issue-1996-07-18•Federal Register proposed rules — 1996-07-18
Federal Register proposed rules — 1996-07-18
issue-1996-07-18Federal Register proposed rules — 1996-07-18Proposed 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. 96-18383 National Ambient Air Quality Standards for Ozone and Particulate Matter
[Federal Register Volume 61, Number 139 (Thursday, July 18, 1996)]
[Proposed Rules]
[Pages 37427-37428]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18383]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 50
[FRL-5539-5]
National Ambient Air Quality Standards for Ozone and Particulate
Matter
agency: Environmental Protection Agency (EPA).
action: Notice of public meetings.
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summary: On June 12, 1996 (61 FR 29719), the EPA published an Advance
Notice of Proposed Rulemaking (ANPR) for the review of the national
ambient air quality standards (NAAQS) for ozone and particulate matter
(PM). The ANPR discussed the ongoing reviews of the ozone and PM
standards and the integrated implementation approach that EPA has
initiated for possible new or revised standards. That ANPR also
presented key issues associated with each review and the integrated
implementation approach and included the schedule for the completion of
the review of the ozone and PM NAAQS.
dates: Notice is hereby given that a public meeting on the ANPR for the
ozone and PM NAAQS will be held on Thursday, July 25, 1996, from 10:00
a.m. to 9:00 p.m. EST. A second public meeting on the ANPR will be held
on Monday, August 5, 1996, from 10:00 to 9:00 p.m. CST.
addresses: The public meeting to be held on July 25, 1996, will be held
at the Wyndham Franklin Plaza Hotel, 2 Franklin Plaza, Philadelphia,
Pennsylvania (1-800-822-4200). The public meeting to be held on August
5, 1996, will be held at the Holiday Inn Downtown Convention Center,
Convention Plaza, 811 N. 9th Street, St. Louis, Missouri (1-800-289-
8338).
for further information contact: JoAnn Allman (929) 541-1815.
supplementary information: The agenda for both messages will be divided
into three segments: (1) A morning presentation, a panel, and an
[[Page 37428]]
opportunity for public comment on issues related to human health
effects and environmental effects of ground level ozone and PM; (2) an
afternoon presentation, a panel, and an opportunity for public comment
on issues related to the implementation of ozone and PM NAAQS; and (3)
a late afternoon and evening opportunity for public comment on any
other issues related to ozone and PM standard setting.
Seating will be available on a first-come, first-served basis. The
public is invited to make short presentations at both meetings. In
order to provide the most opportunity for possible comment, the Agency
requests that anyone wishing to provide public comment at the meeting
register in advance by sending a fax to the meeting facilitator, The
Keystone Center. When sending the advance registration fax, please
include your name, title, organizational affiliation, address,
telephone number, fax number, and an indication of whether you plan to
provide comments on: (1) Health and environmental effects of ozone and
PM, (2) implementation issues, and/or (3) other issues (if so, please
briefly indicate the issue you plan to comment upon). The fax should be
sent to Caroline Brendel, The Keystone Center, 970-262-0152.
for further information contact: JoAnn Allman at (919) 541-1815, or by
mail at U.S. EPA, MD-15, Research Triangle Park, NC 27711. A copy of
the ANPR can be downloaded from the Clean Air Act Amendments Bulletin
Board, Recently-Signed Rules Section, located on the Office of Air
Quality Planning and Standards Technology Transfer Network (OAQPS TTN).
A copy of the draft meeting agenda can be downloaded from the Ozone/
Particulate Matter/Regional Haze FACA Bulletin Board also located on
the OAQPS TTN. Copies of both documents can also be obtained by
contacting JoAnn Allman.
Dated: July 11, 1996.
John S. Seitz,
Director, Office of Air Quality Planning and Standards.
[FR Doc. 96-18383 Filed 7-17-96; 8:45 am]
BILLING CODE 6560-50-M
Complete official Federal Register PDF
FR Doc. 96-18327 Qualifications and Standards for Standing Trustees
[Federal Register Volume 61, Number 139 (Thursday, July 18, 1996)]
[Proposed Rules]
[Pages 37426-37427]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18327]
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DEPARTMENT OF JUSTICE
United States Trustees
28 CFR Part 58
RIN 1105-AA32
Qualifications and Standards for Standing Trustees
AGENCY: Department of Justice.
ACTION: Proposed rule.
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SUMMARY: The Department of Justice is proposing to amend the
qualifications required for an individual to be appointed as a standing
trustee. The Department of Justice is also proposing to issue standards
to govern the standing trustee. Finally, the Department of Justice is
correcting certain typographical errors in part 58.
DATES: Written comments must be submitted on or before September 16,
1996.
ADDRESSES: Please submit written comments to the Office of the General
Counsel, Executive Office for United States Trustees, 901 E Street NW.,
Room 740, Washington, DC 20530.
FOR FURTHER INFORMATION CONTACT:
Martha L. Davis, General Counsel, or Jeanne M. Crouse, Attorney, (202)
307-1399. This is not a toll-free number.
SUPPLEMENTARY INFORMATION: Under the provisions of 28 U.S.C. 586, the
United States Trustee is responsible for appointing individuals to
serve as standing trustees in cases filed under chapter 12 and chapter
13 of the Bankruptcy Code, 11 U.S.C. 101 et seq., subject to the
approval of the Attorney General. Section 586 also directs the United
States Trustee to supervise standing trustees and their administration
of cases. The Attorney General has general supervision over each United
States Trustee and is authorized to prescribe by rule qualifications
for appointment of a standing trustee by the United States Trustee. See
28 U.S.C. 586 (c)-(d). Finally, the Attorney General, in consultation
with the United States Trustee, is responsible for fixing a percentage
fee and the maximum annual compensation for each standing trustee
subject to the limitations set forth in the statute, including the
actual and necessary expenses of the trustee. By internal order, the
Attorney General has delegated to the Director of the Executive Office
for United States Trustees (the ``Director'') the authority to fix
percentage fees and compensation and the authority to issue rules
governing qualifications for appointment and conduct of standing
trustees after appointment.
The qualifications promulgated by the Attorney General are
currently found in Secs. 58.3 and 58.4 of title 28 to the Code of
Federal Regulations. The proposed rule amends these qualifications and
formally incorporates certain fiduciary standards that govern the
conduct of a standing trustee and his or her operation. These standards
address the hiring of relatives, dealings with related parties, and
employment relationships among standing trustees.
This rule will aid the Director and the United States Trustees in
supervising standing trustees in the administration of cases and in
evaluating the actual, necessary expenses of standing trustees relative
to fixing appropriate percentage fees and compensation. Adherence to
the rule should assist the fair and impartial administration of the
office of the standing trustee, help maximize the efficiency and
purposes of case administration, and work to avoid improprieties,
whether actual or perceived, that could diminish the integrity of the
administrative process.
Executive Order 12866
This proposed rule has been drafted and reviewed in accordance with
Executive Order 12866, section 1(b), Principles of Regulation. The
Director has determined that this rule is not a ``significant
regulatory action'' under Executive Order 12866 section 3(f),
Regulatory Planning and Review.
Regulatory Flexibility Act
The Director, in accordance with the Regulatory Flexibility Act (5
U.S.C. 605(b)), has reviewed this proposed rule and by approving it
certifies that this rule will not have a significant impact on a
substantial number of small entities.
Paperwork Reduction Act
This proposed rule contains no new information collection or
recordkeeping requirements under the Paperwork Reduction Act (44 U.S.C.
3501 et seq.).
List of Subjects in 28 CFR Part 58
Bankruptcy, Trusts, and Trustees.
For the reasons set forth in the preamble, the Department of
Justice proposes to amend 28 CFR part 58 as follows:
PART 58--REGULATIONS RELATING TO THE BANKRUPTCY REFORM ACTS OF 1978
AND 1994
1. The authority citation for part 58 is revised to read as
follows:
Authority: 28 U.S.C. 509, 510, 586, 5 U.S.C. 301.
2. In Sec. 58.1, paragraph (a) is revised to read as follows:
Sec. 58.1 Authorization to establish panels of private trustees.
(a) Each U.S. Trustee is authorized to establish a panel of private
trustees (the ``panel'') pursuant to 28 U.S.C. 586(a)(1).
* * * * *
3. Section 58.4 is revised to read as follows:
Sec. 58.4 Qualifications for appointment as standing trustee and
fiduciary standards.
(a) As used in this section--
(1) The term standing trustee means an individual appointed
pursuant to 28 U.S.C. 586(b).
(2) The term relative means an individual related by affinity or
consanguinity within the third degree as determined by the law of the
jurisdiction where the standing trustee is located, an individual in a
step or adoptive relationship within such third degree, or an
individual whose close association is the equivalent of a spousal
relationship.
(3) The term financial or ownership interest excludes ownership of
stock in a publicly-traded company if the ownership interest is not
controlling.
(b) To be eligible for appointment as a standing trustee, an
individual must have the qualifications for membership on a private
panel of trustees set forth in Sec. 58.3(b) (1)-(4), (6)-(8). An
individual need not be an attorney to be eligible for appointment as a
standing trustee. A corporation or partnership may be appointed as
standing trustee only with the approval of the Director.
(c) The United States Trustee shall not appoint as a standing
trustee any individual who, at the time of appointment, is:
(1) A relative of another standing trustee in the region in which
the standing trustee is to be appointed;
(2) A relative of a standing trustee in the region in which the
standing trustee is to be appointed, who, within the
[[Page 37427]]
preceding one-year period, died, resigned, or was removed as a standing
trustee from a case;
(3) A relative of a bankruptcy judge or a clerk of the bankruptcy
court in the region in which the standing trustee is to be appointed;
(4) An employee of the Department of Justice within the preceding
one-year period; or
(5) A relative of a United States Trustee or an Assistant United
States Trustee, a relative of an employee in any of the offices of the
United States Trustee in the region in which the standing trustee is to
be appointed, or a relative of an employee in the Executive Office for
United States Trustees.
(d) A standing trustee must, at a minimum, adhere to the following
fiduciary standards:
(1) Employment of relatives.
(i) A standing trustee shall not employ a relative of the standing
trustee.
(ii) A standing trustee shall also not employ a relative of the
United States Trustee or of an Assistant United States Trustee in the
region in which the trustee has been appointed or a relative of a
bankruptcy court judge or of the clerk of the bankruptcy court in the
judicial district in which the trustee has been appointed.
(iii)(A) Paragraphs (d)(1) (i) and (ii) of this section shall not
apply to a spouse of a standing trustee who was employed by the
standing trustee as of August 1, 1995.
(B) For all other relatives employed by a standing trustee as of
August 1, 1995, paragraphs (d)(1)( (i) and (ii) of this section shall
be fully implemented by October 1, 1998, unless specifically provided
below:
(1) The United States Trustee shall have the discretion to grant a
written waiver for a period of time not to exceed 2 years upon a
written showing by the standing trustee of extraordinary and compelling
circumstances that make the continued employment of a relative
necessary for a standing trustee's performance of his or her duties.
(2) Additional waivers, not to exceed a period of two years each,
may be granted under paragraph (d)(1)(iii)(B)(1) of this section
provided the standing trustee makes a similar written showing within 90
days prior to the expiration of a present waiver and the United States
Trustee determines that the circumstances for waiver are met.
(3) No waivers will be granted for a relative of the United States
Trustee or of an Assistant United States Trustee.
(2) Related party transactions.
(i) A standing trustee shall not direct debtors or creditors to an
individual or entity that provides products or services, such as
insurance or financial counseling, if a standing trustee is a relative
of that individual or if the standing trustee or relative has a
financial or ownership interest in the entity.
(ii) A standing trustee shall not contract or allocate expenses
with himself or herself, with a relative, or with any entity in which
the standing trustee or a relative of the standing trustee has a
financial or ownership interest if the costs are to be paid as an
expense out of the fiduciary expense fund.
(iii)(A) The United States Trustee may grant a waiver from
compliance with paragraph (d)(2)(ii) of this section for up to three
years following the appointment of a standing trustee if the newly-
appointed standing trustee can demonstrate in wiring that a waiver is
necessary and the cost is at or below market.
(B) The United States Trustee may grant a provisional waiver from
compliance with the allocation prohibition contained in paragraph
(d)(2)(ii) of this section if one of the following conditions is
present:
(1) A standing trustee has insufficient receipts to earn the
maximum annual compensation determined by the Director during any one
of the last three fiscal years and provides the United States Trustee
with an appraisal or other written evidence that the allocation is
appropriate, or
(2) A Chapter 13 standing trustee also serves as a trustee in
Chapter 12 cases and provides the United States Trustee with an
appraisal or other written evidence that the allocation between Chapter
13 and Chapter 12 cases is appropriate.
(C) Except as otherwise provided below, a standing trustee may seek
a reasonable extension of time from the United States Trustee to comply
with paragraph (d)(2)(ii) of this section. To obtain an extension, a
standing trustee must demonstrate by an appraisal or other written
evidence, satisfactory to the United States Trustee, that the expense
is at or below market rate. In no event shall an extension be granted
for the use and occupation of real estate beyond October 1, 2005. For
personal property and personal service contracts, no extension shall be
granted beyond one year from the date on which this paragraph becomes
effective.
(3) Employment of Other Standing Trustees. A standing trustee shall
not employ or contract with another standing trustee to provide
personal services for compensation payable from fiduciary expense
funds. This section does not prohibit the standing trustee from
reimbursing the actual expenses incurred by another standing trustee
who provides assistance to the standing trustee provided that the
reimbursement has been pre-approved by the United States Trustee.
Dated: July 12, 1996.
Joseph Patchan,
Director.
[FR Doc. 96-18327 Filed 7-17-96; 8:45 am]
BILLING CODE 4410-01-M
Complete official Federal Register PDF
FR Doc. 96-18326 Exemption of System of Records Under the Privacy Act
[Federal Register Volume 61, Number 139 (Thursday, July 18, 1996)]
[Proposed Rules]
[Pages 37424-37426]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18326]
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[[Page 37425]]
DEPARTMENT OF JUSTICE
28 CFR Part 16
[AAG/A Order No. 120-96]
Exemption of System of Records Under the Privacy Act
AGENCY: Department of Justice.
ACTION: Proposed rule.
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SUMMARY: The Department of Justice, Federal Bureau of Investigation,
proposes to exempt the National DNA Index System (NDIS) from 5 U.S.C.
552a(c) (3) and (4); (d); (e) (1), (2), and (3); (e)(4) (G) and (H);
(e) (5) and (8); and (g). The purposes of the exemption are to maintain
the confidentiality and security of information compiled for purposes
of criminal investigation, or of reports compiled at any stage of the
criminal law enforcement process. Therefore, to the extent that these
records may be subject to the Privacy Act, they are subject to
exemption under subsection (j)(2) and are not available under the
Privacy Act.
DATES: All comments must be received by August 19, 1996.
ADDRESSES: All comments should be addressed to Patricia E. Neely,
Program Analyst, Information Management and Security Staff, Information
Resources Management, Department of Justice, Washington, DC 20530 (Room
850, WCTR Building).
FOR FURTHER INFORMATION CONTACT:
Patricia E. Neely, Program Analyst (202-616-0178).
SUPPLEMENTARY INFORMATION: In the Notice Section of today's Federal
Register, there is a description of this system of records.
This order relates to individuals rather than small business
entities. Nevertheless, pursuant to the requirements of the Regulatory
Flexibility Act, 5 U.S.C. 601-612, it is hereby stated that the order
will not have ``a significant economic impact on a substantial number
of small entities.''
List of Subjects in 28 CFR Part 16
Administrative Practices and Procedure, Courts, Freedom of
Information Act, Government in the Sunshine Act, and the Privacy Act.
Pursuant to the authority vested in the Attorney General by 5
U.S.C. 552a and delegated to me by Attorney General Order No. 793-78,
it is proposed to amend 28 CFR part 16 as set forth below.
Dated: July 8, 1996.
Stephen R. Colgate,
Assistant Attorney General for Administration.
1. The authority for Part 16 continues to read as follows:
Authority: 5 U.S.C. 301, 552, 552a, 552b(g), 553; 18 U.S.C.
4203(a)(1); 28 U.S.C. 509, 510, 534; and 31 U.S.C. 3717, 9701.
2. It is proposed to amend 28 CFR 16.96 by removing the heading
``National Crime Information Center (NCIC) (Justice/FBI-001)'' and the
undesignated paragraph which follows paragraph (k)(4); and by adding
paragraphs (n) and (o) as set forth below.
Sec. 16.96 Exemptions of Federal Bureau of Investigation Systems--
Limited Access, as indicated
* * * * *
(n) The following system of records is exempt from 5 U.S.C. 552a(c)
(3) and (4); (d); (e) (1), (2), and (3); (e)(4) (G) and (H); (e) (5)
and (8); and (g):
(1) National DNA Index System (NDIS) (JUSTICE/FBI-017).
(o) These exemptions apply only to the extent that information in
the system is subject to exemption pursuant to 5 U.S.C. 552a(j)(2).
Exemptions from the particular subsections are justified for the
following reasons:
(1) From subsection (c)(3) because making available the accounting
of disclosures from records to the subject of the record would
prematurely place the subject on notice of the investigative interest
of law enforcement agencies, provide the subject with significant
information concerning the nature of the investigation, or permit the
subject to take measures to impede the investigation (e.g., destroy or
alter evidence, intimidate potential witnesses, or flee the area to
avoid investigation and prosecution), and result in a serious
impediment to law enforcement.
(2)(i) From subsections (c)(4), (d), (e)(4) (G) and (H), and (g)
because these provisions concern an individual's access to records
which concern him/her and access to records in this system would
compromise ongoing investigations. Such access is directed at allowing
the subject of the record to correct inaccuracies in it. The vast
majority of records in this system are from the DNA records of local
and State NDIS agencies which would be inappropriate and not feasible
for the FBI to undertake to correct. Nevertheless, an alternate method
to access and/or amend records in this system is available to an
individual who is the subject of a record pursuant to procedures and
requirements specified in the Notice of Systems of Records compiled by
the National Archives and Records Administration and published in the
Federal Register under the designation: National DNA Index System
(NDIS) (JUSTICE/FBI-017).
(ii) In addition, from paragraph (d)(2) of this section, because to
require the FBI to amend information thought to be incorrect,
irrelevant, or ultimately, because of the nature of the information
collected and the essential length of time it is maintained, would
create an impossible administrative and investigative burden by forcing
the agency to continuously retrograde investigations attempting to
resolve questions of accuracy, etc.
(iii) In addition, from subsection (g) to the extent that the
system is exempt from the access and amendment provisions of subsection
(d).
(3) From subsection (e)(1) because:
(i) Information in this system is primarily from State and local
records and it is for the official use of agencies outside the Federal
Government.
(ii) It is not possible in all instances to determine the relevancy
or necessity of specific information in the early stages of the
criminal investigation process.
(iii) Relevance and necessity are questions of judgment and timing;
what appears relevant and necessary when collected ultimately may be
deemed unnecessary, and vice versa. It is only after the information is
assessed that its relevancy in a specific investigative activity can be
established.
(iv) Although the investigative process could leave in doubt the
relevancy and necessity of evidence which had been properly obtained,
the same information could be relevant to another investigation or
investigative activity under the jurisdiction of the FBI or another law
enforcement agency.
(4) From subsections (e) (2) and (3) because it is not feasible to
comply with these provisions given the nature of this system. Most of
the records in this system are necessarily furnished by State and local
criminal justice agencies and not by individuals due to the very nature
of the records and the system.
(5) From subsection (e)(5) because the vast majority of these
records come from State and local criminal justice agencies and because
it is administratively impossible for them and the FBI to insure that
the records comply with this provision. Submitting agencies are urged
and make every effort to insure records are accurate and complete;
however, since it is not possible to predict when information in the
indexes of the system (whether submitted by
[[Page 37426]]
State and local criminal justice agencies or generated by the FBI) will
be matched with other information, it is not possible to determine when
most of them are relevant or timely.
(6) From subsection (e)(8) because the FBI has no logical manner to
determine whenever process has been made public and compliance with
this provision would provide an impediment to law enforcement by
interfering with ongoing investigations.
[FR Doc. 96-18326 Filed 7-17-96; 8:45 am]
BILLING CODE 4410-02-M
Complete official Federal Register PDF
FR Doc. 96-18273 Proposed Revision of Class E Airspace; Homer, AK
[Federal Register Volume 61, Number 139 (Thursday, July 18, 1996)]
[Proposed Rules]
[Pages 37407-37408]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18273]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 71
[Airspace Docket No. 96-AAL-13]
Proposed Revision of Class E Airspace; Homer, AK
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Notice of proposed rulemaking.
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SUMMARY: This action will revise Class E airspace at Homer, AK. The
development of a Global Positioning System (GPS) instrument approach to
RWY 21 at Homer Airport, AK, has made this action necessary. The area
would be depicted on aeronautical charts for pilot reference. The
intended effect of this proposal is to provide adequate controlled
airspace for Instrument Flight Rules (IFR) operations at Homer, AK.
DATES: Comments must be received on or before September 6, 1996.
ADDRESSES: Send comments on the proposal in triplicate to: Manager,
System Management Branch, AAL-530, Docket No. 96-AAL-13, Federal
Aviation Administration, 222 West 7th Avenue, Box 14, Anchorage, AK
99513-7587.
The official docket may be examined in the Office of the Assistant
Chief Counsel for the Alaskan Region at the same address.
An informal docket may also be examined during normal business
hours in the Office of the Manager, System Management Branch, Air
Traffic Division, at the address shown above.
FOR FURTHER INFORMATION CONTACT: Robert van Haastert, System Management
Branch, AAL-538, Federal Aviation Administration, 222 West 7th Avenue,
Box 14, Anchorage, AK 99513-7587; telephone number (907) 271-5863.
SUPPLEMENTARY INFORMATION:
Comments Invited
Interested parties are invited to participate in this proposed
rulemaking by submitting such written data, views, or arguments as they
may desire. Comments that provide the factual basis supporting the
views and suggestions presented are particularly helpful in developing
reasoned regulatory decisions on the proposal. Comments are
specifically invited on the overall regulatory, aeronautical, economic,
environmental, and energy-related aspects of the proposal.
Communications should identify the airspace docket number and be
submitted in triplicate to the address listed above. Commenters wishing
the FAA to acknowledge receipt of their comments on this notice must
submit with those comments a self-addressed, stamped postcard on which
the following statement is made: ``Comments to Airspace Docket No. 96-
AAL-13.'' The postcard will be date/time stamped and returned to the
commenter. All communications received on or before the specified
closing date for comments will be considered before taking action on
the proposed rule. The proposal contained in this notice may be changed
in light of comments received. All comments submitted will be available
for examination in the System Management Branch, Air Traffic Division,
Federal Aviation Administration, 222 West 7th Avenue, Box 14,
Anchorage, AK, both before and after the closing date for comments. A
report summarizing each substantive public contact with FAA personnel
concerned with this rulemaking will be filed in the docket.
Availability of NPRM's
Any person may obtain a copy of this Notice of Proposed Rulemaking
(NPRM) by submitting a request to the System Management Branch, AAL-
530, Federal Aviation Administration, 222 West 7th Avenue, Box 14,
Anchorage, AK 99513-7587. Communications must identify the notice
number of this NPRM. Persons interested in being placed on a mailing
list for future NPRM's should also request a copy of Advisory Circular
No. 11-2A which describes the application procedure.
The Proposal
The FAA is considering an amendment to part 71 of the Federal
Aviation Regulations (14 CFR part 71) to revise the Class E airspace at
Homer, AK, due to the creation of a GPS instrument approach to RWY 21.
The coordinates for this airspace docket are based on North American
Datum 83. The Class E airspace areas designated as 700/1200 foot
transition areas are published in paragraph 6005 of FAA Order 7400.9C,
dated August 17, 1995, and effective September 16, 1995, which is
incorporated by reference in 14 CFR 71.1 (58 FR 36298; July 6, 1993).
The Class E airspace designation listed in
[[Page 37408]]
this document would be published subsequently in the Order. The FAA has
determined that these proposed regulations only involve an established
body of technical regulations for which frequent and routine amendments
are necessary to keep them operationally current. It, therefore--(1) is
not a ``significant regulatory action'' under Executive Order 12866;
(2) is not a ``significant rule'' under DOT Regulatory Policies and
Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant
preparation of a regulatory evaluation as the anticipated impact is so
minimal. Since this is a routine matter that will only affect air
traffic procedures and air navigation, it is certified that this rule,
when promulgated, will not have a significant economic impact on a
substantial number of small entities under the criteria of the
Regulatory Flexibility Act.
List of Subjects in 14 CFR Part 71
Airspace, Incorporation by reference, Navigation (air).
The Proposed Amendment
In consideration of the foregoing, the Federal Aviation
Administration proposes to amend 14 CFR part 71 as follows:
PART 71--[AMENDED]
1. The authority citation for 14 CFR Part 71 continues to read as
follows:
Authority: 49 U.S.C. 40103, 40113, 40120; E.O. 10854, 24 FR
9565, 3 CFR, 1959-1963 Comp., p. 389; 49 U.S.C. 106(g), 14 CFR
11.69.
Sec. 71.1 [Amended]
2. The incorporation by reference in 14 CFR 71.1 of Federal
Aviation Administration Order 7400.9C, Airspace Designations and
Reporting Points, dated August 17, 1995, and effective September 16,
1995, is amended as follows:
* * * * *
Paragraph 6005 Class E airspace extending upward from 700 feet or
more above the surface of the earth.
* * * * *
AAL AK E5 Homer, AK [Revised]
Homer Airport, AK
(lat. 59 deg.38'42'' N, long. 151 deg.28'42'' W)
Kachemak NDB
(lat. 59 deg.38'29'' N, long. 151 deg.30'01'' W)
That airspace extending upward from 700 feet above the surface
within a 6.7-mile radius of the Homer Airport and within 2.5 miles
each side of the 220 deg. bearing of the Kachemak NDB extending from
the 6.7-mile radius of the airport to 7.7 miles southwest of the
airport, and within 2 miles each side of the 070 deg. bearing from
the airport extending to 9 miles east of the airport; excluding that
airspace north of a line 2.5 miles north and parallel to Runway 3-
21.
* * * * *
Issued in Anchorage, AK, on July 11, 1996.
Trent S. Cummings,
Acting Manager, Air Traffic Division, Alaskan Region.
[FR Doc. 96-18273 Filed 7-17-96; 8:45 am]
BILLING CODE 4910-13-P
Complete official Federal Register PDF
FR Doc. 96-18272 Proposed Revision of Class E Airspace; Bettles, AK
[Federal Register Volume 61, Number 139 (Thursday, July 18, 1996)]
[Proposed Rules]
[Pages 37408-37409]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18272]
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DEPARTMENT OF TRANSPORTATION
14 CFR Part 71
[Airspace Docket No. 96-AAL-15]
Proposed Revision of Class E Airspace; Bettles, AK
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Notice of proposed rulemaking.
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SUMMARY: This action revises the Class E airspace at Bettles, AK. The
development of the Global Positioning (GPS) instrument approach to
Bettles Airport, AK has made this action necessary. The area would be
depicted on aeronautical charts for pilot reference. The intended
effect of this proposal is to provide adequate controlled airspace for
Instrument Flight Rules (IFR) operations at Bettles, AK.
DATES: Comments must be received on or before September 6, 1996.
ADDRESSES: Send comments on the proposal in triplicate to: Manager,
System Management Branch, AAL-530, Docket No. 96-AAL-15, Federal
Aviation Administration, 222 West 7th Avenue, Box 14, Anchorage, AK
99513-7587.
The official docket may be examined in the Office of the Assistant
Chief Counsel for the Alaskan Region at the same address.
An informal docket may also be examined during normal business
hours in the Office of the Manager, System Management Branch, Air
Traffic Division, at the address shown above.
FOR FURTHER INFORMATION CONTACT: Robert van Haastert, System Management
Branch, AAL-538, Federal Aviation Administration, 222 West 7th Avenue,
Box 14, Anchorage, AK 99513-7587; telephone number (907) 271-5863.
SUPPLEMENTARY INFORMATION:
Comments Invited
Interested parties are invited to participate in this proposed
rulemaking by submitting such written data, views, or arguments as they
may desire. Comments that provide the factual basis supporting the
views and suggestions presented are particularly helpful in developing
reasoned regulatory decisions on the proposal. Comments are
specifically invited on the overall regulatory, aeronautical, economic,
environmental, and energy-related aspects of the proposal.
Communications should identify the airspace docket number and be
submitted in triplicate to the address listed above. Commenters wishing
the FAA to acknowledge receipt of their comments on this notice must
submit with those comments a self-addressed, stamped postcard on which
the following statement is made: ``Comments to Airspace Docket No. 96-
AAL-15.'' The postcard will be date/time stamped and returned to the
commenter. All communications received on or before the specified
closing date for comments will be considered before taking action on
the proposed rule. The proposal contained in this notice may be changed
in light of comments received. All comments submitted will be available
for examination in the System Management Branch, Air Traffic Division,
Federal Aviation Administration, 222 West 7th Avenue, Box 14,
Anchorage, AK, both before and after the closing date for comments. A
report summarizing each substantive public contact with FAA personnel
concerned with this rulemaking will be filed in the docket.
Availability of NPRM's
Any person may obtain a copy of this Notice of Proposed Rulemaking
(NPRM) by submitting a request to the System Management Branch, AAL-
530, Federal Aviation Administration, 222 West 7th Avenue, Box 14,
Anchorage, AK 99513-7587. Communications must identify the notice
number of this NPRM. Persons interested in being placed on a mailing
list for future NPRM's should also request a copy of Advisory Circular
No. 11-2A which describes the application procedure.
The Proposal
The FAA is considering an amendment to part 71 of the Federal
Aviation Regulations (14 CFR part 71) to modify Class E airspace at
Bettles, AK. This action is necessary to accommodate a new GPS
instrument approach to Runway 1 at Bettles Airport, AK. The coordinates
for this airspace docket are based on North American Datum 83. The
Class E airspace areas designated as surface areas for an airport are
published in paragraph 6002 of FAA Order 7400.9C, dated August 17,
1995, and effective September 16, 1995, which is incorporated by
reference in 14 CFR 71.1 (58 FR 36298; July 6, 1993). The
[[Page 37409]]
Class E airspace designation listed in this document would be published
subsequently in the Order. The FAA has determined that these proposed
regulations only involve an established body of technical regulations
for which frequent and routine amendments are necessary to keep them
operationally current. It, therefore--(1) Is not a ``significant
regulatory action'' under Executive Order 12866; (2) is not a
``significant rule'' under DOT Regulatory Policies and Procedures (44
FR 11034; February 26, 1979); and (3) does not warrant preparation of a
regulatory evaluation as the anticipated impact is so minimal. Since
this is a routine matter that will only affect air traffic procedures
and air navigation, it is certified that this rule, when promulgated,
will not have a significant economic impact on a substantial number of
small entities under the criteria of the Regulatory Flexibility Act.
List of Subjects in 14 CFR Part 71
Airspace, Incorporation by reference, Navigation (air).
The Proposed Amendment
In consideration of the foregoing, the Federal Aviation
Administration proposes to amend 14 CFR part 71 as follows:
PART 71--[AMENDED]
1. The authority citation for 14 CFR Part 71 continues to read as
follows:
Authority: 49 U.S.C. 40103, 40113, 40120; E.O. 10854, 24 FR
9565, 3 CFR, 1959-1963 Comp., p. 389; 49 U.S.C. 106(g), 14 CFR
11.69.
Sec. 71.1 [Amended]
2. The incorporation by reference in 14 CFR 71.1 of Federal
Aviation Administration Order 7400.9C, Airspace Designations and
Reporting Points, dated August 17, 1995, and effective September 16,
1995, is amended as follows:
* * * * *
Paragraph 6002 The Class E airspace areas listed below are
designated as a surface area for an airport.
* * * * *
AAL AK E2 Bettles, AK
Bettles Airport, AK
(lat. 66 deg.54'55'' N., long. 151 deg.31'41'' W.)
Bettles VORTAC
(lat. 66 deg.54'18'' N., long. 151 deg.32'10'' W.)
Within a 4.1-mile radius of the Bettles Airport and within 4
miles west of the Bettles VORTAC 227 deg. radial extending from the
4.1-mile radius to 12 miles southwest of the airport and within 4
miles each side of the Bettles VORTAC 212 deg. radial extending from
the 4.1-mile radius to 12 miles southwest of the airport and within
2.9 miles each side of the Bettles VORTAC 026 deg. radial extending
from the 4.1-mile radius to 7.4 miles north of the airport. This
Class E airspace area is effective during the specific dates and
times established in advance by a Notice to Airmen. The effective
date and time will thereafter be continuously published in the
Supplement Alaska (Airport/Facility Directory).
* * * * *
Issued in Anchorage, AK, on July 11, 1996.
Trent S. Cummings,
Acting Manager, Air Traffic Division, Alaskan Region.
[FR Doc. 96-18272 Filed 7-17-96; 8:45 am]
BILLING CODE 4910-13-P
Complete official Federal Register PDF
FR Doc. 96-18262 Futures Commission Merchants, Clearing Members and Foreign Brokers; Option Large Trader Reports Daily Filing Requirements
[Federal Register Volume 61, Number 139 (Thursday, July 18, 1996)]
[Proposed Rules]
[Pages 37409-37417]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18262]
=======================================================================
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COMMODITY FUTURES TRADING COMMISSION
17 CFR Parts 15, 16, 17, 18 and 19
Futures Commission Merchants, Clearing Members and Foreign
Brokers; Option Large Trader Reports Daily Filing Requirements
AGENCY: Commodity Futures Trading Commission.
ACTION: Proposed rulemaking.
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SUMMARY: The Commodity Futures Trading Commission (Commission) is
proposing to amend its regulations to require that futures commission
merchants, clearing members and foreign brokers (firms) file option
large trader reports with the Commission on a daily basis. The proposed
amendments specify a joint option and futures reporting level, a joint
record format for reporting the information in machine-readable form,
and an earlier time for submission of the data. A number of these
requirements are proposed with the view that the Commission will be
able to provide large trader data to the exchanges. Currently, firms
report option and futures large trader data to the exchanges and
futures data to the Commission. Reporting burdens in the industry may
be reduced if firms report data to a single source that in turn
distributes the information to all regulators or self-regulatory
organizations.
The Commission is also in the process of obtaining new computer
hardware and rewriting the software for its market surveillance system.
In view of this, the Commission is requesting comment from the industry
on any standards it might adopt that would make large trader reporting
more efficient for the industry. Last, the Commission is proposing
amendments to rule 18.04 to obtain CFTC form 40s from reporting traders
only on special call. This would mirror current Commission practice
with respect to this form.
DATES: Comments on this proposed rulemaking should be submitted on or
before September 16, 1996.
ADDRESSES: Comments should be sent to the Office of the Secretariat,
Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st
Street, NW., Washington, DC 20581, and should make reference to
``option large trader reports,'' telephone (202) 418-5100.
FOR FURTHER INFORMATION CONTACT: Lamont L. Reese, Division of Economic
Analysis, Three Lafayette Centre, 1155 21st Street, NW., Washington, DC
20581, telephone (202) 418-5310.
SUPPLEMENTARY INFORMATION:
I. Background
The Commission employs a comprehensive market surveillance system
which is designed to maintain freely competitive markets by detecting
and preventing threats of price manipulation or other major market
disruptions caused by abusive trading practices. As part of the system,
the Commission's Division of Economic Analysis operates an extensive
data-gathering system which relies heavily on computer support.
Regulations concerning this system require reports from three primary
sources: contract markets under Part 16 of the regulations; futures
commission merchants, clearing members, and foreign brokers (firms)
under parts 17 and 21 of the regulations; and individual traders under
parts 18 and 19 of the regulations. 17 CFR parts 16 through 21 (1995).
The Commission is proposing amendments to these regulations which
will require firms to report daily option positions of large traders in
addition to futures positions directly to the Commission. The proposed
rule changes also delete the current requirement that contract markets
provide option large trader (OLT) data on a weekly basis. Since the
Commission is also in the process of reengineering software for its
surveillance system to run in a client-server environment rather than
on a mainframe computer, it is making proposals and asking for
recommendations to make its requirements for electronic reporting
consistent with standards in use by the industry.
An overall review of the reporting system indicates that additional
amendments to the regulations may be proposed. These include proposed
changes to the reporting levels in rule 15.03 and amendments to Part 17
of the regulations to give additional guidance
[[Page 37410]]
to firms when reporting accounts that are owned and/or controlled by
two or more persons. However, since these regulations are not concerned
with daily reporting of option positions, any proposed changes to them
will be included in a separate rulemaking proposal.
II. Daily and Weekly Large Trader Data
Part 17 of the Commission's regulations requires that firms submit
a daily report to the Commission with respect to futures positions in
all special accounts on their books.1 Information required to be
provided to the Commission includes quantities of reportable futures
positions, exchanges of futures for cash, and delivery notices issued
or stopped by each special account.2 Firms assign a reporting
number to the special account and report all information to the
Commission using this number.3 The regulations also specify the
format for data that is reported on machine-readable media and the type
of data processing media that is compatible with Commission computer
systems.4 Additionally, firms must file a CFTC form 102 showing
the information specified under Sec. 17.01 of the regulations for each
special account.5 This information identifies persons who have a
financial interest in or trading control of a special account, informs
the Commission of the type of account that is being reported, and gives
preliminary information whether positions and transactions are
commercial or noncommercial in nature.
---------------------------------------------------------------------------
\1\ Special account means any commodity futures or option
account in which there is a reportable position, 17 CFR 15.00
(1995). Firms report futures information to the Commission and
futures and option information to the exchanges.
\2\ A reportable position is any open position held or
controlled by a trader at the close of business in any one futures
contract of a commodity traded on any one contract market that is
equal to or in excess of the quantities fixed by the Commission in
Sec. 15.03 of the regulations, 17 CFR 15.03 (1995).
\3\ The firm's reporting number may be the account number
carried on its books. However, the number may refer to a collection
of accounts that are owned and/or controlled by the same person.
\4\ See rule 17.00(g) for a description of the file
characteristics and 15.00(l) for a definition of compatible data
processing media, 17 CFR 15.00(l) and 17.00(g) (1995).
\5\ 17 CFR 17.01 (1995).
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With regard to options, however, the Commission receives large
trader data only on a weekly basis. Part 16 of the regulations requires
that contract markets provide the long and short put or call positions
for each option trader controlling a reportable position as of the
close of business on Tuesday.6 Contract markets provide the
Commission with the data by account number and supply a CFTC form 102
to identify owners and controllers of the account. Generally, the rules
requiring weekly reporting of OLT data were in place at the inception
of the Commission's three-year pilot program for domestic exchange-
traded commodity options.7 Due to the growth in the trading of
exchange-traded options and, since the same persons tend to hold both
large futures and option positions, the Commission does not believe
that its current requirements concerning large trader reporting are
adequate.
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\6\ 17 CFR 16.02 (1995). A reportable option position is defined
as any open contract position on any one contract market in the put
option or separately in the call option of a specified option
expiration date which exceeds 50 contracts. 17 CFR 15.00(b)(2)
(1995).
\7\ 46 FR 54500 (November 3, 1981).
---------------------------------------------------------------------------
The Commission has long recognized the interaction that exists
between the markets for trading futures and those for trading options
on futures. In April of 1992, for example, the Commission proposed
rules that would unify speculative position limits on futures with
those on options for the commodities specified in Part 150 of the
regulations, 57 FR 12766 (April 13, 1992).8 In this release, the
Commission found that price movements in the two markets are highly
related so that viewing options and futures together more readily
reflects the economic reality of a trader's position. The Commission
noted that:
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\8\ The Commission previously requested comments on the concept
of unifying option and futures speculative limits. See 56 FR 37049
(August 2, 1991). The commodities listed in Part 150 include grains,
soybeans, soybean products, and cotton.
* * * options in certain combinations create synthetic futures.
Moreover, these, or other combinations, may be spread or offset
against actual futures positions. Thus, through a variety of spread
or arbitrage transactions, positions in one market may have a direct
---------------------------------------------------------------------------
and immediate impact on pricing in the other.
57 FR at 12769
Trading in options on futures grew to over 100 million contracts
during 1994, and option position sizes held by individual traders have
grown correspondingly. Currently, it is impossible to assess
relationships between price moves and trader positions without knowing
both the traders' futures and option positions. Adequate surveillance
requires that these relationships be examined on a day-to-day basis. In
view of this, the Commission is proposing to collect option positions
of large traders on a daily basis.
The Commission must, of course, determine whether it will require
daily reports from the exchanges or obtain the information directly
from reporting firms. As noted above, exchanges currently supply the
Commission with weekly OLT data. A survey of the exchanges indicates,
however, that not all exchanges collect option large trader data on a
daily basis. Moreover, although the option data are currently provided
by exchanges immediately after they process incoming reports from their
members, the data are not timely for market surveillance. Most
exchanges provide the data to the Commission during the afternoon of
the Wednesday following the Tuesday report date for the positions. Due
to CFTC processing capacity restraints, OLT data are processed
overnight and not available for analysis until the following morning.
Exchange members, however, provide OLT data to the exchanges early in
the morning on the day following the OLT position report date.
Presumably, reporting firms could provide data directly to the
Commission at about the same time and, in its new processing
environment, the Commission will be able to access and analyze the data
immediately. The process of obtaining data from the exchanges is also
cumbersome and may impose a significant additional burden on the
exchanges, particularly with respect to providing the Commission with
form 102s to identify accounts and in obtaining corrections to the OLT
data.
The Commission is also mindful of the additional burden that may be
placed on reporting firms if it collects OLT data directly from them
since, in addition, they must provide data to the exchanges. The burden
on firms would be reduced if the Commission acts as a central
collection point for large trader data and distributes them to the
exchanges. Reporting firms through the operations committees of the
Futures Industry Association (FIA) recommended this approach to
Commission staff in 1991.9 Since the Commission is obtaining new
computer hardware and rewriting its software, the Commission is
considering requirements that will allow it to act as a central
collection point for large trader data. Commission staff have held
preliminary discussions with exchange staff who expressed interest, if
the needs of the individual exchanges could be met.
---------------------------------------------------------------------------
\9\ See the ``Report on the Commission's Large Trader Reporting
System'' prepared by the Division of Economic Analysis, January
1992, pp. 23 and 24.
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In view of the above, the Commission is proposing amendments to its
reporting rules that require firms to report both futures and option
large
[[Page 37411]]
trader data to the Commission on a daily basis. These amendments
involve redefining reporting levels, establishing joint reporting of
futures and option data and changing the current format for reporting
data on machine-readable media. In making the specific amendments
discussed below, the Commission is taking into account certain
requirements expressed by staff of the various exchanges.
A. Reporting Levels
As noted above, Commission rules 15.00(b) and 15.03 define
reportable levels in futures and options. The Commission is not
changing its definition of a reportable futures position. However, it
is proposing that an option position be considered reportable if the
aggregate of all open contract positions of a trader in all options
that exercise into the same futures expiration month exceeds the
reporting levels specified in rule 15.03 for any one option
quadrant.10 Commission staff have functionally adopted this
definition when processing exchange-supplied OLT data. If an exchange
reports an option account that has previously been reported, or if the
position is reportable according to the above definition, the account
is further processed. The Commission has found that this method of
processing OLT data gives satisfactory information about large option
traders and greatly reduces the number of form 102s it requests from
the exchanges. The Commission intends to continue this front-end
processing of OLT data if firms report directly to the Commission.
Thus, firms can report OLT data at lower reporting levels or report all
OLT data and the Commission will keep and process only that which is
appropriate.
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\10\ An option quadrant is considered a long call, short call,
long put or short put.
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B. Reporting Futures and Options on a Combined Basis
Commission regulations currently require that firms provide only
large trader positions that are of a reportable size. If a trader holds
a reportable position in one future month of a commodity on a contract
market and a position which is not of a reportable size in another
future month, only the larger position is required to be reported. A
number of the exchanges, however, require that both positions be
reported.11 For such exchanges, this type of reporting applies to
both futures and options. Firms must report all option positions and
all futures positions in an account to the appropriate exchange, if
either an option position or a futures position in the account meets
the exchange's definition of reportability. The Commission is proposing
to amend rule 17.00 to require this type of reporting. This will meet
exchange requirements if in the future they choose to obtain data from
the Commission rather than from firms.12
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\11\ Exchanges that require this type of reporting include the
Chicago Board of Trade (CBT), the Chicago Mercantile Exchange (CME),
and the New York Mercantile Exchange (NYME).
\12\ Since the Commission is proposing that rule 17.00 be
amended to require that options be reported by strike prices it is
also proposing conforming amendments to rule 17.04 to require that
the originator of an omnibus account report option positions by
strike price to the firm that carries the account.
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C. Record Formats for Dial-Up Transmissions and Machine Readable Media
The Commission receives about 95 percent of its futures large
trader data via dial-up transmission or on machine-readable media. The
record formats for reporting in this manner are contained in rule
17.00(g).13 In proposing changes to these formats to accommodate
option data, the Commission is seeking to minimize programming changes
that firms may incur with adoption of a new reporting format and to
collect a set of data that will be useful to each exchange for their
large trader reporting system. This can be accomplished by adopting a
format used by at least one of the major exchanges that includes all
data fields used by other exchanges. Any of these other exchanges that
elect to obtain large trader data from the Commission will be able to
convert from the Commission's format to their own.
---------------------------------------------------------------------------
\13\ 17 CFR 17.00(g) (1995).
---------------------------------------------------------------------------
A review of record formats used by the exchanges indicates that
although they differ the formats necessarily contain similar
information for collecting large trader data. The formats used by two
of the exchanges are more expansive than others, allowing for
identification of flexible products in addition to data used by other
exchanges. One of these formats contains all information in a single
record and may be preferable since the Commission is proposing to use
the same record format to report different types of information. In
view of this, the Commission is proposing to adopt the record format
shown below.
------------------------------------------------------------------------
Record layout
------------------------------
Beginning Name
column Length Type*
------------------------------------------------------------------------
1........ 2 AN Report Type.
3........ 3 AN Reporting Firm.
6........ 2 -- Reserved.
8........ 12 AN Account Number.
20....... 8 AN Report Date.
28....... 2 AN Exchange Code.
30....... 1 AN Put or Call.
31....... 5 AN Commodity Code (1).
36....... 8 AN Expiration Date (1).
44....... 7 S Strike Price.
51....... 1 AN Exercise Style.
52....... 7 N Long-buy-Stopped.
59....... 7 N Short-Sell-Issued.
66....... 5 AN Commodity Code (2).
71....... 8 AN Expiration Date (2).
79....... 2 -- Reserved.
------------------------------------------------------------------------
*AN--Alpha-Numeric.
N--Numeric.
S--Signed numeric.
1. Report Type. This report format will be used to report three
types of data: Long and short futures and option positions, futures
delivery notices issued and stopped, and exchanges of futures for
physicals bought and sold. Valid values for the report type are ``RP''
for reporting positions, ``DN'' for reporting delivery notices, and
``EP'' for reporting futures for physicals.
2. Reporting Firm. Currently, the Commission assigns a five-digit
number to each firm which is used for reporting. See rule
17.00(g)(3)(i). This assignment may not be necessary since all members
of a clearing house are already identified by a number that is used for
reporting to the clearing house or the exchange. The Commission is
proposing to use the clearing member number in conjunction with an
exchange number to identify reporting firms. If a firm is not a
clearing member, the Commission is proposing that it assign a three-
character alpha-numeric identifier agreed to by the exchanges.
3. Account Number. This is the same number that is currently
assigned to an account by the firm for purposes of reporting. See rule
17.00(g)(3)(iii).
4. Report Date. The Commission is proposing that the report date
include the full four-character year rather than the last two
characters. The format is YYYYMMDD, where YYYY is the year, MM is the
month, and DD is the day of the month.
5. Exchange. This is proposed as a two-character field used to
identify the exchange on which a position is held.
[[Page 37412]]
The Commission is proposing that valid values be as follows:
01.............................. Chicago Board of Trade.
02.............................. Chicago Mercantile Exchange.
03.............................. MidAmerica Commodity Exchange.
06.............................. Coffee, Sugar and Cocoa Exchange.
07.............................. Comex Division of NYME.
08.............................. Kansas City Board of Trade.
09.............................. Minneapolis Grain Exchange.
10.............................. Philadelphia Board of Trade.
12.............................. New York Mercantile Exchange.
13.............................. New York Cotton Exchange.
15.............................. New York Futures Exchange.
------------------------------------------------------------------------
6. Put-Call Code. Valid entries would be ``C'' for a call option
and ``P'' for a put option. For futures, the field is blank.
7. Commodity (1). Currently, the Commission assigns a six-digit
contract market code for reporting. This appears unnecessary since the
exchanges already assign a commodity code for their own reporting. The
Commission is proposing to use the exchange code assigned to the
futures or option contract pertaining to the reported position. This
may simplify reporting for firms.
8. Expiration Date (1). The date format is YYYYMMDD and represents
the expiration date or delivery date of the reported futures or option
contract. For date-specific instruments, such as flexible products, the
full date must be reported. For other options and futures, this field
is used to report the expiration year and month for an option contract
or a delivery year and month for a futures contract. The day portion of
the field for these contracts (``DD'') contains spaces.
9. Strike Price. This is proposed as a signed numeric field for
reporting option strike prices. The strike prices should be right-
justified and the field zero-filled. For futures, the field is left
blank.
10. Exercise Style. Valid values for this field are ``A'' for
American style options, i.e., those that can be exercised at any time
during the life of the options and ``E'' for European, i.e., those that
can be exercised only at the end of an option's life. This field will
be required only for flexible instruments or as otherwise specified by
the Commission. The Commission is proposing that all data be reported
in contracts. Currently, data for the grains and soybean futures
markets are reported in thousand bushels. Data reported by the
exchanges for options on futures contracts in these markets, however,
is reported in contracts. It would be preferable if all data pertaining
to these markets are reported in the same units.
11. Long-Buy-Stopped (Short-Sell-Issued). When report type is
``RP'', this field represents long (short) positions open at the end of
a trading day. When report type is ``DN'', this field represents
delivery notices stopped (issued) on behalf of the account. When report
type is ``EP'', this field represents purchases (sales) of futures for
cash for the account. The Commission is proposing that all data be
reported in contracts. Currently, data for the grains and soybean
futures markets are reported in thousand bushels. Data reported by the
exchanges for options on futures contracts in these markets, however,
is reported in contracts. It would be preferable if all data pertaining
to these markets are reported in the same units.
12. Commodity (2). This is the exchange-assigned commodity code for
a futures contract or other instrument that a position is exercised
into from a date specific or flexible option.
13. Expiration Date (2). Similar to other dates, the format is
YYYYMMDD and represents the expiration date or delivery month and year
of the future or other instrument that a position is exercised into
from a date-specific or flexible option.
D. Time and Place for Filing Reports
Commission rule 17.02 currently specifies different times for
reporting large trader data depending on the media used for
reporting.14 If forms are used, they must be transmitted to the
appropriate regional office by 9 a.m. If the data are supplied on
machine-readable media, such as computer tape or diskette, the data
must be supplied by 10:30 a.m. If the data are transmitted
electronically, the data must be supplied by 11 a.m.15
---------------------------------------------------------------------------
\14\ In the discussion that follows, times are eastern time for
markets located in that time zone and central time for all other
markets.
\15\ A number of firms that transmit data electronically provide
the Commission with reports substantially earlier than its 11:00
a.m. cutoff time.
---------------------------------------------------------------------------
As noted above, exchanges generally receive large trader data
earlier than the Commission. Staff for several of the exchanges
indicate that they have a 9 a.m. cutoff time. Another exchange
apparently receives data by 7 a.m. It would be beneficial for the
Commission's market surveillance program if all reports were received
at an earlier time. In addition, if the Commission is to act as a
central collection point for large trader data, it must be able to meet
exchange deadlines. In view of this, the Commission is proposing to
amend rule 17.02 so that all large trader reports are required to be
submitted to the Commission by 9 a.m. or at such earlier time as
specified by an exchange that is receiving data from the Commission for
contract markets on that exchange.
E. Filing Reports Electronically and the Definition of Compatible Data-
Processing Media
Unless otherwise allowed by the Commission, firms must report large
trader data on compatible data-processing media.16 This form of
reporting is efficient, since paper reports need not be filled out and
filed and key-entry of the data received is not required. A significant
number of small firms, however, currently have an exception to file
paper reports. The amount of data filed by each firm is small,
accounting in total for less than five percent of all large trader data
collected by the Commission.
---------------------------------------------------------------------------
\16\ 17 CFR 17.00(a) (1995).
---------------------------------------------------------------------------
The Commission is concerned, however, that the amount of data
submitted on hard-copy reports may increase appreciably if options are
reported to the Commission. Since reporting OLT positions to the
Commission is more data-intensive than reporting futures positions,
there is concern that the number of existing staff will be inadequate
to key-enter both futures and option large trader data in a timely
manner. In view of this, the Commission may be more restrictive in
allowing firms to report in hard-copy format. Since personal computers
are becoming less expensive, it may not be burdensome for firms to key-
enter large trader data and transmit the data to the Commission. The
Commission is seeking comment on the magnitude of the burden this may
impose on smaller firms and whether assistance, such as software
development, could be provided by Commission staff to ameliorate this
burden.
If firms file reports electronically, they must do so on compatible
data-processing media. This is defined in rule 15.00(l) as:
1. Unblocked, nine-track, 1600 BPI magnetic tape using EBCDIC
encoding and a standard IBM label;
2. Magnetic diskettes using a single-density IBM 3741 format; or
3. Asynchronous dial-up transmission at 1200 baud or synchronous
dial-up transmission at 4800 baud.
The above-mentioned transmission methods are generally outdated.
For example, cartridge has replaced tape and data transmission speeds
are far faster than those specified above. The Commission is interested
to know if standards for data transmission or media use have been
adopted by members of the futures trading industry, and is seeking
comment on how best to
[[Page 37413]]
define acceptable data-processing media.
F. Filing Form 102s
Since account identification information is provided on a form
rather than electronically, the data are burdensome for firms to
provide and costly for the Commission to process. This burden is
compounded for reporting firms since the same form might have to be
filed at different times with several exchanges as well as the
Commission. Costs associated with filing this form appear to be the
principal reason that firms desire to send information to a single
regulator.
The Commission can of course act as a single collection point for
this information as well as that pertaining to positions. The cost of
doing so, however, may be high since the forms themselves will require
copying and distribution to the exchanges. This cost could be minimized
if the information were transmitted electronically to the Commission.
Two exchanges, independent of this rulemaking, have started work in
this area.
One exchange, the CME, has developed software that can be used on a
reporting firm's computer system. The software allows for key-entry of
account identification information which is collected in a file for
subsequent transmission. Another exchange, the CBT, requires that
member firms electronically transmit partial account identification
information when an account is first reported. In either case, it
appears that firms must key-enter the data rather than obtain it from
other computer files they maintain.
At this time, the Commission is in the process of gathering more
information to determine the manner in which it will proceed in this
matter. Although its staff will be in further contact with the
exchanges and reporting firms, the Commission is requesting comments
and suggestions from the industry on either of the exchanges'
approaches or viable alternatives to collecting account identification
information electronically.
G. Proposed Implementation
The Commission expects that implementation of the proposed
amendments to the regulations will occur over a period of time.
Reporting firms must develop new formats for transmitting the combined
option and futures data and new software programs to determine whether
accounts are reportable. In addition, Commission staff will test data
transmissions to ensure that formats are correct. In view of this, the
Commission anticipates that it will make the amended rules effective
six months after publication in the Federal Register of a final
rulemaking in this matter. At that time, the requirement in part 16
that exchanges file weekly OLT data would be deleted.17
---------------------------------------------------------------------------
\17\ The Commission is proposing to delete and reserve
Secs. 16.02 and 16.03. In addition, the Commission is proposing
conforming amendments to rules 16.06 and 16.07 to remove references
to deleted sections of part 16.
---------------------------------------------------------------------------
III. Other Exchange Reporting
In addition to OLT reports required by rule 16.02, exchanges must
make clearing member reports under rule 16.00 and reports concerning
volume, open interest and prices under rule 16.01.18 All reports
made by the exchanges must be on compatible data-processing media and
are due to the Commission no later than 3 p.m. of the business day
following the report date of the data. The data are submitted using a
format and coding structure issued by the Office of the Executive
Director.
---------------------------------------------------------------------------
\18\ 17 CFR 16.00, 16.01 and 16.02 (1995).
---------------------------------------------------------------------------
A. Delta Factors and Settlement Prices
Included in the data provided under paragraph 16.01 are the
settlement prices for option and futures contracts and delta-factors
for option contacts.19 Delta factors are necessary to convert
option positions to a futures equivalent basis so that traders' futures
and option positions can be viewed as an economic whole. Deltas must be
available when option positions are reported in order to interpret the
positions.
---------------------------------------------------------------------------
\19\ Delta factors are used to equalize the exposure value of an
option contract with that of the underlying future. Multiplying an
option contract by a delta factor places the option on a comparable
basis to the underlying futures contract in terms of value
fluctuations. The absolute value of the deltas vary between 0 and 1.
---------------------------------------------------------------------------
The Commission understands that delta factors are computed by an
exchange or its associated clearing house after the close of trading
and can be made available sooner than volume of trading and open
interest figures. Settlement prices also are available shortly after
the close of trading and their timely receipt is important to the
Commission for its market and financial surveillance programs. In view
of this, the Commission is proposing to amend rule 16.01 to require
that exchanges electronically transmit delta factors and settlement
prices for option and futures contracts by 7 a.m. on the day following
the report date.20 Commission staff will be in contact with the
exchanges to discuss changes in record formats that amendments to the
regulations may entail.21
---------------------------------------------------------------------------
\20\ The report date is the date the data pertain to.
\21\ These formats will change substantially because of the
introduction of date-specific or flexible options.
---------------------------------------------------------------------------
B. Critical Dates
Since the inception of the pilot program for exchange-traded
options, the format and coding instructions issued by the Office of the
Executive Director have included fields for reporting certain dates
associated with the terms and conditions of futures and option
contracts. For futures contracts, this includes first and last notice
dates and last trading day and for option contracts, expiration date.
Although the exchanges provide these data, this requirement is not
explicitly set forth in the Commission's regulations. Commission
software makes extensive use of some of these dates for market
surveillance purposes. In view of this, the Commission is proposing to
amend rule 16.01 to require that the exchanges provide the first notice
date and last trading date for futures contracts and the expiration
date for option contracts.
C. Option Exercises and Assigns
Contract markets report the number of option contracts exercised
both by clearing members under rule 16.00(a)(5) and for the entire
market under rule 16.01(a)(5). The Commission is proposing to delete
these requirements since the information is not important for its
surveillance program.22
---------------------------------------------------------------------------
\22\ In addition, the Commission is proposing to delete the
requirement in rule 16.01(a)(6) that contract markets provide the
number of option contracts expiring unexercised.
---------------------------------------------------------------------------
IV. Other Proposed Amendments
A. Cash Position Reports
The Commission requires that persons owning or controlling futures
positions in commodities for which the Commission has established
speculative limits file reports concerning their long and short cash
positions, i.e., stocks of the commodities owned and the quantity of
their fixed-price purchase and sale commitments, 17 CFR part 19 (1995).
These commodities include the grains, the soybean complex and cotton,
17 CFR part 150 (1995). The primary purpose for these reports is to
determine if the futures positions of traders that exceed the
Commission's speculative limits qualify as hedging as defined in
Sec. 1.3(z) of the Commission's regulations. Additionally, merchants
and dealers in cotton must provide information on the quantity of their
``call purchases and
[[Page 37414]]
sales.'' 23 Information concerning call purchases and sales is
used as a basis for the Commission's weekly ``Cotton on Call'' report.
---------------------------------------------------------------------------
\23\ Call purchases and sales are unfixed price purchases and
sales commitments transacted as a basis price referenced to a
particular cotton futures delivery month.
---------------------------------------------------------------------------
With the exception of call purchase and sale reports by merchants
and dealers in cotton, reporting levels for cash position reports (CFTC
forms 204 and 304) are set at the speculative limit levels defined in
rule 150.2. 17 CFR 150.2 (1995).24 Only futures positions and not
option positions are considered when determining reportability for
purposes of reports due under part 19. See rule 15.00(b)(1)(ii), 17 CFR
15.00 (1995). The Commission, however, amended part 150 so that the
speculative limits set forth in rule 150.2 apply to the net long or net
short combined futures and futures equivalent option position of a
trader.25 Given the purpose for reports filed under rule
19.01(a)(1), the Commission is proposing that these reports be provided
only if a trader's net long or short combined futures and futures
equivalent options position as defined in part 150 exceeds the level
specified in rule 150.2.26
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\24\ Merchants and dealers in cotton must file reports at the
lower levels specified in rule 15.03. This lower level for cotton is
to ensure adequate coverage of call sales and purchases on the
``Cotton on Call'' report. The Commission is not proposing
amendments to this reporting level.
\25\ 58 FR 17972 (March 30, 1993). Commission rules 150.1 (f)-
(h) define futures equivalent and long and short positions as
follows:
(f) Futures-equivalent means an option contract which has been
adjusted by the previous day's risk factor, or delta coefficient,
for that option which has been calculated at the close of trading
and published by the applicable exchange under Sec. 16.01 of this
chapter.
(g) Long positions means a long call option, a short put option
or a long underlying futures contract.
(h) Short positions means a short call option, a long put option
or a short underlying futures contract.
\26\ Conforming amendments are also being proposed to rule
15.01(d). 17 CFR 15.01(d) (1995).
---------------------------------------------------------------------------
B. Submitting Form 40s
Under Part 18 of the regulations, traders who become reportable in
futures must file a CFTC form 40, ``Statement of Reporting Trader,''
within ten business days following the day that the trader obtains a
reportable position. Additional filings are made annually as specified
in rule 18.04(d).27 Traders who become reportable in options are
required to file the form 40 only in response to a special call by the
Commission.
---------------------------------------------------------------------------
\27\ 17 CFR 18.04(d) (1995).
---------------------------------------------------------------------------
Currently, when an account first becomes reportable in futures, the
firm reporting the account files a CFTC form 102 that identifies all
persons having a ten percent or more financial interest in the account
and those persons who control the trading of the account.28
Although all persons named on the form 102 may be considered a trader
according to the Commission's definition in rule 15.00(e), Commission
staff will determine a trader of primary interest and request a form 40
from that trader.29 No actions are generally taken against traders
who do not file an initial form 40 unless they fail to respond to the
staff's written request. Similarly, Commission staff will request
updates to form 40s by issuing a written request.30 In view of the
above, the Commission is proposing to amend rule 18.04 to require that
traders file form 40's in response to a special call, thus reflecting
the current operating procedure. Authority to make these calls will be
delegated to the director of the Division of Economic Analysis. In
proposing these amendments, the Commission expects that staff will
continue to obtain initial form 40s from traders and updated form 40s
on at least a twenty-four-month cycle for traders who continue in
reporting status.
---------------------------------------------------------------------------
\28\ 17 CFR 17.01 (1995).
\29\ At times, Commission staff may request a form 40 from more
than one person identified on the form 102, but this is rare. The
Division would continue to maintain this authority under the rule as
proposed and the proposed delegation authority.
\30\ Paragraph 18.04(d) requires that if traders remain
reportable, they update the form 40 after twelve months. Commission
staff, however, have been requesting that form 40s be updated only
if traders are in reporting status after a twenty-four-month period.
An analysis of form 40 updates indicates that few form 40s show
significant changes in the information contained on the form after a
one-year period. This action has significantly reduced the number of
form 40s required from traders with no adverse impact on the
Commission's surveillance program.
---------------------------------------------------------------------------
V. Related Matters
A. The Regulatory Flexibility Act (RFA)
The RFA requires that agencies, in proposing rules, consider the
impact of those rules on small business. These amendments affect large
traders and futures commission merchants and other similar entities
such as foreign brokers and foreign traders. The Commission has defined
``small entities'' as used by the Commission in evaluating the impact
of its rules in accordance with the RFA. 47 FR 18618-18621 (April 30,
1982).
In that statement, the Commission concluded that large traders and
futures commission merchants should not be considered to be small
entities for purposes of the RFA. In this regard, the amendments to
reporting requirements fall mainly upon futures commission merchants.
Similarly, foreign brokers and foreign traders report only if carrying
or holding reportable, i.e., large, positions. Pursuant to section 3(a)
of the RFA (5 U.S.C. 605(b)), the Chairman, on behalf of the
Commission, certifies that the proposed rules would not have a
significant economic impact on a substantial number of small entities.
The Commission invites comments from any firm which believes that these
rules would have a significant economic impact upon its operations.
B. Paperwork Reduction Act (PRA)
The PRA of 1980, 44 U.S.C. 3501 et seq., imposes certain
requirements on Federal agencies (including the Commission) in
connection with their conducting or sponsoring any collection of
information as defined by the PRA. In compliance with the PRA, the
Commission is submitting these proposed rules and their associated
information collection requirements to the Office of Management and
Budget. The burden associated with this entire collection and these
amended rules, is as follows:
Average burden hours per response................................0.3607
Number of respondents.............................................6,181
Frequency of response.............................................Daily
Persons wishing to comment on the information which would be
required by these rules should contact Jeff Hill, Office of Management
and Budget, Room 3228, NEOB, Washington, DC 20503, (202) 395-7304.
Copies of the information collection submission to OMB are available
from Joe F. Mink, CFTC Clearance Officer, Three Lafayette Centre, 1155
21st Street, NW., Washington, DC 20581, (202) 418-5170.
List of Subjects
17 CFR Part 15
Brokers, Reporting and recordkeeping requirements.
17 CFR Part 16
Commodity futures, Reporting and recordkeeping requirements.
17 CFR Part 17
Brokers, Commodity futures, Reporting and recordkeeping
requirements.
17 CFR Part 18
Brokers, Commodity futures, Reporting and recordkeeping
requirements.
17 CFR Part 19
Brokers, Commodity futures, Reporting and recordkeeping
requirements.
[[Page 37415]]
In consideration of the foregoing, and pursuant to the authority
contained in the Commodity Exchange Act (Act), and in particular,
sections 4g, 4i, 5 and 8a of the Act, 7 U.S.C. 6g, 6i, 7 and 12a
(1994), the Commission hereby amends chapter I of title 17 of the Code
of Federal Regulations as follows:
PART 15--REPORTS--GENERAL PROVISIONS
1. The authority citation for part 15 continues to read as follows:
Authority: 7 U.S.C. 2, 4, 5, 6a, 6c (a)-(d), 6f, 6g, 6i, 6k, 6m,
6n, 7, 9, 12a, 19 and 21; 5 U.S.C. 552 and 552(b).
2. Section 15.00 is proposed to be amended by revising paragraph
(b) to read as follows:
Sec. 15.00 Definitions of terms used in parts 15 to 21 of this
chapter.
* * * * *
(b) Reportable position means:
(1) For reports specified in parts 17, 18 and Sec. 19.00(a)(2) and
(a)(3) of this chapter any open contract position that at the close of
the market on any business day equals or exceeds the quantity specified
in Sec. 15.03 of this part in either:
(i) Any one future of any commodity on any one contact market,
excluding futures contracts against which notices of delivery have been
stopped by a trader or issued by the clearing organization of a
contract market; or
(ii) Long or short put or call options that exercise into the same
future of any commodity on any one contract market.
(2) For the purposes of reports specified in Sec. 19.00(a)(1) of
this chapter, any combined futures and futures-equivalent option open
contract position as defined in part 150 of this chapter in any one
month or in all months combined, either net long or net short in any
commodity on any one contract market, excluding futures positions
against which notices of delivery have been stopped by a trader or
issued by the clearing organization of a contract market, which at the
close of the market on the last business day of the week exceeds the
net quantity limit in spot, single or in all-months fixed in Sec. 150.2
of this chapter for the particular commodity and contract market.
* * * * *
3. Section 15.01 is proposed to be amended by revising paragraph
(d) to read as follows:
Sec. 15.01 Persons required to report.
* * * * *
(d) Persons, as specified in part 19 of this chapter, either:
(1) Who hold or control option and futures positions that exceed
the amounts set forth in Sec. 150.2 of this chapter for the commodities
enumerated in that section, any part of which constitutes bona fide
hedging positions (as defined in Sec. 1.3(z) of this chapter); or
(2) Who are merchants or dealers of cotton holding or controlling
positions for future delivery in cotton that equal or exceed the amount
set forth in Sec. 15.03.
PART 16--REPORTS BY CONTRACT MARKETS
4. The authority citation for Part 16 continues to read as follows:
Authority: 7 U.S.C. 6a, 6c, 6g, 6i, 7 and 12A.
Secs. 16.02 and 16.03 [Removed and reserved]
5. Part 16 is proposed to be amended by removing and reserving
Secs. 16.02 and 16.03.
6. Section 16.00 is proposed to be amended by revising paragraph
(a)(5) to read as follows:
Sec. 16.00 Clearing member reports.
(a) * * *
(5) For futures, the quantity of the commodity for which delivery
notices have been issued by the clearing organization of the contract
market and the quantity for which notices have been stopped during the
day covered by the report.
* * * * *
7. Section 16.01 is proposed to be amended by removing paragraphs
(a)(5) and (a)(6) and redesignating paragraph (a)(7) as (a)(5); by
redesignating paragraph (c) as (b)(3); and, by adding a new paragraph
(c) and revising paragraph (d) to read as follows:
Sec. 16.01 Trading volume, open contracts, prices and critical dates.
* * * * *
(c) Critical dates. Each contract market shall report to the
Commission for each futures contract the first notice date and the last
trading date and for each option contract the expiration date in
accordance with paragraph (d) of this section.
(d) Reports to the Commission. Unless otherwise approved by the
Commission or its designee, contract markets shall submit the
information specified in paragraphs (a), (b) and (c) of this section as
follows:
(1) Using a format and coding structure approved in writing by the
Commission or its designee in both hard-copy form and on compatible
data processing media;
(2) When each such form of the data is first available but not
later than 7 a.m. on the business day following the day to which the
information pertains for the delta factor and settlement price and not
later than 3 p.m. for the remainder of the information; and
(3) Except for dial-up data transmission, at the regional office of
the Commission having local jurisdiction with respect to such contract
market.
8. Section 16.06 is proposed to be revised to read as follows:
Sec. 16.06 Errors or omissions.
Contract markets shall file with the Commission on compatible data
processing media using a format and coding structure approved by the
Commission or its designee, corrections to errors or omissions in data
previously filed with the Commission pursuant to Secs. 16.00 and 16.01.
9. Section 16.07 is proposed to be revised to read as follows:
Sec. 16.07 Delegation of authority to the Director of the Division of
Economic Analysis and the Executive Director.
The Commission hereby delegates, until the Commission orders
otherwise, the authority set forth in paragraph (a) of this section to
the Director of the Division of Economic Analysis and the authority set
forth in paragraph (b) of this section to the Executive Director to be
exercised by such director or by such other employee or employees of
such director as may be designated from time to time by the director.
(a) Pursuant to Secs. 16.00(b), and 16.01(d) the authority to
determine whether contract markets must submit data in machine-readable
form or hard-copy or both, and the time and Commission office at which
such data may be submitted where the director determines that a
contract market is unable to meet the requirements set forth in the
regulations.
(b) Pursuant to Secs. 16.00(b)(1), 16.01(d)(1), and 16.06, the
authority to approve the use of data processing media other than
compatible data processing media as that term is defined in
Sec. 15.00(1) of this chapter and to approve the format and coding
structure used by contract markets.
PART 17--REPORTS BY FUTURES COMMISSION MERCHANTS, MEMBERS OF
CONTRACT MARKETS AND FOREIGN BROKERS
10. The authority citation for Part 17 continues to read as
follows:
Authority: 7 U.S.C. 6a, 6c, 6d, 6f, 6g, 68, 7 and 12a unless
otherwise noted.
11. Section 17.00 is proposed to be amended by revising paragraphs
(a), (d), (e), and (g) to read as follows:
[[Page 37416]]
Sec. 17.00 Information to be furnished by futures commission
merchants, clearing members and foreign brokers.
(a) Special Accounts--Reportable futures positions, delivery
notices and exchanges of futures for cash. (1) Each futures commission
merchant, clearing member and foreign broker shall submit a report to
the Commission for each business day with respect to all special
accounts carried by the futures commission merchant, clearing member or
foreign broker, except for accounts carried on the books of another
futures commission merchant on a fully-disclosed basis. Except as
otherwise authorized by the Commission or its designee, such report
shall be made on compatible data processing media in accordance with
the format and coding provisions set forth in paragraph (g) of this
section. The report shall show each futures position, separately for
each contract market and for each future, and each put and call option
position separately for each contract market, expiration month and
strike price in each special account as of the close of market on the
day covered by the report and, in addition, the quantity of exchanges
of futures for physicals and the number of delivery notices issued for
each such account by the clearing organization of a contract market and
the number stopped by the account.
(2) A report covering the first day upon which a special account is
no longer reportable shall also be filed showing the information
specified in paragraph (a)(1) of this section.
* * * * *
(d) Net positions. Futures commission merchants, clearing members
and foreign brokers shall report positions net long or short in each
future of a commodity and each strike price of a put or call option for
each expiration month in all special accounts, except as specified in
paragraph (e) of this section.
(e) Gross positions. In the following cases, the futures commission
merchant, clearing member or foreign broker shall report gross long and
short positions in each future of a commodity and each strike price of
a put or call option for each expiration month in all special accounts:
(1) Positions which are reported to an exchange or the
clearinghouse of an exchange on a gross basis, which the exchange uses
for calculating total open interest in a commodity;
(2) Positions in accounts owned or held jointly with another person
or persons;
(3) Positions in multiple accounts subject to trading control by
the same trader; and
(4) Positions in omnibus accounts.
* * * * *
(g) Media and file characteristics. (1) Except as otherwise
approved by the Commission or its designee, all required records shall
be submitted together in a single file. Each record will be 80
characters long. Specific record formats are shown in tables below.
There are two different record descriptions. The file must begin with a
type I record identifying the sequence of type II records that follow
as large trader data.
(2) The required records are as follows:
(i) Type I record.
------------------------------------------------------------------------
Beginning
column Length Type* Value or name
------------------------------------------------------------------------
1........ 10 AN ``X 01 Reg''.
11....... 8 AN Report Date.
18....... 62 -- Spaces.
------------------------------------------------------------------------
*AN--Alpha-numeric.
N--Numeric.
S--signed numeric.
(ii) Type II Record.
------------------------------------------------------------------------
Beginning column
Record ---------------------------------------------------------------
Layout Length Type* Name
------------------------------------------------------------------------
1....... 2 AN Report Type.
3....... 3 AN Reporting Firm.
6....... 2 -- Reserved.
8....... 12 AN Account Number.
20...... 8 AN Report Date.
28...... 2 AN Exchange Code.
30...... 1 AN Put or Call.
31...... 5 AN Commodity Code (1).
36...... 8 AN Expiration Date (1).
44...... 7 S Strike Price.
51...... 1 AN Exercise Style.
52...... 7 N Long-Buy-Stopped.
59...... 7 N Short-Sell-Issued.
66...... 5 AN Commodity Code (2).
71...... 8 AN Expiration Date (2).
79...... 2 -- Reserved.
------------------------------------------------------------------------
(3) Field definitions are as follows:
(i) Report Type. This report format will be used to report three
types of data: Long and short futures and option positions, futures
delivery notices issued and stopped, and exchanges of futures for
physicals bought and sold. Valid values for the report type are ``RP''
for reporting positions, ``DN'' for reporting notices, and ``EP'' for
reporting futures for physicals.
(ii) Reporting Firm. The clearing member number assigned by an
exchange or clearing house to identify reporting firms. If a firm is
not a clearing member, a three-character alpha-numeric identifier
assigned by the Commission.
(iii) Account Number. A unique identifier assigned by the
reporting firm to each special account. The field is 0-filled with
account number right-justified. Assignment of the account number is
subject to the provisions of Secs. 17.00 (b) and (c) and 17.01(a).
(iv) Report Date. The format is YYYYMMDD, where YYYY is the year,
MM is the month, and DD is the day of the month.
(v) Exchange. This is a two-character field used to identify the
exchange on which a position is held. Valid values are as follows:
01.............................. Chicago Board of Trade.
02.............................. Chicago Mercantile Exchange.
03.............................. MidAmerica Commodity Exchange.
06.............................. Coffee, Sugar and Cocoa Exchange.
07.............................. Comex Division of NYME.
08.............................. Kansas City Board of Trade.
09.............................. Minneapolis Grain Exchange.
10.............................. Philadelphia Board of Trade.
12.............................. New York Mercantile Exchange.
13.............................. New York Cotton Exchange.
15.............................. New York Futures Exchange.
(vi) Put-Call Code. Valid entries are ``C'' for a call option and
``P'' for a put option. For futures, the field is blank.
(vii) Commodity (1). An exchange-assigned commodity code for the
futures or option contract.
(viii) Expiration Date (1). The date format is YYYYMMDD and
represents the expiration date or delivery date of the reported futures
or option contract. For date-specific instruments such as flexible
products, the full date must be reported. For other options and
futures, this field is used to report the expiration year and month for
an option contract or a delivery year and month for a futures contract.
The day portion of the field for these contracts contains spaces.
(ix) Strike Price. This is a signed numeric field for reporting
option strike prices. The strike prices should be right- justified and
the field zero-filled. Strike prices must be reported in the same
formats that are specified by an exchange. For futures, the field is
left blank.
(x) Exercise Style. Valid values for this field are ``A'' for
American style options, i.e., those that can be exercised at any time
during the life of the options; and ``E'' for European, i.e., those
that can be exercised only at the end of an option's life. This field
is required only for flexible instruments or as otherwise specified by
the Commission.
(xi) Long-Buy-Stopped (Short-Sell-Issued). When report type is
``RP'', report long(short) positions open at the
[[Page 37417]]
end of a trading day. When report type is ``DN'', report delivery
notices stopped (issued) on behalf of the account. When report type is
``EP'', report purchases (sales) of futures for cash for the account.
Report all information in contracts. Position data are reported on a
net or gross basis in accordance with paragraphs (e) and (d) of this
section.
(xii) Commodity (2). The exchange assigned commodity code for a
futures contract or other instrument that a position is exercised into
from a date-specific or flexible option.
(xiii) Expiration Date (2). Similar to other dates, the format is
YYYYMMDD and represents the expiration date or delivery month and year
of the future or other instrument that a position is exercised into
from a date-specific or flexible option.
* * * * *
12. Section 17.02 is proposed to be amended by revising paragraph
(a) as follows:
Sec. 17.02 Place and Time of Filing Reports.
* * * * *
(a) For data submitted on compatible data processing media:
(1) At the Chicago Regional office for dial-up data transmission;
at the Chicago or New York Regional Office for magnetic tape; and at
the Chicago, New York or Kansas City Regional Office for magnetic
diskettes.
(2) Not later than 9 a.m. on the business day following that to
which the information pertains or for contract markets on an exchange
that is receiving data from the Commission, at such earlier time as
specified by the exchange.
* * * * *
13. Section 17.04 is proposed to be amended by revising paragraph
(a) and the introductory text of paragraph (b) to read as follows:
Sec. 17.04 Reporting omnibus accounts to the carrying futures
commission merchant or foreign broker.
(a) Any futures commission merchant, clearing member or foreign
broker who establishes an omnibus account with another futures
commission merchant or foreign broker shall report to that futures
commission merchant or foreign broker the total open long positions and
the total open short positions in each future of a commodity, and, for
commodity option transactions, the total open long put options, the
total open short put options, the total open long call options, and the
total open short call options for each commodity option expiration date
and each strike price in such account at the close of trading each day.
The information required by this section shall be reported in
sufficient time to enable the futures commission merchant or foreign
broker with whom the omnibus account is established to comply with Part
17 of these regulations and reporting requirements established by the
contract markets.
(b) In determining open long and open short futures positions, and
open purchased long and open granted short option positions, in an
omnibus account for purposes of complying with Sec. 17.00(f),
Sec. 1.37(b) and Sec. 1.58 of this chapter, a futures commission
merchant, clearing member or foreign broker shall total the open long
positions of all traders and the open short positions of all traders in
each future of a commodity and, for commodity option transactions,
shall total the open put long options, the open short put options, the
open long call options, and the open short call options of all traders
for each commodity option expiration date and each strike price. The
futures commission merchant, clearing member or foreign broker shall,
if both open long and short positions in the same future are carried
for the same trader, compute open long or open short futures positions
as instructed below.
* * * * *
PART 18--REPORTS BY TRADERS
14. The authority citation for part 18 continues to read as
follows:
Authority: 7 U.S.C. 2, 4, 6a, 6c, 6f, 6g, 6i, 6k, 6m, 6n, 12a,
and 19; 5 U.S.C. 552 and 552(b) unless otherwise noted.
15. Part 18 is proposed to be amended by adding a new Sec. 18.03 as
follows:
Sec. 18.03 Delegation of authority to the Director of the Division of
Economic Analysis.
The Commission hereby delegates, until the Commission orders
otherwise, the authority to make special calls on traders for
information as set forth in Secs. 18.00, 18.04 and 18.05 to the
Director of the Division of Economic Analysis to be exercised by the
Director or by such other employee or employees of the Director as may
be designated from time to time by the Director.
16. Section 18.04 is proposed to be amended by removing paragraph
(d) and by revising the introductory text to read as follows:
Sec. 18.04 Statement of reporting trader.
Every trader who holds or controls a reportable option or futures
position shall after a special call upon such trader by the Commission
or its designee file with the Commission a ``Statement of Reporting
Trader'' on the form 40 at such time and place as directed in the call.
All traders shall complete part A of the form 40 and, in addition,
shall complete:
Part B--If the trader is an individual, a partnership or a joint
tenant.
Part C--If the trader is a corporation or type of trader other
than an individual, partnership, or joint tenant.
* * * * *
PART 19--REPORTS BY PERSONS HOLDING BONA FIDE HEDGE POSITIONS
PURSUANT TO Sec. 1.3(Z) OF THIS CHAPTER AND BY MERCHANTS AND
DEALERS IN COTTON
17. The authority section for part 19 continues to read as follows:
Authority: 7 U.S.C. 6g(a), 6i and 12a(5), unless otherwise
noted.
18. Section 19.00 is proposed to be amended by revising paragraphs
(a)(1) and (a)(3) to read as follows:
Sec. 19.00 General provisions.
(a) * * *
(1) All persons holding or controlling options or futures positions
that are reportable pursuant to Sec. 15.00(b)(2) of this chapter and
any part of which constitute bona fide hedging positions as defined in
Sec. 1.3(z) of this chapter,
* * * * *
(3) All persons holding or controlling positions that are
reportable pursuant to Sec. 15.00(b)(1) of this chapter who have
received a special call for series '04 reports from the Commission or
its designee. Filings in response to a special call shall be made
within one business day of receipt of the special call unless otherwise
specified in the call. For the purposes of this paragraph, the
Commission hereby delegates to the Director of the Division of Economic
Analysis, or to such other person designated by the Director, authority
to issue calls for series '04 reports.
* * * * *
Issued in Washington, DC., this 12th day of July, 1996, by the
Commission.
Jean A. Webb,
Secretary of the Commission.
[FR Doc. 96-18262 Filed 7-17-96; 8:45 am]
BILLING CODE 6351-01-P
Complete official Federal Register PDF
FR Doc. 96-18251 Post Bankruptcy Loan Servicing Notices
[Federal Register Volume 61, Number 139 (Thursday, July 18, 1996)]
[Proposed Rules]
[Pages 37405-37407]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18251]
========================================================================
Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
========================================================================
Federal Register / Vol. 61, No. 139 / Thursday, July 18, 1996 /
Proposed Rules
[[Page 37405]]
DEPARTMENT OF AGRICULTURE
Rural Housing Service
Rural Business-Cooperative Service
Rural Utilities Service
Farm Service Agency
7 CFR Part 1962
RIN 0560-AE62
Post Bankruptcy Loan Servicing Notices
AGENCY: Farm Service Agency, USDA.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Farm Service Agency (FSA) proposes to revise its
regulations regarding servicing accounts when a bankruptcy filing is
dismissed. This change will clarify that a Notice of the Availability
of Loan Service and Debt Settlement Programs for Delinquent Farm
Borrowers will be sent after a borrower is dismissed from bankruptcy if
the borrower was not previously notified and the account was not
accelerated.
DATES: Comments must be received by August 2, 1996 to be assured
consideration.
ADDRESSES: Send comments to Director, Farm Credit Programs Loan
Servicing and Property Management Division, USDA, FSA, P.O. Box 2415,
Ag Box Code 0523, Washington, D.C. 20013-2415. Comments may be hand
delivered to USDA, FSA at 14th and Independence Ave., SW., Room 5449-S,
Washington DC. Supporting documents for the proposed rule, comments on
the proposed rule and internal Agency use documents may be viewed
during normal working hours at the above address with prior
notification.
FOR FURTHER INFORMATION CONTACT: Phillip Elder, Senior Loan Officer,
USDA, FSA, Farm Credit Programs Loan Servicing Division, P.O. Box 2415,
Ag Box Code 0523, Washington, D.C. 20013-2415, telephone (202) 720-
9053.
SUPPLEMENTARY INFORMATION:
Executive Order 12866
This rule has been determined to be not significant for the
purposes of Executive Order 12866 and has not been reviewed by OMB.
Executive Order 12372
1. For the reasons set forth in the Notice related to 7 CFR part
3015, subpart V (48 FR 29115, June 24, 1983), Farm Ownership Loans,
Farm Operating Loans, and Emergency Loans are excluded from the scope
of E.O. 12372, which requires intergovernmental consultation with State
and local officials.
2. The Soil and Water Loan Program is subject to and has met the
provisions of E.O.12372.
Programs Affected
These changes affect the following FSA programs as listed in the
Catalog of Federal Domestic Assistance:
10.404--Emergency Loans
10.406--Farm Operating Loans
10.407--Farm Ownership Loans
10.416--Soil and Water Loans
Environmental Impact Statement
This document has been reviewed in accordance with 7 CFR part 1940,
subpart G, Environmental Program. It is the determination of the
issuing agencies that this action is not a major Federal action
significantly affecting the environment, and in accordance with the
National Environmental Policy Act of 1969, Pub. L. 91-190, an
Environmental Impact Statement is not required.
Executive Order 12778
This proposed rule has been reviewed in accordance with E.O. 12778,
Civil Justice Reform. In accordance with this rule: (1) All State and
local laws and regulations that are in conflict with this rule will be
preempted; (2) no retroactive effect will be given to this rule, and
(3) administrative proceedings in accordance with 7 CFR parts 11 and
780 must be exhausted before bringing suit in court challenging action
taken under this rule unless those regulations specifically allow
bringing suit at an earlier time.
Regulatory Flexibility Act
The Farm Service Agency (FSA) certifies that this rule will not
have a significant impact on a substantial number of small entities as
defined under the Regulatory Flexibility Act, Pub. L. 96-534, as
amended (5 U.S.C. 601).
Paperwork Reduction Act
This final rule does not impose any new information or
recordkeeping requirements on the public.
Unfunded Mandates
Title II of the Unfunded Mandate Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments or the private sector. Under section 202 of the UMRA,
agencies generally must prepare a written statement, including a cost
benefit analysis, for proposed and final rules with ``Federal
mandates'' that may result in expenditures to State, local, and tribal
governments, in the aggregate, or to the private sector, of $100
million or more in any 1 year. When such a statement is needed for a
rule, section 205 of the UMRA generally requires agencies to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, more cost effective or least burdensome alternative
that achieves the objectives of the rule.
The rule contains no Federal mandates (under the regulatory
provisions of Title II of the UMRA) for State, local, and tribal
governments or the private sector. Thus, today's rule is not subject to
the requirements of sections 202 and 205 of the UMRA.
Discussion of Proposed Rule
These changes involve the farm credit programs (FCP) loans of FSA
formerly administered by the Farmers Home Administration (FmHA) as
Farmer Programs loans. This reorganization was authorized by the
Department of Agriculture Reorganization Act of 1994 (Pub. L. 103-354,
108 Stat. 3178). Current FSA direct FCP loan servicing regulations
require a delinquent account servicing notice pursuant to 7 CFR part
1951, subpart S to be sent to borrowers if their bankruptcy is
dismissed. Currently, in such cases, the Notice of the Availability of
Loan Service Programs and Debt Settlement Programs for Delinquent Farm
Borrowers, is sent depending on the advice of the Office of General
Counsel, even if the borrower
[[Page 37406]]
had already exhausted all servicing rights and the account had been
accelerated prior to the bankruptcy filing. Resending the notice causes
extensive delays in the collection of accounts. The regulations at 7
CFR part 1962, Sec. 1962.47 (d)(2) were promulgated to ensure that all
borrowers who had filed bankruptcy but whose bankruptcy was dismissed
would receive the initial notification of loan servicing options
required by Sec. 331D of the Consolidated Farm and Rural Development
Act. It was never the intent of the regulation to allow renotification
if the borrower's servicing rights had been exhausted and the account
accelerated prior to the bankruptcy filing.
Moreover, the Agency is also revising the regulation to limit the
scope and issuance of the loan servicing notice. When borrowers file
for bankruptcy their attorney will only be notified of the loan
servicing rights that remain. Upon dismissal of a bankruptcy action or
a default in a confirmed bankruptcy reorganization plan, no new
servicing notices will be sent if the borrower or borrower's attorney
has been previously notified of the loan servicing options. Since the
Agency's loan servicing program has been in effect since October 14,
1988, borrowers have had many opportunities to apply for loan
servicing. Congress has limited the amount of debt forgiveness to
$300,000 per borrower, as well as limiting writedowns and buyouts under
Sec. 353 of the Consolidated Farm and Rural Development Act to one per
borrower on loans made after January 6, 1988. See Sec. 1816 of the Food
Agriculture and Trade Act of 1990. In section 648(b) of the Federal
Agriculture Improvement Act of 1996 (1996 Act) Congress imposed the
further limitation that the Agency may not provide debt forgiveness on
a direct loan if the borrower has already received debt forgiveness on
a direct loan. Section 640 (2) of the 1996 Act expanded the definition
of debt forgiveness to include discharging of debt as a result of
bankruptcy. Based on these limitations, it is no longer appropriate for
the Agency to renotify borrowers who have previously received the
notice of loan servicing options. Many of these borrowers will no
longer be eligible for additional loan servicing. Also, by expanding
the definition of debt forgiveness to include discharges in bankruptcy,
Congress has endorsed the view that the borrower has elected remedy in
the filing of a bankruptcy petition.
Additionally, the agency is proposing to remove administrative
processes from the regulations and has reserved certain paragraphs,
leaving only regulatory actions which impact the public in the Federal
Register. This streamlining makes the regulation more concise and
easier to read and understand. The Agency is developing a separate
handbook to address such matters as what forms must be filed and where
to submit loan requests and the Agency's internal operating procedures.
This handbook will not be published in the Federal Register but will be
available to the public upon request at no cost.
For example, in this rule, the Agency is removing the specific
references to Exhibit D (Notice to Borrower's Attorney Regarding Loan
Servicing Options) and Exhibit D-1 (Notice to Borrower Regarding Loan
Service Options) of this subpart, which are attached to the loan
servicing notices and further explain the interrelationship of the loan
servicing programs to the bankruptcy petitions filed under chapters 7,
11, 12 and 13 of the Bankruptcy Code. While the Agency will continue to
use these types of specialized notices, there is no statutory
requirement that these types of notices be sent. Since these matters
involve internal operating procedures, the requirement will be
contained in the Agency's Instructions only, with the regulation
referencing only that a form letter will be sent. Similarly, the Agency
has removed Exhibits D and D-1 from this subpart. Since these documents
are informational cover letters sent with the notices, the Agency is
not required to publish them.
Furthermore, this rule makes minor wording changes, redesignates
some numbered paragraphs and revises references to the Farmers Home
Administration (FmHA) to reference FSA.
List of Subjects in 7 CFR Part 1962
Government property, Livestock, Loan programs--Agriculture,
Personal property--crops, Rural areas.
Accordingly, it is proposed that 7 CFR part 1962 be amended as
follows:
PART 1962--PERSONAL PROPERTY
1. The authority citation for 7 CFR part 1962 is revised to read as
follows:
Authority: 5 U.S.C. 301; 7 U.S.C. 1989; 42 U.S.C. 1480
Subpart A--Servicing and Liquidation of Chattel Security
2. Section 1962.47 is revised to read as follows:
Sec. 1962.47 Bankruptcy and insolvency.
(a) [Reserved]
(b) Farm Credit Programs borrowers.
(1) When the local Agency loan servicing official becomes aware
that a Farm Credit Program borrower has filed bankruptcy, the attorney
of the borrower will be notified in writing of the borrower's remaining
servicing options. The attorney of a borrower who is 90 days delinquent
on their chapter 11, chapter 12 or chapter 13 reorganization plan will
also be notified in a similar fashion. When borrowers are under the
jurisdiction of the bankruptcy court and wants to be considered for
loan servicing, they must meet the following conditions:
(i) The borrower must complete and return to the Agency an
Acknowledgement of Notice of Program Availability and any application
forms requested by the Agency within 60 days from the borrower's
attorney's receipt of the notice; and
(ii) The borrower's attorney must request, in writing, servicing on
behalf of the borrower within the 60-day time period. The Agency will
consider this request to be an acknowledgment that the Agency will not
be interfering with any rights or protections under the Bankruptcy Code
and its automatic stay provisions. The Agency's processing of the
application may include consideration of primary and preservation loan
servicing options available under the applicable statutes and
regulations, notification of the Agency's decision on the request and
application for servicing, and holding any mediation, meetings or
appeals requested by the borrower.
(2) If a borrower operating under a confirmed bankruptcy plan
desires to apply for loan servicing and qualifies for servicing under
the Agency's regulations, the borrower may be required to obtain
modification of the bankruptcy reorganization plan.
(3) In chapter 7 cases, the Agency will not provide Primary Loan
Servicing to a borrower discharged in bankruptcy, unless the borrower
reaffirms the entire Agency debt. If the chapter 7 debtor wants to
reaffirm the debt, the Agency will accept the reaffirmation if
permitted by the court. If the Agency debt is reaffirmed, the loan
servicing application will be processed in accordance with subpart S of
part 1951 of this chapter. If the borrower reaffirms the Agency debt in
order to be considered for restructuring but is later denied
restructuring, the borrower may revoke the reaffirmation. No
reaffirmation is necessary for any discharged chapter 7 borrower to be
eligible for Preservation Loan Service Programs in accordance with
subpart S of part 1951 of this chapter.
(c) [Reserved]
[[Page 37407]]
(d) Liquidation.
(1) If a borrower's bankruptcy is dismissed and the account was not
previously accelerated, the borrower will be notified of remaining
Agency servicing options if any. When the bankruptcy is dismissed and
liquidation of an account is necessary, liquidation will be conducted
in accordance with Sec. 1962.40 of this subpart and Sec. 1965.26 of
subpart A of part 1965 of this chapter as appropriate, except that the
Notice of the Availability of Loan Service Programs and Debt Settlement
Programs for Delinquent Farm Borrowers with attachments will only be
sent to the borrower if they were not previously sent to the borrower
or the borrower's attorney.
(2) In chapter 11, 12, or 13 reorganizations, if liquidation is
necessary while the bankruptcy is pending, the borrower's attorney will
be sent a Notice of the Availability of Loan Service and Debt
Settlement Programs for Delinquent Farm Borrowers with attachments if
allowed by the Bankruptcy Code and if not previously sent to the
borrower's attorney.
(3) In chapter 11, 12 or 13 cases, if liquidation is necessary
after the case is closed, the borrower will be sent a Notice of the
Availability of Loan Service and Debt Settlement Programs for
Delinquent Farm Borrowers with attachments if not previously sent to
the borrower's attorney and if not prohibited by the provisions of the
Bankruptcy Code. If an application for servicing is received under this
paragraph, it will be processed in accordance with subpart S of part
1951 of this chapter. If the borrower does not qualify for loan
servicing, the account will be accelerated.
(4) In chapter 7 cases, after discharge loans will be liquidated if
the borrower has not reaffirmed the debt and the property is no longer
part of the estate. Liquidation may proceed prior to discharge if
allowed by the court. Borrowers will be sent a letter and a Notice of
the Availability of Loan Service and Debt Settlement Programs for
Delinquent Farm Borrowers with attachments if the borrower or the
borrower's attorney was not previously so notified. If these notices
were sent previously, the borrower will be sent an acceleration notice.
* * * * *
3. Exhibit D is removed.
4. Exhibit D-1 is removed.
Signed in Washington, DC, on July 8, 1996.
Eugene Moos,
Under Secretary for Farm and Foreign Agricultural Services.
[FR Doc. 96-18251 Filed 7-17-96; 8:45 am]
BILLING CODE 3410-05-P
Complete official Federal Register PDF
FR Doc. 96-18243 Rights-of-Way Over Indian Lands
[Federal Register Volume 61, Number 139 (Thursday, July 18, 1996)]
[Proposed Rules]
[Pages 37417-37424]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18243]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
25 CFR Part 169
RIN 1076-AD40
Rights-of-Way Over Indian Lands
AGENCY: Bureau of Indian Affairs, Interior.
[[Page 37418]]
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The purpose of this rulemaking action is to revise the Rights-
of-way over Indian Lands regulations. This was identified for
reinvention under the National Performance Review. It is written in
plain English to make the rule easier to read and understand for Indian
landowners and realty staff.
DATES: Comments by interested parties must in writing and we must
receive them September 16, 1996.
ADDRESSES: You must mail or hand carry your comments to Terrance L.
Virden, Acting Director, Office of Trust Responsibilities, Bureau of
Indian Affairs, Department of the Interior, 1849 C Street, NW., MS 4513
MIB, Washington, DC 20240.
FOR FURTHER INFORMATION CONTACT: Alice Harwood, Acting Chief, Division
of Real Estate Services, Bureau of Indian Affairs, Department of the
Interior, 1849 C Street, NW., MS 4513 MIB, Washington, DC 20240.
SUPPLEMENTARY INFORMATION: The proposed rule has been rewritten to
facilitate its use by the general public and the individual Indians
affected by the rule. Sections that no longer apply have been deleted
and sections added for clarification. No substantive revisions are
proposed in this rule.
The authority to issue rule and regulations is vested in the
Secretary of the Interior by 5 U.S.C. 301 and sections 463 and 465 of
the Revised Statutes, 25 U.S.C. 2 and 9, and delegated by the Secretary
of the Interior to the Assistant Secretary--Indian Affairs by 209 DM 8.
Publication of the proposed rule by the Department of the Interior
(Department) provides the public an opportunity to participate in the
rulemaking process. Interested persons may submit written comments
regarding the proposed rule to the location identified in the
``addresses'' section of this document.
The Department has determined that this rule:
Does not have significant federalism effects.
Will not have a significant economic impact on a
substantial number of small entities under the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.);
Does not constitute a major Federal action significantly
affecting the human environment, and no detailed statement is needed
under the National Environmental Policy Act of 1969;
Does not have significant takings implications in
accordance with Executive Order 12630; and
Is exempt by OMB from the provisions of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3507(d)) and does not require a review
by the Office of Management and Budget.
List of Subjects in 25 CFR Part 169
Indians, lands.
For the reasons set out in the preamble, we propose to revise Part
169 of Title 25 of the Code of Federal Regulations, as follows:
PART 169--RIGHTS-OF-WAY OVER INDIAN LANDS
Sec.
169.1 What are the definitions of the terms used in this part?
169.2 What is the purpose and scope of this regulation?
169.3 Do I need the consent of landowners for grants of right-of-
way?
169.4 How do I get a permit to survey for a right-of-way across
individually owned, tribal or government-owned land?
196.5 How do I apply for a right-of-way?
169.6 Am I required to submit maps?
169.7 What are the requirements for field notes?
169.8 How do I identify the location of my proposed right-of-way to
a public survey?
169.9 Can natural objects or monuments be used as terminal points?
169.10 How are maps and field notes relevant to township and
section lines?
169.11 What should affidavits and certificates contain?
169.12 What is the consideration for right-of-way grants?
169.13 What other damages must I pay?
169.14 What must I do to pay for the right-of-way and damages?
169.15 How is the grant approval handled?
169.16 Do I need to file an affidavit of completion?
169.17 What happens if I need to change the location of my right-
of-way from the original plan?
169.18 Is there a specific time limit for approved right-of-way
grants?
169.19 Can I renew right-of-way grants?
169.20 Will I be notified if my right-of-way grant is terminated?
169.21 Who is responsible for reporting condemnation actions
involving individually owned Indian lands?
169.22 How do I get permission to construct a service line across
individually owned Indian land?
169.23 How do I get permission to construct a railroad across
Indian land?
169.24 Are railroads in Oklahoma subject to only two Acts?
169.25 What acts authorize oil and gas pipelines?
169.26 What must I do to lay a pipeline after my grant for right-
of-way is approved?
169.27 What Acts authorize rights-of-way grants for telephone and
telegraph lines; radio, television and other communications
facilities?
169.28 How do I apply for rights-of-way for electric power
projects?
169.29 What restrictions apply if I ask for a right-of-way across
government owned lands for a transmission line?
169.30 If the Department uses my surplus capacity to transmit
power, what conditions apply?
169.31 May I apply for land that I need for generating plants?
169.32 Who can apply to open public highways across Indian lands?
Authority: 5 U.S.C. 301; 62 Stat. 17 (25 U.S.C. 323-328), and
other acts cited in the text.
Sec. 169.1 What are the definitions of the terms used in this part?
Field Notes mean notes taken by the surveyor while surveying land
for a right-of-way.
Individually owned land means land or any interest therein held in
trust by the United States for the benefit of individual Indians, and
land or any interest therein held by individual Indians subject to
Federal restrictions against alienation or encumbrance.
Government owned land means land owned by the United States and
under the jurisdiction of the Secretary of the Interior which was set
aside for the use and benefit of Indians.
Secretary means the Secretary of the Interior or authorized
representative acting under delegated authority.
Tribe means any Indian tribe, band, nation, pueblo, community,
corporation, rancheria, colony, or other group of Indians.
Tribal land means land or any interest therein, title to which is
held by the United States in trust for a tribe or title held by any
tribe subject to Federal restrictions against alienation or
encumbrance, and land reserved for Indian Bureau administrative
purposes or lands held by the United States in trust for an Indian
corporation chartered under section 17 of the Act of June 18,1934 (48
Stat. 988; 25 U.S.C. 477).
Sec. 169.2 What is the purpose and scope of this regulation?
(a) Purpose: These regulations describe the procedures, terms and
conditions under which rights-of-way over and across tribal land,
individually owned land, and Government owned land, may be granted.
(b) Scope:
(1) Appeals from administrative actions under this part must follow
the procedures described in part 2 of this chapter.
(2) These regulations do not cover the granting of rights-of-way
upon tribal lands within a reservation for the purpose of constructing,
operating, or maintaining dams, water conduits, reservoirs,
powerhouses, transmission
[[Page 37419]]
lines or other works that constitute a part of any project for which a
license is required by the Federal Power Act.
(c) For lands belonging to a tribe organized under the Act of June
18, 1934 (48 Stat. 984), the Federal Power Act provides:
(1) That a license must be issued to use tribal lands within a
reservation.
(2) The license will contain conditions the Secretary deems
necessary for the adequate protection and utilization of such lands;
(16 U.S.C. 797(e)).
(3) Annual charges for the use of tribal lands under any license
issued by the Federal Power Commission must be subject to the approval
of the tribe (16 U.S.C. 803(e)).
Sec. 169.3 Do I need the consent of landowners for grants of right-
of-way?
(a) Yes. You must have prior written consent from the tribe for a
grant of right-of-way or permission to survey on tribal land.
(b) Yes. You must have prior written consent from the owner or
owners of individually owned Indian lands for a grant of a right-of-way
or permission to survey. You also must have approval from the
Secretary.
(c) The Secretary may issue a permit to survey or a grant of right-
of-way over and across individually owned lands without the consent of
the individual Indian owners when:
(1) The individual owner is a minor or a person who is not of sound
mind.
(2) The land is owned by more than one person and the owners or
owners of a majority of interests consent to the grant.
(3) The whereabouts of the owner(s) is unknown, and the owner(s) of
any interests or an owner of a majority interest whose whereabouts are
known, consent to the grant.
(4) The heirs or devises of a deceased owner have not been
determined.
(5) The owners are so numerous that it is impracticable to obtain
their consent.
(6) When the right-of-way will cause no major damage to the owner
or the land and can be adequately compensated for by monetary means.
Sec. 169.4 How do I get a permit to survey for a right-of-way across
individually owned, tribal or government owned land?
(a) You must file a written application with the Secretary.
(b) You must describe the proposed project fully, citing purpose
and general location, and the application must be accompanied by the
written consents required by Sec. 169.3.
(c) You must include documentation to show evidence of good faith
and financial responsibility.
(d) Your application must be accompanied by a check or money order
to cover twice the estimated damages which may occur as a result of the
survey.
(e) You may submit a surety bond in lieu of a check or money order
provided the company issuing the surety bond is licensed to do business
in the State where the land is located.
(f) Your application must contain an agreement for payment to the
United States, the owners of the land, and occupants of the land,
against liability for loss of life, personal injury, and property
damage occurring because of survey activities caused by you, your
employees, contractors and their employees or subcontractors and their
employees.
(g) If an agency of the Federal or State Government, or an
instrumentality thereof, applies and is prohibited by law from
depositing estimated damages in advance or agreeing to paying for
damages, the requirement for a deposit may be waived providing the
agency agrees in writing to pay damages as soon as they occur.
(h) An application filed by a corporation must be accompanied by:
(1) A copy of its charter or articles or incorporation duly
certified by a State official of the State where the corporation was
organized.
(2) A certified copy of the resolution or bylaws of the corporation
authorizing the filing of the application.
(3) A certificate from a State official verifying that the
applicant is authorized to do business in the State where the land is
located if the applicant is incorporated out of State.
(4) A certified copy of the articles of partnership or association
if an application is filed by an unincorporated partnership or
association. If there is no certificate, this must be stated over the
signature of each member of the unincorporated partnership or
association.
(5) Proof of current financial responsibility and good faith will
be sufficient, if you have previously filed an application accompanied
by the required documents. You must reference the date and place of
filing.
(i) The Secretary will write you a letter informing you whether or
not you are granted permission to survey.
Sec. 169.5 How do I apply for a right-of-way?
You must submit a written application in duplicate. The application
must do all of the following:
(a) Identify the use for the right-of-way.
(b) Cite the statute(s) under which it is filed and the width and
length of the requested right-of-way.
(c) Include proof of your good faith and financial responsibility.
(d) If you are a corporation, you must follow the same procedures
outlined in Sec. 169.4(h) of this part.
(e) Your application must be accompanied by an affidavit agreeing
to do all of the following:
(1) To construct and maintain the right-of-way in a workmanlike
manner.
(2) To pay promptly all damages and compensation, in addition to
the deposit due to the landowners and authorized users and occupants of
the land for the survey, granting, and construction and maintenance of
the right-of-way.
(3) To pay the landowners and authorized users and occupants
against any liability for loss of life, personal injury or property
damage arising from the construction, maintenance, occupancy or use of
the lands by you, your employees, contractors and their employees, or
subcontractors and their employees.
(4) To restore the lands as nearly as possible to their original
condition upon the completion of construction.
(5) To clear and keep clear the right-of-way and to dispose of all
vegetative and other material cut, uprooted, or otherwise accumulated
during the construction and maintenance of the project.
(6) To take soil and resource conservation, weed control, and
protection measures on the land.
(7) To prevent and suppress fires on or near the lands to be
occupied.
(8) To build and repair roads, fences, and trails that may be
destroyed or damaged by construction work and to build and maintain
necessary and suitable crossings for all roads and trails that
intersect the works constructed, maintained, or operated under.
(9) To restore as nearly as possible the land to its original
condition upon revoking or terminating the right-of-way.
(10) To keep your address current. Corporations will provide the
address of its principal place of business and of the names and
addresses of its principal officers.
(11) If you are a corporation, you will not interfere with the use
of the lands by or under the authority of the landowners for any
purpose not inconsistent with the primary purpose for which the right-
of-way is granted. The Secretary may waive this requirement if you are
the U.S. Government or a State Government or other part and prohibited
by law from executing any of the above stipulations.
[[Page 37420]]
(12) You will inform the Bureau of Indian Affairs as to any
assignment of right-of-way by providing the name and address of
assignee.
Sec. 169.6 Am I required to submit maps?
Yes, an original and two copies of maps of definite location are
required with each application. The width of the right-of-way must be
clearly shown on the maps.
(a) You must file a separate map for each 20 mile section of right-
of-way. The last section may include any excess of 10 miles or less.
(b) The scale should be 2,000 feet to an inch. Maps may be drawn to
a larger scale when necessary, unless it makes the maps too cumbersome
for convenient handling and filing.
(c) Maps must:
(1) show the sections, townships, and ranges affected;
(2) show the allotment number of each tract of allotted land
affected; and
(3) clearly designate each tract of tribal land affected.
Sec. 169.7 What are the requirements for field notes?
You must submit field notes with each application.
Field notes must:
(a) appear along the line indicating the right-of-way unless this
makes the maps too crowded and illegible;
(b) be filed separately and you must place a sufficient number of
station numbers on the maps to make it more convenient to follow the
field notes.
(c) be typewritten;
(d) be sufficiently complete to permit the line indicating the
right-of-way to be readily retraced on the ground;
(e) show whether the line was run on true or magnetic bearings.
(1) If run on magnetic bearings, the variation of the needle and
date of determination must be stated. One or more bearings (or angular
connections with public survey lines) must be given.
(2) The 10-mile sections must be indicated and numbered on all
lines of road submitted.
Sec. 169.8 How do I identify the location of my proposed right-of-way
to a public survey?
(a) The terminal of the line of route must be fixed by reference of
course and distance to the nearest existing corner of the public
survey. The maps, the engineer's affidavit, and the certificate must
show these connections.
(b) If termination of the line of route is upon unsurveyed land, it
must be connected by traverse with an established corner of the public
survey, if not more than 6 miles distant.
(c) The single bearing and distance from the terminal point to the
corner must be computed and noted on the maps, in the engineer's
affidavit, and in the certificate.
(d) The notes and all data for the computation of the traverse must
be submitted.
Sec. 169.9 Can natural objects or monuments be used as terminal
points?
(a) Connection with a natural object or a permanent monument which
can be easily found and recognized, and will fix and perpetuate the
position of the terminal point, can be used when the distance from an
established corner of the public survey is more than 6 miles.
(b) The maps must show the position of such mark, course, and
distance to the terminus.
(c) An accurate description must be made of the mark.
(d) Full data concerning the traverse, the engineer's affidavit,
and the certificate on the maps must state the connections.
Sec. 169.10 How are maps and field notes relevant to township and
section lines?
(a) The distance to the nearest existing corner must be noted when
the line of survey crosses a township or section line of the public
survey.
(b) The maps must show these distances and the station numbers at
the points of intersections.
(c) The field notes must show these distances and the station
numbers.
Sec. 169.11 What should affidavits and certificates contain?
(a) They must contain certification by the survey engineer and you
of the accuracy of the survey and maps and a definite location must be
written on the maps.
(b) They must designate by termini and length in miles and
decimals, the line or route for which the right-of-way application is
made.
(c) Maps covering roads built by the Bureau of Indian Affairs to be
transferred to a county or State government must contain an affidavit
indicating the accuracy of the survey, executed by the Bureau highway
engineer in charge of road construction.
(d) A certificate must be submitted by the State or county engineer
or other authorized officer accepting the right-of-way stating that the
accuracy of the survey and maps is satisfactory.
Sec. 169.12 What is the consideration for right-of-way grants?
(a) Consideration for any right-of-way granted or renewed under
this part must be no less than, but not limited to, the fair market
value of the rights granted plus severance damages, if any, to the
remaining estate.
(b) We will write a letter advising the landowners of the appraisal
information to assist them in negotiations for a right-of-way or
renewal.
(c) If approved, landowners or their representatives may waive in
writing the consideration consisting of fair market value in the
renewal or granting of rights-of-way.
Sec. 169.13 What other damages must I pay?
You will be required to pay all damages incident to the survey of
the right-of-way or to the construction or maintenance of the facility
for which the right-of-way is granted.
Sec. 169.14 What must I do to pay for the right-of-way and damages?
At the time of filing an application for right-of-way, you must:
(a) Deposit the total estimated dollar amount of consideration and
damages with the Secretary.
(b) The deposit must include a dollar amount covering:
(1) consideration for the right-of-way;
(2) severance damages;
(3) damages caused during the survey; and
(4) estimated damages to result from construction less any deposit
previously made.
(c) The amount deposited as consideration for the right-of-way over
any parcel must not be less than the amount specified in the consent
covering that parcel.
(d) If the amounts deposited are inadequate to compensate the
owners, you must increase the deposit to an amount determined by the
Secretary.
(e) The amounts deposited must be held in a ``special deposit''
account for distribution.
(f) Amounts deposited to cover damages resulting from survey and
construction may be disbursed after the damages have occurred.
(g) Amounts deposited to cover considerations for the right-of-way
and severance damages will be disbursed upon the granting for the
right-of-way.
(h) Any monies not required for disbursement will be refunded to
you promptly following receipt of the affidavit of completion of
construction.
Sec. 169.15 How is the grant approval handled?
(a) If your application complies with the regulations, we will
issue an approved conveyance document to grant your right-of-way.
(b) We will mail a copy of the conveyance document to you. Maps of
definite location may be attached to and incorporated into the
conveyance document by reference.
[[Page 37421]]
(c) The conveyance document will incorporate all conditions or
restrictions.
(d) We may issue one conveyance document covering all of the tracts
of land traversed by the right-of-way, or separate conveyance documents
that cover one or several tracts included in the application.
(e) We will send a duplicate original copy of the conveyance
documents, together with any other pertinent documents, to the office
of records where they will be recorded and filed.
(f) You may proceed with the construction work as soon as you
receive the approved conveyance document.
Sec. 169.16 Do I need to file an affidavit of completion?
(a) Yes. You must promptly file an affidavit of completion in
duplicate, executed by the surveying engineer and certified by you.
(b) One copy of the affidavit will be sent to the office of record.
(c) Failure to file an affidavit will subject the right-of-way to
cancellation. (See section 169.20 of this part)
Sec. 169.17 What happens if I need to change the location of my right-
of-way from the original plan?
(a) You are required to file amended maps and field notes showing
the new location.
(b) A right-of-way for the new route or location will be subject to
all requirements of the original location, including consent, approval,
damages, and payment of damages.
(c) You must submit necessary documents to extinguish the right-of-
way at the original location.
(d) These documents will be sent to the office of record for
recording and filing.
Sec. 169.18 Is there a specific time limit for approved right-of-way
grants?
(a) Yes. All grants will be in the form of easements for the
periods stated in the conveyance document.
(b) Rights-of-way granted under the Act of February 5, 1948 (62
Stat. 17; 25 U.S.C. 323-328), have no time limitation, but rights-of-
way for all other purposes will be for a period not to exceed 50 years.
This will be reflected in the conveyance document.
(c) Rights-of-way covered under the Act are for:
(1) lines for railroads, telephone lines, telegraph lines;
(2) public roads and highways, access roads to homesite properties;
(3) public sanitary and storm sewer lines including sewage disposal
and treatment plants; water control and use projects (including but not
limited to dams, reservoirs, flowage easements, ditches, and canals);
(4) oil, gas, and public utility water pipelines (including pumping
stations and related facilities), electric power projects, generating
plants, switch yards, electric transmission and distribution (including
poles, towers, and related facilities) ; and
(5) service roads and trails essential to any of the above uses.
Sec. 169.19 Can I renew right-of-way grants?
(a) Yes. You can submit an application for a renewal of the grant
on or before the expiration date of any right-of-way granted for a
limited term of years.
(b) If the renewal involves no change in the location or status of
the original right-of-way grant, you can file with your application a
certificate under oath setting out this fact.
(c) Your grant may be extended for a like term of years, upon
payment of consideration.
(d) Your application for renewal will be treated the same as an
original application, if any change in the size, type, or location is
involved.
Sec. 169.20 Will I be notified if my right-of-way grant is terminated?
(a) Yes. All rights-of-way granted under these regulations may be
terminated in whole or in part by 30 days written notice.
(b) We will mail you a notice at your last known address.
(c) The right-of-way may be terminated for any of the following
causes:
(1) Failure to comply with any terms or conditions of the grant or
applicable regulations;
(2) Nonuse of the right-of-way for a consecutive 2-year period for
the purpose for which it was granted; or
(3) Abandonment of the right-of-way.
(d) You must correct the causes for termination within 30 days from
the date of the notice.
(e) If you fail to correct the causes for termination, an
appropriate document terminating the right-of-way will be issued.
(f) The document will be sent to the office of record for recording
and filing.
Sec. 169.21 Who is responsible for reporting condemnation actions
involving individually owned Indian lands?
Officials of the Bureau of Indian Affairs must report the facts
relating to any condemnation action to obtain a right-of-way over
individually Indian owned lands to the appropriate officials of the
Interior Department so that action may be taken to safeguard the
interests of Indians.
Sec. 169.22 How do I get permission to construct a service line across
individually owned Indian land?
(a) You must sign an agreement between the landowner, a legally
authorized occupant, or user of individually owned land and yourself,
before you begin any work to construct a service line across
individually owned land.
(b) There will be limitations on the service lines, such as:
(1) Power lines will be limited to voltages of 14.5 kv. or less;
and
(2) Lines for irrigation pumps, commercial or industrial uses will
be limited to a voltage not to exceed 34.5 kv.
(c) The service line will supply the individual owner, authorized
occupant, or user of land, including schools and churches with:
(1) telephone;
(2) water;
(3) electric power;
(4) gas; and
(5) other utilities.
(d) An agreement as required in paragraph (a) of this section must
be signed and in place before you can begin any work for the
construction of a service line across tribal land.
(e) The service line will supply the owner, an occupant or user of
tribal land with any of the utilities specified in paragraph (c) of
this section.
(f) An agreement under paragraph (a) of this section will not be
valid unless:
(1) it is duly authorized in advance of construction by the
governing body of the Indian tribe,
(2) specifically authorizes you or the occupant to enter into
service agreements for utilities without further tribal consent.
(g) The agreement referred to in paragraph (a) of this section must
include or have added a plat or diagram showing in detail the location,
size, and extent of the line.
(h) The agreement is to encourage the use of telephone, water,
electric power, gas and other utilities and to extend these modern
conveniences to sparsely settled Indian areas without undue costs. The
plat or diagram placed on a separate sheet should bear the signature of
the parties.
(i) When tribal lands are involved, the agreement must be
accompanied by a certified copy of the tribal authorization.
(j) A signed copy of the agreement, together with a plat or
diagram, or an authenticated copy of the tribal authorization, when
required, must be filed within 30 days of the agreement.
[[Page 37422]]
(k) Failure to meet this requirement may result in the removal of
improvements placed on the land at the expense of the party responsible
for the placement of such improvements, and
(l) Cause the responsible party to pay for damages caused by his
unauthorized act.
Sec. 169.23 How do I get permission to construct a railroad across
Indian land?
(a) The Act of March 2, 1899 (30 Stat. 990), as amended by the Acts
of February 28, 1902 (32 Stat. 50), June 21, 1906 (34 Stat. 330), and
June 25, 1910 (36 Stat. 859; 25 U.S.C. 312-318); The Act of March 3,
1875 (18 Stat. 482; 43 U.S.C. 934); and the Act of March 3, 1909 (35
Stat. 781), as amended by the Act of May 6, 1910 (36 Stat. 349; 25
U.S.C. 320), authorize grants of rights-of-way across tribal,
individually owned and Government-owned land, except in the State of
Oklahoma. These grants of rights-of-way may be for railroads, station
buildings, depots, machine shops, side tracks, turnouts, and water
stations; for reservoirs, material or ballast pits needed to the
construction, repair, and maintenance of railroads; and for the
planting and growing of trees to protect railroad lines.
(1) Rights-of-way granted under the above acts shall be subject to
the provisions of this section as well as other pertinent sections of
this part 169.
(2) Except when otherwise determined by the Secretary, rights-of-
way for the above purposes granted under the Act of February 5, 1948
(62 Stat. 17; 25 U.S.C. 323-328), shall also be subject to the
provisions of this section.
(b) Rights-of-way for railroads shall not exceed 50 feet in width
on each side of the centerline of the road, except where there are
heavy cuts and fills, then they shall not exceed 100 feet in width on
each side of the road.
(1) The right-of-way may include grounds adjacent to the line for
station buildings, depots, machine shops, side tracks, turnouts, and
water stations, not to exceed 200 feet in width by a length of 3,000
feet, with no more than one station to be located within any one
continuous length of 10 miles of road.
(c) Short spurs and branch lines may be shown on the map of the
main line, separately described by termini and length.
(1) Longer spurs and branch lines shall be shown on separate maps.
(2) Grounds desired for station purposes may be indicated on the
map of definite location but separate plats must be filed for such
grounds.
(3) The maps shall show any other line crossed, or with which
connection is made. The station number shall be shown on the survey
thereof at the point of intersection.
(4) All intersecting roads must be represented in ink of a
different color from that used for the line for which application is
made.
(d) Plats of railroad station grounds shall:
(1) be drawn on a scale of 400 feet to an inch;
(2) must be filed separately from the line of route;
(3) shall show enough of the line of route to indicate the position
of the tract with reference to the station grounds.
(4) Each station ground tract must be located with respect to the
public survey as provided in Sec. 169.8.
(5) All buildings or other structures shall be platted on a scale
sufficiently large to show clearly their dimensions and relative
positions.
(e) You must show how the public interest will be promoted by the
proposed road if it is parallel to and within 10 miles of, a railroad
already built or in course of construction.
(1) Where the Interstate Commerce Commission has made findings, a
certified copy of such findings must be filed with the application.
(f) You must certify that the road is to be operated as a common
carrier of passengers and freight.
(g) You must execute and file, in duplicate, a stipulation
obligating the company to:
(1) use all precautions possible to prevent forest fires;
(2) suppress such fires when they occur;
(3) construct and maintain passenger and freight stations for each
Government townsite;
(4) permit the crossing of the right-of-way by canals, ditches, and
other projects, in a manner satisfactory to the Government officials in
charge.
(h) A railroad company may apply for sufficient land for ballast or
material pits, reservoirs, or tree planting to aid in the construction
or maintenance of the road.
(1) The authority to use any land shall terminate upon abandonment
or failure to use the land for such purposes for a continuous period of
2 years.
Sec. 169.24 Are railroads in Oklahoma subject to only two Acts?
(a) Yes, the Act of February 28, 1902 (32 Stat. 43), and the Act of
February 5, 1948 (62 Stat. 17; 25 U.S.C. 323-328). The February 28 Act
authorizes right-of-way grants over tribal and individually owned land
in Oklahoma. Rights-of-way under both Acts are subject to pertinent
provisions of this part except when otherwise determined by the
Secretary under the Act of February 5, 1948.
(b) One reproducible copy of the map of definite location showing
the line of route and all lands included within the right-of-way must
be filed with the Secretary. When tribal lands are involved, a copy of
the map must also be filed with the tribal council.
(c) Before any railroad may be constructed or any lands taken or
condemned for any of the purposes set forth in section 13 of the Act of
February 28, 1902 (32 Stat. 47), full damages must be paid to the
Indian owners.
(d) After the maps have been filed, the matter of damages shall be
negotiated by the applicant directly with the Indian owners.
(1) If an amicable settlement cannot be reached, the amount to be
paid as compensation and damages shall be fixed and determined as
provided in the statute.
(2) If court proceedings are instituted, the facts shall be
reported immediately as provided in Sec. 169.21.
Sec. 169.25 What acts authorize oil and gas pipelines?
(a) The Act of March 11, 1904 (33 Stat. 65), as amended by the Act
of March 2, 1917 (39 Stat. 973; 25 U.S.C. 321), the Act of March 11,
1904, as amended, authorizes rights-of-way grants for oil and gas
pipelines across tribal, individually owned, and Government-owned land.
(1) Except when otherwise determined by the Secretary, rights-of-
way for the above purposes granted under the Act of February 5, 1948
(62 Stat. 17; 25 U.S.C. 323-328), shall also be subject to the
provisions of this section.
(b) Rights-of-way grants under both Acts are subject to the
pertinent provisions of this part.
(c) Rights-of-way granted under the Act of March 11, 1904, as
amended, for oil and gas pipelines, pumping stations or tank sites
cannot extend beyond a term of 20 years. They may be extended for
another period, not to exceed 20 years, following the procedures set
out in Sec. 169.19 of this part.
Sec. 169.26 What must I do to lay a pipeline after my grant for right-
of-way is approved?
(a) You must bury all oil or gas pipelines, including connecting
lines, a sufficient depth below the surface of the land so that the
pipeline does not interfere with cultivation.
(b) Your construction must comply with the provisions of the
applicable Federal and State laws whenever laying a line under a road
or highway.
[[Page 37423]]
(c) You must keep at least one-half the width of the road open to
travel during the period of construction. When you have completed the
construction, the road or highway must be restored to its original
condition and all excavations must be refilled.
(d) If the line crosses a ravine, canyon, or waterway, you must lay
the line below the bed or on a superstructure which will not interfere
with the use of the surface.
(e) You must show the size of the proposed pipeline in your
application, on the maps, in the engineer's affidavit, and in your
certificate. The application and maps must specify whether the pipe is
welded, screw-joint, dresser, or other type of coupling.
(f) You must first get written permission from us if you would like
to lay additional line(s) of pipe in the same trench, or to replace the
original line with larger or smaller pipe. You must pay all damages as
determined by us that are incurred by the owners in advance for these
additions.
(g) You may apply for additional land for pumping stations or tank
sites. The maps must show clearly the location of all structures and
the location of all lines connecting with the main line.
(h) If we grant approval for additional lands for pumping stations
or tank sites, you must file and execute a stipulation agreeing as
follows:
(1) To level all dikes, fire-guards, and excavations when you
abandon the right-of-way;
(2) To remove all concrete masonry foundations, bases, and
structural works when you abandon the right-of-way;
(3) To restore the land as nearly as possible to its original
condition when you abandon the right-of-way;
(4) That a grant for a pumping station or tank site purposes must
be subservient to the owner's right to remove or authorize the removal
of oil, gas, or other mineral deposits; and
(5) That you will remove the structures for pumping the station or
tank site or relocate them if necessary to avoid interference with the
exploration for or recovery of oil, gas, or other minerals.
(i) You may be allowed to construct purely lateral lines connecting
with oil or gas wells on restricted lands after you have filed a copy
of the written consent of the Indian owners and a blueprint copy of a
map showing the location.
(1) Lateral lines may be of any diameter or length.
(2) Lateral lines must be limited to those used solely for the
transportation of oil or gas from a single tract of tribal or
individually owned land to another lateral or to a branch of the main
line.
(j) Your books and records must be open to inspection at all
reasonable times, in order to allow us to obtain information pertaining
in any way to oil or gas produced from tribal or individually owned
lands or other lands under the jurisdiction of the Secretary.
Sec. 169.27 What Acts authorize right-of-way grants for telephone and
telegraph lines; radio, television, and other communications
facilities?
(a) The Act of February 15, 1901 (31 Stat. 790), as amended by the
Act of March 4, 1940 (54 Stat. 41; 43 U.S.C. 959); the Act of March 4,
1911 (36 Stat. 1253), as amended by the Act of May 27, 1952 (66 Stat.
95; 43 U.S.C. 961); and the Act of March 3, 1901 (31 Stat. 1083; 25
U.S.C. 319), authorize right-of-way grants across tribal, individually
owned, and Government-owned land. Rights-of-way granted under these
Acts are subject to this part. They may be granted for:
(1) Telephone and telegraph lines and offices;
(2) Poles and lines for communication purposes: and
(3) Radio, television, and other forms of communication
transmitting, relay, and receiving structures and facilities.
(b) Rights-of-way granted under the Act of February 5, 1948 (62
Stat. 17; 25 U.S.C. 323-328), are also subject to the provisions of
this section.
(c) You will not be granted a right-of-way for width in excess of
50 feet on each side of the centerline, unless you fully justify a
width in excess of 50 feet on each side of the centerline in your
application.
(d) You may apply for additional land for office sites if you are
engaged in the general telephone and telegraph business. You must file
the location of proposed office sites separately from those showing the
line of route, and the sites must be drawn to a scale of 50 feet to an
inch. Maps must show enough of the line of route to indicate the
position of the tract for the sites.
(e) Your tract must be located with respect to the public survey,
and all buildings or other structures must be platted on a scale
sufficiently large to show clearly their dimensions and relative
positions.
(f) Rights-of-way will be limited to 200 feet on each side of the
centerline for poles and lines for communication purposes.
(g) Radio, television, and other forms of communication
transmitting, relay; and receiving structures and facilities, of such
lines and poles will be limited to an area not to exceed 400 feet by
400 feet.
(h) A right-of-way granted under the Act of March 4, 1911, as
amended, will be limited to a term not exceeding 50 years from the date
of the issuance of such grant.
Sec. 169.28 How do I apply for rights-of-way for electric power
projects?
(a) Grants of right-of-way for electric power projects are made
under the Act of March 4, 1911 (36 Stat. 1253), as amended by the Act
of May 27, 1952 (66 Stat. 95; 43 U.S.C. 961), and the Act of February
5, 1948 (62 Stat.17; 25 U.S.C. 323-328). The March 4, 1911 Act
authorizes right-of-way grants across tribal, individually owned and
Government-owned land for electrical poles and lines for the
transmission and distribution of electrical power.
(1) Rights-of-way granted under the above Acts are subject to the
provisions of this section as well as other pertinent sections of this
part, except where we determine otherwise under the Act of February 5,
1948.
(2) All applications will be referred to the Office of the
Assistant Secretary of the Interior for Water and Science or any other
agency as may be designated for the area involved. This does not
include those applications made by power-marketing agencies of the
Department of the Interior.
(3) Your application for authority to survey, locate, or begin
construction on any project for the generation, the transmission or
distribution of electrical power of 66 kv or higher, involving
government-owned lands, will be reviewed with consideration of the
relationship for the proposed project to the power development program
of the United States.
(i) If the proposed project will not conflict with the program of
the United States, the Secretary may act on your application.
(ii) A right-of-way granted under the Act of March 4, 1911, as
amended, will be limited to a term not to exceed 50 years from the date
of the issuance of the grant.
(iii) Rights-of-way for power lines will be limited to those widths
which can be justified and cannot exceed a width of 200 feet on each
side of the centerline.
(iv) If you need to change the proposed location, construction, or
use of the project to eliminate conflicts with Federal power
development, you must consent to or comply with the required changes
before we take further action on your application.
(v) You must make provisions, or bear the reasonable cost of making
provisions for avoiding inductive interference between any project
transmission line or other project works that you build, operate, or
maintain on the right-of-way authorized under the grant and any
[[Page 37424]]
radio installation, telephone line, or other communicating facilities
built or operated by any Federal agency.
(vi) You must comply with any or requirement which may be imposed
by other lawful authority for avoiding or eliminating inductive
interference.
(b) [Reserved]
Sec. 169.29 What restrictions apply if I ask for a right-of-way across
government-owned lands for a transmission line?
(a) If you apply for a right-of-way for a transmission line having
a voltage of 66 kv or more, across Government-owned lands you must
comply with Sec. 169.5. You must also execute and file a statement with
your application agreeing to accept the right-of-way grant subject to
the following conditions:
(1) We reserve the right to acquire such line or facilities at a
sum to be determined by your representative, a representative of the
Secretary, and a third representative to be selected by the other two
for the purpose of determining the value of such property to be
acquired.
(2) You must allow the Department of the Interior to use, for the
transmission of electrical power, any surplus capacity of the line in
excess of the capacity needed by you. You must allow us to increase the
capacity of the line at the Department's expense and to use the
increased capacity for the transmission of electrical power.
(b) [Reserved]
Sec. 169.30 If the Department uses my surplus capacity to transmit
power, what conditions apply?
Use by the Department of surplus or increased capacity will be
subject to the following terms and conditions:
(a) If we want to use surplus capacity thought to exist in a line,
we will notify you in writing. You must furnish us a certificate within
30 days, stating whether the line has any surplus capacity for the
transmission of electrical power in connection with your operations,
and, if so, the extent of the surplus capacity.
(b) If you certify that you have surplus capacity available, or
have any increased capacity that we pay for, we may interconnect our
transmission facilities with your line in a manner that meets approved
standards of practice for interconnecting transmission circuits.
(c) We will pay for interconnecting. We will also provide and
maintain adequate switching, relaying, and protective equipment to
ensure that the normal and efficient operation of your line will not be
impaired.
(d) After any interconnection is completed, you must operate and
maintain your line in good condition; and, except in emergencies, must
keep in a closed position all connections under your control between
your line and the interconnecting facilities that we provide.
(e) You must operate the interconnected power systems (yours and
ours) in parallel.
(f) We will transmit electrical power over your line in a way that
will not interfere unreasonably with your use and operation of the line
in accordance with your normal operating standards. We have the
exclusive right to use any increased capacity for the line that we
provided.
(g) You don't have to allow us to transmit electrical power over
your line to any person receiving services from you on the date that
you apply for a grant, unless they are entitled to statutory preference
in connection with our distribution and sale of electrical power.
(h) We will pay you the total monthly maintenance and operating
costs for the part of your line that we use.
(1) We will pay you a percentage of your total operation and
maintenance cost for that part of the line. We will calculate this
percentage by dividing the kilowatts of power that we transmit over the
line by the total kilowatt capacity of that part of the line.
(2) Total monthly cost may include interest amortization on your
net total investment (minus any investment that we make in the part of
the line that we use). We will calculate this in accordance with the
accounting system prescribed by the Federal Power Commission.
(i) We will use only the part of the line that we paid for.
(j) If you find that you need surplus capacity previously available
for our use to transmit of electrical power for your operations, you
may modify or revoke the previous certification. You must give us 30
months' advance notice of your intention. You may revoke all or any
part of the capacity of the line that we certified as being surplus to
your needs.
(k) If, during the existence of the grant, you want reciprocal
accommodations for the transmission of electrical power over the
interconnecting system of the Department to its line, such reciprocal
accommodations will be accorded under terms and conditions similar to
those prescribed in this paragraph in regard to the transmission by the
Department of electrical power over your line.
(l) The terms and conditions prescribed in this paragraph may be
modified at any time by means of a supplemental agreement negotiated
between you and the Secretary of the Interior or his representative.
Sec. 169.31 May I apply for land that I need for generating plants?
Yes. You may apply for additional lands for generating plants and
related facilities. Indicate which lands you need for this purpose on
the maps showing the definite location of the right-of-way. You must
also file separate maps.
(a) These additional maps must show enough of the line of route to
indicate the position of the tract in relation to your transmission
line.
(b) You must show the land you need in relation to the public
survey as provided in Sec. 169.8, and plat all buildings or other
structures on a scale large enough to show clearly their dimensions and
relative positions.
Sec. 169.32 Who can apply to open public highways across Indian lands?
(a) The appropriate State or local authorities may apply under this
part for authority to open public highways across tribal and
individually owned lands in accordance with State laws, as authorized
by the Act of March 3, 1901 (31 Stat. 1084; 25 U.S.C. 311).
(b) The appropriate State or local authorities in Nebraska or
Montana, instead of applying under this part, may upon compliance with
the requirements of the Act of March 4, 1915 (38 Stat. 1188), lay out
and open public highways in accordance with the respective laws of
those States.
(c) Under the provisions of the Act of March 4, 1915, the
appropriate authorities of Nebraska and Montana must serve the
Secretary with notice of intent to open the proposed road and must
submit a map of definite location on tracing linen showing the width of
the proposed road for our approval prior to the laying out and opening
of the road.
(d) Applications for public highway rights-of-way over and across
roadless and wild areas will be considered in accordance with the
regulations contained in part 265 of this chapter.
Dated: July 11, 1996.
Ada E. Deer,
Assistant Secretary--Indian Affairs.
[FR Doc. 96-18243 Filed 7-17-96; 8:45 am]
BILLING CODE 4310-02-P
Complete official Federal Register PDF
FR Doc. 96-18227 Milk in the Carolina and Certain Other Marketing Areas; Tentative Decision on Proposed Amendments To Marketing Agreements and Orders
[Federal Register Volume 61, Number 139 (Thursday, July 18, 1996)]
[Proposed Rules]
[Pages 37628-37646]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18227]
[[Page 37627]]
_______________________________________________________________________
Part III
Department of Agriculture
_______________________________________________________________________
Agricultural Marketing Service
_______________________________________________________________________
7 CFR Part 1005, et al.
Milk in the Carolina and Certain Other Marketing Areas; Tentative
Decision on Proposed Amendments To Marketing Agreements and Orders;
Proposed Rule
Federal Register / Vol. 61, No. 139 / Thursday, July 18, 1996 /
Proposed Rules
[[Page 37628]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Parts 1005, 1007, 1011, and 1046
[Docket No. AO-388-A9, et al.; DA-96-08]
Milk in the Carolina and Certain Other Marketing Areas; Tentative
Decision on Proposed Amendments To Marketing Agreements and Orders
------------------------------------------------------------------------
7 CFR Part Marketing area Docket No.
------------------------------------------------------------------------
1005 Carolina................ AO-388-A9
1007 Southeast............... AO-366-A38
1011 Tennessee Valley........ AO-251-A40
1046 Louisville-Lexington- AO-123-A67
Evansville.
------------------------------------------------------------------------
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: This tentative partial decision proposes, on an emergency
basis, amendments to four Federal milk orders in the Southeastern
United States. The amendments would establish a transportation credit
balancing fund from which to reimburse handlers for the cost of
importing bulk milk into these markets for fluid use when milk supplies
that are normally associated with these markets are insufficient to
meet fluid needs. The amendments also would establish a monthly
assessment to maintain the solvency of the fund and a methodology for
computation of the transportation credits. The proposed rules are based
upon proposals that were considered at a public hearing held May 15-16,
1996, in Charlotte, North Carolina. Producers in the affected areas
will have an opportunity to vote on the interim amendments before they
go into effect.
DATES: Comments must be submitted on or before August 19, 1996.
ADDRESSES: Comments (4 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 Agricultural Marketing Service has
determined that this rule will not have a significant economic impact
on a substantial number of small entities. No new entities will be
regulated as a result of the proposed rules and any changes experienced
by handlers will be of a minor nature.
The amended orders will promote orderly marketing of milk by
producers and regulated handlers by providing transportation credits to
assist them in bringing supplemental milk to the market for fluid use.
The record of this proceeding indicates that supplemental milk is
regularly imported into the Southeastern United States, that the burden
of cost for providing this service has been increasing, and that it
falls unevenly among the handlers and dairy farmers operating in these
markets.
There will be a modest assessment on handlers to provide funds for
the proposed new transportation credits, which will be used to
reimburse handlers for the costs that they incur, but this assessment
will not exceed 6 cents per hundredweight of Class I producer milk. The
assessment will be reduced or waived completely once the balance in the
transportation credit balancing fund is sufficient to cover the sum of
six months' credits. The 6-cent per hundredweight assessment translates
to about one-half cent per gallon of milk.
At present, all handlers regulated under the 4 milk orders involved
in this proceeding file a monthly report of receipts and utilization
with the market administrator. The proposed amendments resulting from
this proceeding will only add 2 lines of information to this report.
However, only those handlers applying for transportation credits on
supplemental milk will have to provide this additional information to
the market administrator. The estimated time to collect, aggregate, and
report this information, which is already compiled for other uses, is
less than 15 minutes per month.
The net impact of the proposed amendments on dairy farmers should
be insignificant. Some dairy farmers may experience a reduction in
their blend price during the first year that the new rules are in
effect. This reduction, which should amount to less than 5 cents per
hundredweight, will occur only if the balance in the transportation
credit balancing fund is insufficient to cover the current month's
transportation credits. Once the fund has been fully endowed, dairy
farmers would experience no reduction in the uniform price as a result
of transportation credits.
The preamble of this tentative decision clearly explains to all
handlers and dairy farmers in these markets how the new provisions will
work. The market administrator will send a copy of this decision to
each handler, cooperative association, and nonmember dairy farmer
covered by these orders. In addition, the market administrator's office
is accessible by telephone for any additional questions that may arise
during regular business hours.
The amendments proposed herein have been reviewed under Executive
Order 12778, Civil Justice Reform. This rule is not intended to have a
retroactive effect. If adopted, this proposed rule will 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 request 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 May 1, 1996; published May 3, 1996 (61 FR
19861).
Preliminary Statement
A public hearing was held to consider proposed amendments to the
marketing agreements and the orders regulating the handling of milk in
the aforesaid marketing areas. The hearing was held pursuant to the
provisions of the Agricultural Marketing Agreement Act of 1937, as
amended (7 U.S.C. 601-674), and the applicable rules of practice (7 CFR
Part 900), in Charlotte, North Carolina, on May 15-16, 1996. Notice of
such hearing was issued on May 1,
[[Page 37629]]
1996, and published May 3, 1996 (61 FR 19861).
Interested parties were given until May 28, 1996, to file post-
hearing briefs on the proposals as published in the Federal Register
and as modified at the hearing. Comments also were requested on whether
the proposals should be considered on an emergency basis.
Interested parties may file written exceptions to this tentative
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 material issues on the record of the hearing relate to:
1. Transportation credits for supplemental bulk milk received for
Class I use.
2. Deductions from the minimum uniform price to producers.
3. Whether emergency marketing conditions in the 4 regulated
marketing areas warrant the omission of a recommended decision with
respect to Issue No. 1 and the opportunity to file written exceptions
thereto.
This tentative partial decision only deals with Issues 1 and 3.
Issue 2 will be handled through normal rulemaking procedures in a
forthcoming recommended decision.
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. Transportation Credits for Supplemental Bulk Milk Received for Class
I use
Federal Milk Orders 1005, 1007, 1011, and 1046 (hereinafter
referred to as ``the 4 orders'') should be amended to provide a
transportation credit for supplemental bulk milk that is transferred
from an other order plant to a pool plant during the months of July
through December. A credit also should be provided to those handlers
who import supplemental bulk milk for fluid use directly from
producers' farms. For plant milk, the credit should be limited to milk
that is allocated to Class I and should be computed at a rate equal to
3.7 cents per 10 miles per cwt. or fraction thereof from the transferor
plant to the transferee plant. The credit should be reduced to the
extent that the Class I price at the transferee plant exceeds the Class
I price at the transferor plant.
In the case of milk received directly from producers' farms, the
origination point of a bulk tank truck containing more than one
producer's milk should be the city closest to the farm from which the
last farm pickup was made. Alternatively, the origination point may be
the location specified on a certified weight receipt obtained at an
independently operated truck stop after the last farm pickup has been
made. The credit should be computed by multiplying 3.7 cents times the
number of 10-mile increments between the origination point and the
location of the plant receiving the milk, less any positive difference
in the Class I prices at the two points under the order receiving the
milk.
A transportation credit for bulk milk received from an other order
plant for Class I use was proposed by Mid-America Dairymen, Inc., a
cooperative association that represents approximately 50 percent of the
producers in Orders 5, 7, and 11, and nearly one-third of the producers
in Order 46.
A spokesman for Mid-Am testified that: (a) The Southeast states are
chronically short of milk for fluid use at certain times of the year
and this shortage will be particularly acute during the upcoming summer
and fall months; (b) the Federal order Class I pricing structure will
not accommodate the movement of milk from surplus markets to deficit
markets; (c) the burden of supplying the 4 Southeast markets with
supplemental milk for fluid use falls disproportionately on the
cooperative associations serving these markets; (d) the Agricultural
Marketing Agreement Act provides for ``marketwide service payments'' to
provide for greater equity between producers and handlers supplying a
market with supplemental milk during short production months; and (e)
therefore, the Secretary should immediately amend the 4 orders
effective July 1, 1996, to provide relief to those handlers who will be
relied upon to provide supplemental milk to meet the fluid needs of
consumers in the area.
The General Manager of Carolina Virginia Milk Producers Association
(CVMPA), a cooperative association with producers supplying plants
regulated under all 4 orders, testified in support of Mid-Am's proposed
transportation credits but stated that the proposal should be expanded
to include supplemental milk received directly from producers' farms.
The spokesman testified that during the period from July through
December 1995, CVMPA imported more than 19 million pounds of plant milk
at a transportation cost of 307 thousand dollars. During that same
period, however, CVMPA imported more than 38 million pounds of
supplemental producer milk directly from farms at a cost of 528
thousand dollars, he said.
The CVMPA spokesman testified that supplemental milk shipped
directly from producers' farms can often be purchased at lower cost
than plant milk. He also noted that this farm-shipped milk is often of
better quality because it requires less handling. He concluded that the
orders should be amended to give handlers the economic incentive to
transport milk in the most efficient manner.
A spokesman for Milk Marketing, Inc. (MMI), a cooperative
association supplying handlers under Orders 11 and 46, testified in
opposition to the Mid-Am proposal as it relates to Order 46. The MMI
spokesman stated that MMI opposed the proposal on the basis that over-
order charges would be a better method of obtaining reimbursement for
the costs associated with importing milk into the market for fluid use.
Also, he said that MMI did not support the proposal because it did not
provide a transportation credit for bulk supplemental milk shipped
directly from producers' farms to plants. However, he said that if the
Department should adopt Mid-Am's proposal, it should be expanded to
include supplemental milk received directly from producers' farms.
Receiving milk in this manner, he explained, would encourage hauling
efficiencies, improve milk quality, eliminate pump-over expenses, and
reduce product loss due to handling.
Select Milk Producers, Inc., a New Mexico dairy cooperative that
provides supplemental milk to the Southeast markets, endorsed the
suggestion of CVMPA and MMI to provide transportation credits for farm-
to-plant milk as well as plant-to-plant milk.
The Mid-Am proposal also received a qualified endorsement from
Fleming Dairy. The spokesman for Fleming, which operates pool
distributing plants in Nashville, Tennessee, and Baker, Louisiana,
suggested that Mid-Am's proposal be modified to restrict transportation
credits to the months of July through October instead of July through
December. He also suggested eliminating the provision proposed by Mid-
Am that would permit credits during the months of January through June
if the Class I utilization during the month is higher than 80 percent.
[[Page 37630]]
The Fleming spokesman stated that during the months when
transportation credits are in effect, Class III-A pricing in these
markets and in the surrounding markets should be suspended. At the
present time, he said, the presence of Class III-A pricing in these
markets significantly adds to the cost of obtaining supplemental milk
because cooperatives and fluid milk processors have to bid this
supplemental milk away from butter-powder plants.
A spokesman for Land O' Sun Dairies, Kingsport, Tennessee, Milkco,
Inc., Asheville, North Carolina, and Hunter Farms, Charlotte and High
Point, North Carolina, also offered constructive criticism of the Mid-
Am proposal. The spokesman suggested that handlers seeking
reimbursement for transportation costs should be required to show that
they, in fact, incurred the cost. If the actual transportation cost was
less than the credit provided in the order, a handler should only
receive reimbursement for the cost actually incurred. He also
questioned whether the proposed 3.9 cents per 10 miles accurately
represented the cost of transporting bulk milk and he criticized the
proposal for not restricting transportation credits on the movement of
bulk milk between the 4 orders involved in this proceeding. Finally,
the witness suggested borrowing funds from the producer-settlement fund
reserve, instead of the marketwide pool, when the proposed
transportation credit balancing fund contains an insufficient balance
to cover a month's transportation credits.
Several proprietary handlers testified in opposition to the
proposed transportation credits. The president of Southern Belle Dairy,
Somerset, Kentucky, stated that handlers make choices in arranging for
their milk supplies and the Federal order program should not be called
upon to ``absolutely level the playing field.'' He said the proposed 6-
cent assessment for the transportation credit balancing fund would put
Southern Belle at a competitive disadvantage with its competitors in
Indiana, Virginia, West Virginia, and Ohio. He also stated that it will
promote inefficient movements of milk by giving regional cooperatives
the opportunity to divert regional milk supplies to Florida and then
replace those supplies with supplemental milk at handlers' expense.
Finally, he criticized the proposal for not including the suspension of
Class III-A pricing.
The Director of Milk Procurement for Dean Foods Company, Franklin
Park, Illinois, also testified in opposition to the Mid-Am proposal. He
said that negotiation between buyer and seller was the best vehicle to
recover costs and that proprietary handlers that purchase all or part
of their milk supply from independent producers should not be expected
to pay into a transportation pool to assure a milk supply for
processors who choose to purchase their milk from a ``marketing
agency.'' The proposed amendments, he said, could create false
shortages and force fluid processors to make unnecessary payments into
a transportation pool for the sole benefit of cooperatives.
The vice president of finance for Holland Dairies, Holland,
Indiana, also testified in opposition to the proposal. The witness
stated Holland Dairies has developed its own milk supply from
independent producers and, as a result, carries the risk of balancing
this milk supply during the flush and short seasons of production. He
said that while the proposed transportation credits would cost Holland
Dairy a considerable amount of money, it would provide no apparent
benefit to Holland Dairy. He concluded that suppliers of milk in the
Southeast voluntarily chose to do business in that region and should
therefore be required to manage their business accordingly.
Briefs. Several briefs were filed following the hearing. A brief
from the Kroger Company indicates Kroger's opposition to the
transportation credit proposal. Kroger states in its brief that ``* * *
a temporary situation should not be used as justification for a
permanent change in the order which would allow the use of pool money
to cover the cost of transportation * * * the current system has worked
in the past and will continue to do so in the future.''
Holland Dairies, Inc., in its brief, reiterated its opposition to
the transportation credit proposal. Holland stated that ``it is
completely unfair to independent handlers and processors to legislate
that they are required to pay into a fund that only a cooperative can
draw funds from.'' (It appears from this statement that Holland has
misconstrued the proposal. As proposed, and as adopted herein,
transportation credits would be available to any handler that brings
supplemental milk into the market. Accordingly, should Holland Dairy
run short of milk during the months of July through December, it could
import milk from Wisconsin or Michigan, for example, and receive a
transportation credit for such milk.)
While conceding that the Southeast has always been in a deficit
position, Holland maintains that handlers should pay for supplemental
milk through premiums outside of the order. Holland is also concerned
that stair stepping of milk to markets farther south will occur and
that normal deliveries should be excluded from receiving a
transportation credit.
Holland also argues in its brief that handlers should have a choice
of buying milk from a cooperative association or from independent
producers. It states that the proposed transportation credits would
eliminate this choice.
Holland contends that Order 46 should not be part of the proposed
transportation credit because it is far removed from deficit areas in
Georgia and Florida. Finally, it states that if a transportation credit
is implemented, it should not apply for the first 250 miles.
A brief filed on behalf of the Fleming Company states that the
proposed transportation credits are compellingly supported by the
evidence in this proceeding. Fleming, however, reiterates its
suggestion that the credits be limited to the months of July through
October and suggests a further limitation based upon mileage or source
of supply. The handler again expresses a concern about Class III--A
pricing and suggests that it be suspended when supplemental milk is
needed in the Southeast. Fleming urges the Secretary to act on an
emergency basis to adopt the proposal.
A brief was also filed on behalf of Land O' Sun Dairies, Milkco,
Inc., and Hunter Farms. The plants of these handlers are regulated
under Orders 5 and 11.
These handlers note in their brief that ``the record discloses a
disturbing trend in raw milk production and fluid consumption in the
Southeastern United States * * * raw milk production has not been
keeping pace with consumption in the Southeast.'' While desiring to
maintain a local dairy industry in the Southeast, they recognize that
``some considerations must be made for obtaining fluid milk supplies
from non-local sources when that milk is needed.''
The brief of these handlers indicates that they are not opposed to
adoption of a modified transportation credit proposal. They are
concerned, however, that the provision not be abused. For this reason,
they offer several suggestions to prevent abuse. One suggestion is to
exclude bulk shipment of milk between the 4 orders from receiving any
transportation credits. (This suggestion has been adopted in this
decision.)
Another suggestion of these handlers is to establish historical
movements of milk from these 4 orders to the 3 Florida orders. If a
handler or a cooperative association shipped anything more than these
historical shipments to Florida
[[Page 37631]]
and, at the same time, imported milk into the market from which these
Florida shipments originated, the new or replacement milk would not
qualify for a transportation credit.
These 3 handlers state that they are opposed to a provision in the
Mid-Am proposal that would permit transportation credits during the
months of January through June if a market's Class I utilization
exceeds 80 percent. The basis for their opposition, according to their
brief, is that some parties may try to manipulate the Class I
utilization in one or more of these markets, causing some handlers to
pay an assessment for transportation credits while their competitors in
one or more of the other 4 markets involved in this proceeding do not.
Taken to its logical conclusion, the position of these 3 handlers
seems to be that this provision should be administered as if the 4
separate markets were, in fact, one market. This would have to be so
because the only way that the assessment for the transportation credits
can be uniform among the 4 individual orders is if the transportation
credits given out each month are proportionately the same in each
market. It is unlikely that this will be the case since the Class I
utilization does vary among the 4 markets. It is conceivable that
during some months Orders 5, 7, or 11 may need supplemental milk, while
Order 46 may not. Thus, transportation credits and assessments for
transportation credits would be applicable under Orders 5, 7, and/or
11, but not Order 46.
The 3 handlers also state that transportation credits should not
apply for the first 100 miles of shipment and that the credit should be
something less than the proposed 3.9 cents per 10 miles. They also
suggest borrowing money from the producer-settlement fund reserve,
rather than the producer-settlement fund itself, when transportation
credits exceeds the available funds in the transportation credit
balancing fund. In support of this idea, they state that local milk
production has suffered enough and payments to producers should not be
reduced further by taking money out of the producer-settlement fund.
The brief of the 3 handlers supports the proposal of CVMPA to allow
farm-to-plant supplemental milk to qualify for a transportation credit.
However, they suggest limiting this milk to dairy farms located outside
of the 4 marketing areas.
Finally, the 3 handlers express their concern about the possible
exclusion of Order 46 from the transportation credit proposal. If this
were to happen, they state, it would disrupt the competitive
relationship among competing handlers in Orders 5, 11, and 46.
A brief was received on behalf of Select Milk Producers (SMP), a
cooperative association based in Artesia, New Mexico. The brief states
that SMP expects to market milk in the Southeast marketing area in the
fall of 1996 and therefore requests that transportation credits be
extended to farm-to-plant milk as well as to plant-to-plant milk.
SMP states that they concur with MMI's suggestion regarding the
application of transportation credits for farm-to-plant supplemental
milk. SMP suggests that supplemental milk be defined as milk that was
not associated with any of the 4 markets during the prior months of
January through July.
Southern Belle Dairy, Somerset, Kentucky, reiterated their
opposition to the transportation credit proposal for Order 11 in its
brief. Southern Belle states that it bears the full cost of its milk
supply and that it has made private arrangements to solve any problem
that might arise. It also contends that the proposal would reduce their
competitive relationship vis-a-vis handlers in other markets and that
the Tennessee Valley order does not need the transportation credits.
Finally, it states that Florida is an integral part of the deficit
problem in the Southeast and, accordingly, should be included in the
solution to the problem.
Southern Belle concludes that the proposed transportation credits
are simply a money-shifting scheme whereby dairies such as itself that
have developed an independent supply of milk over a long period of time
will be forced to subsidize other dairies who have not invested in
these relationships which would ensure a steady supply of milk.
Gold Star Dairy, Little Rock, Arkansas, also filed a brief in
opposition to the proposed transportation credits. This handler
maintains that there is no need for supplemental milk in the western
part of the Southeast market, and that, in those parts of the marketing
area where supplemental milk is being brought in, cooperatives are now
being compensated through over-order charges.
Gold Star argues that it has little in common with plants in the
eastern part of the marketing area; it does not share a common supply
area with them; it is only technically part of the Southeast market
because it is within the defined marketing area; it is already paying
for marketwide services through over-order charges; and that if,
notwithstanding these arguments, the Secretary should adopt the
proposed transportation credits, the assessment to fund the credits
should not be based on Class I sales made outside the marketing area.
In its brief, Carolina-Virginia Milk Producers Association offers
several suggestions for implementing its modified proposal, which would
provide transportation credits for supplemental milk supplied to the
market directly from producers' farms. The cooperative supports a
prohibition on credits for milk moving between the 4 markets, as well
as the proposed hauling rate of 3.9 cents per 10 miles. CVMPA also
endorses a suggestion made at the hearing to borrow funds from the
producer-settlement fund reserve, rather than the producer-settlement
fund itself, when there are insufficient funds in the transportation
credit fund to cover a current months' credits. It states that the
reserve fund could be paid back in future months for the money that is
borrowed.
With respect to the mechanics of providing transportation credits
for farm-to-plant milk, CVMPA suggests defining ``supplemental milk''
as the milk of dairy farmers which is pooled only during the period of
market shortage. Specifically, it suggests that transportation credits
not be available to a dairy farmer who was a producer on any of the 4
markets ``for more than 35 days during more than 8 months in the
previous July-June period.''
To determine the origination point for farm-to-plant milk, CVMPA
suggests using the county courthouse closest to the farm of the last
producer whose milk is on the load. It also suggests subtracting any
positive difference between the Class I price at the receiving pool
plant and the Class I price at the origination point in computing the
net transportation credit. This treatment would make the transportation
credit computation virtually identical for transfers of plant milk and
direct farm-to-plant deliveries.
Finally, CVMPA suggested the requirement that receiving handlers
provide the market administrator with a list of the producers for whom
transportation credits are requested.
Milk Marketing, Inc., filed a brief reiterating its opposition to
the transportation credit proposal for Order 46 only. It maintains that
over-order pricing is the best method for handling additional costs
associated with importing milk to the market for fluid use. MMI states
that if the Department should nevertheless adopt a transportation
credit provision for Order 46, the provision should include an
extension of the credit to cover supplemental milk shipped directly
from farm to plant. Several of the
[[Page 37632]]
safeguards mentioned in the brief are similar to those already
described with respect to CVMPA's brief.
Mid-America Dairymen, Inc., submitted a lengthy brief setting forth
the historical background for the hearing, pertinent facts and figures
brought out in the hearing record, the legislative history for the
marketwide service payment provision contained in the Agricultural
Marketing Agreement Act, a review of past agency decisions concerning
transportation credits, and a comprehensive review of the arguments
supporting its proposal.
Several points brought out in Mid-Am's brief are particularly
noteworthy and should be emphasized. Mid-Am points out once again that
a disproportionate share of the supplemental milk that is brought into
the Southeast markets is brought in by the cooperative associations
serving these markets. It argues that the costs incurred in importing
this milk cannot simply be passed on to their customers because it
would put these customers at a competitive disadvantage with other
handlers who are fortunate enough to have adequate supplies of locally-
produced milk to meet their needs.
Mid-Am contends that the cost of supplying these markets with
surplus milk puts their member producers at a disadvantage compared to
non-member producers who do not share in this cost. The cooperative
also points out that when these markets are short of milk, it shuts
down its manufacturing plants, which adds to its cost. It notes, for
instance, that during the months of July through December 1995, it shut
down its facilities in Louisville, Kentucky, Lewisburg, Tennessee, and
Franklinton, Louisiana.
In its review of the legislative history of the Food Security Act
of 1985, the foundation for the marketwide service provision in
Sec. 608c(5)(J) of the Act, Mid-Am notes that Congress sought to
achieve equity between producers or handlers who bear service costs
that benefit the market and those who do not. It included an excerpt
from one of the committee reports (reprinted at 1985 U.S. Code
Congressional and Administrative News 1103), which appears to be
particularly relevant to the proposal at hand. It reads: ``* * * At the
moment, there are three major problems with respect to the operation of
the Federal order systems: (1) minimum Federal order Class I prices are
not adequate to attract the necessary supply to meet the Class I needs
in deficit areas; (2) handlers who must go outside their territory to
acquire additional milk incur greater costs for milk than handlers who
obtain all of their milk from the local area; and (3) those producers
who assume the responsibility of supplying the needs of the market have
to pay the cost of transporting supplemental milk, resulting in
producers not receiving uniform prices.'' Mid-Am argues that its
proposal for transportation credits conforms to the equity-promoting
goals described in the legislative history.
Mid-Am also argues that its proposal conforms with past agency
decisions. Among many quotes included in its brief is the following
from a final decision issued October 8, 1987, incorporating permanent
transporting credits in the Chicago Regional order (52 FR 38240): ``* *
* a major purpose of the order program is to assure an adequate supply
of pure and wholesome milk for the fluid market and to establish and
maintain orderly marketing conditions. This includes adopting order
provisions to facilitate securing adequate supplies of milk to meet the
market's fluid needs. The record shows that obtaining adequate milk for
those needs is not being accomplished in an orderly and equitable
fashion under the current order provisions.''
Mid-Am states that the suggested modifications of MMI and CVMPA to
provide transportation credits for farm-to-plant milk should be given
favorable consideration by the Secretary. It urges the Secretary to
incorporate appropriate safeguards, however, to ensure that no
artificial economic advantage is created for supplies that are not
normally associated with the market.
Mid-Am notes that the supply/demand situation in the Southeast has
become particularly acute in recent months. It emphasizes that the
shortage this summer and fall will likely be even worse than in 1995,
pointing to reduced production during the first 4 months of 1996,
compared to a year earlier, especially in Tennessee and Kentucky, 2
important supply areas for the Southeast. It also notes that the
Olympic Games that will be held in Atlanta this summer will likely
increase consumer demand for fluid milk. It urges the Secretary to
issue an expedited decision that would allow the transportation credits
to be effective by July 1, 1996.
Conclusion. Testimony and exhibits introduced at the hearing
indicate that the Southeastern United States has a chronic shortage of
milk for fluid use in the summer and fall months, which often extends
into the winter months. This shortage has been worsening over time as
milk production has declined and population has increased, and this
trend is likely to continue, exacerbating the problem of obtaining a
sufficient supply of milk for fluid use in an orderly and equitable
manner. Under current arrangements, the costs of obtaining an
increasing supply of supplemental milk are not being borne equally by
all handlers and producers in each of the 4 orders. The service
provided by handlers, particularly, cooperative associations, in
obtaining sufficient supplies of milk is a service of marketwide
benefit for which the Secretary is authorized to include provisions in
Federal milk orders to compensate handlers. The record of this hearing
demonstrates that disorderly marketing conditions exist because of the
significantly different costs that are incurred by handlers who provide
the additional service versus those who do not. The increasing
magnitude of the disproportionate sharing of costs is jeopardizing the
delivery of adequate supplies of milk for fluid use. Thus, the record
justifies the adoption of these provisions to restore stability and
order in providing adequate supplies of milk for fluid use for Orders
5, 7, 11, and 46, as explained below.
Data in the record of this hearing show that the area covered by
Orders 5, 7, 11, and 46 is a highly seasonal, deficit milk production
area. As shown in Table 1, milk production in the 12 Southeast states
of Arkansas, Louisiana, Mississippi, Tennessee, Kentucky, Alabama,
Georgia, Florida, South Carolina, North Carolina, Virginia, and West
Virginia has fallen from 15.4 billion pounds in 1988 to 14.5 billion
pounds in 1995. Based upon this trend, production in the year 2000 is
expected to be 13.1 billion pounds.
Table 1.--Milk Production and Population in 12 Southeastern States 1988-
2010
------------------------------------------------------------------------
Year Population Production (lbs.)
------------------------------------------------------------------------
1988................................... 57,961,000 15,432,000,000
1989................................... 58,732,000 15,356,000,000
1990................................... 59,266,000 15,505,000,000
1991................................... 60,265,000 15,362,000,000
1992................................... 61,090,000 15,499,000,000
1993................................... 61,926,000 15,310,000,000
1994................................... 62,767,000 14,994,000,000
1995................................... 63,573,000 14,554,000,000
2000................................... 66,876,000 13,114,000,000
2005................................... 70,471,000 11,603,000,000
2010................................... 74,066,000 10,092,000,000
------------------------------------------------------------------------
Source: Population--U.S. Bureau of the Census.
Milk Production--Milk Production, NASS, USDA, Washington, DC.
The bar graph below compares quarterly production in the 12
Southeastern states during the past 4 years. It shows that quarterly
production is down from the previous year's quarter
[[Page 37633]]
for the past 4 years. The graph also shows that not only has production
decreased for 4 consecutive years, but that such decreases have
occurred at an accelerating rate. Furthermore, the graph demonstrates
that the degree of seasonality between the relatively flush and short
production months has also been increasing.
BILLING CODE 3410-02-P
[[Page 37634]]
[GRAPHIC] [TIFF OMITTED] TP18JY96.000
BILLING CODE 3410-02-C
[[Page 37635]]
While production in the Southeast has been declining, the
population of this area has been rising. As shown in Table 1, the
population of the 12 Southeastern states rose from 57.9 million in 1988
to 63.5 million in 1995. By the year 2000, population is expected to
reach 66.8 million.
Data in the record indicates that the per capita consumption of all
dairy products in the 12 Southeastern states has grown in the past 7
years, from 568 pounds (milk equivalent) per capita in 1988 to 582
pounds in 1995. Conservatively estimating no growth in the per capita
consumption of fluid milk products in the next 10 years, the deficit in
Southeast milk production will grow significantly based upon population
growth alone. According to Census Bureau data, 16 states will gain more
than 1 million persons by the year 2020; 7 of these states are covered
at least in part by the milk orders involved in this proceeding. There
clearly is no question concerning the continuing--and, in fact,
growing--need to import supplemental milk into the Southeastern United
States for fluid use.
The record shows that the production decline and the population
increase has resulted in an increasing Class I utilization in these 4
markets. During the period from April 1995 to April 1996, producer milk
pooled under the 4 orders decreased by 42 million pounds. At the same
time, the Class I utilization of producer milk under the 4 orders
increased by almost 13 percentage points to 77.5 percent. It
undoubtedly would have increased even more except for the fact that the
milkshed continues to expand in a northerly and westerly direction to
more and more distant farms. In this regard, it should be noted that
milk has been regularly flowing into the Southeast markets from Texas
and New Mexico, and there are indications that such shipments will
start sooner than ever this summer.
These markets are tightest during the late summer and fall months.
The Class I utilization reached 86.1%, 85.5%, 83.7%, and 80.2% in
Orders 5, 7, 11, and 46, respectively, during August 1995. This
compares to 84.0%, 83.3%, 85.1%, and 73.8%, respectively, one year
earlier. Percentages of this magnitude indicate a very tight market
situation when taking into consideration the bottling schedule of fluid
milk plants, the desire of handlers to make some Class II products
locally, and the unavoidable need to process some local milk into
storable manufactured products, particularly on weekends when it is not
needed for fluid use.
It is impossible to reveal precisely the total amount of
supplemental milk needed by these markets because of restrictions on
the release of confidential data (i.e., data represented by less than 3
handlers). In addition, much of the supplemental milk that is needed
entered these markets directly from the farms of dairy farmers who are
not regular suppliers of these markets. With these shortcomings taken
into consideration, market administrator data entered in the record for
Orders 5, 11, and 46 show that bulk receipts of other order milk for
Class I use increased from 13.1 million pounds in 1993 to 49.6 million
pounds in 1995. For these 3 markets, the data also show that first
quarter receipts of bulk other order milk for Class I use is running at
more than 10 times the level of 1995.
It is difficult to compare similar data for Order 7 to earlier
periods because several markets were merged into the present Southeast
marketing area in July 1995. Thus, shipments which formerly would have
been other order bulk transfers are now transfers between pool plants
within the order. Nevertheless, treating the merged order as if it were
still 5 separate orders and comparing the other order bulk receipts for
Class I use in 1995 to 1993 indicates a more than twofold increase in
such receipts.
Data entered into the record by Mid-Am shows that during the months
of July through December 1995 more than 100 million pounds of other
order bulk receipts were transferred into Orders 5, 7, 11, and 46.
According to Mid-Am, the cooperative also brought in supplemental
producer milk on a direct-ship basis. The record data also show that
while Mid-Am represents 47 percent of the producer milk pooled under
the 4 markets, it accounted for more than 70 percent of the other order
bulk milk that was brought into these markets during the months of July
through December 1995.
Exhibits entered by CVMPA show that the cooperative imported more
than 19 million pounds of other order plant milk during the months of
July through December 1995, while at the same time bringing in more
than 38 million pounds of supplemental milk directly from producers'
farms. The exhibits show that the transportation cost for these
supplemental purchases were nearly one million dollars.
A detailed breakdown of Mid-Am's interorder transfers during the
months of July and August 1995 shows the location of the transferor
plant and the transferee plant, the mileage between the two plants, the
total cost of hauling the milk, and the freight rate broken down into
10-mile increments. During July and August 1995, the exhibit shows that
the average hauling cost for this milk was 3.7 cents per 10 miles.
The Mid-Am spokesman testified that Mid-Am was proposing a hauling
credit of 3.9 cents per 10 miles due to increasing fuel costs in recent
months, justifying a slightly higher credit.
After carefully reviewing the record testimony and data, it is
concluded that a transportation credit for supplemental milk during the
seasonally short period of July through December is fully justified for
this year's milk shortage and on a continuing basis, as needed, for
future years. Such a credit will restore market order and provide the
opportunity for all handlers to bring in supplemental milk when needed
for fluid use.
While handlers opposed to the incorporation of these credits in the
orders argue that reimbursement for transportation costs should be
handled outside the order, experience has shown that this is not always
possible. The absence of reimbursement for the costs of providing
supplemental milk by cooperatives in this area last summer and fall
demonstrate very well what can happen in a competitive market
situation. Over-order pricing does not always ensure either stability
or uniform costs among handlers. Also, premiums can disappear as
quickly as they are introduced even when markets are desperately short
of milk because of the pressure to maintain uniform costs among
competing handlers.
Over-order pricing has been used in these markets in the past to
equalize costs among handlers, but the industry was much different than
it is today. There are now far fewer, but larger, fluid processing
plants operating in these markets, creating daily and weekly demands to
which the market's suppliers must react. On the supply side, the number
of cooperative associations has decreased dramatically in the last
decade. Consequently, only a few organizations are incurring costs in
providing balancing services for these markets and the amount of milk
being handled is far greater than the quantity of milk handled by any
single cooperative in prior years. For this reason, it is imperative
that the cooperatives and handlers providing balancing services for the
benefit of the entire market be fairly compensated for these costs to
ensure that an adequate supply of milk is available for fluid use.
In fact, the current market is not meeting the standard of orderly
marketing. Markets which, at times, are short of milk must have some
structure to provide for sharing the costs in the movement of
supplemental milk to processors. Otherwise, orderly
[[Page 37636]]
marketing conditions can deteriorate and all handlers will not be
competing for a supply of milk on an equal footing.
Under current market conditions, producers supplying these markets
are also negatively affected. Producers who are members of cooperative
organizations incurring the costs of supplemental milk are forced to
bear the costs unfairly relative to nonmember producers.
The Agricultural Marketing Agreement Act recognized that disorderly
markets can occur in a market when there are no standards which all
segments of the market must satisfy. In this case, such standards must
apply to all milk supplied to the regulated market. When the market
fails to provide this equity, it becomes necessary for the order
structure to provide the system.
As indicated, over-order premiums may be used to serve this
purpose. This record clearly indicates, however, that such is not the
case in these markets. The record, in fact, clearly indicates that the
supplemental milk supplies, as they are currently being handled, are
creating disorder. It is, therefore, proper that the regulations be
amended to restore order to the system by equitably allocating the
costs associated with obtaining supplemental milk supplies.
The adoption of transportation credits will enable handlers to make
decisions involving supplemental milk supplies with a greater degree of
certainty and be assured that the equity required by the Act is
provided.
Congress recognized the inequities that can and do occur in
supplying markets with supplemental milk and provided the Secretary of
Agriculture with certain tools to handle these problems. The record of
this hearing clearly demonstrates a need for these remedies in the 4
orders involved in this proceeding. Moreover, the production and
population statistics justify the incorporation of these tools on a
permanent basis so that they can be used when needed. The alternative
approach, which some handlers appear to favor, is to hold a hearing and
temporarily amend the orders each time a crisis occurs. However, as
last fall's crisis demonstrated, it is very difficult to hold hearings
and amend orders after these problems already have occurred. It is much
better to anticipate the problems and have provisions that can be used
as needed. Accordingly, the permanent incorporation of provisions to
facilitate the importation of supplemental milk to these deficit
markets is the most prudent course of action to follow and is fully
supported by the record of this hearing.
The amendments adopted in this tentative decision are similar to
those proposed by Mid-Am, but also differ in several respects. First,
the transportation credits should be limited to the months of July
through December. It should not include other months when the Class I
utilization is over 80 percent because handlers would not know until
after the month is over whether or not they would be eligible for a
transportation credit on bulk milk brought into the market.
A better approach during the months of January through June would
be to simply give the market administrator the authority to expand the
transportation credit period if market conditions indicate that
producer milk for Class I use will be in short supply and the
marketwide Class I utilization is likely to exceed 80 percent. The
market administrator is in an excellent position to review such a
request, which should be made in writing at least 15 days prior to the
beginning of the month for which it is to be effective.
Upon receiving a request to extend the transportation credit
period, the market administrator will notify the Director of the Dairy
Division and all handlers in the market that an extension is being
considered and invite written data, views, and arguments. The market
administrator's notice to interested parties also may invite comments
on other remedies that may be available including, but not limited to,
an increase in the supply plant shipping percentage as provided in
Secs. 1005.7(b), 1007.7(f), and 1011.7(b)(4) and, in the case of Order
7, the desirability of adjusting diversion limitations as provided in
Sec. 1007.13(d)(9). Any decision to extend the transportation credit
period must be issued in writing prior to the first day of the month
for which the extension is to be effective.
The provisions adopted in this decision also differ slightly from
Mid-Am's proposal with respect to plant-to-plant shipments that are
eligible for transportation credits. As proposed by Mid-Am, Class I
bulk transfers from any other order plant would qualify for
transportation credits. As adopted in this decision, however, the
credits are limited to plants that are outside of the marketing areas
of Orders 5, 7, 11, and 46.
There was a great deal of concern expressed at the hearing about
``stair stepping'' milk from one market to another. For instance, if
milk from Order 11 was transferred to Order 7 while at the same time
supplemental milk was brought into Order 11 from Order 46, handlers in
Order 11 conceivably could be contributing funds to replace milk that,
if not sent to Order 7, would have been available to Order 11 handlers.
This issue can be quite complex, particularly in large markets,
such as the Southeast market. It may very well make economic sense to
ship surplus milk from one part of a market (for example, southern
Louisiana in the Order 7 marketing area) to another market that is
short of milk (for example, the Upper Florida market) while during the
same day bring in bulk milk for a handler in another part of the
marketing area (for example, Fleming Dairy in Nashville) from another
order plant (other than from one of the 4 orders involved in this
proceeding). Given the order's current pricing structure, it is
unrealistic to expect milk from southern Louisiana, where the Class I
differential price is $3.58, to be shipped north to Nashville, where
the Class I differential price is $2.55.
The attached order amendments place no restriction on the the
interorder shipment of milk among the 4 markets, but they do not
provide transportation credits for such shipments. The record of this
hearing supports a restriction of credits to milk that is truly
supplemental to the market. For this reason, transportation credits
should be restricted to bulk shipments from plants outside of these 4
marketing areas. Data and testimony in the record indicate that nearly
all of the supplemental milk needed for these 4 markets comes from
plants located outside of the 4 marketing areas anyway, so that the
restriction should not be a major problem for handlers in locating
supplemental milk. Moreover, handlers may still obtain plant milk from
within the 4 orders; they simply would not be able to get a
transportation credit for such milk.
Another departure from the original Mid-Am proposal concerns the
milk eligible for the transportation credit. It was apparent from
hearing testimony and briefs that other cooperatives operating in these
markets are more apt to supply the market with supplemental milk on a
direct-ship basis rather than transferring milk from an other order
plant. Such cooperatives include CVMPA, MMI, and Select Milk Producers.
The testimony was convincing that permitting a credit on such imports
would be more equitable to those organizations that are unable to
import plant milk, would promote efficiencies in bringing supplemental
milk directly from producers' farms, would result in better quality
milk because unnecessary pumpovers are eliminated, and would result in
less milk lost due to reduced handling.
[[Page 37637]]
While the inclusion of farm-to-plant milk is a logical extension of
the transportation credit concept, there are some practical problems to
overcome in implementing such a provision. One of the first problems
that arises in constructing a transportation credit on farm-to-plant
milk is distinguishing a market's regular producer milk from its
supplemental producer milk on which the credit would apply.
A primary consideration in distinguishing the market's regular
producers from the supplemental producers is the location of producers'
farms. It is reasonable to conclude that the markets' regular producers
are located reasonably close to the plants receiving their milk. Thus,
such producers' farms are likely to be within the geographic marketing
areas defined in each order. Accordingly, transportation credits should
not apply to any producer whose farm is located within any of the 4
marketing areas. This provision was suggested by MMI and should be
adopted.
Not all of the pool distributing plants regulated under these
orders are located within the defined marketing areas. For example, a
pool distributing plant regulated under Order 5 is located in
Lynchburg, Virginia, which is outside of the Order 5 marketing area. In
such a case, some other location criteria is needed to distinguish a
regular producer from a supplemental producer.
In its suggested language, MMI proposed restricting supplemental
producers to those who are more than 85 miles from Louisville or
Lexington, Kentucky, or Evansville, Indiana. This proposal should be
adopted but expanded to cover all pool distributing plants within or
outside of the 4 marketing areas. In other words, farm-to-plant milk
that is eligible for a transportation credit must be produced on a farm
that is outside of the 4 marketing areas and at least 85 miles away
from the plant to which the milk is delivered.
In addition to considering the geographic location of a dairy farm
for the purpose of determining whether milk from that farm is
supplemental to a market's needs, attention should be focused on
whether milk from that farm is regularly associated with the market or
is shipped to the market as needed.
As noted earlier, MMI in its brief stated that transportation
credits should not apply to the milk of a dairy farmer who was a
producer under Orders 5, 6, 7, 11, 12, 13, or 46 during more than 8
months in the previous July through June period or if more than 32
days' production of the producer was received as producer milk under
these orders during the entire 12-month period. CVMPA's brief contained
a similar proposal but did not include Orders 6, 12, and 13 (the 3
Florida orders) and specified 35 days' production, rather than 32, for
the prior 12-month period.
These proposals should not be adopted. As proposed, if a dairy
farmer was a producer on one of these markets for more than 8 months in
the previous July through June period, the dairy farmer could not be
considered as a supplemental producer under another one of the 4
markets. For example, if a dairy farmer from Texas was a producer under
Order 11 during the months of January through September 1996, that
dairy farmer would be ineligible to receive a transportation credit
under Order 7 in October 1996, even though the dairy farmer's farm
meets the location criteria set forth in this decision for a
supplemental producer and the dairy farmer was never previously
associated with Order 7.
It is questionable whether the provisions of one order should be
based on a dairy farmer's association with another order. Each order
should stand on its own. Accordingly, the determination as to whether a
producer is regularly associated with a market or is, in fact, only
seasonally associated with the market should be based on the dairy
farmer's association with that market alone.
Since the need for supplemental milk generally drops off sharply
after the month of December--1996 being an exception--in all of these
markets and does not reappear, usually, until the month of July, it is
reasonable to conclude that the milk of a producer who is located
outside of any of these marketing areas generally would not be needed
during the months of January through June, but might be needed starting
in July. It is also logical that the milk of a supplemental producer
would not be needed each day but perhaps once or twice a week.
Accordingly, if a dairy farmer was a regular supplier of the market
during January through June--i.e., a ``producer'' on the market for
more than 4 of those months--the milk of such a dairy farmer should not
be considered supplemental milk during the following months of July
through December. It would be unduly restrictive to disqualify a dairy
farmer for shipping a limited amount of milk during one or two months
of the January through June period, however, because even the months of
January and June can be short months in the Southeast. Therefore, the
provision should be flexible enough to accommodate some shipments to
the market during the January through June period. Specifically, a
dairy farmer should not lose his/her status as a supplemental producer
if his/her milk is shipped to a market for not more than 2 months of
the January through June period. However, shipments during this period
should be of a limited duration, so not more than 32 days' production
may have been received as producer milk during the two months of the
January through June period in which the dairy farmer was a producer on
the market.
Having established the criteria to distinguish a supplemental
producer from a regular producer, attention must now focus on the
provisions needed to establish the transportation credit for farm-to-
plant supplemental milk. The first question that arises in this regard
is the determination of the origination point for the load of milk. Two
problems arise. First, there may be more than one dairy farmer's milk
on the truck. Second, even if a dairy farmer can fill up an entire
truck with milk, his or her farm may be impossible to pinpoint on a
map.
This decision adopts two alternatives to determine the origination
point for a load of farm-to-plant milk. First, after filling the tank
truck with farm milk, the hauler may elect to stop at an independently
operated truck stop to obtain a certified weight receipt identifying
the truck, the gross weight of the loaded truck, the time and date, and
the location of the truck stop. This certificate would be turned over
to the pool plant operator receiving this load of milk and, in turn, be
made available to the market administrator for verification of the
information. Truck stops with scales are commonly found along major
highways and in small towns and cities. Thus, it would be neither time-
consuming nor expensive to fulfill this requirement.
Alternatively, if the hauler does not obtain a certified weight
receipt to establish an origination point, the market administrator
will determine the location of the farm of the last load of milk that
was added to the truck, locate the nearest city, and compute the
mileage from that city to the receiving pool plant for purposes of
determining the mileage. If this alternative understates the mileage
involved to the plant, the hauler can easily obtain a certified weight
receipt if that would result in a more accurate transportation credit.
Traditionally, provisions in Federal milk orders have used the
county courthouse as a basing point to determine mileage. In their
briefs, MMI and CVMPA suggested using the county courthouse closest to
the farm of the last producer on the route to establish the
[[Page 37638]]
origination point for a load of farm-to-plant milk. The reason for not
adopting this suggestion is that there are now more precise ways of
measuring the mileage between various points using any of several
computer mapping programs that are available in addition to more
traditional standard highway mileage guides that are available to the
market administrator. By specifying ``city'' rather than ``county
courthouse,'' in conjunction with providing the option of establishing
location based upon a certified weight receipt, we hope to achieve
greater precision in establishing the mileage between the last
producer's farm and the plant to which the milk is delivered.
This decision adopts the proposed transportation credit balancing
fund concept proposed by Mid-Am, as well as a monthly assessment on
Class I milk to provide revenue for the fund. It differs from the
proposal, however, in using the higher of the hauling credits
distributed in the immediately preceding 6 months or in the preceding
July-December period for purposes of determining the current month's
assessment level in Sec. 100X.81(a). This was done to ensure that the
fund will have a sufficient balance to meet the markets' needs when
credits start to be distributed in the month of July. As proposed by
Mid-Am, if no credits were distributed during the months of January
through June, no new assessment would be warranted. Therefore, the
yardstick to measure the assessment level would begin to decline in
January and, if no new credits were given out, would be zero by July.
This depletion of the fund could jeopardize its usefulness and require
the market administrator to transfer funds for transportation credits
from the producer-settlement fund.
This should only be done as a last resort. It will be less likely
to occur by using the alternative yardstick approach adopted in this
decision for determining the minimum balance needed in the
transportation credit balancing fund.
The market administrator is authorized to maintain the
transportation credit balancing fund, deposit assessments into it, and
distribute transportation credits from it. Payments due from a handler
will be offset against payments due to a handler.
The use of a transportation credit balancing fund will permit
assessments that are needed for the transportation credits to be spread
out throughout the year. This will permit the assessment rate to be
kept at a lower and more stable level. It will also allow handlers to
reflect the assessment in their pricing plans. At the maximum level
permitted, the 6-cent assessment represents about one-half cent of the
raw product cost of a gallon of milk.
In its brief, Gold Star Dairy suggested exempting from the
assessment Class I sales made outside of the 4 marketing areas. This
suggestion should not be adopted. While such an exemption might put
Gold Star in a more favorable position with competitors in other
markets, such as the Texas marketing area, it would not be fair to
those handlers with whom Gold Star competes in the Southeast marketing
area, its primary sales territory. Moreover, if supplemental milk is
brought into any one of the 4 markets to supply a handler, there is no
reason why that handler should not bear its fair share of the
transportation costs for such milk, regardless of where the handler may
eventually sell it.
The market administrator will announce the assessment for the
transportation credit balancing fund on the 5th day of the month
preceding the month to which it applies. Accordingly, on the 5th day of
December, the assessment would be announced for January. An exception
to this rule should be made during the first month that transportation
credits are in effect because otherwise all of the first month's
transportation credits would have to come out of pool funds.
Accordingly, for the first month that these rules are in effect, the
assessment for the transportation credit balancing fund will be
announced no later than the Federal Register publication date of the
interim order amending the orders. For example, if the interim order
amending the orders is published on July 1, 1996, handlers will be
notified of the assessment for July on, or a few days before, that day.
On July 5, handlers will be notified of the assessment for August.
For the first 3 months that these amendments are effective, the
assessment for the transportation credit balancing fund should be 6
cents per hundredweight. It is necessary to specify a rate in Section
81(c) of the attached orders because there is no 6-month credit
distribution history from which to determine it, as provided in
paragraph (a) of Section 81.
It is possible that during the first year that these provisions are
in effect, and possibly thereafter under unusual conditions, it may be
necessary to transfer funds from the producer-settlement fund to pay
the transportation credits that are distributed. Transferring funds
from the producer-settlement fund will result in lower uniform prices
to producers. For this reason, several parties suggested, instead,
borrowing from the producer-settlement fund reserve and paying back the
reserve fund in future months from transportation credit assessments
that are collected.
The market administrator maintains a producer-settlement fund (psf)
reserve equal to approximately 4-5 cents per hundredweight of producer
milk in the pool. This reserve is used to pay audit adjustments and
other unforseen expenses.
The suggestion to borrow from the reserve is no doubt well-
intentioned, but the alternative of transferring funds from the psf
itself is the better approach for several reasons.
First, the reserve fund is maintained as a cushion to provide ready
cash for audit adjustments and other unforseen expenses that arise.
Depleting this reserve to pay for transportation credits, even for a
temporary period of time, would not be prudent.
Second, we appreciate the concerns of those who do not want to
reduce the blend price to producers to pay for transportation credits,
but we believe that this transfer of funds may only be necessary during
the first year that this provision is in effect. Thereafter, there
should be adequate funds in the transportation credit balancing fund to
pay for future transportation credits.
Third, by transferring funds from the psf, rather than borrowing
the funds from the psf reserve, it will not be necessary to postpone
the disbursement of credits, as might be necessary under the
alternative approach suggested by Milkco and others. To the extent that
reimbursement for transportation expenses is postponed, certain
handlers will be disadvantaged relative to others who did not incur
such expenses.
Finally, by transferring funds from the psf, rather than borrowing
the funds from the psf reserve, producers will be sharing with handlers
the cost of supplying the market with supplemental milk. This will help
to minimize the assessment to handlers during months when
transportation credits are not needed because the current month's
assessments will not be used to pay back funds borrowed from the psf
reserve for prior months but, instead, will be used to pay only current
months' credits or to build up the transportation credit balancing fund
for future months.
At this hearing, concern was once again expressed about the
difficulty of obtaining supplemental milk when the Class III-A price is
allegedly providing a profitable market for manufacturers of nonfat dry
milk. A proposal was made to suspend Class III-A pricing while
transportation credits are in effect.
[[Page 37639]]
As noted earlier, Mid-Am testified that it shut down its butter-
powder plants in these 4 markets during the months of July through
December 1995. Therefore, to the extent that handlers were competing
with butter-powder plants for supplemental milk, it was not
supplemental milk in these 4 markets.
The proposal to suspend Class III-A pricing in other markets goes
beyond the scope of this hearing. Therefore, the proposals to suspend
such pricing must be denied.
Several handlers criticized the proposed transportation credits for
not including the Florida markets. They argued that since the Florida
markets are the markets most in need of supplemental milk, it is unfair
that handlers in those markets do not have to pay the assessment for
the transportation credit balancing fund.
There was no testimony at this hearing concerning the current
premium structure in the Florida markets. It is a known fact, however,
that the Florida markets are 100 percent cooperatively supplied and
that the premium structure in those markets as of the September 1995
hearing was markedly different (and much higher) than the premium
structure prevailing in Orders 5, 7, 11, and 46.
Whether or not the Florida markets have the type of transportation
credits adopted in this decision is immaterial to the need for such
provisions in Orders 5, 7, 11, and 46. Given the tight supply situation
prevailing in the Florida markets, it is unlikely that any Florida
handler would have a pricing advantage over a handler regulated under
one of the 4 markets involved in this proceeding. Moreover, since
cooperative associations control the entire supply of milk in the
Florida markets, those markets do not have to deal with the difficult
issue of unequal sharing of the cost of supplying the market with
supplemental milk (i.e., the member versus nonmember issue).
The absence of a transportation credit in Florida does not mean
that handlers in Orders 5, 7, 11, and 46 will bear the cost of
providing supplemental milk to Florida. To the extent that milk is
shipped to Florida from any of the 4 markets involved in this
proceeding, such milk likely would have been shipped with or without
Florida's participation in the current hearing.
3. Whether Emergency Marketing Conditions in the Four Regulated Areas
Warrant the Omission of a Recommended Decision and the Opportunity to
File Written Exceptions Thereto With Respect to Issue 1
The omission of a recommended decision was proposed by the Mid-Am
spokesman. He also requested that the issue be handled on an expedited
basis, but suggested that the Secretary may wish to issue a tentative
final decision to provide another opportunity for comments and
adjustments to the amendments. No testimony was received in opposition
to the request.
The due and timely execution of the functions of the Secretary
under the Act imperatively and unavoidably require the omission of a
recommended decision and an opportunity for written exceptions with
respect to Issue No. 1. The continued orderly marketing of milk in the
respective areas requires that the attached order be made effective as
soon as possible, since the amount of supplemental milk needed for
Class I use in each of the four orders is expected to increase
significantly during the summer and fall months. Handlers, cooperative
associations, and others should know promptly and with certainty how
the Department is proposing to facilitate the importation of
supplemental milk so that arrangements may be made.
It is therefore found that good cause exists for omission of a
recommended decision and the opportunity for filing exceptions to it.
As noted earlier, however, this decision is being issued as a tentative
final decision. What this means is that producers will vote on the
amendments to the 4 orders just as they would with a normal final
de
FR Doc. 96-18227 Milk in the Carolina and Certain Other Marketing Areas; Tentative Decision on Proposed Amendments To Marketing Agreements and Orders
cision. However, interested parties will have 30 days from the
Federal Register publication of this tentative final decision to
comment on it. After the comment period is over, the Department will
then issue a final decision, and producers will again have an
opportunity to vote on the orders as amended.
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 aforesaid 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 each of the
aforesaid tentative marketing agreements and orders:
(a) The tentative marketing agreements and orders, 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 areas, and the
minimum prices specified in the tentative marketing agreements and the
orders, 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 are in the public interest; and
(c) The tentative marketing agreements and the orders, 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, marketing
agreements upon which a hearing has been held.
Interim Marketing Agreement and Interim Order Amending the Orders
Annexed hereto and made a part hereof is an Interim Order amending
the orders regulating the handling of milk in the aforesaid marketing
areas, which has been decided upon as the detailed and appropriate
means of effectuating the foregoing conclusions. It is hereby ordered
that this entire decision and order amending the orders be published in
the Federal Register. Parties who desire to enter into a marketing
agreement covering the terms and conditions of the attached interim
order may request a marketing agreement from the market administrator
of the respective order.
[[Page 37640]]
Determination of Producer Approval and Representative Period
April 1996 is hereby determined to be the representative period for
the purpose of ascertaining whether the issuance of the orders, as
amended and as hereby proposed to be amended, regulating the handling
of milk in the aforesaid marketing areas is approved or favored by
producers, as defined under the terms of the individual orders (as
amended and as hereby proposed to be amended), who during the
representative period were engaged in the production of milk for sale
within the aforesaid marketing areas.
It is hereby directed that a referendum be conducted to ascertain
producer approval in the Louisville-Lexington-Evansville marketing
area. The referendum must be conducted and completed on or before the
30th day from the date that this decision is issued in accordance with
the procedure for the conduct of referenda (7 CFR 900.300-311), to
determine whether the issuance of the attached order as amended, and as
hereby proposed to be amended, regulating the handling of milk in the
Louisville-Lexington-Evansville marketing area is approved or favored
by producers, as defined under the terms of the order, as amended and
as hereby proposed to be amended, who during such representative period
were engaged in the production of milk for sale within the marketing
area.
The agent of the Secretary to conduct such referendum is hereby
designated to be Arnold M. Stallings.
List of Subjects in 7 CFR Parts 1005, 1007, 1011, and 1046
Milk marketing orders.
Dated: July 12, 1996.
Michael V. Dunn,
Assistant Secretary, Marketing and Regulatory Programs.
Interim Order Amending the Orders Regulating the Handling of Milk in
Certain Specified Marketing Areas
This interim order shall not become effective unless and until the
requirements of Sec. 900.14 of the rules of practice and procedure
governing proceedings to formulate marketing agreements and marketing
orders have been met.
Findings and Determinations
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.
(a) Findings. A public hearing was held upon certain proposed
amendments to the tentative marketing agreements and to the orders
regulating the handling of milk in the aforesaid marketing areas. The
hearing was held pursuant to the provisions of the Agricultural
Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), and the
applicable rules of practice and procedure (7 CFR Part 900).
Upon the basis of the evidence introduced at such hearing and the
record thereof, it is found that:
(1) The said orders as hereby amended, and all of the terms and
conditions thereof, will tend to effectuate the declared policy of the
Act;
(2) 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 areas. The
minimum prices specified in the orders as hereby 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
(3) The said orders as hereby amended regulate the handling of milk
in the same manner as, and are applicable only to persons in the
respective classes of industrial or commercial activity specified in,
marketing agreements upon which a hearing has been held.
Proposed Interim Order Relative to Handling
It is therefore ordered that on and after the effective date
hereof, the handling of milk in each of the specified marketing areas
shall be in conformity to and in compliance with the terms and
conditions of the orders, as amended, and as hereby amended, as
follows:
The authority citation for 7 CFR Parts 1005, 1007, 1011, and 1046
is revised to read as follows:
Authority: 7 U.S.C. 601-674.
PART 1005--MILK IN THE CAROLINA MARKETING AREA
1. In Sec. 1005.30, paragraphs (a) and (c) are revised to read as
follows:
Sec. 1005.30 Reports of receipts and utilization.
* * * * *
(a) Each handler, with respect to each of its pool plants, shall
report the quantities of skim milk and butterfat contained in or
represented by:
(1) Receipts of producer milk, including producer milk diverted
from the pool plant to other plants;
(2) Receipts of milk from handlers described in Sec. 1005.9(c);
(3) Receipts of fluid milk products and bulk fluid cream products
from other pool plants;
(4) Receipts of other source milk;
(5) Receipts of bulk milk from a plant regulated under another
Federal order, except Federal Orders 1007, 1011, and 1046, for which a
transportation credit is requested pursuant to Sec. 1005.82;
(6) Receipts of producer milk described in Sec. 1005.82(c)(2),
including the identity of the individual producers whose milk is
eligible for the transportation credit pursuant to Sec. 1005.82(c)(2);
(7) Inventories at the beginning and end of the month of fluid milk
products and products specified in Sec. 1005.40(b)(1); and
(8) The utilization or disposition of all milk, filled milk, and
milk products required to be reported pursuant to this paragraph (a).
* * * * *
(c) Each handler described in Sec. 1005.9 (b) and (c) shall report:
(1) The quantities of all skim milk and butterfat contained in
receipts of milk from producers;
(2) The utilization or disposition of all such receipts; and
(3) With respect to milk for which a cooperative association is
requesting a transportation credit pursuant to Sec. 1005.82, all of the
information required in paragraphs (a) (5) and (6) of this section.
* * * * *
2. Section 1005.61 is amended by redesignating paragraphs (a)(4),
(a)(5), (b)(5), and (b)(6) as paragraphs (a)(5), (a)(6), (b)(6), and
(b)(7), respectively, amending paragraph (b)(3) by revising ``(a)(3)''
to read ``(a)(4)'' and ``(a)(4)(ii)'' to read ``(a)(5)(ii)'', amending
newly designated paragraphs (b)(6) by revising ``(b)(4)'' to read
``(b)(5)'', amending newly designated paragraph (b)(7) by revising
``(b)(5)'' to read ``(b)(6)'', and adding new paragraphs (a)(4) and
(b)(5) to read as follows:
Sec. 1005.61 Computation of uniform price (including weighted average
price and uniform prices for base and excess milk).
(a) * * *
(4) Deduct the amount by which the amount due from the
transportation credit balancing fund pursuant to Sec. 1005.82 exceeds
the available balance in the transportation credit balancing fund
pursuant to Sec. 1005.80;
* * * * *
[[Page 37641]]
(b) * * *
(5) Deduct the amount by which the amount due from the
transportation credit balancing fund pursuant to Sec. 1005.82 exceeds
the available balance in the transportation credit balancing fund
pursuant to Sec. 1005.80;
* * * * *
3. Following Sec. 1005.78, a new undesignated center heading and
Secs. 1005.80, 1005.81, and 1005.82 are added to read as follows:
Marketwide Service Payments
Sec. 1005.80 Transportation credit balancing fund.
The market administrator shall maintain a separate fund known as
the Transportation Credit Balancing Fund into which shall be deposited
the payments made by handlers pursuant to Sec. 1005.81 and out of which
shall be made the payments due handlers pursuant to Sec. 1005.82.
Payments due a handler shall be offset against payments due from the
handler.
Sec. 1005.81 Payments to the transportation credit balancing fund.
(a) On or before the 12th day after the end of the month, each
handler shall pay to the market administrator a transportation credit
balancing fund assessment determined by multiplying the pounds of Class
I milk assigned pursuant to Sec. 1005.44 by $0.06 per hundredweight or
such lesser amount as the market administrator deems necessary to
maintain a balance in the fund equal to the higher of the following
amounts:
(1) The total transportation credits dispensed during the prior
July-December period; or
(2) The total transportation credits dispensed during the
immediately preceding 6-month period.
(b) On or before the 13th day after the end of the month, the
market administrator shall credit the transportation credit balancing
fund, from the producer-settlement fund, any amount deducted pursuant
to Sec. 1005.61 (a)(4) or (b)(5).
(c) The market administrator shall announce publicly on or before
the 5th day of the month the assessment pursuant to paragraph (a) of
this section for the following month, except that for the first month
that this section is effective the assessment shall be announced no
later than [the publication date of the final rule in the Federal
Register] and for the first 3 months that this section is effective the
assessment pursuant to paragraph (a) of this section shall be 6 cents
per hundredweight.
Sec. 1005.82 Payments from the transportation credit balancing fund.
(a) On or before the 13th day after the end of each of the months
of July through December and any other month in which transportation
credits are in effect pursuant to paragraph (b) of this section, the
market administrator shall pay to each handler that received, and
reported pursuant to Sec. 1005.30 (a)(5), bulk milk transferred from an
other order plant as described in paragraph (c)(1) of this section or
that received, and reported pursuant to Sec. 1005.30(a)(6), bulk milk
directly from producers' farms as specified in paragraph (c)(2) of this
section an amount determined pursuant to paragraph (d) of this section.
In the event that a qualified cooperative association is the
responsible party for whose account such milk is received and written
documentation of this fact is provided to the market administrator
pursuant to Sec. 1005.30(c)(3) prior to the date payment is due, the
transportation credits for such milk computed pursuant to this section
shall be made to such cooperative association rather than to the
operator of the pool plant at which the milk was received.
(b) The market administrator may extend the period during which
transportation credits are in effect (i.e., the transportation credit
period) to any of the months of January through June if the market
administrator receives a written request to do so 15 days prior to the
beginning of the month for which the request is made and, after
conducting an independent investigation, finds that such extension is
necessary to assure the market of an adequate supply of milk for fluid
use. Before making such a finding, the market administrator shall
notify the Director of the Dairy Division and all handlers in the
market that an extension is being considered and invite written data,
views, and arguments. Any decision to extend the transportation credit
period must be issued in writing prior to the first day of the month
for which the extension is to be effective.
(c) The transportation credit described in paragraph (a) of this
section shall apply to the following milk:
(1) Bulk milk received from a plant regulated under another Federal
order, except Federal Orders 1007, 1011, and 1046, and allocated to
Class I milk pursuant to Sec. 1005.44; and
(2) Bulk milk classified pro rata as Class I milk pursuant to
Sec. 1005.44 received directly from the farms of dairy farmers at pool
distributing plants under the following conditions:
(i) The dairy farmer was not a ``producer'' under this order during
more than 2 of the immediately preceding months of January through June
and not more than 32 days' production of the dairy farmer was received
as producer milk under this order during that period; and
(ii) The farm on which the milk was produced is not located within
the specified marketing area of this order or the marketing areas of
Federal Orders 1007, 1011, or 1046, and, is not within 85 miles of the
plant to which its milk is delivered.
(d) Transportation credits shall be computed as follows:
(1) For milk described in paragraph (c)(1) of this section, the
market administrator shall:
(i) Determine the shortest hard-surface highway distance between
the transferor plant and the transferee plant;
(ii) Multiply the number of miles computed in paragraph (d)(1)(i)
of this section by 0.37 cents;
(iii) Subtract the other order's Class I price applicable at the
transferor plant's location from the Class I price applicable at the
transferee plant as specified in Sec. 1005.53;
(iv) Subtract any positive difference computed in paragraph
(d)(1)(iii) of this section from the amount computed in paragraph
(d)(1)(ii) of this section; and
(v) Multiply the remainder computed in paragraph (d)(1)(iv) of this
section by the hundredweight of milk described in paragraph (c)(1) of
this section.
(2) For milk described in paragraph (c)(2) of this section:
(i) Each milk hauler that is transporting the milk of producers
described in paragraph (c)(2) of this section may stop at the nearest
independently-operated truck stop with a truck scale and obtain a
weight certificate indicating the weight of the truck and its contents,
the date and time of weighing, and the location of the truck stop. The
location of the truck stop shall be used as a starting point for the
purpose of measuring the distance to the pool plant receiving that load
of milk. If a weight certificate for a supplemental load of milk for
which a transportation credit is requested is not available, the market
administrator shall use the nearest city to the last producer's farm
from which milk was picked up for delivery to the receiving pool plant;
(ii) For each bulk tank load of milk received pursuant to paragraph
(d)(2)(i) of this section, the market administrator shall determine the
shortest hard-surface highway distance between the receiving pool plant
and the truck stop or city, as the case may be;
[[Page 37642]]
(iii) Multiply the number of miles computed in paragraph (d)(2)(ii)
of this section by 0.37 cents;
(iv) Multiply the number computed in paragraph (d)(2)(iii) of this
section by the hundredweight of milk described in paragraph (c)(2) of
this section;
(v) Subtract this order's Class I price applicable at the
origination point determined pursuant to paragraph (d)(2)(ii) of this
section from the Class I price applicable at the distributing plant
receiving the milk; and
(vi) Subtract any positive difference computed in paragraph
(d)(2)(v) of this section from the amount computed in paragraph
(d)(2)(iv) of this section.
PART 1007--MILK IN THE SOUTHEAST MARKETING AREA
4. The authority citation for part 1007 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
4a. In Sec. 1007.30, paragraphs (a) and (c) are revised to read as
follows:
Sec. 1007.30 Reports of receipts and utilization.
* * * * *
(a) Each handler, with respect to each of its pool plants, shall
report the quantities of skim milk and butterfat contained in or
represented by:
(1) Receipts of producer milk, including producer milk diverted by
the handler from the pool plant to other plants;
(2) Receipts of milk from handlers described in Sec. 1007.9(c);
(3) Receipts of fluid milk products and bulk fluid cream products
from other pool plants;
(4) Receipts of other source milk;
(5) Receipts of bulk milk from a plant regulated under another
Federal order, except Federal Orders 1005, 1011, and 1046, for which a
transportation credit is requested pursuant to Sec. 1007.82;
(6) Receipts of producer milk described in Sec. 1007.82(c)(2),
including the identity of the individual producers whose milk is
eligible for the transportation credit pursuant to Sec. 1007.82(c)(2);
(7) Inventories at the beginning and end of the month of fluid milk
products and products specified in Sec. 1007.40(b)(1); and
(8) The utilization or disposition of all milk, filled milk, and
milk products required to be reported pursuant to this paragraph (a).
* * * * *
(c) Each handler described in Sec. 1007.9 (b) and (c) shall report:
(1) The quantities of skim milk and butterfat contained in receipts
of milk from producers;
(2) The utilization or disposition of all such receipts; and
(3) With respect to milk for which a cooperative association is
requesting a transportation credit pursuant to Sec. 1007.82, all of the
information required in paragraphs (a) (5) and (6) of this section.
* * * * *
5. Section 1007.61 is amended by redesignating paragraphs (a)(4),
(a)(5), (b)(5), and (b)(6) as paragraphs (a)(5), (a)(6), (b)(6), and
respectively, (b)(7), amending (b)(3) by revising ``(a)(3)'' to read
``(a)(4)'' and ``(a)(4)(ii)'' to read ``(a)(5)(ii)'', amending newly
designated paragraph (b)(6) by revising ``(b)(4)'' to read ``(b)(5)'',
amending newly designated paragraph (b)(7) by revising ``(b)(5)'' to
read ``(b)(6)'', and adding new paragraphs (a)(4) and (b)(5) to read as
follows:
Sec. 1007.61 Computation of uniform price (including weighted average
price and uniform prices for base and excess milk).
(a) * * *
(4) Deduct the amount by which the amount due from the
transportation credit balancing fund pursuant to Sec. 1007.82 exceeds
the available balance in the transportation credit balancing fund
pursuant to Sec. 1007.80;
* * * * *
(b) * * *
(5) Deduct the amount by which the amount due from the
transportation credit balancing fund pursuant to Sec. 1007.82 exceeds
the available balance in the transportation credit balancing fund
pursuant to Sec. 1007.80;
* * * * *
6. Following Sec. 1007.78, a new undesignated center heading and
Secs. 1007.80, 1007.81, and 1007.82 are added to read as follows:
Marketwide Service Payments
Sec. 1007.80 Transportation credit balancing fund.
The market administrator shall maintain a separate fund known as
the Transportation Credit Balancing Fund into which shall be deposited
the payments made by handlers pursuant to Sec. 1007.81 and out of which
shall be made the payments due handlers pursuant to Sec. 1007.82.
Payments due a handler shall be offset against payments due from the
handler.
Sec. 1007.81 Payments to the transportation credit balancing fund.
(a) On or before the 12th day after the end of the month, each
handler shall pay to the market administrator a transportation credit
balancing fund assessment determined by multiplying the pounds of Class
I milk assigned pursuant to Sec. 1007.44 by $0.06 per hundredweight or
such lesser amount as the market administrator deems necessary to
maintain a balance in the fund equal to the higher of the following
amounts:
(1) The total transportation credits dispensed during the prior
July-December period; or
(2) The total transportation credits dispensed during the
immediately preceding 6-month period.
(b) On or before the 13th day after the end of the month, the
market administrator shall credit the transportation credit balancing
fund, from the producer-settlement fund, any amount deducted pursuant
to Sec. 1007.61 (a)(4) or (b)(5).
(c) The market administrator shall announce publicly on or before
the 5th day of the month the assessment pursuant to paragraph (a) of
this section for the following month, except that for the first month
that this section is effective the assessment shall be announced no
later than [the publication date of the final rule in the Federal
Register] and for the first 3 months that this section is effective the
assessment pursuant to paragraph (a) of this section shall be 6 cents
per hundredweight.
Sec. 1007.82 Payments from the transportation credit balancing fund.
(a) On or before the 13th day after the end of each of the months
of July through December and any other month in which transportation
credits are in effect pursuant to paragraph (b) of this section, the
market administrator shall pay to each handler that received, and
reported pursuant to Sec. 1007.30(a)(5), bulk milk transferred from an
other order plant as described in paragraph (c)(1) of this section or
that received, and reported pursuant to Sec. 1007.30(a)(6), bulk milk
directly from producers' farms as specified in paragraph (c)(2) of this
section an amount determined pursuant to paragraph (d) of this section.
In the event that a qualified cooperative association is the
responsible party for whose account such milk is received and written
documentation of this fact is provided to the market administrator
pursuant to Sec. 1007.30(c)(3) prior to the date payment is due, the
transportation credits for such milk computed pursuant to this section
shall be made to such cooperative association rather than to the
operator of the pool plant at which the milk was received.
(b) The market administrator may extend the period during which
transportation credits are in effect (i.e., the transportation credit
period) to any
[[Page 37643]]
of the months of January through June if the market administrator
receives a written request to do so 15 days prior to the beginning of
the month for which the request is made and, after conducting an
independent investigation, finds that such extension is necessary to
assure the market of an adequate supply of milk for fluid use. Before
making such a finding, the market administrator shall notify the
Director of the Dairy Division and all handlers in the market that an
extension is being considered and invite written data, views, and
arguments. Any decision to extend the transportation credit period must
be issued in writing prior to the first day of the month for which the
extension is to be effective.
(c) The transportation credit described in paragraph (a) of this
section shall apply to the following milk:
(1) Bulk milk received from a plant regulated under another Federal
order, except Federal Orders 1005, 1011, and 1046 allocated to Class I
milk pursuant to Sec. 1007.44; and
(2) Bulk milk classified pro rata as Class I milk pursuant to
Sec. 1007.44 received directly from the farms of dairy farmers at pool
distributing plants under the following conditions:
(i) The dairy farmer was not a ``producer'' under this order during
more than 2 of the immediately preceding months of January through June
and not more than 32 days' production of the dairy farmer was received
as producer milk under this order during that period; and
(ii) The farm on which the milk was produced is not located within
the specified marketing area of this order or the marketing areas of
Federal Orders 1005, 1011 or 1046, and, is not within 85 miles of the
plant to which its milk is delivered.
(d) Transportation credits shall be computed as follows:
(1) For milk described in paragraph (c)(1) of this section, the
market administrator shall:
(i) Determine the shortest hard-surface highway distance between
the transferor plant and the transferee plant;
(ii) Multiply the number of miles computed in paragraph (d)(1)(i)
of this section by 0.37 cents;
(iii) Subtract the other order's Class I price applicable at the
transferor plant's location from the Class I price applicable at the
transferee plant as specified in Sec. 1007.52;
(iv) Subtract any positive difference computed in paragraph
(d)(1)(iii) of this section from the amount computed in paragraph
(d)(1)(ii) of this section; and
(v) Multiply the remainder computed in paragraph (d)(1)(iv) of this
section by the hundredweight of milk described in paragraph (c)(1) of
this section.
(2) For milk described in paragraph (c)(2) of this section:
(i) Each milk hauler that is transporting the milk of producers
described in paragraph (c)(2) of this section may stop at the nearest
independently-operated truck stop with a truck scale and obtain a
weight certificate indicating the weight of the truck and its contents,
the date and time of weighing, and the location of the truck stop. The
location of the truck stop shall be used as a starting point for the
purpose of measuring the distance to the pool plant receiving that load
of milk. If a weight certificate for a supplemental load of milk for
which a transportation credit is requested is not available, the market
administrator shall use the nearest city to the last producer's farm
from which milk was picked up for delivery to the receiving pool plant;
(ii) For each bulk tank load of milk received pursuant to paragraph
(d)(2)(i) of this section, the market administrator shall determine the
shortest hard-surface highway distance between the receiving pool plant
and the truck stop or city, as the case may be;
(iii) Multiply the number of miles computed in paragraph (d)(2)(ii)
of this section by 0.37 cents;
(iv) Multiply the number computed in paragraph (d)(2)(iii) of this
section by the hundredweight of milk described in paragraph (c)(2) of
this section;
(v) Subtract the order's Class I price applicable at the
origination point determined pursuant to paragraph (d)(2)(ii) of this
section from the Class I price applicable at the distributing plant
receiving the milk; and
(vi) Subtract any positive difference computed in paragraph
(d)(2)(v) of this section from the amount computed in paragraph
(d)(2)(iv) of this section.
PART 1011--MILK IN THE TENNESSEE VALLEY MARKETING AREA
7. In Sec. 1011.30, paragraphs (a) and (c) are revised to read as
follows:
Sec. 1011.30 Reports of receipts and utilization.
* * * * *
(a) Each handler, with respect to each of his pool plants, shall
report the quantities of skim milk and butterfat contained in or
represented by:
(1) Receipts of producer milk, including producer milk diverted
from the pool plant to other plants;
(2) Receipts of milk from handlers described in Sec. 1011.9(c);
(3) Receipts of milk from handlers described in 1011.9(d);
(4) Receipts of fluid milk products and bulk fluid cream products
from other pool plants;
(5) Receipts of other source milk;
(6) Receipts of bulk milk from a plant regulated under another
Federal order, except Federal Orders 1005, 1007, and 1046, for which a
transportation credit is requested pursuant to Sec. 1011.82;
(7) Receipts of producer milk described in Sec. 1011.82(c)(2),
including the identity of the individual producers whose milk is
eligible for the transportation credit pursuant to Sec. 1011.82(c)(2);
(8) Inventories at the beginning and end of the month of fluid milk
products and products specified in Sec. 1011.40(b)(1); and
(9) The utilization or disposition of all milk, filled milk, and
milk products required to be reported pursuant to this paragraph (a).
* * * * *
(c) Each handler described in Sec. 1011.9(b), (c) and (d) shall
report:
(1) The quantities of all skim milk and butterfat contained in
receipts of milk from producers;
(2) The utilization or disposition of all such receipts; and
(3) With respect to milk for which a cooperative association is
requesting a transportation credit pursuant to Sec. 1011.82, all of the
information required in paragraphs (a) (6) and (7) of this section.
* * * * *
8. Section 1011.61 is amended by redesignating paragraphs (a)(4),
(a)(5), (b)(5), and (b)(6) as paragraphs (a)(5), (a)(6), paragraph
(b)(6) and (b)(7), respectively amending paragraph (b)(3) by revising
``(a)(3)'' to read ``(a)(4)'' and ``(a)(4)(ii)'' to read
``(a)(5)(ii)'', amending newly designated paragraph (b)(6) by
revising``(b)(4)'' to read ``(b)(5)'', amending newly designated
paragraph (b)(7) by revising ``(b)(5)'' to read ``(b)(6)'', and adding
new paragraphs (a)(4) and (b)(5) to read as follows:
Sec. 1011.61 Computation of uniform price (including weighted average
price and uniform prices for base and excess milk).
(a) * * *
(4) Deduct the amount by which the amount due from the
transportation credit balancing fund pursuant to Sec. 1011.82 exceeds
the available balance in the transportation credit balancing fund
pursuant to Sec. 1011.80;
* * * * *
(b) * * *
(5) Deduct the amount by which the amount due from the
transportation credit balancing fund pursuant to Sec. 1011.82 exceeds
the available balance
[[Page 37644]]
in the transportation credit balancing fund pursuant to Sec. 1011.80;
* * * * *
9. Following Sec. 1011.78, a new undesignated center heading and
Secs. 1011.80, 1011.81, and 1011.82 are added to read as follows:
Marketwide Service Payments
Sec. 1011.80 Transportation credit balancing fund.
The market administrator shall maintain a separate fund known as
the Transportation Credit Balancing Fund into which shall be deposited
the payments made by handlers pursuant to Sec. 1011.81 and out of which
shall be made the payments due handlers pursuant to Sec. 1011.82.
Payments due a handler shall be offset against payments due from the
handler.
Sec. 1011.81 Payments to the transportation credit balancing fund.
(a) On or before the 12th day after the end of the month, each
handler shall pay to the market administrator a transportation credit
balancing fund assessment determined by multiplying the pounds of Class
I milk assigned pursuant to Sec. 1011.44 by $0.06 per hundredweight or
such lesser amount as the market administrator deems necessary to
maintain a balance in the fund equal to the higher of the following
amounts:
(1) The total transportation credits dispensed during the prior
July-December period; or
(2) The total transportation credits dispensed during the
immediately preceding 6-month period.
(b) On or before the 13th day after the end of the month, the
market administrator shall credit the transportation credit balancing
fund, from the producer-settlement fund, any amount deducted pursuant
to Sec. 1011.61 (a)(4) or (b)(5).
(c) The market administrator shall announce publicly on or before
the 5th day of the month the assessment pursuant to paragraph (a) of
this section for the following month, except that for the first month
that this section is effective the assessment shall be announced no
later than [the publication date of the final rule in the Federal
Register] and for the first 3 months that this section is effective the
assessment pursuant to paragraph (a) of this section shall be 6 cents
per hundredweight.
Sec. 1011.82 Payments from the transportation credit balancing fund.
(a) On or before the 13th day after the end of each of the months
of July through December and any other month in which transportation
credits are in effect pursuant to paragraph (b) of this section, the
market administrator shall pay to each handler that received, and
reported pursuant to Sec. 1011.30(a)(6), bulk milk transferred from an
other order plant as described in paragraph (c)(1) of this section or
that received, and reported pursuant to Sec. 1011.30(a)(7), bulk milk
directly from producers' farms as specified in paragraph (c)(2) of this
section an amount determined pursuant to paragraph (d) of this section.
In the event that a qualified cooperative association is the
responsible party for whose account such milk is received and written
documentation of this fact is provided to the market administrator
pursuant to Sec. 1011.30(c)(3) prior to the date payment is due, the
transportation credits for such milk computed pursuant to this section
shall be made to such cooperative association rather than to the
operator of the pool plant at which the milk was received.
(b) The market administrator may extend the period during which
transportation credits are in effect (i.e., the transportation credit
period) to any of the months of January through June if the market
administrator receives a written request to do so 15 days prior to the
beginning of the month for which the request is made and, after
conducting an independent investigation, finds that such extension is
necessary to assure the market of an adequate supply of milk for fluid
use. Before making such a finding, the market administrator shall
notify the Director of the Dairy Division and all handlers in the
market that an extension is being considered and invite written data,
views, and arguments. Any decision to extend the transportation credit
period must be issued in writing prior to the first day of the month
for which the extension is to be effective.
(c) The transportation credit described in paragraph (a) of this
section shall apply to the following milk:
(1) Bulk milk received from a plant regulated under another Federal
order, except Federal Orders 1005, 1007, and 1046, and allocated to
Class I milk pursuant to Sec. 1011.44; and
(2) Bulk milk classified pro rata as Class I milk pursuant to
Sec. 1011.44 received directly from the farms of dairy farmers at pool
distributing plants under the following conditions:
(i) The dairy farmer was not a ``producer'' under this order during
more than 2 of the immediately preceding months of January through June
and not more than 32 days' production of the dairy farmer was received
as producer milk under this order during that period; and
(ii) The farm on which the milk was produced is not located within
the specified marketing area of this order or the marketing areas of
Federal Orders 1005, 1007, or 1046, and, is not within 85 miles of the
plant to which its milk is delivered.
(d) Transportation credits shall be computed as follows:
(1) For milk described in paragraph (c)(1) of this section, the
market administrator shall:
(i) Determine the shortest hard-surface highway distance between
the transferor plant and the transferee plant;
(ii) Multiply the number of miles computed in paragraph (d)(1)(i)
of this section by 0.37 cents;
(iii) Subtract the other order's Class I price applicable at the
transferor plant's location from the Class I price applicable at the
transferee plant as specified in Sec. 1011.52;
(iv) Subtract any positive difference computed in paragraph
(d)(1)(iii) of this section from the amount computed in paragraph
(d)(1)(ii) of this section; and
(v) Multiply the remainder computed in paragraph (d)(1)(iv) of this
section by the hundredweight of milk described in paragraph (c)(1) of
this section.
(2) For milk described in paragraph (c)(2) of this section:
(i) Each milk hauler that is transporting the milk of producers
described in paragraph (c)(2) of this section may stop at the nearest
independently-operated truck stop with a truck scale and obtain a
weight certificate indicating the weight of the truck and its contents,
the date and time of weighing, and the location of the truck stop. The
location of the truck stop shall be used as a starting point for the
purpose of measuring the distance to the pool plant receiving that load
of milk. If a weight certificate for a supplemental load of milk for
which a transportation credit is requested is not available, the market
administrator shall use the nearest city to the last producer's farm
from which milk was picked up for delivery to the receiving pool plant;
(ii) For each bulk tank load of milk received pursuant to paragraph
(d)(2)(i) of this section, the market administrator shall determine the
shortest hard-surface highway distance between the receiving pool plant
and the truck stop or city, as the case may be;
(iii) Multiply the number of miles computed in paragraph (d)(2)(ii)
of this section by 0.37 cents;
(iv) Multiply the number computed in paragraph (d)(2)(iii) of this
section by
[[Page 37645]]
the hundredweight of milk described in paragraph (c)(2) of this
section;
(v) Subtract this order's Class I price applicable at the
origination point determined pursuant to paragraph (d)(2)(ii) of this
section from the Class I price applicable at the distributing plant
receiving the milk; and
(vi) Subtract any positive difference computed in paragraph
(d)(2)(v) of this section from the amount computed in paragraph
(d)(2)(iv) of this section.
PART 1046--MILK IN THE LOUISVILLE-LEXINGTON-EVANSVILLE MARKETING
AREA
10. The authority citation for part 1046 continues to read as
follows:
Authority: Secs. 1-19, 48 Stat. 31, as amended (7 U.S.C. 601-
674).
10 a. In Sec. 1046.30, paragraphs (a) and (c) are revised to read
as follows:
Sec. 1046.30 Reports of receipts and utilization.
* * * * *
(a) Each handler, with respect to each of his pool plants, shall
report the quantities of skim milk and butterfat contained in or
represented by:
(1) Receipts of producer milk, including producer milk diverted by
the handler from the pool plant to other plants;
(2) Receipts of milk from handlers described in Sec. 1046.9(c);
(3) Receipts of fluid milk products and bulk fluid cream products
from other pool plants;
(4) Receipts of other source milk;
(5) Receipts of bulk milk from a plant regulated under another
Federal order, except Federal Orders 1005, 1007, and 1011, for which a
transportation credit is requested pursuant to Sec. 1046.82;
(6) Receipts of producer milk described in Sec. 1046.82(c)(2),
including the identity of the individual producers whose milk is
eligible for the transportation credit pursuant to Sec. 1046.82(c)(2);
(7) Inventories at the beginning and end of the month of fluid milk
products and products specified in Sec. 1046.40(b)(1); and
(8) The utilization or disposition of all milk, filled milk, and
milk products required to be reported pursuant to this paragraph (a).
* * * * *
(c) Each handler described in Sec. 1046.9 (b) and (c) shall report:
(1) The quantities of all skim milk and butterfat contained in
receipts of milk from producers;
(2) The utilization or disposition of all such receipts; and
(3) With respect to milk for which a cooperative association is
requesting a transportation credit pursuant to Sec. 1046.82, all of the
information required in paragraphs (a) (5) and (6) of this section.
* * * * *
11. Section 1046.61 is amended by redesignating paragraphs (a)(4),
(a)(5), (b)(5), and (b)(6) as paragraphs (a)(5), (a)(6), (b)(6), and
(b)(7), respectively, amending paragraph (b)(3) by revising ``(a)(3)''
to read ``(a)(4)'' and ``(a)(4)(ii)'' to read ``(a)(5)(ii)'', amending
newly designated paragraph (b)(6) by revising ``(b)(4)'' to read
``(b)(5)'', amending newly designated paragraph (b)(7) by revising
``(b)(5)'' to read ``(b)(6)'', and adding new paragraphs (a)(4) and
(b)(5) to read as follows:
Sec. 1046.61 Computation of uniform price (including weighted average
price and uniform prices for base and excess milk).
(a) * * *
(4) Deduct the amount by which the amount due from the
transportation credit balancing fund pursuant to Sec. 1046.82 exceeds
the available balance in the transportation credit balancing fund
pursuant to Sec. 1046.80;
* * * * *
(b) * * *
(5) Deduct the amount by which the amount due from the
transportation credit balancing fund pursuant to Sec. 1046.82 exceeds
the available balance in the transportation credit balancing fund
pursuant to Sec. 1046.80;
* * * * *
12. In Sec. 1046.73, paragraph (f)(2) is revised to read as
follows:
Sec. 1046.73 Payments to producers and to cooperative associations.
* * * * *
(f) * * *
(2) On or before the 10th day after the end of the following month
for milk received during the month an amount computed at not less than
the value of such milk at the minimum prices for milk in each class, as
adjusted by the butterfat differential specified in Sec. 1046.74
applicable at the location of the receiving handler's pool plant and
any transportation credit that is due the cooperative association
pursuant to Sec. 1046.82(a), less the payment made pursuant to
paragraph (f)(1) of this section.
13. Following Sec. 1046.78, a new undesignated center heading and
Secs. 1046.80, 1046.81, and 1046.82 are added to read as follows:
Marketwide Service Payments
Sec. 1046.80 Transportation credit balancing fund.
The market administrator shall maintain a separate fund known as
the Transportation Credit Balancing Fund into which shall be deposited
the payments made by handlers pursuant to Sec. 1046.81 and out of which
shall be made the payments due handlers pursuant to Sec. 1046.82.
Payments due a handler shall be offset against payments due from the
handler.
Sec. 1046.81 Payments to the transportation credit balancing fund.
(a) On or before the 12th day after the end of the month, each
handler shall pay to the market administrator a transportation credit
balancing fund assessment determined by multiplying the pounds of Class
I milk assigned pursuant to Sec. 1046.44 by $0.06 per hundredweight or
such lesser amount as the market administrator deems necessary to
maintain a balance in the fund equal to the higher of the following
amounts:
(1) The total transportation credits dispensed during the prior
July-December period; or
(2) The total transportation credits dispensed during the
immediately preceding 6-month period.
(b) On or before the 13th day after the end of the month, the
market administrator shall credit the transportation credit balancing
fund, from the producer-settlement fund, any amount deducted pursuant
to Sec. 1046.61 (a)(4) or (b)(5).
(c) The market administrator shall announce publicly on or before
the 5th day of the month the assessment pursuant to paragraph (a) of
this section for the following month, except that for the first month
that this section is effective the assessment shall be announced no
later than [the publication date of the final rule in the Federal
Register] and for the first 3 months that this section is effective the
assessment pursuant to paragraph (a) of this section shall be 6 cents
per hundredweight.
Sec. 1046.82 Payments from the transportation credit balancing fund.
(a) On or before the 13th day after the end of each of the months
of July through December and any other month in which transportation
credits are in effect pursuant to paragraph (b) of this section, the
market administrator shall pay to each handler that received, and
reported pursuant to Sec. 1046.30(a)(5), bulk milk transferred from an
other order plant as described in paragraph (c)(1) of this section or
that received, and reported pursuant to Sec. 1046.30(a)(6), bulk milk
directly from producers' farms as specified in paragraph (c)(2) of this
section an amount determined pursuant to
[[Page 37646]]
paragraph (d) of this section. In the event that a qualified
cooperative association is the responsible party for whose account such
milk is received and written documentation of this fact is provided to
the market administrator pursuant to Sec. 1046.30(c)(3) prior to the
date payment is due, the transportation credits for such milk computed
pursuant to this section shall be paid to such cooperative association
by the pool plant operator pursuant to Sec. 1046.73(f)(2).
(b) The market administrator may extend the period during which
transportation credits are in effect (i.e., the transportation credit
period) to any of the months of January through June if the market
administrator receives a written request to do so 15 days prior to the
beginning of the month for which the request is made and, after
conducting an independent investigation, finds that such extension is
necessary to assure the market of an adequate supply of milk for fluid
use. Before making such a finding, the market administrator shall
notify the Director of the Dairy Division and all handlers in the
market that an extension is being considered and invite written data,
views, and arguments. Any decision to extend the transportation credit
period must be issued in writing prior to the first day of the month
for which the extension is to be effective.
(c) The transportation credit described in paragraph (a) of this
section shall apply to the following milk:
(1) Bulk milk received from a plant regulated under another Federal
order, except Federal Orders 1005, 1007, and 1011, and allocated to
Class I milk pursuant to Sec. 1046.44; and
(2) Bulk milk classified pro rata as Class I milk pursuant to
Sec. 1046.44 received directly from the farms of dairy farmers at pool
distributing plants under the following conditions:
(i) The dairy farmer was not a ``producer'' under this order during
more than 2 of the immediately preceding months of January through June
and not more than 32 days' production of the dairy farmer was received
as producer milk under this order during that period; and
(ii) The farm on which the milk was produced is not located within
the specified marketing area of this order or the marketing areas of
Federal Orders 1005, 1007, or 1011, and, is not within 85 miles of the
plant to which its milk is delivered.
(d) Transportation credits shall be computed as follows:
(1) For milk described in paragraph (c)(1) of this section, the
market administrator shall:
(i) Determine the shortest hard-surface highway distance between
the transferor plant and the transferee plant;
(ii) Multiply the number of miles computed in paragraph (d)(1)(i)
of this section by 0.37 cents;
(iii) Subtract the other order's Class I price applicable at the
transferor plant's location from the Class I price applicable at the
transferee plant as specified in Sec. 1046.52;
(iv) Subtract any positive difference computed in paragraph
(d)(1)(iii) of this section from the amount computed in paragraph
(d)(1)(ii) of this section; and
(v) Multiply the remainder computed in paragraph (d)(1)(iv) of this
section by the hundredweight of milk described in paragraph (c)(1) of
this section.
(2) For milk described in paragraph (c)(2) of this section:
(i) Each milk hauler that is transporting the milk of producers
described in paragraph (c)(2) of this section may stop at the nearest
independently-operated truck stop with a truck scale and obtain a
weight certificate indicating the weight of the truck and its contents,
the date and time of weighing, and the location of the truck stop. The
location of the truck stop shall be used as a starting point for the
purpose of measuring the distance to the pool plant receiving that load
of milk. If a weight certificate for a supplemental load of milk for
which a transportation credit is requested is not available, the market
administrator shall use the nearest city to the last producer's farm
from which milk was picked up for delivery to the receiving pool plant;
(ii) For each bulk tank load of milk received pursuant to paragraph
(d)(2)(i) of this section, the market administrator shall determine the
shortest hard-surface highway distance between the receiving pool plant
and the truck stop or city, as the case may be;
(iii) Multiply the number of miles computed in paragraph (d)(2)(ii)
of this section by 0.37 cents;
(iv) Multiply the number computed in paragraph (d)(2)(iii) of this
section by the hundredweight of milk described in paragraph (c)(2) of
this section;
(v) Subtract this order's Class I price applicable at the
origination point determined pursuant to paragraph (d)(2)(ii) of this
section from the Class I price applicable at the distributing plant
receiving the milk; and
(vi) Subtract any positive difference computed in paragraph
(d)(2)(v) of this section from the amount computed in paragraph
(d)(2)(iv) of this section.
[FR Doc. 96-18227 Filed 7-15-96; 3:34 pm]
BILLING CODE 3410-02-P
Complete official Federal Register PDF
FR Doc. 96-18204 Approval and Promulgation of State Implementation Plans; California State Implementation Plan Revision, El Dorado County Air Pollution Control District, Placer County Air Pollution Control District, and Ventura County Air Pollution Control District
[Federal Register Volume 61, Number 139 (Thursday, July 18, 1996)]
[Proposed Rules]
[Pages 37428-37429]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18204]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[CA 071-0005b; FRL-5464-7]
Approval and Promulgation of State Implementation Plans;
California State Implementation Plan Revision, El Dorado County Air
Pollution Control District, Placer County Air Pollution Control
District, and Ventura County Air Pollution Control District
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: EPA is proposing to approve revisions to the California State
Implementation Plan (SIP) which concern the control of volatile organic
compound (VOC) emissions from adhesives, architectural coatings, and
wood products coatings.
The intended effect of proposing approval of these rules is to
regulate emissions of VOCs in accordance with
[[Page 37429]]
the requirements of the Clean Air Act, as amended in 1990 (CAA or the
Act). In the Final Rules Section of this Federal Register, the EPA is
approving the state's SIP revision as a direct final rule without prior
proposal because the Agency views this as a noncontroversial revision
amendment and anticipates no adverse comments. A detailed rationale for
this approval is set forth in the direct final rule. If no adverse
comments are received in response to this proposed rule, no further
activity is contemplated in relation to this rule. If EPA receives
adverse comments, the direct final rule will be withdrawn and all
public comments received will be addressed in a subsequent final rule
based on this proposed rule. The EPA will not institute a second
comment period on this document. Any parties interested in commenting
on this action should do so at this time.
DATES: Comments on this proposed rule must be received in writing by
August 19, 1996.
ADDRESSES: Written comments on this action should be addressed to:
Daniel A. Meer, Rulemaking Section (A-5-3), Air and Toxics Division,
U.S. Environmental Protection Agency, Region 9, 75 Hawthorne Street,
San Francisco, CA 94105-3901.
Copies of the rule revisions and EPA's evaluation report of each
rule are available for public inspection at EPA's Region 9 office
during normal business hours. Copies of the submitted rule revisions
are also available for inspection at the following locations:
California Air Resources Board, Stationary Source Division, Rule
Evaluation Section, 2020 ``L'' Street, Sacramento, CA 95812.
El Dorado County Air Pollution Control District, 2850 Fairlane Court,
Placerville, CA 95667.
Placer County Air Pollution Control District, 11464 B Avenue, Auburn,
CA 95603.
Ventura County Air Pollution Control District, 669 County Square Drive,
Ventura, CA 93003.
FOR FURTHER INFORMATION CONTACT: Nikole Reaksecker, Rulemaking Section
(A-5-3), Air and Toxics Division, U.S. Environmental Protection Agency,
Region 9, 75 Hawthorne Street, San Francisco, CA 94105-3901, Telephone:
(415) 744-1187.
SUPPLEMENTARY INFORMATION: This document concerns rules from the El
Dorado County Air Pollution Control District (EDCAPCD), the Placer
County Air Pollution Control District (PCAPCD), and the Ventura County
Air Pollution Control District (VCAPCD). The following table lists the
names of the rules, the dates of district adoption, and the dates that
the California Air Resources Board (CARB) submitted the rules to EPA.
------------------------------------------------------------------------
Rule Adoption Submittal
------------------------------------------------------------------------
EDCAPCD 215--Architectural Coatings..... 9/27/94 11/30/94
EDCAPCD 236--Adhesives.................. 7/25/95 10/13/95
EDCAPCD 237--Wood Products Coatings..... 6/27/95 10/13/95
PCAPCD 218--Architectural Coatings...... 2/9/95 5/24/95
PCAPCD 235--Adhesives................... 6/8/95 10/13/95
VCAPCD 74.20--Adhesives and Sealants.... 6/8/93 11/18/93
------------------------------------------------------------------------
For further information, please see the information provided in the
Direct Final action which is located in the Rules Section of this
Federal Register.
Authority: 42 U.S.C. 7401-7671q.
Dated: April 18, 1996.
Felicia Marcus,
Regional Administrator.
[FR Doc. 96-18204 Filed 7-17-96; 8:45 am]
BILLING CODE 6560-50-W
Complete official Federal Register PDF
FR Doc. 96-18202 Approval and Promulgation of State Implementation Plans: Oregon
[Federal Register Volume 61, Number 139 (Thursday, July 18, 1996)]
[Proposed Rules]
[Page 37429]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18202]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[OR-54-7269b; FRL-5515-4]
Approval and Promulgation of State Implementation Plans: Oregon
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The EPA proposes to approve the State Implementation Plan
(SIP) revision submitted by the State of Oregon to support Oregon's
ozone Nonattainment Area control strategy(ies). The SIP revision was
submitted by the State to satisfy Federal Clean Air Act requirements.
In the Final Rules Section of this Federal Register, the EPA is
approving the State's SIP revision as a direct final rule without prior
proposal because the Agency views this as a noncontroversial revision
amendment and anticipates no adverse comments. A detailed rationale for
the approval is set forth in the direct final rule. If no adverse
comments are received in response to this proposed rule, no further
activity is contemplated in relation to this rule. If the EPA receives
adverse comments, the direct final rule will be withdrawn and all
public comments received will be addressed in a subsequent final rule
based on this proposed rule. The EPA will not institute a second
comment period on this action.
DATES: Comments on this proposed rule must be received in writing by
August 19, 1996.
ADDRESSES: Written comments should be addressed to Montel Livingston,
Environmental Protection Specialist (OAQ-107), Office of Air Quality,
at the EPA Regional Office listed below. Copies of the documents
relevant to this proposed rule are available for public inspection
during normal business hours at the following locations. The interested
persons wanting to examine these documents should make an appointment
with the appropriate office at least 24 hours before the visiting day.
Environmental Protection Agency, Region 10, Office of Air Quality, 1200
6th Avenue, Seattle, WA 98101.
Oregon Department of Environmental Quality, 811 SW. Sixth Avenue,
Portland, Oregon 97204-1390.
FOR FURTHER INFORMATION CONTACT: Angela McFadden, Office of Air Quality
(OAQ-107), EPA, Region 10, 1200 6th Avenue, Seattle, WA 98101, (206)
553-6908.
SUPPLEMENTARY INFORMATION: See the information provided in the Direct
Final action which is located in the Rules Section of this Federal
Register.
Dated: May 22, 1996.
Jane S. Moore,
Acting Regional Administrator.
[FR Doc. 96-18202 Filed 7-17-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-18198 Approval and Promulgation of Implementation Plans Tennessee: Approval of Revisions to the Tennessee SIP Regarding Construction Permits and Volatile Organic Compounds
[Federal Register Volume 61, Number 139 (Thursday, July 18, 1996)]
[Proposed Rules]
[Page 37428]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18198]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[TN-151-7017b; TN-153-7018b; TN-161-9621b; TN-162-9622b; TN-164-9626b;
TN-168-9628b; TN-169-9629b; FRL-5533-4]
Approval and Promulgation of Implementation Plans Tennessee:
Approval of Revisions to the Tennessee SIP Regarding Construction
Permits and Volatile Organic Compounds
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The EPA proposes to approve the State implementation plan
(SIP) revisions submitted by the State of Tennessee for the purposes of
incorporating visibility protection requirements into the Construction
Permits portion of the rule (1200-3-9-.01) and to respond to
deficiencies of chapter 1200-3-18 as described in 60 FR 10504 published
on February 27, 1995, which acted on the Tennessee VOC Reasonably
Available Control Technology (RACT) submittal to meet the 1990 VOC RACT
``Catch Up'' requirements. The EPA is also approving two new rules into
Tennessee's VOC chapter which regulate VOC emissions from offset
lithographic printing operations and wood furniture finishing and
cleaning operations. In the final rules section of this Federal
Register, the EPA is approving the State's SIP revision as a direct
final rule without prior proposal because the Agency views this as a
noncontroversial revision amendment and anticipates no adverse
comments. A detailed rationale for the approval is set forth in the
direct final rule. If no adverse comments are received in response to
this proposed rule, no further activity is contemplated in relation to
this proposed rule. If EPA receives adverse comments, the direct final
rule will be withdrawn and all public comments received will be
addressed in a subsequent final rule based on this proposed rule. The
EPA will not institute a second comment period on this document. Any
parties interested in commenting on this document should do so at this
time.
DATES: To be considered, comments must be received by August 19, 1996.
ADDRESSES: Written comments on this action should be addressed to
William Denman at the Environmental Protection Agency, Region 4 Air
Programs Branch, 345 Courtland Street, NE., Atlanta, Georgia 30365.
Copies of documents relative to this action are available for public
inspection during normal business hours at the following locations. The
interested persons wanting to examine these documents should make an
appointment with the appropriate office at least 24 hours before the
visiting day. Reference files TN151-01-7017, TN153-01-7018, TN161-01-
9621, TN162-01-9622, TN164-01-9626, TN168-01-9628, and TN169-01-9629.
The Region 4 office may have additional background documents not
available at the other locations.
Air and Radiation Docket and Information Center (Air Docket 6102), U.S.
Environmental Protection Agency, 401 M Street, SW., Washington, DC
20460.
Environmental Protection Agency, Region 4 Air Programs Branch, 345
Courtland Street, NE., Atlanta, Georgia 30365. William Denman, 404/347-
3555 extension 4208.
Tennessee Department of Environment and Conservation, Division of Air
Pollution Control, L & C Annex, 9th Floor, 401 Church Street,
Nashville, Tennessee 37243-1531. 615/532-0554.
FOR FURTHER INFORMATION CONTACT: William Denman, 404/347-3555 extension
4208.
SUPPLEMENTARY INFORMATION: For additional information see the direct
final rule which is published in the rules section of this Federal
Register.
Dated: June 24, 1996.
A. Stanley Meiburg,
Acting Regional Administrator.
[FR Doc. 96-18198 Filed 7-17-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-18190 Mid-Atlantic Fishery Management Council; Public Hearings
[Federal Register Volume 61, Number 139 (Thursday, July 18, 1996)]
[Proposed Rules]
[Pages 37436-37437]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18190]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[I.D. 070996A]
Mid-Atlantic Fishery Management Council; Public Hearings
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Public hearings; request for comments.
-----------------------------------------------------------------------
SUMMARY: The Mid-Atlantic Fishery Management Council will hold public
hearings to allow for input on Amendment 6 to the Fishery Management
Plan for the Atlantic Mackerel, Squid, and Butterfish Fisheries (FMP).
The hearings will be tape recorded with the tapes filed as the official
transcript of the hearings.
DATES: Written comments will be accepted through August 1, 1996. The
hearings are scheduled as follows:
1. July 29, 1996, 7 p.m., Warwick, RI.
2. July 29, 1996, 7 p.m., Virginia Beach, VA.
3. July 30, 1996, 7:30 p.m., Long Island, Riverhead, NY.
4. July 31, 1996, 7 p.m., Cape May Courthouse, NJ.
ADDRESSES: Send comments to: David R. Keifer, Executive Director, Mid-
Atlantic Fishery Management Council, Room 2115 Federal Building, 300
South New Street, Dover, DE 19904. The hearings will be held at the
following locations:
1. Warwick--Holiday Inn at the Crossings, 801 Greenwich Avenue,
Warwick, RI
2. Virginia Beach--Days Inn, 5708 Northampton Boulevard, Virginia
Beach, VA
3. Long Island, Riverhead--Ramada East End, Exit 72 L.I.E. and
Route 25, Long Island, Riverhead, NY
[[Page 37437]]
4. Cape May Courthouse--Cape May Extension Office, Dennisville
Road, Cape May Courthouse, NJ
FOR FURTHER INFORMATION CONTACT: David R. Keifer, (302) 674-2331.
SUPPLEMENTARY INFORMATION: Amendments 2 through 5 to the FMP, as
adopted by the Council and approved by NMFS, established procedures for
setting annual catch specifications for Atlantic mackerel, Loligo
squid, Illex squid, and butterfish, required that commercial vessels
and party and charter boats obtain permits, established overfishing
definitions for the four species, established policies related to the
foreign fishery and joint ventures, eliminated foreign fisheries for
butterfish and the squids, implemented moratoria on entry of additional
vessels into the squid and butterfish fisheries, allowed for seasonal
quotas in the Loligo fishery, implemented a minimum mesh net in the
Loligo fishery, and developed a dealer and vessel reporting system.
The management measures for Amendment 6 adopted by the Council for
hearings are:
1. Revised overfishing definitions for Illex and Loligo squid and
Atlantic butterfish.
2. Provision for NMFS to close the U.S. directed fishery for
Loligo, Illex, or butterfish when U.S. fishermen have harvested 95
percent of the allowable domestic annual harvest (DAH) if such closure
is necessary to prevent DAH from being exceeded.
3. The Director, Northeast Region, NMFS, may impose season closures
in the Illex fishery to improve yield per recruit from the fishery,
based upon the recommendation of the Council. This may include delaying
the opening of the directed Illex fishery if substantial increases in
yield will result from such closures.
The public hearings are physically accessible to people with
disabilities. Requests for sign language interpretation or other
auxiliary aids should be directed to David R. Keifer (see ADDRESSES) at
least 5 days prior to the hearing dates.
Authority: 16 U.S.C. 1801 et seq.
Dated: July 12, 1996.
Richard W. Surdi,
Acting Director, Office of Fisheries Conservation and Management,
National Marine Fisheries Service.
[FR Doc. 96-18190 Filed 7-17-96; 8:45 am]
BILLING CODE 3510-22-F
Complete official Federal Register PDF
FR Doc. 96-17925 Vinyl Alcohol-Vinyl Acetate Copolymer, Benzaldehyde-o-Sodium Sulfonate Condensate; Tolerance Exemption
[Federal Register Volume 61, Number 139 (Thursday, July 18, 1996)]
[Proposed Rules]
[Pages 37432-37435]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17925]
-----------------------------------------------------------------------
[[Page 37433]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 180
[OPP-300429; FRL-5376-4]
RIN 2070-AC18
Vinyl Alcohol-Vinyl Acetate Copolymer, Benzaldehyde-o-Sodium
Sulfonate Condensate; Tolerance Exemption
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: This document proposes to establish an exemption from the
requirement of a tolerance for residues of vinyl alcohol-vinyl acetate
copolymer, benzaldehyde-o-sodium sulfonate condensate when used as an
inert ingredient (water soluble resin) in pesticide formulations
applied to growing crops or to raw agricultural commodities after
harvest and when applied to animals. This proposed regulation was
requested by Mitsui Plastics, Inc.
DATES: Written comments, identified by the docket number [OPP-300429],
must be received on or before August 19, 1996.
ADDRESSES: By mail, submit written comments to Public Response and
Program Resources Branch, Field Operations Division (7506C), Office of
Pesticide Programs, Environmental Protection Agency, 401 M St., SW.,
Washington, DC 20460. In person, deliver comments to: Rm. 1132, CM #2,
1921 Jefferson Davis Hwy., Arlington, VA 22202. Information submitted
as a comment concerning this document may be claimed confidential by
marking any part or all of that information as ``Confidential Business
Information'' (CBI). Information so marked will not be disclosed except
in accordance with procedures set forth in 40 CFR part 2. A copy of the
comment that does not contain CBI must be submitted for inclusion in
the public record. Information not marked confidential will be included
in the public docket by EPA without prior notice. All written comments
will be available for public inspection in Rm. 1132 at the address
given above, from 8 a.m. to 4:30 p.m., Monday through Friday, excluding
legal holidays.
Comments and data may also be submitted electronically by sending
electronic mail (e-mail) to: [email protected]. Electronic
comments must be submitted as an ASCII file avoiding the use of special
characters and any form of encryption. Comments and data will also be
accepted on disks in WordPerfect 5.1 file format or ASCII file format.
All comments and data in electronic form must be identified by the
docket number [OPP-300429]. No CBI should be submitted through e-mail.
Electronic comments on this proposed rule may be filed online at many
Federal Depository Libraries. Additional information on electronic
submissions can be found below in this document.
FOR FURTHER INFORMATION CONTACT: By mail: Bipin Gandhi, Registration
Support Branch, Registration Division (7505W), Environmental Protection
Agency, 401 M St., SW., Washington, DC 20460. Office location and
telephone number: 2800 Crystal Drive, North Tower, 6th Floor,
Arlington, VA 22202, (703) 308-8380, e-mail:
[email protected].
SUPPLEMENTARY INFORMATION: Mitsui Plastics, Inc., 11 Martine Ave, White
Plains, NY 10606, submitted pesticide petition (PP) 6E4718 to EPA
requesting that the Administrator, pursuant to section 408(e) of the
Federal Food Drug, and Cosmetic Act (FFDCA) (21 U.S.C. 346 a(e)),
propose to amend 40 CFR 180.1001(c) and (e) by establishing an
exemption from the requirement of a tolerance for residues of vinyl
alcohol-vinyl acetate copolymer, benzaldehyde-o-sodium sulfonate
condensate when used as an inert ingredient (water soluble resin) in
pesticide formulations applied to growing crops or to raw agricultural
commodities after harvest and applied to animals.
Inert ingredients are all ingredients that are not active
ingredients as defined in 40 CFR 153.125, and include, but are not
limited to, the following types of ingredients (except when they have a
pesticidal efficacy of their own): solvents such as alcohols and
hydrocarbons; surfactants such as polyoxyethylene polymers and fatty
acids; carriers such as clay and diatomaceous earth; thickeners such as
carrageenan and modified cellulose; wetting, spreading, and dispersing
agents; propellants in aerosol dispensers; microencapsulating agents;
and emulsifiers. The term ``inert'' is not to imply nontoxicity; the
ingredient may or may not be chemically active.
The data submitted in the petition and other relevant material have
been evaluated. As part of the EPA policy statement on inert
ingredients published in the Federal Register of April 22, 1987 (52 FR
13305), the Agency set forth a list of studies which would generally be
used to evaluate the risks posed by the presence of an inert ingredient
in a pesticide formulation. However, where it can be determined without
that data that the inert ingredient will present minimal or no risk,
the Agency generally does not require some or all of the listed studies
to rule on the proposed tolerance or exemption from the requirement of
a tolerance for an inert ingredient. The Agency has decided that no
data, in addition to that described below, for vinyl alcohol-vinyl
acetate copolymer, benzaldehyde-o-sodium sulfonate condensate will need
to be submitted. The rationale for this decision is described below.
In the case of certain chemical substances that are defined as
``polymers,'' the Agency has established a set of criteria which
identify categories of polymers that present low risk. These criteria
(described in 40 CFR 723.250) identify polymers that are relatively
unreactive and stable compared to other chemical substances as well as
polymers that typically are not readily absorbed. These properties
generally limit a polymer's ability to cause adverse effects. In
addition, these criteria exclude polymers about which little is known.
The Agency believes that polymers meeting the criteria noted above will
present minimal or no risk. Vinyl alcohol-vinyl acetate copolymer,
benzaldehyde-o-sodium sulfonate condensate conforms to the definition
of a polymer given in 40 CFR 723.250(b) and meets the following
criteria that are used to identify low risk polymers:
1. Vinyl alcohol-vinyl acetate copolymer, benzaldehyde-o-sodium
sulfonate condensate is not a cationic polymer, nor is it reasonably
anticipated to become a cationic polymer in a natural aquatic
environment.
2. Vinyl alcohol-vinyl acetate copolymer, benzaldehyde-o-sodium
sulfonate condensate contains as an integral part of its composition
the atomic elements carbon, hydrogen, oxygen, sodium and sulfur.
3. Vinyl alcohol-vinyl acetate copolymer, benzaldehyde-o-sodium
sulfonate condensate does not contain as an integral part of its
composition, except as impurities, any elements other than those listed
in 40 CFR 723.250(d)(2)(ii).
4. Vinyl alcohol-vinyl acetate copolymer, benzaldehyde-o-sodium
sulfonate condensate is not designed, nor is it reasonably anticipated
to substantially degrade, decompose or depolymerize.
5. Vinyl alcohol-vinyl acetate copolymer, benzaldehyde-o-sodium
sulfonate condensate is not manufactured or imported from monomers and/
or other reactants that are not already included on the TSCA Chemical
Substance Inventory or manufactured under an applicable TSCA section 5
exemption.
[[Page 37434]]
6. Vinyl alcohol-vinyl acetate copolymer, benzaldehyde-o-sodium
sulfonate condensate is not a water absorbing polymer with a number
average molecular weight greater than or equal to 10,000 daltons.
7. The minimum number-average molecular weight of vinyl alcohol-
vinyl acetate copolymer, benzaldehyde-o-sodium sulfonate condensate is
20,000 daltons. Substances with molecular weights greater than 400
generally are not absorbed through the intact skin, and substances with
molecular weights greater than 1,000 generally are not absorbed through
the intact gastrointestinal (GI) tract. Chemicals not absorbed through
the skin or GI tract generally are incapable of eliciting a toxic
response.
8. Vinyl alcohol-vinyl acetate copolymer, benzaldehyde-o-sodium
sulfonate condensate has a minimum number average molecular weight of
20,000 and contains less than 2 percent oligomeric material below
molecular weight 500 and less than 5 percent oligomeric material below
1,000 molecular weight.
9. Vinyl alcohol-vinyl acetate copolymer, benzaldehyde-o-sodium
sulfonate condensate does contain aliphatic hydroxy groups, aliphatic
ester groups, diacetal groups and sodium sulfonate groups as reactive
functional groups. However, these reactive groups are not intended or
reasonably anticipated to undergo further reactions.
Based on the above information and review of its use, EPA has found
that, when used in accordance with good agricultural practice, this
ingredient is useful and a tolerance is not necessary to protect the
public health. Therefore, EPA proposes that the exemption from the
requirement of a tolerance be established as set forth below.
Any person who has registered or submitted an application for
registration of a pesticide, under the Federal Insecticide, Fungicide,
and Rodenticide Act (FIFRA) as amended, that contains any of the
ingredients listed herein, may request within 30 days after the
publication of this document in the Federal Register that this
rulemaking proposal be referred to an Advisory Committee in accordance
with section 408(e) of the FFDCA.
Interested persons are invited to submit written comments on the
proposed regulation. Comments must bear a notation indicating the
docket number, [OPP-300429].
A record has been established for this rulemaking under docket
number [OPP-300429] (including comments and data submitted
electronically as described below). A public version of this record,
including printed paper versions of electronic comments, which does not
include any information claimed as CBI, is available for inspection
from 8 a.m. to 4:30 p.m., Monday through Friday, excluding legal
holidays. The public record is located in Room 1132 of the Public
Response and Program Resources Branch, Field Operations Division
(7506C), Office of Pesticide Programs, Environmental Protection Agency,
Crystal Mall #2, 1921 Jefferson Davis Highway, Arlington, VA.
Electronic comments can be sent directly to EPA at:
opp-D[email protected]
Electronic comments must be submitted as an ASCII file avoiding the
use of special characters and any form of encryption.
The official record for this rulemaking, as well as the public
version, as described above will be kept in paper form. Accordingly,
EPA will transfer all comments received electronically into printed,
paper form as they are received and will be placed in the paper copies
of the official rulemaking record which also will include all comments
submitted directly in writing. The official rulemaking record is the
paper record maintained at the address in the ``ADDRESSES'' at the
beginning of this document.
The Office of Management and Budget has exempted this rule from the
requirements of section 2 of Executive Order 12866.
This action does not impose any enforceable duty, or contain any
``unfunded mandates'' as described in Title II of the Unfunded Mandates
Reform Act of 1995 (Pub. L. 104-4), or require prior consultation as
specified by Executive Order 12875 (58 FR 58093, October 28, 1993),
entitled Enhancing the Intergovernmental Partnership, or special
consideration as required by Executive Order 12898 (59 FR 7629,
February 16, 1994).
Pursuant to the requirement of the Regulatory Flexibility Act (5
U.S.C. 601-612), the Administrator has determined that regulations
establishing new tolerances or raising tolerance levels or establishing
exemptions from tolerance requirements do not have an economic impact
on a substantial number of small entities. A certification statement to
this effect was published in the Federal Register of May 4, 1981 (46 FR
24950).
List of Subjects in 40 CFR Part 180
Environmental protection, Administrative practice and procedure,
Agricultural commodities, Pesticides and pests, Reporting and
recordkeeping requirements.
Dated: June 25, 1996.
Stephen L. Johnson,
Director, Registration Division, Office of Pesticide Programs.
Therefore, it is proposed that 40 CFR part 180 be amended as
follows:
PART 180--[AMENDED]
1. The authority citation for part 180 continues to read as
follows:
Authority: 21 U.S.C. 346a and 371.
2. In Sec. 180.1001, the table in paragraphs (c) and (e), is
amended by adding alphabetically the inert ingredient ``Vinyl alcohol-
vinyl acetate copolymer, benzaldehyde-o-sodium sulfonate condensate,
minimum number average molecular weight (in amu) 20,000,'' to read as
follows:
Sec. 180.1001 Exemptions from the requirement of a tolerance.
* * * * *
(c) * * *
------------------------------------------------------------------------
Inert ingredients Limits Uses
------------------------------------------------------------------------
* * * * * * *
Vinyl alcohol-vinyl acetate Water soluble resin
copolymer,benzaldehyde-o-
sodium sulfonate condensate,
minimum number average
molecular weight (in amu)
20,000.
* * * * * * *
------------------------------------------------------------------------
* * * * *
(e) * * *
[[Page 37435]]
------------------------------------------------------------------------
Inert ingredients Limits Uses
------------------------------------------------------------------------
* * * * * * *
Vinyl alcohol-vinyl acetate Water soluble resin
copolymer,benzaldehyde-o-
sodium sulfonate condensate,
minimum number average
molecular weight (in amu)
20,000.
* * * * * * *
------------------------------------------------------------------------
[FR Doc. 96-17925 Filed 7-17-96; 8:45 am]
BILLING CODE 6560-50-F
Complete official Federal Register PDF
FR Doc. 96-17905 National Oil and Hazardous Substances Pollution Contingency Plan; National Priorities List
[Federal Register Volume 61, Number 139 (Thursday, July 18, 1996)]
[Proposed Rules]
[Pages 37435-37436]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17905]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 300
[FRL-5537-8]
National Oil and Hazardous Substances Pollution Contingency Plan;
National Priorities List
Agency: Environmental Protection Agency.
Action: Notice of intent to delete Bonneville Power Administration
(BPA)/Ross Complex from the National Priorities List: request for
comments.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) Region 10 announces
its intent to delete the Bonneville Power Administration (BPA)/Ross
Complex site from the National Priorities List (NPL) and requests
public comment on this action. The NPL constitutes Appendix B of 40 CFR
part 300 which is the National Oil and Hazardous Substances Pollution
Contingency Plan (NCP), which EPA promulgated pursuant to Section 105
of the Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA) of 1980, as amended by the Superfund Amendments
and Reauthorization Act of 1986, Public Law Number 99-400 (CERCLA).
EPA has determined, and Washington State's Department of Ecology
(Ecology) has concurred, that the BPA/Ross Complex site poses no
significant threat to public health or the environment and, therefore,
further remedial measures are not appropriate.
DATES: Comments concerning this site may be submitted on or before
August 19, 1996.
ADDRESSES: Comments may be mailed to Nancy Harney, U.S. EPA Region 10,
Mail Stop: ECL-111, 1200 6th Avenue, Seattle, Washington 98101.
Comprehensive information on this site is available through the
Region 10 Deletion Docket, which is located at EPA's Region 10 office
and is available for viewing by appointment only from 9:00 a.m. to 4:00
p.m., Monday through Friday, excluding holidays. Appointments for
copies of the background information from the Regional public docket
should be directed to the EPA Region 10 docket office at the following
address: Lynn Williams, United States Environmental Protection Agency,
Region 10, Environmental Cleanup Office, ECL-110, Superfund Records
Center, 1200 6th Avenue, Seattle, Washington 98101.
The Deletion Docket is also available for viewing at the following
locations:
BPA/Ross Complex, 5411 NE Highway 99, Plant Services Building, 2nd
Floor, Vancouver, Washington
Vancouver Regional Library, 1007 East Mill Plain Boulevard, Vancouver,
Washington
FOR FURTHER INFORMATION CONTACT: Nancy Harney, U.S. EPA Region 10, Mail
Stop: ECL-111, 1200 6th Avenue, Seattle, Washington 98101, (206) 553-
6635.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Introduction
II. NPL Deletion Criteria
III. Deletion Procedures
IV. Basis of Intended Site Deletion
I. Introduction
The United States Environmental Protection Agency (EPA) Region 10
announces its intent to delete the BPA/Ross Complex site from the
National Priorities List (NPL), which constitutes Appendix B of the
National Oil and Hazardous Substances Contingency Plan (``NCP''), 40
CFR Part 300, and requests comments on this proposed deletion. EPA
identifies sites on the NPL that appear to present a significant risk
to human health or the environment and maintains the NPL as the list of
these sites. EPA may delete a site from the NPL if it determines that
no further response is required to protect human health and the
environment. As described in Section 300.425(e)(3) of the NCP, sites
deleted from the NPL remain eligible for remedial actions in the
unlikely event that conditions at the site are later found to warrant
such actions.
EPA will accept comments on the proposal to delete this site for
thirty days after publication of this notice in the Federal Register.
Section II of this notice explains the criteria for deleting sites
from the NPL. Section III discusses the procedures that EPA is using
for this action. Section IV discusses the BPA/Ross Complex site and
explains how the site meets the deletion criteria.
II. NPL Deletion Criteria
The NCP establishes the criteria that the Agency uses to delete
sites from the NPL. In accordance with Section 300.425(e) of the NCP,
40 CFR 300.425(e), sites may be deleted from the NPL where no further
response is appropriate. In making a determination to delete a release
from the NPL, EPA shall consider, in consultation with the state,
whether any of the following criteria have been met:
(i) Responsible parties or other parties have implemented all
appropriate response actions required;
(ii) All appropriate response under CERCLA has been implemented,
and no further action by responsible parties is appropriate, or
(iii) The remedial investigation has shown that the release poses
no significant threat to public health or the environment and,
therefore, taking of remedial measures is not appropriate.
It is EPA's policy that even if a site is deleted from the NPL,
where hazardous substances, pollutants, or contaminants remain at the
site above levels that allow for unlimited use and unrestricted
exposure, a subsequent review of the site will be conducted at least
every five years after the initiation of the remedial action at the
site to ensure that the site remains protective of public health and
the environment. In the case of this site, the selected remedies are
protective of human health and the environment. Consistent with Section
XIX of the BPA/Ross Complex Federal Facility Agreement (FFA), BPA will
conduct a five-year review of these final remedies. If new information
becomes available which indicates a need for further action, EPA may
initiate remedial actions. Whenever there is a significant release from
a site deleted from the NPL, the site may be restored to the NPL
without the application of the Hazard Ranking System.
III. Deletion Procedures
The following procedures were used for the intended deletion of
this site: (1)
[[Page 37436]]
All appropriate response under CERCLA has been implemented and no
further action by BPA is appropriate; (2) Ecology has concurred with
the proposed deletion decision; (3) a notice has been published in the
local newspapers and has been distributed to appropriate federal, state
and local officials and other interested parties announcing the
commencement of a 30-day public comment period on EPA's Notice of
Intent to Delete, and (4) all relevant documents have been made
available in the local site information repositories.
Deletion of the site from the NPL does not itself create, alter, or
revoke any individual rights or obligations. The NPL is designed
primarily for informational purposes and to assist Agency management.
As mentioned in Section II of this Notice, 40 CFR 300.425 (e)(3) states
that deletion of a site from the NPL does not preclude eligibility for
future response actions.
For deletion of this site, EPA's Regional Office will accept and
evaluate public comments on EPA's Notice of Intent to Delete before
making a final decision to delete. The Agency will prepare a
Responsiveness Summary if significant public comments are offered.
A deletion occurs when the Regional Administrator places a final
notice in the Federal Register. Generally, the NPL will reflect
deletions in the final update following the Notice. Public notices and
copies of the Responsiveness Summary will be made available to local
residents by the Regional office.
IV. Basis for Intended Site Deletion
The following site summary provides the Agency's rationale for the
proposal to delete this site from the NPL:
The BPA/Ross Complex consists of a 235-acre tract in Clark County
on the eastern side of U.S. Highway 99. The site is an active facility
that has been owned and operated by the BPA since 1939 to coordinate
the distribution of hydroelectric power generated by the Federal
Columbia River Power System to regions throughout the Pacific
Northwest. Since its construction, the site has provided research and
testing facilities, maintenance and construction operations, and waste
storage and handling operations for BPA.
In November 1989 the EPA placed the BPA/Ross Complex on the NPL,
making it a Superfund site subject to the requirements of the
Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA). The listing was based on the presence of volatile organic
compounds (VOCs), Trichloroethane (TCA), Dichloroethene (DCE) in
groundwater, PCBs in surface soils, and the Ross Complex's proximity to
the City of Vancouver's drinking water supply. As a result of the
listing, and pursuant to a Federal Facility Agreement (FFA) signed by
BPA, EPA and the Washington Department of Ecology on May 1, 1990, BPA
conducted a Remedial Investigation/Feasibility Study (RI/FS) to
determine the nature and extent of contamination at the Ross Complex
and to evaluate alternatives for cleanup of contaminated areas.
To facilitate the Superfund investigation process, the site was
divided into two separate Operable Units (OUs), (OUA and OUB). The OUA
investigation focused on surface soil contamination. Of the 21 waste
units evaluated as part of the RI, the OUA Record of Decision (ROD)
signed on May 6, 1993, required remedial action for only 3 areas. A
total of 2,544 tons of contaminated soil was excavated and disposed at
an approved off-site landfill in Arlington, Oregon. PCB-contaminated
concrete footings and debris were also removed and disposed offsite.
Soils in the Wood Pole Storage Area East were treated by enhanced
bioremediation and then covered by a cap of clean gravel.
The OUB RI focused on characterization of subsurface soils in two
waste units and also included characterization of the shallow perched
water table, the deep groundwater aquifer beneath the Ross Complex, and
surface water and sediments in Cold Creek and Burnt Bridge Creek.
Perched water tables and the deep aquifer beneath the Ross Complex were
tested for a wide range of potential contaminants including VOC's,
pesticides, herbicides, metals, base neutral acids, PCB's, phenols,
phthalates and polycyclic aromatic hydrocarbons (PAH's). Based on the
findings of the RI, the OUB ROD signed on September 29, 1993, required
installation of a multi-layered permanent cap at the Fog Chamber Dump
Trench Area 1. Remedial action was not required for groundwater,
surface water or sediments.
EPA believes that the remedial actions taken at this site are
protective of human health and the environment and no further remedial
action under CERCLA is warranted. However, the OUB ROD requires
institutional controls for subsurface soils as well as groundwater
monitoring at several on-site wells to verify that groundwater
conditions remain adequately protective.
As previously stated, one of the three criteria for deletion
specifies that EPA may delete a site from the NPL if ``all appropriate
response under CERCLA has been implemented, and no further action by
responsible parties is appropriate.'' EPA, with concurrence of Ecology,
believes that this criterion for deletion has been met. Therefore, EPA
is proposing deletion of the BPA/Ross Complex site from the NPL.
Documents supporting this action are available at the designated
information repositories.
Dated: June 20, 1996.
Chuck Clarke,
Regional Administrator, Region 10.
[FR Doc. 96-17905 Filed 7-17-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-17904 Protection of Stratospheric Ozone: Reconsideration of the Ban on Fire Extinguishers Containing HCFCs
[Federal Register Volume 61, Number 139 (Thursday, July 18, 1996)]
[Proposed Rules]
[Pages 37429-37432]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17904]
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[[Page 37430]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 82
[FRL-5535-6]
RIN 2060-AG19
Protection of Stratospheric Ozone: Reconsideration of the Ban on
Fire Extinguishers Containing HCFCs
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: Through this action EPA is proposing to amend the Class II
Nonessential Products Ban promulgated under Section 610 of the Clean
Air Act Amendments to provide an exemption for portable fire
extinguishing equipment that contains hydrochlorofluorocarbons (HCFCs)
for non-residential applications. EPA is proposing this exemption based
on new information. EPA believes an exemption is necessary to ensure
that an effective substitute to halon, a class I ozone depleter, is
readily available.
EPA believes that this proposed amendment, while decreasing the
regulatory burden on HCFC extinguishant manufacturers and distributors,
will not compromise the goals of protecting public health and the
environment.
DATES: Comments on this proposal must be received by August 19, 1996 at
the address below. A public hearing, if requested, will be held in
Washington, DC. If such a hearing is requested, it will be held on
August 2, 1996, at 9 a.m., and the comment period would then be
extended to September 3, 1996. Anyone who wishes to request a hearing
should call Cindy Newberg at 202/233-9729 by July 25, 1996. Interested
persons may contact the Stratospheric Protection Hotline at 1-800-296-
1996 to learn if a hearing will be held and to obtain the date and
location of any hearing. Any hearing will be strictly limited to the
subject matter of this proposal, the scope of which is discussed below.
The proposed effective date for the changes to the regulatory
language would be 30 days after publication of the final rulemaking in
the Federal Register.
ADDRESSES: Comments on this proposal must be submitted to the Air
Docket Office, Public Docket No. A-93-20 VIII, Waterside Mall (Ground
Floor) Environmental Protection Agency, 401 M Street, SW., Washington,
DC 20460 in room M-1500. Additional comments and materials supporting
this rulemaking are contained in Public Docket No. A-93-20. Dockets may
be inspected from 8 a.m. until 5:30 p.m., Monday through Friday. A
reasonable fee may be charged for copying docket materials.
If a public hearing is convened, it will be held at 501 3rd Street,
NW., first floor conference room, Washington, DC.
FOR FURTHER INFORMATION CONTACT: Cindy Newberg, Program Implementation
Branch, Stratospheric Protection Division, Office of Atmospheric
Programs, Office of Air and Radiation (6205-J), 401 M Street, SW.,
Washington, DC 20460, (202)233-9729. The Stratospheric Ozone
Information Hotline at 1-800-296-1996 can also be contacted for further
information.
SUPPLEMENTARY INFORMATION: The contents of this preamble are listed in
the following outline:
I. Regulated Entities
II. Background
III. Portable Fire Extinguishers
IV. Summary of Supporting Analysis
A. Executive Order 12866
B. Unfunded Mandates Act
C. Paperwork Reduction Act
D. Regulatory Flexibility Act
I. Regulated Entities
Entities potentially regulated by this action are those that wish
to manufacturer, sell, or distribute in interstate commerce portable
fire extinguishers that contain hydrochlorofluorocarbons (HCFCs) for
non-residential applications. Regulated categories and entities
include:
------------------------------------------------------------------------
Examples of regulated
Category entities
------------------------------------------------------------------------
Industry.................................. Manufacturers of fire
extinguishants.
Manufacturers and
distributors of portable
fire extinguishers.
Fire protection specialists.
------------------------------------------------------------------------
This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by this
action. This table lists the types of entities that EPA is now aware
could potentially be affected by this action. Other types of entities
not listed in the table could also be affected. To determine whether
your company is regulated by this action, you should carefully examine
the applicability criteria contained in Section 610(d) of the Clean Air
Amendments of 1990; discussed in regulations published on December 30,
1993 (58 FR 69638); and discussed below. If you have questions
regarding the applicability of this action to a particular entity,
consult the person listed in the preceding FOR FURTHER INFORMATION
CONTACT section.
II. Background
In 1993, EPA promulgated a rulemaking to establish regulations that
implemented the statutory ban on nonessential products containing or
manufactured with class II ozone-depleting substances under Section
610(d) of the Clean Air Act Amendments of 1990 (58 FR 69638). This
final rule was developed by EPA to clarify definitions and to provide
exemptions, as authorized under Section 610(d). EPA was not required to
promulgate regulations since the ban was self-executing. The substances
affected by the Class II Ban are plastic foam products, aerosol
products and pressurized dispensers.
Section 610(d)(1) states that after January 1, 1994, ``it is
unlawful for any person to sell or distribute, or offer for sale or
distribution, in interstate commerce (A) any aerosol product or other
pressurized dispenser which contains a class II substance; or (B) any
plastic foam product which contains, or is manufactured with, a class
II substance.'' Section 610(d)(2) authorizes EPA to grant certain
exceptions and section 610(d)(3) creates exclusions from the class II
ban in certain circumstances.
Section 610(d)(2) authorizes the Administrator to grant exceptions
from the class II ban for aerosols and other pressurized dispensers
where ``the use of the aerosol product or pressurized dispenser is
determined by the Administrator to be essential as a result of
flammability or worker safety concerns,'' and where ``the only
available alternative to use of a class II substance is use of a class
I substance which legally could be substituted for such class II
substance.'' Section 610(d)(3) states that the ban of class II
substances in plastic foam products shall not apply to ``foam
insulation products'' or ``an integral skin, rigid, or semi-rigid foam
utilized to provide for motor vehicle safety in accordance with Federal
Motor Vehicle Safety Standards where no adequate substitute substance
(other than a class I or class II substance) is practicable for
effectively meeting such standards.'' For additional information
concerning this rulemaking and for a complete list of exempted and
excluded products, the reader should review the final regulations
published in the Federal Register December 30, 1993 (58 FR 69638).
These rules are also codified at 40 CFR Part 82 Subpart C.
III. Portable Fire Extinguishers
In the rulemaking, the Agency exempted from the Class II Ban the
use of HCFCs in portable fire extinguishers
[[Page 37431]]
until such time as ``suitable'' substitutes for HCFCs in this
application became ``commercially available'' (58 FR 69646). The
inclusion of fire extinguishers in the class II ban was intended to be
consistent with the class I ban, whereby CFCs used in fire
extinguishers were banned since suitable substitutes were commercially
available (January 15, 1993, 58 FR 4768). EPA distinguished between
total flooding fire suppression systems, which were not identified as
pressurized dispensers, and portable fire extinguishers, which the
Agency interpreted as falling into the category of pressurized
dispensers (58 FR 69647).
Since the Class II Ban became effective, EPA has learned new
information as to significant complications in determining broad
suitability of substitute fire extinguishants. EPA has received two
petitions requesting that the Agency reconsider the Class II Ban as it
relates to portable fire extinguishers. The first request for
reconsideration was submitted by Paul Huston and Associates on March
10, 1995. The second petition was submitted by Alcalde & Fay on behalf
of Halotron, Incorporated, and DuPont on June 22, 1995. Through these
petitions, subsequent verbal and written communications, and additional
research by the Agency, EPA has learned new and compelling information
concerning the availability of fire extinguishants suitable to replace
halon and CFCs in streaming applications.
Portable fire extinguishers for commercial applications present a
unique dilemma, for a variety of reasons. First, their specific
intended use is to protect human life and property. The fire
extinguishant is typically used only in response to a threat to life or
property. Second, one type of extinguishant is not universally suitable
for all situations, in that different types of fires, different
environments in which fires are potentially to be fought, and different
types of property being protected, each dictate a particular set of
characteristics, found in varying degrees in various extinguishants.
Third, the fire protection industry's codes, standards and regulations
are extremely complex, such that states and localities adopt standards
parallel to a national standard at vastly divergent times. Furthermore,
some states and localities have adopted different versions of fire
codes. Additionally, typical insurance industry requirements mandate
conformance with local codes before proper insurance coverage can be
obtained. Given these constraints, for purposes of section 610(d),
determining the suitability and thus, commercial availability, of a
substitute for use generally in portable fire extinguishers for non-
residential applications becomes extremely elusive.
EPA states that ``suitability of the agent implies that an agent is
commercially available, that a fire will be extinguished quickly, and
will result in minimum degradation of the products being protected from
the fire'' (58 FR 69648). EPA has interpreted commercial availability
to mean that the product is widely available for the desired
application and that its use is not precluded in certain situations
(i.e., because some local fire codes have not yet approved its use). In
addition to commercial availability, the portable fire extinguisher
must adequately extinguish the fire without causing undue harm to
persons and not destroy the property it is intended to protect. For
many typical commercial scenarios where halon was used in the past,
only clean agents such as HCFCs can achieve these fire protection
goals.
Suitability is interpreted to apply broadly throughout the nation,
such that no entity has precluded that product's use through regulation
or lack of regulatory modification. Without consistent standards
regarding the use of a substitute in place across the country, EPA
currently believes it would be nearly impossible to responsibly
determine that a substitute used in a non-residential portable fire
extinguisher was ``suitable'' and thus, that such HCFC fire
extinguishers should be subject to the ban.
A logical question one may ask is, ``How can EPA adequately
determine acceptability of potential fire extinguishant substitutes
pursuant to Section 612 of the Clean Air Act and also believe itself
unable to determine suitable fire extinguishant substitutes pursuant to
Section 610(d)?'' The answer lies in the degree of burden entailed in
EPA's determination. Under Section 610(d), the burden is on EPA to
actually decide that one kind of extinguishant cannot be exempted from
the ban by determining that the substitute will be just as effective
and available as the replaced extinguishant. Under Section 612, on the
other hand, the burden on EPA is merely to deem substitutes acceptable
if they do not present other health or environmental hazards. The
latter task does not extend to banning those substances that the
substitute claims to replace, nor does it include an examination of
efficacy. The rulemakings implementing Section 612 and establishing the
Significant New Alternatives Policy (SNAP) Program indicate that EPA
does not review a substitute's ability to effectively perform in the
same manner as the ozone depleter. EPA believes that banning a
substance (as required under Sec. 610(d)) used in the protection of
life and property, based on confusing information regarding the
suitability of the substitute, would be irresponsible.
When EPA promulgated the initial rulemaking that exempted products
from the class II ban in 1993, potential exemptions for other types of
pressurized dispensers that were considered and ultimately denied
usually were denied because there was a suitable substitute already
available and already in use for either the same or for a similar
application. Several of the substitutes were not-in-kind substitutes
and others required significant changes prior to replacing the ozone-
depleting substance with the substitute. Significantly, most of the
identified substitutes for these pressurized dispensers were proven
alternatives for the ozone depleter already used by others for a
similar endeavor. However, for portable fire extinguishers used in non-
residential applications, the potential non-ozone-depleting
replacements that are also clean agents, are not yet in use.
Many of those seeking to replace halon continue to require clean
agents. EPA states that ``non-halocarbon alternatives to Halon 1211 are
already in widespread use in selected commercial applications because
of their effectiveness, and due to the current regulatory climate,
their use has been increasingly adopted wherever possible'' (58 FR
69647). EPA believes where non-gaseous agents can be used, appropriate
consideration for these substitutes already occurs. However, the need
for the continued availability of gaseous agents commonly referred to
as clean agents was the basis for the limited exemption for HCFCs
contained in the initial rulemaking. EPA intended for this exemption to
expire after additional clean agents became available. However, as
stated above, SNAP does not review the efficacy of the acceptable
substitutes; therefore, EPA cannot rely on SNAP review to determine the
efficacy of potential clean agents for purposes of Section 610(d).
Furthermore, since the substitutes are not yet in use, EPA cannot rely
on the findings of other users.
Given that suitability and commercial availability cannot be
determined adequately for purposes of banning this product at this
time, today's action proposes replacing the limited exemption that
already exists with a
[[Page 37432]]
total exemption for portable fire extinguishers for non-residential
applications from the Class II Ban at this time. This change in the
regulatory language would simply serve to clarify the actual situation
for the regulated community and provide a consistent determination
regarding suitability based on current information. Furthermore, it
would relieve the regulated community from the burdensome task of
monitoring federal, state, and local activities concerning the review
of other substitutes and attempting to assess at what point the
standard of commercial availability has been achieved.
If at some future date, compelling information is brought to the
Agency's attention indicating that suitable substitutes are widely
available for fire extinguishing applications, EPA may ultimately
conclude that suitable substitutes are commercially available and
undertake appropriate notice and comment procedures to remove this
exemption. EPA requests comment on this proposal.
IV. Summary of Supporting Analysis
A. Executive Order 12866
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Agency must determine whether this regulatory action is ``significant''
and therefore subject to OMB review and the requirements of the
Executive Order. The Order defines ``significant'' regulatory action as
one that is likely to lead to a rule that may:
(1) Have an annual effect on the economy of $100 million or more,
or adversely and materially affect a sector of the economy,
productivity, competition, jobs, the environment, public health or
safety, or State, local, or tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlement, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
It has been determined by OMB and EPA that this proposed action to
amendment to the final rule is not a ``significant regulatory action''
under the terms of Executive Order 12866 and is therefore not subject
to OMB review under the Executive Order.
B. Unfunded Mandates Act
Section 202 of the Unfunded Mandates Reform Act of 1995 (``Unfunded
Mandates Act'') requires that the Agency prepare a budgetary impact
statement before promulgating a rule that includes a Federal mandate
that may result in expenditure by State, local, and tribal governments,
in aggregate, or by the private sector, of $100 million or more in any
one year. Section 203 requires the Agency to establish a plan for
obtaining input from and informing, educating, and advising any small
governments that may be significantly or uniquely affected by the rule.
Under section 205 of the Unfunded Mandates Act, the Agency must
identify and consider a reasonable number of regulatory alternatives
before promulgating a rule for which a budgetary impact statement must
be prepared. The Agency must select from those alternatives the least
costly, most cost-effective, or least burdensome alternative that
achieves the objectives of the rule, unless the Agency explains why
this alternative is not selected or the selection of this alternative
is inconsistent with law.
Because this NPRM is estimated to result in the expenditure by
State, local, and tribal governments or private sector of less than
$100 million in any one year, the Agency has not prepared a budgetary
impact statement or specifically addressed the selection of the least
costly, most cost-effective, or least burdensome alternative. Because
small governments will not be significantly or uniquely affected by
this rule, the Agency is not required to develop a plan with regard to
small governments. As discussed in this preamble, this NPRM proposes to
provide relieve by permitting the use of portable fire extinguishers
that contain HCFCs; and therefore, would increase the flexibility in
choosing a particular fire extinguishant thus reducing the net effect
of the burden of part 82 subpart C of the Stratospheric Protection
regulations on regulated entities, including State, local, and tribal
governments or private sector entities.
C. Paperwork Reduction Act
Any information collection requirements in a rule must be submitted
for approval to the Office of Management and Budget (OMB) under the
Paperwork Reduction Act, 44 U.S.C. 3501 et seq. Because no
informational collection requirements are proposed by today's action,
EPA has determined that the Paperwork Reduction Act does not apply to
this rulemaking and no Information Collection Request document has been
prepared.
D. Regulatory Flexibility Act
EPA has determined that is not necessary to prepare a regulatory
flexibility analysis in connection with this proposed rule. Any impact
this proposed rule will have on small entities will be to provide
relief from regulatory burdens. EPA has determined that this proposed
rule will not have a significant adverse economic impact on a
substantial number of small businesses.
List of Subjects in 40 CFR Part 82
Environmental protection, Administrative practice and procedure,
Air pollution control, Chemicals, Exports, Government procurement,
Imports, Labeling, Reporting and recordkeeping requirements.
Dated: July 3, 1996.
Carol M. Browner,
Administrator.
Title 40, Code of Federal Regulations, part 82, is amended to read
as follows:
PART 82--PROTECTION OF STRATOSPHERIC OZONE
1. The authority citation for part 82 continues to read as follows:
Authority: 42 U.S.C. 7414, 7601, 7671-7671q.
Sec. 82.62 [Amended]
2. Section 82.62 is amended by removing paragraphs (j) and (k).
Sec. 82.68 [Amended]
3. Section 82.68 is amended by removing and reserving paragraphs
(f) and (g).
4. Section 82.70 is amended by revising paragraph (a)(2)(vii) to
read as follows:
Sec. 82.70 Nonessential class II products and exceptions.
* * * * *
(a) * * *
(2) * * *
(vii) Portable fire extinguishing equipment used for non-
residential applications; and
* * * * *
[FR Doc. 96-17904 Filed 7-17-96; 8:45 am]
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