Federal Register proposed rules — 1995-12-11

issue-1995-12-11Federal Register proposed rules — 1995-12-11Proposed Regulation

Published Federal Register documents, not public-inspection drafts. The GPO XML/text rendition is a research aid; the linked complete official PDF retains the printed layout and all graphics. Graphics are retained in that PDF and are not independently reproduced in this text rendition. Publication does not establish that every provision remains legally in force.

FR Doc. 95-30107 Approval and Promulgation of Implementation Plans State of South Carolina's State Implementation Plan (SIP)
[Federal Register Volume 60, Number 237 (Monday, December 11, 1995)]
[Proposed Rules]
[Page 63491]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-30107]

=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[SC-029-1-7177b; FRL-5316-6]

Approval and Promulgation of Implementation Plans State of South 
Carolina's State Implementation Plan (SIP)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: EPA proposes to approve the State Implementation Plan (SIP) 
revision submitted by the State of South Carolina for the purpose of 
establishing a Federally enforceable state construction and operating 
permit (FESCOP) program. In order to extend the Federal enforceability 
of South Carolina's FESCOP to hazardous air pollutants (HAPs), EPA is 
also proposing approval of South Carolina's FESCOP regulations pursuant 
to section 112 of the Clean Air Act as amended in 1990 (CAA). In the 
Final Rules Section of this Federal Register, EPA is approving the 
State's SIP revision as a direct final rule without prior proposal 
because the Agency views this as a noncontroversial revision amendment 
and anticipates no adverse comments. A detailed rationale for the 
approval is set forth in the direct final rule. If no adverse comments 
are received in response to that direct final rule, no further activity 
is contemplated in relation to this proposed rule. If EPA receives 
adverse comments, the direct final rule will be withdrawn and all 
public comments received will be addressed in a subsequent final rule 
based on this proposed rule. EPA will not institute a second comment 
period on this document. Any parties interested in commenting on this 
document should do so at this time.

DATE: To be considered, comments must be received by January 10, 1996.

ADDRESSES: Written comments should be addressed to: Scott Miller, Air 
Programs Branch, Air, Pesticides & Toxics Mangement Division, Region 4 
Environmental Protection Agency, 345 Courtland Street, NE, Atlanta, 
Georgia 30365.
    Copies of the material submitted by the State of South Carolina may 
be examined during normal business hours at the following locations:

Air and Radiation Docket and Information Center (Air Docket 6102), U.S. 
Environmental Protection Agency, 401 M Street SW., Washington, DC 
20460.
Environmental Protection Agency, Region 4 Air Programs Branch, 345 
Courtland Street NE., Atlanta, Georgia 30365.
South Carolina Department of Health and Environmental Control, 2600 
Bull Street, Columbia, South Carolina 29201.

FOR FURTHER INFORMATION CONTACT: Scott Miller, Air Programs Branch, 
Air, Pesticides & Toxics Management Division, Region 4 Environmental 
Protection Agency, 345 Courtland Street, NE, Atlanta, Georgia 30365. 
The telephone number is 404/347-3555 extension 4153.

SUPPLEMENTARY INFORMATION: For additional information see the direct 
final rule which is published in the rules section of this Federal 
Register.

    Dated: September 20, 1995.
Patrick M. Tobin,
Acting Regional Administrator.
[FR Doc. 95-30107 Filed 12-8-95; 8:45 am]
BILLING CODE 6560-50-P

Complete official Federal Register PDF

FR Doc. 95-30087 Source of Income From Sales of Inventory and Natural Resources Produced in One Jurisdiction and Sold in Another Jurisdiction
[Federal Register Volume 60, Number 237 (Monday, December 11, 1995)]
[Proposed Rules]
[Pages 63478-63489]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-30087]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE TREASURY

Internal Revenue Service

26 CFR Part 1

[INTL-0003-95]
RIN 1545-AT92

Source of Income From Sales of Inventory and Natural Resources 
Produced in One Jurisdiction and Sold in Another Jurisdiction

AGENCY: Internal Revenue Service (IRS), Treasury.

ACTION: Notice of proposed rulemaking and notice of public hearing.

-----------------------------------------------------------------------

SUMMARY: This document contains proposed regulations governing the 
source of income from sales of natural resources or other inventory 
produced in the United States and sold in a foreign country or produced 
in a foreign country and sold in the United States. This document 
affects persons who produce natural resources or other inventory in the 
United States and sell in a foreign country, or produce natural 
resources or other inventory in a foreign country and sell in the 
United States. This document also provides notice of a public hearing 
on these proposed regulations.

DATES: Written comments and outlines of oral comments to be presented 
at the public hearing scheduled for April 10, 1996, at 10 a.m. must be 
received by March 11, 1996.

ADDRESSES: Send submissions to: CC:DOM:CORP:R (INTL-0003-95), 

[[Page 63479]]
room 5228, Internal Revenue Service, POB 7604, Ben Franklin Station, 
Washington, DC 20044. In the alternative, submissions may be hand 
delivered between the hours of 8 a.m. and 5 p.m. to: CC:DOM:CORP:R 
(INTL-0003-95), Courier's Desk, Internal Revenue Service, 1111 
Constitution Avenue NW., Washington, DC. The public hearing will be 
held in the IRS Auditorium, Internal Revenue Building, 1111 
Constitution Avenue, NW., Washington, DC.

FOR FURTHER INFORMATION CONTACT: Concerning the regulations, Anne 
Shelburne, (202) 622-3880; concerning submissions and the hearing, Ms. 
Christina Vasquez, (202) 622-7180 (not toll-free numbers).

SUPPLEMENTARY INFORMATION:

Paperwork Reduction Act

    The collection of information contained in this notice of proposed 
rulemaking has been submitted to the Office of Management and Budget 
(OMB) for review in accordance with the Paperwork Reduction Act of 1995 
(44 U.S.C. 3507).
    Comments on the collection of information should be sent to the 
Office of Management and Budget, Attn: Desk Officer for the Department 
of Treasury, Office of Information and Regulatory Affairs, Washington, 
DC 20503, with copies to the Internal Revenue Service, Attn: IRS 
Reports Clearance Officer, T:FP, Washington, DC 20224. Comments on the 
collection of information should be received by February 9, 1996.
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless the collection of 
information displays a valid control number.
    The collection of information requirements are in proposed 
Secs. 1.863-1(b)(6) and 1.863-3(e)(2). This information is required by 
the IRS to monitor compliance with the federal tax rules for 
determining the source of income from the sale of natural resources or 
other inventory produced in the United States and sold in a foreign 
country or produced in a foreign country and sold in the United States. 
The likely respondents are taxpayers who produce natural resources or 
other inventory in the United States and sell in a foreign country, or 
who produce natural resources or other inventory in a foreign country 
and sell in the United States. Responses to this collection of 
information are required to properly determine the source of a 
taxpayer's income from such sales.
    Books or records relating to a collection of information must be 
retained as long as their contents may become material in the 
administration of any internal revenue law. Generally, tax returns and 
tax return information are confidential, as required by 26 U.S.C. 6103.
    Estimated total annual reporting burden: 1125 hours. The estimated 
annual burden per respondent varies from 1 hour to 5 hours, depending 
on individual circumstances, with an estimated average of 2.6 hours.
    Estimated number of respondents: 425.
    Estimated annual frequency of responses: One time per year.

Background

    These proposed regulations contain rules relating to the source of 
income from the sale of certain natural resources and other inventory. 
These regulations are proposed to be effective for taxable years 
beginning 30 days after publication of final regulations. However, 
taxpayers may elect to apply these regulations for taxable years 
beginning after July 11, 1995.

Explanation of Provisions

I. Natural Resources

A. Current Regulations

    Section 863 authorizes the Secretary to promulgate regulations 
allocating or apportioning to sources within or without the United 
States all items of gross income, expenses, losses, and deductions 
other than those items specified in sections 861(a) and 862(a).
    Section 1.863-1 of the existing regulations contains rules for 
determining the source of income derived from the sale of certain 
natural resources. Generally, under paragraph (b)(1) of those 
regulations, income derived from the ownership or operation of any 
farm, mine, oil or gas well, other natural deposit, or timber located 
within the United States and from the sale by the producer of the 
products within or without the United States ordinarily must be 
included in gross income from sources within the United States. 
However, if a taxpayer can show to the satisfaction of the District 
Director that, due to peculiar conditions of production and sale or for 
other reasons, not all of the gross income derived therefrom should be 
allocated to sources within the United States, the source of the income 
generally is determined under the 50/50 method described in Sec. 1.863-
3(b)(2) Example 2. The regulations do not define ``peculiar conditions 
of production and sale.'' In addition, Sec. 1.863-1(b)(2) permits the 
Commissioner to make an allocation or apportionment that more clearly 
reflects the proper source of a taxpayer's income, if the Commissioner 
determines that the application of paragraph (b)(1) does not result in 
the proper allocation or apportionment of income. Similar rules apply 
in the case of natural resources produced without the United States and 
sold within the United States. See Sec. 1.863-6. Thus, income from the 
sale of such products ordinarily will be allocated entirely to foreign 
sources.

B. Issues Under Current Regulations

    The IRS and Treasury have reexamined the existing regulations under 
section 863 regarding natural resources and arrived at several 
conclusions. First, certain ambiguities in existing Sec. 1.863-1 should 
be clarified. For example, the regulation does not define the term 
``peculiar conditions of production and sale,'' and there is virtually 
no authoritative guidance as to the scope of that term. To the extent 
that ``peculiar conditions of production and sale'' is defined 
narrowly, the regulation may lead to inappropriate results when 
determining the source of income from the sale of processed natural 
resources. For example, if a U.S. corporation harvests timber to 
manufacture furniture for export, all of its income may be from sources 
within the United States. However, if another U.S. corporation 
purchases cut timber to manufacture furniture for export from the 
United States, one-half of that taxpayer's income may be from sources 
without the United States under the 50/50 method.
    Second, the interaction of the existing regulations and the 
recently-issued consolidated return regulations may cause inappropriate 
sourcing results. On July 11, 1995, the IRS and Treasury issued final 
regulations under Sec. 1.1502-13 [TD 8597 (60 FR 36671)], treating 
members of a U.S. consolidated group as a single entity for purposes of 
determining the source of a taxpayer's income. The IRS and Treasury 
understand that inappropriate results may occur when the current 
section 863 regulations are applied to certain consolidated groups on a 
single entity basis. For example, a U.S. corporation that is a member 
of a consolidated group may extract oil abroad. The oil is then 
transported to the United States where it is refined by another member 
of the consolidated group. It is sold in the United States through 
other members of the consolidated group. Under Sec. 1.1502-13 of the 
consolidated return rules, the consolidated group is treated as a 
single entity, and the source of income from the sale of oil must be 
determined under 

[[Page 63480]]
section 863. Because the consolidated group refines the oil outside the 
country of extraction, it may be that peculiar conditions of production 
and sale exist, and the exclusive sourcing rules of paragraph (b)(1) do 
not apply. Thus, the taxpayer would generally determine the source of 
its income under the 50/50 method described in Sec. 1.863-3(b)(2) 
Example 2. Under this method, 50 percent of the consolidated group's 
income would be U.S. source income based on the place of sale. However, 
this calculation may understate the appropriate amount of the 
taxpayer's foreign source income because the value of the oil as 
extracted may represent more than 50 percent of the total value of the 
product that is finally sold in the United States. The preamble to the 
regulations under Sec. 1.1502-13 indicated that the IRS and Treasury 
would consider amending the regulations under section 863 to address 
these concerns.
    Accordingly, the IRS and Treasury are issuing proposed regulations 
under section 863 to clarify ambiguities in the existing regulation and 
to address concerns created by the new Sec. 1.1502-13 regulations.

C. Proposed Regulations

    Section 1.863-1(b) provides special rules for determining the 
source of income from the sale of products derived from the ownership 
or operation of any farm, mine, oil or gas well, other natural deposit, 
or timber, within the United States and the sale of these products 
without the United States. The proposed regulations also provide 
special rules for determining the source of income from the sale of 
products derived from the ownership or operation of any farm, mine, oil 
or gas well, other natural deposit, or timber, without the United 
States and the sale of these products within the United States. The 
export terminal rule of paragraph (b)(1) provides that the source of 
gross receipts from the sale of such products equal to the fair market 
value of the product immediately prior to export (referred to in the 
proposed regulations as the export terminal) is determined according to 
where the farm, mine, oil or gas well, other natural deposit or timber 
is located. Separate rules are provided for determining the source of 
any gross receipts in excess of the fair market value of the product at 
the export terminal. Paragraph (b)(2) provides an exception to the 
approach of paragraph (b)(1) where, prior to export, the taxpayer 
engages in substantial production activities in addition to activities 
related to the ownership or operation of a farm, mine, oil or gas well, 
other natural deposit, or timber.
1. Export Terminal Rule
    Under the export terminal rule of paragraph (b)(1), gross receipts 
derived from the ownership or operation of any farm, mine, oil or gas 
well, other natural deposit, or timber, and sale of the products 
derived therefrom, are allocated between sources within and without the 
United States based on the fair market value of the product at the 
export terminal. The export terminal is the last point from which the 
product is sent from the United States to a foreign country or the last 
point from which goods are sent from a foreign country to the United 
States. For example, if a U.S. corporation extracts oil in one foreign 
country, sends the crude oil to a port in a second foreign country via 
pipeline, and delivers the oil to a U.S. refinery by ship, the export 
terminal would be the port in the second foreign country where the 
crude oil was loaded onto the ship.
    Under the export terminal rule, the source of gross receipts equal 
to the fair market value of the product at the export terminal is 
determined by the location of the farm, mine, well, deposit, or uncut 
timber. The source of gross receipts in excess of the fair market value 
of the product at the export terminal (excess gross receipts) is 
determined according to whether the taxpayer engages in any additional 
production activity following export. A taxpayer will be treated as 
performing production activities in addition to the activities of 
owning or operating a farm, mine, oil or gas well, other natural 
deposit, or timber based on the principles of Sec. 1.954-3(a)(4). 
However, activities that prepare the natural resource itself for 
export, including those that are designed to facilitate the 
transportation of the natural resource to or from the export terminal, 
will not be considered additional production activities. Thus, 
Sec. 1.863-1 Example 2 illustrates that liquefaction of natural gas 
would not constitute additional production activities. In addition, 
activities such as delimbing and debarking trees, sorting grain, and 
treating and stabilizing oil would ordinarily not constitute additional 
production activities. In contrast, the transformation of timber into 
furniture is not done to prepare the natural resource itself for 
export, and would constitute additional production activity. Production 
activities are defined in Sec. 1.863-1(b)(3)(i).
    If no additional production occurs following export, paragraph 
(b)(1)(i) requires that the source of the excess gross receipts be 
determined according to where the farm, mine, well, deposit, or uncut 
timber is located.
    However, under paragraph (b)(1)(ii), if the taxpayer engages in 
additional production activities after the export terminal and outside 
the country of sale, the source of excess gross receipts is determined 
under the rules of Sec. 1.863-3. For example, if a U.S. corporation 
extracts oil in a foreign country, refines the oil in the United 
States, and sells the refined product in another foreign country, the 
source of gross receipts in excess of the fair market value of the 
product when it is exported from the first foreign country must be 
determined under one of the three methods described in Sec. 1.863-3 
(i.e., the 50/50 method as described in Sec. 1.863-3(b)(1), the IFP 
method described in Sec. 1.863-3(b)(2), or, if permitted by the 
District Director, the books and records method as described in 
Sec. 1.863-3(b)(3)).
    In any case not described in either paragraph (b)(1) (i) or (ii) of 
the proposed regulations, the source of the excess gross receipts is 
determined according to the place of sale pursuant to paragraph 
(b)(1)(iii). This rule would apply, for example, in the case where the 
taxpayer engages in additional production activities in the country of 
sale.
    Paragraph (b)(1) addresses the concerns of U.S. corporations 
involved in the production of natural resources abroad and the 
application of the new Sec. 1.1502-13 consolidated return regulations, 
by allowing them to treat the value of the natural resources at the 
point of export as income from sources where the farm, mine, well, 
deposit, or uncut timber is located. This rule has no effect on the 
rules governing foreign oil and gas extraction income under section 
907(c)(1).
    On November 28, 1995, the Tenth Circuit affirmed the Tax Court 
decision in Phillips Petroleum v. Comm'r, 97 T.C. 30 (1991), which held 
existing Sec. 1.863-1(b)(1) invalid to the extent it allocates income 
from the sale of U.S. natural resources solely to sources within the 
United States. Phillips Petroleum v. Comm'r, No. 94-9021 (10th Cir. 
Nov. 28, 1995). The IRS and Treasury will consider the implications of 
this decision when finalizing these proposed regulations.
2. Additional Production Prior to Export Terminal
    Paragraph (b)(2) provides a special rule for determining the source 
of income where a taxpayer performs substantial additional production 
activities before the product leaves the export terminal. Under 
paragraph (b)(2), 

[[Page 63481]]
the source of gross receipts equal to the fair market value of the 
product prior to the additional production activities is based on the 
location of the farm, mine, well, deposit, or uncut timber. The source 
of gross receipts in excess of the fair market value of the products at 
the beginning of the additional production activities is determined 
under the rules of Sec. 1.863-3.
3. Other Rules
    The proposed regulation contains rules for determining the fair 
market value of relevant products. For this purpose, fair market value 
depends on all of the facts and circumstances as they exist relative to 
a party in any particular case. Thus, these rules for determining fair 
market value are consistent with the foreign oil and gas rules 
contained in Sec. 1.907(c)-1(b)(6). In addition, fair market value 
determinations must be consistent with prices charged in sales, if any, 
to related parties in a transaction that is subject to section 482. For 
example, if a member of a U.S. consolidated group extracts natural 
resources in a foreign country and sells the natural resources to 
another member of the same group at the export terminal, the value of 
the natural resources determined at the export terminal should be the 
price charged by the producing member to the purchasing member for 
purposes of section 482.
    Under paragraph (b)(5), a taxpayer's gross income from sources 
within or without the United States is determined by reducing its gross 
receipts from sources within or without the United States by the cost 
of goods sold properly attributable to such gross receipts. Under 
paragraph (c), a taxpayer's taxable income from U.S. or foreign sources 
must be determined under the rules of Secs. 1.861-8 through 1.861-14T.
    Under paragraph (b)(6), taxpayers must fully explain the 
methodology used, the facts describing substantial additional 
production activities (if any), and the determination of fair market 
value in a statement attached to the taxpayer's return. In addition, 
taxpayers must provide such other information as is required by 
Sec. 1.863-3(e)(2).
    Taxpayers may elect to apply the rules of these regulations for 
taxable years beginning after July 11, 1995. Otherwise, these 
regulations are effective for taxable years beginning 30 days after the 
publication of this regulation as a final regulation.

II. Inventory Other Than Natural Resources

A. Current Regulations

    Section 863 authorizes the Secretary to promulgate regulations 
allocating or apportioning to sources within or without the United 
States all items of gross income, expenses, losses, and deductions 
other than those specified in sections 861(a) and 862(a).
    Section 1.863-3 of the current regulations governs the source of 
income from the sale of inventory produced (in whole or in part) in the 
United States and sold in a foreign country, or produced (in whole or 
in part) in a foreign country and sold in the United States (Section 
863 Sales). Section 1.863-3 provides three methods, set forth in the 
form of three examples, to determine the source of income from Section 
863 Sales.
    Sec. 1.861-3(b)(2) Example 1 of the current regulations illustrates 
how an independent factory or production price (IFP) applies to 
determine the income attributable to production (IFP method). An IFP 
generally is established if a taxpayer regularly sells part of its 
output to wholly independent distributors in such a way as to 
reasonably reflect the income attributable to production activity. If 
an IFP exists, taxpayers must use the IFP method to determine the 
income attributable to production activities in both the sale 
establishing the IFP and in sales of similar products. See Phillips 
Petroleum v. Comm'r, 97 T.C. 30 (1991), aff'd, No. 94-9021 (10th Cir. 
Nov. 28, 1995); Rev. Rul. 88-73 (1988-2 C.B. 173). Gross receipts in 
excess of the IFP are attributable to sales activity. Taxpayers can 
otherwise establish an IFP by showing to the satisfaction of the 
District Director that an IFP exists. Notice 89-10 (1989-1 C.B. 631) 
contains additional rules regarding the application of the IFP method. 
Section 1.863-3(b)(2) Example 1 of the current regulations does not 
provide explicit guidance as to how to determine the source of income 
attributable to production activities under the IFP method. However, 
the source of income attributable to sales activities is based 
generally on where title to the inventory passes to the purchaser as 
defined in Sec. 1.861-7(c).
    Section 1.863-3(b)(2) Example 2 of the current regulations divides 
a taxpayer's income from Section 863 Sales equally between production 
activity and sales activity (50/50 method). The source of income 
attributable to production activity is based on the location of the 
taxpayer's property. The portion of this production income attributable 
to sources within the United States is determined by a fraction, the 
numerator of which is the taxpayer's property located within the United 
States used to produce income from Section 863 Sales, and the 
denominator of which is the taxpayer's property both within the United 
States and within a foreign country used to produce income from Section 
863 Sales. The source of the taxpayer's income attributable to sales 
activity is based on where title to the inventory passes to the 
purchaser as defined in Sec. 1.861-7(c).
    Section 1.863-3(b)(2) Example 3 of the current regulations allows a 
taxpayer to request permission from the District Director to use the 
taxpayer's books and records to allocate income to sources within and 
without the United States if those books reflect more clearly than the 
other methods the taxable income derived from sources within the United 
States (books and records method).

B. Issues Under Current Regulations

    On July 12, 1995, the IRS and Treasury issued regulations under 
Sec. 1.1502-13, treating members of a consolidated group as a single 
entity for purposes of determining the source of a taxpayer's income. 
The IRS and Treasury understand that the current section 863 
regulations may raise questions when applied to certain consolidated 
groups on a single entity basis. The preamble to the regulations under 
Sec. 1.1502-13 indicated that the IRS and Treasury would reevaluate 
part of the regulations under section 863. As part of this process, the 
IRS and Treasury also have reexamined the remainder of the existing 
section 863 regulations and have concluded that several additional 
changes are necessary.
    First, the existing regulations were drafted more than 70 years 
ago, and have not been amended to reflect the evolution of business 
practices. As a result, the regulations have been the source of 
controversies in recent years. See Intel Corporation v. Comm'r, 100 
T.C. 39 (1993), aff'd, No. 94-70105 (9th Cir. Oct. 16, 1995); Phillips 
Petroleum v. Comm'r, 97 T.C. 30 (1991), 101 T.C. 78, 104 (1993) 
(``there have been no cases interpreting [the 50/50 method] and no 
administrative pronouncements regarding its application since the 
regulation was promulgated in 1922 except for necessary inferences to 
be drawn from Intel * * *''), aff'd, No. 94-9021 (10th Cir. Nov. 28, 
1995). In part, these controversies may be due to the structure of the 
current regulations, which do not contain operative rules to describe 
the methods of allocating and 

[[Page 63482]]
apportioning income, but instead rely on examples.
    Second, the existing regulations raise important administrative 
concerns. For example, the IFP method requires an analysis of each of 
the taxpayer's sales transactions to identify an IFP. If one or more 
IFPs are so identified, a second analysis is required of each of the 
taxpayer's sales transactions to identify which transactions are 
similar to the IFP sale. In some cases, this process may require a 
review of a multitude of transactions. The IFP method may, therefore, 
be difficult for both taxpayers and the government to apply. The 
existing 50/50 method also presents administrative concerns. For 
example, the 50/50 method may require the taxpayer to determine the 
fair market value of each of its assets at the end of every tax year. 
Taxpayers have often commented to the IRS about the difficulties of 
determining the fair market value of their assets.
    Third, the existing regulations result in disparate treatment of 
similarly situated taxpayers. Although an IFP must be used under 
current rules if one exists, the mandate applies only to taxpayers 
selling inventory to certain independent distributors. Taxpayers 
selling exclusively to related parties are not required to use the IFP 
method since the IRS may not establish an IFP based on such sales. 
Instead, these taxpayers use the 50/50 method to source their income 
from export sales. Thus, taxpayers selling inventory exclusively to 
related parties may be deemed to generate far more foreign source 
income than taxpayers selling a portion of their inventory to 
independent distributors, even though the two taxpayers may perform the 
same functions. The IRS and Treasury believe that this differing 
treatment of similarly situated taxpayers is not justified.
    Fourth, the existing 50/50 method can result in apportionment of 
income that is inconsistent with the common understanding of that 
method. The  50/50 method is generally characterized as a method that 
would source export sales income one-half in the United States and one-
half in a foreign country. For example, in 1984 the Treasury Department 
stated: ``Generally, [income derived from manufacture and sale of 
property] is allocated one-half on the basis of the place of 
manufacture and half on the basis of the place of sale * * *'' Treasury 
Department, Tax Reform for Fairness, Simplicity, and Economic Growth, 
Nov. 1984 at 364. In addition, Congress understands the 50/50 method to 
operate in this fashion. In 1986, the House, Senate and Conference 
Committees each stated: ``[Under the existing 50/50 method], half of 
such income generally is sourced in the country of manufacture, and 
half of the income is sourced on the basis of the place of sale''. 
House Rep. No. 426, 99th Cong. 1st Sess. 359 (1985); S. Rep. No. 313, 
99th Cong. 2d Sess. 329 (1986); H.R. Conf. Rep. No. 841, 99th Cong. 2d 
Sess. II-595 (1986). The staff of the Joint Committee on Taxation has 
referred to the 50/50 method as the ``production/marketing split'' and 
stated that under this method ``50 percent of such income generally is 
attributed to the place of production * * *'' Staff of the Joint Comm. 
on Taxation, Factors Affecting International Competitiveness of the 
United States 148 (1991).
    The existing regulations may, however, allow taxpayers to use the 
50/50 method to obtain results that are inconsistent with this common 
understanding. Under the existing regulations, 50 percent of the income 
is treated as sales income and sourced on the basis of title passage. 
The remaining 50 percent is treated as production income and sourced 
based on the location of assets. This half of the formula is not 
necessarily, however, limited to production assets. For example, 
goodwill and accounts receivables are counted as assets in allocating 
production income. The inclusion of sales assets in the formula 
allocating production income results in additional income being 
allocated to sales activities. The contribution of the sales assets to 
sales income should be reflected only in the 50 percent of the income 
that is allocated to sales and sourced under title passage. Thus, the 
production income formula should only take into account assets directly 
involved in the production of inventory.

B. Proposed Regulations

1. Overview
    Section 1.863-3 provides rules for allocating and apportioning 
income from Section 863 Sales. Generally, Sec. 1.863-3(b) provides 
three methods for determining the amount of gross income attributable 
to production activity and the amount of gross income attributable to 
sales activity. The source of gross income attributable to each 
activity is then determined under the rules of paragraph (c). Paragraph 
(d) provides rules to determine the source of taxable income. Reporting 
and election rules are set forth under paragraph (e) of the proposed 
regulations. The proposed regulations reserve on paragraph (f) (prior 
paragraph (c)), dealing with income partly from sources within a 
possession of the United States. The IRS and Treasury solicit comments 
from taxpayers regarding changes that should be made to new paragraph 
(f) (if any) to conform to the other changes in  Sec. 1.863-3.
    The proposed regulations generally apply an aggregate approach in 
taking into account a taxpayer's interest in a partnership. The IRS and 
Treasury solicit comments on the appropriate treatment of partnerships, 
including whether there should be special rules for limited 
partnerships, de minimis interests in partnerships, and tiered 
partnerships.
2. Methods To Determine Gross Income Attributable to Production 
Activity and Sales Activity
    Section 1.863-3 generally retains the three methods of the current 
regulations for splitting income between production and sales activity, 
with several modifications.
a. 50/50 Method
    The proposed regulations do not change the allocation of half of 
the taxpayer's income from Section 863 Sales to production activity and 
half to sales activity. As described below, the proposed regulations 
modify and clarify the determination of the location of assets. In 
addition, paragraph (b)(1) of the proposed regulations makes the  50/50 
method the general rule to determine the amount of income attributable 
to production and sales activities. The taxpayer, however, may elect to 
apply the IFP method, described in paragraph (b)(2), or, with the 
consent of the District Director, the books and records method, 
described in paragraph (b)(3).
b. IFP Method
    By making the IFP method elective, the proposed regulations 
significantly reduce administrative burdens related to its application 
and eliminate any bias against taxpayers choosing to export through 
independent distributors.
    Under the proposed regulations, the taxpayer may elect to apply the 
IFP method if it is able to establish an IFP. As in the current 
regulations, an IFP is fairly established by actual sales of the 
taxpayer if the taxpayer regularly sells part of its output to wholly 
independent distributors or other selling concerns in such a way as to 
reasonably reflect the income attributable to production activity. Once 
the IFP is established, it can be used to determine the amount of 
income attributable to production activity in other Section 863 Sales 
if the inventory sold in the other sales is substantially similar in 
physical characteristics and function, and is sold at a similar level 
of distribution as the 

[[Page 63483]]
inventory sold in a sale establishing an IFP. A sale will not be 
considered to establish an IFP if sales activity for the relevant 
product is significant in relation to all of the activities for that 
product. The IRS and Treasury intend to supersede Notice 89-10 upon 
publication of final regulations.
    The proposed regulations would also eliminate the existing rule 
permitting taxpayers to otherwise establish an IFP by showing to the 
satisfaction of the District Director that a sale reasonably reflecting 
the income attributable to production exists. This ``otherwise 
established'' IFP is rarely, if ever, used. American Law Institute, 
International Aspects of United States Income Taxation 31 (1987). The 
IRS and Treasury solicit comments from taxpayers on the continued 
utility of the otherwise established IFP.
    The proposed regulations omit the reference in the existing 
regulation to a sales branch. A taxpayer may elect to use the IFP 
method even if it does not maintain a sales branch in a foreign 
country.
c. Books and Records Method
    The proposed regulations retain the books and records method of the 
existing regulations, permitting taxpayers to request permission from 
the District Director to use their books and records to determine the 
income attributable to production and sales activities. The District 
Director will consider a taxpayer's request if the taxpayer maintains a 
detailed allocation of receipts and expenditures, clearly reflecting 
the amount of income from production and sales activities.
    The books and records method is rarely, if ever, used. American Law 
Institute, International Aspects of United States Income Taxation, 31 
(1987). The IRS and Treasury solicit comments from taxpayers on the 
continued utility of the books and records method, or whether the books 
and records method should be replaced by another method of economic 
sourcing.
3. Determination of Source of Gross Income
    Unlike the current regulations which provide specific rules for 
determining the source of income attributable to production activity 
and sales activity only for purposes of the 50/50 method, the proposed 
regulations adopt rules applicable to each of the three methods. Under 
the proposed regulations, once gross income attributable to production 
activity and sales activity has been determined under one of the 
methods described in paragraph (b), the source of the income is 
determined separately for each type of income under paragraph (c). The 
source of gross income attributable to production activity is 
determined under paragraph (c)(1), based on the location of production 
assets, and the source of gross income attributable to sales activity 
is determined under paragraph (c)(2) based on the location of the sale.
a. Source of Gross Income Attributable to Production Activity
    The proposed regulations generally adopt the approach set forth in 
the current regulations under the 50/50 method, but with modifications 
and clarifications.
    Under Sec. 1.863-3(c)(1), the source of income attributable to 
production activity is determined based on the location of the 
taxpayer's production assets. Thus, if a taxpayer manufactures 
inventory exclusively in the United States, all of its income 
attributable to production activity will be considered from sources 
within the United States. The rules described below are intended to 
apply only to taxpayers that produce inventory both within and without 
the United States.
    Under the proposed regulations, the source of a taxpayer's income 
from production activities is determined by reference to the taxpayer's 
production assets, instead of all of its assets that produce income 
from Section 863 Sales. The IRS and Treasury believe that this change 
is appropriate to ensure that the source of production income 
corresponds to the location of production activity. Production assets 
are defined to include tangible and intangible property owned by the 
taxpayer that are used to produce inventory sold in Section 863 Sales. 
Any property not directly used to produce inventory is excluded. Thus, 
accounts receivable and marketing intangibles are excluded because they 
are sales assets and not production assets. Other assets excluded 
because they do not directly produce inventory are transportation 
assets, warehouses, inventory, work-in-process, raw materials, cash, 
investment assets, and stock of a subsidiary. Working capital is 
excluded to avoid uncertainty arising from determinations of the 
appropriate amount of working capital. In addition, working capital 
would generally be apportioned pro rata in accordance with a taxpayer's 
production assets. As under the current regulations, leased assets are 
excluded; only assets owned by the taxpayer are included.
    The proposed regulations also provide specific rules for 
determining where a production asset is located. Tangible assets are 
located where the assets are used by the taxpayer. Intangible Assets 
are located where the tangible production assets to which they relate 
are located.
    Where production takes place both within the United States and 
within a foreign country, the regulations apply a property fraction to 
apportion production income between U.S. and foreign sources. The 
taxpayer's foreign source gross production income is determined by 
multiplying its gross production income by a fraction, the numerator of 
which is the taxpayer's production assets located within a foreign 
country, and the denominator of which is the taxpayer's production 
assets located both within the united States and within a foreign 
country.
    The current regulations generally include assets in the property 
formula at fair market value. The proposed regulations modify this rule 
to provide that an asset must be included in the property formula at 
its average adjusted basis (see section 1011). The IRS and Treasury 
believe that this change to adjusted basis will significantly simplify 
the application of this formula for both taxpayers and the IRS.
    The proposed regulations also contain more detailed guidance than 
the current regulations for determining the amounts to be included in 
the property fraction. For example, the proposed regulations would 
require that if the asset is used to produce inventory sold in Section 
863 Sales and is also used to produce other property, the basis of the 
asset must be prorated to account for such other uses.
    The purpose of the property formula is to attribute the source of 
the taxpayer's production income to the location of its production 
activity. The IRS and Treasury are concerned that taxpayers may be able 
to affect the location of assets without changing the sit us of 
economic activity. Accordingly, comments are solicited about whether 
there should be rules to prevent manipulation of this formula in a 
manner inconsistent with the purpose of the regulation.
b. Source of Gross Income Attributable to Sales Activity
    The source of gross income that is attributable to sales activity 
is determined under paragraph (c)(2). As under the current regulations, 
the source of this income is generally based on where a sale takes 
place. See Sec. 1.861-7(c). Accordingly, if a U.S. producer sells its 
goods in a foreign country, the income attributable to sales activity 
is generally foreign source income.

[[Page 63484]]

    The proposed regulation would retain the language of the existing 
regulation, which only applies to sales that occur within a foreign 
country. The IRS and Treasury solicit comments as to whether the 
regulations should be expanded to apply to sales made in international 
waters or in space. The IRS and Treasury are concerned, however, that 
if such a change were made, a U.S. seller may try to use the 50/50 
method by selling inventory in international waters to U.S. purchasers, 
even when the goods were destined for the United States. In view of 
these concerns, the IRS and Treasury also solicit comments as to 
whether the regulations should provide an exception to the title 
passage rule in the case of sales of goods produced in the United 
States and destined for use in the United States.
4. Determination of Source of Taxable Income
    Once the amount and source of gross income are determined under 
paragraph (c), taxpayers then determine the source of their taxable 
income. Under proposed paragraph (d), taxpayers must allocate or 
apportion under Secs. 1.861-8 through 1.861-14T the amounts of 
expenses, losses and other deductions to its gross income determined 
under each method described in paragraph (b). In the case of amounts of 
expenses, losses and other deductions allocated or apportioned to gross 
income determined under the IFP method or the books and records method, 
the taxpayer must apply the rules of Secs. 1.861-8 through 1.861-14T to 
allocate or apportion these amounts between gross income from sources 
within and without the United States. For amounts of expenses, losses 
and other deductions allocated or apportioned to gross income 
determined under the 50/50 method, taxpayers must apportion expenses 
and other deductions prorata based on the relative amounts of U.S. and 
foreign source gross income. These rules are consistent with existing 
regulations.
5. Election and Reporting Rules
    Under paragraph (e) of the proposed regulations, a taxpayer must 
use the 50/50 method unless the taxpayer elects to use the IFP method, 
or elects the Books and Records method. The taxpayer makes the election 
by using the method on its tax return. Once The tax return is filed, 
the election is not revokable for that year. In addition, that method 
must be used in later taxable years unless the Commissioner or her 
delegate consents to a change. Permission to change methods in later 
years will not be withheld unless the change would result in a 
substantial distortion of the source of income.
    A taxpayer must fully explain the methodology used in paragraph 
(b), and the amount of income allocated or apportioned to U.S. and 
foreign sources in a statement attached to its tax return.
6. Conforming Changes
    The proposed regulations make conforming changes to Sec. 1.863-2 of 
the regulations. Under Sec. 1.863-2, the taxpayer may elect to apply 
the 50/50 method to its net taxable income, instead of its gross income 
as specified in Sec. 1.863-3. The proposed regulations clarify that 
income derived from the purchase of personal property within a 
possession of the United States and its sale within the United States 
is subject to these regulations only to the extent it is not excluded 
by Sec. 1.936-6(a)(5), Q&A 7. Other changes to Sec. 1.863-2 were 
intended to conform the language of the regulation to the changes in 
Sec. 1.863-3.
    Finally, the IRS and Treasury will reconsider the existing 
regulations issued under section 863 regarding transportation services 
and cable and telegraph services in light of the Tax Reform Act of 
1986. Accordingly, the transportation rules contained in Sec. 1.863-4 
will only apply to services that are not described in section 863(c) 
and the telegraph and cable rules contained in Sec. 1.863-5 are 
deleted. No inference is intended as to whether portions of the 
existing regulations continued to apply after the Tax Reform Act of 
1986.
7. Proposed Effective Dates
    These regulations are effective for taxable years beginning 30 days 
after publication of final regulations. However, taxpayers may apply 
these regulations for taxable years beginning after July 11, 1995, and 
before 30 days after publication of these regulations as final 
regulations.

Special Analyses

    It has been determined that this notice of proposed rulemaking is 
not a significant regulatory action as defined in EO 12866. Therefore, 
a regulatory assessment is not required. It is hereby certified that 
these regulations will not have a significant economic impact on a 
substantial number of small entities. Accordingly, a regulatory 
flexibility analysis is not required. Pursuant to section 7805(f) of 
the Internal Revenue Code, this notice of proposed rulemaking will be 
submitted to the Chief Counsel for Advocacy of the Small Business 
Administration for comment on its impact on small business.

Comments and Public Hearing

    Before these proposed regulations are adopted as final regulations, 
consideration will be given to any written comments (a signed original 
and eight (8) copies) that are submitted timely to the IRS. All 
comments will be available for public inspection and copying.
    A public hearing has been scheduled for April 10, 1996, at 10 a.m. 
in the IRS Auditorium. Because of access restrictions, visitors will 
not be admitted beyond the Internal Revenue Building lobby more than 15 
minutes before the hearing starts.
    The rules of 26 CFR 601.601(a)(3) apply to the hearing.
    Persons that wish to present oral comments at the hearing must 
submit written comments and an outline of topics to be discussed and 
the time to be devoted to each topic (signed original and eight (8) 
copies) by March 11, 1996.
    A period of 10 minutes will be allotted to each person for making 
comments.
    An agenda showing the scheduling of the speakers will be prepared 
after the deadline for receiving outlines has passed. Copies of the 
agenda will be available free of charge at the hearing.

Drafting Information

    The principal author of these regulations is Anne Shelburne, Office 
of Associate Chief Counsel (International). However, other personnel 
from the IRS and Treasury Department participated in their development.

List of Subjects in 26 CFR Part 1

    Income taxes, Reporting and recordkeeping requirements.

Proposed Amendments to the Regulations

    Accordingly, 26 CFR part 1 is proposed to be amended as follows:

PART 1--INCOME TAXES

    Paragraph 1. The authority citation for part 1 is amended by adding 
entries in numerical order to read as follows:

    Authority: 26 U.S.C. 7805 * * *

    Section 1.863-1 also issued under 26 U.S.C. 863.
    Section 1.863-2 also issued under 26 U.S.C. 863.
    Section 1.863-3 also issued under 26 U.S.C. 863.
    Section 1.863-4 also issued under 26 U.S.C. 863.
    Section 1.863-6 also issued under 26 U.S.C. 863. * * *

    Par. 2. Sections 1.863-0 is added to read as follows: 
    
[[Page 63485]]

Sec. 1.863-0  Table of contents.

    This section lists captions contained in Secs. 1.863-1, 1.863-2, 
and 1.863-3.

Sec. 1.863-1  Allocation of Gross Income.

(a) In general.
(b) Natural resources.
(1) In general.
(2) Additional production prior to export terminal.
(3) Definitions.
(i) Production activity.
(ii) Additional production activities.
(iii) Export terminal.
(4) Determination of fair market value.
(5) Determination of gross income.
(6) Tax return disclosure.
(7) Examples.
(c) Determination of taxable income.
(d) Effective dates.

Sec. 1.863-2  Allocation and Apportionment of Taxable Income.

(a) Determination of taxable income.
(b) Determination of source of taxable income.
(c) Effective dates.

Sec. 1.863-3  Allocation and Apportionment of Income from Certain 
Sales of Inventory.

(a) In general.
(b) Methods to determine income attributable to production activity 
and sales activity.
(1) 50/50 method.
(i) Determination of gross income.
(ii) Example.
(2) IFP method.
(i) Establishing an IFP.
(ii) Applying the IFP method.
(iii) Determination of gross income.
(iv) Examples.
(3) Books and records method.
(c) Determination of the source of gross income from production 
activity and sales activity.
(1) Income attributable to production activity.
(i) Production only within the United States or only within foreign 
countries.
(A) Source of income.
(B) Definition of production assets.
(C) Location of production assets.
(ii) Production both within the United States and within foreign 
countries.
(A) Source of income.
(B) Adjusted basis of production assets.
(iii)Examples.
(2) Income attributable to sales activity.
(d) Determination of source of taxable income.
(e) Election and reporting rules.
(1) Elections under paragraph (b) of this section.
(2) Disclosure on tax return.
(f) Income partly from sources within a possession of the United 
States. [Reserved]
(g) Effective dates.

    Par. 3. Sections 1.863-1, 1.863-2, and 1.863-3 are revised to read 
as follows:

Sec. 1.863-1  Allocation of gross income.

    (a) In general. Items of gross income other than those specified in 
section 861(a) and section 862(a) will generally be separately 
allocated to sources within or without the United States. See 
Sec. 1.863-2 for alternate methods to determine the income from sources 
within or without the United States in the case of items specified in 
Sec. 1.863-2(a). See also sections 865(b) and 865(e)(2).
    (b) Natural resources--(1) In general. Except to the extent 
provided in paragraph (b)(2) of this section, gross receipts from the 
sale outside the United States of products derived from the ownership 
or operation of any farm, mine, oil or gas well, other natural deposit, 
or timber within the United States, are allocated between sources 
within or without the United States based on the fair market value of 
the product at the export terminal (as defined in paragraph (b)(3)(iii) 
of this section). Except to the extent provided in paragraph (b)(2) of 
this section, gross receipts from the sale within the United States of 
products derived from the ownership or operation of any farm, mine, oil 
or gas well, other natural deposit, or timber outside the United States 
are also allocated between sources within or without the United States 
based on the fair market value of the product at the export terminal. 
The source of gross receipts equal to the fair market value of the 
product at the export terminal will be from sources where the farm, 
mine, well, deposit, or uncut timber is located. The source of gross 
receipts from the sale of the product in excess of its fair market 
value at the export terminal (excess gross receipts) will be determined 
as follows--
    (i) If the taxpayer does not engage in additional production 
activities (as defined in paragraph (b)(3)(ii) of this section), excess 
gross receipts will be from sources where the farm, mine, well, 
deposit, or uncut timber is located;
    (ii) If the taxpayer engages in additional production activities 
subsequent to shipment from the export terminal and outside the country 
of sale, the source of excess gross receipts must be determined under 
Sec. 1.863-3. For purposes of applying Sec. 1.863-3, only production 
assets used in additional production activity subsequent to the export 
terminal are taken into account; or
    (iii) In all other cases, excess gross receipts will be from 
sources within the country of sale, as described in Sec. 1.861-7(c). 
This paragraph (b)(1)(iii) applies, for example, to a taxpayer that 
engages in additional production activities in the country of sale.
    (2) Additional production prior to export terminal. Notwithstanding 
any other provision of this section, gross receipts from the sale of 
products derived by a taxpayer who performs additional production 
activities as defined in paragraph (b)(3)(ii) of this section before 
the relevant product is shipped from the export terminal are allocated 
between sources within and without the United States based on the fair 
market value of the product immediately prior to the additional 
production activities. The source of gross receipts equal to the fair 
market value of the product immediately prior to the additional 
production activities will be from sources where the farm, mine, well, 
deposit, or uncut timber is located. The source of gross receipts from 
the sale of the product in excess of the fair market value immediately 
prior to the additional production activities must be determined under 
Sec. 1.863-3. For purposes of applying Sec. 1.863-3, only production 
assets used in the additional production activities are taken into 
account.
    (3) Definitions--(i) Production activity. For purposes of this 
section, production activity means an activity that creates, 
fabricates, manufactures, extracts, processes, cures, or ages 
inventory. See Sec. 1.864-1.
    (ii) Additional production activities. For purposes of this 
section, additional production activities are substantial production 
activities performed by the taxpayer in addition to activities from the 
ownership or operation of any farm, mine, oil or gas well, other 
natural deposit, or timber. Whether a taxpayer performs such additional 
production activities will be determined under the principles of 
Sec. 1.954-3(a)(4). However, in no case will activities that prepare 
the natural resource itself for export, including those that are 
designed to facilitate the transportation of the natural resource to or 
from the export terminal, be considered additional production 
activities for purposes of this section.
    (iii) Export terminal. Where the farm, mine, well, deposit, or 
uncut timber is located without the United States, the export terminal 
will be the final point in a foreign country from which goods are 
shipped from a foreign country to the United States. Where the farm, 
mine, well, deposit, or uncut timber is located within the United 
States, the export terminal will be the final point in the United 
States from which goods are shipped from the United States to a foreign 
country. The export terminal is determined without regard to any 
contractual terms agreed to by the taxpayer and without regard to 
whether there is an actual sale of the products at the export terminal. 

[[Page 63486]]

    (4) Determination of fair market value. For purposes of this 
section, fair market value depends on all of the facts and 
circumstances as they exist relative to a party in any particular case. 
Where the products are sold to a related party in a transaction subject 
to section 482, the determination of fair market value under this 
section must be consistent with the arm's length price determined under 
section 482.
    (5) Determination of gross income. To determine the amount of a 
taxpayer's gross income from sources within or without the United 
States, the taxpayer's gross receipts from sources within or without 
the United States determined under this paragraph (b) must be reduced 
by the cost of goods sold properly attributable to gross receipts from 
sources within or without the United States.
    (6) Tax return disclosure. A taxpayer that determines the source of 
its income under this paragraph (b) shall attach a statement to its 
return explaining the methodology used to determine fair market value 
under paragraph (b)(4) of this section, and explaining any additional 
production activities (as defined in paragraph (b)(3)(ii) of this 
section) performed by the taxpayer. In addition, the taxpayer must 
provide such other information as is required by Sec. 1.863-3.
    (7) Examples. The following examples illustrate the rules of this 
paragraph (b):

    Example 1. No additional production. US Mines, a U.S. 
corporation, extracts coal in the United States and, without 
substantial additional production, sells the coal in a foreign 
country. Under Sec. 1.863-1(b) and (b)(1)(i), all of US Mines' 
income will be from sources within the United States.
    Example 2. Scope of additional production. US Gas, a U.S. 
corporation, extracts natural gas within the United States, and 
transports the natural gas to a U.S. port where it is liquified in 
preparation for shipment. The liquified natural gas is then 
transported via freighter and sold without additional production 
activities in a foreign country. Liquefaction of natural gas is not 
an additional production activity because liquefaction prepares the 
natural gas for transportation from the export terminal. Therefore, 
under Sec. 1.863-1(b) and (b)(1)(i), all of US Gas' income will be 
from sources within the United States.
    Example 3. Sale in third country. US Gold, a U.S. corporation, 
mines gold in country X, produces gold jewelry in the United States, 
and sells the jewelry in country Y. Assume that the fair market 
value of the gold at the export terminal in country X is $40, and 
that US Gold ultimately sells the gold jewelry in country Y for 
$100. Under Sec. 1.863-1(b), $40 of US Gold's gross receipts will be 
allocated to sources without the United States. Under Sec. 1.863-
1(b)(1)(ii), the source of the remaining $60 of gross receipts will 
be determined under Sec. 1.863-3. If US Gold applies the 50/50 
method described in Sec. 1.863-3, $20 of cost of goods sold is 
properly attributable to activities subsequent to the export 
terminal, and all of US Gold's production assets subsequent to the 
export terminal are located in the United States, then $20 of gross 
income will be allocated to sources within the United States and $20 
of gross income will be allocated to sources without the United 
States.
    Example 4. Production in country of sale. US Oil, a U.S. 
corporation, extracts oil in country X, transports the oil via 
pipeline to the export terminal in country Y, refines the oil in the 
United States, and sells the refined product in the United States to 
unrelated persons. Assume that the fair market value of the oil at 
the export terminal in country Y is $80, and that US Oil ultimately 
sells the refined product for $100. Under Sec. 1.863-1(b)(1), $80 of 
US Oil's gross receipts will be allocated to sources without the 
United States, and under Sec. 1.863-1(b)(1)(iii) the remaining $20 
of gross receipts will be allocated to sources within the United 
States.
    Example 5. Additional production prior to export. US Furniture, 
a U.S. corporation, cuts trees in the United States, converts the 
trees into lumber, uses the lumber to manufacture furniture in the 
United States, and sells the furniture in another country. Assume 
that the fair market value of the trees when the conversion into 
lumber begins is $40, and that US Furniture ultimately sells the 
furniture for $100. Because the conversion of the trees into lumber 
is an additional production activity within the United States within 
the meaning of Sec. 1.863-1(b)(3)(ii), the source of US Furniture's 
income will be determined under Sec. 1.863-1(b)(2). Thus, $40 of US 
Furniture's gross receipts will be allocated to sources within the 
United States. The source of the remaining $60 of gross receipts 
will be determined under Sec. 1.863-3. If US Furniture applies the 
50/50 method described in Sec. 1.863-3(b)(1), $20 of cost of goods 
sold is properly attributable to the additional production activity, 
and all of US Furniture's production assets used in the additional 
production activity are located in the United States, then $20 of 
gross income will be allocated to sources within the United States 
and $20 of gross income will be allocated to sources without the 
United States.

    (c) Determination of taxable income. The taxpayer's taxable income 
from sources within or without the United States will be determined 
under the rules of Secs. 1.861-8 through 1.861-14T for determining 
taxable income from sources within the United States.
    (d) Effective dates. The rules of this section will apply to 
taxable years beginning 30 days after publication of these regulations 
as final regulations. However, taxpayers may apply the rules of this 
section for taxable years beginning after July 11, 1995, and before 30 
days after publication of these regulations as final regulations. For 
years beginning before 30 days after publication of these regulations 
as final regulations, see Sec. 1.863-1 (as contained in 26 CFR part 1 
revised as of April 1, 1995).

Sec. 1.863-2  Allocation and apportionment of taxable income.

    (a) Determination of taxable income. Section 863(b) provides an 
alternate method for determining taxable income from sources within the 
United States in the case of gross income derived from sources partly 
within and partly without the United States. Under this method, taxable 
income is determined by deducting from such gross income the expenses, 
losses, or other deductions properly apportioned or allocated thereto 
and a ratable part of any other expenses, losses, or deductions that 
cannot definitely be allocated to some item or class of gross income. 
The income to which this section applies (and that is treated as 
derived partly from sources within and partly from sources without the 
United States) will consist of gains, profits, and income--
    (1) From certain transportation or other services rendered partly 
within and partly without the United States to the extent not within 
the scope of section 863(c) or other specific provisions of this title;
    (2) From the sale of inventory property (within the meaning of 
section 865(i)) produced (in whole or in part) by the taxpayer in the 
United States and sold in a foreign country or produced (in whole or in 
part) by the taxpayer in a foreign country and sold in the United 
States; or
    (3) Derived from the purchase of personal property within a 
possession of the United States and its sale within the United States, 
to the extent not excluded from the scope of these regulations under 
Sec. 1.936-6(a)(5), Q&A 7.
    (b) Determination of source of taxable income. Income treated as 
derived from sources partly within and partly without the United States 
under paragraph (a) of this section may be allocated to sources within 
and without the United States pursuant to Sec. 1.863-1 or apportioned 
to such sources in accordance with the methods described in other 
regulations under section 863. To determine the source of certain types 
of income described in paragraph (a)(1) of this section, see 
Sec. 1.863-4. To determine the source of gross income described in 
paragraph (a)(2) of this section, see Sec. 1.863-3. However, the 
principles of Sec. 1.863-3 (b)(1) and (c) may be applied to determine 
the source of taxable income from sales of inventory property. To 
determine the source of income described in paragraph (a)(3) of this 
section, see Sec. 1.863-3(f).

[[Page 63487]]

    (c) Effective dates. This section will apply to taxable years 
beginning 30 days after publication of these regulations as final 
regulations. However, taxpayers may apply the rules of this section for 
taxable years beginning after July 11, 1995, and before 30 days after 
publication of these regulations as final regulations. For years 
beginning before 30 days after publication of these regulations as 
final regulations, see Sec. 1.863-2 (as contained in 26 CFR part 1 
revised as of April 1, 1995).

Sec. 1.863-3  Allocation and apportionment of income from certain sales 
of inventory.

    (a) In general. This section applies to determine the source of 
income derived from the sale of inventory property (inventory) produced 
(in whole or in part) by a taxpayer within the United States and sold 
within a foreign country, or produced (in whole or in part) by a 
taxpayer in one or more foreign countries and sold within the United 
States (Section 863 Sales). For purposes of this section, a taxpayer's 
production activity includes production activities conducted by members 
of the same affiliated group as defined under section 1504(a). A 
taxpayer's production activity also includes production activities 
conducted through a partnership of which the taxpayer is a partner 
either directly or through one or more partnerships. A taxpayer subject 
to this section must divide gross income from Section 863 Sales between 
production activity and sales activity using one of the methods 
described in paragraph (b) of this section. The source of gross income 
from production activity and from sales activity must then be 
determined under paragraph (c) of this section. Taxable income from 
Section 863 Sales is determined under paragraph (d) of this section. 
Paragraph (e) of this section describes the rules for electing the 
methods described in paragraph (b) of this section and the information 
that a taxpayer must disclose on a tax return. Paragraph (f) of this 
section applies to determine the source of certain income derived from 
a possession of the United States. Paragraph (g) of this section 
provides effective dates for the rules in this section. Once a taxpayer 
has elected a method described in paragraph (b) of this section, the 
taxpayer must separately apply that method to Section 863 Sales in the 
United States and to Section 863 Sales in foreign countries. In 
addition, the taxpayer must apply the rules of paragraphs (c) and (d) 
of this section by aggregating all Section 863 Sales to which a method 
described in paragraph (b) of this section applies. See section 
865(i)(1) for the definition of inventory property; Sec. 1.861-7(c) for 
the time and place of sale. See also section 865(e)(2).
    (b) Methods to determine income attributable to production activity 
and sales activity--(1) 50/50 method--(i) Determination of gross 
income. Generally, gross income from Section 863 Sales will be 
apportioned between production activity and sales activity under the 
50/50 method as described in this paragraph (b)(1). Under the 50/50 
method, one-half of the taxpayer's gross income will be considered 
income attributable to production activity and the source of that 
income will be determined under the rules of paragraph (c)(1) of this 
section. The remaining one-half of such gross income will be considered 
income attributable to sales activity and the source of that income 
will be determined under the rules of paragraph (c)(2) of this section. 
In lieu of the 50/50 method, the taxpayer may elect to determine the 
source of income from Section 863 Sales under the IFP method described 
in paragraph (b)(2) of this section or, with the consent of the 
District Director, the books and records method described in paragraph 
(b)(3) of this section.
    (ii) Example. The following example illustrates the rules of this 
paragraph (b)(1):

    Example. 50/50 method. (i) P, a U.S. corporation, produces 
widgets in the United States. P sells the widgets for $100 to D, an 
unrelated foreign distributor, in another country. P's cost of goods 
sold is $40. Thus, P's gross income is $60.
    (ii) Pursuant to the 50/50 method, one-half of P's gross income, 
or $30, is considered income attributable to production activity, 
and one-half of P's gross income, or $30, is considered income 
attributable to sales activity.

    (2) IFP method--(i) Establishing an IFP. A taxpayer may elect to 
allocate gross income earned from production activity and sales 
activity using the independent factory price (IFP) method described in 
this paragraph (b)(2) if an IFP is fairly established. An IFP is fairly 
established based on a sale by the taxpayer only if the taxpayer 
regularly sells part of its output to wholly independent distributors 
or other selling concerns in such a way as to reasonably reflect the 
income earned from production activity. A sale will not be considered 
to fairly establish an IFP if sales activity by the taxpayer with 
respect to that sale is significant in relation to all of the 
activities with respect to that product.
    (ii) Applying the IFP method. If the taxpayer elects to use the IFP 
method, the amount of the gross sales price equal to the IFP will be 
treated as attributable to production activity, and the excess of the 
gross sales price over the IFP will be treated as attributable to sales 
activity. If a taxpayer elects to use the IFP method, the IFP must be 
applied to all Section 863 Sales of inventory that are substantially 
similar in physical characteristics and function, and are sold at a 
similar level of distribution as the inventory sold in the sale fairly 
establishing an IFP. The IFP will only be applied to sales that are 
reasonably contemporaneous with the sale fairly establishing the IFP. 
An IFP cannot be applied to sales in other geographic markets if the 
markets are substantially different. The rules of this paragraph will 
also apply to determine the division of gross receipts between 
production activity and sales activity in a Section 863 Sale that 
itself fairly establishes an IFP. If the taxpayer elects to apply the 
IFP method, the IFP method must be applied to all sales for which an 
IFP may be fairly established for that taxable year and each subsequent 
taxable year. The taxpayer will apply either the 50/50 method described 
in paragraph (b)(1) of this section or the books and records method 
described in paragraph (b)(3) of this section to any other Section 863 
Sale for which an IFP cannot be established or applied for each taxable 
year.
    (iii) Determination of gross income. The amount of a taxpayer's 
gross income from production activity is determined by reducing the 
amount of gross receipts from production activity by the cost of goods 
sold properly attributable to production activity. The amount of a 
taxpayer's gross income from sales activity is determined by reducing 
the amount of gross receipts from sales activity by the cost of goods 
sold (if any) properly attributable to sales activity. The source of 
gross income from production activity is determined under the rules of 
paragraph (c)(1) of this section, and the source of gross income from 
sales activity will be determined under the rules of paragraph (c)(2) 
of this section.
    (iv) Examples. The following examples illustrate the rules of this 
paragraph (b)(2):

    Example 1. IFP method. (i) P, a U.S. producer, purchases cotton 
and produces cloth in the United States. P sells cloth in country X 
to D, a unrelated foreign clothing manufacturer, for $100. Cost of 
goods sold for cloth is $80, entirely attributable to production 
activity. P does not engage in significant sales activity in 
relation to its other activities in the sales to D. Under these 
facts, the sale to D fairly establishes an IFP of $100. Assume that 
P elects to use the IFP method. Accordingly, $100 of the gross sales 
price is treated as attributable to production activity, and no 
amount of income from this 

[[Page 63488]]
sale is attributable to sales activity. After reducing the gross sales 
price by cost of goods sold, $20 of the gross income is treated as 
attributable to production activity ($100-$80).
    (ii) P also sells cloth in country X to A, a unrelated foreign 
retail outlet, for $110. Because P elected the IFP method and the 
cloth is substantially similar to the cloth sold to D, the IFP 
fairly established in the sales to D must be used to determine the 
amount attributable to production activity in the sale to A. 
Accordingly, $100 of the gross sales price is treated as 
attributable to production activity and $10 ($110-$100) is 
attributable to sales activity. After reducing the gross sales price 
by cost of goods sold, $20 of the gross income is treated as 
attributable to production activity ($100-$80) and $10 is 
attributable to sales activity.
    Example 2. Scope of IFP Method. (i) USCo manufactures three 
dissimilar products. USCo elects to apply the IFP method. In year 1, 
an IFP can be established for sales of product X, but not for 
products Y and Z. In year 2, an IFP cannot be established for any of 
USCo's products. In year 3, an IFP can be established for products X 
and Y, but not for product Z.
    (ii) In year 1, USCo must apply the IFP method to sales of 
product X. In year 2, although USCo's IFP election remains in 
effect, USCo is not required to apply the IFP election to any 
products. In year 3, USCo is required to apply the IFP method to 
sales of products X and Y.

    (3) Books and records method. A taxpayer may elect to determine the 
amount of its gross income from Section 863 Sales that is attributable 
to production and sales activities for the taxable year based upon its 
books of account if it has received in advance the permission of the 
District Director having audit responsibility over its tax return. The 
taxpayer must establish to the satisfaction of the District Director 
that the taxpayer, in good faith and unaffected by considerations of 
tax liability, will regularly employ in its books of account a detailed 
allocation of receipts and expenditures which clearly reflects the 
amount of the taxpayer's income from production and sales activities. 
If a taxpayer receives permission to apply the books and records 
method, but does not comply with a material condition set forth by the 
District Director, the District Director may, in its discretion, revoke 
permission to use the books and records method. The source of gross 
income treated as attributable to production activity under this method 
may be determined under the rules of paragraph (c)(1) of this section, 
and the source of gross income attributable to sales activity will be 
determined under the rules of paragraph (c)(2) of this section.
    (c) Determination of the source of gross income from production 
activity and sales activity--(1) Income attributable to production 
activity--(i) Production only within the United States or only within 
foreign countries--(A) Source of income. Where the taxpayer's 
production assets are located only within the United States or only 
within a foreign country, the income attributable to production 
activity is sourced where the taxpayer's production assets are located. 
For rules regarding the source of income when production assets are 
located both within the United States and within one or more foreign 
countries, see paragraph (c)(1)(ii) of this section. For purposes of 
this section, production activity means an activity that creates, 
fabricates, manufactures, extracts, processes, cures, or ages 
inventory. See Sec. 1.864-1.
    (B) Definition of production assets. For purposes of this section, 
production assets include only tangible and intangible assets owned by 
the taxpayer that are directly used by the taxpayer to produce 
inventory described in paragraph (a) of this section. Production assets 
do not include assets that are not directly used to produce inventory 
described in paragraph (a) of this section. Thus, production assets do 
not include such assets as accounts receivables, intangibles not 
related to production of inventory (e.g., marketing intangibles, 
including trademarks and customer lists), transportation assets, 
warehouses, the inventory itself, raw materials, or work-in-process. In 
addition, production assets do not include cash or other liquid assets 
(including working capital), investment assets, prepaid expenses, or 
stock of a subsidiary. A partner will be treated as owning its 
proportionate share of the partnership's production assets, determined 
by reference to the partner's distributive share of partnership income 
for the year attributable to such production assets.
    (C) Location of production assets. For purposes of this section, a 
tangible production asset will be considered located where the asset is 
physically located. An intangible production asset will be considered 
located where the tangible production assets owned by the taxpayer to 
which it relates are located.
    (ii) Production both within the United States and within foreign 
countries--(A) Source of income. Where the taxpayer's production assets 
are located both within the United States and within one or more 
foreign countries, income from sources without the United States will 
be determined by multiplying the income attributable to production 
activity by a fraction, the numerator of which is the average adjusted 
basis of production assets that are located in one or more foreign 
countries and the denominator of which is the average adjusted basis of 
all production assets in foreign countries and in the United States. 
The remaining income is treated as from sources within the United 
States.
    (B) Adjusted basis of production assets. For purposes of paragraph 
(c)(1)(ii)(A) of this section, the adjusted basis of an asset is 
determined under section 1011. The average adjusted basis is computed 
by averaging the adjusted basis of the asset at the beginning and end 
of the taxable year, unless by reason of material changes during the 
taxable year such average does not fairly represent the average for 
such year. In this event, the average adjusted basis will be determined 
upon a more appropriate basis. If production assets are used to produce 
inventory sold in Section 863 Sales and are also used to produce other 
property during the taxable year, the portion of its adjusted basis 
that is included in the fraction described in paragraph (c)(1)(ii)(A) 
of this section will be determined under any method that reasonably 
reflects the portion of the assets that produces inventory sold in 
Section 863 Sales. For example, the portion of such an asset that is 
included in the formula may be determined by multiplying the asset's 
average adjusted basis by a fraction, the numerator of which is the 
gross receipts from sales of inventory from Section 863 Sales produced 
by the asset, and the denominator of which is the gross receipts from 
all property produced by that asset. For purposes of this section, a 
taxpayer's basis in production assets held through a partnership shall 
be determined by reference to the partnership's adjusted basis in its 
assets (including a partner's special basis adjustment, if any, under 
section 743).
    (iii) Examples. The following examples illustrate the rules of this 
paragraph (c)(1):

    Example 1. Source of production income. (i) A, a U.S. 
corporation, produces widgets that are sold both within the United 
States and within a foreign country. The initial manufacture of all 
widgets occurs in the United States. The second stage of production 
of widgets that are sold within a foreign country is completed 
within the country of sale. A's U.S. plant and machinery which is 
involved in the initial manufacture of the widgets has an average 
adjusted basis of $200. A also owns warehouses used to store work-
in-process. A owns foreign equipment with an average adjusted basis 
of $25. A's gross receipts from all sales of widgets is $100, and 
its gross receipts from export sales of widgets is $25. Assume that 
apportioning average adjusted basis using gross receipts is 
reasonable. Assume A's cost of goods sold from the sale of widgets 
in the foreign countries is $13 and thus, its gross 

[[Page 63489]]
income from widgets sold in foreign countries is $12. A uses the 50/50 
method to divide its gross income between production activity and 
sales activity.
    (ii) A determines its production gross income from sources 
without the United States by multiplying one-half of A's $12 of 
gross income from sales of widgets in foreign countries, or $6, by a 
fraction, the numerator of which is all relevant foreign production 
assets, or $25, and the denominator of which is all relevant 
production assets, or $75 ($25 foreign assets + ($200 U.S. assets 
x  $25 gross receipts from export sales/$100 gross receipts from all 
sales)). Therefore, A's gross production income from sources without 
the United States is $2 ($6  x  ($25/$75)).
    Example 2. Location of intangible property. Assume the same 
facts as Example 1, except that A employs a patented process that 
applies only to the initial production of widgets. In computing the 
formula used to determine the source of income from production 
activity, A's patent, if it has an average adjusted basis, would be 
located in the United States.

    (2) Income attributable to sales activity. The source of the 
taxpayer's income that is attributable to sales activity will be 
determined under the provisions of Sec. 1.861-7(c).
    (d) Determination of source of taxable income. Once the source of 
gross income has been determined under paragraph (c) of this section, 
the taxpayer must properly allocate and apportion separately under 
Secs. 1.861-8 through 1.861-14T the amounts of its expenses, losses, 
and other deductions to its respective amounts of gross income from 
Section 863 Sales determined separately under each method described in 
paragraph (b) of this section. In addition, if the taxpayer deducts 
expenses for research and development under section 174 that may be 
attributed to its Section 863 Sales under Sec. 1.861-8(e)(3), the 
taxpayer must separately allocate or apportion expenses, losses, and 
other deductions to its respective amounts of gross income from each 
relevant product category that the taxpayer uses in applying the rules 
of Sec. 1.861-8(e)(3)(i)(A). In the case of gross income from Section 
863 Sales determined under the IFP method or the books and records 
method, the rules of Secs. 1.861-8 through 1.861-14T must apply to 
properly allocate or apportion amounts of expenses, losses and other 
deductions allocated and apportioned to such gross income between gross 
income from sources within and without the United States. In the case 
of gross income from Section 863 Sales determined under the 50/50 
method, the amounts of expenses, losses, and other deductions allocated 
and apportioned to such gross income must be apportioned between 
sources within and without the United States pro rata based on the 
relative amounts of gross income from sources within and without the 
United States determined under the 50/50 method.
    (e) Election and reporting rules--(1) Elections under paragraph (b) 
of this section. If a taxpayer does not elect a method specified in 
paragraph (b)(2) or (3) of this section, the taxpayer must apply the 
method specified in paragraph (b)(1) of this section. The taxpayer may 
elect to apply the method specified in paragraph (b)(2) of this section 
by using the method on a timely filed original return (including 
extensions). A taxpayer may elect to apply the method specified in 
paragraph (b)(3) of this section by using the method on a timely filed 
original return (including extensions), but only if the taxpayer has 
received permission from the District Director to apply that method. 
Once a method under paragraph (b) of this section has been used, that 
method must be used in later taxable years unless the Commissioner 
consents to a change. See e.g., paragraph (b)(2)(ii) Example 2 of this 
section. However, if a taxpayer elects to change to or from the method 
specified in paragraph (b)(3) of this section, the taxpayer must obtain 
permission from the District Director instead of the Commissioner. 
Permission to change methods from one year to another year will not be 
withheld unless the change would result in a substantial distortion of 
the source of the taxpayer's income.
    (2) Disclosure on tax return. A taxpayer who uses one of the 
methods described in paragraph (b) of this section must fully explain 
the methodology used, the circumstances justifying use of that method, 
the extent that sales are aggregated, and the amount of income so 
allocated.
    (f) Income partly from sources within a possession of the United 
States. [Reserved]
    (g) Effective dates. The rules of paragraphs (a) through (e) of 
this section will apply to taxable years beginning 30 days after 
publication of final regulations. However, taxpayers may apply these 
regulations for taxable years beginning after July 11, 1995, and before 
30 days after publication of these regulations as final regulations. 
For years beginning before 30 days after the publication of these 
regulations as final regulations, see Sec. 1.863-3 (as contained in 26 
CFR part 1 revised as of April 1, 1995).
    Par. 4. Section 1.863-4 is amended by revising the section heading 
and paragraph (a) to read as follows:

Sec. 1.863-4  Certain transportation services.

    (a) General. A taxpayer carrying on the business of transportation 
service (other than an activity giving rise to transportation income 
described in section 863(c) or to income subject to other specific 
provisions of this title) between points in the United States and 
points outside the United States derives income partly from sources 
within and partly from sources without the United States.
* * * * *

Sec. 1.863-5  [Removed]

    Par. 6. Section 1.863-5 is removed.
Margaret Milner Richardson,
Commissioner of Internal Revenue.
[FR Doc. 95-30087 Filed 12-7-95; 2:00 pm]
BILLING CODE 4830-01-U

Complete official Federal Register PDF

FR Doc. 95-30085 Common Crop Insurance Regulations; Malting Barley Price and Quality Endorsement Crop Insurance Provisions
[Federal Register Volume 60, Number 237 (Monday, December 11, 1995)]
[Proposed Rules]
[Pages 63457-63461]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-30085]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF AGRICULTURE

Federal Crop Insurance Corporation

7 CFR Part 457

RIN 0563-AB24

Common Crop Insurance Regulations; Malting Barley Price and 
Quality Endorsement Crop Insurance Provisions

AGENCY: Federal Crop Insurance Corporation.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The Federal Crop Insurance Corporation (``FCIC'') hereby 
proposes to revise the Malting Barley Option Crop Insurance provisions. 
The intended effect of this action is to improve the insurance coverage 
now available for producers who grow malting barley under contract with 
a brewery, or business that sells malt or processed mash to a brewery; 
and to provide a new option that will allow producers without contracts 
(open market producers) to obtain insurance for their malting barley.

DATES: Written comments, data, and opinions on this proposed rule must 
be submitted by the close of business December 21, 1995 to be 
considered when the rule is to be made final. The comment period for 
information collections under the Paperwork Reduction Act of 1995 
continues through February 5, 1996.

ADDRESSES: Written comments, data, and opinion on this proposed rule 
should be sent to Diana Moslak, Regulatory and Procedural Development 
Staff, Federal Crop Insurance Corporation, USDA, Washington, D.C. 
20250. Hand or messenger delivery should be made to 14th and 
Independence Avenue, S.W., Room 6097, South Building, Washington, D.C. 
Written comments will be available for public inspection and copying in 
the Office of the Manager, 14th and Independence Avenue, S.W., Room 
6097, South Building, Washington, D.C., during regular business hours, 
Monday through Friday.

FOR FURTHER INFORMATION CONTACT: For further information and a copy of 
the Regulatory Economic Analysis of the Malting Barley Endorsement Crop 
Insurance provisions, contact Diana Moslak, Regulatory and Procedural 
Development Staff, Federal Crop Insurance Corporation, USDA, 
Washington, D.C. 20250. Telephone (202) 720-0713.

SUPPLEMENTARY INFORMATION: This action has been reviewed under United 
States Department of Agriculture (``USDA'') procedures established by 
Executive Order 12866 and Departmental Regulation 1512-1. This action 
constitutes a review as to the need, currency, clarity, and 
effectiveness of these regulations under those procedures. The sunset 
review date established for these regulations is July 1, 2000.
    This rule has been determined to be ``significant'' for the 
purposes of Executive Order 12866 and, therefore, has been reviewed by 
the Office of Management and Budget (``OMB'').
    A Regulatory Economic Analysis has been completed and is available 
to interested persons at the address listed above. In summary, the 
analysis finds that the expected benefits of this action outweigh the 
costs. The new Malting Barley Price and Quality Endorsement will 
simplify program operations, benefit FCIC and reinsured companies, and 
enhance the insurance coverage for malting barley producers.

Paperwork Reduction Act of 1995

    The information collection requirements contained in these 
regulations were submitted to OMB for their approval under section 
3507(j) of the Paperwork Reduction Act of 1995, and received emergency 
approval through March 5, 1996. The agency is also seeking a valid 
approval for 3 years under section 3507(d). These requirements were 
previously approved by OMB under OMB control number 0563-0003 through 
September 30, 1998. Public comments are due by February 5, 1996.
    The title of this information collection is ``Catastrophic Risk 
Protection Plan and Related Requirements including General Crop 
Insurance Regulations, Common Crop Insurance Regulations; Malting 
Barley Price and Quality Endorsement Crop Insurance Provisions.'' The 
Information to be collected includes: a crop insurance acreage report, 
an insurance application and continuous contract. Information collected 
from the acreage report and application is electronically submitted to 
FCIC by the reinsured companies. Some respondents may provide 
additional information for the purpose of selecting malting barley 
insurance coverage options. Potential respondents to this information 
collection are growers of malting barley that are eligible for Federal 
crop insurance.
    The information requested is necessary for the insurance company 
and FCIC to provide insurance, provide reinsurance, determine 
eligibility, determine and collect premiums or other monetary amounts 
(or fees), and pay benefits.
    All information is reported annually. The reporting burden for this 
collection of information is estimated to average 16.9 minutes per 
response for each of the 3.6 responses from approximately 1,755,015 
respondents. The total annual burden on the public for this information 
collection is 2,676,932 hours.
    The comment period for information collections under the Paperwork 
Reduction Act of 1995 continues through February 5, 1996, on the 
following: (a) whether the proposed collection of information is 
necessary for the proper performance of the functions of the agency, 
including whether the information shall have practical utility; (b) the 
accuracy of the agency's estimate of the burden of the proposed 
collection of information; (c) ways to enhance the quality, utility, 
and clarity of the information to be collected; and (d) ways to 
minimize the burden of the collection of information 

[[Page 63458]]
on respondents, including through the use of automated collection 
techniques or other forms of information technology.
    Comments should be submitted to the Desk Officer for Agriculture, 
Office of Information and Regulatory Affairs, Office of Management and 
Budget (OMB), Washington, D.C. 20503 and to Bonnie Hart, Information 
Management Branch, Farm Service Agency, U.S. Department of Agriculture, 
Washington, D.C. 20250. Copies of the information collection may be 
obtained from Bonnie Hart at the above address. Telephone (202) 690-
2857.
    It has been determined under section 6(a) of Executive Order 12612, 
Federalism, that this rule does not have sufficient federalism 
implications to warrant the preparation of a Federalism Assessment. The 
provisions contained in this rule will not have a substantial direct 
effect on states or their political subdivisions, or on the 
distribution of power and responsibilities among the various levels of 
government.
    This regulation will not have a significant impact on a substantial 
number of small entities. The impact of obtaining or delivering these 
policies will not vary significantly from that required to obtain or 
deliver the present policy. Therefore, this action is determined to be 
exempt from the provisions of the Regulatory Flexibility Act (5 U.S.C. 
Sec. 605 ) and no Regulatory Flexibility Analysis was prepared.
    This program is listed in the Catalog of Federal Domestic 
Assistance under No. 10.450.
    This program is not subject to the provisions of Executive Order 
12372 which require intergovernmental consultation with state and local 
officials. See the Notice related to 7 CFR part 3015, subpart V, 
published at 48 FR 29115, June 24, 1983.
    The Office of the General Counsel has determined that these 
regulations meet the applicable standards provided in subsections 2(a) 
and 2(b)(2) of Executive Order 12778. The provisions of this rule will 
preempt state and local laws to the extent such state and local laws 
are inconsistent herewith. The administrative appeal provisions 
promulgated by the National Appeals Division under Pub. L. No. 103-354 
must be exhausted before judicial action may be brought.
    This action is not expected to have any significant impact on the 
quality of the human environment, health, and safety. Therefore, 
neither an Environmental Assessment nor an Environmental Impact 
Statement is needed.

Background

    FCIC proposes to amend the Common Crop Insurance Regulations (7 CFR 
part 457) by revising and reissuing 7 CFR 457.103, Malting Barley 
Option effective for the 1996 and succeeding crop years. The principal 
changes to the provisions for insuring malting barley are as follows:
    1. The current Malting Barley Option will be replaced by the 
proposed Malting Barley Price and Quality Endorsement. The new 
endorsement is divided into two coverage options. Option A is intended 
to provide insurance coverage for producers who do not grow malting 
barley under contract with a brewery or with a business that makes or 
sells malt or processed mash to a brewery. Option B provides insurance 
coverage for producers who grow malting barley under such a contract. A 
producer may select only one option to cover all acreage planted to 
approved varieties of malting barley in the county during the crop 
year.

Option A

    2. Section 1--Requires an applicant for insurance or insured to 
provide records of the sale of malting barley for at least four crop 
years to be eligible for coverage. These production records may be used 
to determine the malting barley production guarantee (see item 3 
below).
    3. Section 2--Provides that the malting barley production guarantee 
per acre will be the lesser of: (a) The production guarantee calculated 
under the APH regulations, 7 CFR part 400, subpart G, and the Small 
Grains Crop Provisions for feed barley for acreage planted to approved 
malting varieties; or (b) the average amount calculated under the APH 
regulations of malting barley sold per planted acre during the APH base 
period.
    4. Section 3--Provides for the maximum malting barley additional 
value price to be designated in the Special Provisions.
    5. Section 4--Indicates the production to count against the malting 
barley production guarantee. Quality standards specified in this 
section represent typical minimum acceptance standards in the malting 
barley industry.
    6. Section 5--Provides that a claim cannot be settled until final 
disposition of all production can be determined, or May 31 of the 
calendar year following the crop year. Production stored after May 31 
of the calendar year following the crop year will be adjusted based on 
the quality specifications contained in subsection 4(b) of the option. 
This extended settlement period is intended to prevent the payment of 
an indemnity for production that does not meet quality specifications 
but is ultimately used for malting purposes due to a shortage of 
quality malting barley. If barley is used for malting purposes 
regardless of quality it is production to count against the guarantee.

Option B

    7. Section 1--Requires an applicant for insurance or insured to 
provide a copy of the malting barley contract by the acreage reporting 
date to be eligible for coverage. The amount of production under 
contract may be used to determine the malting barley production 
guarantee (see item 8 below).
    8. Section 2--Provides that the malting barley production guarantee 
per acre be the lesser of: (a) The production guarantee calculated 
under the APH regulations, 7 CFR part 400, subpart G, and the Small 
Grains Crop Provisions for feed barley for acreage planted to approved 
malting varieties; or (b) the amount determined by dividing the number 
of bushels of contracted production by the number of acres planted to 
approved malting varieties, and multiplying the result by the 
percentage for the coverage level you elected under the Small Grains 
Crop Provisions for feed barley.
    9. Section 3--Establishes the maximum malting barley additional 
value price as: (a) The difference between the maximum price election 
available for feed barley under the Small Grains Crop Provisions and 
the established sale price in the malting barley contract provided such 
price is fixed on or before the acreage reporting date; or (b) the 
basis or differential per bushel shown in the malting barley contract 
if the sale price is based on a future market price for basic (feed) 
barley plus a differential amount for malting barley production. For 
example, if the malting barley contract provides for a fixed price of 
$2.50 per bushel on or before the acreage reporting date and the 
maximum price election available for feed barley is $1.90 per bushel, 
the additional value price would be $0.60 per bushel ($2.50-$1.90); 
however, if the malting barley contract provides for a basis or 
differential of $0.60 per bushel above a future market price, the 
additional value price would be $0.60. In no event will the additional 
value price exceed 200% of the maximum additional value price shown in 
the Special Provisions.
    10. Section 4--Indicates the production to count against the 
malting barley production guarantee in the event of a claim. Production 
meeting the 

[[Page 63459]]
minimum acceptance standards specified in the malting barley contract 
for percentage of protein, plump kernels, thin kernels, germination, 
blight damage, mold injury or damage, sprout damage, frost injury or 
damage, and parts per million of substances or conditions, including 
mycotoxins, that are identified by the Food and Drug Administration as 
being injurious to human or animal health, or the standards specified 
in this section, will be considered production to count.
    11. Section 5--Specifies that a claim cannot be settled until final 
disposition of all production can be determined, or May 31 of the 
calendar year following the crop year. Production stored after this 
date will be adjusted based on the quality specifications indicated in 
subsection 4(b) of the option. This extended settlement period is 
intended to prevent the payment of an indemnity for production that 
does not meet quality specifications but that is ultimately used for 
malting purposes due to a shortage of quality malting barley. If barley 
is used for malting purposes regardless of quality it is production to 
count against the guarantee.

List of Subjects in 7 CFR Part 457

    Crop insurance, Malting Barley Price and Quality Endorsement Crop 
Provisions

Proposed Rule

    Pursuant to the authority contained in the Federal Crop Insurance 
Act, as amended (7 U.S.C. Sec. 1501 et seq.), the Federal Crop 
Insurance Corporation hereby proposes to amend the Common Crop 
Insurance Regulations (7 CFR part 457), effective for the 1996 and 
succeeding crop years, as follows:

PART 457--[AMENDED]

    1. The authority citation for 7 CFR part 457 continues to read as 
follows:

    Authority: 7 U.S.C. 1506(1).

    2. Section 457.103 is revised to read as follows:

Sec. 457.103  Malting Barley Crop Insurance.

    The malting barley crop insurance provisions for the 1996 and 
succeeding crop years are as follows:

United States Department of Agriculture; Federal Crop Insurance 
Corporation; Small Grains Crop Insurance; Malting Barley Price and 
Quality Endorsement

(This is a continuous endorsement. Refer to section 2 of the Common 
Crop Insurance Policy.)
    In return for your payment of premium for the coverage contained 
herein, this endorsement will be attached to and made part of the 
Common Crop Insurance Policy (Sec. 457.8) and Small Grains Crop 
Provisions (Sec. 457.101), subject to the terms and conditions 
described herein.
    1. You must have the Common Crop Insurance Policy (Sec. 457.8) 
and the Small Grains Crop Insurance Provisions (Sec. 457.101) in 
force to elect to insure malting barley under this endorsement.
    2. You must select either option A or option B before the sales 
closing date. Failure to select either option A or option B, or 
failure to qualify for coverage under the terms of the option 
selected, will result in no coverage under this endorsement for the 
applicable crop year. For example, if you elect option B but fail to 
have a binding malting barley contract by the acreage reporting 
date, no coverage will be provided under this endorsement for the 
crop year. The selection will continue from year to year unless you 
cancel or change your selection prior to the sales closing date.
    3. You must select an added value price election at the time of 
application.
    4. The additional premium amount for this coverage will be 
determined by multiplying your malting barley production guarantee 
per acre times your selected additional value price election, times 
the premium rate, times the insured acreage, times your share at the 
time coverage begins.
    5. In addition to the acreage reporting requirements contained 
in section 6 of the Common Crop Insurance Policy (Sec. 457.8), you 
must provide the information required by your selected option.
    6. All barley acreage that is planted to approved malting 
varieties, and that is insurable under the feed barley crop 
provisions and the selected option must be insured under this 
endorsement and, on the acreage report, will be designated as, and 
limited to, one unit.
    7. In lieu of provisions in the Common Crop Insurance Policy 
(Sec. 457.8) that require you to submit a claim for indemnity not 
later than 60 days after the end of the insurance period, you must 
submit a claim for indemnity declaring the amount of your loss not 
later than May 31 of the calendar year immediately following the 
crop year.
    8. Prevented planting coverage is not provided by this 
endorsement but is available only under the terms of the Small 
Grains Crop Provisions for barley.
    9. Definitions:
    (a) APH--Actual Production History as determined in accordance 
with 7 CFR part 400, subpart G.
    (b) Approved malting variety--A variety of barley specified as 
such in the Special Provisions.
    (c) Brewery--A facility where malt beverages are commercially 
produced for human consumption.
    (d) Contracted production--The quantity of malting barley the 
insured producer agrees to grow and deliver, and the buyer agrees to 
accept, under the terms of the malting barley contract.
    (e) Licensed grain grader--A person who is authorized to inspect 
and grade barley under the United States Grain Standards Act or the 
United States Warehouse Act.
    (f) Malting barley contract--A written contract with a brewery 
or business that produces or sells malt or processed mash to a 
brewery or a company owned by such brewery or business, in which is 
stated the production contracted and a purchase price or a method to 
be used in determining such price.
    (g) Objective test--A determination made by a qualified person 
using standardized equipment that is widely used in the malting 
industry, and following a procedure approved by the American Society 
of Brewing Chemists when determining percent germination or protein 
content; grading performed following a procedure approved by the 
Federal Grain Inspection Service when determining quality factors 
other than percent germination or protein content; or by the Food 
and Drug Administration when determining parts per million of 
mycotoxins or other substances or conditions that are identified as 
being injurious to human or animal health.
    (h) Subjective test--A determination made using olfactory, 
visual, touch or feel, masticatory, or other senses unless performed 
by a licensed grain grader; or that uses non-standardized equipment, 
or that does not follow a procedure approved by the American Society 
of Brewing Chemists, the Federal Grain Inspection Service, or the 
Food and Drug Administration.
    (i) Value per bushel--The highest price per bushel received or 
that could be received for the malting barley in the local market 
area.
    (j) Unit--All insurable acreage of approved malting varieties in 
the county on the date coverage begins for the crop year.

Option A (for Non-Contracted Production or a Combination of Contracted 
and Non-Contracted Production)

    This option provides coverage for malting barley production 
losses at a price per bushel greater than that available under the 
Small Grains Crop Provisions.
    1. To be eligible for coverage under this option you must 
provide us acceptable records of the sale of malting barley and the 
number of acres planted to malting varieties for at least the four 
crop years prior to the crop year immediately preceding the current 
crop year. For example, to determine your production guarantee for 
the 1995 crop year, records must be provided for the 1990 through 
the 1993 crop years, if malting barley was planted in each of those 
crop years. You must provide these records to us no later than the 
production reporting date.
    2. Your malting barley production guarantee per acre will be the 
lesser of:
    (a) The production guarantee for feed barley for acreage planted 
to approved malting varieties calculated in accordance with the 
Small Grains Crop Provisions and APH regulations; or
    (b) A production guarantee calculated in accordance with APH 
procedures using the malting barley sales and acreage records 
provided by you.
    3. The additional value price per bushel elected cannot exceed 
the maximum price designated in the Special Provisions.
    4. The amount of production to count against your malting barley 
production guarantee will include all: 

[[Page 63460]]

    (a) Appraised production determined in accordance with 
subsections 11(c)(1) (i) and (ii) of the Small Grains Crop 
Provisions;
    (b) Harvested production and potential unharvested production 
that meets, or would if properly handled, meet:
    (1) Tolerances established by the Food and Drug Administration 
or other public health organization of the United States for 
substances or conditions, including mycotoxins, that are identified 
as being injurious to human or animal health; and
    (2) The following quality standards, as applicable:

----------------------------------------------------------------------------------------------------------------
                                              Six-rowed malting barley             Two-rowed malting barley     
----------------------------------------------------------------------------------------------------------------
Protein (dry basis)...................  14.0% maximum......................  14.0% maximum.                     
Plump kernels.........................  65.0% minimum......................  75.0% minimum.                     
Thin kernels..........................  10.0% maximum......................  10.0% maximum.                     
Germination...........................  95.0% minimum......................  95.0% minimum.                     
Blight damaged........................  4.0% maximum.......................  4.0% maximum.                      
Injured by mold.......................  5.0% maximum.......................  5.0% maximum.                      
Mold damaged..........................  0.4% maximum.......................  0.4% maximum.                      
Sprout damaged........................  1.0% maximum.......................  1.0% maximum.                      
Injured by frost......................  5.0% maximum.......................  5.0% maximum.                      
Frost damaged.........................  0.4% maximum.......................  0.4% maximum.                      
----------------------------------------------------------------------------------------------------------------

    (c) Harvested production that does not meet the quality 
standards contained in subsection 4(b) of this option, but is 
accepted by a buyer for malting purposes.
    (d) No reduction in value will be allowed for moisture content; 
damage due to uninsured causes; costs or reduced value associated 
with drying, handling, processing, or quality factors other than 
those contained in subsection (b) of this section; or any other 
costs associated with normal handling and marketing of malting 
barley. All grade and quality determinations must be based on the 
results of objective tests. No indemnity will be paid for any loss 
established by subjective tests. We may obtain one or more samples 
of the insured crop and have tests performed at an official grain 
inspection location established under the Grain Standards Act to 
verify the result of any test. In the event of a conflict in the 
test results, our results will be used to determine the amount of 
production to count. If failure to meet the quality standards is due 
to insurable causes, the quantity of such production may be reduced 
for quality deficiencies by:
    (1) Adding the maximum barley price election under the Small 
Grains Crop Provisions and the maximum additional value price;
    (2) Dividing this sum into the value per bushel of the damaged 
production; and
    (3) Multiplying the resulting factor (not to exceed 1.0) by the 
number of bushels of damaged production.
    5. No claim under this option may be settled until the earlier 
of:
    (a) The date final disposition of production from all acreage 
planted to approved malting barley varieties is completed; or
    (b) May 31 of the calendar year immediately following the 
calendar year in which the insured malting barley is normally 
harvested. Production to count for malting barley that has not been 
sold by this May 31 date will include all production that meets the 
quality specifications contained in subsection 4(b) of this option.
    The limitations specified in subsections 5(a) and (b) will not 
apply when all production from the insured malting barley unit 
grades U.S. No. 4 or lower in accordance with the grades and grade 
requirements for the subclasses Six-rowed barley, Two-rowed barley, 
and the class Barley in accordance with the Official United States 
Standards for Grain.
    6. In the event of loss or damage covered by this policy, we 
will settle your claim by:
    (a) Multiplying the insured acreage by the malting barley 
production guarantee per acre;
    (b) Multiplying the result by your elected additional value 
price per bushel;
    (c) Multiplying the number of bushels of production to count by 
your elected additional value price per bushel; and
    (d) Subtracting the result of step (c) from the result of step 
(b).
    7. For example, assume you insure two units of barley under the 
Small Grains Crop Provisions in which you have a 100% share and that 
are planted to approved malting varieties. Assume that each unit 
contains 40 acres. Further assume that your production guarantee 
under the Small Grains Crop Provisions is 30 bushels per acre or a 
total of 2,400 bushels. Your malting barley unit production 
guarantee is limited to 2,100 bushels by subsection 2(b). A loss 
causes the total production to count for all units under the Small 
Grains Crop Provisions to drop to 1,000 bushels, none of which meet 
the quality standards covered by this option. The indemnity for the 
malting barley unit would be based on a combined production and 
quality loss of 2,100 bushels. The indemnity would be paid at the 
additional value price per bushel. If the price were $0.40 per 
bushel, the indemnity for the malting barley unit would be $840.00 
(2,100  x  $0.40). The basic loss is paid under the Small Grains 
Crop Provisions for feed barley.

Option B--(for Contracted Production)

    This option provides coverage for malting barley production 
losses at a price per bushel greater than that available under the 
Small Grains Crop Provisions.
    1. To be eligible for coverage under this option you must 
provide us a copy of your malting barley contract by the acreage 
reporting date. Only production or acreage under contract is covered 
by this option (B). The contract must be in place and effective 
before the acreage reporting date.
    2. Your malting barley production guarantee per acre will be the 
lesser of:
    (a) The production guarantee for feed barley for acreage planted 
to approved malting varieties calculated in accordance with the 
Small Grains Crop Provisions and APH regulations; or
    (b) The number of bushels obtained by:
    (1) Dividing the number of bushels of contracted production by 
the number of acres planted to approved malting varieties in the 
current crop year; and
    (2) Multiplying the result by the percentage for the coverage 
level you elected for barley covered under the Small Grains Crop 
Provisions.
    3. The additional value price per bushel will not exceed 200% of 
the maximum additional value price shown on the Special Provisions 
and will be further limited to:
    (a) The difference between the maximum price election available 
for feed barley under the Small Grains Crop Provisions and the 
established sale price contained in the malting barley contract for 
production that meets the quality standards required by such 
contract (without regard to discounts or incentives) if the sale 
price is a fixed dollar amount established on or before the acreage 
reporting date; or
    (b) The premium amount per bushel contained in the malting 
barley contract for production that meets the quality specifications 
required by such contract (without regard to discounts or 
incentives) if the sale price is based on a future market price for 
feed barley plus a premium amount for malting barley production.
    4. The amount of production to count against your malting barley 
production guarantee will include all:
    (a) Appraised production determined in accordance with 
subsection 11(c)(1) (i) and (ii) of the Small Grains Crop 
Provisions;
    (b) Either harvested production and potential unharvested 
production that meets, or would if properly handled meet, the 
minimum acceptance standards contained in the malting barley 
contract for protein, plump kernels, thin kernels, germination, 
blight damage, mold injury or damage, sprout damage, frost injury or 
damage, and mycotoxins or other substances or conditions identified 
by the Food and Drug Administration or other public health 
organization of the United States as being injurious to human or 
animal health, or the following quality standards as applicable:

                                                                                                                

[[Page 63461]]
----------------------------------------------------------------------------------------------------------------
                                              Six-rowed malting barley             Two-rowed malting barley     
----------------------------------------------------------------------------------------------------------------
Protein (dry basis)...................  14.0% maximum......................  14.0% maximum.                     
Plump kernels.........................  65.0% minimum......................  75.0% minimum.                     
Thin kernels..........................  10.0% maximum......................  10.0% maximum.                     
Germination...........................  95.0% minimum......................  95.0% minimum.                     
Blight damaged........................  4.0% maximum.......................  4.0% maximum.                      
Injured by mold.......................  5.0% maximum.......................  5.0% maximum.                      
Mold damaged..........................  0.4% maximum.......................  0.4% maximum.                      
Sprout damaged........................  1.0% maximum.......................  1.0% maximum.                      
Injured by frost......................  5.0% maximum.......................  5.0% maximum.                      
Frost damaged.........................  0.4% maximum.......................  0.4% maximum.                      
----------------------------------------------------------------------------------------------------------------

    (c) Harvested production that does not meet the minimum 
acceptance standards for the factors listed in subsection 4(b) of 
this option, but that is accepted by a buyer for malting purposes.
    (d) No reduction in value will be allowed for moisture content; 
damage due to uninsured causes; costs or reduced value associated 
with drying, handling, processing, or quality factors other than 
those contained in subsection (b) of this section; or any other 
costs associated with normal handling and marketing of malting 
barley. All grade and quality determinations must be based on the 
results of objective tests. No indemnity will be paid for any loss 
established by subjective tests. We may obtain one or more samples 
of the insured crop and have tests performed at an official grain 
inspection location established under the Grain Standards Act to 
verify the result of any test. In the event of a conflict in the 
test results, our results will be used to determine the amount of 
production to count. If failure to meet the quality standards is due 
to insurable causes, the quantity of such production may be reduced 
for quality deficiencies by:
    (1) Adding the maximum barley price election under the Small 
Grains Crop Provisions and the maximum additional value price;
    (2) Dividing this sum into the value per bushel of the damaged 
production; and
    (3) Multiplying the resulting factor (not to exceed 1.0) by the 
number of bushels of damaged production.
    5. No claim under this option may be settled until the earlier 
of :
    (a) The date final disposition of production from all acreage 
planted to approved malting barley varieties is completed; or
    (b) May 31 of the calendar year immediately following the 
calendar year in which the insured malting barley is normally 
harvested. Production to count for malting barley that has not been 
sold by this May 31 date will include all production established in 
accordance with subsection 4(b) of this option.
    The limitations specified in subsections 5 (a) and (b) will not 
apply when all production from the insured malting barley unit 
grades U.S. No. 4 or worse in accordance with the grades and grade 
requirements for the subclasses Six-rowed barley, Two-rowed barley, 
and the class Barley in accordance with the Official United States 
Standards for Grain.
    6. In the event of loss or damage covered by this policy, we 
will settle your claim by:
    (a) Multiplying the insured acreage by the malting barley 
production guarantee per acre;
    (b) Multiplying the result by your elected additional value 
price per bushel;
    (c) Multiplying the number of bushels of production to count by 
your elected additional value price per bushel; and
    (d) Subtracting the result of step (c) from the result of step 
(b).
    7. For example, assume you insure two units of barley under the 
Small Grains Crop Provisions in which you have a 100% share and that 
are planted to approved malting varieties. Assume that unit contains 
40 acres. Further assume that your production guarantee under the 
Small Grains Crop Provisions is 30 bushels per acre or a total of 
2,400 bushels. Your malting barley unit production guarantee is 
limited to 2,100 bushels by subsection 2(b). A loss causes the total 
production to count under the basic barley policy to drop to 1,000 
bushels, none of which meet the minimum acceptance standards covered 
under this option. The indemnity for the malting barley unit would 
be based on a combined production and quality loss of 2,100 bushels. 
The indemnity would be paid at the additional value price per 
bushel. If the price were $0.60 per bushel, the indemnity for the 
malting barley unit would be $1,260.00 (2,100  x  $0.60). The basic 
loss is paid under the Small Grains Crop Provisions for feed barley.

    Done in Washington, D.C., on December 5, 1995.
Kenneth D. Ackerman,
Manager, Federal Crop Insurance Corporation.
[FR Doc. 95-30085 Filed 12-6-95; 4:03 pm]
BILLING CODE 3410-FA-P

Complete official Federal Register PDF

FR Doc. 95-30076 Airworthiness Directives; Fokker Model F28 Mark 0100 Series Airplanes
[Federal Register Volume 60, Number 237 (Monday, December 11, 1995)]
[Proposed Rules]
[Pages 63470-63472]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-30076]

-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION
14 CFR Part 39

[Docket No. 95-NM-86-AD]

Airworthiness Directives; Fokker Model F28 Mark 0100 Series 
Airplanes

AGENCY: Federal Aviation Administration, DOT.

ACTION: Notice of proposed rulemaking (NPRM).

-----------------------------------------------------------------------

SUMMARY: This document proposes the adoption of a new airworthiness 
directive (AD) that is applicable to certain Fokker Model F28 Mark 0100 
series airplanes. This proposal would require inspection(s) to verify 
that the position indicator of the fuel balance transfer valve (FBTV) 
is in the closed position, and closing the FBTV, if necessary; and 
deactivation of the fuel balance transfer system (FBTS). This proposal 
is prompted by a report that, under certain failure conditions, the 
actuator of the FBTV could remain in the open position without a flight 
deck indication. The actions specified by the proposed AD are intended 
to ensure that the FBTV is not in the open position during flight, 
which could lead to the reduction of fuel supply to the engines during 
cross-feed operation and consequent engine fuel starvation.

DATES: Comments must be received by January 22, 1996.

ADDRESSES: Submit comments in triplicate to the Federal Aviation 
Administration (FAA), Transport Airplane Directorate, ANM-103, 
Attention: Rules Docket No. 95-NM-86-AD, 1601 Lind Avenue, SW., Renton, 
Washington 98055-4056. Comments may be inspected at this location 
between 9:00 a.m. and 3:00 p.m., Monday through Friday, except Federal 
holidays.
    The service information referenced in the proposed rule may be 
obtained from Fokker Aircraft USA, Inc., 1199 North Fairfax Street, 
Alexandria, Virginia 22314. This information may be examined at the 
FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, 
Washington.

FOR FURTHER INFORMATION CONTACT: Tim Dulin, Aerospace Engineer, 
Standardization Branch, ANM-113, FAA, Transport Airplane Directorate, 
1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (206) 
227-2141; fax (206) 227-1149.

SUPPLEMENTARY INFORMATION:

Comments Invited

    Interested persons are invited to participate in the making of the 
proposed rule by submitting such written data, views, or arguments as 

[[Page 63471]]
they may desire. Communications shall identify the Rules Docket number 
and be submitted in triplicate to the address specified above. All 
communications received on or before the closing date for comments, 
specified above, will be considered before taking action on the 
proposed rule. The proposals contained in this notice may be changed in 
light of the comments received.
    Comments are specifically invited on the overall regulatory, 
economic, environmental, and energy aspects of the proposed rule. All 
comments submitted will be available, both before and after the closing 
date for comments, in the Rules Docket for examination by interested 
persons. A report summarizing each FAA-public contact concerned with 
the substance of this proposal will be filed in the Rules Docket.
    Commenters wishing the FAA to acknowledge receipt of their comments 
submitted in response to this notice must submit a self-addressed, 
stamped postcard on which the following statement is made: ``Comments 
to Docket Number 95-NM-86-AD.'' The postcard will be date stamped and 
returned to the commenter.

Availability of NPRMs

    Any person may obtain a copy of this NPRM by submitting a request 
to the FAA, Transport Airplane Directorate, ANM-103, Attention: Rules 
Docket No. 95-NM-86-AD, 1601 Lind Avenue, SW., Renton, Washington 
98055-4056.

Discussion

    The Rijksluchtvaartdienst (RLD), which is the airworthiness 
authority for the Netherlands, recently notified the FAA that an unsafe 
condition may exist on certain Fokker Model F28 Mark 0100 series 
airplanes. The RLD advises that it has received a report that, under 
certain failure conditions, the actuator of the fuel balance transfer 
valve (FBTV) could remain in the open position after maintenance 
without a flight deck indication. The FBTV is part of the fuel balance 
transfer system (FBTS) that prevents inadvertent and uncontrolled 
transfer of fuel. The FBTS is used during maintenance activities to 
move the center of gravity of the airplane forward, as required, and 
allows fuel to be transferred from the main tanks to the center tanks 
through the cross-feed system. If the FBTV remains in the open position 
during flight, the fuel supply to the engines during cross-feed 
operation may be reduced, which could lead to engine fuel starvation.
    Fokker has issued Service Bulletin SBF100-28-030, Revision 1, dated 
December 5, 1994, which describes procedures for inspection(s) to 
verify that the position indicator of the FBTV is in the closed 
position, and closing the FBTV, if necessary; and deactivation of the 
FBTS. For all airplanes, the deactivation involves disconnecting the 
power supply to the FBTV. In addition, for certain airplanes, the 
deactivation involves removing the FBTV actuator, and installing a 
locking device. The RLD classified this service bulletin as mandatory 
and issued Dutch airworthiness directive BLA 94-146 (A), dated 
September 30, 1994, in order to assure the continued airworthiness of 
these airplanes in the Netherlands.
    This airplane model is manufactured in the Netherlands and is type 
certificated for operation in the United States under the provisions of 
section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and 
the applicable bilateral airworthiness agreement. Pursuant to this 
bilateral airworthiness agreement, the RLD has kept the FAA informed of 
the situation described above. The FAA has examined the findings of the 
RLD, reviewed all available information, and determined that AD action 
is necessary for products of this type design that are certificated for 
operation in the United States.
    Since an unsafe condition has been identified that is likely to 
exist or develop on other airplanes of the same type design registered 
in the United States, the proposed AD would require inspection(s) to 
verify that the position indicator of the FBTV is in the closed 
position, and closing the FBTV, if necessary; and deactivation of the 
FBTS. The actions would be required to be accomplished in accordance 
with the service bulletin described previously.
    The FAA estimates that 4 airplanes of U.S. registry would be 
affected by this proposed AD, that it would take approximately 4 work 
hours per airplane to accomplish the proposed actions, and that the 
average labor rate is $60 per work hour. Required parts would cost 
approximately $250 per airplane. Based on these figures, the cost 
impact of the proposed AD on U.S. operators is estimated to be $1,960, 
or $490 per airplane.
    The cost impact figure discussed above is based on assumptions that 
no operator has yet accomplished any of the proposed requirements of 
this AD action, and that no operator would accomplish those actions in 
the future if this AD were not adopted.
    The regulations proposed herein would not have substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government. Therefore, in 
accordance with Executive Order 12612, it is determined that this 
proposal would not have sufficient federalism implications to warrant 
the preparation of a Federalism Assessment.
    For the reasons discussed above, I certify that this proposed 
regulation (1) is not a ``significant regulatory action'' under 
Executive Order 12866; (2) is not a ``significant rule'' under the DOT 
Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); 
and (3) if promulgated, will not have a significant economic impact, 
positive or negative, on a substantial number of small entities under 
the criteria of the Regulatory Flexibility Act. A copy of the draft 
regulatory evaluation prepared for this action is contained in the 
Rules Docket. A copy of it may be obtained by contacting the Rules 
Docket at the location provided under the caption ADDRESSES.

List of Subjects in 14 CFR Part 39

    Air transportation, Aircraft, Aviation safety, Safety.

The Proposed Amendment

    Accordingly, pursuant to the authority delegated to me by the 
Administrator, the Federal Aviation Administration proposes to amend 
part 39 of the Federal Aviation Regulations (14 CFR part 39) as 
follows:

PART 39--AIRWORTHINESS DIRECTIVES

    1. The authority citation for part 39 continues to read as follows:

    Authority: 49 USC 106(g), 40101, 40113, 44701.

Sec. 39.13  [Amended]

    2. Section 39.13 is amended by adding the following new 
airworthiness directive:

Fokker: Docket 95-NM-86-AD.

    Applicability: Model F28 Mark 0100 series airplanes, as listed 
in Fokker Service Bulletin SBF100-28-030, Revision 1, dated December 
5, 1994; certificated in any category.

    Note 1: This AD applies to each airplane identified in the 
preceding applicability provision, regardless of whether it has been 
modified, altered, or repaired in the area subject to the 
requirements of this AD. For airplanes that have been modified, 
altered, or repaired so that the performance of the requirements of 
this AD is affected, the owner/operator must use the authority 
provided in paragraph (c) of this AD to request approval from the 
FAA. This approval may address either no action, if the current 
configuration eliminates the unsafe condition; or different actions 
necessary to address the unsafe condition described in this AD. Such 
a request should include an 

[[Page 63472]]
assessment of the effect of the changed configuration on the unsafe 
condition addressed by this AD. In no case does the presence of any 
modification, alteration, or repair remove any airplane from the 
applicability of this AD.
    Compliance: Required as indicated, unless accomplished 
previously.
    To prevent the reduction of fuel supply to the engines during 
cross-feed operation, which could lead to engine fuel starvation, 
accomplish the following:
    (a) After the effective date of this AD, whenever the fuel 
balance transfer system (FBTS) is used during maintenance, prior to 
further flight, perform an inspection to verify that the position 
indicator of the fuel balance transfer valve (FBTV) is in the closed 
position, in accordance with Fokker Service Bulletin SBF100-28-030, 
Revision 1, dated December 5, 1994. The inspection requirements of 
this paragraph must be accomplished until the deactivation required 
by paragraph (b) of this AD is accomplished.
    (1) If the position indicator is in the closed position, no 
further action is required by this paragraph.
    (2) If the position indicator is in the open position, close the 
FBTV in accordance with the service bulletin.
    (b) Within 90 days after the effective date of this AD, 
deactivate the FBTS in accordance with either Part 2 or Part 3 of 
the Accomplishment Instructions of Fokker Service Bulletin SBF100-
28-030, Revision 1, dated December 5, 1994, as applicable. 
Accomplishment of the deactivation constitutes terminating action 
for the repetitive inspection requirements of paragraph (a) of this 
AD.
    (c) An alternative method of compliance or adjustment of the 
compliance time that provides an acceptable level of safety may be 
used if approved by the Manager, Standardization Branch, ANM-113, 
FAA, Transport Airplane Directorate. Operators shall submit their 
requests through an appropriate FAA Principal Maintenance Inspector, 
who may add comments and then send it to the Manager, 
Standardization Branch, ANM-113.

    Note 2: Information concerning the existence of approved 
alternative methods of compliance with this AD, if any, may be 
obtained from the Standardization Branch, ANM-113.

    (d) Special flight permits may be issued in accordance with 
sections 21.197 and 21.199 of the Federal Aviation Regulations (14 
CFR 21.197 and 21.199) to operate the airplane to a location where 
the requirements of this AD can be accomplished.

    Issued in Renton, Washington, on December 5, 1995.
Darrell M. Pederson,
Acting Manager, Transport Airplane Directorate, Aircraft Certification 
Service.
[FR Doc. 95-30076 Filed 12-8-95; 8:45 am]
BILLING CODE 4910-13-U

Complete official Federal Register PDF

FR Doc. 95-30075 Airworthiness Directives; Fokker Model F28 Mark 0100 Series Airplanes
[Federal Register Volume 60, Number 237 (Monday, December 11, 1995)]
[Proposed Rules]
[Pages 63468-63470]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-30075]

-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION
14 CFR Part 39

[Docket No. 95-NM-99-AD]

Airworthiness Directives; Fokker Model F28 Mark 0100 Series 
Airplanes

AGENCY: Federal Aviation Administration, DOT.

ACTION: Notice of proposed rulemaking (NPRM).

-----------------------------------------------------------------------

SUMMARY: This document proposes the adoption of a new airworthiness 
directive (AD) that is applicable to certain Fokker Model F28 Mark 0100 
series airplanes. This proposal would require inspections to verify the 
correct operation of the main landing gear (MLG) downlock actuators, 
and replacement of any discrepant unit with a serviceable unit. The 
proposed AD also would require eventual replacement of the MLG downlock 
actuators with improved units. This proposal is prompted by reports of 
improper operation of the MLG downlock actuator due to jamming. The 
actions specified by the proposed AD are intended to prevent such 
jamming of the downlock actuator, which could result in failure of the 
MLG downlock system, and a potential gear-up landing.

DATES: Comments must be received by January 22, 1996.

ADDRESSES: Submit comments in triplicate to the Federal Aviation 
Administration (FAA), Transport Airplane Directorate, ANM-103, 
Attention: Rules Docket No. 95-NM-99-AD, 1601 Lind Avenue, SW., Renton, 
Washington 98055-4056. Comments may be inspected at this location 
between 9:00 a.m. and 3:00 p.m., Monday through Friday, except Federal 
holidays. -
    The service information referenced in the proposed rule may be 
obtained from Fokker Aircraft USA, Inc., 1199 North Fairfax Street, 
Alexandria, Virginia 22314, and Dowty Aerospace, Customer Support 
Center, P.O. Box 49, Sterling, VA 20166. This information may be 
examined at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, 
SW., Renton, Washington.

FOR FURTHER INFORMATION CONTACT: Tim Dulin, Aerospace Engineer, 
Standardization Branch, ANM-113, FAA, Transport Airplane Directorate, 
1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (206) 
227-2141; fax (206) 227-1320.

SUPPLEMENTARY INFORMATION:

Comments Invited -

    Interested persons are invited to participate in the making of the 
proposed rule by submitting such 

[[Page 63469]]
written data, views, or arguments as they may desire. Communications 
shall identify the Rules Docket number and be submitted in triplicate 
to the address specified above. All communications received on or 
before the closing date for comments, specified above, will be 
considered before taking action on the proposed rule. The proposals 
contained in this notice may be changed in light of the comments 
received.
    Comments are specifically invited on the overall regulatory, 
economic, environmental, and energy aspects of the proposed rule. All 
comments submitted will be available, both before and after the closing 
date for comments, in the Rules Docket for examination by interested 
persons. A report summarizing each FAA-public contact concerned with 
the substance of this proposal will be filed in the Rules Docket.
    Commenters wishing the FAA to acknowledge receipt of their comments 
submitted in response to this notice must submit a self-addressed, 
stamped postcard on which the following statement is made: ``Comments 
to Docket Number 95-NM-99-AD.'' The postcard will be date stamped and 
returned to the commenter.

Availability of NPRMs

    Any person may obtain a copy of this NPRM by submitting a request 
to the FAA, Transport Airplane Directorate, ANM-103, Attention: Rules 
Docket No. 95-NM-99-AD, 1601 Lind Avenue, SW., Renton, Washington 
98055-4056.

Discussion

    The Rijksluchtvaartdienst (RLD), which is the airworthiness 
authority for the Netherlands, recently notified the FAA that an unsafe 
condition may exist on certain Fokker Model F28 Mark 0100 series 
airplanes. The RLD advises that several operators of these airplanes 
have reported that landing gear ``unsafe'' warning indications have 
appeared on the multi-function display unit (MFDU) after the flight 
crew selected the landing gear to the down position. In most cases, 
recycling the landing gear resulted in a positive downlock indication. 
Investigation revealed that the main landing gear (MLG) downlock 
actuator (jack and springpot unit) did not operate properly. Further 
investigation revealed that the tip of a spring carrier broke due to a 
malformed piston rod and a spring that was not square, which caused the 
spring carrier to move at an angle. A jammed actuator could result in 
failure of the MLG downlock system. This condition, if not corrected, 
could result in a gear-up landing.
    Fokker has issued Service Bulletin SBF100-32-072, dated March 30, 
1993, which describes procedures for repetitive inspections to verify 
the correct operation of any MLG downlock actuator having part number 
(P/N) 201218001, 201218002, 201218003, or 201218004, and replacement of 
discrepant units with serviceable units. The Fokker service bulletin 
references Dowty Aerospace Hydraulics Service Bulletin F100-32-505, 
Revision 1, dated April 16, 1993. The Dowty Aerospace Hydraulics 
service bulletin contains additional procedures for accomplishment of 
the inspection. For airplanes on which the MLG downlock actuator 
operates correctly, the Dowty Aerospace Hydraulics service bulletin 
also specifies procedures for recording the accomplishment of each 
inspection on the unit nameplate.
    Fokker also has issued Service Bulletin SBF100-32-074, dated July 
21, 1993, which describes procedures for replacement of any MLG 
downlock actuator having P/N 201218001, 201218002, 201218003, or 
201218004 with an improved unit having P/N 201218005, 201218006, 
201218007, or 201218008, respectively. The improved units have improved 
jack and springpot units with modified spring carriers and spring 
actuators, as well as a new end fitting subassembly and nut. The Fokker 
service bulletin references Dowty Aerospace Hydraulics Service Bulletin 
F100-32-506, dated June 9, 1993, as an additional source of service 
information.
    The RLD classified these service bulletins as mandatory and issued 
Netherlands airworthiness directive BLA 93-052/2 (A), dated September 
10, 1993, in order to assure the continued airworthiness of these 
airplanes in the Netherlands.
    This airplane model is manufactured in the Netherlands and is type 
certificated for operation in the United States under the provisions of 
section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and 
the applicable bilateral airworthiness agreement. Pursuant to this 
bilateral airworthiness agreement, the RLD has kept the FAA informed of 
the situation described above. The FAA has examined the findings of the 
RLD, reviewed all available information, and determined that AD action 
is necessary for products of this type design that are certificated for 
operation in the United States.
    Since an unsafe condition has been identified that is likely to 
exist or develop on other airplanes of the same type design registered 
in the United States, the proposed AD would require repetitive 
inspections to verify the correct operation of the MLG downlock 
actuators; and replacement of any discrepant unit with a serviceable 
unit. For airplanes on which no discrepant unit is found, the proposed 
AD also would require recording the accomplishment of each inspection 
on the unit nameplate. In addition, the proposed AD would require 
eventual replacement of the MLG downlock actuators with improved units. 
The actions would be required to be accomplished in accordance with the 
service bulletins described previously.
    The FAA estimates that 119 airplanes of U.S. registry would be 
affected by this proposed AD, that it would take approximately 21 work 
hours per airplane to accomplish the proposed actions, at an average 
labor rate of $60 per work hour. Required parts would be supplied by 
the vendor at no cost to operators. Based on these figures, the cost 
impact of the proposed AD on U.S. operators is estimated to be 
$149,940, or $1,260 per airplane.
    The cost impact figure discussed above is based on assumptions that 
no operator has yet accomplished any of the proposed requirements of 
this AD action, and that no operator would accomplish those actions in 
the future if this AD were not adopted.
    The regulations proposed herein would not have substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government. Therefore, in 
accordance with Executive Order 12612, it is determined that this 
proposal would not have sufficient federalism implications to warrant 
the preparation of a Federalism Assessment.
    For the reasons discussed above, I certify that this proposed 
regulation (1) is not a ``significant regulatory action'' under 
Executive Order 12866; (2) is not a ``significant rule'' under the DOT 
Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); 
and (3) if promulgated, will not have a significant economic impact, 
positive or negative, on a substantial number of small entities under 
the criteria of the Regulatory Flexibility Act. A copy of the draft 
regulatory evaluation prepared for this action is contained in the 
Rules Docket. A copy of it may be obtained by contacting the Rules 
Docket at the location provided under the caption ADDRESSES.

List of Subjects in 14 CFR Part 39

    Air transportation, Aircraft, Aviation safety, Safety. 
    
[[Page 63470]]

The Proposed Amendment -

    Accordingly, pursuant to the authority delegated to me by the 
Administrator, the Federal Aviation Administration proposes to amend 
part 39 of the Federal Aviation Regulations (14 CFR part 39) as 
follows:

PART 39--AIRWORTHINESS DIRECTIVES -

    1. The authority citation for part 39 continues to read as follows:

    Authority: 49 USC 106(g), 40101, 40113, 44701.

Sec. 39.13  [Amended] -

    2. Section 39.13 is amended by adding the following new 
airworthiness directive:

Fokker: Docket 95-NM-99-AD.

    -Applicability: Model F28 Mark 0100 series airplanes equipped 
with Dowty Aerospace Hydraulics main landing gear (MLG) downlock 
actuators having part number (P/N) 201218001, 201218002, 201218003, 
or 201218004, all serial numbers; certificated in any category.

    -Note 1: This AD applies to each airplane identified in the 
preceding applicability provision, regardless of whether it has been 
modified, altered, or repaired in the area subject to the 
requirements of this AD. For airplanes that have been modified, 
altered, or repaired so that the performance of the requirements of 
this AD is affected, the owner/operator must use the authority 
provided in paragraph (d) of this AD to request approval from the 
FAA. This approval may address either no action, if the current 
configuration eliminates the unsafe condition; or different actions 
necessary to address the unsafe condition described in this AD. Such 
a request should include an assessment of the effect of the changed 
configuration on the unsafe condition addressed by this AD. In no 
case does the presence of any modification, alteration, or repair 
remove any airplane from the applicability of this AD. -
    Compliance: Required as indicated, unless accomplished 
previously. -
    To prevent jamming of the MLG downlock actuator and a potential 
gear-up landing, accomplish the following: -
    (a) Within 2 months after the effective date of this AD, and 
thereafter at intervals not to exceed 1,250 landings: Perform an 
inspection to verify correct operation of the MLG downlock actuator 
having P/N 201218001, 201218002, 201218003, or 201218004, all serial 
numbers, in accordance with Fokker Service Bulletin SBF100-32-072, 
dated March 30, 1993, and Dowty Aerospace Hydraulics Service 
Bulletin F100-32-505, Revision 1, dated April 16, 1993. -
    (1) If the MLG downlock actuator operates as specified in the 
inspection procedure contained in the Accomplishment Instructions of 
Dowty Aerospace Hydraulics Service Bulletin F100-32-505, Revision 1, 
dated April 16, 1993, prior to further flight, record the 
accomplishment of the inspection on the unit nameplate in accordance 
with the Dowty Aerospace Hydraulics service bulletin. Following 
accomplishment of each subsequent inspection required by this AD, 
record the accomplishment of the inspection in accordance with the 
requirement of this paragraph. -
    (2) If any MLG downlock actuator does not operate as specified 
in the inspection procedure contained in the Accomplishment 
Instructions of Dowty Aerospace Hydraulics Service Bulletin F100-32-
505, Revision 1, dated April 16, 1993, prior to further flight, 
replace the downlock actuator with a serviceable unit, in accordance 
with Chapter 32-32-05 of the Aircraft Maintenance Manual. 
Thereafter, perform repetitive inspections of the replacement unit 
in accordance with paragraph (a) of this AD until the replacement 
required by paragraph (b) of this AD is accomplished. -
    (b) Within 9 months after the effective date of this AD, replace 
any MLG downlock actuator having P/N 201218001, 201218002, 
201218003, or 201218004, any serial number, with an improved unit 
having P/N 201218005, 201218006, 201218007, or 201218008, 
respectively; in accordance with Fokker Service Bulletin SBF100-32-
074, dated July 21, 1993, and Dowty Aerospace Hydraulics Service 
Bulletin F100-32-506, dated June 9, 1993. Accomplishment of this 
replacement constitutes terminating action for the repetitive 
inspections required by paragraph (a) of this AD. -
    (c) As of the effective date of this AD, no person shall install 
on any airplane a MLG downlock actuator having P/N 201218001, 
201218002, 201218003, or 201218004, any serial number. -
    (d) An alternative method of compliance or adjustment of the 
compliance time that provides an acceptable level of safety may be 
used if approved by the Manager, Standardization Branch, ANM-113, 
FAA, Transport Airplane Directorate. Operators shall submit their 
requests through an appropriate FAA Principal Maintenance Inspector, 
who may add comments and then send it to the Manager, 
Standardization Branch, ANM-113. -
    Note 2: Information concerning the existence of approved 
alternative methods of compliance with this AD, if any, may be 
obtained from the Standardization Branch, ANM-113.

     -(e) Special flight permits may be issued in accordance with 
sections 21.197 and 21.199 of the Federal Aviation Regulations (14 
CFR 21.197 and 21.199) to operate the airplane to a location where 
the requirements of this AD can be accomplished.

    Issued in Renton, Washington, on December 5, 1995.
Darrell M. Pederson,
Acting Manager, Transport Airplane Directorate, Aircraft Certification 
Service.
[FR Doc. 95-30075 Filed 12-8-95; 8:45 am]
BILLING CODE 4910-13-U

Complete official Federal Register PDF

FR Doc. 95-30074 Airworthiness Directives; Boeing Model 747 Series Airplanes
[Federal Register Volume 60, Number 237 (Monday, December 11, 1995)]
[Proposed Rules]
[Pages 63465-63468]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-30074]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 39

[Docket No. 94-NM-226-AD]

Airworthiness Directives; Boeing Model 747 Series Airplanes

AGENCY: Federal Aviation Administration, DOT.

ACTION: Supplemental notice of proposed rulemaking; reopening of 
comment period.

-----------------------------------------------------------------------

SUMMARY: This document revises an earlier proposed airworthiness 
directive (AD), applicable to certain Boeing Model 747 series 
airplanes, that would have required modification of the left and right 
inboard elevator servo assemblies and the hydraulic routing of the 
right inboard elevator power control package (PCP). That proposal was 
prompted by a report of an uncommanded right elevator deflection after 
takeoff and reports of elevator/control column bumps during landing 
gear retraction on these airplanes. This action revises the proposed 
rule by revising the applicability of the proposed AD to add additional 
airplanes and additional part numbers of the elevator PCP's, and by 
including additional service information. The actions specified by this 
proposed AD are intended to prevent uncommanded elevator deflection, 
which could result in structural damage and reduced controllability of 
the airplane.

DATES: Comments must be received by January 5, 1996.

ADDRESSES: Submit comments in triplicate to the Federal Aviation 
Administration (FAA), Transport Airplane Directorate, ANM-103, 
Attention: Rules Docket No. 94-NM-226-AD, 1601 Lind Avenue, SW., 
Renton, Washington 98055-4056. Comments may be inspected at this 
location between 9:00 a.m. and 3:00 p.m., Monday through Friday, except 
Federal holidays.
    The service information referenced in the proposed rule may be 
obtained from Boeing Commercial Airplane Group, P.O. Box 3707, Seattle, 
Washington 98124-2207; and Parker Hannifin Corporation, Customer 
Support Operations, 16666 Von Karman Avenue, Irvine, California 92714. 
This information may be examined at the FAA, Transport Airplane 
Directorate, 1601 Lind Avenue, SW., Renton, Washington.

FOR FURTHER INFORMATION CONTACT: Kathi N. Ishimaru, Aerospace Engineer, 

[[Page 63466]]
Systems and Equipment Branch, ANM-130S, FAA, Transport Airplane 
Directorate, Seattle Aircraft Certification Office, 1601 Lind Avenue, 
SW., Renton, Washington 98055-4056; telephone (206) 227-2674; fax (206) 
227-1181.

SUPPLEMENTARY INFORMATION:

Comments Invited

    Interested persons are invited to participate in the making of the 
proposed rule by submitting such written data, views, or arguments as 
they may desire. Communications shall identify the Rules Docket number 
and be submitted in triplicate to the address specified above. All 
communications received on or before the closing date for comments, 
specified above, will be considered before taking action on the 
proposed rule. The proposals contained in this notice may be changed in 
light of the comments received.
    Comments are specifically invited on the overall regulatory, 
economic, environmental, and energy aspects of the proposed rule. All 
comments submitted will be available, both before and after the closing 
date for comments, in the Rules Docket for examination by interested 
persons. A report summarizing each FAA-public contact concerned with 
the substance of this proposal will be filed in the Rules Docket.
    Commenters wishing the FAA to acknowledge receipt of their comments 
submitted in response to this notice must submit a self-addressed, 
stamped postcard on which the following statement is made: ``Comments 
to Docket Number 94-NM-226-AD.'' The postcard will be date stamped and 
returned to the commenter.

Availability of NPRMs

    Any person may obtain a copy of this NPRM by submitting a request 
to the FAA, Transport Airplane Directorate, ANM-103, Attention: Rules 
Docket No. 94-NM-226-AD, 1601 Lind Avenue, SW., Renton, Washington 
98055-4056.

Discussion

    A proposal to amend part 39 of the Federal Aviation Regulations (14 
CFR part 39) to add an airworthiness directive (AD), applicable to 
certain Boeing Model 747 series airplanes, was published as a notice of 
proposed rulemaking (NPRM) in the Federal Register on March 3, 1995 (60 
FR 11942). That NPRM would have required modification of the left and 
right inboard elevator servo assemblies and re-routing the hydraulic 
tubing of the inboard elevator power control package (PCP). That NPRM 
was prompted by a report of an uncommanded right elevator deflection 
after takeoff and reports of elevator/control column bumps during 
landing gear retraction on these airplanes. That condition, if not 
corrected, could result in structural damage and reduced 
controllability of the airplane.
    Due consideration has been given to the comments received in 
response to the NPRM.
    One commenter requests that paragraph (a) of the proposal be 
revised to cite the latest revision of Boeing Alert Service Bulletin 
747-27A2348 when referring to the applicability of that paragraph. This 
commenter states that Revision 1 of the service bulletin includes 
additional airplanes that are also subject to the proposed AD. The FAA 
concurs. The FAA inadvertently cited the original version, dated 
November 17, 1994, of Boeing Alert Service Bulletin 747-27A2348 in 
paragraph (a) of the proposal when referring to the applicable 
airplanes for that paragraph. Since that revision level is incorrect, 
the FAA has removed it and referenced Revision 1, dated January 26, 
1995, in its place in paragraph (a) of the supplemental NPRM.
    One commenter states that Model 747SP series airplanes should be 
subject to paragraph (b) of the proposal. The FAA acknowledges that 
Model 747SP series airplanes were inadvertently omitted from the 
applicability of the proposal. The FAA's intent was that the proposed 
rule be applicable to all Model 747 series airplanes (i.e., Model 747-
100, -200B, -200F, -200C, 747SR, 747SP, 747-100B, -300, -100B SUD, -
400, -400D, and -400F series airplanes). Therefore, the FAA has revised 
the applicability statement of the supplemental NPRM accordingly.
    Since these changes expand the scope of the originally proposed 
rule, the FAA has determined that it is necessary to reopen the comment 
period to provide additional opportunity for public comment.
    In addition, due consideration has been given to the following 
additional comments, which do not change the scope of the originally 
proposed rule, received in response to the NPRM.
    Three commenters request that the compliance time for paragraph (a) 
of the proposal be extended from the proposed 1 year. One of these 
commenters states that such an extension will allow operators to 
accomplish the modification during a regularly scheduled heavy 
maintenance visit. The FAA does not concur. In developing an 
appropriate compliance time for this action, the FAA considered not 
only the degree of urgency associated with addressing the subject 
unsafe condition, but the availability of required parts and the 
practical aspects of installing the required modification within an 
interval of time that parallels normal scheduled maintenance for the 
majority of affected operators. The manufacturer has advised that an 
ample number of required parts should be available for modification of 
the U.S. fleet within the proposed compliance period. Further, the FAA 
has determined that a heavy maintenance visit is not required to 
accomplish the modification.
    Several commenters state that paragraph (b) of the proposed rule is 
unjustified because there have been no reports of actuator jamming on 
the classic Model 747 (747-100, -100B SUD, -200, -300, SR, SP) series 
airplanes after accumulating 87 million flight hours. One of these 
commenters states that the safety concern surrounding the configuration 
of the servo valve assembly of the inboard elevator PCP is theoretical 
at best.
    The FAA does not concur with the commenters' suggestion that 
paragraph (b) of the proposed rule is unjustified. The FAA finds that 
the lack of reported jams and subsequent uncommanded elevator motion 
may be attributed, in part, to the small percentage of airplanes that 
recorded the elevator position while accumulating the 87 million flight 
hours. Paragraph (c)(10) of section 121.343, ``Flight recorders'', of 
the Federal Aviation Regulations (FAR) (14 CFR 121.343) requires that 
operators record either the control column or pitch control surface 
position (i.e., the position of the elevator and the stabilizer) of the 
airplane. Operators may comply with section 121.343 by electing to 
record the control column position, which is not a positive indicator 
of the elevator position. Consequently, incidents of uncommanded 
elevator motion due to actuator jamming may have occurred, but were not 
reported due to the flightcrew's inability to confirm the anomaly. 
Furthermore, the FAA finds that uncommanded elevator motion may occur 
on all Boeing Model 747 series airplanes if the servo valve secondary 
slide moves to the valve's internal stop. Therefore, the FAA finds that 
this AD action is warranted since an unsafe condition exists, which is 
identified as reduced controllability or structural damage to the 
airplane due to asymmetric elevator.
    One commenter states that only Model 747-400 series airplanes have 
experienced actuator jamming with uncommanded elevator deflection. The 
commenter also states that the uncommanded elevator deflection problem 
has been directly attributed to 

[[Page 63467]]
the fact that Model 747-400 series airplanes have the hydraulic system 
number 4 connected to the pressure sensitive side of the servo valve of 
the right inboard elevator PCP. The commenter contends that rerouting 
the hydraulic tubing, as required by paragraph (a) of the proposal 
(which references Boeing Alert Service Bulletin 747-27A2348, Revision 
1, dated January 26, 1995, as the appropriate source of service 
information) will alleviate this problem. The commenter notes that 
Model 747-100, -200, -300, and SP series airplanes, which do not have 
the hydraulic system number 4 connected to the pressure sensitive side 
of the servo valve of the right inboard elevator PCP, have not 
experienced the uncommanded elevator deflection problem.
    From this comment, the FAA infers that the commenter is requesting 
that paragraph (b) of the proposal be deleted. The FAA does not concur. 
The FAA has reviewed the pressure survey data for the number 3 and 
number 4 systems that was submitted by another commenter. The FAA finds 
that pressure fluctuations, which contribute to uncommanded elevator 
deflection, occur in hydraulic system number 3, as well as hydraulic 
system number 4. Therefore, the FAA finds that these data do not 
substantiate the commenter's suggestion that routing the hydraulic 
system number 3 to the sensitive side of the servo valve would preclude 
uncommanded elevator deflection.
    One commenter states that paragraph (b) of the proposal, which is 
applicable to certain Model 747-100, -200, -300, and -400 series 
airplanes, references Parker Service Bulletin 327400-27-171 as the 
appropriate source of service information. The commenter further states 
that this service bulletin is not applicable to certain Model 747-100, 
-100B SUD, -200, -300, SR, and SP series airplanes, since the elevator 
power control packages specified in Parker Service Bulletin 327400-27-
171 are not installed on these airplanes. The FAA's intent was to 
reference a service bulletin that addressed a modification for all 
affected airplane models. The FAA has reviewed and approved Parker 
Service Bulletin 93600-27-173, dated May 17, 1995. The modification 
procedures described in this service bulletin are identical to those 
described in Parker Service Bulletin 327400-27-171. The effectivity 
listing of Parker Service Bulletin 93600-27-173 contains elevator PCP's 
having part numbers
(P/N) 93600-5005 through -5051 inclusive, which are installed on 
certain Model 747-100, -100B SUD, -200, -300, SR, and SP series 
airplanes. The FAA has revised the applicability statement of the 
supplemental NPRM to include these additional P/N's. Additionally, the 
FAA has revised paragraph (b) of the supplemental NPRM to include this 
service bulletin as an additional source of service information.
    One commenter requests that applicability of paragraph (b) of the 
proposal be limited to Model 747-100, -100B SUD, -200, -300, SR, and SP 
series airplanes (``classic'') having cumulative line (C/L) 696 and 
subsequent and that the compliance time be extended from 3 years to 5 
years for those airplanes. The commenter contends that the aft fuselage 
limit load can be exceeded if the residual pressure at the actuator 
pistons exceeds 800 pounds per square inch (psi)/cylinder. The 
commenter further contends that the probability of exceeding this is 
less than 1  x  10e-5. This pressure assumes the valve jammed at the 
most adverse position achievable from pilot inputs. The commenter 
states that the aft fuselage limit load can be exceeded for classic 
airplanes having C/L 001 through 695 inclusive, if the residual 
pressure at the actuator pistons exceeds 1,700 psi/cylinder. The 
commenter also states that the probability of exceeding the structural 
limit is less than 1  x  10e-9.
    The FAA does not concur with the commenter's request to limit the 
applicability and extend the compliance time of paragraph (b) of the 
proposal. Following a review of the commenter's probability analysis, 
the FAA has determined that the commenter has based its analysis on a 
sampling that was much too small from which accurate statistical 
conclusions that would be representative of the fleet could be drawn. 
Further, the FAA finds that the flow rate and differential pressures 
used by this commenter were not substantiated to be the worst case 
scenario. Therefore, based on this flawed probability analysis, no 
change to the supplemental NPRM is warranted.
    One commenter requests that Boeing Model 747-400 series airplanes 
be removed from the applicability of paragraph (b) of the proposal. The 
commenter states that if the valve jams, the resultant asymmetric 
elevator will not result in structural damage on these airplanes. The 
FAA does not concur. The FAA has determined that, although the 
asymmetric elevator may not damage Model 747-400 series airplanes, an 
unsafe condition (i.e., reduced controllability) still exists.
    Two commenters request that the compliance time for paragraph (b) 
of the proposal be extended from the proposed 3 years to 5 years. One 
commenter states that it does not have enough seed units to accomplish 
the modification at their own facilities within the proposed compliance 
time. The FAA does not concur. As stated above, the FAA considered the 
availability of required parts and the practical aspects of installing 
the required modification. In addition, the FAA finds that other 
maintenance facilities are available to operators that are unable to 
accomplish the modification at their own facilities. However, under 
paragraph (c) of the proposed rule, the FAA may approve requests for 
adjustments to the compliance time if data are submitted to 
substantiate that such an adjustment would provide an acceptable level 
of safety.
    One commenter questions the FAA's estimate of the cost of required 
replacement parts for classic Model 747 series airplanes. The commenter 
states that the $3,720 per airplane figure, presented in the cost 
impact information in the preamble to the notice, is too low. This 
commenter suggests that parts costs will be approximately $7,440 per 
airplane (2 elevator power control packages at $3,720 each). After 
considering the data presented by the commenter, the FAA concurs that 
the cost of required parts per airplane is higher than previously 
estimated; the economic impact information, below, has been revised to 
indicate this higher amount.
    There are approximately 672 Model 747-100, -100B SUD, -200, -300, 
SR, and SP series airplanes, and 357 Model 747-400 series airplanes of 
the affected design in the worldwide fleet, a total of 1,029 airplanes.
    The FAA estimates that 114 Model 747-100, -100B SUD, -200, -300, 
SR, and SP series airplanes of U.S. registry would be affected by this 
proposed AD, that it would take approximately 73 work hours per 
airplane to accomplish the proposed actions, and that the average labor 
rate is $60 per work hour. Required parts would cost approximately 
$7,440 per airplane. Based on these figures, the cost impact of the 
proposed AD on U.S. operators is estimated to be $1,347,480, or $11,820 
per airplane.
    The FAA estimates that 65 Model 747-400 series airplanes of U.S. 
registry would be affected by this proposed AD, that it would take 
approximately 111 work hours per airplane to accomplish the proposed 
actions, and that the average labor rate is $60 per work hour. Required 
parts would cost approximately $12,269 per airplane. Based on these 
figures, the cost impact 

[[Page 63468]]
of the proposed AD on U.S. operators is estimated to be $1,230,385, or 
$18,929 per airplane.
    The cost impact figure discussed above is based on assumptions that 
no operator has yet accomplished any of the proposed requirements of 
this AD action, and that no operator would accomplish those actions in 
the future if this AD were not adopted.
    The regulations proposed herein would not have substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government. Therefore, in 
accordance with Executive Order 12612, it is determined that this 
proposal would not have sufficient federalism implications to warrant 
the preparation of a Federalism Assessment.
    For the reasons discussed above, I certify that this proposed 
regulation (1) is not a ``significant regulatory action'' under 
Executive Order 12866; (2) is not a ``significant rule'' under the DOT 
Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); 
and (3) if promulgated, will not have a significant economic impact, 
positive or negative, on a substantial number of small entities under 
the criteria of the Regulatory Flexibility Act. A copy of the draft 
regulatory evaluation prepared for this action is contained in the 
Rules Docket. A copy of it may be obtained by contacting the Rules 
Docket at the location provided under the caption ADDRESSES.

List of Subjects in 14 CFR Part 39

    Air transportation, Aircraft, Aviation safety, Safety.

The Proposed Amendment

    Accordingly, pursuant to the authority delegated to me by the 
Administrator, the Federal Aviation Administration proposes to amend 
part 39 of the Federal Aviation Regulations (14 CFR part 39) as 
follows:

PART 39--AIRWORTHINESS DIRECTIVES

    1. The authority citation for part 39 continues to read as follows:

    Authority: 49 USC 106(g), 40101, 40113, 44701.

Sec. 39.13  [Amended]

    2. Section 39.13 is amended by adding the following new 
airworthiness directive:

Boeing: Docket 94-NM-226-AD.

    Applicability: Model 747 series airplanes, equipped with Parker 
inboard elevator power control packages (PCP) having part numbers 
(P/N) 93600-5005 through -5051 inclusive, or P/N's 327400-1001, -
1003, -1005, and -1007; certificated in any category.

    Note 1: This AD applies to each airplane identified in the 
preceding applicability provision, regardless of whether it has been 
modified, altered, or repaired in the area subject to the 
requirements of this AD. For airplanes that have been modified, 
altered, or repaired so that the performance of the requirements of 
this AD is affected, the owner/operator must use the authority 
provided in paragraph (c) of this AD to request approval from the 
FAA. This approval may address either no action, if the current 
configuration eliminates the unsafe condition; or different actions 
necessary to address the unsafe condition described in this AD. Such 
a request should include an assessment of the effect of the changed 
configuration on the unsafe condition addressed by this AD. In no 
case does the presence of any modification, alteration, or repair 
remove any airplane from the applicability of this AD.

    Compliance: Required as indicated, unless accomplished 
previously.
    To prevent uncommanded elevator deflection, which could result 
in structural damage and reduced controllability of the airplane, 
accomplish the following:
    (a) For Model 747-400 series airplanes, as listed in Boeing 
Alert Service Bulletin 747-27A2348, Revision 1, dated January 26, 
1995: Within 1 year after the effective date of this AD, modify the 
hydraulic tubing of the right inboard elevator PCP, in accordance 
with Boeing Alert Service Bulletin 747-27A2348, Revision 1, dated 
January 26, 1995.
    (b) For all airplanes: Within 3 years after the effective date 
of this AD, modify the left and right servo assemblies of the 
inboard elevator PCP, in accordance with Parker Service Bulletin 
327400-27-171, Revision 1, dated April 14, 1995, or Parker Service 
Bulletin 93600-27-173, dated May 17, 1995, as applicable.
    (c) An alternative method of compliance or adjustment of the 
compliance time that provides an acceptable level of safety may be 
used if approved by the Manager, Seattle Aircraft Certification 
Office (ACO), FAA, Transport Airplane Directorate. Operators shall 
submit their requests through an appropriate FAA Principal 
Maintenance Inspector, who may add comments and then send it to the 
Manager, Seattle ACO.

    Note 2: Information concerning the existence of approved 
alternative methods of compliance with this AD, if any, may be 
obtained from the Seattle ACO.

    (d) Special flight permits may be issued in accordance with 
sections 21.197 and 21.199 of the Federal Aviation Regulations (14 
CFR 21.197 and 21.199) to operate the airplane to a location where 
the requirements of this AD can be accomplished.

    Issued in Renton, Washington, on December 5, 1995.
Darrell M. Pederson,
Acting Manager, Transport Airplane Directorate, Aircraft Certification 
Service.
[FR Doc. 95-30074 Filed 12-8-95; 8:45 am]
BILLING CODE 4910-13-U

Complete official Federal Register PDF

FR Doc. 95-30062 Gas Pipeline Facilities and Services on the Outer Continental ShelfIssues Related to the Commission's Jurisdiction Under the Natural Gas Act and the Outer Continental Shelf Lands Act
[Federal Register Volume 60, Number 237 (Monday, December 11, 1995)]
[Proposed Rules]
[Pages 63476-63478]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-30062]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Chapter I

[Docket No. RM96-5-000]

Gas Pipeline Facilities and Services on the Outer Continental 
Shelf--Issues Related to the Commission's Jurisdiction Under the 
Natural Gas Act and the Outer Continental Shelf Lands Act

November 29, 1995.
AGENCY: Federal Energy Regulatory Commission, DOE.

ACTION: Proposed rule; notice of inquiry.

-----------------------------------------------------------------------

SUMMARY: The Federal Energy Regulatory Commission is initiating an 
inquiry into the Commission's policy respecting the application of its 
jurisdiction under the Natural Gas Act and the Outer Continental Shelf 
Lands Act over natural gas facilities and services on the Outer 
Continental Shelf (OCS). The notice of inquiry is intended to receive 
information respecting the structure and operation of natural gas 
gathering and transportation on the OCS and the effects of the 
Commission's current policy. The notice of inquiry solicits comments on 
the legal and policy issues to be considered, in either maintaining or 
departing from the Commission's present policy, the operational 
considerations pertaining to OCS exploration and development 
activities, and pipeline systems that the Commission should take into 
account in its review of its current policy. The notice of inquiry 
invites all interested persons to participate in the inquiry and to 
submit answers to several specific questions.

DATES: Written comments must be received on or before January 12, 1996; 
an original and 14 copies should be filed.

ADDRESSES: All comments should refer to Docket No. RM96-5-000 and 
should be addressed to: Office of the Secretary, Federal Energy 
Regulatory Commission, 888 First Street, N.E., Washington, DC 20426.

FOR FURTHER INFORMATION CONTACT:
Robert Wolfe, Office of the General Counsel, 888 First Street, NE., 
Washington, DC 20426, (202) 208-2098.

SUPPLEMENTARY INFORMATION: 

I. Introduction

    The Federal Energy Regulatory Commission is initiating an inquiry 
into the Commission's policy respecting the application of its 
jurisdiction under the Natural Gas Act (NGA) and the Outer Continental 
Shelf Lands Act (OCSLA) over natural gas facilities and services on the 
Outer Continental Shelf (OCS).
    The Commission is initiating this Notice of Inquiry (NOI) to 
examine the structure and operation of natural gas gathering and 
transportation on the OCS and the effects of the Commission's current 
policy. The NOI will also seek information on the legal and policy 
issues to be considered, in either maintaining or departing from the 
Commission's present policy, the operational considerations pertaining 
to OCS exploration and development activities, and pipeline systems 
that the Commission should take into account in its review of its 
current policy.

II. Background

    The Commission's current policy respecting the jurisdictional 
status of gas pipelines and services on the OCS presents a number of 
issues concerning the status, scope, and effects of the Commission's 
regulation of gathering and transportation on the OCS. The Commission 
has determined that it should undertake a review of these issues.
    Increases in successful offshore exploration and development 
activities, particularly in the Gulf of Mexico, have heightened the 
significance of these jurisdictional issues. Recently, several 
companies have either filed requests for, or have indicated their 
intent to request, exempt gathering status for offshore pipeline 
systems that each is eager to construct to bring gas onshore from 
significant newly developed deep water reserves in the Gulf. There are 
also pending requests for declaratory orders concerning existing 
certificated offshore systems.
    There are 18 existing interstate pipelines on the Outer Continental 
Shelf (OCS) in the Gulf of Mexico that are presently subject to the 
Commission's regulation under the NGA. There are also numerous 
facilities that are not under NGA jurisdiction. These are principally 
producer-owned facilities. It is noteworthy that an estimated 27% of 
the lower 48 State's total dry gas production comes from the Gulf of 
Mexico OCS.\1\

    \1\ See, Natural Gas Production for the Lower 48 States 1982 
through 1993, Energy Information Agency, March 1993.
---------------------------------------------------------------------------

    The various OCS pipeline system proposals and Sea Robin Pipeline 
Company's request for rehearing of the Commission's June 16, 1995 order 
in Docket No. CP95-168-000 \2\ have prompted reexamination of the 

[[Page 63477]]
Commission's approach to regulating OCS facilities. Given the 
continuing importance of the OCS as a source of natural gas, a 
principal aim of the Commission is to develop regulatory policies that 
do not impede or distort developmental activities on the OCS.

    \2\ 71 FERC para. 61,351 (1995).
---------------------------------------------------------------------------

III. The Statutory Framework

A. The Natural Gas Act (NGA)

    The basic purpose of Congress in enacting the NGA was to ``occupy 
the field'' \3\ of the regulation of natural gas moving in interstate 
commerce by the primary grant of jurisdiction to the Commission over 
those aspects of such regulation over which the states may not act.\4\ 
To that end, Congress meant to create a comprehensive regulatory scheme 
of dual state and federal authority.\5\ Section 1(b) of the NGA 
embodies the primary grant of jurisdiction to the Commission. At the 
same time, section 1(b) exempts from the Act's coverage ``the 
production or gathering of natural gas.'' Thus, section 1(b) first 
grants to the Commission broad plenary authority to regulate the 
business of transporting and of wholesaling natural gas moving in 
interstate commerce. Secondly, section 1(b), by operation of the 
``production and gathering'' exemption, removes from that plenary grant 
of federal jurisdiction those aspects of natural gas regulation which 
are the proper subject of state regulation.\6\

    \3\ See Schneidwind v. ANR Pipeline Co., 485 U.S. 293, 310-311 
(1988).
    \4\ Interstate Natural Gas Co. v. FPC, 331 U.S. 682 (1947).
    \5\ FPC v. Louisiana Power & Light Co., 406 U.S. 621 (1972).
    \6\ See, e.g., Phillips Petroleum Co. v. Wisconsin, 347 U.S. 
672, 682-84 (1954); Interstate Natural Gas Co. v. FPC, supra at 690.
---------------------------------------------------------------------------

B. The Outer Continental Shelf Lands Act (OCSLA)

    Additional sources of regulatory authority over OCS pipeline 
facilities and activities are sections 5(e), and 5(f)(1), of the 
OCSLA.\7\ Generally, sections 5(e) and 5(f)(1) of the OCSLA give the 
Commission certain responsibilities and authorizations to ensure that 
natural gas pipelines on the OCS transport for non-owner shippers in a 
nondiscriminatory manner and operate in accordance with certain 
competitive principles.

    \7\ 43 U.S.C. Sec. 1334(e), (f)(1).
---------------------------------------------------------------------------

    Section 5(e) of the OCSLA requires pipelines to transport natural 
gas produced from the OCS ``without discrimination'' and in such 
``proportionate amounts'' as the Commission, in consultation with the 
Secretary of Energy, determines to be reasonable. In addition, section 
5(f)(1) of the OCSLA requires pipelines transporting gas on or across 
the OCS to adhere to certain ``competitive principles''. These 
``competitive principles'' include a requirement that the pipeline must 
provide ``open and nondiscriminatory access to both owner and nonowner 
shippers.''
    The applicability of the provisions of sections 5(e) and 5(f)(1) is 
not restricted to interstate pipelines that are subject to the 
Commission's NGA jurisdiction. The only pipelines that may be exempt 
from the Commission's authority under the OCSLA are certain ``feeder 
lines,'' which are defined in section 5(f)(2) of the OCSLA \8\ as a 
pipeline that feeds into a facility where oil and gas are ``first 
collected'' or a facility where oil and gas are ``first separated, 
dehydrated, or otherwise processed.'' These ``feeder lines'' may only 
be exempted from the requirements of the OCSLA by order of the 
Commission.

    \8\ 43 U.S.C. Sec. 1334(f)(2).
---------------------------------------------------------------------------

IV. The Commission's Current Policy

    In 1989, in response to the court's decision in EP Operating v. 
FERC (EP Operating),\9\ which reversed a Commission determination that 
a 51-mile long, 16-inch diameter OCS pipeline was a jurisdictional 
transportation facility, the Commission set upon a review of its 
``gathering policy.'' The purpose of that review was to assess the 
impact of EP Operating as well as the continuing viability and 
relevance of the ``primary function'' test, which at that time was the 
Commission's preferred methodology for determining the jurisdictional 
status of gas pipeline facilities.\10\ That review culminated in the 
Commission's articulation and application of the ``modified primary 
function'' test in Amerada Hess, et. al. (Amerada Hess).\11\

    \9\ 876 F. 2d 46 (Fifth Cir. 1989).
    \10\ The ``primary function'' test was articulated in Farmland 
Industries, Inc. (Farmland), 23 FERC para. 61,063 (1983). In 
Farmland the Commission enumerated several physical and geographic 
criteria to be included in the analysis for determining whether the 
``primary function'' of a facility is the transportation or the 
gathering of natural gas. These factors are: (1) the length and 
diameter of the line, (2) the extension of the facility beyond the 
central point in the field, (3) the line's geographic configuration, 
(4) the location of compressors and processing plants, (5) the 
location of wells along all or part of the facility, and (6) the 
operating pressure of the line. The ``primary function'' test has 
been found by the Commission to be applicable to both onshore and 
offshore facilities. The criteria set out in Farmland were not 
intended to be all inclusive. The Commission has also considered 
nonphysical criteria such as the intended purpose, location, and 
operation of the facility, the general business activity of the 
owner of the facility, and whether the jurisdictional determination 
is consistent with the objectives of the NGA and the Natural Gas 
Policy Act of 1978 (NGPA).
    \11\ 52 FERC para. 61,268 (1990).
---------------------------------------------------------------------------

    As set out in Amerada Hess, the ``modified primary function'' test 
consists of the continued application of the ``primary function'' test, 
with a modification in its application in accord with EP. Specifically, 
when applying the Farmland criteria, the Commission stated that it 
would consider, especially for offshore facilities, the changing 
technical and geographic nature of exploration and production. The 
order explained that because of recent advances in engineering and 
available technology, offshore drilling operations were moving further 
offshore and further from existing interstate pipeline 
interconnections. Accordingly, the order explained that a relatively 
long pipeline on the OCS may be consistent with a primary function of 
gathering or production whereas an onshore pipeline of similar length 
would not. Therefore, in applying the ``modified primary function'' 
test to OCS pipeline facilities the Commission stated that it would 
apply, in effect, a sliding scale that would allow for the use of 
gathering pipelines of increasing lengths and diameters in correlation 
to the distance from shore and the water depth of the offshore 
production area.

V. Specific Questions for Response by All Commenters

    The Commission has compiled a list of questions, set forth below, 
that will be helpful in assessing the Commission's current policy and 
possible policy alternatives. This list is not meant to be all 
inclusive. Parties to this proceeding are invited to present 
alternative solutions not specifically referenced in this notice.
    A. General.
    1. It is necessary or appropriate to continue distinguishing 
between gathering and transportation on the OCS, or would it be better 
either to declare that under the NGA all such facilities are exempt 
gathering facilities or to declare that under the NGA all such 
facilities are jurisdictional transportation facilities?
    2. Does the Commission need to continue to regulate offshore 
transportation under the NGA, or is reliance on the OCSLA sufficient to 
protect the public interest?
    3. Is there a ``regulatory gap'' pertaining to rates or any other 
matter respecting gas pipeline facilities or services on the OCS?
    4. What is the extent of the Commission's authority under the 

[[Page 63478]]
    OCSLA respecting rates for gas pipeline services?
    5. Does the OCSLA provide sufficient remedial authority for the 
Commission to ensure nondiscriminatory access by prohibiting 
discriminatory or excessive rates?
    6. Does the OCSLA provide the Commission with sufficient authority 
to protect the interests of historical customers of existing offshore 
interstate pipelines if these pipelines were declared to be gathering 
facilities?
    7. Is it feasible, as a matter of law and policy, to adopt a light-
handed regulatory approach that relies on complaints about 
discriminatory access or rates?
    8. If such an approach is adopted, is there a need to distinguish 
between new and existing pipelines to determine how much regulation is 
necessary? What would be the legal and policy basis for any such 
distinction?
    9. What are the implications of a change in OCS gathering policy on 
existing OCS interstate pipelines that may wish to retain their 
jurisdictional status or on existing, interstate pipeline-owned, OCS 
transmission facilities that wish to retain a transmission 
classification for those facilities?
    10. How much, if any, OCS gas is processed at locations other than 
onshore or in shallow waters?
    B. Should the Commission issue a rule under the NGA declaring all 
pipeline facilities on the OCS to be nonjurisdicational gathering 
facilities and simultaneously issue a rule under the OCSLA imposing 
terms and conditions on OCS facilities to protect existing shippers on 
existing OCS interstate pipelines or on existing OCS transmission 
facilities?
    1. What would be the practical effect of these rules?
    2. Does the Commission have sufficient authority under the OCSLA to 
prohibit, eliminate or alter rates that are clearly discriminatory or 
rates that are so high that they would have the effect of denying 
access to shippers?
    3. What would be the impact of the Commission's ceasing to regulate 
any offshore pipeline rates under the ``just and reasonable'' standard 
of sections 4 and 5 of the NGA?
    4. Is here a legal basis under the OCSLA for the Commission to 
regulate generally the level of rates for services performed by OCS 
pipelines?
    5. What conditions could the Commission require under the NGA and/
or the OCSLA to protect historical customers of currently regulated OCS 
pipelines if their facilities are declared to be exempt gathering 
facilities?
    6. Under this option, should the Commission consider allowing all 
rate regulation to end at any point that a pipeline and a (non-
affiliated) shipper agree? (This option would be similar to recent 
proposals for ``recourse rates''.\12\)

    \12\ Under ``recourse rates'', pipelines would be free to offer 
negotiated rates. Customers could choose either negotiated rates or 
they could choose the pipeline's on-file, cost-of-service rates.
---------------------------------------------------------------------------

    C. Should the Commission issue a rule under the NGA declaring all 
pipeline facilities on the OCS to be jurisdictional transportation 
facilities, but only regulate transportation rates for historical 
customers on existing interstate pipelines and for non-owner shippers 
on new facilities?
    1. What would be the practical effect of such a rule?
    2. Does a ``regulatory gap'' exist on the OCS that would support 
the issuance of such a rule?
    3. What legal support is there for the Commission's regulating only 
those pipelines that transport non-owner shipper gas?
    4. Is there any need to regulate the rates charged new customers 
that have not relied upon or have no expectation of NGA regulation?
    5. Would the provisions of the OSCLA provide sufficient protection 
from undue discrimination to both historical and new customers of OCS 
pipelines?
    6. Under this option, should the Commission consider allowing all 
rate regulation to end at any point that a pipeline and a (non-
affiliated) shipper agree? (This option would be similar to recent 
proposals for ``recourse rates''.\13\)

    \13\ See n. 13 supra.
---------------------------------------------------------------------------

    D. Should the Commission continue the application of the ``modified 
primary function'' test on a case-by-case basis? What would be the 
effects of this approach?

VI. Procedure for Comments

    The Commission invites interested persons to submit comments, data, 
views, and other information concerning the matters set out in this 
notice.
    To facilitate the Commission's review of the comments, commenters 
are requested to provide an executive summary of their position on the 
issues raised in the NOI. Commenters are requested to identify the 
specific question posed by the NOI that their discussion addresses and 
to use appropriate headings. Additionally, commenters should double 
space their comments.
    The original and 14 copies of such comments must be received by the 
Commission before 5:00 p.m., Friday, January 12, 1996. Comments should 
be submitted to the Office of the Secretary, Federal Energy Regulatory 
Commission, 888 First Street, NE., Washington DC 20426 and should refer 
to Docket No. RM96-5-000.
    In addition, commenters are asked to submit their written comments 
and executive summaries on a 3 1/2-inch diskette formatted for MS-DOS 
based computers. In light of our ability to translate MS-DOS based 
materials, the text need only be submitted in the format and version 
that it was generated (i.e. MS WORD, WordPerfect, ASC III, etc.) For 
Macintosh users, it would be helpful to save the documents in word 
processor format and then write them to files on a diskette formatted 
for MS-DOS machines.

    By direction of the Commission.
Lois D. Cashell,
Secretary.
[FR Doc. 95-30062 Filed 12-8-95; 8:45 am]
BILLING CODE 6717-01-M

Complete official Federal Register PDF

FR Doc. 95-30053 Executive and Management Development
[Federal Register Volume 60, Number 237 (Monday, December 11, 1995)]
[Proposed Rules]
[Pages 63454-63457]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-30053]

========================================================================
Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

========================================================================

Federal Register / Vol. 60, No. 237 / Monday, December 11, 1995 / 
Proposed Rules

[[Page 63454]]

OFFICE OF PERSONNEL MANAGEMENT

5 CFR Parts 317 and 412

RIN 3206-AF96

Executive and Management Development

AGENCY: Office of Personnel Management.

ACTION: Proposed regulations.

-----------------------------------------------------------------------

SUMMARY: The Office of Personnel Management (OPM) is proposing to amend 
part 317 of its regulations governing initial career appointment to the 
Senior Executive Service (SES) and Qualifications Review Board 
certification. The proposed changes to part 317 would eliminate the 3-
year limitation on the validity of Qualifications Review Board (QRB) 
certification for appointment to the Senior Executive Service and 
simplify the Executive Resources Board (ERB) certification of 
candidates. The Office is also proposing to amend part 412 of its 
regulations governing executive and management development. The 
coverage will be expanded to include supervisory development. The 
revised regulations present broad program criteria on the systematic 
development of executives, managers, supervisors, and candidates. They 
also establish minimum requirements for formal Senior Executive Service 
candidate development programs. The changes proposed promote training 
and development activities which foster a corporate perspective of 
Government.

DATES: Written comments will be considered if received no later than 
February 9, 1996.

ADDRESSES: Send or deliver written comments to the Ms. K. Joyce 
Edwards, Assistant Director, Office of Executive Resources, Office of 
Personnel Management, Room 6484, 1900 E Street NW., Washington, DC 
20415.

FOR FURTHER INFORMATION CONTACT:
Constance Maravell, 202-606-1832.

SUPPLEMENTARY INFORMATION: The Office of Personnel Management (OPM) 
issued proposed regulations on executive and management development on 
March 2, 1993 (58 FR 11988). We received comments from 23 agencies, 9 
individuals and the Federal Executive Institute Alumni Association. 
Most comments expressed support for including the development of 
supervisors along with that of managers and executives. The proposed 
regulations were withdrawn on February 11, 1994 (59 FR 6593) to see 
which objectives of the regulations could be achieved through 
alternative means and so they could be reviewed in the context of the 
sunsetting of the Federal Personnel Manual in December 1993.

General

    In keeping with the spirit of Executive Order 12861 on 
``Elimination on One-Half of Executive Branch Internal Regulations,'' 
we re-examined the proposed regulations. This has resulted in the 
elimination of regulations on needs assessments for the management 
profession and for individuals and formal candidate development 
programs for supervisors and managers. Proposed requirements in these 
areas have been removed, not because we have found such activities to 
be ineffective, but because agencies should be free to engage in them 
without being required to do so. Well selected developmental 
experiences enhance the competence and broaden the perspective of the 
managerial workforce. We encourage agencies to undertake these 
activities on a systematic basis.
    We are also deleting regulations that are covered by statute which 
require no further clarification such as OPM's responsibility for the 
review of agency programs. We would like to draw agency attention to 
two provisions of statute which will not be regulated further. The 
first is the use of sabbaticals in general, 5 U.S.C. 3396(c). The 
second is, 5 U.S.C. 3396(d), authorizing sabbaticals, training, or 
details or other temporary assignments in other agencies, State or 
local governments, or the private sector for the continuing training 
and development of incumbent career SES members
    The earlier proposed regulations also provided for the reactivation 
of expired QRB certifications for graduates of formal SES candidate 
development programs (CDP). Reactivation was accomplished by a 
variation to the regulations in December 1993, which extended 
certifications until December 31, 1996. The current proposed 
regulations in part 317 would remove the present 3-year time limit on 
all QRB certifications. The removal would apply to certifications 
issued before the regulations as well as those issued afterwards.
    In response to a recommendation from the Executive Resources 
Management Group work group on staffing, we propose to simplify 
procedural requirements for the ERB certification of SES candidates. 
Specifically, when there are less than 10 eligible candidates for an 
SES position, an ERB would be permitted to refer all candidates to the 
appointing authority without further ranking. The statutory requirement 
that ERB's make written recommendations must be observed regardless of 
the number of candidates.
    What remains in the regulations is a clear set of criteria which 
promote a corporate perspective of governance through the systematic 
development of candidates for the SES and the continuing development of 
supervisors, managers, and executives. Public managers with a corporate 
perspective respect and embrace the dynamics of American democracy; 
they recognize their fundamental responsibility for balancing change 
and continuity. Their values encompass a respect for both diversity and 
merit. Their commitment to Government service transcends their agency 
mission and individual profession. Executives with a corporate 
perspective will play a critical role in the reinvention of Government.
    These regulations recognize and give meaning to the findings of 
OPM's 1992 Leadership Effectiveness Study. The 10,000 managers who 
responded identified 22 generic competencies essential to successful 
performance as leaders in any government position. The study found that 
effective supervisors, managers and executives have a shared base of 
competencies. As individuals move from supervisors to managers and 
executives they must acquire additional enhanced competencies. For this 
reason, the preparation of supervisors and managers is considered 
integral to the development of candidates for the SES.

[[Page 63455]]

    The criteria in section 412.103 are designed to enable agencies to 
run strong supervisory, managerial and executive development programs 
to provide a corporate perspective in the context of their succession 
planning systems. This assures that there are enough prepared and 
qualified employees as candidates for SES positions. This section 
requires agencies to provide initial and continuing training and 
development to their management corps. Formal SES candidate development 
programs are one option, but not the only one for assuring that 
agencies have enough candidates for the SES.

SES Candidate Development Programs (CDP)

    If an agency desires graduates of its SES candidate development 
program to receive Qualifications Review Board certification, the 
program must meet the minimum standards in Sec. 412.104. OPM will 
review all programs prior to announcement for the first time under 
these regulations regardless of whether they have been approved under 
the previous regulations. After the initial announcement, OPM will only 
review programs if there is a significant change in the program.
    The standards meet statutory requirements and support the National 
Performance Review recommendation for promoting a corporate culture in 
the SES. During the time the candidates are in the program, they must 
attend at least 80 hours of formal interagency training programs; have 
developmental assignments totalling 4 months; and have a mentor. If an 
agency wishes to deviate from these minimum requirements, it must 
obtain an exception from OPM before the candidate starts the program.
    OPM believes that even individuals who are well qualified for an 
SES appointment can benefit from this minimum training and development. 
It is not our intention to grant exceptions to the minimum requirements 
based on the fact that the candidate is already well qualified to enter 
the SES. OPM does not support the use of the formal SES candidate 
development program as a mechanism for ``precertifying'' fully 
qualified individuals for the SES.
    These standards differ from the existing regulations in the 
following ways. Agencies can choose, under the standards, the formal 
interagency executive level training experience rather than be limited 
to OPM approved programs. An agency may substitute a work experience, 
longer than 80 hours, that involves multiple agencies for formal 
training; but this substitution does not eliminate the requirement for 
a developmental assignment. The length of the developmental work 
assignments has been specified to eliminate confusion about what cases 
will be presented to the QRB.
    One way to promote a corporate perspective in the SES is to 
encourage the selection of qualified applicants from outside the 
agency. The law, in 5 U.S.C. 3393(a), supports this goal by requiring 
at least governmentwide competition for initial appointment to the SES. 
While the proposed regulations on recruitment for SES CDP are 
consistent with this statutory requirement, they provide flexibility 
for those agencies which have demonstrated support for an SES corporate 
perspective.
    Specifically, the exception from Governmentwide competition in the 
current regulations for agencies with 150 or fewer allocated SES 
positions for their candidate development programs has been changed in 
two ways. First, the exception is available to agencies which can show 
OPM that in the 5 years prior to announcing a CDP, at least 15% of the 
career SES members appointed come from outside the agency. An agency 
may be able to conduct one offering of a CDP under this exception but 
not another because the agency does not meet the criterion at that 
time. Second, when there has only been agencywide competition for the 
CDP, the graduates of these programs are required to compete 
Governmentwide for entry to the SES.
    The regulations on ``status'' and ``non-status'' SES candidate 
development programs currently in subpart E have been rewritten in a 
new subpart B to eliminate redundancy. There is no change in the nature 
of the programs.

Regulatory Flexibility Act

    I certify that these regulations will not have significant economic 
impact on a substantial number of small entities because they affect 
only Federal employees and agencies.

List of Subjects in 5 CFR Parts 317 and 412

    Government employees.

    Office of Personnel Management.
James B. King,
Director.

    Accordingly, the Office of Personnel Management proposes to amend 5 
CFR parts 317 and 412 as follows:

PART 317--EMPLOYMENT IN THE SENIOR EXECUTIVE SERVICE

    1. The authority citation for part 317 continues to read as 
follows:

    Authority: 5 U.S.C. 3392, 3393, 3393a, 3395, 3397, 3593, and 
3595.

    2. In section 317.501, paragraph (c)(5) is revised to read as 
follows:

Sec. 317.501  Recruitment and selection for initial SES career 
appointment.

* * * * *
    (c) * * *
    (5) Provide that the ERB make written recommendations to the 
appointing authority on the eligible candidates and identify the best 
qualified candidates. If there are less than 10 eligible candidates, 
the ERB may refer to the appointing authority all candidates as ``best 
qualified.'' Rating sheets may be used to satisfy the written 
recommendations requirement for individual candidates, but the ERB must 
certify in writing the list of candidates to the appointing authority.
* * * * *
    3. In section 317.502, paragraph (c) is revised to read as follows:

Sec. 317.502  Qualifications Review Board certification.

* * * * *
    (c) Qualifications Review Board certification of executive 
qualifications must be based on demonstrated executive experience; 
successful completion of an OPM-approved candidate development program; 
or possession of special or unique qualities that indicate a likelihood 
of executive success. Any existing time limit on a previously approved 
certification is removed.
* * * * *

PART 412--EXECUTIVE, MANAGEMENT, AND SUPERVISORY DEVELOPMENT

    3. Part 412 is revised to read as follows:

PART 412--EXECUTIVE, MANAGEMENT, AND SUPERVISORY DEVELOPMENT

Subpart A--General Provisions

Sec.
412.101  Coverage.
412.102  Purpose.
412.103  Criteria for programs for the systematic training and 
development of executives, managers, supervisors, and candidates.
412.104  Formal candidate development programs for Senior Executive 
Service positions.

Subpart B--Senior Executive Service Status and Nonstatus Candidate 
Development Programs

412.201  Purpose.
412.202  ``Status'' programs.
412.203  ``Non-status'' programs.

[[Page 63456]]

    Authority: 5 U.S.C. 3397, 4101, et seq.

Subpart A--General Provisions

Sec. 412.101  Coverage.

    This subpart applies to all incumbents of or candidates for 
supervisory, managerial, and executive positions in the General 
Schedule, the Senior Executive Service (SES), or equivalent pay systems 
who are also covered by part 410 of this chapter.

Sec. 412.102  Purpose.

    (a) This subpart implements for supervisors, managers, and 
executives the provisions of chapter 41 of title 5 of the United States 
Code related to training and section 3396 of title 5 related to the 
criteria for programs of systematic development of candidates for the 
SES and the continuing development of SES members.
    (b) The subpart identifies a continuum of preparation starting with 
supervisory positions and proceeding through management and executive 
positions governmentwide. For this reason, the subpart establishes a 
comprehensive system that is intended to:
    (1) Provide the competencies needed by supervisors, managers, and 
executives to perform their current functions at the mastery level of 
proficiency; and
    (2) Provide learning through development and training in the 
context of succession planning and corporate perspective to prepare 
individuals for advancement, thus supplying the agency and the 
government with an adequate number of well prepared and qualified 
candidates to fill supervisory, managerial, and executive positions 
governmentwide.

Sec. 412.103   Criteria for programs for the systematic training and 
development of executives, managers, supervisors, and candidates.

    Each agency must provide for the initial and continuing development 
of individuals in executive, managerial, and supervisory positions, and 
candidates for those positions. The agency must issue a written policy 
to assure that their development programs:
    (a) Are designed as part of the agency's strategic plan and foster 
a corporate perspective.
    (b) Make assignments to training and development consistent with 
the merit system principles set forth in 5 U.S.C. 2301(b) (1) and (2).
    (c) Provide for:
    (1) Initial training as an individual makes critical career 
transitions to become a new supervisor, a new manager, or a new 
executive consistent with the results of needs assessments;
    (2) Continuing learning experiences, both short- and long-term, 
throughout an individual's career in order for the individual to 
achieve the mastery level of proficiency for his or her current 
management level and position; and
    (3) Systematic development of candidates for advancement to a 
higher management level. Formal candidate development programs leading 
to noncompetitive placement eligibility represent one, but not the 
only, type of systematic development.

Sec. 412.104   Formal candidate development programs for Senior 
Executive Service positions.

    Formal SES candidate development programs permit the certification 
of the executive qualifications of graduates by a Qualifications Review 
Board under the criterion of 5 U.S.C. 3393(c)(2)(B) and selection for 
the SES without further competition. The agency must have a written 
policy describing how the program will operate. The agency must obtain 
OPM approval of the program before it is conducted for the first time 
under these regulations and whenever there are substantive changes to 
the program. Agency programs must meet the following criteria.
    (a) Recruitment. (1) Recruitment for the program is from all groups 
of qualified individuals within the civil service, or all groups of 
qualified individuals whether or not within the civil service.
    (2) Agencies may request an exception to the provision in paragraph 
(a)(1) of this section if they can show that during the 5-year period 
prior to the announcement of a program they have made at least 15% of 
their career SES appointments from sources outside the agency. 
Notwithstanding this exception recruitment must be competitive and be 
announced at least agencywide. Graduates of these programs who have 
been certified by a QRB must then compete Governmentwide for entry to 
the SES, but do not have to obtain a second QRB certification before 
appointment.
    (b) In recruiting, the agency, consistent with the merit system 
principles in 5 U.S.C. 2301(b) (1) and (2), takes into consideration 
the goal of achieving a diversified workforce.
    (c) All candidates are selected through SES merit staffing 
procedures. The number selected shall be consistent with the number of 
expected vacancies.
    (d) Each candidate has an SES development plan covering the period 
of the program. The plan is prepared from a competency-based needs 
determination. It is approved by the Executive Resources Board.
    (e) The minimum program requirements, unless an exception is 
obtained in advance of the beginning of the candidate's program, for an 
SES development plan are as follows:
    (1) There is a formal training experience that addresses the 
executive core qualifications and their application to SES positions 
governmentwide. The training experience must include interaction with a 
wide mix of Federal employees outside the candidate's department or 
agency to foster a corporate perspective but may include managers from 
the private sector and state and local governments. The nature and 
scope of the training must have Governmentwide or multi-agency 
applicability. If formal interagency training is used to meet this 
requirement, it must total at least 80 hours. If an interagency work 
experience is used, it must be of significantly longer duration than 80 
hours.
    (2) There are developmental assignments that total at least 4 
months of full-time service outside the candidate's position of record. 
The purpose of the assignments is to broaden the candidate's experience 
and/or increase knowledge of the overall functioning of the agency so 
that the candidate is prepared for a range of agency positions.
    (3) There is a member of the Senior Executive Service as a mentor.
    (f) Each candidate's performance in the program is evaluated 
periodically, and there is a written policy for discontinuing a 
candidate's participation in the program. A candidate can be 
discontinued or may withdraw from the program without prejudice to his 
or her ability to apply directly for SES positions.
    (g) Each candidate has a documented starting and finishing date in 
the program.

Subpart B--Senior Executive Service Status and Nonstatus Candidate 
Development Programs

Sec. 412.201  Purpose.

    Section 3393 of title 5, United States Code, requires that career 
appointees to the SES be recruited either from all groups of qualified 
individuals within the civil service, or from all groups of qualified 
individuals whether or not within the civil service. This subpart sets 
forth regulations establishing two types of SES candidate development 
programs, ``status'' and ``nonstatus.''

[[Page 63457]]

Sec. 412.202  ``Status'' programs.

    Only employees serving under career appointments, or under career-
type appointments as defined in 5 CFR 317.304(a)(2), may participate in 
``status'' candidate development programs.

Sec. 412.203  ``Nonstatus'' programs.

    (a) Eligibility. Candidates are from outside Government and/or from 
among employees serving on other than career or career-type 
appointments within the civil service.
    (b) Requirements. (1) Candidates must be appointed utilizing the 
Schedule B authority authorized by 5 CFR 213.3202(j). The appointment 
may not exceed or be extended beyond 3 years.
    (2) Assignments must be to a full-time position created for 
developmental purposes connected with the SES candidate development 
program. Candidates serving under Schedule B appointment may not be 
used to fill an agency's regular positions on a continuing basis.
    (3) Schedule B appointments must be made in the same manner as 
merit staffing requirements prescribed for the SES, except that each 
agency shall follow the principle of veteran preference as far as 
administratively feasible. Positions filled through this authority are 
excluded under 5 CFR 302.101(c)(6) from the appointment procedures of 
part 302.

[FR Doc. 95-30053 Filed 12-8-95; 8:45 am]
BILLING CODE 6325-01-M

Complete official Federal Register PDF

FR Doc. 95-30051 Calling Number Identification ServiceCaller ID
[Federal Register Volume 60, Number 237 (Monday, December 11, 1995)]
[Proposed Rules]
[Pages 63491-63492]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-30051]

=======================================================================
-----------------------------------------------------------------------

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 64

[CC Docket No. 91-281; FCC 95-480]

Calling Number Identification Service--Caller ID

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: On November 30, 1995, the Commission adopted a Fourth Notice 
of Proposed Rulemaking (Fourth NPRM) addressing numerous petitions for 
waiver of its Caller ID rules. The Fourth NPRM is intended to address 
issues associated with requiring carriers to deploy blocking 
capabilities. It seeks comment on whether local exchange carriers 
(LECs) must pass calling party number (CPN) if they use particular 
switches that do not have CLASS software installed.

DATES: Comments must be filed on or before December 27, 1995, and reply 
comments must be filed on or before January 10, 1996.

ADDRESSES: Federal Communications Commission, 1919 M Street, N.W., 
Washington, D.C. 20554.

[[Page 63492]]

FOR FURTHER INFORMATION CONTACT:
Michael Specht, Senior Engineer, Network Services Division, Common 
Carrier Bureau, (202) 418-2378 or Elizabeth Nightingale, Attorney, 
Network Services Division, Common Carrier Bureau, (202) 418-2352.

SUPPLEMENTARY INFORMATION: This summarizes the Commission's Fourth 
Notice of Proposed Rulemaking in the matter of Calling Number 
Identification Service--Caller ID, (CC Docket No. 91-281, FCC 95-480, 
adopted November 30, 1995 and released December 1, 1995). The file is 
available for inspection and copying during the weekday hours of 9 a.m. 
to 4:30 p.m. in the Commission's Reference Center, room 239, 1919 M 
St., N.W., Washington, D.C., or copies may be purchased from the 
Commission's duplicating contractor, ITS, Inc. 2100 M St., N.W., Suite 
140, Washington, D.C. 20037, phone (202) 857-3800.

Analysis of Proceeding

    On May 5, 1995, the Commission affirmed its finding that interstate 
delivery of a calling party's number is in the public interest. The 
Commission noted that widespread availability of CPN promotes new 
services, consistent with Commission responsibilities under Section 1 
and 7 of the Communications Act and benefits the public by enabling 
consumers to conduct telephone transactions more efficiently. The 
Commission also continued to recognize the importance of balancing the 
benefits of such widespread availability with the privacy interests of 
calling and called parties and the need for reasonable consumer 
education. The Commission affirmed rules that require carriers with 
Signalling System 7 (SS7) call set up capability to transport CPN to 
interconnecting carriers without additional charge. The Commission also 
affirmed rules that require originating carriers to recognize *67 as 
the first three digits of a call as a caller's request for privacy. The 
Commission permitted per line blocking where state policy allows and 
established rules that carriers providing per line blocking services 
recognize *82 as a caller's request that privacy not be provided. 
Additionally, the Commission affirmed rules that require carriers to 
notify customers with respect to *67 and *82 capabilities.
    Over the past several months, the Commission has received numerous 
requests from petitioners seeking waivers, stays or declaratory rulings 
of the Commission's caller ID rules. On October 30, 1995, the 
Commission released an Order that addressed some of these requests for 
relief. See Rules and Policies Regarding Calling Numbering 
Identification Service--Caller ID, Order, CC Docket No. 91-281, FCC 95-
446, released October 30, 1995. On November 30, 1995, the Common 
Carrier Bureau, pursuant to delegated authority, adopted an Order that 
addressed the remaining petitions for relief. See Rules and Policies 
Regarding Calling Number Identification Service--Caller ID, Order, CC 
Docket No. 91-281, DA 95-2415 (Com. Car. Bur. adopted November 30, 
1995).
    The Fourth NPRM tentatively concludes that LEC switches not 
equipped with CLASS software should not be required to pass CPN and 
that they should be permitted to pass it only if they can provide the 
blocking and unblocking capabilities specified in Section 64.1601(b) of 
the Commission's rules. The Fourth NPRM seeks comment on its tentative 
conclusions, and specifically on the economic feasibility of adding 
blocking and unblocking capabilities to switches already able to pass 
CPN.

Ordering Clauses

    It is further ordered, pursuant to Sections 1, 4(i) and (j), 201-
205, 218 of the Communications Act as amended, 47 U.S.C. 151, 154(i), 
154(j), 201-205, and 218, that notice is hereby given of the proposed 
changes in policies regarding the application of caller ID rules to 
switches without CLASS software, and comment is invited on this 
proposal.

List of Subjects in 47 CFR Part 64

    Calling party telephone number, Communications common carriers, 
Telephone.

Federal Communications Commission.
William F. Caton,
Acting Secretary.
[FR Doc. 95-30051 Filed 12-8-95; 8:45 am]
BILLING CODE 6712-01-M

Complete official Federal Register PDF

FR Doc. 95-30046 Foreign Commodity Options
[Federal Register Volume 60, Number 237 (Monday, December 11, 1995)]
[Proposed Rules]
[Pages 63472-63476]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-30046]

=======================================================================
-----------------------------------------------------------------------

COMMODITY FUTURES TRADING COMMISSION

17 CFR Part 30

Foreign Commodity Options

AGENCY: Commodity Futures Trading Commission.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The Commodity Futures Trading Commission (Commission or CFTC) 
is proposing to amend rule 30.3 to eliminate the requirement that the 
CFTC authorize the offer and sale of a particular foreign commodity 
option before it can be offered or sold in the United States. This 
proposal reflects the Commission's assessment that the continued 
treatment of foreign commodity options differently from foreign futures 
(which do not require a specific authorization order) should be 
reevaluated.

DATES: Comments must be submitted on or before January 10, 1996.

ADDRESSES: Comments should be sent to the Secretariat, Commodity 
Futures Trading Commission, Three Lafayette Centre, 1155 21st Street, 
N.W., Washington, D.C. 20581. Reference should be made to ``Rule 30.3--
Foreign commodity options.''

FOR FURTHER INFORMATION CONTACT: Jane C. Kang, Esq., or Robert H. 
Rosenfeld, Esq., Division of Trading and Markets, Commodity Futures 
Trading Commission, Three Lafayette Centre, 1155 21st Street, N.W., 
Washington, D.C. 20581; telephone (202) 418-5435.

SUPPLEMENTARY INFORMATION:

Background

    Commission rule 30.3(a) of the Commission's Part 30 rules governing 
the offer and sale of foreign futures and option transactions makes it 
unlawful for any person to engage in the domestic offer or sale of any 
foreign commodity option contract until the Commission, by order, 
authorizes the foreign option to be offered or sold in the United 
States.1 A Commission order is not required with respect to 
foreign futures. However, an option on a foreign stock-index futures 
contract will not be approved unless, among other things, the 
Commission's Office of the General Counsel has issued a no-action 
letter authorizing the offer and sale in the United States of the 
underlying foreign stock-index futures contract. In addition, debt 
obligations of a foreign country must be designated as an exempted 
security by the SEC under its rule 3a12-8, 17 CFR 240.3a12-8, before a 
futures contract based on such debt obligation (or an option on such a 
futures contract) may be offered or sold to a U.S. person.2

    \1\ The Commission previously made clear that subject to certain 
conditions applicable to transactions involving stock indexes and 
foreign government debt, a rule 30.3 order would not be necessary 
for transactions effected by U.S. futures commission merchants (FCM) 
on behalf of foreign customers. See 57 FR 36369 (August 13, 1992).
    \2\ Consistent with section 2(a)(1)(B) of the CEA, this proposed 
rulemaking would not be applicable to commodity options based on or 
involving a foreign futures contract based on a foreign stock index 
unless the foreign stock index futures contract has been approved 
for offer or sale in the United States through the issuance of a no-
action letter by the Commission's Office of the General Counsel. 
Further, this proposed rulemaking would not be applicable to 
commodity options based on a foreign government debt which has not 
been designated as an exempted security under SEC rule 3a12-8.
---------------------------------------------------------------------------

    The Commission is proposing to eliminate the specific authorization 
requirement of rule 30.3 thereby permitting, subject to existing 
prohibitions with respect to stock index futures and options and 
foreign government debt futures and options products, the offer and 
sale of foreign commodity options in the same manner as currently 
applies to the offer and sale of foreign futures. The Commission would, 
however, continue to monitor the situation and take appropriate action 
should it determine that U.S. investors, or the Commission, are not 
able to obtain appropriate information related to the option 
transactions of a specific exchange or are otherwise being adversely 
affected by the rule change. Moreover, the proposal would not affect 
the existing regulatory requirements applicable to the manner in which 
appropriate products may be offered or sold to U.S. persons, e.g., 
registration of intermediaries, requirements related to sales practices 
(including appropriate disclosures), availability to the Commission of 
books and records and prohibitions on fraudulent activities.
    The Commission's determination to propose modifications to the 
current procedure of regulation 30.3(a) for approval of foreign option 
products for sale to U.S. persons is based on its experiences with the 
regulations governing options generally, and, in particular, with the 
initial regulations imposed on foreign options trading. This proposal 
reflects the Commission's assessment that the continued treatment of 
foreign commodity options differently from foreign futures (which do 
not require a specific authorization order) should be reevaluated.

History of Options Regulation

    The regulatory approach to commodity options in the United States 

[[Page 63473]]
    has been particularly cautious due to the history of abuses which had 
been associated with such transactions.3

    \3\ The Commission notes that the abuses which characterized the 
offer and sale of commodity options in the past generally involved 
sales practices, 46 FR 54500, 54503 (November 3, 1981), including 
sales activity with respect to alleged ``London options'' (which 
appeared to have been perpetrated exclusively by sales persons or 
organizations in the United States, and did not involve any improper 
activities on the part of foreign exchanges), see 42 FR 18246, 18249 
(April 5, 1977).
---------------------------------------------------------------------------

    Unsatisfactory experiences with what essentially were unregulated 
sales of options on commodities in the early 1970's, and further abuses 
under interim regulations adopted in 1976 ultimately resulted in the 
Commission's suspension of the offer and sale of all commodity options 
as of June 1, 1978 and the codification of that suspension by Congress 
in the Commodity Exchange Act of 1978. See 46 FR 54500, 54502 (November 
3, 1981). The suspension codified by Congress permitted the Commission 
to introduce option trading, but only if the Commission could document 
to its Congressional oversight committee its ability to regulate 
successfully such transactions.4

    \4\ See section 4c(c) of the CEA, as amended by the 1978 Act. 
See 46 FR 33293, 33294 (June 29, 1981).
---------------------------------------------------------------------------

    Mindful of this history, in proposing a pilot program for the offer 
and sale of options in 1981, the Commission expressly stated that it 
was: 5

    \5\ See 46 FR 33293, 33294 (June 29, 1981).

    Cognizant of the need to exercise a strong degree of control 
---------------------------------------------------------------------------
over all aspects of commodity option trading.

Thus, the final domestic exchange-traded commodity option rules adopted 
in 1981 authorized the introduction of options under a limited pilot 
program which permitted only one option contract per exchange, did not 
permit either foreign options or options on physical commodities to be 
offered, and placed significantly greater self-regulatory 
responsibilities on boards of trade than was then required for futures 
trading, particularly with respect to the protection of the public from 
sales practice abuses.6

    \6\ See 46 FR 54500, 54502 (November 3, 1981).
---------------------------------------------------------------------------

Evolution of Domestic Option Regulations

    Although starting narrowly and cautiously, the Commission's options 
regulations have evolved consistently with the acquisition of an 
operational history under those regulations. Thus, in December 1982 the 
Commission expanded the pilot program to permit each exchange to trade 
one option on a futures contract and one option contract on a non-
agricultural physical commodity.7 The Commission continued to 
expand the pilot program in a controlled and orderly manner so that 
both the Commission and the exchanges would obtain greater experience 
with the trading of options,8 subsequently expanding the pilot 
program to permit more option contracts per exchange,9 to include 
option contracts on futures contracts on agricultural 
commodities,10 and ultimately, to eliminate the pilot status of 
the option regulations.11

    \7\ 47 FR 56996 (December 22, 1982).
    \8\ Id. at 56997.
    \9\ See, e.g., 49 FR 33641 (August 24, 1984) (permitting each 
exchange to trade five contracts); 50 FR 45811 (November 4, 1985) 
(increasing from five to eight the number of contracts permitted per 
exchange).
    \10\ 49 FR 2752 (January 23, 1984). The pilot program was 
established after the statutory bar to trading options on domestic 
agricultural commodities was repealed by section 206 of the Futures 
Trading Act of 1982, Pub. L. 97-444, 96 Stat. 2294, 2301 (1983). The 
Commission limited the pilot program to options on futures contracts 
on agricultural products. The Commission noted that industry 
commenters generally favored such a restriction and the Commission's 
cautious approach. See 49 FR at 2754.
    \11\ See 51 FR 17464 (May 13, 1986) (termination of pilot status 
for non-agricultural options); 53 FR 777 (January 9, 1987) 
(termination of pilot status for options on non-agricultural 
physical commodities and on agricultural futures contracts).
---------------------------------------------------------------------------

    The Commission's incremental expansion of the domestic exchange-
traded options program was validated by Congress in 1986 when Congress 
amended section 4c of the CEA to make permanent the program of 
exchange-traded commodity options. As stated in the House Report on the 
1986 legislation: 12

    \12\ See H. Rep. 99-624, 99th Cong., 2d Sess. 15 (1986).

    The Committee's amendment coincides with a recent decision by 
the Commission to terminate the pilot status of the program for 
trading options on futures contracts other than those on domestic 
agricultural commodities and make the trading of such options 
permanent. * * *
    The Committee believes the Commission has practiced good 
judgment in its regulation and oversight of both agricultural and 
the nonagricultural options programs. Furthermore, the Committee is 
satisfied that the overall experience with both of these pilot 
programs indicates that few regulatory problems have arisen, and 
that the exchanges have discharged their responsibilities 
adequately. Additionally, the Commission has detected no adverse 
effects on the underlying futures markets resulting from such option 
trading.

    Moreover, based on its administration of the option pilot program 
for more than ten years, the Commission has previously determined to 
eliminate certain provisions that were originally part of its options 
designation requirements for which there were not comparable futures 
regulation, such as:

    --Rule 33.4(b)(9) which required a board of trade applying for 
designation as a contract market with respect to commodity option 
transactions to adopt special rules governing the handling by its 
member FCMs of discretionary accounts in option transactions; 
13

    \13\ 58 FR 30701 (May 27, 1993). The Commission based this rule 
change on its belief that compliance with the supervisory 
requirements of rule 166.3, the requirements of rule 166.2 
concerning authorization to trade, other Commission rules of general 
applicability, and SRO rules such as NFA compliance rule 2-8, should 
be adequate to address the regulatory concerns applicable to both 
option and futures customer discretionary accounts. See 58 FR 30701, 
30702.
---------------------------------------------------------------------------

    --rules which require boards of trade designated as contract 
markets for options to adopt rules requiring FCMs that engage in the 
offer or sale of commodity options regulated under Part 33 to send 
copies of customer complaints and their resolutions and copies of 
all promotional materials to the members' designated self-regulatory 
organization (DSRO); 14 and

    \14\ See 57 FR 58976, 58977 (December 14, 1992) (such records 
must however be maintained by the FCM for review as part of the 
routine audit process); see generally 56 FR 43694 (September 4, 
1991).
---------------------------------------------------------------------------

    --rules which required a specified volume of trading in the 
underlying futures contract prior to designation; established a 
delisting criterion for the trading of low-volume contracts; and 
required exchanges to provide a comprehensive list of occupational 
categories of commercial users of the commodity underlying the 
option.15

    \15\ 56 FR 43694 (September 4, 1991). The Commission also 
revised rule 33.4(d) which had required exchanges to justify 
expiration dates of less than 10 days before first notice day or 
last trading day of the future, whichever comes first.
---------------------------------------------------------------------------

History of Foreign Options Rules.

    As noted above, the Commission's initial pilot programs did not 
include foreign options.16 Thus the ban contained in section 4c of 
the CEA remained in effect with respect to foreign options. A program 
to authorize the offer and sale of foreign exchange-traded commodity 
options was not implemented until 1987 with the general adoption of the 
part 30 rules governing foreign futures and option transactions 
generally.17 The Part 30 rules, among other things, provided a 
mechanism for lifting the ban with respect to foreign exchange-traded 
options. Under rule 30.3(a), foreign exchange-traded commodity options 
are prohibited from being offered or sold in the United States unless 
the Commission issues a product-specific order. The part 30 rules did 
not similarly require a product-specific order for foreign futures 
transactions.

    \16\ See 46 FR 33293, 33294 (June 29, 1981).
    \17\ 52 FR 28980 (August 5, 1987). 
    
[[Page 63474]]

---------------------------------------------------------------------------

    As with the Commission's pilot program for domestic exchange-traded 
options, the program for foreign exchange-traded commodity options also 
has proceeded cautiously. Thus, in issuing the order for any foreign 
market, the Commission has considered: (1) The availability of certain 
information relevant to preventing abuses including, but not limited to 
trade confirmation data; (2) the arrangements in place for assuring 
that sales practice abuses do not occur; (3) the arrangements for U.S. 
customers to redress grievances; and (4) the regulatory environment in 
which such options are traded.18

    \18\ See, e.g., 53 FR 28840 (July 29, 1988).
---------------------------------------------------------------------------

    In particular, the Commission placed great stress initially on its 
ability to obtain information from the foreign exchange with respect to 
transactions entered into on that exchange on behalf of U.S. 
customers.19 As stated in the final rules: 20

    \19\ See 52 FR 28980, 28988 (August 5, 1987).
    \20\ Id.

    In order to ensure that foreign commodity exchanges are both 
willing and able to share appropriate information with the 
Commission * * * the Commission has determined to make the issuance 
of a Commission order a prerequisite to the lawful offer and sale of 
such products.

Reevaluation of foreign options rules.

    Since 1987 foreign option sales to U.S. customers have been 
permitted under the Commission's part 30 rules. Such sales have 
occurred without the type of sales abuses that historically had been 
associated with commodity option activities. Contributing to this 
success has been the requirement that foreign options be sold to U.S. 
customers by futures commission merchants (which ensures among other 
things the adequacy of firm capital, fitness of personnel and proper 
supervision of sales practices); the Commission's Part 30 rules, which 
seek to ensure that foreign firms directly soliciting U.S. customers 
for foreign products are otherwise regulated as to their sales 
practices; 21 and the undertaking by the National Futures 
Association (NFA) to audit the foreign options sales practices of 
domestic firms marketing foreign options to domestic customers.22 
In particular, under the current regulatory scheme, firms engaged in 
the offer or sale of foreign commodity options (and futures) to U.S. 
customers must either be a Commission registrant or a foreign firm 
which has qualified to sell foreign products in the United States under 
the Commission's Part 30 rules based on substituted compliance with a 
foreign jurisdiction's licensing and fitness requirements and subject 
to certain other conditions to assure the availability of the firms' 
records and its submission to Commission jurisdiction under the CEA and 
U.S. law otherwise.

    \21\ In reviewing the foreign regulatory program for purposes of 
rule 30.10, the Commission's staff considers the sales practice 
compliance review program in effect in the foreign jurisdiction.
    \22\ Part 33 requires exchanges as a condition of designation as 
a contract market to have specific options sales practice compliance 
responsibilities. NFA and the futures exchanges participate in a 
Joint Audit Plan (Plan) to reduce the duplication of audit and 
financial surveillance work which otherwise could occur with respect 
to FCMs which are members of more than one exchange. The plan 
assigns primary audit and financial surveillance responsibility for 
each FCM, which is a member of more than one of the SROs, to one of 
the Plan participants. The SRO which has the primary responsibility 
is known as that FCM's DSRO. NFA is the DSRO for all FCMs which are 
not members of any commodity exchange and therefore, do not have an 
exchange SRO and, in some cases, NFA by agreement is the DSRO for 
certain exchange member firms. NFA also is the DSRO responsible for 
surveillance over the financial reporting and recordkeeping by all 
member CPOs, and independent introducing brokers (IBs), as well as 
guaranteed IBs whose guaranteeing FCMs have NFA as the DSRO. NFA 
also is charged with auditing for sales practice compliance all 
member IBs, CTAs and CPOs, and branch offices of FCMs for which NFA 
is DSRO, as well as all futures sales practices compliance not 
contracted to another SRO.
    To date, NFA has undertaken, in conjunction with specific 
Commission orders under rule 30.3(a), to conduct sales practice 
compliance auditing of registrants marketing particular foreign 
commodity options under relevant arrangements with such firms' DSRO. 
Therefore, any revisions to Commission rule 30.3 would be premised 
on the existence of an audit program to assure general sales 
practice compliance for all foreign commodity option transactions. 
See also n. 21.
---------------------------------------------------------------------------

    In the case of NFA, NFA audits generally include the review and 
analysis of a member firm's trading records, sales materials and 
practices (sales practices compliance audits), and for FCMs and 
independent IBs, accounting procedures, financial statements and 
records (financial audits). NFA's audit programs are designed so that 
the auditors must perform a certain amount of work at the member firm's 
office, testing records and resolving any discrepancies. While all NFA 
members are subject to audit, decisions concerning whether to audit a 
particular firm are based on a number of factors, including NFA's 
review of financial statements, monitoring of media advertising, 
receipt of customer complaints, knowledge of the past history of the 
firm and its principals, the time elapsed since the previous NFA audit, 
potential effects of market movements and referrals outside of NFA.
    NFA compliance audits have two major objectives: to determine 
whether the firm is maintaining records in accordance with NFA rules 
and applicable Commission regulations, and to ascertain that the firm 
is being operated in a professional manner and that customers are 
protected against unscrupulous activities, including fraudulent or 
high-pressure sales practices. The compliance program specifically 
examines the firm's practices in soliciting accounts and audits could 
review, among other things: records of customers' orders; customer 
confirmations and other account statements; records regarding handling 
of discretionary accounts; disclosure documents, advertising and other 
promotional material; records of customer complaints; and records 
relative to the internal supervision of account executives, order 
handling or sales personnel.23

    \23\ See Commission rule 33.4(c); see also n. 22.
---------------------------------------------------------------------------

    The Commission believes that its experience since 1987 with foreign 
options justifies a reexamination of the necessity of requiring a 
specific option authorization order for each options contract offered 
and sold in the United States, that is, the continuing need for 
differential treatment of the offer or sale of foreign futures and 
foreign options in the United States. Just as the Commission's domestic 
exchange-traded option program has evolved on the basis of accumulated 
operational experience, the Commission believes that a similar measured 
evolution, based on experience, is warranted with respect to foreign 
commodity options.
    However, as noted above, the Commission believes that its existing 
regulatory scheme governing domestic registered firms which deal 
directly with the public in conjunction with the sales practice program 
of the NFA--all subject to Commission oversight--should provide 
adequate sales practice protections for customers who would engage in 
foreign options transactions through registered FCMs. In this 
connection, prior to adopting any final rules in this regard, the 
Commission would need to be assured that arrangements exist through NFA 
or otherwise to ensure that sales practice compliance audits of 
registrants offering foreign commodity options will be undertaken, 
thereby ensuring complete sales practice compliance audit coverage of 
firms (which heretofore has been mandated on a product-specific basis 
under rule 30.3 orders).
    Similarly, the Commission's rule 30.10 orders permitting foreign 
firms to directly solicit U.S. persons for foreign products address 
options and futures sales practice concerns. In addition, the 
Commission notes that existing 30.10 orders have been accompanied by 
information-sharing arrangements 

[[Page 63475]]
which assure Commission access to relevant information of the type 
which previously may not have been available.24 The Commission 
further recognizes that its ability to obtain information to confirm 
the existence of transactions executed on foreign exchanges 25 has 
been materially enhanced by the numerous information-sharing memoranda 
of understanding and cooperative arrangements that have been entered 
with foreign jurisdictions.\26\

    \24\ Significantly, to date, the Commission has not had occasion 
to request any information under any information sharing arrangement 
in connection with the approval of a particular exchange foreign 
option product.
    \25\ In explaining its decision to suspend the offer and sale of 
foreign commodity options in the United States, the Commission noted 
in 1977, among other things, that:
    The Commission's investigators and auditors have also 
encountered great difficulty in their attempts to verify the details 
of option transactions purportedly effected for Americans on foreign 
exchanges.
    See 43 FR 16153, 16155 (April 17, 1977).
    \26\ For example, such regulatory and enforcement MOUs and 
cooperative arrangements have been entered into with authorities in 
Australia, Argentina, Brazil, Canada, France, Hong Kong, Italy, 
Japan, Mexico, the Netherlands, Singapore, Spain, Taiwan, and the 
United Kingdom.
---------------------------------------------------------------------------

    Nor would elimination of the authorization requirement negatively 
affect the access of U.S. customers to existing customer complaint 
procedures, either under existing rule 30.10 orders for customers 
directly solicited by foreign firms or under NFA's arbitration rules 
governing disputes with a foreign party.
    Customers solicited by foreign firms operating under a rule 30.10 
order will, pursuant to the express terms of such orders, have access 
to arbitration procedures both abroad and through NFA. Customers 
transacting through a domestic firm will have the option of electing 
NFA arbitration procedures. NFA rules governing arbitration of disputes 
involving foreign parties provide that disputes involving a foreign 
party may, in the discretion of NFA, be arbitrated if the parties agree 
to such arbitration (see NFA foreign arbitration rule sec. 2(a)(1)). 
Demands for arbitration will be rejected, however, if the claim arises 
primarily out of delivery, clearance, settlement or floor practices of 
a foreign exchange unless the foreign jurisdiction has no program for 
the resolution of disputes, in which case NFA will hear such claims. 
The rule 30.10 order permits the 30.10 firm to require a customer to 
consent to use a foreign regulator's non-binding mediation or 
conciliation service prior to initiating an NFA arbitration case. (See 
NFA Arbitration Policy Statement (March 1, 1989)).
    Thus, whether solicited by Commission registrants or foreign firms 
operating under rule 30.10, the Commission believes that the systems in 
place to address sales practice abuses and information sharing warrant 
reexamination of existing procedures.
    Finally, the Commission notes that FCMs which are not members of 
foreign exchanges should assure themselves that there are no statutory 
or regulatory impediments on their ability to obtain information from 
foreign exchange-members firms necessary to enable such FCMs to comply 
with the CEA and regulations thereunder relative to confirming the 
execution of foreign option transactions.
    In conclusion, the Commission believes that the differential 
treatment of foreign options no longer is justified. Indeed, to the 
extent that such differential treatment continues under circumstances 
when such treatment is not warranted based on existing economic and/or 
regulatory concerns, it risks conveying to traders the incorrect 
impression that the Commission can provide a greater level of 
protection with respect to foreign options than with respect to foreign 
futures. Moreover, as domestic exchanges increasingly seek to link 
their exchanges electronically with other exchanges worldwide, the 
presence of an authorization process for commodity options raises, 
under the current circumstances, an unnecessary obstacle that could 
competitively disadvantage domestic exchanges.

Proposal

    The Commission is therefore proposing to eliminate rule 30.3's 
requirement that no foreign option may be offered or sold in the United 
States until the Commission, by order, authorizes such foreign 
commodity option to be offered or sold in the United States.
    The Commission notes that the proposed elimination of the specific 
authorization requirement in rule 30.3(a) will not affect the existing 
product restrictions applicable to options on futures contracts based 
on stock index products (i.e., the underlying stock index futures must 
be the subject of a no-action letter issued by the CFTC's Office of the 
General Counsel) and foreign government debt (i.e., the debt product 
must be designated by the SEC as an exempted security under SEC rule 
13a-8) contained in section 2(a)(1)(B)(v) of the CEA.
    Accordingly, the Commission invites comment from interested parties 
on its proposal. Moreover, the Commission specifically invites the 
contract markets to indicate any other areas in which the designation 
requirements for options and futures generally could be further 
harmonized.

Other Matters

Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq., 
requires that agencies, in proposing rules, consider the impact of 
those rules on small businesses. The Commission has previously 
determined that FCMs should be excluded from the definition of ``small 
entity'' based upon the fiduciary nature of the FCM/customer 
relationships as well as the fact that FCMs must meet minimum financial 
requirements. 47 FR 18618, 18619 (April 30, 1982). The Commission 
similarly determined that CPOs are not small entities for purposes of 
the RFA. 47 FR 18618, 18620 (April 30, 1982). With respect to CTAs and 
IBs, the Commission has stated that it would evaluate within the 
context of a particular rule proposal whether all or some affected CTAs 
would be considered to be small entities and, if so, the economic 
impact on them of any rule. 47 FR 18618, 18620 (April 30, 1982) (CTAs); 
48 FR 35248, 35276 (August 3, 1983) (IBs).
    The proposed amendment of rule 30.3 is intended to facilitate the 
ability of Commission registrants or exempted firms to provide 
customers with access to desired products by eliminating a current 
product-by-product authorization requirement, thus providing easier 
access to a greater number of persons.
    Accordingly, the Chairman, on behalf of the Commission, hereby 
certifies, pursuant to 5 U.S.C. 605(b), that the proposed rule will not 
have a significant economic impact on a substantial number of small 
entities.

Paperwork Reduction Act

    The Paperwork Reduction Act of 1980 (Act), 44 U.S.C. 3501 et seq., 
imposes certain requirements on federal agencies (including the 
Commission) in connection with their conducting or sponsoring any 
collection of information as defined by the Act. The Commission has 
determined that the proposed amendment does not have any paperwork 
burden.
    Persons wishing to comment on the Commission's determination on the 
paperwork burden concerning this proposed rule should contact Jeff 
Hill, 

[[Page 63476]]
Office of Management and Budget, room 3228, NEOB, Washington, D.C. 
20503, (202) 395-7340. Copies of the information collection submission 
to OMB are available from Joe Mink, CFTC Clearance Officer, Three 
Lafayette Centre, 1155 21st Street, N.W., Washington, D.C. 20581; 
telephone (202) 418-5170.

List of Subjects in 17 CFR Part 30

    Commodity futures.

    In consideration of the foregoing, and pursuant to the authority 
contained in the Commodity Exchange Act and, in particular, sections 
2(a)(1)(A), 4, 4c and 8a of the Commodity Exchange Act, 7 U.S.C. 2, 6, 
6c and 12a, the Commission hereby proposes to amend part 30 of chapter 
I of title 17 of the Code of Federal Regulations as follows:

PART 30--FOREIGN FUTURES AND FOREIGN OPTIONS TRANSACTIONS

    1. The authority citation for part 30 continues to read as follows:

    Authority: Secs. 2(a)(1)(A), 4, 4c and 8a of the Commodity 
Exchange Act, 7 U.S.C. 2, 6, 6c and 12a.

    2. Section 30.3 is proposed to be amended by revising paragraph (a) 
to read as follows:

Sec. 30.3  Prohibited transactions.

    (a) It shall be unlawful for any person to engage in the offer and 
sale of any foreign futures contract or foreign options transaction for 
or on behalf of a foreign futures or foreign options customer, except 
in accordance with the provisions of this part: Provided, that, with 
the exception of the disclosure and antifraud provisions set forth in 
Secs. 30.6 and 30.9 of this part, the provisions of this part shall not 
apply to transactions executed on a foreign board of trade, and carried 
for or on behalf of a customer at a designated contract market, subject 
to an agreement with and rules of a contract market which permit 
positions in a commodity interest which have been established on one 
market to be liquidated on another market.
* * * * *
    Issued in Washington, D.C. on December 5, 1995 by the 
Commission.
Jean A. Webb,
Secretary of the Commission.
[FR Doc. 95-30046 Filed 12-8-95; 8:45 am]
BILLING CODE 6351-01-P

Complete official Federal Register PDF

FR Doc. 95-30028 Extensions of Credit to Insiders and Transactions With Affiliates
[Federal Register Volume 60, Number 237 (Monday, December 11, 1995)]
[Proposed Rules]
[Pages 63461-63465]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-30028]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE TREASURY

Office of the Comptroller of the Currency

12 CFR Part 31

[Docket No. 95-29]
RIN 1557-AB40

Extensions of Credit to Insiders and Transactions With Affiliates

AGENCY: Office of the Comptroller of the Currency, Treasury.

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: The Office of the Comptroller of the Currency (OCC) proposes 
to revise its rules governing extensions of credit to national bank 
insiders and to relocate to part 31 several interpretive rulings 
dealing with transactions with affiliates. This proposal is another 
component of the OCC's Regulation Review Program to update and 
streamline OCC regulations and to reduce unnecessary regulatory costs 
and other burdens. The proposal modernizes and clarifies the insider 
lending rules and reduces unnecessary regulatory burdens where 
feasible, consistent with statutory requirements.

DATES: Comments must be received by February 9, 1996.

ADDRESSES: Comments should be directed to: Office of the Comptroller of 
the Currency, Communications Division, 250 E Street, SW, Washington, DC 
20219, Attention: Docket No. 95-29. Comments will be available for 
public inspection and photocopying at the same location. In addition, 
comments may be sent by facsimile transmission to FAX number (202) 874-
5274 or by electronic mail to [email protected].

FOR FURTHER INFORMATION CONTACT: Aline Henderson, Senior Attorney, Bank 
Activities and Structure (202) 874-5300; Emily McNaughton, National 
Bank Examiner, Credit & Management Policy (202) 874-5170; or Mark 
Tenhundfeld, Senior Attorney, Legislative and Regulatory Activities 
(202) 874-5090.

SUPPLEMENTARY INFORMATION:

Background

Summary of Regulation Review Program

    The OCC proposes to revise 12 CFR part 31 as another component of 
its Regulation Review Program (Program). The goal of the Program is to 
review all of the OCC's rules and to eliminate provisions that do not 
contribute significantly to maintaining the safety and soundness of 
national banks or to accomplishing the OCC's other statutory 
responsibilities. Another goal of the Program is to clarify regulations 
so that they more effectively convey the standards the OCC seeks to 
apply. 

[[Page 63462]]

    The OCC intends for this proposal to reduce regulatory costs and 
other burdens on national banks by eliminating regulatory requirements 
that are neither essential to maintaining the safety and soundness of 
national banks nor needed to accomplish the OCC's statutory 
responsibilities. The proposal also seeks comments on whether it would 
be useful for the OCC to issue additional guidance on the differences 
between the requirements of part 31 and 12 CFR part 32 (Lending 
Limits).

Discussion

    Current part 31 contains two subparts. Subpart A implements 12 
U.S.C. 375a(4) and 375b(3) by setting a limit on the amount that a 
national bank may lend to any one of its executive officers other than 
for housing- and education-related loans and by establishing a 
threshold above which approval of the bank's board of directors is 
required for any loan to an insider. Subpart B implements 12 U.S.C. 
1817(k) and 1972(2)(G)(ii) by requiring a national bank to disclose, 
upon request, the names of its executive officers and principal 
shareholders who borrow more than specified amounts from the bank 
itself or the bank's correspondent banks and to maintain records 
related to requests for this information. Subpart B also implements 12 
U.S.C. 1972(2)(G)(i), which requires a national bank's executive 
officers and principal shareholders to report on loans they or their 
related interests receive from the bank's correspondent banks.
    This proposal creates three exceptions to the limit on loans that a 
national bank may make to its executive officers for situations where 
the lending bank's position is clearly protected by virtue of the type 
of collateral involved. It also clarifies and simplifies the current 
rule by removing provisions that are no longer necessary. Finally, it 
invites comments on whether guidance would be helpful on the 
differences between the insider lending limits and the loans-to-one-
borrower limits and, if so, the areas where clarification may be most 
needed.
    The following discussion identifies and explains material proposed 
changes to part 31. The OCC invites general comments on the proposed 
regulation as well as specific comments on the areas identified.

Title of Regulation

    The current rule is titled ``Extensions of Credit to National Bank 
Insiders.''
    The proposed rule changes the title to ``Extensions of Credit to 
Insiders and Transactions with Affiliates.'' This change reflects the 
proposed relocation to 12 CFR part 31 of several interpretations 
regarding transactions with affiliates that currently are set out in 
part 7. (See ``Interpretations'' and text that follows for further 
discussion of the relocation.)

Subpart A--Loans to Insiders

Definitions (Proposed Sec. 31.2)

    Current Sec. 31.3 states that the definitions contained in 
Secs. 215.2 and 215.3 of Regulation O (12 CFR part 215) apply to 
subpart A of part 31.
    Proposed Sec. 31.2 also states that the definitions used in 
Secs. 215.2 and 215.3 of Regulation O apply. However, because proposed 
Sec. 31.3 uses a term (capital and surplus) that is Not defined in 
Regulation O, proposed Sec. 31.2 states that ``capital and surplus'' 
will be defined in the same way as that term is defined in part 32 
(Lending Limits) (12 CFR 32.2(b)). This clarifies that national banks 
calculate their loans-to-one-borrower lending limits and their insider 
lending limits using the same capital base.1

    \1\ Regulation O uses the term ``unimpaired capital and 
unimpaired surplus.'' See 12 CFR 215.2(i). The Board of Governors of 
the Federal Reserve System (Board) recently amended Regulation O to 
conform the definition of ``unimpaired capital and unimpaired 
surplus'' to the definition of ``capital and surplus'' as defined in 
part 32 (60 FR 31053, June 13, 1995). Accordingly, the capital base 
from which different limits are measured now is the same, despite 
the different terminology.
---------------------------------------------------------------------------

Loan Limits (Proposed Sec. 31.3)

    Current Sec. 31.2(a) prohibits a national bank from making a loan 
to an executive officer if the loan, when aggregated with all other 
loans outstanding from the bank to the officer, would exceed the higher 
of $25,000 or 2.5 percent of the bank's capital and unimpaired surplus, 
up to $100,000. However, the current rule exempts home mortgage and 
educational loans from this limit pursuant to sections 22(g)(2) and 
22(g)(3) of the Federal Reserve Act (12 U.S.C. 375a (2) and (3)).2 
Loans that do not comply with sections 22(g)(2) or 22(g)(3) often are 
referred to as ``other purpose loans,'' because they are for purposes 
other than those identified in those sections of the Federal Reserve 
Act.

    \2\ Section 22(g)(2) of the Federal Reserve Act permits a member 
bank (and, therefore, a national bank) to make a loan to one of its 
executive officers if the loan is secured by a first lien on a 
dwelling that the officer will own and use as his or her residence 
after the loan is made. Section 22(g)(3) permits a member bank to 
make a loan to an executive officer to finance the education of the 
officer's children.
---------------------------------------------------------------------------

    Pursuant to the rulemaking authority in 12 U.S.C. 375(a)(4), 
proposed Sec. 31.3(a) exempts a loan from the limits applicable to 
``other purpose loans'' if the loan is secured by United States 
obligations, obligations guaranteed by a Federal agency, or a 
segregated deposit account.3 The proposal effects this change by 
incorporating the exceptions set forth in the OCC's Lending Limits 
regulation at 12 CFR 32.3(c)(3), (c)(4)(ii), and (c)(6). The proposal 
also clarifies that the limits prescribed by Sec. 31.3(a) do not apply 
to executive officers of affiliates of the lending bank.

    \3\ The OCC currently exempts these loans from the limits on 
loans to one borrower. See 12 CFR 32.3(c)(3), (4), and (6). The only 
difference between the exceptions in proposed part 31 and the 
exceptions currently available under part 32 is that the proposal 
does not include the exemption for loans to a Federal agency (12 CFR 
32.3(c)(4)(i)), given that this exemption does not apply to loans to 
executive officers.
---------------------------------------------------------------------------

    The OCC believes that the proposed exceptions, which entail 
situations where the lending bank's position is secure by the nature of 
the collateral required, are consistent with safe and sound banking 
practices and would eliminate unnecessary restrictions on lending by 
national banks. Moreover, in the insider lending context, loans that 
qualify for the exceptions remain subject to the safeguards found in 
sections 22(g)(1) and 22(h)(2) of the Federal Reserve Act (12 U.S.C. 
375a(1) and 375b(2)), thereby providing additional protection against 
abuse.4

    \4\ Section 22(g)(1) of the Federal Reserve Act requires that 
any loan by a member bank to one of its executive officers be 
promptly reported to the bank's board of directors. The bank may 
make the loan to the executive officer only if it is authorized to 
make the loan to borrowers other than its officers, the loan is on 
terms not more favorable than those afforded other borrowers, and 
the officer has submitted a detailed current financial statement. 
Section 22(h)(2) authorizes a member bank to make a loan to a bank 
insider only if the loan is made on substantially the same terms as 
those prevailing at the time for comparable transactions by the bank 
with persons who are not insiders, the loan does not involve more 
than the normal risk of repayment or present other unfavorable 
features, and the bank follows credit underwriting procedures that 
are not less stringent than those applicable to comparable 
transactions by the bank with non-insiders.
---------------------------------------------------------------------------

    Both the Federal Deposit Insurance Corporation (FDIC) and the Board 
have amended their insider lending rules to include exemptions similar 
to those noted above. See 59 FR 66666 (December 28, 1994) (amending the 
FDIC's rule at 12 CFR 337.3) and 59 FR 8831 (February 24, 1994) 
(amending the Board's rule at 12 CFR 215.5).5 The OCC 

[[Page 63463]]
believes the disparity between its rule and those of the other Federal 
banking agencies is both unnecessary and inconsistent with section 303 
of the Riegle Community Development and Regulatory Improvement Act of 
1994 (CDRI) (12 U.S.C. 4803), which requires each agency to work with 
the other Federal banking agencies to make uniform all regulations and 
guidelines implementing common statutory or supervisory policies. CDRI, 
section 303(a)(2).

    \5\ The Office of Thrift Supervision's regulation automatically 
applies the Board's insider lending rule to thrifts. See 12 CFR 
563.43. Accordingly, the amendment to 12 CFR 215.5 also applies to 
thrifts. The OCC also believes that the current restrictions run 
counter to section 303(a)(1)(A) of the CDRI, which requires the 
Federal banking agencies to eliminate unwarranted constraints on 
credit availability. The OCC has observed no significant problems 
arising from the exemptions in the loans-to-one-borrower context. 
This experience, coupled with the safeguards provided by sections 
22(g) and 22(h), leads the OCC to conclude that limiting the amount 
of loans secured in the manner in question is unwarranted.
---------------------------------------------------------------------------

    For these reasons, the OCC proposes to eliminate the special 
restrictions on extensions of credit by national banks to their 
executive officers, provided the loans are secured in the manner 
previously described. The OCC seeks comment on whether interested 
parties agree that the exemptions are appropriate for national banks.
    Current Sec. 31.2(b) requires a majority of the directors of a 
national bank to approve in advance a loan to one of the bank's 
executive officers, principal shareholders, or directors (or to any 
related interest of such persons) if the amount of the loan, when 
aggregated with other loans outstanding to that insider and his or her 
related interests, exceeds the higher of $25,000 or 5 percent of the 
bank's capital and surplus. In no event may a national bank lend more 
than $500,000 to an insider and his or her related interests without 
the majority of the bank's board first approving the loan. Interested 
directors must abstain from the voting.
    Proposed Sec. 31.3(b) amends the OCC's rule to conform to recent 
changes made to the definitions of ``director,'' ``executive officer,'' 
and ``principal shareholder'' in Regulation O (12 CFR 215.2(d), (e), 
and (m), respectively). The Board narrowed these definitions so that 
they generally apply just to insiders of the bank and not to its 
affiliates. At the same time the Board narrowed these definitions, it 
also clarified, in 12 CFR 215.4(b)(1), that the prior approval 
requirements continue to apply to insiders of the bank as well as 
insiders of the bank's affiliates. Proposed Sec. 31.3(b) also makes 
this clarification.
    It should be noted that the exemptions set forth in proposed 
Sec. 31.3(a) do not apply to proposed Sec. 31.3(b). Thus, a loan 
secured, for instance, by a segregated deposit account still must be 
counted for purposes of determining whether prior approval is required 
under proposed Sec. 31.3(b). This provides an additional protection 
against insider abuse by insuring that a bank's directors will have the 
opportunity to review loans to insiders in amounts that exceed the 
specified thresholds.

Subpart B--Reports and Public Disclosure

Authority and OMB Control Number (Sec. 31.4)

    Current Sec. 31.4 states the authority pursuant to which subpart B 
is issued and sets forth the Office of Management and Budget (OMB) 
control number.
    The proposed rule removes the statement of the OMB control number 
from part 31 but retains the statement of authority. In a separate 
rulemaking, the OCC will relocate all OMB control numbers to 12 CFR 
part 4.

Definitions (Proposed Sec. 31.5)

    Current Sec. 31.5(d) states, as a general matter, that the 
definitions found in subpart B of Regulation O (12 CFR 215.20 through 
215.23) apply to subpart B of part 31. Current Sec. 31.5(d) also states 
that, for purposes of the requirement governing reports of loans to 
insiders from the insider's bank, the term ``bank'' means Federally-
chartered insured bank.
    The proposal relocates the definition section to proposed Sec. 31.5 
and incorporates into subpart B of part 31 the definitions found in 
subpart B of Regulation O. The proposal also clarifies, for the reasons 
stated in the discussion of proposed Sec. 31.2, that the term ``capital 
and surplus'' in part 31 has the same meaning as ``capital and 
surplus'' as that term is used in 12 CFR part 32. The proposal also 
removes an obsolete reference to 12 U.S.C. 1817.

Disclosure of Insider Indebtedness (Proposed Sec. 31.6)

    Current Sec. 31.5 requires a national bank to disclose, if 
requested, the names of each executive officer and principal 
shareholder whose aggregate indebtedness (including debt of the 
insider's related interests) from either the bank or its correspondent 
banks equals or exceeds the lesser of 5 percent of the bank's capital 
and unimpaired surplus or $500,000.6 The current rule also 
requires a national bank to maintain records of requests for 
information for two years following the request.

    \6\ This requirement applies only to aggregate indebtedness that 
exceeds $25,000.
---------------------------------------------------------------------------

    Proposed Sec. 31.6 makes no substantive change, but revises the 
current section's style in order to improve clarity. Proposed 
Sec. 31.6(a) uses the term ``capital and surplus'' instead of ``capital 
and unimpaired surplus,'' which is used in the current regulation. This 
change conforms subpart B of part 31 to subpart A. The proposal also 
clarifies, in Sec. 31.6(c), that the two-year period for retaining 
records of requests and the disposition of requests begins on the date 
of the request.

Reports by Executive Officers and Principal Shareholders (Proposed 
Sec. 31.7)

    Current Sec. 31.6 implements 12 U.S.C. 1972(2)(G)(i), which 
requires national bank executive officers and principal shareholders to 
file annual reports with their bank's board of directors showing 
indebtedness from correspondent banks to the insiders or their related 
interests. The current rule states that ``This requirement is restated 
in Regulation O, 12 CFR 215.22,'' thereby implicitly incorporating the 
provisions of the section cited.
    Proposed Sec. 31.7 clarifies that 12 U.S.C. 1972(2)(G)(i) requires 
reports only if the executive officer or principal shareholder (or 
their related interests) have credit outstanding at some point during 
the year. The proposed rule also clarifies that all of the provisions 
of 12 CFR 215.22 apply. The OCC does not intend any substantive change 
by these proposed amendments.

Interpretations

    On March 3, 1995, the OCC proposed to relocate several 
interpretations that currently appear in part 7. See 60 FR 11924, 11930 
(proposing to relocate 12 CFR 7.7355 (debts of affiliates), 7.7360 
(loans secured by stock or obligations of an affiliate), 7.7365 
(Federal funds transactions between affiliates), and 7.7370 (deposits 
between affiliated banks)). The OCC proposed to relocate these 
interpretations to part 31 because the interpretations and part 31 stem 
from the same concern about persons or entities taking undue advantage 
of positions of influence and thereby adversely affecting the safety 
and soundness of a national bank. Given the similarities in the 
supervisory concerns that prompted both part 31 and the 
interpretations, the OCC believes that it is more appropriate to 
include the interpretations in part 31 rather than in a collection of 
unrelated interpretations. The OCC also believes that relocating the 
interpretations to part 31 will make them easier to find.
    The proposed rule restates the latter three of these 
interpretations at new Secs. 31.100-31.102. Current Sec. 7.7355, which 
interprets the prohibition against a national bank withdrawing its 
capital, will be relocated to part 5 to consolidate all provisions 
related to changes in a national bank's equity capital. The OCC 

[[Page 63464]]
invites comments on these interpretations.

Additional Guidance Regarding Differences Between Lending Limits and 
Insider Lending Standards

    The OCC seeks comment on whether it would be useful for the OCC to 
issue guidance clarifying the differences between the loans-to-one-
borrower limits (12 CFR part 32) and the insider lending limits (part 
31). For instance, the attribution rules and the definition of 
``extension of credit'' applied by the OCC in the two regulations are 
similar but sufficiently different that a banker or bank counsel must 
keep straight two different sets of rules that often will apply to the 
same transaction. In many cases, these differences are compelled by 
differences in the underlying statutory authority for the two parts. 
The OCC requests that commenters who believe that this type of guidance 
would be helpful also identify areas where the intersection of the two 
rules gives rise to the most uncertainty. In this way, the OCC can 
focus any guidance it provides on those areas where help is most 
needed. The OCC also requests comment on whether the guidance should 
appear in an appendix to part 31, as an OCC bulletin, or in some other 
format.
    The following table directs readers to the provision(s) of the 
current regulation, if any, upon which the proposed provision is based, 
and identifies generally the action taken.

                            Derivation Table                            
------------------------------------------------------------------------
    Revised section          Original section            Comments       
------------------------------------------------------------------------
31.1...................  31.1...................  No change.            
31.2...................  31.3...................  Relocated and         
                                                   modified.            
31.3(a)(1).............  31.2(a)................  Modified.             
31.3(a)(2).............  .......................  Added.                
31.3(b)................  31.2(b)................  Modified.             
31.4...................  31.4...................  Modified.             
31.5...................  31.5(d)................  Relocated and         
                                                   modified.            
31.6(a)................  31.5(a)................  Modified.             
31.6(b)................  31.5(b)................  Modified.             
31.6(c)................  31.5(c)................  Modified.             
31.7...................  31.6...................  Modified.             
31.100.................  7.7360.................  Relocated and         
                                                   modified.            
31.101.................  7.7365.................  Relocated.            
31.102.................  7.7370.................  Relocated and         
                                                   modified.            
------------------------------------------------------------------------

Regulatory Flexibility Act

    It is hereby certified that this regulation will not have a 
significant economic impact on a substantial number of small entities. 
Accordingly, a regulatory flexibility analysis is not required. This 
regulation will reduce the regulatory burden on national banks, 
regardless of size, by eliminating and clarifying current regulatory 
requirements.

Executive Order 12866

    The OCC has determined that this proposal is not a significant 
regulatory action under Executive Order 12866.

Unfunded Mandates Act of 1995

    Section 202 of the Unfunded Mandates Act of 1995 (Unfunded Mandates 
Act) requires that an agency prepare a budgetary impact statement 
before promulgating a proposal likely to result in a rule that includes 
a Federal mandate that may result in the annual expenditure of $100 
million or more in any one year by State, local, and tribal 
governments, in the aggregate, or by the private sector. If a budgetary 
impact statement is required, section 205 of the Unfunded Mandates Act 
requires an agency to identify and consider a reasonable number of 
alternatives before promulgating a proposal. The OCC has determined 
that the proposal, if adopted, will not result in expenditures by 
State, local, and tribal governments, or by the private sector, of more 
than $100 million in any one year. Accordingly, the OCC has not 
prepared a budgetary impact statement or specifically addressed the 
regulatory alternatives considered.

List of Subjects in 12 CFR Part 31

    Credit, Disclosure, Executive officers, National banks, Principal 
shareholders, Reporting and recordkeeping requirements.

Authority and Issuance

    For the reasons set out in the preamble, the OCC proposes to revise 
part 31 of chapter I of title 12 of the Code of Federal Regulations as 
set forth below:

PART 31--EXTENSIONS OF CREDIT TO INSIDERS AND TRANSACTIONS WITH 
AFFILIATES

Subpart A--Loans to Insiders

Sec.
31.1  Authority.
31.2  Definitions.
31.3  Loan limits.

Subpart B--Reports and Public Disclosure

31.4  Authority.
31.5  Definitions.
31.6  Disclosure of insider indebtedness.
31.7  Reports by executive officers and principal shareholders.

Interpretations

31.100  Loans secured by stock or obligations of an affiliate.
31.101  Federal funds transactions between affiliates.
31.102  Deposits between affiliated banks.

    Authority: 12 U.S.C. 375a(4), 375b(3), 1817(k), and 
1972(2)(G)(ii), as amended.

Subpart A--Loans to Insiders

Sec. 31.1  Authority.

    The part is issued by the Comptroller of the Currency pursuant to 
12 U.S.C. 375a(4) and 375b(3), as amended.

Sec. 31.2  Definitions.

    For the purposes of this subpart, the definitions of the terms 
contained in Regulation O, 12 CFR 215.2 and 215.3, apply, except that 
the term ``capital and surplus'' as used in this subpart has the same 
meaning as ``capital and surplus'' as defined in 12 CFR 32.2(b).

Sec. 31.3  Loan limits.

    (a) Lending limit on loans to executive officer--(1) General limit. 
Except as provided in paragraph (a)(2) of this section, a national bank 
may not extend credit to an executive officer of the bank in an amount 
that, when aggregated with all other outstanding extensions of credit 
to that officer, exceeds the greater of $25,000 or 2.5 percent of the 
bank's capital and surplus, or in any event $100,000. The restrictions 
of this section apply only to executive officers of the national bank 
and not to executive officers of its affiliates.
    (2) Exceptions. The general limit specified in paragraph (a)(1) of 
this section does not apply to the following:
    (i) A loan made for the purpose described in 12 U.S.C. 375a(2) 
(housing-related loans) or 12 U.S.C. 375a(3) (loans made to finance the 
education of the officer's children); and
    (ii) A loan secured in a manner described in 12 CFR 32.3(c)(3) 
(secured by United States obligations), 12 CFR 32.3(c)(4)(ii) (secured 
by obligations guaranteed by a Federal agency), or 12 CFR 32.3(c)(6) 
(secured by a segregated deposit account).
    (b) Approval limits on all loans to an insider. Notwithstanding 
paragraph (a) of this section, a national bank may not extend credit to 
an insider of the bank or insider of its affiliates in an amount that, 
when aggregated with all other extensions of credit to that insider, 
exceeds the greater of $25,000 or 5 percent of the bank's capital and 
surplus, or in any event $500,000, unless:
    (1) A majority of the lending bank's entire board of directors 
approves the loan in advance; and
    (2) The interested party abstains from participating directly or 
indirectly in the vote. 

[[Page 63465]]

Subpart B--Reports and Public Disclosure

Sec. 31.4  Authority.

    This subpart is issued by the Comptroller of the Currency pursuant 
to 12 U.S.C. 1817(k) and 12 U.S.C. 1972(2)(G)(ii), as amended.

Sec. 31.5  Definitions.

    The definitions set forth in 12 CFR 215.21 apply to this subpart, 
except that ``capital and surplus'' has the same meaning as ``capital 
and surplus'' as defined in 12 CFR 32.2(b), and, for purposes of 
Sec. 31.5(a)(1), ``bank'' means an insured national bank.

Sec. 31.6  Disclosure of insider indebtedness.

    (a) Upon receipt of a written request, a national bank shall 
disclose the name of each of its executive officers and principal 
shareholders whose aggregate indebtedness (including indebtedness of 
related interests of such persons) from either--
    (1) The insider's bank as of the latest calendar quarter, or
    (2) The bank's correspondent banks at any time during the previous 
calendar year, equals or exceeds the lesser of 5 percent of the bank's 
capital and surplus or $500,000. This requirement applies only if the 
insider's (and his or her related interest's) aggregate indebtedness 
described in paragraphs (a)(1) or (a)(2) of this section exceeds 
$25,000.
    (b) A national bank need not disclose additional information 
concerning indebtedness of its executive officers and principal 
shareholders. The bank may base its disclosure under paragraph (a)(1) 
of this section on the bank's most recent Consolidated Report of 
Condition and Income. The bank may base its disclosure under paragraph 
(a)(2) of this section on information contained in the reports referred 
to in Sec. 31.6.
    (c) A national bank shall maintain records of any requests for 
information under paragraph (a) of this section and records of the 
disposition of these requests for two years from the date of the 
request.

Sec. 31.7  Reports by executive officers and principal shareholders.

    Pursuant to 12 U.S.C. 1972(2)(G)(i), each executive officer and 
principal shareholder of a national bank shall report annually to the 
bank's board of directors his or her indebtedness, and the indebtedness 
of his or her related interests, from correspondent banks of the 
insider's bank. For purposes of this section, the requirements stated 
in 12 CFR 215.22 (which implements the insider reporting requirements 
imposed by 12 U.S.C. 1972(2)(G)(i)) apply.

Interpretations

Sec. 31.100  Loans secured by stock or obligations of an affiliate.

    If a loan to an affiliate is otherwise adequately secured in 
compliance with 12 U.S.C. 371c(c), a national bank may take a security 
interest in the securities of an affiliate as additional collateral 
without the loan being considered a covered transaction for purposes of 
the limits on transactions with affiliates in 12 U.S.C. 371c(a)(1) (A) 
and (B).

Sec. 31.101  Federal funds transactions between affiliates.

    The limitations contained in 12 U.S.C. 371c apply to the sale of 
federal funds by a national bank to an affiliate of the bank.

Sec. 31.102  Deposits between affiliated banks.

    (a) General rule. The OCC considers a deposit made by a bank in an 
affiliated bank to be a loan or extension of credit to the affiliate 
under 12 U.S.C. 371c. These deposits must be secured in accordance with 
12 U.S.C. 371c(c). However, a national bank may not pledge assets to 
secure private deposits unless otherwise permitted by law (see, e.g., 
12 U.S.C. 90 (permitting collateralization of deposits of public 
funds); 12 U.S.C. 92a (trust funds); and 25 U.S.C. 156 and 162a (Native 
American funds)). Thus, unless one of the exceptions to 12 U.S.C. 371c 
noted in paragraph (b), of this section, applies or unless another 
exception applies that enables a bank to meet the collateral 
requirements of 12 U.S.C. 371c(c), a national bank may not:
    (1) Make a deposit in an affiliated national bank;
    (2) Make a deposit in an affiliated State-chartered bank unless the 
affiliated State-chartered bank can legally offer collateral for the 
deposit in conformance with applicable State law and 12 U.S.C. 371c; or
    (3) Receive deposits from an affiliated bank.
    (b) Exceptions. The restrictions of 12 U.S.C. 371c (other than 12 
U.S.C. 371c(a)(4), which requires affiliate transactions to be 
consistent with safe and sound banking practices) do not apply to 
deposits:
    (1) Made in the ordinary course of correspondent business; or
    (2) Made in an affiliate that qualifies as a ``sister bank'' under 
12 U.S.C. 371c(d)(1).

    Dated: November 28, 1995.
Eugene A. Ludwig,
Comptroller of the Currency.
[FR Doc. 95-30028 Filed 12-8-95; 8:45 am]
BILLING CODE 4810-33-P

Complete official Federal Register PDF

FR Doc. 95-29807 Cable Television Act of 1992
[Federal Register Volume 60, Number 237 (Monday, December 11, 1995)]
[Proposed Rules]
[Pages 63492-63497]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-29807]

-----------------------------------------------------------------------

FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 76

[CS Docket No. 95-174; FCC 95-472]

Cable Television Act of 1992

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: This Notice of Proposed Rulemaking seeks comment on proposed 
methods for cable operators' setting of uniform rates for uniform 
services offered in multiple franchising areas. The Commission is 
exploring this issue to solicit comment on possibly permitting 
operators to establish uniform rates. The item will help the Commission 
create a record on this issue, which will assist the Commission in 
designing new or amending current regulations to allow operators to 
establish uniform rates.

DATES: Comments are due on or before January 12, 1996 and reply 
comments are due on or before February 12, 1996.

ADDRESSES: Federal Communications Commission, 1919 M Street NW., 
Washington, DC 20554.

FOR FURTHER INFORMATION CONTACT:
Larry Walke, (202) 416-0847.

SUPPLEMENTARY INFORMATION: The text of this document is available for 
inspection and copying during normal business hours in the FCC 
Reference Center (Room 239), 1919 M Street NW., Washington, DC 20554, 
and may be purchased from the Commission's copy contractor, 
International Transcription Service, (202) 857-3800, 2100 M Street NW., 
Washington, DC 20037.

[CS Docket No. 95-174]

    In the matter of Implementation of Sections of the Cable 
Television Consumer Protection and Competition Act of 1992--Rate 
Regulation Uniform Rate-Setting Methodology.

Notice of Proposed Rulemaking

Adopted: November 28, 1995.
Released: November 29, 1995.
    By the Commission:

Comment Date: January 12, 1996.
Reply Comment Date: February 12, 1996.

I. Introduction

    1. Under the Commission's cable service rate regulations, a cable 
operator serving multiple franchise areas must establish maximum 
permitted service rates in each franchise area. These rates often vary 
from franchise area to franchise area, even if each area receives the 
identical package of program services. This outcome may cause needless 
confusion for subscribers, as well as unnecessary administrative 
burdens for cable companies. In addition, a cable operator's ability to 
market its product on a regional basis may be hindered. Therefore, in 
this Notice of Proposed Rulemaking (``NPRM''), we explore the design 
and implementation of an optional rate-setting methodology under which 
a cable operator could establish uniform rates for uniform cable 
service tiers offered in multiple franchise area.

II. Background

    2. Under the Cable Television Consumer Protection and Competition 
Act of 1992 (the ``1992 Cable Act''), the rates charged by a cable 
system are 

[[Page 63493]]
subject to regulation unless the system faces effective competition. In 
particular, the 1992 Cable Act directed the Commission to establish 
regulations designed to protect subscribers from unreasonable rates for 
certain types of cable services offered by such systems. Rate-regulated 
services consist of the basic service tier (``BST'') and the cable 
programming services tier (``CPST'').
    3. Every cable operator subject to rate regulation must offer a BST 
that includes all local broadcast stations that the operator carries on 
its system, plus all public, educational, and governmental (``PEG'') 
access channels required by the operator's franchise agreement with its 
local franchising authority. If it so chooses, a cable operator may 
offer additional programming on its BST beyond these minimum 
requirements. Subscribers to a rate-regulated cable system must 
purchase the BST in order to have access to any other tier of service. 
CPSTs include all non-BST programming offered over the cable system, 
other than programming offered to subscribers on a per channel or per 
program basis. There is no general requirement that an operator offer a 
CPST, and some operators offer no CPST. Per channel and per program 
offerings are generally exempt from rate regulation.
    4. Congress identified several specific factors that the Commission 
must consider in establishing regulations governing BST and CPST rates. 
The Commission may take other factors into account as well. In 
addition, the 1992 Cable Act required that the Commission ``seek to 
reduce administrative burdens on subscribers, cable operators, 
franchising authorities and the Commission'' in establishing its 
regulations.
    5. Under the primary method of rate regulation adopted by the 
Commission, a regulated cable system determines the maximum permitted 
initial rates for cable services pursuant to a benchmark formula. In 
selecting a primary regulatory model, the Commission employed a 
benchmark formula instead of the cost-of-service methodology that is 
traditionally applied to public utilities because of the often 
significant administrative costs and burdens on regulators and 
regulated companies associated with cost-of-service regulation. 
However, operators subject to regulation do have the option of setting 
rates in accordance with a cost-of-service methodology that the 
Commission has developed.
    6. To set or justify its initial rates in accordance with the 
benchmark formula, a cable operator first must use FCC Form 1200. This 
form generates a maximum permitted rate as of May 15, 1994 for a 
particular franchise area, based upon various characteristics specific 
to the cable system within that franchise area. These variables include 
channels per tier, number of regulated non-broadcast channels per tier, 
number of subscribers in the local franchise area, number of tier 
changes, the census income level for the franchise area, number of 
additional outlets and remote control units in the franchise area, 
system-wide subscribership, whether the system is part of a multiple 
system operation (``MSO''), and the number of systems in the MSO. A 
benchmark operator may, and sometimes must, adjust the rates permitted 
by Form 1200 to take account of changes in inflation and other costs 
since May 15, 1994. Currently, the operator must use FCC Form 1210 to 
calculate these adjustments. As of the effective date of the Form 1240 
promulgated pursuant to the recently adopted Thirteenth Order on 
Reconsideration, 60 FR 52106 (October 6, 1995), operators may make rate 
adjustments as provided by FCC Form 1240 in lieu of Form 1210. Whereas 
an operator can file Form 1210 as often as once per calendar quarter to 
adjust rates to take account of costs already incurred by the operator, 
Form 1240 will be filed no more than annually but will permit the 
operator to adjust rates based on costs to be incurred within the 
coming year. In addition, operators may increase rates to reflect the 
addition of new programming services to regulated tiers. Our rules 
provide two methods for adjusting rates for the addition of programming 
services. First, an operator can add channels to CPSTs using our 
original ``going-forward'' rules, which allow the operator to charge 
subscribers the cost of the additional programming plus up to an 
additional 7.5% markup on that cost. Second, an operator may add 
programming services under the Commission's more recently adopted 
going-forward option, which allows an operator to charge subscribers up 
to $0.20 per channel for additional channels and up to a further $0.30 
in associated licensing fees. The latter going-forward rules similarly 
require specific decreases in subscriber rates when an operator deletes 
channels from its lineup, depending on when the channel in question was 
added.
    7. Enforcement of the Commission rate regulations is divided 
between qualified local franchising authorities and the Commission. A 
local franchising authority may enforce regulation of the cable 
operator's BST once the Commission has received and approved the local 
franchising authority's certification that it has the legal and 
practical ability to do so. Upon receiving notification that the 
franchising authority has been certified by the Commission to regulate 
rates, a cable operator opting for benchmark regulation must justify 
its existing BST rates pursuant to the benchmark formula. Once 
regulated, the operator also must seek local approval for future BST 
rate increases. The operator seeks such approvals by filing the forms 
described above. The operator also must justify its rates for equipment 
and installations associated with the BST. The franchising authority 
must then review the forms, may request additional information if 
reasonably necessary to complete its review, and ultimately issue an 
order approving or disapproving the rates proposed by the operator.
    8. The participation by local franchising authorities in the 
regulation of cable service is critical. Generally, the Commission 
establishes federal standards and procedures concerning various aspects 
of cable service which local franchising authorities implement. These 
rules include but are not limited to subscriber rates, cable service 
technical standards, and customer service. Local franchising 
authorities are the first line of enforcement of these numerous 
regulations. While the Commission may be on hand, either by statute or 
informally, to help resolve any disputes that may arise between a cable 
provider and a local franchising authority, the responsibility to 
oversee cable service regulations falls primarily on the franchise 
authorities. Generally, the Commission gives significant deference to 
decisions by local franchising authorities. For example, where a cable 
operator appeals a franchising authority's rate decision, the 
Commission will not conduct de novo review of the decision; rather, the 
Commission will defer to the local authority's decision provided there 
is a rational basis for the decision. This process is just one example 
of the Commission's significant reliance upon local franchising 
authorities in the regulation of basic cable service. Moreover, in all 
but the most rare situations, local authorities administer cable 
service regulation without federal assistance.
    9. An operator's CPST is subject to regulation directly by the 
Commission. Commission enforcement of CPST rate regulation is triggered 
by the filing of a complaint by a subscriber or franchising authority 
or other relevant state or local regulatory authority. Upon the filing 
of 

[[Page 63494]]
such a complaint, the operator must file the necessary forms with the 
Commission, which then follows a review process analogous to that used 
by local franchising authorities regulating BST rates.
    10. The benchmark approach described above requires operators to 
establish a separate rate structure in each franchise area served, 
since many of the variable used to generate the maximum rate are 
franchise specific. For example, while the data on whether the system 
is part of an MSO will be identical throughout all of the franchise 
areas served, the census income and subscribership variables are 
measured on a franchise area basis and necessarily will vary among 
franchise areas. Similarly, costs associated with PEG channels and 
other franchise-related costs may vary among franchise areas. A 
disparity in rates among franchise areas will occur even if the 
operator provides service to multiple franchise areas through a single, 
integrated cable system, since even in that case rates are set 
separately for each franchise area on the basis of variables specific 
to the franchise area.
    11. Relatedly, we note that the acquisition and clustering of 
neighboring cable systems by MSOs has become fairly common. An operator 
seeking to establish uniform rates and services for clustered systems 
likely will need to add channels to the programming lineups of certain 
system and delete channels from the lineups of other systems. While the 
Commission's ``going-forward'' rate regulations typically provide 
operators with the flexibility to establish a uniform package of 
programming services, the operator's efforts to equalize prices will be 
severely constrained because the rules quite specifically dictate 
permitted changes in rates that must accompany changes in level of 
service and do not permit regional averaging of the data used to 
complete rates.

III. Discussion

    12. We tentatively conclude that permitting operators serving 
multiple franchise areas to establish uniform services at uniform rates 
in all such areas would be beneficial for subscribers, franchising 
authorities, and operators. For example, facilitating an operator's 
ability to advertise a single rate for cable service over a broad 
geographic region may lower marketing costs and enhance the operator's 
efficiency in responding to competition from alternative service 
providers that typically may establish and market uniform services and 
rates without regard to franchise area boundaries. The increased 
ability of operators to compete resulting from this approach may 
increase penetration in a particular franchise area. Such an approach 
could reduce consumer confusion because a subscriber moving from one 
part of the operator's service area to another would not experience any 
difference in price or service offerings. We explore below two 
alternatives for permitting an operator to establish uniform rates for 
uniform services across multiple franchise areas, while fully 
protecting subscribers from unreasonable rates, and solicit comment on 
these and any other possible approaches. Before discussing these two 
methodologies, we will identify several issues that will arise 
regardless of which methodology we ultimately adopt.
    13. Cable operators currently serve multiple franchise areas using 
a variety of system structure; some operators serve multiple areas with 
a single, integrated cable system while others use multiple, distinct 
systems. An operator's rates are not dependent on whether single or 
multiple systems are used to deliver service. We propose that under a 
uniform rate0-setting option, a cable operator be allowed to establish 
uniform rates for uniform service offerings in multiple franchise areas 
regardless of whether the operator serves the multiple franchise areas 
with on integrated cable system (i.e., one ``headend'') or with 
multiple separate cable systems, and seek comment on this proposal.
    14. We believe that cable operators primarily will seek to 
establish uniform rates for systems serving multiple franchise areas 
that are located within some measure of proximity to each other, 
perhaps for purposes of regional adverting. Moreover, it is likely that 
the service costs and characteristics, such as the number of channels, 
density of subscribers, and median income level, associated with 
various franchise areas typically will vary as the geographic distances 
increase between the multiple franchise areas. This circumstance can 
increase the complexity of uniform rate-setting across multiple 
franchise areas. We note that a cable operator's obligation under the 
``must-carry'' rules to carry local over-the-air broadcast stations, as 
well as the operator's copyright fee responsibilities, are determined 
based on the Area of Dominant Influence (``ADI'') in which the system 
is located. Section 4 of the 1992 Cable Act specifies that a commercial 
broadcasting station's market shall be determined in the manner 
provided in Sec. 73.3555(d)(3)(i) of the Commission's Rules, as in 
effect on May 1, 1991. This section of the rules, now redesignated 
Sec. 73.3555(e)(3)(i), refers to Arbitron's ADI for purposes of the 
broadcast multiple ownership rules. Section 76.55(e) of the 
Commission's Rules provides that the ADIs to be used for purposes of 
the initial implementation of the mandatory carriage rules are those 
published in Arbitron's 1991-1992 Television Market Guide. This 
Arbitron Guide is available at the Federal Communications Commission, 
2033 M Street, N.W., Room 200, Washington, D.C. We note that Arbitron, 
the company that establishes the boundaries for ADIs, has ceased 
updating its ADI market list. Commission staff is currently exploring 
the designation of a replacement measure. Accordingly, we seek comment 
on whether the ADI, or some other region, would be appropriate for the 
setting of uniform rates. We seek comment on additional benefits of 
limiting uniform rate-setting to franchise areas located within the 
same ADI or similar region, as well as any difficulties resulting from 
this limitation. We further seek comment on the benefits or detriments 
of limiting rates to franchise areas located within the same county or 
state. Finally, we seek comment on the costs and benefits of permitting 
cable operators to select the region in which to set uniform rates 
under a uniform rate-setting method.
    15. Below we describe two possible approaches for permitting cable 
operators to establish uniform rates for uniform packages of services 
offered to multiple franchise areas. We invite comment from interested 
parties as to these approaches and we seek suggestions as to any other 
alternatives that would further the goals discussed above.
    16. The first approach would work generally as follows. A cable 
operator first would determine or identify BST and CPST rates 
established in each local franchise area pursuant to our existing rate 
regulations, as adjusted to reflect permitted or required rate changes 
resulting from the addition or deletion of channels necessary to 
structure uniform tiers throughout the franchise areas served. We seek 
comment on whether an operator would similarly follow our existing 
regulations concerning rates for equipment. BST rates then would be 
equalized by reducing all BST rates charged in the relevant region to 
the lowest regulated BST rate charged in any one franchise area located 
in the region. The new uniform BST rate would now constitute the 
operator's maximum permitted rate for basic cable service in all the 
relevant franchise areas. The operator then would add the total amount 
of ``lost'' revenue resulting from the various BST rate reductions to 
the total CPST 

[[Page 63495]]
revenues to which the operator is otherwise entitled, under our 
existing rules, for all franchise areas in the relevant region. The 
operator then would determine a uniform CPST rate by dividing the total 
of the displaced BST revenues and existing CPST revenues by all CPST 
subscribers in the region. Thereafter, the operator would apply our 
going-forward policies and annual rate adjustment regulations on a 
regional basis. A numerical example of this option can be found below.
    17. In some instances, cable systems may be regulated in certain 
franchise areas within the region and unregulated in others. We 
proposed that operators be free to establish uniform rates under the 
uniform rate-setting approach in unregulated as well as regulated 
franchise areas for purposes of uniformity. We believe that in such 
situations, an operator may elect to base uniform rates in part on data 
from unregulated areas only if such uniform rates also are charged in 
the unregulated areas. We believe that this optional approach further 
enhances operators' flexibility in establishing uniform rates. 
Moreover, uniform rates calculated pursuant to the method ultimately 
adopted in this proceeding, and charged in unregulated areas, should 
increase an operator's regulatory certainty with respect to whether the 
subscriber rates charged in the unregulated areas are reasonable under 
our rules should the operator later become subject to rate regulation 
in one of those areas. An operator later becoming subject to regulation 
would follow our existing procedures for establishing regulated rates, 
including determining an initial rate pursuant to our benchmark formula 
or cost-of-service rules, and seeking the approval of rates from the 
local franchising authority. We seek comment on this approach. We also 
seek comment on how an operator's regulated rates for equipment may 
affect the setting of uniform rates.
    18. An operator's rates would remain subject to the dual 
jurisdictions of the affected local franchising authorities and the 
Commission. Upon the initial application of this approach, BST rates 
would be unchanged in at least one franchise area and would be reduced 
in each franchise area with higher rates. Thus, this proposal may 
benefit many subscribers who receive only basic cable service, and 
should be cost-neutral to the remaining basic-only subscribers in the 
franchise area(s) with the lowest current BST rates. Certified local 
franchising authorities would retain jurisdiction to ensure that the 
operator's BST rates are in compliance with our rules. The operator 
would recoup the costs of reduced BST rates through the averaged CPST 
rates over which the Commission would retain jurisdiction. We seek 
comment on this proposed approach, including comment on: (1) the costs 
and benefits of requiring operators to reduce BST rates to the lowest 
common rate under this option, (2) the impact of an operator's 
redistribution of BST rate reductions among CPST rates charged in 
neighboring franchise areas, and (3) the application of our going-
forward policies and annual rate adjustment on a regional basis. We 
note that our rules allow franchising authorities to review and approve 
operators' proposed BST rates and increases to those rates. Under this 
option, however, pre-approval of uniform BST rates by franchising 
authorities generally will be unnecessary given that subscriber rates 
typically will decrease or remain unchanged. We seek comment on the 
benefits and costs of this approach for local franchising authorities, 
and whether this approach will protect subscribers from unreasonable 
rates.
    19. Under the second possible approach for establishing uniform 
rates for uniform services, a cable operator would determine or 
identify BST and CPST rates charged in each of the relevant franchise 
areas pursuant to our existing rate regulations, as adjusted for rate 
changes resulting from the addition or deletion of channels necessary 
to structure uniform service tiers. We seek comment on whether an 
operator similarly would follow our existing regulations concerning 
rates for equipment. After aggregating the BST rates and revenues for 
all the franchise areas in the region, and then the CPST rates and 
revenues for all franchise areas, the operator would determine a single 
``blended'' rate for BSTs, and a single blended rate for CPSTs, to be 
charged in all franchise areas in the region pursuant to a formula 
designed by the Commission. The blended rates for BSTs and CPSTs would 
be determined by averaging the operator's total BST and CPST rates, 
respectively, on a per subscriber basis for all subscribers in the 
region, in order to ensure that the establishment of uniform rates is 
revenue-neutral to the cable operator. A numerical example of this 
option can be found below. The operator would be required to justify 
its blended rates to each local franchising authority certified to 
regulate rates. The operator would be free, of course, to establish 
this rate in uncertified areas, for purposes of uniformity across a 
wide region. As noted for the other proposed approach, we propose that 
an operator may elect a base uniform rates in part on data from 
unregulated areas only if such uniform rates also are charged in the 
unregulated areas, and believe that similar benefits for operators and 
subscribers will result from this requirement under both possible 
approaches. We seek comment on this tentative conclusion, as well as 
comment on other benefits and detriments of the cable operator basing 
the blended rate in part on data from such unregulated areas. We also 
seek comment on how an operator's establishment of uniform rates in 
uncertified areas may impact on the operator's ability to later 
implement required refunds or prospective rate reductions in certified 
areas.
    20. After setting initial uniform rates, the operator would apply 
our going-forward policies and the recently adopted annual adjustment 
method on a regional basis to adjust future rates. Again, the dual 
jurisdictional boundaries of franchising authorities and the Commission 
would remain intact. We seek comment on this approach generally, 
including comment on: (1) any associated burdens for regulated cable 
companies and regulators, (2) whether this approach would protect cable 
subscribers from unreasonable rates in accordance with the 1992 Cable 
Act, (3) the proposed calculation of the blended rate, and (4) the 
application of our going-forward policies and annual adjustment method 
on a regional basis. We note that under this approach subscribers' BST 
rates may increase in certain jurisdictions (and decrease in others) as 
BST rates are adjusted to establish uniformity. We seek comment on the 
benefits and costs of adopting this formula given that certain BST 
subscribers may experience rate increases.
    21. Both proposed uniform rate setting methodologies will result in 
increases in CPST rates for some subscribers. In light of the cost 
savings to cable operators likely to be created by implementation of 
uniform rates, we seek comment on whether it is appropriate to either 
limit the amount of increase a CPST subscriber must pay in a given year 
as a result of this institution of uniform rates or to phase-in 
significant increases over a two-year period. Comments should also 
address what administrative burdens such a limitation or phased-in 
increase would create for operators.
    22. Several potential timing circumstances may affect the 
implementation of a uniform rate-setting approach. For example, where 
an operator has submitted justifications, the operator may be subject 
to multiple 

[[Page 63496]]
local tolling orders of varying durations which can complicate 
implementation of uniform BST rates. After the initial 30 day notice 
period that must precede any rate adjustment, franchising authorities 
can toll the effective date of a proposed rate for an additional 90 
days in benchmark cases or 150 days in cost of service cases. We seek 
suggestions of procedures that would permit a cable operator in this 
situation to establish uniform rates as expeditiously as possible. We 
solicit comment on allowing proposed uniform rates to take effect 
automatically after some period of time, subject to ultimate resolution 
in a later ``truing-up'' process, in which rate discrepancies could be 
reflected in rates for the following year.
    23. In proposing to give cable operators flexibility to charge 
uniform rates for uniform services, we in no way seek to circumscribe 
the authority of local franchising authorities to negotiate franchise-
specific terms in their agreements with cable operators. For example, 
we note that local franchising authorities typically establish 
requirements in a franchise agreement with respect to the designation 
or use of the franchised cable operator's channel capacity of PEG 
services. This could result in a cable system having a non-uniform 
channel line-up within franchise areas where it seeks to establish 
uniform rates. We seek comment on whether our uniform rate proposals 
require any modification or adjustment to accommodate such non-uniform 
offerings.
    24. A further problem may arise because PEG requirements and other 
franchise obligations will vary between franchise areas, such that the 
operator's ``franchise related costs,'' one of the variables used to 
establish and adjust rates, also will vary among franchise areas. We 
seek to provide cable operators with uniform rate alternatives while 
allowing franchising authorities flexibility to negotiate franchise 
terms and conditions that respond to particular community needs. We 
also seek to ensure that the uniform rate proposal does not allow 
franchise-specific costs to be shifted from one community to another. 
One alternative for resolving this issue would be to permit the cable 
operator simply to itemize and charge for franchise-related costs 
outside the uniform rate-setting formula. We seek comment on this 
approach. We also seek suggestions of other methods that could 
compensate operators for legitimately incurred expenses while 
protecting subscribers from unreasonable rates. Finally, we seek 
comment on additional potential obstacles to the establishment of 
uniform rates and service offerings, and possible resolutions to such 
obstacles.

IV. Initial Regulatory Flexibility Act Analysis

    25. Pursuant to Section 603 of the Regulatory Flexibility Act, the 
Commission has prepared the following initial regulatory flexibility 
analysis (``IRFA'') of the expected impact of these proposed policies 
and rules on small entities. Written public comments are requested on 
the IRFA. These comments must be filed in accordance with the same 
filing deadlines as comments on the rest of the NPRM, but they must 
have a separate and distinct heading designating them as responses to 
the regulatory flexibility analysis. The Secretary shall cause a copy 
of the NPRM, including the initial regulatory flexibility analysis, to 
be sent to the Chief Counsel for Advocacy of the Small Business 
Administration in accordance with Section 603(a) of the Regulatory 
Flexibility Act, Pub. L. No. 96-354, 94 Stat. 1164, 5 U.S.C. 601 et 
seq. (1981).
    26. Reason for Action. The Commission has perceived that our cable 
service rate regulations may impede a cable operator's ability to 
establish uniform rates for uniform services offered in multiple 
clustered franchise areas. We believe that allowing operators to set 
such uniform rates may facilitate operators' regional marketing of 
services, reduce administrative burdens on both regulators and cable 
companies, and reduce consumer confusion resulting from disparate 
rates. The NPRM proposes two possible alternatives for setting uniform 
rates, and solicits comments on further approaches.
    27. Objectives. To explore a method under which a cable operator 
could establish uniform rates for uniform services offered in multiple 
franchise areas.
    28. Legal Basis. Action as proposed for this rulemaking is 
contained in Section 623 of the Communications Act of 1934, as amended, 
47 U.S.C. Sec. 543.
    29. Description, Potential Impact and Number of Small Entities 
Affected. The proposals, if adopted, will not have a significant effect 
on a substantial number of small entities.
    30. Reporting, Recordkeeping and Other Compliance Requirements. 
None.
    31. Federal Rules which Overlap, duplicate or Conflict with these 
Rules. None.
    32. Any Significant Alternatives Minimizing Impact on Small 
Entities and Consistent with Stated Objectives. None.

V. Paperwork Reduction Act

    33. This NPRM contains either a proposed or modified information 
collection. The Commission, as part of its continuing effort to reduce 
paperwork burdens, invites the general public and the Office of 
Management and Budget (OMB) to comment on the information collections 
contained in this NPRM, as required by the Paperwork Reduction Act of 
1995, Pub. L. No. 104-13. Public and agency comments are due to the 
same time as other comments on this NPRM; OMB comments are due 60 days 
from date of publication of this NPRM in the Federal Register. Comments 
should address: (a) whether the proposed collection of information is 
necessary for the proper performance of the functions of the 
Commission, including whether the information shall have practical 
utility; (b) the accuracy of the Commission's burden estimates; (c) 
ways to enhance the quality, utility, and clarity of the information 
collected; and (d) ways to minimize the burden of the collection of 
information on the respondents, including the use of automated 
collection techniques or other forms of information technology.

VI. Procedural Provisions

    34. Ex parte Rules--Non-Restricted Proceeding. This is a non-
restricted notice and comment rulemaking proceeding. Ex parte 
presentations are permitted, except during the Sunshine Agenda period, 
provided that they are disclosed as provided in Commission's rules. See 
generally 47 CFR Secs. 1.1202, 1.1203, and 1.1206(a).
    35. To file formally in this proceeding, you must file an original 
plus four copies of all comments, reply comments, and supporting 
comments. If you want each Commissioner to receive a personal copy of 
your comments and reply comments, you must file an original plus nine 
copies. Comments are due by January 12, 1996, and reply comments are 
due by February 12, 1996. You should send comments and reply comments 
to Office of the Secretary, Federal Communications Commission, 1919 M 
Street NW., Washington, DC 20554. Comments and reply comments will be 
available for public inspection during regular business hours in the 
FCC Reference Center, Room 239, Federal Communications Commission, 1919 
M Street NW., Washington, DC 20554.
    36. In addition to filing comments with the Secretary, a copy of 
any comments on the information collections contained herein should be 
submitted to Dorothy Conway, Federal 

[[Page 63497]]
Communications Commission, Room 234, 1919 M Street, N.W., Washington, 
DC 20554, or via the Internet to [email protected], and to Timothy Fain, 
OMB Desk Officer, 10236, NEBO, 725--17th Street, N.W., Washington, DC 
20503 or via the Internet to [email protected].
    37. For additional information concerning the information 
collections contained in this NPRM contact Dorothy Conway at 202-418-
0217, or via the Internet at [email protected].

VII. Ordering Clauses

    38. It is ordered that, pursuant to Sections 623 of the 
Communications Act of 1934, as amended, 47 U.S.C. 543 notice is hereby 
given of proposed amendments to Part 76, in accordance with the 
proposals, discussions, and statement of issues in this NPRM, and that 
COMMENT IS SOUGHT regarding such proposals, discussion, and statement 
of issues.
    39. It is further ordered that the Secretary shall send a copy of 
this NPRM, including the Initial Regulatory Flexibility Analysis, to 
the Chief Counsel for Advocacy of the Small Business Administration in 
accordance with paragraph 603(a) of the Regulatory Flexibility Act, 
Public Law 96-354, 94 Stat. 1164, 5 U.S.C. Secs. 601 et seq. (1981).

List of Subjects in 47 CFR Part 76

    [Cable television.]

Federal Communications Commission.
William F. Caton,
Acting Secretary.

Examples of Proposed Methods

----------------------------------------------------------------------------------------------------------------
                          Current rates                             Franchise A     Franchise B     Franchise C 
----------------------------------------------------------------------------------------------------------------
BST.............................................................             $10             $11             $11
CPST............................................................              21              21              20
                                                                 -----------------------------------------------
      Total.....................................................              31              32             31 
----------------------------------------------------------------------------------------------------------------
* Each franchise area has 11,000 BST subscribers and 10,000 CPST subscribers.                                   

First Proposed Method:

    Step 1: BST rates reduced to lowest in region: BST rates in 
franchise areas ``B'' and ``C'' reduced to $10.
    Step 2: ``Lost'' BST revenues is totaled; $1/subscriber in 
franchise areas ``B'' and ``C''=($1 x 11,000)+($1 x 11,000)=$22,000.
    Step 3: Current CPST revenue is totaled: 
($21 x 10,000)+($21 x 10,000)+($20 x 10,000)=$620,000.
    Step 4: Current CPST revenue is added to Lost BST revenue to create 
new CPST revenue requirement: $620,000+$22,000=$642,000.
    Step 5: New CPST revenue requirement is divided evenly by all CPST 
subcribers in the region to calculate new uniform CPST rate: $642,000/
30,000=$21.40.

----------------------------------------------------------------------------------------------------------------
                          Current rates                             Franchise A     Franchise B     Franchise C 
----------------------------------------------------------------------------------------------------------------
BST.............................................................          $10.00          $10.00          $10.00
CPST............................................................           21.40           21.40           21.40
                                                                 -----------------------------------------------
      Total.....................................................           31.40           31.40           31.40
----------------------------------------------------------------------------------------------------------------

    Franchise A: no change in BST rates; increase in CPST and overall 
rates.
    Franchise B: decrease in BST rates; increase in CPST rates; 
decrease in overall rates.
    Franchise C: decrease in BST rates; increase in overall rates.

Second Proposed Method:

    Step 1: Average current BST rates on a per BST subscriber basis to 
calculate average, uniform BST rate:

$10(11,000)+$11(11,000)+$11(11,000)=$10.67/BST subscriber.

    Step 2: Average current CPST rates on a per CPST subscriber basis 
to calculate average, uniform CPST rate:

$21(10,000)+$21(10,000)+$20(10,000)=$20.67/CPST subscriber.

    Total: $31.34/subscriber.

----------------------------------------------------------------------------------------------------------------
                            New rates                               Franchise A     Franchise B     Franchise C 
----------------------------------------------------------------------------------------------------------------
BST.............................................................          $10.67          $10.67          $10.67
CPST............................................................           20.67           20.67           20.67
                                                                 -----------------------------------------------
      Total.....................................................           31.34           31.34           31.34
----------------------------------------------------------------------------------------------------------------

    Franchise A: increase in BST rates; decrease in CPST; increase in 
overall rates.
    Franchise B: decrease in BST rates; decrease in CPST rates; 
decrease in overall rates.
    Franchise C: decrease in BST rates; increase in CPST rates; 
increase in overall rates.
    The results under each proposed method will vary widely depending 
on the current rates and the numbers of subscribers in each franchise 
area. In addition, these examples do not account for the impact of 
channel changes that may be necessary to achieve uniform packages of 
services.

[FR Doc. 95-29807 Filed 12-8-95; 8:45 am]
BILLING CODE 6712-01-M

Complete official Federal Register PDF

FR Doc. 95-29345 Coast Guard Board for Correction of Military Records; Procedural Regulation
[Federal Register Volume 60, Number 237 (Monday, December 11, 1995)]
[Proposed Rules]
[Pages 63489-63491]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-29345]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Office of the Secretary

33 CFR Part 52

[OST Docket No. OST-95-878; Notice 95-14]
RIN 2105-AC31

Coast Guard Board for Correction of Military Records; Procedural 
Regulation

AGENCY: Office of the Secretary, DOT.

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: The Department proposes to amend its regulations with respect 
to reconsideration of final decisions of the Board for Correction of 
Military Records of the Coast Guard (Board). This action is taken on 
the Department's initiative in order to streamline processing of these 
cases and to clarify the circumstances under which final decisions can 
be reconsidered. The proposed amendment will make it possible for the 
Board to expedite reconsideration and will increase the resources 
available to meet the requirement that all cases be decided within 10 
months of the receipt of a completed application.

DATES: Comments must be submitted on or before February 9, 1996. Late-
filed comments will be considered to the extent practicable.

ADDRESSES: Comments should be mailed, preferably in duplicate, to 
Docket No. OST-95-878, Documentary Services Division, C-55, PL-401, 
U.S. Department of Transportation; 400 Seventh Street SW, Washington, 
D.C. 20590. Comments will be available for review by the public at this 
address from 9 a.m. through 5 p.m., Monday 

[[Page 63490]]
through Friday. Persons wishing acknowledgment of their comments' 
receipt should include a stamped, self-addressed postcard. The 
Documentary Services Division will time and date-stamp the card and 
return it to the commenter.

FOR FURTHER INFORMATION CONTACT: Robert H. Joost, Chairman, Board for 
Correction of Military Records of the Coast Guard, C-60, Office of the 
General Counsel, U.S. Department of Transportation, 400 Seventh Street 
SW, Washington, D.C. 20590-0001. Telephone: (202) 366-9335.

SUPPLEMENTARY INFORMATION:

The Board Process With Respect to Reconsideration

    The Secretary of Transportation, acting through the Department of 
Transportation Board for Correction of Military Records of the Coast 
Guard, is authorized by section 1552 of title 10, United States Code, 
to correct the military records of serving, separated and retired Coast 
Guard military personnel when there is an error or injustice in a 
military record.
    After a final decision has been reached on an application for 
correction, the decision can be appealed by the applicant in an 
appropriate Federal court. There is no right, under 10 U.S.C. 1552, to 
administrative reconsideration of a final decision, but applicants have 
always been allowed to request such reconsideration by regulation.
    Under the present DOT BCMR regulation with respect to 
reconsideration (33 CFR 52.67(b)), the only basis for reconsideration 
is the presentation of ``newly discovered evidence or information, not 
previously considered by the Board * * * [which] would, if true, result 
in a determination other than that originally made.''
    The present regulation does not explicitly authorize 
reconsideration if the applicant offers evidence showing that material 
legal or factual error was made by the Board in its original decision. 
Also, it does not provide a means for expeditious handling of requests 
for reconsideration that do not meet the threshold requirements for 
review. Because of the current statutory direction that Board decisions 
be issued within 10 months of receiving a complete application, and the 
resulting pressure on Board resources, the Board must find ways to 
increase its efficiency of operation. An expedited process for handling 
facially defective reconsideration requests is proposed as an 
appropriate step in that direction. In addition, the present rule does 
not require that a request for reconsideration be made within a certain 
time period.

The Proposal

    The proposed rule would explicitly authorize the Board to consider 
applications for reconsideration upon a showing that the Board 
committed legal or factual error in the original determination that 
could have resulted in a determination other than that made.
    The proposed rule would authorize the Chairman not to docket 
applications for reconsideration that do not meet the threshold 
requirements for reconsideration, i.e. applications that only (1) 
present evidence or information previously considered by the Board, (2) 
present new evidence or information that is clearly not material to the 
result in the case, (3) present new evidence or information that could 
have been submitted earlier with the exercise of reasonable diligence, 
or (4) make arguments as to legal or factual error that are clearly not 
material to the result. The phrase ``otherwise comes to the attention 
of the Board'' has been deleted, however, as unnecessary.
    The proposed rule would provide that no Board member who considered 
an applicant's original application for correction would participate in 
the consideration of that person's application for reconsideration. 
There will, to the extent practicable, be a related prohibition on the 
staff member; the person who drafted the original decision would not 
draft the reconsideration decision. In light of these safeguards, it 
would not be necessary for the Secretary's designate to approve each 
denial of a reconsideration request, thus expediting the review 
process.

Section-by-Section Analysis

    Section 52.67, Reconsideration, is rewritten to add the new 
requirements outlined above, and to simplify the procedure on 
reconsideration.
    Paragraph (a) provides that reconsideration of an application may 
occur if the applicant meets at least one of two sets of criteria. The 
first of these, paragraph (a)(1), directs reconsideration if an 
applicant presents evidence or information that was not previously 
considered by the Board if that evidence or information could result in 
a different determination and if it ``could not have been presented to 
the Board prior to its original determination if the applicant had 
exercised reasonable diligence.'' The second of these, paragraph 
(a)(2), directs reconsideration if an applicant presents evidence or 
information that the Board committed legal or factual error in the 
original determination that could have resulted in a different result.
    Paragraph (b) directs the Chairman to docket a reconsideration 
request if it meets the requirements of paragraph (a)(1) or (a)(2). If 
neither of these requirements is met, the Chairman shall not docket the 
request, and shall return the application to the applicant with a 
statement that no action is being taken due to a failure to meet the 
threshold requirements for docketing.
    Paragraph (c) provides that the Board shall consider each 
application for reconsideration that has been docketed under paragraph 
(b). This paragraph also provides that the final decision on 
reconsideration shall involve a different Board than the one that 
initially considered the application.
    Paragraph (d) provides that the Board's final action on docketed 
application for reconsideration shall be the same as if they were 
original applications for correction.
    Paragraph (e) provides that an applicant's request for 
reconsideration must be filed within two years after the issuance of a 
final decision, subject to other legal rules such as the Soldier's and 
Sailor's Civil Relief Act. The two-year statute of limitations 
parallels the time period allowed by Article 73 of the Uniform Code of 
Military Justice for petitioning for a new trial after the approval of 
a court-martial sentence on the grounds of newly discovered evidence or 
fraud on the court. If the Chairman dockets an applicant's request for 
reconsideration under paragraph (b), the two-year requirement may be 
waived if the Board finds that it would be in the interest of justice 
to consider the request despite its untimeliness.

Regulatory Process Matters

    This NPRM does not propose a significant rule under Executive Order 
12681 or the Department's Regulatory Policies and Procedures. The costs 
of a purely procedural change in the Board's rule would be negligible. 
The NPRM would not, if adopted, have a significant economic effect on a 
substantial number of small entities, as defined in the Regulatory 
Flexibility Act. There are no Federalism factors to warrant the 
preparation of a Federalism assessment.

List of Subjects in 32 CFR Part 52

    Administrative practice and procedure, Archives and records, 
Military personnel, Military records.

[[Page 63491]]

    Issued this 24th day of November at Washington, DC.
Mortimer L. Downey,
Deputy Secretary of Transportation.

    For the reasons set forth in the preamble, the Office of the 
Secretary of the U.S. Department of Transportation proposes to amend 33 
CFR Part 52 as follows:

PART 52--[AMENDED]

    1. The authority citation for Part 52 is revised to read as 
follows:

    Authority: 10 U.S.C. 1552; 49 U.S.C. 108; Pub. L. 101-225, 103 
Stat. 1908, 1914.

    2. Section 52.67 is revised to read as follows:

Sec. 52.67  Reconsideration.

    (a) Reconsideration of an application for correction of a military 
record shall occur if an applicant requests it and the request meets 
the requirements set forth in paragraph (a)(1) or (a)(2) of this 
section.
    (1) An applicant presents evidence or information that was not 
previously considered by the Board that could result in a determination 
other than that originally made. Evidence or information may only be 
considered if it could not have been presented to the Board prior to 
its original determination if the applicant had exercised reasonable 
diligence; or
    (2) An applicant presents evidence or information that the Board, 
or the Secretary as the case may be, committed legal or factual error 
in the original determination that could have resulted in a 
determination other than that originally made.
    (b) The Chairman shall docket a request for reconsideration of a 
final decision if it meets the requirements of paragraph (a)(1) or 
(a)(2) of this section. If neither of these requirements is met, the 
Chairman shall not docket such request.
    (c) The Board shall consider each application for reconsideration 
that has been docketed. None of the Board members who considered an 
applicant's original application for correction shall participate in 
the consideration of that applicant's application for reconsideration.
    (d) Action by the Board on a docketed application for 
reconsideration is subject to Sec. 52.64(b).
    (e) An applicant's request for reconsideration must be filed within 
two years after the issuance of a final decision, except as otherwise 
required by law. If the Chairman dockets an applicant's request for 
reconsideration, the two-year requirement may be waived if the Board 
finds that it would be in the interest of justice to consider the 
request despite its untimeliness.

[FR Doc. 95-29345 Filed 12-8-95; 8:45 am]
BILLING CODE 4910-62-P

Complete official Federal Register PDF

Setzen Sie Ihre Recherche in ChatGPT oder Claude fort

Verbinden Sie Omnilex, um den Rechtskorpus über Ihren KI-Assistenten zu durchsuchen.