issue-1995-12-27•Federal Register proposed rules — 1995-12-27
Federal Register proposed rules — 1995-12-27
issue-1995-12-27Federal Register proposed rules — 1995-12-27Proposed 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. 95-31326 Country of Origin Marking
[Federal Register Volume 60, Number 248 (Wednesday, December 27, 1995)]
[Proposed Rules]
[Pages 66952-66953]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-31326]
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DEPARTMENT OF THE TREASURY
Customs Service
19 CFR Part 134
RIN 1515-AB82
Country of Origin Marking
AGENCY: U. S. Customs Service, Department of the Treasury.
ACTION: Proposed rule; extension of comment period.
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SUMMARY: On November 16, 1995, Customs published in the Federal
Register a document which proposed to amend the Customs Regulations to
ease the requirement that whenever words appear on an imported article
indicating the name of a geographic location other than the true
country of origin of the article, the country of origin marking always
must appear in close proximity to those words. Comments were to be
received on or before January 16, 1996. This document extends for an
additional 30 days the period of time within which interested members
of the public may submit comments on the proposed amendments.
DATES: Comments must be received on or before February 15, 1996.
ADDRESSES: Written comments (preferably in triplicate) may be addressed
to the Regulations Branch, U. S. Customs Service, Franklin Court, 1301
Constitution Avenue, NW., Washington, DC 20229. Comments submitted may
be inspected at the Regulations Branch, Office of Regulations and
Rulings, Franklin Court, 1099 14th Street, NW., Suite 4000, Washington,
DC.
FOR FURTHER INFORMATION CONTACT: Anthony Tonucci, Office of Regulations
and Rulings, 202-482-6980.
SUPPLEMENTARY INFORMATION:
Background
On November 16, 1995, Customs published in the Federal Register (60
FR 57559) a notice of proposed rulemaking which set forth proposed
amendments to part 134 of the Customs Regulations (19 CFR Part 134)
regarding country of origin marking. The document proposed to ease the
requirement that whenever words appear on an imported article
indicating
[[Page 66953]]
the name of a geographic location other than the true country of origin
of the article, the country of origin marking always must appear in
close proximity to those words. The document solicited public comments
that were to be received on or before January 16, 1996.
Customs has been requested to extend the period of time for
comments in order to afford interested parties additional time to study
the proposed regulatory changes and prepare responsive comments.
Customs believes that it would be appropriate to grant the request.
Accordingly, the period of time for the submission of comments is being
extended 30 days.
Dated: December 20, 1995.
Stuart P. Seidel,
Assistant Commissioner, Office of Regulations and Rulings.
[FR Doc. 95-31326 Filed 12-26-95; 8:45 am]
BILLING CODE 4820-02-P
Complete official Federal Register PDF
FR Doc. 95-31315 Supervisory Committee Audits and Verifications
[Federal Register Volume 60, Number 248 (Wednesday, December 27, 1995)]
[Proposed Rules]
[Page 66952]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-31315]
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NATIONAL CREDIT UNION ADMINISTRATION
15 CFR Part 701
Supervisory Committee Audits and Verifications
AGENCY: National Credit Union Administration (NCUA).
ACTION: Proposed rule; extension of comment period.
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SUMMARY: On November 2, 1995 (60 FR 55663), the National Credit Union
Administration (NCUA) published for public comment a proposed rule
regarding credit union supervisory committee audits and verifications.
The comment period for this proposed rule was to have expired on
January 2, 1996. A national trade association has requested an
additional two weeks to respond. In view of this request, the NCUA
Board has decided to extend the comment period on the proposed rule for
an additional sixteen days. The extended comment period now expires
January 18, 1996.
DATES: The comment period has been extended and now expires January 18,
1996. Comments must be received on or before January 18, 1996.
ADDRESSES: Comments should be directed to Becky Baker, Secretary of the
Board. Mail or hand-deliver comments to: National Credit Union
Administration Board, 1775 Duke Street, Alexandria, VA 22314-3428. Fax
comments to (703) 518-6319. Post comments on NCUA's electronic bulletin
board by dialing (703) 518-6480. Please send comments by one method
only.
FOR FURTHER INFORMATION CONTACT:
Karen Kelbly, Accounting Officer, Office of Examination and Insurance
(703) 518-6360, or Michael McKenna, Attorney, Office of General Counsel
(703) 518-6540, at the above address.
By the National Credit Union Administration Board on December
19, 1995.
Becky Baker,
Secretary of the Board.
[FR Doc. 95-31315 Filed 12-26-95; 8:45 am]
BILLING CODE 7535-01-M
Complete official Federal Register PDF
FR Doc. 95-31295 Public Meeting With Manufacturers of School Buses and School Transportation Providers
[Federal Register Volume 60, Number 248 (Wednesday, December 27, 1995)]
[Proposed Rules]
[Pages 66953-66955]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-31295]
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DEPARTMENT OF TRANSPORTATION
49 CFR Part 571
[Docket No. 95-98-No1]
Public Meeting With Manufacturers of School Buses and School
Transportation Providers
AGENCY: National Highway Traffic Safety Administration (NHTSA), DOT.
ACTION: Notice of public meeting; request for comments.
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SUMMARY: This document announces a public meeting at which NHTSA will
seek information from school bus manufacturers, school transportation
providers, and other members of the public on issues related to the
transportation of school children. NHTSA is also requesting suggestions
for actions with respect to NHTSA's regulations and Federal Motor
Vehicle Safety Standards (FMVSS) that govern the manufacture of school
buses. This document also invites written comments on the same subject.
[[Page 66954]]
DATES: Public meeting: The meeting will be held on February 14, 1996 at
9:00 a.m. Those wishing to make oral presentations at the meeting
should contact Charles Hott, at the address or telephone number listed
below, by February 2, 1996.
Written comments: Written comments may be submitted to the agency
and must be received by March 15, 1996.
ADDRESSES: Public meeting: The public meeting will be held at the
following location: Tysons West Park Hotel, 8401 West Park Drive,
McLean, VA 22102, Tel: (703) 734-2800.
Written comments: All written comments (preferably 10 copies)
should be mailed to the Docket Section, National Highway Traffic Safety
Administration, Room 5109, 400 7th Street, SW., Washington, DC 20590.
Please refer to the docket number when submitting written comments.
FOR FURTHER INFORMATION CONTACT: Charles Hott, Office of Vehicle Safety
Standards, NPS-15, NHTSA, 400 7th Street, SW., Washington, DC 20590
(telephone 202-366-0247, Fax: 202-366-4329).
SUPPLEMENTARY INFORMATION:
Regulatory Reform
Calling for a new approach to the way Government regulates the
private sector, President Clinton asked Executive Branch agencies to
improve the regulatory process. Specifically, the President requested
that agencies: (1) Cut obsolete regulations; (2) reward agency and
regulator performance by rewarding results, not red tape; (3) create
grassroots partnerships by meeting with those affected by regulations
and other interested parties; and (4) use consensual rulemaking, such
as regulatory negotiation, more frequently.
This meeting is one of NHTSA's announced public meetings to create
grassroots partnerships with regulated industries and other affected
parties that do not deal with NHTSA on a routine basis. By meeting with
these groups, NHTSA believes that it can build a better understanding
of their needs and concerns. The agency has met with multistage vehicle
manufacturers and will meet with other groups which include heavy truck
manufacturers, child seat manufacturers, lamp/reflector manufacturers,
and small volume manufacturers.
[Note: This list is not all-inclusive and will be expanded.]
NHTSA recognizes that manufacturers who build school buses operate
under different conditions than manufacturers of passenger cars and
trucks. In addition, the agency is aware that school transportation
providers and school bus manufacturers share a common interest in
matters relating to pupil transportation safety. Therefore, the agency
has decided to hold a public meeting to listen to the views of these
groups and others in order to be better informed of their specific
needs. The agency is interested in obtaining their views on how it can
improve its regulations that govern the manufacture of school buses.
Suggestions should be accompanied by a statement of the rationale for
the suggested action and of the expected consequences of that action.
Suggestions should address at least the following considerations:
Administrative/compliance burdens
Cost effectiveness
Costs of the existing regulation and the proposed changes to consumers
Costs of testing or certification to regulated parties
Effects on safety
Effects on small businesses
Eforceability of the standard
Whether the suggestion reflects a ``common sense'' approach to solving
the problem
Statements should be as specific as possible and provide the best
available supporting information. Statements also should specify
whether any change recommended in the regulatory process would require
a legislative change in NHTSA's authority.
Other Topics of Interest
In recent years there have been many changes to the Federal
requirements for school buses. Many changes to the FMVSSs have
occurred. These new requirements include stop arms for all school
buses, more emergency exits for most of the larger school buses,
performance requirements for wheelchair restraints in school buses, and
mirror systems that are performance based instead of design based.
Future requirements include head impact protection for small school
buses, and may include antilock brake systems for large school buses.
Improvements have been made to the safety of the school bus loading
zones. The stop arm and mirror requirements were implemented to reduce
the number of loading zone injuries and fatalities. However, changes in
clothing style and design have resulted in snagging and dragging
injuries to bus occupants departing from the school bus. Most
manufacturers have implemented recalls to modify handrail designs.
Pending administrative decision are two rulemaking actions,
flammability of school bus seating and joint strength requirements for
maintenance access panels and small school buses.
The agency is interested in your views on how the above regulations
and developments have affected school bus safety. Have increased costs
of school buses affected the normal replacement cycle for your school
buses?
There have also been many changes to the Federal requirements for
school bus drivers. School bus drivers are now required to possess a
commercial drivers license which requires pre-employment drug tests and
random drug and alcohol tests. Staff from the Federal Highway
Administration's Office of Motor Carrier Research and Standards will be
available to answer questions at the meeting.
Procedural Matters
The agency intends to conduct the meeting informally so as to allow
for maximum participation by all who attend. Interested persons may ask
questions or provide comments during any period after a party has
completed its presentation, on a time allowed basis as determined by
the presiding official. If time permits, persons who have not requested
time to speak, but would like to make a statement, will be afforded an
opportunity to do so.
The agency is interested in obtaining the views of its customers
both orally and in writing. An agenda for the meeting will be made
based on the number of persons wishing to make oral presentations and
will be available on the day of the meeting.
Those speaking at the public meeting should limit their
presentations to 20 minutes. If the presentation will include slides,
motion pictures, or other visual aids, please indicate so that the
proper equipment may be made available. Presenters should bring at
least one copy of their presentation to the meeting so that NHTSA can
readily include the material in the public record.
A schedule of participants making oral presentations will be
available at the designated meeting room. NHTSA will place a copy of
any written statement in the docket for this notice. Participation in
the meeting is not a prerequisite for the submission of written
comments. NHTSA invites written comments from all interested parties.
It is requested but not required that 10 copies be submitted.
If a commenter wishes to submit certain information under a claim
of confidentiality, three copies of the complete submission, including
purportedly confidential business information, should be submitted to
the Chief Counsel, NHTSA, Room 5219, at
[[Page 66955]]
the street address given above, and copies from which the purportedly
confidential information has been deleted should be submitted to the
Docket Section. A request for confidentiality should be accompanied by
a cover letter setting forth the information specified in the agency's
confidential business information regulation (49 CFR Part 512.)
All comments received before the close of business on the comment
closing date indicated above will be considered. Comments will be
available for inspection in the docket.
After the closing date, NHTSA will continue to file relevant
information in the docket as it becomes available. It is therefore
recommended that interested persons continue to examine the docket for
new material.
Authority: 49 U.S.C. 322, 30111, 30115, 30117, and 30166;
delegation of authority at 49 CFR 1.50.
Issued: December 19, 1995.
Barry Felrice,
Associate Administrator for Safety Performance Standards.
[FR Doc. 95-31295 Filed 12-26-95; 8:45 am]
BILLING CODE 4910-59-P
Complete official Federal Register PDF
FR Doc. 95-31294 Federal Motor Vehicle Safety Standards; Lamps, Reflective Devices and Associated Equipment
[Federal Register Volume 60, Number 248 (Wednesday, December 27, 1995)]
[Proposed Rules]
[Page 66953]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-31294]
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
49 CFR Part 571
[Docket No. 95-72, Notice 2]
RIN 2127-AF75
Federal Motor Vehicle Safety Standards; Lamps, Reflective Devices
and Associated Equipment
AGENCY: National Highway Traffic Safety Administration (NHTSA), DOT.
ACTION: Extension of Comment Period for a Notice of Proposed
Rulemaking.
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SUMMARY: This document grants three requests to extend the comment
period on an agency proposal to amend the geometric visibility
requirements of signal lamps and the rear side marker color, both
contained Standard No. 108, Lamps, Reflective Devices and Associated
Equipment. The goal of the proposed amendment is to assist
international efforts to harmonize the lighting requirements of
continental Europe, the United Kingdom, Japan and the United States. A
lengthy extension of the comment period is desirable because a large
number of governmental and industry parties require time to achieve
internal consensus on the usefulness of the NHTSA proposal. The comment
closing date is changed from December 26, 1995 to May 16, 1996.
DATES: Comments on docket 95-72, Notice 1 must be received on or before
May 16, 1996.
ADDRESSES: Comments should refer to the Docket No. 95-72, Notice 1 and
be submitted to: Docket Section, room 5109, 400 Seventh Street, SW.,
Washington, DC 20590 (Docket hours are from 9:30 a.m. to 4 p.m.)
FOR FURTHER INFORMATION CONTACT: Rich Van Iderstine, Office of Safety
Performance Safety Standards, NHTSA, telephone (202) 366-5280, FAX
(202) 366- 4329. Please note that written comments should be sent to
the Docket Section rather than faxed to the above contact person.
SUPPLEMENTARY INFORMATION: NHTSA's proposal responded to a petition
from the Groupe Travail de Bruxelles 1952 (GTB). GTB is composed of
vehicle and lamp manufacturers from Europe, Japan and the United
States. GTB is an advisory group for the two organizations operating
under the United Nations' Economic Commission for Europe that are
involved in establishing motor vehicle lighting standards: The Meeting
of Experts on Lighting and Light Signaling (GRE) and the Working Party
on the Construction of Motor Vehicles (WP29). GTB requested the
extension of the comment period, and an extension was supported by
similar requests from the American Automobile Manufacturers Association
(AAMA) and the Chairman of GRE, Mr. G.J.M. Meekel.
In its comment period extension request, GTB explained the process
it was pursuing in its quest for harmonization. GTB submitted its
petition to NHTSA concurrently with its proposal to GRE for amendments
of the European regulations. NHTSA proposed some of the suggestions in
the GTB petition but not others. GTB believes that NHTSA's response has
greatly complicated its dealings with several European countries and
Japan. Therefore, according to GTB, arriving at a constructive response
to NHTSA's NPRM will not be a trivial matter. AAMA cited that a special
meeting of GTB to discuss these issues was not scheduled until December
20, 1995 and that any recommendations developed at this meeting could
not be acted upon by GRE until its Spring meeting. Mr. Meekel also
mentioned GRE's early Spring meeting and the desire for discussions
there and submission of comments resulting from that meeting.
It is NHTSA's general policy to deny requests for comment period
extensions based on the timing of formal meetings of interested
associations. Modern communication technology provides many rapid ways
(e.g., fax, teleconferencing, e- mail, etc.) for associations to
communicate with members and reach consensus. However, NHTSA believes
that GTB's desire for an extension is motivated by more than the mere
mechanics of international communication. NHTSA's proposal did not
provide GTB with the easiest path to harmonization. NHTSA understands
the difficulty of finding a signal lamp harmonization solution that
would benefit U.S. and international vehicle manufacturers while
satisfying the concerns of the various regulatory bodies. NHTSA agrees
that this first step toward lighting harmonization may be unusually
time-consuming if it is to be productive.
The agency wants to elevate international harmonization among its
priorities. However, it views a seven month comment period for this
notice as a special circumstance and not a precedent for future
rulemaking actions regarding harmonization.
After reviewing the situation, NHTSA agrees with the petitioners
that additional time is desirable so that GTB may determine the level
of flexibility on the part of European authorities for signal lighting
harmonization. Accordingly, the agency believes that there is good
cause for the extension and that the extension is consistent with the
public interest. Based on the above considerations, the agency has
decided to extend the comment period until May 16, 1996.
Issued on: December 19, 1995.
Barry Felrice,
Associate Administrator for Safety Performance Standards.
[FR Doc. 95-31294 Filed 12-26-95; 8:45 am]
BILLING CODE 4910-59-P
Complete official Federal Register PDF
FR Doc. 95-31272 Milk in the Carolina and Certain Other Marketing Areas; Recommended Decision and Opportunity to File Written Exceptions on Proposed Amendments to Marketing Agreements and Orders
[Federal Register Volume 60, Number 248 (Wednesday, December 27, 1995)]
[Proposed Rules]
[Pages 66929-66936]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-31272]
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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.
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Federal Register / Vol. 60, No. 248 / Wednesday, December 27, 1995 /
Proposed Rules
[[Page 66929]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 1007
[Docket No. AO-366-A37; AO-388-A9, et al.; DA-95-22]
Milk in the Carolina and Certain Other Marketing Areas;
Recommended Decision and Opportunity to File Written Exceptions on
Proposed Amendments to Marketing Agreements and Orders
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Proposed rule.
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SUMMARY: This document recommends adoption of proposed amendments that
would modify certain location adjustments under the Southeast Federal
milk marketing order. The recommended decision denies a proposal to
provide a fluid milk surcharge during the period of November 1995
through March 1996 and a transportation credit on bulk milk purchased
for 6 Federal milk orders in the Southeastern United States. The
recommendations are based on the record of a public hearing held in
Atlanta, Georgia, on September 19, 1995.
DATES: Comments are due on or before January 26, 1996.
ADDRESSES: Comments (four copies) should be filed with the Hearing
Clerk, Room 1083, South Building, United States Department of
Agriculture, Washington, DC 20250.
FOR FURTHER INFORMATION CONTACT: Nicholas Memoli, Marketing Specialist,
Order Formulation Branch, USDA/AMS/Dairy Division, Room 2971, South
Building, P.O. Box 96456, Washington, DC 20090-6456, (202) 690-1932.
SUPPLEMENTARY INFORMATION: This administrative action is governed by
the provisions of sections 556 and 557 of Title 5 of the United States
Code and, therefore, is excluded from the requirements of Executive
Order 12866.
The Regulatory Flexibility Act (5 U.S.C. 601-612) requires the
Agency to examine the impact of a proposed rule on small entities.
Pursuant to 5 U.S.C. 605(b), the Administrator of the Agricultural
Marketing Service has certified that this proposed rule will not have a
significant economic impact on a substantial number of small entities.
The proposed amendments would promote orderly marketing of milk by
producers and regulated handlers.
The amendments to the rules proposed herein have been reviewed
under Executive Order 12778, Civil Justice Reform. They are not
intended to have a retroactive effect. If adopted, the proposed
amendments would not preempt any state or local laws, regulations, or
policies, unless they present an irreconcilable conflict with this
rule.
The Agricultural Marketing Agreement Act of 1937, as amended (7
U.S.C. 601-674), provides that administrative proceedings must be
exhausted before parties may file suit in court. Under section
608c(15)(A) of the Act, any handler subject to an order may file with
the Secretary a petition stating that the order, any provision of the
order, or any obligation imposed in connection with the order is not in
accordance with the law and requesting a modification of an order or to
be exempted from the order. A handler is afforded the opportunity for a
hearing on the petition. After a hearing, the Secretary would rule on
the petition. The Act provides that the district court of the United
States in any district in which the handler is an inhabitant, or has
its principal place of business, has jurisdiction in equity to review
the Secretary's ruling on the petition, provided a bill in equity is
filed not later than 20 days after the date of the entry of the ruling.
Prior Documents in This Proceeding:
Notice of Hearing: Issued August 11, 1995; published August 17,
1995 (60 FR 42815).
Supplemental Notice of Hearing: Issued September 8, 1995; published
September 13, 1995 (60 FR 47495).
Preliminary Statement
Notice is hereby given of the filing with the Hearing Clerk of this
recommended decision with respect to proposed amendments to the
tentative marketing agreements and the orders regulating the handling
of milk in the 7 Federal milk marketing areas in the Southeastern
United States. This notice is issued pursuant to the provisions of the
Agricultural Marketing Agreement Act and the applicable rules of
practice and procedure governing the formulation of marketing
agreements and marketing orders (7 CFR Part 900).
Interested parties may file written exceptions to this decision
with the Hearing Clerk, U.S. Department of Agriculture, Washington, DC
20250, by the 30th day after publication of this decision in the
Federal Register. Four copies of the exceptions should be filed. All
written submissions made pursuant to this notice will be made available
for public inspection at the office of the Hearing Clerk during regular
business hours (7 CFR 1.27(b)).
The proposed amendments set forth below are based on the record of
a public hearing held at Atlanta, Georgia, on September 19, 1995,
pursuant to a notice of hearing issued August 11, 1995 (60 FR 42815),
and a supplemental notice of hearing issued September 8, 1995 (60 FR
47495).
The material issues on the record of the hearing relate to:
1. Whether the location adjustment at Hammond, Louisiana, should be
increased by 7 cents under Order 7.
2. Whether the location adjustment at Mobile, Alabama, should be
reduced by 7 cents under Order 7.
3. Whether a transportation credit for supplemental milk should be
adopted for Orders 5, 6, 7, 11, 12 and 13.1
\1\ The Louisville-Lexington-Evansville order was dropped from
Proposals 4 and 5, as contained in the hearing notice, at the
hearing.
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4. Whether a fluid milk surcharge should be provided on a temporary
basis for Orders 5, 6, 7, 11, 12, and 13.
5. Whether emergency marketing conditions in the 6 regulated areas
warrant the omission of a recommended decision and the opportunity to
file written exceptions thereto.
Findings and Conclusions
The following findings and conclusions on the material issues are
based on evidence presented at the hearing and the record thereof:
1. Whether the Location Adjustment at Hammond, Louisiana, Should be
Increased by 7 Cents Under Order 7
The location adjustment in the portion of Tangipahoa Parish,
[[Page 66930]]
Louisiana, south of State Highway 16, should be increased from plus 50
cents to plus 57 cents. The 7-cent price increase applies to both Class
I prices applicable to handlers and blend prices applicable to
producers. However, for the sake of simplicity, the price increase is
discussed in terms of the Class I differential.
The vice-president of fluid milk marketing and economic analysis
for Mid-America Dairymen, Inc. (Mid-Am), proposed the 7-cent higher
location adjustment at Hammond, Louisiana, which is located in the
southern portion of Tangipahoa Parish. He stated that the 7-cent
location adjustment increase would provide a $3.65 Class I differential
price at Hammond, the same price applicable at Baton Rouge and New
Orleans.
The representative explained that Mid-Am is a cooperative owned by
approximately 18,000 dairy farmers and a major supplier of distributing
plants pooled on the Southeast Federal milk marketing order (Order 7).
He testified that in southeast Louisiana Mid-Am has a full supply
agreement with 5 of the 6 plants in the New Orleans/Baton Rouge/Hammond
area and a partial supply agreement with the 6th plant. In August 1995,
he indicated, Mid-Am represented 55.9 percent of both the Class I sales
and total producer milk pooled on Order 7.
The Mid-Am representative stated that the final decision for the
Southeast order that was issued on May 3, 1995 (60 FR 25014),
established a price of $3.58 at Hammond and a price of $3.65 at Baton
Rouge and New Orleans, Louisiana. The representative argued that the 7-
cent difference in price provides a competitive sales advantage to the
plant located in Hammond while its ability to procure milk is no
different than plants located in Baton Rouge.
According to the Mid-Am representative, the milk supply for plants
in Hammond and Baton Rouge comes from direct-ship milk produced in
Louisiana's ``Florida parishes'' (i.e., Tangipahoa, Washington, St.
Tammany, St. Helena, Livingston, East Feliciana, and East Baton Rouge).
He contended that the 7-cent lower price at Hammond is not justified
since the per hundredweight rate paid to local milk haulers who deliver
milk to Baton Rouge and Hammond is the same. He elaborated further that
the rate per hundredweight that is charged producers in the Florida
parishes is the same whether the producer's milk is delivered to
Hammond or Baton Rouge or even New Orleans. Thus, he asserted,
competing handlers in the New Orleans/Hammond/Baton Rouge area should
have the same Class I differential price because the cost of procuring
milk at each of these locations is the same.
The assistant operations manager for Fleming Dairy, which operates
two distributing plants in the Southern United States, testified in
support of the proposal to equalize Class I prices adjusted for
location at Hammond, Baton Rouge, and New Orleans, Louisiana.
Alternatively, the witness stated, Fleming would support a 7-cent price
reduction at Baton Rouge and New Orleans, which also would equalize the
Class I differential prices at these locations. He testified that equal
and uniform Class I differential prices are justified for these
locations for competitive reasons.
The Fleming witness indicated that 100 percent of the raw milk
supply delivered to its distributing plant in Baker, Louisiana,2
is produced by dairy farmers located within 45 miles of the plant. He
stated that a higher Class I price at one location compared to another
suggests a greater shortage or need to attract milk from distant supply
areas. However, the witness indicated, southern Louisiana has an
abundant supply of milk available and has had to regularly transfer
milk to Florida during short production months to supplement Florida's
raw milk requirements. Additionally, he argued, handlers located in
Hammond should not have a competitive advantage over Baton Rouge
handlers because both locations are approximately the same distance to
New Orleans, the primary population center of southern Louisiana.
\2\ Baker is 10 miles north of Baton Rouge. Both Baker and Baton
Rouge are in East Baton Rouge Parish, which is within Zone 12 of the
marketing area.
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According to the Fleming witness, the Secretary's Final Decision
issued May 3, 1995, justifying the lower price in Hammond compared to
Baton Rouge or New Orleans was based on mistaken conclusions of facts
and miscommunications within the newly enlarged cooperative association
(Mid-Am). The witness also stated that marketing conditions in the
Southern United States have changed since the merger hearing was held
in 1993. He explained that a single farmer-owned cooperative now
controls the milk supply for southern Louisiana, as opposed to three or
four competing cooperatives which previously supplied this area.
Accordingly, he agreed with Mid-Am that the difference in price for
these locations is not justified because there is no freight difference
in supplying New Orleans, Hammond, and Baton Rouge with raw milk. Thus,
he urged the Secretary to correct the price disparity at Hammond
immediately.
Fleming reiterated support for the 7-cent location adjustment
increase at Hammond, Louisiana, in its post-hearing brief. Gold Star
Dairy, Inc. (Gold Star), Little Rock, Arkansas, also supported the
proposed 7-cent location adjustment increase at Hammond in a post-
hearing brief. Gold Star stated that the 7-cent increase will correct
an unintended inequity problem in the Southeast order. There was no
opposition to the proposed increase at the hearing or in post-hearing
briefs.
The proposed 7-cent higher location adjustment in the southern
portion of Tangipahoa Parish should be adopted to provide the same
prices at pool distributing plants located at Hammond and Baton Rouge,
Louisiana. These plants are located within a major production area of
the market and procure their milk supplies from the same nearby farms.
As a result, the rates paid to haulers to transport milk to Hammond
compared to Baton Rouge are the same because the mileage from
producers' farms to the various plants is essentially the same. Thus,
the value of producer milk delivered to Hammond should be no less than
the value of such milk delivered to Baton Rouge. Therefore, the
southern portion of Tangipahoa Parish should be moved to Zone 12, as
proposed, to provide a 7-cent higher price at Hammond.
2. Whether the Location Adjustment at Mobile, Alabama, Should be
Reduced by 7 Cents Under Order 7
The location adjustment at Mobile, Alabama, should be reduced from
plus 57 cents to plus 50 cents.
A witness appearing on behalf of Barber Pure Milk Company (Barber)
and Dairy Fresh Corporation (Dairy Fresh) proposed the 7-cent reduction
in the location adjustment at Mobile, Alabama. The witness stated that
Barber and Dairy Fresh operate pool distributing plants under Order 7.
He said the Barber plant at Mobile and the Dairy Fresh plant at
Prichard, Alabama, are located within 20 miles of the Mobile City Hall
and handle approximately 8.5 to 9.5 million pounds of milk per month.
The witness for Barber and Dairy Fresh contended that the Southeast
order, which became effective July 1, 1995, established pricing zones
that created cost inequities for the Barber Mobile plant and the Dairy
Fresh Prichard plant with other Order 7 pool plant handlers. He argued
that the final decision lowered the Class I price adjusted for location
for Barber and Dairy Fresh competitors while the price at Mobile
remained unchanged at $3.65.
[[Page 66931]]
He claimed that the 7-cent difference is a substantial amount and that
Barber and Dairy Fresh cannot continue to operate as viable business
entities with the current pricing situation. The proposed $3.58 Class I
differential price is the price applicable for most of Barber and Dairy
Fresh's competitors and is sufficient to attract an adequate supply of
milk to the Mobile area, he asserted.
The Barber/Dairy Fresh witness also indicated that the market
structure in the Southeastern United States had changed since the
merger hearing was held in 1993. He stated that several plants had
closed or changed ownership and that one new large state-of-the-art
Class I plant had recently opened. Several cooperatives serving the
Southeast marketing area at the time of the hearing have now joined
Mid-Am, resulting in Mid-Am being the major supply organization in the
market, he added.
The witness explained that one key change that has occurred since
the 1993 merger hearing is that Barber now receives its entire milk
supply from Mid-Am and approximately 2.8 million pounds are for its
Mobile plant. He added that Dairy Fresh purchases about 92 percent of
its milk from nonmembers and the remainder from Mid-Am. The milk supply
for both plants is from producers located in the same general area, he
said, while the Class I distribution area of the Mobile and Prichard
plants is primarily along the Gulf Coast stretching west from Mobile to
Hancock County, Mississippi, east from Mobile to Tallahassee, Florida,
and northeast from Mobile to Montgomery County, Alabama. The witness
argued that the proposed price change is needed to equalize prices
between Mobile-area handlers and handlers located in the Upper Florida
order. He urged the Department to lower the location adjustment by 7
cents at Mobile, Alabama, thus changing the location adjustment from a
plus 57 cents to a plus 50 cents.
A post-hearing brief filed on behalf of Barber and Dairy Fresh
reiterated their support for the proposed 7-cent lower location
adjustment. The brief pointed out that witnesses at the hearing
testified that 7 cents per hundredweight is a significant amount for
Class I milk. The handlers asserted that the adoption of the proposal
would align the Mobile price with the price applicable in the northern
portion of the Upper Florida order.
At the hearing and in its post-hearing brief, Gold Star opposed the
7-cent lower location adjustment at Mobile, Alabama, but presented no
testimony or evidence to support its position. There was no other
opposition testimony.
The location adjustment at Mobile, Alabama, should be reduced by 7
cents to provide a price of $3.58 by eliminating the Zone 12 island
around Mobile in what is otherwise a Zone 11 region. The city of
Mobile, Alabama, is within Mobile County, which is in Zone 11 of the
Southeast order. Unlike the rest of Mobile County, the 20-mile radius
area surrounding the city of Mobile is now part of Zone 12, which is
priced 7 cents above Zone 11.
The record of this hearing indicates that changes in procurement
patterns have occurred since the 1993 hearing and that the original
reason for placing the Mobile handlers in the 7-cent higher pricing
zone--i.e., to insure the two Mobile handlers of an adequate supply of
milk--is no longer an over-riding consideration. The record of this
hearing indicates that the Barber plant at Mobile now has a full supply
contract with Mid-America Dairymen, Inc., thereby eliminating any
concern that the handler had about obtaining an adequate supply of
milk.
Although the Dairy Fresh plant at Prichard still receives a
majority of its milk from nonmember producers, there was no testimony
at the hearing from any cooperative association representative or any
nonmember producer and no post-hearing briefs to indicate that the
plant would not be able to maintain its milk supply with the proposed
7-cent lower Class I price. Accordingly, it must be concluded that no
valid purpose is served by pricing the Mobile area at its current $3.65
Class I differential price. A 7-cent lower price at Mobile will
properly align the prices at Mobile with the Florida panhandle, which
has a Class I differential price of $3.58, as well as with counties
directly east and west of Mobile, which are also priced at $3.58. Most
importantly, the record indicated that the lower price at Mobile would
not jeopardize the supply of milk at the Barber or Dairy Fresh plants.
3. Whether a Temporary Transportation Credit for Supplemental Milk
Should be Adopted for Orders 5, 6, 7, 11, 12, and 13
The proposed amendment to provide a transportation credit for bulk
milk received by transfer from a plant regulated under another Federal
order for Orders 5, 6, 7, 11, 12, and 13 during the period of July 1995
through February 1996 should be denied. The cooperatives withdrew their
pre-hearing request to amend the Louisville-Lexington-Evansville
Federal milk marketing order.
The transportation credit was proposed by the Dairy Cooperative
Marketing Association, Inc. (DCMA), whose members include Arkansas
Dairy Cooperative, Associated Milk Producers, Inc., Carolina-Virginia
Milk Producers, Inc., Cooperative Milk Producers, Inc., Florida Dairy
Farmers Association, Inc., Mid-America Dairymen, Inc., and Tampa
Independent Dairy Farmers Association, Inc. These cooperatives
represent the vast majority of milk pooled in the 6 marketing areas.
A spokesman for DCMA testified that a shortage of milk in the
Southeast has been brought about by lower prices, rising costs, and
extreme weather conditions in most areas of the Southeast. According to
the spokesman, many factors, including extreme heat and drought
conditions, contributed to the decline in milk production in the
Southeast. He indicated that milk production in Florida declined by 15
percent or more during 1995. During August 1995, he noted, producer
milk pooled on the 6 Federal milk orders was down approximately 15
million pounds from volumes pooled during August 1994 in comparable
Federal orders.
The DCMA spokesman stated that the percentage of producer milk
allocated to Class I under the 6 orders has increased, while total
producer milk pooled under the orders has decreased. During July and
August 1995, the spokesman indicated, the pounds of milk purchased as
transfers from other Federal order plants exceeded 30 and 74 million,
respectively.
According to the witness, current milk production of producers
pooled on the 6 southeastern orders will be insufficient to meet fluid
requirements. He argued that the current Federal order minimum Class I
price structure has not and will not attract an adequate supply of
locally-produced milk. Some handlers and/or cooperatives, he
complained, will incur the cost of obtaining needed supplemental
supplies from distant marketing areas. Additionally, he claimed, those
producers who are responsible for supplying the needs of the market
will pay the cost of bringing in supplemental milk. This will result in
such producers not receiving uniform prices for their milk, he said.
The DCMA spokesman stated that the proposal would provide a
temporary transportation credit to handlers who purchase supplemental
milk allocated to Class I use from plants regulated under other Federal
milk marketing orders. Milk received on a requested Class II or III
basis or milk that is simply allocated to Class II or III would not
receive the transportation credit, he
[[Page 66932]]
said. He explained that the rate of the hauling credit would be 3.9
cents per hundredweight per 10 miles, based on the distance between the
shipping and receiving plants, less any positive difference between the
Class I differential applicable at the receiving plant and the Class I
differential applicable at the shipping plant. The rate of 3.9 cents
per hundredweight per 10 miles is reflective of the actual cost of
hauling milk, he claimed.
The DCMA spokesman testified that the transportation credit should
be made effective beginning July 1, 1995, and extend through February
29, 1996. Applying the transportation credit retroactively is
appropriate, he argued, because of the substantial amount of
supplemental milk purchased during the months of July and August.
However, he recommended that the amount of money deducted from the pool
for transportation credits each month be limited to 150 percent of the
funds generated by the proposed Class I price surcharge for the month.
This approach would spread the price-reducing impact of the
transportation credits over the proposed 7-month period. DCMA
reiterated its position in a post-hearing brief.
The marketing specialist of the Southern Region of Associated Milk
Producers, Inc. (AMPI), testified in support of the DCMA's proposed
transportation credits for emergency relief. According to the
representative, AMPI's Southern Region represents approximately 3,000
Grade A dairy farmers located throughout the Southwest United States,
with the greatest concentration of milk production in Texas and New
Mexico. He indicated that AMPI also now has a substantial quantity of
producer milk marketed on the Southeast order each month that was
associated with the former Central Arkansas Federal milk order (Order
108).
The AMPI representative stated that AMPI assisted in supplying
supplemental milk to the Southeast during the extreme milk shortage. He
testified that from August 23 through September 10 AMPI delivered 10
loads of milk per day to Schepps Dairy, Dallas, Texas, to allow Mid-Am
to reroute an equivalent amount of milk to southeastern handlers from
the Mid-Am reload facility in Sulphur Springs, Texas. A total of 193
loads of milk were delivered to Schepps, he noted.
The AMPI spokesman stated that AMPI supplied approximately 8.8
million pounds of supplemental milk during July and August, which
includes milk delivered to Schepps, as well as milk transferred
directly into the Southeast marketing area. He said that AMPI charged
the purchasing handler or cooperative $2.00 per hundredweight for this
service and that the buyer paid the freight charge.
A representative for Fleming Dairy (Fleming), Nashville, Tennessee,
testified in support of the proposed transportation credit, but
recommended certain modifications. He agreed with the testimony of DCMA
that the Southeast had suffered an unusual milk supply crisis since
early August and that it would be equitable to provide a method to
reimburse those who have served the market by incurring extraordinary
costs to bring supplemental milk into the region from distant supply
markets. He said that Fleming is supplied primarily by independent
producers, but receives supplemental supplies from Mid-Am. During the
last week of August, he indicated, Fleming obtained milk supplies from
the New Mexico-West Texas and Upper Midwest marketing areas to meet its
fluid demand due to the insufficient supply of locally-produced milk.
According to the Fleming representative, some additional
supplemental milk may be required through October, but the period of
greatest crisis and demand is now over. Thus, he stated, Fleming would
favor a transportation credit through the month of October.
The Fleming spokesman testified that supplemental shipments of milk
in late summer and fall are a recurring feature of the southeastern
marketing areas, and transportation credits in some form would be
justified as a permanent feature of the orders for the months of July
through October. However, he recommended that the transportation credit
only apply for distances that exceed 100 miles. He said the Secretary
should determine whether the proposed 3.9-cent rate is justified.
The Fleming representative also observed that this is the first
year in which there has been a significant need for supplemental milk
in the southeast region from the north-central region since the
adoption of Class III-A pricing. The witness stated that the
transportation credit should not be granted to a handler or cooperative
association that has any milk assigned to Class III-A during the same
period of time. In addition, he said, Class III-A pricing should be
suspended for the Southeast region and neighboring marketing areas in
the northeast and north-central regions when there is a clear demand
for milk for Class I use that is not being met. Class III-A , he
stressed, was adopted to permit the orderly disposition of excess milk
when another use for the milk was not available, not as a bargaining
lever to extract high give-up costs when the need for fluid milk is
great.
Fleming's post-hearing brief reiterated its qualified support for
transportation credits. The brief stated that transportation credits
for past services of marketwide benefit are consistent with the 1985
amendments to the Agricultural Marketing Agreement Act. The
transportation credits, Fleming contended, are necessarily retroactive
because the application for credit comes only after a service has been
rendered.
The president of Southern Belle Dairy (Southern Belle) Somerset,
Kentucky, testified in opposition to the proposed transportation
credit. The representative stated that Southern Belle is a pool plant
regulated under the Tennessee Valley Federal milk order. He explained
that Southern Belle receives its milk supply from Southeastern Graded
Milk Producers, Milk Marketing, Inc., and Mid-America Dairymen, Inc. He
said Southern Belle also receives supplemental milk supplies from
Armour Foods.
According to the Southern Belle representative, during the crisis
period Southern Belle purchased 2 loads of milk in Buffalo, New York,
at a give-up charge of $5.50 per hundredweight. He said that, under the
DCMA proposal, Southern Belle would receive a transportation credit of
approximately $1,500, but claimed that the proposed 5-cent per
hundredweight surcharge to pay for the transportation credits would
force Southern Belle to pay an amount far in excess of its $1,500
credit.
In a post-hearing brief, Southern Belle reiterated its opposition
to the retroactive application of the transportation credit but did not
support or oppose the prospective issuance of the credit for
supplemental milk purchased during months of very short production. The
brief also argued that the record evidence shows that the ``crisis''
was due to Mid-Am's inability to properly manage its sales of milk and
to recover adequate over-order premiums to cover the costs of
purchasing supplemental milk supplies. Finally, Southern Belle argued
that the retroactive application of the proposed transportation credit
would encourage cooperatives to request relief for a problem that no
longer exists.
The general manager of Gold Star Dairy (Gold Star), Little Rock,
Arkansas, also testified in opposition to the proposed transportation
credit at the hearing. In its post-hearing brief, Gold Star opposed any
retroactive application of the transportation credit but did not
[[Page 66933]]
support or oppose the issuance of the credit for Class I milk purchased
during months of very short production.
Gold Star contended that there is no record evidence to support
DCMA'S argument that supplemental milk would be needed beyond October.
According to Gold Star's brief, the last year of shipments into the
southeast region from Wisconsin was in 1992, a year in which shipments
began in mid-August and extended to October. The brief also argued that
shipments from Wisconsin in 1995 probably have peaked already and that
no shipments will likely be needed after October.
Gold Star and Southern Belle argued that the Secretary does not
have the authority to issue rules that would have a retroactive effect.
Moreover, even if he did, they contend, such authority would invite the
post-crisis demand for modifications of the rules to alleviate problems
that may no longer exist.
A brief filed on behalf of Land-O-Sun Dairies, Inc. (Land-O-Sun),
opposed the proposed transportation credit. Land-O-Sun stated that it
operates pool plants regulated under Orders 5 and 11 in Spartanburg,
South Carolina, and Kingsport, Tennessee, respectively. The handler
also indicated it operates an Order 5 partially regulated plant in
Portsmouth, Virginia.
Land-O-Sun argued that the Secretary lacks the authority to grant
rules regarding transportation credits that would have a retroactive
effect absent the expressed statutory language. According to Land-O-
Sun, the Department of Health and Human Services (HHS) issued a rule in
1984 which applied to a cost reimbursement calculation method and tried
to recoup costs that were incurred prior to the effective date of the
1984 rule. However, Land-O-Sun noted, in the case of Bowen v.
Georgetown University Hospital, 488 U.S. 204 (1988), the Supreme Court
invalidated the retroactive feature of the HHS rule.
Land-O-Sun contends that the Agricultural Marketing Agreement Act,
as amended, is wholly silent on the issue of retroactive powers vested
in the Secretary. It argues that in 1986 the Secretary did not have the
authority to implement retroactively the Class I differentials mandated
by the 1985 Farm Bill and, by the same token, does not now have the
authority to implement the proposed transportation credits
retroactively.
Land-O-Sun argues that even if the Secretary had the authority to
impose the retroactive transportation credits, he should deny this
request because the problem should have been addressed through private
business agreements. The Land-O-Sun brief states that the proposed
credit penalizes both handlers who procured their own supplies and
producers not involved in bringing in supplemental supplies. Finally,
Land-O-Sun stated that there is significant competition between Order 5
plants and plants located in Florida, Georgia, Tennessee, Virginia, and
Kentucky and that the 5-cent higher surcharge for Order 5 compared to
Orders 7 and 11 would place Order 5 handlers at a competitive
disadvantage.
Milkco, Inc. (Milkco), a fully regulated handler under Order 5,
filed a post-hearing brief in opposition to the proposed transportation
credit because of its retroactive effect. Milkco stated that if a
transportation credit is granted, it should apply to the same months
that an emergency fluid milk surcharge would be applicable.
After carefully evaluating the record evidence and the post-hearing
briefs, we must conclude that during the summer of 1995 there was a
need for supplemental milk for Class I use in all of the 6 orders and
that this need was particularly acute for the Carolina and 3 Florida
orders. Furthermore, the record clearly shows that the burden of
bringing in supplemental milk to satisfy fluid milk demand fell, almost
exclusively, on the cooperative associations supplying these markets.
The record also shows that during the months of July and August 1995
over-order charges were either non-existent or--where they did exist--
appeared to be inadequate to compensate the cooperatives for the costs
which they incurred.
It may be true, as opponents argue, that price adjustments should
not be made to compensate for prior marketing costs. Any pool plant
operator that obtained milk on a direct-shipped basis--at whatever cost
it had to pay--during July through September of 1995 would not be
eligible for a credit under the DCMA proposal; yet the handler would
now be asked to pay a higher Class I price to subsidize someone else's
supplemental milk expense.
Opponents argued that the Secretary lacks the authority to
retroactively apply the proposals. Ultimately, this question can only
be clarified in a court of law. However, in this proceeding the
threshold question of whether or not the proposals are supported by the
record precludes any subsequent debate concerning their legality.
While the record clearly showed that a great deal of milk was
brought into the 6 markets, it lacked comparable data for earlier years
from which to measure the magnitude of this year's problem. As can be
seen in Table 1, for example, there was clearly much more bulk milk
imported to the Carolina and Florida markets for Class I use in August
of 1995 compared to August 1993, but this picture is less clear in
comparing the bulk imports for the Southeast market in August 1995
compared to August 1994, and the comparison is virtually impossible for
the Tennessee Valley market because of the restrictions on the data.
Also, while the record data unequivocally demonstrated a significant
drop in production for some of the markets involved in this proceeding,
it was less demonstrative for some of the other markets involved. For
example, while producer receipts in the Southeastern Florida market
were down by 8.5 percent in July (compared to July 1994), they were up
by 19 percent during July 1995 in the Tennessee Valley market.
Similarly, in August 1995 producer receipts were down (compared to a
year earlier) in 4 of the 6 markets, but they were up by 4 percent in
Order 7 and by 2 percent in Order 11.
Table 1.--Millions of Pounds of Bulk Fluid Milk Products From Other Order Plants
[Not Requested for Class II or III Use, July-August, 1993-1995]
----------------------------------------------------------------------------------------------------------------
7/93 8/93 7/94 8/94 7/95 8/95
----------------------------------------------------------------------------------------------------------------
Order 5........................... 2.3 1.8 R R 1.7 12.3
Orders 6, 12, and 13.............. 2.4 17.3 R 15.8 16.3 32.9
Order 7........................... 4.1 12.3 6.9 27.6 10.5 29.7
Order 11.......................... .8 R 0 R R 5.2
----------------------------------------------------------------------------------------------------------------
R = Data restricted. Less than 3 handlers involved.
[[Page 66934]]
The record also was lacking in detail with respect to cooperatives'
over-order charges. In the Florida markets, where such charges were in
effect during the summer months, there is no indication how much, if
any, of the premium is supposed to cover the cost of bringing
supplemental milk to the market. It was also unclear how this year's
transportation and give-up costs compared to prior years.
A transportation credit, with or without an accompanying surcharge,
might have merit in these seasonally-deficit markets where no other
means exist to recoup costs of servicing the market. However, the
specific proposals under consideration in this proceeding are not
supported by the weight of evidence in the record.
4. Whether a Fluid Milk Surcharge Should be Provided on a Temporary
Basis for Orders 5, 6, 7, 11, 12, and 13
The proposal to impose a Class I surcharge in each of the 6 orders
to pay for the proposed transportation credits should not be adopted.
A spokesman for DCMA proposed a fluid milk surcharge for the 6
Federal milk marketing orders for the period of November 1, 1995,
through March 31, 1996. The spokesman requested that the proposed
amendment not be considered for the Louisville-Lexington-Evansville
Federal milk order. The DCMA spokesman estimated that a temporary fluid
milk surcharge would generate enough money to fund the out-of-pocket
transportation costs incurred by handlers during the period of July 1,
1995, through March 31, 1996. This money would be returned to dairy
farmers through the blend price by the added specified rate to the
Class I differential for each order, he stated.
The representative testified that DCMA's revised proposal would
provide a fluid milk surcharge of 5 cents per hundredweight for Orders
7 and 11, 10 cents per hundredweight for Order 5, 20 cents per
hundredweight for Order 6, 25 cents for Order 12, and 30 cents for
Order 13.
According to the DCMA representative, these proposed temporary
surcharges are designed to help assure that an adequate supply of milk
will be made available to meet the fluid needs of the 6 orders. The
representative proposed that the fluid milk surcharge for each order
become effective November 1, 1995, and extend through March 1996. The
November 1 effective date is needed to provide adequate advance notice,
he stated.
The assistant operations manager for Fleming testified in support
of the proposed fluid milk surcharge. He stated that Fleming favors a
surcharge to offset the cost of the transportation credit for the
extraordinary supplemental milk costs incurred by cooperatives during
the months of July through October, but said that the surcharge and the
transportation credit should be coordinated for each market. Fleming
reiterated its qualified support for the proposed fluid milk surcharge
in its post-hearing brief.
The controller of Coburg Dairy (Coburg), an Order 5 pool plant
located in North Charleston, South Carolina, testified in support of
the proposed fluid milk surcharge at a rate of 10 cents per
hundredweight for Order 5. The witness indicated that Coburg purchases
its raw milk supply from Edisto Milk Producers Association, a
cooperative which purchases raw milk from Carolina Virginia Milk
Producers Association and, on the spot market, from brokers. He stated
that Coburg has distribution throughout South Carolina, southeastern
Georgia, and parts of North Carolina.
The director of milk procurement and marketing for Dean Foods
Company (Dean Foods) testified in opposition to DCMA's proposed fluid
milk surcharge. According to the witness, Dean Foods is the largest
fluid milk processor in the United States and owns and operates plants
in Kentucky, Florida, and Athens, Tennessee.
The witness for Dean Foods stated that weather conditions in the
southeast region caused milk supply shortages in the region in late
August and early September. As a result, he indicated, supplemental
milk was purchased from outside the region. The witness claimed that
there has been and continues to be a shortage of milk in portions of
the southeast region and that Dean Foods had adjusted its bottling
schedule to accommodate the temporary shortage. However, he said, the
Dean Foods plant at Athens, Tennessee, currently has an adequate supply
of milk available to meet the plant's needs.
According to the witness, Dean Foods and other processors in the
State of Florida agreed in June to accept a 73-cent per hundredweight
increase in over-order premiums to help producers recover some of the
costs for transporting supplemental milk into the region. Dean Dairies
in Florida has agreed to a 40-cent increase for the month of October,
he indicated. The witness also testified that processors in Florida
have been paying from $1.00 to $1.75 per hundredweight in over-order
premiums. Additionally, he stated, Dean Foods, Athens, Tennessee,
agreed to 15-cent and 20-cent per hundredweight increases in over-order
premiums for the months of September and October, respectively.
The witness for Dean Foods stressed that negotiations between
buyers and sellers of milk remain the best mechanism to recover the
costs associated with purchasing supplemental milk. He argued that the
Federal Order system was not designed to remedy short-term aberrations
in the market or provide relief to cooperatives for poor business
decisions.
The general manager for Gold Star also testified in opposition to
the proposed fluid milk surcharge for the 6 Federal milk marketing
orders. The witness indicated that Gold Star is a handler regulated
under the Southeast order but that a significant portion of its sales
are in the Texas marketing area. If the surcharge were imposed, Gold
Star would be at a competitive disadvantage compared to handlers
regulated under the Texas order, he claimed, because those handlers
would not be subject to the surcharge. These arguments were reiterated
in Gold Star's post-hearing brief.
The representatives of Gold Star and Southern Belle claimed that
the proposed fluid milk surcharge would have an impact on each
handler's fluid milk sales. The representatives argued that in an
industry where most sales are determined on fractions of a cent per
gallon, the handlers would not be able to pass the cost on to its
customers in areas where its competing handlers would not be subject to
the surcharge. The Southern Belle representative stated that Southern
Belle competes with handlers located in Ohio, Kentucky, West Virginia,
Indiana, and Virginia, all of whom would not be subject to the
surcharge.
Southern Belle also filed a post-hearing brief in opposition to the
proposed fluid milk surcharge. Southern Belle stated that the crisis,
if there was one, is now over for the Tennessee Valley marketing area.
Southern Belle also indicated that it acquired its own supplemental
milk without the assistance of cooperatives and no longer needs any
supplemental milk. The handler added that it should not be required to
pay an additional amount for its milk to compensate producers or
cooperatives for services that it did not receive and will not need.
Tillamook County Creamy Association (Tillamook), a cooperative
association located in Tillamook, Oregon, opposed the proposed fluid
milk surcharge at the hearing and in its post-hearing brief. Tillamook
contended that the continued existence of Class III-A pricing was and
is a major contributing factor to any perceived
[[Page 66935]]
problem of production and delivery of Grade A milk into the Southeast
during the past summer.
Tillamook indicated that the amount of milk allocated to Class III-
A in Orders 5, 11, and 46 was about 1.4 million pounds in August 1995
compared to 270 thousand pounds in August 1994, and further noted that
Federal Order 7 had approximately 2.1 million pounds of milk allocated
to Class III-A in August 1995. Additionally, Tillamook pointed out that
record data indicates that while handlers and cooperatives located in
the Southeast were purchasing supplemental milk supplies from as far as
Minnesota and El Paso, significant volumes of milk were being allocated
to Class III-A in Federal Orders 4 (Middle Atlantic marketing area), 33
(Ohio Valley marketing area), 36 (Eastern Ohio-Western Pennsylvania
marketing area), 40 (Southern Michigan marketing area), and 126 (Texas
marketing area).
Tillamook recommended that the Secretary suspend Class III-A
pricing nationwide to free up milk needed for fluid use in the
Southeast and to continue uniform pricing throughout the Federal order
program. The cooperative claimed that the fluid milk surcharge benefits
a small portion of the dairy industry, while the suspension or
alteration of Class III-A on an emergency basis would increase all
dairy farmers' income. Therefore, Tillamook urged the Secretary to deny
the proposed fluid milk surcharge and grant relief on Class III-A
immediately.
In a post-hearing brief, Milkco opposed the revised proposal for a
fluid milk surcharge for the 6 Federal milk orders, specifically the
10-cent surcharge for Order 5. Milkco indicated that it has
approximately 44.5 percent of its total Class I sales in the Southeast
and Tennessee Valley marketing areas. It stated that the proposed
amendment would require it to pay 5 cents per hundredweight more than
handlers regulated under Orders 7 and 11. Accordingly, Milkco
contended, the amount of the surcharge should be the same for Orders 5,
7, and 11.
The Agricultural Marketing Agreement Act, as amended, clearly
authorizes the Secretary to include provisions for payments to handlers
that provide facilities to furnish additional supplies of milk needed
by the market, but the Act does not provide for an automatic increase
in the Class I price to offset such payments. If there had been a
stronger record supporting adoption of the proposed transportation
credit, the balance might have weighed in favor of taking the action
for a temporary period of time. However, the evidence presented by the
handler opposition to the proposals, in conjunction with the lack of
clarity in the record concerning the magnitude of the problem and any
needed increase in Class I prices, leads us to conclude that the
transportation credit should not be adopted and, consequently, the
Class I surcharge to pay for the transportation credit need not and
should not be adopted either.
5. Whether Emergency Marketing Conditions in the 6 Regulated Areas
Warrant the Omission of a Recommended Decision and the Opportunity to
File Written Exceptions Thereto
Proponents of Proposals 1-2 and 4-5 requested that the Secretary
handle these issues on an expedited basis by omitting a recommended
decision and the opportunity to file exceptions thereto.
The request for emergency treatment is denied. In view of the
denial of Proposals 4 and 5, no benefit would be gained in omitting a
recommended decision. In fact, the interests of proponents would be
furthered by providing them with an opportunity to file exceptions to
this recommended decision.
Although proponents of Proposals 1 and 2 also requested emergency
consideration of their proposals at the hearing and no objections were
expressed either at the hearing or in post-hearing briefs, interested
parties were not notified of the possible expedited handling of these
proposals in the hearing notice that was issued. In view of this, and
in conjunction with the normal handling of Proposals 4 and 5, the
request for emergency treatment with respect to Proposals 1 and 2 also
is denied.
Non-material Issue: Correction to Sec. 1007.50(d). Paragraph (d) of
Section 50 of the Southeast order should be corrected to reflect the
appropriate order language. The changes resulting from the 27-market
Class III-A proceeding (DA-91-13) and included in the December 31,
1993, Federal Register at 58 FR 63286 were adopted by reference at 60
FR 25036 in the final decision for the Southeast order. However, in the
process of preparing the final decision and final order for the
Southeast marketing area, the revised language in Sec. 1007.50(d) was
inadvertently overlooked.
Rulings on Proposed Findings and Conclusions
Briefs and proposed findings and conclusions were filed on behalf
of certain interested parties. These briefs, proposed findings and
conclusions, and the evidence in the record were considered in making
the findings and conclusions set forth above. To the extent that the
suggested findings and conclusions filed by interested parties are
inconsistent with the findings and conclusions set forth herein, the
requests to make such findings or reach such conclusions are denied for
the reasons previously stated in this decision.
General Findings
The findings and determinations hereinafter set forth supplement
those that were made when the orders were first issued and when they
were amended. The previous findings and determinations are hereby
ratified and confirmed, except where they may conflict with those set
forth herein.
The following findings are hereby made with respect to the
Southeast tentative marketing agreement and order:
(a) The tentative marketing agreement and the order, as hereby
proposed to be amended, and all of the terms and conditions thereof,
will tend to effectuate the declared policy of the Act;
(b) The parity prices of milk as determined pursuant to section 2
of the Act are not reasonable in view of the price of feeds, available
supplies of feeds, and other economic conditions which affect market
supply and demand for milk in the aforesaid marketing area, and the
minimum prices specified in the tentative marketing agreement and the
order, as hereby proposed to be amended, are such prices as will
reflect the aforesaid factors, insure a sufficient quantity of pure and
wholesome milk, and be in the public interest; and
(c) The tentative marketing agreement and the order, as hereby
proposed to be amended, will regulate the handling of milk in the same
manner as, and will be applicable only to persons in the respective
classes of industrial and commercial activity specified in, a marketing
agreement upon which a hearing has been held.
Recommended Marketing Agreement and Order Amending the Order
The recommended marketing agreement is not included in this
decision because the regulatory provisions thereof would be the same as
those contained in the order, as hereby proposed to be amended. The
following order amending the order, as amended, regulating the handling
of milk in the Southeast marketing area is recommended as the detailed
and appropriate means by which the foregoing conclusions may be carried
out.
[[Page 66936]]
List of Subjects in 7 CFR Part 1007
Milk marketing orders.
For the reasons set forth in the preamble, the following provisions
in 7 CFR part 1007, are proposed to be amended as follows:
PART 1007--MILK IN THE SOUTHEAST MARKETING AREA
1. The authority citation for 7 CFR part 1007 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
Sec. 1007.2 [Amended]
2. In Sec. 1007.2, Zone 11, the words ``(more than 20 miles from
the Mobile city hall)'' are removed following the word ``Mobile'' and
the words ``(north of State Highway 16)'' are added following the word
``Tangipahoa''.
3. In Sec. 1007.2, Zone 12, the words ``Alabama counties: Mobile
(within 20 miles of the Mobile city hall).'' are removed and the words
``Tangipahoa (south of State Highway 16)'' are added following the word
``St. Mary,''.
Sec. 1007.50 [Amended]
4. In Sec. 1007.50(d), the words ``value per hundredweight of 3.5
percent milk and rounded to the nearest cent, and subject to the
adjustments set forth in paragraph (c) of this section for the
applicable month'' are removed and the words ``times 35 and rounded to
the nearest cent'' are added in their place.
Dated: December 18, 1995.
Lon Hatamiya,
Administrator.
[FR Doc. 95-31272 Filed 12-26-95; 8:45 am]
BILLING CODE 3410-02-P
Complete official Federal Register PDF
FR Doc. 95-31261 Deposit Liabilities, Withdrawal of Proposed Rule
[Federal Register Volume 60, Number 248 (Wednesday, December 27, 1995)]
[Proposed Rules]
[Pages 66951-66952]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-31261]
=======================================================================
-----------------------------------------------------------------------
FEDERAL DEPOSIT INSURANCE CORPORATION
12 CFR Part 354
RIN 3064-AA92
Deposit Liabilities, Withdrawal of Proposed Rule
AGENCY: Federal Deposit Insurance Corporation (FDIC).
ACTION: Withdrawal of proposed rule.
-----------------------------------------------------------------------
SUMMARY: The FDIC is withdrawing a proposal issued in 1988 prescribing
by regulation that certain liabilities of an insured depository
institution are deposit liabilities by general usage. The proposal
would have found that an institution's liability on certain obligations
issued by the institution as a means of obtaining funds constitutes a
deposit liability. The FDIC has decided to withdraw the proposed rule
because an FDIC policy statement recommends withdrawal of proposed
rules that have not been acted upon by the Board of Directors within
nine months.
DATES: This withdrawal of the proposed rule is made on December 27,
1995.
[[Page 66952]]
FOR FURTHER INFORMATION CONTACT: Jamey Basham, Counsel, (202) 898-
7265, Legal Division, FDIC, 550 17th Street, N.W., Washington, D.C.
20429.
SUPPLEMENTARY INFORMATION:
The Proposed Rule
On November 25, 1988, the FDIC published a proposed rule dealing
with the definition of the term ``deposit.'' 1 In that rulemaking,
the FDIC proposed that an insured depository institution's liability on
a promissory note, bond, acknowledgement of advance, or similar
obligation that is issued or undertaken by the institution as a means
of obtaining funds would be a deposit liability. The proposed rule
would have allowed a number of enumerated exceptions to the general
provision.
\1\ 53 FR 47723
---------------------------------------------------------------------------
The proposal was issued because the FDIC had become aware over a
period of years that institutions were issuing obligations generically
known as ``deposit notes,'' which typically were general credit
obligations of the institution; were represented to customers as
deposits; were designated as deposits on the issuer's report of
condition; and for which deposit insurance assessments were paid. In
addition, institutions were issuing instruments generally known as
``bank notes,'' which were also general obligations of the institution
but were not otherwise treated as deposits by the institution and may
or may not have contained representations to the customer about the
instruments' deposit status. Although the FDIC believes that many of
these transactions fall within section 3(l)(1) of the Federal Deposit
Insurance Act (Act), 12 U.S.C. 1813(l)(1), defining what constitutes a
``deposit,'' the FDIC proposed to use its authority under section
3(l)(5) of the Act, 12 U.S.C. 1813(l)(5), to determine that certain
liabilities are deposits by general usage.
The Policy Statement
An FDIC Statement of Policy 2 provides that any regulation
upon which final action by the Board of Directors has not been taken
within nine months from the date the regulation was last proposed will
be formally withdrawn. If any proposed regulation is so withdrawn, the
Board of Directors reserves the right to begin the rulemaking process
anew (i.e., republish in the Federal Register, resolicit public
comments, etc.). The FDIC believes that withdrawal of the proposed rule
is appropriate because no action has been taken with respect to the
proposal for over nine months.
\2\ Statement of Policy on Development and Review of FDIC Rules
and Regulations, 44 FR 7288 (May 30, 1979).
---------------------------------------------------------------------------
In consideration of the foregoing, the FDIC hereby withdraws
proposed new part 354 of title 12 of the Code of Federal Regulations.
By Order of the Board of Directors.
Dated at Washington, D.C., this 19th day of December, 1995.
Federal Deposit Insurance Corporation.
Robert E. Feldman,
Deputy Executive Secretary.
[FR Doc. 95-31261 Filed 12-26-95; 8:45 am]
BILLING CODE 6174-01-P
Complete official Federal Register PDF
FR Doc. 95-31205 Federal Acquisition Regulation; Buy American ActConstruction (Grimberg Decision)
[Federal Register Volume 60, Number 248 (Wednesday, December 27, 1995)]
[Proposed Rules]
[Pages 67028-67032]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-31205]
[[Page 67027]]
_______________________________________________________________________
Part III
Department of Defense
General Services Administration
National Aeronautics and Space Administration
_______________________________________________________________________
48 CFR Parts 25 and 52
Federal Acquisition Regulation: Buy American Act--Construction
(Grimberg Decision); Proposed Rule
Federal Register / Vol. 60, No. 248 / Wednesday, December 27, 1995 /
Proposed Rules
[[Page 67028]]
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 25 and 52
[FAR Case 91-119]
RIN 9000-AG81
Federal Acquisition Regulation; Buy American Act--Construction
(Grimberg Decision)
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council are considering changes to the Federal
Acquisition Regulation (FAR) to amend FAR Parts 25 and 52 to add
guidance on requests for exceptions to the Buy American Act for
construction. This regulatory action was not subject to Office of
Management and Budget review under Executive Order 12866, dated
September 30, 1993.
DATES: Comment due date: To be considered in the formulation of a final
rule, comments should be submitted on or before February 26, 1996.
ADDRESSES: Comments should be submitted to: General Services
Administration, FAR Secretariat (VRS), 18th & F Streets NW., Room 4037,
Washington, DC 20405.
FOR FURTHER INFORMATION CONTACT: Mr. Edward Loeb at (202) 501-4547 in
reference to this FAR case. For general information, contact the FAR
Secretariat, Room 4037, GS Building, Washington, DC 20405 (202) 501-
4755. Please cite FAR case 91-119.
SUPPLEMENTARY INFORMATION:
A. Background
In its decision in John C. Grimberg Co., Inc. v. U.S., 869 F.2d
1475 (Fed. Cir. 1989), the Court of Appeals for the Federal Circuit in
effect ruled that the current Department of Defense practice of
generally denying post-award waivers of the Buy American Act for
construction contracts is unreasonable. In light of this decision, FAR
revisions are proposed to add guidance on exceptions to the Buy
American Act.
B. Regulatory Flexibility Act
The proposed rule is not expected to have a significant economic
impact on a substantial number of small entities within the meaning of
the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., because
contractors are required to either comply with the Buy American Act or
seek exceptions. An Initial Regulatory Flexibility Analysis has,
therefore, not been performed. Comments are invited from small
businesses and other interested parties. Comments from small entities
concerning the affected FAR subpart will also be considered in
accordance with 5 U.S.C. 610. Such comments must be submitted
separately and should cite 5 U.S.C. 601, et seq. (FAR case 91-119), in
correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act (Pub. L. 96-511) applies because the
proposed revisions impose additional record-keeping requirements or
information collection requirements or collection of information from
offerors, contractors or members of the public which require the
approval of the Office of Management and Budget (OMB) under 44 U.S.C.
3501, et seq. The proposed rule requires contractors proposing to use
foreign construction materials to submit information on the foreign and
domestic construction materials, as well as a justification for use of
foreign materials. This information will be evaluated by the Government
in determining if a request for a waiver of the Buy American Act should
be granted. A request for approval of the new information collection
requirement has been submitted to OMB.
DATES: Comments may be submitted on or before February 26, 1996.
ADDRESSES: Send comments regarding the burden estimate or any other
aspect of the information collection requirement to Mr. Peter Weiss,
FAR Desk Officer, OMB, Room 10102, NEOB, Washington, DC 20503, and a
copy to the FAR Secretariat.
Annual Reporting Burden
Public reporting burden for this collection of information is
estimated to average .5 hours per response, including the time for
reviewing instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information.
The annual reporting burden is estimated to be $37,500 as a result
of the following estimated number of hours of labor for compliance:
Respondents, 1,000; responses per respondent, 5; total annual
responses, 5,000; preparation hours per response, .5; and total
response burden hours, 2,500.
List of Subjects in 48 CFR Parts 25 and 52
Government procurement.
Dated: December 18, 1995.
Edward C. Loeb,
Acting Director, Office of Federal Acquisition Policy.
Therefore, it is proposed that48 CFR parts 25 and 52 be amended as
set forth below:
PART 25--FOREIGN ACQUISITION
1. The authority citation for 48 CFR Parts 25 and 52 continues to
read as follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
25.200 [Amended]
2. Section 25.200 is amended to revise the cite ``41 U.S.C. 10'' to
read ``41 U.S.C. 10a-10d''.
3. Section 25.202 is amended by revising paragraph (a)(1),
redesignating paragraphs (b) through (c) as paragraphs (c) through (d),
and adding a new paragraph (b) to read as follows:
25.202 Policy.
(a) * * *
(1) The cost would be unreasonable (the cost of a particular
domestic construction material shall be determined to be unreasonable
when the cost of such material exceeds the cost of foreign material by
more than 6 percent, unless the agency head determines a higher
percentage to be appropriate; see Executive Order 10582);
* * * * *
(b) Offerors should request an exception to the Buy American Act in
time to allow determination before submission of offers so that,
through competition, economic benefits of the exception are passed
along to the Government. Officials making these determinations shall
consider the feasibility of foregoing the acquisition or of acquiring a
domestic substitute.
* * * * *
25.203, 25.204, and 25.205 [Redesignated as 25.204, 25.206, and
25.207]
4. Sections 25.203, 25.204, and 25.205 are redesignated as 25.204,
25.206, and 25.207, respectively.
4A. A new 25.203 is added to read as follows:
25.203 Exceptions requested before submission of offers.
(a) Any request for exception to the Buy American Act made before
receipt of offers shall be evaluated based on the information in the
applicable clause at 52.225-5, Buy American Act--
[[Page 67029]]
Construction Materials, paragraph (c) and (d) or 52.225-15, Buy
American Act--Construction Materials under European Community and North
American Free Trade Agreements, paragraphs (c) and (d) and may be
supplemented by other information readily available to the contracting
officer.
(b) If an exception to the Buy American Act is granted before
receipt of offers, the excepted material shall be identified in the
clause at 52.225-5 or 52.225-15.
5. Newly designated 25.204 is revised to read as follows:
25.204 Evaluating offers of foreign construction material.
(a) Offerors proposing to use foreign construction material other
than that listed in the applicable clause at 52.225-5(b)(2) or 52.225-
15(b)(3) must provide the information required by paragraphs (c) and
(d) of the respective clauses.
(b) Unless agency regulations specify a higher percentage, the
Government will add to the offer price 6 percent of the cost of any
foreign construction material proposed for exception from the
requirements of the Buy American Act based on the unreasonable cost of
domestic construction materials. If the evaluation of offers results in
a tie between an offer including foreign construction material, as
evaluated, and an offer including solely domestic material, award shall
be made on the offer including solely domestic material. This procedure
does not apply to foreign construction material whose use is excepted
by the Government under the clause at 52.225-5(b)(2) or 52.225-
15(b)(3).
(c) Offerors also may submit alternate offers based on use of
domestic construction material to avoid the possibility that denial of
an exception permitting use of foreign construction material shall
cause rejection of the entire offer.
(d) If an exception to the Buy American Act is granted, the
excepted material shall be listed in the contract.
6. A new 25.205 is added to read as follows:
25.205 Post award exceptions.
(a) If a contractor requests an exception to the Buy American Act
after contract award, the contractor shall explain why the exception
could not have been requested before contract award or otherwise was
not reasonably foreseeable. If the contractor does not submit a
satisfactory explanation, an exception should not be granted unless it
is in the Government's best interests.
(b) Any request for exception to the Buy American Act made after
contract award shall be evaluated based on information similar to that
required before award by the applicable clause at 52.225-5(c) and (d)
or 52.225-15(c) and (d) and/or other information readily available to
the contracting officer.
(c) If an exception to the Buy American Act is granted after
contract award, the contract shall be modified to allow use of the
foreign construction material, and adequate consideration shall be
negotiated. However, when the basis for the exception is the
unreasonable price of a domestic construction material, adequate
consideration shall not be less than the differential established in
25.202(a)(1) or agency procedures.
7. Newly designated Section 25.206 is revised to read as follows:
25.206 Noncompliance.
(a) The contracting officer is responsible for conducting Buy
American Act investigations when available information indicates such
action is warranted.
(b) Unless fraud is suspected, the contracting officer shall notify
the contractor of the apparent unauthorized use of foreign construction
material and request a reply, to include proposed corrective action.
(c) If an investigation reveals that a contractor or subcontractor
has used foreign construction material without authorization, the
contracting officer shall take appropriate action, including one or
more of the following:
(1) If granting an exception to the Buy American Act is
appropriate, the contracting officer may process an exception in
accordance with 25.205.
(2) If an exception to the Buy American Act is not appropriate:
(i) The contracting officer should consider requiring removal and
replacement of the unauthorized foreign construction material.
(ii) If removal and replacement of foreign construction material
incorporated in a building or work would be impracticable, cause undue
delay, or otherwise be detrimental to the interests of the Government,
the contracting officer may determine in writing that the foreign
construction material need not be removed and replaced. Such a
determination does not constitute approval of an exception and should
be so stated in the determination. Further, such a determination does
not affect the Government's right to suspend and/or debar a contractor,
subcontractor or supplier for violation of the Buy American Act, or to
exercise other contractual rights and remedies, such as reducing the
contract price or terminating the contract for default.
(iii) If the noncompliance is sufficiently serious, the contracting
officer should consider exercising appropriate contractual remedies,
such as terminating the contract for default. The contracting officer
should also consider preparing and forwarding a report for suspension
and/or debarment, including findings and supporting evidence in
accordance with FAR subpart 9.4, Debarment, Suspension, and
Ineligibility. In addition, if the noncompliance appears to be
fraudulent, the contracting officer should consider referring the
matter to other appropriate agency officials, such as the officer
responsible for criminal investigation and prosecution.
8. Newly designated Section 25.207 is revised to read as follows:
25.207 Solicitation provision and contract clause.
(a) The contracting officer shall insert the provision at 52.225-X,
Notice of Buy American Act--Construction Materials, in solicitations
for construction when the clause at 52.225-5, Buy American Act--
Construction Materials, is prescribed.
(b) The contracting officer shall insert the clause at 52.225-5,
Buy American Act--Construction Materials, in solicitations and
contracts for construction inside the United States, except when the
clause at 52.225-15, Buy American Act--Construction Materials under
European Community and North American Free Trade Agreements, is
prescribed.
(c) The contracting officer shall insert the provision at 52.225-
XX, Notice of Buy American Act Requirement--Construction Materials
under European Community and North American Free Trade Agreements, in
solicitations for construction when the clause at 52.225-15, Buy
American Act--Construction Materials under European Community and North
American Free Trade Agreements, is prescribed.
(d) The contracting officer shall insert the clause at 52.225-15,
Buy American Act--Construction Materials under European Community and
North American Free Trade Agreements, in solicitations and contracts
for construction inside the United States with an estimated acquisition
value of $6,500,000 ($8,000,000 for the Power Marketing
Administrations) or more, to be awarded by agencies listed in 25.407.
[[Page 67030]]
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
9. Section 52.225-X is added to read as follows:
52.225-X Notice of Buy American Act requirement--construction
materials.
As prescribed in 25.207(a), insert the following provision:
Notice of Buy American Act Requirement--Construction Materials (Date)
(a) Offerors are required to comply with the requirements of FAR
clause 52.225-5, Buy American Act--Construction Materials, of this
solicitation. The terms ``construction material'' and ``domestic
construction material'' as used in this provision, have the meanings
set forth in FAR clause 52.225-5(a), Definitions.
(b) Offerors should request an exception to the Buy American Act
in time to allow determination before submission of offers. For
evaluation of a request for an exception to the requirements of the
Buy American Act prior to bid opening, the information and
applicable supporting data required by FAR clause 52.225-5(c) and
(d) shall be included in the request. If a request has not been made
before the time set for receipt of offers or a response has not been
received to a request made prior to receipt of offers, the
information and supporting data shall be included in the offer.
(c) Evaluation of offers. (1) For evaluation of offers, (unless
agency regulations specify a higher percentage) the Government will
add to the offer price 6 percent of the cost of any foreign
construction material proposed for exception from the requirements
of the Buy American Act based on claimed unreasonable cost of
domestic construction materials.
(2) If the evaluation of offers results in a tie between an
offer including foreign construction material, as evaluated, and an
offer including solely domestic material, award shall be made on the
offer including solely domestic material.
(3) This procedure does not apply to foreign construction
material whose use is excepted by the Government under FAR clause
52.225-5(b)(2) of the solicitation.
(d) Alternate offerors. (1) When an offer includes foreign
construction material, offerors also may submit alternate offers
based on use of domestic construction material.
(2) If alternate offers are submitted, a separate SF 1442 shall
be submitted for each alternate offer, and a separate price
comparison table prepared in accordance with FAR clause 52.225-5(c)
and (d) shall be submitted for each offer that is based on the use
of any foreign construction material.
(3) If a particular exception requested under FAR clause 52.225-
5(c), is not approved--
(i) The Government will evaluate only offers based on use of the
equivalent domestic construction material, and the offeror shall be
required to furnish such domestic construction material;
(ii) In sealed bid procurements, any offer based on use of that
particular foreign construction material must be rejected as
nonresponsive; and
(iii) In negotiated procurements, any offer based on use of that
particular foreign construction material may not be accepted unless
revised during negotiations.
(End of provision)
10. Section 52.225-5 is amended by revising the introductory
paragraph; revising the clause date; revising paragraph (a)
introductory text; by removing the phrase ``as used in this clause''
from the definitions of ``Components'', ``Construction materials'' and
``Domestic construction materials''; by revising paragraph (b); and
adding paragraphs (c) and (d) to read as follows:
52.225-5 Buy American Act--construction materials.
As prescribed in 25.207(b), insert the following clause:
Buy American Act--Construction Materials (Date)
(a) Definitions. As used in this clause
* * * * *
(b)(1) The Buy American Act (41 U.S.C. 10(a)-10(d)) requires
that only domestic construction material be used in performing this
contract, except as provided in subparagraphs (b)(2) or (b)(3) of
this clause.
(2) This requirement does not apply to the excepted construction
material or components listed by the Government below:
----------------------------------------------------------------------
(list applicable accepted materials or indicate ``none''.)
(3) Other foreign construction material may be used if the
Government determines that--
(i) The cost would be unreasonable (the cost of a particular
domestic construction material shall be determined to be
unreasonable when the cost of such material exceeds the cost of
foreign material by more than 6 percent, unless the agency head
determines a higher percentage to be appropriate);
(ii) The use of a particular domestic construction material
would be impracticable; or
(iii) The construction material is not mined, produced, or
manufactured in the United States in sufficient and reasonably
available commercial quantities of a satisfactory quality.
(4) The Contractor agrees that only domestic construction
material will be used by the Contractor, subcontractors, material
men, and suppliers in the performance of this contract, except for
foreign construction materials, if any--
(i) Listed in paragraph (b)(2) of this clause; or
(ii) Proposed by the Contractor and approved by the Government
in accordance with paragraphs (c) and (d) of this clause.
(c) Request for exceptions. (1) Contractors proposing to use
foreign construction material shall provide adequate information for
Government evaluation of the request for exception to the Buy
American Act. Each submission shall include a description of the
foreign and domestic construction materials, including unit of
measure, quantity, prices and time of delivery or availability,
location of the construction project, name and address of the
proposed contractor, and a detailed justification of the reason for
use of foreign materials cited in accordance with subparagraph
(b)(3) of this clause. A submission based on unreasonable cost shall
include a reasonable survey of the market and a completed price
comparison table in the format in paragraph (d) of this clause. The
price of construction material shall include all delivery costs to
the construction site and any applicable duty (whether or not a
duty-free certificate may be issued).
(2) If an exception to the Buy American Act is granted after
contract award, the contract shall be modified to allow use of the
foreign construction material, and adequate consideration shall be
negotiated. However, when the basis for the exception is the
unreasonable price of a domestic construction material, adequate
consideration shall not be less than the differential established in
subparagraph (b)(3)(i) of this clause.
(3) If a request for an exception to the Buy American Act is not
granted, the use of that particular foreign construction material
will be a failure to comply with the Act.
(d) For evaluation of requests under paragraph (c) of this
clause, the following information and any applicable supporting data
based on the canvas of suppliers shall be included in the request.
Foreign and Domestic Construction Materials Price Comparison
------------------------------------------------------------------------
Unit of Price
Construction material description measure Quantity (dollars)
------------------------------------------------------------------------
Item 1:
Foreign construction material.. ........... ........... ...........
Domestic construction material. ........... ........... ...........
Item 2:
Foreign construction material.. ........... ........... ...........
Domestic construction material. ........... ........... ...........
[[Page 67031]]
List name, address, telephone number and contact for suppliers surveyed.
Attach copy of response; if oral, attach summary.
Include other applicable supporting information.
------------------------------------------------------------------------
Include all delivery costs to the construction site and any applicable
duty (whether or not a duty-free entry certificate is issued).
(End of clause)
11. Section 52.225-XX is added to read as follows:
52.225-XX Notice of Buy American Act requirement--construction
materials under European Community and North American Free Trade
Agreements.
As prescribed in 25.207(c), insert the following provision:
Notice of Buy American Act Requirement--Construction Materials Under
European Community and North American Free Trade Agreements (Date)
(a) Offerors are required to comply with the requirements of
Federal Acquisition Regulation (FAR) clause 52.225-15 of this
solicitation. The definitions set forth at 52.225-15(a) have the
same meaning in this provision.
(b) Offerors should request an exception to the Buy American Act
in time to allow determination before receipt of offers. For
evaluation of a request for an exception to the requirements of the
Buy American Act prior to bid opening, the information and
applicable supporting data required by 52.225-15 (c) and (d) shall
be included in the request. If a request has not been made before
the time set for receipt of offers or a response has not been
received to a request made prior to receipt of offers, the
information and supporting data shall be included in the offer.
(c) Evaluation of offers. (1) For evaluation of offers, (unless
agency regulations specify a higher percentage) the Government will
add to the offer price 6 percent of the cost of any foreign
construction material proposed for exception from the requirements
of the Buy American Act based on claimed unreasonable cost of
domestic construction materials.
(2) If the evaluation of offers results in a tie between an
offer including foreign construction material, as evaluated, and an
offer including solely domestic material, award shall be made on the
offer including solely domestic material.
(3) This procedure does not apply to foreign construction
material whose use is excepted by the Government under 52.225-
15(b)(3) of the solicitation.
(d) Alternate offers. (1) When an offer includes foreign
construction material, offerors also may submit alternate offers
based on use of domestic construction material.
(2) If alternate offers are submitted, a separate SF 1442 shall
be submitted for each alternate offer, and a separate price
comparison table prepared in accordance with 52.225-15 (c) and (d)
shall be submitted for each alternate offer that is based on the use
of any foreign construction material.
(3) If a particular exception requested under 52.225 15(c) is
not approved--
(i) The Government will evaluate only offers based on use of the
equivalent domestic construction material, and the offeror shall be
required to furnish such domestic construction material;
(ii) In sealed bid procurements, any offer based on use of that
particular foreign construction material must be rejected as
nonresponsive; and.
(iii) In negotiated procurements, any offer based on use of that
particular foreign construction material may not be accepted unless
revised during negotiations.
(End of provision)
12. Section 52.225-15 is amended by revising the introductory
paragraph, the clause date, and paragraphs (b) and (c); and adding
paragraph (d) to read as follows:
52.225-15 Buy American Act--Construction Materials under European
Community and North American Free Trade Agreements.
As prescribed in 25.207(d), insert the following clause:
Buy American Act--Construction Materials Under European Community and
North American Free Trade Agreements (Date)
(a) Definitions. As used in this clause--
* * * * *
(b)(1) The Buy American Act (41 U.S.C. 10(a)-10(d)) requires
that only domestic construction material be used in performing this
contract, except as provided in subparagraphs (b)(2), (b)(3), or
(b)(4) of this clause.
(2) The Memorandum of Understanding between the United States of
America and the European Economic Community on Government
Procurement, and the North American Free Trade Agreement (NAFTA),
provide that EC and NAFTA construction materials are exempted from
application of the Buy American Act.
(3) This requirement does not apply to the excepted construction
material or components listed by the Government below:
----------------------------------------------------------------------
(list applicable accepted materials or indicate ``none''.)
(4) Other foreign construction material may be used if the
Government determines that--
(i) The cost would be unreasonable (the cost of a particular
domestic construction material shall be determined to be
unreasonable when the cost of such material exceeds the cost of
foreign material by more than 6 percent, unless the agency head
determines a higher percentage to be appropriate);
(ii) The use of a particular domestic construction material
would be impracticable; or
(iii) The construction material is not mined, produced, or
manufactured in the United States in sufficient and reasonably
available commercial quantities of a satisfactory quality.
(5) The Contractor agrees that only domestic construction
material will be used by the Contractor, subcontractors, material
men, and suppliers in the performance of this contract, except for
foreign construction materials, if any--
(i) Listed in paragraph (b)(3) of this clause; or
(ii) Proposed by the Contractor and approved by the Government
in accordance with paragraphs (c) and (d) of this clause.
(c) Request for exceptions. (1) Contractors proposing to use
foreign construction material shall provide adequate information for
Government evaluation of the request for exception to the Buy
American Act. Each submission shall include a description of the
foreign and domestic construction materials, including unit of
measure, quantity, prices and time of delivery or availability,
location of the construction project, name and address of the
proposed contractor, and a detailed justification or the reason for
use of foreign materials cited in accordance with subparagraph
(b)(3) of this clause. A submission based on unreasonable cost shall
include a reasonable survey of the market and a completed price
comparison table in the format in paragraph (d) of this clause. The
price of construction material shall include all delivery costs to
the construction site and any applicable duty (whether or not a
duty-free certificate may be issued).
(2) If an exception to the Buy American Act is granted after
contract award, the contract shall be modified to allow use of the
foreign construction material, and adequate consideration shall be
negotiated. However, when the basis for the exception is the
unreasonable price of a domestic construction material, adequate
consideration shall not be less than the differential established in
subparagraph (b)(4)(i) of this clause.
(3) If a request for an exception to the Buy American Act is not
granted, the use of that particular foreign construction material
will be a failure to comply with the Act.
(d) For evaluation of requests under paragraph (c) of this
clause, the following information and any applicable supporting data
based on the canvas of suppliers shall be included in the request.
[[Page 67032]]
Foreign and Domestic Construction Materials Price Comparison
------------------------------------------------------------------------
Construction material Unit of Price
description measure Quantity (dollars)*
------------------------------------------------------------------------
Item 1:
Foreign construction ........... ........... $
material.
Domestic construction ........... ........... $
material.
Item 2:
Foreign construction ........... ........... $
material.
Domestic construction ........... ........... $
material.
List name, address, telephone number and contact for suppliers
surveyed. Attach copy of response; if oral, attach summary.
Include other applicable supporting information.
------------------------------------------------------------------------
* Include all delivery costs to the construction site and any applicable
duty (whether or not a duty-free entry certificate is issued).
[End of clause]
[FR Doc. 95-31205 Filed 12-26-95; 8:45 am]
BILLING CODE 6820-EP-P
Complete official Federal Register PDF
FR Doc. 95-31204 Federal Acquisition Regulation; Clause Flowdown
[Federal Register Volume 60, Number 248 (Wednesday, December 27, 1995)]
[Proposed Rules]
[Pages 67024-67025]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-31204]
[[Page 67023]]
_______________________________________________________________________
Part II
Department of Defense
General Services Administration
National Aeronautics and Space Administration
_______________________________________________________________________
48 CFR Parts 46 and 52
Federal Acquisition Regulation: Clause Flowdown; Proposed Rule
Federal Register / Vol. 60, No. 248 / Wednesday, December 27, 1995 /
Proposed Rules
[[Page 67024]]
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 46 and 52
[FAR Case 92-035]
RIN 9000-AG76
Federal Acquisition Regulation; Clause Flowdown
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council (Councils) are proposing to amend the
Federal Acquisition Regulation (FAR) to reduce the number of contract
clauses requiring flowdown to subcontractors. This regulatory action
was not subject to Office of Management and Budget review under
Executive Order 12866, dated September 30, 1993.
DATES: Comments should be submitted on or before February 26, 1996 to
be considered in the formulation of a final rule.
ADDRESSES: Interested parties should submit written comments to:
General Services Administration, FAR Secretariat (VRS), 18th & F
Streets NW., room 4037 Washington, DC 20405.
Please cite FAR case 92-035 in all correspondence related to this
case.
FOR FURTHER INFORMATION CONTACT: Mr. Harry Rosinski at (202) 501-0692
in reference to this FAR case. For general information, contact the FAR
Secretariat, room 4037, GS Building, Washington, DC 20405 (202) 501-
4755. Please cite FAR case 92-035.
SUPPLEMENTARY INFORMATION:
A. Background
The Councils conducted an extensive review of all FAR clauses
requiring flowdown to subcontractors in an effort to eliminate any
unnecessary flowdown requirements. As a result, the Councils are
proposing to eliminate requirements for flowdown of the clauses at FAR
52.215-26, 52.216-5, 52.216-6, 52.216-16, 52.216-17, 52.222-1, 52.236-
21, 52.244-2(i), 52.246-23, 52.246-24, and 52.246-25.
B. Regulatory Flexibility Act
The proposed changes may have a significant economic impact on a
substantial number of small entities within the meaning of the
Regulatory Flexibility Act, 5 U.S.C. 601, et. seq., because it will
reduce administrative burden for Government contractors and their
subcontractors. An Initial Regulatory Flexibility Analysis (IRFA) has
been prepared and will be provided to the Chief Counsel for Advocacy
for the Small Business Administration. A copy of the IRFA may be
obtained from the FAR Secretariat. Comments are invited. Comments from
small entities concerning the affected FAR subpart will be considered
in accordance with 5 U.S.C. 610. Such comments must be submitted
separately and should cite 5 U.S.C. 601, et seq. (FAR case 92-035), in
correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the proposed
changes to the FAR do not impose recordkeeping or information
collection requirements, or collections of information from offerors,
contractors, or members of the public which require the approval of the
Office of Management and Budget under 44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Parts 46 and 52
Government procurement.
Dated: December 18, 1995.
Edward C. Loeb,
Acting Director, Office of Federal Acquisition Policy.
Therefore, it is proposed that 48 CFR parts 46 and 52 be amended as
set forth below:
1. The authority citation for 48 CFR parts 46 and 52 continues to
read as follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 46--QUALITY ASSURANCE
46.806 [Removed]
2. Section 46.806 is removed.
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
52.215-26 [Amended]
3. Section 52.215-26 is amended by revising the date of the clause
to read ``(DATE)'' and by removing paragraph (d).
4. 52.216-5 is amended by revising the introductory paragraph, the
date of the clause, and paragraph (i) to read as follows:
52.216-5 Price Redetermination--Prospective.
As prescribed in 16.205-4, insert the following clause:
PRICE REDETERMINATION--PROSPECTIVE (DATE)
* * * * *
(i) Subcontracts. No subcontract placed under this contract may
provide for payment on a cost-plus-a-percentage-of-cost basis.
* * * * *
(End of clause)
5. Section 52.216-6 is amended by revising the introductory text,
the date of the clause, and paragraph (h) to read as follows:
52.216-6 Price Redetermination--Retroactive.
As prescribed in 16.206-4, insert the following clause:
PRICE REDETERMINATION--RETROACTIVE (DATE)
* * * * *
(h) Subcontracts. No subcontract placed under this contract may
provide for payment on a cost-plus-a-percentage-of-cost basis.
* * * * *
(End of clause)
6. Section 52.216-16 is amended by revising the introductory
paragraph, the date of the clause, and paragraph (h) to read as
follows:
52.216-16 Incentive Price Revision--Firm Target.
As prescribed in 16.405(a), insert the following clause:
INCENTIVE PRICE REVISION--FIRM TARGET (DATE)
* * * * *
(h) Subcontracts. No subcontract placed under this contract may
provide for payment on a cost-plus-a-percentage-of-cost basis.
* * * * *
(End of clause)
* * * * *
7. Section 52.216-17 is amended by revising the introductory
paragraph, the date of the clause, and paragraph (j) to read as
follows:
52.216-17 Incentive Price Revision--Successive Targets.
As prescribed in 16.405(b), insert the following clause:
INCENTIVE PRICE REVISION--SUCCESSIVE TARGETS (DATE)
* * * * *
(j) Subcontracts. No subcontract placed under this contract may
provide for payment on a cost-plus-a-percentage-of-cost basis.
* * * * *
(End of clause)
* * * * *
8. Section 52.222-1 is amended by revising the introductory
paragraph and the date of the clause; by removing the paragraph
designation ``(a)'' in paragraph (a); and by removing paragraph (b).
The revised text reads as follows:
[[Page 67025]]
52.222-1 Notice to the Government of Labor Disputes.
As prescribed in 22.103-5(a), insert the following clause:
NOTICE TO THE GOVERNMENT OF LABOR DISPUTES (DATE)
* * * * *
(End of clause)
52.236-21 [Amended]
9. Section 52.236-21 is amended by revising the date of the clause
to read ``(DATE)'' and by removing paragraph (h).
52.244-2 [Amended]
10. Section 52.244-2 is amended by removing and reserving paragraph
(i).
52.246-23 [Amended]
11. Section 52.246-23 is amended by revising the date of the clause
to read ``(DATE)'' and by removing paragraph (d).
52.246-24 [Amended]
12. Section 52.246-24 is amended by revising the date of the clause
to read ``(DATE)'' and by removing paragraphs (f) and (g).
52.246-25 [Amended]
13. Section 52.246-25 is amended by revising the date of the clause
to read ``(DATE)'' and by removing paragraph (d).
[FR Doc. 95-31204 Filed 12-26-95; 8:45 am]
BILLING CODE 6820-EP-P
Complete official Federal Register PDF
FR Doc. 95-31096 Telecommunications ProgramPostloan Engineering Service Contract
[Federal Register Volume 60, Number 248 (Wednesday, December 27, 1995)]
[Proposed Rules]
[Pages 66936-66951]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-31096]
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
Rural Utilities Service
7 CFR Part 1755
Telecommunications Program--Postloan Engineering Service Contract
Agency: Rural Utilities Service, USDA.
Action: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Rural Utilities Service (RUS), successor to the Rural
Electrification Administration (REA), hereby proposes to amend its
contract for the procurement of postloan engineering services for
telecommunications systems. This action would codify the terms and
conditions of the agreement to be executed between RUS
telecommunications borrowers and consulting engineering firms hired to
design and oversee construction of telecommunications facilities
financed with RUS financing assistance. Several years have passed since
these regulations were last amended and changes in common contract
language have occurred. These amendments would allow contracts to be
more consistent with common practice.
DATES: Written comments must be received by RUS or carry a postmark or
equivalent by January 26, 1996.
ADDRESSES: Written comments should be addressed to Mr. Orren E.
Cameron, III, Director, Telecommunications Standards Division, Rural
Utilities Service, U.S. Department of Agriculture, Ag Box 1598, 14th
and Independence Ave., SW, Washington, DC 20250-1598. RUS requires a
signed original and 3 copies of all comments (7 CFR 1700.30 (e)).
Comments will be available for public inspection during regular
business hours (7 CFR 1.27(b)).
FOR FURTHER INFORMATION CONTACT: Mr. Orren E. Cameron III, Director,
Telecommunications Standards Division, Rural Utilities Service, U.S.
Department of Agriculture, Ag Box 1598, Washington, DC 20250-1598,
telephone number (202) 720-8663.
SUPPLEMENTARY INFORMATION:
Executive Order 12866
This proposed rule has been determined to be not significant for
purposes of Executive Order 12866 and therefore has not been reviewed
by OMB.
Executive Order 12778
This proposed rule has been reviewed under Executive Order 12778,
Civil Justice Reform. If adopted, this proposed rule will not: (1)
Preempt any State or local laws, regulations, or policies, unless they
present an irreconcilable conflict with this rule; (2) Have any
retroactive effect; and (3) Require administrative proceedings before
parties may file suit challenging the provisions of this rule.
Regulatory Flexibility Act Certification
The Administrator of RUS has determined that the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.) does not apply to this rule.
Information Collection and Recordkeeping Requirements
The reporting and recordkeeping requirements contained in the
proposed rule were approved by the Office of Management and Budget
(OMB) pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C.
Chapter 35, as amended) under control number 0572-0059.
Send questions or comments regarding this burden or any other
aspect of these collections of information, including suggestions for
reducing the burden, to F. Lamont Heppe, Jr., Deputy Director, Program
Support Staff, Rural Utilities Service, Ag Box 1522, Washington, DC
20250-1522.
National Environmental Policy Act Certification
RUS has determined that this proposed rule will not significantly
affect the quality of the human environment as defined by the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.). Therefore,
this action does not require an environmental impact statement or
assessment.
Catalog of Federal Domestic Assistance
The program described by this proposed rule is listed in the
Catalog of Federal Domestic Assistance Programs under 10.851, Rural
Telephone Loans and Loan Guarantees. This catalog is available on a
subscription basis from the Superintendent of Documents, the United
States Government Printing Office, Washington, DC 20402-9325.
Executive Order 12372
This proposed rule is excluded from the scope of Executive Order
12372, Intergovernmental Consultation. A Notice of Final Rule entitled
Department Programs and Activities Excluded from Executive Order 12372
(50 FR 47034) exempts RUS loans and loan guarantees to governmental and
nongovernmental entities from coverage under this Order.
National Performance Review
This regulatory action is being taken as part of the National
Performance Review program to eliminate unnecessary regulations and
improve those that remain in force.
Background
Pursuant to 7 CFR part 1753, subpart B, RUS telecommunications
borrowers must use a contract to procure engineering services for
design and construction of facilities which qualify as ``major'' under
that part. The contract required is the RUS Form 217, Postloan
Engineering Services Contract.
The Form 217 contract was developed by REA (predecessor to RUS) to
meet the specific requirements of rural telecommunications borrowers,
and to meet the objectives of the RE Act. It contains provisions to
facilitate the use of RUS-required contract forms for the procurement
of outside plant, central office equipment, special transmission
equipment, and exchange switching equipment buildings. Most of the past
[[Page 66937]]
revisions of the Form 217 contract have been triggered by major
revisions of these other RUS construction contracts. Prior to this
action, the RUS Form 217 contract has never been codified.
A major feature of the Form 217 contract is that engineering fees
are agreed to in a manner that makes it possible to estimate them
accurately in advance. This helps RUS ensure that funding set aside for
the construction and engineering of a project will be adequate.
On November 6, 1992, RUS published an advance notice of proposed
rulemaking (57 FR 53044) to invite comments for possible revisions to
the Form 217. Comments received were considered in developing this
proposed rule. The changes made in this proposed rule are evolutionary.
The duties and responsibilities of the contracting engineer, and its
named representatives, are specified in more detail. Design and
construction monitoring activities are more carefully defined. Many
terms used throughout the contract form are now defined. Details for
handling termination by the owner and the engineer are set forth. RUS
Form 506, used for estimating and closing the contract, is made a part
of the contract. A number of requirements of 7 CFR part 1753, subpart B
are brought in to the contract, including RUS's reduced progress
reporting requirements.
List of Subjects in 7 CFR Part 1755
Loan programs--communications, Reporting and recordkeeping
requirements, Rural areas, Telecommunications.
For reasons set out in the preamble, RUS proposes to amend Chapter
XVII of title 7 of the Code of Federal Regulations as follows:
PART 1755--TELECOMMUNICATIONS STANDARDS AND SPECIFICATIONS FOR
MATERIALS, EQUIPMENT AND CONSTRUCTION
1. The authority citation for part 1755 continues to read as
follows:
Authority: 7 U.S.C. 901 et seq., 1921 et seq.
2. Section 1755.217 is added to read as follows:
Sec. 1755.217 Postloan Engineering Service Contract, RUS Form 217.
Engineering services provided for major construction are to be
covered by the Postloan Engineering Services Contract, RUS Form 217.
The requirements and procedures for the use of this contract are
contained in 7 CFR 1753.17.
Postloan Engineering Services Contract--Telecommunications Systems
AGREEMENT made ________, ____, between ________ (hereinafter
called the ``Owner'') and ________ (hereinafter called the
``Engineer'').
In consideration of the mutual undertakings herein contained,
the parties hereto agree as follows:
Section 1. Definitions. For purposes of this Agreement the
following definitions shall be used:
Administrator. The Administrator of RUS or personnel delegated
authority to act for the Administrator.
Borrower's Environmental Report. An environmental study as
described in 7 CFR 1794. For the purposes of this contract, this is
the level of environmental review as described in 7 CFR 1794
required for the Project by RUS. In most cases of telecommunications
construction, this will be a Borrower's Environmental Report.
Contractor. A provider of goods or services for the Project,
other than the Engineer.
Construction Administration. The coordination of construction
activities.
Construction Drawings. The drawings developed through the
Staking used to guide the construction of outside plant facilities.
Cut Sheets. The complete and sequential plans for Cutover.
Cutover. The orderly integration of new facilities with existing
facilities.
Description of Project. The work and facilities listed by
principal subdivisions in Table 1.
Inspect. To monitor and examine the work of the Contractor,
compare the work to the contract, and note the details and
quantities of construction on records and progress reports.
Inspector. A representative of the Engineer who Inspects
construction and reports compliance or noncompliance to the Resident
Engineer.
Loan Design. Supplemental information which supports a loan
application, as described in 7 CFR 1737.32.
Marker. A physical indicator at the construction site to guide
the Contractor in construction of facilities.
Project. The telecommunications construction and procurements
financed by a particular RUS loan.
Resident Engineer. The representative of the Engineer who is
delegated full time ``on site'' engineering responsibilities for
Construction Administration.
Staking. The determination of the approximate location of the
facilities to be placed and creation of schematic drawings which
show the facilities located with respect to the physical terrain.
Work Sector. A localized portion of the Project.
Section 2. General.
2.01 Financing of the Project. All or part of the financing of
the Project, including costs of materials, construction,
installation, and engineering, shall be by a loan administrated by
RUS.
If the Project is financed in part by the Rural Telephone Bank,
an agency of the United States of America, the references in this
Agreement to ``The United States of America'' and the ``Government''
shall mean the ``Rural Telephone Bank'' as well, and the references
to the ``Administrator'' shall mean the ``Governor'' of the Rural
Telephone Bank as well. If the Project is financed wholly by the
Rural Telephone Bank, the references to ``The United States of
America'' and the ``Government'' shall mean the ``Rural Telephone
Bank'' and the references to the ``Administrator'' shall mean the
``Governor'' of the Rural Telephone Bank.
2.02 Compliance with Regulations. The objective of this
Agreement is for the Owner to obtain assistance in completing a
Project, while complying with RUS postloan construction regulations.
The Engineer shall, therefore, perform all services hereunder, and
render advice and assistance, so as to enable the Owner to comply
with 7 CFR Part 1753 and other applicable RUS regulations.
2.03 General Obligation. The Engineer shall, consistent with
sound professional practices, diligently and competently render the
engineering services required in this Agreement. These engineering
services shall be reasonably necessary or advisable for the
expeditious, economical, and sound design and construction of the
Project listed in Table 1 by means of the services described in this
agreement and its attachments. The Engineer shall also render other
preparatory work as is necessary to place such portion of the
Project in service, except where such duties are excluded from the
terms of this Agreement. The enumeration of specific duties and
obligations to be performed by the Engineer and included herewith,
shall not be construed to limit the foregoing general undertaking of
the Engineer, with reference to such portion of the Project.
2.04 Description of Project. The Project shall consist of the
subdivisions of the work and facilities listed by exchanges in Table
1 attached hereto.
Section 3. Miscellaneous.
3.01 Insurance. The Engineer shall take out and maintain
throughout the contract period the minimum insurance as required in
Subpart C of 7 CFR part 1788 in effect at the date of this
Agreement.
3.02 Project Schedule. The Engineer shall prepare in
collaboration with the Owner, a work and progress report schedule to
facilitate coordination of activities for Cutover of the Owner's
Project. The Engineer shall report construction progress to the
Owner monthly during all times when one or more contracts are open.
3.03 Plans and Specifications. Complete and detailed plans and
specifications, drawings, maps and other engineering documents as
required for the construction of the Project (all of the foregoing
being herein sometimes collectively called the ``plans and
specifications''), shall be prepared by the Engineer, pursuant to
the various attachments to this Agreement, and made a part hereof.
3.04 Scope of services. The Engineer shall not be obligated to
perform any services for the Project or any part thereof except to
the extent that the Project as defined in Table 1, (or the parts
thereof and the services related thereto) are delineated in (1) the
attachments to this Agreement and (2) the plans and specifications
approved by the Owner and the Administrator, as they may be amended
from time to time, prepared pursuant to this Agreement.
[[Page 66938]]
3.05 Standards. All maps, drawings, plans, specifications,
estimates, studies and other engineering documents required to be
prepared or submitted by the Engineer under this Agreement shall
conform to the applicable standard specifications and other forms
prescribed by the Administrator and in effect at the date of this
Agreement.
3.06 Termination by Owner. The Owner may at any time terminate
this Agreement by giving notice to the Engineer, in writing, to that
effect not less than thirty (30) days prior to the effective date of
termination specified in this notice. Such notice shall be deemed
given if delivered or mailed to the last known address of the
Engineer. From and after the effective date specified in such notice
this Agreement shall be terminated.
When termination is initiated by the owner, compensation for
services hereunder shall be computed as far as possible in
accordance with the provisions of the applicable attachment to this
Agreement. To the extent that the provisions of any such attachment
cannot be applied because construction is incomplete at the
effective date of such termination, then the Engineer shall be paid
for engineering services in respect to such incomplete construction,
a sum which shall bear the same ratio to the compensation which
would have been payable under the provisions of any such attachment
to this Agreement, if such construction had been completed. If
requested by the Owner, the Engineer shall submit to the Owner in
duplicate a certified statement of the Engineer's actual expenses in
respect of such incomplete construction. All compensation invoiced
by the Engineer and payable under this paragraph shall be due and
payable thirty (30) days after the approval by the Owner and the
Administrator of the amount due. In any case, compensation shall be
due 30 days after the date Project documentation is delivered to the
Owner under paragraph 3.08 of this Agreement.
3.07 Termination by the Engineer. The Engineer shall have the
right, by giving to the Owner not less than thirty (30) days notice
in writing, to terminate this Agreement if the Engineer shall have
been prevented by conditions beyond the control and without the
fault of the Engineer: (i) from commencing performance of this
Agreement for a period of twelve (12) months from the date of this
Agreement; or (ii) from proceeding with the completion of full
performance of any remaining services, required of the Engineer
pursuant to this Agreement, for a period of six (6) months from the
date of last performance by the Engineer of other services required
pursuant to this Agreement. From and after the effective date
specified in such notice this Agreement shall be terminated, except
that the Engineer shall be entitled to receive compensation for
services performed hereunder, computed and payable in the same
manner as set forth in paragraph 3.06.
3.08 Project Documents. Upon final payment by the Owner to the
Engineer in accordance with the Final Statement of Engineering Fee,
RUS Form 506, the following documents in final form become the
property of the Owner and may be used by the Owner for Project
operation and future development:
1. ``As built'' system maps, in master form (electronic or
original hard copy)
2. Cable schematics
3. Construction sheets
4. Cable assignment sheets
5. All contract documents including attached plans and
specifications and final inventories.
All other documents and engineering records, including
preliminary forms of the above documents, remain the property of the
Engineer.
Upon termination of this Agreement the Engineer shall deliver to
the Owner at a mutually agreeable place within 5 working days after
the date of termination all Project documents (electronic or
original hard copy) including records, map tracings, plans and
specifications, test data, and field notes.
If requested by the Owner upon completion of the Project, the
Engineer shall deliver to the Owner those documents which are the
Owner's property, at a mutually agreed upon place and time.
3.09 Employee's Qualifications. The obligations and duties to
be performed by the Engineer under this Agreement shall be performed
by persons qualified to perform such duties efficiently. The
Engineer, if the Owner shall so direct, shall promptly replace any
Resident Engineer or other person employed by the Engineer in
connection with the Project.
For information of the Owner and the Administrator, the Engineer
shall file with the Owner statements signed by the Engineer of the
qualifications, including resumes of specific experience, and the
duties to be assigned to each Resident Engineer, Inspector and such
other personnel assigned to the Project as may be requested by the
Owner and Administrator.
The term Resident Engineer and Inspector, as used in this
Agreement shall mean a person properly trained and experienced to
perform the services required under the terms of this Agreement, and
does not mean that the person performing those duties must be a
licensed or a registered professional engineer.
3.10 License. The Engineer shall comply with all applicable
statutes pertaining to engineering and warrants that ________ (Fill
in name of individual) who shall be in responsible charge of the
Project possesses license number ________ issued by the State of
________ on the ____ day of ________.
3.11 Payments of Engineer's Employees. For each invoice the
Engineer, if requested by the Owner, shall furnish to the Owner as a
prior condition to payment, a certificate to the effect that all
salaries or wages earned by the employees of the Engineer in
connection with the Project have been fully paid by the Engineer up
to and including a date not more than thirty (30) days prior to the
date of such invoice. Before final payment under this Agreement the
Engineer shall furnish to the Owner a certificate that all of the
employees of the Engineer have been paid for services rendered by
them in connection with the Project, and that all other obligations
which might become a lien upon the Project have been paid.
3.12 Engineer's Records. The Owner and the Administrator shall
have the right to Inspect and audit all payrolls, records, and
accounts of the Engineer relevant to the work performed for the
purposes of this Agreement and the Engineer agrees to provide all
reasonable facilities necessary for such inspection and audit.
3.13 Compensation. For the purpose of this Agreement,
compensation for each type of work covered by the attachments and
thereby made a part of this Agreement shall be as outlined in said
attachments except where compensation is listed as being a ``time
and expense'' basis, in which case the rates in Table 2 attached
hereto (or as subsequently modified by approved amendments to this
Agreement) shall apply.
3.14 Taxes. Any taxes or levies (excluding Federal, State, and
local income taxes) which may be assessed against the Engineer for
services performed or payments for services performed by the
Engineer per this Agreement shall be in addition to the compensation
set forth in the attachments to this Agreement. Such taxes or levies
when paid by the Engineer shall be stated separately on all invoices
and paid by the Owner.
3.15 Interest. Interest at the rate of ____ percent (____%) per
annum shall be paid by the Owner to the Engineer on any unpaid
balance due the Engineer, commencing thirty (30) days after the
receipt of the Engineer's invoice, provided that the delay in
payment beyond such time shall not have been caused by any
conditions within the control of the Engineer. Such compensation
shall be paid ten (10) days after the amount of interest has been
determined by the Engineer and the Owner. The start date of interest
accrual is irrespective of the date of the Owner's approval of the
invoice, but the interest computation shall be based on the invoice
approved by the Owner.
3.16 Non-Assignment. The obligations of the Engineer under this
Agreement shall not be assigned without the approval in writing of
the Owner and the Administrator.
3.17 Attachments. The following listed attachments, when
checked in appropriate boxes, are attached to and made a part of
this contract, by this reference:
____ RUS Form 217a--Project Design, Assistance and Coordination;
____ RUS Form 217b--Central Office Equipment Engineering
Services;
____ RUS Form 217c--Transmission Facilities Engineering
Services;
____ RUS Form 217d--Building Engineering Services;
____ RUS Form 217e--Outside Plant Staking Services;
____ RUS Form 217f--Outside Plant Contract Document Phase
Engineering Services; and
____ RUS Form 217g--Outside Plant Construction Phase Engineering
Services.
3.18 Service Addition. When a service listed in paragraph 3.17
above is added to this contract after execution, an amendment to the
Contract is required.
3.19 Engineering Fee. The Engineer shall provide an initial
estimate, monthly updates and a final statement of engineering fees
using RUS Form 506, Statement of
[[Page 66939]]
Engineering Fees, (Exhibit B) or a facsimile thereof. Where a fixed
amount or percentage is used in the attachments checked in section
3.17 above, the same fixed amount or percentage shall be used in the
statement of engineering fees.
3.20 Contract Amendment. When the total engineering fee exceeds
the initial contract estimate by 20% or more, an amendment to the
contract shall be required as set forth in 7 CFR Part 1753.
3.21 Compensation for Corrections. No compensation shall be due
or payable to the Engineer, pursuant to this Agreement, for any
engineering services performed by the Engineer in connection with
effecting of corrections to the design or construction of the
Project, when such corrections are required as a direct result of
failure by the Engineer to properly fulfill one or more of the
Engineer's obligations as set forth in this Agreement.
3.22 Force Majeure. The Engineer shall not be held responsible
for Project delays which are a result of Owner delays, Contractor
delays or acts of God. The Engineer shall not be entitled to
additional compensation unless the delays are the result of the
Owner's negligence.
3.23 Contract Beneficiaries. Nothing under this Agreement shall
be construed to give any rights or benefits in this Agreement to
anyone other than the Owner, the Engineer and the Administrator, and
all duties and responsibilities undertaken pursuant to this
Agreement shall be for the sole and exclusive benefit of the Owner,
Engineer and Administrator and not for the benefit of any other
party. This paragraph does not relieve the Engineer of any
obligation or responsibilities conferred upon licensed engineers
under State law.
3.24 Addenda. Any addenda required for this contract should be
placed before Table 1.
3.25 Contract Completion and Closeout. Upon completion of all
services covered by this Contract, the Engineer shall execute the
Final Statement of Engineering Fee, RUS Form 506, and submit copies
to the Owner as prescribed under 7 CFR 1753 Subpart B.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed.
________ Owner
By ________ President
ATTEST: ________ Secretary
________ Engineer
By ________ President, Partner (Strike out inapplicable
Designation--If partnership, all partners shall sign)
ATTEST: ________ Secretary
Table 1
------------------------------------------------------------------------
Description of project (Attach supplemental sheets, as required)
-------------------------------------------------------------------------
____ EXCHANGE
MILEAGE OF OUTSIDE PLANT ____
EQUIPMENT BUILDING \1\ ____
CENTRAL OFFICE EQUIPMENT \1\ ____
ASSOCIATED FACILITIES \2\ ____
OTHER \3\ ____
EXCLUDED SERVICES \2\ ____
------------------------------------------------------------------------
\1\ Insert ``new'' or ``additional'' or ``none'' as appropriate.
\2\ Insert ``none'' or list as appropriate.
\3\ Describe.
Table 2
------------------------------------------------------------------------
Schedule of Time, Expense and Equipment Usage Rates, Dated ____
-------------------------------------------------------------------------
1. Time Rates. Includes all costs associated with the employees except
for those itemized in Paragraph 2, below. Job Classification and
Employee Name, if Known ________ Hourly Billing Rate ____ (Attached
supplemental sheet, as required)
2. Expense Rates. These shall include subsistence expense, if any, paid
to (or on behalf of) employees; plus reasonable employee transportation
costs; plus the cost of printing (including mailing and transportation
expenses), telephone, facsimile, and other materials and equipment
related to the Project.
3. Test Equipment and Computer Usage Rates. Description of Equipment
________ Hourly Billing Rate ____ (Attached supplemental sheet, as
required)
4. Review of Rates. To the extent that the completion date of the
Agreement, to which this Table 2 applies, shall extend 12 months beyond
the date when this Agreement is originally executed; and on each
subsequent anniversary of such Agreement this schedule of rates shall
be verified or modified in writing by the Parties, to new rates
mutually agreeable to the Parties to such Agreement, until Completion
or Termination of such Agreement as provided therein.
5. Information for Owner. With each invoice for payment, the Engineer
shall furnish the Owner information of the type outlined in a jointly
approved format similar to that shown in Exhibit A.
6. Compensation Payment. Unless otherwise specified in this Agreement,
compensation payable pursuant to Table 2 shall be due and payable ten
(10) days after approval of the Owner of the service performed and the
invoice of the Engineer, including the detail breakdown of the cost by
the portion of the Project and section of the contract for which the
service was performed. The Engineer shall be notified, within ten (10)
days of receipt of invoices, of any discrepancies which require
correction or addition as precedent for payment of such invoices by the
Owner.
------------------------------------------------------------------------
EXHIBIT A
Suggested Information and Format for Time and Expense Billing
Certificate of Time, Expense and Equipment Usage Charges
Project Designation:---------------------------------------------------
Postloan Engineering Contract, RUS Form 217:---------------------------
Name:------------------------------------------------------------------
Dated:-----------------------------------------------------------------
Classification:--------------------------------------------------------
Invoice period ending:-------------------------------------------------
Date:------------------------------------------------------------------
Service Performed *-----------------------------------------------
\*\ Service performed to be included by description of activity
and by reference to paragraph number in RUS Form 217 Attachment.
Example: Pre-Bid Conference: 217c 3 refers to conducting Pre-Bid
Conference.
---------------------------------------------------------------------------
Hourly Rate----------------------------------------------------------
Number of Hours------------------------------------------------------
Extended Costs-------------------------------------------------------
Miles Driven-----------------------------------------------------------
Cost Per Mile--------------------------------------------------------
Extended Costs-------------------------------------------------------
Other Transportation---------------------------------------------------
Air Travel-----------------------------------------------------------
Other (Explain)------------------------------------------------------
Extended Costs-------------------------------------------------------
Lodging----------------------------------------------------------------
Subsistence------------------------------------------------------------
[[Page 66940]]
-----------------------------------------------------------------------
Computer---------------------------------------------------------------
Rate-----------------------------------------------------------------
Hours----------------------------------------------------------------
Extended Costs-------------------------------------------------------
Date:------------------------------------------------------------------
Equipment Rental:
COE Test Equipment-----------------------------------------------------
Hourly Rate----------------------------------------------------------
Number of Hours------------------------------------------------------
Extended Costs---------------------------------------------------------
O. P. Test Equipment---------------------------------------------------
Hourly Rate----------------------------------------------------------
Number of Hours------------------------------------------------------
Extended Costs-------------------------------------------------------
Transmission Testing---------------------------------------------------
Hourly Rate----------------------------------------------------------
Number of Hours------------------------------------------------------
Extended Costs-------------------------------------------------------
OTHER EXPENSES:
Telephone Charges------------------------------------------------------
Facsimile Charges------------------------------------------------------
Printing---------------------------------------------------------------
Construction Sheets--------------------------------------------------
Maps-----------------------------------------------------------------
SUBMITTED (by Engineer):-----------------------------------------------
Title------------------------------------------------------------------
Date-------------------------------------------------------------------
APPROVED (by Owner):---------------------------------------------------
Title------------------------------------------------------------------
Date-------------------------------------------------------------------
BILLING CODE 3410-15-P
[[Page 66941]]
[GRAPHIC][TIFF OMITTED]TP27DE95.000
[[Page 66942]]
[GRAPHIC][TIFF OMITTED]TP27DE95.001
BILLING CODE 3410-15-C
[[Page 66943]]
Attachment--RUS Form 217a
Project Design, Assistance and Coordination
Section 1. Project Design.
A. Design. The Project shall be constructed in accordance with
the current Loan Design and Borrower's Environmental Report. Such
Loan Design shall be based on the latest applicable criteria as
specified by the Owner and the Administrator.
When necessary for the preparation of plans and specifications,
the Engineer shall, upon request of the Owner and with the approval
of the Administrator: (1) Revise as necessary the Loan Design and
Borrower's Environmental Report; (2) prepare or revise as necessary
the outside plant design; (3) make measurements and analyses of
existing traffic; (4) make tests of existing cable, including the
determination of field locations for treatment of existing
facilities associated with installation of carrier equipment; and
(5) submit the resulting Loan Design and Borrower's Environmental
Report to the Owner in a format suitable for approval by the
Administrator.
B. Change in Design. If, after the approval of the Loan Design,
Borrower's Environmental Report, or plans and specifications by the
Owner and the Administrator, it shall be determined by the Owner
that any change is required, the Engineer shall prepare such
revisions in the Loan Design, Borrower's Environmental Report, and
plans and specifications, or any part thereof, as is necessitated by
the changes in requirements for service, design criteria, or other
reasons arising during the performance of services for the Project.
Section 2. Assistance To Owner. The Engineer, to the extent
requested by the Owner, shall assist the Owner with obtaining
agreements and authorizations required for the Project, including
without limitation the furnishing of engineering information and
drawings and participating in obtaining:
A. Toll, EAS, operator assistance, special services and other
connecting company commitments;
B. Joint use or joint occupancy agreements with other utilities;
C. Permits for crossing public roads, railroads, navigable
streams or bodies of water;
D. Right-of-way authorizations, easements, and other permits
necessary for encroachment on public or private lands;
E. Authorizations from regulatory bodies and franchises from
public bodies; and
F. Environmental studies and clearances.
Section 3. Coordination. The Engineer, to the extent requested
by the Owner, shall coordinate the work of others engaged in the
Project, including work performed or supervised by the Owner,
architect, and other engineers, to facilitate expeditious and
economical completion of the Project. Services pursuant to this
section shall be in addition to, and shall not include, services
required by other provisions of this Agreement.
Section 4. Plant Records. The Owner shall furnish to the
Engineer current and accurate plant records. If such records are not
available the Owner may direct the Engineer to update existing
records to current status. This may include conversion of existing
records to a new medium.
Section 5. Compensation. The Owner shall pay the Engineer for
services performed pursuant to this RUS Form 217a the ``time and
expense'' compensation as defined in Table 2 of this Agreement.
Section 6. Section Reference. Unless otherwise specified or
indicated, any reference to ``section'' shall mean within this
attachment (RUS Form 217a - Project Design, Assistance and
Coordination).
Attachment--Form 217b
Central Office Equipment Engineering Services
Section 1. Review of Requirements. Prior to the preparation of
plans and specifications, the Engineer shall review with the Owner
the current and future requirements of the Project, in respect to
central office equipment additions, replacements, modifications or
complete new offices. The Engineer, to the extent requested by the
Owner, shall prepare such studies as the Owner may require to
support the selection by the Owner of the final design plan.
Section 2. Plans and Specifications and Contracts.
A. Preparation of Plans and Specifications. Plans and
specifications shall be prepared by the Engineer in accordance with
standard RUS specifications and requirements for central office
equipment, and shall be submitted to the Owner in a format suitable
for approval by the Administrator.
B. Bidders Qualifications. The Engineer shall review with the
Owner all Bidder qualifications and shall prepare and furnish to the
qualified bidders the plans and specifications upon the conditions
provided in the applicable standard RUS contract forms and in
accordance with 7 CFR Part 1753.
C. Bid or Proposal. The Engineer shall be available to each
prospective bidder for consultation with respect to the details of
the plans and specifications and all other matters pertaining to the
preparation of the proposals for the supply of equipment or services
therefore. All changes to or clarifications of the plans and
specifications provided to one prospective bidder shall be provided
by the Engineer in writing to all other prospective bidders and to
the Owner.
The Engineer shall attend and supervise all technical prebid
review meetings and openings of quotes for the furnishing of
equipment or services therefor. Where additions to existing
equipment are proposed, a quote may be solicited from the original
supplier or separate materials and installation contracts may be
requested from several suppliers. The Engineer shall carefully check
all quotes received and shall render to the Owner assistance in
connection with the Owner's consideration of the quotes received so
that contracts may be prudently and properly awarded.
The Engineer shall submit in writing to the Owner
recommendations of first and second choice of bidders stating the
reasons therefor, or, if the analysis of quotes indicates that no
quote is satisfactory because of prices or other conditions, the
Engineer shall recommend to the Owner that all quotes be rejected,
giving reasons therefor. Unless otherwise directed by the Owner, the
Engineer shall proceed in respect to rebidding in the manner
provided for herein for the initial bidding.
D. Award of Contract. The Engineer shall prepare and furnish to
the Owner three (3) copies of a detailed tabulation of all the bids
or quotes and a tabulation showing the bidders' names and totals.
The Owner shall submit to the Administrator the bidding information
required for approval of the award of the contract by the
Administrator. Upon receipt of notice from the Owner of the
Administrator's approval of the award of the contract, the Engineer
shall prepare contracts in accordance with 7 CFR Part 1753.
E. Contract Amendments. If, after the equipment contract and the
installation contract have been approved by the Owner and the
Administrator, it shall be determined by the Owner that any change
or changes in the plans and specifications are advisable, the
Engineer shall prepare and submit a contract amendment in accordance
with 7 CFR Part 1753.
F. Customer Information and Engineering Meeting. If necessary,
the Engineer shall arrange, at a mutually agreeable time, a Customer
Information and Engineering Meeting with the Owner, Contractor and
Engineer to review the Contractor's proposal, equipment lists,
software, data requirements, translation requirements, etc. prior to
beginning of manufacture.
G. Compliance. The Engineer shall review all equipment lists,
manufacturer's drawings, and other data submitted by the Contractor,
to determine apparent compliance of such lists, drawings and other
data with the approved contract. This shall not relieve the
Contractor of its obligation to meet the performance specifications
of the contract.
H. Pre-Installation Meeting. The Engineer shall arrange at a
mutually agreeable time, a pre-installation meeting between the
Contractor, Owner and Engineer, after the installer has arrived at
the contract site, to clarify areas of responsibility, check
scheduling and to determine the Contractor's proposed compliance
with the plans and specifications.
I. Progress Reports. A competent representative of the Engineer
shall make periodic visits to the equipment installation site to
Inspect the progress and quality of the executed work and to
determine, in general, if the work is proceeding in accordance with
the contract. The Engineer shall report at least monthly to the
Owner in writing stating the results of Inspections. When the
Engineer observes any failure of the executed work or work in
progress to comply with the requirements of the contract, this shall
be reported to the Owner immediately. These reports shall include
suitable recommendations. If the engineer observes an unsafe
practice, his only responsibility shall be to consult immediately
with the Contractor and if his concerns are not satisfied, to notify
the Owner immediately.
Section 3. Tests. The Engineer shall conduct, or cause to be
conducted by the installer, such tests of all such equipment as
required by the Owner and the Administrator to determine that the
equipment meets the
[[Page 66944]]
performance requirements of the plans and specifications. The Engineer
shall make recommendations for the correction of performance or
operational difficulties. All cases of performance or operational
difficulties due to faulty installation or defective equipment shall
be reported to the Contractor, for correction. When the corrections
have been made, the Engineer shall retest the equipment. The
Engineer shall furnish test equipment, when required, for all
required tests or measurements performed by the Engineer.
The Owner and a representative of the Administrator will
normally conduct a final inspection of completed construction. When
requested by the Owner, a qualified representative of the Engineer
shall be present.
Section 4. Final Documents. The Engineer shall prepare or cause
to be prepared, and shall submit to the Owner for approval, in a
format suitable for approval by the Administrator, complete and
detailed final documents as specified in 7 CFR 1753 and a statement
showing the total amounts due the Contractor, pursuant to the terms
of the contract, including any amendments thereto. The final
documents shall be submitted for the Owner's approval within forty
(40) calendar days after the completion of construction based on the
date on the certificate of completion covered by each central office
equipment contract and each installation contract.
Section 5. Compensation.
A. Time and Expense. The Owner shall pay the Engineer ``time and
expense'' compensation as outlined in the current Table 2 of this
Agreement for: (1) All services performed pursuant to section 1; (2)
``rebidding'' pursuant to paragraph C of section 2; (3) all services
in connection with additions to, replacement of components in,
modifications of, or removal of, existing central office equipment;
(4) all services pursuant to paragraphs F, H, and I of section 2;
and (5) all services pursuant to section 3.
B. Percent of Cost. The Owner shall pay the Engineer for all
other services performed pursuant to this RUS Form 217b, including
final documents, for each central office equipment contract an
amount equal to: ______ percent (______%) of the first one hundred
thousand dollars ($100,000); plus ______ percent (______%) of the
next three hundred thousand dollars ($300,000); plus ______ percent
(______%) of the balance of the installed cost of such equipment for
each complete new central office equipment contract, and for each
installation contract an amount equal to ______% of such
installation contract. Ninety percent (90%) of such sums shall be
due and payable ten (10) days after approval by the Administrator of
each contract (or force account proposal) and the balance of the
compensation shall be due and payable ten (10) days after approval
by the Owner and the Administrator of a certificate of completion of
installation for each such equipment.
``Installed cost'' shall mean the total cost of labor and
materials of the central office equipment as shown on the final
inventory documents prepared by the Engineer and approved by the
Owner and the Administrator. For a materials only contract,
``installed cost'' shall mean the amount for materials shown on the
final inventory documents.
Section 6. Section Reference. Unless otherwise specified or
indicated, any reference to ``section'' shall mean within this
attachment (RUS Form 217b--Central Office Equipment Engineering
Services).
Attachment--RUS Form 217c
Transmission Facilities Engineering Services
Section 1. Review of Requirements. Prior to the preparation of
plans and specifications for transmission facilities the Engineer
shall review with the Owner the up-to-date requirements of the
Project, as related to transmission facilities.
Section 2. Plans and Specifications. The Engineer shall prepare,
and submit to the Owner in a format suitable for approval by the
Administrator, the plans and specifications for the purchase and
installation of such transmission facilities in sufficient time to
allow normal scheduled delivery and installation of such to
coordinate with the schedule of completion of the Project.
Section 3. Contracts.
A. Bid or Proposal. The Engineer shall be available to each
prospective bidder for consultation with respect to the details of
the plans and specifications and all other matters pertaining to the
preparation of the proposals for the supply of equipment or services
therefor. All changes to or clarifications of the plans and
specifications provided to one prospective bidder shall be provided
by the engineer in writing to all other prospective bidders and to
the Owner.
The Engineer shall attend and supervise all technical prebid
review meetings and openings of quotes for the furnishing of
equipment or services therefor. Where additions to existing
equipment are proposed, a quote may be solicited from the original
supplier or separate materials and installation contracts may be
requested from several suppliers. The Engineer shall carefully check
all quotes received and shall render to the Owner assistance in
connection with the Owner's consideration of the quotes received so
that contracts may be prudently and properly awarded.
The Engineer shall submit in writing to the Owner
recommendations of first and second choice of bidders stating the
reasons therefor, or, if the analysis of quotes indicates that no
quote is satisfactory because of prices or other conditions, the
Engineer shall recommend to the Owner that all quotes be rejected,
giving the reasons therefor. Unless otherwise directed by the Owner,
the Engineer shall proceed in respect to rebidding in the manner
provided for herein for the initial bidding.
B. Award of Contract. Upon receipt of notice from the Owner of
the Administrator's approval of the award of any contract, or bid
proposal, the Engineer shall prepare and submit contracts in
accordance with 7 CFR Part 1753.
C. Contract Amendments. If, after any such contract has been
approved by the Owner and the Administrator, it shall be determined
by the Owner that any change or changes in the plans and
specifications are advisable, the Engineer shall prepare and submit
a contract amendment in accordance with 7 CFR Part 1753.
D. Compliance. The Engineer shall review all equipment lists and
manufacturer's drawings, and other data submitted by the Contractor,
to determine apparent compliance of such lists, drawings and other
data with the approved contract. This shall not relieve the
Contractor of its obligation to meet the performance specifications
of the contract.
E. Pre-Installation Meeting. The Engineer shall arrange, when
requested by the Owner, at a mutually agreeable time, a pre-
installation meeting between the Contractor, Owner and Engineer to
clarify areas of responsibility, check delivery and completion
scheduling and to assure that the Contractor comply with the plans
and specifications.
F. Customer Information and Engineering Meeting. The Engineer
shall arrange, if necessary, at a mutually agreeable time a customer
information and engineering meeting with Owner, Contractor and
Engineer to review the Contractor's proposal, equipment lists,
software, data requirements, translation requirements, etc. prior to
beginning of manufacture.
G. Progress Reports. A competent representative of the Engineer
shall make periodic visits to the equipment installation site to
Inspect the progress and quality of the executed work and to
determine, in general, if the work is proceeding in accordance with
the contract. The Engineer shall report at least monthly to the
Owner in writing stating the results of Inspections. When the
Engineer observes any failure of the executed work or work in
progress to comply with the requirements of the contract, this shall
be reported to the Owner immediately. These reports shall include
suitable recommendations. If the engineer observes an unsafe
practice, his only responsibility shall be to consult immediately
with the Contractor and if his concerns are not satisfied, to notify
the Owner immediately.
Section 4. Tests. The Engineer shall conduct, or cause to be
conducted, such tests as required by the Owner and the Administrator
to determine that the equipment meets the performance requirements
of the plans and specifications. The Engineer shall make
recommendations for the correction of performance or operational
difficulties. All cases of performance or operational difficulties
due to faulty installation or defective equipment shall be reported
to the Contractor for correction. When the corrections have been
made, the Engineer shall retest the equipment. The Engineer shall
furnish test equipment, when required, for all required tests or
measurements performed by the Engineer.
The Owner and a representative of the Administrator will
normally conduct a final inspection of completed construction. When
requested by the Owner, a qualified representative of the Engineer
shall be present.
Section 5. Final Documents. The Engineer shall prepare or cause
to be prepared, and
[[Page 66945]]
shall submit to the Owner for approval, in a format suitable for
approval by the Administrator, complete and detailed final documents
as specified in 7 CFR 1753 and a statement showing the total amounts
due the Contractor, pursuant to the terms of the contract, including
any amendments thereto. The final documents shall be submitted for
the Owner's approval within forty (40) calendar days after the
completion of construction based on the date on the certificate of
completion covered by each transmission facilities contract and each
installation contract.
Section 6. Compensation.
A. Time and Expense. The Owner shall pay the Engineer ``time and
expense'' compensation as defined in the current Table 2 of this
Agreement for: (1) All services performed pursuant to section 1; (2)
all services in connection with additions to, replacement or removal
of components in, modifications of, relocation of existing systems
of transmission facilities; (3) ``rebidding'' pursuant to paragraph
A of section 3; (4) all services pursuant to paragraphs E, F, and G
of section 3; and (5) all services pursuant to section 4.
B. Percent of Cost. The Owner shall pay the Engineer for all
other services pursuant to this RUS Form 217c, including final
documents, for each contract or force account proposal for new
transmission facilities, an amount equal to: ______ percent
(______%) of the first fifty thousand dollars ($50,000.00); plus
______ percent (______%) of the next one hundred fifty thousand
dollars ($150,000.00); plus ______ percent (______%) of the balance
of the installed cost of each such document and for each
installation contract an amount equal to ______% of such document.
Ninety percent (90%) of such sums shall be due and payable ten (10)
days after approval by the Owner of the document for the purchase or
installation of such equipment. The balance of the compensation
shall be due and payable ten (10) days after approval by the Owner
and the Administrator of a certificate of completion of installation
for such equipment.
``Installed cost'' shall mean the total cost of labor and
materials of the transmission facilities as shown on the final
documents prepared by the Engineer and approved by the Owner and the
Administrator. For a material's only contract, ``installed cost''
shall mean the amount for materials shown on the final inventory
documents.
Section 7. Section Reference. Unless otherwise specified or
indicated, any reference to ``section'' shall mean within this
attachment (RUS Form 217c--Transmission Facilities Engineering
Services).
Attachment--RUS Form 217d
Building Engineering Services
Section 1. Review of Requirements. Prior to the preparation of
plans and specifications, the Engineer shall review with the Owner
the current and future requirements for buildings to be constructed
as a part of the Project.
Section 2. Plans and Specifications. The plans and
specifications for the construction of buildings shall be prepared
in sufficient time to allow normal completion of construction of the
buildings at least thirty (30) days prior to delivery of central
office equipment as specified in the central office equipment
contract. The plans and specifications shall, unless otherwise
directed by the Owner, be prepared in accordance with standard RUS
specifications and construction drawings relating thereto.
Additionally, the plans and specifications shall include such
details as the characteristics of the building site(s) may require,
including, without limitation, a plot plan and description of site
development work, if any. The plans and specifications shall be
submitted to the Owner in a format suitable for approval by the
Administrator.
Section 3. Contracts.
A. Bidder's Qualifications. After approval of the plans and
specifications by the Owner and Administrator, notices shall be sent
to prospective bidders in accordance with 7 CFR Part 1753. The names
of those so notified shall be forwarded to the Owner at the time
such notices are sent. The Engineer shall review with the Owner and
the Owner shall approve the qualifications of all prospective
bidders. The Engineer shall prepare and furnish to qualified
contractors requesting them, the plans and specifications upon the
conditions provided in the applicable standard RUS contract forms.
B. Proposals. The Engineer shall be available to each
prospective bidder for consultation with respect to the details of
the plans and specifications and all other matters pertaining to the
preparation of the proposals for the construction of the building(s)
or the supply of materials and equipment or services therefor. All
changes to or clarifications of the plans and specifications
provided to one prospective bidder shall be provided in writing to
all other prospective bidders and to the Owner.
The Owner shall return unopened the bids received from bidders
not specifically qualified to bid the plans and specifications.
The Engineer shall attend and supervise all openings of bids for
the construction of the building(s) or for the furnishing of
materials and equipment or services therefor. In the event that less
than three (3) bids are received from qualified bidders, the bids
shall remain unopened and the Engineer shall notify the
Administrator thereof immediately. Unless otherwise directed by the
Owner, the Engineer shall proceed, in respect of the rebidding, in
the manner provided for herein for the initial bidding. The Engineer
shall carefully check all bids received and shall render to the
Owner all such assistance as shall be required in connection with
consideration of the bids received so that contracts may be
prudently and properly awarded.
The Engineer shall submit in writing to the Owner
recommendations of first, second and third choice of bidders,
stating the reasons therefor, or if the analysis of bids indicates
that no bid is satisfactory because of prices or other conditions,
the engineer shall recommend to the Owner that all bids be rejected,
giving the reasons therefor.
C. Award of Contract. The Engineer shall prepare and furnish to
the Owner three (3) copies of a detailed tabulation of all the bids
and a tabulation showing the bidders' names and totals of all bids.
The Owner shall submit to the Administrator the bidding information
required for approval of the award of the contract by the
Administrator. Upon receipt of notice from the Owner of the
Administrator's approval of the award of the contract, the Engineer
shall prepare contracts in accordance with 7 CFR Part 1753.
D. Contract Amendments. If, after the contract has been approved
by the Administrator it shall be determined by the Owner that any
change or changes in the plans and specifications are advisable, the
Engineer shall prepare and submit a contract amendment in accordance
with 7 CFR Part 1753.
E. Compliance. The Engineer shall review all shop and
manufacturer's drawings, construction detail variations, and other
data submitted by the Contractor, to determine apparent compliance
of such lists, drawings and other data with the approved contract.
This shall not relieve the Contractor of its obligation to comply
with the plans and specifications.
F. Progress Reports. A competent representative of the Engineer
shall make periodic visits to the construction site to Inspect the
progress and quality of the executed work and to determine, in
general, if the work is proceeding in accordance with the contract.
The Engineer shall report at least monthly to the Owner in writing
stating the results of Inspections. When the Engineer observes any
failure of the executed work or work in progress to comply with the
requirements of the contract, this shall be reported to the Owner
immediately. These reports shall include suitable recommendations.
If the Engineer observes an unsafe practice, his only responsibility
shall be to consult immediately with the Contractor and if his
concerns are not satisfied, to notify the Owner immediately.
G. Final Inspection. The Owner and a representative of the
Administrator will normally conduct a final inspection of completed
construction. When requested by the Owner, a qualified
representative of the Engineer shall be present.
Section 4. Final Documents. The Engineer shall prepare, and
shall submit to the Owner in a format suitable for approval by the
Administrator, complete and detailed final documents as specified in
7 CFR 1753 and a statement showing the total amounts due the
Contractor pursuant to the terms of the construction contract,
including any approved amendments thereto. The final documents shall
be submitted for the Owner's approval within sixty (60) calendar
days after the completion of construction based on the date shown on
the certificate of completion covered by each contract.
Section 5. Compensation.
A. Time and Expense. The Owner shall pay the Engineer ``time and
expense'' compensation as defined in the current Table 2 of this
Agreement for: (1) All services performed pursuant to section 1; (2)
services performed for rebidding pursuant to paragraph B of section
3; (3) all services in connection with additions to or modifications
of existing buildings; and (4) inspection of construction pursuant
to paragraphs F and G of section 3.
B. Percent of Cost. The Owner shall pay the Engineer for all
other services performed
[[Page 66946]]
pursuant to this RUS Form 217d, including final documents, for each new
building contract included in the Project an amount equal to: ______
percent (______%) of the first fifty thousand dollars ($50,000.00);
plus ______ percent (______%) of the balance of the cost of
construction thereof, of which sums ninety percent (90%) shall be
due and payable ten (10) days after approval by the Administrator of
a contract (or force account proposal) for the construction of the
buildings; and the balance of the compensation shall be due and
payable ten (10) days after approval by the Owner and the
Administrator of a certificate of completion of construction for all
such buildings included in the Project (or in a completed section of
the Project).
``Cost of construction'' shall mean the total cost of labor and
materials (including Owner-furnished materials and labor) used in
the construction of such buildings as shown on the final documents
prepared by the Engineer and approved by the Owner and
Administrator.
Section 6. Section Reference. Unless otherwise specified or
indicated, any reference to ``section'' shall mean within this
attachment (RUS Form 217d--Building Plans and Specifications and
Contracts).
Attachment--RUS Form 217e
Outside Plant Staking Services
Section 1. Review of Requirements. Prior to the commencement of
Staking, the Engineer shall review with the Owner the current
requirements of the Project with respect to outside plant and
service entrance Staking. At this review, decisions shall be reached
concerning public and private rights-of-way, nominal width of
construction corridors, and design status.
Section 2. Staking Requirements.
A. General.
1. Staking for aerial plant shall include locating the proposed
line and marking all new pole and other locations as necessary to
construct the facilities.
2. Staking for buried plant shall include locating the proposed
facilities indicating all pertinent construction information
including details of the construction corridor.
3. Staking for underground plant shall include locating conduit
systems, construction corridors, marking manhole sites and detailing
all other pertinent information.
4. Staking for service entrances shall include locating
protectors on the structure, the routing of aerial or buried
entrances and the placement of markers, if required, to indicate
construction information.
B. Commencement. The Engineer, with the approval of the Owner,
shall determine when Staking of the Project shall begin. The
Engineer shall not commence Staking in any area of the Project until
the Owner has:
1. Either (a) stated in writing that right-of-way authorizations
and easements reasonably required therefor have been procured, or
(b) directed the Engineer in writing to perform right-of-way
procurement under section 2, paragraph D, of RUS Form 217a--Project
Design, Assistance, and Coordination;
2. Identified to the Engineer, by map locations, which line
segments shall be staked on public right-of-way and which line
segments shall be staked on privately owned right-of-way; and
3. Provided information to the Engineer pertaining to
limitations on width of construction corridors for each such line
segment.
The Owner shall review with the Engineer, and shall inform the
Engineer, which specific lines are to be staked. The Owner shall
furnish to the Engineer a current list of all existing and potential
subscribers by map location and grade of service for whom service is
to be furnished. When requested by the Engineer, the Owner shall
also furnish the telephone numbers of the existing subscribers. In
determining when to proceed with Staking, farming operations and
other relevant conditions shall be taken into consideration so as to
minimize the need for restaking. The Owner, when requested by the
Engineer, shall furnish a qualified person to accompany each Staking
crew for the purpose of negotiating with landowners or tenants with
respect to such right-of-way authorizations and easements, widths of
construction corridors, and locations of proposed facilities.
C. Changes.
1. If, during the progress of Staking by the Engineer, the Owner
shall change the routing or location of a particular line segment,
the Owner shall as early as practicable, notify the Engineer of such
changes. Upon such notice the Engineer shall duly note such change
and instruct the Staking crews accordingly. The same procedure shall
be followed for changes made in type or quantity of facilities
during the Staking phase of the Project.
2. If during the process of Staking, the Engineer determines
that the routing of facilities along the right-of-way designated by
the Owner would result in high costs of placement due to obstacles,
inadequate construction corridors, or other circumstances, the
Engineer shall notify the Owner and recommend alternative routing.
If alternative routing is approved by the Owner and right-of-way can
be obtained, the Engineer shall arrange to stake the facilities
along the alternate route.
D. Time of Staking.
1. The Engineer shall proceed diligently with Staking and
continue therewith in such a manner that, prior to the release of
plans and specifications to bidders, the Staking of all outside
plant facilities except service entrances shall be complete in order
that the plans and specifications shall be complete and accurate.
2. If service entrances are included in the construction
contract, Staking of the service entrances shall be completed prior
to beginning of construction in a Work Sector. If such Staking is
being performed by the Owner, the Engineer shall keep the Owner
advised of the status of construction and the Owner shall do the
Staking in a timely manner.
3. The Engineer shall perform all restaking made necessary by
changes discussed under paragraph C of section 2, above, as
necessary to minimize delays in construction.
E. Manner of Staking. The Staking shall be done in a thorough
and workmanlike manner such that construction can be completed in
accordance with the latest revision of the National Electrical
Safety Code, National Electric Code, local and State laws, rules,
regulations and orders of regulatory bodies having jurisdiction; and
the Loan Design, Borrower's Environmental Report, and specifications
approved by the Owner and the Administrator. The Engineer shall in
no case stake lines other than those shown in the approved Loan
Design except for minor re-routing and minor changes dictated by
field conditions, unless such change shall have been previously
approved by the Owner and the Administrator. The Engineer shall
replace all markers lost or removed prior to or during construction
of the Project. All costs, including costs of markers, equipment,
and other materials used in connection with the Staking, shall be
borne by the Engineer. All markers and existing poles shall be
properly identified with corresponding listing on the construction
sheets. Where it is probable that the Contractor or the Owner will
have difficulty in locating markers, the Engineer shall provide some
other suitable means to identify the location. When Staking service
entrances, the Engineer shall give due consideration to the location
of the station protector (or network interface device if it
incorporates a station protector) in relation to the availability of
adequate grounding and the length of the service drop and station
wiring.
F. Construction Sheets. The Engineer shall prepare or maintain
construction sheets in such standard form as the Owner shall require
(and as hereinafter described) to: serve as the means by which
directions are given for the construction of the Project; serve as
the permanent plant record by the Owner's facilities as built; and
identify adequately the geographical location of the facilities,
including non-standard construction corridors and cable placement
locations. The Engineer shall enter thereon all pertinent and useful
design, specifications and data governing the construction of the
Project, including, without limitations:
1. Detailed instructions on the point of attachment of the
Owner's facilities on existing pole lines employed in joint use with
others;
2. Non-standard depths for installing buried and underground
facilities;
3. The presence, but not location of, buried facilities of other
utilities when known;
4. The presence of rock when known;
5. Vegetation clearing requirements; and
6. Surface type and surface features of terrain if appropriate.
Copies of construction sheets shall be made available for sale
to all prospective bidders in advance of the pre-bid conference. For
contract construction five counterparts of the construction sheets
shall be supplied by the Engineer to the Contractor for construction
use and two copies shall be supplied to the Owner. For force account
construction three copies of the construction sheets shall be
supplied to the Owner. When revisions in Staking are necessary, the
Engineer shall issue copies of the revised construction sheets.
G. Resident Engineer. A competent Resident Engineer, with full
authority to act for the Engineer per this attachment shall be
[[Page 66947]]
maintained by the Engineer at the site of the Project at all times when
Staking or other services required under this attachment are being
performed at the site of this Project. The Resident Engineer may
also be engaged in Staking as well as in supervising the Staking
activities of other Staking crews of the Engineer. The Engineer
shall establish and maintain, in the proximity of the Project, a
field office with telephone service at all times when Staking or
other services required under this RUS Form 217e are in progress.
H. Reporting. The Engineer shall prepare, execute, and submit to
the Owner ____________________ (insert frequency of reporting--
minimal monthly) all estimates, certificates, reports and other
documents required to be executed by the Engineer pursuant to the
loan contract.
I. Joint Use or Joint Occupancy. In connection with Staking of
joint use or joint occupancy facilities the Engineer shall:
1. Prepare and submit to the Owner for approval, detailed
information on pole changes, additional poles, and other changes or
additions required in existing facilities of other parties to joint
use or joint occupancy agreements to accommodate the Owner's
facilities; and
2. Coordinate engineering activities under direction of the
Owner with other parties to joint use or joint occupancy agreements.
Section 3. Compensation. The Owner shall pay the Engineer for
services performed pursuant to this RUS Form 217e as follows:
A. Staking Fee. For all services in connection with the Staking
of the Project lines provided for in the approved Project design,
including lines which, pursuant to the direction of the Owner, with
the approval of the Administrator, shall not be constructed, and for
all other services outlined in this RUS Form 217e (except as
provided in paragraph C of section 3):
1. The sum of ______________ dollars ($______________) per mile
of existing buried plant Project lines to be modified; plus
2. The sum of ______________ dollars ($______________) per mile
of new buried plant Project lines; plus
3. The sum of ______________ dollars ($______________) per mile
of underground cable to be installed in ducts; plus
4. The sum of ______________ dollars ($______________) per mile
of new aerial Project lines; plus
5. The sum of ______________ dollars ($______________) per mile
of existing aerial Project lines to be modified; plus
6. The sum of ______________ dollars ($______________) per mile
of new joint use or joint occupancy Project lines; plus
7. The sum of ______________ dollars ($______________) per mile
of existing Project lines to be removed where no construction or
modification work is to be performed; plus
8. The sum of ______________ dollars ($______________) for each
new service entrance staked and for which a construction sheet is
prepared and each existing service drop to be modified as part of
the Project; plus
9. The sum of ______________ dollars ($______________) for each
subscriber shown on the construction sheets.
For purposes of this section ``modified'' means rearrangements,
additions, change of pair assignments, etc., which require
preparation of construction sheets to implement.
The length of the Project lines shall be determined by taking
the sum of all distances between terminal points for underground
cable and buried cable or conductor, and new service entrances added
as part of the Project and all distances between pole markers or
from center to center of poles carrying aerial conductor or cable,
including joint use or joint occupancy poles, plus the vertical
distances parallel to vertical cable runs for aerial cable
installations.
B. Time and Expenses. The Owner shall pay the Engineer ``time
and expense'' compensation as defined in the current Table 2 of this
Agreement for all services performed in this RUS Form 217e in
connection with: section 1; paragraph C of section 2; paragra
FR Doc. 95-31096 Telecommunications ProgramPostloan Engineering Service Contract
ph I of
section 2; and for the replacement of markers made necessary by
causes beyond the control of the Engineer.
C. Payments. Compensation under paragraph A of this section 3
shall be due and payable ten (10) days after delivery to the Owner,
on a monthly basis, a copy of the construction sheets representing
the Staking completed during that month and a recapitulation of the
mileage of the various types of line covered by such construction
sheets and by previous construction sheets for which compensation
has been requested.
The Staking shall be subject to review and inspection by the
Owner and the Administrator. The Engineer, when notified to do so by
the Owner or the Administrator, shall correct such Staking as the
review and inspection may indicate to be necessary. Such review and
payments shall not constitute unqualified approval of the Staking.
Where restaking is required for reasons within the control of the
Engineer, no additional compensation shall be payable.
The compensation payable for lines actually constructed, shall
be adjusted to the number of units actually constructed or actually
completed as part of the construction of the Project, as reflected
in the final documents. Compensation payable for lines which have
been staked, but which shall not be constructed, shall be determined
from the construction sheets as covered by line abandonment order.
D. Plant Retained in Place. Compensation under this section, for
Staking existing Project lines on which modification work is to be
performed, shall include compensation for the designation of
assembly units of existing plant to be retained in place, and shown
on the construction sheets.
Section 4. Section Reference. Unless otherwise specified or
indicated, any reference to ``section'' shall mean within this
attachment (RUS Form 217e--Outside Plant Staking Services).
Attachment--RUS Form 217f
Outside Plant Contract Document Phase Engineering Services
Section 1. Review of Requirements
The Engineer shall use the Loan Design and other information
furnished by the Owner under this Agreement as the basis for the
preparation of the plans and specifications. Prior to the beginning
of the preparation of the plans and specifications, the Engineer
shall review with the Owner all data furnished to determine the most
recent requirements for facilities to be included in the plans and
specifications.
Section 2. Map Tracings and Other Data
Prior to and during the preparation of the plans and
specifications by the Engineer, the Owner, if it has not previously
done so by other provisions of this Agreement, shall furnish any of
the following items needed by the Engineer:
A. Up-to-date tracings of the detail and town maps of the area
of the proposed system on which the Loan Design was based and which
show the existing system, and a tracing of the key map when a key
map is required by the Owner;
B. Up-to-date cable schematics (cable plant layout), and
construction sheets showing the existing system construction;
C. Up-to-date line and station data on existing subscribers;
D. The Loan Design and Borrower's Environmental Report on which
the loan was based;
E. Current information as to the location and extent of electric
and other lines available for joint use, together with conformed
copies of all existing joint use or joint occupancy agreements
covering such lines;
F. Current listing of existing, signed, and potential
subscribers by map location and grade of service to be considered in
the preparation of the plans and specifications. The list of
existing subscribers shall be properly referenced to the line and
station data;
G. Detailed lists of materials on hand, or on order, which are
to be furnished by the Owner in the construction of the Project,
together with the quantity and value of each item of such materials;
and
H. A written statement setting forth the scope of plans and
specifications and the sequence in which the construction shall be
performed and whether service entrances are to be included in the
plans and specifications.
The map tracings, schematics, and construction sheets are to be
of suitable material capable of allowing corrections to be made of
the information shown thereon and capable of being reproduced.
Section 3. Schematics, Assignments, and Cut Sheets.
A. Cable Schematics. The Engineer shall prepare cable schematics
in such form as the Owner shall require to: (a) serve as a means by
which directions are given for connecting feeder cable and
distribution cable pairs, cross-connection terminals, connecting
load coils, and such other directions as may be necessary for
properly splicing the feeder cables, distribution cables and other
facilities being installed; (b) serve as the permanent circuit
assignment record of the Owner's cable and wire facilities; and (c)
adequately identify the physical location of all equipment, devices
and connections other than services, associated with the pairs of
[[Page 66948]]
such feeder cable and distribution cable facilities.
B. Circuit and Number Assignments. If requested by the Owner,
the Engineer shall prepare telephone number assignments and shall
identify the circuit to which the service is to be connected for
station installations, including without limitation such information
with respect to central office equipment connections as may be
required.
C. Cut Sheets. Where modification of existing lines is to be
performed, the Engineer shall furnish in such form as the Owner
shall require complete and detailed information, collectively known
as ``Cut Sheets'' for: (a) making such changes in circuit
connections in the existing outside plant as may be required,
including without limitation all associated devices such as load
coils, terminals, and temporary connections; (b) making such changes
in telephone number assignments and service connections as may be
required, including without limitations, the corresponding
connection changes required at the central office end; and (c)
designating the sequence to be followed in making such changes.
Section 4. Outside Plant Plans and Specifications and Contracts.
A. Plans and Specifications. The Engineer shall, to the extent
not previously prepared under other provisions of this Agreement,
prepare and review with the Owner complete and detailed plans and
specifications, drawings, maps and other documents required for the
construction of the outside plant facilities to be included as a
part of the Project. During the preparation of the plans and
specifications, the Engineer shall make such changes in the plans
and specifications as may be reasonably required by the Owner as a
condition of approval by the Owner and Administrator.
B. Content of Plans and Specifications. The plans and
specifications for outside plant shall be prepared in sufficient
time to allow normal completion of construction of the outside plant
to coincide with the established service dates and shall include the
following:
1. One copy of the key map of the system, when a tracing is
furnished by the Owner.
2. One copy (or more if necessary for clarity) of the central
office area detail maps (sometimes referred to as exchange detail
maps) and town maps of the system, on which there shall be indicated
the following:
a. Location of lines to be constructed, indicating joint use or
joint occupancy lines;
b. Location of switching centers and pair-gain devices;
c. Location of existing lines included as part of the proposed
system and modification of such lines;
d. Location of existing lines to be retired;
e. Locations other than service entrances, where right-of-way
has not been obtained;
f. Work Sectors indicating sequence of construction;
3. Complete drawings of each type of non-standard RUS unit
covering the construction and the materials to be used.
4. An estimate of quantities of the various units of
construction.
5. A complete cable plant layout and cable schematics, when
applicable, for each central office area as prepared pursuant to
paragraph A of section 3.
6. If the Project contains requirements for installation of
underground conduit, manholes and associated appurtenances, the
Engineer, during the preparation of the plans and specifications,
shall secure field data necessary for the proper design of such
facilities (including plan and profile data, if required, and detail
construction drawings, including cable to be installed), and shall
proceed with the preparation of detailed plans and specifications
for the construction of such facilities. Such drawings and
specifications, when completed, shall be added to, and made a part
of, the construction plans and specifications.
7. An itemized list of materials on hand or on order to be
furnished by the Owner, showing the locations of delivery points and
delivery schedules of such materials, the quantity, unit price and
extended price.
8. The form of the contract to be entered into between a
Contractor and the Owner for the construction of the outside plant,
including forms of notice and instructions to bidders, Contractor's
proposal, materials and construction specifications, Contractor's
bond, description of assembly units and construction drawings.
Note: Plans and specifications for outside plant facilities to
be constructed under a force account proposal do not require Items 7
and 8, above.
C. Contracts.
1. Upon receipt of notice by the Engineer from the Owner of the
Administrator's approval of the plans and specifications, the
Engineer shall, unless otherwise instructed by the Owner, with the
approval of the Administrator, proceed to take all usual and
customary actions, including compliance with the procedures set
forth herein and in 7 CFR Part 1753, to facilitate full, free, and
competitive bidding for the award of contracts.
2. Notices to Bidders shall be sent in accordance with Subpart F
of 7 CFR Part 1753. The Engineer shall then review with the Owner
and the Owner shall approve the qualifications of bidders who
replied to the notice, as a condition of release of bid documents to
any such bidder. The Engineer shall prepare and furnish to such
qualified bidders the appropriate bid documents including
construction sheets, and the plans and specifications upon the
conditions provided in the applicable standard RUS contract forms.
The construction sheets shall be furnished upon payment of
reasonable charges. The Engineer shall also prepare and furnish,
upon payment of reasonable charges, to material suppliers requesting
them, copies of the Contractor's proposal sheets for outside plant
together with any special drawings or material specifications
pertaining thereto and a list of materials to be furnished by the
Owner.
3. The Engineer shall conduct a Pre-Bid Conference in accordance
with Subpart F of 7 CFR Part 1753 and shall be available to each
prospective bidder for consultation with respect to the details of
the plans and specifications and all other matters pertaining to the
preparation of the proposals for the construction, or the supply of
materials and equipment or services therefor. All changes to or
clarifications of the plans and specifications provided to one
prospective bidder shall be provided in writing to all other
prospective bidders and to the Owner.
4. The Engineer shall attend and supervise all openings of bids
for the construction, or for the furnishing of materials and
equipment or services therefor. The Owner shall return unopened bids
received from Bidders not previously qualified under paragraph C2 of
this section. In the event that bids are received from less than
three (3) qualified bidders, the bids shall remain unopened and the
Owner shall notify the Administrator thereof immediately. If
directed by the Owner, the Engineer shall proceed in respect of the
rebidding, in the manner provided for herein for the initial
bidding. The Engineer shall check the assembly unit prices and
summarize of all bids received. The Engineer shall render to the
Owner assistance in connection with the Owner's consideration of the
bids received so that contracts may be prudently and properly
awarded. The Engineer shall submit to the Owner a written
recommendation for award of the contract or rejection of all bids
stating the reasons therefor.
5. The Engineer shall prepare and furnish to the Owner three (3)
copies of the detailed proposal sheets or a detailed tabulation of
the low bid, and a tabulation showing the names and totals of all
bids. The Owner shall submit to the Administrator the bidding
information for approval by the Administrator of the award of the
contract. Upon receipt of notice from the Owner of the
Administrator's approval of the award of the contract, the Engineer
shall prepare three (3) counterparts of the construction contract to
be executed by the Owner and the successful bidder and the Owner
shall forward such executed counterparts to the Administrator for
approval.
6. If, after the construction contract has been approved by the
Owner and the Administrator, it shall be determined by the Owner
that any changes in the plans and specifications are advisable, the
Engineer shall prepare and submit a contract amendment in accordance
with 7 CFR Part 1753.
D. Force Account.
1. If all or a portion of the Project, shall be constructed by
force account, the Engineer shall prepare a force account proposal
in accordance with Subpart G of 7 CFR Part 1753.
a. When requested by the Owner, the Engineer shall prepare an
itemized list of the total quantities of all items of materials
required for the construction showing in addition the quantity of
each item of materials the Owner has on hand based on the list
furnished by the Owner pursuant to paragraph G of section 2.
b. The force account proposal shall include an estimate,
prepared in collaboration with the Owner, of the unit construction
costs in substantially the same form as the Contractor's proposal in
the standard contract form, and a summary of the total estimated
cost of construction, setting forth the following:
[[Page 66949]]
(1) The total Cost of labor and other;
(2) The total Cost of materials; and
(3) The number of calendar days required for the construction.
2. After receipt of notice by the Engineer from the Owner of
approval by the Administrator of the force account proposal, the
Engineer, in collaboration with the Owner, shall fix a date for the
commencement of construction. In the determination of this date,
consideration shall be given to the status of material deliveries,
Staking, easements, and the availability of competent construction
personnel and adequate equipment to facilitate continuous
construction in an efficient and expeditious manner. Such date as
agreed upon shall be submitted to the Administrator by the Owner and
the date thus established shall be the ``Commencement Date'' for the
construction. The Engineer shall be available to the Owner for
consultation with respect to the details of the plans and
specifications and all other matters pertaining to the construction
of the Project.
3. If, after the force account proposal has been approved by the
Owner and the Administrator, it shall be determined by the Owner
that any change or changes in the force account proposal are
advisable, the Engineer shall prepare and submit to the Owner all
necessary details in connection with the change or changes, and upon
approval thereof by the Owner, the proposed change or changes shall
be submitted by the Owner to the Administrator. To the extent that
the Administrator approves such proposed change or changes they
shall be included as part of the force account proposal, and the
Engineer shall immediately proceed in respect of any additional
Staking, construction, and material contracts or amendments required
thereby in like manner as though such Staking, construction, and
material contracts or amendments were originally included as part of
the force account proposal.
Section 5. Compensation
A. The Owner shall pay the Engineer for services performed
pursuant to this RUS Form 217f (except as provided in paragraph B of
this section) as follows:
1. The sum of __ dollars ($__) or when the outside plant is
divided into sections for construction purposes requiring separate
plans and specifications for each section; a sum of __ dollars ($__)
for each such section for which complete plans and specifications
are prepared; plus,
2. The sum of __ dollars ($__) for each approved amendment to
the contract; plus
3. The sum of __ dollars ($__) per mile for each mile of Project
line facilities (1) included in the plans and specifications, and
(2) added or deleted by approved amendments to the plans and
specifications; plus
4. The sum of __ dollars ($__) for each approved force account
proposal. The compensation payable under paragraph A of this section
shall be due and payable ten (10) days after the approval of the
plans and specifications or approved amendments by the Owner and the
Administrator.
B. The Owner shall pay the Engineer ``time and expense''
compensation as defined in the current Table 2 of this Agreement for
services: (1) as requested by the Owner, in connection with
corrections to, or the furnishing of, items required to be furnished
by the Owner per section 2; (2) required under section 3; (3) in
connection with underground conduits, paragraph B6 of section 4; (4)
for changes in force account plans and specifications, paragraph D3
of section 4; and (5) in connection with the conducting of the Pre-
Bid Conference, and for rebidding, paragraph C3 of section 4.
Section 6. Section Reference. Unless otherwise specified or
indicated, any reference to ``section'' shall mean within this
attachment (RUS Form 217f--Outside Plant Plans and Specifications
and Contracts).
Attachment--RUS Form 217g
Outside Plant Construction Phase Engineering Services
Section 1. Construction Phase.
A. General. As engineering representative of the Owner, and in
accordance with sound and accepted engineering practices, the
Engineer: (1) shall provide Construction Administration and
Inspection services; (2) shall assist the Owner in obtaining the
expeditious and economical construction of the Project in accordance
with the approved plans and specifications, the terms of the
construction contract or force account proposal, and 7 CFR Part
1753; and (3) shall have and exercise sole responsibility for the
issuance of supplemental directives to the Contractor regarding the
Contractor's performance in accordance with the terms of the
construction contract as approved by the Owner and the
Administrator. The Engineer's undertaking hereunder shall not
relieve the Contractor of the Contractor's obligation to perform the
work in conformity with the plans and specifications and in a
workmanlike manner and shall not impose upon the Engineer any
obligation to see that the work is performed in a safe manner. The
Engineer shall not be responsible for the failure of the Contractor
to perform the work in accordance with the contract or to perform
the work in a safe workmanlike manner. In fulfilling the above
responsibility, the Engineer shall as necessary:
1. Interpret the plans and specifications and convey such
interpretation to the Contractor;
2. Inspect the progress of and quality of construction, in
sufficient detail to provide reasonable assurance to the Owner of
the adequacy of such progress and quality of construction, pursuant
to the requirements of the plans and specifications and contract;
3. Confirm the acceptability of materials and equipment proposed
by the Contractor to be utilized in the construction prior to the
use of such materials or equipment on the Project and promptly
reject materials and equipment not in compliance with the plans and
specifications; and
4. Inspect the manner of incorporation of the materials and
equipment into the Project, and the workmanship with which such
materials and equipment are incorporated and reject materials,
equipment and workmanship which the Engineer determines will not be
in compliance with the plans and specifications. Such Inspection
shall be deemed to be adequate if a reasonable percentage of all
routine construction units (other than units requiring detailed
inspection) are observed at the time of installation and found free
of error.
The above enumeration of specific requirements shall not limit
the general undertakings of the Engineer to perform services set
forth in the first sentence of paragraph A of this section. The
obligations of the Engineer hereunder are for the benefit of only
the Owner and the Administrator, and shall not relieve the
Contractor of any of its own responsibilities under its contract
with the Owner.
B. Resident Engineers and Inspectors.
1. A competent Resident Engineer with full authority to act for
the Engineer shall be maintained by the Engineer at the site of the
Project at all times during the entire period of scheduled
construction (including times when the Resident Engineer is
available and through no fault of the Engineer scheduled
construction is not performed, and including times when corrective
work is being performed) unless specifically directed otherwise by
the Owner with the approval of the Administrator. A Resident
Engineer shall be necessary for each outside plant construction
contract.
2. If, at any time during construction, a Resident Engineer, or
Inspector, is not required at the Project site, or such personnel
are not available because of other responsibilities on the Project,
the Engineer shall assign a Resident Engineer and/or Inspector on an
intermittent basis, to effect necessary observations of construction
during any critical phase of such construction.
3. If the Engineer determines that particular components of the
work or particular circumstances during construction require the
presence of a specialized representative of the Engineer, such as an
architect, structural engineer, design engineer or other specialist
for the purpose of interpreting contract requirements, or performing
special inspections or tests to facilitate compliance by the
Contractor with the plans and specifications and terms of the
construction contract, the Engineer with prior approval of the Owner
shall assign such personnel to the Project site.
4. The Engineer shall maintain at the site of the Project and
under the direct supervision of the Resident Engineer a sufficient
number of qualified inspectors, to fully discharge the
responsibility of the Engineer pursuant to paragraph A of this
section (including times when such assigned inspectors are available
and through no fault of the Engineer scheduled construction is not
performed). The number of inspectors so required will vary with the
size of the Project, the number of construction crews, and the speed
of construction.
5. The number of resident engineers and inspectors required by
the Engineer for a routine construction schedule for this Project to
effect completion within the allowed number of scheduled ``working
days'' is as follows:
a. ________ (________) resident engineers(s);
[[Page 66950]]
b. ________ (________) inspectors(s);
6. In the event conditions should arise, through no fault of and
beyond control of the Engineer, which would require the placement by
the Engineer of additional inspectors (or resident engineers) on the
Project, to accommodate special needs of the Owner (or Contractor,
with approval of the Owner), then, with the approval of the Owner
prior to their assignment to the Project, the Engineer shall assign
such additional qualified personnel to the Project for the limited
time of such requirements.
C. Pre-Construction Conference. A competent representative from
the office of the Engineer, and the Resident Engineer (or resident
engineers) to be assigned to the Project, shall conduct the outside
plant pre-construction conference. The detailed notes taken by the
Engineer on items discussed shall be furnished to all parties. Such
notes shall be used by the Resident Engineer, as applicable, in
interpreting the plans and specifications pursuant to paragraph A1
of this section.
D. Project Office. The Engineer shall establish and maintain a
field office, with telephone service, in the proximity of the
Project when construction is in progress and shall notify the Owner
of the address and telephone number of such field office. Any
notices, instructions or communications delivered to such field
office shall be deemed to have been delivered to the Engineer.
E. Defective Construction. If the construction is by contract,
the Engineer shall notify the Contractor in writing of all observed
or otherwise determined defects in workmanship or materials in
accordance with the terms of the construction contract. If the
construction is by force account, the Engineer shall advise the
Owner relative to the correction of such defects.
F. Joint Use or Joint Occupancy. In connection with all joint
use or joint occupancy construction, the Engineer shall:
1. Coordinate construction activities for the Owner with the
designated representative of other parties to joint use or joint
occupancy agreements;
2. Review for the Owner all changes proposed by other parties to
joint use or joint occupancy agreements for changes in and additions
to their existing pole lines under such agreements and submit to the
Owner recommendations thereon.
G. Tests. The Engineer shall conduct, or cause to be conducted,
such tests of circuits and equipment as required by the Owner and
the Administrator to determine compliance with the performance
requirements of the plans and specifications. The Engineer shall
make recommendations in writing for the correction of defective
materials, workmanship, or equipment. All cases of transmission or
operational difficulties due to faulty construction or defective
materials or equipment in the Project shall be reported in writing
to the Contractor for correction if the construction is by contract
or to the Owner if construction is by force account. When the
corrections have been made, the circuits and equipment shall again
be tested. The Engineer shall furnish test equipment as required for
performing all required tests or measurements.
The outside plant tests to be made on this Project are noted in
the table below:
----------------------------------------------------------------------------------------------------------------
Test or measurements Will perform or
---------------------------- participate in performing
Description of test or measurements tests
Subscriber Trunk plant ---------------------------
loop plant Owner Engineer
----------------------------------------------------------------------------------------------------------------
C.O. Ground Measurement................................. ............ ............ ............ X
Copper Shield or Shield/Armor Continuity................ X X ............ X
Conductor Continuity.................................... X X ............ X
Shield or Armor Ground Resistance....................... X X ............ X
Conductor Insulation Resistance......................... X X ............ X
DC Loop Resistance...................................... ............ ............ ............ ............
DC Loop Resistance Unbalance............................ ............ ............ ............ ............
VF Insertion Loss....................................... ............ ............ ............ ............
Loop Measurements (Loop Checking)....................... ............ ............ ............ ............
Two Person Structural Return Loss....................... ............ ............ ............ ............
One-Person Open Circuit Measurements.................... ............ ............ ............ ............
Cable Insertion Loss at Carrier Frequency............... ............ ............ ............ ............
Fiber Armor Continuity.................................. X X ............ X
Fiber Optic Splice Loss--Field.......................... X X ............ X
Fiber Optic Splice Loss--C. O........................... X X ............ X
End-to End Attenuation.................................. X X ............ X
End-to End Fiber Signature.............................. X X ............ ............
----------------------------------------------------------------------------------------------------------------
As appropriate, complete the table using these symbols:
X--These are standard tests and measurements required on facilities as desired by the owner or required by the
Administrator.
*--These tests will not be required if the distribution pairs are not cross-connected to feeder pairs at the
time of acceptance testing.
N/A--Not Applicable.
H. Connecting Companies. The Engineer shall coordinate all
engineering and construction activities with connecting companies
and shall notify the Owner when the Project, or a section thereof,
shall be ready to be placed in service. After giving such notice,
the Engineer shall, when directed to do so by the Owner, cause the
Project, or such section thereof as may be ready, to be placed in
service.
I. Reporting. The Engineers shall prepare, execute and submit to
the Owner ________ (insert frequency of reporting--minimal monthly)
all estimates, certificates, reports, and other documents required
to be executed by the Engineer pursuant to a construction contract,
a force account proposal, or the 7 CFR Part 1753. The Engineer shall
review and, if satisfactory, recommend for approval each periodic
estimate submitted by contractors prior to approval and payment by
the Owner. Such recommendations shall include a statement by the
Engineer based on the Engineer's Inspection of executed work and the
progress of the work and subject to evaluation and testing of the
work as a completed Project, that all construction for which payment
is requested has been completed and cleaned up in accordance with
the terms of the construction contract and that all defective
construction of which the Contractor shall have received fifteen
(15) or more days written notice, has been corrected.
The Engineer shall maintain a cumulative inventory of all units
of construction incorporated in the Project, showing unit prices and
extended totals, for all such units of construction. When it appears
that the previously approved contract total is likely to be
exceeded, the Engineer shall immediately notify the Owner in a
format suitable for notifying the Administrator. When requested by
the Owner or when the ``Overrun'' results in 20% above the contract
total, the Engineer shall prepare a contract amendment in accordance
with 7 CFR Part 1753 for execution by the Parties to the
construction contract, to cover the additions or changes in
construction units that are resulting in such ``Overrun''.
J. Final Inspection. The Owner and a representative of the
Administrator will normally conduct a final inspection of completed
construction. When requested by the Owner, a qualified
representative of the Engineer shall be present.
Section 2. Final Documents.
A. Contract Construction. If the Project or any portion thereof
shall be constructed
[[Page 66951]]
pursuant to a construction contract, the Engineer shall prepare and
submit to the Owner complete and detailed final documents as
specified in 7 CFR 1753 and a statement of all amounts payable by
the Owner under the construction contract. The final documents shall
be in a format suitable for approval by the Owner and subsequent
submission to the Administrator for approval. These final documents
shall be submitted to the Owner within forty-five (45) calendar days
after the completion of construction based on the date shown on the
certificate of completion covered by each contract.
B. Force Account Construction. If the Project or any portion
thereof shall be constructed by force account:
1. Within thirty (30) calendar days after completion of
construction of the Project, the Owner shall furnish to the Engineer
the following data:
a. The cost of all materials used in construction of the
Project;
b. Cost of right-of-way clearing (direct labor costs);
c. All direct labor costs chargeable to construction exclusive
of the right-of-way clearing; and
d. A list of all items of overhead cost applicable to the
construction of the Project, but excluding the cost of engineering,
legal, accounting and other professional services, interest during
construction and preliminary survey charges.
2. Within forty-five (45) calendar days after the completion of
construction of the Project, the engineer shall prepare and submit
to the Owner for approval complete and detailed final documents in
such form as the Administrator may prescribe, including without
limitation, a final inventory of construction and a final inventory
of retirements. The final documents shall contain the labor and
material unit costs based on data supplied by the Owner.
C. Number of Copies. Copies of final documents shall be
furnished in accordance with 7 CFR Part 1753.
Section 3. Plant Records.
A. Prior to Cutover. If the Owner shall have notified the
Engineer not later than ten (10) days prior to of the start of
construction in a central office area that the Owner elects to
assign to the Engineer the preparation of any of the following plant
records, the Engineer shall prepare and deliver these records to the
Owner, not later than fifteen (15) calendar days prior to the start
of Cutover of each central office area included as a part of the
Project. These records cover the Cutover work on facilities
completed as of the date of delivery of such records for each such
area. The following records shall be in such form as the Owner, with
the approval of the Administrator, may prescribe:
1. Cable schematics, corrected to show ``as constructed''
conditions of that portion of the Project as of such date;
2. Cable records data, for completed line segments as of such
date;
3. Line and station data for completed line segments as of such
date; and
4. Terminal assignment records.
B. After Cutover. The Engineer shall deliver to the Owner,
within thirty (30) calendar days after Cutover of facilities in any
completed exchange area or completed section of the Project, the
record drawings of the following plant records covering such Project
area (excluding any of such records that the Owner has previously
elected to prepare with its own forces):
1. Cable schematics, corrected to show ``as constructed''
conditions of such Project area;
2. Cable record data, for all construction completed in such
Project area;
3. Line and station records for all lines completed in such
Project area as a part of the Project;
4. Final maps, showing record drawings facilities completed in
such Project area; and
5. Final complete and detailed construction sheets, showing
facilities completed in such Project area, including the designation
of assembly units of existing plant retained in place along existing
plant lines segments on which modification work was performed as a
part of the Project.
Section 4. Inventory and Appraisal. When requested by the Owner,
the Engineer shall prepare within thirty (30) calendar days after
completion of construction of the Project and submit to the Owner an
inventory and appraisal of all existing telephone plant retained as
part of the Owner's system. The inventory and appraisal shall be in
such form and provide such data as the Owner, with the approval of
the Administrator, may prescribe.
Section 5. Compensation.
A. For Services Under sections 1, 3 and 4. The Owner shall pay
the Engineer ``time and expense'' compensation, as defined and
detailed in current Table 2 of this Agreement for all services
performed under sections 1, 3 and 4. Compensation under this section
shall not exceed ________ dollars ($________) unless said amount has
been increased by a contract amendment approved by the Owner and the
Administrator. Appropriate documentation justifying the increase
shall accompany the contract amendment.
Compensation under paragraph A of this section shall be due and
payable as follows:
1. Ninety-five Percent (95%) thereof shall be due and payable
ten (10) days after delivery each month of the invoice of the
Engineer;
2. The balance of such compensation shall be due and payable ten
(10) days after delivery of a statement by the Engineer to the Owner
certifying that all final documents prepared by the Engineer, for
execution by the Contractor, have been mailed or delivered to the
Contractor for execution.
B. For Services Under section 2. The Owner shall pay the
Engineer for all services performed under section 2 as follows:
1. The sum of ________ dollars ($________) for each service
entrance to be installed, replaced or modified during the
construction of the Project; plus
2. The sum of ________ dollars ($________); or when the Project
is divided into sections for which separate outside plant plans and
specifications are prepared, the sum of ________ dollars ($________)
for each section requiring final documents; plus the sum of ________
dollars ($________) for each mile of Project line facilities
included in the final documents. Ninety-five (95%) percent of the
compensation under this paragraph shall be due and payable ten (10)
days after approval by the Owner and the Administrator of the
respective final documents and the balance of the compensation under
this paragraph shall be due and payable ten (10) days after
completion of the Project as defined in the Table 1.
C. Bi-weekly Statement. For compensation covered by paragraph A
this section, the Engineer shall submit to the Owner a biweekly
statement showing the names of the resident engineers and
inspectors, and the actual time spent on the Project by each
Resident Engineer and each Inspector during the preceding period.
The statement should be prepared and submitted to the Owner in a
format similar to that shown in RUS Form 217, Exhibit A.
Section 6. Section Reference. Unless otherwise specified or
indicated, any reference to ``section'' shall mean within this
attachment RUS Form 217g--Outside Plant Construction-Project
Direction, Inspection, Testing and Contract Closeout.
[End of clause]
Dated: December 12, 1995.
Jill Long Thompson,
Under Secretary, Rural Economic and Community Development.
[FR Doc. 95-31096 Filed 12-26-95; 8:45 am]
BILLING CODE 3410-15-P
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