress chutes, and ore passes to free hang-ups. blasting agents by 4 inches of hardwood of an electrical storm— or equivalent. The hardwood or (i) Persons preventing unauthorized [FR Doc. 95–16 Filed 1–4–95; 8:45 am] equivalent shall be fastened to the entry to a surface blast site shall BILLING CODE 4510±43±P federal register January 5,1995 Thursday Choctaw; Notice Acknowledgment oftheMOWABand Proposed FindingAgainstFederal Bureau ofIndianAffairs Interior Department ofthe Part IV 1873 1874 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices DEPARTMENT OF THE INTERIOR Acknowledgment and Research, (202) amalgamated and functioned as a single 208–3592. American Indian entity. Bureau of Indian Affairs SUPPLEMENTARY INFORMATION: This One percent of the petitioner’s Proposed Finding Against Federal notice is published in the exercise of membership can document American Acknowledgment of the MOWA Band authority delegated by the Secretary of Indian ancestry through other ancestral of Choctaw the Interior to the Assistant Secretary— lines than those going to the two core Indian Affairs by 209 DM 8. families. AGENCY: Bureau of Indian Affairs, The MOWA Band of Choctaw’s A substantial body of documentation Interior. petition for Federal acknowledgment was available on the petitioning group. ACTION: Notice of proposed finding. claims that ‘‘the contemporary band of Mowa Choctaws of South Alabama are This extensive evidence does not SUMMARY: Pursuant to 25 CFR 83.10(e), descendants of full and mixed blood demonstrate either the Indian ancestry notice is hereby given that the Assistant Choctaws, Creeks, Cherokees, and claimed in the petition or other Indian Secretary proposes to decline to Chickasaws who avoided removal West ancestry. This extensive evidence either acknowledge that the MOWA Band of during Indian removal in the 1830s’’ does not support at all, or in part Choctaw (MBC), c/o Mr. Framon (MOWA Pet. Narr. 1988, 1). Upon disproves, Indian ancestry. Only Weaver, 1080 W. Red Fox Road, Mt. examination of the petition, this claim approximately one percent can Vernon, Alabama 36560, exists as an was found to be invalid. demonstrate Indian ancestry of any Indian tribe within the meaning of The problems with the American kind. Thus, no evidence was found to Federal law. This notice is based on a Indian ancestry claimed by the demonstrate that the ancestors of the determination that the MBC does not petitioner fall into the following major petitioner were descended from a single meet one of the seven mandatory categories: historic tribe or tribes which combined criteria set forth in 25 CFR 83.7, (1) The petitioner’s core ancestral and functioned as an autonomous specifically, criterion 83.7(e). Therefore, families cannot document American entity. We conclude, therefore, that the the MOWA Band of Choctaw do not Indian ancestry; MOWA Band of Choctaws clearly does meet the requirements necessary for a (2) The families which are the actual not meet the requirements of criterion government-to-government relationship MBC progenitors from 1880 have not 83.7(e). with the United States. been documented as descendants of the As provided by 25 CFR 83.10(h) of the DATES: As provided by 25 CFR known removal-era, antebellum new regulations, a report summarizing 83.10(e)(1) and 83.10(h) through American Indians claimed as ancestors the evidence, reasoning, and analysis 83.10(l), any individual or organization by the petitioner; that are the basis for the proposed wishing to challenge the proposed (3) Many of the early nineteenth decision will be provided to the finding may submit factual or legal century persons claimed as members of petitioner and other interested parties, arguments and evidence to rebut the their ‘‘founding Indian community’’ by and is available to other parties upon evidence relied upon. This material the petitioner cannot be demonstrated to written request. must be submitted within 180 calendar be Choctaw, or even American Indian. After consideration of the written days from the date of publication of this The MOWA Band of Choctaw notice. arguments and evidence rebutting the petitioning group is derived from two proposed finding and within 60 days ADDRESSES: Comments on the proposed core families that were resident in after the expiration of the 180-day finding and/or requests for a copy of the southwestern Alabama by the end of the response period described above, the report of evidence should be addressed first third of the nineteenth century. All Assistant Secretary—Indian Affairs will to the Office of the Assistant Secretary— persons on the petitioner’s membership publish the final determination of the Indian Affairs, Bureau of Indian Affairs, roll descend from these two families. petitioner’s status in the Federal 1849 C Street, N.W., Washington, D.C. Neither of these families has Register as provided in 25 CFR 83.10(1). 20240, Attention: Branch of demonstrated American Indian Acknowledgment and Research, Mail ancestry. Neither were the nineteenth Ada E. Deer, Stop 2611–MIB. century ancestors of these two families Assistant Secretary—Indian Affairs. FOR FURTHER INFORMATION CONTACT: members of an historical American [FR Doc. 95–73 Filed 1–4–95; 8:45 am] Holly Reckord, Chief, Branch of Indian tribe, or of tribes which had BILLING CODE 4310±02±P federal register January 5,1995 Thursday Notice Mojave IndianReservation,NVandCA; Environmental ImpactStatement;Fort Bureau ofIndianAffairs Interior Department ofthe Part V 1875 1876 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices DEPARTMENT OF THE INTERIOR Corporation, to lease certain tribal lands ADDRESSES: Comments should be within the State of California (145 acres) addressed to Mr. Walter Mills, Area Bureau of Indian Affairs and the State of Nevada (588 acres) from Director, Bureau of Indian Affairs, the Fort Mojave Indian Tribe for the Phoenix Area Office, P.O. Box 10, Notice of Cancellation of the Mojave development of a planned residential Phoenix, Arizona 85001. Highlands Environmental Impact community. Two Conditional Approvals Statement (EIS) for the Proposed FOR FURTHER INFORMATION CONTACT: Ms. were signed by the BIA on July 7, 1990. Amy L. Heuslein, Environmental Development of a Planned Community The Fort Mojave Indian Tribe requested on Fort Mojave Tribal Lands, Clark Protection Officer, Bureau of Indian withdrawal of the Conditional Affairs, Phoenix Area Office, County, NV, and San Bernardino Approvals and on April 7, 1994, the County, CA Environmental Quality Services, P.O. Conditional Approvals were withdrawn Box 10, Phoenix, Arizona 85001, AGENCY: Bureau of Indian Affairs, for failure of the lessee to complete the Telephone (602) 379–6750; or Mrs. Interior. environmental process. Both pending Laura E. Austin, Agency Environmental ACTION: Notice of Cancellation of an leases totaled approximately 733 acres. Coordinator, Bureau of Indian Affairs, Environmental Impact Statement. The Notice of Intent was originally Colorado River Agency, Route 1, Box published in the Federal Register on 9–C, Parker, Arizona 85344, Telephone SUMMARY: This notice advises the public February 5, 1990. Several public (602) 669–7148. that the Bureau of Indian Affairs (BIA) scoping meetings were held in early intends to cancel all work on the EIS for February 1990 and the EIS was only Dated: December 22, 1994. the Mojave Highlands proposal. completed to a preliminary draft stage Ada E. Deer, SUPPLEMENTAL INFORMATION: The and had not been released for public Assistant Secretary, Indian Affairs. proposed project in the EIS was for review or comment. [FR Doc. 95–72 Filed 1–4–95; 8:45 am] Calmark-Fort Mojave, Inc., a Nevada DATES: Effective January 5, 1995. BILLING CODE 4310±02±P federal register January 5,1995 Thursday Final Rule Planning andDevelopmentPrograms; Consolidated SubmissionforCommunity 24 CFRPart91,etal. Office oftheSecretary Development Housing andUrban Department of Part VI 1877 1878 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1994 / Rules and Regulations DEPARTMENT OF HOUSING AND FOR FURTHER INFORMATION CONTACT: provides the basis for assessing URBAN DEVELOPMENT Joseph F. Smith, Director, Policy performance; and (4) encourage Coordination, Office of Community consultation with public and private Office of the Secretary Planning and Development, 451 agencies, including those outside a Seventh Street, SW, Washington, DC single jurisdiction, to identify shared 24 CFR Parts 91, 92, 570, 574, 576, and 20410–7000, telephone (202) 708–1283 needs and solutions. In addition, HUD 968 (voice) or (202) 708–2565 (TDD). (These is providing software for jurisdictions to [Docket No. R±94±1731; FR±3611±F±02] are not toll-free telephone numbers.) facilitate meeting the planning, Copies of this rule will be made application and reporting requirements, RIN 2501±AB72 available on tape or large print for those helping to move us into the 21st Consolidated Submission for with impaired vision that request them. century. Community Planning and Development They may be obtained at the above In keeping with this approach, the Programs address. rule emphasizes the role citizens and community groups should play in SUPPLEMENTARY INFORMATION: AGENCY: Office of the Secretary, HUD. identifying their needs and ACTION: Final rule. I. Information Collections recommending actions government The information collection should take in addressing those needs. SUMMARY: This rule amends the requirements for the planning process, Thus, the outcome is determined at the Department’s existing regulations to the application process, and the level of government closest to the completely replace the current reporting process contained in this rule affected persons. However, to assure regulations for Comprehensive Housing have been reviewed by the Office of that a jurisdiction does not ignore Affordability Strategies (CHAS) with a Management and Budget under the identified needs, the rule includes the rule that consolidates into a single Paperwork Reduction Act of 1980 (42 language from the CHAS instructions to consolidated submission the planning U.S.C. 3501–3520) and assigned require that the consolidated plan and application aspects of the approval number 2506–0117, which contain a comparative analysis of the Department’s Community Development expires on March 31, 1995. needs identified, and explain how the Block Grant (CDBG), Emergency Shelter jurisdiction determined priority needs Grant (ESG), HOME Investment II. Background and include proposed actions that Partnerships (HOME), and Housing This final rule providing for a address the identified needs. Opportunities for Persons With AIDS consolidated plan and a single The proposed rule for the (HOPWA) formula programs with the performance report for all HUD consolidated plan was published on requirements for the CHAS. This new community planning and development August 5, 1994 (59 FR 40129). During consolidated submission will replace formula grant programs reflects the the process of developing both the the current CHAS, the HOME program Department’s view that the purpose to proposed and final rule, the Department description, the Community be served by the submissions is to has indicated its intent to apply the new Development plan and the CDBG final enable States and localities to examine rule to Federal Fiscal Year 1995 statement, and the ESG and HOPWA their needs and design ways to address funding. Therefore, affected applications. The rule also consolidates those needs that are appropriate to their jurisdictions have been in contact with the reporting requirements for these circumstances. The planning activities HUD about the expectations for speedy programs, replacing five general embodied in the rule are those of the publication of a final rule that would performance reports with one Comprehensive Housing Affordability permit them to start preparation of this performance report. Thus, in total, the Strategy (CHAS) requirements, enacted new consolidated plan in time to make consolidated plan and consolidated by the Cranston-Gonzalez National the projected deadlines. report will replace 12 documents. Affordable Housing Act (NAHA, at 42 Another proposed rule was published Although this rule does not U.S.C. 12701), and of the Community in August of 1994 that would affect incorporate the public housing Development Plan requirements, added some of the provisions dealing with the Comprehensive Grant process into the to the CDBG program by NAHA (42 CDBG program that are covered by this consolidated planning and application U.S.C. 5304). rule. That rule, ‘‘Community process, it makes a modification to the The consolidated plan was a result of Development Block Grant Program: Comprehensive Grants rule to encourage discussions with local jurisdictions and Miscellaneous Amendments to Correct cooperation in the development of the community groups all over the United Identified Deficiencies’’ (59 FR 41196, Comprehensive Grant plan and the States representing many different August 10, 1994), proposed changes to consolidated plan. The changes are viewpoints. The intent of this rule is to the citizen participation process and in intended to ensure that the needs and (1) promote citizen participation and the treatment of CDBG ‘‘float-funded resources of public housing authorities development of local priority needs and activities,’’ for example. This rule makes are included in a comprehensive objectives by providing comprehensive changes covering both of these topics planning effort to revitalize distressed information on the jurisdiction that is (discussed below) but leaves other neighborhoods and help low-income easy to understand; (2) coordinate these provisions of that ‘‘CDBG miscellaneous residents locally. statutory requirements in such a manner amendments’’ rule untouched, for final In addition, the rule amends the as to achieve the purposes of the Acts disposition through that separate separate regulations for the CDBG, in a comprehensive way, while reducing rulemaking. In fact, the performance HOME, ESG, and HOPWA programs to paperwork and minimizing the federal standards for the certification found in remove some duplicative provisions, intrusion into State and local planning this rule that a jurisdiction is cross-reference the new provisions, and activities and to simplify the process of ‘‘following’’ its HUD-approved to conform terminology to that used in requesting and obtaining federal funds consolidated plan will be included in the consolidated plan rule (revised part available to the jurisdictions on a that final rule. In light of the emphasis 91). formula basis; (3) promote the on economic development in the CDBG EFFECTIVE DATE: February 6, 1995. development of an action plan that program, HUD will shortly issue a final Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1994 / Rules and Regulations 1879 rule on economic development expressed concern about the groups under the citizen participation guidelines for the CDBG program. requirement making the consolidated plan at the State level. Several States A proposed rule on citizen plan applicable for Fiscal Year 1995 suggested that HUD and the Department participation for the CDBG Entitlement funding of the formula programs, with of Health and Human Services should program was published on March 28, the short deadlines that this will require get together with regard to making 1990 (55 FR 11556). This rule reflects for jurisdictions—and the impact it estimates of homeless needs. Several consideration of the public comments would have on their clients. States said that the priority needs tables, on that rule, and constitutes the final To respond to these concerns, the goals, and target dates for completion rule for that rulemaking. Department has added a clearer are too detailed for the States since they statement of specific data requirements III. Public Comments have less degree of control over what on needs (including a specific actions are taken than entitlement The proposed rule drew 138 public description of the needs of non- jurisdictions do. Other States felt that it comments from 38 local governments or homeless persons with disabilities), a was unrealistic that States show how groups representing their interests, 19 statement on how the priorities in the funds were distributed geographically States or groups representing State strategic plan relate to the statement of since most States distributed funds by interests, 62 groups advocating for the needs, and a clearer statement on how competition for different categories of interests of low-income persons, 15 the activities proposed in the action assistance and cannot control groups advocating for the interests of plan relate to the strategic plan. Citizen geographical distribution. persons with disabilities, three participation has been strengthened in a Most States have been in contact with professional organizations with no number of places, including improved the appropriate HUD field office about apparent client constituency, and one guidelines for providing adequate the timing and content of their individual. notice. submissions for FY 1995. In most cases, In addition, the Department officials The Entitlement communities agreement has already been reached on have talked by telephone to responded to the rule with diverse both matters. With respect to tables, the representatives of 19 national groups concerns. Some objected to the use of States are expected to complete the that had submitted written comments, and reporting on ‘‘extremely low- information to the extent that they are to more fully understand their views. income’’ category particularly with able to do so. The requirement for These groups are: National Association regard to CDBG. Many expressed information about geographic for County Community and Economic concern about the usefulness of distribution is included because it is a Development, Council Of State estimating needs for community CHAS statutory requirement. To the Community Development Agencies, development facilities in terms of the extent that funds are distributed by National Community Development dollars to address those needs. competition and a prediction of the Association, Local Initiatives Support Although the term ‘‘extremely low- ultimate geographic distribution cannot Corporation, National Association of income’’ (0–30 percent) was retained in be made, the State should so indicate. Housing and Redevelopment Officials, the plan, since this category was A separate section on citizen Housing Assistance Council, AIDS familiar in the CHAS, the reporting participation has been added that Council, National Coalition for the burden for CDBG has been reduced by applies just to States. The Department Homeless, Center for Community requiring reporting on beneficiaries by believes that it is responsive to the Change, National Low Income Housing income only where income data is comments of the States, including the Coalition, National Alliance to End required for CDBG eligibility. Language request to remove the technical Homelessness, National Council of State has been added codifying the field office assistance provision. Housing Agencies, Corporation for authority to grant exceptions and In order to provide technical Supportive Housing, Enterprise extensions for FY 1995 for good cause. assistance, HUD intends to issue Foundation, United Cerebral Palsy, To meet concerns of these communities supplemental guidance on effective Coalition for Low Income Community that the rule has gone beyond the statute ways to undertake consolidated Development, Lawyers Committee for and become too prescriptive, planning, prepare adequate Civil Rights under Law, National suggestions for revisions that would submissions, and implement subsequent Association for Developmental have added significant detail to the plan projects and activities. In addition, the Disabilities, and the National Housing were rejected. Other changes to Department will issue supplemental Law Project. Low-income advocates, accommodate entitlement community guidance on various cross-cutting cities and States often had diametrically concerns are to require that the basis be concerns. These include historic opposing views on the rule. assigned for relative priority to each preservation, the role of community The general views of the low-income category of needs in the strategic plan based organizations, urban design and and disability advocacy groups were rather than each separate need; that strategic planning, environmental that data requirements concerning needs flexibility be provided for consortia; that justice, viable communities and had been removed from the CHAS to more flexible amendment language be sustainable development. produce the consolidated plan; a provided; and that the time period for One comment that was made by both stronger linkage between need, strategy, comments on performance reports be low-income advocates and local and action should be required to be reduced to 15 days. governments was that the status of the stated in the plan; ‘‘worst case’’ needs A number of States had a particular guidelines should be clarified. The should be addressed on the basis of a concern about being required to commenters noted that the regulations ‘‘fair share’’ of the funds to be made implement the plan in FY 1995, specify the requirements for the available from HUD; the citizen particularly those with early program consolidated plan, and the guidelines participation process should be years. Other States wanted specific appear to state the recommendations for augmented and adequate notice should guidance on citizen participation the plan. They asked, ‘‘How closely will be provided for hearings. Many of these specifically for the States because of grantees be held to the concerns apply equally to the CHAS their unique situation. They felt that it ‘recommendations’?’’ process as to the consolidated plan. was inappropriate to offer technical The Department agrees that this Many low-income advocates also assistance directly to low-income subject needs clarification. The 1880 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1994 / Rules and Regulations regulations state the requirements. The goal of eliminating slum and blight is providing emergency and transitional guidelines contain the tables and not included. It also stated that the shelter). Such an approach is part of a instructions for data submissions, which NAHA goal of increasing the supply of total homeless strategy laid out in the constitute the ‘‘required format’’ decent housing that is accessible to job strategic plan. However, to carry out this referenced in the regulations. Therefore, opportunities has been converted to plan, it is not necessary to change the these tables and instructions are ‘‘provision of jobs accessible to housing statement of purpose to focus on only required, but the specific format may be affordable to low-income persons.’’ one element of this approach. Therefore, modified with HUD approval. Other Obviously, the low-income advocacy the final rule contains no change in suggestions or recommendations group recommended preserving the response to this request. included in the guidelines are to assist language, while the State advocated Fourth, several States objected to the jurisdictions in the preparation of the citing the specific legislative language of impact on them of the expanded plan. goals to be served by the specific definition of ‘‘suitable living A county and a State complained programs. environment’’ and ‘‘economic about the Department’s Federalism The Department believes that this opportunity’’ found in the goals section. Impact discussion. They stated that the statement of broad goals is useful. The They indicated that the requirement that rule requires duplication of effort by language concerning job accessibility the State’s short and long term goals State and local governments, since both mirroring the NAHA statutory language ‘‘must be developed in accordance with will be preparing consolidated plans for is included in the paragraph on decent the statutory goals described in § 91.1’’ their jurisdiction. They argued that housing, while the economic puts greater emphasis on these goals consolidation has resulted in development language of the CDBG than is desirable, from their point of overregulation of previously less statute is reflected in the paragraph on view. They also note that the goals regulated programs. They suggested that expansion of economic opportunity. emphasize low-income housing and the the Department seek legislative change Elimination of slum and blight is effort to tie public facility and economic to really streamline the requirements. implicit in the language of the goals development activities to low income The Department believes that there is provision pertaining to improving the and public housing, while objectives set not much duplication of effort between safety and livability of neighborhoods. forth in the CDBG statute are missing. State and local consolidated plans, since Second, several disabilities groups States indicated that the emphasis on the State plans focus on the objected to the phrasing of the goals expanding economic opportunity nonentitlement areas of the State that section on supportive housing, stating including job creation creates a linkage are not covered by the consolidated plan that it is potentially stigmatizing, to community development that is often of a locality. In creating a new because it assumes that all persons with made at the local level rather than being framework for submissions for the CPD special needs require housing with imposed from the State. States will formula grant programs covered, a few special features, unlike other housing explore these new linkages in requirements, such as the more detailed that exists in the community. The community building, but where such citizen participation requirements, have potentially offending section reads linkages are not appropriate or possible, been applied to programs not previously ‘‘ * * * Decent housing also includes neither the State nor its grantees should covered. However, the consolidation increasing the supply of supportive be penalized. will give governments and citizens the housing, which combines structural The description of what is meant by advantage of looking at the needs to be features and services needed to enable expanded economic opportunity is addressed by HUD programs all at once. persons with special needs to live with consistent with the current CDBG Legislative changes have been sought to dignity and independence.’’ These program requirements for States at combine the McKinney Act programs, commenters suggested modifying the § 570.483(b)(4). This language should but those changes have not been sentence to read ‘‘ ** * Decent housing not limit grantees’ flexibility, and enacted. Statutory change is not also includes increasing the supply of therefore, it is not being changed in the necessary just to coordinate the housing, which may or may not require final rule. submissions for the different programs. certain unique structural features and The following is a section by section which can be linked to on-site or Section 91.5 Definitions community based services desired by summary of comments received and a. Income Categories HUD responses. persons with special needs.’’ The Department does not disagree The proposed rule used the terms Section 91.1 Purpose with the point that many disabled ‘‘very low-income household’’ and This section states the goals of the persons may require housing which ‘‘low-income household’’ for the community development and planning does not need structural modifications. households traditionally identified in programs covered by the part and the Jurisdictions are free to provide such the CDBG program as ‘‘low-income function of the consolidated plan. There housing for persons with disabilities. households’’ and ‘‘moderate-income were four primary areas of comment on However, the statement of purpose on households.’’ This change drew two the goals portion (§ 91.1(a)) of this this item was taken directly from types of comments. First, a State section. purposes section of the National pointed out that a CDBG proposed rule First, a low-income advocacy group Affordability Housing Act, and it is not published on August 10, 1994 used the and the State of Florida took stands on necessary to change this statement. traditional CDBG terms, and the two the Department’s attempt to restate and Third, several disability groups rules should be consistent. Second, a consolidate the statutory goals of the advocated changing the language about city, county, and a professional various programs covered. The low- ‘‘assisting homeless persons to obtain organization of government CDBG income advocacy group praised the appropriate housing’’ to include the administrators, recommended that the broad discussion of goals, while the concept of ‘‘permanent housing.’’ The consolidated plan rule should use the State criticized the language as Department agrees that among the terms traditionally used in the CDBG confusing and failing to reflect all the actions taken to address the needs of program. They argued that to do goals of the covered programs. For homeless persons is providing otherwise is damaging to the perception example, the State said that the CDBG permanent housing (along with of the program in cities that are Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1994 / Rules and Regulations 1881 struggling to keep income balance in b. Definitions of Terms That Were in the homeless individual as either one who their community, whose citizens are CHAS lacks a fixed, regular, and adequate more willing to see CDBG funds devoted Two local jurisdictions stated that the nighttime residence or one whose to income groups that appear to be more rule should contain definitions for terms primary nighttime residence is one of inclusive of average families. that are used in § 91.205(b) of the rule— the three described types. Their point seems to be that families that are The Department believes that the moderate income, elderly, large family, overcrowded, because more than one consolidated plan must use uniform cost burden, and severe cost burden— original family unit resides in a housing definitions of income categories for all and which were defined in the CHAS rule. An advocate for low-income unit intended for one, should be programs covered by the plan. The considered ‘‘homeless.’’ terms chosen in the proposed rule (as in households stated that the rule needs definitions for additional terms: assisted The Department agrees that the the CHAS) were drawn from the definition used in this rule should be Cranston-Gonzalez National Affordable family, disabled family, federal preference, and overcrowding. These essentially the same as the definition in Housing Act, which created the the McKinney Act. This change does Comprehensive Housing Affordability definitions are needed to define ‘‘worst case’’ housing needs, which another not, however, signal that the Strategy (that is applicable to all the low-income advocacy group wanted Department is altering its position that CPD formula grant programs) and the included in the defined terms. (‘‘Worst the definition must read within the HOME program. However, we believe case needs’’ was a term defined only in context of the findings and purpose that the comments have merit. the CHAS guidelines; it was not a term section of the McKinney Act. It is clear Therefore, this final rule returns to the found in the CHAS rule.) to the Department that the McKinney Housing and Community Development The terms mentioned above that are Act was enacted in 1987 to assist the Act of 1974 terms: ‘‘low-income’’ (does essential to the consolidated plan rule rapidly growing numbers of persons not exceed 50 percent of median are being added in the final rule. Those living on the streets and in shelters. It income) and ‘‘moderate-income’’ (does terms are ‘‘moderate income,’’ ‘‘elderly was not enacted for the purpose of not exceed 80 percent of median person,’’ ‘‘person with disability,’’ assisting the substantially larger number income). This rule adds a new term ‘‘large family,’’ ‘‘cost burden,’’ ‘‘severe of persons who unfortunately live in ‘‘middle income’’ to encompass the cost burden,’’ and ‘‘overcrowding.’’ The substandard housing or with others in group described as ‘‘moderate income’’ last three terms are derived from the so-called doubled-up arrangements in the proposed rule, to fulfill the census, and the definitions used in the because of the problem of a lack of responsibility under the CHAS statute to rule are, therefore, those of the census. affordable housing. The latter problems consider affordable housing needs for The other definitions being added have been the subject of legislation this category of families and to include follow the definitions provided for those since 1934, and the Department impact on them in the performance terms in the CHAS rule. administers many programs designed to report. One disability group advocate urged address these problems. Persons living HUD to adopt the definition of ‘‘persons in substandard housing or in doubled- The ‘‘extremely low-income’’ category up arrangements are not homeless, of 0–30 percent of median income was with disabilities’’ used in the Americans with Disabilities Act. The definition although they may be at high risk of praised by low-income advocacy groups becoming homeless. Although the and some States, while local used in the CHAS rule is consistent with the one required for use in the Department is not changing the core jurisdictions and some States took issue assisted housing programs. The definition of homelessness in the with its addition to the evaluation of Department sees no reason to abandon McKinney Act, it should be noted that needs and performance reports as not this definition. the prevention of homelessness is an statutorily required and too The terms ‘‘assisted family,’’ ‘‘federal essential part of a larger homeless burdensome. preference,’’ and ‘‘worst case’’ are not program and the homeless plan includes The purpose of including this income being used in the rule, and therefore no actions to help low-income families category is to assure that jurisdictions definitions for them are needed. avoid becoming homeless. This would consider the needs of the households include persons who are precariously c. Homeless that have the least ability to improve housed. their access to affordable housing on Legal service agencies, homeless and The Department does believe that the their own. It is a category that was low-income advocates, and various wording of the definition for ‘‘homeless addressed in the CHAS tables and there disability and public interest family’’ in the proposed rule was was much support from low-income organizations were concerned that the confusing. Therefore, the definition has advocates for its use in the consolidated rule’s definition of ‘‘homeless’’ was not been renamed ‘‘homeless family with plan. identical to the definition of that term children,’’ and the language has been in the Stewart B. McKinney Homeless clarified. The data for the needs assessment is Assistance Act. The definition requires d. Other Definitions census data provided by HUD that has the individual or family to both lack ‘‘a been used under the CHAS rule. The fixed, regular, and adequate nighttime A local jurisdiction pointed out that data for the performance report is residence; and [have] a primary the definition of ‘‘consolidated plan’’ similarly available. To accommodate the nighttime residence that is [a supervised indicates that it is a document concern about data availability, the emergency shelter]; * * * an institution submitted annually. Only parts of it are language has been changed to require that provides a temporary residence for submitted annually—the action plan reporting on the number of extremely- individuals intended to be and the certifications. The Department low, low-, moderate-income, and institutionalized; or a * * * place not agrees that the definition of middle-income persons served by each designed for, or ordinarily used as, a consolidated plan needs to be clarified activity only where information on regular sleeping accommodation for so that it does not appear that every income by family size is required to human beings.’’ The commenters argued element must be submitted annually. A determine the eligibility of the activity. that the McKinney Act defines a modification of the proposed language 1882 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1994 / Rules and Regulations that adds references to provisions of the this change as ‘‘a positive step in Exceptions to requirements found in the rule has been adopted in the final rule. streamlining the application process.’’ It guidelines require that no statutory or Local and State governments went on to say that the flexibility of regulatory requirements may be suggested that the definitions of income permitting the jurisdiction to select this overridden and that there must be a categories need to be clarified with program year also is beneficial. On the finding of good cause by the HUD field respect to whether they apply to other hand, an organization of county office, documented by sending written ‘‘household’’ or ‘‘family.’’ The terms officials stated that the change of memoranda periodically to HUD seem to be used interchangeably, program year will cause additional Headquarters stating the authorized although they have distinct administrative costs. It proposed that exception and the basis for the demographic meanings resulting in HUD permit waiver of the cap on exception. different median incomes. administrative costs in the first year Commenters who suggested option The final rule defines the income under this rule to accommodate the number 4 commended HUD for categories in terms of ‘‘family’’. For additional cost of changing program empowering its field offices, a change planning purposes, the definition HUD years. that will allow local HUD staff to more uses for that term in its assisted housing The administrative cap is statutory. effectively coordinate the process to programs is used in this rule (in Section 91.15 Submission date accommodate local needs. One accordance with the definition that is commenter recommended that the adopted by the Cranston-Gonzalez One concern of States, local exception provision state what steps National Affordable Housing Act). The governments, disability group must be taken by a jurisdiction in order connection between data supplied by advocates, and low-income advocates to request an exception. The rule does the Census, which uses a different was the timing of the deadline for not deal with the procedure in this level definition of ‘‘family’’, is explained in submission of the first consolidated of detail. However, any interested the Guidelines. The individual program plan. The proposed rule states that the jurisdiction should contact its HUD definitions govern the actual use of the consolidated plan must be submitted to field office for the specific information funds and reporting on beneficiaries. HUD ‘‘at least 45 days before the start to be contained in a particular request. The District of Columbia points out of its program year.’’ Since the Many States have been in contact that the definition of ‘‘State’’ includes Department has made it known that it with their HUD field offices and have the District of Columbia and the plans to implement the rule for Federal worked out agreed upon schedules for definition ‘‘unit of general local Fiscal Year 1995 funds, many complying with the requirements of this government’’ excludes the District of commenters have indicated that there is rule. It is anticipated that most insufficient time before the required Columbia; however, the District is jurisdictions will work out submission date to comply with the defined as an entitlement jurisdiction arrangements that are mutually process required under the rule. More (local government) for purposes of the agreeable for the submission of a specifically, they indicate that the stated CDBG and ESG programs. These consolidated plan that comes close to submission deadlines do not provide for definitions should not adversely impact that envisioned in this rule for this the negotiation of exceptions to a grant allocations or application fiscal year. jurisdiction’s implementation of the requirements. The final rule removes Another deadline stated in the consolidated plan for FY 1995, as reference to the District of Columbia proposed rule (§ 91.15(a)(2)) is the date from the definitions, and adds a new expected. Several alternatives were suggested: required by the CDBG statute: ‘‘Failure section to the rule to specify to submit the plan by August 16 will consolidated plan requirements for the (1) Delay implementation until FY 1996 or make implementation optional in FY automatically result in a loss of the District of Columbia. CDBG funds to which the jurisdiction A State suggests that the definition of 1995; (2) implement the new rule by a would otherwise be entitled.’’ State, ‘‘jurisdiction’’ should be clarified to demonstration, giving incentive grants county and local government entities assure that it includes only those to several jurisdictions to gain stated that this provision does not jurisdictions receiving funds directly experience with the process; (3) start appear to encompass the flexibility from HUD. It states that the rule, as implementation with jurisdictions that expected from HUD, based on written, appears to apply directly to the have a program year beginning 180 days discussions with HUD field office staff. units of general local government that following the effective date of the rule; They recommend that the rule allow are State recipients of HOME and CDBG or (4) give explicit authority in the rule some flexibility on HUD’s part not to funds. The applicability section, to HUD field offices to provide penalize jurisdictions that may have a § 91.2(b), states that ‘‘[a] jurisdiction exceptions to the submission deadline bona fide problem in making the must have a consolidated plan that is where they are warranted. One large city commented that it is pleased with the complete submission in any given year. approved by HUD as a prerequisite to The August 16 date for CDBG receiving funds from HUD under the apparent expanded role of local HUD offices in granting exceptions and submissions has been established following programs. * * *.’’ The pursuant to section 116(b) of the provision does not state that a would like the criteria for their action to be stated in the final rule. Housing and Community Development jurisdiction must have such a plan in Act of 1974 (42 U.S.C. 5316) as the final order to receive funds from a State. The Department has chosen option number 4. The rule has been revised to date for submission of final statements However, the section has been revised for each fiscal year. to clarify its applicability rather than to add a provision, § 91.20, that explicitly revise the definition of ‘‘jurisdiction.’’ authorizes HUD field offices to grant Section 91.100 Consultation three types of exceptions: from the Section 91.10 Program Year requirement to submit all or part of the a. Adjacent Local Governments Representatives of county officials consolidated plan in FY 1995 (and Several local governments criticized and local governments commented on permit submission of a CHAS annual the proposed rule’s requirement to the requirement that a jurisdiction must update plus the individual program notify adjacent local governments have one program year for all four of its submissions), from the deadline for regarding priority nonhousing CPD formula programs. One city praised submission, and from the guidelines. community development needs and Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1994 / Rules and Regulations 1883 suggested that it should be deleted. On An urban county asked for timetable for these consultations. the other hand, two low-income clarification on how this provision Presumably, the consultation will take advocates expressed support for the applies to an urban county. If there is no place well in advance of the regulatory section providing that the adjacent unit of general local jurisdiction’s submission of its proposed jurisdiction should consult with government, the intergovernmental consolidated plan. adjacent local governments. consultation requirement requires only Homeless and low-income advocates One local government believed the submission of the CD plan to the State. recommended that the regulation provision on consultation should be (The language concerning submission of specifically mention consultation with deleted because it is burdensome, the CD plan to the State was not specific entities. Most of the suggested particularly for large local governments included in the proposed rule but has groups are already included in the which have dozens of adjacent local been added to the section in this final categories stated in the proposed rule. In governments. The needs of its own rule.) addition, as residents, any persons not residents are overwhelming and will use Two local governments recommended contacted as part of the consultation all available resources. Consultation that all jurisdictions in areas that process will receive notice of and have with adjacent local governments would receive funding under the HOPWA the opportunity to participate in the unreasonably raise expectations for program should assist the jurisdiction development of the consolidated plan as services and assistance. responsible for submitting the HOPWA part of the citizen participation process, Another local government wanted allocation in the preparation of its described in § 91.105. In fact, residents clarification regarding whether consolidated plan. This is the type of in public and assisted housing consultation with local governments is issue that was intended to be covered by developments are specifically required or optional and the subject of the rule’s provision concerning mentioned in paragraph (a)(3) of that the consultation. Another local consultation for problems that go section. The Department believes it is government said the language regarding beyond a single jurisdiction, found in unnecessary to lengthen the list of notification and consultation is vague the penultimate sentence of § 91.100(a). entities consulted. The Department has determined that A homeless advocate suggested and the purpose to be served by the provision concerning consultation adding a new paragraph to this section ‘‘notifying’’ another jurisdiction is for problems and solutions that go dealing with consultation on homeless unclear. beyond a single jurisdiction should have needs. The advocate wanted the The consultation provision with one more element added: consultation regulation to require the jurisdiction to respect to adjacent local governments is with ‘‘agencies with metropolitan-wide convene a local board whose members statutorily required. The CDBG statute planning responsibilities where they are appointed by the jurisdiction and a (section 104(m)(2)(A)) of the HCDA (42 exist.’’ majority of whom are currently or U.S.C. 5304(m)) states, that in preparing formerly homeless or nonprofit b. Public and Private Service Providers the community development plan (‘‘CD providers serving the homeless. The plan’’) describing the jurisdiction’s One county commented that the local board would be responsible for priority nonhousing community regulation should recommend, rather completing the homeless portions of the development needs, the jurisdiction than require, consultation with public consolidated plan, which would be must, ‘‘to the extent practicable, notify and private agencies because the current submitted to the jurisdiction for adjacent units of general local CDBG citizen participation process is inclusion in the overall plan. The board government and solicit the views of sufficient to ensure an open process for would be responsible for considering citizens on [these] needs.’’ The citizen participation. On the other side comments on the homeless portion of following paragraph of the statute of the issue, several nonprofit disability the plan. This proposal may be requires submission of the CD plan to advocates commented that the authorized by legislative change; the State or any other unit of general regulation should mandate, rather than however, there is no statutory basis for local government within which the encourage, consultation with public and it now. Elsewhere, the Department is jurisdiction is located, as well as to private agencies. They suggest that the encouraging communities to establish HUD. consultation should be undertaken at coordinating boards to carry out a From the statutory context, the least 30 days before the jurisdiction homeless plan, but it is inappropriate to Department presumes that the views of develops its proposed consolidated require it now in this rule. adjacent jurisdictions are to be plan. welcomed on the validity of the needs The CHAS statute (section 105(b)(17), c. Public Housing Agency identified by these governments, just as 42 U.S.C. 12705(b)(17)) requires a Paragraph (c) of this section of the the comments of the citizens are to be jurisdiction to consult with public and proposed rule requires the jurisdiction considered. Consultation with adjacent private agencies concerning programs ‘‘to consult with the local public jurisdictions is not to be assumed to and services to be provided in housing agency participating in an entail taking financial responsibility for accordance with the housing strategy. approved Comprehensive Grant satisfying the needs of the adjacent Consequently, the proposed rule program concerning consideration of jurisdictions, but only reflects the required such consultation. Section public housing needs and planned perspective that adjacent jurisdictions 91.100(a) provides: ‘‘When preparing Comprehensive Grant program may have occasion to know of needs of the plan, the jurisdiction shall consult activities.’’ One large housing authority their neighbors. with other public and private agencies commented that there should be a With respect to the burden of that provide assisted housing, health mutual exchange of information notifying a multitude of adjacent services, and social services (including between the jurisdiction and the jurisdictions, the rule does not require those focusing on services to children, housing authority needed for the personal meetings with each one. The elderly persons, persons with housing authority’s Comprehensive burden of mailing a document that has disabilities—including HIV/AIDS, Grant Program plan and for the been prepared by the jurisdiction to a homeless persons) during preparation of jurisdiction’s consolidated plan. number of adjacent jurisdictions should the plan.’’ However, the Department One local government interest group be minimal. does not want to prescribe the precise commented that HUD should be 1884 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1994 / Rules and Regulations sensitive to the difficulties involved in been identified as lead poisoned. The geographic area of the state and every the requirement of consultation and rule has been revised to include the potentially affected population. The interagency coordination, particularly missing statutory language. agency suggested that the rule permit with public housing authorities over States to develop citizen participation e. Description of the Consultation which the jurisdiction has no control. plans that include participation of Process They recommended that HUD pursue citizens and groups representative of public housing regulation which require Disability community and low- potentially affected geographic areas public housing agencies (PHAs) to work income community advocates (i.e., rural, urban and/or suburban) or with the department of the jurisdiction recommend that the consolidated plan potentially affected populations. that has responsibility for the require a description of the consultation Two State agencies commented on the consolidated plan. One city commented process and an identification of those provision requiring the jurisdiction to that the Comprehensive Grant program who participated in the process. Such a provide information to the public regulations already provide for local description is required under the CHAS housing agency about housing and government cooperation in providing regulations (§ 91.15, as published on community development plan activities resident program and services to low- September 1, 1992). The rule has been related to its development and income public housing residents. The revised to include such a provision. surrounding communities, so the proposed rule contained a change in housing agency can make this Section 91.105 Citizen Participation that regulation (§ 968.320) designed to information available at the public have exactly the effect suggested by the (‘‘CP’’) Plan hearing required under the first commenter. a. General Comprehensive Grant program. One State said that the provision does not An urban county recommends that a d. Lead-Based Paint Consultation make sense for States and should not The consultation requirement for the section be added for urban county apply to States. Another State explained portion of the consolidated plan programs, enabling urban counties to that it does not currently have ties with concerning lead-based paint hazards is complete a consortium-wide citizen every public housing authority to consult with State or local health or participation plan, instead of a separate throughout the State, although it is child welfare agencies and ‘‘examine plan for each municipality. No change developing these relationships. health department data on the addresses is needed. An urban county is the A citizen participation process is of housing units in which children have jurisdiction, and the regulation requires statutorily required for the CDBG been identified as lead poisoned.’’ One only one citizen participation plan for program and the CHAS. Under the city stated that the information it the jurisdiction. CDBG program, citizen participation receives from its health department is One State commented that the requirements are imposed by the statute related to areas or blocks in which lead- regulation is not clear regarding what is for both the State and the local poisoning cases have been identified, applicable or required for State governments. The rule has been revised not specific ‘‘addresses,’’ due to Privacy governments. The regulation seems to to have a separate section on the citizen Act concerns about making information impose additional requirements for the participation plan for States, which available to the public. planning process over and above CDBG takes into account the unique situation The CHAS statute (section 105(e)(2), requirements. The State believes that in of States, eliminating the requirement 42 U.S.C. 12705(e)(2)) is stated in terms the CDBG program, the State passes that information be furnished to the of requiring the jurisdiction to consult citizen participation requirements to public housing agency for its use in with the agencies and to ‘‘examine local governments, which actually developing its Comprehensive Grant existing data related to lead-based paint propose and carry out activities. It program. hazards and poisonings, including comments that the requirements One local government thought that health department data on the addresses imposed by the proposed rule are this section was extremely confusing; it of housing units in which children have excessive and impractical at the State is not clear whether hearings and been identified as lead poisoned.’’ The level. comments pertain to the citizen statute does not pre-empt the Privacy Two States and two State interest participation plan, the consolidated Act, and the approach taken in this groups commented that the guidelines plan, or both. The Department agrees particular jurisdiction is reasonable. In indicate that States do not have to that the language needs to be more addition, neither the statute nor the provide a detailed citizen participation precise. This section has been regulation requires the jurisdiction to plan for citizens, but must have such a reorganized and clarified. provide data regarding the addresses to plan for units of general local Low-income advocates commented the public. The consolidated plan government. The regulations detail a that HUD should give clear and precise section for lead-based paint hazards laundry list of requirements and do not minimum standards to jurisdictions in under the housing needs assessment mention the fact that States are exempt terms of time periods for each step in requires the plan to estimate the number from this requirement. Clarification is the process and the type of notice, in of housing units that are occupied by needed. order to avoid confusion as to whether low- and moderate-income families and One State agency commented that it or not the jurisdiction is complying with that contain lead-based paint hazards. would be difficult to implement the HUD’s purpose and to ensure Several low-income advocates point regulatory provision that encourages the meaningful citizen participation. out that the regulation fails to restate the participation of all citizens, including Expressing a different point of view, one statutory language concerning minorities, non-English speaking local government commented that the consultation for lead-based paint persons, and persons with disabilities. requirement for more citizen and agency hazards to examine ‘‘existing data The State action plan does not require participation may complicate an already related to lead-based paint hazards and the State to identify the geographic areas lengthy consultative process. This local poisonings,’’ although the regulation within the state that will receive funds government already has a nine month does include the statutory language to or the specific activities to be funded. process to include citizens and agencies examine data on the addresses of Therefore, such participation would be in determining the elements of the housing units in which children have required by every potentially involved CDBG application; adding components Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1994 / Rules and Regulations 1885 could significantly slow down an the initial consolidated submission is paragraph (a)(2) because it diminishes already unwieldy process. On balance, submitted. the importance of the first part of the the Department has decided not to Since the Department is eager to sentence. These changes have been prescribe additional detailed minimums implement the consolidated plan made. for all elements, since that would expeditiously, the rule does not require Several low-income community reduce the flexibility of the that the citizen participation plan be advocates supported the regulatory jurisdictions. It is up to the jurisdictions developed, approved, and used, before language encouraging the participation to adopt a detailed citizen participation any consolidated planning process by minorities, non-English speakers, plan (with citizen input) that fits local begins. It merely requires that the persons with mobility, visual, or hearing conditions. citizen participation plan be completed, impairments, and public housing The Department notes that the in accordance with this rule, before the residents. One disability community statutes require more extensive citizen first program year under the advocate wanted the language participation for the proposed CHAS/ consolidated plan begins. In the first broadened to include ‘‘persons with final statement/consolidated plan than year, the jurisdiction must follow the disabilities,’’ not just those with for amendments and reports, which substance of the citizen participation physical impairments. Although it may only require notice and an opportunity plan requirements, but it does not have be more difficult for a jurisdiction to to comment. The final rule has been to have a written citizen participation determine how to provide for revised to distinguish the citizen plan that follows the specific provisions participation of persons with disabilities participation required for the of § 91.105 if its program year starts other than the physical ones specified, consolidated plan from the citizen within 180 days of the effective date of the Department agrees that the participation required for reports and the rule. In the following years, the new obligation should relate to the whole amendments. written citizen participation plan will category of persons with disabilities. be used in developing the consolidated One local government requested that The rule has been revised accordingly. plan. the rule address the citizen participation Several low-income community Several disability and low-income advocates said that the regulation does process in a jurisdiction where separate community advocates suggested that the agencies administer homeless services regulation set forth the process for not sufficiently address the statutory and housing services. The city would developing and adopting the citizen requirement that ‘‘affected citizens’’ like to be able to continue to use two participation plan, e.g., publish the must be given a reasonable opportunity separate citizen participation processes citizen participation plan for comment, to examine the contents of the proposed and to incorporate the homeless plan require one or more public hearings on consolidated plan and to submit into the consolidated plan. The the plan, require a 30 day comment comments. They want the regulation to Department believes that two separate period, and publish the final plan. The state that ‘‘extremely low and very low- processes would hinder a key premise proposed rule’s provision requires only income’’ people are among those most of the consolidated plan, i.e., to require a ‘‘reasonable opportunity’’ to comment, ‘‘affected.’’ They want the regulation to the jurisdiction to comprehensively not a hearing process. The Department require the jurisdictions to take consider and address the housing and has concluded, after listening to the additional actions to publicize/give community development needs of all suggestions of jurisdictions, that it notice to these affected citizens, e.g., persons within the jurisdiction. should not impose greater procedural notice should be in the non-legal section of major daily newspapers, in major b. Applicability requirements on the development of the citizen participation plan, although we non-English newspapers, and in public This section of the regulation requires have made a few modifications to the service announcements on TV and the jurisdiction to adopt a citizen citizen participation requirements to radio. participation plan for the consolidated reflect improved notice to citizens. The rule is written in terms of all plan process before a jurisdiction’s start Two local governments commented citizens, rather than just ‘‘affected’’ of the next program year. The rule also that it is unclear whether the citizen citizens. One could certainly argue that provides that any amendment of a participation plan is a specific, written all citizens in the jurisdiction are jurisdiction’s current citizen document that must be submitted for affected. This comment is just another participation plan for the CDBG approval, or whether the jurisdiction way of saying that the citizen program to satisfy these requirements may merely report on its activities to participation requirements should be must be completed before the beginning meet the requirements of the citizen stated in greater detail. That level of of the program year, if it starts on or participation plan. The regulation detail will be provided not in this after 180 days after the effectiveness of suggests a separate document is section of the HUD rule but in the the final rule. required, but the guidelines are unclear. citizen participation plan prepared by Several low-income and disability A separate document is required; the jurisdiction. community advocates recommended however, the citizen plan is not required d. Information To Be Provided that the regulation must clearly provide to be submitted to HUD. The that the citizen participation plan must requirement for a citizen participation This section of the rule requires that, be adopted by the jurisdiction before the plan came from the CDBG statute. before it adopts a consolidated plan, a development of the proposed jurisdiction must make available to the consolidated plan, and the plan must c. Affected Citizens public ‘‘information that includes the describe the jurisdiction’s specific Several disability and low-income amount of assistance the jurisdiction efforts to ensure participation of community advocates requested that the expects to receive and the range of housing consumers, including people regulation state that the plan must activities that may be undertaken, with mental retardation and other ‘‘provide for’’, not just ‘‘encourage’’, including the amount that will benefit disabilities and their advocates. One participation by residents of low and persons of low- and moderate-income individual commenter stated that the moderate income neighborhoods. They and the plans to minimize displacement new citizen participation plan must be also wanted the word ‘‘although’’ of persons and to assist any persons adopted as soon as possible, not after stricken from the beginning of displaced.’’ 1886 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1994 / Rules and Regulations Fearing that jurisdictions will make demonstrations with city-wide low newspapers, in major non-English this information available the day before income coalitions where HUD would newspapers, and in public service a consolidated plan is adopted, low- provide the software and providing announcements on TV and radio. The income advocates urged that the reduced cost copies of the software to jurisdiction should maintain a mailing regulation specify a time period for the various groups. list of interested individuals, nonprofit jurisdiction to make information One local government asked when the organizations, low-income available to the public. The commenters period begins for access to records and neighborhood organizations, and other suggested various periods of 10 to 30 information relating to the jurisdiction’s interested parties and be required to days before the consolidated plan is use of program assistance during the send written notice of the opportunity prepared, and at least 30 days or 60 days preceding five years. The commenter to comment on the proposed before the consolidated plan is adopted. also said that the CDBG program only consolidated plan, as well as a copy of This requirement is derived from both requires records to be maintained for the final plan. Copies also should be the CDBG statute and the CHAS statute. three years and suggests the regulation available at public and private agencies Since the Department is not aware of be amended to give access to records for that provide assisted housing, health any controversy concerning the the preceding three years. The current services, and social services. In implementation of the CDBG CDBG program regulation requires addition, a reasonable number of copies requirement to furnish information, it records to be maintained for three years are to be provided without charge to declines to impose a time limit in this after the date of submission of the citizens and groups that request a copy. rule, whose purpose is to consolidate performance report in which the The Department declines to add all of requirements—not to impose more strict specific activity is reported on for the these elements to the rule. However, timeframes on jurisdictions. Again, the final time. The CHAS statute requires recognizing that citizen notice of jurisdiction’s citizen participation plan access to records regarding assistance hearings is critical to success of citizen is the appropriate place for these received during the preceding five year participation, the Department has added timeframes. period. Blending these provisions to language to indicate that publishing Local governments and local cover all the programs requires use of small print notices in the newspaper a government interest groups supported the five-year period. few days before the hearing does not the regulation for permitting publication Accordingly, the program regulations constitute adequate notice. Also, the of a summary of the proposed are being amended in this rule to examples provided by commenters are consolidated plan, rather than the entire require records to be retained for a excellent examples of how to provide plan. Low-income and disability longer period than is currently required. notice, and they will be included in the community advocates indicated Since performance reports are submitted Guidelines issued to assist jurisdictions disapproval of this proposal. One local after the program year, retention of in implementing the rule. government requested that the records for four years after the activity The proposed rule contained three regulation should list precise content is last included in a performance report provisions related to accessibility of the requirements for the plan summary to yields a five-year retention period. For process to persons with disabilities: the avoid lengthy disputes about what the CDBG program, the retention period statement about encouraging the content is acceptable. The Department has been changed to four years after the participation in the citizen participation continues to believe that publication of CDBG activity is last included in the process in paragraph (a)(2), discussed a summary of the consolidated plan is performance report. Since program above, the statement that more meaningful to stimulate general closeout would occur no earlier than the accommodations for persons with interest in the process than publication end of the program year in which the disabilities must be made at public of the lengthy and complicated activity is initiated, retention of records hearings in paragraph (b)(5), and the document. However, the rule is not for four years after closeout yields a statement about accessibility of the being revised to specify its precise five-year retention period. For programs citizen participation plan in paragraph contents. other than the CDBG program, the (c). Low-income and disability retention period has been changed to Several disability community community advocates indicated that the four years after closeout. advocates commented that section 504 entire draft consolidated plan, plan of the Rehabilitation Act (29 U.S.C. 794) amendments, and the performance e. Notice requires each jurisdiction to make the reports, must be made available to Some low-income advocates support content of the proposed plan available citizens within a period such as two the requirements in the proposed to persons with disabilities in a form working days free of charge. The regulation for the kind of citizen that is accessible to them. Further, they Department agrees that the documents participation required, but virtually all stated that it is essential that needed for public comment must be of the advocates believe that the announcements, materials, training made available without charge in a regulation fails to provide sufficient sessions, and hearings related to the timely fashion. This requirement is specificity regarding ‘‘publish’’ and plan are accessible to persons with being added to the rule. ‘‘notice’’ and reasonable opportunity to disabilities. Low-income advocates want the comment. Several cities asked whether the consolidated plan computer software to Suggestions for specific elements to format accessible to persons with be made available to community-based be included in the rule were the disabilities had to be available organizations. They suggested that one following: how notice is given; what regardless of demand for the format. local grassroots organization could be groups and populations must receive Two cities suggested that the regulatory chosen to act as a lead and to share the notice; time period for advance notice provision for the citizen participation software with other such organizations. before issuance of the draft plan (45 plan to be made available in a format The software should also be made days); and responses provided in draft accessible to persons with disabilities available at no or reduced cost to local plan to all oral and written comments should be based upon a specific request. libraries. Among the options that HUD received at or before the first public One city based this suggestion on the is considering at this point are hearing. The notice should be in the fact that taped or Braille version of participating in a number of non-legal section of major daily information had not been requested in Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1994 / Rules and Regulations 1887 the past 20 years. The rule has been Section 91.62 of the current CHAS rule suggested eliminating it if it is not revised to require provision of the contains this same requirement. The statutorily required. materials in accessible form, upon requirement, therefore, is not totally This provision comes from the CDBG request. new, although jurisdictions may not statute and has applied to the CDBG have been required to submit f. Comment Period State and Entitlement programs since performance reports concerning formula 1988, so it cannot be eliminated. Comments were received about the grant programs for public comment However, the CDBG rule has applied the appropriateness of the 30-day comment before submitting them to HUD. requirement to States via the local period on the consolidated plan, as well We note that not all changes in governments’ citizen participation plans as on the 30-day comment period for activities constitute a ‘‘substantial (see § 570.486(a)(4)). The final rule has plan amendments and for performance amendment’’ that will trigger this public been revised to treat it the same way in reports. Several local governments comment process. See the provision that the separate States provision on citizen believe that the 30-day comment period permits the jurisdiction’s citizen participation. for the consolidated plan is reasonable. participation plan to determine what Two states commented that the Several low-income advocates want the type of change requires a substantial regulation is unclear on the extent of the minimum period for the jurisdiction to amendment. technical assistance that is to be receive comment from citizens on the The final rule has been revised to provided. Government interest groups consolidated plan to be increased from provide that the comment period for and a local government expressed 30 days to 60 days to give residents performance reports is 15 days, instead support for the regulation language, more adequate opportunity to research, of 30 days, and the deadline for which requires the jurisdiction to discuss, and comment on the proposed submission of the reports is preserved at determine the level and type of consolidated plan. The opportunity to comment on the 90 days after the end of the program technical assistance. There is no change consolidated plan derives from the year. to the final rule on this issue, although CHAS statute, section 107(a), which Several low-income community more guidance is provided on it in the requires that a jurisdiction provide a advocates also suggested that the Guidelines. reasonable opportunity to examine the regulation specify a period between the Two agencies from one State wanted content of the proposed housing strategy end of the comment period and the to know the source of funds to provide and to submit comments on the submission of the plan so that the the technical assistance and requested proposed housing strategy and from the jurisdiction will be able to make that the regulation specifically permit CDBG statute, section 104(a)(2)(B), changes in plan based on citizen federal administrative funds to cover the which requires CDBG grantees to comments. Different timeframes were costs of providing technical assistance. provide a reasonable opportunity to suggested: at least 10 working days, 30 One low-income advocate also asked examine the content of the proposed days. The final rule has been whether funds will be available to statement of CDBG activities and to reorganized so that the provision jurisdictions to provide this technical submit comments on the proposed requiring a minimum 30 day public assistance to them. Another State also statement. The Department believes the comment period also requires that the wanted to know the extent of any 30-day period specified in the rule for jurisdiction must consider the tracking of such assistance that might be this process is appropriate, especially comments. The jurisdictions need to required. Technical assistance is an given the comments from both sides of give themselves adequate time to eligible administrative expense under the issue. consider the comments, but the the CDBG and HOME programs. Thirty days was stated to be too long regulation does not prescribe this time One low-income advocate suggested and burdensome a comment period for period. that technical assistance available to amendments by several local g. Technical Assistance groups representative of very low and governments. The commenters low-income people should be advertised suggested a 15-day comment period for Paragraph (b)(4) of the proposed rule via mailings to all such groups in the amendments to the plan or suggest that requires that the citizen participation jurisdiction. Available technical the regulation not prescribe the period plan ‘‘must provide for technical assistance should include written and instead required a ‘‘reasonable assistance to groups representative of guidance, telephone contact and one-on- period.’’ persons of low- and moderate-income one meetings. Low-income and One local government stated the 30 that request such assistance in disability community advocates want day period for receiving comments on developing proposals for funding HUD to provide funding to their reports is a new requirement and is assistance under any of the programs organizations to develop materials and infeasible because the report is due 90 covered by the consolidated plan, with training for citizen groups to allow for days after the end of the program year the level and type of assistance meaningful participation. The rule does and the report will require information determined by the jurisdiction.’’ not prescribe the forms of technical on all the formula programs. Two other One State and one State interest group assistance, but the implementing local governments agreed that the asked for clarification of how this guidelines will include suggestions. requirement for notification and a 30 provision would apply to States. They h. Public Hearings day comment period for performance indicated that since some States do not reports is time consuming, redundant, develop proposals for CDBG and HOME Local government interest groups and should be eliminated. Others programs, but instead receive requests stated that they believe that public suggested a 15-day period for the from local governments for funds for hearings are not the most effective way performance report or a ‘‘reasonable what they determine to be their local to obtain citizen views. One city and period.’’ needs, the States would not be in a low-income advocate recommended A public comment period is required position to provide this type of neighborhood meetings as useful in the for substantial amendments and technical assistance. A local government process. The rule follows the statute in performance reports in accordance with wanted clarification regarding whether requiring public hearings, but is open to the CHAS statute, section 107(b). this requirement is statutory, and other forms of involving the public. 1888 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1994 / Rules and Regulations One local government suggested that The low-income and disability to require detailed summaries of HUD interpret ‘‘public hearing’’ to mean community advocates stated that the comments indicating the number of traditional public hearings, as well as, development of needs in the comments for each constituency type public meetings. This would give consolidated plan must be based on and responding appropriately to each jurisdictions flexibility to use public determination of housing needs made comment that was not incorporated into meetings and other public forums to after public hearings. Several disability the final version of the consolidated gather citizen comments. Formal public community advocates commented that plan. hearings in local government require the timeframes for citizen participation Section 107(c) of the CHAS statute, 42 city council members to be present and through the public hearing process do U.S.C. 12707(c), requires the for comments to be tape recorded. The not require citizen participation in the jurisdiction to consider comments and requirement for public hearing has been earliest stages of the consolidated views and to attach a summary. in the CDBG statute for many years, and planning process, when ‘‘worst case’’ Although the statute does not require a HUD has not found it necessary to housing needs can be identified. They discussion of the consideration of the define what this means. Public hearings argued that timeframes permitted by the views/comments, the Department are governed by state and local law. regulation significantly reduce the believes that such a provision The question of how many hearings likelihood that meaningful housing strengthens the citizen participation are required and at what point was needs information or housing strategies process. raised by a number of commenters. will be sought from persons with Low-income advocates suggested that Several local government disabilities, advocates, or service the regulation include a time period representatives read the regulation to providers as the consolidated plan is from close of the comment period to require two public hearings during the developed. The rule does require that submission of the consolidated plan to plan development process and believe the hearing on needs be conducted ensure that the jurisdiction has adequate only one should be required. The low- before the proposed consolidated plan is time to consider the comments. The income advocates commented that the published. Department is reluctant to specify regulation should require three One nonprofit and several low- additional time periods that must be hearings, instead of two, each program income advocates stated that HUD must honored, but citizens can certainly seek year, indicating that they believe the assure that meeting places and times are addition of this element to a local CDBG statute requires three hearings. convenient to the persons most affected government’s citizen participation plan. Various timeframes for these hearings by these programs, by providing One large city and one local were also suggested. guidance in the rule. The rule requires government interest group commented The proposed rule was based on the the citizen participation plan to provide that the regulation should not require requirements of the CDBG statute, that hearings be held at times and ‘‘substantive responses’’ to every citizen which requires (at 42 U.S.C. locations convenient to potential and complaint within 15 days because it is 5304(a)(3)((D)) that a jurisdiction have a actual beneficiaries. not practicable in its city to respond to citizen participation plan that A local government interest group every comment individually within 15 Provides for public hearings to obtain commended HUD for not prescribing days. HUD should delete the reference citizen views and respond to proposals and how the needs of non-English speaking to 15 days in the rule and allow local questions at all stages of the community residents will be met. The rule does control over public response time. The development program, including at least the require that the citizen participation CDBG statute and the consolidated plan development of needs, the review of plan specify how the jurisdiction will regulation specify the 15 day period, proposed activities, and review of program meet these needs. ‘‘where practicable.’’ performance * * * Clarification was requested by Several low-income advocates stated One local government requested that jurisdictions on whether flexibility is that the regulatory requirement for a the regulation clearly say how many also permitted to meet the needs of timely substantive written response to hearings are required and what topics disabled persons. Disability advocates written complaints is not sufficient to are required to be covered. In an attempt stated that the physical accessibility of provide resolution of the complaints. to give jurisdictions as much flexibility meeting or hearing sites should be Advocates also wanted the regulation to as possible, the regulation requires a ensured. Since accommodation for set forth an appeals process to HUD on minimum of two public hearings, since persons with disabilities is required by complaints and on comments on the the statutory language uses the plural the CDBG statute (42 U.S.C. consolidated plan. ‘‘hearings,’’ to be conducted at two 5304(a)(3)(D)), by section 504 of the The CDBG statute (section different stages of the process. Under Rehabilitation Act of 1973 (29 U.S.C. 104)(a)(3)(E)) requires a ‘‘written this wording, the jurisdiction may 794) and by the Americans with answer,’’ while the CHAS statute combine the hearing on needs for the Disabilities Act (42 U.S.C. 12101–12213) (section 107(d)) requires a jurisdiction coming year’s planning with the hearing and implementing regulations, it does to follow HUD-established ‘‘procedures on the previous year’s performance, for not seem necessary for the rule to spell appropriate and practicable for example. However, a jurisdiction may out exactly what is required for providing a fair hearing and timely choose to hold one public hearing on accommodation in this rule. resolution of citizen complaints.’’ The needs, a second on the draft rule requires each jurisdiction to specify consolidated plan, and a third on the i. Comments and Complaints in its citizen participation plan the draft performance report. Local governments and local procedures it has determined are One advocate wanted the regulation government interest groups believe that ‘‘appropriate and practicable’’ to resolve to require the hearing on needs to be the requirement to attach a summary of complaints. A system involving an expanded to permit citizens the public comments or views and set forth appeal to HUD would not be possible, opportunity to respond to proposals and the reasons for not accepting comments given the limited staff available. questions. The rule has been revised to should be eliminated because it is not One state agency commented that it is reflect the CDBG statutory language statutory, is too burdensome, and unclear whether each commenter on the requiring response to proposals and creates additional paperwork. One low consolidated plan is required to be sent questions. income advocate wanted the regulation an individual response, separately from Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1994 / Rules and Regulations 1889 the responses that must be prepared as above. Comments that apply equally to A commenter recommended that the a part of the consolidated plan citizen participation under the requirement that the grantee provide document. If so, this would be consolidated plan have been considered ‘‘reasonable’’ notice of public hearings burdensome. The provision on by HUD in the development of the final be replaced with the need for providing responses to complaints was not consolidated plan regulation as follows. ‘‘adequate’’ notice, noting that the intended to cover comments on the Two commenters expressed concern statute had used the word ‘‘adequate’’ consolidated plan. The rule has been about the proposed requirements that for this purpose. The Department revised to have a separate paragraph for grantees must provide citizens an believes that there is little difference comments and a separate paragraph for opportunity to comment on the original between the meaning of the two words complaints. citizen participation plan and any in this application. Accordingly, the final rule uses the word contained in the j. Criteria for Amendments amendments to the plan, and must make the plan public. The comments statute. The commenter also One state interest group commented expressed the view that these recommended that the rule set a on behalf of a state that the citizen requirements were duplicative and standard for ‘‘adequate notice,’’ participation plan is very idealistic and would only serve to increase costs of suggesting as a model what the will restrict states’ flexibility to amend compliance with little benefit to the Department of Treasury has established individual programs. The regulation objective of public participation. for small-issue private purpose requires the citizen participation plan to The Department disagrees. Because industrial revenue bonds. The final rule specify the criteria that the jurisdiction the plan sets forth the detailed does not contain such a model, since will use to determine what constitutes mechanisms for involving citizens in HUD believes that each grantee should a ‘‘substantial change’’ which the development and review of the be given the flexibility to meet the necessitates citizen participation to grantee’s CDBG program and notice requirement in its own way, amend the consolidated plan. consolidated plan, it must certainly be describing in its plan how it will made public. But it is also important provide adequate notice. k. Adoption of Citizen Participation One commenter questioned the Plan that the citizens, who will be so much affected by the approaches selected by inclusion of the requirement that One state commenter believes that the grantee for involving them, be given grantees provide ‘‘timely notice of local HUD presents no rationale for the the opportunity to comment on the meetings’’ (other than for public provision requiring citizen input on the hearings) in addition to the requirement development and amendment of that citizen participation plan and it exceeds that they provide ‘‘reasonable and plan. Although this will be more costly the statute. The state is also concerned timely access to local meetings, than simply making the plan public, it that the need to allow for input on the information, and records * * * ’’. The is largely a one-time added expense and citizen participation plan will require a commenter noted that the requirement is fully justified in light of the much earlier initiation of actions than to provide timely notice went beyond importance placed on meaningful may have been contemplated by many the provision in the statute, and involvement of citizens in the states. appeared to require formal legal notices development and review of local CDBG The Department believes that input by in daily newspapers. Believing this to be programs and the consolidated plan. citizens and their advocates is necessary unnecessary and costly, the commenter for a meaningful citizen participation One of the commenting citizen suggested that the regulation simply plan that will meet the needs of citizens organizations recommended that the retain the statutory language. This in the jurisdiction, particularly those rule require that hearings be held each suggestion is adopted in the final rule. who are the intended beneficiaries of time a final statement is proposed to be A large city expressed concern about programs covered by the consolidated amended and that language be added to the need for targeting citizen plan. The regulation does not require encourage the use of hearings for the participation to low- and moderate- adoption of a new citizen participation purpose of enabling citizens to income persons residing in certain plan each year. participate in project design and areas. This requirement is statutory and implementation. Neither of the cannot be removed from the rule. This l. Pending CDBG Rule on Citizen suggestions was adopted. The commenter also objected to the Participation Department believes that to require requirement that the citizen The citizen participation hearings to discuss amendments would participation plan contain information requirements in the consolidated plan be very costly, since a grantee could be on the types and levels of assistance to regulation incorporate the citizen expected to have several amendments be provided to persons who may be participation requirements of the CDBG during a program year. It is also highly displaced by CDBG-assisted activities. It program and supersede the pending questionable that holding a hearing to was noted that this information is rulemaking on citizen participation for discuss an amendment would be more already required to be made public and the CDBG Entitlement program. In that effective in getting citizen views than the need to duplicate it in another rulemaking, a proposed rule was the current requirement of providing document would be costly. The published on March 28, 1990 (55 FR citizens the opportunity to comment in regulations do not duplicate 11556). Publication of a final CDBG writing. It is reasonable to assume that requirements concerning plans for regulation on citizen participation was many citizens would be willing to displacement. Instead, the citizen delayed primarily by a moratorium on submit comments in writing about a participation requirements in the rulemaking. proposal but would not be willing or proposed CDBG regulation and in the HUD received comments on citizen able to attend a hearing to register those consolidated plan regulation combine participation requirements in the comments. all citizen participation requirements, proposed CDBG program from eight In a related matter, another including the requirement the plan for commenters. Some of the comments on commenter recommended the removal displacement, into a single citizen public hearings duplicated comments of the requirement that the hearings be participation plan. made on the proposed consolidated held at different times during the year. One of the citizen organizations plan regulation and are addressed This requirement is statutory. suggested that grantees be required to 1890 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1994 / Rules and Regulations maintain all of the key CDBG materials The requirement now includes specific disproportionate need from the together in several locations throughout reference to single persons. Nonelderly proposed rule. the community to make it easier for persons presumably fall into the general c. Lead-Based Paint Hazards citizens to involve themselves in the categories of persons whose needs are program. HUD is unwilling to require identified. Households of nonrelated Several local government commenters this of all grantees, but notes that local individuals are covered by the HUD requested that they not be required to citizen groups having particular definitions. provide data on lead-based paint problems in this regard may want to Nonhomeless people with special hazards, since it was not easily press their grantee to do this on a needs are now the subject of a separate available. One local government voluntary basis. paragraph (d) in § 91.205. This category commenter suggested a rough analysis One commenter recommended that covers elderly, frail elderly, persons between Census data on pre-1970 grantees be required to identify the with disabilities (mental, physical housing and low-income occupancy amount of ‘‘unexpended’’ funds developmental), persons with alcohol or data as a way to yield a pool of units allocated in previous years at the time other drug addiction, persons with HIV/ likely to have some of lead-based paint. it provides information to citizens about AIDS and their families, and any other The requirement to provide this the amount of CDBG funds available in categories the jurisdiction may specify. information is statutory. The the coming year. The expressed We note that with regard to commenter’s suggestion for a method to objectives of this suggestion were that it identification of special needs estimate the scope of hazard is not would help citizens identify problem populations, the use of HOME tenant- unreasonable. However, the areas (presumably with performance) based rental assistance to be used consultation section (§ 91.100) does and would highlight that certain needs exclusively for assistance to one require consultation with local health will not have to be addressed in the subpopulation of the disabled will only and child welfare agencies and coming year’s program because of be permitted if the grantee can examination of health department data earlier allocation decisions. demonstrate that (1) the need has been on this subject in the preparation of the The Department does not believe that documented in its consolidated plan, consolidated plan. and (2) the reason for their preferential such a change would be appropriate, d. Homeless since the rule already requires sufficient treatment is to narrow the gap in disclosure of performance. (The rule available benefits and services to the Several low-income advocates and requires that performance be covered at group. Therefore, this element is disability community advocates a public hearing and that the grantee’s essential to the consolidated plan. complained about the deletion of the performance report be subjected to The Department declines to require CHAS rule’s more detailed homeless public review and comment.) all the information contained in CHAS needs assessment. Commenters Table 1C, because that would be indicated that the rule should spell out Section 91.205 Housing and homeless contrary to our efforts to avoid in detail the data required to be needs assessment unnecessary requirements and detailed submitted. The proposed rule requires a. Categories of Persons Affected tables. However, we have attempted to that a homeless needs table be included assure that the categories of special need in the plan that is prescribed by HUD. Numerous low-income and disability to be served by the Department’s This follows the statutory language. The community advocates commented that programs are adequately addressed in final rule preserves this provision intact. the proposed rule does not require the the assessment of need. e. Racial Impact level of detail on subpopulations that Low-income advocates also stated that was required in the CHAS Table 1C. an indicator of need which should be A number of low-income advocates They argue that this information is included is analysis of the public stated that racial impact should be essential to illustrate the needs of housing and Section 8 waiting lists. We addressed in the needs assessment. In special populations. A disability group are including this suggestion in the fact, several groups advocated that if advocate indicates that the rule fails to implementing Guidelines. this rule were implemented without the create a comprehensive, inclusive and Several public interest groups and anticipated Fair Housing Plan rule it detailed needs analysis for programs local government commenters should contain consideration of racial that address the needs of persons living questioned the requirement to collect impact in every element of the with HIV/AIDS. The commenter states data on ‘‘extremely low-income’’ consolidated plan. that all jurisdictions are likely to be families, indicating that this information The Department has decided to deal affected by the HIV epidemic and was not statutorily required, not with the more comprehensive issue of a should have a needs assessment for required by the four grant programs Fair Housing Plan in a separate residents in their areas who are living included in the proposed rule for proposed rule, which is expected to be with HIV/AIDS, even if they are not targeting program assistance, and not published shortly. To assure that some seeking funds under the HOPWA required in the past. As described above minimal requirements for compliance program. in the discussion of definitions, the term with the statutorily required The low-income advocates also note ‘‘extremely low-income’’ has been certification that a jurisdiction is that the proposed rule does not require preserved in the final rule. affirmatively furthering fair housing, that the needs of single, non-elderly or this rule includes, in the certification households of nonrelated individuals be b. Disproportionate Need section, the requirement that an analysis identified. Also missing is the Two local governments disagreed of impediments be done and that the requirement to identify needs of with the methodology on steps to address the impediments be nonhomeless people with disabilities, disproportionate need, indicating that it described, mirroring the language added especially those with AIDS. should be weighted for population size. to the CDBG regulations on the same The Department has revised the rule Several low-income advocacy subject. In addition, the performance to specify that the needs must be commenters thought the approach was report now includes for all programs the estimated for the number and type of excellent. The Department is preserving element of data on race and ethnicity of families by income groups and tenure. the language on calculation of beneficiaries. Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1994 / Rules and Regulations 1891 Section 91.210 Housing Market reviewing the PHA’s allocation plan and to ‘‘Strategic Plan’’ to emphasize the Analysis identifying the number of units lost to cohesive nature of this section of the persons with disabilities. The provision document. a. General Characteristics to which the commenters refer is the The Department declines, however, A few low-income advocates provision that permits public housing the suggestion to adopt a ‘‘fair share’’ suggested that a description of housing and Section 8 housing projects to be approach. The Department’s goal for stock be related to income, race and designated for only elderly families, this rule is to provide the framework for neighborhoods and ranked as housing only disabled families, or for either. The communities to have meaningful plans, needs are. The language of the rule does Department is considering how to serving low-income families. The require the description to relate to encourage balancing the resources Department does not want to substitute income, race, and neighborhoods. Since available for these different groups. If its judgment for locally developed plans this section does not deal with needs, special funding is announced to further and priorities framed through a strong but with the available stock, ranking this end, applicants will need to supply citizen participation process. would be inappropriate. such information. However, by establishing a stronger There were several comments on rationale for relating priorities to needs, redundancy between what must be c. Barriers to Affordable Housing the Department hopes to discourage reported in the market analysis section Several local government and such situations as the following: A and what must be reported in the government interest group commenters major city identified a large need for strategy, especially on coordination, objected to the provision requiring cities housing by low-income groups and institutional structure and barriers to to identify public policies that affect the homeless persons and proposed actions affordable housing. The final rule has cost or incentive to develop affordable to address these needs. Then the city been revised by consolidating the housing. They should not be required to council overturned these proposals and provisions on coordination and do a self-analysis but only relate built a high profile ‘‘trophy’’ project institutional structure with the criticisms they have received. Cities which completely ignored those needs. provisions on the same subject in the suggested that they be required to list Several commenters were critical strategy section. However, the provision Federal policies that create barriers. about the level of detail which seems to on barriers to affordable housing is seen This element is statutorily required, be required about specific objectives at as necessary to an analysis of the so it has not been eliminated. The 91.215(a)(2). This section seems to housing market and have been retained Department believes that listing of require localities to quantify and in this section. Federal policies in this part of the local geographically locate Federal grant Two commenters suggested that a plan is not appropriate. However, HUD budget resources for a 3 to 5 year period description of the housing market will work with localities to assess the in the consolidated plan. They claimed should include information on vacancy impact of HUD policies separately. this level of specificity is only practical rates and the availability of credit. Such for an annual plan. There was a fear that language is not being added to the rule, Section 91.215 Strategies, Priority a listing of projects would preclude the but it will be included in the Needs, and Objectives funding of other worthwhile projects implementing Guidelines. a. General not on the list. Local definitions of areas of low- The burden of the analysis has been income and minority concentrations The majority of low-income and decreased by focusing the discussion of may be inconsistent with the fair disability community advocates the basis for assigning the relative housing rule once it is published, local recommended inclusion of the link priority given to priority needs by government commenters suggested. between needs and priorities, with the category of priority needs instead of by They requested the ability to choose worst case needs being given the highest each priority need. In addition, the either local or HUD’s definitions. This priority. Several commenters wanted to information is to be provided for a rule will permit local definitions. restore the comparative analysis specific period of time, which is However, when the Fair Housing Plan required by the CHAS at 91.19(b)(1), determined by the jurisdiction. rule is published as a final rule, it will matching housing inventory with Some low-income and disability prescribe use of its definitions for this severity of needs and types of housing advocacy groups have argued that purpose. problems of each priority category. priority needs of non-homeless persons One low-income advocacy commenter Some recommended that the rule with disabilities should be added. The suggested that a city should be required require that a jurisdiction commit to Department agrees. A separate section to assess whether it has sufficient sites providing a ‘‘fair share’’ of its resources on this group has been added. to meet the low-income housing needs to meet the ‘‘worst case’’ needs. b. Affordable Housing in its community. The consolidated The Department agrees with the low- plan rule is not being expanded to income and disability community Several low-income advocacy require this assessment in this section. advocates that the strategy must explain commenters wanted the Department to However, the Department does plan to how the priorities have been established require jurisdictions to address the address the question of site selection in and how the strategic plan addresses the proposed availability of affordable a later proposed rule. needs identified in the needs housing for each income group, assessment. The rule has been especially extremely low-income, very b. Public and Assisted Housing strengthened to require a comparative low-income and low-income (as these Eight disability community advocates analysis of the severity of housing terms were used in the proposed rule), indicated that jurisdictions must assess problems and needs of extremely low- and to define affordable housing as the loss of public housing units which income, low-income, and moderate- housing for which a low-income family will occur because of the income renters and owners. The pays less than 30 percent of income. implementation of Title VI of Housing rationale for establishing the priorities The Department agrees, and the rule has and Community Development Act of and determining the relative priorities been revised accordingly to more 1992. They recommended that an should flow logically from this analysis. closely approximate what was in the analysis of these issues be required by The title of the section has been revised CHAS. It requires specific housing 1892 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1994 / Rules and Regulations objectives that identify the number of as activities to promote the substantial Section 91.220 Action Plan extremely low-, low-, and moderate- revitalization of the area(s); and a. Linkage income families (using the revised (5) Identifying the results expected to terminology) to whom the jurisdiction be achieved, expressing them in terms The low-income and disability will provide affordable housing. that are readily measurable. community advocates were critical of With respect to the proposed rule, what they viewed as inadequate linkage c. Community Development local governments commented that the in the action plan between the needs of Several low-income advocates information required in the table the extremely low-income families and recommended that needs of extremely prescribed by HUD to describe the those in the worst housing conditions low-, very low- and low-income people jurisdiction’s priority nonhousing and the proposed activities to be be expressly addressed in the CD plan. community development needs eligible undertaken by the jurisdiction under the One commenter suggested that this for assistance in dollar amounts is not draft language of this section. discussion of needs belongs in § 91.205 very useful, only raises expectations In response to these concerns, the rule with the discussion of housing and concerning infrastructure needs that has been revised to require a clearer homeless needs. Since there is a cannot be met, and is very difficult to statement of priority needs and local statutory requirement for a discussion of cost out. Low-income advocates objectives covered in the strategic plan, priority nonhousing community commented that there is too little including the number and type of development needs, the Department is information in this section compared to families to be benefitted from the keeping the CD plan as a part of the the housing section. activities proposed for the year, with a strategy, and not part of the housing and It is clear that Congress wanted data required a target date for completion of homeless needs description. The that could be aggregated nationally. The each activity. We also have required Department agrees that the needs of key to the table is ‘‘priority needs’’ and information on location of projects, to these income groups need to be those covered in the table are to be those allow citizens to determine the degree to discussed in this plan, and language activities that are eligible for CDBG which they are affected. assistance. All needs do not have to be referring to the statutory goal of serving b. Resources these income groups has been added to covered. Further, it is not difficult to With regard to describing resources, the paragraph on the CD plan. estimate the dollar amounts when linear several commenters insisted that only In addition, language has been added or square feet for facilities are known those resources under the control of the indicating that jurisdictions may elect to and the average cost per that unit of jurisdiction should be listed. There was develop a neighborhood revitalization measure is known. The guidelines will resistance to including private and strategy that includes the economic be clarified on this point. nonfederal resources. The CHAS statute empowerment of area residents. HUD is d. Barriers to Affordable Housing requires private and nonfederal willing to provide greater flexibility in One commenter requested that the resources that are reasonably expected program rules governing the use of rule state that the plan cannot be to be available to be identified. The CDBG funds for jurisdictions that rejected for the content of its regulatory CHAS statute also requires the extent of develop such a strategy, in accordance barrier assessment. One commenter leverage of Federal resources to be with rule changes being made in admonished HUD to put stronger teeth discussed. However, all discussion of another pending rulemaking. Approval in the plan to make cities remove resources has been moved from the of the consolidated plan does not imply barriers. The CHAS statute does not strategic plan section of the rule to the approval of a neighborhood permit HUD to reject a consolidated action plan section, in response to revitalization strategy proposal. A plan on the basis of the jurisdiction’s commenters suggestions. jurisdiction’s neighborhood inaction to remove identified barriers. revitalization strategy must provide that c. CDBG Float-Funded Activities The Department will comply with that the area selected is primarily residential requirement but sees no need to add a The CDBG ‘‘miscellaneous and contains a percentage of low- provision to the rule on the subject. amendments’’ rule included provisions income and moderate-income residents Another public interest group wanted governing float-funded activities that are that is no less than 51 percent. In jurisdictions to explain the purpose of perceived as providing some risk to the addition, the jurisdiction should the policy perceived as a barrier and CDBG program. A ‘‘float-funded consider the following: offer alternative options. The activity’’ is an activity that uses (1) Developing the strategy in Department declines to make this a undisbursed funds in the line of credit consultation with the area’s more burdensome requirement. or program account that have been stakeholders, including residents, previously budgeted in an action plan owners/operators of businesses and e. Anti-Poverty Strategy (formerly, the CDBG final statement) for financial institutions, non-profit Several public interest group and city one or more activities that do not need organizations, and community groups commenters were critical of this the funds immediately. that are in or serve the area(s); paragraph, indicating that it was Ten comments were received with (2) Including an assessment of the difficult to measure how HUD programs respect to these requirements. economic situation in the area and directly reduced the number of families Responses to these comments and the examination of economic development with incomes below the poverty line. Of specific requirements for treatment of improvement opportunities and primary concern was describing their CDBG float-funded activities will be problems; actions in terms of ‘‘factors over which published in the final miscellaneous (3) Developing a realistic the jurisdiction has control,’’ language amendments rule. However, for development strategy and from the statute. They recommended purposes of this rule, the Department implementation plan to promote the that the requirement be restated for notes that there are two primary risks to area’s economic progress; programs discussed in the housing the CDBG program inherent in the float (4) Focusing on activities to create component of the consolidated plan that funding process. First, the float-funded meaningful jobs for the unemployed and the city directed to poverty families. activity will not generate sufficient low-income people in the area as well The rule has been revised accordingly. program income in a manner to allow Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1994 / Rules and Regulations 1893 for timely undertaking of previously d. Public Housing required—if a jurisdiction is permitted budgeted activities. Second, in A provision has been added to the to use it. The commenter also undertaking a float-funded activity that housing market analysis section, to the complained about the lack of any exceeds a certain size or duration, institutional structure paragraph of the requirement for the jurisdiction to grantees are apparently relying on strategic plan section, and, most consult with the State. additional CDBG funds being received importantly, to the ‘‘other actions’’ The Department agrees that the in future years to enable them to paragraph of the action plan section, to provision needs clarification, so it is continue funding previously budgeted require a jurisdiction to state any activities until the float-funded activity now clear that a jurisdiction eligible to actions it is taking to assist a public generates program income. submit an abbreviated plan instead of a The paragraph of the action plan housing agency that has been designated full consolidated plan may do so, but is dealing with CDBG program-specific as ‘‘troubled’’ by HUD to overcome its not required to do so. Consultation with requirements now deals with float- problems. the State has been added. funded activities, requiring a Section 91.225 Certifications Section 91.305 Housing and Homeless jurisdiction to show the stream of One commenter pointed out that the Needs Analysis income from repayment of float-funded paragraph on consultation ‘‘by States’’ is activities. This provision is designed to inapplicable to local governments, who Two States complained that the address: (1) the problems identified by are covered by this provision. Another requirement for a State seeking HOPWA the Department’s Inspector General in funding to collect data about the size managing such activities and (2) the commenter recommended that the certification currently found in the and characteristics of the population need for citizens to have sufficient with HIV/AIDS and their families was information for them to know the extent CDBG program that a jurisdiction’s notification, inspection, testing and too burdensome and costly for States. to which they are likely to be affected The language for this provision and its by these activities, particularly the abatement procedures concerning lead- local government counterpart have been consequences of their default, so that based paint will comply with the revised to require estimation, ‘‘to the they may have an opportunity to object provisions of § 570.608 should be extent practicable,’’ of the number of to such a use of the funds. included here. We agree with both of The action plan section also requires these comments, and the rule has been persons in various categories of special that jurisdictions receiving CDBG revised accordingly. need, including persons with HIV/AIDS entitlement funds may generally budget One low-income advocate suggested and their families. no more than 10 percent of the total that jurisdictions should be required to certify, in connection with the CDBG Section 91.310 Housing Market available CDBG funds described for the Analysis contingency of cost overruns. The program, that they have satisfied their Department has had a longstanding obligations under the regulation A few low-income advocates requirement that the amount so interpreting section 109 of the Housing recommended requiring States to budgeted must be reasonable in relation and Community Development Act of describe substate markets, including to the grant. This is based largely on the 1974 (42 U.S.C. 5309), which is found those that have higher poverty areas. at 24 CFR 570.602. It requires a statutory requirement under section The rule requires analysis of the State’s jurisdiction that has discriminated in 104(a) of the HCD Act that, as a ‘‘housing markets.’’ This implies that the administration of the CDBG program prerequisite to receive its annual grant, there is more than one housing market or activity, or where there is sufficient a community must submit a statement within the State. describing how it intends to use the evidence to conclude that there was funds. When the grantee’s statement discrimination, on the basis of race, One State commented that paragraphs contains a set-aside of funds for color, national origin, or sex, to take (b) (Low income tax credit use), (e) contingencies in an amount that goes remedial affirmative action to overcome (Institutional structure), and (f) beyond the amount that reasonably may the effects of the discrimination. (Governmental coordination) relate not be expected to be needed for cost There are two provisions of the to market analysis but to strategy. It overruns of activities specifically certifications section that have a bearing recommended moving them to § 91.315. identified in the statement, the net effect on anti-discrimination laws. The first The Department agrees and has revised is that the grantee is simply deferring mirrors the current requirements for the the rule accordingly. making a decision as to the use of the CDBG program to require specific Several low-income advocates funds. The Department believes that this certification of compliance with two recommended that the paragraph on civil rights laws: Title VI of the 1964 Act is not allowable under the statute. The barriers to affordable housing should Department provided guidance in the and the Fair Housing Act. Although the require that all jurisdictions do their form of a notice (dated September 18, Department agrees that section 109 is ‘‘fair share’’ to provide housing 1992) that it would not question the applicable to the CDBG program, it is opportunities to low-income persons. ‘‘reasonableness’’ of a set-aside of up to encompassed within the second 10 percent of the amount of CDBG funds certification, which requires They also stated that States should look described in the final statement (now certification that the jurisdiction/State at cross-jurisdictional barriers. The part of the action plan) for cost will comply with all applicable laws. Department is constrained by the overruns. The regulatory language We note that the underlying CDBG statutory limit that prevents disapproval contained in this rule now reflects this regulation requiring compliance with of a plan that does not provide for threshold. This would not, however, section 109 remains in effect. removal of barriers to affordable prohibit a jurisdiction from setting an housing. Therefore, it cannot require amount higher than 10 percent if the Section 91.235 Abbreviated Plan such a ‘‘fair share’’ proposal. Analysis of jurisdiction has data available, drawing One State pointed out that paragraph cross-jurisdictional barriers would be on its prior experience, to show that (a) appears to make use of the beneficial, but the Department does not actual cost overruns are likely to require abbreviated plan permissive, but want to add to the burden of a higher contingency amount. paragraph (b)(1) appears to make it requirements imposed by this rule. 1894 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1994 / Rules and Regulations Section 91.315 Strategy, Priority Sections 91.400–91.435 Consortia offices about what would constitute an Needs, and Objectives Several local governments acceptable plan. They suggest that a consolidated plan should be approved Two States stated that the complained that the proposed rule was confusing about which units of general by HUD only if it ‘‘demonstrates requirement for a statement of the integrity when read as a whole.’’ They reasons for the State’s choice of priority local government are directed to participate in the development of a suggest that the needs assessment, needs is too detailed a requirement for priority assignments, and action plan States, since they respond to priorities consolidated plan of the consortium as well as submit their own consolidated must be sound and consistent with each established by localities and to their other and with the purposes of the plan to cover all programs other than requests for funding. Low-income statute. For example, they state that a HOME. They suggested that § 91.400 advocates, on the other hand, argued housing strategy that failed to seriously should be revised to clarify that units of that States should be required to address ‘‘worst case’’ needs would lack local government that participate in a describe the basis for assigning the the logical link between needs and consortium must participate in relative priority to a category of needs action required by section 105(b)(8) of submission of a consolidated plan for since the CHAS statute requires it. The the CHAS statute. language of this provision has been the consortium, prepared in accordance We agree that the current regulations revised to refer to each category of with subpart E, as well as submitting for provide few guidelines on the standards priority needs since that is the most their own jurisdiction the following for approval. We have modified the flexibility the Department can give to components of subpart C: § 91.215(e) proposed regulations to make them States under the statute. (CD plan), § 91.220 (Action Plan) and more similar to the existing CHAS rule. § 91.225 (Certifications). The The priority needs table that the rule While we agree with the desirability of preparation and submission of a internal consistency and require a requires States to complete was separate housing and homeless needs criticized as being too detailed. The certification that housing activities assessment (§ 91.205), housing market undertaken under CDBG, HOME, ESG, table is less detailed than the table that analysis (§ 91.210) and strategies, was required for the State CHAS. and HOPWA funds are consistent with priority needs and objectives (§ 91.215) the strategic plan, we feel that the However, HUD recognizes that the for the entitlement jurisdictions should States have less control over fulfillment provision recommended by the be optional not a requirement. We agree, advocacy groups is needlessly directive. of this section than do local and the rule has been modified jurisdictions. accordingly. Section 91.505 Amendments to Several States objected to the The majority of the commenters on Consolidated Plan requirement that the States include a this issue raised the problems presented Several government interest groups, target date for completion of specific by the same program year for all citing HUD’s proposed CDBG rule objectives. The final rule indicates that consortium members; suggesting this published on August 10, 1994, suggest the State must identify the proposed will cause consortia to break up. One that jurisdiction be allowed to notify accomplishments that the State hopes to suggested solution was to eliminate the HUD after adoption of amendments to achieve in quantitative terms, or in requirement. Instead the consortium the consolidated plan. The majority of other measurable terms as identified would develop its housing and the commenters were concerned that the and defined by the State. homeless needs, housing market specificity of the action plan will trigger A number of States objected to the analysis and strategy on a planning year a number of amendments that will need requirement that the State furnish a that coincides with the program year of to undergo citizen participation and projection of its resource allocation the earliest entitlement jurisdiction in submission to the Department. The geographically within the State, since the consortium. Individual action plans preference was to list major activities often the funds are awarded on the basis would be submitted on individual under which projects could fall without of competitive selection rather than on entitlement members’ program year creating the need for amendments. One some geographic distribution plan. The cycle. Individual CD plans would be community suggested if the jurisdiction rule has been revised to reflect that a submitted at the same time as the deemed a change consistent with its State must describe how the State’s strategic plan or with the individual need section it could be done without method of distribution contributes to its entitlement submissions. The lead citizen participation or HUD review. An general priorities for allocating agency’s action plan and program year alternate suggestion was to consider an investment geographically within the would control the timing of the HOME increase or decrease in the original State. program year. The rule has not been allocation mix over 35 percent as a changed; however, we will develop substantial change. Three commenters recommended that waiver policies to handle this issue with Jurisdictions are free to determine and the only non-Federal funds that be consortia. describe in the citizen participation included in the resource description be Local governments urged that plan what constitutes a ‘‘substantial those that are ‘‘available for use in §§ 91.105 and 91.430 be clarified to amendment,’’ upon which public conjunction with Federal funds to explain what citizen participation comment is required. The suggestions address needs identified.’’ We decline to requirements apply to entitlement offered by these commenters may be make this change, since the CHAS jurisdictions that are part of a good options for defining when a statute does not so limit the language. consortium. Such clarification is now change requires a ‘‘substantial Section 91.325 Certifications provided in § 91.401. amendment.’’ One commenter pointed out that the Section 91.500 HUD Approval Action Section 91.510 Consistency certification concerning excessive force Low-income advocacy groups argued Determinations was not applicable to States. That that the standards for review of the One commenter suggested that HUD provision has been modified to clarify consolidated plan do not provide clarify the meaning of this section by that the States must require the adequate guidance to participating stating that it only applies to sources of localities to make this certification. jurisdictions, citizens, and HUD field funds that are not applied for through Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1994 / Rules and Regulations 1895 the consolidated plan; for example, the available, and therefore this reporting is Federalism Impact HOPE Program and Section 811. This not considered to be a burdensome The General Counsel, as the section has been revised to cover requirement. Designated Official under section 6(a) of competitive programs only. In addition, Sections 570.487, 570.601 and 570.904 Executive Order 12612, Federalism, has because the CHAS statute requires this Fair Housing Certifications determined that the policies contained statement of consistency for the formula in this rule do not have significant grant programs as well, the certifications One commenter stated that there was impact on States or their political have been changed to require no justification for imposing new CDBG subdivisions since the requirements of consistency with the strategic plan. fair housing requirements. The the rule are limited to requirements Section 91.520 Performance Reports commenter argued that the changes to imposed by the statutes being these sections provide minimal implemented. The final rule reflects One commenter objected to reporting requirements for compliance with the revisions to decrease the impact on on the results of on-site inspections of certification that a jurisdiction will States, in particular. Duplication of affordable rental housing assisted with affirmatively further fair housing. The effort by State and local governments is HOME funds, citing it as a new rule now states requirements rather than being avoided by focusing the efforts of requirement. This is a statutory performance standards for affirmatively the States on the CDBG nonentitlement requirement at section 226(b) of the furthering fair housing. The areas within their borders. NAHA (42 U.S.C. 12756) and is requirements include conducting an contained at § 92.504(e)(1) of the HOME Impact on the Family analysis of impediments, taking actions regulation. That rule requires annual on- to address the impediments, and The General Counsel, as the site inspections of projects of 25 units Designated Official under Executive or more, requiring every other year maintaining records reflecting both. A jurisdiction need not do an analysis of Order 12606, The Family, has inspections of projects of fewer than 25 determined that this rule does not have units. impediments every year, but is expected to have conducted its first analysis of potential for significant impact on Two commenters stated that the 90- family formation, maintenance, and day period provided after the program impediments no later than 12 months following February 6, 1995. general well-being, and, thus is not year for submission of the performance subject to review under the Order. The report is inadequate time, especially for Subpart G Insular Areas rule merely carries out the mandate of large cities, given the lack of federal statutes with respect to planning In the proposed rule, there was a information about the format of the documents for housing and community heading reserved for a separate subpart report and the computer software that development programs. HUD says it will make available for this to specify the consolidated plan purpose. The 30-day comment period requirements for insular areas. There Impact on Small Entities on the performance report increases the were no public comments received on The Secretary, in accordance with the difficulty of making the 90-day this topic. The Department has decided Regulatory Flexibility Act (5 U.S.C. deadline. to handle the few jurisdictions that are 605(b)), has reviewed this rule before As discussed above in the citizen insular areas individually, through publication and by approving it certifies participation section, the comment administrative guidance. Therefore, this that this rule will not have a significant period on reports has been shortened to rule contains no subpart G. impact on a substantial number of small 15 days. Therefore, the final rule retains Findings and Certifications entities, because it does not place major the 90 day deadline for performance burdens on jurisdictions. reports. HUD will facilitate the Regulatory Review provision of information needed by the Regulatory Agenda jurisdictions to submit the reports. This rule was reviewed by the Office This rule was listed as sequence Several local governments of Management and Budget under number 1723 under the Office of the complained about the requirement to Executive Order 12866, Regulatory Secretary in the Department’s report on the degree to which the CDBG Planning and Review. Any changes Semiannual Regulatory Agenda program was used to benefit extremely made to the rule as a result of that published on November 14, 1994 (59 FR low-income persons. The reasons stated review are clearly identified in the 57632, 57641), under Executive Order for eliminating the requirement are that docket file, which is available for public 12866 and the Regulatory Flexibility it is not required by statute, the program inspection in the office of the Act. is not targeted to that specific group, Department’s Rules Docket Clerk, room Catalog and it is burdensome. A low-income 10276, 451 Seventh St., SW., community advocate found the language Washington, DC. The Catalog of Federal Domestic of the provision inadequate in that it Impact on the Environment Assistance numbers for the programs was not strong enough in emphasizing affected by this rule are 14.218, 14.231. the requirement of the CDBG statute that A Finding of No Significant Impact 14.239, and 14.241. the program benefit low-income and with respect to the environment has List of Subjects moderate-income persons. been made in accordance with HUD In fact, both the CDBG and HOME regulations at 24 CFR part 50 that 24 CFR Part 91 programs have specific requirements implement section 102(2)(C) of the Grant programs—Indians, with regard to income targeting. National Environmental Policy Act of Homeownership, Low and moderate Previous reporting instructions (if not 1969, 42 U.S.C. 4332. The Finding of No income housing, Public housing. regulations) have required information Significant Impact is available for public about benefits to extremely low-income inspection and copying during regular 24 CFR Part 92 persons for activities where income business hours (7:30 a.m. to 5:30 p.m.) Grant programs—housing and information and family data are in the Office of the Rules Docket Clerk, community development, Manufactured required to justify the activity. In these room 10276, 451 Seventh Street, SW., homes, Rent subsidies, Reporting and cases, the information is readily Washington, DC 20410–0500. record keeping requirements. 1896 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1994 / Rules and Regulations 24 CFR Part 570 91.230 Monitoring. supply of supportive housing, which 91.235 Special case; abbreviated Administrative practice and combines structural features and consolidated plan. services needed to enable persons with procedure, Grant programs—housing 91.236 Special case; District of Columbia. and community development, American special needs, including persons with Samoa, Northern Mariana Islands, Subpart DÐState Governments; Contents HIV/AIDS and their families, to live of Consolidated Plan Pacific Islands Trust Territory, Puerto with dignity and independence; and Rico, Virgin Islands. 91.300 General. providing housing affordable to low- 91.305 Housing and homeless needs income persons accessible to job 24 CFR Part 574 assessment. opportunities. Community facilities, Disabled, 91.310 Housing market analysis. (ii) A suitable living environment 91.315 Strategic plan. includes improving the safety and Emergency shelter, Grant programs— 91.320 Action plan. health programs, Grant programs— livability of neighborhoods; increasing 91.325 Certifications. access to quality public and private housing and community development, 91.330 Monitoring. Grant programs—social programs, HIV/ facilities and services; reducing the Subpart EÐConsortia; Contents of isolation of income groups within a AIDS, Homeless, Housing, Low and Consolidated Plan moderate income housing, Nonprofit community or geographical area through organizations, Rent subsidies, Reporting 91.400 Applicability. the spatial deconcentration of housing 91.401 Citizen participation plan. opportunities for persons of lower and recordkeeping requirements, 91.402 Consolidated program year. Technical assistance. income and the revitalization of 91.405 Housing and homeless needs deteriorating or deteriorated 24 CFR Part 576 assessment. neighborhoods; restoring and preserving 91.410 Housing market analysis. Community facilities, Emergency 91.415 Strategic plan. properties of special historic, shelter grants, Grant programs—housing 91.420 Action plan. architectural, or aesthetic value; and and community development, Grant 91.425 Certifications. conservation of energy resources. programs—social programs, Homeless, 91.430 Monitoring. (iii) Expanded economic opportunities includes job creation and Reporting and recordkeeping Subpart FÐOther General Requirements requirements. retention; establishment, stabilization 91.500 HUD approval action. and expansion of small businesses 24 CFR Part 968 91.505 Amendments to the consolidated (including microbusinesses); the plan. provision of public services concerned Grant programs—housing and 91.510 Consistency determinations. community development, Loan 91.515 Funding determinations by HUD. with employment; the provision of jobs programs—housing and community 91.520 Performance reports. involved in carrying out activities under development, Public housing, Reporting 91.525 Performance review by HUD. programs covered by this plan to low- and recordkeeping requirements. Authority: 42 U.S.C. 3535(d), 3601–3619, income persons living in areas affected Accordingly, parts 91, 92, 570, 574, 5301–5315, 11331–11388, 12701–12711, by those programs and activities; 576, and 968 of title 24 of the Code of 12741–12756, and 12901–12912. availability of mortgage financing for Federal Regulations are amended as low-income persons at reasonable rates Subpart AÐGeneral follows: using nondiscriminatory lending practices; access to capital and credit for 1. Part 91 is revised to read as follows: § 91.1 Purpose. development activities that promote the (a) Overall goals. (1) The overall goal PART 91ÐCONSOLIDATED long-term economic and social viability of the community planning and SUBMISSIONS FOR COMMUNITY of the community; and empowerment development programs covered by this PLANNING AND DEVELOPMENT and self-sufficiency opportunities for part is to develop viable urban PROGRAMS low-income persons to reduce communities by providing decent generational poverty in federally Subpart AÐGeneral housing and a suitable living assisted and public housing. Sec. environment and expanding economic (2) The consolidated submission 91.1 Purpose. opportunities principally for low- and described in this part 91 requires the 91.2 Applicability. moderate-income persons. The primary jurisdiction to state in one document its 91.5 Definitions. means towards this end is to extend and plan to pursue these goals for all the 91.10 Consolidated program year. strengthen partnerships among all levels community planning and development 91.15 Submission date. of government and the private sector, programs, as well as for housing 91.20 Exceptions. including for-profit and non-profit programs. It is these goals against which Subpart BÐCitizen Participation and organizations, in the production and the plan and the jurisdiction’s Consultation operation of affordable housing. performance under the plan will be (i) Decent housing includes assisting 91.100 Consultation; local governments. evaluated by HUD. 91.105 Citizen participation plan; local homeless persons to obtain appropriate (b) Functions of plan. The governments. housing and assisting persons at risk of consolidated plan serves the following 91.110 Consultation; States. becoming homeless; retention of the functions: 91.115 Citizen participation plan; States. affordable housing stock; and increasing (1) A planning document for the the availability of permanent housing in Subpart CÐLocal Governments; Contents jurisdiction, which builds on a of Consolidated Plan standard condition and affordable cost participatory process at the lowest to low-income and moderate-income levels; 91.200 General. families, particularly to members of 91.205 Housing and homeless needs (2) An application for federal funds assessment. disadvantaged minorities, without under HUD’s formula grant programs; 91.210 Housing market analysis. discrimination on the basis of race, (3) A strategy to be followed in 91.215 Strategic plan. color, religion, sex, national origin, carrying out HUD programs; and 91.220 Action plan. familial status, or disability. Decent (4) An action plan that provides a 91.225 Certifications. housing also includes increasing the basis for assessing performance. Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1994 / Rules and Regulations 1897 § 91.2 Applicability. (17) Competitive grants under the of homeless persons: at least one parent (a) The following formula grant Housing Opportunities for Persons With or guardian and one child under the age programs are covered by the AIDS (HOPWA) program (see 24 CFR of 18; a pregnant woman; or a person in consolidated plan: part 574). the process of securing legal custody of (1) The Community Development (c) Other programs do not require a person under the age of 18. Block Grant (CDBG) programs (see 24 consistency with an approved Homeless person. A youth (17 years CFR part 570, subparts D and I); consolidated plan. However, HUD or younger) not accompanied by an (2) The Emergency Shelter Grants funding allocations for the Section 8 adult (18 years or older) or an adult (ESG) program (see 24 CFR part 576); Certificate and Voucher Programs are to without children, who is homeless (not (3) The HOME Investment be made in a way that enables imprisoned or otherwise detained Partnerships (HOME) program (see 24 participating jurisdictions to carry out pursuant to an Act of Congress or a State CFR part 92); and their consolidated plans. law), including the following: (4) The Housing Opportunities for (1) An individual who lacks a fixed, Persons With AIDS (HOPWA) program § 91.5 Definitions. regular, and adequate nighttime (see 24 CFR part 574). Certification. A written assertion, residence; and (b) The following programs require based on supporting evidence, that must (2) An individual who has a primary either that the jurisdiction receiving be kept available for inspection by HUD, nighttime residence that is: funds directly from HUD have a by the Inspector General of HUD, and by (i) A supervised publicly or privately consolidated plan that is approved by the public. The assertion shall be operated shelter designed to provide HUD or that the application for HUD deemed to be accurate unless HUD temporary living accommodations funds contain a certification that the determines otherwise, after inspecting (including welfare hotels, congregate application is consistent with a HUD- the evidence and providing due notice shelters, and transitional housing for the approved consolidated plan: and opportunity for comment. mentally ill); (1) The HOPE I Public Housing Consolidated plan (or ‘‘the plan’’). (ii) An institution that provides a Homeownership (HOPE I) program (see The document that is submitted to HUD temporary residence for individuals 24 CFR Subtitle A, Appendix A); that serves as the planning document intended to be institutionalized; or (2) The HOPE II Homeownership of (comprehensive housing affordability (iii) A public or private place not Multifamily Units (HOPE II) program strategy and community development designed for, or ordinarily used as, a (see 24 CFR Subtitle A, Appendix B); plan) of the jurisdiction and an regular sleeping accommodation for (3) The HOPE III Homeownership of application for funding under any of the human beings. Single Family Homes (HOPE III) Community Planning and Development Homeless subpopulations. Include but program (see 24 CFR part 572); formula grant programs (CDBG, ESG, are not limited to the following (4) The Low-Income Housing HOME, or HOPWA), which is prepared categories of homeless persons: severely Preservation (prepayment avoidance in accordance with the process mentally ill only, alcohol/drug addicted incentives) program, when administered prescribed in this part. only, severely mentally ill and alcohol/ by a State agency (see 24 CFR 248.177); Consortium. An organization of drug addicted, fleeing domestic (5) The Supportive Housing for the geographically contiguous units of violence, youth, and persons with HIV/ Elderly (Section 202) program (see 24 general local government that are acting AIDS. CFR part 889); as a single unit of general local HUD. The United States Department (6) The Supportive Housing for government for purposes of the HOME of Housing and Urban Development. Persons with Disabilities program (see program (see 24 CFR part 92). Jurisdiction. A State or unit of general 24 CFR part 890); Cost burden. The extent to which local government. (7) The Supportive Housing program gross housing costs, including utility Large family. Family of five or more (see 24 CFR part 583); costs, exceed 30 percent of gross persons. (8) The Single Room Occupancy income, based on data available from Lead-based paint hazards. Any Housing (SRO) program (see 24 CFR the U.S. Census Bureau. condition that causes exposure to lead part 882, subpart H); Elderly person. A person who is at from lead-contaminated dust, lead- (9) The Shelter Plus Care program (see least 62 years of age. contaminated soil, lead-contaminated 24 CFR part 582); Emergency shelter. Any facility with paint that is deteriorated or present in (10) The Community Development overnight sleeping accommodations, the accessible surfaces, friction surfaces, or Block Grant program—Small Cities (see primary purpose of which is to provide impact surfaces that would result in 24 CFR part 570, subpart E); temporary shelter for the homeless in adverse human health effects as (11) HOME program reallocations; general or for specific populations of the established by the appropriate Federal (12) Revitalization of Severely homeless. agency. Distressed Public Housing (section 24 of Extremely low-income family. Family Low-income families. Low-income the United States Housing Act of 1937, whose income is between 0 and 30 families whose incomes do not exceed (42 U.S.C. 1437 et seq.)); percent of the median income for the 50 percent of the median family income (13) Hope for Youth: Youthbuild (see area, as determined by HUD with for the area, as determined by HUD with 24 CFR part 585); adjustments for smaller and larger adjustments for smaller and larger (14) The John Heinz Neighborhood families, except that HUD may establish families, except that HUD may establish Development program (see 24 CFR part income ceilings higher or lower than 30 income ceilings higher or lower than 50 594); percent of the median for the area on the percent of the median for the area on the (15) The Lead-Based Paint Hazard basis of HUD’s findings that such basis of HUD’s findings that such Reduction program (see 24 CFR part 35); variations are necessary because of variations are necessary because of (16) Grants for Regulatory Barrier prevailing levels of construction costs or prevailing levels of construction costs or Removal Strategies and Implementation fair market rents, or unusually high or fair market rents, or unusually high or (section 1204, Housing and Community low family incomes. low family incomes. Development Act of 1992 (42 U.S.C. Homeless family with children. A Middle-income family. Family whose 12705c)); and family composed of the following types income is between 80 percent and 95 1898 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1994 / Rules and Regulations percent of the median income for the For purposes of the HOME program, consolidated plan may not be submitted area, as determined by HUD, with there is no HUD-approved time period earlier than November 15 of the Federal adjustments for smaller and larger for moving to independent living. fiscal year and HUD has the period families, except that HUD may establish Unit of general local government. A specified in § 91.500 to review the income ceilings higher or lower than 95 city, town, township, county, parish, consolidated plan. percent of the median for the area on the village, or other general purpose (4) See § 91.20 for HUD field office basis of HUD’s findings that such political subdivision of a State; an urban authorization to grant exceptions to variations are necessary because of county; and a consortium of such these provisions. prevailing levels of construction costs or political subdivisions recognized by (b) Frequency of submission. (1) The fair market rents, or unusually high or HUD in accordance with the HOME action plan and the certifications must low family incomes. (This corresponds program (24 CFR part 92) or the CDBG be submitted on an annual basis. to the term ‘‘moderate income family’’ program (24 CFR part 570). (2) The complete submission must be under the CHAS statute, 42 U.S.C. Urban county. See definition in 24 submitted less frequently, in accordance 12705.) CFR 570.3. with a period to be specified by the Moderate-income family. Family jurisdiction; however, in no event shall whose income does not exceed 80 § 91.10 Consolidated program year. the complete submission be submitted percent of the median income for the (a) Each of the following programs less frequently that every five years. area, as determined by HUD with shall be administered by a jurisdiction adjustments for smaller and larger on a single consolidated program year, § 91.20 Exceptions. families, except that HUD may establish established by the jurisdiction: CDBG, The HUD field office may grant a income ceilings higher or lower than 80 ESG, HOME, and HOPWA. Except as jurisdiction an exception from percent of the median for the area on the provided in paragraph (b) of this submitting all or part of the basis of HUD’s findings that such section, the program year shall run for consolidated plan in FY 1995, from the variations are necessary because of a twelve month period and begin on the submission deadline, or from a prevailing levels of construction costs or first calendar day of a month. requirement in the implementation fair market rents, or unusually high or (b) Once a program year is guidelines for good cause, as low family incomes. established, the jurisdiction may either determined by the field office, and Overcrowding. A housing unit shorten or lengthen its program year to reported in writing to HUD containing more than one person per change the beginning date of the Headquarters—to the extent the room. following program year, provided that it requirement is not required by statute or Person with a disability. A person notifies HUD in writing at least two regulation. who is determined to: months before the date the program year (1) Have a physical, mental or would have ended if it had not been Subpart BÐCitizen Participation and emotional impairment that: lengthened or at least two months before Consultation the end of a proposed shortened (i) Is expected to be of long-continued § 91.100 Consultation; local governments. and indefinite duration; program year. (ii) Substantially impedes his or her (c) See subpart E of this part for (a) General. (1) When preparing the ability to live independently; and requirements concerning program year consolidated plan, the jurisdiction shall (iii) Is of such a nature that the ability for units of general local government consult with other public and private could be improved by more suitable that are part of a consortium. agencies that provide assisted housing, housing conditions; or health services, and social services (2) Have a developmental disability, § 91.15 Submission date. (including those focusing on services to as defined in section 102(7) of the (a) General. (1) In order to facilitate children, elderly persons, persons with Developmental Disabilities Assistance continuity in its program and to provide disabilities, persons with HIV/AIDS and and Bill of Rights Act (42 U.S.C. 6001– accountability to citizens, each their families, homeless persons) during 6007); or jurisdiction should submit its preparation of the consolidated plan. (3) be the surviving member or consolidated plan to HUD at least 45 (2) When preparing the portion of its members of any family that had been days before the start of its program year. consolidated plan concerning lead- living in an assisted unit with the (But see § 92.52(b) of this subtitle with based paint hazards, the jurisdiction deceased member of the family who had respect to newly eligible jurisdictions shall consult with State or local health a disability at the time of his or her under the HOME program.) With the and child welfare agencies and examine death. exception of the August 16 date noted existing data related to lead-based paint Poverty level family. Family with an in paragraph (a)(2) of this section, HUD hazards and poisonings, including income below the poverty line, as may grant a jurisdiction an extension of health department data on the addresses defined by the Office of Management the submission deadline for good cause. of housing units in which children have and Budget and revised annually. (2) In no event will HUD accept a been identified as lead poisoned. Severe cost burden. The extent to submission earlier than November 15 or (3) When preparing the description of which gross housing costs, including later than August 16 of the Federal fiscal priority nonhousing community utility costs, exceed 50 percent of gross year for which the grant funds are development needs, a unit of general income, based on data available from appropriated. (Failure to submit the local government must notify adjacent the U.S. Census Bureau. plan by August 16 will automatically units of general local government, to the State. Any State of the United States result in a loss of the CDBG funds to extent practicable. The nonhousing and the Commonwealth of Puerto Rico. which the jurisdiction would otherwise community development plan must be Transitional housing. A project that is be entitled.) submitted to the state, and, if the designed to provide housing and (3) A jurisdiction may have a program jurisdiction is a CDBG entitlement appropriate supportive services to year that coincides with the Federal grantee other than an urban county, to homeless persons to facilitate movement fiscal year (e.g., October 1, 1995 through the county. to independent living within 24 months, September 30, 1996 for Federal fiscal (4) The jurisdiction also should or a longer period approved by HUD. year 1996 funds. However, the consult with adjacent units of general Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1994 / Rules and Regulations 1899 local government, including local on or after 180 days following March 6, (including grant funds and program government agencies with metropolitan- 1995.) income) and the range of activities that wide planning responsibilities where (2) Encouragement of citizen may be undertaken, including the they exist, particularly for problems and participation. (i) The citizen estimated amount that will benefit solutions that go beyond a single participation plan must provide for and persons of low- and moderate-income. jurisdiction. encourage citizens to participate in the The citizen participation plan also must (b) HOPWA. The largest city in each development of the consolidated plan, set forth the jurisdiction’s plans to eligible metropolitan statistical area any substantial amendments to the minimize displacement of persons and (EMSA) that is eligible to receive a consolidated plan, and the performance to assist any persons displaced, HOPWA formula allocation must report. specifying the types and levels of consult broadly to develop a (ii) These requirements are designed assistance the jurisdiction will make metropolitan-wide strategy for especially to encourage participation by available (or require others to make addressing the needs of persons with low- and moderate-income persons, available) to persons displaced, even if HIV/AIDS and their families living particularly those living in slum and the jurisdiction expects no displacement blighted areas and in areas where CDBG throughout the EMSA. All jurisdictions to occur. The citizen participation plan funds are proposed to be used, and by within the EMSA must assist the must state when and how the residents of predominantly low- and jurisdiction that is applying for a jurisdiction will make this information moderate-income neighborhoods, as HOPWA allocation in the preparation of available. defined by the jurisdiction. A the HOPWA submission. (2) The citizen participation plan jurisdiction also is expected to take must require the jurisdiction to publish (c) Public housing. The jurisdiction whatever actions are appropriate to the proposed consolidated plan in a shall consult with the local public encourage the participation of all its manner that affords citizens, public housing agency participating in an citizens, including minorities and non- agencies, and other interested parties a approved Comprehensive Grant English speaking persons, as well as reasonable opportunity to examine its program concerning consideration of persons with disabilities. contents and to submit comments. The public housing needs and planned (iii) The jurisdiction shall encourage, citizen participation plan must set forth Comprehensive Grant program in conjunction with consultation with how the jurisdiction will publish the activities. This consultation will help public housing authorities, the proposed consolidated plan and give provide a better basis for the participation of residents of public and reasonable opportunity to examine the certification by the local Chief Executive assisted housing developments, in the contents of the proposed consolidated Officer that the Comprehensive Grant process of developing and plan. The requirement for publishing Plan/annual statement is consistent implementing the consolidated plan, may be met by publishing a summary of with the local government’s assessment along with other low-income residents the proposed consolidated plan in one of low-income housing needs (as of targeted revitalization areas in which or more newspapers of general evidenced in the consolidated plan) and the developments are located. The circulation, and by making copies of the that the local government will cooperate jurisdiction shall make an effort to proposed consolidated plan available at in providing resident programs and provide information to the housing libraries, government offices, and public services (as required by § 968.320(d) of agency about consolidated plan places. The summary must describe the this title for the Comprehensive Grant activities related to its developments contents and purpose of the program). It will also help ensure that and surrounding communities so that consolidated plan, and must include a activities with regard to local drug the housing agency can make this list of the locations where copies of the elimination, neighborhood information available at the annual entire proposed consolidated plan may improvement programs, and resident public hearing required under the be examined. In addition, the programs and services, funded under Comprehensive Grant program. jurisdiction must provide a reasonable the public housing program and those (3) Citizen comment on the citizen number of free copies of the plan to funded under a program covered by the participation plan and amendments. citizens and groups that request it. consolidated plan are fully coordinated The jurisdiction must provide citizens (3) The citizen participation plan to achieve comprehensive community with a reasonable opportunity to must provide for at least one public development goals. comment on the original citizen hearing during the development of the participation plan and on substantial consolidated plan. See paragraph (e) of § 91.105 Citizen participation plan; local amendments to the citizen participation governments. this section for public hearing plan, and must make the citizen requirements, generally. (a) Applicability and adoption of the participation plan public. The citizen (4) The citizen participation plan citizen participation plan. (1) The participation plan must be in a format must provide a period, not less than 30 jurisdiction is required to adopt a accessible to persons with disabilities, days, to receive comments from citizens citizen participation plan that sets forth upon request. on the consolidated plan. the jurisdiction’s policies and (b) Development of the consolidated (5) The citizen participation plan procedures for citizen participation. plan. The citizen participation plan shall require the jurisdiction to consider (Where a jurisdiction, before March 6, must include the following minimum any comments or views of citizens 1995, adopted a citizen participation requirements for the development of the received in writing, or orally at the plan that complies with section consolidated plan. public hearings, in preparing the final 104(a)(3) of the Housing and (1) The citizen participation plan consolidated plan. A summary of these Community Development Act of 1974 must require that, before the jurisdiction comments or views, and a summary of (42 U.S.C. 5304(A)(3)) but will need to adopts a consolidated plan, the any comments or views not accepted amend the citizen participation plan to jurisdiction will make available to and the reasons therefor, shall be comply with provisions of this section, citizens, public agencies, and other attached to the final consolidated plan. the citizen participation plan shall be interested parties information that (c) Amendments. (1) Criteria for amended by the first day of the includes the amount of assistance the amendment to consolidated plan. The jurisdiction’s program year that begins jurisdiction expects to receive citizen participation plan must specify 1900 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1994 / Rules and Regulations the criteria the jurisdiction will use for needs, the citizen participation plan include the provision of funds to the determining what changes in the must provide that at least one of these groups. jurisdiction’s planned or actual hearings is held before the proposed (j) Complaints. The citizen activities constitute a substantial consolidated plan is published for participation plan shall describe the amendment to the consolidated plan. comment. jurisdiction’s appropriate and (See § 91.505.) It must include among (2) The citizen participation plan practicable procedures to handle the criteria for a substantial amendment must state how and when adequate complaints from citizens related to the changes in the use of CDBG funds from advance notice will be given to citizens consolidated plan, amendments, and one eligible activity to another. of each hearing, with sufficient performance report. At a minimum, the (2) The citizen participation plan information published about the subject citizen participation plan shall require must provide citizens with reasonable of the hearing to permit informed that the jurisdiction must provide a notice and an opportunity to comment comment. (Publishing small print timely, substantive written response to on substantial amendments. The citizen notices in the newspaper a few days every written citizen complaint, within participation plan must state how before the hearing does not constitute an established period of time (within 15 reasonable notice and an opportunity to adequate notice. Although HUD is not working days, where practicable, if the comment will be given. The citizen specifying the length of notice required, jurisdiction is a CDBG grant recipient). participation plan must provide a it would consider two weeks adequate.) (k) Use of citizen participation plan. period, not less than 30 days, to receive (3) The citizen participation plan The jurisdiction must follow its citizen comments on the substantial must provide that hearings be held at participation plan. (l) Jurisdiction responsibility. The amendment before the amendment is times and locations convenient to requirements for citizen participation do implemented. potential and actual beneficiaries, and not restrict the responsibility or (3) The citizen participation plan with accommodation for persons with authority of the jurisdiction for the shall require the jurisdiction to consider disabilities. The citizen participation development and execution of its any comments or views of citizens plan must specify how it will meet these consolidated plan. received in writing, or orally at public requirements. hearings, if any, in preparing the (4) The citizen participation plan (Approved by the Office of Management and substantial amendment of the must identify how the needs of non- Budget under control number 2506–0117). consolidated plan. A summary of these English speaking residents will be met comments or views, and a summary of § 91.110 Consultation; States. in the case of public hearings where a any comments or views not accepted When preparing the consolidated significant number of non-English and the reasons therefor, shall be plan, the State shall consult with other speaking residents can be reasonably attached to the substantial amendment public and private agencies that provide expected to participate. of the consolidated plan. assisted housing (including any State (d) Performance reports. (1) The (f) Meetings. The citizen participation housing agency administering public citizen participation plan must provide plan must provide citizens with housing), health services, and social citizens with reasonable notice and an reasonable and timely access to local services (including those focusing on opportunity to comment on meetings. services to children, elderly persons, performance reports. The citizen (g) Availability to the public. The persons with disabilities, persons with participation plan must state how citizen participation plan must provide HIV/AIDS and their families, homeless reasonable notice and an opportunity to that the consolidated plan as adopted, persons) during preparation of the comment will be given. The citizen substantial amendments, and the consolidated plan. When preparing the participation plan must provide a performance report will be available to portion of its consolidated plan period, not less than 15 days, to receive the public, including the availability of concerning lead-based paint hazards, comments on the performance report materials in a form accessible to persons the State shall consult with State or that is to be submitted to HUD before its with disabilities, upon request. The local health and child welfare agencies submission. citizen participation plan must state and examine existing data related to (2) The citizen participation plan how these documents will be available lead-based paint hazards and shall require the jurisdiction to consider to the public. poisonings, including health any comments or views of citizens (h) Access to records. The citizen department data on the addresses of received in writing, or orally at public participation plan must require the housing units in which children have hearings in preparing the performance jurisdiction to provide citizens, public been identified as lead poisoned. When report. A summary of these comments agencies, and other interested parties preparing its method of distribution of or views shall be attached to the with reasonable and timely access to assistance under the CDBG program, a performance report. information and records relating to the State must consult with local (e) Public hearings. (1) The citizen jurisdiction’s consolidated plan and the governments in nonentitlement areas of participation plan must provide for at jurisdiction’s use of assistance under the the State. programs covered by this part during least two public hearings per year to (Approved by the Office of Management and obtain citizens’ views and to respond to the preceding five years. Budget under control number 2506–0117). proposals and questions, to be (i) Technical assistance. The citizen conducted at a minimum of two participation plan must provide for § 91.115 Citizen participation plan; States. different stages of the program year. technical assistance to groups (a) Applicability and adoption of the Together, the hearings must address representative of persons of low- and citizen participation plan. (1) The State housing and community development moderate-income that request such is required to adopt a citizen needs, development of proposed assistance in developing proposals for participation plan that sets forth the activities, and review of program funding assistance under any of the State’s policies and procedures for performance. To obtain the views of programs covered by the consolidated citizen participation. (Where a State, citizens on housing and community plan, with the level and type of before March 6, 1995, adopted a citizen development needs, including priority assistance determined by the participation plan that complies with nonhousing community development jurisdiction. The assistance need not section 104(a)(3) of the Housing and Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1994 / Rules and Regulations 1901 Community Development Act of 1974 other interested parties a reasonable summary of any comments or views not (42 U.S.C. 5304(A)(3)) but will need to opportunity to examine its contents and accepted and the reasons therefore, shall amend the citizen participation plan to to submit comments. The citizen be attached to the final consolidated comply with provisions of this section, participation plan must set forth how plan. the citizen participation plan shall be the State will publish the proposed (c) Amendments. (1) Criteria for amended by the first day of the State’s consolidated plan and give reasonable amendment to consolidated plan. The program year that begins on or after 180 opportunity to examine the contents of citizen participation plan must specify days following March 6, 1995. the proposed consolidated plan. The the criteria the State will use for (2) Encouragement of citizen requirement for publishing may be met determining what changes in the State’s participation. The citizen participation by publishing a summary of the planned or actual activities constitute a plan must provide for and encourage proposed consolidated plan in one or substantial amendment to the citizens to participate in the more newspapers of general circulation, consolidated plan. (See § 91.505.) It development of the consolidated plan, and by making copies of the proposed must include among the criteria for a any substantial amendments to the consolidated plan available at libraries, substantial amendment changes in the consolidated plan, and the performance government offices, and public places. method of distribution of such funds. report. These requirements are designed The summary must describe the (2) The citizen participation plan especially to encourage participation by contents and purpose of the must provide citizens and units of low- and moderate-income persons, consolidated plan, and must include a general local government with particularly those living in slum and list of the locations where copies of the reasonable notice and an opportunity to blighted areas and in areas where CDBG entire proposed consolidated plan may comment on substantial amendments. funds are proposed to be used and by be examined. In addition, the State must The citizen participation plan must state residents of predominantly low- and provide a reasonable number of free how reasonable notice and an moderate-income neighborhoods, as copies of the plan to citizens and groups opportunity to comment will be given. defined by the State. A State also is that request it. The citizen participation plan must expected to take whatever actions are (3) The citizen participation plan provide a period, not less than 30 days, appropriate to encourage the must provide for at least one public to receive comments on the substantial participation of all its citizens, hearing on housing and community amendment before the amendment is including minorities and non-English development needs before the proposed implemented. speaking persons, as well as persons consolidated plan is published for (3) The citizen participation plan with disabilities. comment. shall require the State to consider any (3) Citizen and local government (i) The citizen participation plan must comments or views of citizens and units comment on the citizen participation state how and when adequate advance of general local government received in plan and amendments. The State must notice will be given to citizens of the writing, or orally at public hearings, if provide citizens and units of general hearing, with sufficient information any, in preparing the substantial local government a reasonable published about the subject of the amendment of the consolidated plan. A opportunity to comment on the original hearing to permit informed comment. summary of these comments or views, citizen participation plan and on (Publishing small print notices in the and a summary of any comments or substantial amendments to the citizen newspaper a few days before the hearing views not accepted and the reasons participation plan, and must make the does not constitute adequate notice. therefore, shall be attached to the citizen participation plan public. The Although HUD is not specifying the substantial amendment of the citizen participation plan must be in a length of notice required, it would consolidated plan. format accessible to persons with consider two weeks adequate.) (d) Performance Reports. (1) The disabilities, upon request. (ii) The citizen participation plan citizen participation plan must provide (b) Development of the consolidated must provide that the hearing be held at citizens with reasonable notice and an plan. The citizen participation plan a time and location convenient to opportunity to comment on must include the following minimum potential and actual beneficiaries, and performance reports. The citizen requirements for the development of the with accommodation for persons with participation plan must state how consolidated plan. disabilities. The citizen participation reasonable notice and an opportunity to (1) The citizen participation plan plan must specify how it will meet these comment will be given. The citizen must require that, before the State requirements. participation plan must provide a adopts a consolidated plan, the State (iii) The citizen participation plan period, not less than 15 days, to receive will make available to citizens, public must identify how the needs of non- comments on the performance report agencies, and other interested parties English speaking residents will be met that is to be submitted to HUD before its information that includes the amount of in the case of a public hearing where a submission. assistance the State expects to receive significant number of non-English (2) The citizen participation plan and the range of activities that may be speaking residents can be reasonably shall require the state to consider any undertaken, including the estimated expected to participate. comments or views of citizens received amount that will benefit persons of low- (4) The citizen participation plan in writing, or orally at public hearings and moderate-income and the plans to must provide a period, not less than 30 in preparing the performance report. A minimize displacement of persons and days, to receive comments from citizens summary of these comments or views to assist any persons displaced. The and units of general local government shall be attached to the performance citizen participation plan must state on the consolidated plan. report. when and how the State will make this (5) The citizen participation plan (e) Citizen participation requirements information available. shall require the State to consider any for local governments. The citizen (2) The citizen participation plan comments or views of citizens and units participation plan must describe the must require the State to publish the of general received in writing, or orally citizen participation requirements for proposed consolidated plan in a manner at the public hearings, in preparing the units of general local government that affords citizens, units of general final consolidated plan. A summary of receiving CDBG funds from the State in local governments, public agencies, and these comments or views, and a 24 CFR 570.486. The citizen 1902 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1994 / Rules and Regulations participation plan must explain how the participation in the development of the families with children, both sheltered requirements will be met. consolidated plan. and unsheltered, and homeless (f) Availability to the public. The (Approved by the Office of Management and subpopulations, in accordance with a citizen participation plan must provide Budget under control number 2506–0117). table prescribed by HUD. This that the consolidated plan as adopted, description must include the substantial amendments, and the § 91.205 Housing and homeless needs characteristics and needs of low-income performance report will be available to assessment. individuals and families with children the public, including the availability of (a) General. The consolidated plan (especially extremely low-income) who materials in a form accessible to persons must describe the jurisdiction’s are currently housed but threatened with disabilities, upon request. The estimated housing needs projected for with homelessness. The plan also must citizen participation plan must state the ensuing five-year period. Housing contain a narrative description of the how these documents will be available data included in this portion of the plan nature and extent of homelessness by to the public. shall be based on U.S. Census data, as racial and ethnic group, to the extent (g) Access to records. The citizen provided by HUD, as updated by any information is available. participation plan must require the state properly conducted local study, or any (d) Other special needs. (1) The to provide citizens, public agencies, and other reliable source that the jurisdiction shall estimate, to the extent other interested parties with reasonable jurisdiction clearly identifies and practicable, the number of persons who and timely access to information and should reflect the consultation with are not homeless but require supportive records relating to the state’s social service agencies and other entities housing, including the elderly, frail consolidated plan and the state’s use of conducted in accordance with § 91.100 elderly, persons with disabilities assistance under the programs covered and the citizen participation process (mental, physical, developmental), by this part during the preceding five conducted in accordance with § 91.105. persons with alcohol or other drug years. For a jurisdiction seeking funding on addiction, persons with HIV/AIDS and (h) Complaints. The citizen behalf of an eligible metropolitan their families, public housing residents, participation plan shall describe the statistical area under the HOPWA and any other categories the jurisdiction State’s appropriate and practicable program, the needs described for may specify, and describe their procedures to handle complaints from housing and supportive services must supportive housing needs. citizens related to the consolidated plan, address the needs of persons with HIV/ (2) With respect to a jurisdiction amendments, and performance report. AIDS and their families throughout the seeking funding on behalf of an eligible At a minimum, the citizen participation eligible metropolitan statistical area. metropolitan statistical area under the plan shall require that the State must (b) Categories of persons affected. (1) HOPWA program, the plan must provide a timely, substantive written The plan shall estimate the number and identify the size and characteristics of response to every written citizen type of families in need of housing the population with HIV/AIDS and their complaint, within an established period assistance for extremely low-income, families within the eligible metropolitan of time (within 15 working days, where low-income, moderate-income, and statistical area it will serve. practicable, if the State is a CDBG grant middle-income families, for renters and (e) Lead-based paint hazards. The recipient). owners, for elderly persons, for single plan must estimate the number of (i) Use of citizen participation plan. persons, for large families, for persons housing units within the jurisdiction The State must follow its citizen with HIV/AIDS and their families, and that are occupied by low-income participation plan. for persons with disabilities. The families or moderate-income families description of housing needs shall that contain lead-based paint hazards, as (Approved by the Office of Management and include a discussion of the cost burden Budget under control number 2506–0117). defined in this part. and severe cost burden, overcrowding (Approved by the Office of Management and Subpart CÐLocal Governments; (especially for large families), and Budget under control number 2506–0117). Contents of Consolidated Plan substandard housing conditions being experienced by extremely low-income, § 91.210 Housing market analysis. § 91.200 General. low-income, moderate-income, and (a) General characteristics. Based on (a) A complete consolidated plan middle-income renters and owners information available to the jurisdiction, consists of the information required in compared to the jurisdiction as a whole. the plan must describe the significant §§ 91.205 through 91.230, submitted in (2) For any of the income categories characteristics of the jurisdiction’s accordance with instructions prescribed enumerated in paragraph (b)(1) of this housing market, including the supply, by HUD (including tables and section, to the extent that any racial or demand, and condition and cost of narratives), or in such other format as ethnic group has disproportionately housing and the housing stock available jointly agreed upon by HUD and the greater need in comparison to the needs to serve persons with disabilities and to jurisdiction. of that category as a whole, assessment serve persons with HIV/AIDS and their (b) The jurisdiction shall describe the of that specific need shall be included. families. The jurisdiction must identify lead agency or entity responsible for For this purpose, disproportionately and describe any areas within the overseeing the development of the plan greater need exists when the percentage jurisdiction with concentrations of and the significant aspects of the of persons in a category of need who are racial/ethnic minorities and/or low- process by which the consolidated plan members of a particular racial or ethnic income families, stating how it defines was developed, the identity of the group is at least 10 percentage points the terms ‘‘area of low-income agencies, groups, organizations, and higher than the percentage of persons in concentration’’ and ‘‘area of minority others who participated in the process, the category as a whole. concentration’’ for this purpose. The and a description of the jurisdiction’s (c) Homeless needs. The plan must locations and degree of these consultations with social service describe the nature and extent of concentrations must be identified, either agencies and other entities. It also shall homelessness (including rural in a narrative or on one or more maps. include a summary of the citizen homelessness), addressing separately (b) Public and assisted housing. (1) participation process, public comments, the need for facilities and services for The plan must describe the number of and efforts made to broaden public homeless individuals and homeless public housing units in the jurisdiction, Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1994 / Rules and Regulations 1903 the physical condition of such units, the affecting land and other property, land (3) The description of proposed restoration and revitalization needs, use controls, zoning ordinances, accomplishments shall specify the results from the Section 504 needs building codes, fees and charges, growth number of extremely low-income, low- assessment (i.e., assessment of needs of limits, and policies that affect the return income, and moderate-income families tenants and applicants on waiting list on residential investment. to whom the jurisdiction will provide for accessible units, as required by 24 (Approved by the Office of Management and affordable housing as defined in 24 CFR CFR 8.25), and the public housing Budget under control number 2506–0117). 92.252 for rental housing and 24 CFR agency’s strategy for improving the 92.254 for homeownership over a management and operation of such § 91.215 Strategic plan. specific time period. public housing and for improving the (a) General. For the categories (c) Homelessness. With respect to living environment of low- and described in paragraphs (b), (c), (d), and homelessness, the consolidated plan moderate-income families residing in (e) of this section, the consolidated plan must include the priority homeless public housing. The consolidated plan must do the following: needs table prescribed by HUD and must identify the public housing (1) Indicate the general priorities for must describe the jurisdiction’s strategy developments in the jurisdictions that allocating investment geographically for the following: are participating in an approved HUD within the jurisdiction (or within the (1) Helping low-income families avoid Comprehensive Grant program. EMSA for the HOPWA program) and becoming homeless; Activities covered by the consolidated among priority needs, as identified in (2) Reaching out to homeless persons and assessing their individual needs; plan that are being coordinated or the priority needs table prescribed by (3) Addressing the emergency shelter jointly funded with the public housing HUD; Comprehensive Grant program must be and transitional housing needs of (2) Describe the basis for assigning the homeless persons; and identified by project and referenced to priority (including the relative priority, the approved Comprehensive Grant (4) Helping homeless persons make where required) given to each category the transition to permanent housing and program. Examples of supportive of priority needs; activities for Comprehensive Grant independent living. (3) Identify any obstacles to meeting (d) Other special needs. With respect program activities are efforts to underserved needs; revitalize neighborhoods surrounding to supportive needs of the non- (4) Summarize the priorities and homeless, the consolidated plan must public housing projects (either current specific objectives, describing how or proposed); cooperation in provision describe the priority housing and funds that are reasonably expected to be supportive service needs of persons who of resident programs and services; made available will be used to address coordination of local drug elimination are not homeless but require supportive identified needs; and housing (i.e., elderly, frail elderly, or anti-crime strategies; upgrading of (5) For each specific objective, police, fire, schools, and other services; persons with disabilities (mental, identify proposed accomplishments the and economic development projects in physical, developmental), persons with jurisdictions hopes to achieve in or near public housing projects to tie in alcohol or other drug addiction, persons quantitative terms over a specified time with self-sufficiency efforts for with HIV/AIDS and their families, and period (i.e., one, two, three or more residents. public housing residents). (2) The jurisdiction shall include a years), or in other measurable terms as (e) Nonhousing community description of the number and targeting identified and defined by the development plan. (1) If the jurisdiction (income level and type of family served) jurisdiction. seeks assistance under the Community of units currently assisted by local, (b) Affordable housing. With respect Development Block Grant program, the state, or federally funded programs, and to affordable housing, the consolidated consolidated plan must describe the an assessment of whether any such plan must include the priority housing jurisdiction’s priority non-housing units are expected to be lost from the needs table prescribed by HUD and community development needs eligible assisted housing inventory for any must do the following: for assistance under HUD’s community reason. (1) The description of the basis for development programs by CDBG (c) Homeless facilities. The plan must assigning relative priority to each eligibility category, reflecting the needs include a brief inventory of facilities category of priority need shall state how of families for each type of activity, as and services that meet the emergency the analysis of the housing market and appropriate, in terms of dollar amounts shelter, transitional housing, permanent the severity of housing problems and estimated to meet the priority need for supportive housing, and permanent needs of extremely low-income, low- the type of activity, in accordance with housing needs of homeless persons income, and moderate-income renters a table prescribed by HUD. This within the jurisdiction. and owners identified in accordance community development component of (d) Special need facilities and with § 91.205 provided the basis for the plan must state the jurisdiction’s services. The plan must describe, to the assigning the relative priority given to specific long-term and short-term extent information is available, the each priority need category in the community development objectives facilities and services that assist persons priority housing needs table prescribed (including economic development who are not homeless but who require by HUD. Family and income types may activities that create jobs), which must supportive housing, and programs for be grouped together for discussion be developed in accordance with the ensuring that persons returning from where the analysis would apply to more statutory goals described in § 91.1 and mental and physical health institutions than one of them; the primary objective of the CDBG receive appropriate supportive housing. (2) The statement of specific program to develop viable urban (e) Barriers to affordable housing. The objectives must indicate how the communities by providing decent plan must explain whether the cost of characteristics of the housing market housing and a suitable living housing or the incentives to develop, will influence the use of funds made environment and expanding economic maintain, or improve affordable housing available for rental assistance, opportunities, principally for low- in the jurisdiction are affected by public production of new units, rehabilitation income and moderate-income persons. policies, particularly by policies of the of old units, or acquisition of existing (2) A jurisdiction that elects to carry jurisdiction, including tax policies units; and out a neighborhood revitalization 1904 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1994 / Rules and Regulations strategy that includes the economic jurisdiction and the public housing within the jurisdiction that may be used empowerment of low-income residents agency, including the appointing to carry out the purposes stated in with respect to one or more of their authority for the commissioners or § 91.1; areas may submit this strategy as part of board of the housing agency; (c) Activities to be undertaken. A its community development plan. If relationships regarding hiring, description of the activities the HUD approves such a strategy, the contracting and procurement; provision jurisdiction will undertake during the jurisdiction can obtain greater flexibility of services funded by the jurisdiction; next year to address priority needs in in the use of the CDBG funds in the and review by the jurisdiction of terms of local objectives that were revitalization area(s). The additional proposed development sites, of the identified in § 91.215. This description flexibility that the jurisdiction would be comprehensive plan of the public of activities shall estimate the number entitled to for this purpose will be housing agency, and of any proposed and type of families that will benefit described in 24 CFR part 570, subpart C, demolition or disposition of public from the proposed activities, the at a future date. The criteria for approval housing developments. specific local objectives and priority of the strategy will not be established by (3) The plan must describe what the needs (identified in accordance with regulation, but jurisdictions will be jurisdiction will do to overcome gaps in § 91.215) that will be addressed by the notified of these criteria. the institutional structure for carrying activities using formula grant funds and (f) Barriers to affordable housing. The out its strategy for addressing its priority program income the jurisdiction expects consolidated plan must describe the needs. If the public housing agency is to receive during the program year, jurisdiction’s strategy to remove or designated as ‘‘troubled’’ by HUD, or proposed accomplishments, and a target ameliorate negative effects of public otherwise is performing poorly, the date for completion of the activity. This policies that serve as barriers to jurisdiction shall describe any actions it information is to be presented in the affordable housing, as identified in is taking to assist the public housing form of a table prescribed by HUD; accordance with § 91.210(d), except agency in addressing these problems. (d) Geographic distribution. A that, if a State requires a unit of general (j) Coordination. The consolidated description of the geographic areas of local government to submit a regulatory plan must describe the jurisdiction’s the jurisdiction (including areas of barrier assessment that is substantially activities to enhance coordination minority concentration) in which it will equivalent to the information required between public and assisted housing direct assistance during the ensuing under this paragraph (f), as determined providers and private and governmental program year, giving the rationale for by HUD, the unit of general local health, mental health, and service the priorities for allocating investment government may submit its assessment agencies. With respect to the public geographically; submitted to the State to HUD and shall entities involved, the plan must (e) Homeless and other special needs be considered to have complied with describe the means of cooperation and activities. Activities it plans to this requirement. coordination among the State and any undertake during the next year to (g) Lead-based paint hazards. The units of general local government in the address emergency shelter and consolidated plan must outline the metropolitan area in the implementation transitional housing needs of homeless actions proposed or being taken to of its consolidated plan. individuals and families (including evaluate and reduce lead-based paint (k) Public housing resident initiatives. subpopulations), to prevent low-income hazards, and describe how the lead- The consolidated plan must describe the individuals and families with children based paint hazard reduction will be jurisdiction’s activities to encourage (especially those with incomes below 30 integrated into housing policies and public housing residents to become percent of median) from becoming programs. more involved in management and homeless, to help homeless persons (h) Anti-poverty strategy. The participate in homeownership. make the transition to permanent consolidated plan must describe the housing and independent living, and to jurisdiction’s goals, programs, and § 91.220 Action plan. address the special needs of persons policies for reducing the number of The action plan must include the who are not homeless identified in poverty level families and how the following: accordance with § 91.215(d); jurisdiction’s goals, programs, and (a) Form application. Standard Form (f) Other actions. (1) General. Actions policies for producing and preserving 424; it plans to take during the next year to affordable housing, set forth in the (b) Resources. (1) Federal resources. address obstacles to meeting housing component of the consolidated The consolidated plan must describe the underserved needs, foster and maintain plan, will be coordinated with other Federal resources expected to be affordable housing, remove barriers to programs and services for which the available to address the priority needs affordable housing, evaluate and reduce jurisdiction is responsible and the and specific objectives identified in the lead-based paint hazards, reduce the extent to which they will reduce (or strategic plan, in accordance with number of poverty level families, assist in reducing) the number of § 91.215. These resources include grant develop institutional structure, and poverty level families, taking into funds and program income. enhance coordination between public consideration factors over which the (2) Other resources. The consolidated and private housing and social service jurisdiction has control. plan must indicate resources from agencies and foster public housing (i) Institutional structure. (1) The private and non-Federal public sources improvements and resident initiatives consolidated plan must explain the that are reasonably expected to be made (see § 91.215 (a), (b), (f), (g), (h), (i), (j), institutional structure, including private available to address the needs identified and (k)). industry, nonprofit organizations, and in the plan. The plan must explain how (2) Public housing. Appropriate public institutions, through which the Federal funds will leverage those reference to the annual revisions of the jurisdiction will carry out its housing additional resources, including a action plan prepared for the and community development plan, description of how matching Comprehensive Grant program. If the assessing the strengths and gaps in that requirements of the HUD programs will public housing agency is designated as delivery system. be satisfied. Where the jurisdiction ‘‘troubled’’ by HUD, or otherwise is (2) The jurisdiction shall describe the deems it appropriate, it may indicate performing poorly, the jurisdiction’s organizational relationship between the publicly owned land or property located plan, if any, to assist the public housing Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1994 / Rules and Regulations 1905 agency in addressing these problems; § 91.225 Certifications. (8) Section 3. The jurisdiction must and (a) General. The following submit a certification that it will comply (g) Program-specific requirements.— certifications, satisfactory to HUD, must with section 3 of the Housing and Urban (1) CDBG. (i) A jurisdiction must be included in the annual submission to Development Act of 1968 (12 U.S.C. describe activities planned with respect HUD. (See definition of ‘‘certification’’ 1701u), and implementing regulations at to all CDBG funds expected to be in § 91.5.) 24 CFR part 135. available during the program year (1) Affirmatively furthering fair (b) Community Development Block (including program income that will housing. Each jurisdiction is required to Grant program. For jurisdictions that have been received before the start of submit a certification that it will seek funding under CDBG, the following the next program year), except that an affirmatively further fair housing, which certifications are required: amount generally not to exceed ten means that it will conduct an analysis (1) Citizen participation. Each percent of such total available CDBG to identify impediments to fair housing jurisdiction must certify that it is in full funds may be excluded from the funds choice within the jurisdiction, take compliance and following a detailed for which eligible activities are appropriate actions to overcome the citizen participation plan that satisfies described if it has been identified for the effects of any impediments identified the requirements of § 91.105. (2) Community development plan. A contingency of cost overruns. through that analysis, and maintain certification that this consolidated (ii) CDBG funds expected to be records reflecting the analysis and housing and community development available during the program year actions in this regard. plan identifies community development includes the following: (2) Anti-displacement and relocation (A) Any program income that will and housing needs and specifies both plan. Each jurisdiction is required to short-term and long-term community have been received before the start of submit a certification that it has in effect the next program year and that has not development objectives that have been and is following a residential developed in accordance with the yet been programmed; antidisplacement and relocation (B) Surplus from urban renewal primary objective of the statute assistance plan in connection with any settlements; authorizing the CDBG program, as (C) Grant funds returned to the line of activity assisted with funding under the described in 24 CFR 570.2, and credit for which the planned use has not CDBG or HOME programs. requirements of this part and 24 CFR been included in a prior statement or (3) Drug-free workplace. The part 570. plan; and jurisdiction must submit a certification (3) Following a plan. A certification (D) Income from float-funded with regard to drug-free workplace that the jurisdiction is following a activities. The full amount of income required by 24 CFR part 24, subpart F. current consolidated plan (or expected to be generated by a float- (4) Anti-lobbying. The jurisdiction Comprehensive Housing Affordability funded activity must be shown, whether must submit a certification with regard Strategy) that has been approved by or not some or all of the income is to compliance with restrictions on HUD. expected to be received in a future lobbying required by 24 CFR part 87, (4) Use of funds. A certification that program year. To assure that citizens together with disclosure forms, if the jurisdiction has complied with the understand the risks inherent in required by that part. following criteria: undertaking float-funded activities, the (5) Authority of jurisdiction. The (i) With respect to activities expected recipient must specify the total amount jurisdiction must submit a certification to be assisted with CDBG funds, the of program income expected to be that the consolidated plan is authorized Action Plan has been developed so as to received and the month(s) and year(s) under State and local law (as applicable) give the maximum feasible priority to that it expects the float-funded activity and that the jurisdiction possesses the activities that will benefit low- and to generate such program income. legal authority to carry out the programs moderate-income families or aid in the (iii) An ‘‘urgent needs’’ activity (one for which it is seeking funding, in prevention or elimination of slums or that is expected to qualify under accordance with applicable HUD blight. The plan may also include § 570.208(c) of this title) may be regulations. CDBG-assisted activities that are included only if the jurisdiction (6) Consistency with plan. The certified to be designed to meet other identifies the activity in the action plan jurisdiction must submit a certification community development needs having and certifies that the activity is designed that the housing activities to be particular urgency because existing to meet other community development undertaken with CDBG, HOME, ESG, conditions pose a serious and needs having a particular urgency and HOPWA funds are consistent with immediate threat to the health or because existing conditions pose a the strategic plan. Where the HOPWA welfare of the community where other serious and immediate threat to the funds are to be received by a city that financial resources are not available to health or welfare of the community and is the most populous unit of general meet such needs; other financial resources are not local government in an EMSA, it must (ii) The aggregate use of CDBG funds, available. obtain and keep on file certifications of including section 108 guaranteed loans, (iv) This information about activities consistency from the authorized public during a period specified by the shall be in sufficient detail, including officials for each other locality in the jurisdiction, consisting of one, two, or location, to allow citizens to determine EMSA in which housing assistance is three specific consecutive program the degree to which they are affected. provided. years, shall principally benefit low- and (2) HOME. (i) For HOME funds, a (7) Acquisition and relocation. The moderate-income families in a manner participating jurisdiction shall describe jurisdiction must submit a certification that ensures that at least 70 percent of other forms of investment that are not that it will comply with the acquisition the amount is expended for activities described in § 92.205(b) of this title. and relocation requirements of the that benefit such persons during the (ii) If the participating jurisdiction Uniform Relocation Assistance and Real designated period (see 24 CFR 570.3 for intends to use HOME funds for Property Acquisition Policies Act of definition of ‘‘CDBG funds’’); and homebuyers, it must state the guidelines 1970, as amended (42 U.S.C. 4601), and (iii) The jurisdiction will not attempt for resale or recapture, as required in implementing regulations at 49 CFR part to recover any capital costs of public § 92.254 of this subtitle. 24. improvements assisted with CDBG 1906 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1994 / Rules and Regulations funds, including Section 108 loan program as a shelter for homeless is an essential element of its guaranteed funds, by assessing any individuals and families for not less consolidated plan; amount against properties owned and than a 10-year period; (2) A certification that it is using and occupied by persons of low- and (2) In the case of assistance involving will use HOME funds for eligible moderate-income, including any fee rehabilitation less than that covered activities and costs, as described in charged or assessment made as a under paragraph (d)(1) of this section, §§ 92.205 through 92.209 of this subtitle condition of obtaining access to such the applicant will maintain any building and that it is not using and will not use public improvements. However, if for which assistance is used under the HOME funds for prohibited activities, as CDBG funds are used to pay the ESG program as a shelter for homeless described in § 92.214 of this subtitle; proportion of a fee or assessment individuals and families for not less and attributable to the capital costs of public than a three-year period; (3) A certification that before improvements (assisted in part with (3) In the case of assistance involving committing funds to a project, the CDBG funds) financed from other essential services (including but not participating jurisdiction will evaluate revenue sources, an assessment or limited to employment, health, drug the project in accordance with charge may be made against the abuse, or education) or maintenance, guidelines that it adopts for this purpose property with respect to the public operation, insurance, utilities and and will not invest any more HOME improvements financed by a source furnishings, the applicant will provide funds in combination with other federal other than CDBG funds. In addition, services or shelter to homeless assistance than is necessary to provide with respect to properties owned and individuals and families for the period affordable housing. occupied by moderate-income (but not during which the ESG assistance is (e) Housing Opportunities for Persons low-income) families, an assessment or provided, without regard to a particular With AIDS. For jurisdictions that seek charge may be made against the site or structure as long as the same funding under the Housing property with respect to the public general population is served; Opportunities for Persons With AIDS improvements financed by a source (4) Any renovation carried out with program, a certification is required by other than CDBG funds if the ESG assistance shall be sufficient to the jurisdiction that: jurisdiction certifies that it lacks CDBG ensure that the building involved is safe (1) Activities funded under the funds to cover the assessment. and sanitary; program will meet urgent needs that are (5) Excessive force. A certification that (5) It will assist homeless individuals not being met by available public and the jurisdiction has adopted and is in obtaining appropriate supportive private sources; and enforcing: services, including permanent housing, (2) Any building or structure assisted (i) A policy prohibiting the use of medical and mental health treatment, under that program shall be operated for excessive force by law enforcement counseling, supervision, and other the purpose specified in the plan: agencies within its jurisdiction against services essential for achieving (i) For a period of not less than 10 any individuals engaged in non-violent independent living, and other Federal, years in the case of assistance involving civil rights demonstrations; and State, local, and private assistance new construction, substantial (ii) A policy of enforcing applicable available for such individuals; rehabilitation, or acquisition of a State and local laws against physically (6) It will obtain matching amounts facility; or barring entrance to or exit from, a required under § 576.71 of this title; (ii) For a period of not less than three facility or location that is the subject of (7) It will develop and implement years in the case of assistance involving such non-violent civil rights procedures to ensure the confidentiality non-substantial rehabilitation or repair demonstrations within its jurisdiction. of records pertaining to any individual of a building or structure. (6) Compliance with anti- provided family violence prevention or discrimination laws. The jurisdiction treatment services under any project § 91.230 Monitoring. must submit a certification that the assisted under the ESG program, The plan must describe the standards grant will be conducted and including protection against the release and procedures that the jurisdiction will administered in conformity with title VI of the address or location of any family use to monitor activities carried out in of the Civil Rights Act of 1964 (42 violence shelter project except with the furtherance of the plan and will use to U.S.C. 2000d), the Fair Housing Act (42 written authorization of the person ensure long-term compliance with U.S.C. 3601–3619), and implementing responsible for the operation of that requirements of the programs involved, regulations. shelter; including minority business outreach (7) Compliance with lead-based paint (8) To the maximum extent and the comprehensive planning procedures. The jurisdiction must practicable, it will involve, through requirements. submit a certification that its employment, volunteer services, or notification, inspection, testing, and otherwise, homeless individuals and § 91.235 Special case; abbreviated abatement procedures concerning lead- families in constructing, renovating, consolidated plan. based paint will comply with the maintaining, and operating facilities (a) Who may submit an abbreviated requirements of 24 CFR 570.608. assisted under this program, in plan? A jurisdiction that is not a CDBG (8) Compliance with laws. A providing services assisted under the entitlement community under 24 CFR certification that the jurisdiction will program, and in providing services for part 570, subpart D, and is not expected comply with applicable laws. occupants of facilities assisted under the to be a participating jurisdiction in the (c) Emergency Shelter Grant program. program; and HOME program under 24 CFR part 92, For jurisdictions that seek funding (9) It is following a current HUD- may submit an abbreviated consolidated under the Emergency Shelter Grant approved consolidated plan (or CHAS). plan that is appropriate to the types and program, the following certifications are (d) HOME program. Each amounts of assistance sought from HUD required: participating jurisdiction must provide instead of a full consolidated plan. (1) In the case of assistance involving the following certifications: (b) When is an abbreviated plan major rehabilitation or conversion, the (1) If it plans to use HOME funds for necessary? (1) Jurisdiction. When a applicant will maintain any building for tenant-based rental assistance, a jurisdiction that is permitted to use an which assistance is used under the ESG certification that rental-based assistance abbreviated plan applies to HUD for Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1994 / Rules and Regulations 1907 funds under a program that requires an (3) Separate application for funding. agencies, groups, organizations, and approved consolidated plan (see In addition to submission of the others who participated in the process, § 91.2(b)), it must obtain approval of an abbreviated consolidated plan, an and a description of the State’s abbreviated plan (or full consolidated application must be submitted for consultations with social service plan) and submit a certification that the funding is sought under a competitive agencies and other entities. It also shall housing activities are consistent with program. The applicable program include a summary of the citizen the plan. requirements are found in the participation process, public comments, (2) Other applicants. When an eligible regulations for the program and in the and efforts made to broaden public applicant other than a jurisdiction (e.g., Notice of Funding Availability participation in the development of the a public housing agency or nonprofit published for the applicable fiscal year. consolidated plan. organization) seeks to apply for funding For the CDBG Small Cities program, the (Approved by the Office of Management and under a program requiring certification applicable regulations are found at 24 Budget under control number 2506–0117). of consistency with an approved CFR part 570, subpart F. consolidated plan, the jurisdiction—if it (d) What consultation is applicable? § 91.305 Housing and homeless needs is permitted to use an abbreviated The jurisdiction must make reasonable assessment. plan—may prepare an abbreviated plan efforts to consult with appropriate (a) General. The consolidated plan appropriate to the project. See § 91.510. public and private social service must describe the State’s estimated (3) Limitation. For the HOME agencies regarding the needs to be housing needs projected for the ensuing program, an abbreviated consolidated served with the funding sought from five-year period. Housing data included plan is only permitted with respect to HUD. The jurisdiction must attempt in this portion of the plan shall be based reallocations to other than participating some consultation with the State. on U.S. Census data, as provided by jurisdictions (see 24 CFR part 92, (Section 91.100 does not apply.) HUD, as updated by any properly (e) What citizen participation process subpart J). For the CDBG program, an conducted local study, or any other is applicable? If the jurisdiction is abbreviated plan may be submitted for reliable source that the State clearly seeking CDBG funds under the CDBG the HUD-administered Small Cities identifies and should reflect the Small Cities program, before submitting program, except an abbreviated plan consultation with social service the abbreviated consolidated plan and may not be submitted for the HUD- agencies and other entities conducted in application to HUD for funding, the administered Small Cities program in accordance with § 91.110 and the jurisdiction must comply with the the State of Hawaii. citizen participation process conducted citizen participation requirements of 24 (c) What is an abbreviated plan? (1) in accordance with § 91.115. For a State CFR 570.431. If it is not seeking such Assessment of needs, resources, seeking funding under the HOPWA funding, the jurisdiction must conduct a planned activities. An abbreviated plan program, the needs described for citizen participation process as must contain sufficient information housing and supportive services must provided in section 107 of the Cranston- about needs, resources, and planned address the needs of persons with HIV/ Gonzalez National Affordable Housing activities to address the needs to cover AIDS and their families in areas outside Act (42 U.S.C. 12707). (Section 91.105 the type and amount of assistance of eligible metropolitan statistical areas. does not apply.) anticipated to be funded by HUD. (b) Categories of persons affected. (1) (2) Nonhousing community § 91.236 Special case; District of The consolidated plan shall estimate the development plan. If the jurisdiction Columbia. number and type of families in need of seeks assistance under the Community For consolidated planning purposes, housing assistance for extremely low- Development Block Grant program, it the District of Columbia must follow the income, low-income, moderate-income, must describe the jurisdiction’s priority requirements applicable to local and middle-income families, for renters non-housing community development jurisdictions (§§ 91.100, 91.105, and and owners, for elderly persons, for needs eligible for assistance under 91.200 through 91.230). In addition, it single persons, for large families, for HUD’s community development must submit the component of the State persons with HIV/AIDS and their programs by CDBG eligibility category, requirements dealing with the use of families, and for persons with reflecting the needs of families for each Low Income Housing Tax Credits disabilities. The description of housing type of activity, as appropriate, in terms (§ 91.315(j)). needs shall include a discussion of the of dollar amounts estimated to meet the (Approved by the Office of Management and cost burden and severe cost burden, priority need for the type of activity, in Budget under control number 2506–0117). overcrowding (especially for large accordance with a table prescribed by families), and substandard housing Subpart DÐState Governments; HUD. This community development conditions being experienced by Contents of Consolidated Plan component of the plan must state the extremely low-income, low-income, jurisdiction’s specific long-term and § 91.300 General. moderate-income, and middle-income short-term community development (a) A complete consolidated plan renters and owners compared to the objectives (including economic consists of the information required in State as a whole. development activities that create jobs), §§ 91.305 through 91.330, submitted in (2) For any of the income categories which must be developed in accordance accordance with instructions prescribed enumerated in paragraph (b)(1) of this with the statutory goals described in by HUD (including tables and section, to the extent that any racial or § 91.1 and the primary objective of the narratives), or in such other format as ethnic group has disproportionately Housing and Community Development jointly agreed upon by HUD and the greater need in comparison to the needs Act of 1974, 42 U.S.C. 5301(c), of the State. of that category as a whole, assessment development of viable urban (b) The State shall describe the lead of that specific need shall be included. communities by providing decent agency or entity responsible for For this purpose, disproportionately housing and a suitable living overseeing the development of the plan greater need exists when the percentage environment and expanding economic and the significant aspects of the of persons in a category of need who are opportunities, principally for low- process by which the consolidated plan members of a particular racial or ethnic income and moderate-income persons. was developed, the identity of the group is at least 10 percentage points 1908 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1994 / Rules and Regulations higher than the percentage of persons in who are not homeless but who require of old units, or acquisition of existing the category as a whole. supportive housing, and programs for units; and (c) Homeless needs. The plan must ensuring that persons returning from (3) The description of proposed describe the nature and extent of mental and physical health institutions accomplishments shall specify the homelessness (including rural receive appropriate supportive housing. number of extremely low-income, low- homelessness) within the State, (d) Barriers to affordable housing. The income, and moderate-income families addressing separately the need for plan must explain whether the cost of to whom the jurisdiction will provide facilities and services for homeless housing or the incentives to develop, affordable housing as defined in individuals and homeless families with maintain, or improve affordable housing § 92.252 of this subtitle for rental children, both sheltered and in the State are affected by its policies, housing and § 92.254 of this subtitle for unsheltered, and homeless including tax policies affecting land and homeownership over a specific time subpopulations, in accordance with a other property, land use controls, period. table prescribed by HUD. This zoning ordinances, building codes, fees (c) Homelessness. With respect to description must include the and charges, growth limits, and policies homelessness, the consolidated plan characteristics and needs of low-income that affect the return on residential must include the priority homeless individuals and families with children investment. needs table prescribed by HUD and (especially extremely low-income) who must describe the State’s strategy for the are currently housed but threatened § 91.315 Strategic plan. following: with homelessness. The plan also must (a) General. For the categories (1) Helping low-income families avoid contain a narrative description of the described in paragraphs (b), (c), (d), and becoming homeless; nature and extent of homelessness by (e) of this section, the consolidated plan (2) Reaching out to homeless persons racial and ethnic group, to the extent must do the following: and assessing their individual needs; (3) Addressing the emergency shelter information is available. (1) Indicate the general priorities for and transitional housing needs of (d) Other special needs. (1) The State allocating investment geographically homeless persons; and shall estimate, to the extent practicable, within the State and among priority the number of persons who are not (4) Helping homeless persons make needs; the transition to permanent housing and homeless but require supportive (2) Describe the basis for assigning the housing, including the elderly, frail independent living. priority (including the relative priority, (d) Other special needs. With respect elderly, persons with disabilities where required) given to each category (mental, physical, developmental), to supportive needs of the non- of priority needs; homeless, the consolidated plan must persons with alcohol or other drug (3) Identify any obstacles to meeting addiction, persons with HIV/AIDS and describe the priority housing and underserved needs; supportive service needs of persons who their families, and any other categories (4) Summarize the priorities and the State may specify, and describe their are not homeless but require supportive specific objectives, describing how the housing (i.e., elderly, frail elderly, supportive housing needs. proposed distribution of funds will (2) With respect to a State seeking persons with disabilities (mental, address identified needs; assistance under the HOPWA program, physical, developmental), persons with (5) For each specific objective, the plan must identify the size and alcohol or other drug addiction, persons identify the proposed accomplishments characteristics of the population with with HIV/AIDS and their families, and the State hopes to achieve in HIV/AIDS and their families within the public housing residents). quantitative terms over a specific time area it will serve. (e) Nonhousing community (e) Lead-based paint hazards. The period (i.e., one, two, three or more development plan. If the State seeks plan must estimate the number of years), or in other measurable terms as assistance under the Community housing units within the State that are identified and defined by the State. Development Block Grant program, the occupied by low-income families or (b) Affordable housing. With respect consolidated plan must describe the moderate-income families that contain to affordable housing, the consolidated State’s priority nonhousing community lead-based paint hazards, as defined in plan must do the following: development needs that affect more this part. (1) The description of the basis for than one unit of general local assigning relative priority to each government and involve activities (Approved by the Office of Management and category of priority need shall state how typically funded by the State under the Budget under control number 2506–0117). the analysis of the housing market and CDBG program. These priority needs § 91.310 Housing market analysis. the severity of housing problems and must be described by CDBG eligibility (a) General characteristics. Based on needs of extremely low-income, low- category, reflecting the needs of persons data available to the State, the plan must income, and moderate-income renters or families for each type of activity. This describe the significant characteristics and owners identified in accordance community development component of of the State’s housing markets with § 91.305 provided the basis for the plan must state the State’s specific (including such aspects as the supply, assigning the relative priority given to long-term and short-term community demand, and condition and cost of each priority need category in the development objectives (including housing). priority housing needs table prescribed economic development activities that (b) Homeless facilities. The plan must by HUD. Family and income types may create jobs), which must be developed include a brief inventory of facilities be grouped together for discussion in accordance with the statutory goals and services that meet the needs for where the analysis would apply to more described in § 91.1 and the primary emergency shelter and transitional than one of them; objective of the CDBG program to housing needs of homeless persons (2) The statement of specific develop viable urban communities by within the State. objectives must indicate how the providing decent housing and a suitable (c) Special need facilities and characteristics of the housing market living environment and expanding services. The plan must describe, to the will influence the use of funds made economic opportunities, principally for extent information is available, the available for rental assistance, low-income and moderate-income facilities and services that assist persons production of new units, rehabilitation persons. Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1994 / Rules and Regulations 1909 (f) Barriers to affordable housing. The become more involved in management who are not homeless identified in consolidated plan must describe the and participate in homeownership. accordance with § 91.315(d); State’s strategy to remove or ameliorate (Approved by the Office of Management and (f) Other actions. Actions it plans to negative effects of its policies that serve Budget under control number 2506–0117). take during the next year to address as barriers to affordable housing, as obstacles to meeting underserved needs, identified in accordance with § 91.310. § 91.320 Action plan. foster and maintain affordable housing (g) Lead-based paint hazards. The The action plan must include the (including the coordination of Low- consolidated plan must outline the following: Income Housing Tax Credits with the actions proposed or being taken to (a) Form application. Standard Form development of affordable housing), evaluate and reduce lead-based paint 424; remove barriers to affordable housing, hazards, and describe how the lead- (b) Resources. (1) Federal resources. evaluate and reduce lead-based paint based paint hazard reduction will be The consolidated plan must describe the hazards, reduce the number of poverty integrated into housing policies and Federal resources expected to be level families, develop institutional programs. available to address the priority needs structure, and enhance coordination (h) Anti-poverty strategy. The and specific objectives identified in the between public and private housing and consolidated plan must describe the strategic plan, in accordance with social service agencies and foster public State’s goals, programs, and policies for § 91.315. These resources include grant housing resident initiatives. (See reducing the number of poverty level funds and program income. § 91.315 (a), (b), (f), (g), (h), (i), (j), (k), families and how the State’s goals, (2) Other resources. The consolidated and (l).) (g) Program-specific requirements. In programs, and policies for producing plan must indicate resources from addition, the plan must include the and preserving affordable housing, set private and non-Federal public sources forth in the housing component of the following specific information: that are reasonably expected to be made (1) CDBG. (i) An ‘‘urgent needs’’ consolidated plan, will be coordinated available to address the needs identified activity (one that is expected to qualify with other programs and services for in the plan. The plan must explain how under § 570.208(c) of this title) may be which the State is responsible and the Federal funds will leverage those included only if the State identifies the extent to which they will reduce (or additional resources, including a activity in the action plan and certifies assist in reducing) the number of description of how matching that the activity is designed to meet poverty level families, taking into requirements of the HUD programs will other community development needs consideration factors over which the be satisfied. Where the State deems it having a particular urgency because State has control. appropriate, it may indicate publicly existing conditions pose a serious and (i) Institutional structure. The owned land or property located within immediate threat to the health or consolidated plan must explain the the State that may be used to carry out welfare of the community and other institutional structure, including private the purposes stated in § 91.1; financial resources are not available. industry, nonprofit organizations, and (c) Activities. A description of the (ii) The method of distribution shall public institutions, through which the State’s method for distributing funds to contain a description of all criteria used State will carry out its housing and local governments and nonprofit to select applications from local community development plan, assessing organizations to carry out activities, or governments for funding, including the the strengths and gaps in that delivery the activities to be undertaken by the relative importance of the criteria—if system. The plan must describe what State, using funds that are expected to the relative importance has been the State will do to overcome gaps in be received under formula allocations developed. The action plan must the institutional structure for carrying (and related program income) and other include a description of how all CDBG out its strategy for addressing its priority HUD assistance during the program year resources will be allocated among all needs. and how the proposed distribution of funding categories and the threshold (j) Coordination. The consolidated funds will address the priority needs factors and grant size limits that are to plan must describe the State’s activities and specific objectives described in the be applied. If the State intends to aid to enhance coordination between public consolidated plan; nonentitlement units of general local and assisted housing providers and (d) Geographic distribution. A government in applying for guaranteed private and governmental health, mental description of the geographic areas of loan funds under 24 CFR part 570, health, and service agencies. With the State (including areas of minority subpart M, it must describe available respect to the public entities involved, concentration) in which it will direct guarantee amounts and how the plan must describe the means of assistance during the ensuing program applications will be selected for cooperation and coordination among the year, giving the rationale for the assistance. (The statement of the method State and any units of general local priorities for allocating investment of distribution must provide sufficient government in the implementation of its geographically; information so that units of general local consolidated plan. (e) Homeless and other special needs government will be able to understand (k) Low-income housing tax credit activities. Activities it plans to and comment on it and be able to use. The consolidated plan must undertake during the next year to prepare responsive applications.) describe the strategy to coordinate the address emergency shelter and (2) HOME. (i) The State shall describe Low-income Housing Tax Credit with transitional housing needs of homeless other forms of investment that are not the development of housing that is individuals and families (including described in § 92.205(b) of this subtitle. affordable to low-income and moderate- subpopulations), to prevent low-income (ii) If the State intends to use HOME income families. individuals and families with children funds for homebuyers, it must state the (l) Public housing resident initiatives. (especially those with incomes below 30 guidelines for resale or recapture, as For a State that has a State housing percent of median) from becoming required in § 92.254 of this subtitle. agency administering public housing homeless, to help homeless persons (3) ESG. The State shall state the funds, the consolidated plan must make the transition to permanent process for awarding grants to State describe the State’s activities to housing and independent living, and to recipients and a description of how the encourage public housing residents to address the special needs of persons State intends to make its allocation 1910 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1994 / Rules and Regulations available to units of local government (1) Citizen participation. A conditions pose a serious and and nonprofit organizations. certification that the State is following immediate threat to the health or (4) HOPWA. The State shall state the a detailed citizen participation plan that welfare of the community where other method of selecting project sponsors. satisfies the requirements of § 91.115, financial resources are not available to and that each unit of general local meet such needs; § 91.325 Certifications. government that is receiving assistance (ii) The aggregate use of CDBG funds, (a) General—(1) Affirmatively from the State is following a detailed including section 108 guaranteed loans, furthering fair housing. Each State is citizen participation plan that satisfies during a period specified by the State, required to submit a certification that it the requirements of § 570.486 of this consisting of one, two, or three specific will affirmatively further fair housing, title. consecutive program years, shall which means that it will conduct an (2) Consultation with local principally benefit low- and moderate- analysis to identify impediments to fair governments. A certification that: income families in a manner that housing choice within the State, take (i) It has consulted with affected units ensures that at least 70 percent of the appropriate actions to overcome the of local government in the amount is expended for activities that effects of any impediments identified nonentitlement area of the State in benefit such persons during the through that analysis, and maintain determining the method of distribution designated period (see 24 CFR 570.481 records reflecting the analysis and of funding; for definition of ‘‘CDBG funds’’); and actions in this regard. (See (ii) It engages or will engage in (iii) The State will not attempt to § 570.487(b)(2)(ii) of this title.) planning for community development recover any capital costs of public (2) Anti-displacement and relocation activities; improvements assisted with CDBG plan. The State is required to submit a (iii) It provides or will provide funds, including Section 108 loan certification that it has in effect and is technical assistance to units of general guaranteed funds, by assessing any following a residential antidisplacement local government in connection with amount against properties owned and and relocation assistance plan in community development programs; occupied by persons of low- and connection with any activity assisted (iv) It will not refuse to distribute moderate-income, including any fee with funding under the CDBG or HOME funds to any unit of general local charged or assessment made as a programs. government on the basis of the condition of obtaining access to such (3) Drug-free workplace. The State particular eligible activity selected by public improvements. However, if must submit a certification with regard the unit of general local government to CDBG funds are used to pay the to drug-free workplace required by 24 meet its community development needs, proportion of a fee or assessment CFR part 24, subpart F. except that a State is not prevented from attributable to the capital costs of public establishing priorities in distributing improvements (assisted in part with (4) Anti-lobbying. The State must funding on the basis of the activities CDBG funds) financed from other submit a certification with regard to selected; and revenue sources, an assessment or compliance with restrictions on (v) Each unit of general local charge may be made against the lobbying required by 24 CFR part 87, government to be distributed funds will property with respect to the public together with disclosure forms, if be required to identify its community improvements financed by a source required by that part. development and housing needs, other than with CDBG funds. In (5) Authority of State. The State must including the needs of the low-income addition, with respect to properties submit a certification that the and moderate-income families, and the owned and occupied by moderate- consolidated plan is authorized under activities to be undertaken to meet these income (but not low-income) families, State law and that the State possesses needs. an assessment or charge may be made the legal authority to carry out the (3) Community development plan. A against the property with respect to the programs for which it is seeking certification that this consolidated plan public improvements financed by a funding, in accordance with applicable identifies community development and source other than CDBG funds if the HUD regulations. housing needs and specifies both short- State certifies that it lacks CDBG funds (6) Consistency with plan. The State term and long-term community to cover the assessment. must submit a certification that the development objectives that have been (5) Compliance with anti- housing activities to be undertaken with developed in accordance with the discrimination laws. A certification that CDBG, HOME, ESG, and HOPWA funds primary objective of the statute the grant will be conducted and are consistent with the strategic plan. authorizing the CDBG program, as administered in conformity with title VI (7) Acquisition and relocation. The described in 24 CFR 570.2, and of the Civil Rights Act of 1964 (42 State must submit a certification that it requirements of this part and 24 CFR U.S.C. 2000d) and the Fair Housing Act will comply with the acquisition and part 570. (42 U.S.C. 3601–3619) and relocation requirements of the Uniform (4) Use of funds. A certification that implementing regulations. Relocation Assistance and Real Property the State has complied with the (6) Excessive force. A certification that Acquisition Policies Act of 1970, as following criteria: the State will require units of general amended, and implementing regulations (i) With respect to activities expected local government that receive CDBG at 49 CFR part 24. to be assisted with CDBG funds, the funds to certify that they have adopted (8) Section 3. The State must submit action plan has been developed so as to and are enforcing: a certification that it will comply with give the maximum feasible priority to (i) A policy prohibiting the use of section 3 of the Housing and Urban activities that will benefit low- and excessive force by law enforcement Development Act of 1968 (12 U.S.C. moderate-income families or aid in the agencies within its jurisdiction against 1701u), and implementing regulations at prevention or elimination of slums or any individuals engaged in non-violent 24 CFR part 135. blight. The plan may also include civil rights demonstrations; and (b) Community Development Block CDBG-assisted activities that are (ii) A policy of enforcing applicable Grant program. For States that seek certified to be designed to meet other State and local laws against physically funding under CDBG, the following community development needs having barring entrance to or exit from a facility certifications are required: particular urgency because existing or location that is the subject of such Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1994 / Rules and Regulations 1911 non-violent civil rights demonstrations families in constructing, renovating, Subpart EÐConsortia; Contents of within its jurisdiction. maintaining, and operating facilities Consolidated Plan (7) Compliance with laws. A assisted under this program, in certification that the State will comply providing services assisted under the § 91.400 Applicability. with applicable laws. program, and in providing services for This subpart applies to HOME (c) Emergency Shelter Grant program. occupants of facilities assisted under the program consortia, as defined in § 91.5 For States that seek funding under the program; and (see 24 CFR part 92). Units of local Emergency Shelter Grant program, a government that participate in a (9) It is following a current HUD- certification is required by the State that consortium must participate in approved consolidated plan. it will ensure that its State recipients submission of a consolidated plan for comply with the following criteria: (d) HOME program. Each State must the consortium, prepared in accordance (1) In the case of assistance involving provide the following certifications: with this subpart. CDBG entitlement major rehabilitation or conversion, it (1) If it plans to use program funds for communities that are members of a will maintain any building for which tenant-based rental assistance, a consortium must provide additional assistance is used under the ESG certification that rental-based assistance information for the consolidated plan, program as a shelter for homeless is an essential element of its as described in this subpart. individuals and families for not less consolidated plan; than a 10-year period; § 91.401 Citizen participation plan. (2) In the case of assistance involving (2) A certification that it is using and The consortium must have a citizen rehabilitation less than that covered will use HOME funds for eligible participation plan that complies with under paragraph (d)(1) of this section, it activities and costs, as described in the requirements of § 91.105. If the will maintain any building for which §§ 92.205 through 92.209 of this subtitle consortium contains one or more CDBG assistance is used under the ESG and that it is not using and will not use entitlement communities, the program as a shelter for homeless HOME funds for prohibited activities, as consortium’s citizen participation plan individuals and families for not less described in § 92.214 of this subtitle; must provide for citizen participation than a three-year period; and within each CDBG entitlement (3) In the case of assistance involving (3) A certification that before community, either by the consortium or essential services (including but not committing funds to a project, the State by the CDBG entitlement community, in limited to employment, health, drug or its recipients will evaluate the project a manner sufficient for the CDBG abuse, or education) or maintenance, in accordance with guidelines that it entitlement community to certify that it operation, insurance, utilities and adopts for this purpose and will not is following a citizen participation plan. furnishings, it will provide services or invest any more HOME funds in shelter to homeless individuals and § 91.402 Consolidated program year. combination with other federal families for the period during which the (a) Same program year for consortia ESG assistance is provided, without assistance than is necessary to provide affordable housing. members. All units of general local regard to a particular site or structure as government that are members of a long as the same general population is (e) Housing Opportunities for Persons consortium must be on the same served; With AIDS. For States that seek funding program year for CDBG, HOME, ESG, (4) Any renovation carried out with under the Housing Opportunities for and HOPWA. The program year shall ESG assistance shall be sufficient to Persons With AIDS program, a run for a twelve month period and begin ensure that the building involved is safe certification is required by the State on the first calendar day of a month. and sanitary; that: (5) It will assist homeless individuals (b) Transition period. (1) A (1) Activities funded under the in obtaining appropriate supportive consortium in existence on March 6, program will meet urgent needs that are services, including permanent housing, 1995, with all members having aligned medical and mental health treatment, not being met by available public and program years must comply with counseling, supervision, and other private sources; and paragraph (a) of this section. A services essential for achieving (2) Any building or structure consortium in existence on March 6, independent living, and other Federal, purchased, leased, rehabilitated, 1995, in which all members do not have State, local, and private assistance renovated, or converted with assistance aligned program years will be allowed a available for such individuals; under that program shall be operated for transition period during the balance of (6) It will obtain matching amounts not less than 10 years specified in the its current consortium agreement to required under § 576.71 of this title; plan, or for a period of not less than bring the program year for all members (7) It will develop and implement three years in cases involving non- into alignment. procedures to ensure the confidentiality substantial rehabilitation or repair of a (2) During any such transition period, of records pertaining to any individual building or structure. the lead agency (if it is a CDBG provided family violence prevention or entitlement community) must submit, as treatment services under any project (Approved by the Office of Management and its consolidated plan, a plan that assisted under the ESG program, Budget under control number 2506–0117). complies with this subpart for the including protection against the release § 91.330 Monitoring. consortium, plus its nonhousing of the address or location of any family Community Development Plan (in violence shelter project except with the The consolidated plan must describe accordance with § 91.215). All other written authorization of the person the standards and procedures that the CDBG entitlement communities in the responsible for the operation of that State will use to monitor activities consortium may submit their respective shelter; carried out in furtherance of the plan nonhousing Community Development (8) To the maximum extent and will use to ensure long-term Plans (§ 91.215(e)), an Action Plan practicable, it will involve, through compliance with requirements of the (§ 91.220) and the certifications employment, volunteer services, or programs involved, including the (§ 91.425(a) and (b)) in accordance with otherwise, homeless individuals and comprehensive planning requirements. their individual program years. 1912 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1994 / Rules and Regulations (Approved by the Office of Management and (b) Description of resources and 3 of the Housing and Urban Budget under control number 2506–0117). activities. The action plan must describe Development Act of 1968 (12 U.S.C. § 91.405 Housing and homeless needs the resources to be used and activities 1701u), and implementing regulations at assessment. to be undertaken to pursue its strategic 24 CFR part 135. plan. The consolidated plan must Housing and homeless needs must be (2) HOME program. The consortium provide this description for all resources described in the consolidated plan in must provide the following and activities within the entire accordance with the provisions of certifications: consortium as a whole, as well as a § 91.205 for the entire consortium. In (i) If it plans to use HOME funds for description for each individual addition to describing these needs for tenant-based rental assistance, a community that is a member of the the entire consortium, the consolidated certification that rental-based assistance consortium. plan may also describe these needs for is an essential element of its individual communities that are (Approved by the Office of Management and consolidated plan; Budget under control number 2506–0117). members of the consortium. (ii) That it is using and will use (Approved by the Office of Management and § 91.425 Certifications. HOME funds for eligible activities and Budget under control number 2506–0117). (a) Consortium certifications—(1) costs, as described in §§ 92.205 through 92.209 of this subtitle and that it is not § 91.410 Housing market analysis. General—(i) Affirmatively furthering fair housing. Each consortium must certify using and will not use HOME funds for Housing market analysis must be that it will affirmatively further fair prohibited activities, as described in described in the consolidated plan in housing, which means that it will § 92.214 of this subtitle; and accordance with the provisions of conduct an analysis to identify (iii) That before committing funds to § 91.210 for the entire consortium. In impediments to fair housing choice a project, the consortium will evaluate addition to describing market within the area, take appropriate actions the project in accordance with conditions for the entire consortium, the to overcome the effects of any guidelines that it adopts for this purpose consolidated plan may also describe impediments identified through that and will not invest any more HOME these conditions for individual analysis, and maintain records reflecting funds in combination with other federal communities that are members of the the analysis and actions in this regard. assistance than is necessary to provide consortium. (ii) Anti-displacement and relocation affordable housing. (Approved by the Office of Management and plan. Each consortium must certify that (b) CDBG entitlement community Budget under control number 2506–0117). it has in effect and is following a certifications. A CDBG entitlement § 91.415 Strategic plan. residential antidisplacement and community that is a member of a relocation assistance plan in connection Strategies and priority needs must be consortium must submit the with any activity assisted with funding certifications required by § 91.225 (a) described in the consolidated plan in under the HOME or CDBG program. accordance with the provisions of and (b), and, if applicable, of § 91.225 (iii) Drug-free workplace. The (c) and (d). § 91.215 for the entire consortium. The consortium must submit a certification consortium is not required to submit a with regard to drug-free workplace (Approved by the Office of Management and nonhousing Community Development required by 24 CFR part 24, subpart F. Budget under control number 2506–0117). Plan; however, if the consortium (iv) Anti-lobbying. The consortium § 91.430 Monitoring. includes CDBG entitlement must submit a certification with regard communities, the consolidated plan to compliance with restrictions on The consolidated plan must describe must include the nonhousing lobbying required by 24 CFR part 87, the standards and procedures that the Community Development Plans of the together with disclosure forms, if consortium will use to monitor CDBG entitlement community members required by that part. activities carried out in furtherance of of the consortium. The consortium must (v) Authority of consortium. The the plan and will use to ensure long- set forth its priorities for allocating consortium must submit a certification term compliance with requirements of housing (including CDBG and ESG, that the consolidated plan is authorized the programs involved, including where applicable) resources under State and local law (as applicable) minority business outreach and the geographically within the consortium, and that the consortium possesses the comprehensive planning requirements. describing how the consolidated plan legal authority to carry out the programs Subpart FÐOther General will address the needs identified (in for which it is seeking funding, in Requirements accordance with § 91.405), describing accordance with applicable HUD the reasons for the consortium’s regulations. § 91.500 HUD approval action. allocation priorities, and identifying any (vi) Consistency with plan. The obstacles there are to addressing consortium must certify that the (a) General. HUD will review the plan underserved needs. housing activities to be undertaken with upon receipt. The plan will be deemed CDBG, HOME, ESG, and HOPWA funds approved 45 days after HUD receives (Approved by the Office of Management and the plan, unless before that date HUD Budget under control number 2506–0117). are consistent with the strategic plan. (vii) Acquisition and relocation. The has notified the jurisdiction that the § 91.420 Action plan. consortium must certify that it will plan is disapproved. (a) Form application. The action plan comply with the acquisition and (b) Standard of review. HUD may for the consortium must include a relocation requirements of the Uniform disapprove a plan or a portion of a plan Standard Form 424 for the consortium Relocation Assistance and Real Property if it is inconsistent with the purposes of for the HOME program. Each Acquisition Policies Act of 1970, as the Cranston-Gonzalez National entitlement jurisdiction also must amended (42 U.S.C. 4601), and Affordable Housing Act (42 U.S.C. submit a Standard Form 424 for its implementing regulations at 49 CFR part 12703), or it is substantially incomplete. funding under the CDBG program and, 24. The following are examples of if applicable, the ESG and HOPWA (viii) Section 3. The consortium must consolidated plans that are substantially programs. certify that it will comply with section incomplete: Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1994 / Rules and Regulations 1913 (1) A plan that was developed without (2) See subpart B of this part for the § 91.515 Funding determinations by HUD. the required citizen participation or the public notice procedures applicable to (a) Formula funding. The action plan required consultation; substantial amendments. For any submitted by the jurisdiction will be (2) A plan that fails to satisfy all the amendment affecting the HOPWA considered as the application for the required elements in this part; and program that would involve acquisition, CDBG, HOME, ESG, and HOPWA (3) A plan for which a certification is rehabilitation, conversion, lease, repair formula grant programs. The rejected by HUD as inaccurate, after or construction of properties to provide Department will make its funding award HUD has inspected the evidence and housing, an environmental review of the determination after reviewing the plan provided due notice and opportunity to revised proposed use of funds must be submission in accordance with § 91.500. the jurisdiction for comment. completed by HUD in accordance with (b) Other funding. For other funding, (c) Written notice of disapproval. 24 CFR 574.510. the jurisdiction must still respond to Within 15 days after HUD notifies a Notices of Funding Availability for the (Approved by the Office of Management and jurisdiction that it is disapproving its Budget under control number 2506–0117). individual programs in order to receive plan, it must inform the jurisdiction in funding. writing of the reasons for disapproval § 91.510 Consistency determinations. (Approved by the Office of Management and and actions that the jurisdiction could (a) Applicability. For competitive Budget under control number 2506–0117). take to meet the criteria for approval. programs, a certification of consistency Disapproval of a plan with respect to of the application with the approved § 91.520 Performance reports. one program does not affect assistance consolidated plan for the jurisdiction (a) General. Each jurisdiction that has distributed on the basis of a formula may be required, whether the applicant an approved consolidated plan shall under other programs. is the jurisdiction or another applicant. annually review and report, in a form (d) Revisions and resubmission. The (b) Certifying authority. (1) The prescribed by HUD, on the progress it jurisdiction may revise or resubmit a certification must be obtained from the has made in carrying out its strategic plan within 45 days after the first unit of general local government if the plan and its action plan. The notification of disapproval. HUD must project will be located in a unit of performance report must include a respond to approve or disapprove the general local government that: is description of the resources made plan within 30 days of receiving the required to have a consolidated plan, is available, the investment of available revisions or resubmission. authorized to use an abbreviated resources, the geographic distribution and location of investments, the families (Approved by the Office of Management and consolidated plan but elects to prepare Budget under control number 2506–0117). and has submitted a full consolidated and persons assisted (including the plan, or is authorized to use an racial and ethnic status of persons § 91.505 Amendments to the consolidated assisted), actions taken to affirmatively plan. abbreviated consolidated plan and is applying for the same program as the further fair housing, and other actions indicated in the strategic plan and the (a) Amendments to the plan. The applicant pursuant to the same Notice of action plan. This performance report jurisdiction shall amend its approved Funding Availability (and therefore has shall be submitted to HUD within 90 plan whenever it makes one of the or will have an abbreviated consolidated days after the close of the jurisdiction’s following decisions: plan for the fiscal year for that program). (1) To make a change in its allocation program year. (2) If the project will not be located in priorities or a change in the method of (b) Affordable housing. The report a unit of general local government, the distribution of funds; shall include an evaluation of the (2) To carry out an activity, using certification may be obtained from the jurisdiction’s progress in meeting its funds from any program covered by the State or, if the project will be located in specific objective of providing consolidated plan (including program a unit of general local government affordable housing, including the income), not previously described in the authorized to use an abbreviated number and types of families served. action plan; or consolidated plan, from the unit of This element of the report must include (3) To change the purpose, scope, general local government if it is willing the number of extremely low-income, location, or beneficiaries of an activity. to prepare such a plan. low-income, moderate-income, and (b) Criteria for substantial (3) Where the recipient of a HOPWA middle-income persons served. amendment. The jurisdiction shall grant is a city that is the most populous (c) CDBG. For CDBG recipients, the identify in its citizen participation plan unit of general local government in an report shall include a description of the the criteria it will use for determining EMSA, it also must obtain and keep on use of CDBG funds during the program what constitutes a substantial file certifications of consistency from year and an assessment by the amendment. It is these substantial such public officials for each other jurisdiction of the relationship of that amendments that are subject to a citizen locality in the EMSA in which housing use to the priorities and specific participation process, in accordance assistance is provided. objectives identified in the plan, giving with the jurisdiction’s citizen (c) Meaning. A jurisdiction’s special attention to the highest priority participation plan. (See §§ 91.105 and certification that an application is activities that were identified. This 91.115.) consistent with its consolidated plan element of the report must specify the (c) Submission to HUD. (1) Upon means the jurisdiction’s plan shows nature of and reasons for any changes in completion, the jurisdiction must make need, the proposed activities are its program objectives and indications of the amendment public and must notify consistent with the jurisdiction’s how the jurisdiction would change its HUD that an amendment has been strategic plan, and the location of the programs as a result of its experiences. made. The jurisdiction may submit a proposed activities is consistent with This element of the report also must copy of each amendment to HUD as it the geographic areas specified in the include the number of extremely low- occurs, or at the end of the program plan. The jurisdiction shall provide the income, low-income, and moderate- year. Letters transmitting copies of reasons for the denial when it fails to income persons served by each activity amendments must be signed by the provide a certification of consistency. where information on income by family official representative of the jurisdiction (Approved by the Office of Management and size is required to determine the authorized to take such action. Budget under control number 2506–0117). eligibility of the activity. 1914 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1994 / Rules and Regulations (d) HOME. For HOME participating PART 92ÐHOME INVESTMENT the jurisdiction’s consolidated plan in jurisdictions, the report shall include PARTNERSHIPS PROGRAM accordance with part 91 of this subtitle, the results of on-site inspections of HUD will designate the jurisdiction as a affordable rental housing assisted under 2. The authority citation for part 92 participating jurisdiction. continues to read as follows: the program to determine compliance (Approved by the Office of Management and with housing codes and other applicable Authority: 42 U.S.C. 3535(d) and 12701– Budget under control numbers 2501–0013 regulations, an assessment of the 12839. and 2506–0117). jurisdiction’s affirmative marketing 3. In § 92.2, the definition of ‘‘housing 8. Section 92.150 is revised to read as actions and outreach to minority-owned strategy’’ is removed and a definition of follows: and women-owned businesses, and data ‘‘consolidated plan’’ is added in on the amount and use of program alphabetical order, to read as follows: § 92.150 Submission requirements. income for projects, including the In order to receive its HOME number of projects and owner and § 92.2 Definitions. allocation, a participating jurisdiction tenant characteristics. * * * * * Consolidated plan. The plan prepared must submit a consolidated plan in (e) HOPWA. For jurisdictions accordance with 24 CFR part 91. That receiving funding under the Housing in accordance with part 91 of this subtitle, which describes needs, part includes requirements for the Opportunities for Persons With AIDS content of the consolidated plan, for the program, the report must include the resources, priorities and proposed activities to be undertaken with respect process of developing the consolidated number of individuals assisted and the plan, including citizen participation types of assistance provided. to HUD programs, including the HOME program. An approved consolidated provisions, for the submission date, for (f) Evaluation by HUD. HUD shall plan means a consolidated plan that has HUD approval, and for the amendment review the performance report and been approved by HUD in accordance process. determine whether it is satisfactory. If a with part 91 of this subtitle. (Approved by the Office of Management and satisfactory report is not submitted in a * * * * * Budget under control number 2506–0117). timely manner, HUD may suspend 4. Section 92.52 is revised to read as funding until a satisfactory report is § 92.151 [Removed] follows: submitted, or may withdraw and 9. Section 92.151 is removed. reallocate funding if HUD determines, § 92.52 Formula allocations. § 92.152 [Removed] after notice and opportunity for a Not later than 20 days after funds hearing, that the jurisdiction will not become available to HUD, HUD will 10. Section 92.152 is removed. submit a satisfactory report. allocate HOME funds and then will § 92.200 [Amended] (Approved by the Office of Management and promptly notify all jurisdictions Budget under control number 2506–0117). receiving a formula allocation the 11. In § 92.200, the term ‘‘housing amount of each jurisdiction’s formula strategy’’ is removed from each place § 91.525 Performance review by HUD. allocation. where it appears, and the term (a) General. HUD shall review the 5. In § 92.103, paragraph (a) is revised ‘‘consolidated plan’’ is added in each performance of each jurisdiction to read as follows: place. covered by this part at least annually, § 92.103 Notification of intent to § 92.201 [Amended] including site visits by employees— participate. 12. In § 92.201, the term ‘‘housing insofar as practicable, assessing the (a) A jurisdiction must notify HUD in strategy’’ is removed from paragraphs (a) following: writing, not later than 30 days after and (b)(1) from each place where it (1) Management of funds made receiving notice of its formula allocation appears, and the term ‘‘consolidated available under programs administered amount under § 92.52, of its intention to plan’’ is added in each place. by HUD; become a participating jurisdiction. § 92.204 [Amended] (2) Compliance with the consolidated * * * * * plan; 6. Section 92.104 is revised to read as 13. Section 92.204 is amended by (3) Accuracy of performance reports; follows: removing from paragraph (c) the phrase, ‘‘subpart D (Program Description),’’. (4) Extent to which the jurisdiction § 92.104 Submission of consolidated plan. made progress towards the statutory A jurisdiction that has not submitted § 92.207 [Amended] goals identified in § 91.1; and a consolidated plan to HUD or has 14. Section 92.207 is amended by (5) Efforts to ensure that housing submitted an abbreviated consolidated removing from paragraph (f) the term assisted under programs administered plan (as provided for in § 91.235 of this ‘‘housing strategy’’ in each place where by HUD is in compliance with subtitle) must submit to HUD, not later it occurs and adding in its place the contractual agreements and the than 90 days after providing notification term ‘‘consolidated plan’’. requirements of law. under § 92.103, a consolidated plan in 15. In § 92.211, paragraph (a)(1) is (b) Report by HUD. HUD shall report accordance with part 91 of this subtitle. revised to read as follows: on the performance review in writing, (Approved by the Office of Management and § 92.211 Tenant-based rental assistance. stating the length of time the Budget under control numbers 2501–0013). jurisdiction has to review and comment (a) * * * 7. Section 92.105 is revised to read as (1) The participating jurisdiction on the report, which will be at least 30 follows: days. HUD may revise the report after makes the certification about inclusion considering the jurisdiction’s views, and § 92.105 Designation as a participating of this type of assistance in its shall make the report, the jurisdiction’s jurisdiction. consolidated plan in accordance with comments, and any revisions available When a jurisdiction has complied §§ 91.225(d)(1), 91.325(d)(1), or to the public within 30 days after with the requirements of §§ 92.102 91.425(b)(1)) of this subtitle; and receipt of the jurisdiction’s comments. through 92.104 and HUD has approved * * * * * Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1994 / Rules and Regulations 1915 § 92.220 [Amended] requirements, see part 91 of this § 570.304 Making of grants. 16. Section 92.220 is amended by subtitle. (a) Approval of grant. HUD will removing the last sentence from * * * * * approve a grant if the jurisdiction’s paragraph (a)(6)(ii). submissions have been made and PART 570ÐCOMMUNITY approved in accordance with 24 CFR § 92.222 [Amended] DEVELOPMENT BLOCK GRANTS part 91. 17. Section 92.222 is amended by * * * * * removing from paragraphs (a)(3) and 26. The authority citation for part 570 continues to read as follows: (c) * * * (a)(4) the word ‘‘published’’ in each (1) The consolidated plan is not place where it appears, and adding in its Authority: 42 U.S.C. 3535(d) and 5300– received by the first working day in place the word ‘‘made’’. 5320. September or is not approved under 24 § 92.300 [Amended] 27. In § 570.3, the definition of CFR part 91, subpart F, in which case ‘‘Comprehensive Housing Affordability the grantee will forfeit the entire 18. Section 92.300 is amended by Strategy (CHAS or housing strategy)’’ is entitlement amount; or removing from paragraph (b) the term removed, and the definition of ‘‘housing strategy’’ where it occurs and * * * * * ‘‘consolidated plan’’ is added in adding it its place the term alphabetical order, to read as follows: § 570.305 [Removed] ‘‘consolidated plan’’. 33. Section 570.305 is removed. § 570.3 Definitions. § 92.302 [Amended] * * * * * § 570.306 [Removed] 19. Section 92.302 is amended by Consolidated plan. The plan prepared 34. Section 570.306 is removed. removing from paragraph (b)(2) the term in accordance with 24 CFR part 91, ‘‘housing strategy’’ where it occurs and which describes needs, resources, § 570.308 [Amended] adding it its place the term priorities and proposed activities to be 35. In § 570.308, paragraph (d) is ‘‘consolidated plan’’. undertaken with respect to HUD amended by removing the phrase, ‘‘this subpart’’, and adding in its place the § 92.350 [Amended] programs, including the CDBG program. phrase, ‘‘24 CFR part 91’’. 20. Section 92.350 is amended by An approved consolidated plan means a removing from paragraph (b) the term consolidated plan that has been § 570.420 [Amended] ‘‘housing strategy’’ where it occurs and approved by HUD in accordance with 36. In § 570.420, paragraph (d) is adding it its place the term 24 CFR part 91. amended by removing the word ‘‘consolidated plan’’. * * * * * ‘‘CHAS’’ and adding in its place the phrase ‘‘consolidated plan’’; and by § 92.450 [Amended] § 570.205 [Amended] removing the phrase ‘‘Comprehensive 28. In § 570.205, paragraph (a)(3)(i) is 21. Section 92.450 is amended by Housing Affordability Strategy’’ and amended by removing the term removing from paragraph (b) the term adding in its place the phrase ‘‘Comprehensive Housing Affordability ‘‘housing strategy’’ where it occurs and ‘‘consolidated plan’’. adding it its place the term Strategy’’, and adding in its place the 37. In § 570.423, paragraphs (a), (b), ‘‘consolidated plan’’. term ‘‘consolidated plan’’. and (c)(1) are revised to read as follows: § 570.301 [Removed] § 92.451 [Amended] § 570.423 Application for the HUD- 22. Section 92.451 is amended by 29. Section 570.301 is removed. administered New York Small Cities Grants. removing from paragraph (a)(1)(iii), the 30. Section 570.302 is revised to read (a) Proposed application. The phrase ‘‘housing strategy in accordance as follows: applicant shall prepare and publish a with § 92.104’’ and by adding in its § 570.302 Submission requirements. proposed application and comply with place, the phrase ‘‘consolidated plan, in In order to receive its annual CDBG citizen participation requirements as accordance with part 91 of this entitlement grant, a grantee must submit described in § 570.431, and in 24 CFR subtitle’’; and by removing from a consolidated plan in accordance with part 91—if the application contains paragraph (a)(2) the phrase ‘‘§ 91.70 of 24 CFR part 91. That part includes housing activities and the applicant is this title’’ and by adding in its place, the requirements for the content of the required to prepare and submit an phrase ‘‘part 91 of this subtitle’’. consolidated plan, for the process of abbreviated consolidated plan. developing the consolidated plan, (b) Final application. The applicant § 92.453 [Amended] shall submit to HUD a final application 23. Section 92.453 is amended by including citizen participation provisions, for the submission date, for containing its community development removing from paragraph (b)(2)(ii) the objectives and activities. This final phrase ‘‘housing strategy’’ each place HUD approval, and for the amendment process. application shall be submitted, in a form where it occurs, and by adding the prescribed by HUD, to the appropriate phrase ‘‘consolidated plan’’. (Approved by the Office of Management and HUD office. The application also must Budget under control number 2506–0117). § 92.508 [Amended] contain a priority nonhousing 31. Section 570.303 is revised to read community development plan, in 24. Section 92.508 is amended by as follows: accordance with 24 CFR 91.235. removing from paragraph (c)(1) the (c) Certifications. (1) Certifications word ‘‘three’’ and adding in its place the § 570.303 Certifications. shall be submitted in a form prescribed word ‘‘four’’. The jurisdiction must make the by HUD. If the application contains any 25. In § 92.509, paragraph (b) is certifications that are set forth in 24 CFR housing activities, the applicant shall revised to read as follows: part 91 as part of the consolidated plan. certify that the proposed housing § 92.509 Performance reports. (Approved by the Office of Management and activities are consistent with its (a) * * * Budget under control number 2506–0117). abbreviated consolidated plan, as (b) Annual performance report. For 32. In § 570.304, paragraphs (a) and described at 24 CFR part 91. annual performance report (c)(1) are revised to read as follows: * * * * * 1916 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1994 / Rules and Regulations 38. Section 570.429 is amended as the responsibility of fair housing be submitted in accordance with 24 CFR follows: planning by: part 91. a. By removing from paragraph (b) the (1) Conducting an analysis to identify (2) HUD-administered small cities word ‘‘through’’ and by adding, in its impediments to fair housing choice recipients in New York. (i) Content. place, the word ‘‘and’’; and within the State; Each performance and evaluation report b. By revising paragraphs (f) and (g) to (2) Taking appropriate actions to must contain completed copies of all read as follows: overcome the effects of any forms and narratives prescribed by § 570.429 Hawaii general and grant impediments identified through that HUD, including a summary of the requirements. analysis; citizen comments received on the (3) Maintaining records reflecting the report. * * * * * analysis and actions in this regard; and (f) Required submissions. In order to (ii) Timing. The performance and (4) Assuring that units of local receive its formula grant under this evaluation report on each grant shall be government funded by the State comply subpart, the applicant must submit a submitted: with their certifications to affirmatively consolidated plan in accordance with 24 further fair housing. (A) No later than October 31 for all CFR part 91. That part includes grants executed before April 1 of the requirements for the content of the * * * * * same calendar year. The first report consolidated plan, for the process of 43. Section 570.491 is revised to read should cover the period from the developing the plan, including citizen as follows: execution of the grant until September participation provisions, for the § 570.491 Performance and evaluation 30. Reports on grants made after March submission date, for HUD approval, and report. 31 of a calendar year will be due for the amendment process. The annual performance and October 31 of the following calendar (g) Application approval. HUD will evaluation report shall be submitted in year, and the reports will cover the follow the requirements of 24 CFR accordance with 24 CFR part 91. period of time from the execution of the 91.500. grant until September 30 of the calendar * * * * * (Approved by the Office of Management and year following grant execution. After the Budget under control number 2506–0117). initial submission, the performance and § 570.430 [Amended] 44. In § 570.502, paragraph (a)(16) is evaluation report will be submitted 39. Section 570.430 is amended by revised to read as follows: annually on October 31 until removing paragraph (f). § 570.502 Applicability of uniform completion of the activities funded § 570.431 [Amended] administrative requirements. under the grant; 40. Section 570.431 is amended by (a) * * * (B) Hawaii grantees will submit their removing paragraph (f). (16) Section 85.42, ‘‘Retention and small cities performance and evaluation 41. In § 570.485, paragraphs (b), (c), access requirements for records,’’ except report for each pre-FY 1995 grant no and (e) are removed; paragraph (d) is that the period shall be four years; later than 90 days after the completion redesignated as paragraph (b); and of their most recent program year. After * * * * * the initial submission, the performance paragraph (a) is revised to read as 45. In § 570.506, paragraphs (e) and follows: and evaluation report will be submitted (g)(1) are revised to read as follows: annually until completion of the § 570.485 State submissions and state § 570.506 Records to be maintained. activities funded under the grant; and citizen participation requirements. (C) No later than 90 days after the (a) Required submissions. In order to * * * * * (e) Records that demonstrate criteria for grant closeout, as described receive its annual CDBG grant under in § 570.509(a), have been met. this subpart, a State must submit a compliance with the citizen (iii) Citizen comments on the report. consolidated plan in accordance with 24 participation requirements prescribed in Each recipient shall make copies of the CFR part 91. That part includes 24 CFR part 91, subpart B, for performance and evaluation report requirements for the content of the entitlement recipients, or in 24 CFR part available to its citizens in sufficient time consolidated plan, for the process of 91, subpart C, for HUD-administered to permit the citizens to comment on the developing the plan, including citizen small cities recipients. report before its submission to HUD. participation provisions, for the * * * * * Each recipient may determine the submission date, for HUD approval, and (g) * * * specific manner and times the report for the amendment process. (1) Documentation of the analysis of impediments and the actions the will be made available to citizens * * * * * consistent with the preceding sentence. 42. Section 570.487 is amended by recipient has carried out with its revising paragraph (b) to read as follows: housing and community development * * * * * and other resources to remedy or § 570.487 Other applicable laws and ameliorate any impediments to fair § 570.509 [Amended] related program requirements. housing choice in the recipient’s 47. Section 570.509 is amended by * * * * * community. removing from paragraph (b)(1) the (b) Affirmatively furthering fair * * * * * word, ‘‘§ 570.507’’ and adding in its housing. The Act requires the state to 46. In § 570.507, paragraph (a) is place the words, ‘‘24 CFR part 91’’; and certify to the satisfaction of HUD that it revised to read as follows: by removing from paragraph (d) the will affirmatively further fair housing. phrases, ‘‘comprehensive housing The act also requires each unit of § 570.507 Reports. affordability strategy’’, ‘‘Comprehensive general local government to certify that (a) Performance and evaluation Housing Affordability Strategy (CHAS)’’, it will affirmatively further fair housing. report—(1) Entitlement grant recipients and ‘‘fiscal year’’, and adding, in their The certification that the State will and HUD-administered small cities place, the phrases, ‘‘consolidated plan’’, affirmatively further fair housing shall recipients in Hawaii. The annual ‘‘Consolidated Plan’’, and ‘‘program specifically require the State to assume performance and evaluation report shall year’’, respectively. Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1994 / Rules and Regulations 1917 § 570.601 [Amended] consolidated plan and for the comply with 24 CFR part 91) for eligible 48. In § 570.601, paragraph (b) is guaranteed loan funds to obtain citizens’ activities that address the housing needs amended by adding the following views on community development and of persons with AIDS or related diseases sentence to the end of the paragraph, to housing needs. * ** and their families (see § 574.130(b)). read as follows: * * * * * (c) Competitive grants. The competitive grants are awarded based § 570.601 Public Law 88±352 and Public § 570.901 [Amended] on applications, as described in subpart Law 90±284; affirmatively furthering fair housing; Executive Order 11063. 52. Section 570.901 is amended by C of this part, submitted in response to removing from paragraph (d) the phrase, a Notice of Funds Availability * * * * * ‘‘presubmission requirements at published in the Federal Register. All (b) * * * For each community § 570.301, the amendment requirements States and units of general local receiving a grant under subpart D of this at § 570.305’’, and adding in its place government and nonprofit organizations part, the certification that the grantee the phrase, ‘‘submission requirements of are eligible to apply for competitive will affirmatively further fair housing 24 CFR part 91’’. grants to fund projects of national shall specifically require the grantee to 53. In § 570.904, paragraph (c) is significance. Only those States and units assume the responsibility of fair housing revised to read as follows: of general local government that do not planning by conducting an analysis to qualify for formula allocations are identify impediments to fair housing § 570.904 Equal Opportunity and Fair eligible to apply for competitive grants Housing Review Criteria. choice within its jurisdiction, taking to fund other projects. appropriate actions to overcome the * * * * * 57. In § 574.3, the definitions for effects of any impediments identified (c) Fair housing review criteria. ‘‘Eligible State’’ and ‘‘Qualifying city’’ through that analysis, and maintaining Section 570.601(b) sets forth the general are revised to read as follows: records reflecting the analysis and requirements for the Fair Housing Act actions in this regard. (42 U.S.C. 3601–3620) and the grantee’s § 574.3 Definitions. * * * * * certification that it will affirmatively * * * * * further fair housing. Eligible State means a State that has: § 570.605 [Amended] * * * * * (1) More than 1,500 cumulative cases 49. Section 570.605 is amended by of AIDS in those areas of the State removing the phrase, ‘‘final statement § 570.910 [Amended] outside of eligible metropolitan pursuant to § 570.302’’, and by adding, 54. Section 570.910 is amended by statistical areas that are eligible to be in its place, the phrase, ‘‘consolidated removing from paragraph (b)(2)(iii) the funded through a qualifying city; and plan, in accordance with 24 CFR part phrase, ‘‘subpart D’’, and adding in its (2) A consolidated plan prepared, 91’’. place the phrase, ‘‘24 CFR part 91’’. submitted, and approved in accordance § 570.606 [Amended] with 24 CFR part 91 that covers the PART 574ÐHOUSING assistance to be provided under this 50. In § 570.606, paragraph (c)(3)(iv) is OPPORTUNITIES FOR PERSONS WITH part. (A State may carry out activities amended by removing the term AIDS anywhere in the State, including within ‘‘Comprehensive Housing Affordability an EMSA.) Strategy’’, and adding in its place the 55. The authority citation for part 574 term ‘‘consolidated plan’’. continues to read as follows: * * * * * Qualifying city means a city that is the Authority: 42 U.S.C. 3535(d) and 12901– § 570.704 [Amended] 12912. most populous unit of general local 51. Section 570.704 is amended as government in an eligible metropolitan follows: 56. Section 574.2 is revised to read as statistical area (EMSA) and that has a a. In paragraph (a)(1)(v), the phrase, follows: consolidated plan prepared, submitted, ‘‘statements of community development § 574.2 Overview. and approved in accordance with 24 objectives and projected use of funds CFR part 91 that covers the assistance to (a) Available funds. The Department prepared for its annual grant pursuant to be provided under this part. awards funds appropriated for any fiscal § 570.301’’ is removed, and the phrase, year for the program through a formula * * * * * ‘‘consolidated plan’’ is added in its allocation and a competitive grant 58. In § 574.100, the existing text is place; and the phrase, ‘‘include in these process. Ninety percent of funds designated as paragraph (a), and a new statements’’, is removed and the phrase, appropriated for this program are paragraph (b) is added, to read as ‘‘include in the consolidated plan’’, is distributed by formula entitlement. The follows: added in its place. b. In paragraph (b) introductory text, remaining ten percent is awarded § 574.100 Eligible applicants. the phrase ‘‘final statement’’ is removed through the competitive process. * * * * * and the phrase ‘‘consolidated plan’’ is (b) Formula entitlements. The formula (b) HUD will notify eligible States and added in its place. grants are awarded upon submission qualifying cities of their formula c. In paragraph (a)(2), the third and and approval of a consolidated plan, eligibility and allocation amounts and fourth sentences are revised to read as pursuant to 24 CFR part 91, that covers EMSA service areas annually. follows: the assistance to be provided under this 59. Section 574.120 is revised to read part. Certain States and cities that are as follows: § 570.704 Application requirements. the most populous unit of general local (a) * * * government in eligible metropolitan § 574.120 Responsibility of applicant to (2) Citizen participation plan. *** statistical areas will receive formula serve EMSA. The plan may be the citizen plan allocations based on their State or The EMSA’s applicant shall serve required for the consolidated plan, metropolitan population and eligible persons who live anywhere modified to include guaranteed loan proportionate number of cases of within the EMSA, except that housing funds. The public entity is not required persons with AIDS. They will receive assistance shall be provided only in to hold a separate public hearing for its funds under this part (providing they localities within the EMSA that have a 1918 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1994 / Rules and Regulations consolidated plan prepared, submitted, PART 576ÐEMERGENCY SHELTER date upon which amounts under this and approved in accordance with 24 GRANTS PROGRAM: STEWART B. part first become available for allocation CFR part 91 that covers the assistance to McKINNEY HOMELESS ASSISTANCE in any fiscal year. be provided under this part. In ACT * * * * * allocating grant amounts among eligible 73. In § 576.63, the section heading, 67. The authority citation for part 576 activities, the EMSA’s applicant shall paragraph (a), paragraph (d) continues to read as follows: address needs of eligible persons who introductory text, and paragraph (d)(1) reside within the metropolitan Authority: 42 U.S.C. 3535(d) and 11376. are revised, to read as follows: statistical area, including those not 68. In § 576.3, the definition of § 576.63 Reallocation of grant amounts; within the jurisdiction of the applicant. ‘‘Comprehensive Housing Affordability States and Territories. Strategy’’ is removed and a definition of (a) Applicability. This section applies § 574.160 [Removed] ‘‘Consolidated plan’’ is added in where a State or Territory fails to submit alphabetical order, to read as follows: 60. Section 574.160 is removed. or obtain HUD approval of its § 574.170 [Removed] § 576.3 Definitions. consolidated plan by the deadline * * * * * specified in § 576.61(a), or grant 61. Section 574.170 is removed. Consolidated plan. The plan prepared amounts cannot be reallocated to a State under § 576.61. § 574.180 [Removed] in accordance with part 91 of this title, which describes needs, resources, * * * * * 62. Section 574.180 is removed. priorities and proposed activities to be (d) Eligibility for reallocation 63. In § 574.190, the first sentence is undertaken with respect to HUD amounts. In order to receive reallocation revised to read as follows: programs, including the HOME amounts under this section, the formula program. An approved consolidated city or county, or State or Territory, § 574.190 Reallocation of grant amounts. plan means a consolidated plan that has must: (1) Submit an amendment, in If an eligible State or qualifying city been approved by HUD in accordance accordance with 24 CFR part 91, to its does not submit a consolidated plan in with part 91 of this title. * * * * * consolidated plan for that program year a timely fashion, in accordance with 24 to cover activities for the reallocation CFR part 91, that provides for use of its Subpart CÐ[Removed and Reserved] amount it wishes to receive; and allocation of funding under this part, * * * * * the funds allocated to that jurisdiction 69. Subpart C is removed and 74. In § 576.67, paragraphs (c)(5) and will be added to the funds available for reserved. (f)(1) are revised to read as follows: formula allocations to other 70. Section 576.51 is revised to read jurisdictions in the current fiscal year. as follows: § 576.67 Reallocation of grant amounts; returned or unused amounts. *** § 576.51 Application requirements. * * * * * § 574.240 [Amended] In order to receive a grant under this (c) * * * part, a State or formula city or county 64. In § 574.240, paragraph (c)(11) is (5) The responsible HUD field office must submit and obtain HUD approval amended by removing the phrase, will announce the availability of of a consolidated plan in accordance returned grant amounts. The ‘‘CHAS approved by HUD (see with 24 CFR part 91 that includes § 574.160(a))’’ and by adding in its place announcement will establish deadlines activities to be funded under this part. for submitting applications, and will set the phrase, ‘‘consolidated plan 24 CFR part 91 includes requirements approved by HUD in accordance with out other terms and conditions relating for the content of the plan, for the to grant awards, consistent with this 24 CFR part 91’’. process of developing the plan, part. The announcement will specify the 65. Section 574.520 is revised to read including citizen participation application documents to be submitted. provisions, for the submission date, for as follows: * * * * * HUD approval, and for the amendment (f) * * * § 574.520 Performance reports. process. This plan serves as the (1) For purposes of this section, jurisdiction’s application for funding (a) Formula grants. For a formula emergency shelter grant amounts are under this program. grant recipient, the performance considered ‘‘returned’’ when they reporting requirements are specified in (Approved by the Office of Management and become available for reallocation 24 CFR part 91. Budget under control number 2506–0117). because a jurisdiction does not execute (b) Competitive grants. A grantee shall § 576.53 [Amended] a grant agreement with HUD for them. submit to HUD annually a report 71. In § 576.53, paragraphs (a), (b), * * * * * describing the use of the amounts and (e) are removed; and paragraphs (c) § 576.85 [Removed] received, including the number of and (d) are redesignated as paragraphs 75. Section 576.85 is removed. individuals assisted, the types of (a) and (b), respectively. assistance provided, and any other 72. In § 576.61, the section heading § 576.87 [Amended] information that HUD may require. and paragraph (a) are revised to read as 76. In § 576.87, the word ‘‘three-year’’ Annual reports are required until all follows: is removed and the word ‘‘four-year’’ is grant funds are expended. § 576.61 Reallocation of grant amounts; added in its place. formula cities and counties. § 574.530 [Amended] PART 968ÐPUBLIC HOUSING (a) Applicability. This section applies MODERNIZATION 66. In § 574.530, the word ‘‘three- where a formula city or county fails to year’’ is removed and the word ‘‘four- submit or obtain HUD approval of its 77. The authority citation for part 968 year’’ is added in its place. consolidated plan within 90 days of the continues to read as follows: Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1994 / Rules and Regulations 1919 Authority: 42 U.S.C. 1437d, 1437l, 3535(d). development of a comprehensive plan services, or the consolidation or 78. Section 968.320 is amended by: to ensure that there is coordination coordination of drug prevention and a. Revising the first sentence of between the actions taken under the other human service initiatives, the paragraph (c) introductory text; consolidated plan (see 24 CFR part 91) PHA shall identify these needs and b. Redesignating paragraphs (d), (e), for project and neighborhood strategies. In addition, the PHA shall and (f) as paragraphs (e), (f), and (g), improvements where public housing identify the funds or other resources in respectively; units are located or proposed for the consolidated plan that are to be used c. Adding a new paragraph (d); construction and/or modernization and to help address these needs and d. Amending the newly redesignated improvement and to coordinate meeting strategies and the activities in the paragraph (e) by adding two new public and human service needs of the comprehensive plan that strengthen the sentences preceding the last sentence of public and assisted housing projects and consolidated plan. * ** the introductory text; their residents. * ** * * * * * e. Revising the last sentence of * * * * * paragraph (e)(4)(i); and (4) * * * (i) * * * Where necessary, (d) Participation in coordinating f. Removing from paragraph (e)(6)(ii) HUD will review the PHA’s entities. To the extent that coordinating the phrase ‘‘Comprehensive Housing documentation in support of its cost entities are set up to plan and Affordability Strategy’’ and adding in its reasonableness and taking into account implement the consolidated plans place the phrase ‘‘consolidated plan’’; to broader efforts to revitalize the (under 24 CFR part 91), the PHA shall read as follows: neighborhoods in which the participate in these entities to ensure development are located; § 968.320 Comprehensive Plan (including coordination with broader community Five-Year Action Plan). development strategies. * * * * * Dated: December 22, 1994. * * * * * (e) * * * Where long-term physical (c) Local government participation. A and social viability of the development Henry G. Cisneros, PHA shall consult with and provide is dependent upon revitalization of the Secretary. information to appropriate local surrounding neighborhood in the [FR Doc. 94–32150 Filed 12–29–94; 3:48 pm] government officials with respect to the provision of or coordination of public BILLING CODE 4210±32±P federal register January 5,1995 Thursday Guidelines; FinalRule Program EconomicDevelopment Community DevelopmentBlockGrant 24 CFRPart570 Development Housing andUrban Department of Part VII 1921 1922 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations DEPARTMENT OF HOUSING AND activities, particularly those carried out HUD-Administered Small Cities and URBAN DEVELOPMENT under the national objective of Insular Areas programs. Further benefiting low- and moderate-income clarification will be provided (such as Office of the Assistant Secretary for persons through the creation or through annual Notices of Funding Community Planning and retention of jobs. These changes Availability or other instructions) for Development necessitate revisions to the CDBG those programs, particularly regarding regulations. HUD has also determined applications proposing a limited 24 CFR Part 570 that it is appropriate to take this number of activities subject to the [Docket No. R±94±1729; FR±3474±F±02] opportunity to make certain other public benefit guidelines. changes to the regulations to facilitate RIN 2506±AB53 the use of CDBG funds for economic Applicability of This Rule to the Indian CDBG Program Community Development Block Grant development objectives. These changes are designed to reduce the It has been determined by the Office Program Economic Development administrative burden on grantees of Native American Programs that this Guidelines while, at the same time, focusing efforts regulation will not be applicable to the AGENCY: Office of the Assistant on assisting the residents of low- and Indian Community Development Block Secretary for Community Planning and moderate-income neighborhoods. Grant (ICDBG) program. The nature of Development, HUD. A proposed rule regarding these the ICDBG program is so separate and ACTION: Final rule and guidelines. issues was published on May 31, 1994, distinct from the Entitlement or the at 59 FR 28175. The rule gave the public State and Small Cities program that it is SUMMARY: This rule establishes 30 days in which to submit comments. in the best interest of the ICDBG to guidelines to assist Community Fifty-one comments were received, and address these issues separately. A Development Block Grant (CDBG) many of the comments were extensive. specific rule will be proposed at a later recipients in evaluating and selecting The following types and numbers of date to address the needs of the Indian economic development activities for commenters were represented: 14 local Tribes and Alaskan Native Villages assistance with CDBG funds. The government agencies, 7 state agencies, served by the ICDBG program to comply guidelines deal with project costs and 12 national associations, 7 development with the requirements of the Housing financial requirements and with the organizations, 1 regional planning and Community Development Act of public benefit provided by such agency, 3 private citizens, and 7 HUD 1992. activities. This rule also makes certain Field staff. other changes to facilitate the use of Summary of Public Comments and Applicability of This Rule to the State HUD Responses CDBG funds for economic development CDBG Program objectives. Assistance for Microenterprises Separate regulatory language for the EFFECTIVE DATE: February 6, 1995. Entitlement and State CDBG programs is Issue. Three commenters requested FOR FURTHER INFORMATION CONTACT: contained in this rule. This preamble that the maximum number of employees James R. Broughman, Director, Office of generally discusses the changes for the permitted in order for a business to be Block Grant Assistance, Room 7286, 451 two programs together, with differences considered a microenterprise be Seventh Street, SW, Washington, DC between the requirements for the two increased. (2 local government agencies 20410. Telephone: (202) 708–3587; programs noted. Overall, such and 1 state agency) TDD: (202) 708–2565. (These are not differences have been kept to a Response. The term toll-free numbers.) minimum. ‘‘microenterprise’’ is defined by Section SUPPLEMENTARY INFORMATION: One of the The State CDBG program regulations 807(c)(2) of the 1992 Act as a Department of Housing and Urban do not contain an explanatory list of ‘‘commercial enterprise that has five or Development’s (HUD’s) expressed goals eligible activities, and relatively few fewer employees, one or more of whom is to provide an economic lift for terms are defined in regulation. The owns the enterprise.’’ With this distressed cities. Toward this end, HUD changes to §§ 570.201, 570.203, 570.204, statutory limitation, the maximum has embarked on a course designed to 570.500 and 570.506 (and the number of employees cannot be make the Community Development accompanying preamble discussions increased. Block Grant (CDBG) program a thereof) are thus not applicable to the Issue. Four commenters requested potentially major contributor to the State CDBG program, as there are no further clarification of the definition of provision of jobs, especially for low- comparable sections in the State a microenterprise. Issues raised income persons residing in our poorest regulations. In interpreting the list of included: whether the limitation on the areas. To accomplish this goal, the eligible activities found in Section 105 number of employees applies to actual Department recognizes that it will need of the Housing and Community persons or full-time-equivalent to change both the perception and the Development Act of 1974, as amended, positions; the scope of the term reality concerning the usefulness of states may use the Entitlement ‘‘commercial’’; and the length of time a CDBG for economic development regulations as interpretive guidance. CDBG-assisted microenterprise must objectives. remain within the five-employee Section 806 of the Housing and Applicability of This Rule to the HUD- maximum. (2 national associations, 1 Community Development Act of 1992 Administered Small Cities and Insular state agency, and 1 private citizen) (the 1992 Act) requires the Secretary to Areas CDBG Programs Response. The Department interprets establish, by regulation, guidelines to Portions of the Entitlement CDBG the statutory language regarding the size assist CDBG recipients to evaluate and Program regulations are incorporated by limitations for a microenterprise as select economic development activities reference into the regulations for the referring to number of actual persons for assistance with CDBG funds. The HUD-Administered Small Cities employed by the business, including the 1992 Act also made further changes in program and the Insular Areas CDBG owner(s). the CDBG program affecting the use of program. Thus, the changes to the As noted above, the statutory funds for economic development Entitlement regulations also apply to the definition of a microenterprise describes Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations 1923 such a business as a ‘‘commercial Issue. Two commenters requested that microenterprise. Alternatively, the enterprise. . . .’’ The Department does HUD revise the regulations to permit extent of financial assistance provided not believe that it was Congress’ intent ‘‘general support’’ services to also be to the microenterprise owner for the to construe the term ‘‘commercial’’ so provided, outside of the public service capital needs of the business could be narrowly in this instance that it would cap, to businesses larger than sized taking into account the owner’s encompass only retail businesses. microenterprises. (1 state agency and 1 cost of providing such benefits for his/ Rather, the HUD interprets this term national association) her employees. broadly to mean any ‘‘entity engaged in Response. The Department cannot The term ‘‘general support’’ as it is commerce,’’ subject to the size accommodate the requested change. used in the statute and limitations further imposed by the Flexibility to provide such services § 570.201(o)(1)(iii) is not intended to statutory definition of a microenterprise. outside the public service category is specifically include the activity Definitions of the terms only statutorily provided for administrator’s cost of delivering ‘‘microenterprise’’ and ‘‘small business’’ microenterprise assistance carried out microenterprise assistance to owners of are being incorporated into the CDBG under Section 105(a)(23) of the Housing microenterprises and persons regulations at § 570.3 in this final rule. and Community Development Act of developing them. As with any CDBG In regard to the length of time a 1974, as amended, and, to a less direct activity, it is recognized that there are CDBG-assisted microenterprise must extent, qualified activities carried out various necessary costs associated with remain within these size limitations, the under Section 105(a)(15) of the Act carrying out a microenterprise same general rule that applies to other (§ 570.204 of the Entitlement assistance activity. As the commenters CDBG activities would also apply to regulations). As noted above, the statute note, these may include the costs of microenterprise assistance. That is, the also imposes the five-employee size outreach and screening, curriculum size limitation applies only at the time limitation on microenterprises. development, coordination with other the CDBG assistance is provided. There Issue. Seven commenters requested agencies, formation and management of may often be the expectation that, in the that HUD clarify various aspects of the peer lending groups, and certain staff future, the business will grow beyond ‘‘general support’’ portion of the training and development. As with any five employees; that expectation should microenterprise eligibility provision. other CDBG activity, such costs directly not block assistance to a currently Issues raised included: whether there related to carrying out the qualified microenterprise. A grantee were any circumstances in which such microenterprise assistance activity are need not track the size of the business support activities would be considered considered eligible as part of that throughout the term of any CDBG loan public service activities; whether activity, without being categorized as received, as the commenters feared ‘‘general support’’ could be provided to ‘‘general support.’’ Such ‘‘activity might be the case. However, it should be employees of microenterprises who are delivery’’ costs are not considered to be noted that when CDBG assistance is not part-owners; whether ‘‘general general administrative costs that would provided on an ongoing basis, as may support’’ included costs related to the be subject to the 20 percent cap. often be the case for ‘‘general support’’ delivery of microenterprise assistance; In regard to the nature of the entities activities, such assistance ceases to and whether the entities providing carrying out activities under this qualify under the microenterprise assistance under this category would be eligibility category and their familiarity eligibility category at the point when the those most attuned to the special needs with the needs of microenterprises, business grows beyond the five- of microenterprises. (1 local government HUD has interpreted the statutory employee size limitation. Further agency, 3 national associations, 2 provision as broadly as possible in assistance to the business after that time development organizations, and 1 developing this rule. This should permit must qualify under other existing private citizen) grantees significant flexibility in eligibility categories. Response. As noted above, the statute determining how, and by whom, Issue. Two commenters requested that limits the instances in which ‘‘general microenterprise assistance activities HUD further define the term ‘‘persons support’’ services may be provided to should be carried out, based on local developing microenterprises.’’ (1 state businesses outside the public service needs and priorities. The specific agency and 1 private citizen) eligibility category. In any selection of service providers is a matter Response. HUD agrees that it is useful circumstances which fall outside the of local discretion. to include such a definition in the specified instances, the provision of Issue. Four commenters regulations. Thus, a new paragraph such support services would need to recommended that some form of § 570.201(o)(3) has been added to this qualify as public service activities. ‘‘appropriate’’ test be required for final rule to provide such a definition. Under the microenterprise eligibility microenterprise assistance carried out Generally, the term ‘‘persons developing provision, the statute limits the direct under the new eligibility category or microenterprises’’ is defined as persons provision of ‘‘general support’’ to that the rule include some language who have expressed interest and who ‘‘owners of microenterprises and stating that such assistance must be are, or after an initial screening process persons developing microenterprises.’’ reasonable and necessary. (2 local are expected to be, actively working Thus, ‘‘general support’’ cannot be government agencies, 1 state agency, toward developing businesses, each of provided directly to employees of and 1 HUD Field staff person) which is expected to be a microenterprises who are not part- Response. As noted in the preamble to microenterprise at the time it is formed. owners. However, there may often be the proposed rule, this new It should be noted that HUD does not other ways of structuring the activity to microenterprise eligibility category was expect that all such persons will achieve essentially the same end result. added to the Act as a new Section actually start a microenterprise; some For example, financial assistance may 105(a)(23). This new paragraph of the ‘‘fallout’’ is expected. However, patterns be provided to the microenterprise statute does not contain any of excessive ‘‘fallout’’ rates in a grantee’s owner under § 570.201(o)(1)(i) to permit requirement that assistance for such microenterprise activities may cause the owner to provide certain benefits to activities be determined to be HUD to question whether such activities his/her employees if that can be shown ‘‘appropriate.’’ In addition, this new truly serve ‘‘persons developing to assist in the ‘‘development, paragraph is not included among those microenterprises.’’ stabilization, or expansion’’ of the eligibility categories listed as covered by 1924 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations the economic development ‘‘guidelines’’ Issue. One commenter asked whether determine that any displacement of to be established pursuant to the new (or how) certain assistance to in-home existing businesses and jobs that is Section 105(e) of the statute, as added day care providers might be eligible likely to occur as a result of the by Section 806(a) of the 1992 Act. HUD under the proposed § 570.201(o) or economic development project, both in does not believe that adding any § 570.203. The commenter noted that the neighborhood in which the project regulatory requirements to this day care is often provided by people is located and in other surrounding eligibility category that are not required within their own homes. Improvements neighborhoods, is justifiable given an by statute is warranted. As with any to the house may be necessary or examination of possible alternatives. other CDBG activity, however, grantees beneficial to the provision of day care Additional Changes to § 570.203, are free to develop more restrictive local services. The existing regulations do not Special Economic Development policies as they feel are appropriate to provide guidance as to whether Activities meeting their local needs and objectives. improvements to a residence in this case Also, pursuant to §§ 570.200(a)(5) and should be classified as rehabilitation or Issue. A total of eight commenters 570.502 of the CDBG regulations, all as assistance to a business. addressed the new paragraph (c) that costs incurred for CDBG assisted Response. The Department agrees that was proposed to be added to § 570.203 activities must be in conformance with this issue is not clear in the existing of the Entitlement regulations to the applicable uniform administrative regulations; the addition of the specifically address items that may be requirements. This includes the microenterprise assistance eligibility considered activity delivery costs in requirement that the costs be necessary section further muddies the issue, as conjunction with special economic and reasonable for the proper and many home day care providers might development activities assisted under efficient administration of the program. also qualify as a microenterprise. this section. The Department’s principal Thus, HUD does not believe it is Situations in which businesses are purpose in proposing the addition of necessary to include any special operated from a residence are not this paragraph was to permit certain job language in this regard in § 570.201(o). limited to day care provision. To training and placement activities in Issue. A concern was raised over the address this comment, the Department direct conjunction with otherwise fact that no revision to the Section 108 has revised § 570.202 (eligible assisted CDBG special economic Loan Guarantee regulations at § 570.703 rehabilitation activities) of the development activities to be considered was proposed to reflect the addition of Entitlement regulations. With this part of the ‘‘delivery cost’’ of those microenterprise assistance as a separate revision, certain situations in which special economic development eligibility category. (1 HUD Field staff physical improvements to a residence activities. All eight commenters person) are undertaken to benefit a business supported this general concept, but five Response. Activities eligible for operated therein may be classified as of them requested modification or assistance under the Section 108 Loan housing rehabilitation. clarification of the provision. The Guarantee program are specifically recommended modifications included: delineated at Section 108(a) of the Act. Ensuring That Economic Development extending this provision to include While the 1992 Act added the separate Projects Minimize Displacement construction jobs created as part of microenterprise eligibility category as a Issue. Section 907(a) of the National CDBG projects; extending it to include new Section 105(a)(23) of the statute, no Affordable Housing Act of 1990 all ‘‘CDBG-eligible’’ economic reference to this new paragraph was amended Section 105(a)(17) of the development projects rather than just added to Section 108(a) of the statute. statute to require, in part, that economic actual ‘‘CDBG-assisted’’ projects; Thus, this eligibility category is not development projects assisted under limiting the job training and placement directly eligible for assistance using this provision must minimize, to the activities permitted under this provision Section 108 Loan Guarantees. However, extent practicable, displacement of to actual low- and moderate-income the provision of direct assistance to existing businesses and jobs in persons; and reclassifying the outreach microenterprises has long been, and neighborhoods. The proposed rule and monitoring portions of this continues to be, eligible as a special implemented this provision by provision as general administrative economic development activity under amending § 570.203 of the Entitlement costs subject to the 20 percent cap. Section 105(a)(17) of the Act regulations with language on Clarification was also requested as to (§ 570.203(b) of the Entitlement displacement that was identical to that whether there were any circumstances regulations). Section 105(a)(17) is contained in the statute. Six where the job training activities included at Section 108(a) among the commenters addressed this issue, and discussed would still be considered a list of activities eligible for Loan several of them recommended that public service. (3 local government Guarantee assistance under that section. further guidance be provided. However, agencies, 3 national associations, and 2 Therefore, grantees may use Section 108 few specific recommendations were development organizations) Loan Guarantees to directly assist received. (3 national associations, 1 Response. HUD has determined that it microenterprises, subject to the local government agency, 1 private is not appropriate to extend the statutorily required ‘‘appropriateness’’ citizen, and 1 HUD Field staff person) coverage of this provision to include job determination and coverage under the Response. HUD has determined that it training for construction jobs created as economic development ‘‘guidelines’’ is most appropriate to leave the final part of all CDBG projects in general. (established in this final rule as a new rule provision as proposed on this issue. This new economic development § 570.209 of the Entitlement regulations Within the parameters of the statutory services provision specifically applies and additions to § 570.482 of the State language, grantees will have flexibility only to activities qualifying as special regulations). These ‘‘guidelines’’ take to demonstrate compliance with this economic development activities under into account the special needs and requirement as appropriate for their the CDBG program. Costs for training limitations arising from the size of such circumstances. One possible way in and apprenticeship programs directly businesses assisted under § 570.203(b) which a grantee could demonstrate related to the construction for these as required by the new Section 105(g)(1) compliance with this requirement is by activities can generally be considered to of the statute (as added by Section conducting an analysis for each covered be covered under this provision. Costs 807(c)(1) of the 1992 Act). economic development project to of such programs for other types of Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations 1925 CDBG projects can often be considered national objective as that economic activities are routinely considered part as activity delivery costs of the development project. Such CDBG of the delivery cost of such activities. respective projects to which they special economic development activities The commenter compares the above pertain. can qualify under a variety of national type of outreach and marketing efforts to In regard to the comment that the objective provisions; they are not activities designed to help inform low- proposed provision should be extended limited to creating or retaining jobs for income residents about CDBG. If that to include all ‘‘CDBG-eligible’’ low- and moderate-income persons. reference is to activities that are economic development projects rather This comment has raised an issue, designed to make residents generally than just otherwise ‘‘CDBG-assisted’’ however, that HUD found to merit aware of the CDBG program and how projects, the Department has determined further consideration. Under existing they may participate in determining that this recommendation has merit. regulations, with very few exceptions, what types of activities the community Under the CDBG program, grant funds the majority of persons benefiting from funds, such a comparison is imprecise. may be used to assist an activity ‘‘in a CDBG-assisted activity must be low- Rather, the type of outreach and whole or in part,’’ as noted at and moderate-income persons. HUD is marketing efforts included under the § 570.200(a) of the Entitlement aware of various proposals under which new § 570.203(c) would be comparable regulations. There are many cases in certain entities have indicated a to activities designed to make residents which ‘‘activity delivery’’ costs are the willingness to train low- and moderate- aware of how they could apply for only portion of an activity’s overall income persons for jobs and/or provide assistance under specific activities, such costs that are paid for with CDBG funds. such persons with other employment as a housing rehabilitation program. Thus, § 570.203(c) has been revised in opportunities, but these entities cannot this final rule to reflect the agree that 51 percent of all assisted Special Activities by Community-Based recommended change. In order to persons will be low or moderate Development Organizations (CBDOs)— qualify under this provision, job income. HUD believes that such § 570.204 (Section 105(a)(15) of the training and placement activities must proposals can often provide valuable Act) still constitute activity delivery costs for opportunities for employment of low- Issue. Six commenters addressed the an economic development project that and moderate-income persons and that eligible activities and project definition would otherwise be eligible for further a way should be found to permit CDBG sections of the proposed rule changes at assistance under § 570.203. HUD funds to assist such efforts. Thus, HUD § 570.204 (a) and (b). Most of these considers this to permit such training is amending the low- and moderate- commenters requested clarification of activities only where the grantee has an income limited clientele national the proposed definitions and discussion agreement with a specific business(es) objective requirements in this final rule of eligible activities. (2 national to actually employ the person(s) trained. [with a new § 570.208(a)(2)(iv) in the associations, 1 local government agency, This provision does not authorize Entitlement regulations and a new 1 private individual, and 2 HUD Field programs that will merely create a § 570.483(b)(2)(v) in the State staff persons) ‘‘pool’’ of trained persons from which a regulations] to authorize the use of Response. HUD has not accepted the business(es) may possibly hire. (Such CDBG funds for such activities that recommendation from one national activities must continue to qualify as provide training and/or other association to add language to the public service activities under employment support services in limited beginning of § 570.204(a) to specifically § 570.201(e) of the Entitlement circumstances. This provision is regulations unless they meet the discussed more fully in detail in the state that the recipient may provide requirements of the new § 570.201(o) or national objective portion of this CDBG funds to a subrecipient under this § 570.204.) It should also be noted that preamble. section ‘‘if permitted by state or local the use of CDBG funds for activity There also appears to be some general law.’’ Compliance with applicable state delivery costs qualifying under confusion regarding what can be or local laws is a requirement for § 570.203(c) constitutes CDBG considered as activity delivery costs and recipients in carrying out all CDBG assistance to the related economic what must be classified as general activities; thus, there is no need to make development project, regardless of the administration subject to the 20 percent a special statement here. funding sources for any other portion of cap. Apart from the job training and In response to the various requests for the project. Thus, that project becomes placement activities discussed above, clarification of the definitions for the subject to all applicable CDBG most of the remaining types of activities projects made eligible by Section requirements, including national delineated in the proposed § 570.203(c) 105(a)(15) of the Act, HUD has made objective and public benefit are already considered to be activity minor changes to those definitions requirements. delivery costs eligible under the included in § 570.204(a) (1), (2), and (3) In regard to the comment that the job currently-existing § 570.203. The in this final rule. For the definition of training and placement activities proposed new paragraph only provides a ‘‘community economic development permitted under this provision should a more specific statement of this point. project,’’ this includes a cross-reference be limited to actual low- and moderate- One commenter specifically took issue to the Consolidated Plan rule at 24 CFR income persons, the Department has with the outreach and monitoring 91.1(a)(1)(iii), which describes the types decided not to adopt this portions of this provision, arguing that of activities HUD generally considers to recommendation. Such a proposal such activities should be considered aid in ‘‘expanding economic confuses the distinction between part of general administration. HUD opportunities,’’ which is part of the eligibility and national objective agrees that ‘‘monitoring’’ should be primary objective of the CDBG program requirements. As activity delivery costs, considered a general administration as delineated at Section 101(c)(1) of the job training and placement activities activity, and thus, that term has been Act. The definition also notes the carried out under § 570.203(c) are deleted from the new § 570.203(c) in general conditions under which the considered part of the economic this final rule. However, reasonable construction or rehabilitation of housing development project to which they outreach efforts by grantees to obtain may be included as part of a relate. Thus, they are generally applicants for available assistance and ‘‘community economic development considered to qualify under the same the direct management of resulting project.’’ 1926 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations One commenter, a private citizen, record keeping requirements. (1 HUD now used in this final rule as the raised a question as to whether a Field staff person) generic term to describe all entities that ‘‘project’’ qualifying under § 570.204 Response. In regard to eligibility may qualify under § 570.204. included only activities for which there requirements under § 570.204, it already Issue. Five commenters addressed the is funding committed and which are is the overall project that is assessed to proposed revision to the definition of occurring now or whether it could determine if it qualifies as one of the the term ‘‘subrecipient’’ at § 570.500(c). include proposed future activities for three types of projects authorized by The proposed revision was intended which no funding has yet been secured. this section. Problems arise when trying only to expand that current provision to HUD has determined that specific limits to apply this approach for assessing include for-profit entities that are now on the scope of a project cannot easily compliance with national objective specifically authorized by statute to be prescribed in this regard. Thus, it has requirements, economic development carry out microenterprise assistance not been addressed in the text of this guidelines, and other applicable activities under the new eligibility final rule. HUD expects recipients to use requirements, however, because of provision implemented in this final rule a plausible interpretation of the term statutory requirements that must be by a new § 570.201(o) in the Entitlement ‘‘project’’ and only include activities applied to specific types of activities regulations [Section 105(a)(23) of the that are to be carried out within a that may be part of the qualified project. Act]. Most of the commenters reasonable period of time. Such an For example, Section 105(c)(3) of the recommended that HUD not consider interpretation should at least exclude Act limits the manner in which any any entities carrying out activities under activities which have not yet received housing activities may be considered to the new microenterprise category as necessary conceptual approvals from benefit low- and moderate-income ‘‘subrecipients’’ but rather as ‘‘end the local government. persons. Also, Section 105(e) of the Act, beneficiaries.’’ These commenters also HUD has also revised the reference to as added by Section 806(a) of the 1992 requested a similar change in permitted services under § 570.204. Two Act, subjects economic development classification for entities receiving commenters, a private citizen and a activities to compliance with the public CDBG assistance under § 570.204 of the HUD Field staff person, requested benefit requirements. Beyond such Entitlement regulations [Section clarification of this provision. Also, statutory restrictions, the Department 105(a)(15) of the Act]. Other under a similar expansion of service also believes that requiring detailed commenters asked only for a activities as part of the new information on what the organization is clarification of the proposed revision to microenterprise eligibility category at actually doing with the CDBG funds § 570.500(c). (1 local government § 570.201(o), one of those same helps ensure accountability to both the agency, 1 development organization, commenters raised a concern about local citizens and HUD. However, HUD and 3 HUD Field staff persons) potential abuse of the expanded has determined that the commenter’s Response. The comments regarding flexibility if the requirements were not recommendation does have a certain entities carrying out activities under the clearly defined. HUD has reconsidered degree of merit. Thus, HUD has made new microenterprise category will be the proposed provision and has certain changes to the CDBG regulations discussed later in this preamble in determined that it is appropriate to limit in this final rule to ease grantees’ further discussion of the revision to the type of services that may be burden in tracking national objective § 570.500(c) in this final rule. This excluded from the public service cap by compliance for certain activities that specific section will only respond to qualifying under this section to those (1) may qualify for eligibility under this these comments as they relate to entities that are specifically designed to increase category. These changes are discussed receiving CDBG assistance under economic opportunities by supporting further in the respective national § 570.204 of the Entitlement regulations the development of permanent jobs, or objective portions of this preamble. (Section 105(a)(15) of the Act). The (2) services of any type carried out Issue. In regard to the types of entities Department has re-examined the status under this section pursuant to a strategy that qualify under § 570.204, one of these entities within the context of approved by HUD under the provisions commenter noted that such entities are the statutory language at Section of § 91.215(e). To reflect this change, the commonly referred to by practitioners as 105(a)(15). This section of the statute proposed paragraph § 570.204(a)(5) has ‘‘community-based development authorizes the provision of CDBG been deleted, the proposed paragraph organizations (CBDOs)’’ or ‘‘community assistance to certain qualified entities to § 570.204(b)(2) has been renumbered to development corporations (CDCs).’’ (1 carry out specific types of projects. (b)(3), and a new paragraph national association) Upon review, HUD has determined that § 570.204(b)(2) has been added to this Response. HUD has determined that is the comments questioning the status of final rule. In the State program appropriate, in adopting a single generic these entities as subrecipients have regulations, proposed § 570.482(c)(2) name for the entities that may qualify merit. The Department has determined has been deleted, and a new paragraph under § 570.204, to use a name that is that, similar to for-profit businesses § 570.482(d) has been added to discuss commonly understood by practitioners. carrying out economic development the eligibility of employment-related It was also apparent from various projects, the entities carrying out services and microenterprise support comments that the proposed rule’s use qualified activities under § 570.204 services. of the term ‘‘local development (Section 105(a)(15) of the Act) can be Issue. One commenter recommended corporations (LDCs)’’ in this regard considered not to be an intermediary that the Department consider the caused some confusion with some organization in the grant assistance eligible project carried out by the commenters thinking HUD was chain acting for the grantee, but rather qualified organization under § 570.204 ‘‘picking’’ one of the entities in the as being specifically eligible to receive to be a single eligible activity instead of current rule over the others. Use of the CDBG assistance itself. While these ‘‘only a loose grouping of other eligible ‘‘CDC’’ term noted by the above entities are not true ‘‘end beneficiaries’’ activities.’’ The commenter recommends commenter could create confusion with as the commenters argue (that term that this approach be reflected existing entities funded under other applies to the persons served by the throughout the regulations, including Federal programs. Therefore, to reduce activities), they are not strictly national objective requirements, the confusion, the term ‘‘community-based intermediaries either. Thus, the economic development guidelines, and development organization (CBDO)’’ is Department has determined that such Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations 1927 eligible entities carrying out qualified Issue. One commenter recommended this final rule to permit consideration of activities under this section will no that HUD provide a definition for the both institutional board members and longer be considered as subrecipients term ‘‘particular attention’’ as it is used business owners, but only to the extent under the CDBG program. In this final in the new § 570.204(c)(1)(ii) regarding that the entities that they represent are rule, § 570.500(c) has been amended, in addressing the needs of low- and both located in and serve the CBDO’s part, to reflect this change. moderate-income persons. (1 national geographic area of operation. In regard Issue. Two commenters addressed the association) to the comment about permitting the general jurisdictional limitations for Response. The ‘‘particular attention’’ presumption of low- and moderate- organizations qualifying under this language as used in the above-noted income residents status under this section as proposed at § 570.204(c)(1)(i). section comes from those statutes that section, it is noted that the One of these, a national association, have been referenced for several years in presumptions at Section 105(c)(4) of the recommended that these regulations the CDBG regulations at § 570.204(c)(3) HCD Act, as added by Section 806(e) of mirror the Community Housing defining local development the 1992 Act, apply only to activities Development Organization (CHDO) corporations. The Department is not qualifying under the national objective requirements which permit an entity to aware of any significant problems with of job creation or retention for low- and operate in a rural ‘‘multi-county area conflicting interpretations of this moderate-income persons. Permitting (but not a whole state).’’ The other language, which is the commenter’s them to be used in determining commenter, a local government agency, stated concern. Thus, the rule has not compliance with the board structure recommended that the proposed been modified to include a formal requirements of this section would regulatory language be amended to read: definition of this term. In general, HUD include too broad of a spectrum of ‘‘. . . primarily within an identified would expect the charter, bylaws, etc., organizations to qualify under this geographic area of operation within the of the CBDO to reflect a commitment to provision. Thus, the Department has jurisdiction of the recipient. . . .’’ The meeting the needs of low- and rejected this comment. commenter argues that this would moderate-income persons. Issue. Three commenters addressed permit an organization with a successful Issue. In reference to the new the proposed § 570.204(c)(2) that track record to share its experience by § 570.204(c)(1)(iii), another commenter provided further ways in which an consulting or entering into a joint expressed ‘‘serious reservations’’ about organization might qualify as an eligible venture to support a project in other allowing for-profit organizations to CBDO under this section. These areas. (1 national association and 1 local qualify under this section of the commenters requested clarification of government agency) regulations. (1 development when this paragraph would apply, and Response. HUD has determined not to organization) two of the commenters specifically accept the ‘‘multi-county’’ Response. The statute at Section requested that HUD expand the recommendation because maintaining 105(a)(15) and the CDBG regulations at jurisdictional restrictions imposed on local community control of a § 570.204 have long permitted for-profit CHDOs, as designated by the HOME organization qualifying under § 570.204 organizations under this section with program, qualifying under this is crucial. Also, it should be noted that the inclusion of Small Business paragraph. (1 national association, 1 truly rural organizations would not be Investment Companies. The rule now development organization, and 1 HUD subject to these regulatory restrictions includes only a clearer statement of Field staff person) anyway. This is because Section 807(f) what already is permitted. The rule does Response. HUD’s intent in the of the 1992 Act expanded the list of provide a stipulation that any monetary proposed § 570.204(c)(2) was to give organizations eligible to carry out profits to a CBDO’s shareholders or organizations that did not meet the activities in nonentitlement areas under members must be only incidental to its general qualification requirements of Section 105(a)(15) of the Housing and operations. (c)(1) certain additional ways of Community Development Act of 1974, Issue. Four commenters addressed the qualifying as a CBDO under this section as amended. ‘‘Nonprofit organizations board structure requirements under of the CDBG regulations. It was not serving the development needs of the § 570.204(c)(1)(iv). Concerns raised intended that qualifying organizations communities of nonentitlement areas’’ included an objection to excluding would have to meet both (c) (1) and (2); now qualify under Section 105(a)(15) of organizations composed solely of an entity can qualify under either the Act. Since the State CDBG program institutional members from qualifying standard. HUD has revised the regulations contain no listing of eligible under this section and comments both introductory language to § 570.204(c)(2) activities, no regulatory language is for and against the inclusion of business in this final rule to clarify that intent. needed to implement that change. owners in defining permitted board An understanding of this approach is In regard to the second comment structures. One of the commenters also critical in assessing the requirements above regarding jurisdictional recommended that HUD permit the low- that a CHDO under the HOME program limitations, the Department agrees with and moderate-income presumptions must meet in order to qualify under the commenter’s reasoning and has added by the 1992 Act to be used under § 570.204 of the CDBG Entitlement revised § 570.204(c)(1)(i) to reflect the this section in determining whether a regulations. A CHDO qualifying under recommended language in this final sufficient percentage of board members the HOME program may or may not rule. In this regard, however, HUD does are low- and moderate-income persons. meet the general qualification note that it interprets the term (1 local government agency, 2 requirements for a CBDO under the ‘‘primarily’’ as it is used in this section development organizations, and 1 CDBG Entitlement program, as to mean that most of the organization’s national association) delineated at § 570.204(c)(1) of this final projects are located, funds are used, and Response. HUD has determined that rule. If a CHDO meets those staff time is expended on a project or all of the comments regarding the requirements, it may have an area of projects within the identified inclusion of institutions and business operation as large as the jurisdiction of geographic area of operation and that owners on the boards of qualifying the recipient, just as any other qualified outside projects are largely incidental to CBDOs have some merit. Thus, the CBDO. The more restrictive the organization’s activities and Department has refined the jurisdictional limits at purposes. requirements at § 570.204(c)(1)(iv) in § 570.204(c)(2)(iii) are only applicable to 1928 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations CHDOs that cannot meet the general loans, directly or through a subsidiary unnecessary administrative burdens for CDBG Entitlement qualification or affiliate; (iv) maintains accountability such projects. requirements for CBDOs. An example of to residents of its investment area or Issue. Specifically in regard to such an entity would be a CHDO that targeted population; and (v) is not a qualified entities in nonentitlement meets only the minimum HOME government agency or instrumentality. areas, one commenter (a state agency) percentage requirement for low- and An ‘‘investment area’’ is defined as an took issue with the discussion of such moderate-income persons on its board area that either (i) meets objective entities contained in the preamble to the (33 percent) and cannot show that it has criteria of economic distress developed proposed rule. The state agency sufficient types of representatives on by the Fund and has significant unmet disagreed with HUD’s statutory that board to meet the 51 percent needs for loans or equity investments; or interpretation that the term ‘‘nonprofit standard delineated in (ii) is located in a designated organizations serving the development § 570.204(c)(1)(iv). Empowerment Zone or Enterprise needs of communities in non- In assessing the comments on this Community. These CDFI criteria are entitlement areas’’ excludes units of issue, HUD has determined that it is similar to those now set forth in general local government. This appropriate to provide organizations § 570.204(c). interpretation, according to the state, with an additional alternative for It should again be noted that the would restrict the use of CDBG funds by qualifying as a CBDO under this section requirements of § 570.204 only apply to certain State-sanctioned local entities. of the CDBG regulations. Thus, in this the qualification of CBDOs serving Response. The Department has chosen final rule, HUD has added a new Entitlement jurisdictions under the not to accept this comment. The § 570.204(c)(3) under which an CDBG program. As discussed earlier in preamble to the proposed rule noted organization that does not qualify under this preamble, Section 807(f) of the 1992 that a public nonprofit organization either § 570.204(c) (1) or (2) may also be Act expanded the list of organizations which meets Internal Revenue Service determined to qualify as an eligible eligible to carry out activities in requirements for nonprofit status may entity under this section if the grantee nonentitlement areas under Section qualify under Section 105(a)(15) of the demonstrates to the satisfaction of HUD, 105(a)(15) of the HCD Act. Any Act. The Department does not define a through the provision of information nonprofit organization serving the number of terms (‘‘neighborhood regarding the organization’s charter and development needs of nonentitlement revitalization project’’, ‘‘community by-laws, that the organization is areas now qualifies under Section economic development project’’, sufficiently similar in purpose, function, 105(a)(15) of the Act for the State CDBG ‘‘energy conservation project’’, ‘‘carrying and scope to those entities qualifying program. out an activity’’) which are significant to under the above-referenced paragraphs. Issue. One commenter also the discussion of CBDOs above, in order The Department intends to have this recommended that HUD allow a limited to give States maximum flexibility to determination made at the HUD Field partnership in which the managing implement Section 105(a)(15) within the Office level. general partner is an eligible CBDO to context of their particular situations. Also in this regard, it should be noted qualify under § 570.204. The commenter National Objective Standards for Low- that HUD expects that many Community argues that the use of low-income tax and Moderate-Income Area Benefit Development Financial Institutions credits (LITCs) necessitates a limited Activities meeting the criteria in Title I, Subtitle partnership structure and that adding A of the Riegle Community the limited partnership itself as a Issue. A total of seven commenters Development and Regulatory qualifying entity would remove the addressed the proposed revisions to Improvement Act of 1994 (P. L. 103– necessity of having two levels of § 570.208(a)(1)(i) of the Entitlement 325, enacted September 23, 1994) will contracts—one between the grantee and regulations and § 570.483(b)(1)(i) of the qualify as CBDOs under § 570.204 of the the CBDO and one between that CBDO State regulations dealing with activities CDBG Entitlement regulations. The and the limited partnership. (1 local qualifying under the national objective above-referenced subtitle comprises the government agency) of benefiting low- and moderate-income Community Development Banking and Response. Limited partnerships are persons as area benefit activities. This Financial Institutions Act. The purpose single purpose entities which exist to revision relates specifically to a of this subtitle is to create a Community syndicate and develop one project. It proposed presumption of compliance Development Financial Institutions would be difficult to construe the for special economic development Fund to promote economic definitions of the statutorily eligible activities that may be carried out under revitalization and community entities to include limited partnerships. § 570.203 [Sections 105(a) (14) and (17) development through investment in, Thus, HUD has decided against of the HCD Act] by a community and assistance to, CDFIs, including expressly adding a provision to the development financial institution enhancing the liquidity of such regulations to include the type of (CDFI) meeting certain criteria. institutions. The CDFI Fund is to be a limited partnership described by the Concerns raised by the commenters wholly-owned Government corporation commenter. However, in cases in which included statements both for and against that will not be affiliated with any other the activities of an LIHTC limited the proposed presumption; requests for agency of the Federal Government. In partnership are controlled by a clarification of the types of entities that this final rule, HUD is adding to the § 570.204 qualified entity, usually by would qualify as CDFIs; and requests for Entitlement regulations a definition of that entity either serving as the general revisions to the ‘‘primarily residential’’ the term CDFI that references the above- partner of the limited partnership or and other aspects of the regulation. (1 noted new legislation. A CDFI is establishing such an entity as a local government agency, 1 state agency, generally defined at Section 103 of that subsidiary, the Department has accepted 1 development organization, 1 national Act as an entity that (i) has a primary that CDBG assistance may be provided association, 1 private citizen, and 2 mission of promoting community by the § 570.204 qualified entity to the HUD Field staff persons) development; (ii) serves an investment limited partnership for the purpose of Response. Supporting the area or a targeted population; (iii) carrying out all or part of the eligible development and growth of CDFIs can provides development services in project. The Department will continue be a critical component in the conjunction with equity investments or to explore ways of removing comprehensive revitalization of Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations 1929 distressed neighborhoods because they the Entitlement regulations, which is Two commenters expressed concern often address the financing needs of cross-referenced in § 570.208(a)(1)(v). about the requirement in these areas that are otherwise unmet. Under this provision, job creation or § 570.208(a)(1)(i) that limits the use of Existing CDFIs have demonstrated their retention activities undertaken in an the low- and moderate-income area ability to identify and respond to area pursuant to a HUD-approved benefit provision in general to only community needs for equity economic revitalization strategy those activities that serve areas that are investments, loans, and development developed in accordance with the ‘‘primarily residential.’’ It should be services. Thus, HUD has decided to authority of § 91.215(e) of the noted this requirement is a long- include a modified version of the Consolidated Plan final rule may be standing provision of the CDBG proposed presumption in this final rule. presumed to meet the low- and regulations and has served the program First, it is important to define the moderate-income area benefit criteria. It well. Thus, HUD has decided not to types of entities that may qualify as should be noted that in order to reduce make any changes to that requirement in CDFIs, as some of the commenters the potential for abuse of this provision, this final rule. One of the commenters, noted. As noted earlier in this preamble, HUD is limiting this form of area benefit a HUD Field staff person, recommended HUD is herein adding to the CDBG presumption to areas that are primarily regulations a definition of the term CDFI residential and contain a percentage of that a specific exception to the that references the Title I, Subtitle A of low- and moderate-income residents ‘‘primarily residential’’ requirement be the Riegle Community Development and that is no less than the percentage made for projects qualifying under Regulatory Improvement Act of 1994 (P. computed by HUD pursuant to § 570.204 of the Entitlement regulations L. 103–325, enacted September 23, § 570.208(a)(1)(ii) but in no event less [Section 105(a)(15) of the HCD Act] 1994). Secondly, HUD has determined than 51 percent. This means that the because the types of projects made that it is more appropriate to create required low- and moderate-income eligible under that section, including separate paragraphs in § 570.208 of the percentage for the area may be ‘‘neighborhood revitalization’’ and Entitlement regulations and § 570.483 of significantly higher than that which the ‘‘community economic development,’’ the State regulations to reflect the community generally uses for its area appear to lend themselves to an area- options that may be used for activities benefit activities. For those wide benefit test. Such a change has not carried out by certain CDFIs, rather than communities that generally use the been incorporated into this final rule. to simply include the proposed ‘‘exception criteria,’’ the required low- The activities most often carried out presumption in § 570.208(a)(1)(i) and and moderate-income percentage for under § 570.204 [Section 105(a)(15)] § 570.483(b)(1). Thus, in this final rule, this area benefit presumption is 51 involve the provision of housing, and HUD has added new paragraphs under percent. For a community that generally Section 105(c)(3) of the HCD Act the ‘‘additional criteria’’ section of the is required to meet 51 percent for specifically precludes the use of a low- national objective requirements at regular area benefit activities, the and moderate-income area benefit § 570.208(d)(6) of the Entitlement required low- and moderate-income national objective claim for such regulations and § 570.483(e)(4) of the percentage for this area benefit activities. However, in recognition of State regulations to list the options that presumption is that percentage level of the merit of the recommendation, HUD may be used for CDBG activities carried low- and moderate-income persons in has made certain changes in this final out by any CDFI whose charter limits its the last census block group in the rule to ease grantees’ burden in tracking investment area to a primarily community’s highest quartile of block low- and moderate-income national residential area consisting of at least 51 groups ranked in order of proportion of objective compliance for housing percent low- and moderate-income low- and moderate-income persons, as persons. The new paragraphs computed by HUD pursuant to activities in certain areas. These changes § 507.208(d)(6)(i) and § 570.483(e)(4)(i) § 570.208(a)(1)(ii). are more fully discussed later in this cross reference with additional new The Department will develop preamble. paragraphs § 570.208(a)(1)(v) and guidelines for determining when One commenter, a national § 570.483(b)(1)(iv) of the Entitlement grantees should be authorized to take association, expressed support for a and State regulations, respectively. advantage of the benefits of this supposed ‘‘revision to permit area Pursuant to these paragraphs, job economic revitalization strategy area benefit . . . without requiring that the creation or retention activities carried approach. These guidelines will be area be defined in terms of census tracts out by CDFIs meeting the above criteria distributed to both grantees and HUD or other official boundaries.’’ The may be presumed to meet the low- and Field Office staff. commenter appears to misunderstand moderate-income area benefit criteria. It In developing this approach for the current requirements. While the CDBG should be noted that with the area Entitlement program, the Department regulations do require entitlement became aware of significant issues benefit presumption applied in this grantees to use, to the greatest extent manner, the ‘‘exception criteria’’ for concerning how the economic feasible, the most recently available Entitlement communities cannot be revitalization strategy provision might decennial census data to support the used in this regard. Thus, in order to be applied to the State program. low- and moderate-income character of take advantage of the area benefit Therefore, the Department is not presumption, the CDFI’s investment implementing comparable regulation the area (and § 570.208(a)(1)(iv) has area must be at least 51 percent low- language for the State program at this been modified to incorporate a reference and moderate-income regardless of the time. In order to gain public comment, to the new § 570.208(a)(1)(v) in this community’s usual area benefit the economic revitalization strategy area regard), there is no current requirement threshold requirement. concept for states will be the subject of that the service area be defined along HUD has determined that it is also a future proposed rule. In the meantime, census tract or other official boundaries. appropriate to offer a similar benefit for the Department welcomes any The language included in this regard in job creation or retention activities comments or suggestions on how the § 570.208(a)(1)(i) (for Entitlements) and carried out under certain other economic revitalization strategy area § 570.483(b)(1) (for States) in the circumstances. Thus, in this final rule, approach might be applied to the State proposed rule is unchanged from HUD has also added § 570.208(d)(5) in CDBG program. current requirements. 1930 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations National Objective Compliance by income qualification criteria at least as ‘‘Cost per job’’ is not a primary HUD Microenterprise Assistance Activities restrictive as the CDBG definition of low consideration for any microenterprise Issue. A total of 15 commenters and moderate income. Also, to allow for assistance activities carried out under addressed the proposed new some continuity of service to a low- or the new separate microenterprise § 570.208(a)(2)(iii) to be added to the moderate-income person initially eligibility category. Such a calculation Entitlement regulations and the assisted under a microenterprise activity only comes into play in the public proposed new § 570.483(b)(2)(iv) to be who later may no longer meet the benefit standards (established elsewhere added to the State regulations to income guidelines after the in this final rule), which are not specifically provide the limited clientele microenterprise actually becomes statutorily applicable to activities national objective option for activities operational, the Department has carried out under the new qualifying under the new retained the option that permits, for microenterprise eligibility category. As microenterprise assistance eligibility purposes of meeting this national with any CDBG activity, however, category. Many of these commenters objective requirement, any person grantees have the flexibility to add specifically supported the provision, determined to be of low or moderate additional local criteria for activity and a few specifically opposed it. income to be presumed to continue to evaluation. Also, given the general Various commenters requested revisions qualify as such for up to a three-year requirement that all costs charged to the to or clarification of certain aspects of period before that person would have to CDBG program must be necessary and requalify. The language in this final rule reasonable for the proper and efficient the provision, most of which related to also clarifies that under this new limited administration of the program, HUD the manner in which jobs created by clientele provision, it is only owners of expects grantees to consider cost in such activities would be considered (2 microenterprises and persons relation to results for all activities and local government agencies, 3 state developing microenterprises that are to take steps to curb unusually high agencies, 4 national associations, 4 considered for national objective costs. development organizations, 1 private purposes and not employees of such citizen, and 1 HUD Field staff person). National Objective Compliance for Response. As discussed in the businesses who are not part-owners. While the new limited clientele Employment Support Activities preamble to the proposed rule, activities provision has been restricted to only As delineated earlier in this preamble carried out under the new low- and moderate-income persons, under the discussion of the new microenterprise eligibility category are activities qualifying under the new § 570.203(c) economic development not statutorily subject to the same low- microenterprise eligibility category that services provision in the Entitlement and moderate income national objective may serve non-low- and moderate- regulations, HUD is aware of various limitations as are generally applicable to income entrepreneurs may still be proposals under which certain entities special economic development activities assisted under the criteria for creation have indicated a willingness to train carried out under § 570.203 [and and/or retention of jobs principally for low- and moderate-income persons for Sections 105(a)(14) & (17) of the HCD low- and moderate-income persons. jobs and/or provide such persons with Act]. Thus, the low- and moderate- Under that national objective claim, all other employment opportunities, but income limited clientele method of employees of a microenterprise, these entities cannot agree that 51 meeting a national objective becomes an including the owner(s), are considered, percent of all assisted persons will be option for activities carried out under and a grantee can use the new low- or moderate-income. HUD believes the new microenterprise eligibility presumptions added by Section 806(e) that such proposals can often provide category. While many commenters of the 1992 Act for determining a valuable opportunities for employment specifically supported the subject person’s status as a low- or moderate- of low- and moderate-income persons proposed provision, a few commenters income person, as implemented in this and that a way should be found to specifically opposed it, particularly the final rule at § 570.208(a)(4) of the permit CDBG funds to assist such fact that only 51 percent of the owners Entitlement regulations and efforts. Thus, HUD is amending the low- of microenterprises and persons § 570.483(b)(4) of the State regulations. and moderate-income limited clientele developing them would be required to These presumptions cannot be used national objective requirements in this be low- and moderate-income persons. under the new limited clientele final rule [with a new § 570.208(a)(2)(iv) Thus, there would be the potential to provision because the 1992 Act added in the Entitlement regulations and a permit sizable numbers of non-low- and them as a new Section 105(c)(4) of the new § 570.483(b)(2)(v) in the State moderate-income persons to receive HCD Act which refers only to activities regulations] to authorize the use of financial assistance to develop a for- qualifying under the national objective CDBG funds for such activities that profit business. HUD has found these of job creation or retention for low- and provide training and/or other arguments to be compelling. Thus, the moderate-income persons. employment support services in limited Department has revised the subject One commenter asked that HUD circumstances. In order to qualify under limited clientele provision in this final specifically name examples of low- and this provision, CDBG assistance for the rule to restrict its use to qualify only moderate-income clientele. Certain such project must be limited to the provision those assisted owners of examples that apply to all activities of such training and/or supportive microenterprises and persons benefiting low- and moderate-income services; the percentage of the total developing microenterprises who are persons are included in § 570.506(b) of project cost borne by CDBG may not low- and moderate-income persons. the Entitlement regulations. exceed the percentage of all persons This change should not be a significant Two commenters requested assisted who are low or moderate issue for many of the microenterprise clarification as to whether HUD’s income. HUD has included this activities assisted under the CDBG proposing the limited clientele provision under the limited clientele program. Many such programs are provision for microenterprise assistance category rather than the job creation or designed to provide a means to help activities means that ‘‘cost per job’’ retention national objective category disadvantaged persons become more created will not be a primary because while such use of CDBG funds economically self-sufficient and are thus consideration in the evaluation of a solely for job training and/or supportive often targeted to persons who meet CDBG-funded microenterprise program. services can often be considered to Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations 1931 ‘‘involve employment’’ of low- and National Objective Standards for by meeting at least one of three moderate-income persons (reference Benefiting Low- and Moderate-Income delineated standards. Two of these Section 105(c)(1) of the Act), they Persons Through the Creation or standards relate to the poverty levels in cannot generally be considered to Retention of Jobs the various block groups comprising the census tract. The third standard directly ‘‘create’’ or ‘‘retain’’ jobs as Presumptions Added by 1992 Act those terms are used in the CDBG provides a grantee with the option of Issue. A total of 19 commenters regulations. requesting a determination from HUD addressed the general manner in which that a census tract meets the National Objective Standards for Low- HUD proposed to implement the ‘‘pervasive’’ test based on other and Moderate-Income Housing presumptions for determining an objectively determinable signs of Activities employee’s status as a low- and general distress. The Department moderate-income person that were intends to have the subject As noted under the low- and added to the HCD Act as a new Section determinations made at the HUD Field moderate-income area benefit 105(c)(4) by Section 806(e) of the 1992 Office level. discussion earlier in this preamble, Act for job creation and retention A conforming change to the new HUD has added in this final rule new activities. Of the total number of § 570.506(b)(7) of the Entitlement paragraphs § 570.208(d)(5) and (6) in the commenters, 11 clearly indicated their regulations regarding records that need Entitlement regulations and support for the proposed change, and to be maintained for the subject § 570.483(e)(4) in the State regulations. five stated their opposition. Most of the presumptions is also included in the These paragraphs lay out various support comments were based on the final rule. national objective options for activities reduced burden and ‘‘less intrusive’’ Issue. A total of 10 commenters undertaken in certain lower-income means for determining the low- and responded to HUD’s specific request for areas either by a CDFI or (in Entitlement moderate-income status of employees. comment as to whether tighter Most of the comments opposing the communities) pursuant to a HUD- presumption standards should be proposed change referenced the fact that established for census tracts that approved economic revitalization the proposed rule used only the comprise or include any part of a strategy. Paragraph (ii) of each of these minimum test for Empowerment Zone community’s central business district new sections refers to housing activities and Enterprise Community census tract. (CBD), as discussed in the carried out under these circumstances, Concern was particularly expressed that Empowerment Zone and Enterprise and they are cross referenced in there was no reference to the ‘‘pervasive Community legislation. Six of the § 570.208(a)(3) in the Entitlement poverty, unemployment, and general commenters wanted no special regulations and § 570.483(b)(3) in the distress’’ requirement for Empowerment standards for CBDs. Four of the State regulations in this final rule. As Zone and Enterprise Communities. (6 commenters argued that there must be noted earlier, Section 105(c)(3) of the local government agencies, 6 national tighter standards for such areas given Act limits the manner in which housing associations, 1 state agency, 3 the statutory eligibility criteria for activities may be considered to benefit development organizations, 2 private Empowerment Zones and Enterprise low- and moderate-income persons, and citizens, and 1 HUD Field staff person) Communities (4 local government it precludes the use of an area benefit Response. After a thorough review of agencies, 3 national associations, 1 claim for such activities. As an all of the above comments and the development organization, and 2 private alternative, the new provisions in this applicable statutory references at Title citizens). final rule permit all housing activities XIII, Chapter I, Subchapter C, Part I of Response. After a thorough review of carried out under the delineated limited the Omnibus Budget Reconciliation Act all of the above comments and the circumstances to be grouped together of 1993 regarding the eligibility criteria applicable statutory references, HUD for Empowerment Zones and Enterprise has determined that tighter presumption and considered as a single structure for Communities, HUD has determined that standards must be established for CBDs. purposes of complying with the low- the presumptions added by the 1992 Act The statutory arguments are compelling. and moderate-income housing national should be implemented in a more Thus, in the new paragraph objective requirements. (For example, a stringent manner than was set forth in § 570.208(a)(4)(v) of the Entitlement grantee providing rehabilitation the proposed rule. The Department regulations and a new paragraph assistance to 10 single-family housing particularly agrees with those § 570.483(b)(4)(v) of the State units in such an area could classify all commenters who noted that the regulations added by this final rule, 10 units as meeting the low- and ‘‘pervasive poverty, unemployment, and HUD has included language similar to moderate-income benefit national general distress’’ eligibility requirement that which appears in the objective if at least six of the units were for Empowerment Zone and Enterprise Empowerment Zone and Enterprise occupied by low- and moderate-income Communities should be reflected in the Community regulations regarding this persons.) For the calculation of the implementation of the subject low- and issue, establishing a 30 percent poverty overall low- and moderate-income moderate-income presumptions for job standard for any census tract that benefit level of a grantee’s CDBG creation and retention activities under includes any portion of a CBD (as that program, such housing is still subject to the CDBG program. Thus, a new term is used in the most recent Census the limitation on benefit to low- and paragraph § 570.208(a)(4)(v) of the of Retail Trade). moderate-income persons relative to Entitlement regulations and a new Issue. Two commenters recommended activity costs, pursuant to paragraph § 570.483(b)(4)(v) of the State that HUD revise the proposed rule § 570.200(a)(3)(iv) of the Entitlement regulations have been added to define language to include census tracts that regulations and § 570.484(b)(4) of the the requirements a census tract (or block qualify for Empowerment Zone or State regulations. numbering area) must meet in order to Enterprise Community eligibility under qualify for the presumptions added by that program’s special rules relating to the 1992 Act. Under these provisions, a the determination of poverty rates for census tract must, in part, demonstrate census tracts with small populations, pervasive poverty and general distress particularly those tracts that are more 1932 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations than 75 percent zoned for commercial or must be used in determining these establishing only a ‘‘shell’’ office to industrial use (1 local government presumptions. In regard to the make use of the location presumption agency and 1 development presumption that is determined by the while the actual activity being assisted organization). tract meeting what Section 105(c)(4) is in fact being carried out elsewhere. Response. HUD has determined that it calls ‘‘Federal enterprise zone eligibility Assistance to legitimate ‘‘branch is not appropriate to revise the criteria,’’ it is noted that the offices’’ is not restricted under the regulations implementing the CDBG Empowerment Zone/Enterprise regulatory language. As a second presumptions to include such tracts in Community legislation requires poverty example, the commenter states that a general. While the Empowerment Zone/ rates to be determined using the most ‘‘job training center or small business Enterprise Community legislation does recent decennial census data available. assistance office’’ should be able to use permit these tracts to be considered as Thus, this requirement is carried over the presumption even though such a passing the minimum poverty tests, this into a new paragraph § 570.208(a)(4)(v) facility ‘‘helps people who do not yet is done mainly in the context of of the Entitlement regulations and a new have businesses nor specific ‘jobs under qualifying the tract as part of an overall paragraph § 570.483(b)(4)(v) of the State consideration’.’’ It is not clear how this area to be designated. Because the CDBG regulations added in this final rule to second example would be able to use presumptions apply only on an implement the related CDBG the presumption given the statutory individual census tract basis, the presumption. The other CDBG language at Section 105(c)(4). Based on Department has determined that presumption, which is based on the that provision, the new presumptions including such tracts without limitation low- and moderate-income character of can only be used for activities qualifying would unduly broaden the scope of the the census tract in which an employee under the national objective of job subject presumptions. However, it is resides, does not carry with it the creation or retention for low- and recognized that many federally specific requirement that the most moderate-income persons. Job training designated Empowerment Zones and recent decennial census data available centers or business assistance offices Enterprise Communities could include must be used. Thus, while HUD expects such as those which appear to be such census tracts. Thus, the new grantees to follow the general CDBG rule described in the commenter’s second paragraph § 570.208(a)(4)(v) of the of using such census data to the fullest example generally would not qualify Entitlement regulations and a new extent feasible, it would be possible for under that national objective and would paragraph § 570.483(b)(4)(v) of the State a grantee to conduct a survey to support thus not be able to use the presumption. regulations added in this final rule to a census tract’s qualification for that Issue. Two commenters raised implement the CDBG presumptions presumption. However, given the questions about how the subject permit any census tract that is part of a statutory ‘‘census tract’’ language noted presumptions would be implemented. federally designated Empowerment above, the area for which such a survey The first question relates to whether the Zone or Enterprise Community to would be undertaken must coincide presumptions based on an employee’s qualify for the CDBG presumption with the census tract boundary. It is residence could be used together with regardless of whether it meets the other further noted that this latter the traditional way of documenting an general criteria delineated in the presumption only applies to a census employee as a low- or moderate-income regulation. tract in which an employee resides and person in order to meet the overall 51 Issue. Several commenters raised not to the location of the assisted percent low- and moderate-income other concerns that relate to the requirement for jobs created or retained economic development project because statutory bases for the subject by a particular assisted business. One of of the statutory language in Section presumptions of a person’s low- and the commenters also asked what 105(c)(4). moderate-income status for CDBG documentation HUD will require to activities carried out under the national In expressing concern over the verify that jobs are created when the objective of job creation or retention. possible interpretation of the terms presumption on the basis of the location Issues raised included: concerns ‘‘assisted business’’ and ‘‘job under of the business is used. (1 state agency regarding the use of census tract data consideration,’’ as used in the and 1 private citizen) instead of block group or regulations implementing the broader Response. In regard to the first ‘‘neighborhood’’ data; a presumption, one commenter gave two question, it is entirely permissible for a recommendation to permit communities examples. First, the commenter states grantee, in a single activity, to combine to use data obtained through a survey; that assistance to a ‘‘branch office’’ counting employees presumed to be questions as to why one of the located in a qualified tract should be low- and moderate-income persons on presumptions only applied to the able to use the presumption resulting the basis of their residence with those residence of the employee while the from ‘‘Federal enterprise zone eligibility employees documented as being such other applied to either the employee’s criteria’’ even if the business’ principal persons under more traditional means. residence or the location of the assisted office is located elsewhere. This is Any concerns that this could possibly business; and concerns about the entirely consistent with the language lead to the company and/or the grantee interpretation of the terms ‘‘assisted included in the new paragraph being accused of ‘‘singling out certain business’’ and ‘‘job under § 570.208(a)(4)(iv) of the Entitlement individuals’’ for requests for income consideration’’ as used in the proposed regulations and the new paragraph information (as one of the commenters rule, as opposed to the term ‘‘assisted § 570.483(b)(4)(iv) of the State states), is as unfounded as the ‘‘privacy’’ activity’’ as used in the Act (4 national regulations. In using the term ‘‘assisted concerns certain persons have raised for associations and 1 private citizen). business’’ in those portions of the rule, several years in discussions of this Response. Section 105(c)(4) of the HUD does not intend to imply that the section of the CDBG regulations. In Act, as added by Section 806(e) of the business’ main office or corporate regard to the second question, a grantee 1992 Act, which expressly authorizes headquarters must be located in a qualifying a business based on its the subject low- and moderate-income qualified tract in order to use the location must still obtain sufficient presumptions for job creation and presumption. The regulatory language is documentation to demonstrate that jobs retention activities, specifically refers to designed to provide sufficient are actually created or retained by the ‘‘census tracts.’’ Thus, overall tract data restrictions to prohibit businesses from activity. This documentation would be Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations 1933 similar to that which the grantee burdensome. The Department believes it requirements regarding evaluating and currently receives for such activities, would be cumbersome for HUD staff to selecting economic development with the exception that any employee attempt to identify and prorate projects effectively replace the income information would be omitted. construction costs associated with ‘‘appropriate’’ determinations Issue. Two commenters recommended current vs. future capacity needs; this previously required. The Guidelines for that the final rule contain language could place HUD staff in the role of Evaluating Project Costs and Financial which would make it easy for low- and second-guessing grantees’ engineering Requirements are not applicable to moderate-income people to challenge an reports. public improvement projects; a grantee ‘‘unwarranted presumption.’’ They Issue. Two commenters requested that may choose to develop guidelines for recommend that HUD reiterate the projected, rather than actual, job evaluating public improvement projects regulatory ‘‘substantial evidence to the creation/retention be compared to the if it wishes. The Department has chosen contrary’’ language in this section of the $10,000 CDBG cost-per-job threshold. to apply the public Benefit standards regulations and add wording that would Because grantees cannot be completely only to those public improvement encourage residents to submit certain how many jobs will actually be projects (undertaken to create or retain challenges and direct HUD to quickly created, there may be instances where jobs) for which the projected cost per respond to such challenges. (1 national the projected cost per job is less than job is $10,000 or more. association and 1 development $10,000, but the actual cost per job is Issue. HUD should restrict the use of organization) over $10,000. CDBG funds in situations where Response. HUD cannot accommodate Response. The Department concurs economic development infrastructure this recommendation. The subject with these comments. The Department activities cross privately-owned presumptions of a person’s low- and is concerned that grantees might property. This would be construed as a moderate-income status for job creation intentionally overstate the projected potential windfall to the private or retention activities is specifically number of jobs so as to take advantage property owner or company. authorized by statute. It does not matter of the less stringent requirements for Response. The Department has chosen if the presumption appears projects whose per-job cost is less than not to accept this recommendation. ‘‘unwarranted’’ in a specific case; if the $10,000. However, it is impossible for HUD is unaware of any evidence that activity meets the requirements job creation or retention estimates to be this is a significant problem in the delineated in Section 105(c)(4) of the 100% accurate. As the proposed CDBG program. As the commenter Act, it is entitled to use the regulations are worded, a grantee could acknowledges, states and localities have presumption. There is a distinct be retroactively held responsible for legal mechanisms to govern hookup difference between these presumptions tracking a wider universe of businesses access to public utilities. and those that are HUD has otherwise for job creation/retention if the actual Issue. One commenter noted that the established only on a regulatory basis cost per job was over $10,000, even proposed Entitlement and State under the limited clientele standards. though the projected cost per job was regulation language differs regarding under $10,000. In the final regulations, businesses with which agreements must Job Creation or Retention by Public references to actual vs. projected job be signed; the commenter prefers the Infrastructure Improvements creation/retention have been eliminated. language in the proposed State CDBG The Department proposed another Instead, the regulations refer to jobs ‘‘to regulation. amendment to § 570.208(a)(4) of the be created or retained.’’ Response. The Department has CDBG Entitlement regulations and In the regulations on public benefit revised the relevant sections [which are § 570.483(b)(4) of the State regulations documentation, the Department now § 570.483(b)(4)(vi)(F) and concerning the requirements for indicates that, where a grantee shows a § 570.208(a)(4)(vi)(F) to provide greater demonstrating national objective pattern of substantial variation between consistency between the two compliance by CDBG-assisted projected and actual benefits received, a paragraphs. In revamping this section of infrastructure improvements. Eight grantee will be expected to take actions the regulations, the Department has entities commented on this proposed to improve the accuracy of its eliminated references to agreements change: 4 states, 2 national associations, projections. The Department has not with businesses. one HUD staff person and one citizen. included comparable language in this Issue. Two states urged the Nearly all commenters supported HUD’s section. If, for purposes of this section, Department to delete portions of the efforts to provide more flexibility in this a grantee’s projections show a pattern of proposed regulations: the requirement area. Several comments suggested substantial variation from actual job for conducting an assessment of specific revisions to HUD’s proposal. creation/retention, the Department will businesses in the service area of the Issue. Communities often over-design expect grantees to take steps to improve public facility or improvement; the public facilities to accommodate future the accuracy of their projections. requirement that job creation should be growth; this frequently makes sense for Issue. One commenter recommended tracked for each business until the the community. However, CDBG funds that, rather than requiring grantees to business’ job creation/retention should only be used to pay costs conduct an assessment of businesses in obligation is fulfilled; and, where the associated with the capacity needed by the service area of the public facility or cost per job is $10,000 or more, applying presently-identified businesses, or else improvement, the rule should require an the time period for tracking businesses the grantee should track future job ‘‘appropriate’’ review for public to just the business(es) with signed creation for three years. improvement projects undertaken to agreements for which the improvement Response. The Department has chosen create or retain jobs. is undertaken. not to accept this suggestion. As noted Response. The Department does not Response. Based on relevant statutory in the preamble to the proposed rule, accept this comment, for two reasons. language in the Housing and the Department proposed shortening the This suggestion confuses requirements Community Development Act, the three-year tracking period to one year for meeting a national objective with Department disagrees with the because it has received numerous requirements for demonstrating the implication that documentation comments from states that the existing eligibility of an activity. Equally regarding national objectives should State CDBG regulations are unduly significant is that the new statutory cease once the originally-projected 1934 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations number of jobs has been created. overhead and loans are made training. The commenters argues that Furthermore, these recommendations exclusively from non-CDBG funds. The HUD should not ‘‘presume’’ that low- would eliminate the distinction in commenter recommended that HUD and moderate-income persons have no requirements between activities in change the phrase ‘‘. . . jobs created by education because many such persons which the cost per job is $10,000 or all the businesses receiving loans during may have a community college or more and those in which the cost per each program year’’ to ‘‘. . . jobs vocational technical education and still job is under $10,000. Based on the data projected by all the businesses receiving be underemployed or poorly paid from the State CDBG program, the . . .’’ This recommendation is based on because of various factors. The $10,000 per job created/retained the claim that during the early years of commenter also notes that in certain threshold appears to be significantly a program’s operation, ‘‘few jobs may cases, the jobs to be created by an above the median costs for public actually have been created, even though assisted activity will not actually be facility/improvement projects of this many loans have been ‘committed.’ ’’ (1 created for a year or more, which would sort; few projects should thus be subject private citizen) provide time for necessary training to the stricter requirements. The Response. The commenter appears to before the business completes its hiring Department believes that stricter misunderstand the subject provision. process. (1 national association) requirements are appropriate for The regulation does not measure the Response. The reference requirement projects costing $10,000 per job or more, number of jobs actually created in each is important to ensure that no special because less public benefit is being program year. Instead, it measures all skill or education requirements form a obtained per CDBG dollar expended. the jobs created as a result of the CDBG barrier to low- and moderate-income However, the Department has taken assistance by all the businesses that persons being considered for the jobs seriously the underlying desire for receive loans in each program year, under the ‘‘available to’’ option under simplicity, and as a result has worked regardless of when the jobs are actually § 570.208(a)(4). If a community knows to streamline this section of the created. that there is a pool of more skilled low- regulations. Eliminated in the final In developing this final rule, HUD has and moderate-income persons available, regulations is the requirement that the pursued additional job aggregation it can always choose to demonstrate recipient undertake an assessment of all options in consideration of the many compliance with the national objective businesses in the service area of the comments received in support of less requirement under the ‘‘held by’’ option burdensome job tracking. Also, in public facility/improvement to where skill level is not considered. The considering the comments on the public determine which businesses may create/ new low- and moderate-income benefit standards, HUD has determined retain jobs as a result of the public presumptions should also make it easier that it is appropriate to offer certain facility/improvement. Grantees are for grantees to use the ‘‘held by’’ option. flexibility for activities that serve cautioned, however, that should the In regard to the issue of the timing of the important national interests. Thus, in CDBG per-job cost of the project be training versus hiring, the Department this final rule, HUD is delineating three $10,000 or more, the recipient must still wants to ensure that any training aggregate jobs created/retained by all additional instances under which jobs claimed under the new ‘‘economic businesses which locate or expand in created or retained may be aggregated development services’’ provision at the service area of the public for purposes of determining compliance § 570.203(c) of the Entitlement improvement/facility. Grantees will with national objective requirements. regulations and § 570.482(d) of the State thus need some mechanism for Aggregation of jobs is now also regulations is limited to persons whom identifying such businesses. permitted for (1) activities providing Issue. One state requested that the technical assistance to for-profit the respective business has actually proposed public improvement-job businesses; (2) activities meeting the agreed to employ and not to include creation requirements for the State criteria in the public benefit standards training just to provide a general ‘‘pool’’ program be made retroactively at § 570.209(b)(2)(v) of the Entitlement of persons from which a business may applicable to projects funded by states regulations and § 570.482(f)(3)(v) of the possibly hire. This is important in after December 9, 1992. That was the State regulations; and (3) for activities distinguishing ‘‘economic development effective date of the current State CDBG carried out by a CDFI. To reflect this, services’’ that qualify as part of the regulations, in which the existing § 570.208(a)(4)(vi) of the Entitlement ‘‘delivery costs’’ of a related economic requirements concerning public regulations and § 570.483(b)(4)(vi) of the development project from more generic improvement-job creation activities State regulations have been amended. In public service activities that qualify were first effected. this regard, it should also be noted new under § 570.201(e) of the Entitlement Response. A recent U.S. Supreme paragraphs § 570.208(d)(7) and regulations. It is noted that under this Court decision casts uncertainty on the § 570.483(e)(5), added to the Entitlement final rule, activities qualifying under constitutionality of retroactive and State regulations respectively, either of these eligibility categories can rulemaking. The Department feels an require that for an activity that may also take advantage of the new low- and attempt to provide some retroactive meet the standards for more than one of moderate-income limited clientele flexibility through the rule-making these options, the grantee may elect option at § 570.208(a)(2)(iv) of the process could be legally problematic. only one option under which to qualify Entitlement regulations and States may, as always, request a waiver the activity. No ‘‘double counting’’ is § 570.483(b)(2)(v) of the State of the existing regulations for individual permitted. regulations in certain circumstances. cases. Issue. One commenter raised a Request for Comment on Certain Other Other Job Creation/Retention Issues concern regarding the requirement Job Creation/Retention Issues Not Issue. One commenter raised a regarding the criteria now at Contained in the Proposed Rule concern regarding the provision at the § 570.208(a)(4)(iii) and § 570.483(b)(4) In addition to a discussion of specific new § 570.208(a)(4)(vi)(B) of the making jobs ‘‘available to’’ low- and regulatory revisions, the preamble to the Entitlement regulations which permits moderate-income persons, particularly May 31, 1994, proposed rule also the aggregation of jobs for loan funds the ‘‘no special skills’’ requirement contained a specific request for public administered by a subrecipient where unless the business agrees to hire comment on certain other issues which CDBG pays only for the staff and unqualified people and then provide HUD is examining in an attempt to Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations 1935 determine whether further changes slum/blight national objective. As a part of the regulations themselves, should be proposed regarding the result, the Department has decided to commenters felt that the guidelines national objective standards for propose additions to the slum/blight would be more easily overlooked or benefiting low- and moderate-income criteria to accommodate environmental forgotten about in future years. persons through the creation or contamination, and to revise its initially Response. These issues were carefully retention of jobs. These issues included: proposed criteria regarding pervasive considered by the Department in (1) whether any further low- and economic disinvestment. The existing developing the proposed rule. The rule moderate-income presumptions should regulations would be significantly stated that the use of the underwriting be made for job creation or retention restructured to accommodate these guidelines proposed at § 570.209(a) and activities; (2) whether any modification changes. § 570.482(e) is not mandatory. To should be made to the CDBG job The Department has decided to further demonstrate this point, the retention requirement to document that publish a new set of proposed specific elements of the underwriting jobs claimed as being retained would regulations dealing with the slum/blight guidelines were not included within the actually be lost without the CDBG national objectives. The comments text of the proposed rule itself. Instead, assistance; and (3) whether any received by the Department on slum/ they were proposed to be published in modification should be made to the blight issues will be discussed in the a concurrent but separate Federal requirement in job retention activities preamble to those new proposed Register notice. Outweighing the that, except for some allowance for jobs regulations. conmmenters’ concerns is the fact that, while Congress directed that the that may become available through Guidelines for Evaluating and Selecting guidelines be published by regulation, turnover, the low- and moderate-income Economic Development Activities for the use of the underwriting guidelines is standards are applied at the time the CDBG Assistance assistance is provided, which is while not mandatory. To publish non-binding the employees still have the income The proposed rule contained language guidance within a set of otherwise from the jobs that they are subject to implementing section 806(a) of the 1992 binding regulations would be lose. (Please refer to the preamble to the Act at a proposed new § 570.209 in the contradictory and confusing. In proposed rule published in the Federal Entitlement regulations and additions to disseminating information on the final Register on May 31, 1994, for a more § 570.482 in the State regulations. The regulations, the Department will take complete discussion of these issues.) proposed regulations described steps to include the guidelines along A sizable amount of public comment guidelines for evaluating certain with the final regulations, to help in response to these issues was received. economic development activities ensure that the Federal Register notice Many of the comments offered assisted with CDBG funds. These does not get overlooked. interesting suggestions, and HUD will guidelines consist of two parts: Issue. Three widely divergent be publishing an additional proposed guidelines and objectives for evaluating comments were received regarding the rule in response to some of the project costs and financial requirements, applicability of the underwriting recommendations provided. Such items the use of which are not mandatory, and guidelines to microenterprise and small must go through the proposed public benefit standards, which are business assistance programs. One rulemaking process in order to provide mandatory. commenter argued that ‘‘appropriate the general public with an opportunity Numerous comments were received determinations’’ should not be required to comment on them before they would on various aspects of this section of the on a loan-by-loan basis for be published for effect. The public proposed regulations. The comments microenterprise activities, but could be comments received on these issues can be categorized into groups of issues, addressed by overall program design. based on the request contained in the and will be discussed by category of Another argued that the underwriting preamble to the May 31, 1994, proposed issue. guidelines should apply to microenterprise assistance activities, so rule will be discussed fully in the Underwriting Guidelines—General preamble to the new proposed rule. that communities will have a stronger The proposed rule described HUD’s regulatory framework upon which to National Objective Standards for Guidelines and Objectives for develop their own guidelines for Addressing Slums or Blight on an Area Evaluating Project Costs and Financial evaluating microenterprise loans. A Basis Requirements (the ‘‘underwriting third commenter stated that small The proposed rule included a revision guidelines’’); the proposed guidelines businesses which do not qualify as to § 570.208(b)(1)(ii) of the Entitlement themselves were published as a separate microenterprises should be given some regulations and § 570.483(c)(1)(ii) of the Federal Register notice on the same relief from the underwriting criteria and State regulations. This proposal would day. Sixteen commenters commented on financial documentation requirements. allow designated slum/blighted areas to HUD’s proposed Guidelines and Response. The 1992 Act specifies that qualify under the slum/blight national Objectives for Evaluating Project Costs HUD is to develop guidelines for objective if the area exhibited pervasive and Financial Requirements: 5 local evaluating and selecting economic economic disinvestment in the form of governments, 4 national associations, 2 development activities funded under high turnover or vacancy rates in States, 3 HUD Field Office staffs, one sections 105(a) (14), (15) and (17) of the previously occupied commercial or citizen and one business development Act. Microenterprise assistance industrial buildings. entity. Four commenters expressed activities were made separately eligible In addition, the Department sought overall support for the approach under the new § 105(a)(23) of the 1992 comment on whether instances of proposed to be taken by the Department Act, and thus were not subjected to the environmental contamination should be in implementing the requirements of the underwriting guidelines by Congress. considered as evidence of blighting 1992 Act. The Department feels it is inappropriate conditions. No specific regulatory Issue. Three commenters stated that to extend coverage of the underwriting language was proposed in that area, the underwriting guidelines themselves guidelines to programs which provide however. should be included in the text of the assistance exclusively to The Department received valuable regulations, rather than in a separate microenterprises and which are eligible input on both topics relating to the Federal Register notice. By not being under § 105(a)(23). Grantees may 1936 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations develop their own underwriting extent to which the recipient conducted extent to which underwriting was guidelines for the evaluation of prudent underwriting in determining performed in assessing what corrective microenterprise assistance programs. appropriate sanctions to be imposed on action is appropriate to resolve the However, if a grantee designs a program the recipient for such noncompliance. noncompliance. to provide assistance to both Commenters questioned the consistency Issue. One correspondent requested microenterprises and other small of this statement with statutory clarification or examples of what is businesses, the public benefit standards language, felt this represented a meant by the statement that guidelines and underwriting guidelines apply to ‘‘gotcha’’ mentality by HUD, and opened also apply to ‘‘activities carried out the entire program, and grantees will be the door to HUD ‘‘second-guessing’’ under the authority of § 570.204 that expected to evaluate each instance of grantees’ underwriting decisions. would otherwise be eligible under assistance individually. Regarding the Response. Commenters are correct in § 570.203.’’ third comment, both the proposed and noting that the Department is prohibited Response. The Department’s position the final regulations state that different from basing a determination of project is, and has been, that all activities levels of review and financial ineligibility on the failure of a project to involving assistance to a for-profit documentation are appropriate for meet the objectives of the underwriting business are subject to the same different sizes of projects and guidelines. The Department will not requirements (including the businesses; grantees are encouraged to monitor grantees’ projects for underwriting guidelines, the public develop guidelines which take into compliance with HUD’s underwriting benefit standards, and the previously- consideration the size of the business guidelines. The proposed underwriting required ‘‘appropriate determinations’’). being assisted. guidelines also state, however, that the Provision of CDBG assistance to a for- From the first of these comments, as Department expects that grantees will profit business through a non-profit well as from several comments engage in some form of underwriting of subrecipient does not exempt such an addressed elsewhere in this preamble, it projects, regardless of whether or not a activity from the underwriting is clear that the relationship between grantee adopts HUD’s guidelines. The guidelines or public benefit standards. the financial guidelines, the public intent of the preamble statement was In the final regulations, this principle is benefit standards and the ‘‘appropriate not to suggest that HUD would ‘‘second- clarified and illustrated with an determination’’ requirements (which the guess’’ local underwriting guidelines or example. Department has heretofore relied on) is decisions about specific projects Issue. Three commenters raised not understood. In the 1987 ‘‘Stokvis pursuant to them. When the Department questions about the treatment of non- Memo’’ and in the 1992 ‘‘Kondratas discovers cases of noncompliance with financial or indirect assistance to Memo’’, the Department outlined its other program requirements (such as businesses in the underwriting policy for implementing the statutory national objectives or eligibility), it has guidelines. Two commenters felt that by requirement that assistance to private flexibility to determine the appropriate not specifically addressing the level of for-profit entities must be ‘‘appropriate action to resolve the noncompliance. In underwriting documentation needed for to carry out an economic development cases of noncompliance with other technical assistance activities, the project’’. The Department believes that program requirements, the Department proposed regulations imply that the the new underwriting guidelines and reserves the right to examine whether same degree of analysis is required for public benefit standards, taken together, the grantee conducted any underwriting technical assistance to a business as for effectively comprise a methodology for on the activity in question. If a grantee direct financial assistance. Two determining that such assistance is performed no underwriting whatsoever commenters also urged the department appropriate, and supplant the (or purely perfunctory underwriting) on to accept yearly aggregation of technical previously-required ‘‘appropriate a project that fails, the Department may assistance activities for demonstrating determinations’’. look to see whether even rudimentary compliance with national objectives. It is important to note that the underwriting would have disclosed to Response. The Department concurs financial and public benefit standards the grantee that the project was likely to with the comments regarding technical cover a wider range of activities than fall into noncompliance. Similarly, the assistance activities. The underwriting did the ‘‘appropriate determinations’’, Department will also consider whether guidelines published today specifically including all economic development a grantee’s underwriting disclosed that mention that different levels of activities funded under sections 105(a) a project was likely to fail, but the underwriting documentation may be (14) and (15) of the Act. Grantees are grantee chose to fund the project appropriate for technical assistance encouraged to develop guidelines to anyway for reasons unrelated to activities, given the nature and dollar cover the evaluation and selection of underwriting decisions. value of assistance being provided to other types of economic development Issue. One HUD staff person inquired businesses. The Department has also activities, beyond those statutorily about the relationship between the added a provision to the national required. However, HUD will not public benefit standards and the objectives requirements for low- and evaluate or enforce locally-developed underwriting guidelines. The moderate-income benefit, to allow job guidelines covering economic commenter asked what HUD would do creation/retention to be aggregated for development activities other than those in a case where a grantee followed technical assistance activities. described in the regulations. established underwriting guidelines, yet Certain indirect forms of assistance to Issue. Three commenters expressed knowingly chose to fund a project business, such as land acquisition or apprehension about a statement which exceeded the public benefit certain public improvement projects, are contained in the preamble to the standards (particularly the individual not statutorily subject to the proposed regulations. The Department activity standards). underwriting guidelines. The noted that, in cases where an activity Response. Having complied with a Department believes that, while not receiving CDBG financial assistance grantee’s underwriting standards would mandatory, grantees should evaluate all fails to meet other applicable program not recuse this project from failure to forms of assistance to businesses, to requirements, such as the public benefit meet the regulatory requirements for ensure that the project represents an standards or the national objective public benefit. In such a situation, the appropriate use of the grantee’s funds. requirements, HUD will consider the Department may still consider the Grantees are encouraged to develop Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations 1937 underwriting guidelines which include the time period in which job creation/ values of assistance provided; the other economic development activities retention is measured for national standards focus too much on individual beyond those subject to the regulations. objectives documentation. activities, ignoring overall program Issue. Several comments were Response. In the final regulation, the outcomes; the standards focus too much received on the wording of several of Department has attempted to use more on aggregate benefits, ignoring the objectives in the guidelines. These precise wording. The term ‘‘obligated’’ individual activities. comments generally spring from the here has the same meaning as it does Response. As discussed in the commenters’ professional opinions on elsewhere in the CDBG program—a preamble to the proposed regulations, the desirable design features or formal commitment of funds to fund a the Department considered all of these outcomes of individual programs. specific activity, such as a signed issues in developing the proposed Response. Because the underwriting contract with a business, or written public benefit standards. More guidelines are not mandatory, the notification of loan approval. The term sophisticated measurement systems Department has chosen not to adopt ‘‘test’’ has been replaced with involve greater complexity, and may most of these suggestions. Commenters ‘‘standard’’; each numerical measure by increase the documentation burden on are encouraged to incorporate their which activities are judged grantees and/or reduce flexibility. The ideas into their local guidelines. (individually or in aggregate) is a Department strives to effect a system Public Benefit Standards standard. Use of the term ‘‘portfolio’’ which is flexible enough to encompass has been avoided in discussing the the great variety of individual programs HUD heard from 20 different aggregate standards. Use of the term and individual activities which exist commenters on the public benefit ‘‘criteria’’ is limited to describing the across the CDBG program, and yet standards (and how they would be ‘‘important national interests’’ activities ensures at least some modicum of applied) in the proposed regulations: 3 which may be excluded from the public benefit will be obtained from any local governments, 2 states, 8 national aggregate standards. given activity. The Department has associations, 2 development The comment regarding the made revisions to the public benefit organizations, one citizen and 4 HUD measurement period for public benefit standards in response to comments, but staff. Comments on public benefit fell vs. national objectives is correct. For has chosen not to radically change the into four categories of concern: the most covered activities designed to overall approach. overall approach and terminology used; create/retain jobs, each provision of Issue. Two commenters (including the individual activity standards; assistance to a business is judged one state) suggested that each activities providing insufficient public separately for whether it meets a community (or the state) be allowed to benefit; and the aggregate standards. national objective; each business is establish its own public benefit While numerous questions and discretely tracked for job creation/ standards; HUD could then monitor concerns were raised, individual retention until the business has fulfilled communities or states for compliance commenters also expressed general its jobs commitment. In contrast, public with their standards. support for various aspects of the benefit for any given business is judged Response. The Department believes proposed approach to public benefit: the at the time assistance is first obligated these suggestions are inconsistent with concept of aggregating public benefit; to the business; the levels of public the statute. The 1992 Act specified that the flexibility provided by multiple benefit determined at the time funds are HUD is to develop, by regulation, approaches to measuring public benefit; obligated are then aggregated for all guidelines to ensure that public benefit and the concept of allowing certain instances of assistance provided by a is appropriate relative to the amount of categories of activities to be excluded grantee through all covered activities. CDBG assistance provided. The from the aggregate dollar standards. (The period of time over which commenters’ approach could increase, It was also very clear that many activities are aggregated varies among not decrease, grantee complaints about commenters did not understand the the Entitlement, State, Insular and HUD- HUD ‘‘second guessing’’ local decisions. relationship among the different public Administered CDBG programs.) Thus, Individual Activity Standards benefit standards. Confusion was also for any given business, job creation/ expressed about the meaning of various retention is primarily measured Issue. Five commenters opined that terms used in the proposed regulations, prospectively for public benefit and the proposed $100,000-per-job which apparently added to confusion retrospectively for national objectives individual activity standard is much too over the relationships among the purposes. (However, this explanation high to ensure reasonable public benefit standards. To overcome this confusion, does not apply universally; as the for any given activity; various figures the Department has substantially regulations note, certain types of between $12,000 and $50,000 were rewritten and reorganized the final activities may be aggregated differently. suggested as replacements. On the other regulations sections on public benefit. In addition, grantees are to keep hand, one commenter expressed comparative documentation on the concern that the $100,000 standard Overall Approach and Terminology projected vs. actual public benefit from could preclude use of CDBG funds for Issue. Three different commenters projects.) massive real estate redevelopment asked for clarification of various terms Issue. A number of commenters projects or capital-intensive industrial such as ‘‘tests’’, ‘‘criteria’’, ‘‘portfolio’’ voiced various objections to the overall projects; other public benefits from such and ‘‘obligated’’. One asked what approach to public benefit: the proposed projects may well justify the constituted an ‘‘activity’’ for purposes of standards are arbitrary and simplistic, expenditure of CDBG funds even when aggregation: an individual loan? All and invite ‘‘second-guessing’’ of projects the cost per job is high. activity in one particular loan program by HUD; more study is needed in this Response. After weighing these run by a grantee? Would a grantee with area before specific standards are arguments, the Department has decided 10 different programs subject to the proposed; the standards focus too much to lower the individual activity per-job public benefit standards develop 10 on the cost per job and assume that standard to $50,000. This should still aggregate numbers, or one? Another more jobs per CDBG dollar is a more provide flexibility to undertake vitally asked for confirmation that the public important outcome than job quality; the important projects with high capital benefit measurement period differs from standards ignore present or future costs per job created or retained; 1938 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations grantees may request a waiver of handcuff the Department’s efforts to that grantees could satisfy the regulatory regulations for projects which would make CDBG a more flexible funding intent simply by identifying just any exceed this level. The ‘‘CDBG cost per resource. There is nothing which would vaguely described proposed use. The job’’ and the ‘‘CDBG cost per low- and prevent individual grantees from language has been revised slightly in the moderate-income person served’’ adopting such a policy, if they wish. final regulations to refer to ‘‘acquisition standards are designed to establish Issue. Gaming facilities (whether on of land for which the specific use has absolute upper limits for what HUD or off Indian Reservations) should also not been identified’’. would consider to be reasonable on an be made ineligible. Issue. One commenter requested individual project basis. Grantees are Response. The Department has specific examples of types of privately- free to set lower per-job maximums for considered this issue in the past and has owned recreational facilities serving a their own projects, if they wish. decided not to pursue it. predominantly-higher income clientele Another example of high-cost projects Issue. Job Pirating (the use of CDBG which might be determined ineligible which the Department has become funds to move a business from one under the proposed regulations. aware of is the removal of community to another, with no net Concerning another activity on the list, environmental contaminants as part of a expansion of activity) is a waste of this commenter also noted that the redevelopment project. The use of taxpayers’ money and should be proposed language would not prevent CDBG funds for such ‘‘brownfields determined to be an ineligible activity. the provision of assistance to a remediation’’ activities is of growing Response. The Department has ‘‘corporate shell’’ or another corporate interest among grantees. Projects of this studied the problem of job piracy a entity established by the same owner(s) nature can present high costs relative to number of times in the past, but has not of a business which is the subject of the amount of public benefit as defined taken action to prohibit this activity. unresolved findings. in these regulations. However, grantees Determining whether a business is Response. The Department has chosen may have additional flexibility in relocating principally because of the not to try to develop such a list of structuring the use of CDBG funds to CDBG assistance, or because of other recreational facilities, as that list might treat environmental conditions. For reasons, is a particularly intractable be misinterpreted as all-encompassing; example, publicly-owned land may be problem in attempting to define job furthermore, a comparison of the cleaned up before title is transferred to piracy. Recently, Congress has shown recreational benefits vs. other benefit to a private owner. In this way, the interest in legislating on this issue. The low- and moderate-income persons environmental remediation activity Department has therefore decided to must of necessity be done on a case-by- would not be subject to the public defer action on the issue of job piracy case basis. The Department concurs benefit standards. until it is clear what action might be with the second comment; the final Issue. Two commenters opined that taken in authorizing legislation. regulations have been revised to include the proposed $1,000 per area-resident Issue. Three commenters opposed other businesses owned by the same standard is similarly too high to ensure including the acquisition of land for owner(s). The final rule also makes reasonable public benefit; one which no specific use has been minor clarifying revisions to several of recommended $50 instead. determined on the list of ‘‘insufficient the other ‘‘insufficient public benefit’’ Response. The Department has public benefit’’ activities. Commenters activities. argued that this would eliminate future decided to leave the per-area-resident Aggregate Activity Standards standard as proposed. A lower figure economic development activities, and could hinder economic development that forcing grantees to prematurely Issue. Three commenters argued that activities in small communities or identify the use of land drives up the the aggregate standards are too complex, sparsely-populated rural areas. Grantees development cost. One commenter and so should be eliminated. Some are free to set lower per-area-resident suggested that HUD require land commenters feared that grantees may maximums for their own projects, if acquisition to meet a national objective focus only on the individual activity they wish. within two years of the expenditure of standards and overlook the aggregate funds. standards; the human tendency will be ‘‘Insufficient Public Benefit’’ Activities Response. The Department does not to fund high-profile, high-cost-per- The proposed regulations contained a find the arguments for removing this benefit projects first and ‘‘make it up list of activities for which HUD believes activity from the list to be convincing. later’’ with smaller projects. Another insufficient public benefit is derived; The Department is aware of a number of commenter expressed concern that for these activities would therefore not be situations in which land has been low-volume economic development eligible for CDBG assistance. Six purchased using CDBG funds with no programs, the individual and aggregate comments were received on this list of specific use in mind, and in which the standards would effectively be the same; activities (one each from a citizen, a Department later determined that no if a grantee does one loan early in a year local government, a national association national objective was ever met by the with a per-job cost over $35,000 and and a HUD staff person, and two from acquisition. In the Department’s then ends up making no other loans, the states). Three commenters suggested opinion, ‘‘landbanking’’ with CDBG grantee automatically fails the aggregate additional activities to be added to the funds does not provide any public standard. list of activities, two commenters benefit. It should be noted that the Response. To reinforce the objected to the inclusion of one activity proposed regulation would not prohibit significance of the aggregate public on the list, and two commenters the construction of speculative standards, the regulations concerning requested clarification of language. buildings for which no tenant has been public benefit have been re-ordered to Issue. Use of grant funds for projects identified; nor does it mean that a discuss the aggregate standards first. It that will directly compete with existing specific occupant must be identified is not the Department’s intent to unduly businesses should be prohibited. before land can be purchased. However, penalize low-volume economic Response. The Department believes a grantee should at least be able to development programs for this proposal would severely restrict identify the intended use of the property noncompliance by one or two loans. grantees’ use of CDBG funds for (such as for a shopping center or office However, in evaluating projects for economic development and would building). That does not mean, however, possible funding, all grantees are well Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations 1939 advised to consider their historical Response. In developing final 108 projects could meet one or more of levels of economic development activity regulations, the Department has these criteria. Grantees may also request to ensure that the aggregate standards substantially revised the concept that a waiver of the regulations for will be met. It should be noted that certain activities can be excluded from individual activities which may not HUD’s decision to lower the individual the $35,000 per-job or $350 per-area- meet the public benefit requirements. activity standard for job creation/ resident aggregate standards. The 75% Concerning an unexpected skewing of retention from $100,000 to $50,000 provision has been eliminated as an aggregate benefit resulting from a should reduce the possibility that alternate to the aggregate dollar default, grantees should consider the grantees will fail the aggregate standard standards. Instead, grantees may, at possibility of a default when deciding because they funded very high cost-per- their option, exclude individual whether to fund proposed projects. job projects early in the year. ‘‘important national interest’’ activities Issue. One commenter suggested that Issue. One commenter argued that the from the aggregate standards. The list of economic development services $35,000 per-job aggregate standard is too ‘‘important national interest’’ activities activities funded under proposed high to ensure reasonable public benefit; which can be excluded from the § 570.203(c) of the Entitlement several alternative standards in the aggregate standards has also been regulations be excluded from the public range of $5,000–$10,000 per job were revised. Proposed criterion (G) has been benefit standards, either categorically or recommended instead. eliminated, and proposed criteria (A) at the grantee’s option. Response. The Department has chosen and (B) have been combined. Two new Response. The Department does not not to accept this recommendation. This criteria [(L) and (M)] have been added believe it possible to exempt this type commenter also raised other objections to the Entitlement program final rule; of economic development activity from to HUD’s proposed method for assessing these criteria provide additional the public benefit standards, given the public benefit; taken together, their flexibility in support of the new statutory language mandating the comments argue for a much more ‘‘economic revitalization strategy area’’ development of public benefit standards rigorous approach to economic approach to demonstrating national for activities qualifying under this development funding, which would objectives compliance. (This approach authority. reduce grantee flexibility. is discussed under ‘‘Low and Moderate The Department has added language Issue. One commenter argued in favor Income Area Benefit Activities’’ above; of either eliminating the $350 per low- to the discussion of public benefit as noted there, the approach is being which clarifies how to apply the and moderate-income area resident implemented in the Entitlement individual and aggregate standards to standard, or at least raising it to $500. program only at this time.) The activities which provide job training, job Response. The Department has remaining criteria are now more placement and other employment decided to retain the proposed $350 narrowly defined to better target support services. Except for figure. assistance to certain population groups. microenterprise assistance activities Issue. One HUD staff person One significant effect of these changes eligible under § 105(a)(23) of the Act, questioned how public benefit would be to the ‘‘important national interest’’ many such activities will be subject to measured in the aggregate under the activities is worth noting. All activities the public benefit standards because HUD-Administered Small Cities CDBG which do not meet one of these they are undertaken pursuant to program, given that many grantees have ‘‘important national interest’’ criteria revolving loan funds funded with must be subject to the aggregate dollar Sections 105(a)(14), (15) or (17) of the program income from previous grants. standards. Act. For purposes of the individual and Response. The Department agrees that Issue. Two commenters expressed aggregate public benefit standards only, the proposed regulations do not concern about the relationship of the the jobs which such services involve are adequately address this issue. In the aggregate standards to the Section 108 counted as jobs created or retained. (See final Entitlement regulations, Loan Guarantee Program. Concern is also the preamble discussion of national § 570.209(b)(2) has been revised to expressed that the $35,000 per-job objectives for further information on address aggregate public benefit in the aggregate standard will hinder grantees’ these activities.) HUD-Administered Small Cities and use of the Section 108 Loan Guarantee Public Benefit Standards— Insular Areas CDBG programs. program; Section 108 projects are often Documentation of Benefit Issue. Four comments were received big projects which could overwhelm the on the list of ‘‘important national aggregate average. If an expenditure of Five commenters (two states and three interest’’ activities. Two commenters CDBG funds is required several years national associations) offered comments felt that more than 75% of a grantee’s down the line to cover a default, the on proposed paragraphs 570.209(d) and funds should be used for such grantee’s aggregate level of public 570.482(e)(6). Comments fell into two ‘‘important national interest’’ activities benefit would suddenly become skewed groups: those concerned about what in order to meet the alternate aggregate too late for a grantee to make constitutes a substantial difference in standard. One commenter felt the adjustments. actual versus projected benefits; and criteria were so broadly written as to Response. It is acknowledged that those concerned about what sanctions allow virtually all activities to qualify, certain large Section 108 projects might the Department might take where actual and particularly objected to four of the have a high cost per job; however, the benefits were found to be substantially proposed criteria [(E), (F), (H), (L)] as Department believes Section 108 less than projected benefits. One of the inappropriate. Another questioned why projects should be treated consistently comments expressed general support for microenterprise assistance activities with other CDBG-funded projects. The the approach to allow adjustment to the [(G)] were included on the list, when Department has revised the projection process. microenterprise assistance activities requirements applying to the ‘‘important Issue. One commenter felt that if a funded under § 105(a)(23) of the Act are national interests’’ activities listed in grantee re-evaluates an amended not subject to the public benefit the final rule; grantees may now, at their project, it should be held accountable to standards. One commenter favored option, exclude activities meeting these its amended projections, not to its initial keeping the percentage of funds criteria from the aggregate standards. projections. The commenter requirement at 75%. The Department believes many Section recommended that the regulations 1940 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations should refer to ‘‘initial or amended Issue. Two states expressed concern upon states concerning local projections’’. about proposed language requiring a governments’ performance. Response. The Department concurs state to ‘‘take all actions reasonably Amendments to Projects After with this point; the final regulations within its control’’ to improve a unit of Determinations discuss benefits in terms of benefits local government’s public benefit ‘‘anticipated when the CDBG assistance projections, when actual results vary Four commenters (three local was obligated.’’ This is intended to substantially from initial projections. governments and one national include situations in which projections This language was seen as imprecise, association) commented on the are revised because of changes in a and calls into question just what actions paragraphs concerning amendments to project which a grantee agrees to allow. are within a state’s (versus the local projects after a funding decision has Issue. One commenter recommended government’s) control to rectify the been reached. that grantees’ records concerning the problem. One state expressed concern Issue. Three commenters questioned amount of public benefit derived from that HUD might sanction a state even as imprecise HUD’s use of the term projects be made available to the public after the state took all actions available ‘‘material change’’ in referring to at no cost. This commenter also to it to correct a problem. The other situations in which a grantee should recommended that Entitlement grantees’ state, while recognizing HUD’s oversight reevaluate a project (after committing Grantee Performance Reports should role, felt it inappropriate for HUD to funding to it) because of changes in the contain information on differences second-guess a state’s actions, as only project. One commenter felt the between projected and actual public the state can impose on itself those proposed wording implied that benefits from projects. actions necessary to resolve the problem reanalysis would be required for any Response. Existing requirement at the local level. change, which would in their opinion concerning the availability of be overkill. Another commenter Response. These comments, as well as documents to the public (such as the suggested use of the term ‘‘substantial those discussed previously, clearly CDBG citizen participation change’’, which is used in the existing indicate concern by grantees over what requirements) already cover the Entitlement regulations to describe sanctions the Department might take commenter’s first concern. The situations in which the Final Statement against a grantee, and over what local- Department will take under advisement must be amended. level actions are ‘‘enough’’ to address a the suggestion concerning reporting of Response. It is not the Department’s problem. The Department concurs up to benefits, at such time in the future that intent that any change in a project a point with the states’ comments. The reporting requirements are revised. should necessitate its complete Issue. One commenter expressed the intended meaning of this paragraph was reevaluation. Minor changes, such as opinion that if a grantee shows a pattern that if local governments’ results the shifting of small dollar amounts of substantial differences between disclose a pattern of inaccurately among budget categories, or a one- projected and actual benefits, over projecting pubic benefits, then the state month extension to the construction perhaps a two year period, HUD should should take actions to insure that period, probably would not affect the impose a two-year moratorium on the localities improve projection accuracy; underlying assumptions upon which a offending activity for that grantee. if a state were to do little or nothing to grantee decided to assist the project. Response. The Department does not correct the problems, then HUD could However, if the project changes to the accept this recommendation, as it is impose stricter standards upon a state. extent that the revised project would be inconsistent with existing CDBG Similarly, if an Entitlement grantee very different in its scope, public regulations concerning sanctions for demonstrates that its projection process benefit, total cost or CDBG cost noncompliance. The Department is inaccurate, it should take steps to (compared to the project as initially opposes the concept of developing improve the accuracy of its projections; approved by the grantee), the different, prescribed sanctions for if local efforts to resolve the problem Department believes that the project different categories of noncompliance. were ineffective or nonexistent, then should be reexamined under the public Issue. One commenter expressed HUD could impose stricter public benefit and underwriting guidelines. A concern over the proposal that the benefit standards upon the grantee. grantee should confirm whether it still Department might hold a grantee to HUD does not intend that problems by wishes to participate in the project, more stringent public benefit standards one state recipient should be cause for whether the costs and benefits of the in the future when the Department sanctions against an entire state’s project are still reasonable, and whether found a grantee to have failed the public program. the amount of public benefit is still benefit standards. The commenter HUD does not consider it useful to reasonable given the amount of recommended that the Department not attempt to define what actions are assistance being provided. take such action unless a grantee failed ‘‘reasonably within the grantee’s In the final regulations, these the standards for two consecutive years, control’’, as every situation would paragraphs have been rewritten to state so as not to punish a grantee which involve a judgement call as to what that a project should be reevaluated if might do only one project in a year and could or should be done. The concept the project changes to the extent that ‘‘a have that one project prove of deferring entirely to a state’s significant amendment to the contract unsuccessful. judgement about what actions could or (with the business) is appropriate.’’ The Response. While the Department should be taken (against a state grant use of the term ‘‘substantial’’ was agrees that low-volume economic recipient) is impractical, given HUD’s avoided, as some might attempt to apply development programs should not be statutory mandate to determine the same concept of ‘‘substantial’’ as unduly penalized for the failure of one grantees’ compliance. used concerning Final Statement project, the Department considers it The paragraphs on documentation amendments—a borrowing of concepts inappropriate to identify a specific time have been revised to respond to all the which the Department feels is not period over which to measure success or above comments, and to provide greater appropriate or relevant. The Department failure. The final regulations have been clarity of meaning. In addition, has chosen not to define what revised to discuss situations in which ‘‘a § 570.482(f)(6) of the final State constitutes a ‘‘significant amendment’’, pattern of substantial variation’’ occurs. regulations clarifies HUD’s expectations nor to define the types of changes which Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations 1941 would call for reevaluation. Grantees are Response. The new Section 105(a)(23) low- and moderate-income family. strongly encouraged, in developing their of the Act authorizes ‘‘the provision of Secondly, the proposal’s use of the guidelines, to define what they will assistance to public and private wages of a created job as the basis for consider to be ‘‘significant changes’’, organizations, agencies, and other determining a person’s income status and to identify how they will reevaluate entities (including nonprofit and for- runs counter to CDBG program projects. profit entities) to enable such entities to requirements. To be counted toward Issue. One commenter objected to the facilitate economic development’’ by compliance with low- and moderate- example provided at the end of the providing various forms of assistance to income national objective compliance, a paragraph concerning a situation in owners of microenterprises and persons person need only be low- and moderate- which total project costs change. In this developing microenterprises. The income at the time the CDBG assistance example, the Department suggested that Department interprets this provision to is provided, i.e., for a created job, at the if total project costs decreased, it would mean that any such entities beyond the time he or she is hired. The CDBG be appropriate to reduce the amount of grantee itself are to serve as program does not and should not CDBG assistance to the project. The intermediaries in the grant assistance impose any requirement that the person commenter felt that this implies that chain rather than being considered would have to stay low- and moderate- any reduction in total project cost beneficiaries in and of themselves. income based on the wages of the should automatically result in a Thus, the Department considers such created job. Finally, it should be noted comparable reduction in the amount of organizations to be subrecipients under that presumptions added by the 1992 CDBG assistance, which may not be the CDBG program. The existing Act for determining whether a person is practical. The commenter recommended definition of the term ‘‘subrecipient’’ at considered low- and moderate-income eliminating the example. § 570.500(c) of the CDBG Entitlement for job creation or retention activities, as Response. The Department concurs regulations is being revised in this final implemented in this final rule, should with the basic point that it may not rule only to include a specific reference significantly reduce the burden always be appropriate to reduce the to the for-profit entities now authorized described by the commenter. Issue. One commenter stated that, in amount of CDBG assistance in such to carry out microenterprise assistance activities. (Nonprofit entities carrying regard to the State CDBG program, it is cases. The example has been retained in out such activities are already covered good that HUD is consulting and the final rule, but has been modified to by the existing definition of a negotiating with States on record state that ‘‘it may be appropriate’’ to ‘‘subrecipient.’’) The language in the keeping issue, but the commenter reduce the amount of CDBG assistance. proposed change to § 570.500(c) has complained that the number of States The final regulation also notes that been revised, however, to clarify the being consulted was too small. The when a project is amended to receive Department’s intent. commenter argued that HUD should additional CDBG assistance, the project negotiate record keeping requirements Other Issues Regarding Income as amended must still comply with the with each and every State because since Documentation public benefit standards. they represent such broad and varied Modification to the Definition of Issue. One commenter recommended regions. (1 state agency) Subrecipient Related to that HUD take this opportunity to clarify Response. It is not logistically Microenterprise Assistance Activities what is meant by a ‘‘verifiable possible for HUD to negotiate with each certification’’ as the term is used in and every State before issuing record Issue. As noted earlier under the § 570.506(b). The commenter asks keeping regulations for the State CDBG CBDO discussion regarding § 570.204 of whether this term implies that a sample program. HUD is still negotiating with a the Entitlement regulations (Section of the certifications should be verified. sample of States and is hoping to devise 105(a)(15) of the Act), five commenters (1 private citizen) certain minimum record keeping addressed the proposed revision to the Response. HUD does not believe that standards for States that will be definition of the term ‘‘subrecipient’’ at this issue need be further specified in accepted on a consensus basis. § 570.500(c) to expand that provision to the text of the regulation itself. include for-profit entities that are now However, as guidance for grantees, it Other Issues Not Specifically specifically authorized by statute to should be noted that, over time, HUD Addressed in the Proposed Rule carry out microenterprise assistance does expect that some sample of such A number of comments were received activities under the new eligibility certifications would be verified by the on issues not specifically addressed in provision implemented in this final rule grantee or subrecipient, as applicable. the proposed regulations, but which by a new § 570.201(o) in the Entitlement This verification is important to were seen (by commenters) as having regulations [Section 105(a)(23) of the maintaining program accountability and significant bearing on the use of CDBG Act]. Most of the commenters integrity. funds for economic development recommended that HUD not consider Issue. One commenter raised concerns activity. any entities carrying out activities under about the burden of keeping family size Issue. Two commenters (both local the new microenterprise category as and income data for job creation or governments) requested that the ‘‘subrecipients’’ but rather as ‘‘end retention activities. As another option, Department address the issue of using beneficiaries.’’ These commenters also the commenter recommended that HUD CDBG funds for economic development requested a similar change in only look at the wages of the individual activities on military bases which are classification for entities receiving employee and compare that figure being closed. CDBG assistance under § 570.204 of the against the income limits for one-person Response. The Department does not Entitlement regulations [Section households. (1 development see the reuse or redevelopment of closed 105(a)(15) of the Act]. Other organization) military bases as an activity per se, but commenters asked only for a Response. HUD cannot accept this rather a goal which CDBG funds can be clarification of the proposed revision to recommendation. First, the proposal is used to address. The Department § 570.500(c). (1 local government not consistent with the general statutory believes the current regulations agency, 1 development organization, definition of a low- and moderate- concerning eligibility and national and 3 HUD Field staff persons) income person as being a member of a objectives, along with these revised 1942 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations regulations, give communities equally or more problematic for CDBG programs. Section 570.500(c) of considerable flexibility to carry out a entitlement grantees. the Entitlement regulations, which broad range of economic development The Department has determined that defines the term ‘‘subrecipient’’, has activities, including those on former $25,000 is a more appropriate level at been revised; entities described in military bases. which to set the yearly exclusion § 570.204(c) [which implements Issue. Six commenters (3 national amount. These final regulations also § 105(a)(15) of the Act], are no longer associations, 2 states and one local extend the exclusion provision to the defined as subrecipients. As noted government) identified other Federal Entitlement program for the first time. previously, the term ‘‘subrecipient’’ is requirements as major inhibitors to the In a separate rulemaking, the not defined in the State CDBG program. use of CDBG for economic development Department is also adding the exclusion Section 570.489(e) of the State rule (particularly for microenterprise provision to the HUD-Administered (which comprises program income assistance), and asked the Department to Small Cities program regulations. requirements) has been revised to examine ways to streamline these other 2. The existing definition of program exclude from the definition of program requirements. Specifically identified income includes revenue generated by income amounts generated by were environmental review procedures, activities carried out with the proceeds § 105(a)(15) activities. States are program income requirements, and the from loans guaranteed under Section expected to ensure that any such Davis-Bacon Wage Rate Act. 108. Such revenue is now treated as activities are indeed carried out by an Response. HUD acknowledges that program income even if the guaranteed entity pursuant to § 105(a)(15). these areas are the source of frequent loan is repaid with non-CDBG funds. It should be noted that this exclusion complaints. However, as some Such revenue is treated as program does not cover situations in which a commenters noted, the underlying bases income notwithstanding that it is grantee provides CDBG assistance to one for many of the regulatory requirements required to be pledged to the repayment of these entities in the form of a loan. in these areas are statutory, and thus lie of the Section 108 loan. The final rule Any repayments of principal or interest beyond HUD’s span of control. HUD is excludes from the definition of program from the entity to the grantee for such willing to explore ways in which income certain amounts generated by a loan would be considered to be CDBG regulations governing these other activities financed by Section 108 loans, program income, regardless of the federal requirements might be made to the extent that non-CDBG funds are source of the funds used for repayment. more amenable to the use of CDBG used to repay the loan. Activities which Issue. Numerous commenters noted funds for economic development. can qualify for this exclusion are those that HUD needs to provide additional In particular, the Department realizes meeting the criteria at § 570.209(b)(2)(v) training for grantees and HUD Field that CDBG regulations governing the use or § 570.482(f)(3)(v) (the ‘‘important Office staff to ensure uniform of CDBG program income must be national interest’’ activities), and those understanding, interpretation and revised to include 1992 changes to the carried out in conjunction with an implementation of the revised Act. Issues concerning program income Economic Development Initiative grant regulations. HUD should also go beyond will be dealt with more in an area determined by the formal training to provide other comprehensively in separate future rule- Department to meet the eligibility mechanisms (such as national making. In the meantime, and in requirements for Urban Empowerment conferences, development of model response to these comments, the Zone designation. programs, resource guidebooks and Department has identified three Any revenue generated by activities computer bulletin boards) for sharing incremental changes which can be made financed with Section 108 loan information on economic development regarding program income, and has guarantees which is not defined as activities. Areas in which certain included them in this final rule. program income would be commenters were particularly interested 1. The 1992 State CDBG program miscellaneous revenue. In addition, any in seeing greater information-sharing regulations included a provision amounts in debt service accounts that included: related federal initiatives such excluding from the definition of were funded with non-CDBG funds (e.g. as welfare reform and Empowerment program income an amount of up to Section 108 funds and monies provided Zones/Enterprise Communities; sharing $10,000 per year per state grant by the assisted business) that remain of model programs; microenterprise recipient. This provision was consistent after full and final repayment of the assistance programs; use of ‘‘first with 1992 amendments to the Act, guaranteed loan would also be source’’ agreements for job creation which permitted the Secretary to considered miscellaneous revenue. activities; and combining CDBG with exclude from program requirements 3. As discussed earlier under the other federal economic development amounts of program income that are heading of Community-Based resources. determined to be so small that Development Organizations, the Response. The Department compliance with requirements would Department has substantially revised acknowledges the importance of place an unreasonable administrative the requirements governing activities training on new regulations, and is burden on units of local government. funded under § 105(a)(15) of the Act planning to provide training to both During the past two years, a number of (and § 570.204 of the Entitlement grantees and HUD Field Office staff states have commented to HUD that regulations). As a result of those once these regulations are effective. many of their grant recipients regularly changes, the department has determined HUD is also developing a CDBG receive over $10,000 per year in that amounts generated by such economic development reference program income; thus, at its present activities can also be excluded from the manual which will include model level, this exclusion provision is of little requirements governing the use of programs. The Department’s or no benefit to state grant recipients. program income. Consolidated Technical Assistance Since state grant award amounts are Because § 105(a)(15) of the Act initiative, which is already being typically smaller than the average yearly differentiates between the types of implemented, should also result in entitlement grant amount, state grant eligible entities in entitlement additional training opportunities on recipients typically receive less program jurisdictions and nonentitled areas, this economic development issues. per year than entitlement grantees. The change has been effected by different The Department plans to develop problem noted by states is likely to be means for the Entitlement and State guidelines by which those communities Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations 1943 demonstrating the best performance in and, thus, is not subject to review under PART 570ÐCOMMUNITY the area of economic development may the Order. DEVELOPMENT BLOCK GRANTS be identified. These guidelines will be distributed to both grantees and HUD Environmental Finding 1. The authority citation for 24 CFR part 570 continues to read as follows: Field Office staff. The Department will A Finding of No Significant Impact also identify administrative mechanisms with regard to the environment has been Authority: 42 U.S.C. 3535(d) and 5300– through which additional relief may be made in accordance with HUD 5320. provided to communities with the best regulations in 24 CFR part 50, which Subpart AÐGeneral Provisions economic development performance implement section 102(2)(C) of the records. National Environmental Policy Act of 2. In § 570.3, definitions for Relationship to Section 3 Economic 1969, 42 U.S.C. 4321. The Finding of No ‘‘Community Development Financial Opportunity Requirements Significant Impact is available for public Institution’’, ‘‘Microenterprise’’, and inspection between 7:30 a.m. and 5:30 ‘‘Small business’’, are added in Recipients of CDBG funds must also p.m. weekdays in the Office of the Rules alphabetical order to read as follows: comply with the requirements of Docket Clerk, Room 10276, 451 Seventh Section 3 of the Housing and Urban § 570.3 Definitions. Street, SW., Washington, DC 20410. Development Act of 1968 (Section 3), as * * * * * amended by Section 915 of the 1992 Regulatory Flexibility Community Development Financial Act. Section 3 requires that, to the Institution has the same meaning as Under the Regulatory Flexibility Act greatest extent feasible, and consistent used in the Community Development (5 U.S.C. 605(b)), the Secretary by his with existing Federal, State and local Banking and Financial Institutions Act approval of publication of this rule laws and regulations, employment and of 1994 (12 U.S.C. 4701 note). other economic opportunities arising in hereby certifies that this rule does not * * * * * connection with CDBG assistance to any have a significant economic impact on Microenterprise means a business that Section 3 covered project are given to a substantial number of small entities. has five or fewer employees, one or low- and very low-income persons The rule does not affect the amount of more of whom owns the enterprise. residing within the metropolitan area funds provided in the CDBG program, (or nonmetropolitan county) in which but rather modifies and updates * * * * * the project is located. For the CDBG program administration and procedural Small business means a business that program, Section 3 covered projects requirements to comport with recently meets the criteria set forth in section include housing rehabilitation, housing enacted legislation. 3(a) of the Small Business Act (15 U.S.C. construction, and other public 631, 636, 637). Semiannual Agenda construction. The Section 3 * * * * * requirements apply to training, This rule was listed as item 1848 in Subpart CÐEligible Activities employment and contracting the Department’s Semiannual Agenda of opportunities arising in connection with Regulations published on November 14, 3. In § 570.200, paragraph (e) is a covered project, as well as job (or 1994 (59 FR 57632, 57664) under revised to read as follows: other opportunities) which may be Executive Order 12866 and the retained or created as a result of the Regulatory Flexibility Act. § 570.200 General policies. project. An interim rule implementing * * * * * Catalog of Federal Domestic Assistance the 1992 amendments to Section 3 was (e) Recipient determinations required published by the Department in the The Community Development Block as a condition of eligibility. In several Federal Register on June 30, 1994, and Grant Program is listed in the Catalog of instances under this subpart, the it became effective August 1, 1994. Federal Domestic Assistance under the eligibility of an activity depends on a Other Matters following numbers: Entitlements— special local determination. Recipients 14.218, HUD-administered Small shall maintain documentation of all Executive Order 12612, Federalism Cities—14.219, Indian—14.223, Insular such determinations. A written The General Counsel, as the Areas—14.225, State’s Program—14.228. determination is required for any Designated Official under section 6(a) of activity carried out under the authority Executive Order 12612, Federalism, has List of Subjects in 24 CFR Part 570 of §§ 570.201(f), 570.202(b)(3), 570.204, 570.206(f), and 570.209. determined that the policies in this rule Administrative practice and do not have Federalism implications procedure, American Samoa, * * * * * when implemented and, thus, are not Community development block grants, 4. In § 570.201, paragraph (o) is added subject to review under the Order. Grant programs—education, Grant to read as follows: Nothing in the rule implies any programs—housing and community § 570.201 Basic eligible activities. preemption of State or local law, nor development, Guam, Indians, Lead * * * * * does any provision of the rule disturb poisoning, Loan programs—housing and (o)(1) The provision of assistance the existing relationship between the community development, Low and either through the recipient directly or Federal Government and State and local moderate income housing, New through public and private governments. communities, Northern Mariana Islands, organizations, agencies, and other Pacific Islands Trust Territory, Pockets Executive Order 12606, the Family subrecipients (including nonprofit and of poverty, Puerto Rico, Reporting and The General Counsel, as the for-profit subrecipients) to facilitate recordkeeping requirements, Small designated Official under Executive economic development by: cities, Student aid, Virgin Islands. Order 12606, has determined that this (i) Providing credit, including, but not rule does not have potential significant Accordingly, 24 CFR part 570, limited to, grants, loans, loan impact on family formation, subparts A, C, I, and J, are amended as guarantees, and other forms of financial maintenance, and general well-being, follows: support, for the establishment, 1944 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations stabilization, and expansion of (b) The provision of assistance to a government which is under 25,000 microenterprises; private for-profit business, including, population; (ii) Providing technical assistance, but not limited to, grants, loans, loan (2) Community economic advice, and business support services to guarantees, interest supplements, development project includes activities owners of microenterprises and persons technical assistance, and other forms of that increase economic opportunity, developing microenterprises; and support, for any activity where the principally for persons of low- and (iii) Providing general support, assistance is appropriate to carry out an moderate-income, or that stimulate or including, but not limited to, peer economic development project, retain businesses or permanent jobs, support programs, counseling, child excluding those described as ineligible including projects that include one or care, transportation, and other similar in § 570.207(a). In selecting businesses more such activities that are clearly services, to owners of microenterprises to assist under this authority, the needed to address a lack of affordable and persons developing recipient shall minimize, to the extent housing accessible to existing or microenterprises. practicable, displacement of existing planned jobs and those activities (2) Services provided this paragraph businesses and jobs in neighborhoods. specified at 24 CFR 91.1(a)(1)(iii); (o) shall not be subject to the restrictions (c) Economic development services in (3) Energy conservation project on public services contained in connection with activities eligible under includes activities that address energy paragraph (e) of this section. this section, including, but not limited conservation, principally for the benefit (3) For purposes of this paragraph (o), to, outreach efforts to market available of the residents of the recipient’s ‘‘persons developing microenterprises’’ forms of assistance; screening of jurisdiction; and means such persons who have applicants; reviewing and underwriting (4) To carry out a project means that expressed interest and who are, or after applications for assistance; preparation the CBDO undertakes the funded an initial screening process are expected of all necessary agreements; activities directly or through contract to be, actively working toward management of assisted activities; and with an entity other than the grantee, or developing businesses, each of which is the screening, referral, and placement of through the provision of financial expected to be a microenterprise at the applicants for employment assistance for activities in which it time it is formed. opportunities generated by CDBG- retains a direct and controlling 5. In § 570.202, paragraph (a)(1) is eligible economic development involvement and responsibilities. revised to read as follows: activities, including the costs of (b) Ineligible activities. Notwithstanding that CBDOs may carry § 570.202 Eligible rehabilitation and providing necessary training for persons preservation activities. filling those positions. out activities that are not otherwise eligible under this subpart, this section (a) * * * 7. Section 570.204 is revised to read does not authorize: (1) Privately owned buildings and as follows: (1) Carrying out an activity described improvements for residential purposes; § 570.204 Special activities by Community- as ineligible in § 570.207(a); improvements to a single-family (2) Carrying out public services that residential property which is also used Based Development Organizations (CBDOs). do not meet the requirements of as a place of business, which are § 570.201(e), except that: (a) Eligible activities. The recipient required in order to operate the (i) Services carried out under this may provide CDBG funds as grants or business, need not be considered to be section that are specifically designed to loans to any CBDO qualified under this rehabilitation of a commercial or increase economic opportunities section to carry out a neighborhood industrial building, if the improvements through job training and placement and revitalization, community economic also provide general benefit to the other employment support services, development, or energy conservation residential occupants of the building; including, but not limited to, peer project. The funded project activities * * * * * support programs, counseling, child may include those listed as eligible 6. Section 570.203 is amended by care, transportation, and other similar under this subpart, and, except as revising the introductory text and services; and paragraph (b), and by adding a new described in paragraph (b) of this (ii) Services of any type carried out paragraph (c), to read as follows: section, activities not otherwise listed as under this section pursuant to a strategy eligible under this subpart. For purposes approved by HUD under the provisions § 570.203 Special economic development of qualifying as a project under activities. of 24 CFR 91.215(e) shall not be subject paragraphs (a)(1), (a)(2), and (a)(3) of to the limitations in § 570.201(e)(1) or A recipient may use CDBG funds for this section, the funded activity or (2), as applicable; special economic development activities activities may be considered either (3) Providing assistance to activities in addition to other activities authorized alone or in concert with other project that would otherwise be eligible under in this subpart which may be carried out activities either being carried out or for § 570.203 that do not meet the as part of an economic development which funding has been committed. For requirements of § 570.209; or project. Guidelines for selecting purposes of this section: (4) Carrying out an activity that would activities to assist under this paragraph (1) Neighborhood revitalization otherwise be eligible under § 570.205 or are provided at § 570.209. The recipient project includes activities of sufficient § 570.206, but that would result in the must ensure that the appropriate level of size and scope to have an impact on the recipient’s exceeding the spending public benefit will be derived pursuant decline of a geographic location within limitation in § 570.200(g). to those guidelines before obligating the jurisdiction of a unit of general local (c) Eligible CBDOs. (1) A CBDO funds under this authority. Special government (but not the entire qualifying under this section is an activities authorized under this section jurisdiction) designated in organization which has the following do not include assistance for the comprehensive plans, ordinances, or characteristics: construction of new housing. Special other local documents as a (i) Is an association or corporation economic development activities neighborhood, village, or similar organized under State or local law to include: geographical designation; or the entire engage in community development * * * * * jurisdiction of a unit of general local activities (which may include housing Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations 1945 and economic development activities) (iii) Is a Community Housing other officially recognized boundaries primarily within an identified Development Organization (CHDO) but must be the entire area served by the geographic area of operation within the under 24 CFR 92.2, designated as a activity. An activity that serves an area jurisdiction of the recipient, or in the CHDO by the HOME Investment that is not primarily residential in case of an urban county, the jurisdiction Partnerships program participating character shall not qualify under this of the county; and jurisdiction, with a geographic area of criterion. (ii) Has as its primary purpose the operation of no more than one * * * * * improvement of the physical, economic neighborhood, and has received HOME (iv) In determining whether there is a or social environment of its geographic funds under 24 CFR 92.300 or is sufficiently large percentage of low and area of operation by addressing one or expected to receive HOME funds as moderate income persons residing in more critical problems of the area, with described in and documented in the area served by an activity to qualify particular attention to the needs of accordance with 24 CFR 92.300(e). under paragraphs (a)(1)(i), (ii), or (v) of persons of low and moderate income; (3) A CBDO that does not qualify this section, the most recently available and under paragraphs (c) (1) or (2) of this decennial census information shall be (iii) May be either non-profit or for- section may also be determined to used to the fullest extent feasible, profit, provided any monetary profits to qualify as an eligible entity under this together with the Section 8 income its shareholders or members must be section if the recipient demonstrates to limits that would have applied at the only incidental to its operations; and the satisfaction of HUD, through the time the income information was (iv) Maintains at least 51 percent of its provision of information regarding the collected by the Census Bureau. * ** governing body’s membership for low- organization’s charter and by-laws, that (v) Activities meeting the and moderate-income residents of its the organization is sufficiently similar requirements of paragraph (d)(5)(i) of geographic area of operation, owners or in purpose, function, and scope to those this section may be considered to senior officers of private establishments entities qualifying under paragraphs (c) qualify under this paragraph, provided and other institutions located in and (1) or (2) of this section. that the area covered by the strategy is serving its geographic area of operation, 8. Section 570.207 is amended by primarily residential and contains a or representatives of low- and moderate- revising paragraphs (b) introductory text percentage of low- and moderate- income neighborhood organizations and (b)(3)(iii) to read as follows: income residents that is no less than the located in its geographic area of § 570.207 Ineligible activities. percentage computed by HUD pursuant operation; and to paragraph (a)(1)(ii) of this section but (v) Is not an agency or instrumentality * * * * * in no event less than 51 percent. of the recipient and does not permit (b) The following activites may not be Activities meeting the requirements of more than one-third of the membership assisted with CDBG funds unless paragraph (d)(6)(i) of this section may of its governing body to be appointed authorized under provisions of also be considered to qualify under by, or to consist of, elected or other § 570.203 or as otherwise specifically paragraph (a)(1) of this section. public officials or employees or officials noted herein or when carried out by a of an ineligible entity (even though such entity under the provisions of § 570.204. (2) Limited clientele activities. (i) An persons may be otherwise qualified * * * * * activity which benefits a limited under paragraph (c)(1)(iv) of this (3) * * * clientele, at least 51 percent of whom section); and (iii) When carried out by an entity are low- or moderate-income persons. (vi) Except as otherwise authorized in pursuant to § 570.204(a); (The following kinds of activities may paragraph (c)(1)(v) of this section, * * * * * not qualify under paragraph (a)(2) of requires the members of its governing 9. Section 570.208 is amended by: this section: activities, the benefits of body to be nominated and approved by a. Revising the paragraph heading of which are available to all the residents the general membership of the paragraph (a), revising paragraph of an area; activities involving the organization, or by its permanent (a)(1)(i), the first sentence in paragraph acquisition, construction or governing body; and (a)(1)(iv), and adding a new paragraph rehabilitation of property for housing; or (vii) Is not subject to requirements (a)(1)(v); activities where the benefit to low- and under which its assets revert to the b. Revising paragraph (a)(2)(i) moderate-income persons to be recipient upon dissolution; and introductory text and by adding new considered is the creation or retention of (viii) Is free to contract for goods and paragraphs (a)(2)(iii) and (a)(2)(iv); jobs, except as provided in paragraph services from vendors of its own c. Revising the introductory text of (a)(2)(iv) of this section.) To qualify choosing. paragraph (a)(3); under paragraph (a)(2) of this section, (2) A CBDO that does not meet the d. Revising paragraph (a)(4); and the activity must meet one of the criteria in paragraph (c)(1) of this e. Adding new paragraphs (d)(5), following tests: section may also qualify as an eligible (d)(6), and (d)(7), to read as follows: * * * * * entity under this section if it meets one (iii) A microenterprise assistance of the following requirements: § 570.208 Criteria for national objectives. activity carried out in accordance with (i) Is an entity organized pursuant to * * * * * the provisions of § 570.201(o) with section 301(d) of the Small Business (a) Activities benefiting low- and respect to those owners of Investment Act of 1958 (15 U.S.C. moderate-income persons. microenterprises and persons 681(d)), including those which are profit * * * * * developing microenterprises assisted making; or (1) Area benefit activities. (i) An under the activity during each program (ii) Is an SBA approved Section 501 activity, the benefits of which are year who are low- and moderate-income State Development Company or Section available to all the residents in a persons. For purposes of this paragraph, 502 Local Development Company, or an particular area, where at least 51 percent persons determined to be low and SBA Certified Section 503 Company of the residents are low and moderate moderate income may be presumed to under the Small Business Investment income persons. Such an area need not continue to qualify as such for up to a Act of 1958, as amended; or be coterminous with census tracts or three-year period. 1946 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations (iv) An activity designed to provide (i) For an activity that creates jobs, the (B) It does not include any portion of job training and placement and/or other recipient must document that at least 51 a central business district, as this term employment support services, percent of the jobs will be held by, or is used in the most recent Census of including, but not limited to, peer will be available to, low- and moderate- Retail Trade, unless the tract has a support programs, counseling, child income persons. poverty rate of at least 30 percent as care, transportation, and other similar (ii) For an activity that retains jobs, determined by the most recently services, in which the percentage of the recipient must document that the available decennial census information; low- and moderate-income persons jobs would actually be lost without the and assisted is less than 51 percent may CDBG assistance and that either or both (C) It evidences pervasive poverty and qualify under this paragraph in the of the following conditions apply with general distress by meeting at least one following limited circumstance: respect to at least 51 percent of the jobs of the following standards: (A) In such cases where such training at the time the CDBG assistance is (1) All block groups in the census or provision of supportive services provided: tract have poverty rates of at least 20 assists business(es), the only use of (A) The job is known to be held by a percent; CDBG assistance for the project is to low- or moderate-income person; or (2) The specific activity being provide the job training and/or (B) The job can reasonably be undertaken is located in a block group supportive services; and expected to turn over within the that has a poverty rate of at least 20 (B) The proportion of the total cost of following two years and that steps will percent; or the project borne by CDBG funds is no be taken to ensure that it will be filled (3) Upon the written request of the greater than the proportion of the total by, or made available to, a low- or recipient, HUD determines that the number of persons assisted who are low moderate-income person upon turnover. census tract exhibits other objectively or moderate income. (iii) Jobs that are not held or filled by determinable signs of general distress (3) Housing activities. An eligible a low- or moderate-income person may such as high incidence of crime, activity carried out for the purpose of be considered to be available to low- narcotics use, homelessness, abandoned providing or improving permanent and moderate-income persons for these housing, and deteriorated infrastructure residential structures which, upon purposes only if: or substantial population decline. completion, will be occupied by low- (A) Special skills that can only be (vi) As a general rule, each assisted and moderate-income households. This acquired with substantial training or business shall be considered to be a would include, but not necessarily be work experience or education beyond separate activity for purposes of limited to, the acquisition or high school are not a prerequisite to fill determining whether the activity rehabilitation of property, conversion of such jobs, or the business agrees to hire qualifies under this paragraph, except: (A) In certain cases such as where non-residential structures, and new unqualified persons and provide CDBG funds are used to acquire, housing construction. If the structure training; and develop or improve a real property (e.g., contains two dwelling units, at least one (B) The recipient and the assisted a business incubator or an industrial must be so occupied, and if the business take actions to ensure that low- park) the requirement may be met by structure contains more than two and moderate-income persons receive measuring jobs in the aggregate for all dwelling units, at least 51 percent of the first consideration for filling such jobs. the businesses which locate on the units must be so occupied. Where two (iv) For purposes of determining property, provided such businesses are or more rental buildings being assisted whether a job is held by or made not otherwise assisted by CDBG funds. are or will be located on the same or available to a low- or moderate-income person, the person may be presumed to (B) Where CDBG funds are used to contiguous properties, and the buildings pay for the staff and overhead costs of will be under common ownership and be a low- or moderate-income person if: (A) He/she resides within a census a subrecipient making loans to management, the grouped buildings tract (or block numbering area) that businesses exclusively from non-CDBG may be considered for this purpose as either: funds, this requirement may be met by a single structure. Where housing (1) Meets the requirements of aggregating the jobs created by all of the activities being assisted meet the paragraph (a)(4)(v) of this section; or businesses receiving loans during each requirements of paragraph § 570.208 (2) Has at least 70 percent of its program year. (d)(5)(ii) or (d)(6)(ii) of this section, all residents who are low- and moderate- (C) Where CDBG funds are used by a such housing may also be considered for income persons; or recipient or subrecipient to provide this purpose as a single structure. For (B) The assisted business is located technical assistance to businesses, this rental housing, occupancy by low and within a census tract (or block requirement may be met by aggregating moderate income households must be at numbering area) that meets the the jobs created or retained by all of the affordable rents to qualify under this requirements of paragraph (a)(4)(v) of businesses receiving technical criterion. The recipient shall adopt and this section and the job under assistance during each program year. make public its standards for consideration is to be located within (D) Where CDBG funds are used for determining ‘‘affordable rents’’ for this that census tract. activities meeting the criteria listed at purpose. The following shall also (v) A census tract (or block numbering § 570.209(b)(2)(v), this requirement may qualify under this criterion: area) qualifies for the presumptions be met by aggregating the jobs created or * * * * * permitted under paragraphs retained by all businesses for which (4) Job creation or retention activities. (a)(4)(iv)(A)(1) and (B) of this section if CDBG assistance is obligated for such An activity designed to create or retain it is either part of a Federally-designated activities during the program year, permanent jobs where at least 51 Empowerment Zone or Enterprise except as provided at paragraph (d)(7) of percent of the jobs, computed on a full Community or meets the following this section. time equivalent basis, involve the criteria: (E) Where CDBG funds are used by a employment of low- and moderate- (A) It has a poverty rate of at least 20 Community Development Financial income persons. To qualify under this percent as determined by the most Institution to carry out activities for the paragraph, the activity must meet the recently available decennial census purpose of creating or retaining jobs, following criteria: information; this requirement may be met by Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations 1947 aggregating the jobs created or retained a single structure for purposes of guidelines for evaluating projects costs by all businesses for which CDBG applying the criteria at paragraph (a)(3) and financial requirements are not. assistance is obligated for such activities of this section. (a) Guidelines and Objectives for during the program year, except as (6) Where CDBG-assisted activities are Evaluating Project Costs and Financial provided at paragraph (d)(7) of this carried out by a Community Requirements. HUD has developed section. Development Financial Institution guidelines that are designed to provide (F) Where CDBG funds are used for whose charter limits its investment area the recipient with a framework for public facilities or improvements which to a primarily residential area consisting financially underwriting and selecting will result in the creation or retention of of at least 51 percent low- and CDBG-assisted economic development jobs by more than one business, this moderate-income persons, the grantee projects which are financially viable requirement may be met by aggregating may also elect the following options: and will make the most effective use of the jobs created or retained by all such (i) Activities carried out by the the CDBG funds. These guidelines, also businesses as a result of the public Community Development Financial referred to as the underwriting facility or improvement. Institution for the purpose of creating or guidelines, are published as appendix A (1) Where the public facility or retaining jobs may, at the option of the to this part. The use of the underwriting improvement is undertaken principally grantee, be considered to meet the guidelines published by HUD is not for the benefit of one or more particular requirements of this paragraph under mandatory. However, grantees electing businesses, but where other businesses the criteria at paragraph (a)(1)(v) of this not to use these guidelines would be might also benefit from the assisted section in lieu of the criteria at expected to conduct basic financial activity, the requirement may be met by paragraph (a)(4) of this section; and underwriting prior to the provision of aggregating only the jobs created or (ii) All housing activities for which CDBG financial assistance to a for-profit retained by those businesses for which the Community Development Financial business. Where appropriate, HUD’s the facility/improvement is principally Institution obligates CDBG assistance underwriting guidelines recognize that undertaken, provided that the cost (in during the program year may be different levels of review are CDBG funds) for the facility/ considered to be a single structure for appropriate to take into account improvement is less than $10,000 per purposes of applying the criteria at differences in the size and scope of a permanent full-time equivalent job to be paragraph (a)(3) of this section. proposed project, and in the case of a created or retained by those businesses. (7) Where an activity meeting the microenterprise or other small business (2) In any case where the cost per job criteria at § 570.209(b)(2)(v) may also to take into account the differences in to be created or retained (as determined meet the requirements of either the capacity and level of sophistication under paragraph (a)(4)(v)(C)(1) of this paragraph (d)(5)(i) or (d)(6)(i) of this among businesses of differing sizes. section) is $10,000 or more, the section, the grantee may elect to qualify Recipients are encouraged, when they requirement must be met by aggregating the activity under either the area benefit develop their own programs and the jobs created or retained as a result criteria at paragraph (a)(1)(v) of this underwriting criteria, to also take these of the public facility or improvement by section or the job aggregation criteria at factors into account. The objectives of all businesses in the service area of the paragraph (a)(4)(vi)(D) of this section, the underwriting guidelines are to facility/improvement. This aggregation but not both. Where an activity may ensure: must include businesses which, as a meet the job aggregation criteria at both (1) That project costs are reasonable; result of the public facility/ paragraphs (a)(4)(vi) (D) and (E) of this (2) That all sources of project improvement, locate or expand in the section, the grantee may elect to qualify financing are committed; (3) That to the extent practicable, service area of the facility/improvement the activity under either criterion, but CDBG funds are not substituted for non- between the date the recipient identifies not both. Federal financial support; the activity in its final statement and the 10. A new § 570.209 is added to subpart C to read as follows: (4) That the project is financially date one year after the physical feasible; completion of the facility/improvement. § 570.209 Guidelines for evaluating and (5) That to the extent practicable, the In addition, the assisted activity must selecting economic development projects. return on the owner’s equity investment comply with the public benefit The following guidelines are provided will not be unreasonably high; and standards at § 570.209(b). to assist the recipient to evaluate and (6) That to the extent practicable, * * * * * select activities to be carried out for CDBG funds are disbursed on a pro rata (d) * * * economic development purposes. basis with other finances provided to (5) Where the grantee has elected to Specifically, these guidelines are the project. prepare an area revitalization strategy applicable to activities that are eligible (b) Standards for Evaluating Public pursuant to the authority of § 91.215(e) for CDBG assistance under § 570.203. Benefit. The grantee is responsible for of this title and HUD has approved the These guidelines also apply to activities making sure that at least a minimum strategy, the grantee may also elect the carried out under the authority of level of public benefit is obtained from following options: § 570.204 that would otherwise be the expenditure of CDBG funds under (i) Activities undertaken pursuant to eligible under § 570.203, were it not for the categories of eligibility governed by the strategy for the purpose of creating the involvement of a Community-Based these guidelines. The standards set forth or retaining jobs may, at the option of Development Organization (CBDO). below identify the types of public the grantee, be considered to meet the (This would include activities where a benefit that will be recognized for this requirements of this paragraph under CBDO makes loans to for-profit purpose and the minimum level of each the criteria at paragraph (a)(1)(v) of this businesses.) These guidelines are that must be obtained for the amount of section in lieu of the criteria at composed of two components: CDBG funds used. Unlike the guidelines paragraph (a)(4) of this section; and guidelines for evaluating project costs for project costs and financial (ii) All housing activities in the area and financial requirements; and requirements covered under paragraph for which, pursuant to the strategy, standards for evaluating public benefit. (a) of this section, the use of the CDBG assistance is obligated during the The standards for evaluating public standards for public benefit is program year may be considered to be benefit are mandatory, but the mandatory. Certain public facilities and 1948 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations improvements eligible under aggregate standards described in following categories will be considered § 570.201(c) of the regulations, which paragraph (b)(1) of this section: by HUD to provide insufficient public are undertaken for economic (A) Provides jobs exclusively for benefit, and therefore may under no development purposes, are also subject unemployed persons or participants in circumstances be assisted with CDBG to these standards, as specified in one or more of the following programs: funds: § 570.208(a)(4)(vi)(D)(2). (1) Jobs Training Partnership Act (i) The amount of CDBG assistance (1) Standards for activities in the (JTPA); exceeds either of the following, as aggregate. Activities covered by these (2) Jobs Opportunities for Basic Skills applicable: guidelines must, in the aggregate, either: (JOBS); or (A) $50,000 per full-time equivalent, (i) Create or retain at least one full- (3) Aid to Families with Dependent permanent job created or retained; or time equivalent, permanent job per Children (AFDC); (B) $1,000 per low- and moderate- $35,000 of CDBG funds used; or (B) Provides jobs predominantly for income person to which goods or (ii) Provide goods or services to residents of Public and Indian Housing services are provided by the activity. residents of an area, such that the units; (ii) The activity consists of or includes number of low- and moderate-income (C) Provides jobs predominantly for any of the following: persons residing in the areas served by homeless persons; (A) General promotion of the the assisted businesses amounts to at (D) Provides jobs predominantly for community as a whole (as opposed to least one low- and moderate-income low-skilled, low- and moderate-income the promotion of specific areas and person per $350 of CDBG funds used. persons, where the business agrees to programs); (2) Applying the aggregate standards. provide clear opportunities for (B) Assistance to professional sports (i) A metropolitan city or an urban promotion and economic advancement, teams; county shall apply the aggregate such as through the provision of (C) Assistance to privately-owned standards under paragraph (b)(1) of this training; recreational facilities that serve a section to all applicable activities for (E) Provides jobs predominantly for predominantly higher-income clientele, which CDBG funds are first obligated persons residing within a census tract where the recreational benefit to users within each single CDBG program year, (or block numbering area) that has at or members clearly outweighs without regard to the source year of the least 20 percent of its residents who are employment or other benefits to low- funds used for the activities. A grantee in poverty; and moderate-income persons; under the HUD-Administered Small (F) Provides assistance to business(es) (D) Acquisition of land for which the Cities or Insular Areas CDBG programs that operate(s) within a census tract (or specific proposed use has not yet been shall apply the aggregate standards block numbering area) that has at least identified; and under paragraph (b)(1) of this section to 20 percent of its residents who are in (E) Assistance to a for-profit business all funds obligated for applicable poverty; while that business or any other activities from a given grant; program (G) Stabilizes or revitalizes a business owned by the same person(s) income obligated for applicable neighborhood that has at least 70 or entity(ies) is the subject of unresolved activities will, for these purposes, be percent of its residents who are low- findings of noncompliance relating to aggregated with the most recent open and moderate-income; previous CDBG assistance provided by grant. For any time period in which a (H) Provides assistance to a the recipient. community has no open HUD- Community Development Financial (4) Applying the individual activity Administered or Insular Areas grants, Institution that serve an area that is standards. (i) Where an activity is the aggregate standards shall be applied predominantly low- and moderate- expected both to create or retain jobs to all applicable activities for which income persons; and to provide goods or services to program income is obligated during that (I) Provides assistance to a residents of an area, it will be period. Community-Based Development disqualified only if the amount of CDBG (ii) The grantee shall apply the Organization serving a neighborhood assistance exceeds both of the amounts aggregate standards to the number of that has at least 70 percent of its in paragraph (b)(3)(i) of this section. jobs to be created/retained, or to the residents who are low- and moderate- (ii) The individual activity standards number of persons residing in the area income; in paragraph (b)(3)(i) of this section served (as applicable), as determined at (J) Provides employment shall be applied to the number of jobs the time funds are obligated to opportunities that are an integral to be created or retained, or to the activities. component of a project designed to number of persons residing in the area (iii) Where an activity is expected promote spatial deconcentration of low- served (as applicable), as determined at both to create or retain jobs and to and moderate-income and minority the time funds are obligated to provide goods or services to residents of persons; activities. an area, the grantee may elect to count (K) With prior HUD approval, (iii) Where CDBG assistance for an the activity under either the jobs provides substantial benefit to low- activity is limited to job training and standard or the area residents standard, income persons through other placement and/or other employment but not both. innovative approaches; support services, the jobs assisted with (iv) Where CDBG assistance for an (L) Provides services to the residents CDBG funds shall be considered to be activity is limited to job training and of an area pursuant to a strategy created or retained jobs for the purposes placement and/or other employment approved by HUD under the provisions of applying the individual activity support services, the jobs assisted with of § 91.215(e) of this title; standards in paragraph (b)(3)(i) of this CDBG funds shall be considered to be (M) Creates or retains jobs through section. created or retained jobs for the purposes businesses assisted in an area pursuant (c) Amendments to economic of applying the aggregate standards. to a strategy approved by HUD under development projects after review (v) Any activity subject to these the provisions of § 91.215(e) of this title. determinations. If, after the grantee guidelines which meets one or more of (3) Standards for individual activities. enters into a contract to provide the following criteria may, at the Any activity subject to these guidelines assistance to a project, the scope or grantee’s option, be excluded from the which falls into one or more of the financial elements of the project change Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations 1949 to the extent that a significant contract subrecipients (including nonprofit and develop their own programs and amendment is appropriate, the project for-profit subrecipients). underwriting criteria, to also take these should be reevaluated under these and (d) Provision of Public Services. The factors into account. These underwriting the recipient’s guidelines. (This would following activities shall not be subject guidelines are published as appendix A include, for example, situations where to the restrictions on public services to this part. The objectives of the the business requests a change in the under Section 105(a)(8) of the Housing underwriting guidelines are to ensure: amount or terms of assistance being and Community Development Act of (i) That project costs are reasonable; provided, or an extension to the loan 1974, as amended: (ii) That all sources of project payment period required in the (1) Support services provided under financing are committed; contract.) If a reevaluation of the project Section 105(a)(23) of the Housing and (iii) That to the extent practicable, indicates that the financial elements and Community Development Act of 1974, CDBG funds are not substituted for non- public benefit to be derived have also as amended, and paragraph (c) of this Federal financial support; substantially changed, then the section; and (iv) That the project is financially recipient should make appropriate (2) Services carried out under the feasible; adjustments in the amount, type, terms provisions of Section 105(a)(15) of the (v) That to the extent practicable, the or conditions of CDBG assistance which Housing and Community Development return on the owner’s equity investment has been offered, to reflect the impact of Act of 1974, as amended, that are will not be unreasonably high; and (vi) That to the extent practicable, the substantial change. (For example, if specifically designed to increase CDBG funds are disbursed on a pro rata a change in the project elements results economic opportunities through job basis with other finances provided to in a substantial reduction of the total training and placement and other the project. project costs, it may be appropriate for employment support services, (f) Standards for Evaluating Public the recipient to reduce the amount of including, but not limited to, peer Benefit. (1) Purpose and Applicability. total CDBG assistance.) If the amount of support programs, counseling, child The grantee is responsible for making CDBG assistance provided to the project care, transportation, and other similar sure that at least a minimum level of is increased, the amended project must services. (e) Guidelines and Objectives for public benefit is obtained from the still comply with the public benefit Evaluating Project Costs and Financial expenditure of CDBG funds under the standards under paragraph (b) of this Requirements—(1) Applicability. The categories of eligibility governed by section. following guidelines, also referred to as these standards. The standards set forth (d) Documentation. The grantee must the underwriting guidelines, are below identify the types of public maintain sufficient records to provided to assist the recipient to benefit that will be recognized for this demonstrate the level of public benefit, evaluate and select activities to be purpose and the minimum level of each based on the above standards, that is carried out for economic development that must be obtained for the amount of actually achieved upon completion of purposes. Specifically, these guidelines CDBG funds used. These standards are the CDBG-assisted economic are applicable to activities that are applicable to activities that are eligible development activity(ies) and how that eligible for CDBG assistance under for CDBG assistance under section compares to the level of such benefit section 105(a)(17) of the Act, economic 105(a)(17) of the Act, economic anticipated when the CDBG assistance development activities eligible under development activities eligible under was obligated. If the grantee’s actual section 105(a)(14) of the Act, and section 105(a)(14) of the Act, and results show a pattern of substantial activities that are part of a community activities that are part of a community variation from anticipated results, the economic development project eligible economic development project eligible grantee is expected to take all actions under section 105(a)(15) of the Act. The under section 105(a)(15) of the Act. reasonably within its control to improve use of the underwriting guidelines Certain public facilities and the accuracy of its projections. If the published by HUD is not mandatory. improvements eligible under Section actual results demonstrate that the However, states electing not to use these 105(a)(2) of the Act, which are recipient has failed the public benefit guidelines would be expected to ensure undertaken for economic development standards, HUD may require the that the state or units of general local purposes, are also subject to these recipient to meet more stringent government conduct basic financial standards, as specified in standards in future years as appropriate. underwriting prior to the provision of § 570.483(b)(4)(vi)(F)(2). Unlike the CDBG financial assistance to a for-profit guidelines for project costs and financial Subpart IÐState Community business. requirements covered under paragraph Development Block Grant Program (2) Objectives. The underwriting (a) of this section, the use of the guidelines are designed to provide the standards for public benefit is 11. Section 570.482 is amended by recipient with a framework for mandatory. adding paragraphs (c), (d), (e), (f), and financially underwriting and selecting (2) Standards for activities in the (g) to read as follows: CDBG-assisted economic development aggregate. Activities covered by these projects which are financially viable § 570.482 Eligible activities. standards must, in the aggregate, either: and will make the most effective use of (i) Create or retain at least one full- * * * * * the CDBG funds. Where appropriate, time equivalent, permanent job per (c) Provision of Assistance for HUD’s underwriting guidelines $35,000 of CDBG funds used; or Microenterprise Development. recognize that different levels of review (ii) Provide goods or services to Microenterprise development activities are appropriate to take into account residents of an area, such that the eligible under Section 105(a)(23) of the differences in the size and scope of a number of low- and moderate-income Housing and Community Development proposed project, and in the case of a persons residing in the areas served by Act of 1974 (the Act), as amended, (42 microenterprise or other small business the assisted businesses amounts to at U.S.C. 5301 et seq.) may be carried out to take into account the differences in least one low- and moderate-income either through the recipient directly or the capacity and level of sophistication person per $350 of CDBG funds used. through public and private among businesses of differing sizes. (3) Applying the aggregate standards. organizations, agencies, and other Recipients are encouraged, when they (i) A state shall apply the aggregate 1950 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations standards under paragraph (e)(2) of this 20 percent of its residents who are in previous CDBG assistance provided by section to all funds distributed for poverty; the recipient. applicable activities from each annual (G) Stabilizes or revitalizes a (5) Applying the individual activity grant. This includes the amount of the neighborhood income that has at least standards. (i) Where an activity is annual grant, any funds reallocated by 70 percent of its residents who are low- expected both to create or retain jobs HUD to the state, any program income and moderate-income; and to provide goods or services to distributed by the state and any (H) Provides assistance to a residents of an area, it will be guaranteed loan funds made under the Community Development Financial disqualified only if the amount of CDBG provisions of subpart M of this part Institution (as defined in the assistance exceeds both of the amounts covered in the method of distribution in Community Development Banking and in paragraph (f)(4)(i) of this section. the final statement for a given annual Financial Institutions Act of 1994, (12 (ii) The individual activity tests in grant year. U.S.C. 4701 note)) serving an area that paragraph (f)(4)(i) of this section shall be (ii) The grantee shall apply the has at least 70 percent of its residents applied to the number of jobs to be aggregate standards to the number of who are low- and moderate-income; created or retained, or to the number of jobs to be created/retained, or to the (I) Provides assistance to an persons residing in the area served (as number of persons residing in the area organization eligible to carry out applicable), as determined at the time served (as applicable), as determined at activities under section 105(a)(15) of the funds are obligated to activities. the time funds are obligated to Act serving an area that has at least 70 (iii) Where CDBG assistance for an activities. percent of its residents who are low- activity is limited to job training and (iii) Where an activity is expected and moderate-income; placement and/or other employment support services, the jobs assisted with both to create or retain jobs and to (J) Provides employment CDBG funds shall be considered to be provide goods or services to residents of opportunities that are an integral created or retained jobs for the purposes an area, the grantee may elect to count component of a project designed to of applying the individual activity the activity under either the jobs promote spatial deconcentration of low- standards in paragraph (f)(4)(i) of this standard or the area residents standard, and moderate-income and minority section. but not both. persons; (K) With prior HUD approval, (6) Documentation. The state and its (iv) Where CDBG assistance for an grant recipients must maintain activity is limited to job training and provides substantial benefit to low- income persons through other sufficient records to demonstrate the placement and/or other employment level of public benefit, based on the support services, the jobs assisted with innovative approaches. (4) Standards for individual activities. above standards, that is actually CDBG funds shall be considered to be achieved upon completion of the CDBG- created or retained jobs for the purposes Any activity subject to these standards which falls into one or more of the assisted economic development of applying the aggregate standards. activity(ies) and how that compares to (v) Any activity subject to these following categories will be considered by HUD to provide insufficient public the level of such benefit anticipated standards which meets one or more of when the CDBG assistance was the following criteria may, at the benefit, and therefore may under no circumstances be assisted with CDBG obligated. If a state grant recipient’s grantee’s option, be excluded from the actual results show a pattern of aggregate standards described in funds: (i) The amount of CDBG assistance substantial variation from anticipated paragraph (f)(2) of this section: exceeds either of the following, as results, the state and its recipient are (A) Provides jobs exclusively for applicable: expected to take those actions unemployed persons or participants in (A) $50,000 per full-time equivalent, reasonably within their respective one or more of the following programs: permanent job created or retained; or control to improve the accuracy of the (1) Jobs Training Partnership Act (B) $1,000 per low- and moderate- projections. If the actual results (JTPA); income person to which goods or demonstrate that the state has failed the (2) Jobs Opportunities for Basic Skills services are provided by the activity. public benefit standards, HUD may (JOBS); or (ii) The activity consists of or includes require the state to meet more stringent (3) Aid to Families with Dependent any of the following: standards in future years as appropriate. Children (AFDC); (A) General promotion of the (g) Amendments to economic (B) Provides jobs predominantly for community as a whole (as opposed to development projects after review residents of Public and Indian Housing the promotion of specific areas and determinations. If, after the grantee units; programs); enters into a contract to provide (C) Provides jobs predominantly for (B) Assistance to professional sports assistance to a project, the scope or homeless persons; teams; financial elements of the project change (D) Provides jobs predominantly for (C) Assistance to privately-owned to the extent that a significant contract low-skilled, low- and moderate-income recreational facilities that serve a amendment is appropriate, the project persons, where the business agrees to predominantly higher-income clientele, should be reevaluated under these and provide clear opportunities for where the recreational benefit to users the recipient’s guidelines. (This would promotion and economic advancement, or members clearly outweighs include, for example, situations where such as through the provision of employment or other benefits to low- the business requests a change in the training; and moderate-income persons; amount or terms of assistance being (E) Provides jobs predominantly for (D) Acquisition of land for which the provided, or an extension to the loan persons residing within a census tract specific proposed use has not yet been payment period required in the (or block numbering area) that has at identified; and contract.) If a reevaluation of the project least 20 percent of its residents who are (E) Assistance to a for-profit business indicates that the financial elements and in poverty; while that business or any other public benefit to be derived have also (F) Provides assistance to business(es) business owned by the same person(s) substantially changed, then the that operate(s) within a census tract (or or entity(ies) is the subject of unresolved recipient should make appropriate block numbering area) that has at least findings of noncompliance relating to adjustments in the amount, type, terms Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations 1951 or conditions of CDBG assistance which services, in which the percentage of numbering area) that meets the has been offered, to reflect the impact of low- and moderate-income persons requirements of paragraph (b)(4)(v) of the substantial change. (For example, if assisted is less than 51 percent may this section and the job under a change in the project elements results qualify under this paragraph in the consideration is to be located within in a substantial reduction of the total following limited circumstances: that census tract. project costs, it may be appropriate for (A) In such cases where such training (v) A census tract (or block numbering the recipient to reduce the amount of or provision of supportive services is an area) qualifies for the presumptions total CDBG assistance.) If the amount of integrally-related component of a larger permitted under paragraphs (b)(4)(iv) CDBG assistance provided to the project project, the only use of CDBG assistance (A)(1) and (B) of this section if it is is increased, the amended project must for the project is to provide the job either part of a Federally-designated still comply with the public benefit training and/or supportive services; and Empowerment Zone or Enterprise standards under paragraph (f) of this (B) The proportion of the total cost of Community or meets the following section. the project borne by CDBG funds is no criteria: 12. Section 570.483 is amended by: greater than the proportion of the total (A) It has a poverty rate of at least 20 a. Revising the section heading; number of persons assisted who are low percent as determined by the most b. Adding a new paragraph (b)(1)(iv): or moderate income. recently available decennial census c. Revising paragraph (b)(2)(i)(C), and (3) Housing activities. An eligible information; adding new paragraphs (b)(2)(iv) and activity carried out for the purpose of (B) It does not include any portion of (b)(2)(v); providing or improving permanent a central business district, as this term d. Revising paragraph (b)(3) residential structures which, upon is used in the most recent Census of introductory text; completion, will be occupied by low- Retail Trade, unless the tract has a e. Redesignating paragraph (b)(4)(iv) and moderate-income households. This poverty rate of at least 30 percent as as (b)(4)(vi), and by adding new would include, but not necessarily be determined by the most recently paragraphs (b)(4)(iv) and (v); limited to, the acquisition or available decennial census information; f. Revising newly designated rehabilitation of property, conversion of and paragraph (b)(4)(vi)(B); non-residential structures, and new (C) It evidences pervasive poverty and g. Redesignating newly designated housing construction. If the structure general distress by meeting at least one paragraph (b)(4)(vi)(c) as paragraph contains two dwelling units, at least one of the following standards: (b)(4)(vi)(F) and revising it; must be so occupied, and if the (1) All block groups in the census h. Adding new paragraphs structure contains more than two tract have poverty rates of at least 20 (b)(4)(vi)(C), (D) and (E); and dwelling units, at least 51 percent of the percent; i. Adding new paragraphs (e)(4) and units must be so occupied. Where two (2) The specific activity being (5), to read as follows: or more rental buildings being assisted undertaken is located in a block group are or will be located on the same or that has a poverty rate of at least 20 § 570.483 Criteria for national objectives. contiguous properties, and the buildings percent; or * * * * * will be under common ownership and (3) Upon the written request of the (b) * * * management, the grouped buildings recipient, HUD determines that the (1) * * * may be considered for this purpose as census tract exhibits other objectively (iv) Activities meeting the a single structure. Where housing determinable signs of general distress requirements of paragraph (e)(4)(i) of activities being assisted meet the such as high incidence of crime, this section may also be considered to requirements of paragraph (e)(4)(ii) of narcotics use, homelessness, abandoned qualify under this paragraph (b). this section, all such housing may also housing, and deteriorated infrastructure (2) * * * be considered for this purpose as a or substantial population decline. (i) * * * single structure. For rental housing, (vi) * * * (C) Activities where the benefit to occupancy by low and moderate income (B) Where CDBG funds are used to low- and moderate-income persons to be households must be at affordable rents pay for the staff and overhead costs of considered is the creation or retention of to qualify under this criterion. The a subrecipient specified in section jobs, except as provided in paragraph recipient shall adopt and make public 105(a)(15) of the Act making loans to (b)(2)(v) of this section. its standards for determining businesses exclusively from non-CDBG * * * * * ‘‘affordable rents’’ for this purpose. The funds, this requirement may be met by (iv) A microenterprise assistance following shall also qualify under this aggregating the jobs created by all of the activity (carried out in accordance with criterion: businesses receiving loans during any the provisions of Section 105(a)(23) of * * * * * one-year period. the Act or § 570.482(c) and limited to (4) * * * (C) Where CDBG funds are used by a microenterprises) with respect to those (iv) For purposes of determining recipient or subrecipient to provide owners of microenterprises and persons whether a job is held by or made technical assistance to businesses, this developing microenterprises assisted available to a low- or moderate-income requirement may be met by aggregating under the activity who are low- and person, the person may be presumed to the jobs created or retained by all of the moderate-income persons. For purposes be a low- or moderate-income person if: businesses receiving technical of this paragraph, persons determined to (A) He/she resides within a census assistance during any one-year period. be low and moderate income may be tract (or block numbering area) that (D) Where CDBG funds are used for presumed to continue to qualify as such either: activities meeting the criteria listed at for up to a three-year period. (1) Meets the requirements of § 570.482(f)(3)(v), this requirement may (v) An activity designed to provide job paragraph (b)(4)(v) of this section; or be met by aggregating the jobs created or training and placement and/or other (2) Has at least 70 percent of its retained by all businesses for which employment support services, residents who are low- and moderate- CDBG assistance is obligated for such including, but not limited to, peer income persons; or activities during any one-year period, support programs, counseling, child (B) The assisted business is located except as provided at paragraph (e)(5) of care, transportation, and other similar within a census tract (or block this section. 1952 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations (E) Where CDBG funds are used by a unit of general local government, be the authority of section 105(a)(15) of the Community Development Financial considered to meet the requirements of Act; Institution to carry out activities for the this paragraph under the criteria at (iii) Amounts generated by activities purpose of creating or retaining jobs, paragraph (b)(1)(iv) of this section in that are financed by a loan guaranteed this requirement may be met by lieu of the criteria at paragraph (b)(4) of under Section 108 of the Act and meet aggregating the jobs created or retained this section; and one or more of the public benefit criteria by all businesses for which CDBG (ii) All housing activities for which specified at § 570.482(f)(3)(v) or are assistance is obligated for such activities the Community Development Financial carried out in conjunction with a grant during any one-year period, except as Institution obligates CDBG assistance under Section 108(q) of the Act in an provided at paragraph (e)(5) of this during any one-year period may be area determined by HUD to meet the section. considered to be a single structure for eligibility requirements for designation (F) Where CDBG funds are used for purposes of applying the criteria at as an Urban Empowerment Zone public facilities or improvements which paragraph (b)(3) of this section. pursuant to 24 CFR part 597, subpart B. will result in the creation or retention of (5) Where an activity meeting the Such exclusion shall not apply if CDBG jobs by more than one business, this criteria at § 570.482(f)(3)(v) also meets funds are used to repay the guaranteed requirement may be met by aggregating the requirements at paragraph (e)(4)(i) of loan. When such a guaranteed loan is the jobs created or retained by all such this section, the unit of general local partially repaid with CDBG funds, the businesses as a result of the public government may elect to qualify the amount generated shall be prorated to facility or improvement. activity under either the area benefit reflect the percentage of CDBG funds (1) Where the public facility or criteria at paragraph (b)(1)(iv) of this used. Amounts generated by activities improvement is undertaken principally section or the job aggregation criteria at financed with loans guaranteed under for the benefit of one or more particular paragraph (b)(4)(vi)(D) of this section, Section 108 of the Act which are not businesses, but where other businesses but not both. Where an activity may defined as program income shall be might also benefit from the assisted meet the job aggregation criteria at both treated as miscellaneous revenue and activity, the requirement may be met by paragraphs (b)(4)(vi) (D) and (E) of this shall not be subject to any of the aggregating only the jobs created or section, the unit of general local requirements of this part. However, retained by those businesses for which government may elect to qualify the such treatment shall not affect the right the facility/improvement is principally activity under either criterion, but not of the Secretary to require the Section undertaken, provided that the cost (in both. 108 borrower to pledge such amounts as CDBG funds) for the facility/ * * * * * security for the guaranteed loan. The improvement is less than $10,000 per 13. Section 570.489 is amended by: determination whether such amounts permanent full-time equivalent job to be a. Revising paragraph (e)(1) shall constitute program income shall be created or retained by those businesses. introductory text; governed by the provisions of the (2) In any case where the cost per job b. Redesignating paragraph (e)(2) as contract required at § 570.705(b)(1). to be created or retained (as determined paragraph (e)(3); and * * * * * under paragraph (b)(4)(iii)(C)(1) of this c. Adding a new paragraph (e)(2), to section) is $10,000 or more, the read as follows: Subpart JÐGrant Administration requirement must be met by aggregating § 570.489 Program administrative 14. Section 570.500 is amended by the jobs created or retained as a result requirements. revising paragraph (a) introductory text; of the public facility or improvement by * * * * * by adding a new paragraph (a)(4); and all businesses in the service area of the (e) Program income. (1) For the by revising paragraph (c); to read as facility/improvement. This aggregation purposes of this subpart, ‘‘program follows: must include businesses which, as a income’’ is defined as gross income result of the public facility/ received by a state, a unit of general § 570.500 Definitions. improvement, locate or expand in the local government or a subrecipient of a * * * * * service area of the public facility/ unit of general local government that (a) Program income means gross improvement between the date the state was generated from the use of CDBG income received by the recipient or a awards the CDBG funds to the recipient funds, except as provided in paragraph subrecipient directly generated from the and the date one year after the physical (e)(2) of this section. When income is use of CDBG funds, except as provided completion of the public facility/ generated by an activity that is only in paragraph (a)(4) of this section. improvement. In addition, the assisted partially assisted with CDBG funds, the * * * * * activity must comply with the public income shall be prorated to reflect the (4) Program income does not include: benefit standards at § 570.482(e). percentage of CDBG funds used (e.g., a (i) Any income received in a single * * * * * single loan supported by CDBG funds program year by the recipient and all its (e) * * * and other funds; a single parcel of land subrecipients if the total amount of such (4) Where CDBG-assisted activities are purchased with CDBG funds and other income does not exceed $25,000; and carried out by a Community funds). Program income includes, but is (ii) Amounts generated by activities Development Financial Institution not limited to, the following: that are financed by a loan guaranteed whose charter limits its investment area * * * * * under Section 108 of the Act and meet to a primarily residential area consisting (2) ‘‘Program income’’ does not one or more of the public benefit criteria of at least 51 percent low- and include the following: specified at § 570.209(b)(2)(v) or are moderate-income persons, the unit of (i) The total amount of funds which carried out in conjunction with a grant general local government may also elect is less than $25,000 received in a single under Section 108(q) in an area the following options: year that is retained by a unit of general determined by HUD to meet the (i) Activities carried out by the local government and its subrecipients; eligibility requirements for designation Community Development Financial (ii) Amounts generated by activities as an Urban Empowerment Zone Institution for the purpose of creating or eligible under section 105(a)(15) of the pursuant to 24 CFR part 597, subpart B. retaining jobs may, at the option of the Act and carried out by an entity under Such exclusion shall not apply if CDBG Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations 1953 funds are used to repay the guaranteed person is homeless; or the recipient may electing not to use these underwriting loan. When such a guaranteed loan is substitute a copy of a verifiable guidelines would be expected to conduct partially repaid with CDBG funds, the certification from the assisted person basic financial underwriting prior to the amount generated shall be prorated to that his or her family income does not provision of CDBG financial assistance to a for-profit business. States electing not to use reflect the percentage of CDBG funds exceed the applicable income limit these underwriting guidelines would be used. Amounts generated by activities established in accordance with § 570.3; expected to ensure that the state or units of financed with loans guaranteed under or the recipient may substitute a notice general local government conduct basic Section 108 which are not defined as that the assisted person is a referral from financial underwriting prior to the provision program income shall be treated as a state, county or local employment of CDBG financial assistance to a for-profit miscellaneous revenue and shall not be agency or other entity that agrees to business. subject to any of the requirements of refer individuals it determines to be low II. Where appropriate, HUD’s underwriting this Part. However, such treatment shall and moderate income persons based on guidelines recognize that different levels of not affect the right of the Secretary to HUD’s criteria and agrees to maintain review are appropriate to take into account differences in the size and scope of a require the Section 108 borrower to documentation supporting these proposed project, and in the case of a pledge such amounts as security for the determinations.) Such records shall microenterprise or other small business to guaranteed loan. The determination include the following information: take into account the differences in the whether such amounts shall constitute * * * * * capacity and level of sophistication among program income shall be governed by (7) For purposes of documenting, businesses of differing sizes. the provisions of the contract required pursuant to paragraphs (b)(5)(i)(B), III. Recipients are encouraged, when they at § 570.705(b)(1). (b)(5)(ii)(C), (b)(6)(iii) or (b)(6)(v) of this develop their own programs and section, that the person for whom a job underwriting criteria, to also take these * * * * * factors into account. For example, a recipient (c) Subrecipient means a public or was either filled by or made available to administering a program providing only private nonprofit agency, authority or a low- or moderate-income person based technical assistance to small businesses organization, or a for-profit entity upon the census tract where the person might choose to apply underwriting authorized under § 570.201(o), receiving resides or in which the business is guidelines to the technical assistance CDBG funds from the recipient to located, the recipient, in lieu of program as a whole, rather than to each undertake activities eligible for such maintaining records showing the instance of assistance to a business. Given assistance under Subpart C of this part. person’s family size and income, may the nature and dollar value of such a The term excludes an entity receiving substitute records showing either the program, a recipient might choose to limit its CDBG funds from the recipient under person’s address at the time the evaluation to factors such as the extent of the authority of § 570.204. The term determination of income status was need for this type of assistance by the target group of businesses and the extent to which includes a public agency designated by made or the address of the business this type of assistance is already available. a metropolitan city or urban county to providing the job, as applicable, the IV. The objectives of the underwriting receive a loan guarantee under Subpart census tract in which that address was guidelines are to ensure: M of this part, but does not include located, the percent of persons residing (1) that project costs are reasonable; contractors providing supplies, in that tract who either are in poverty (2) that all sources of project financing are equipment, construction or services or who are low- and moderate-income, committed; subject to the procurement requirements as applicable, the data source used for (3) that to the extent practicable, CDBG in 24 CFR 85.36 or in Attachment O of determining the percentage, and a funds are not substituted for non-Federal OMB Circular A–110, as applicable. description of the pervasive poverty and financial support; (4) that the project is financially feasible; 15. Section 570.506 is amended by general distress in the census tract in revising paragraph (b) introductory text; (5) that to the extent practicable, the return sufficient detail to demonstrate how the on the owner’s equity investment will not be by removing the semicolon at the end of census tract met the criteria in unreasonably high; and paragraph (b)(2)(iii) and adding a period § 570.208(a)(4)(v), as applicable. (6) that to the extent practicable, CDBG in its place; by redesignating paragraphs * * * * * funds are disbursed on a pro rata basis with (b)(7) through (b)(11) as paragraphs (c) Records which demonstrate that other finances provided to the project. (b)(8) through (b)(12), respectively; by the recipient has made the i. Project costs are reasonable. i. Reviewing adding a new paragraph (b)(7); and by determinations required as a condition costs for reasonableness is important. It will help the recipient avoid providing either too revising paragraph (c), to read as of eligibility of certain activities, as follows: much or too little CDBG assistance for the prescribed in §§ 570.201(f), 570.201(i), proposed project. Therefore, it is suggested § 570.506 Records to be maintained. 570.202(b)(3), 570.203(b), 570.204(a), that the grantee obtain a breakdown of all * * * * * 570.206(f), and 570.209. project costs and that each cost element (b) Records demonstrating that each * * * * * making up the project be reviewed for activity undertaken meets one of the 16. Appendix A is added to part 570 reasonableness. The amount of time and to read as follows: resources the recipient expends evaluating criteria set forth in § 570.208. (Where the reasonableness of a cost element should information on income by family size is Appendix A to Part 570—Guidelines and be commensurate with its cost. For example, required, the recipient may substitute Objectives for Evaluating Project Costs and it would be appropriate for an experienced evidence establishing that the person Financial Requirements reviewer looking at a cost element of less assisted qualifies under another I. Guidelines and Objectives for Evaluating than $10,000 to judge the reasonableness of program having income qualification Project Costs and Financial Requirements. that cost based upon his or her knowledge criteria at least as restrictive as that used HUD has developed the following guidelines and common sense. For a cost element in in the definitions of ‘‘low and moderate that are designed to provide the recipient excess of $10,000, it would be more income person’’ and ‘‘low and moderate with a framework for financially appropriate for the reviewer to compare the cost element with a third-party, fair-market income household’’ (as applicable) at underwriting and selecting CDBG-assisted economic development projects which are price quotation for that cost element. Third- § 570.3, such as Job Training financially viable and will make the most party price quotations may also be used by Partnership Act (JTPA) and welfare effective use of the CDBG funds. The use of a reviewer to help determine the programs; or the recipient may these underwriting guidelines as published reasonableness of cost elements below substitute evidence that the assisted by HUD is not mandatory. However, grantees $10,000 when the reviewer evaluates projects 1954 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations infrequently or if the reviewer is less A. Private debt financing—whether or not the expectation that the difference will be experienced in cost estimations. If a recipient the participating private, for-profit business taken out as profits, or the business may be does not use third-party price quotations to (or other entity having an equity interest) has overly pessimistic in its market share and verify cost elements, then the recipient applied for private debt financing from a revenue projections and has downplayed its would need to conduct its own cost analysis commercial lending institution and whether profits. using appropriate cost estimating manuals or that institution has completed all of its ii. In addition to the financial underwriting services. financial underwriting and loan approval reviews carried out earlier, the recipient ii. The recipient should pay particular actions resulting in either a firm commitment should evaluate the experience and capacity attention to any cost element of the project of its funds or a decision not to participate of the assisted business owners to manage an that will be carried out through a non-arms- in the project; and assisted business to achieve the projections. length transaction. A non-arms-length B. Equity participation—whether or not the transaction occurs when the entity degree of equity participation is reasonable Based upon its analysis of these factors, the implementing the CDBG assisted activity given general industry standards for rates of recipient should identify those elements, if procures goods or services from itself or from return on equity for similar projects with any, that pose the greatest risks contributing another party with whom there is a financial similar risks and given the financial capacity to the project’s lack of financial feasibility. interest or family relationship. If abused, of the entrepreneur(s) to make additional 5. Return on equity investment. To the non-arms-length transactions misrepresent financial investments. extent practicable, the CDBG assisted activity the true cost of the project. iii. If the recipient is assisting a should provide not more than a reasonable 2. Commitment of all project sources of microenterprise owned by a low- or return on investment to the owner of the financing. The recipient should review all moderate-income person(s), in conducting its assisted activity. This will help ensure that projected sources of financing necessary to review under this paragraph, the recipient the grantee is able to maximize the use of its carry out the economic development project. might only need to determine that non- CDBG funds for its economic development This is to ensure that time and effort is not Federal sources of financing are not available objectives. However, care should also be wasted on assessing a proposal that is not (at terms appropriate for such financing) in taken to avoid the situation where the owner able to proceed. To the extent practicable, the community to serve the low- or moderate- is likely to receive too small a return on his/ prior to the commitment of CDBG funds to income entrepreneur. her investment, so that his/her motivation the project, the recipient should verify that: 4. Financial feasibility of the project. i. The remains high to pursue the business with sufficient sources of funds have been public benefit a grantee expects to derive vigor. The amount, type and terms of the identified to finance the project; all from the CDBG assisted project (the subject CDBG assistance should be adjusted to allow participating parties providing those funds of separate regulatory standards) will not the owner a reasonable return on his/her have affirmed their intention to make the materialize if the project is not financially funds available; and the participating parties feasible. To determine if there is a reasonable investment given industry rates of return for have the financial capacity to provide the chance for the project’s success, the recipient that investment, local conditions and the risk funds. should evaluate the financial viability of the of the project. 3. Avoid substitution of CDBG funds for project. A project would be considered 6. Disbursement of CDBG funds on a pro non-Federal financial support. i. The financially viable if all of the assumptions rata basis. To the extent practicable, CDBG recipient should review the economic about the project’s market share, sales levels, funds used to finance economic development development project to ensure that, to the growth potential, projections of revenue, activities should be disbursed on a pro rata extent practicable, CDBG funds will not be project expenses and debt service (including basis with other funding sources. Recipients used to substantially reduce the amount of repayment of the CDBG assistance if should be guided by the principle of not non-Federal financial support for the activity. appropriate) were determined to be realistic placing CDBG funds at significantly greater This will help the recipient to make the most and met the project’s break-even point risk than non-CDBG funds. This will help efficient use of its CDBG funds for economic (which is generally the point at which all avoid the situation where it is learned that development. To reach this determination, revenues are equal to all expenses). Generally a problem has developed that will block the the recipient’s reviewer would conduct a speaking, an economic development project completion of the project, even though all or financial underwriting analysis of the project, that does not reach this break-even point over most of the CDBG funds going in to the including reviews of appropriate projections time is not financially feasible. The following project have already been expended. When of revenues, expenses, debt service and should be noted in this regard: this happens, a recipient may be put in a returns on equity investments in the project. A. some projects make provisions for a position of having to provide additional The extent of this review should be negative cash flow in the early years of the financing to complete the project or watch appropriate for the size and complexity of the project while space is being leased up or the potential loss of its funds if the project project and should use industry standards for sales volume built up, but the project’s is not able to be completed. When the similar projects, taking into account the projections should take these factors into recipient determines that it is not practicable unique factors of the project such as risk and account and provide sources of financing for to disburse CDBG funds on a pro rata basis, location. such negative cash flow; and ii. Because of the high cost of underwriting B. it is expected that a financially viable the recipient should consider taking other and processing loans, many private financial project will also project sufficient revenues to steps to safeguard CDBG funds in the event lenders do not finance commercial projects provide a reasonable return on equity of a default, such as insisting on securitizing that are less than $100,000. A recipient investment. The recipient should carefully assets of the project. should familiarize itself with the lending examine any project that is not economically Dated: December 22, 1994. practices of the financial institutions in its able to provide a reasonable return on equity Mark C. Gordon, community. If the project’s total cost is one investment. Under such circumstances, a General Deputy Assistant Secretary for that would normally fall within the range business may be overstating its real equity Community Planning and Development. that financial institutions participate, then investment (actual costs of the project may be the recipient should normally determine the overstated as well), or it may be overstating [FR Doc. 94–32151 Filed 12–29–94; 4:33 pm] following: some of the project’s operating expenses in BILLING CODE 4210±29±P federal register January 5,1995 Thursday Land Acquisitions;ProposedRule 25 CFRPart151 Bureau ofIndianAffairs Interior Department ofthe Part VIII 1955 1956 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Proposed Rules DEPARTMENT OF THE INTERIOR DATES: Comments must be received on They request the Secretary to amend the or before March 6, 1995. existing regulation which excludes the Bureau of Indian Affairs ADDRESSES: Written comments should acquisition of land in trust status in the State of Alaska for Alaska Natives and 25 CFR Part 151 be mailed or hand carried to the Chief, Branch of Technical Services, Division tribes, except for the Metlakatla Indian of Real Estate Services, Bureau of Indian Community of the Annette Island RIN 1076±AD11 Affairs, 1849 C Street, N.W., MS–4522– Reserve and its members. Specifically, MIB, Washington, D.C. 20240. the petitioners request the Secretary to: Land Acquisitions (1) remove the portion of the existing FOR FURTHER INFORMATION CONTACT: regulation that prohibits the acquisition AGENCY: Bureau of Indian Affairs, Copies of the petition may be obtained of land in trust status in the State of Interior. by contacting Alice A. Harwood, Chief, Alaska for Alaska Native villages other Branch of Technical Services, Bureau of ACTION: Notice of Petition. than Metlakatla and (2) include in the Indian Affairs, Room 4522, Main definition of ‘‘tribe’’ those Alaska Native Interior Building, 1849 C Street, N.W., SUMMARY: The Department of the villages listed on the Department of the Washington, D.C. 20240; Telephone Interior requests comments on a petition Interior’s list of federally recognized number (202) 208–3604; or by mail at for rulemaking concerning Alaska tribes. Native land acquisitions. This petition the address listed above. Dated: November 29, 1994. recommends amending regulations to SUPPLEMENTRY INFORMATION: Petitioners bring federally recognized Alaska Native include three federally recognized tribes Ada E. Deer, Tribes within the scope of federal in Alaska: Chilkoot Indian Association Assistant Secretary—Indian Affairs. regulations authorizing the acquisition (Haines), the Native Village of Larsen [FR Doc. 95–71 Filed 1–4–95; 8:45 am] of land in trust status. Bay, and the Kenaitze Indian Tribe. BILLING CODE 4310±02±P federal register January 5,1995 Thursday Proposed Rule Designation ofLighteringZones; 33 CFRPart156 Coast Guard Transportation Department of Part IX 1957 1958 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Proposed Rules DEPARTMENT OF TRANSPORTATION SUPPLEMENTARY INFORMATION: U.S.C. 3703a(b)(3)). Currently, only the Request for Comments Louisiana Offshore Oil Port (LOOP) has Coast Guard been authorized under the Deepwater The Coast Guard encourages Port Act of 1974. No lightering zones 33 CFR Part 156 interested persons to participate in this have yet been established under 46 rulemaking by submitting written data, U.S.C. 3715(b)(5). By using designated [CGD 93±081] views, or arguments. Persons submitting lightering zones more than 60 miles comments should include their names RIN 2115±AE90 from the baseline from which the and addresses, identify this rulemaking territorial sea is measured, single hull Designation of Lightering Zones (CGD 93–081) and the specific section of tank vessels contracted for after June 30, this proposal to which each comment 1990 and older single hull tank vessels AGENCY: Coast Guard, DOT. applies, and give the reason for each phased out by OPA 90, would be able ACTION: Notice of proposed rulemaking. comment. Please submit two copies of to lighter in the EEZ until January 1, all comments and attachments in an 2015. SUMMARY: The Coast Guard proposes to unbound format, no larger than 81⁄2 by Lightering of imported crude oil in designate three lightering zones in the 11 inches, suitable for copying and the Gulf of Mexico is of national Gulf of Mexico, more than 60 miles from electronic filing. Persons wanting significance. The Regulatory the baseline from which the territorial acknowledgment of receipt of comments Assessment prepared for this sea of the United States is measured. By should enclose stamped, self-addressed rulemaking estimates that in 1992 using these lightering zones, all single postcards or envelopes. approximately 6.1 million barrels of hull tank vessels would be permitted to The Coast Guard will consider all crude oil per day were imported into the off-load oil within the U.S. Exclusive comments received during the comment United States. Approximately 1.6 Economic Zone (EEZ) until January 1, period. It may change this proposal in million barrels per day (26 percent of 2015. This proposal is in response to view of the comments. imported crude oil) were lightered industry requests, and would establish The Coast Guard plans to hold a offshore in the Gulf of Mexico. the first lightering zones designated by public hearing on this proposed Section 3715 of title 46 of the United the Coast Guard. It would also establish rulemaking in New Orleans, Louisiana. States Code authorizes the Secretary of three areas in which all lightering The date and time will be announced by the Department in which the Coast would be prohibited. a later notice in the Federal Register. Guard is operating to prescribe DATES: Comments must be received on Persons may request additional public regulations on lightering operations or before March 6, 1995. hearings by writing to the Marine Safety involving oil or hazardous material in Council at the address under waters subject to the jurisdiction of the ADDRESSES: Comments may be mailed to ADDRESSES. United States, including provisions on the Executive Secretary, Marine Safety The request should include the establishment of lightering zones (46 Council (G–LRA/3406) (CGD 93–081), the reasons why a hearing would be U.S.C. 3715(b)(5)). This authority was U.S. Coast Guard Headquarters, 2100 beneficial. If it determines that an delegated to Coast Guard District Second Street, SW., Washington, DC additional opportunity for oral Commanders under 33 CFR 156.225 20593–0001, or may be delivered to presentations will aid this rulemaking, where necessary for safety or room 3406 at the same address between the Coast Guard will hold another public hearing at a time and place environmental protection. 8 a.m. and 3 p.m., Monday through Currently, 33 CFR part 156 provides Friday, except Federal holidays. The announced by a later notice in the Federal Register. that the Coast Guard will consider telephone number is (202) 267–1477. various factors in designating lightering Comments on collection-of-information Drafting Information zones: traditional use of the area for requirements must be mailed also to the The principal persons involved in lightering; weather and sea conditions; Office of Information and Regulatory drafting this document are Lieutenant water depth; proximity to shipping Affairs, Office of Management and Commander Stephen Kantz, Project lanes, vessel traffic schemes, Budget, 725 17th Street NW., Manager, Oil Pollution Act (OPA 90) anchorages, fixed structures, designated Washington, DC 20503, Attn: Desk Staff, and C. G. Green, Project Counsel, marine sanctuaries, fishing areas, and Officer, U.S. Coast Guard. Regulations and Administrative Law designated units of the National Park The Executive Secretary maintains the Division (G–LRA). System, National Wild and Scenic public docket for this rulemaking. Rivers System, National Wilderness Comments will become part of this Background and Purpose Preservation System, properties docket. Comments and other materials Section 3703a of title 46 of the United included on the National Register of related to this rulemaking are available States Code establishes the requirements Historic Places and National Registry of for inspection or copying at room 3406, for tank vessels eventually to be Natural Landmarks, and National U.S. Coast Guard Headquarters, between equipped with double hulls and Wildlife Refuge System; and other 8 a.m. and 3 p.m., Monday through includes a phaseout schedule for single relevant safety, environmental, or Friday, except Federal holidays. hull tank vessels. This section also economic data (33 CFR 156.230). A copy of the material listed in provides exemptions from the double This rulemaking proposes to ‘‘Incorporation by Reference’’ of this hull requirement. Until January 1, 2015, designate three lightering zones in the preamble is available for inspection at a tank vessel need not comply with the Gulf of Mexico in which single-hull room B–718, U.S. Coast Guard double hull requirement when it is off- tankers may conduct lightering Headquarters. loading oil at a deepwater port licensed operations as authorized by OPA 90. FOR FURTHER INFORMATION CONTACT: under the Deepwater Port Act of 1974 as This rulemaking requires extensive Lieutenant Commander Stephen Kantz, amended (33 U.S.C. 1501, et seq.) or environmental and economic analysis Project Manager, Oil Pollution Act (OPA within a lightering zone established and documentation and it has been 90) Staff, (G–MS–A), (202) 267–6740. under 46 U.S.C. 3715(b)(5) more than 60 determined to be a significant regulatory This telephone is equipped to record miles from the baseline from which the action under the Department of messages on a 24-hour basis. U.S. territorial sea is measured (46 Transportation (DOT) and the Office of Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Proposed Rules 1959 Management and Budget (OMB) criteria. attended this meeting, representing project and the State’s coastal zone For these reasons, this rulemaking is industry, environmental advocates, and management plan. This issue is being prepared by the Commandant of government agencies. The views discussed in the environmental section the Coast Guard. However, this expressed at the meeting and written of the preamble. proposed rulemaking by the comments received are discussed below A letter from the Department of Commandant will not affect the District and were considered by the Coast Guard Interior’s Mineral Management Service Commander’s authority under 33 CFR in formulating this proposed (MMS) expressed concern that 156.225 to administer and modify these rulemaking. establishing lightering zones may affect zones as appropriate or to designate its offshore lease sales. Establishment of Discussion of Comments subsequent lightering zones. the proposed zones should not affect the Tanker owners and operators leasability of offshore mineral rights. Related Rulemakings supported the designation of lightering Furthermore, the proposed rule On September 15, 1993, the Coast zones in the Gulf of Mexico, incorporates requirements for vessels Guard published a final rule (CGD 90– commenting that the need for lightering underway to cease lightering operations 052) revising 33 CFR part 156, subpart was increasing. They also noted that when within 3 nautical miles (nm) of an B to clarify that regulations issued approximately 40 new tankers offshore structure and vessels at anchor under section 311(j) of the Federal possessing single hulls but otherwise may not conduct lightering when within Water Pollution Control Act (FWPCA) state of the art, are prohibited from a 1 nm radius. (33 U.S.C. 1321 et seq.) apply to offshore lightering in U.S. waters until and The Coast Guard has determined that lightering operations when conducted unless lightering zones are established. designating all U.S. waters of the Gulf in the U.S. marine environment (58 FR In the meantime, most oil is being of Mexico more than 60 miles beyond 48436). Under that rulemaking, a imported in older, presumably less safe, the baseline from which the territorial Declaration of Inspection (as required by single hull tankers. sea is measured as one large lightering 33 CFR 156.150) and a vessel response A representative from LOOP zone is unwarranted. The Coast Guard plan (if required under part 155) serve expressed support for the designation of does, however, propose to establish as acceptable evidence of compliance lightering zones. He pointed out that all three lightering zones in the Gulf of with section 311(j) of the FWPCA. The lighterers, not merely new single hull Mexico off the coasts of Texas, vessel to be lightered and the service tank vessels, could use the zones. Louisiana, and Mississippi generally vessel, as defined in 33 CFR 156.205, Additionally, LOOP argued that this conforming to the specific areas must both have such evidence of project was important enough to requested by the petitioners. Because of compliance on board at the time of a warrant careful analysis. their location, the Coast Guard proposes transfer. The rule also amended A representative of the State of to name these zones ‘‘Southtex,’’ 156.215, pre-arrival notice Louisiana requested that all lightering ‘‘Gulfmex No. 2,’’ and ‘‘Offshore requirements, to include the number of be moved to 60 miles offshore, that the Pascagoula No. 2,’’ respectively. The transfers expected and the amount of State of Louisiana be permitted to coordinates of the proposed zones are cargo expected to be transferred during review any proposal to designate listed in the proposed subpart C of 33 each lightering operation. lightering zones, and that a public CFR part 156. meeting be held in Louisiana. In Analysis of the areas covered by the Publication History addition, this speaker suggested several requests revealed a series of seamounts, In November 1993, the Coast Guard issues for consideration: input from also called pinnacle trends or live received several requests to establish natural resource trustees, consistency bottoms, cutting through the northern lightering zones in the Gulf of Mexico. with area contingency plans, and portion of the requested zone off Texas On December 2, 1993, the Coast Guard response capability for spills in any and proceeding along the northern edge published in the Federal Register a established zones. of the requested central zone off notice of these petitions for rulemaking One attendee requested that any Louisiana. These seamounts consist of and request for comment (58 FR 63544). designation of lightering zones contain coral reefs and other bottom-living The requests received by the Coast provisions to minimize interference organisms which attract other marine Guard for the designation of lightering with artificial reefs. Another attendee life. zones varied in their specifics. One requested measures to ensure that Among these seamounts is the Flower requested that all U.S. waters of the Gulf offshore structures (oil and gas Garden Banks National Marine of Mexico more than 60 miles beyond platforms) and pipelines be avoided. No Sanctuary (the Sanctuary). The the baseline from which the territorial representative of a nongovernmental Sanctuary is administered by the sea is measured be designated as a environmental advocacy group spoke National Oceanic and Atmospheric lightering zone. Another sought a large during the public meeting. Administration (NOAA) of the lightering zone off the coast of Texas The Coast Guard received 45 written Department of Commerce. Certain and a smaller one off the coast of comments, ranging from support to activities in the Sanctuary are either Louisiana. The third request was for a criticism and raising the same issues as prohibited or regulated by NOAA under lightering zone off the coast of noted above. Also, a letter signed by 20 authority of 16 U.S.C. 1431. Those Mississippi. Members of Congress was received regulations are published in 15 CFR part On December 16, 1993, the Coast which voiced concerns about the 943. While anchoring within the Guard published in the Federal Register possible environmental impacts of Sanctuary is prohibited, the issue of a notice of public meeting to solicit designating lightering zones. Two lightering is not addressed in the NOAA opinions on whether lightering zones Congressmen wrote separate letters regulations. Although lightering is not should be established and, if so, where supporting the designation and currently conducted near the Sanctuary, they should be located and what discussing the economic impact of the nothing prohibits such activity from operating conditions should be failure to establish the zones which had occurring. mandated (58 FR 65683). A public been authorized by law. Finally, a letter While the Sanctuary may be the most meeting was held in Houston, Texas, on from the State of Louisiana expressed ecologically sensitive of the various January 18, 1994. Ninety-six people concern over consistency between this seamounts in the vicinity of the 1960 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Proposed Rules requested lightering zones, the Coast discussed in the Environmental also designating the smaller northern Guard has determined that all the Analysis which has been placed in the area as an additional lightering zone. seamounts in this vicinity should be docket. The boundaries of this northern area, protected and lightering in their vicinity Establishment of the prohibited areas which would be called ‘‘South Sabine would constitute an interference with as proposed would result in the division Point,’’ would consist of the waters their passive use. Therefore, included of the requested western zone off Texas bounded by a line connecting the within this proposed rulemaking is a into a small northern zone and a larger following points beginning at: provision which prohibits all lightering southern zone. While the southern zone Latitude N. Longitude W. provides ample room for tank vessels operations in the vicinity of the ° ′ ′′ ° ′ ′′ engaged in lightering, it appears that the 28 30 00 , 92 38 00 , thence to seamounts. For convenience, the 28°44′00′′, 93°24′00′′, thence to smaller northern zone may be 28°33′00′′, 94°00′00′′, thence to seamounts have been grouped in this unnecessary. Thus, the Coast Guard 28°18′00′′, 94°00′00′′, thence to proposed rulemaking into three proposes to designate only the southern 28°18′00′′, 92°38′00′′, prohibited areas, the specific portion of the requested area as a coordinates of which are listed in and thence to the lightering zone. Figure 1 is a pictorial point of beginning. proposed subpart C of 33 CFR part 156. representation of the proposed zones The environmental aspects of this and prohibited areas. The Coast Guard BILLING CODE 4910±14±P proposed rulemaking are more fully requests comments on the practicality of Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Proposed Rules 1961 BILLING CODE 4910±14±C 1962 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Proposed Rules Offshore lightering is a traditional service vessels generally occurs in the any of the concepts developed in this maritime activity in the Gulf of Mexico vicinity of one of nine locations. These rulemaking should be used in such a and has taken place for many years. The locations are listed in the New subsequent rulemaking. Coast Guard’s 1993 Deepwater Ports Worldwide Tanker Nominal Freight Lighterers generally utilize the ‘‘Ship Study contains a summary of data on Scale 1993 (Worldscale) published by to Ship Transfer Guide’’ published by U.S. crude oil spills from 1986 to 1990. the Worldscale Association of London the Oil Companies International Marine The casualty analysis in the Study and New York. Worldscale lists these Forum (OCIMF) and the ‘‘Guide to considered only non-catastrophic oil points as Offshore Transshipment Areas Helicopter/Ship Operations’’ published spills and grouped them into three basic (Offshore TSAs). The coordinates of by the International Chamber of categories: these locations are as follows: Shipping (ICS) as the voluntary (1) Transit casualties: Navigation- standard for industry practice during related accidents, such as groundings or lightering. This rulemaking proposes to collisions, that occurred when the incorporate these guides and require vessel was inbound and loaded with Latitude Longitude consistent use of the practices contained N. W. cargo oil. therein. (2) Transfer casualties: Accidents Offshore Corpus 27°28′ 96°49′ General operational limitations have which occur during cargo transfer Christi No. 1. been voluntarily adopted by the operations when lightering, or Offshore Corpus 27°48′ 95°31′ lightering industry in the Gulf of Mexico discharging in-port, or at LOOP. These Christi No. 2. in addition to those contained in the include human error and equipment Offshore Freeport .... 28°45′ 95°03′ OCIMF and ICS guides. This rulemaking failure such as hose ruptures, leaking Offshore Galveston 28°27′ 94°30′ proposes to make those limitations No. 1. mandatory in the designated zones. For valves, tank overflows, and improper ° ′ ° ′ connections. Offshore Galveston 28 40 94 08 example, the service vessel would be (3) Intrinsic casualties: Accidents No. 2. South Sabine Point .. 28°30′ 93°40′ prohibited from mooring alongside the associated with the operation of the ship South West Point ..... 28°27′ 90°42′ vessel to be lightered when the wind itself rather than the activity (mode) in Gulfmex ...... 28°00′ 89°30′ velocity is 30 knots or more, the wave which it is engaged. These accidents Offshore Pascagoula 29°27′ 88°13′ height is 10 feet or more, or when the would include leaks from hull cracks, eye of a hurricane is predicted to pass sea chests or rudder/propeller seals, Following rendezvous, the two ships within 160 miles in the next 36 hours. accidental discharge of dirty bilges, and maneuver and berth alongside one When lightering at anchor, operations fuel/lube oil spills. Fires and explosions another. Lightering operations are then could not occur within 1 nm of offshore not associated with transfer operations conducted in the general area near these structures. When lightering underway, or navigation are also intrinsic transshipment points. Typically, it takes operations could not be conducted casualties which may result in oil spills. between four and six lighter voyages to when the vessels come within 3 nm of These accidents are equally probable for empty a very large crude carrier (VLCC). an offshore structure. Vessels engaged in any vessel in any mode. Consequently, Each discharge to a service vessel lightering would not be permitted to spills resulting from such intrinsic normally takes about 18 hours, although anchor over pipelines, charted artificial casualties are grouped separately from this may be accomplished in as few as reefs or historical resources. The those resulting from navigation or 12 hours to specially equipped lighters. prohibited areas would include live transfer operations. Under ideal conditions, a VLCC can be topographical features found beyond the The data revealed that for transit turned around in about 4 days, provided 60 mile boundary. casualties in the Gulf of Mexico, none lighters are available for continuous, During normal lightering operations, occurred more than 20 miles offshore. back-to-back operations. However, the vessel to be lightered remains in one For transfer casualties in the Gulf of conditions rarely remain ideal for that general area and several (between four Mexico, the Study lists 15 minor spills length of time. More typically it takes a and six) service vessels rendezvous with attributed to offshore lightering week for a VLCC to be completely it to take its cargo. Often these service operations, with a total discharge of 45 offloaded. It may take longer if bad vessels rapidly follow each other barrels. The rate for these offshore weather interrupts operations; if fewer alongside the vessel to be lightered. transfer casualties was 3 to 4 times per lighters are used; or if the capacity of Some crews of service vessels may be 1,000 transfers with an average spill size the receiving storage facility, pipeline, afforded opportunities to rest between of 3 barrels. or refinery does not permit it to take cargo transfer operations, and some may Not included in the transfer casualty delivery at the optimum rate. Bunkering not, depending upon the cargo’s final data analyzed by the Study was the (refueling) occurs before or after delivery point. Service vessels transiting catastrophic spill from the MEGA BORG lightering; it is not undertaken during congested shipping lanes and pilotage incident in 1990. A pump room lightering operations. waters typically require additional explosion occurred while the MEGA This proposed rulemaking does not watch standers. Some crew members of BORG was engaged in lightering 57 affect lightering operations in the the vessel to be lightered could become miles off the coast of Texas. As a result traditional lightering areas. Double hull overly tired because their lightering of the explosion, a fire started in the tankers and single hull tankers allowed operations continue for uninterrupted pump room and spread to the engine to operate under OPA 90 could continue periods. Tired crew members tend to be room. An estimated 92,857 barrels of to use the traditional areas. Only those less attentive to detail. Such inattention crude oil were burned or released into vessels not otherwise permitted to increases the risk of a casualty. To the water from the MEGA BORG. operate within the EEZ would be reduce the likelihood of a casualty For intrinsic casualties, the data limited to lightering in the zones caused by fatigue, the Coast Guard shows 18 casualties on vessels proposed in this rulemaking. The Coast proposes that work hour limitations be associated in some manner to offshore Guard seeks comments on whether it established for crew members of the lightering activities in the Gulf. should consider a rulemaking to change vessels to be lightered, and associated Rendezvous in the Gulf of Mexico those traditional lightering areas into service vessels. These proposed work between vessels to be lightered and formal lightering zones, and whether hour limitations are the same as those Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Proposed Rules 1963 currently imposed by 46 U.S.C. 8104(n) these proposed zones as compared with and Budget (OMB) under that Order. It on the crew members of U.S. flag most of the traditional lightering areas, is significant under the regulatory tankers. Those limitations, which it is expected that few tank vessels will policies and procedures of the constitute minimum safe operating operate in the vicinity of, but outside, Department of Transportation (44 FR conditions, are that no member of the the proposed zones. 11040; February 26, 1979). A draft crew may be permitted to work more A vessel operator may propose Assessment has been prepared and is than 15 hours in any 24-hour period, or alternative procedures, methods, or available in the docket for inspection or more than 36 hours in any 72-hour equipment standards to be used in lieu copying where indicated under period, except in an emergency or a of the requirements in subpart C. A ADDRESSES. The Assessment is drill. The term ‘‘work’’ includes any proposal would be submitted to the summarized as follows. administrative duties associated with cognizant Captain of the Port (COTP) The Assessment for establishing the vessel, whether performed on board under the procedures in 33 CFR lightering zones contains detailed or ashore. 156.107. Operators seeking an information on crude oil imports to the Under 46 U.S.C. 3711, no foreign flag exemption or partial exemption under U.S., cargo movements and trends, tank vessel can operate in U.S. waters 33 CFR 156.110 from subpart C lightering industry practices and unless it has had a tank vessel requirements may also submit a request economics and the costs of alternative examination within the past year. to the cognizant COTP. The methods of delivery of crude oil to the Sometimes delivering tank vessels Commander, Eighth Coast Guard United States. It contains an analysis of arrive in the vicinity of U.S. waters District, would have authority to issue the effects of OPA 90 and Regulation without a current Tank Vessel exemptions under section 156.110 to the 13G of the International Convention for Examination (TVE) letter and then operating requirements and conditions the Prevention of Pollution from Ships, request a Coast Guard examination at in subpart C of part 156. 1973, as modified by the Protocol of the time of the 24-hour advance notice While the Coast Guard is not required 1978 (MARPOL 73/78) on vessel of arrival. Getting a Coast Guard official to engage in a formal consultation replacement requirements, taking into out to the proposed lightering zones, process with the natural resource account the age and composition of the which are further offshore than the trustees as defined in Executive Order existing tanker fleet, future demand for traditional lightering areas, will require 12777, the Coast Guard welcomes tanker tonnage, shipbuilding capacity, additional time for planning and comments from the various trustees, and current and prospective rates of logistics. Therefore, the Coast Guard particularly regarding the potential new tanker construction. proposes that vessels to be lightered in impact this proposed rulemaking may The Assessment shows that crude oil the zones proposed under this have upon national contingency imports by water are heavily rulemaking be required to notify the planning for the Gulf of Mexico. concentrated in a limited number of appropriate Coast Guard COTP a Under current regulations, tank vessel port areas where major refining minimum of 72 hours before a TVE is operations must be consistent with the complexes are located. The largest desired. The regulations requiring TVEs appropriate Area Contingency Plans and refining centers are situated at or near of vessels involved with lightering are private resources capable of responding ports on the Gulf of Mexico. Major Gulf located at 33 CFR 156.210. to the worst case discharge must be Coast refineries are clustered along the While certain single hull tankers provided for by contract or other lower Mississippi River and at Lake desiring to engage in lightering will approved means. Therefore, no Charles in Louisiana, in the vicinities of have no choice but to use a designated additional requirements for response Houston, Port Arthur/Beaumont, lightering zone, other tank vessels may planning are included in this proposed Freeport, and Corpus Christi in Texas, use these proposed zones at their rule. and at Pascagoula, Mississippi. In 1992, option. Any tank vessel conducting the Gulf Coast region accounted for lightering within these zones must, Incorporation by Reference nearly half of U.S. refinery output and under this proposal, comply with all the Under this proposed rulemaking, the close to three-quarters of crude oil regulations applying to the zone. In following material would be imports. Because Gulf Coast ports do addition, both the delivering vessel to incorporated by reference in § 156.111: not have sufficient water depths to be lightered and the service vessel must Oil Companies International Marine accommodate large vessels which are comply with the relevant provisions of Forum (OCIMF) Ship to Ship Transfer used to transport oil efficiently over 33 CFR parts 151, 153, 155, 156, and Guide (Petroleum), Second Edition, long distances, the practice of lightering 157, including the requirements in these 1988 and International Chamber of has evolved to deliver the oil to port. parts regarding financial responsibility Shipping Guide to Helicopter/Ship Unless lightering zones are and response planning. Operations, Third Edition, 1989. Copies established in the Gulf of Mexico, newly Under 33 CFR 156.225, when a of the material are available for built single hull tankers which were lightering zone has been established, all inspection where indicated under contracted for after June 30, 1990, will lightering operations within a given ADDRESSES. Copies of the material are continue to be excluded from operating geographic area must occur within the also available from the sources listed in in waters under U.S. jurisdiction, except designated lightering zone. As proposed the proposed text of § 156.111. to discharge their cargoes at LOOP. In in this rulemaking, the geographic areas Before publishing a final rule, the order to lighter newly built single hull for each of the zones will be Coast Guard will submit this material to vessels, it would be necessary to coterminous with the zones themselves. the Director of the Federal Register for perform the lightering outside the EEZ, Therefore, with the exception of the approval of the incorporation by more than 200 miles offshore. Some proposed ban on all lightering reference. older single hull vessels not yet affected operations in the prohibited zones, by the OPA 90 phaseout schedule could lightering outside the proposed zones by Assessment continue unrestricted lightering at close- vessels otherwise allowed under OPA This proposal is a significant in locations. Therefore, if lightering 90 to operate within the EEZ will not be regulatory action under section 3(f) of zones are not established, it can be subject to these proposed regulations. Executive Order 12866 and has been anticipated that older single hull tankers Due to the greater distance offshore of reviewed by the Office of Management would be substituted for newly built 1964 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Proposed Rules and generally superior single hull The analysis indicates that there will deterred as a result of the general impact tankers that would be used if the be sufficient numbers of newly built of MARPOL Regulation 13F for new lightering zones are established. double hull tankers and relatively young single hull tankers in excess of 20,000 By the end of this decade, however, single hull tankers unaffected as yet by deadweight tons. the OPA 90 phaseout schedule to meet a large proportion of the existing single Small Entities hull tanker fleet will be affected by the the crude oil import requirements of the phaseout schedule of OPA 90. If United States, provided most of these Under the Regulatory Flexibility Act lightering zones are not established, qualified ships are dedicated to (5 U.S.C. 601 et seq.), the Coast Guard these single hull tankers could be supplying the U.S. market. It seems must consider whether this proposal, if compelled to conduct any lightering likely, however, that the United States adopted, will have a significant operations more than 200 miles will have to pay premium rates above economic impact on a substantial offshore. Lightering under these world market levels to draw these newer number of small entities. ‘‘Small conditions, if it proved to be feasible or ships from the world pool of tanker entities’’ may include (1) small practicable at all, would be more tonnage. businesses and not-for-profit expensive and less safe than lightering The analysis also shows that there is organizations that are independently closer to shore in a designated lightering a high probability of a worldwide owned and operated and are not zone. Weather and sea state conditions shortfall of vessel capacity as this dominant in their fields and (2) not only are more unfavorable in deep- decade comes to a close as a result of governmental jurisdictions with sea areas, but also are more the impact of MARPOL 13G. Although populations of less than 50,000. there is sufficient worldwide unpredictable and subject to rapid The Assessment indicates that change. Serious logistical problems shipbuilding capacity to avert such a shortfall, a very high sustained level of adverse small entity impacts could would be encountered in providing occur as a result of the Coast Guard’s essential support services, such as construction would have to occur, beginning immediately and continuing taking no action to establish lightering workboats, bunkering and provisioning. zones. Some vessels which would be Because operations would have to be for most of the rest of this decade. The current state of orders for new ships lightered in designated lightering zones conducted beyond the range of most could be diverted to transshipment helicopters and remote from the bases of indicates a significant fall-off of new tanker construction from 1994 through terminals in the Bahamas or Caribbean. response vessels, capabilities to respond To the extent that these activities were to emergencies would be impaired. 1996; and current tanker market conditions may not provide the basis for carried out abroad, they would entail Operations could not be monitored or losses of business to the lightering regulated because they would take place financing a high sustained level of construction. An acute worldwide companies and other small businesses, outside U.S. jurisdiction. The Coast shortage of crude oil shipping capacity such as steamship agents, bunkering Guard does not consider lightering could occur lasting for several years, and provisioning companies, and under these circumstances to be either and resulting in significantly increased helicopter operators. practicable or desirable. costs for tank vessel transportation for Because adoption of this proposal will Some of the cargo that is now its duration. The adverse economic lightered could be handled by resorting avert these adverse impacts and consequences for the United States preserve the current revenues derived to transshipment arrangements at would be oil transportation costs terminals or lightering areas in the by small entities from tanker shipping substantially higher than world levels in the Gulf of Mexico, and because it Caribbean or Bahamas, but suitable unless lightering zones are established transshipment terminal capacity in the expects the impact of this proposal to be to enable the United States to draw from minimal, the Coast Guard certifies region is limited. These alternatives to the general world supply of tanker lightering in the Gulf of Mexico, at best, under 5 U.S.C. 605(b) that this proposal, capacity. if adopted, will not have a significant are costly and inefficient expedients. To This rulemaking would establish the extent that these activities were economic impact on a substantial well-defined lightering zones number of small entities. carried out abroad, they would entail strategically sited in the Gulf of Mexico adverse small entity impacts on the to avoid environmentally sensitive areas Collection of Information array of domestic small businesses that and to meet the transportation needs of depend on the revenue of current the region’s refineries. Lightering This proposal contains no new shipping activities, including steamship activities in the zones could be collection-of-information requirements agents, bunkering and provisioning effectively monitored by the Coast or additions to currently approved companies, helicopter operators, and Guard. Oil pollution response plans information collections under the the lightering companies. The loss of could be readily implemented for the Paperwork Reduction Act (44 U.S.C. this business also would have adverse zones. Helicopter, workboat, 3501 et seq.). The sections in this balance of payments impacts. provisioning, bunkering, pollution proposal that contain collection-of- Single hull vessels, old or new, could response, and other essential support information requirements are §§ 156.110 continue to off-load at LOOP until 2015; services would not be impaired. Costs and 156.215 which are approved under but LOOP has capacity to handle only would not be materially affected and OMB Control Numbers 2115–0096 and a portion of the total amount of oil that adverse small entity impacts would not 2115–0539 respectively. is now lightered. Furthermore, LOOP occur. Substantial benefits to the Federalism cannot deliver by pipeline to many of economy would accrue from avoidance the refineries which depend upon of the negative economic impacts that The Coast Guard has analyzed this lighters for their supplies. Adoption of would occur if lightering zones were not proposal under the principles and a no action alternative would impact established. criteria contained in Executive Order refineries and the communities whose Establishing lightering zones will not 12612 and has determined that this economies depend upon them at encourage further single hull proposal does not have sufficient locations that cannot be supplied construction. Since July 6, 1993, single federalism implications to warrant the physically or economically by LOOP. hull tankship construction has been preparation of a Federalism Assessment. Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Proposed Rules 1965 Environment Bank, North Hospital Bank, Sackett either the Louisiana coastal zone plan or The Coast Guard considered the Bank, Diaphus Bank, Fishnet Bank, and the current Texas draft coastal zone environmental impact of this proposal Sweet Bank. These areas are charted and plan, the Coast Guard has initiated and concluded that preparation of an are ecosystems on which many informal discussions with officials in Environmental Impact Statement is not endangered or threatened species are these two states concerning coastal zone necessary. An Environmental dependent. These areas are particularly management issues. In a telephone consultation, the Assessment and a draft Finding of No vulnerable to damage from anchoring Administrator of Louisiana’s Significant Impact are available in the and, to a lesser extent, from oil spills. Department of Natural Resources docket for inspection or copying as While oil spills are not expected to have a significant effect on the biota of Coastal Management Division raised a indicated under ADDRESSES. question as to whether designation of The Environmental Assessment concern in these areas, the Coast Guard the proposed offshore lightering zones considered, among other things, the proposes to establish three ‘‘prohibited would result in increased shore-based factors set out in 33 CFR 156.230: areas’’ where lightering will not be permitted. Establishment of ‘‘prohibited facilities to support lightering which traditional use of the area for lightering; areas’’ over these features will further might affect coastal wetlands, such as weather and sea conditions; water ensure protection of these vital the establishment of additional airports depth; proximity to shipping lanes, ecosystems. Proposed operational to support helicopter operations. As vessel traffic schemes, anchorages, fixed restrictions for designated lightering noted in the Regulatory Assessment, the structures, designated marine zones would also reduce the likelihood shift of some current lightering activity sanctuaries, fishing areas, and of spillage from the tank vessels from the traditional lightering areas to designated units of the National Park utilizing these zones. the proposed lightering zones is not System, National Wild and Scenic ‘‘Historic property’’ or ‘‘historic expected to result in a need for Rivers System, National Wilderness resources’’ are defined under The additional support facilities. Only a Preservation System, properties National Historic Preservation Act (16 substantial increase in the total amount included on the National Register of U.S.C. 470w) as prehistoric or historic of lightering occurring off the coast of Historic Places and National Registry of sites, buildings, structures, or objects. the United States would trigger a need Natural Landmarks, and National This definition includes shipwrecks for additional shore-based support Wildlife Refuge System; other relevant registered with the National Register of facilities. The proposed designation of safety, environmental, or economic data. Historic Places. There are no known lightering zones would not result in The Coast Guard specifically looked at historical properties or resources in the such a change in the amount of oil wildlife and marine habitats and proposed lightering zones. lightered into the United States. topographic features in the proposed Military warning areas also exist The draft plan for Texas does not list lightering zones. throughout the Gulf and are clearly the establishment of offshore lightering The Endangered Species Act of 1973 demarcated. The Department of Defense zones as a federal activity subject to (16 U.S.C. 1531–1543), as amended, commands responsible for these review for consistency. The Coast seeks to protect endangered and warning areas have expressed no Guard’s research and review of threatened species and the ecosystems opposition to the establishment of these environmental effects indicate a low on which they depend. The Act is lightering zones. The Coast Guard does probability that the proposed administered by the Fish and Wildlife not expect military warning areas to be regulations would affect the coastal Service (FWS) and the National Marine significantly impacted by this proposed zone of Texas. Fisheries Service (NMFS). Several rulemaking. The Coast Guard will further consult protected marine species (e.g., Right The Coast Guard has considered the with the States of Louisiana and Texas whales, Kemp’s Ridley sea turtles, and implications of the Coastal Zone after they have had an opportunity to hawksbill turtles) are located Management Act (16 U.S.C. 1451, et review this proposed rulemaking. throughout the Gulf region. seq.) with regard to the proposed action. Volatile organic compound (VOC) air The Coast Guard consulted with the Under this Act, the Coast Guard must emissions result from the operation of regional NMFS office in St. Petersburg, determine whether the proposed ship engines and from oil transfers, such Florida, and the FWS regional offices in activities are consistent with activities as the lightering of oil from one vessel Albuquerque, New Mexico, and Atlanta, covered by a federally approved coastal to another. Nitrogen oxides (NOX) are Georgia, regarding the effect of the zone management plan for each state also produced by engine exhaust. Both proposed regulation on endangered and which may be affected by the action. VOC and NOX are precursors of the threatened species as well as sensitive The States of Louisiana, Mississippi, National Ambient Air Quality Standards environmental areas such as wildlife Florida, and Alabama have federally (NAAQS) pollutant ozone. However, refuges. Each have issued a written approved coastal zone management lightering is a traditional, well- concurrence with the Coast Guard’s plans. The State of Texas has a draft established activity, and the proposed finding that this proposal will not have plan which has not yet been federally rulemaking is not expected to materially an adverse effect on endangered and approved. effect the frequency or volume of oil threatened species. The Coast Guard has determined that transferred in the Gulf of Mexico. Thus The Coast Guard also considered the designation of lightering zones, as the proposed Lightering Zones will not topographic features of the Gulf. These provided in this proposed rulemaking, lead to a net increase in emissions. include areas on the offshore banks will have no effect on the coastal zones National Ambient Air Quality where reef-building activity occurs. of Mississippi, Alabama, or Florida. Standards, promulgated by the These reefs support diverse Designation of the proposed lightering Environmental Protection Agency communities of marine plant and zones has the potential of an indirect (EPA), pursuant to the Clean Air Act animal species in large numbers. The effect on the coastal zones of Louisiana (CAA) (42 U.S.C. 7401 et seq.) provide following areas are of particular and Texas. Although designation of benchmarks against which air quality is concern: the East and West Flower offshore lightering zones is not a listed guaged. Those areas which do not attain Gardens, 32 Fathom Bank, Coffee Lump, activity for which consistency the NAAQS (nonattainment areas) are Claypile Bank, Stetson Bank, Hospital determinations are required under subject to controls aimed at improving 1966 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Proposed Rules the air quality. The proposed material is available for inspection at 7. In part 156, a new subpart C is rulemaking is expected to have no the Office of the Federal Register, 800 added to read as follows: significant effect on any state’s North Capitol Street, NW., suite 700, attainment of air quality standards. Washington, DC, and at the U.S. Coast Subpart CÐLightering Zones and The EPA under the authority of the Guard, Marine Environmental Operational Requirements for the Gulf CAA has promulgated the ‘‘conformity Protection Division (G–MEP), room of Mexico rule’’, which requires that federal 2100, 2100 Second Street, SW., Sec. agencies taking actions in Washington, DC 20593–0001 and is 156.300 Designated lightering zones. nonattainment or maintenance areas available from the sources indicated in 156.310 Prohibited areas. which would result in air emissions to paragraph (b) of this section. 156.320 Minimum operating conditions. make determinations of conformity with (b) The material approved for 156.330 Operational restrictions. the local State Implementation Plan incorporation by reference in this part (SIP) for the NAAQS before acting. The and the sections affected are as follows: § 156.300 Designated lightering zones. lightering zones which would be created The following lightering zones are Oil Companies International Marine by this rule are well outside the designated in the Gulf of Mexico and are Forum (OCIMF) boundaries of the coastal states (more more than 60 miles from the baseline than 60 miles from the baseline for the 6th Floor, Portland House, Stag Place, from which the territorial sea is territorial sea) and therefore, outside London SW1E 5BH England. measured: any nonattainment or maintenance Ship to Ship Transfer Guide (a) Southtex—lightering zone. This areas. By the terms of 40 CFR Part 51, (Petroleum), Second Edition, 1988— lightering zone and the geographic area the conformity rule is not applicable to 156.330 for this zone are coterminous and this rulemaking. International Chamber of Shipping consist of the waters bounded by a line List of Subjects in 33 CFR Part 156 connecting the following points 30/32 St. Mary Axe, London EC3A beginning at: Hazardous substances, Oil pollution, 8ET, England. Latitude N. Longitude W. Reporting and recordkeeping Guide to Helicopter/Ship Operations, ° ′ ′′ ° ′ ′ Third Edition, 1989—156.330 27 40 00 , 93 00 00 , thence to requirements, Water pollution control. 27°40′00″, 94°35′00″, thence to For the reasons set out in the 4. In § 156.205, the definition of 28°06′30″, 94°35′00″, thence to preamble, the Coast Guard proposes to ‘‘work’’ is added in alphabetical order to 27°21′00″, 96°00′00″, thence to amend 33 CFR part 156 as follows: read as follows: 26°30′00″, 96°00′00″, thence to 26°30′00″, 93°00′00″ PART 156ÐOIL AND HAZARDOUS § 156.205 Definitions. and thence to the point of beginning. MATERIAL TRANSFER OPERATIONS * * * * * Work includes any administrative (b) Gulfmex No. 2—lightering zone. 1. The authority citation for part 156 duties associated with the vessel This lightering zone and the geographic is revised to read as follows: whether performed on board the vessel area for this zone are coterminous and Authority: 33 U.S.C. 1231, 1321(j)(1) (C) or onshore. consist of the waters bounded by a line and (D); 46 U.S.C. 3703a. Subparts B and C 5. In § 156.210, paragraph (c) is connecting the following points are also issued under 46 U.S.C. 3715. redesignated as paragraph (d) and a new beginning at: 2. In section 156.110, the introductory paragraph (c) is added to read as Latitude N. Longitude W. text of paragraph (a) is revised to read follows: 27°53′00″, 89°00′00″, thence to as follows: ° ′ ″ ° ′ ″ § 156.210 General. 27 53 00 , 91 30 00 , thence to 26°30′00″, 91°30′00″, thence to § 156.110 Exemptions. * * * * * 26°30′00″, 89°00′00″ (a) The Chief, Office of Marine Safety, (c) On tank vessels to be lightered in and thence to the point of beginning. Security and Environmental Protection, a designated lightering zone, and on acting for the Commandant, grants an service vessels transporting cargo to or (c) Offshore Pascagoula No. 2— exemption or partial exemption from from vessels in a designated lightering lightering zone. This lightering zone and compliance with any requirement in zone, a licensed individual or seaman the geographic area for this zone are this part, and the District Commander may not work more than 15 hours in coterminous and consist of the waters grants an exemption or partial any 24-hour period, or more than 36 bounded by a line connecting the exemption from compliance with any hours in any 72-hour period, except in following points beginning at: operating condition or requirement in an emergency or a drill. Latitude N. Longitude W. subpart C of this part, if: * * * * * 29°20′00″, 87°00′00″, thence to * * * * * 6. In § 156.215, paragraph (d) is added 29°12′00″, 87°45′00″, thence to 3. Section 156.111 is added to read as to read as follows: 28°39′00″, 88°00′00″, thence to follows: 28°00′00″, 88°00′00″, thence to § 156.215 Pre-arrival notices. 28°00′00″, 87°00′00″ § 156.111 Incorporation by reference. * * * * * and thence to the point of beginning. (a) Certain material is incorporated by (d) The master, owner, or agent of § 156.310 Prohibited areas. reference into this part with the each vessel to be lightered in a approval of the Director of the Federal designated lightering zone, requiring a Lightering operations are prohibited Register under 5 U.S.C. 552(a) and 1 Tank Vessel Examination (TVE) or other within the following areas in the Gulf of CFR part 51. To enforce any edition special Coast Guard inspection, must Mexico: other than that specified in paragraph request such TVE or other inspection (a) Claypile—prohibited area. This (b) of this section, the Coast Guard must from the cognizant Captain of the Port prohibited area consists of the waters publish notice of the change in the at least 72 hours prior to Federal Register; and the material must commencement of scheduled lightering be available to the public. All approved operations. Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Proposed Rules 1967 bounded by a line connecting the (iii) The swell height is 3 meters (10 suspend lightering activities and shall following points beginning at: feet) or more. sound at least five short, rapid blasts on Latitude N. Longitude W. (2) When wind and waves differ in the vessel’s whistle. Lightering activities 28°15′00″, 94°35′00″, thence to direction by 30 degrees or more to swell shall remain suspended until corrective 27°40′00″, 94°35′00″, thence to and— action has been completed. 27°40′00″, 94°00′00″, thence to (i) The wind velocity is 46.3 km/hr (e) No vessel involved in a lightering 28°33′00″, 94°00′00″ (25 knots) or more; operation may open its cargo system and thence to the point of beginning. (ii) The wave height is 1.8 meters (6 until the vessel to be lightered is feet) or more; or securely moored alongside the servicing (b) Flower Garden—prohibited area. (iii) The swell height is 1.5 meters (5 vessel. This prohibited area consist of the feet) or more. (f) If any vessel not involved in the waters bounded by a line connecting the (b) Service vessels and vessels to be following points beginning at: lightering operation or support activities lightered shall not conduct lightering approaches within 300 feet of vessels Latitude N. Longitude W. operations and shall not remain moored ° ′ ″ ° ′ ″ engaged in lightering activities, the 27 40 00 , 94 00 00 , thence to alongside when the National Weather vessel engaged in lightering shall warn 28°18′00″, 94°00′00″, thence to Service predicts that the center of a the approaching vessel by sounding a 28°18′00″, 92°38′00″, thence to hurricane will pass within 296 km (160 ° ′ ″ ° ′ ″ loud hailer, ship’s whistle, or any other 28 30 00 , 92 38 00 , thence to nautical miles) of current or expected ° ′ ″ ° ′ ″ appropriate means. 28 15 00 , 91 30 00 , thence to location of lightering operations within 27°40′00″, 91°30′00″ the next 36 hours. (g) No vessels, other than the and thence to the point of beginning. lightering tender, supply boat, or crew § 156.330 Operational restrictions. boat which are equipped with spark (c) Ewing—prohibited area. This arrestors on their exhaust(s), may moor prohibited area consists of the waters Unless otherwise specified in this subpart or when otherwise authorized alongside a vessel engaged in lightering bounded by a line connecting the operations. following points beginning at: by the cognizant COTP or District Commander, the master of a vessel (h) When lightering at anchor, Latitude N. Longitude W. lightering in the zones designated in lightering operations shall not be 27°53′00″, 91°30′00″, thence to ° ′ ″ ° ′ ″ this subpart shall ensure that the conducted within 1 nautical mile of 28 15 00 , 91 30 00 , thence to offshore structures or mobile offshore 28°15′00″, 90°10′00″, thence to following operational restrictions are 27°53′00″, 90°10′00″ complied with: drilling units (MODUs). and thence to the point of beginning. (a) Lightering operations shall be (i) When lightering underway, conducted in accordance with OCIMF lightering operations shall not be § 156.320 Minimum operating conditions. Ship to Ship Transfer Guide conducted within 3 nautical miles of Unless otherwise specified, the (Petroleum), Second Edition, 1988. offshore structures or MODUs. minimum operating conditions in this (b) Helicopter operations shall be (j) No vessel engaged in lightering section apply to tank vessels operating conducted in accordance with activities may anchor over pipelines, within the lightering zones designated International Chamber of Shipping’s charted artificial reefs or historical in this subpart. Guide to Helicopter/Ship Operations, resources. (a) A tank vessel shall not moor or Third Edition, 1989. (k) All vessels engaged in lightering remain moored alongside another vessel (c) The master of the vessel to be activities shall be capable of immediate when any of the following conditions lightered shall ensure a voice warning is maneuver at all times while inside a exist: made prior to the commencement of designated lightering zone. The main (1) When wind, waves, and swell are lightering activities via channel 13 VHF propulsion system must not be disabled from the same direction and— and 2182 Khz. at any time. (i) The wind velocity is 56 km/hr (30 (d) In the event of a communications knots) or more; failure between the lightering vessels or Dated: December 28, 1994. (ii) The wave height is 3 meters (10 the respective persons-in-charge of the A.E. Henn, feet) or more; or transfer, or an equipment failure Vice Admiral, U.S. Coast Guard, Acting affecting the vessel’s cargo handling Commandant. capability or ship’s maneuverability, the [FR Doc. 95–159 Filed 1–4–95; 8:45 am] master of the affected vessel shall BILLING CODE 4910±14±P federal register January 5,1995 Thursday and ApplicationKit;Notice Missing andExploitedChildren'sProgram Discretionary GrantProgramsforTitleIV Fiscal Year1995Competitive Delinquency Prevention Office ofJuvenileJusticeand Justice Department of Part X 1969 1970 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices DEPARTMENT OF JUSTICE and Administrative Requirements, can the performance of the grantee and be obtained by calling the Juvenile program development needs as Office of Juvenile Justice and Justice Clearinghouse, toll-free, 24 hours determined by OJJDP. Delinquency Prevention a day, at (800) 638–8736. Background [OJP (OJJDP) No. 1039] The program announcements contain specific instructions on competitive OJJDP awarded a discretionary grant RIN 1121±ZA06 program requirements, including to the National Center for Missing and eligibility requirements and selection Exploited Children (NCMEC) in April of Notice of the Fiscal Year 1995 criteria. All applications will be 1984. Title IV of the JJDP Act was Competitive Discretionary Grant evaluated and rated by a peer review subsequently enacted by Congress on Programs for Title IV Missing and panel according to the announced October 12, 1984. The original award Exploited Children's Program and selection criteria. Peer review will be was to establish a national resource Application Kit conducted in accordance with the OJJDP center and clearinghouse designed: to provide technical assistance to State and AGENCY: Office of Justice Programs, Competition and Peer Review Policy, 28 CFR part 34, subpart B. local governments, individuals, parents, Office of Juvenile Justice and and other agencies in locating and Delinquency Prevention, DOJ. DATES: Applications under each of the three programs must be received by 5 recovering missing children; to ACTION: Notice of the Fiscal Year 1995 p.m. e.s.t., February 21, 1995. coordinate programs that focus on Competitive Discretionary Grant reuniting missing children with their Programs for Title IV Missing and Applications received after the deadline date will not be considered. lawful custodians; to develop, publish, Exploited Children’s Program and and disseminate instructive materials ADDRESSES: Applications must be announcement of the availability of the about programs, techniques and services OJJDP Application Kit for discretionary received by mail or hand-delivered to: responsive to missing children issues; assistance awards under Title IV, the Ron Laney, Director, Missing and and to provide technical assistance and Missing Children’s Assistance Act (42 Exploited Children’s Program, Office of training to law enforcement agencies, U.S.C. 5771–5780). Juvenile Justice and Delinquency State and local government agencies, Prevention, 633 Indiana Avenue, NW., individuals, and other agencies SUMMARY: The Administrator of the 4th Floor, Washington, DC 20531. Hand- addressing missing children issues Office of Juvenile Justice and delivered applications will be received relative to prevention, investigation, Delinquency Prevention (OJJDP), between the hours of 8:00 a.m. and 5:00 reunification, and treatment in missing pursuant to the Missing Children’s p.m. except Saturdays, Sundays, and and exploited children cases. Assistance Act (42 U.S.C. 5771–5780, Federal holidays. Since the establishment of the Title IV of the Juvenile Justice and APPLICATION REQUIREMENTS: See Missing and Exploited Children’s Delinquency Prevention Act of 1974, as Application Kit and Requests for Program in 1984, OJJDP has funded a amended, 42 U.S.C. 5601 et seq., is Proposals that follow. comprehensive program of research. required through grants or contracts, to: ELIGIBILITY REQUIREMENTS: Applicants Major studies have been completed that establish and operate a 24-hour toll-free must be public agencies or nonprofit define and document the complex telephone line; establish and operate a private organizations or combinations issues of cases of missing children. The national resource center and thereof to be eligible for funding under National Incidence Studies for Missing, clearinghouse; periodically conduct the Missing Children’s Assistance Act. Abducted, Runaway and Thrownaway national incidence studies on missing No proposals, concept papers, or other Children in America (NISMART), children; and provide information on application materials not relevant to this published in 1990, was the first national the use of record information to identify announcement should be submitted. study to provide reliable data about the and locate missing children. In addition, FOR FURTHER INFORMATION CONTACT: Ron numbers and types of missing child the Administrator is authorized to Laney, Director, Missing and Exploited cases and to clarify the types of cases support research, demonstration, or Children’s Program, at the above and situations that make up the service programs to educate parents, address. Telephone (202) 514–7774. ‘‘missing children’’ population. Since provide information, aid communities, This is not a toll-free telephone number. then, other research projects have been increase knowledge, collect data, completed that provide critical address the needs of missing children SUPPLEMENTARY INFORMATION: information about the dynamics of and their families, and establish or Grant Program: National Resource missing child cases, the psychological operate statewide clearinghouses to Center and Clearinghouse impact of abduction on children and assist in locating and recovering missing families, and what happens after a children. Purpose missing child returns home. There were no comments received in The purpose of this solicitation is to It has become clear that there is not response to OJJDP’s proposed Title IV continue the maintenance and a single ‘‘missing child’’ problem. competitive programs for Fiscal Year management of activities, program Children are abducted by strangers and 1995. Therefore, the proposed programs, development and fiscal support acquaintances as well as by parents or as set forth in the Federal Register of necessary to sustain those services other family members. The research has October 12, 1994 and announced in this required of a national resource center shown that family abduction is a far Notice, will be included in OJJDP’s final and clearinghouse under Title IV, the greater problem than previously Title IV program plan. The OJJDP Missing Children’s Assistance Act. realized, and that the effects on children Application Kit for the three programs The award will be made for a project can be disastrous and long-lasting. that follow, containing a copy of period of three years. One cooperative Recovering children abducted by family application form 424, standard and agreement will be awarded with an members can be extremely difficult and special conditions, the OJJDP Peer initial budget period of 12 months. Up costly. Many children who run away Review Guidelines, OJJDP’s to $3,050,000 will be allocated for the return home quickly, but a significant Competition and Peer Review initial 12 month award. Subsequent number run many times and live on the Procedures, and General Application funding support will be determined by streets, constantly exposed to danger Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices 1971 and exploitation. Some of the children Objectives missing child cases. Some of the tasks previously thought of as runaways have 1. To continue the operation of a 24- involved in this case assistance are as in actuality been thrownaway or hour national toll-free telephone line by follows: technical assistance contacts abandoned. Every year many children which individuals may report with parents, law enforcement, state are harmed after they become lost or information regarding the location of missing children clearinghouses, private wander away. Thousands of children any missing child, or other children 13 attorneys, prosecutors, F.B.I., are abducted for short periods of time years of age or younger, whose INTERPOL, State Department and and molested. It is estimated that there whereabouts are unknown to such support groups; and case follow-up are more than 114,000 attempted child’s legal custodian, and request activities by monitoring NLETS, abductions of children each year. information pertaining to procedures verifying full NCIC entries, review of Missing and exploited children are necessary to reunite the child with the recent sightings and providing relevant often already known to community child’s legal custodian. sighting pattern analysis and leads to agencies as victims. Runaway and 2. To continue the operation of a appropriate cognizant agencies in a abducted children may experience national resource center and timely manner. physical and sexual assault while away clearinghouse designed: f. To coordinate public and private from home. Runaways often leave home a. To provide information to State and programs that locate, recover or reunite to escape abuse, and children may local governments, public and private missing children with their legal become involved in sexual exploitation nonprofit agencies, and individuals custodians. as a direct or indirect result of earlier regarding: g. To monitor and provide case victimization. Many family abduction (1) Free or low cost legal, restaurant, analysis for ongoing missing child case cases involve families with histories of lodging, and transportation services that investigative assistance that has been domestic violence. Most parental- are available for the benefit of missing undertaken in more than 6,500 ongoing abducted children have suffered from children and their families; missing child cases plus more than being the focus of bitter conflict prior to (2) The existence and nature of 3,000 new case/lead assignments each being taken. Recovery of abducted programs being carried out by Federal quarter. Some of the tasks involved in children seldom means the end of the Agencies to assist missing children and this case investigative assistance are as conflict or the traumatic effects of an their families; and follows: technical assistance contacts abduction, yet these children only (3) The lawful use of school records with parents, law enforcement, state occasionally receive the mental health and birth certificates to identify and clearinghouses, private attorneys, services that could help them cope. locate missing children. prosecutors, F.B.I., INTERPOL, U.S. Recent studies indicate that children b. To provide, and coordinate with State Department and support groups; who come from households OJJDP’s Title IV Training Program, and case follow-up activities by characterized by violence, abuse or technical assistance and training to monitoring NLETS and verifying full neglect may also be more vulnerable to State and local governments, including NCIC entries, review of recent sightings abuse and exploitation by persons law enforcement and other appropriate and providing relevant sighting pattern outside their home. agencies in: analysis and leads to appropriate The issues surrounding missing and (1) Investigating, reporting, locating, cognizant agencies in a timely manner. exploited children are varied, complex, recovering, and facilitating the reuniting h. To provide, when requested on and tragic. The missing and exploited of missing children with their families cases of nonfamily abduction, on-site children problem is not a minor and/or lawful custodians; assistance by and coordination of the dilemma that can be resolved with a (2) Family abduction cases; trained volunteers who are retired law single approach or by any single agency. (3) National and/or regional missing enforcement personnel through Project Law enforcement officers and other children poster distribution; ALERT and close coordination and professionals who become involved in (4) Developing and distributing liaison with the Federal Morgan these cases face difficult challenges. information and training publications Hardiman Task Force. Agencies must work in collaboration relevant to missing, abducted, and i. To provide, when appropriate, state- with others who share that exploited children’s issues; and of-the-art image enhancement and aging responsibility. (5) Providing case management procedures for follow-up on long-term The first ten years of the Missing and assistance, sighting and lead missing children cases. Exploited Children’s Program have seen information analysis assistance for j. To provide and maintain a a great deal of progress in our missing children cases. computer information network understanding of the issues of these c. To disseminate nationally connection with State missing children child victims. They also have identified information about innovative and model agencies to facilitate the exchange of areas of need and provided missing children programs, services, appropriate missing children case recommendations for future direction and legislation at the State and local information, and technical assistance and activities. Building upon the work level. and training information developed by of the last decade, the goal of the d. To provide technical assistance to or through the National Clearinghouse. Missing and Exploited Children’s appropriate agencies and custodial k. To develop a documented process Program is to ensure that critical parents in cases of national and for determining the publications information gleaned from research and international noncustodial family development targeted at meeting the demonstration programs is successfully abduction and coordinate efforts with Title IV mandates based on the needs of incorporated into existing and new the U.S. Department of State, U.S. the field and the numbers and types of projects funded by OJJDP. As the Department of Criminal Justice, and cases being identified. national clearinghouse and resource INTERPOL. l. To develop a formalized process for center, the successful applicant must e. To provide case analysis (based on working with the state bar associations play a pivotal role in advancing the leads and sightings) for ongoing missing for providing parents and/or legal national response to missing and child case investigative assistance that guardians with a referral process for exploited children. has been undertaken in over 6,500 obtaining pro bono or sliding scale legal 1972 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices services in civil matters concerning Federal agencies to assist missing/ organizational advisory board. The abducted children. exploited children and their families; advisory board will be made up of at 5. To provide and coordinate with least ten (10) individuals representing, Program Strategy OJJDP’s Title IV Training Program at a minimum, the following agencies: This solicitation and resulting technical assistance and training to law enforcement, nonfamily abduction cooperative agreement will ensure the criminal justice agencies, State and local victim parent, family abduction victim effective continuance by OJJDP of a governments, elements of the criminal parent, nonprofit missing children national resource center and justice and youth service system, public organization, social services, mental clearinghouse function for the training and private nonprofit agencies, health, courts, prosecution. This board and technical assistance program to law organized missing/exploited children membership will be submitted to OJJDP enforcement agencies; State and local community organizations, and for approval. governments; entities of the criminal individuals in locating, recovering, and 14. The applicant will include in its justice system, public and private reuniting missing children with their application a detailed plan to justify a nonprofit agencies; and individuals in family or legal custodian; proposed resource allocation (staff and the prevention, investigation, 6. The provision of a national 24-hour funds) based on the actual number of prosecution, and treatment of abducted, toll-free telephone line by which missing/abducted child cases by missing, and exploited children and in individuals may report information category and the amount and type of assisting, locating, and reuniting the regarding the location of any missing technical assistance needed to meet the missing children with their families or child and request information mandates of the national resource center legal custodians. pertaining to the necessary procedures and clearinghouse. The applicant must demonstrate the to reunite such child with the child’s 15. The applicant will include in its experience and capability to provide legal custodian(s); application a detailed plan for timely, relevant professional program 7. The provision of information coordination with the American Bar continuity for the national resource derived from the national 24-hour toll- Association’s Center on Children and center and clearinghouse program. The free telephone line to appropriate the Law, in the development of a successful applicant must demonstrate, cognizant entities in a timely manner; formalized process for working with the in detail, the ability to enlist, train and 8. The coordination of the operation state bar associations and other manage the technical and professional of the 24-hour toll-free telephone line appropriate organizations for providing personnel who will provide with the operation of the national parents and legal guardians with a knowledgeable, credible program communications system established to referral service for obtaining pro bono or continuation and professional program serve runaways (under section 313 of sliding scale legal services in civil technology transfer to parents, criminal the Runaway and Homeless Youth Act, matters concerning their abducted justice system professionals, and 42 U.S.C. 5712a); children. 9. The coordination of public and nonprofit and community agencies. private programs that seek to locate, Eligibility Requirements The operation of a national resource recover, or reunite missing children Applicants are invited from public center and clearinghouse requires the with their legal custodians; agencies and not-for-profit private applicant to provide and arrange for all 10. The dissemination of information organizations. Applicant organizations necessary operational, training about, and the provision of technical may choose to submit joint proposals publications, analytical and technical assistance and training publications with other eligible organizations as long assistance personnel, facilities, regarding comprehensive, innovative, as one organization is designated in the equipment, materials, and services community, multi-agency missing application as the applicant and co- required for the successful continuation children programs, services, and applicants are designated as such. of the existing program activities. These legislation; The applicant and co-applicants must include the following activities: 11. The provision of information to demonstrate fully the required 1. The provision to State and local State and local governments, public and experience to deliver continuation governments, public and private private nonprofit agencies and support services as required in section nonprofit agencies, and individuals individuals to facilitate the lawful use of VI. Applicants must demonstrate, in information regarding free or low-cost school records and birth certificates to addition to program knowledge and legal, restaurant, lodging, and identify and locate missing children; support experience, programmatic and transportation services that are available and fiscal management capabilities to for the benefit of missing children and 12. The provision and maintenance of implement a project of this size and their families; a national on-line computer for the scope effectively. Applicants who fail to 2. The development of a public dissemination of information and demonstrate that they have the education/awareness campaign utilizing technical assistance to and experienced capability to manage a the media and other sources specifically communication between the State program of this size and complexity will focused on the area of family abductions Clearinghouses, law enforcement be ineligible for funding consideration. and the true impact this type of agencies, and appropriate nonprofit abduction has on the children, families organizations established to assist in Specific Application Requirements involved, and society in general; locating, recovering, and reuniting of All applicants must submit a 3. To coordinate publications, media missing children with their legal completed Standard Form 424, activities and all special events with guardian(s) including the Royal Application for Federal Assistance (SF and through the Office of Juvenile Canadian Mounted Police in Canada 424); a Standard Form 424A, Budget Justice and Delinquency Prevention; and New Scotland Yard in the United Information; OJP Form 4000/3, 4. The provision to State and local Kingdom. Assurances; and OJP Form 4061/6, governments, public and private 13. The applicant will include in its Certifications. In addition to these nonprofit agencies, and individuals application a detailed plan for the forms, all applicants must include a information regarding the existence and establishment of a grant advisory board project summary, a budget narrative, nature of programs being carried out by independent of any existing and a program narrative. All not-for- Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices 1973 profit organizations who have not 1. Organizational Capability: The case management practices that can recently received Office of Justice applicant must demonstrate that it is collate national sightings, lead and case Programs funding must submit a eligible to compete for this cooperative information in a relevant, and timely completed Accounting System and agreement and have substantial manner to assist, facilitate and Financial Capability Questionnaire (OJP organizational experience and resources coordinate multi-jurisdictional, national 712011). that can be directly applied to provide and international missing children All forms must be typed. The SF 424 programmatic support that will assure investigations. must appear as a cover sheet for the OJJDP the effective continuance of a e. The applicant must demonstrate entire application. The project summary national resource center and extensive state-of-the-art information should follow the SF 424. All other clearinghouse function for: The 24 hour technology experience to manage, forms must then follow. Applicants national toll free telephone line; the facilitate and service high volume should be sure to sign OJP Forms 4000/ information analysis of sighting and electronic assisted response for 3 and 4061/6. leads; case management assistance technical assistance information needs The project summary must not exceed experience, procedures and data base and exchanges that require fast, accurate 250 words. It must be clearly marked information technology support to responses. and typed single spaced on a single handle case processing procedures f. The applicant must demonstrate the page. Applicants should take care to effectively and responsively for more ability to provide continuity of write a description that accurately and than 6,500 ongoing missing children comprehensive missing and exploited concisely reflects the proposal. cases plus more than 3,000 new case/ children issue services in response to The program narrative must be typed lead assignments each quarter; and the the program objectives and strategies described in this solicitation. double spaced on one side of page only. provision of the training publications 3. Program Goals and Objectives: A The program narrative may not exceed and technical assistance programs to succinct statement demonstrating the 60 pages. The program narrative must law enforcement agencies, State and local governments, elements of the applicant’s understanding of the include all items indicated in the objectives and tasks associated with the Selection Criteria section of this criminal justice system, public and private nonprofit agencies, and program must be included. The solicitation. This page limit does not application must also include a problem apply to supporting materials normally individuals in the prevention, investigation, prosecution, and statement and a discussion of the past found in appendices (such as and potential future contributions of the preliminary surveys, resumes, and treatment of the missing and exploited children cases and in assisting in the applicant’s program to the missing and supporting charts or graphs). exploited children issues required to be In submitting applications that locating and reuniting of the missing children with families or legal performed by a national missing and contain more than one organization, the custodians. exploited children’s clearinghouse and relationships among the parties must be The criteria used for evaluating resource center. The applicant must set forth in the application. As a general applicants is based upon the describe the proposed approach for rule, organizations that describe their responsiveness of the applicant to the achieving the objectives of the program working relationship in the program information and descriptions and the requirements of the program development of products and the found in this solicitation. Applicants strategy as detailed in this delivery of services as primarily must demonstrate that they are eligible announcement. cooperative or collaborative in nature to compete for this cooperative 4. Program Implementation Plan: The will be considered co-applicants. In the agreement on the basis of eligibility applicant must describe its proposed event of a co-applicant submission, one criteria established in this notice. approach to achieving the goals and co-applicant must be designated as the 2. Organizational Experience: a. The objectives of the project. A program payee to receive and disburse project applicant must demonstrate the implementation plan outlining the funds and be responsible for the requisite knowledge of and experience major activities involved in supervision and coordination of the with the missing and exploited children implementing the program, resource activities of the other co-applicant. issue necessary to provide capable, allocation, the program management Under this arrangement, each responsible management of a national must be included. A clear time-task organization must agree to be jointly resource center and clearinghouse, workplan identifying major milestones, and severally responsible for all project including having direct access to NCIC tasks, and products should be part of the funds and services. Each co-applicant and NLETS. application. must sign the SF 424 and indicate their b. The applicant must demonstrate The applicant should include an acceptance of the conditions of joint and experience and expertise in providing organizational chart depicting the roles several responsibility with the other co- technical assistance and training to a and responsibilities of key personnel applicant. diverse audience requiring such services and organizational functional Applications that include with regard to the missing and exploited components that will be responsible for noncompetitive contracts for the children issues described in this supporting and implementation of the provision of specific services must solicitation. program. The applicant should provide include a sole source justification for c. The applicant must demonstrate the detailed position descriptions, any procurement in excess of $25,000. ability to develop as well as provide qualification, and criteria selection for The contractor may not be involved in missing and exploited children the positions. Part-time and practitioner the development of the statement of specialized issue-related training and professionals should also be included, work. The applicant must provide service oriented training materials to the with a statement of their qualifications sufficient justification for not offering recipient jurisdictional, professional, and experience that would directly for competition the portion of work citizens, community needs, and other relate to the service needs of this proposed to be contracted. OJJDP training programs. program. The applicant should denote The following information must be d. The applicant must demonstrate which staff members are considered key included in the application Program the ability to provide for national project personnel and emphasize their Narrative (part IV of SF 424): missing children sighting analysis and position experience. 1974 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices 5. Program Budget: The applicant perceived program needs. Fiscal necessary to sustain those services must provide a three year budget to be integrity and organizational stability required for the development of a prepared by year. Any co-applicant must be demonstrated over time. (35 coordinated and comprehensive associated costs must be detailed points) Training and Technical Assistance separately and accounted for in as much 2. The applicant must demonstrate an Program under Title IV, the Missing detail as the principal applicant. The understanding of an approach to Children’s Assistance Act. applicant must provide a detailed implementing the program objective of The award will be made for a project justification for all costs by object class organizing, providing and maintaining period of three years. One cooperative category as specified in the SF 424. the high level service delivery demands agreement will be awarded with an Costs must be reasonable and the basis of a national resource center and initial budget period of 12 months. Up for these costs must be well documented clearinghouse for missing children. (30 to $750,000 will be allocated for the in a separate budget narrative. points) initial 12 month award. Subsequent 6. Products: A concise description of 3. The qualifications of staff members funding support will be determined by the products to be produced should be identified to manage and implement the the performance of the grantee and included. The applicant must describe program, including consultants, must be program development needs as existing and future program activities adequate for the successful determined by OJJDP. and products that have and will be implementation of the objectives. (25 Background developed or utilized to continue to points) service the program; and should 4. The applicant must provide a Since the beginning of the Missing describe how and who will be served by sound and fully-justified budget that is and Exploited Children’s Program, these products. cost effective to the service provided. OJJDP has funded an aggressive program The proposed costs must be complete, of research and program development. Selection Criteria appropriate, and reasonable to the The first major program was the In general, all applications will be activities of the project. All costs should establishment of a National Resource reviewed in terms of their demonstrated be fully justified in a budget narrative or Center and Clearinghouse on Missing past, present, and potential ability to with other supporting documentation. Children that was established under the continue the development and provide (10 points) National Center for Missing and the requisite services of a national Exploited Children in April 1984. Since Award Period resource center and clearinghouse for that time, OJJDP has funded numerous servicing missing and exploited The project period for the cooperative other programs and projects for the children issues, as they are defined agreement supporting the missing and design, development, and under title IV, The Missing Children’s exploited children national resource implementation of model projects and Assistance Act. The experience and center and clearinghouse is three (3) approaches. Currently, OJJDP funds over knowledge involved for delivery of years. One cooperative agreement will fifty (50) programs and projects in this these services in a capable, efficient, be awarded with an initial budget area, many of which have an emphasis and professional manner is a vital period of 12 months. on designing and developing training criterion for selection. Award Amount and technical assistance materials for All applicants will be evaluated and practitioners on the local, state, and rated based on the extent to which they Up to $3,050,000 has been allocated federal level. meet the following criteria: for the initial budget period. Additionally, major studies funded by 1. Organizational and programmatic Commensurate financial support for the OJJDP have been completed that define capability must be demonstrated. The remaining two project budget periods and document the complex issues of project management structure must be will be determined by the performance missing children cases. The National adequate for the successful conduct of of the grantee, program development Incidence Studies for Missing, the project. The applicant must have needs as determined by OJJDP, and the Abducted, Runaway and Thrownaway demonstrated clearinghouse and availability of funds. Children in America (NISMART) was resource center program management Submission of Application the first national study done that and information technology capabilities provides reliable data about the and experience and capabilities in the Applicants must submit the original, numbers and types of missing child areas described and defined throughout signed application (Standard Form 424) cases and to clarify the types of cases this solicitation; experience working and two unbound copies to OJJDP. and situations that make up the with the various missing children issue Application forms and supplementary ‘‘missing children’’ population. Since groups and agencies at the national, information will be provided upon the last Request for Proposals (RFP), state, municipal, community, individual request for the Application Kit. other research projects have been levels, and international levels; Potential applicants should review the completed that provide critical providing technical assistance, training OJJDP Peer Review Guideline and the information about the dynamics of and information products related to OJJDP Competition and Peer Review missing child cases, the psychological missing and exploited children; Procedures. These documents will be impact of abduction on children and providing missing child case assistance, provided in the Application Kit. families, and what happens after a analysis and coordination; promoting Grant Program: Title IV Training and missing child comes home. the development of professional Technical Assistance It has become clear that there is not approaches to missing children issues; a single ‘‘missing child’’ problem. providing assistance in organizational Purpose Children are abducted by strangers and development processes for improved The purpose of this solicitation is to acquaintances as well as by parents or multi-agency delivery of services establish a mechanism for the other family members. The research has relating to missing children issues; and maintenance, management, and shown that family abduction is a far the relevant experience of applicant’s standardization of activities; program greater problem than previously staff in the missing children issues and design, development, and realized, and the effects on children can their capabilities to address the implementation; and fiscal support be disastrous and long-lasting. Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices 1975 Recovering children abducted by family standardization of the materials and c. Effective multi-agency team members often is extremely difficult and information offered. approaches. costly. Many children who run away This same idea of coordination and d. Effective multi-jurisdictional return home quickly, but a significant standardization was supported by the coordination approaches. number run many times and live on the professionals associated with the e. Available resource education, streets constantly exposed to danger, development of OJJDP’s Title IV Long awareness, and access. exploitation, and becoming involved in Range Plan is the overwhelming need f. State-of-the-art investigative skills criminal activity. Some of the children for coordinated and comprehensive and techniques for location and previously thought of as runaways have training and technical assistance to recovery of missing children. in actuality been thrownaway or enhance the skills of the professionals g. Selected approaches for the abandoned. Every year many children charged with the responsibility of reunification of missing and abducted are harmed after they become lost or handling these very complex and children with their legal guardians. wander away. Thousands of children complicated cases. 4. Establish a database for tracking are abducted for short periods of time Under the current process for the and documentation of communities, and molested. It is estimated that there design, development, and delivery of agencies, and personnel that receive the are more than 114,000 attempted training and technical assistance, each Title IV training and technical nonfamily abductions of children each grantee is faced with the responsibility assistance. year. of developing their own stand alone 5. Develop a mechanism for providing support to OJJDP for incorporation of Missing and exploited children are mechanism for the accomplishment of input from all Title IV Grantees in the often already known to community this task. This system not only creates development of concept papers, reports, agencies as victims. Runaway and additional expense but it also does and related materials in furtherance of abducted children may experience nothing to address the issue of OJJDP’s Title IV Long Range Plan and physical and sexual assault as part of standardization and duplication of meeting the mandates of the Title IV their missing episode. Runaways often effort. Legislation. leave home to escape abuse, and The first ten years of the Missing and 6. Enhance and improve missing and children may become involved in sexual Exploited Children’s Program have seen abducted child serving agencies and exploitation as a direct or indirect result significant progress in our organizations capability and ability to of earlier victimization. Many family understanding of the issues of these respond to the issues related to cases of abduction cases involve families with child victims. They also have identified missing and exploited children. histories of domestic violence. Most areas of need and provided recommendations for future direction 7. Create a stronger link between the parentally-abducted children have front-line personnel working these cases suffered from being the focus of bitter and activities. Building upon the work of the last decade, the goal of the and the policy-makers at the local, state, conflict prior to being taken. Recovery and federal levels. of abducted children seldom means the Missing and Exploited Children’s Program is to ensure that critical 8. Incorporate the Title IV information end of the conflict or the traumatic and work products into training and effects of an abduction, yet these information gleaned from research and demonstration programs is successfully technical assistance products for both children seldom receive the mental front-line personnel and policy-makers. health services that could help them incorporated into existing and new projects funded by OJJDP. 9. Maintain state-of-the-art curricula cope. Recent studies indicate that and materials through systematic children who come from households Objectives review, assessment, and revision of characterized by violence, abuse or 1. Develop an efficient and effective curricula, in concert with OJJDP. neglect may be more vulnerable to abuse mechanism for the systematic and exploitation by persons outside Program Strategy management and delivery of state-of- their home as well. The issues the-art Title IV training and technical This solicitation and resulting surrounding missing and exploited assistance on the national-level that cooperative agreement is to establish a children are varied, complex, and tragic. will: mechanism for the maintenance, The missing and exploited children a. utilize the existing information and management, and standardization of problem is not a minor dilemma that work products from Title IV grantees activities; program design, development, can be resolved with a single approach and programs, and and implementation; and fiscal support or by any single agency. Law b. ensure the incorporation of new necessary to sustain those services enforcement officers and other information and work products required for the development of a professionals who become involved in developed through future efforts. coordinated and comprehensive these cases face difficult challenges. 2. Through this mechanism, Training and Technical Assistance Agencies must work in collaboration coordinate and standardize the Program under Title IV, the Missing with others who share that information, training, technical Children’s Assistance Act. responsibility. assistance on missing and exploited The applicant must demonstrate a The general consensus of all of the children disseminated on the local, proven national experience and Title IV research projects, state, and federal level. capability to provide timely, relevant demonstration programs, and 3. Ensure that the following areas are professional program continuity for the professionals on the local, state, and the principle focus of the training and design, development, delivery, and federal levels is that there is an technical assistance delivered. maintenance of an efficient and effective overwhelming need for training of and a. Effective community and child Title IV Training and Technical technical assistance to agencies and education, prevention, and awareness Assistance Program. personnel working with these types of programs. The applicant must list and provide cases. These sources also indicate that b. Effective community-based letters of agreement to participate from this training and technical assistance approaches for coordination and the primary consultants and trainers must be provided through a central collaboration among the primary service that will be utilized in the design, source providing coordination and provider agencies. development, and delivery of the Title 1976 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices IV training and technical assistance appointees to this advisory board will In submitting applications that programs. be subject to approval by OJJDP. contain more than one organization, the The applicant must demonstrate, in relationships among the parties must be Eligibility Requirements detail, the ability to enlist, train and set forth in the application. As a general manage the technical and professional Applications are invited from public rule, organizations that describe their personnel that will provide agencies and not-for-profit private working relationship in the knowledgeable, credible program organizations. Applicant organizations development of products and the continuation and professional program may choose to submit joint proposals delivery of services as primarily technology transfer to all agencies and with other eligible organizations as long cooperative or collaborative in nature personnel involved in the prevention, as one organization is designated in the will be considered co-applicants. In the identification, location, recovery, and application as the applicant and co- event of a co-applicant submission, one reunification of missing, exploited, and applicants are designated as such. The co-applicant must be designated as the abducted children with their legal applicant and co-applicants must payee to receive and disburse project guardians. demonstrate fully the required funds and be responsible for the The applicant will include in its experience to deliver continuation supervision and coordination of the application a detailed task plan to: support services as required in section activities of the other co-applicant. 1. Justify their resource allocation VI. Applicants must demonstrate, in Under this arrangement, each (staff and funds) based on the actual addition to program knowledge and organization must agree to be jointly number of existing Title IV training support experience, programmatic and and severally responsible for all project programs and proposed new training fiscal management capabilities to funds and services. Each co-applicant and technical assistance program implement a project of this size and must sign the SF 424 and indicate their development, scope effectively. Applicants who fail to acceptance of the conditions of joint and 2. Develop an efficient and effective demonstrate that they have the several responsibility with the other co- mechanism for the systematic experienced capability to manage a applicant. management and delivery of state-of- program of this size and complexity will Applications that include non- the-art Title IV training and technical be ineligible for funding consideration. competitive contracts for the provision assistance on the national-level that of specific services must include a sole will: Specific Application Requirements source justification for any procurement a. utilize the existing information and All applicants must submit a in excess of $25,000. The contractor work products from Title IV grantees completed Standard Form 424, may not be involved in the development and programs, and Application for Federal Assistance (SF of the statement of work. The applicant b. ensure the incorporation of new 424); a Standard Form 424A, Budget must provide sufficient justification for information and work products Information; OJP Form 4000/3, not competing the portion of work developed through future efforts. Assurances; and OJP Form 4061/6, proposed to be contracted. 3. Establish a database for tracking Certifications. In addition to these The following information must be and documentation of communities, forms, all applications must include a included in the application Program agencies, and personnel that receive the project summary, a budget narrative, Narrative (part IV of SF 424): 1. Organizational Capability: The Title IV training and technical and a program narrative. assistance, applicant must demonstrate that it is 4. Enhance and improve missing and All not-for-profit organizations who eligible to compete for this cooperative abducted child serving agencies and have not recently received Office of agreement and have substantial organizations capability and ability to Justice Programs funding must submit a organizational experience and resources respond to the issues related to cases of completed Accounting System and that can be directly applied to provide missing and exploited children, Financial Capability Questionnaire (OJP programmatic support that will assure 5. Create a stronger link between the 712011). OJJDP the effective establishment of a front-line personnel working these cases All forms must be typed. The SF 424 Title IV Training and Technical and the policy-makers at the local, state, must appear as a cover sheet for the Assistance program to law enforcement and federal levels, entire application. The project summary agencies, State and local governments, 6. Incorporate the Title IV information should follow the SF 424. All other other elements of the criminal justice and work products into training and forms must then follow. Applicants system, public and private nonprofit technical assistance products for both should be sure to sign OJP Forms 4000/ agencies, and individual disciplines in front-line personnel and policy-makers, 3 and 4061/6. the prevention, investigation, 7. Maintain state-of-the-art curricula The project summary must not exceed prosecution, and treatment of the and materials through systematic 250 words. It must be clearly marked missing and exploited children cases review, assessment, and revision of and typed single spaced on a single and in assisting in the locating and curricula, in concert with OJJDP. page. Applicants should take care to reuniting of the missing children with The applicant will include in their write a description that accurately and families or legal custodians. application a detailed plan for the concisely reflects the proposal. The criteria used in evaluating establishment of a grant advisory board The program narrative must be typed applicants is based upon the independent of any existing double spaced on one side of a page responsiveness of the applicant to the organizational advisory board. The only. The program narrative may not program information and descriptions advisory board will be made up of at exceed 60 pages. The program narrative found in this solicitation. Applicants least ten (10) individuals representing must include all items indicated in the must demonstrate that they are eligible the following agencies: law Selection Criteria section of this to compete for this cooperative enforcement, nonfamily abduction solicitation. This page limit does not agreement on the basis of eligibility victim parent, family abduction victim apply to supporting materials normally criteria established in this notice. parent, nonprofit organization, social found in appendices (such as 2. Organizational Experience: a. The services, mental health, courts, preliminary surveys, resumes, and applicant must demonstrate the prosecution, and medical. All supporting charts or graphs). requisite knowledge of and experience Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices 1977 with the missing and exploited children qualifications and experience that relating to missing children issues; and issue necessary to provide capable, would directly relate to the service the relevant experience of applicant’s responsible management of a Title IV needs of this program. The applicant staff in the missing children issues and Training and Technical Assistance should denote which staff members are their capabilities to address the Program. considered key project personnel and perceived program needs. Fiscal b. The applicant must demonstrate emphasize their position experience. integrity and organizational stability experience and expertise in providing 5. Program Budget: The applicant must be demonstrated over time. (25 technical assistance and training to a must provide a three year budget to be points) diverse audience requiring such services prepared by year. Any co-applicant with regard to the missing and exploited associated costs must be detailed 2. The applicant must have children issues described in this separately and accounted for in as much demonstrated understanding of an solicitation. detail as the principal applicant. The approach to implementing the program c. The applicant must demonstrate the applicant must provide a detailed objectives of organizing, providing and ability to assist in the development of justification for all costs by object class maintaining the high level service missing and exploited children category as specified in the SF 424. delivery demands of a Title IV Training specialized issue-related training and Costs must be reasonable and the basis and Technical Assistance Program. (25 service-oriented training materials to the for these costs must be well documented points) recipient jurisdiction, professional, in a separate budget narrative. 3. The qualifications of staff members citizen, community needs, and other 6. Products: A concise description of OJJDP training and technical assistance the products to be produced should be identified to manage and implement the programs. included. The applicant must describe program, including consultants, must be d. The applicant must demonstrate existing and future program activities adequate for the successful the ability to provide continuity of and products that have and will be implementation of the objectives. (40 comprehensive missing and exploited developed or utilized to continue to points) children issue services in response to service the program; and should 4. The applicant must provide a the program objectives and strategies describe how and who will be served by sound and fully-justified budget that is described in this solicitation. these products. cost effective to the services provided. 3. Program Goals and Objectives: A Selection Criteria The proposed costs must be complete, succinct statement demonstrating the appropriate, and reasonable to the applicant’s understanding of the In general, all applications will be activities of the project. All costs should objectives and tasks associated with the reviewed in terms of their demonstrated program must be included. The past, present and potential ability to be fully justified in a budget narrative or application must also include a problem continue the development and provide with other supporting documentation. statement and a discussion of the past the requisite services for a Title IV (10 points) and potential future contributions of the Training and Technical Assistance Award Period applicant’s program to the missing and Program for servicing missing and exploited children issues required to be exploited children issues, as they are The project period for the cooperative performed by an organization assuming defined under Title IV, The Missing agreement supporting the Title IV the responsibility for the Title IV Children’s Assistance Act. The Training and Technical Assistance Training and Technical Assistance. The experience and knowledge involved for Training Grant is three (3) years. One applicant must describe the proposed delivery of these services in a capable, cooperative agreement will be awarded approach for achieving the objectives of efficient and professional manner is, of with an initial budget period of 12 the program and the requirements of the course, a vital criteria for selection. months. program strategy as detailed in this All applicants will be evaluated and announcement. rated based on the extent to which they Award Amount 4. Program Implementation Plan: The meet the following criteria: applicant must describe its proposed 1. Organizational and programmatic Up to $750,000 has been allocated for approach to achieving the goals and capability must be demonstrated. The the initial budget period. Commensurate objectives of the project. A program project management structure must be financial support for the remaining two implementation plan outlining the adequate for the successful conduct of project budget periods will be major activities involved in the project. The applicant must have determined by the performance of the implementing the program, resource demonstrated Title IV experience and grantee program development needs as allocation, the program management program management and information determined by OJJDP, and the must be included. A clear time-task technology capabilities and experience availability of funds. workplan identifying major milestones, and capabilities in the areas described Submission of Application tasks, and products should be a part of and defined throughout this solicitation; the application. experience working with the various Applicants must submit the original, The applicant should include an missing children issue groups and signed application (Standard Form 424) organizational chart depicting the roles agencies at the national, state, and two unbound copies to OJJDP. and responsibilities of key personnel municipal, community, and individual Application forms and supplementary and organizational functional levels; providing technical assistance, information will be provided upon components that will be responsible for training and information products request for the Application Kit. supporting and implementation of the related to missing and exploited Potential applicants should review the program. The applicant should provide children; and promoting the OJJDP Peer Review Guideline and the detailed position descriptions, development of professional approaches qualifications, and criteria for selection to missing children issues; providing OJJDP Competition and Peer Review for the positions. Part-time and assistance in organizational Procedures. These documents will be practitioner professionals should also be development processes for improved provided in the Application Kit. included, with a statement of their multi-agency delivery of services 1978 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices Grant Program: Effective Community- ground breaking research has been The experiences of many of these Based Approaches for Dealing With completed or is still underway. Much children and their families are not Missing and Exploited Children more is known about the issues unlike that of abused and neglected surrounding missing and exploited children. There are many commonalities Purpose children, and this information provides and linkages. Children often suffer The purpose of this solicitation is to important direction for future action to multiple types of victimization and one identify, research, evaluate, and improve the response to these victims. form of victimization may directly or document effective community-based, No single health, social service, law indirectly lead to others. Often runaway organizations from around the country enforcement, or judicial system exists to and thrownaway children have left that use multi-disciplinary team track and comprehensively assess the abusive homes and are at increased risk approaches to address the complex number and circumstances of child for suicide, assault, exploitation, and issues related to missing and exploited victimization on a national level, murder while on the streets. Children children and their families. The including child deaths. The same is true who are neglected or inadequately solicitation will identify a minimum of in most states and local jurisdictions as supervised may be especially vulnerable five (5) community-based organizations well. Data on child victimization resides to a variety of risks. Some children are that provide a cross-sectional in several different forms, including reported missing by a parent who representation of the demographics of police crime reports, child protective actually killed the child and is trying to the country. The effective approaches service reports, and vital statistics. None conceal his or her act. The majority of being used in these communities will be of these sources contain information on family abduction cases involve families developed into a training curriculum all types of maltreatment of children. with histories of domestic violence. that will be used to assist communities Definitions are inconsistent across Most parentally-abducted children have in the establishment of an effective, agencies and disciplines. The names suffered from being the focus of bitter cooperative, and collaborative and definitions given to child conflict prior to being taken. Recovery community-based, multi-disciplinary victimization, as well as how we of abducted children seldom means the team approach to missing and exploited address it, differs according to the end of the conflict or the traumatic children’s issues. relationship of the perpetrator to the effects of an abduction, yet these The award will be made for a project child victim. If the offender is a family children seldom receive the mental period of three years. One cooperative member or caretaker, it is called abuse; health services that could help them agreement will be awarded with an if the offender is a stranger or cope. Recent studies indicate that initial budget period of 18 months. Up acquaintance, it is called an assault or children who come from households to $250,000 will be allocated for the some other type of ‘‘crime.’’ Generally, characterized by violence, abuse or initial 18 month award. Subsequent the criminal justice system handles neglect may be more vulnerable to abuse funding support will be determined by victimization of children by nonfamily and exploitation by persons outside the performance of the grantee and members while social service agencies their home as well. Other studies program development needs as handle victimization by family members indicate that the lines between incest determined by OJJDP. or caretakers. and sexual abuse by nonfamily persons National crime justice statistics, with Background may not be as distinct as previously the exception of abduction and believed, i.e., many incest perpetrators The term ‘‘missing children’’ has been homicide, do not include crimes against also molest children other than their used to describe many children who children under the age of twelve. It is own. become missing or are displaced for usually worse on the local and state various and differing reasons. Children levels. Child abuse data is not included Objectives may be missing because they have been in criminal statistics. Some particularly 1. Identify five demographics abducted by a stranger or acquaintance. violent abuse cases of children may be representative community programs that A surprisingly large number of children contained in police reports but not most have in place an active and working (354,000 per year) are abducted by a of them. Child protective service community-based process for parent or family member as part of an agencies do not keep data on nonfamily, addressing the needs of and issues ongoing divorce or custody battle. noncaretaker abuse of children. They related to missing, exploited, and About half a million children run away usually refer such cases to the police abducted children and their families. from home each year. There are many and do not provide services to those 2. Research and evaluate the programs children designated as ‘‘thrownaway’’ children and their families. Most in the selected communities to children because they have been assaults against children are simply determine their strengths and abandoned or told to leave home. Other never reported to any agency. weaknesses in addressing such issues children wander away from home or Most communities approach the as: confidentiality; sharing of become lost or injured for other reasons. different forms of child maltreatment in information; inter-agency agreements; While most children eventually are a fragmented fashion with social cross-training; statistical information recovered or return home, they may be services handling intra-familial cases of gathering and analysis; identification missing for a few hours, days, weeks, or abuse and neglect, law enforcement and resolution of system gaps; case and years. Some children are found dead or handling nonfamily assault and services management; establishing are never recovered at all. abduction cases, and many child public-private partnerships; interacting Society’s understanding of the issues victims simply going unrecognized and with agencies on the state and federal relating to these ‘‘missing and untreated. At best, communities may levels; multi-level prevention education displaced’’ children and its response have a vague picture of who the missing and awareness programs; conducting has been slow to develop. Since the and exploited children are in their cooperative investigative practices; passage of most federal and state jurisdiction. If they look closely, they resource allocation and sharing; cultural legislation regarding missing children realize that these invisible children are diversity; education and awareness of and the inception of the Missing and frequently already known to their policy-makers; recovery and Exploited Children’s Program in the criminal justice and social service reunification of the child victims with Department of Justice, an array of agencies as victims or perpetrators. their family and community; and other Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices 1979 issues having a direct impact on the The applicant will include in their 3. Participants’s Guide: ability and capability of a community to application a detailed plan for a. Course agenda respond to the needs of missing, coordination with other Title IV grant b. Participant note taking guide exploited, and abducted children and programs to incorporate state-of-the-art c. Reference and resource materials their families. techniques and information into the The training curriculum will be 3. Prepare and document a training curricula. designed to provide the participants comprehensive report of the research 1. The research and evaluation with the skills and knowledge necessary and evaluation conducted on the five component of application must to strategically plan, implement, selected communities. The report will demonstrate how the information on the establish, and evaluate a community- be in journalistic style format. It will programs in the selected communities illustrate the strengths and weaknesses based multidisciplinary team process will be analyzed to determine their for effectively addressing issues and of the communities studied. This report strengths and weaknesses in addressing also will provide information on why needs of their missing, exploited, and such issues as: abducted children and their families these types of community-based a. confidentiality approaches succeed as well as fail. while utilizing existing community b. sharing of information resources. 4. Design and develop a multi-level c. inter-agency agreements training curriculum that incorporates all d. cross-training Eligibility Requirements of the strengths documented in the five [e. statistical information gathering and selected communities. The training Applications are invited from public analysis] agencies and not-for-profit private curriculum will also incorporate f. identification and resolution of system information and techniques developed organizations. Applicant organizations gaps may choose to submit joint proposals by other OJJDP programs and initiative g. case and services management in this area. The curriculum will enable with other eligible organizations as long h. establishing public-private as one organization is designated in the jurisdictions to strategically plan, partnerships implement, and evaluate a community- application as the applicant and co- i. interaction with agencies on the state applicants are designated as such. The based multi-disciplinary team process and federal levels for effectively addressing the issues and applicant and co-applicants must j. multi-level prevention education and demonstrate fully the required needs of their missing, exploited, and awareness programs abducted children and their families experience to deliver continuation k. conducting cooperative investigative support services as required in section while utilizing existing community practices resources. VI. Applicants must demonstrate, in l. resource allocation and sharing addition to program knowledge and Program Strategies m. cultural diversity support experience, programmatic and [n. education and awareness of policy- This solicitation and resulting fiscal management capabilities to makers] cooperative agreement will identify, implement a project of this size and o. recovery and reunification of the research, evaluate, and document scope effectively. Applicants who fail to child victims with their family and effective community-based demonstrate that they have the community experienced capability to manage a organizations from around the country p. other issues having a direct impact on that use multi-disciplinary team program of this size and complexity will the ability and capability of a be ineligible for funding consideration. approaches to address the complex community to respond to the needs of issues related to missing and exploited missing, exploited, and abducted Specific Application Requirements children and their families. children and families The applicant must demonstrate, in All applicants must submit a detail, the ability to enlist and manage Prepare and document a completed Standard Form 424, the technical and professional personnel comprehensive written report of the Application for Federal Assistance (SF that will provide knowledgeable, research and evaluation conducted on 424); a Standard Form 424A, Budget credible program development and the five selected communities. The Information; OJP Form 4000/3, professional program technology report will be in journalistic style Assurances; and OJP Form 4061/6, transfer to all community agencies. format. It will illustrate the strengths Certifications. In addition to these The applicant must demonstrate a and weaknesses of the communities forms, all applicants must include a comprehensive and equitable process to studied. This report also will provide project summary, a budget narrative, identify a minimum of five (5) information on why these types of and a program narrative. community organizations that are community-based approaches succeed All not-for-profit organizations who representative of the country. as well as fail. have not recently received Office of The applicant will include in their The applicant must present in detail Justice Programs funding must submit a applications a detailed plan for the the process that will be used for the completed Accounting System and establishment of a grant advisory board. design and development of a multi-level Financial Capability Questionnaire (OJP The advisory board will be made up of training curriculum that incorporates all 712011). at least ten (10) individuals representing of the strengths documented in the five All forms must be typed. The SF 424 the following agencies: law selected communities. The training must appear as a cover sheet for the enforcement, nonfamily abduction curriculum must include: entire application. The project summary victim parent, family abduction victim 2. Instructor’s Guide: should follow the SF 424. All other parent, nonprofit organization, social a. Course agenda forms must then follow. Applicants services, mental health, courts, b. Lesson plan cover sheets for each should be sure to sign OJP Forms 4000/ prosecution and representative from instructional block that include: 3 and 4061/6. Association of Missing and Exploited (1) terminal objective The project summary must not exceed Childrens Organizations (AMECO). This (2) instructor tasks 250 words. It must be clearly marked board membership will be submitted to (3) learning objectives and typed single spaced on a single OJJDP for approval. (4) participant handout materials page. Applicants should take care to 1980 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices write a description that accurately and representation of the demographics of components that will be responsible for concisely reflects the proposal. the country. The effective approaches supporting and implementation of the The program narrative must be typed being used in these communities will be program. The applicant should provide double spaced on one side of page only. developed into a training curriculum detailed position descriptions, The program narrative may not exceed that will be used to assist communities qualification, and criteria selection for 60 pages. The program narrative must in the establishment of an effective, the positions. Part-time and practitioner include all items indicated in the cooperative, and collaborative professionals should also be included, Selection Criteria section of this community-based, multi-disciplinary with a statement of their qualifications solicitation. This page limit does not team approach to missing and exploited and experience that would directly apply to supporting materials normally children’s issues. The criteria used in relate to the service needs of this found in appendices (such as evaluating applicants is based upon the program. The applicant should denote preliminary surveys, resumes, and responsiveness of the applicant to the which staff members are considered key supporting charts or graphs). program information and descriptions project personnel and emphasize their In submitting applications that found in this solicitation. Applicants position experience. contain more than one organization, the must demonstrate that they are eligible 5. Program Budget: The applicant relationships among the parties must be to compete for this cooperative must provide a three year budget to be set forth in the application. As a general agreement on the basis of eligibility prepared for two 18 month periods. Any rule, organizations that describe their criteria established in this notice. co-applicant associated costs must be working relationship in the 2. Organizational Experience: a. The detailed separately and accounted for in development of products and the applicant must demonstrate the as much detail as the principal delivery of services as primarily requisite knowledge of and experience applicant. The applicant must provide a cooperative or collaborative in nature with the missing and exploited children detailed justification for all costs by will be considered co-applicants. In the issue necessary to provide capable, object class category as specified in the event of a co-applicant submission, one responsible management of as outlined SF 424. Costs must be reasonable and co-applicant must be designated as the in solicitation. the basis for these costs must be well payee to receive and disburse project b. The applicant must demonstrate documented in a separate budget funds and be responsible for the experience and expertise in providing narrative. supervision and coordination of the research, evaluation of community- 6. Products: A concise description of activities of the other co-applicant. based missing and exploited children the products to be produced should be Under this arrangement, each organizations as described in this included. The applicant must describe organization must agree to be jointly solicitation. existing and future program activities and severally responsible for all project c. The applicant must demonstrate the and products that have and will be funds and services. Each co-applicant ability to design and develop a multi- developed or utilized to continue to must sign the SF 424 and indicate their level training curriculum for community service the program; and should acceptance of the conditions of joint and based organizations. describe how and who will be served by several responsibility with the other co- 3. Program Goals and Objectives: A these products. applicant. succinct statement demonstrating the Applications that include applicant’s understanding of the Selection Criteria noncompetitive contracts for the objectives and tasks associated with the In general, all applications will be provision of specific services must program must be included. The reviewed in terms of their demonstrated include a sole source justification for application must also include a problem past, present and potential ability to any procurement in excess of $25,000. statement and a discussion of the past develop document Effective The contractor may not be involved in and potential future contributions of the Community-Based Approach For the development of the statement of applicant’s program to the missing and Dealing with Missing and Exploited work. The applicant must provide exploited children issues required to be Children and develop curriculum as sufficient justification for not competing performed by an organization assuming described in this solicitation. The the portion of work proposed to be the responsibility for the program as experience and knowledge involved for contracted. described in this solicitation. The delivery of product is, of course, a vital The following information must be applicant must describe the proposed criteria for selection. included in the application Program approach for achieving the objectives of All applicants will be evaluated and Narrative (part IV of SF 424): the program and the requirements of the rated based on the extent to which they 1. Organizational Capability: The program strategy as detailed in this meet the following criteria: applicant must demonstrate that it is announcement. 1. Organizational and programmatic eligible to compete for this cooperative 4. Program Implementation Plan: The capability must be demonstrated. The agreement and have substantial applicant must describe its proposed project management structure must be organizational experience and resources approach to achieving the goals and adequate for the successful conduct of that can be directly applied to provide objectives of the project. A program the project. The applicant must have programmatic support that will assure implementation plan outlining the demonstrated Title IV experience and OJJDP the effective establishment of a major activities involved in program management and information program that will identify, research, implementing the program, resource technology capabilities and experience evaluate, and document effective allocation, the program management and capabilities in the areas described community-based organizations around must be included. A clear time-task and defined throughout this solicitation; the country that use multi-disciplinary workplan identifying major milestones, experience working with the various team approaches to address the complex tasks, and products should be part of the missing children issue groups and issues related to missing and exploited application. agencies at the national, state, children and their families. The The applicant should include an municipal, community, individual solicitation will identify a minimum of organizational chart depicting the roles levels, and international levels; five (5) community-based organizations and responsibilities of key personnel providing technical assistance, training that provide a cross-sectional and organizational functional and information products related to Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices 1981 missing and exploited children; and Community-Based Approaches for Obstacles to the Recovery and Return promoting the development of Dealing with Missing and Exploited of Parentally Abducted Children, a professional approaches to missing Children Grant is three (3) years. One study by the ABA Center on Children children issues; and the relevant cooperative agreement will be awarded and the Law, funded by the Office of experience of applicant’s staff in the with an initial budget period of 18 Juvenile Justice and Delinquency missing children issues and their months. Prevention, 1993. capabilities to address the perceived Award Amount Families of Missing Children: program needs. Fiscal integrity and Psychological Consequences, a study by Up to $250,000 has been allocated for organizational stability must be the Center for the Study of Trauma, the initial budget period. Commensurate demonstrated over time. (25 points) University of California at San financial support for the remaining 2. The applicant must have Francisco, funded by the Office of project budget period will be demonstrated understanding of an Juvenile Justice and Delinquency determined by the performance of the approach to implementing the program Prevention. Final report to be published. grantee, program development needs as objectives of organizing, providing and The Reunification of Missing Children maintaining the high level service determined by OJJDP, and the availability of funds. Project, a study by the Center for the delivery demands of solicitation. (25 Study of Trauma, University of points) Submission of Application California at San Francisco, funded by 3. The qualifications of staff members Applicants must submit the original, the Office of Juvenile Justice and identified to manage and implement the signed application (Standard Form 424) Delinquency Prevention. Final report program, including consultants, must be and two unbound copies to OJJDP. unpublished. adequate for the successful Application forms and supplementary Law Enforcement Policies and implementation of the objectives. (40 information will be provided upon Practices Regarding Missing Children points) request for the Application Kit. and Homeless Youth, a study by 4. The applicant must provide a Potential applicants should review the Research Triangle Institute, funded by sound and fully-justified budget that is OJJDP Peer Review Guideline and the the Office of Juvenile Justice and cost effective to the service provided. OJJDP Competition and Peer Review Delinquency Prevention, 1993. The proposed costs must be complete, Procedures. These documents will be Title IV Missing and Exploited appropriate, and reasonable to the provided in the Application Kit. activities of the project. All costs should Children’s Program Long Range Plan be fully justified in a budget narrative or Bibliography for Grant Programs and FY 95 Program Priorities; Notice, with other supporting documentation. National Incidence Studies on Federal Register, October 12, 1994. (10 points) Missing, Abducted, Runaway, and John J. Wilson, Thrownaway Children in America Deputy Administrator, Office of Juvenile Award Period (NISMART), Office of Juvenile Justice Justice and Delinquency Prevention. The project period for the cooperative and Delinquency Prevention. Report [FR Doc. 95–249 Filed 1–4–95; 8:45 am] agreement supporting the Effective issued in 1990. BILLING CODE 4410±18±P federal register January 5,1995 Thursday Deferrals; Notice Cumulative ReportonRescissionsand Budget Management and Office of Part XI 1983 1984 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Notices OFFICE OF MANAGEMENT AND transmitted to Congress on October 18, 59 FR 54066, Thursday, October 27, BUDGET 1994. 1994 Alice M. Rivlin, Cumulative Report on Rescissions and Rescissions Deferrals As of December 1, 1994, no rescission Director. proposals were pending before the December 1, 1994. Congress. TABLE A.ÐSTATUS OF FY 1995 This report is submitted in fulfillment DEFERRALS Deferrals (Table A and Attachment A) of the requirement of Section 1014(e) of [In millions of dollars] the Congressional Budget and As of December 1, 1994, $1,670.1 Impoundment Control Act of 1974 million in budget authority was being Budgetary (Public Law 93–344). Section 1014(e) deferred from obligation. Attachment A resources requires a monthly report listing all shows the status of each deferral budget authority for the current fiscal reported during FY 1995. Deferrals proposed by the year for which, as of the first day of the President ...... 3,525.1 month, a special message had been Information from Special Message Routine Executive releases transmitted to Congress. The special message containing through December 1, 1994 ... ¥1,855.0 This report gives the status, as of information on the deferrals that are Overturned by the Congress ...... December 1, 1994, of seven deferrals covered by this cumulative report is contained in the first special message printed in the Federal Register cited Currently before the Congress . 1,670.1 for FY 1995. This message was below: ATTACHMENT A.ÐSTATUS OF FY 1995 DEFERRALSÐAS OF DECEMBER 1, 1994 [Amounts in thousands of dollars] Amounts Transmitted Releases(¥) Congres- Cumulative Amount De- Agency/Bureau/Account Deferral Date of Cumulative sional Ac- Adjustments ferred as of Number Original Re- Subsequent Message OMB/Agen- Congessionally tion (+) 12±1±94 quest Change (+) cy Required Funds Appropriated to the President International Security Assistance. Economic support fund D95±1 53,300 ...... 10±18±94 ...... 53,300 Foreign military financ- ing grants ...... D95±2 3,139,279 ...... 10±18±94 1,800,000 ...... 1,339,279 Foreign military financ- ing program account D95±3 47,917 ...... 10±18±94 ...... 47,917 Military-to-military con- tact program ...... D95±4 2,000 ...... 10±18±94 ...... 2,000 Agency for International Development. International disaster assistance, executive D95±5 169,998 ...... 10±18±94 54,994 ...... 115,004 Department of Health and Human Services Social Security Admin- istration. Limitation on adminis- trative expenses ...... D95±6 7,319 ...... 10±18±94 ...... 7,319 Department of State Bureau for Refugee Programs. United States emer- gency refugee and migration assistance fund ...... D95±7 105,300 ...... 10±18±94 ...... 105,300 Total, deferrals ...... 3,525,113 ...... 1,854,994 ...... 1,670,118 [FR Doc. 95–195 Filed 1–4–95; 8:45 am] BILLING CODE 3110±01±M federal register January 5,1995 Thursday Vietnam Era;FinalRule Disabled Veteransandofthe Contractors andSubcontractorsfor Affirmative ActionObligationsof 41 CFRPart60±250 Programs Office ofFederalContractCompliance Department ofLabor Part XII 1985 1986 Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations DEPARTMENT OF LABOR December 31, 1994, sunset date. The openings for positions that will be filled regulation published today amends from within the contractor’s Office of Federal Contract Compliance OFCCP’s definition of ‘‘veteran of the organization. Programs Vietnam era’’ to make it consistent with Waiver of Proposed Rulemaking the 1992 amendment. 41 CFR Part 60±250 B. Mandatory Listing This rule is a nondiscretionary, RIN 1215±AA62 ministerial action which merely Prior to amendments in 1994, Section incorporates, without change, two Affirmative Action Obligations of 4212 required that Federal contractors statutory amendments into pre-existing Contractors and Subcontractors for and subcontractors covered by the Act regulations. Publication in proposed Disabled Veterans and Veterans of the must list ‘‘all * * * suitable form serves no useful purpose, and Vietnam Era employment openings’’ with the therefore is unnecessary within the appropriate local employment service meaning of the Administrative AGENCY: Office of Federal Contract office. The Act required those offices, in Procedure Act (5 U.S.C. 553(b)(B)). We, Compliance Programs, Labor. turn, to give priority referrals to veterans therefore, find good cause to waive ACTION: Final rule. for such openings. This obligation to list notice of proposed rulemaking. job openings with the local employment SUMMARY: This final rule incorporates a service office is often referred to as the Effective Date statutory change in the definition of ‘‘mandatory listing’’ requirement. Pursuant to 5 U.S.C. 553(d) the ‘‘veteran of the Vietnam era’’ as that Although Section 4212 did not define undersigned has determined that good definition relates to Federal contractors’ the term ‘‘all * * * suitable cause exists for waiving the customary and subcontractors’ affirmative action employment openings,’’ this term was requirement for delay in the effective obligations with respect to such defined in OFCCP’s regulations at 41 date of a final rule for 30 days following veterans, by eliminating the coverage CFR 60–250.4(h). its publication. This determination is cut-off date of December 31, 1994. This Section 702(a) of the Veterans’ based upon the fact that this rule is a rule also incorporates a statutory change Benefits Improvements Act of 1994 nondiscretionary, ministerial action in the mandatory job listing provision (Pub. L. 103–446, 108 Stat. 4645, 4674 which merely incorporates, without by eliminating the $25,000 per year (1994)) expanded the scope of change, a statutory amendment into salary ceiling and otherwise broadening employment openings to be listed with preexisting regulations. Accordingly, the scope of job openings that must be the state employment service office by this regulation will be effective upon listed with the state employment service dropping the word ‘‘suitable’’ from the publication. by Federal contractors and statutory phrase ‘‘all * * * suitable subcontractors. employment openings,’’ broadly Executive Order 12866 defining the term ‘‘all *** EFFECTIVE DATE: This regulation is This final rule is not a significant effective January 5, 1995. employment openings,’’ and limiting the exceptions to the mandatory listing regulatory action within the meaning of FOR FURTHER INFORMATION CONTACT: requirement. The amendment Executive Order 12866 and, therefore, is Annie A. Blackwell, Director, Division eliminated the salary ceiling of $25,000 not subject to review by the Office of of Policy, Planning and Program per year which was in the OFCCP Management and Budget. Development, Office of Federal Contract regulations, and now requires the listing Compliance Programs, Room C–3325, Paperwork Reduction Act of all employment openings except 200 Constitution Avenue, NW., executive and top management Because this rule does not contain Washington, DC 20210. Telephone (202) positions, positions that will be filled information collection requirements, it 219–9430 (voice) and 1–800–326–2577 from within the contractor’s is not subject to approval by the Office (TDD). Copies of this final rule are organization, and positions lasting three of Management and Budget pursuant to available in the following formats: days or less. The regulation published the Paperwork Reduction Act. electronic file on computer disk, large today amends the regulations print and audio tape. They may be List of Subjects in 41 CFR Part 60–250 prescribing the employment openings to obtained at the above office. be listed with the state employment Administrative practice and SUPPLEMENTARY INFORMATION: service to make them consistent with procedure, Civil rights, Employment, Equal employment opportunity, A. Veteran of the Vietnam Era the 1994 amendment. The statutory amendments to the Government contracts, Government Before it was amended in 1992, the mandatory listing requirement do not procurement, Investigations, Veterans. affirmative action provisions of the include all of the exceptions to Signed at Washington, DC, on this 29th day Vietnam Era Veterans’ Readjustment mandatory listing permitted by OFCCP of December 1994. Assistance Act at 38 U.S.C. 4212 in its current implementing regulations. Robert B. Reich, (Section 4212 or VEVRAA) contained a Today’s final rule incorporates only Secretary of Labor. sunset provision in the definition of those exceptions to mandatory listing Bernard E. Anderson, ‘‘veteran of the Vietnam era’’ that that are contained in the 1994 Assistant Secretary for Employment stipulated that no veteran could be amendment. Standards. considered a ‘‘veteran of the Vietnam One exception to mandatory listing Shirley J. Wilcher, era’’ for the purposes of the law after expressly contained in the current December 31, 1994. This sunset regulations, but not expressly stated in Deputy Assistant Secretary, Office of Federal Contract Compliance Programs. provision is codified in our current the 1994 amendment, is an exception regulatory definition of ‘‘veteran of the for openings in an educational PART 60±250Ð[AMENDED] Vietnam era’’ found at 41 CFR 60–250.2. institution which are restricted to Section 502 of the Veterans’ Benefits students of that institution. In OFCCP’s For the reasons set forth above, 41 Act of 1992 (Pub. L. 102–568, 106 Stat. view, such openings fall within the CFR part 60–250 is amended as set forth 4320, 4340 (1992)), repealed the exception to mandatory listing for below. Federal Register / Vol. 60, No. 3 / Thursday, January 5, 1995 / Rules and Regulations 1987 1. The authority citation for part 60– 3. Section 60–250.4 is amended by employment of more than three days’ 250 is revised to read as follows: revising paragraphs (b) and (h) of the duration, and part-time employment. (2) ‘‘Appropriate office of the state Authority: 38 U.S.C. 4211 and 4212; 29 Affirmative Action clause to read as U.S.C. 793; Executive Order 11758 (39 FR follows: employment service system’’ means the local 2075, January 15, 1974); 3 CFR 1971–1975 office of the Federal-state national system of Comp. p. 841); Pub. L. 102–568 and P.L. 103– § 60±250.4 Affirmative action clause. public employment offices with assigned 446. * * * * * responsibility for serving the area where the 2. Section 60–250.2 is amended by (a) * * * employment opening is to be filled, (b) The contractor agrees to list all including the District of Columbia, Guam, the revising the definition of ‘‘Veteran of the employment openings which exist at the time Vietnam era’’ to read as follows: Commonwealth of Puerto Rico, and the of the execution of this contract and those Virgin Islands. which occur during the performance of this § 60±250.2 Definitions. (3) ‘‘Positions that will be filled from contract, including those not generated by within the contractor’s organization’’ means * * * * * this contract and including those occurring at Veteran of the Vietnam era means a an establishment of the contractor other than employment openings for which no person who: the one wherein the contract is being consideration will be given to persons (1) Served on active duty for a period performed, but excluding those of outside the contractor’s organization of more than 180 days, any part of independently operated corporate affiliates, (including any affiliates, subsidiaries, and which occurred between August 5, at an appropriate local office of the State parent companies) and includes any 1964, and May 7, 1975, and was employment service system wherein the openings which the contractor proposes to discharged or released therefrom with opening occurs. fill from regularly established ‘‘recall’’ lists. other than a dishonorable discharge, or * * * * * The exception does not apply to a particular (2) Was discharged or released from (h) As used in this clause: (1) ‘‘All opening once an employer decides to active duty for a service-connected employment openings’’ includes all positions consider applicants outside of his or her own disability if any part of such active duty except executive and top management, those organization. positions that will be filled from within the * * * * * was performed between August 5, 1964, contractor’s organization, and positions and May 7, 1975. lasting three days or less. This term includes [FR Doc. 95–209 Filed 1–4–95; 8:45 am] * * * * * full-time employment, temporary BILLING CODE 4510±27±M i Reader Aids Federal Register Vol. 60, No. 3 Thursday, January 5, 1995 CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING JANUARY Federal Register/Code of Federal Regulations At the end of each month, the Office of the Federal Register General Information, indexes and other finding 202±523±5227 publishes separately a List of CFR Sections Affected (LSA), which aids lists parts and sections affected by documents published since Public inspection announcement line 523±5215 the revision date of each title. 14 CFR Laws Public Laws Update (numbers, dates, etc.) 523±6641 25...... 325 39...3, 327, 329, 330, 332, 336, Presidential Documents 3 CFR 1712 Executive orders and proclamations 523±5227 Executive Orders: 71...... 338 Proposed Rules: The United States Government Manual 12826 (Superseded by 12944) ...... 309 39 ...... 66, 382, 384, 386, 388, 523±5227 12886 (Superseded by 389, 393 Other Services 12944) ...... 309 61...... 395 67...... 395 523±4534 12944...... 309 Electronic and on-line services (voice) 71...... 396 Privacy Act Compilation 523±3187 Proclamations: TDD for the hearing impaired 523±5229 5759 (See Proc. 17 CFR 6763) ...... 1007 200...... 5 6455 (See Proc. 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