issue-1996-04-23•Federal Register proposed rules — 1996-04-23
Federal Register proposed rules — 1996-04-23
issue-1996-04-23Federal Register proposed rules — 1996-04-23Proposed 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. 96-9973 Hazardous Waste Treatment, Storage, and Disposal Facilities and Hazardous Waste Generators; Organic Air Emission Standards for Tanks, Surface Impoundments, and Containers
[Federal Register Volume 61, Number 79 (Tuesday, April 23, 1996)]
[Proposed Rules]
[Pages 17863-17864]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-9973]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 262, 264, 265, and 270
[IL-64-2-5807; FRL-5459-9]
Hazardous Waste Treatment, Storage, and Disposal Facilities and
Hazardous Waste Generators; Organic Air Emission Standards for Tanks,
Surface Impoundments, and Containers
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of data availability.
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SUMMARY: This notice announces the availability of additional data that
are being considered by the EPA in amending the air emission standards
for hazardous waste treatment, storage, and disposal facilities (TSDF)
that were published December 6, 1994 under the authority of the
Resource Conservation and Recovery Act (RCRA), as amended (59 FR
62896). This notice addresses the narrow issue of an Other Thermal
Treatment Facility subject to regulation under subpart P of Part 265
(40 CFR 265.370 through 265.383) being eligible to receive spent
activated carbon which is a hazardous waste. The additional data are
available for public inspection at the EPA RCRA Docket Office.
DATES: Comments on these additional data will be accepted through May
7, 1996.
DOCKET: The information referenced by today's notice is available for
public inspection and copying in the RCRA docket. The RCRA docket
numbers pertaining to this rulemaking are F-91-CESP-FFFFF, F-92-CESA-
FFFFF, F-94-CESF-FFFFF, F-94-CE2A-FFFFF, and F-95-CE3A-FFFFF. The RCRA
docket is located at Crystal Gateway, 1235 Jefferson Davis Highway,
First Floor, Arlington, Virginia. Hand delivery of items and review of
docket materials are made at the Virginia address. The public must have
an appointment to review docket materials. Appointments can be
scheduled by calling the Docket Office at (703) 603-9230. The mailing
address for the RCRA docket office is RCRA Information Center (5305W),
U. S. Environmental Protection Agency, 401 M Street SW., Washington, DC
20460.
COMMENTS: Written comments regarding these data may be mailed to the
Docket Clerk at the above-mentioned Washington, DC mailing address.
Please send an original and two copies of all comments, and refer to
Docket Number F-96-CE4A-FFFFF. The EPA will consider comments on the
additional data that are received through May 7, 1996.
FOR FURTHER INFORMATION CONTACT: For information about this notice and
the associated rulemaking contact the RCRA Hotline at (703) 412-9877 or
toll-free at 1-800-424-9346.
SUPPLEMENTARY INFORMATION: This notice is available on the EPA's Clean-
up Information Bulletin Board (CLU-IN). To access CLU-IN with a modem
of up to 28,800 baud, dial (301) 589-8366. First time users will be
asked to input some initial registration information. Next, select
``D'' (download) from the main menu. Input the file name ``RCRA-
NDA.496'' to download this notice. Follow the on-line instructions to
complete the download. More information about the download procedure is
located in Bulletin 104; to read this type ``B 104'' from the main
menu. For additional help with these instructions, telephone the CLU-IN
help line at (301) 589-8368.
On December 6, 1994, the EPA published in the Federal Register (59
FR 62896) under authority of the RCRA standards requiring the use of
air emission controls on certain tanks, surface impoundments, and
containers at hazardous waste TSDF. These standards are codified in 40
CFR parts 264 and 265 under subpart CC (referred to as the ``subpart CC
standards'').
This Notice of Data Availability addresses the appropriateness of
an Other Thermal Treatment Facility subject to regulation under subpart
P of Part 265 (40 CFR 265.370 through 265.383) being eligible to
receive spent activated carbon which is a hazardous waste. In the
December 6, 1994 final subpart CC standards (59 FR 62896), the EPA
established a requirement that spent activated carbon removed from a
control device had to be managed at particular types of facilities,
namely regulated incinerators, regulated boilers or industrial
furnaces, or ``thermal treatment units that [are] permitted under
subpart X of 40 CFR part 264 or subpart P of [Part 265]''. See 40 CFR
265.1033(l)(1) as promulgated at 59 FR at 62935 (Dec. 6, 1994). A
parallel requirement was contained in 40 CFR 264.1033(m), but no
reference to subpart P was included (59 FR at 62927). In the February
9, 1996 technical correction notice, the EPA amended these provisions
to clarify that they apply only to activated carbon which is a
hazardous waste, and that interim status incinerators and boilers and
industrial furnaces which had certified compliance could receive such
activated carbon. See 61 FR at 4910, 4911, and 4913. In so doing, the
EPA removed the reference to subpart P facilities in 265.1033(l)(1),
thus removing such facilities from eligibility to receive hazardous
waste spent activated carbon from interim status facilities, but did
not provide any explanation for this omission.
The Response to Comment Background Information Document to the
Final Rule does not completely clarify the EPA's intent. At one point
the EPA mentioned subpart P facilities as potentially eligible to
receive hazardous waste spent activated carbon (BID page 6-113 and
114), but at other points indicated that only other thermal treatment
units permitted under subpart X would be eligible (BID at 6-116 and
117).
After publication of the February 9 notice, the EPA received a
letter from a subpart P facility which reactivates spent activated
carbon questioning the omission of subpart P facilities from amended
265.1033(l). The EPA is noticing this letter, along with memoranda
documenting EPA's further contacts with the facility, for comment. The
EPA is also seeking comment on the following issues. The subpart CC
standards specify the types of facilities that can manage hazardous
waste spent activated carbon so that EPA can ensure that any adsorbed
hazardous organic
[[Page 17864]]
constituents released from the carbon are adequately controlled or
destroyed, rather than emitted to the atmosphere (BID page 6-115). It
is not clear that the subpart P standards, taken by themselves, provide
this assurance, since subpart P standards do not contain substantive
air emission controls. Thus, in addition to soliciting comment on the
information in the docket, the EPA solicits comment on whether some
further limitation should be necessary if subpart P facilities are to
be eligible. For example, should eligibility be limited to facilities
whose regeneration units provide adequate protection from the emission
of desorbed organics? If so, is it appropriate to require compliance
with subpart CC, or comparable controls to ensure such protection? The
EPA will consider all comments on the new data received by the close of
the comment period when making a final regulatory determination on the
regulatory requirements for this regulation.
This notice does not represent the only provision of the final
subpart CC standards which the EPA is considering revising. The EPA is
planning to publish technical amendments to the rule within the next
two months which will include revisions described in the August 14,
1995 Federal Register document entitled, ``Proposed rule; data
availability'' (60 FR 41870), as well as a finding on the issue
discussed in today's notice.
Dated: April 11, 1996.
Richard Wilson,
Acting Assistant Administrator for Air and Radiation.
[FR Doc. 96-9973 Filed 4-22-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-9937 West Virginia Permanent Regulatory Program
[Federal Register Volume 61, Number 79 (Tuesday, April 23, 1996)]
[Proposed Rules]
[Pages 17859-17861]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-9937]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 948
[WV-075-FOR]
West Virginia Permanent Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Proposed rule.
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SUMMARY: OSM is announcing the receipt of proposed amendments to the
West Virginia permanent regulatory program (hereinafter referred to as
the West Virginia program) under the Surface Mining Control and
Reclamation Act of 1977 (SMCRA). The amendments concern revisions to
the West Virginia Surface Mining Reclamation Regulations. The
amendments are intended to improve the clarity and effectiveness of the
West Virginia program, and to revise the State program to be consistent
with the corresponding Federal regulations.
DATES: Written comments must be received on or before 4:00 p.m. on May
23, 1996. If requested, a public hearing on the proposed amendments
will be held at 1:00 p.m. on May 20, 1996. Requests to present oral
testimony at the hearing must be received on or before 4:00 p.m. on May
8, 1996.
ADDRESSES: Written comments and requests to speak at the hearing should
be mailed or hand delivered to Mr. James C. Blankenship, Jr., Director,
Charleston Field Office at the address listed below.
Copies of the proposed amendment, the West Virginia program, and
the administrative record on the West Virginia program are available
for public review and copying at the addresses below, during normal
business hours, Monday through Friday, excluding holidays. Each
requester may receive one free copy of the proposed amendment by
contacting the OSM Charleston Field Office.
Mr. James C. Blankenship, Jr., Director, Charleston Field Office,
Office of Surface Mining Reclamation and Enforcement, 1027 Virginia
Street, East, Charleston, West Virginia 25301, Telephone: (304) 347-
7158
West Virginia Division of Environmental Protection, 10 McJunkin Road,
Nitro, West Virginia 25143, Telephone: (304) 759-0515.
In addition, copies of the proposed amendments are available for
inspection during regular business hours at the following locations:
Office of Surface Mining Reclamation and Enforcement, Morgantown Area
Office, 75 High Street, Room 229, P.O. Box 886, Morgantown, West
Virginia 26507, Telephone (304) 291-4004
Office of Surface Mining Reclamation and Enforcement, Beckley Area
Office, 323 Harper Park Drive, Suite 3, Beckley, West Virginia 25801,
Telephone (304) 255-5265.
FOR FURTHER INFORMATION CONTACT: Mr. James C. Blankenship, Jr.,
Director, Charleston Field Office; Telephone: (304) 347-7158.
SUPPLEMENTARY INFORMATION:
I. Background on the West Virginia Program
On January 21, 1981, the Secretary of the Interior conditionally
approved the West Virginia program. Background information on the West
Virginia program, including the Secretary's findings, the disposition
of comments, and the conditions of the approval can be found in the
January 21, 1981, Federal Register (46 FR 5915-5956). Subsequent
actions concerning the West Virginia program and previous amendments
are codified at 30 CFR 948.10, 948.12, 948.13, 948.15, and 948.16.
II. Discussion of the Proposed Amendment
By letter dated April 2, 1996 (Administrative Record Number WV-
1024), the West Virginia Division of Environmental Protection (WVDEP)
submitted an amendment to its approved permanent regulatory program
pursuant to 30b CFR 732.17. The amendment contains revisions to the
West Virginia Surface Mining Reclamation Regulations (CSR section 38-2-
1 et seq.).
The last time the State regulations were significantly revised was
on February 21, 1996. The Director partially approved the revisions in
the February 21, 1996, Federal Register (61 FR 6511-6537). See 30 CFR
948.15 for the provisions partially approved. See 30 CFR 948.16 for
required amendments.
Proposed Amendments
1. Section 38-2-2-106 Definition of ``Safety factor.'' This
definition is revised to mean the ratio of the sum of the resisting
forces to the sum of the loading or driving forces as determined by
acceptable engineering practices. Prior to this change, the term was
defined as the ratio of the sum of the resisting forces to the sum of
the loading forces.
2. Section 38-2-3.2(e) Readvertisement of permit applications. This
provision is amended by adding the phrase, ``that do not significantly
affect the health, safety or welfare of the public and,'' to the first
sentence. With this change, a limited number of minor
[[Page 17860]]
changes may be grouped and advertised in one additional notice if the
changes do not significantly affect the health, safety or welfare of
the public.
3. Section 38-2-2.6(h)(5) Certification of drainage/sediment
control structure designs. This provision is amended by changing a
cited reference concerning dams. ``Article 5D of Chapter 20'' is
deleted and replaced by ``Article 14 of Chapter 22.''
4. Section 38-2-3.8(c) Revision or reconstruction of existing
structures and support facilities. This provision is amended by adding
the following language: ``Provided, that those structures and
facilities, where it can be demonstrated that reconstruction or
revision would result in greater environmental harm and the performance
standards set forth in the Act and these regulations can otherwise be
met, may be exempt from revision or reconstruction.'' This amendment,
in effect, provides an alternative to requiring revision or
reconstruction of structures or support facilities in cases where
greater environmental harm would result from the revisions or
reconstruction.
5. Section 38-2-3.27 Permit renewals and extensions. The
introductory paragraph of this provision is amended by deleting the
work ``may'' and adding in its place the word ``shall.'' In addition,
language has been deleted that required all backfilling and grading be
completed within 60 days prior to the expiration date of the permit,
and that an application for Phase I bond release be filed prior to the
expiration date of the permit. As amended, the provision provides that
the Director of the Division of Environmental Protection (DEP) shall
waive the requirements for renewal if the permittee certifies in
writing that all coal extraction is completed, that all backfilling and
regrading will be completed and reclamation activities are ongoing.
6. Section 38-2-4.4 Infrequently used access road. This provision
is revised by deleting and adding rule citations. as amended,
infrequently used access roads may not be exempt from the requirements
of Secs. 38-2-4.2, 4.7(a), 4.8, 4.9, and 5.3.
7. Section 38-2-4.12 Certification of primary roads. This provision
is amended by deleting the requirement that changes documented in the
as-built plans be submitted to the Director of DEP as a permit
revision. In its place, the following language is added: ``If as-built
plans are submitted, the certification shall describe how and to what
extent the construction deviates from the proposed design, and shall
explain how and certify that the road will meet performance standards.
In effect, this amendments replaces a requirement that all changes
documented as-built plans be submitted as a permit revision, with a
requirement that when changes are certified, the certification shall
include an explanation and certification that the changes will meet
performance standards.
8. Section 38-2-5.4(c) Safety standards for embankment type
structures. The first paragraph of this provision is amended by
deleting the phrase ``which may include slurry impoundments.'' With
this amendment, the provision's safety standards apply to all
embankment type sediment control or other water retention structures.
9. Section 38-2-11.6(a) Review of permits for adequacy of bond.
This provision is amended to add a requirement that permits will not be
renewed until the appropriate amount of bond has been posted.
Also, subparagraphs (a) (2), (3), and (4) are deleted. These
subparagraphs provided that existing permits (for underground mines,
preparation plants, and coal refuse sites) shall be subject to the
site-specific bond criteria of Sec. 38-2-11.6 at the time of
application for renewal or mid-term review, shall not be renewed by the
Director of DEP until the appropriate amount of bond is posted. See the
first paragraph in 11.6(a) for language similar to that which is being
deleted.
10. Section 38-2-11.6( c)(6), (d)(6), (e)(5), (f)(5) Bond reduction
credits. These provisions are being amended to delete, in various
places, the phrase ``within five (5) years of the date of SMA
approval.'' In effect, the amount of bond reduction credits assigned is
no longer contingent upon the ``five years from the date of SMA
approval'' criterion.
11. Section 38-2-12.2(e) Bond release--chemical treatment. The
existing language of this provision is deleted and replaced by the
following:
Notwithstanding any other provisions of this rule, no bond
release or reduction will be granted if, at the time, water
discharged from or affected by the operation requires chemical
treatment in order to comply with applicable effluent limitations or
water quality standards; Provided, That the Director may approve a
request for Phase I but not Phase II or III, release if the
applicant demonstrates to the satisfaction of the Director that
either:
(A) The remaining bond is adequate to assure long term treatment
of the drainage; or
(B) The operator has irrevocably committed other financial
resources which are adequate to assure long term treatment of the
drainage; Provided, That the alternate financial resources must be
in acceptable form, and meet the standards set forth in Section 11
of the Act and Section 11 of these regulations; Provided, however,
That alternate financial arrangements shall provide a mechanism
whereby the Director can assume management of the resources and
treatment work in the event that the operator defaults for any
reason; And provided further, That default on a treatment obligation
under this paragraph shall be considered equivalent to a bond
forfeiture, and the operator will be subject to penalties and
sanctions, including permit blocking, as if a bond forfeiture had
occurred.
In order to make such demonstration as referenced above, the
applicant shall address, at a minimum, the current and projected
quantity and quality of drainage to be treated, the anticipated
duration of treatment, the estimated capital and operating cost of
the treatment facility, and the calculations which demonstrate the
adequacy of the remaining bond or of the alternate financial
resources.
In effect, the added language would allow, under the specified
circumstances, Phase I bond release on operations which require
chemical treatment in order to comply with applicable effluent
limitations or water quality standards.
The Director notes that the State's definition of ``chemical
treatment'' at Sec. 38-2-2.20 has only been partially approved by OSM.
Specifically, the language of the definition that excludes passive
treatment systems from being considered ``chemical treatment'' was not
approved to the extent that such passive treatment systems would be
applied in the context of Sec. 38-2-12.2(e) to authorize bond release
for sites with discharges that require passive treatment to meet
discharge standards. For a complete explanation of the partial
disapproval of the State's definition of ``chemical treatment,'' see
Finding B-2, in the February 21, 1996, Federal Register (61 FR 6511)
page 6517.
12. Section 38-2-14.14(e)(4) Valley fills--rock core chimney
drains. This provision is being amended by deleting the third sentence,
which concerns the control of surface water runoff, and replacing that
language with the following:
Surface water runoff from areas above and adjacent to the fill
shall be diverted into properly designed and constructed stabilized
diversion channels which have been designed using best current
technology to safely pass the peak runoff from a 1.0 year, 24-hour
precipitation event. The channel shall be designed and constructed
to ensure stability of the fill, control erosion, and minimize water
infiltration into the fill.
13. Section 38-2-14.15(m) Coal processing waste disposal. This
provision is being amended by deleting the prohibition at 14.15(m)(1)
that coal processing waste ``will not contain acid producing or toxic
forming material.'' A
[[Page 17861]]
new provision at 14.15(m)(2) is added to provide as follows:
(2) The coal processing waste will not be placed in the backfill
unless it has been demonstrated to the satisfaction of the Director
that: (A) the coal processing waste to be placed based upon
laboratory testing to be non-toxic and/or non-acid producing; or (B)
an adequate handling plan including alkaline additives has been
developed and the material after alkaline addition is non-toxic and/
or non-acid producing.
III. Public Comment Procedures
In accordance with the provisions of 30 CFR 732.17(h), OSM is now
seeking comments on the proposed amendments submitted by the State of
West Virginia to its permanent regulatory program. Specifically, OSM is
seeking comments on the revisions to the State's regulations that were
submitted on April 2, 1996 (Administrative Record No. WV-1024).
Comments should address whether the proposed amendments satisfy the
applicable program approval criteria of 30 CFR 732.15. If the
amendments are deemed adequate, they will become part of the West
Virginia program.
Written Comments
Written comments should be specific, pertain only to the issues
proposed in this rulemaking and include explanations in support of the
commenter's recommendations. Comments received after the time indicated
under DATES or at locations other than the OSM Charleston Field Office
will not necessarily be considered in the final rulemaking or included
in the Administrative Record.
Public Hearing
Persons wishing to testify at the public hearing should contact the
person listed under FOR FURTHER INFORMATION CONTACT by the close of
business on May 8, 1996. If no one requests an opportunity to testify
at the public hearing by that date, the hearing will not be held.
Filing of a written statement at the time of the hearing is
requested as it will greatly assist the transcriber. Submission of
written statements in advance of the hearing will allow OSM officials
to prepare adequate remarks and appropriate questions.
The public hearing will continue on the specified date until all
persons scheduled to testify have been heard. Persons in the audience
who have not been scheduled to testify, and who wish to do so, will be
heard following those scheduled. The hearing will end after all persons
scheduled to testify and persons present in the audience who wish to
testify have been heard.
Public Meeting
If only one person or group requests to testify at a hearing, a
public meeting, rather than a public hearing, may be held, and the
results of the meeting included in the Administrative Record.
Persons wishing to meet with OSM representatives to discuss the
proposed amendments may request a meeting at the OSM Charleston Field
Office listed under ADDRESSES by contacting the person listed under FOR
FURTHER INFORMATION CONTACT.
All such meetings will be open to the public and, if possible,
notices of meetings will be posted in advance at the locations listed
under ADDRESSES. A written summary of each public meeting will be made
a part of the Administrative Record.
IV. Procedural Determinations
Executive Order 12291
On July 12, 1984, the Office of Management and Budget (OMB) granted
OSM an exemption from sections 3, 4, 7 and 8 of Executive Order 12291
(Reduction of Regulatory Burden) for actions related to approval or
conditional approval of State regulatory programs, actions and program
amendments. Therefore, preparation of a regulatory impact analysis is
not necessary, and OMB regulatory review is not required.
Executive Order 12778
The Department of the Interior has conducted the reviews required
by section 2 of Executive Order 12778 (Civil Justice Reform) and has
determined that, to the extent allowed by law, this rule meets the
applicable standards of subsections (a) and (b) of that section.
However, these standards are not applicable to the actual language of
State regulatory programs and program amendments since each such
program is drafted and promulgated by a specific state, not by OSM.
Under sections 503 and 505 of the Surface Mining Control and
Reclamation Act (SMCRA) (30 U.S.C. 1253 and 1255) and 30 CFR 730.11,
732.15 and 732.17(h)(10), decisions on proposed State regulatory
programs and program amendments submitted by the States must be based
solely on a determination of whether the submittal is consistent with
SMCRA and its implementing Federal regulations and whether the other
requirements of 30 CFR parts 730, 731 and 732 have been met.
National Environmental Policy Act
No environmental impact statement is required for this rule since
section 702(d) of SMCRA [30 U.S.C. 1292(d)] provides that agency
decisions on proposed State regulatory program provisions do not
constitute major Federal actions within the meaning of section
102(2)(C) of the National Environmental Policy Act, 42 U.S.C.
4332(2)(C).
Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by the Office of Management and Budget under the
Paperwork Reduction Act, 44 U.S.C. 3507 et seq.
Regulatory Flexibility Act
The Department of the Interior has determined that this rule 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.).
The State submittal which is the subject of this rule is based upon
counterpart Federal regulations for which an economic analysis was
prepared and certification made that such regulations would not have a
significant economic effect upon a substantial number of small
entities. Accordingly, this rule will ensure that existing requirements
previously promulgated by OSM will be implemented by the State. In
making the determination as to whether this rule would have a
significant economic impact, the Department relied upon the data and
assumptions for the counterpart Federal regulations.
List of Subjects in 30 CFR Part 948
Intergovernmental relations, Surface mining, Underground mining.
Dated: April 12, 1996.
Allen D. Klein,
Regional Director, Appalachian Regional Coordinating Center.
[FR Doc. 96-9937 Filed 4-22-96; 8:45 am]
BILLING CODE 4310-05-M
Complete official Federal Register PDF
FR Doc. 96-9934 Airworthiness Directives; Empresa Brasileira de Aeronautica, S.A. (EMBRAER) Model EMB-120 Series Airplanes
[Federal Register Volume 61, Number 79 (Tuesday, April 23, 1996)]
[Proposed Rules]
[Pages 17853-17855]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-9934]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 39
[Docket No. 95-NM-192-AD]
Airworthiness Directives; Empresa Brasileira de Aeronautica, S.A.
(EMBRAER) Model EMB-120 Series Airplanes
AGENCY: Federal Aviation Administration, DOT.
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: This document proposes the adoption of a new airworthiness
directive (AD) that is applicable to certain EMBRAER Model EMB-120
series airplanes. This proposal would require repetitive inspections to
detect cracks in the wing rib-to-skin support brackets (shear clips),
and replacement of cracked brackets with new or serviceable brackets.
This proposal also would require the eventual replacement of certain
brackets with new brackets, which would terminate the requirement for
the inspections. This proposal is prompted by reports of cracks in the
wing rib-to-skin support brackets in both the lower and upper skin of
the wings. The actions specified by the proposed AD are intended to
prevent cracking of those support brackets, which can subsequently lead
to the loosening of the rivets in the wing skin, leakage of fuel
through the rivet holes, and, ultimately, the reduction of the
structural integrity of the wing.
DATES: Comments must be received by June 3, 1996.
ADDRESSES: Submit comments in triplicate to the Federal Aviation
Administration (FAA), Transport Airplane Directorate, ANM-103,
Attention: Rules Docket No. 95-NM-192-AD, 1601 Lind Avenue SW., Renton,
Washington 98055-4056. Comments may be inspected at this location
between 9:00 a.m. and 3:00 p.m., Monday through Friday, except Federal
holidays. -
The service information referenced in the proposed rule may be
obtained from EMBRAER, Empresa Brasileira De Aeronautica S/A, Sao Jose
dos Campos - SP, Brazil. This information may be examined at the FAA,
Transport Airplane Directorate, 1601 Lind Avenue SW., Renton,
Washington.
FOR FURTHER INFORMATION CONTACT: Curtis Jackson, Aerospace Engineer,
Airframe and Propulsion Branch, ACE-117A, FAA, Atlanta Aircraft
Certification Office, Small Airplane Directorate, Campus Building, 1701
Columbia Avenue, Suite 2-160, College Park, Georgia 30337-2748;
telephone (404) 305-7358; fax (404) 305-7348.
SUPPLEMENTARY INFORMATION:
Comments Invited -
Interested persons are invited to participate in the making of the
proposed rule by submitting such written data, views, or arguments as
they may desire. Communications shall identify the Rules Docket number
and be submitted in triplicate to the address specified above. All
communications received on or before the closing date for comments,
specified above, will be considered before taking action on the
proposed rule. The proposals contained in this notice may be changed in
light of the comments received. -
Comments are specifically invited on the overall regulatory,
economic, environmental, and energy aspects of the proposed rule. All
comments submitted will be available, both before and after the closing
date for comments, in the Rules Docket for examination by interested
persons. A report summarizing each FAA-public contact concerned with
the substance of this proposal will be filed in the Rules Docket. -
Commenters wishing the FAA to acknowledge receipt of their comments
submitted in response to this notice must submit a self-addressed,
stamped postcard on which the following statement is made: ``Comments
to Docket Number 95-NM-192-AD.'' The postcard will be date stamped and
returned to the commenter.
Availability of NPRMs -
Any person may obtain a copy of this NPRM by submitting a request
to the FAA, Transport Airplane Directorate, ANM-103, Attention: Rules
Docket No. 95-NM-192-AD, 1601 Lind Avenue SW., Renton, Washington
98055-4056.
Discussion -
The Departamento de AviaCao Civil (DAC), which is the airworthiness
authority for Brazil, recently notified the FAA that an unsafe
condition may exist on certain EMBRAER Model EMB-120 series airplanes.
The DAC advises that it has received reports of cracks in the rib-to-
skin fitting brackets (shear clips) both in the lower and upper skin of
the wings on Model EMB-120 series airplanes. The development of
cracking of the shear clips can occur in the wing skin riveting line
and can cause the complete failure of the ledge of the shear clips,
resulting in separation of the skin from the shear clip on the affected
area. Although there are several shear clips per rib, the simultaneous
occurrence of cracking in several shear clips will affect the wing's
structural integrity. The cause of the cracking is attributed to
fatigue. Cracking of those support brackets can cause rivets in the
wing skin to loosen and, consequently, permit fuel to leak into the
wing through the rivet holes. Propagation of such cracking, if not
corrected, could reduce the structural integrity of the wing and permit
fuel leakage into the wing.
EMBRAER has issued Service Bulletin (SB) 120-57-0031, dated July 6,
1995, which describes procedures for repetitive internal visual
inspections to detect cracks in the wing rib-to-skin support brackets
(shear clips), and replacement of cracked brackets with new or
serviceable parts. The service
[[Page 17854]]
bulletin also describes procedures for a terminating action for the
repetitive inspections. That action involves replacement of all wing
rib-to-skin support brackets of ribs 15 and 16 with brackets having a
new part number; inspection to detect cracking of the wing skin support
brackets of ribs 18, 19, 20, 21, and 22; and replacement of cracked
brackets with new or serviceable brackets having the same part number.
The DAC classified this service bulletin as mandatory and issued
Brazilian airworthiness directive (DA) 95-05-01 R1, dated August 25,
1995, in order to assure the continued airworthiness of these airplanes
in Brazil . -
This airplane model is manufactured in Brazil and is type
certificated for operation in the United States under the provisions of
section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and
the applicable bilateral airworthiness agreement. Pursuant to this
bilateral airworthiness agreement, the DAC has kept the FAA informed of
the situation described above. The FAA has examined the findings of the
DAC, reviewed all available information, and determined that AD action
is necessary for products of this type design that are certificated for
operation in the United States. -
Since an unsafe condition has been identified that is likely to
exist or develop on other airplanes of the same type design, the
proposed AD would require repetitive internal visual inspections to
detect cracks in the wing rib-to-skin support brackets (shear clips).
If cracks are found that are within certain limits (in length), this
proposed AD would permit flights to continue, but the inspections would
be required to be conducted more often. If cracks are found that are
outside certain limits, the bracket would be required to be replaced
prior to further flight, and additional inspection of other adjacent
support brackets would be required to be accomplished. This proposed AD
also would require that all wing rib to skin support brackets of ribs
15 and 16 be replaced with new brackets. This replacement would
constitute terminating action for the required inspections. The actions
would be required to be accomplished in accordance with the service
bulletin described previously. -
Operators should note that, in addition to the inspection for
cracking of the wing skin brackets recommended in the referenced
Embraer service bulletin, this proposed AD would require that a
repetitive visual inspection of the wing skin for fuel leakage be
accomplished within every 50 flight hours until the terminating action
has been accomplished. The FAA finds that inspections for such fuel
leakage [fuel leakage as defined and classified in the Airplane
Maintenance Manual (AMM)] are necessary to provide an indication of the
urgency of need to inspect for cracking of the wing skin brackets. -
The FAA estimates that 169 airplanes of U.S. registry would be
affected by this proposed AD. -
It would take approximately 6 work hours per airplane to accomplish
the proposed visual inspection for cracking, at an average labor rate
of $60 per work hour. Based on these figures, the cost impact of this
proposed inspection action on U.S. operators is estimated to be
$60,840, or $360 per airplane, per inspection cycle. -
It would take approximately 56 work hours to accomplish the
proposed replacement of support brackets, at an average labor rate of
$60 per work hour. Required parts would cost approximately $1,000 per
airplane. Based on these figures, the cost impact of the proposed
replacement on U.S. operators is estimated to be $736,840, or $4,360
per airplane.
The cost impact figures discussed above are based on assumptions
that no operator has yet accomplished any of the requirements of this
proposed AD, and that no operator would accomplish those actions in the
future if this proposal were not adopted. However, the FAA has been
advised that the terminating modification already has been installed on
a number of airlines that are subject to this AD. Therefore, the future
economic cost impact of this rule on U.S. operators is expected to be
less than the cost impact figures indicated above.
The regulations proposed herein would not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this
proposal would not have sufficient federalism implications to warrant
the preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this proposed
regulation (1) is not a ``significant regulatory action'' under
Executive Order 12866; (2) is not a ``significant rule'' under the DOT
Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
and (3) if promulgated, will not have a significant economic impact,
positive or negative, on a substantial number of small entities under
the criteria of the Regulatory Flexibility Act. A copy of the draft
regulatory evaluation prepared for this action is contained in the
Rules Docket. A copy of it may be obtained by contacting the Rules
Docket at the location provided under the caption ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Safety.
The Proposed Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration proposes to amend
part 39 of the Federal Aviation Regulations (14 CFR part 39) as
follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 USC 106(g), 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by adding the following new
airworthiness directive:
EMBRAER: Docket 95-NM-192-AD.
Applicability: Model EMB-120 airplanes, serial numbers 120001,
120003, 120004, and 120006 through 120304 inclusive; certificated in
any category.
Note 1: This AD applies to each airplane identified in the
preceding applicability provision, regardless of whether it has been
otherwise modified, altered, or repaired in the area subject to the
requirements of this AD. For airplanes that have been modified,
altered, or repaired so that the performance of the requirements of
this AD is affected, the owner/operator must request approval for an
alternative method of compliance in accordance with paragraph (e) of
this AD. The request should include an assessment of the effect of
the modification, alteration, or repair on the unsafe condition
addressed by this AD; and, if the unsafe condition has not been
eliminated, the request should include specific proposed actions to
address it.
Compliance: Required as indicated, unless accomplished
previously.
To prevent reduced wing structural integrity and fuel leakage of
the wing due to cracking of wing rib-to-skin support brackets,
accomplish the following:
Note 2: The term ``fuel leakage'' and ``stain,'' as used
throughout this AD, are used as they are defined and classified in
Chapter 28, Fuel, of the Airplane Maintenance Manual (AMM).
(a) Within 10 days after the effective date of this AD: Perform
a visual inspection of the wing skin along rib lines 15 and 16 to
detect any fuel leakage other than a stain. Thereafter, repeat this
inspection every 50 flight hours until the requirements of paragraph
(d) of this AD have been accomplished.
(b) For airplanes on which fuel leakage is detected during any
inspection required by
[[Page 17855]]
paragraph (a) of this AD: Within 50 flights after detection of fuel
leakage; perform an internal visual inspection to detect cracking of
the wing rib-to-skin support brackets (shear clips) that connect the
lower and upper wing skins to ribs 15 and 16, in accordance with the
Accomplishment Instructions of EMBRAER Service Bulletin 120-57-0031,
dated July 6, 1995, at the time specified in paragraph (b)(1),
(b)(2), or (b)(3) of this AD, as applicable.
(1) If no cracking is detected: Repeat the internal visual
inspection required by paragraph (b) of this AD thereafter at
intervals not to exceed 1,200 flight cycles until the requirements
of paragraph (d) of this AD have been accomplished. -
(2) If any cracking is detected in only one wing skin support
bracket and that cracking is more than half the length of the
bracket; and if any cracking also is detected in up to two
additional wing skin support brackets and that cracking is less than
half the length of the bracket: Repeat the internal visual
inspection required by paragraph (b) of this AD thereafter at
intervals not to exceed 400 flight cycles, until the requirements of
paragraph (d) of this AD have been accomplished. -
(3) If any cracking is detected other than that specified in
paragraph (b)(2) of this AD: Prior to further flight, replace any
support bracket that is cracked beyond the limits specified in
paragraph (b)(2) of this AD with a new bracket, in accordance with
the Accomplishment Instructions of the service bulletin. Following
any replacement, prior to further flight, perform an additional
internal visual inspection to detect cracking of the support
brackets that connect the wing skins to ribs 18, 19, 20, 21, and 22
in accordance with the service bulletin. -
(i) If no cracking is found, repeat the internal visual
inspection required by paragraph (b) of this AD thereafter at
intervals not to exceed 1,200 flight cycles until the requirements
of paragraph (d) of this AD are accomplished. -
(ii) If any cracking is found, prior to further flight, replace
any cracked bracket with a serviceable part, in accordance with the
service bulletin. -
(c) For airplanes on which no wing fuel leakage is detected
during any inspection required by paragraph (a) of this AD: Perform
an internal visual inspection to detect cracking of the wing rib-to-
skin support brackets (shear clips) that connect the lower and upper
wing skins to ribs 15 and 16, in accordance with the Accomplishment
Instructions of EMBRAER Service Bulletin 120-57-0031, dated July 6,
1995, at the time specified in paragraph (c)(1), (c)(2), (c)(3), or
(c)(4) of this AD, as applicable. Thereafter, repeat this inspection
as intervals not to exceed 1,200 flight cycles until the
requirements of paragraph (d) of this AD are accomplished. -
(1) For airplanes that have accumulated less than 4,000 total
flight cycles as of the effective date of this AD: Inspect prior to
the accumulation of 5,200 total flight cycles, or within 1,200
flight cycles after the effective date of this AD, whichever occurs
later. -
(2) For airplanes that have accumulated 4,000 or more total
flight cycles, but less than 8,000 total flight cycles as of the
effective date of this AD: Inspect within 1,200 flight cycles after
the effective date of this AD. -
(3) For airplanes that have accumulated 8,000 or more total
flight cycles, but less than 12,000 total flight cycles as of the
effective date of this AD: Inspect within 800 flight cycles after
the effective date of this AD. -
(4) For airplanes that have accumulated 12,000 or more total
flight cycles as of the effective date of this AD: Inspect within
400 flight cycles after the effective date of this AD. -
(d) Within 2 years after the effective date of this AD: Replace
all wing rib-to-skin support brackets of ribs 15, 16, and 18 with
new brackets in accordance with EMBRAER Service Bulletin 120-57-
0031, dated July 6, 1995. Prior to further flight following the
replacement, perform a visual inspection to detect cracking of the
wing skin support brackets of ribs 19, 20, 21, and 22. If any
cracking is found, prior to further flight, replace cracked brackets
with serviceable brackets in accordance with the service bulletin.
Accomplishment of these requirements constitutes terminating action
for the requirements of this AD. -
(e) An alternative method of compliance or adjustment of the
compliance time that provides an acceptable level of safety may be
used if approved by the Manager, Atlanta Aircraft Certification
Office (ACO), FAA, Small Airplane Directorate. Operators shall
submit their requests through an appropriate FAA Principal
Maintenance Inspector, who may add comments and then send it to the
Manager, Atlanta ACO. -
Note 3: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Atlanta ACO.
-(f) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the airplane to a location where
the requirements of this AD can be accomplished.
Issued in Renton, Washington, on April 17, 1996.
Darrell M. Pederson,
Acting Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-9934 Filed 4-22-96; 8:45 am]
BILLING CODE 4910-13-U
Complete official Federal Register PDF
FR Doc. 96-9933 Airworthiness Directives; de Havilland Model DHC-8-301, -311, and -315 Series Airplanes
[Federal Register Volume 61, Number 79 (Tuesday, April 23, 1996)]
[Proposed Rules]
[Pages 17855-17857]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-9933]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 95-NM-268-AD]
Airworthiness Directives; de Havilland Model DHC-8-301, -311, and
-315 Series Airplanes
AGENCY: Federal Aviation Administration, DOT.
ACTION: Notice of proposed rulemaking (NPRM).
-----------------------------------------------------------------------
SUMMARY: This document proposes the supersedure of an existing
airworthiness directive (AD), applicable to certain de Havilland Model
DHC-8-301, -311, and -315 series airplanes, that currently requires
modification of the airspeed limitations placard and revision of the
Airplane Flight Manual to specify operating at lower airspeeds when the
airplane is operating at full flaps. That action also provides for the
optional termination of the requirements of the AD for certain
airplanes. That action was prompted by a report that incorrect rivets
were installed on the outboard flaps assemblies of these airplanes. The
actions specified in that AD are intended to prevent structural failure
of the outboard flaps of the wings due to the installation of incorrect
rivets in the flap assemblies, which could result in reduced
controllability of the airplane. This action would require installation
of the terminating modification on certain airplanes.
DATES: Comments must be received by June 3, 1996.
ADDRESSES: Submit comments in triplicate to the Federal Aviation
Administration (FAA), Transport Airplane Directorate, ANM-103,
Attention: Rules Docket No. 95-NM-268-AD, 1601 Lind Avenue SW., Renton,
Washington 98055-4056. Comments may be inspected at this location
between 9:00 a.m. and 3:00 p.m., Monday through Friday, except Federal
holidays.
The service information referenced in the proposed rule may be
obtained from Bombardier, Inc., Bombardier Regional Aircraft Division,
Garratt Boulevard, Downsview, Ontario M3K 1Y5, Canada. This information
may be examined at the FAA, Transport Airplane Directorate, 1601 Lind
Avenue, SW., Renton, Washington; or at the FAA, New York Aircraft
Certification Office, Engine and Propeller Directorate, 10 Fifth
Street, Third Floor, Valley Stream, New York.
FOR FURTHER INFORMATION CONTACT: Franco Pieri, Aerospace Engineer,
Airframe Branch (ANE-171), FAA, New York Aircraft Certification Office,
Engine and Propeller Directorate, 10 Fifth Street, Third Floor, Valley
Stream, New York 11581; telephone (516) 256-7526; fax (516) 568-2716.
SUPPLEMENTARY INFORMATION:
Comments Invited
Interested persons are invited to participate in the making of the
proposed rule by submitting such written data, views, or arguments as
they may desire. Communications shall identify the Rules Docket number
and be submitted in triplicate to the address specified above. All
communications received on or before the closing date for comments,
specified above, will be
[[Page 17856]]
considered before taking action on the proposed rule. The proposals
contained in this notice may be changed in light of the comments
received.
Comments are specifically invited on the overall regulatory,
economic, environmental, and energy aspects of the proposed rule. All
comments submitted will be available, both before and after the closing
date for comments, in the Rules Docket for examination by interested
persons. A report summarizing each FAA-public contact concerned with
the substance of this proposal will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments
submitted in response to this notice must submit a self-addressed,
stamped postcard on which the following statement is made: ``Comments
to Docket Number 95-NM-268-AD.'' The postcard will be date stamped and
returned to the commenter.
Availability of NPRMs
Any person may obtain a copy of this NPRM by submitting a request
to the FAA, Transport Airplane Directorate, ANM-103, Attention: Rules
Docket No. 95-NM-268-AD, 1601 Lind Avenue, SW., Renton, Washington
98055-4056.
Discussion
On December 22, 1995, the FAA issued AD 95-26-17, amendment 39-9475
(61 FR 5277, February 12, 1996), applicable to certain de Havilland
Model DCH-8-301, -311, and -315 series airplanes, to require
modification of the airspeed limitations placard to indicate that the
airplane must be flown at reduced airspeed when flying at 35 degrees
flaps. Additionally, that AD requires a revision to the FAA-approved
Airplane Flight Manual (AFM) for all airplanes to include information
relative to reducing airspeed at 35 degrees flaps. For Model DHC-8-311
and -315 series airplanes, that AD also provides for an optional
termination action for the requirements of the AD by modifying the
outboard flaps (installation of Modification 8/2066).
That action was prompted by a report that incorrect rivets were
installed on the outboard flaps assemblies of these airplanes. The
actions specified in that AD are intended to prevent structural failure
of the outboard flaps of the wings due to the installation of incorrect
rivets in the flap assemblies, which could result in reduced
controllability of the airplane.
In the preamble to AD 95-26-17, the FAA indicated that it regarded
the requirements of that AD to be interim action, and that it was
considering additional rulemaking to mandate the optional terminating
action that was provided in that AD. This notice follows from the FAA's
decision to mandate that terminating action.
Description of Pertinent Service Information
De Havilland has issued Service Bulletin S.B. 8-57-24, Revision
`A,' dated September 26, 1995, which describes installation of
Modification 8/2066 at the outboard flaps. That modification entails
drilling out the suspect rivets and installing new DD rivets. The
modification positively addresses the previously identified unsafe
condition associated with the suspect rivets, and accomplishment of it
eliminates the need for the airspeed limitations placard (which was the
subject of AD 95-26-17). This modification, however, is applicable only
to Model DHC-8-311 and -315 series airplanes; a corrective modification
has not yet been developed for Model DHC-8-301 series airplanes.
Transport Canada classified the de Havilland service bulletin as
mandatory and issued Canadian airworthiness directive CF-95-05R1, dated
October 19, 1995, in order to assure the continued airworthiness of
these airplanes in Canada.
Description of the Proposed Requirements
This airplane model is manufactured in Canada and is type
certificated for operation in the United States under the provisions of
section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and
the applicable bilateral airworthiness agreement. Pursuant to this
bilateral airworthiness agreement, Transport Canada Aviation has kept
the FAA informed of the situation described above. The FAA has examined
the findings of Transport Canada Aviation, reviewed all available
information, and determined that AD action is necessary for products of
this type design that are certificated for operation in the United
States.
Since an unsafe condition has been identified that is likely to
exist or develop on other airplanes of the same type design registered
in the United States, the proposed AD would supersede AD 95-26-17.
For Model DHC-8-301 series airplanes, it would continue to require
modification of the airspeed limitations placard and revision of the
AFM to specify operating at lower airspeeds when the airplane is
operating at full flaps. -
For Model DHC-8-311 and -315 series airplanes, it would require
that the terminating modification (Modification 8/2066) be installed on
within two years. The modification would be required to be accomplished
in accordance with the service bulletin described previously. Once the
modification is installed, the currently-required placard and AFM
revision may be removed. Additionally, this proposal would require that
Modification 8/2066 be installed on certain outboard flap assemblies
prior to their installation on these airplanes. -
The FAA has determined that long term continued operational safety
will be better assured by design changes to remove the source of the
problem, rather than by special operating procedures. Long term special
operating procedures may not be providing the degree of safety
assurance necessary for the transport airplane fleet. This, coupled
with a better understanding of the human factors associated with
numerous continual special procedures, has led the FAA to consider
placing less emphasis on special procedures and more emphasis on design
improvements. The proposed modification requirement of this AD action
is in consonance with these considerations.
Cost Impact -
There are approximately 18 de Havilland Model DHC-8-301, -311, and
-315 series airplanes of U.S. registry would be affected by this
proposed AD. -
The actions that are currently required by AD 95-26-17
(modification of the airspeed limitations placard and revision of the
Airplane Flight Manual) affect all 18 U.S.-registered airplanes. Those
actions take approximately .5 work hour per airplane to accomplish, at
an average labor rate of $60 per work hour. The cost of required parts
is negligible. Based on these figures, the cost impact on U.S.
operators of the actions currently required is estimated to be $540, or
$30 per airplane. -
The new actions that are proposed in this AD action (installation
of the terminating modification) would affect 14 U.S.-registered Model
DHC-8-311 and -315 series airplanes. The proposed actions would take
approximately 60 work hours per airplane to accomplish, at an average
labor rate of $60 per work hour. Required parts would be provided by
the manufacturer at no cost to operators. Based on these figures, the
cost impact on U.S. operators of the proposed requirements of this AD
is estimated to be $50,400, or $3,600 per airplane. -
The cost impact figures discussed above are based on assumptions
that no operator has yet accomplished any of
[[Page 17857]]
the current or proposed requirements of this AD action, and that no
operator would accomplish those actions in the future if this AD were
not adopted.
Regulatory Impact -
The regulations proposed herein would not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this
proposal would not have sufficient federalism implications to warrant
the preparation of a Federalism Assessment. -
For the reasons discussed above, I certify that this proposed
regulation (1) is not a ``significant regulatory action'' under
Executive Order 12866; (2) is not a ``significant rule'' under the DOT
Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
and (3) if promulgated, will not have a significant economic impact,
positive or negative, on a substantial number of small entities under
the criteria of the Regulatory Flexibility Act. A copy of the draft
regulatory evaluation prepared for this action is contained in the
Rules Docket. A copy of it may be obtained by contacting the Rules
Docket at the location provided under the caption ADDRESSES.
List of Subjects in 14 CFR Part 39 -
Air transportation, Aircraft, Aviation safety, Safety.
The Proposed Amendment -
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration proposes to amend
part 39 of the Federal Aviation Regulations (14 CFR part 39) as
follows:
PART 39--AIRWORTHINESS DIRECTIVES -
1. The authority citation for part 39 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40113, 44701.
Sec. 39.13 [Amended] -
2. Section 39.13 is amended by removing amendment 39-9475 (61 FR
5277, February 12, 1996), and by adding a new airworthiness directive
(AD), to read as follows:
De Havilland, Inc.: Docket 95-NM-268-AD. Supersedes AD 95-26-17,
amendment 39-9475.
-Applicability: Model DHC-8-301, -311, and -315 series
airplanes; as listed in de Havilland Service Bulletin S.B. 8-57-24,
Revision `A', dated September 26, 1995; certificated in any
category.
Note 1: This AD applies to each airplane identified in the
preceding applicability provision, regardless of whether it has been
otherwise modified, altered, or repaired in the area subject to the
requirements of this AD. For airplanes that have been modified,
altered, or repaired so that the performance of the requirements of
this AD is affected, the owner/operator must request approval for an
alternative method of compliance in accordance with paragraph (f) of
this AD. The request should include an assessment of the effect of
the modification, alteration, or repair on the unsafe condition
addressed by this AD; and, if the unsafe condition has not been
eliminated, the request should include specific proposed actions to
address it. -
Compliance: Required as indicated, unless accomplished
previously. -
(a) Within 30 days after February 27, 1996 (the effective date
of AD 95-26-17, amendment 39-9475, accomplish the modification of
the airspeed limitation placards (Modification 8/2498) in accordance
with de Havilland Service Bulletin S.B. 8-57-24, Revision `A', dated
September 26, 1995. -
(b) Prior to further flight following accomplishment of the
modification required by paragraph (a) of this AD, revise the
Limitations Section of the FAA-approved Airplane Flight Manual (AFM)
by accomplishing either paragraph (b)(1) or (b)(2) of this AD, as
applicable; and operate the airplane in accordance with those
limitations. -
(1) For Model DHC-8-301 series airplanes: Include the
information specified in DHC-8 Model 301 Flight Manual, PSM 1-83-1A,
Flight Manual Revision 57, dated September 26, 1995, which specifies
a lower airspeed limitation at full flaps. This may be accomplished
by inserting a copy of Flight Manual Revision 57 into the AFM. -
(2) For Model DHC-8-311 and -315 series airplanes: Include the
following statement in section 2, paragraph 2.4.1.2., of the AFM.
This may be accomplished by inserting a copy of this AD in the AFM.
``Flap extended speed (VFE): Flaps 35 degrees 130 knots
IAS'' -
(c) For Model DHC-8-311 and -315 series airplanes: Within 2
years after the effective date of this AD, install Modification 8/
2066 in accordance with de Havilland Service Bulletin S.B. 8-57-24,
Revision `A', dated September 26, 1995. Such installation
constitutes terminating action for the requirements of paragraphs
(a) and (b) of this AD.
Following accomplishment of Modification 8/2066, the airspeed
limitations placard (Modification 8/2498) required by paragraph (a)
of this AD and the AFM limitation required by paragraph (b) of this
AD may be removed. -
(d) Except as required by paragraph (e) of this AD: As of
February 27, 1996 (the effective date of AD 95-26-17, amendment 39-
9475), Modification 8/2498 must be accomplished in accordance with
de Havilland Service Bulletin S.B. 8-57-24, Revision `A', dated
September 26, 1995, prior to installation of any outboard flap
assembly having a part number and serial number that is listed in de
Havilland Service Bulletin S.B. 8-57-24, Revision `A', dated
September 26, 1995. -
(e) For Model DHC-8-311 and -315 series airplanes: As of two
years after the effective date of this AD, prior to the installation
of any outboard flap assembly having a part number and serial number
that is listed in de Havilland Service Bulletin S.B. 8-57-24,
Revision `A', dated September 26, 1995, install Modification 8/2066
on the affected flap assembly in accordance with that service
bulletin. Installation of this modification terminates the
requirements specified in paragraphs (a), (b), and (d) of this AD. -
(f) An alternative method of compliance or adjustment of the
compliance time that provides an acceptable level of safety may be
used if approved by the Manager, New York Aircraft Certification
Office (ACO), FAA, Engine and Propeller Directorate. Operators shall
submit their requests through an appropriate FAA Principal
Maintenance Inspector, who may add comments and then send it to the
Manager, New York ACO.
-Note 3: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the New York ACO. -
(g) Special flight permits may be issued in accordance with
Secs. 21.197 and 21.199 of the Federal Aviation Regulations (14 CFR
21.197 and 21.199) to operate the airplane to a location where the
requirements of this AD can be accomplished.
Issued in Renton, Washington, on April 17, 1996.
Darrell M. Pederson,
Acting Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-9933 Filed 4-22-96; 8:45 am]
BILLING CODE 4910-13-U
Complete official Federal Register PDF
FR Doc. 96-9900 Nondiscrimination in USDA Conducted Programs and Activities
[Federal Register Volume 61, Number 79 (Tuesday, April 23, 1996)]
[Proposed Rules]
[Pages 17851-17853]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-9900]
========================================================================
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. 79 / Tuesday, April 23, 1996 /
Proposed Rules
[[Page 17851]]
DEPARTMENT OF AGRICULTURE
Office of the Secretary
7 CFR Parts 15 and 15d
Nondiscrimination in USDA Conducted Programs and Activities
AGENCY: Department of Agriculture.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The United States Department of Agriculture (USDA or the
Department) is proposing to revise its regulations governing
nondiscrimination in programs and activities conducted by the
Department. The proposal would remove the current regulation on this
subject found at 7 CFR part 15, subpart B (Subpart B), and place it in
a new part 15d; clarify that the regulation applies to all Department-
conducted programs and activities, not just to direct assistance
programs; add familial status and marital status to the protected
classes contained in the regulation; add a provision on Department
agencies' compliance efforts; reflect that the Assistant Secretary for
Administration has been delegated the authority to make final
determinations as to whether prohibited discrimination occurred and the
correction action required to resolve complaints; remove the Appendix
to the regulation that lists the Department programs subject to these
provisions; and make other clarifications to the regulation.
DATES: Comments must be received by May 23, 1996.
ADDRESSES: Send comments to Director of Civil Rights, Department of
Agriculture, Washington, DC 20250. Comments will be available for
public inspection at Room 1322, South Building, Department of
Agriculture, Washington, DC 20250.
FOR FURTHER INFORMATION CONTACT:
Andrew Johnson, Director, Policy and Planning, Civil Rights, 202-720-
1130; or Ron Walkow, Attorney-Advisor, Office of General Counsel, 202-
720-6056.
SUPPLEMENTARY INFORMATION: The Department in 1964 first adopted
regulations to cover nondiscrimination in all programs and activities
directly administered by USDA (29 FR 16966). At that time, the
regulations were intended to complement the newly enacted Title VI of
the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.) by covering
those programs and activities not subject to Title VI; that is,
programs and activities in which USDA or an agency thereof made
available a benefit directly to persons rather than through a
recipient. However, these regulations were made a part of the
Department's Title VI regulations; specially, they were issued at
Subpart B where they have remained to this day. Since then, subpart B
has been amended on several occasions to include a variety of protected
classes in addition to race, color, and national origin. (38 FR 22465;
42 FR 65202; 47 FR 25458). Subpart B also was amended to provide that
individuals who believe they were subject to discrimination under the
regulations may file a complaint with the Department (50 FR 25687; 54
FR 31164).
Since Title VI is not the authority for the regulations, having
these regulations codified as part of the Department's Title VI
regulations has resulted in some confusion over the years. Accordingly,
the Department is proposing to remove the regulations from subpart B of
part 15 and reissue them in a new regulation, part 15f of Title 7.
Along these same lines, the authority provision of the regulation would
be revised to clarify that the authority for the regulation is 5 U.S.C.
301, not Title VI.
In addition to removing and reissuing the regulation, the
Department is proposing to make some minor substantive changes to the
regulation. First, the regulation will be reworded to clarify that it
applies to discrimination in all Department-conducted programs and
activities; that is, to any allegation that a USDA employee
discriminated against a member of the public--whether in a direct
assistance program or in any other manner.
Second, the Department is also proposing to add familial status and
marital status to the protected classes covered by the regulation. Over
the years, the Department has added protected classes to the regulation
in order to reflect those classes protected by the various Federal
civil rights laws. Two of those classes not currently included are
familial status (which is included in the Fair Housing Act (42 U.S.C.
3601 et seq.)) and marital status (which is included in the Equal
Credit Opportunity Act (15 U.S.C. 1691 et seq.). Accordingly, the
proposed rule would include these classes.
The proposed regulation would delete the provision now contained in
subpart B at Sec. 15.51(b). The Department believes that the broad
language used in proposed Sec. 15d.2 is sufficient to make clear that
the Department will not discriminate in any of its conducted programs,
without having to provide specific examples, of prohibited
discriminatory acts. By this action, the Department does not intend to
substantively affect the scope of the protections currently covered by
Sec. 15.51(b).
The Department is also proposing to add a new section on the
efforts of the Department to ensure compliance with this part since it
is as crucial to have an ongoing evaluation of Department agencies'
compliance with this section as it is to have a complaint process.
Therefore, the enforcement sections, i.e. proposed Secs. 15d.3 and
15d.4, provide for the Department engaging in compliance activities and
in complaint resolution. Specific provisions noting how these efforts
will be implemented within the Department will be set forth in internal
regulations and guidelines.
The proposed regulation would reflect that the authority to make
final determinations for the Department as to (1) whether
discrimination occurred and the corrective action required by the
Department to resolve complaints and (2) whether Department agencies'
efforts to comply with nondiscrimination requirements are sufficient
will no longer be delegated to the Director, Office of Civil Rights
Enforcement,\1\ but instead has been delegated to Assistant Secretary
for Administration (ASA). This delegation already has been effectuated
in 7 CFR part 2, and that change would be reflected in the proposed
regulation. The Department believes that determinations of this
magnitude should be elevated to the sub-cabinet level. In addition,
this
[[Page 17852]]
change would make the determining official in program discrimination
complaints the same official, i.e. the ASA, who makes final
determinations on employment discrimination complaints within the
Department. Civil Rights Adjudication and Enforcement (AE) will be
responsible for conducting the investigations on complaints and
evaluating agencies' efforts to comply with the discrimination
prohibition provisions of this new Part.
---------------------------------------------------------------------------
\1\ The Office of Civil Rights Enforcement has been reorganized
into two entities within Departmental Administration, i.e., Civil
Rights and Civil Rights Adjudication and Enforcement.
---------------------------------------------------------------------------
The Department is also proposing to remove the provisions in
Sec. 15.52(a) that require covered agencies of the Department to
provide notice of the public's right to file a complaint under that
Subpart. Under the proposed new Part 15d, this requirement will be
transferred to the Department's internal regulations. The Department
now believes that internal instructions such as the notice requirement
now in Sec. 15.52(a) are more appropriate in such a regulatory setting.
However, until such internal regulations are issued, agencies of the
Department will continue to follow the procedures currently required in
Sec. 15.52(a).
The Department is next proposing to remove the appendix to the
regulation (currently ``Appendix to Subpart B''), which purports to
list the programs and activities conducted by the Department. The
Department has found that it is difficult to maintain the accuracy of
this list on a regular basis when it is contained in the Code of
Federal Regulations. Additionally, having the Appendix in the Code of
Federal Regulations does not contribute to the effectiveness of the
regulation. Accordingly, the Department would remove the Appendix and
maintain such a list of programs and activities in internal guidelines
to be maintained by Civil Rights (CR).
The proposed regulation would contain a new provision that would
state that nothing in the regulation shall be construed as making
unlawful any program or activity conducted by the Department that is
otherwise lawful. The purpose of this provision is to make clear the
intent of the regulation. That is, this regulation is not intended to
prohibit the Department from doing anything that it is not already
prohibited from doing by the Constitution and various Federal statutes.
The regulation merely states the nondiscrimination policy of the
Department; it does not create any additional rights for individuals
and entities that deal with the Department. The proposed language would
make clear this intention as well as the legal effect of the
regulation.
Finally, the Department proposes to add a provision stating that
complaints filed under the regulation that are subject to a Department
complaint process that is implemented under specific statutory
authority will be processed under the statutory complaint process.
Thus, for example, a complaint alleging that the Department
discriminated on the basis of disability in a conducted program will be
processed under 7 CFR part 15e, which implements the Rehabilitation
Act.
In conclusion, the proposed regulation would set forth the
nondiscrimination policy of the Department, provide for compliance
efforts by the Department, notify the public that it may file
complaints with the Department alleging discrimination, and provide
that complainants will be notified of the final determinations on their
complaints. The Department believes that the detailed internal
procedures on the processing of these complaints should be contained in
internal regulations rather than in the Code of Federal Regulations.
These internal regulations will address such matters as the duties of
Department agencies under the regulation, guidelines on what
constitutes a proper investigation, and the standards for ``good-
cause'' extension of the 180-day filing period. The Department will
issue these internal regulations as soon as is practicable after this
proposed rule has been made final. Once completed, the internal
regulations will be available for public inspection.
This proposed rule has been determined to be ``not-significant''
for purposes of Executive Order 12866, and therefore has not been
reviewed by the Office of Management and Budget. USDA certifies that
this proposed rule would not have a significant economic impact on a
substantial number of small entities under the Regulatory Flexibility
Act of 1980 (5 U.S.C. 601 et seq.). USDA also certifies that this
proposed rule would not impose any reporting or recordkeeping
requirements under the Paperwork Reduction Act of 1995, 44 U.S.C.
Chapter 35.
USDA is providing a 30-day comment period for this rule. Comment is
invited on all aspects of the proposal, including the appropriateness
and effect of the proposed changes, and any additional or alternative
measures that would serve the goals of USDA as outlined in the
proposal.
List of Subjects in 7 CFR Parts 15 and 15d
Nondiscrimination.
In consideration of the foregoing, the Department proposes to amend
Title 7 of the Code of Federal Regulations, Subtitle A, as follows:
PART 15--[AMENDED]
1. The authority citation for part 15 continues to read as follows:
Authority: 5 U.S.C. 301; 29 U.S.C. 794.
2. Part 15, subpart B (Secs. 15.50-15.52) and the appendix thereto
would be removed; and
3. A new Part 15d would be added as follows:
PART 15d--NONDISCRIMINATION IN PROGRAMS OR ACTIVITIES CONDUCTED BY
THE UNITED STATES DEPARTMENT OF AGRICULTURE
Sec.
15d.1 Purpose.
15d.2 Discrimination prohibited.
15d.3 Compliance.
15d.4 Complaints.
15d.5 Effect of regulation.
Authority: 5 U.S.C. 301.
Sec. 15d.1 Purpose.
The purpose of this part is to set forth the nondiscrimination
policy of the United States Department of Agriculture in programs or
activities conducted by the Department, including such programs and
activities in which the Department or any agency thereof makes
available any benefit directly to persons under such programs and
activities.
Sec. 15d.2 Discrimination prohibited.
No agency, officer, or employee of the United States Department of
Agriculture shall exclude from participation in, deny the benefits of,
or subject to discrimination any person in the United States on the
ground of race, color, religion, sex, age, national origin, marital
status, familial status, or disability under any program or activity
conducted by such agency, officer, or employee.
Sec. 15d.3 Compliance.
The Office of the Director of Civil Rights shall evaluate each
agency's efforts to comply with this part and report to the Assist
Secretary for Administration the results of such evaluations, including
recommendations for improving such efforts. The Assistant Secretary
shall make a final determination as to the merits of such
recommendations and the actions to be taken to improve such efforts.
Sec. 15d.4 Complaints.
(a) Any person who believes that he or she (or any specific class
of individuals) has been, or is being, subjected to practices
prohibited by this part may file on his or her own, or through an
authorized representative, a written complaint alleging such
[[Page 17853]]
discrimination. No particular form of complaint is required. The
complaint must be filed within 180 calendar days from the date the
person knew or reasonably should have known of the alleged
discrimination, unless the time is extended for good cause by the
Assistant Secretary for Administration or his designee. Any person who
complains of discrimination under this part in any fashion shall be
advised of his or her right to file a complaint as herein provided.
(b) All complaints under this part should be filed with the
Director of Civil Rights Adjudication and Enforcement, United States
Department of Agriculture, Washington, DC 20250, who will investigate
the complaints. The Assistant Secretary for Administration will make
final determinations as to the merits of complaints under this part and
as to the corrective actions required to resolve the complaints. The
complainant will be notified of the final determination on his or her
complaint.
(c) Any complaint filed under this part that is subject to a
Department complaint process that is implemented under specific
statutory authority will be processed under the statutory complaint
process.
Sec. 15d.5 Effect of regulation.
Nothing in this part shall be construed as making unlawful any
program or activity conducted by the Department that is otherwise
lawful.
Dated: April 16, 1996.
Dan Glickman,
Secretary of Agriculture.
[FR Doc. 96-9900 Filed 4-22-96; 8:45 am]
BILLING CODE 3410-01-M
Complete official Federal Register PDF
FR Doc. 96-9882 Shrimp Fishery Off the Southern Atlantic States; Amendment 1
[Federal Register Volume 61, Number 79 (Tuesday, April 23, 1996)]
[Proposed Rules]
[Pages 17866-17871]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-9882]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
50 CFR Part 659
[Docket No. 960409106-6106-01; I.D. 031196A]
RIN 0648-AG26
Shrimp Fishery Off the Southern Atlantic States; Amendment 1
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
-----------------------------------------------------------------------
SUMMARY: NMFS issues this proposed rule to implement Amendment 1 to the
Fishery Management Plan for the Shrimp Fishery of the South Atlantic
Region (FMP). Amendment 1 would: add rock shrimp to the FMP's
management unit; prohibit trawling for rock shrimp in an area off the
Florida east coast; require permits for dealers, vessels, and vessel
operators involved in the rock shrimp fishery; require dealers to
report information needed to monitor the fishery; and require that the
initial sale, trade, barter, or transfer of rock shrimp harvested from
the exclusive economic zone (EEZ) occur only between permitted dealers
and permitted vessels. Based on a preliminary evaluation of Amendment
1, NMFS disapproved the measure requiring a vessel operator permit. The
proposed rule would implement the remaining measures in Amendment 1.
The intended effect is to protect critical habitat and conserve and
manage the rock shrimp fishery.
DATES: Written comments must be received on or before June 7, 1996.
ADDRESSES: Comments on the proposed rule must be sent to the Southeast
Regional Office, NMFS, 9721 Executive Center Drive N., St. Petersburg,
FL 33702.
Requests for copies of Amendment 1, which includes a regulatory
impact review, an initial regulatory flexibility analysis (IRFA), a
social impact analysis, and an environmental assessment, should be sent
to the South Atlantic Fishery Management Council, (South Atlantic
Council) One Southpark Circle, Suite 306, Charleston, SC 29407-4699,
telephone: 803-571-4366, FAX: 803-769-4520.
Comments regarding the collection-of-information requirements
contained in this proposed rule should be sent to Edward E. Burgess,
Southeast Regional Office, NMFS, 9721 Executive Center Drive N., St.
Petersburg, FL 33702, and to the Office of Information and Regulatory
Affairs, Office of Management and Budget (OMB), Washington, DC 20503
(Attention: NOAA Desk Officer).
FOR FURTHER INFORMATION CONTACT: Peter J. Eldridge, 813-570-5305.
SUPPLEMENTARY INFORMATION: The FMP was prepared by the South Atlantic
Council and is implemented through regulations at 50 CFR part 659 under
the authority of the Magnuson Act. Add Rock Shrimp to the Management
Unit
In the FMP, rock shrimp are included as part of the fishery, but
they are not included in the management unit, because there are no
management measures specific to rock shrimp. Amendment 1 contains
management measures applicable to rock shrimp, including closing one
area to trawling, and permitting and reporting requirements; therefore,
rock shrimp would be included in the management unit.
Area Closed to Rock Shrimp Trawling
Amendment 1 proposes to prohibit trawling for rock shrimp between
27 deg.30' N. lat. and 28 deg.30' N. lat. in the area extending
shoreward of the 100-fathom (183-m) depth contour (as shown on the
latest edition of NOAA chart 11460) to 80 deg.00' W. long. The Council
is proposing this measure to minimize the impacts of rock shrimp
trawling on important live-bottom habitat, including the slow-growing,
fragile Oculina coral species in and adjacent to the Oculina Bank
Habitat Area of Particular Concern (HAPC).
Oculina coral is fragile and particularly vulnerable to damage due
to bottom trawling. The largest known concentrations of Oculina occur
in a narrow band extending from Cape Canaveral, FL south through the
HAPC. The Oculina formations provide
[[Page 17867]]
important habitat for rock shrimp, fishes in the snapper-grouper
fishery, and numerous other species.
Testimony at public hearings indicated that some rock shrimp trawl
activity has shifted south of Cape Canaveral since 1991, exposing the
Oculina to trawl damage. Prohibition of rock shrimp trawling in the
designated area would extend protection of the valuable Oculina habitat
to the north and east of the existing HAPC, thereby preventing trawl
damage to habitat that is currently unprotected and also enhancing the
integrity of the existing HAPC.
Dealer Permit Requirement
Amendment 1 would require a dealer involved in the rock shrimp
fishery to obtain an annual dealer permit. A dealer would be defined as
the person who first receives rock shrimp harvested from the EEZ. To be
eligible for a dealer permit, an applicant would be required to have a
valid state wholesaler's license in the state where he or she operates
if a license is required by that state, and have a physical facility
for the receipt of rock shrimp at a fixed location in that state. A fee
would be charged to cover the administrative cost of issuing the
permit. A dealer permit would not be transferable and would expire upon
change of ownership of the business.
Dealer permits are proposed to identify the universe of dealers
involved in the rock shrimp fishery and to facilitate collection of
data necessary to manage the fishery. The Council believes that this
permit requirement would help ensure accurate dealer reporting, improve
enforcement of the regulations by increasing dealer accountability,
provide a means to improve communications among participants in the
fishery management process, and improve understanding of the economic
characteristics of the fishery.
Vessel Permit Requirement
For a person aboard a vessel to fish for or possess rock shrimp
from the EEZ, an annual vessel permit would be required. A fee would be
charged to cover the administrative costs associated with issuing the
permit. The vessel permit requirement would identify the universe of
participants in the harvesting sector of the fishery. The Council
believes that the permit requirement would also help provide
information necessary to assess impacts of fishing on the resource and
associated habitats.
Vessel Operator Permit Requirement--Disapproved Measure
One measure in Amendment 1 would have required a vessel operator
fishing for rock shrimp in the EEZ to obtain a vessel operator permit.
An operator would have been defined as the master or other individual
aboard who is in charge of the vessel. No performance or competency
testing would be required to obtain a permit. A fee would have been
charged to cover the administrative costs associated with issuing the
permit.
The vessel operator permit requirement was proposed initially by
the Council's Ad Hoc Rock Shrimp Advisory Panel and was subsequently
adopted by the Council for inclusion in Amendment 1. The permit
requirement was intended to instill vessel operators with greater
responsibility and accountability regarding compliance with fishery
regulations. The Council believes that revocation of an operator's
permit would be more effective than existing penalties in deterring
fishery violations.
NMFS has determined that the requirement for a vessel operator
permit would not minimize costs and is inconsistent with the Magnuson
Act's national standard 7 that requires conservation and management
measures to minimize costs and avoid unnecessary duplication where
practicable. NMFS believes that adequate regulatory compliance can be
achieved via the existing penalty schedule without incurring the
additional costs and public paperwork burden that would be associated
with implementing a new class of permits. Accordingly, the Director,
Southeast Region, NMFS (Regional Director) has disapproved this
provision of Amendment 1, and it is not included in this proposed rule.
The Regional Director has determined that this provision is not a
matter of sufficient scope and substance warranting review under
section 304(a)(1)(A) of the Magnuson Act.
Dealer Reporting
Permitted dealers would be required to maintain and submit basic
information essential for proper management of the fishery. Additional
data may be collected by authorized statistical reporting agents or
authorized officers as necessary to address specific issues.
A permitted dealer who is selected by the Science and Research
Director, Southeast Fisheries Center, NMFS (Science and Research
Director) would be required to provide information on receipts and
prices paid for rock shrimp to the Science and Research Director in
accordance with instructions provided on the reporting form. Such
information would be submitted at monthly intervals, or more frequently
if requested, postmarked not later than 5 days after the end of each
month. The Council intends that, to the extent possible, the required
information be provided through existing state/Federal cooperative
agreements for data collection. To minimize duplication, the Science
and Research Director would select a dealer to report only if the
essential information were not otherwise available through the state/
Federal cooperative data collection system.
Restrictions on Sale
Restrictions on sale of rock shrimp are proposed to ensure that the
fishery is conducted only by properly permitted individuals and to
assure that all landings are documented through the proposed data
collection system. The proposed rule would require that rock shrimp
harvested in the EEZ by a permitted vessel be sold, traded, bartered,
or transferred only to a permitted dealer. Similarly, a permitted
dealer would be allowed to purchase, barter, trade, or transfer rock
shrimp harvested from the EEZ only from a permitted vessel.
Availability of Amendment 1
Additional background and rationale for the measures discussed
above are contained in Amendment 1, the availability of which was
announced in the Federal Register on March 19, 1996 (61 FR 11181).
Classification
Section 304(a)(1)(D) of the Magnuson Act requires publication of
regulations proposed by a regional fishery management council within 15
days of receipt of an amendment and regulations. At this time, NMFS has
not determined that Amendment 1 is consistent with the national
standards, other provisions of the Magnuson Act, and other applicable
laws, except for the provision of Amendment 1 specifically disapproved,
as discussed above. NMFS, in making that determination with respect to
the remaining parts of Amendment 1, will take into account the data,
views, and comments received during the comment period.
This proposed rule has been determined to be not significant for
purposes of E.O. 12866.
The Council prepared an IRFA which describes the impacts this
proposed rule would have on small entities, if adopted. The Council
concluded that
[[Page 17868]]
the proposed measures in Amendment 1 would have a significant economic
impact on a substantial number of small entities. These impacts, as
assessed in the IRFA, may be summarized as follows. All of the
commercial rock shrimp vessel owners and dealers are small entities
that would be affected by one or more actions in the proposed rule. The
south Atlantic rock shrimp fishery may have as many as 108 active
vessels according to Florida's landings data, although industry
representatives indicate that the number of vessels participating
throughout the season may be closer to 65. The Council estimates that
currently there are about 12 dealers actively buying rock shrimp from
fishing vessels. It is noted that over 95 percent of rock shrimp
harvested in the south Atlantic region occur in the EEZ off the east
coast of Florida.
The IRFA identified the following impacts on small entities in
terms of costs and revenues: (1) The addition of rock shrimp to the FMP
management unit should not result in any changes in operating revenues
or costs for individual vessels in the commercial fishery; (2) the
prohibition of trawling for rock shrimp in the closed area off the
Florida east coast may cause a reduction in annual gross revenues of
current rock shrimp fishery participants by more than 5 percent.
Although total annual rock shrimp catches by area are not available
from NMFS or State sources, 34 participants in the fishery reported
their 1994 landings by area fished during the public hearings process.
These participants reported a catch of 1,128,624 pounds of rock shrimp
from the area to be closed. This represents 25 percent of their total
1994 catch of rock shrimp from the South Atlantic and is 17 percent of
the total 1994 catch of rock shrimp of all harvesters as reported in
NMFS data. Using an average ex-vessel price of $1.25 per pound, the
value of the harvest by the 34 participants reporting catch by area is
expected to decline $1.41 million in the first year. These data do not
indicate the total estimated catch or revenue effect from closing the
area since, as indicated above, reliable data on catch locations for
all fishery participants are not available. The IRFA indicates that
many of the freezer-trawler vessels participating in the fishery in
1994 may show a reduction in harvest income somewhat in excess of
$40,000 per vessel during the first year of the area closure. Rock
shrimp are known to move throughout the area off the east coast of
Florida. Thus, it is likely that some of the shrimp initially located
within the closed area may move to other areas where they may be
harvested. The impacted rock shrimp vessels are expected to shift
fishing effort away from the closed area to open areas. The extent to
which they can successfully shift effort will determine how well they
can minimize adverse impacts. If vessels have to travel extra distances
to the open fishing areas, they would incur additional operating costs.
This may not result in a reduction in net revenue for vessels that can
catch larger size shrimp yielding higher exvessel prices. Also, many
vessels participate in other fisheries when they are not fishing for
rock shrimp; it is likely that they may switch effort to these other
fisheries during the time they would have been trawling for shrimp in
the closed area. For these reasons, the above estimates of adverse
economic impacts on small entities from the closed area should be
considered maximum levels. Nevertheless, it is reasonable to assume
that the 5 percent criterion for significant effects will be met for
the small entities participating in the rock shrimp fishery in the U.S.
South Atlantic. Finally, no small entities are expected to be forced to
cease operations; (3) permit requirements for vessel owners, vessel
operators, and dealers would increase costs for those sectors; (4)
dealer reporting requirements would increase dealer costs marginally;
and (5) restrictions on the sale of rock shrimp (i.e., permitted
vessels may sell rock shrimp only to permitted dealers) would decrease
revenues and increase costs marginally.
In deciding on its preferred management measures for this rule, the
Council attempted to balance the competing objectives of providing
protection for important habitat areas known to support important
populations of juvenile rock shrimp and other valuable species, such as
snappers, with the possible adverse economic effects on current fishery
participants. The Council believes that Amendment 1 will reduce fishery
related habitat damage and ensure successful recruitment of rock shrimp
to the fishery over the long run as well as protecting the biological
productivity of the snapper-grouper complex. The Council believes that
without these conservation measures, the potential long-term, adverse
economic effects on small entities would outweigh the short-term
effects. A copy of the IRFA is available from the Council (see
ADDRESSES).
Notwithstanding any other provision of law, no person is required
to respond to nor shall a person be subject to a penalty for failure to
comply with a collection of information subject to the requirements of
the Paperwork Reduction Act (PRA) unless that collection of information
displays a currently valid OMB control number.
This rule contains new collection-of-information requirements
subject to the PRA--namely, vessel permit applications, dealer permit
applications, dealer reports regarding rock shrimp receipts, and vessel
identification requirements. These requirements have been submitted to
OMB for approval. The public reporting burdens for these collections of
information are estimated to average 20, 5, 10, and 45 minutes per
response, respectively, including the time for reviewing instructions,
searching existing data sources, gathering and maintaining the data
needed, and completing and reviewing the collection of information.
Send comments regarding these reporting burden estimates or any other
aspect of the collections of information, including suggestions for
reducing the burdens, to NMFS and OMB (see ADDRESSES).
List of Subjects in 50 CFR Part 659
Fisheries, Fishing, Reporting and recordkeeping requirements.
Dated: April 16, 1996.
Gary Matlock,
Program Management Officer, National Marine Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 659 is
proposed to be amended as follows:
PART 659--SHRIMP FISHERY OFF THE SOUTHERN ATLANTIC STATES
1. The authority citation for part 659 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq.
Sec. 659.1 [Amended]
2. In Sec. 659.1, paragraph (b) is amended by adding the phrase
``rock shrimp,'' after ``pink shrimp,''.
3. In Sec. 659.2, definitions for ``Authorized statistical
reporting agent'', ``Dealer'', ``Regional Director'', ``Rock shrimp'',
and ``Science and Research Director'' are added, in alphabetical order,
to read as follows:
Sec. 659.2 Definitions.
* * * * *
Authorized statistical reporting agent means:
(1) Any person so designated by the Science and Research Director;
or
(2) Any person so designated by the head of any Federal or state
agency that has entered into an agreement with the Assistant
Administrator to collect fishery data.
* * * * *
[[Page 17869]]
Dealer, for the purposes of this part 659, means the person who
first receives rock shrimp harvested from the EEZ upon transfer ashore.
* * * * *
Regional Director means the Director, Southeast Region, NMFS, or a
designee.
Rock shrimp means the species Sicyonia brevirostris.
Science and Research Director means the Science and Research
Director, Southeast Fisheries Science Center, NMFS, or a designee.
* * * * *
4. Section 659.3 is revised to read as follows:
Sec. 659.3 Relation to other laws.
(a) The relation of this part to other laws is set forth in
Sec. 620.3 of this chapter and paragraph (b) of this section.
(b) Regulations governing the taking of endangered and threatened
marine mammals and sea turtles appear at 50 CFR parts 222 and 227.
Secs. 659.4, 659.5, 659.6 [Redesignated as Secs. 659.7, 659.8, 659.9]
5. In subpart A, Secs. 659.4, 659.5, and 659.6 are redesignated as
Secs. 659.7, 659.8, and 659.9, respectively; new Secs. 659.4, 659.5,
and 659.6 are added; and newly redesignated Sec. 659.7 is revised to
read as follows:
Sec. 659.4 Permits and fees.
(a) Applicability--(1) Annual vessel permit for rock shrimp. For a
person aboard a fishing vessel to fish for rock shrimp in the EEZ or
possess rock shrimp in or from the EEZ, a vessel permit for rock shrimp
must be issued for the vessel and be on board.
(2) Annual dealer permit for rock shrimp. A dealer who receives
rock shrimp harvested from the EEZ must obtain an annual dealer permit
for rock shrimp. To be eligible for such permit, an applicant must have
a valid state wholesaler's license, if required in the state where the
applicant operates, and must have a physical facility for receipt of
rock shrimp at a fixed location in that state.
(b) Application for an annual vessel permit for rock shrimp. (1)
Applications are available from the Regional Director. An application
must be signed and submitted by the owner (in the case of a
corporation, an officer or shareholder; in the case of a partnership, a
general partner) or operator of the vessel. The application should be
submitted to the Regional Director at least 30 days prior to the date
the applicant desires the permit to be effective.
(2) A permit applicant must provide the following information:
(i) A copy of the vessel's valid U.S. Coast Guard certificate of
documentation or, if not documented, a copy of its valid state
registration certificate.
(ii) Vessel name and official number.
(iii) Name, address, telephone number, and other identifying
information of the vessel owner and of the applicant, if other than the
owner.
(iv) Any other information concerning the vessel, gear
characteristics, principal fisheries engaged in, or fishing areas
requested by the Regional Director.
(v) Any other information that may be necessary for the issuance or
administration of the permit, as requested by the Regional Director and
included on the application form.
(c) Application for an annual dealer permit for rock shrimp. (1)
Applications are available from the Regional Director. An application
for a dealer permit must be submitted and signed by the dealer or an
officer of a corporation acting as a dealer. The application should be
submitted to the Regional Director at least 30 days prior to the date
the applicant desires the permit to be effective.
(2) A permit applicant must provide the following information:
(i) A copy of each state seafood wholesaler's license held by the
dealer.
(ii) Business name; mailing address, including zip code, of the
principal office of the business; telephone number; employer
identification number, if one has been assigned by the Internal Revenue
Service; and date the business was formed.
(iii) The address of each physical facility at a fixed location
where the business receives rock shrimp.
(iv) Applicant's name; official capacity in the business; address;
including zip code; telephone number; and identifying information
specified on the application form.
(v) Any other information that may be necessary for the issuance or
administration of the permit, as requested by the Regional Director and
included on the application form.
(d) Fees. A fee is charged for each permit application submitted
pursuant to this section. The amount of the fee is calculated in
accordance with the procedures of the NOAA Finance Handbook for
determining the administrative costs of each special product or
service. The fee may not exceed such costs and is specified with each
application form. The appropriate fee must accompany each application.
(e) Initial issuance. (1) The Regional Director will issue an
initial permit at any time to an applicant if the application is
complete and the specific requirements for the requested permit have
been met. An application is complete when all required forms,
information, documentation, and fees have been received.
(2) Upon receipt of an incomplete application, the Regional
Director will notify the applicant of the deficiency. If the applicant
fails to correct the deficiency within 30 days of the date of the
Regional Director's letter of notification, the application will be
considered abandoned.
(f) Duration. A permit remains valid for the period for which it is
issued unless revoked, suspended, or modified pursuant to subpart D of
15 CFR part 904.
(g) Renewal. (1) A permit required by this section will be
effective for 1 year. Application for permit renewal is required only
every 2 years. In the interim year, a permit will be renewed
automatically (without application) if a vessel owner or a dealer has
met the renewal requirements under paragraph (g)(2) of this section.
The owner of a permitted vessel or a permitted dealer who does not meet
the renewal requirements will be notified by the Regional Director
approximately 2 months prior to the expiration of the current permit.
The notification will specify the reasons the permit is not eligible
for renewal and will provide an opportunity for correction of any
deficiencies. For a year in which permit renewal application is
required, the Regional Director will mail an application form to each
owner of a permitted vessel or permitted dealer approximately 2 months
prior to expiration of the current permit. A vessel owner or dealer who
does not receive a renewal application in that time frame must contact
the Regional Director to obtain a renewal application.
(2) The permit renewal requirements are:
(i) All reports required of an owner of a vessel or a dealer under
the Magnuson Act have been submitted.
(ii) The permit has not been revoked, suspended, or denied under
paragraph (j) of this section.
(h) Transfer. A vessel or dealer permit issued pursuant to this
section is not transferable or assignable. A person obtaining a
permitted vessel or dealership who desires to conduct activities for
which a permit is required must apply for a permit in accordance with
the provisions of paragraph (b) or (c) of this section, as appropriate.
(i) Display. A vessel permit issued pursuant to this section must
be carried on board the vessel and such vessel must be identified as
provided for in Sec. 659.6. A dealer permit issued pursuant
[[Page 17870]]
to this section must be available on the dealer's premises. The
operator of a vessel or a dealer must present the permit for inspection
upon request of an authorized officer.
(j) Sanctions and denials. A permit issued pursuant to this section
may be revoked, suspended, or modified, and a permit application may be
denied, in accordance with the procedures governing enforcement-related
permit sanctions and denials found at subpart D of 15 CFR part 904.
(k) Alteration. A permit that is altered, erased, or mutilated is
invalid.
(l) Replacement. The Regional Director may issue a replacement
permit. An application for a replacement permit will not be considered
a new application. A fee, the amount of which is stated with the
application form, must accompany each request for a replacement permit.
(m) Change in application information. The owner or operator of a
vessel with a permit for rock shrimp or a dealer with a permit for rock
shrimp must notify the Regional Director within 15 days after any
change in the application information required by paragraph (b) or (c)
of this section, respectively. The permit is void if any change in the
information is not reported within 15 days.
Sec. 659.5 Recordkeeping and reporting.
(a) Dealers. A dealer who has been issued a permit required by
Sec. 659.4(a)(2) and who is selected by the Science and Research
Director must provide information on receipts of rock shrimp and prices
paid, to the Science and Research Director in accordance with
instructions on the reporting form. The required information must be
submitted at monthly intervals, or more frequently if requested,
postmarked not later than 5 days after the end of each month.
(b) Additional data and inspection. (1) Additional data will be
collected by authorized statistical reporting agents or by authorized
officers. A dealer is required, upon request, to make rock shrimp, or
parts thereof, available for inspection by the Science and Research
Director or an authorized officer.
(2) On demand, a dealer must make available to an authorized
officer all records of off-loadings, purchases, barters, or sales of
rock shrimp.
Sec. 659.6 Vessel identification.
(a) Official number. The owner and operator of a vessel with a
valid permit, as required under Sec. 659.4(a)(1) must ensure that the
vessel's official number is displayed--
(1) On the port and starboard sides of the deckhouse or hull and on
a weather deck so as to be clearly visible from an enforcement vessel
or aircraft;
(2) In block arabic numerals in contrasting color to the
background;
(3) At least 18 inches (45.7 cm) in height for fishing vessels over
65 feet (19.8 m) in length and at least 10 inches (25.4 cm) in height
for all other vessels; and
(4) Permanently affixed to or painted on the vessel.
(b) Duties of operator. The operator of each fishing vessel
specified in paragraph (a) of this section must--
(1) Keep the official number clearly legible and in good repair;
and
(2) Ensure that no part of the fishing vessel, its rigging, fishing
gear, or any other material on board obstructs the view of the official
number from an enforcement vessel or aircraft.
Sec. 659.7 Prohibitions.
In addition to the general prohibitions specified in Sec. 620.7 of
this chapter, it is unlawful for any person to do any of the following:
(a) Fish for rock shrimp in the EEZ or possess rock shrimp in or
from the EEZ, on board a vessel that does not have a vessel permit for
rock shrimp, as specified in Sec. 659.4(a)(1).
(b) As a dealer, receive rock shrimp harvested from the EEZ without
a dealer permit, as specified in Sec. 659.4(a)(2).
(c) Falsify information specified in Sec. 659.4(b)(2), or (c)(2) on
an application for a permit.
(d) Fail to display a permit, as specified in Sec. 659.4(h).
(e) Falsify or fail to maintain, submit, or provide information
required to be maintained, submitted, or provided, as specified in
Sec. 659.5(a) or (b), or as may be required as a condition of an
authorized activity under Sec. 659.22.
(f) Fail to make rock shrimp, or parts thereof, available for
inspection, as specified in Sec. 659.5(b)(1).
(g) Falsify or fail to display and maintain vessel identification,
as specified in Sec. 659.6(a) and (b).
(h) Trawl for white shrimp, pink shrimp, or brown shrimp in a
closed area or possess such shrimp in or from a closed area, as
specified in Sec. 659.20(a)(2)(i)(A), except possession authorized
under Sec. 659.20(a)(2)(ii).
(i) Use or have on board a vessel trawling in that part of a closed
area specified under Sec. 659.20(a)(1) that is within 25 nautical miles
(46.30 km) of the baseline from which the territorial sea is measured,
a trawl net with a mesh size less than 4 inches (10.2 cm), as specified
in Sec. 659.20(a)(2)(i)(B).
(j) Trawl for rock shrimp in the closed area specified in
Sec. 659.20(b) or possess on board a fishing vessel rock shrimp in or
from that closed area.
(k) Transfer, receive, sell, purchase, barter, or trade, or attempt
to transfer, receive, sell, purchase, barter, or trade a rock shrimp
harvested from the EEZ from a vessel that does not have a valid permit,
as specified in Sec. 659.21(a).
(l) Transfer, sell, trade, or barter or attempt to transfer, sell,
trade, or barter from a vessel rock shrimp harvested from the EEZ to a
dealer who does not have a permit, as specified in Sec. 659.21(b).
(m) As a permitted dealer, receive, purchase, barter, or trade or
attempt to receive, purchase, barter, or trade rock shrimp harvested
from the EEZ from a vessel that does not have a valid permit, as
specified in Sec. 659.21(c).
(n) Interfere with, obstruct, delay, or prevent by any means an
investigation, search, seizure, or disposition of seized property in
connection with enforcement of the Magnuson Act.
(o) Make any false statement, oral or written, to an authorized
officer concerning the taking, catching, harvesting, landing, purchase,
sale, possession, or transfer of brown shrimp, pink shrimp, rock
shrimp, or white shrimp.
6. In Sec. 659.20, paragraphs (a), (b), (b)(1), (b)(1)(i),
(b)(1)(ii), and (b)(2) are redesignated as paragraphs (a)(1), (a)(2),
(a)(2)(i), (a)(2)(i)(A), (a)(2)(i)(B), and (a)(2)(ii), respectively; in
newly redesignated paragraph (a)(2)(i), introductory text, the
reference ``paragraph (a)'' is removed and ``paragraph (a)(1)'' is
added in its place; in newly redesignated paragraphs (a)(2)(i)(A) and
(a)(2)(ii), the reference ``paragraph (b)(2)'' is removed and the
reference ``paragraph (a)(2)(ii)'' is added in its place; and a new
paragraph (a) heading and new paragraph (b) are added to read as
follows:
Sec. 659.20 Closures.
(a) Seasonal closures for brown, pink, and white shrimp.
* * * * *
(b) Area closure for rock shrimp. No person may trawl for rock
shrimp in the closed area east of 80 deg.00' W. long. between
27 deg.30' N. lat. and 28 deg.30' N. lat. shoreward of the 100-fathom
(183-m) contour, as shown on the latest edition of NOAA chart 11460;
and no person may possess rock shrimp in or from this closed area on
board a fishing vessel.
7. Section 659.21 is redesignated as Sec. 659.22 and a new
Sec. 659.21 is added to read as follows:
Sec. 659.21 Restrictions on sale/purchase of rock shrimp.
(a) No person may transfer, receive, purchase, barter, trade, or
sell, or attempt to transfer, receive, purchase,
[[Page 17871]]
barter, trade, or sell, rock shrimp harvested in the EEZ by a vessel
for which a valid permit has not been issued under Sec. 659.4(a)(1).
(b) No person may transfer, sell, trade, or barter or attempt to
transfer, sell, trade, or barter, rock shrimp harvested in the EEZ by a
vessel permitted under Sec. 659.4(a)(1) to a dealer who does not have a
valid permit issued under Sec. 659.4(a)(2).
(c) No dealer who has a valid permit issued under Sec. 659.4(a)(2)
may receive, purchase, trade, or barter or attempt to receive,
purchase, trade, or barter rock shrimp harvested in the EEZ from a
vessel for which a valid permit has not been issued under
Sec. 659.4(a)(1).
[FR Doc. 96-9882 Filed 4-22-96; 8:45 am]
BILLING CODE 3510-22-P
Complete official Federal Register PDF
FR Doc. 96-9879 Special Anchorage Areas; Ashley River, Charleston, SC
[Federal Register Volume 61, Number 79 (Tuesday, April 23, 1996)]
[Proposed Rules]
[Pages 17861-17863]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-9879]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Coast Guard
33 CFR Part 110
[CGD07-96-017]
RIN 2115-AA98
Special Anchorage Areas; Ashley River, Charleston, SC
AGENCY: Coast Guard, DOT.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The Coast Guard is proposing to establish two new anchorage
areas in the Ashley River, Charleston, South
[[Page 17862]]
Carolina to replace an existing anchorage. Due to pending construction
of two 1000 ft piers at the George M. Lockwood Municipal Marina, in
Charleston, the current anchorage will not be available for anchoring
recreational vessels. The Municipal Marina has received a construction
permit to build the piers from the U.S. Army Corps of Engineers. The
new anchorages will be necessary to replace the one described in 33 CFR
110.72d. The proposed anchorages are across the Ashley River from the
current anchorage and though not designated as Federal anchorages, they
are already widely used by recreational vessels as overflow from the
current anchorage.
DATES: Comments must be received on or before June 24, 1996.
ADDRESSES: Comments should be mailed to the Captain of the Port
Charleston, Marine Safety Office Charleston, South Carolina 29401-1899.
The comments will be available for inspection and copying at 196 Tradd
Street, Charleston, SC between 9 a.m. and 3 p.m., Monday through
Friday, except Federal holidays. Comments may also be hand delivered to
this address.
FOR FURTHER INFORMATION CONTACT: CW04 R.M. Webber, Project Officer,
Tel: (803) 724-7690.
SUPPLEMENTARY INFORMATION: Interested persons are invited to
participate in this rulemaking by submitting written views, data or
arguments. Persons submitting comments should include their names and
addresses, identify this notice (CGD07-96-017) and the specific section
of this proposal to which their comments apply, and give reasons for
each comment. The regulations may be changed in the light of comments
received. All comments received before the expiration of the comment
period will be considered before final action is taken on this
proposal.
No public hearing is planned, but one may be held if written
requests for a hearing are received, and it is determined that the
opportunity to make oral presentations will aid the rulemaking process.
Discussion of Proposed Regulations
The City Marina Company and the City of Charleston have been
granted, by the U.S. Army Corps of Engineers, a permit to build two
1000 foot piers on the south side of the Municipal Marina. These piers
will cross an existing anchorage eliminating most of the anchorages
within that area that have over six feet of water at mean low water. As
the anchorage is extensively used by recreational vessels, two new
anchorage areas are being proposed to accommodate vessels that will be
displaced when the new piers are built. The new anchorages are already
being used by recreational vessels as overflow from the existing
anchorage. To date, no problems have arisen from recreational vessels
anchoring in these areas. Since the marina plans were published in the
local newspaper, there has been considerable public interest in
establishing new anchorages to replace the existing anchorage.
Proposed Ashley River Anchorage Number One would be located on the
waters lying within an area across the Ashley River Channel from the
George M. Lockwood Municipal Marina bounded by the southwest side of
the channel beginning at latitude 32 deg.46'43.7''N, longitude
079 deg.57'19.3''W; thence to latitude 32 deg.46'38.0''N, longitude
079 deg.57'24.0''W; thence to latitude 32 deg.46'32.0''N, longitude
079 deg.57'15.5''W; thence to latitude 32 deg.46'29.0''N, longitude
079 deg.57'00.9''W; thence back to the beginning following the
southwest boundary of the Ashley River Channel. All coordinates
referenced use Datum: NAD 1983.
Proposed Ashley River Anchorage Number Two would be located on the
waters lying within an area across the Ashley River Channel from the
Ashley Marina bounded by the southwest side of the channel beginning
latitude 32 deg.46'53.0''N, longitude 079 deg.57'34.5''W; thence to
latitude 32 deg.46'50.5''N, longitude 079 deg.57'40.5''W; thence to
latitude 32 deg.46'46.0''N, longitude 079 deg.57'34.5''W; thence to
latitude 32 deg.46'49.0''N, longitude 079 deg.57'28.7''W; thence back
to the beginning following the southwest boundary of the Ashley River
Channel. All referenced coordinates use Datum: NAD 1983.
These proposed anchorage areas will provide that vessels no more
than sixty-five feet in length, when anchored in the anchorage areas,
shall not be required to carry or exhibit the white anchor lights
required by the Navigation Rules.
Regulatory Evaluation
This proposal is not a significant regulatory action under section
3(f) of Executive Order 12866 and does not require an assessment of
potential costs and benefits under section 6(a)(3) of that order. It
has been exempted from review by the Office of Management and Budget
under that order. It is not significant under the regulatory policies
and procedures of the Department of Transportation (DOT) (44 FR 11040;
February 26, 1979). The Coast Guard expects the economic impact of this
proposal to be so minimal that a full Regulatory Evaluation under
paragraph 10e of the regulatory policies and procedures of DOT is
unnecessary. The proposed anchorage areas described in this notice are
currently being used by recreational vessels as over flow from the
existing anchorage.
Since the impact of this proposal is expected to be minimal, the
Coast Guard certifies that, if adopted, it will not have a significant
economic impact on a substantial number of small entities.
Collection of Information
This proposed rule contains no collection-of-information
requirements under the Paperwork Reduction Act (44 U.S.C. 3501 et
seq.).
Federalism
This action has been analyzed in accordance with the principles and
criteria contained in Executive Order 12612, and it has been determined
that the proposed rulemaking does not have sufficient federalism
implications to warrant the preparation of a Federalism Assessment.
Environmental Assessment
The Coast Guard has considered the environmental impact of this
proposal and has determined pursuant to Section 2.B.2. of Commandant
Instruction M16475.1B, hat this action is categorically excluded from
further environmental documentation. A Categorical Exclusion
Determination and Environmental Analysis Checklist are available in the
docket for inspection or copying at the location listed in ADDRESSES.
List of Subjects in 33 CFR Part 110
Anchorage grounds.
Proposed Regulations
In consideration of the foregoing, the Coast Guard proposes to
revise Part 110 of Title 33, Code of Federal Regulations, as follows:
PART 110--[AMENDED]
1. The authority citation for Part 110 continues to read as
follows:
Authority: 33 U.S.C. 471, 2030, 2035 and 2071; 49 CFR 1.46 and
33 CFR 1.05-1(g). Section 110.1a and each section listed in 110.1a
are also issued under 33 U.S.C. 1223 and 1231.
2. Section 110.72d is revised to read as follows:
Sec. 110.72d Ashley River Anchorage Areas, SC.
The following locations are special anchorage areas:
(a) Ashley River Anchorage 1. The waters lying within an area
across the Ashley River Channel from the George M. Lockwood Municipal
Marina bounded by the southwest side of the channel beginning at
latitude
[[Page 17863]]
33 deg.46'43.7'' N, longitude 079 deg.57'19.3'' W; thence to latitude
32 deg.46'38.0'' N, longitude 079 deg.57'24.0'' W; thence to latitude
32 deg.46'32.0'' N, longitude 079 deg.57'15.5'' W; thence to latitude
32 deg.46'29.0'' N, longitude 079 deg.57'00.9'' W; thence back to the
beginning following the southwest boundary of the Ashley River Channel.
All coordinates referenced use Datum: NAD 1983.
(b) Ashley River Anchorage 2. The waters lying within an area
across the Ashley River Channel from the Ashley Marina bounded by the
southwest side of the channel beginning at latitude 33 deg.46'53.0'' N,
longitude 079 deg.57'34.5'' W; thence to latitude 32 deg.46'50.5'' N,
longitude 079 deg.57'40.5'' W; thence to latitude 32 deg.46'46.0'' N,
longitude 079 deg.57'34.5'' W; thence to latitude 32 deg.46'49.0'' N,
longitude 079 deg.57'28.7'' W; thence back to the beginning following
the southwest boundary of the Ashley River Channel. All coordinates
referenced use Datum: NAD 1983.
Dated: April 10, 1996.
P.J. Cardaci,
Captain, U.S. Coast Guard, Acting Commander, Seventh Coast Guard
District.
[FR Doc. 96-9879 Filed 4-22-96; 8:45 am]
BILLING CODE 4910-14-P
Complete official Federal Register PDF
FR Doc. 96-9877 Streamlining Hearing Procedures; Proposed Rule
[Federal Register Volume 61, Number 79 (Tuesday, April 23, 1996)]
[Proposed Rules]
[Pages 18026-18037]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-9877]
[[Page 18025]]
_______________________________________________________________________
Part IV
Department of Housing and Urban Development
_______________________________________________________________________
Office of the Secretary
_______________________________________________________________________
24 CFR Parts 26, 28, 30, et al.
Streamlining Hearing Procedures; Proposed Rule
Federal Register / Vol. 61, No. 79 / Tuesday, April 23, 1996 /
Proposed Rules
=======================================================================
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[[Page 18026]]
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
Office of the Secretary
24 CFR Parts 26, 28, 30, 81, 200, 950, 965, and 3500
[Docket No. FR-4022-P-01]
RIN 2501-AC19
Streamlining Hearing Procedures; Proposed Rule
AGENCY: Office of the Secretary, HUD.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: In response to the President's regulatory reform initiatives,
this proposed rule would streamline and consolidate many of HUD's
regulations containing hearing procedures. This rule also proposes
several substantive changes to these regulations in order to improve
the hearing process and to make the regulations more closely follow
applicable statutes. This proposed rule would make the regulations
easier for the public to use and understand.
DATES: Comments due: June 24, 1996.
ADDRESSES: Interested persons are invited to submit comments regarding
this proposed rule to the Rules Docket Clerk, Office of General
Counsel, Room 10276, Department of Housing and Urban Development, 451
Seventh Street, SW, Washington, DC 20410-0500. Communications should
refer to the above docket number and title. Facsimile (FAX) comments
are not acceptable. A copy of each communication submitted will be
available for public inspection and copying between 7:30 a.m. and 5:30
p.m. weekdays at the above address.
FOR FURTHER INFORMATION CONTACT: Emmett N. Roden, Assistant General
Counsel for Administrative Proceedings, Office of General Counsel,
Department of Housing and Urban Development, 451 7th Street, S.W., Room
10251, Washington, D.C. 20410, telephone (202) 708-2350. (This is not a
toll-free number.) Hearing- and speech-impaired persons may access this
number via TTY by calling the Federal Information Relay Service at
(800) 877-8339.
SUPPLEMENTARY INFORMATION:
I. Regulatory Reinvention
On March 4, 1995, President Clinton issued a memorandum to all
Federal departments and agencies regarding regulatory reinvention. In
response to this memorandum, the Department of Housing and Urban
Development conducted a page-by-page review of its regulations to
determine which can be eliminated, consolidated, or otherwise improved.
HUD has determined that this proposed rule is necessary to consolidate
and streamline HUD's various sets of regulations containing hearing
procedures. Therefore, this proposed rule would consolidate several
sets of hearing procedures into one part, thereby eliminating
approximately 20 pages of unnecessary regulations from the Code of
Federal Regulations (CFR).
II. Background
A. Hearings According to the Administrative Procedure Act
In this rule, HUD proposes to use 24 CFR part 26 to contain two
sets of hearing regulations. The first set of regulations would contain
all the procedures that currently appear in part 26. These procedures
apply in HUD proceedings before a hearing officer, including
administrative sanction hearings under part 24 and hearings with
respect to actions by the Mortgagee Review Board under part 25. This
proposed rule would not change the substance of any of these
provisions, but it would set them apart so that they all appear within
a new subpart A of part 26.
This proposed rule would add the second set of regulations to form
a new subpart B. The regulations in subpart B would contain a
relatively uniform set of hearing procedures for formal hearings
according to the Administrative Procedure Act (5 U.S.C. 551 et seq.)
(APA). By adding these uniform procedures to subpart B of part 26, HUD
intends to consolidate as many of its hearing procedures as possible
into one part. This should make HUD's hearing procedures easier to use
and understand.
The hearing procedures in subpart B would apply to hearings under
the Program Fraud Civil Remedies Act of 1986, the procedures for which
currently appear in part 28. Subpart B would also apply to hearings in
which HUD seeks civil money penalties, the procedures for which
currently appear in part 30, and to hearings pursuant to the Interstate
Land Sales Full Disclosure Act, the procedures for which currently
appear in part 1720. HUD intends that subpart B will be used in
hearings conducted pursuant to the APA, unless other statutory or
regulatory provisions apply.
In addition to consolidating these hearing procedures into one part
and making them uniform, this proposed rule would also make a number of
changes in order to streamline pleadings and reduce administrative
overhead. This proposed rule contains specific time limits to ensure
rapid disposition of cases (see, e.g., Secs. 26.39, 26.42, 26.44,
26.50). The proposed rule also would clarify that parties must seek
Secretarial review in order to exhaust their administrative remedies
before seeking judicial review, thereby addressing the Supreme Court's
decision in Darby v. Cisneros, 113 S.Ct. 2539 (1993). This proposed
rule also incorporates the Federal Rules of Civil Procedure for certain
aspects of discovery (see Secs. 26.41(a), (c); Sec. 26.43(b)).
HUD specifically invites the public to comment on these procedural
changes that would be incorporated into part 26 subpart B, as well as
ways in which HUD could further streamline its hearing procedures.
B. Program Fraud Civil Remedies Act of 1986
Part 28 of HUD's regulations contains the procedures for imposing
civil penalties and assessments, pursuant to the Program Fraud Civil
Remedies Act of 1986 (PFCRA), upon persons who make false or fraudulent
claims or statements to Federal authorities. HUD established the
regulations in part 28 on June 24, 1988 (53 FR 24000). The Department
of Health and Human Services led a task force to draft a model
regulation to implement PFCRA, and part 28 follows the model closely
with only minor variations to accommodate HUD's organizational and
program structure.
This proposed rule would streamline the provisions in part 28 by
removing the hearing procedures, and by retaining in their place a
cross-reference to the uniform hearing procedures in part 26 subpart B
(see, e.g., Sec. 28.40 of this proposed rule). This proposed rule would
also streamline the substantive provisions of the PFCRA regulations by
eliminating unnecessary language and by clarifying the remaining
language, making these regulations easier to use and understand. In
addition to these streamlining changes, HUD also proposes to shorten
the decision process by removing the reconsideration of initial
determinations.
C. Civil Money Penalties
HUD established the civil money penalties regulations in part 30 on
May 22, 1991 (56 FR 23622). These regulations implemented several
sections of the Department of Housing and Urban Development Reform Act
of 1989 (Pub. L. 101-235; approved December 15, 1989), which authorized
HUD to impose civil money penalties for unlawful conduct in connection
with a broad array of programs.
[[Page 18027]]
In this rule, HUD proposes to streamline the regulations in part
30. As with the regulations in part 28 for PFCRA, this proposed rule
would remove the hearing procedures from part 30, maintaining a cross-
reference to the uniform hearing procedures in part 26 subpart B. In
addition, this proposed rule would eliminate three of the civil money
penalty panels that exist in the current regulations: the Housing Civil
Penalties Panel (HCPP), the Government National Mortgage Association
Civil Penalties Panel (GCPP), and the Departmental Civil Penalties
Panel (DCPP) (see Sec. 30.205 of the current regulations). HUD created
these panels to review recommendations for and to propose civil money
penalties. However, this proposed rule would provide that certain
appropriate HUD officials would replace the panels in their authority
to initiate actions for civil money penalties. For instance, in
Sec. 30.20 of this proposed rule, the General Counsel or his or her
designee, rather than the DCPP, may initiate a civil money penalty
action against HUD employees who improperly disclose information. See
also Secs. 30.25 through 30.60 of this proposed rule.
In addition to the streamlining changes contained in this proposed
rule, HUD proposes to revise and clarify the list of violations for
Government National Mortgage Association (GNMA) issuers and custodians
(Sec. 30.45 of this proposed rule). HUD also proposes to revise the
list of violations applicable to mortgagees and lenders to include the
misuse of loan proceeds and the failure to comply with settlement
agreements with HUD (Sec. 30.35(a)(11) and (a)(15) of this proposed
rule), and to expand the violation for failure to service Section 235
mortgages to include other housing programs (Sec. 30.35(a)(10) of this
proposed rule).
This proposed rule would also revise part 30 to include the civil
money penalties that were enacted as part of the Housing and Community
Development Act of 1992 (Pub. L. 102-550; approved October 28, 1992).
Specifically, the proposed rule would add provisions concerning failure
to disclose lead-based paint (Sec. 30.60 of this proposed rule) and
violations by mortgagees and lenders concerning loan guarantees for
Indian Housing (Sec. 30.35(a)(14) of this proposed rule).
D. Conforming Changes
This proposed rule would also make necessary conforming changes,
which are merely technical and nonsubstantive, to the following HUD
regulations:
1. Government Sponsored Enterprises, 24 CFR part 81;
2. Participation and Compliance Requirements for Federal Housing
Administration programs, 24 CFR 200.243;
3. Insurance Entities under the Indian Housing Programs, 24 CFR
950.190, and the Public Housing Programs, 24 CFR 965.205;
4. The Real Estate Settlement Procedures Act, 24 CFR part 3500.
III. Other Matters
National Environmental Policy Act
In accordance with 40 CFR 1508.4 of the regulations of the Council
on Environmental Quality and 24 CFR 50.20(k) of HUD regulations, the
policies and procedures contained in this proposed rule relate only to
hearing procedures and administrative decisions, which do not
constitute development decisions and do not affect the physical
condition of a project area or building site. Therefore, this proposed
rule is categorically excluded from the requirements of the National
Environmental Policy Act.
Regulatory Flexibility Act
In accordance with the Regulatory Flexibility Act (5 U.S.C.
605(b)), the Secretary hereby certifies that this proposed rule would
not have a significant economic impact on a substantial number of small
entities. This proposed rule implements statutory authority intended to
protect HUD's programs from abusive practices, but it will have no
adverse or disproportionate economic impact on small businesses.
Executive Order 12606, The Family
The General Counsel, as the Designated Official under Executive
Order 12606, The Family, has determined that this proposed rule does
not have potential for significant impact on family formation,
maintenance, and general well-being. No significant change in existing
HUD policies or programs will result from promulgation of this proposed
rule, as those policies and programs relate to family concerns.
Therefore, the proposed rule is not subject to review under the Order.
Executive Order 12612, Federalism
The General Counsel, as the Designated Official under Section 6(a)
of Executive Order 12612, Federalism, has determined that the policies
contained in this proposed rule will not have substantial direct
effects on States or their political subdivisions, or the relationship
between the Federal Government and the States, or on the distribution
of power and responsibilities among the various levels of government.
As a result, the proposed rule is not subject to review under the
Order.
List of Subjects
24 CFR Part 26
Administrative practice and procedure, Claims, Fraud, Grant
programs--housing and community development, Loan programs--housing and
community development, Mortgages, Penalties.
24 CFR Part 28
Administrative practice and procedure, Claims, Fraud, Penalties.
24 CFR Part 30
Administrative practice and procedure, Grant programs--housing and
community development, Loan programs--housing and community
development, Mortgages, Penalties.
24 CFR Part 81
Accounting, Federal Reserve System, Mortgagees, Reporting and
recordkeeping requirements, Securities.
24 CFR Part 200
Administrative practice and procedure, Claims, Equal employment
opportunity, Fair housing, Home improvement, Housing standards,
Incorporation by reference, Lead poisoning, Loan programs--housing and
community development, Minimum property standards, Mortgage insurance,
Organization and functions (Government agencies), Penalties, Reporting
and recordkeeping requirements, Social security, Unemployment
compensation, Wages.
24 CFR Part 950
Aged, Grant programs--housing and community development, Grant
programs--Indians, Indians, Individuals with disabilities, Low and
moderate income housing, Public housing, Reporting and recordkeeping
requirements.
24 CFR Part 965
Energy conservation, Government procurement, Grant programs--
housing and community development, Lead poisoning, Loan programs--
housing and community development, Public housing, Reporting and
recordkeeping requirements, Utilities.
24 CFR Part 3500
Consumer protection, Condominiums, Housing, Mortgages, Mortgage
servicing, Reporting and recordkeeping requirements.
[[Page 18028]]
Accordingly, parts 26, 28, 30, 81, 200, 950, 965, and 3500 of title
24 of the Code of Federal Regulations are proposed to be amended as
follows:
PART 26--HEARING PROCEDURES
1. The part heading for part 26 is revised to read as set forth
above.
2. The authority citation for 24 CFR part 26 continues to read as
follows:
Authority: 42 U.S.C. 3535(d).
3. The heading of subpart A is revised to read, ``Subpart A--
Hearings Before Hearing Officers''.
Subparts B, C, D, E, F, and G [Redesignated]
4. The headings for subparts B, C, D, E, F, and G are redesignated
as undesignated center headings; and Secs. 26.2 through 26.26 of
subparts B, C, D, E, F, and G are redesignated as Secs. 26.2 through
26.26 of subpart A.
5. A new subpart B is added to read as follows:
Subpart B--Hearings Pursuant to the Administrative Procedure Act
General
Sec.
26.27 Purpose and scope.
26.28 Definitions.
26.29 Powers and duties of the Administrative Law Judge (ALJ).
26.30 Ex parte contacts.
26.31 Disqualification of ALJ.
26.32 Parties to the hearing.
26.33 Separation of functions.
26.34 Time computations.
26.35 Service and filing.
26.36 Sanctions.
Prehearing Procedures
26.37 Commencement of action.
26.38 Motions.
26.39 Default.
26.40 Prehearing conferences.
26.41 Discovery.
26.42 Subpoenas.
26.43 Protective order.
Hearings
26.44 General.
26.45 Witnesses.
26.46 Evidence.
26.47 The record.
26.48 Posthearing briefs.
26.49 Initial decision.
26.50 Appeal to the Secretary.
26.51 Exhaustion of administrative remedies.
26.52 Judicial review.
26.53 Collection of civil penalties and assessments.
26.54 Right to administrative offset.
Subpart B--Hearings Pursuant to the Administrative Procedure Act
General
Sec. 26.27 Purpose and scope.
Unless otherwise specified in this part, the rules in this subpart
B apply to hearings that HUD is required by statute to conduct pursuant
to the Administrative Procedure Act (5 U.S.C. 554 et seq.).
Sec. 26.28 Definitions.
The following definitions apply to subpart B of this part:
Chief Docket Clerk means the Chief Docket Clerk of the Office of
Administrative Law Judges at the following address: 409 3rd Street,
S.W., Suite 320, Washington, D.C. 20024.
Complaint means the notice from HUD alleging violations of a HUD
statute and/or regulation, citing the legal authority upon which it is
issued, stating the relief HUD seeks, and informing a respondent of his
or her right to file a response and to request an opportunity for a
hearing before an Administrative Law Judge.
Response means the written response to a complaint, admitting or
denying the allegations in the complaint and setting forth any
affirmative defense and/or any mitigating factors or extenuating
circumstances. A response is deemed a request for a hearing.
Sec. 26.29 Powers and duties of the Administrative Law Judge (ALJ).
Authority of the Administrative Law Judge (ALJ). The ALJ shall
conduct a fair and impartial hearing, avoid delay, maintain order, and
assure that a record of the proceeding is made. The ALJ is authorized
to:
(a) Set and change the date, time, and place of the hearing upon
reasonable notice to the parties;
(b) Continue or recess the hearing in whole or in part for a
reasonable period of time;
(c) Hold conferences to identify or simplify the issues, or to
consider other matters that may aid in the expeditious disposition of
the proceeding;
(d) Administer oaths and affirmations;
(e) Issue subpoenas requiring the attendance of witnesses and the
production of documents at depositions or at hearings;
(f) Rule on motions and other procedural matters;
(g) Regulate the scope and timing of discovery;
(h) Regulate the course of the hearing and the conduct of
representatives and parties;
(i) Examine witnesses;
(j) Receive, rule on, exclude, or limit evidence;
(k) Upon motion of a party, take official notice of facts;
(l) Upon motion of a party, decide cases, in whole or in part, by
summary judgment where there is no disputed issue of material fact;
(m) Conduct any conference, argument, or hearing on motions in
person or by telephone; and
(n) Exercise such other authority as is necessary to carry out the
responsibilities of the ALJ under this part.
Sec. 26.30 Ex parte contacts.
No party or person (except employees of the ALJ's office) shall
communicate in any way with the ALJ on any matter at issue in a case,
unless on notice and opportunity for all parties to participate. This
provision does not prohibit a person or party from inquiring about the
status of a case or asking routine questions concerning administrative
functions or procedures.
Sec. 26.31 Disqualification of ALJ.
(a) An ALJ in a particular case may disqualify himself or herself.
(b) A party may file with the ALJ a motion for the ALJ's
disqualification. The motion shall be accompanied by an affidavit
alleging the grounds for disqualification.
(c) Upon the filing of a motion and affidavit, the ALJ shall
proceed no further in the case until the matter of disqualification is
resolved.
Sec. 26.32 Parties to the hearing.
(a) General. The parties to the hearing shall be the respondent and
HUD.
(b) Rights of parties. Except as otherwise limited by subpart B of
this part, all parties may:
(1) Be accompanied, represented, and advised by a representative;
(2) Participate in any conference held by the ALJ;
(3) Conduct discovery;
(4) Agree to stipulations of fact or law, which shall be made part
of the record;
(5) Present evidence relevant to the issues at the hearing;
(6) Present and cross-examine witnesses;
(7) Present oral arguments at the hearing as permitted by the ALJ;
and
(8) Submit written briefs and proposed findings of fact and
conclusions of law after the hearing.
Sec. 26.33 Separation of functions.
No officer, employee, or agent of the Federal Government engaged in
the performance of investigative, conciliatory, or prosecutorial
functions in connection with the proceeding shall, in that proceeding
or any factually
[[Page 18029]]
related proceeding under subpart B of this part, participate or advise
in the decision of the administrative law judge, except as a witness or
counsel during the proceeding, or in its appellate review.
Sec. 26.34 Time computations.
(a) In computing any period of time under subpart B of this part,
the time period begins the day following the act, event, or default and
includes the last day of the period, unless the last day is a Saturday,
Sunday, or legal holiday observed by the Federal Government, in which
case the time period includes the next business day. When the
prescribed time period is seven days or less, intermediate Saturdays,
Sundays, and legal holidays shall be excluded from the computation.
(b) Entry of orders. In computing any time period involving the
date of the issuance of an order or decision by an administrative law
judge, the date of issuance is the date the order or decision is served
by the Chief Docket Clerk.
(c) Service by mail. If a document is served by mail, five days
shall be added to the time permitted for a response.
Sec. 26.35 Service and filing.
(a) Filing. All documents shall be filed with the Chief Docket
Clerk, at the address listed in Sec. 26.28. Filing may be by first
class mail, delivery, facsimile transmission, or electronic means;
however, the ALJ may place appropriate limits on filing by facsimile
transmission or electronic means. All documents shall clearly designate
the docket number and title of the proceeding.
(b) Service. One copy of all documents filed with the Chief Docket
Clerk shall be served upon each party by the persons filing them and
shall be accompanied by a certificate of service stating how and when
such service has been made. Service may be made by delivery, first
class mail, facsimile transmission, or electronic means; however, the
ALJ may place appropriate limits on service by facsimile transmission
or electronic means. Documents shall be served upon a party's address
of residence or principal place of business, or, if the party is
represented by counsel, upon counsel of record at the address of
counsel. Service is complete when handed to the person or delivered to
the person's office or residence and deposited in a conspicuous place.
If service is by first-class mail, facsimile transmission or electronic
means, service is complete upon deposit in the mail or upon electronic
transmission.
Sec. 26.36 Sanctions.
(a) The ALJ may sanction a person, including any party or
representative, for failing to comply with an order, rule, or procedure
governing the proceeding; failing to prosecute or defend an action; or
engaging in other misconduct that interferes with the speedy, orderly,
or fair conduct of the hearing.
(b) Any sanction, including but not limited to those listed in
paragraphs (c), (d), and (e) of this section, shall reasonably relate
to the severity and nature of the failure or misconduct.
(c) Failure to comply with an order. When a party fails to comply
with an order, including an order compelling discovery, the ALJ may:
(1) Draw an inference in favor of the requesting party with regard
to the information sought;
(2) In the case of requests for admission, regard each matter about
which an admission is requested to be admitted;
(3) Prohibit the party failing to comply with the order from
introducing evidence concerning, or otherwise relying upon, testimony
relating to the information sought; or
(4) Strike any part of the pleadings or other submissions of the
party failing to comply with the order.
(d) If a party fails to prosecute or defend an action under this
part, the ALJ may dismiss the action or may issue an initial decision
against the respondent.
(e) The ALJ may refuse to consider any motion, request, response,
brief or other document that is not filed in a timely fashion.
Prehearing Procedures
Sec. 26.37 Commencement of action.
An action under subpart B of this part shall commence with the
Government's filing of a complaint, and a response thereto, as those
terms are defined in Sec. 26.28, with the Chief Docket Clerk. If the
respondent fails to file a response, then the Government may file a
motion for a default judgment, together with a copy of the complaint,
in accordance with Sec. 26.39.
Sec. 26.38 Motions.
(a) General. All motions shall state the specific relief requested
and the basis therefor and, except during a conference or the hearing,
shall be in writing. Written motions shall be filed and served in
accordance with Sec. 26.35.
(b) Response to motions. Unless otherwise ordered by the ALJ, a
response to a written motion may be filed within 7 days after service
of the motion. A party failing timely to respond to a motion shall be
deemed to have waived any objection to the granting of the motion.
Sec. 26.39 Default.
(a) General. The respondent may be found in default, upon motion,
for failure to file a timely response to the Government's complaint.
The motion shall include a copy of the complaint and a proposed default
order, and shall be served upon all parties. The respondent shall have
7 days from such service to respond to the motion.
(b) Default order. The ALJ shall issue a decision on the motion
within 15 days after the expiration of the time for filing a response
to the default motion. If a default order is issued, it shall
constitute the final agency action.
(c) Effect of default. A default shall constitute an admission of
all facts alleged in the Government's complaint and a waiver of
respondent's right to a hearing on such allegations. The penalty
proposed in the complaint shall be set forth in the default order and
shall be immediately due and payable by respondent without further
proceedings.
Sec. 26.40 Prehearing conferences.
(a) The ALJ may schedule prehearing conferences as appropriate.
(b) Upon the motion of any party, the ALJ shall schedule at least
one prehearing conference at a reasonable time in advance of the
hearing.
(c) Prehearing conferences may consider the following:
(1) Simplification of the issues;
(2) Stipulations of fact and of the authenticity, accuracy, and
admissibility of documents;
(3) Submission of the case on briefs in lieu of an oral hearing;
(4) Limitation of the number of witnesses;
(5) The exchange of witness lists and of proposed exhibits;
(6) Discovery;
(7) The time and place for the hearing; and
(8) Such other matters as may tend to expedite the fair and just
disposition of the proceedings.
Sec. 26.41 Discovery.
(a) Unless otherwise stated in subpart B of this part, discovery
shall be conducted in accordance with the Federal Rules of Civil
Procedure, except for Rule 26(a), (d) and (f).
(b) Discovery in Program Fraud Civil Remedies actions (24 CFR part
28), unless agreed to by the parties, shall be available only as
ordered by the ALJ. The party opposing discovery shall have 10 days to
respond to a motion for discovery. The ALJ shall grant a motion
[[Page 18030]]
for discovery only if he or she finds that discovery is necessary for
the expeditious, fair, and reasonable consideration of the issues, is
not unduly costly or burdensome, will not unduly delay the proceeding,
and does not seek privileged information. The ALJ may grant discovery
subject to a protective order under Sec. 26.43. The request for
approval sent to the Attorney General from the General Counsel or
designee, as described in Sec. 28.20 of this title, is not discoverable
under any circumstances.
(c) The following types of discovery are authorized:
(1) Requests for production of documents for inspection and
copying. Nothing contained herein shall be interpreted to require the
creation of a document.
(2) Requests for admissions.
(3) Written interrogatories. Such interrogatories shall be limited
in number in accordance with Rule 33 of the Federal Rules of Civil
Procedure.
(4) Depositions.
(d) Motions to compel. A party may file a motion to compel
discovery. The motion shall describe the information sought, cite the
opposing party's objection, and provide arguments supporting the
motion. The opposing party may file a response to the motion, including
a request for a protective order. The ALJ may issue an order compelling
a response, issue sanctions pursuant to Sec. 26.36, or issue a
protective order. For purposes of paragraph (d) of this section, an
evasive or incomplete answer to a request for discovery is treated as a
failure to answer.
(e) Each party shall bear its own costs of discovery.
Sec. 26.42 Subpoenas.
(a) General. Upon written request of a party, the ALJ may issue a
subpoena requiring the attendance of a witness at a deposition or
hearing, and/or the production of documents. The request shall specify
any documents to be produced and shall list the names and addresses of
the witnesses.
(b) Time of request. A request for a subpoena in aid of discovery
shall be filed in time to permit the conclusion of discovery 15 days
before the date fixed for the hearing. A request for a subpoena to
testify at the hearing shall be filed at least three days prior to the
hearing, unless otherwise allowed by the ALJ for good cause shown.
(c) The subpoena shall specify the time and place at which the
witness is to appear and any documents the witness is to produce.
(d) Service and fees. Subpoenas shall be served, and fees and costs
paid to subpoenaed witnesses, in accordance with Rule 45(b)(1) of the
Federal Rules of Civil Procedure.
(e) Motion to quash. The individual to whom the subpoena is
directed or a party may file a motion to quash the subpoena within 10
days after service, or on or before the time specified in the subpoena
for compliance if it is less than 10 days after service.
Sec. 26.43 Protective order.
(a) A party or a prospective witness or deponent may file a motion
for a protective order with respect to discovery sought by an opposing
party or with respect to the hearing, seeking to limit the availability
or disclosure of evidence.
(b) In issuing a protective order, the ALJ may issue any order that
justice requires to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense, as provided for
in Rule 26(c) of the Federal Rules of Civil Procedure.
Hearings
Sec. 26.44 General.
(a) Time of hearing. The hearing shall commence not later than 60
days following the filing of the complaint and response under
Sec. 26.37, unless the time is extended for good cause. The ALJ shall
provide written notice to all parties of the reasons for any extension
of time.
(b) Location of hearing. The hearing shall be held where the
respondent resides or transacts business, or in such other place as may
be agreed upon by the parties and the ALJ. Hearings for Program Fraud
Civil Remedies Act cases shall be located in accordance with 31 U.S.C.
3803(g)(4).
(c) Notice of hearing. The ALJ shall issue a notice of hearing to
all parties specifying the time and location of the hearing, the
matters of fact and law to be heard, the legal authority under which
the hearing is to be held, a description of the procedures for the
conduct of the hearing, and such other matters as the ALJ determines to
be appropriate.
(d) Limitations for Program Fraud Civil Remedies Act cases. The
notice of hearing must be served upon the respondent within 6 years
after the date on which the claim or statement is made. If the
respondent fails to file a timely response to the Government's
complaint, service of a default judgment under Sec. 26.39 shall be
regarded as a notice of hearing for purposes of this section. The
statute of limitations may be extended by agreement of the parties.
(e) Burden and standard of proof. HUD shall prove the respondent's
liability and any aggravating factors by a preponderance of the
evidence. Respondent shall prove any affirmative defenses and any
mitigating factors by a preponderance of the evidence.
(f) Public hearings. Unless otherwise ordered by the ALJ for good
cause shown, the hearing shall be open to the public.
Sec. 26.45 Witnesses.
(a) Except as provided in paragraph (b) of this section, testimony
at the hearing shall be given orally by witnesses under oath or
affirmation.
(b) At the discretion of the ALJ, testimony may be admitted in the
form of a written statement or deposition. In order to be admissible,
any written statement must be provided to all other parties along with
the last known address of the witness, in a manner that allows
sufficient time for other parties to subpoena the witness for cross-
examination at the hearing.
Sec. 26.46 Evidence.
(a) The ALJ shall admit any relevant oral or documentary evidence
that is not privileged. The ALJ may, however, exclude evidence if its
probative value is substantially outweighed by the danger of unfair
prejudice, by confusion of the issues, or by considerations of undue
delay, waste of time, or needless presentation of cumulative evidence.
(b) Evidence concerning offers of compromise or settlement shall be
inadmissible to the extent provided in Rule 408 of the Federal Rules of
Evidence.
(c) All documents and other evidence offered or taken for the
record shall be open to examination by all parties, unless otherwise
ordered by the ALJ in accordance with Sec. 26.43.
Sec. 26.47 The record.
(a) The hearing will be recorded and transcribed. The transcript of
testimony, exhibits, and other evidence admitted at the hearing and all
papers and requests filed in the proceeding constitute the record for
the decision by the ALJ and the Secretary or designee.
(b) The record may be inspected and copied (upon payment of a
reasonable fee) by anyone, unless otherwise ordered by the ALJ in
accordance with Sec. 26.43.
Sec. 26.48 Posthearing briefs.
Posthearing briefs shall be filed only upon order by the ALJ.
Sec. 26.49 Initial decision.
(a) The ALJ shall issue an initial decision based only on the
record, which shall contain findings of fact, conclusions of law, and
the relief
[[Page 18031]]
granted. The ALJ shall consider such factors as may be set forth in
applicable statutes and regulations.
(b) The ALJ shall serve the initial decision on all parties within
45 days after either the close of the record, or the expiration of time
permitted for submission of posthearing briefs, whichever is later. The
initial decision shall include a statement of each party's right to
file a request for Secretarial review. The ALJ may extend the 45-day
period for serving the initial decision in writing for good cause.
(c) If no appeal is timely filed with the Secretary or designee,
the initial decision shall become the final agency action.
Sec. 26.50 Appeal to the Secretary.
(a) Except as otherwise set forth in paragraph (b) of this section,
either party may file with the Secretary a petition for review within
30 days after the ALJ issues an initial decision. The Secretary or
designee may extend the 30-day period for good cause. If the Secretary
or designee does not act upon the petition for review within 90 days of
its service, then the initial decision shall become final.
(b) Appeals of Program Fraud Civil Remedies Act decisions (24 CFR
part 28). Only the respondent may file a petition for Secretarial
review. The petition must be filed within 30 days after the ALJ issues
the initial decision. The Secretary or designee may extend the 30-day
period for good cause. If the Secretary or designee does not act upon
the petition for review within 30 days of its service, then the initial
decision shall become final.
(c) Brief in support of petition. The petition for review shall be
accompanied by a written brief, not to exceed 10 pages, specifying
exceptions to the initial decision and reasons supporting the
exceptions.
(d) Service. The party submitting the petition for review shall
serve a copy of the petition and brief in support on the other parties
and on the Chief Docket Clerk.
(e) Forwarding of the record. Upon the filing of a petition for
review, the ALJ shall forward the record of the proceeding to the
Secretary or designee.
(f) Brief in opposition. Any opposing party may file a brief
opposing review, not to exceed 10 pages, within 20 days of receiving
the petition for review and accompanying brief. The brief in opposition
shall be served on all parties.
(g) Additional briefs. If the petition is granted, then the
Secretary or designee may order the filing of additional briefs.
(h) There is no right to appear personally before the Secretary or
designee.
(i) There is no right to appeal any interlocutory ruling by the
ALJ.
(j) In reviewing the initial decision, the Secretary or designee
shall not consider any objection that was not raised before the ALJ
unless a demonstration is made of extraordinary circumstances causing
the failure to raise the objection.
(k) The Secretary or designee shall consider only evidence
contained in the record forwarded by the ALJ. However, if any party
demonstrates to the satisfaction of the Secretary or designee that
additional evidence not presented at the hearing is material and that
there were reasonable grounds for the failure to present such evidence
at such hearing, the Secretary or designee shall remand the matter to
the ALJ for consideration of such additional evidence.
(l) The prohibitions of ex parte contacts in Sec. 26.30 shall apply
to contacts with the Secretary or designee.
(m) The Secretary or designee may affirm, reduce, reverse,
compromise, remand, or settle any relief granted in the initial
decision. The Secretary or designee shall consider, and include in any
final determination, such factors as may be set forth in applicable
statutes or regulations.
(n) The Secretary or designee shall promptly serve each party to
the appeal with a copy of his or her decision and a statement
describing the right to seek judicial review.
(o) Judicial review. Generally, a party must file a petition for
judicial review within 20 days of service of the Secretary's
determination, or the Secretary's determination shall become final and
not subject to judicial review. In Program Fraud Civil Remedies Act
matters (24 CFR part 28), the respondent shall have 60 days from the
date that the determination is sent to the respondent in which to file
a petition.
Sec. 26.51 Exhaustion of administrative remedies.
In order to fulfill the requirement of exhausting administrative
remedies, a party must seek Secretarial review under Sec. 26.50 prior
to seeking judicial review of any initial decision issued under subpart
B of this part.
Sec. 26.52 Judicial review.
Judicial review shall be in accordance with applicable statutory
procedures and the procedures of the appropriate Federal court. The
Government may not seek judicial review of an adverse determination of
a Program Fraud Civil Remedies Act matter.
Sec. 26.53 Collection of civil penalties and assessments.
Collection of civil penalties and assessments shall be in
accordance with applicable statutory provisions.
Sec. 26.54 Right to administrative offset.
The amount of any penalty or assessment that has become final, or
for which a judgment has been entered under Secs. 26.52 or 26.53, or
agreed upon in a compromise or settlement among the parties, may be
collected by administrative offset under 31 U.S.C. 3716 or other
applicable law. In Program Fraud Civil Remedies Act matters, an
administrative offset may not be collected against a refund of an
overpayment of Federal taxes then or later owing by the United States
to the respondent.
6-8. Part 28 is revised to read as follows:
PART 28--IMPLEMENTATION OF THE PROGRAM FRAUD CIVIL REMEDIES ACT OF
1986
Sec.
28.1 Purpose.
28.5 Definitions.
28.10 Basis for civil penalties and assessments.
28.15 Investigation.
28.20 Request for approval by the Justice Department.
28.25 Notice of civil penalty (and assessment).
28.30 Response.
28.35 Disclosure of documents.
28.40 Hearings.
28.45 Settlements.
Authority: 31 U.S.C. 3801; 42 U.S.C. 3535(d).
Sec. 28.1 Purpose.
This part:
(a) Establishes administrative procedures for imposing civil
penalties and assessments against persons who make, submit, or present,
or cause to be made, submitted, or presented, false, fictitious, or
fraudulent claims or written statements to Federal authorities or to
their agents; and
(b) Specifies the hearing and appeal rights of persons subject to
allegations of liability for such penalties and assessments. Hearings
under this part shall be conducted pursuant to 24 CFR part 26, subpart
B.
Sec. 28.5 Definitions.
The terms ALJ and HUD are defined in 24 CFR part 5.
Benefit means anything of value, including, but not limited to, any
advantage, preference, privilege, license, permit, favorable decision,
ruling, status, or loan insurance or guarantee.
Claim means any request, demand, or submission:
[[Page 18032]]
(1) Made to HUD for property, services, or money (including money
representing grants, loans, insurance, or benefits);
(2) Made to a recipient of property, services, or money from HUD or
to a party to a contract with HUD; or
(3) Made to HUD which has the effect of decreasing an obligation to
pay or account for property, services, or money.
Knows or has reason to know means that a person has actual
knowledge that a claim or statement is false, fictitious, or
fraudulent; acts in deliberate ignorance of the truth or falsity of the
claim or statement; or acts in reckless disregard of the truth or
falsity of the claim or statement.
Person means any individual, partnership, corporation, association,
private organization or entity.
Respondent means any person alleged to be liable for a civil
penalty or assessment under Sec. 28.25.
Statement means any representation, certification, affirmation,
document, record, or accounting or bookkeeping entry made:
(1) With respect to a claim, to obtain approval or payment of a
claim, or relating to eligibility to make a claim; or
(2) With respect to or relating to eligibility for a contract, bid,
or proposal for a contract with; or a grant or cooperative agreement,
loan, or benefit from; HUD, any State, any political subdivision of a
State, or other party, if the United States Government provides any
portion of the money or property under the contract or the grant or
cooperative agreement, loan, or benefit, or if the Government will
reimburse the State, political subdivision, or party for any portion of
the money or property under the contract or for the grant or
cooperative agreement, loan, or benefit.
Sec. 28.10 Basis for civil penalties and assessments.
(a) Claims. (1) A civil penalty of not more than $5,000 may be
imposed upon a person who makes a claim that the person knows or has
reason to know:
(i) Is false, fictitious, or fraudulent;
(ii) Includes or is supported by a written statement that either
contains a material fact which is false, fictitious, or fraudulent; or
omits a material fact which the person has a duty to include and is
false, fictitious, or fraudulent as a result of the omission; or
(iii) Is for payment for the provision of property or services that
the person has not provided as claimed.
(2) Each voucher, invoice, claim form, or other individual request
or demand for property, services, or money constitutes a separate
claim.
(3) A claim shall be considered made to HUD, to a recipient, or to
a party when the claim actually is made to an agent, fiscal
intermediary, or other entity, including any State or political
subdivision of a State, acting for or on behalf of HUD, the recipient,
or the party.
(4) Each claim for property, services, or money is subject to a
civil penalty without regard to whether the property, services, or
money actually is delivered or paid.
(5) Limit on amount of claim. Liability under this part shall not
lie if the amount of money or value of property or services claimed
exceeds $150,000 as to each claim that a person submits. For purposes
of paragraph (a) of this section, a group of claims submitted
simultaneously as part of a single transaction shall be considered a
single claim.
(6) Assessment. If the Government has made any payment, transferred
property or provided services on a claim, then the Government may
assess a person found liable up to twice the amount of the claim or
portion of the claim that is determined to be in violation of paragraph
(a)(1) of this section.
(b) Statements. (1) A civil penalty of up to $5,000 may be imposed
upon a person who makes a written statement that:
(i) The person knows, or has reason to know, contains a material
fact which is false, fictitious, or fraudulent; or omits a material
fact that the person has a duty to include and is false, fictitious, or
fraudulent because of that omission; and
(ii) Contains or is accompanied by an express certification or
affirmation of the truthfulness and accuracy of the contents of the
statement.
(2) Each written representation, certification, or affirmation
constitutes a separate statement.
(3) A statement shall be considered made to HUD when the statement
is actually made to an agent, fiscal intermediary, or other entity,
including any State or political subdivision of a State, acting for or
on behalf of HUD.
(c) Limit on liability. If the claim or statement relates to low-
income housing benefits or housing benefits for the elderly or
handicapped, then a person may be held liable only if he or she has
made the claim or statement in the course of applying for such
benefits, with respect to his or her eligibility, or family's
eligibility, to receive such benefits. For purposes of paragraph (c) of
this section, housing benefits means any instance wherein funds
administered by the Secretary directly or indirectly permit low-income
families or elderly or handicapped persons to reside in housing which
otherwise would not be available to them.
(d) No proof of specific intent to defraud is required to establish
liability under this section.
(e) Joint and several liability. A civil penalty or assessment may
be imposed jointly and severally where more than one person is
determined to be liable.
Sec. 28.15 Investigation.
(a) General. HUD may initiate a Program Fraud Civil Remedies Act
(31 U.S.C. 3801) case against a respondent only upon an investigation
by the Inspector General or his or her designee.
(b) Subpoena. Pursuant to 31 U.S.C. 3804(a), the Inspector General
or designee may require by subpoena the production of records and other
documents. The subpoena shall state the authority under which it is
issued, identify the records sought, and name the person designated to
receive the records. The recipient of the subpoena shall provide a
certification that the documents sought have been produced, that the
documents are not available and the reasons they are not available, or
that the documents, suitably identified, have been withheld based upon
the assertion of an identified privilege.
(c) Investigation report. If the Inspector General or designee
concludes that an action under the Program Fraud Civil Remedies Act may
be warranted, her or she shall submit a report containing the findings
and conclusions of the investigation to the General Counsel or his or
her designee.
(d) The Inspector General may refer allegations directly to the
Department of Justice for suit under the False Claims Act (31 U.S.C.
3730) or for other civil relief, or may postpone submitting a report to
the General Counsel to avoid interference with a criminal investigation
or prosecution. The Inspector General shall report violations of
criminal law to the Attorney General.
Sec. 28.20 Request for approval by the Justice Department.
(a) If the General Counsel or designee determines that the
investigation report supports an action under this part, he or she must
submit a written request to the Department of Justice for approval to
issue a notice under Sec. 28.25.
(b) The request shall include a description of the claims or
statements at issue; the evidence supporting the notice; an estimate of
the amount of money or the value of property, services, or other
benefits requested or demanded in violation of Sec. 28.10; any
exculpatory or mitigating circumstances that may relate to the claims
or
[[Page 18033]]
statements; and a statement that there is a reasonable prospect of
collecting an appropriate amount of penalties and assessments.
Sec. 28.25 Notice of civil penalty (and assessment).
(a) General. Upon obtaining approval from the Department of
Justice, the General Counsel or designee may issue a notice of civil
penalty (and assessment, if appropriate) to the respondent. The notice
shall be sent by certified mail, return receipt requested, or shall be
personally served.
(b) Notice. The notice shall include:
(1) The allegations of liability against the respondent, including
the statutory basis for liability, the claims or statements at issue,
and the reasons why liability arises from those claims or statements;
(2) The amount of penalties and assessments for which the
respondent may be held liable;
(3) That the respondent may request a hearing by submitting a
written response to the notice;
(4) The address to which a response must be sent; and
(5) That failure to submit an answer within 30 days of receipt of
the notice may result in the imposition of the maximum amount of
penalties and assessments sought without right of appeal.
(c) A copy of this part 28 and of 24 CFR part 26, subpart B shall
be included with the notice.
Sec. 28.30 Response.
(a) The respondent may submit a written response to HUD within 30
days of service of the notice of civil penalty. The response shall be
deemed to be a request for hearing. The response should include the
admission or denial of each allegation of liability made in the notice;
any defense on which the respondent intends to rely; any reasons why
the penalties and assessments should be less than the amount set forth
in the notice; and the name, address, and telephone number of the
person who will act as the respondent's representative, if any.
(b) Filing with the Administrative Law Judges. The Department shall
file the notice and response with the Chief Docket Clerk, Office of
Administrative Law Judges. If no response is submitted, then the
Department may file a motion for default judgment, together with a copy
of the notice, in accordance with 24 CFR 26.39.
Sec. 28.35 Disclosure of documents.
Upon receipt of a notice of penalty, the respondent may, upon
written request to the General Counsel or designee, review any relevant
and material nonprivileged documents, including any exculpatory
documents, that relate to the allegations set out in the notice.
Exculpatory information that is contained in a privileged document must
be disclosed.
Sec. 28.40 Hearings.
(a) General. Hearings under this part shall be conducted in
accordance with the procedures in 24 CFR part 26, subpart B.
(b) Factors to consider in determining amount of penalties and
assessments. In determining an appropriate amount of civil penalties
and assessments, the administrative law judge (ALJ) and, upon appeal,
the Secretary shall consider and state in their opinions any mitigating
or aggravating circumstances. Because of the intangible costs of fraud,
the expense of investigating fraudulent conduct, and the need for
deterrence, ordinarily double damages and a significant civil penalty
should be imposed. The ALJ and the Secretary shall consider the
following factors in determining the amount of penalties and
assessments to be imposed:
(1) The number of false, fictitious, or fraudulent claims or
statements;
(2) The time period over which such claims or statements were made;
(3) The degree of the respondent's culpability with respect to the
misconduct;
(4) The amount of money or the value of the property, services, or
benefit falsely claimed;
(5) The value of the Government's actual loss as a result of the
misconduct, including foreseeable consequential damages and the cost of
investigation;
(6) The relationship of the civil penalties to the amount of the
Government's loss;
(7) The potential or actual impact of the misconduct upon national
defense, public health or safety, or public confidence in the
management of Government programs and operations, including
particularly the impact on the intended beneficiaries of such programs;
(8) Whether the respondent has engaged in a pattern of the same or
similar misconduct;
(9) Whether the respondent attempted to conceal the misconduct;
(10) The degree to which the respondent has involved others in the
misconduct or in concealing it;
(11) Where the misconduct of employees or agents is imputed to the
respondent, the extent to which the respondent's practices fostered or
attempted to preclude the misconduct;
(12) Whether the respondent cooperated in or obstructed an
investigation of the misconduct;
(13) Whether the respondent assisted in identifying and prosecuting
other wrongdoers;
(14) The complexity of the program or transaction, and the degree
of the respondent's sophistication with respect to it, including the
extent of the respondent's prior participation in the program or in
similar transactions;
(15) Whether the respondent has been found, in any criminal, civil,
or administrative proceeding, to have engaged in similar misconduct or
to have dealt dishonestly with the Government of the United States or
of a State, directly or indirectly;
(16) The need to deter the respondent and others from engaging in
the same or similar misconduct; and
(17) Any other factors that in any given case may mitigate or
aggravate the offense for which penalties and assessments are imposed.
(c) Stays ordered by the Department of Justice. If at any time the
Attorney General of the United States or an Assistant Attorney General
designated by the Attorney General notifies the Secretary in writing
that continuation of the Department's case may adversely affect any
pending or potential criminal or civil action related to the claim or
statement at issue, the ALJ or the Secretary shall stay the process
immediately. The case may be resumed only upon receipt of the written
authorization of the Attorney General.
Sec. 28.45 Settlements.
(a) The Department and the respondent may enter into a settlement
agreement at any time prior to the issuing of a notice of final
determination under 24 CFR 26.50.
(b) Failure of the respondent to comply with a settlement agreement
shall be sufficient cause for resuming an action under this part, or
for any other judicial or administrative action.
9-11. Part 30 is revised to read as follows:
PART 30--CIVIL MONEY PENALTIES: CERTAIN PROHIBITED CONDUCT
Subpart A--General
Sec.
30.1 Purpose and scope.
30.5 Effective dates.
30.10 Definitions.
30.15 Application of other remedies.
Subpart B--Violations
30.20 Ethical violations by HUD employees.
30.25 Violations by applicants for assistance.
30.30 Urban Homestead violations.
[[Page 18034]]
30.35 Mortgagees and lenders.
30.40 Multifamily and Section 202 mortgagors.
30.45 GNMA issuers and custodians.
30.50 Interstate Land Sales violations.
30.55 Dealers or loan correspondents.
30.60 Failure to disclose lead-based paint hazards.
Subpart C--Procedures
30.65 Prepenalty notice.
30.70 Response to prepenalty notice.
30.75 Factors in determining appropriateness and amount of civil
money penalty.
30.80 Notice of civil money penalty.
30.85 Response to the penalty notice.
30.90 Hearings.
30.95 Settlements.
Authority: 12 U.S.C. 1701q-1, 1703, 1723i, 1735f-14, 1735f-15;
15 U.S.C. 1717a; 42 U.S.C. 3535(d).
Subpart A--General
Sec. 30.1 Purpose and scope.
Unless provided for elsewhere in this title or under separate
authority, this part implements HUD's civil money penalty provisions.
The procedural rules for hearings under this part are set forth in 24
CFR part 26, subpart B.
Sec. 30.5 Effective dates.
(a) Under Sec. 30.20, a civil money penalty may be imposed for
violations occurring on or after May 22, 1991.
(b) Under Secs. 30.25, 30.35, 30.40, 30.45, 30.50, and 30.55, but
not Sec. 30.35(a)(14), a civil money penalty may be imposed for any
violations that occur on or after December 15, 1989.
(c) Under Sec. 30.30, a civil money penalty may be imposed with
respect to any property transferred for use under section 810 of the
Housing and Community Development Act of 1974, as amended (12 U.S.C.
1706e), after January 1, 1981, to a state, a unit of general local
government, or a public agency or qualified community organization
designated by a unit of general local government, or a transferee of
any such entity.
(d) Under Sec. 30.35(a)(14), concerning loan guarantees for Indian
housing, a civil money penalty may be imposed for violations occurring
on or after October 28, 1992.
(e) Under Sec. 30.60, a civil money penalty may be imposed for
violations occurring on or after the following dates:
(1) September 6, 1996, for owners of more than four residential
dwellings; or
(2) December 6, 1996, for owners of one to four residential
dwellings.
Sec. 30.10 Definitions.
Since this part is primarily procedural, terms not defined in this
section shall have the meanings given them in relevant program
regulations. Comprehensive definitions are in 24 CFR part 4
(Prohibition of Advance Disclosure of Funding Decisions) and 24 CFR
part 12 (Accountability in the Provision of HUD Assistance). The terms
ALJ, Department, HUD, and Secretary are defined in 24 CFR part 5.
Agent. Any person who acts on behalf of another person and includes
officers, directors, partners and trustees.
Dealer. A seller, contractor or supplier of goods or services
having a direct or indirect financial interest in the transaction
between the borrower and the lender, and who assists the borrower in
preparing the credit application or otherwise assists the borrower in
obtaining the loan from the lender.
Knowing or Knowingly. Having actual knowledge of or acting with
deliberate ignorance of or reckless disregard for the prohibitions
under subpart B of this part or under 24 CFR parts 4 or 12.
Loan correspondent. A lender or loan correspondent as defined at
Sec. 202.2 of this title.
Material or Materially. In some significant respect or to some
significant degree.
Person. An individual, corporation, company, association,
authority, firm, partnership, society, state, local government or
agency thereof, or any other organization or group of people.
Respondent. A person against whom a civil money penalty action is
initiated.
Sec. 30.15 Application of other remedies.
A civil money penalty may be imposed in addition to other
administrative sanctions or any other civil remedy or criminal penalty.
Subpart B--Violations
Sec. 30.20 Ethical violations by HUD employees.
(a) General. The General Counsel, or his or her designee, may
initiate a civil money penalty action against HUD employees who
improperly disclose information pursuant to Sec. 4.110 of this title.
(b) Maximum penalty. The maximum penalty is $10,000 for each
violation.
Sec. 30.25 Violations by applicants for assistance.
(a) General. The General Counsel, or his or her designee, may
initiate a civil money penalty action against applicants for
assistance, as defined in 24 CFR part 12, who knowingly and materially
violate the provisions of Sec. 12.32 (a), (b), or (c) of this title.
(b) Maximum penalty. The maximum penalty for each violation is
$10,000.
Sec. 30.30 Urban Homestead violations.
(a) General. The Assistant Secretary for Community Planning and
Development, or his or her designee, or the Director of the Office of
Technical Assistance and Management may initiate a civil money penalty
action against persons who knowingly and materially violate section 810
of the Housing and Community Development Act of 1974, as amended (12
U.S.C. 1706e), or the provisions of 24 CFR part 590, in the use or
conveyance of property made available under the Urban Homestead
Program.
(b) Maximum penalty. The maximum penalty is either twice the amount
of the gross profit realized from any impermissible use or conveyance
of the property, or the amount of section 810 funds used to reimburse
HUD, the Department of Veterans Affairs, the Resolution Trust
Corporation, or the Farmers Home Administration (or its successor
agency under Public Law 103-354) for the property, whichever is
greater. If the property is still held by the violator, the gross
profit shall include any appreciation between the amount the violator
paid for the property and its current value as determined by an
independent, HUD-qualified appraiser.
Sec. 30.35 Mortgagees and lenders.
(a) General. The Mortgagee Review Board may initiate a civil money
penalty action against any mortgagee or lender who knowingly and
materially:
(1) Violates the provisions listed in 12 U.S.C. 1735f-14(b);
(2) Fails to comply with the requirements of Sec. 201.27(a) of this
title regarding approval and supervision of dealers;
(3) Approves a dealer that has been suspended, debarred, or
otherwise denied participation in HUD's programs;
(4) Makes a payment that is prohibited under Sec. 202.12(p) of this
title;
(5) Fails to remit, or timely remit, mortgage insurance premiums,
loan insurance charges, or late charges or interest penalties;
(6) Permits loan documents for an FHA insured loan to be signed in
blank by its agents or any other party to the loan transaction unless
expressly approved by the Secretary;
(7) Fails to follow the mortgage assignment procedures set forth in
Secs. 203.650 through 203.664 of this title or in Secs. 207.255 through
207.258b of this title.
(8) Fails to timely submit documents that are complete and accurate
in connection with a conveyance of
[[Page 18035]]
property or a claim for insurance benefits, in accordance with
Secs. 203.365, 203.366, or 203.368 of this title;
(9) Fails to:
(i) Process requests for formal release of liability under an FHA
insured mortgage;
(ii) Obtain a credit report, issued not more than 90 days prior to
approval of a person as a borrower, as to the person's creditworthiness
to assume an FHA insured mortgage;
(iii) Timely submit proper notification of a change in mortgagor or
mortgagee as required by Sec. 203.431 of this title;
(iv) Timely submit proper notification of mortgage insurance
termination as required by Sec. 203.318 of this title;
(v) Timely submit proper notification of a change in mortgage
servicing as required by Sec. 203.502 of this title; or
(vi) Report all delinquent mortgages to HUD, as required by
Sec. 203.332 of this title;
(10) Fails to service FHA insured mortgages, in accordance with the
requirements of 24 CFR parts 201, 203, and 235;
(11) Fails to fund loans that it originated, or otherwise misuses
loan proceeds;
(12) Fails to comply with the conditions relating to the assignment
or pledge of mortgages as required by Sec. 207.261 of this title;
(13) Fails to comply with the provisions of the Real Estate
Settlement Procedures Act (12 U.S.C. 2601 et seq.), the Equal Credit
Opportunity Act (15 U.S.C. 1691 et seq.), or the Fair Housing Act (42
U.S.C. 3601 et seq.);
(14) Violates the provisions of 12 U.S.C. 1715z-13a(g)(2)
concerning loan guarantees for Indian housing;
(15) Fails to comply with the terms of a settlement agreement with
HUD.
(b) Continuing violation. Each day that a violation continues shall
constitute a separate violation.
(c) Amount of penalty. The maximum penalty is $5,000 for each
violation, up to a limit of $1,000,000 for all violations committed
during any one-year period. Each violation shall constitute a separate
violation as to each mortgage or loan application.
Sec. 30.40 Multifamily and Section 202 mortgagors.
(a) General. The Assistant Secretary for Housing-Federal Housing
Commissioner, or his or her designee, may initiate a civil money
penalty action against any mortgagor of property that includes five or
more living units and is subject to a mortgage insured, coinsured, or
held by the Secretary, who knowingly and materially commits a violation
listed at 12 U.S.C. 1735f-15(b) or (c), or 12 U.S.C. 1701q-1(b) or (c).
(b) Maximum penalty. The maximum penalty for each violation of 12
U.S.C. 1735f-15(b) and 12 U.S.C. 1701q-1(b) is the amount of loss that
the Secretary incurs at a foreclosure sale, or a sale after
foreclosure, with respect to the property involved. The maximum penalty
for each violation of 12 U.S.C. 1735f-15(c) and 12 U.S.C. 1701q-1(c) is
$25,000.
Sec. 30.45 GNMA issuers and custodians.
(a) General. The President of GNMA, or his or her designee, may
initiate a civil money penalty action against a GNMA issuer or
custodian that knowingly and materially violates any provision of 12
U.S.C. 1723i(b), title III of the National Housing Act, or any
implementing regulation, handbook, guaranty agreement, or contractual
agreement, or participant letter issued by GNMA, or fails to comply
with the terms of a settlement agreement with GNMA.
(b) Continuing violation. Each day that a violation continues shall
constitute a separate violation.
(c) Amount of penalty. The maximum penalty is $5,000 for each
violation, up to a limit of $1 million during any one-year period. Each
violation shall constitute a separate violation with respect to each
pool of mortgages.
Sec. 30.50 Interstate Land Sales violations.
(a) General. The Assistant Secretary for Housing-Federal Housing
Commissioner, or his or her designee, may initiate a civil money
penalty action against any person who knowingly and materially violates
any provision of the Interstate Land Sales Full Disclosure Act (15
U.S.C. 1701 et seq.); the rules and regulations set forth at 24 CFR
parts 1710, 1715, and 1720, or any order issued thereunder.
(b) Continuing violation. Each day that a violation continues shall
constitute a separate violation.
(c) Maximum penalty. The maximum penalty is $1,000, up to a limit
for any particular person of $1 million during any one-year period.
Each violation shall constitute a separate violation as to each sale or
lease or offer to sell or lease.
Sec. 30.55 Dealers or loan correspondents.
(a) General. The Assistant Secretary for Housing-Federal Housing
Commissioner, or his or her designee, may initiate a civil money
penalty action against any dealer or loan correspondent who violates
section 2(b)(7) of the National Housing Act (12 U.S.C. 1703). Such
violations include, but are not limited to:
(1) Falsifying information on an application for dealer approval or
reapproval submitted to a lender;
(2) Falsifying statements on a HUD credit application, improvement
contract, note, security instrument, completion certificate or other
loan document;
(3) Failing to sign a credit application if the dealer or loan
correspondent assisted the borrower in completing the application;
(4) Falsely certifying to a lender that the loan proceeds have been
or will be spent on eligible improvements;
(5) Falsely certifying to a lender that the property improvements
have been completed;
(6) Falsely certifying that a borrower has not been given or
promised any cash payment, rebate, cash bonus, or anything of more than
nominal value as an inducement to enter into a loan transaction;
(7) Making a false representation to a lender with respect to the
creditworthiness of a borrower or the eligibility of the improvements
for which a loan is sought.
(b) Continuing violation. Each day that a violation continues shall
constitute a separate violation.
(c) Amount of penalty. The maximum penalty is $5,000 for each
violation, up to a limit of $1 million during any one-year period.
Sec. 30.60 Failure to disclose lead-based paint hazards.
(a) General. The Director of the Office of Lead-Based Paint
Abatement and Poisoning Prevention, or his or her designee, may
initiate a civil money penalty action against any person who knowingly
violates 42 U.S.C. 4852d(b)(1) or any provision of 24 CFR part 35,
subpart H.
(b) Amount of penalty. The maximum penalty is $10,000 for each
violation.
Subpart C--Procedures
Sec. 30.65 Prepenalty notice.
Whenever HUD intends to seek a civil money penalty, the official
designated in subpart B of this part, or his or her designee (or the
chairperson of the Mortgagee Review Board, or his or her designee, in
actions under Sec. 30.35), shall issue a written notice to the
respondent. This prepenalty notice shall include the following:
(a) That HUD is considering seeking a civil money penalty;
(b) The specific violations alleged;
(c) The maximum civil money penalty that may be imposed;
(d) The opportunity to reply in writing to the designated program
official within 30 days after receipt of the notice; and
(e) That failure to respond within the 30-day period may result in
issuance of
[[Page 18036]]
a notice of civil money penalty under Sec. 30.80 without consideration
of any information that the respondent may wish to provide.
Sec. 30.70 Response to prepenalty notice.
The response shall be in a format prescribed in the prepenalty
notice. The response shall include any arguments opposing the
imposition of a civil money penalty that the respondent may wish to
present.
Sec. 30.75 Factors in determining appropriateness and amount of civil
money penalty.
In determining whether to seek a penalty, and the amount of such
penalty, the officials designated in subpart B of this part shall
consider the following factors:
(a) The gravity of the offense;
(b) Any history of prior offenses. For violations under
Secs. 30.25, 30.35, 30.40, 30.45, 30.50, and 30.55, but not violations
under Sec. 30.35(a)(14), offenses that occurred prior to December 15,
1989 may be considered;
(1) The ability to pay the penalty;
(2) The injury to the public;
(3) Any benefits received by the violator;
(4) The extent of potential benefit to other persons;
(5) Deterrence of future violations;
(6) The degree of the violator's culpability;
(7) With respect to Urban Homestead violations under Sec. 30.30,
the expenditures made by the violator in connection with any gross
profit derived; and
(8) Such other matters as justice may require.
(c) In addition to the above factors, with respect to violations
under Secs. 30.40, 30.50, and 30.55, the Assistant Secretary for
Housing-Federal Housing Commissioner, or his or her designee, shall
also consider:
(1) Any injury to tenants; and/or
(2) Any injury to lot owners.
Sec. 30.80 Notice of civil money penalty.
(a) General. Upon the expiration of the period for the respondent
to submit a response to the prepenalty notice, the official designated
in subpart B of this part, or his or her designee (or the Mortgagee
Review Board in actions under Sec. 30.35) shall determine whether to
seek a civil money penalty. Such determination shall be based upon a
review of the prepenalty notice, the response, if any, and the factors
listed at Sec. 30.75. A determination by the Mortgagee Review Board to
seek a civil money penalty shall be by a majority vote of the Board.
(b) Notice. If a determination is made to seek a civil money
penalty, the official or his or her designee, or the Mortgagee Review
Board, shall so notify the respondent, in writing. The notice shall
state the following:
(1) The factual basis for the decision to seek a penalty;
(2) The applicable civil money penalty statute;
(3) The amount of penalty sought;
(4) The right to submit a response in writing, within 15 days of
receipt of the notice, requesting a hearing on any material fact in the
notice, or on the appropriateness of the penalty sought;
(5) The address to which a response must be sent;
(6) That the notice shall serve as HUD's complaint if a hearing is
requested; and
(7) That the failure to submit a response may result in the
imposition of the penalty in the amount sought.
(c) A copy of this part and of 24 CFR part 26, subpart B shall be
included with the notice.
(d) Service of the notice. The notice shall be served on the
respondent by first class mail, personal delivery, or other means. In
cases of violations by mortgagees and lenders of 12 U.S.C. 1735f-
14(b)(1)(D) or (1)(F), or by GNMA issuers or custodians of 12 U.S.C.
1723i(b)(1)(G) or (1)(I), a copy of the notice shall be provided to the
Attorney General.
Sec. 30.85 Response to the penalty notice.
(a) General. The respondent may submit to HUD a written response to
the penalty notice within 15 days of its receipt. The response shall be
considered a request for a hearing. The response should include the
admission or denial of each allegation of liability made in the notice;
any defense on which the respondent intends to rely; any reasons why
the civil money penalty is not warranted or should be less than the
amount sought in the notice; and the name, address, and telephone
number of the person who will act as the respondent's representative,
if any.
(b) Filing with the Administrative Law Judges. HUD shall file the
notice and response with the Chief Docket Clerk, Office of
Administrative Law Judges. If no response is submitted, then HUD may
file a motion for default judgment, together with a copy of the notice,
in accordance with Sec. 26.39 of this title.
Sec. 30.90 Hearings.
Hearings under this part shall be conducted in accordance with the
procedures at 24 CFR part 26, subpart B.
Sec. 30.95 Settlements.
The officials listed at subpart B of this part, or their designees
(or the Mortgagee Review Board for violations under Sec. 30.35), are
authorized to enter into settlement agreements of civil money penalty
claims. Settlement agreements may be executed at any time prior to the
issuing of a notice of final determination under Sec. 26.50 of this
title, and may include sanctions for failure to comply with the terms
of the agreement.
PART 81--REGULATIONS IMPLEMENTING THE AUTHORITY OF THE SECRETARY OF
THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT OVER THE CONDUCT OF
THE SECONDARY MARKET OPERATIONS OF THE FEDERAL NATIONAL MORTGAGE
ASSOCIATION (FNMA)
12. The authority citation for 24 CFR part 81 continues to read as
follows:
Authority: 12 U.S.C. 1451 et seq., 1716-1723h, and 4501-4641; 42
U.S.C. 3535(d) and 3601-3619.
13. Section 81.46 is amended by revising the first sentence of
paragraph (e)(1) to read as follows:
Sec. 81.46 Remedial actions.
* * * * *
(e) * * * (1) Where a lender timely requests a hearing on a
remedial action, a hearing shall be conducted before a HUD
Administrative Law Judge (ALJ) and a final decision rendered in
accordance with the procedures set forth in 24 CFR part 26, subpart B,
to the extent such provisions are not inconsistent with subpart C of
this part or FHEFSSA. * * *
* * * * *
14. Section 81.82 is amended by revising the second sentence of
paragraph (b)(2) to read as follows:
Sec. 81.82 Cease-and-desist proceedings.
* * * * *
(b) * * *
(2) Administrative Law Judge. * * * The hearing shall be conducted
in accordance with Sec. 81.84 and, to the extent the provisions are not
inconsistent with any of the procedures in this part or FHEFSSA, with
24 CFR part 26, subpart B.
* * * * *
15. Section 81.83 is amended by revising paragraph (d)(3) to read
as follows:
Sec. 81.83 Civil money penalties.
* * * * *
(d) * * *
(3) Administrative Law Judge. A HUD ALJ shall preside over any
hearing
[[Page 18037]]
conducted under this section, in accordance with Sec. 81.84 and, to the
extent the provisions are not inconsistent with any of the procedures
in this part or FHEFSSA, with 24 CFR part 26, subpart B.
* * * * *
16. Section 81.84 is amended by:
a. Revising paragraph (b)(2);
b. Revising paragraph (d);
c. Amending the third sentence of paragraph (h)(1) by removing the
reference to ``Sec. 30.515'', and by adding in its place a reference to
``Sec. 26.38'';
d. Amending the first sentence of paragraph (j)(2) by removing the
reference to ``Sec. 30.910'', and by adding in its place a reference to
``Sec. 26.51 (c)''; and amending the second sentence of paragraph
(j)(2) by removing the reference to ``Sec. 30.910 (c) and (d)'', and by
adding in its place a reference to ``Sec. 26.51(f)''; to read as
follows:
Sec. 81.84 Hearings.
* * * * *
(b) * * *
(2) Hearings shall be conducted by a HUD ALJ authorized to conduct
proceedings under 24 CFR part 26, subpart B.
* * * * *
(d) Procedure. Hearings shall be conducted in accordance with the
procedures set forth in 24 CFR part 26, subpart B to the extent that
such provisions are not inconsistent with any of the procedures in this
part or FHEFSSA.
* * * * *
Sec. 81.85 [Amended]
17. In section 81.85(c)(1), the third sentence is amended by
removing the reference to ``Sec. 30.515'', and by adding in its place a
reference to ``Sec. 26.38''.
PART 200--INTRODUCTION
18. The authority citation for 24 CFR part 200 continues to read as
follows:
Authority: 12 U.S.C. 1701-1715z-18; 42 U.S.C. 3535(d).
Sec. 200.243 [Amended]
19. In Sec. 200.243, the second sentence of the introductory text
of paragraph (a) is amended by adding the phrase ``, subpart A,'' after
the phrase ``24 CFR part 26''.
PART 950--INDIAN HOUSING PROGRAMS
20. The authority citation for 24 CFR part 950 continues to read as
follows:
Authority: 25 U.S.C. 450e(b); 42 U.S.C. 1437aa-1437ee, and
3535(d).
Sec. 950.190 [Amended]
21. In Sec. 950.190, the last sentence of paragraph (e) is amended
by adding the phrase ``, subpart A'' after the phrase ``24 CFR part
26''.
PART 965--PHA-OWNED OR LEASED PROJECTS--MAINTENANCE AND OPERATION
22. The authority citation for 24 CFR part 965 continues to read as
follows:
Authority: 42 U.S.C. 1437, 1437a, 1437d, 1437g, and 3535(d).
Subpart H is also issued under 42 U.S.C. 4821-4846.
Sec. 965.205 [Amended]
23. In Sec. 965.205, the last sentence of paragraph (e) is amended
by adding the phrase ``, subpart A'' after the phrase ``24 CFR part
26''.
PART 3500--REAL ESTATE SETTLEMENT PROCEDURES ACT
24. The authority citation for 24 CFR part 3500 continues to read
as follows:
Authority: 12 U.S.C. 2601 et seq.
Sec. 3500.17 [Amended]
25. In Sec. 3500.17, paragraphs (n)(1) and (n)(4)(iii) are amended
by removing the phrase ``, subpart E,''.
Dated: March 12, 1996.
Henry G. Cisneros,
Secretary.
[FR Doc. 96-9877 Filed 4-22-96; 8:45 am]
BILLING CODE 4210-32-P
Complete official Federal Register PDF
FR Doc. 96-9868 Atlantic Swordfish Fisheries; Public Hearings
[Federal Register Volume 61, Number 79 (Tuesday, April 23, 1996)]
[Proposed Rules]
[Page 17866]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-9868]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[I.D. 040896C]
50 CFR Part 630
Atlantic Swordfish Fisheries; Public Hearings
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Additional public hearing; request for comments.
-----------------------------------------------------------------------
SUMMARY: On April 12, 1996, NMFS announced four public hearings to
receive comments from fishery participants and other members of the
public regarding proposed amendments to regulations governing the
Atlantic swordfish fisheries. NMFS now announces one additional public
hearing.
DATES: Comments on the proposed rule must be received on or before May
2, 1996. The hearing is scheduled for April 25, 1996, from 7-10 p.m.
ADDRESSES: Written comments should be sent to William Hogarth, Acting
Chief, Highly Migratory Species Management Division, Office of
Fisheries Conservation and Management (F/CM), National Marine Fisheries
Service, 1315 East-West Highway, Silver Spring, MD 20910. Clearly mark
the outside of the envelope ``Atlantic Swordfish Comments.'' The
additional hearing will be held at the following location:
Pompano Beach Civic Center
1801 NE 6th Street
Pompano Beach, FL 32060
FOR FURTHER INFORMATION CONTACT: William Hogarth at 301-713-2339; Kevin
Foster at 508-281-9260.
SUPPLEMENTARY INFORMATION: NMFS announces an additional public hearing
on the Atlantic swordfish proposed rule (61 FR 15212, April 5, 1996).
The announcement of the four original meetings was published April 12,
1996 (61 FR 16236) and included background information that is not
repeated here.
Authority: 16 U.S.C. 1801 et seq. and 16 U.S.C. 971 et seq.
Dated: April 16, 1996.
Richard W. Surdi,
Acting Director, Office of Fisheries Conservation and Management,
National Marine Fisheries Service.
[FR Doc. 96-9868 Filed 4-22-96; 8:45 am]
BILLING CODE 3510-22-F
Complete official Federal Register PDF
FR Doc. 96-9745 Federal Regulatory Review; Notice of Intent
[Federal Register Volume 61, Number 79 (Tuesday, April 23, 1996)]
[Proposed Rules]
[Pages 17857-17859]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-9745]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
25 CFR Ch. I
Federal Regulatory Review; Notice of Intent
AGENCY: Bureau of Indian Affairs, Interior
ACTION: Notice of intent.
-----------------------------------------------------------------------
SUMMARY: The President's Regulatory Reform Initiative requires Federal
agencies to streamline the regulatory process, to remove obsolete
regulations, and to reduce the regulatory burden on the general public.
The Bureau of Indian Affairs (BIA) is committed to a goal of
eliminating or improving over 500 pages of regulations by June 1, 1996.
We will remove obsolete or unnecessary rules and rewrite existing
regulations in the clearer, more precise and understandable format of
``Plain English.'' This approach to regulation writing is intended to
make rules easier to understand without changing their meaning.
[[Page 17858]]
FOR FURTHER INFORMATION CONTACT: Hilda Manuel, Deputy Commissioner of
Indian Affairs, Bureau of Indian Affairs, Mail Stop 4145-MIB, 1849 C
Street NW., Washington, DC 20240, or telephone (202) 208-5116. Calls
will be referred to the Deputy Commissioner's regulation reform team
members for further coordination.
SUPPLEMENTARY INFORMATION: By June 1, 1996, the BIA will publish rules
for public and tribal review. The rules included in this notice were
identified in the Joint Tribal/BIA/DOI Advisory Task Force on Bureau of
Indian Affairs Reorganization report and by tribes and BIA program
staff. Additional rules the Joint Tribal/BIA/DOI Advisory Task Force on
Bureau of Indian Affairs Reorganization recommended for revision will
be considered separately (25 CFR Part 61, Preparation of Rolls of
Indians, 25 CFR Part 89, Attorney Contracts with Indian Tribes, 25 CFR
Part 144, American Indian Trust Funds Management Reform Act, and 25 CFR
Part 287, Buy Indian Act).
This effort does not preclude any consultation currently planned or
underway. Tribal consultation on regulations with substantive
rulemaking will continue as planned. For the rules involving only
``Plain English'' revision, consultation will be scheduled if the
comments received following publication of the proposed rules indicate
a need for further consultation.
List of Rules the BIA Will Rewrite Plain English and Publish as Proposed
Rules
------------------------------------------------------------------------
25 CFR
part Title of rule
------------------------------------------------------------------------
1..... Applicability of Rules of the Bureau of Indian Affairs.
2..... Appeals from Administrative Actions.
26.... Employment Assistance for Adult Indians.
27.... Vocational Training for Adult Indians.
31.... Federal Schools for Indians.
33.... Transfer of Indian Education Functions.
43.... Maintenance and Control of Student Records in Bureau Schools.
152... Issuance of Patents in Fee, Certificates of Competency, Removal
of Restrictions, and Sale of Certain Indian Lands.
154... Osage Roll, Certificate of Competency.
169... Rights-of-Way over Indian Lands.
175... Indian Electric Power Utilities.
273... Education Contracts under Johnson O'Malley Act.
------------------------------------------------------------------------
List of Rules Currently in the Rulemaking Process--BIA Will Make
Substantive Revisions, Remove Obsolete or Unnecessary Requirements,
Rewrite in ``Plain English,'' and Publish as Proposed or Final Rules
------------------------------------------------------------------------
25 CFR
part Title of rule
------------------------------------------------------------------------
5..... Preference in Employment.
10.... Adult and Juvenile Detention Standards for Facilities and
Programs.
12.... The Indian Police.
36.... Minimum Academic Standards for the Basic Education of Indian
Children and National Criteria for Dormitory Situations.
39.... The Indian School Equalization Program.
40.... Administration of Educational Loans, Grants and Other Assistance
for Higher Education.
41.... Grants to Tribally Controlled Community Colleges and Navajo
Community College.
46.... Administration of the Adult Education Program--NEW RULE.
81.... Tribal Reorganization Under a Federal Statute.
82.... Petitioning Procedures for Tribes Reorganized Under Federal
Statute and Other Organized Tribes.
101... Loans to Indians from the Revolving Loan Fund.
103... Loan Guaranty, Insurance and Interest Subsidy.
150... Land Records and Title Documents.
162... Leasing and Permitting.
166... General Grazing Regulations.
170... Roads of the Bureau of Indian Affairs.
171... Operation and Maintenance.
211... Leasing of Tribal Lands for Mining.
212... Leasing of Allotted Lands for Mining.
213... Leasing of Restricted Lands of Members of Five Civilized Tribes,
Oklahoma for Mining, Except Oil and Gas.
214... Leasing of Osage Reservation Lands, Oklahoma, for Mining, Except
Oil and Gas.
215... Lead and Zinc Mining Operations and Leases, Quapaw Agency.
216... Surface Exploration, Mining, and Reclamation of Lands.
217... Management of Tribal Assets of Ute Indian Tribe, Uintah and
Ouray Reservation, Utah, by the Tribe and the Ute Distribution
Corp.
227... Leasing of Certain Lands in Wind River Indian Reservation,
Wyoming, for Oil and Gas Mining.
256... Housing Improvement Program.
286... Indian Business Development Program.
------------------------------------------------------------------------
[[Page 17859]]
List of Rules That Are Obsolete or Replaced by New Rules--BIA Will
Remove These Rules
------------------------------------------------------------------------
25 CFR
part Title of rule
------------------------------------------------------------------------
45.... Special Education.
65.... Preparation of a Membership Roll of Delaware Indians of Western
Oklahoma.
66.... Preparation of Rolls of Delaware Indians.
76.... Enrollment of Indian of the San Pasqual Band of Mission Indians
in California.
142... Operation of U.S.M.S. ``North Star'' between Seattle, Washington
and Stations of the Bureau of Indian Affairs and other
Government Agencies, Alaska.
250... Indian Fishing--Hoopa Valley Indian Reservation.
271... Contracts under Indian Self-determination Act--Replaced with new
Part 900.
272... Grants under Indian Self-determination Act--Replaced with new
Part 900.
274... School Construction Contracts or Services for Tribally Operated
Previously Private Schools.
276... Uniform Administrative Requirements for Grants--Replaced with
new Part 900.
278... Special Grants for Economic Development and Core Management
Grants to Small Tribes--Replaced with new Part 900.
------------------------------------------------------------------------
Dated: April 12, 1996.
Ada E. Deer,
Assistant Secretary--Indian Affairs.
[FR Doc. 96-9745 Filed 4-22-96; 8:45 am]
BILLING CODE 4310-02-P
Complete official Federal Register PDF
FR Doc. 96-9717 Manufactured Home Tires, Parts and Accessories Necessary for Safe Operation; and Manufactured Home Construction and Safety Standards
[Federal Register Volume 61, Number 79 (Tuesday, April 23, 1996)]
[Proposed Rules]
[Pages 18014-18024]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-9717]
[[Page 18013]]
_______________________________________________________________________
Part III
Department of Transportation
Federal Highway Administration
49 CFR Part 393
_______________________________________________________________________
Department of Housing and Urban Development
24 CFR Part 3280
_______________________________________________________________________
Manufactured Home Tires, Parts and Accessories Necessary for Safe
Operation; and Manufactured Home Construction and Safety Standards;
Proposed Rule
Federal Register / Vol. 61, No. 79 / Tuesday, April 23, 1996 /
Proposed Rules
[[Page 18014]]
DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
49 CFR Part 393
[FHWA Docket No. MC-95-1]
RIN 2125-AD41
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Part 3280
[Docket No. FR-3943]
RIN 2502-AG54
Manufactured Home Tires, Parts and Accessories Necessary for Safe
Operation; and Manufactured Home Construction and Safety Standards
AGENCIES: Federal Highway Administration (FHWA), DOT; Office of the
Assistant Secretary for Housing, Federal Housing Commissioner,
Department of Housing and Urban Development (HUD).
ACTION: Notice of proposed rulemaking; proposed change in HUD
interpretative bulletin.
-----------------------------------------------------------------------
SUMMARY: The FHWA and HUD are proposing amendments to the Federal Motor
Carrier Safety Regulations and an interpretation of the Manufactured
Home Construction and Safety Standards concerning the transportation of
manufactured homes. The FHWA and HUD propose to adopt mutually
consistent and readily enforceable regulations and interpretations that
promote the safe and effective transportation of manufactured homes.
The FHWA and HUD are proposing to permit the overloading of
manufactured home tires by not more than 18 percent for a period of two
years from the effective date of the final rule. During that two year
period, both agencies would review test and other technical data
concerning the relative performance of tires which are overloaded by 18
percent versus no tire overloading. Unless both agencies are persuaded
that the 18 percent overloading does not pose a risk to the traveling
public or have an adverse impact on the safety or transportability of
manufactured homes, any overloading of tires beyond their design
capacity would be prohibited after two years from the effective date of
the final rule. These proposed changes are intended to clarify the
regulations of the FHWA and the interpretation of its regulations by
HUD and to resolve differences between Federal regulations for the
overloading of tires used in the transportation of manufactured homes.
DATES: Comment Due Date: Comments must be received on or before June
24, 1996.
ADDRESSES: To file responses on this proposed rule submit written,
signed comments to FHWA Docket No. MC-95-1, Room 4232, HCC-10, Office
of the Chief Counsel, Federal Highway Administration, 400 Seventh
Street, SW., Washington, D.C. 20590. All comments received will be
available for examination at the above address from 8:30 a.m. to 3:30
p.m., Eastern Time, Monday through Friday, except Federal holidays.
Those desiring notification of receipt of comments must include a self-
addressed, stamped postcard.
FOR FURTHER INFORMATION CONTACT: For FHWA: Mr. Larry W. Minor, Office
of Motor Carrier Research and Standards, HCS-10, (202) 366-4009; or Mr.
Charles E. Medalen, Office of the Chief Counsel, HCC-20, (202) 366-
1354, Federal Highway Administration, 400 Seventh Street, SW.,
Washington, D.C. 20590. Office hours are from 7:45 a.m. to 4:15 p.m.,
(eastern standard time), Monday through Friday, except Federal
holidays.
For HUD: Mr. Philip W. Schulte, Acting Director, Manufactured Home
and Construction Standards Division, Office of Manufactured Housing and
Regulatory Functions, Department of Housing and Urban Development,
L'Enfant Plaza North, Suite 3214, Washington, D.C. (mailing address:
Room B-133, HUD Building, Washington, D.C. 20410-8000). Telephones:
(voice) (202) 755-7420; (TDD) (202) 708-4594. (These are not toll-free
numbers.)
SUPPLEMENTARY INFORMATION:
Background
The Department of Housing and Urban Development (HUD) and the
Federal Highway Administration (FHWA) have regulations applicable to
the transportation of manufactured housing which are mutually
inconsistent. In this joint NPRM, the two agencies are proposing to
adopt identical rules to correct the inconsistency.
On March 4, 1995, President Clinton directed all agencies to remove
obsolete and unnecessary regulations, and revise and improve necessary
regulations. As part of HUD's and FHWA's review of their respective
regulations, each agency identified its regulations applicable to the
transportation of manufactured housing as inconsistent with one
another. In accordance with the President's directive to improve
regulations, and in accordance with the principles of Executive Order
12866, which directs agencies to avoid regulations that are
inconsistent with regulations of other agencies, this rule proposes to
make HUD's and FHWA's regulations consistent on this subject.
Additionally, at the final rule stage the format of this rule may be
revised to conform to the President's regulatory reinvention
principles.
I. Department of Housing and Urban Development
A. Manufactured Home Construction and Safety Standards
The National Manufactured Housing Construction and Safety Standards
Act of 1974 (Act), 42 U.S.C. 5401 et seq., authorizes the Secretary of
Housing and Urban Development (HUD) to establish and amend the Federal
Manufactured Home Construction and Safety Standards (FMHCSS), 24 CFR
Part 3280 (Standards). The stated purposes of the Act are to reduce the
number of personal injuries and deaths and the amount of insurance
costs and property damage resulting from manufactured home accidents
and to improve the quality and durability of manufactured homes.
B. Transportation Systems for Manufactured Homes
Subpart J of the Standards covers the general requirement for
designing the manufactured home to fully withstand the adverse effects
of transportation shock and vibration without damaging the integrated
structure or its component parts. One of its components is the running
gear assembly which is defined in 24 CFR 3280.902 to include the
subsystem consisting of suspension springs, axles, bearings, wheels,
hubs, tires, and brakes, with their related hardware.
Under 24 CFR 3280.904(a), the entire transportation ``system
(frame, drawbar and coupling mechanism, running gear assembly, and
lights) shall be designed and constructed as an integrated, balanced
and durable unit which is safe and suitable for its specified use
during the intended life of the manufactured home.'' The running gear
assembly, including the tires, must be able to sustain the designed
loads set forth in 24 CFR 3280.904(b)(3) and ``to provide for durable
dependable safe mobility of the manufactured home'' (emphasis added)
(24 CFR 3280.904(b)(4)(i)).
The design load consists of the dead load plus a minimum of 3
pounds per square foot floor load (for example, free-standing range,
refrigerator, and loose furniture), and the superimposed dynamic load
resulting from highway movement but shall not be required to exceed
twice the dead load. The
[[Page 18015]]
integrated design shall be capable of insuring rigidity and structural
integrity of the complete manufactured home structure and to insure
against deformation of structural or finish members during the intended
life of the home.
C. Interpretative Bulletin J-1-76
HUD interpreted the transportation requirements for subpart J in
the Standards by an Interpretative Bulletin published on December 7,
1976 (41 FR 53626). Sections C and D of the Interpretative Bulletin
provide as follows:
Section C--Axles
Unless substantiated in the design to the satisfaction of the
approval agency [Design Approval Primary Inspection Agency] (DAPIA)
by either engineering analysis, load tests or documented evidence of
actual transportation experience, there shall be no less than the
following minimum number of 6,000 lb. rated axles with not less than
the mobile (manufactured) home rated tires indicated in Table 1 or
Table 2 on each mobile home or floor section of the multiple unit
mobile home:
Table 1
------------------------------------------------------------------------
Number
of 6,000
lb.
axles
equipped
Length of the mobile (manufactured) home with 7-
14.5,
mobile
home 8
ply
tires
------------------------------------------------------------------------
1. 12 foot wide:
A. To 60 ft. maximum........................................ 2
B. Greater than 60 ft.-80 ft. max........................... 3
2. 14 foot wide:
A. To 52 ft. maximum........................................ 2
B. To 76 ft. maximum........................................ 3
C. To 80 ft. maximum........................................ 4
------------------------------------------------------------------------
Table 2
------------------------------------------------------------------------
Number
of 6,000
lb.
axles
equipped
with 8-
Length of the mobile (manufactured) home 14.5,
mobile
home 8
and 10
ply
tires
------------------------------------------------------------------------
1. 12 foot wide:
A. To 65 ft. maximum........................................ 2
B. Greater than 65 ft.-80 ft. max........................... 3
2. 14 foot wide:
A. To 56 ft. maximum........................................ 2
B. Greater than 56 ft.-80 ft. max........................... 3
------------------------------------------------------------------------
Length of a mobile home is the length as defined in Sec. 3280.902(b).
Determination of the number of axles required by use of the
above tables does not eliminate the requirement for each axle to be
capable of withstanding the actual imposed dead load without
exceeding the maximum allowable stresses for design axle life as
recommended by the axle manufacturer, or the maximum tire load
rating in Sec. 280.904(b)(8) [now Sec. 3280.904(b)(8)]. If a
manufacturer has submitted documented evidence of transportation
experience to meet the requirements of Sec. 280.903(c)(2) [now
Sec. 3280.903(c)(2)], the minimum number of axles required by the
experience record may not be reduced by use of the above tables.
(The number of axles must be consistent with and no less than the
number and rating of the axles indicated in the experience record.)
Section D--Tires, Wheels and Rims
Tires shall be sized and fitted to axles in accordance with the
gross axle weight rating determined by the mobile home manufacturer.
The permissible tire loading may be increased by utilizing a service
load factor not to exceed 50 percent of the mobile home tire load
limits specified in MH-1 of the Tire and Rim Association Handbook
(1975 edition), but the individual permissible tire loading may not
exceed 3,000 pounds. For example, the maximum tire loading for a
7 x 14.5 mobile home 8 ply tire at 70 PSI cold inflation pressure
would be 2805 lbs. (1,870 lbs. (MH-1 rating) x 1.5(service load
factor)=2,805 lbs.). The tire load limit specified in MH-I shall be
determined by the tire manufacturer in accordance with procedures
described in 49 CFR 571.119.
Used tires may also be sized in accordance with the above
criteria whenever the tread depth is at least \2/32\ of an inch as
determined by a tread wear indicator. The determination as to
whether a particular used tire is acceptable shall also include a
visual inspection of thermal and structural defects (e.g., dry
rotting, excessive tire sidewall splitting, etc.).
Wheels and rims shall be sized in accordance with the tire
manufacturer's recommendations as suitable for use with the tires
selected.
II. Department of Transportation
A. Federal Motor Carrier Safety Regulations
The FHWA's Federal Motor Carrier Safety Regulations (FMCSRs) are
based on a series of statutes starting with the Motor Carrier Act of
1935. The FMCSRs are codified at Subchapter B of Chapter III, Title 49
of the Code of Federal Regulations. The FMCSRs provide requirements for
the operation of commercial motor vehicles in interstate commerce. The
FMCSRs define a commercial motor vehicle as any self-propelled or towed
vehicle used on public highways in interstate commerce to transport
passengers or property when: the vehicle has a gross vehicle weight
rating or gross combination weight of 10,001 or more pounds; or the
vehicle is designed to transport more than 15 passengers, including the
driver; or, the vehicle is used in the transportation of hazardous
materials in a quantity requiring a placard. Under this definition, a
manufactured home transported in interstate commerce is considered a
commercial motor vehicle and is subject to the FMCSRs.
Part 393 of the FMCSRs covers parts and accessories necessary for
safe operation. Among the safety regulations applicable to manufactured
homes are the requirements for lamps and reflective devices, brake
systems, coupling devices, tires, and suspension systems.
Under the Motor Carrier Safety Assistance Program (MCSAP), the FHWA
provides financial assistance to States to enforce the FMCSRs or
compatible State regulations pertaining to commercial motor vehicle
safety (see 49 CFR part 350). State enforcement officials have
expressed concerns about the safety of certain practices of carriers
transporting manufactured homes. Their principal concern is the
movement of manufactured homes on overloaded tires. In certain cases,
vehicles with tires loaded to 150 percent of their capacity are
operated at highway speeds. These practices are inconsistent with the
FMCSRs.
B. FHWA Requirements for Tires
Section 393.75(f) prohibits the operation of commercial motor
vehicles on tires that carry a greater weight than that specified in
publications of certain standard-setting organizations listed by the
National Highway Traffic Safety Administration in 49 CFR 571.119
(S5.1(b)) unless (1) the vehicle is being operated under the terms of a
special permit issued by the State, and (2) the vehicle is being
operated at a reduced speed that is appropriate to compensate for tire
loading in excess of the manufacturer's normal rated capacity. The FHWA
first proposed restrictions on the use of overloaded tires on April 17,
1974 (39 FR 13785). The proposal was in response to two petitions from
the Professional Drivers Council (PROD), a non-profit association of
professional interstate truck and bus drivers, and investigations of
front tire failures by the FHWA. The PROD petitions addressed front
tire overloading in general, and specifically front tire overloading
resulting from the fifth wheel position on the towing vehicle.
The investigations performed by the FHWA revealed that a
significant number of vehicles operate with overloaded or under-
inflated tires. A tire was considered under-inflated if it carried a
load greater than it was designed to carry at the pressure to which it
was inflated, and overloaded if
[[Page 18016]]
it carried a load greater than it could safely carry at any pressure.
The agency cited a growing body of evidence that both under-inflation
and overloading create identifiable dangers. Among these were the
impairment of vehicle handling and the loss of control from sudden tire
failures. On July 11, 1975, the FHWA published the final rule
prohibiting the operation of motor vehicles on overloaded tires (40 FR
29292). Several industry groups and numerous tire manufacturers
immediately petitioned for reconsideration. The FHWA amended the final
rule a few months later (September 29, 1975, 40 FR 44555). The
petitioners asked the FHWA to allow tire pressures greater than those
labeled on the tire's sidewalls; and to allow increased loading for
reduced speed operations.
The available information from tire manufacturers supported
allowing increased tire loadings if vehicles were operated at reduced
speeds. Accordingly, the FHWA amended the final rule to that effect,
provided the vehicle was operated in compliance with a special permit
which specified a speed limitation.
The Heavy Specialized Carriers Conference (now the Specialized
Carriers and Rigging Association) of the American Trucking Associations
(ATA) subsequently submitted a petition for rulemaking. According to
the petitioner, only a few States specified speed limits for vehicles
operating under special permits. The wording of the September 29, 1975,
final rule therefore had the effect of limiting the exemption for
overloaded tires to motor carriers operating in those States. The
petitioner requested that the FHWA rescind the requirement that the
State-issued permit must include a specific reduced speed.
On June 17, 1976 (41 FR 24608), the FHWA proposed to modify the
conditions under which tires on axles other than the front axle could
be overloaded. Based upon user experience and information obtained from
commercial vehicle tire manufacturers, the agency acknowledged that
tires may be safely overloaded if vehicle speed is reduced sufficiently
to prevent heat buildup. The FHWA concluded that if the reference to
reduced speed specified on State-issued permits were deleted, the
agency should impose its own speed restriction on motor vehicles which
operate on overloaded tires. An upper speed limit of 72 kilometers per
hour (km/hr) (45 miles per hour (mph)) was proposed for inclusion in
the exemption. This value was selected to prevent conflicts between
Sec. 393.75(f) and the posted minimum speeds on many Primary and
Interstate highways. Since the minimum speed limits help to ensure
safety by regulating the maximum allowable speed differential between
motor vehicles, the agency's proposal addressed both the need for
reduced speed to compensate for overloading and the need for limiting
speed differentials between the affected commercial motor vehicles and
other traffic.
On August 31, 1976 (41 FR 36656), the FHWA published a final rule
amending Sec. 393.75(f) to permit the overloading of tires if (1) the
vehicle is being operated under the terms of a special overweight
permit issued by the State and (2) the vehicle is being operated at a
reduced speed which is appropriate to compensate for tire loading in
excess of the manufacturer's normal rated capacity. The exemption only
applied to tires on axles other than the front axle and included a
maximum speed limit of 72 km/hr (45 mph). The effective date for the
final rule was October 1, 1976.
HUD requested that the FHWA postpone the effective date of the
August 1976 final rule with regard to the interstate transportation of
manufactured homes. The FHWA issued Notice N 7510.1 on September 27,
1976, which instructed motor carrier safety personnel to refrain from
citing mobile home transporters for operating on overloaded tires until
further notice. This temporary relief was conditioned upon observing a
speed limitation of 72 km/hr (45 mph). States which had adopted the
FMCSRs were encouraged to adopt this policy. The notice indicated that
HUD's request was based on statistical data relating to accidents
resulting from tire failures on new mobile homes. The data indicated an
``insignificant accident incident ratio related to tire failure and an
adverse economic impact on the mobile home industry and on consumers.''
A copy of the September 1976 notice is included in the FHWA and HUD
docket files.
On October 10, 1978, in response to a petition from the ATA
concerning tire marking and the HUD request, the FHWA published another
notice of proposed rulemaking (43 FR 46555). The notice discussed HUD's
tire overloading standards for manufactured homes: 150 percent of rated
capacity provided the total tire load does not exceed 3,000 pounds. HUD
had the National Highway Traffic Safety Administration (NHTSA) conduct
two series of tests on mobile home tires. The first results were
summarized in a September 1976 report entitled ``A Safety Performance
Test for Mobile Home Tires, Phase I: New Tires.'' The second report
(April 1978) was entitled ``A Safety Performance Test for Mobile Home
Tires, Phase II: Used Tires.'' A copy of both reports is included in
the FHWA and HUD docket files. The tests indicated that new tires on
mobile homes were capable of operating satisfactorily under 150 percent
loading, although used tires did not perform as well. In view of this
research, the FHWA proposed replacing the term ``special overweight
permit'' with ``special permit.'' The FHWA believed the proposal would
address HUD's concerns. Because manufactured homes generally did not
exceed the normal axle or gross weight limits, they rarely qualified
for overweight permits. The FHWA therefore proposed to allow the use of
overloaded tires if the transporter was operating under any ``special
permit,'' typically a permit for over-width vehicles.
The final rule amending Sec. 393.75(f) was published on May 1, 1979
(44 FR 25455). The preamble included reference to the mobile home tire
research studies and HUD's request that the FHWA amend Sec. 393.75.
With this amendment, tires on axles other than the front axle could be
overloaded if (1) the vehicle was operated under the terms of a special
permit (as opposed to a special overweight permit) issued by the state
and (2) the vehicle was operated at a reduced speed not to exceed 72
km/hr (45 mph).
On October 29, 1980, the FHWA issued FHWA Notice N 7510.2 which
rescinded Notice N 7510.1. Since the 1979 final rule allowed all
vehicles subject to the FMCSRs to be operated on overloaded tires
provided the vehicles adhered to the terms of a special permit and did
not exceed speeds of 72 km/hr (45 mph), Notice N 7510.1 was no longer
necessary. A copy of the 1980 notice is included in the FHWA and HUD
docket files.
The current wording of Sec. 393.75(f) is the outcome of a 1988
final rule on parts and accessories necessary for safe operation (53 FR
49380, December 7, 1988). Under the final rule, the 72 km/hr (45 mph)
maximum speed for vehicles operating on overloaded tires was removed,
and any speed below the posted speed limit is thus considered a reduced
speed. The effective date of the amendment was March 7, 1989.
The removal of the 72 km/hr (45 mph) maximum speed limit combined
with the fact that the FMCSRs do not include restrictions on the extent
to which a tire may be overloaded have created problems for State
officials responsible for enforcing motor carrier safety laws.
[[Page 18017]]
III. Differences Between the HUD and the FHWA Regulations
Under 42 U.S.C. 5401 et seq., HUD was required to issue
construction and safety standards for manufactured homes. Congress
provided that whenever a Federal Manufactured Home Construction and
Safety Standard is in effect, no State or political subdivision of a
State shall have the authority to establish or permit to continue in
effect with respect to any manufactured home covered, any standard
``regarding construction or safety applicable to the same aspect of
performance of such manufactured home which is not identical to the
Federal manufactured home construction and safety standard'' (42 U.S.C.
5403(d)). HUD issued 24 CFR 3280, subpart J and Interpretative Bulletin
J-1-76 which establish standards for the running gear and which permit
the overloading of the tires.
Furthermore, HUD has indicated in 24 CFR 3282.11(c) that the
Federal system establishes the exclusive system for enforcement of the
Federal manufactured housing standards. No State may establish or keep
in effect through a building code enforcement system or otherwise,
``procedures or requirements which constitute systems for enforcement
of the Federal standards or of identical State standards which are
outside the system established in these regulations or which go beyond
this system to require remedial actions which are not required by the
Act and these regulations.''
In contrast, the Motor Carrier Safety Act of 1984 (49 U.S.C. 31131
et seq., formerly 49 U.S.C. app. 2501 et seq.) has a different purpose
and scope than the Manufactured Housing Construction and Safety
Standards Act. It ratified the regulations adopted on the authority of
the Motor Carrier Act of 1935, and directed the Department of
Transportation to establish minimum Federal standards to ensure that
commercial motor vehicles (CMVs) are safely equipped, maintained,
loaded, and operated; that the duties imposed on CMV drivers do not
impair their ability to drive safely; that the physical condition of
CMV drivers does not have an adverse impact on safety; and that driving
CMVs does not harm the drivers' physical condition [49 U.S.C. 31136].
The FHWA's regulation of vehicle components and systems, including
tires, axles, brakes, etc., is consistent with this purpose and
necessary for the protection of motorists who share the roads with
CMVs, including manufactured homes.
Most State motor carrier safety laws in effect today are
essentially required by Federal law. Congress directed the Department
of Transportation to preempt State safety regulations that are not
compatible with the FMCSRs [49 U.S.C. 31141 (formerly 49 U.S.C. App.
2507), 49 CFR 355]. The MCSAP has also induced States to model their
safety laws on the FMCSRs. The FMCSRs as adopted by the States are
State laws. The Federal Courts have not had occasion to consider the
relationship between the Manufactured Home Construction and Safety
Standards and the FMCSRs (or compatible State regulations) with regard
to manufactured home tire overloading.
Both the FHWA and HUD recognize that the current inconsistency
between their regulations and interpretations requires clarification
through the issuance of joint rulemaking to establish uniform
requirements for motor carriers who are transporting manufactured
homes. The proposed changes to the FHWA's and HUD's respective
requirements for motor carriers transporting manufactured homes are
covered under Sections X, XI, and XII of this notice.
IV. Analysis of Tire Loading and the Tires Used in the Transporting of
Manufactured Homes
A. Typical Tires Used in Manufactured Housing
To consider whether there should be changes in its interpretation
of the standards for transporting manufactured homes (Interpretative
Bulletin J-1-76), HUD has gathered information from various sources
about the types of tires and axles used by the manufactured housing
industry. Some of this information was submitted to HUD by the
Manufactured Housing Institute (MHI) which had established a
Transportation Task Force. Information was also obtained from
suppliers, and from materials provided by the Department of
Transportation.
The MHI wrote HUD on August 5, 1994, and supplied certain
information concerning the types of tires typically used in
manufactured homes, the typical transport distance and the number of
tire failures noted by major transporters. The average transport
distance was reported to be approximately 225 miles; the data
concerning the types of tires, the relative usage of 7-14.5 vis-a-vis
8-14.5 tires, etc., is shown in Table A.
Table A
--------------------------------------------------------------------------------------------------------------------------------------------------------
Tire capacity at max. overload/percent
Tire size and type Percent use in manufactured houses Tire capacity overload
--------------------------------------------------------------------------------------------------------------------------------------------------------
7-14.5, 8 PLY, SERIES D............. 80%...................................... 1,870 lbs................... 2,805 lbs., >50% Over.
8-14.5, 8 PLY, SERIES D............. 20% are 8 and 10 ply..................... 2,270 lbs................... 3,000 lbs., 32% Over.
8-14.5, 10 PLY, SERIES E............ See above................................ 2,540 lbs................... 3,000 lbs., 18% Over.
8-14.5, 12 PLY, SERIES F............ Not Available............................ 2,790 lbs................... 3,000 lbs., 8% Over.
9-14.5, 8 PLY, SERIES D............. Not Available............................ 2,620 lbs................... 3,000 lbs., 15% Over.
9-14.5, 10 PLY, SERIES E............ Not Available............................ 2,940 lbs................... 3,000 lbs., 2% Over.
9-14.5, 12 PLY, SERIES F............ Not Available............................ 3,240....................... NO OVER-LOADING.
--------------------------------------------------------------------------------------------------------------------------------------------------------
The maximum load ratings for the 9-14.5 tires are obtained from the 1994 Tire and Rim Association Yearbook.
It is apparent from a review of several DAPIA-approved designs and
information received from the MHI that most manufacturers are using 7-
14.5, 8 ply (Series D) tires. Under the provisions of Section D of
Interpretative Bulletin (IB) J-1-76, the tire capacity at maximum
overload is limited to 2,805 lbs. (1.5 x 1870 lbs.). However, the
above-mentioned review of designs indicated that manufacturers and
DAPIAs have misinterpreted another provision of the IB to permit 7-
14.5, 8 ply (Series D) tires to be loaded up to 3,000 lbs. or 160
percent of their rated capacity.
Anecdotal accounts from some manufacturers indicated that the
larger 8-14.5 tires are used for longer transport distances or where
the road surfaces are less smooth than those on the Interstate
highways. Presumably, manufacturers have discovered by experience that
the use of 8-14.5 Series D or E tires may
[[Page 18018]]
reduce the possibility of tire failure under these circumstances.
B. The Number of Reported Failures of New and Used Tires During
Transport
HUD has obtained information from three companies which transport
large numbers of manufactured homes. These three companies collectively
transport more than 30 percent of the manufactured homes produced in
the United States and in the case of the largest transporter, nearly
50,000 manufactured homes per year.
The three companies differed in the reported overall rate of tire
failure for shipment of manufactured homes. The failure rate for new
tires ranged from 4 percent to 7 percent. The used tire failure rate
was 9 percent. According to the MHI, roughly 55 percent of the tires
sold to manufactured housing producers in 1994 were used tires.
Since the data from one company represented a large share of the
market and transportation experience in a large number of States, HUD
believes that the company's failure rate of 7 percent is the most
representative of actual conditions. Therefore, HUD has used a failure
rate of 7 percent for new tires and 9 percent for used tires with an
overall average failure rate of 8 percent. Since each section of a
manufactured home usually contains 6 tires, a tire will fail on about
40 percent of the sections shipped each year. Multiple failures of
tires are less common but are known to occur.
There was also substantial variability among these three companies
concerning the causes of tire failure. One company indicated that
foreign objects were the cause of 99 percent of tire failures, while
the other companies indicated that substandard tires and tire
overloading were the chief causes of tire failure. The other companies
also noted that operating at excessive speed and other causes were less
significant factors in tire failure.
There are no separate data as to the rate of failure due to tire
overloading in relation to other factors, such as substandard tires,
improper inflation, excessive heat, etc. The risk of tire failure due
to overloading can be increased by operating the tire at reduced
inflation, by the heat of the pavement, high speeds, mounting
procedures and other practices which, if combined, may virtually assure
tire failure. Hence, determining the percentage of failures
attributable solely to tire overloading is difficult.
Data from one tire recycler, however, indicated that up to 70
percent of tires which are damaged can be recycled and reused after
repair. This would suggest that foreign objects may have been the
principal cause of tire failure rather than blow-outs due to
overloading or other causes. The damage associated with blow-outs or
causes other than foreign objects is generally too extensive to be
repaired.
Based on the available information, HUD's best estimate is that 25
percent of reported failures can be attributed partly to tire
overloading. HUD has reduced this estimate by half to account for
failures due in part to aggravating factors, such as improper inflation
or mounting. Therefore, assuming that 450,000 sections of manufactured
homes are shipped this year (450,000 shipments x 0.40 (factor for
shipments with at least one tire failure) x 0.125 (percentage
attributable to tire overloading), tire overloading would be
responsible for at least 22,500 tire blowouts.
C. The Average Number of Times That the Tire Is Used
There is no reporting mechanism or authoritative data on the number
of times a tire is used. However, incomplete data from transporters
indicate that tires are used an average of ten times before they are
unable to pass the tread depth requirement.
V. Cost Estimates of Possible Options for the Protection of the Public
and To Ensure the Safe Transport of Manufactured Homes
Based on the available information, there are four approaches which
would substantially alleviate or eliminate the problem of overloading
of tires. These four options are discussed below:
A. Option No. 1: Reduction of the Permissible Tire Overloading to 18
Percent
HUD has obtained data from suppliers on the cost to upgrade from
the 7-14.5 tires to tires with a rated capacity of 2,540 lbs. Assuming
that the design calls for 3,000 lbs. per tire, the degree of tire
overloading would be reduced from 50 to 60 percent to 18 percent. The
wholesale incremental cost estimates were determined by assuming that
each transportable section uses six tires. The results are shown in
Table B:
Table B
----------------------------------------------------------------------------------------------------------------
Wholesale Wholesale
cost of 8- cost of 7- Increase in Total
Type of tire 14.5 10 ply 14.5 8 ply wholesale incremental
(series E) (series D) cost cost per
section
----------------------------------------------------------------------------------------------------------------
NEW......................................................... $40 $30 $10 $60
USED........................................................ 30 26 4 24
AVERAGE COST FOR UPGRADED TIRES MAN. HOME................... ........... ........... ........... 59
----------------------------------------------------------------------------------------------------------------
As shown in Table B, the cost for upgraded tires is relatively
modest and this results in an average wholesale cost increase of nearly
$60 per home. The average cost per home is based on the usage patterns
of new versus used tires and the relative percentage of single (53
percent) and multi-section (47 percent) homes.
B. Option No. 2: Reduction of the Permissible Tire Overloading to 8
Percent
HUD has obtained data from suppliers on the cost to upgrade from
the 7-14.5 tires to tires with a rated capacity of 2,790 lbs. Assuming
that the design calls for 3,000 lbs. per tire, the degree of tire
overloading would be reduced from 50 to 60 percent to 8 percent. The
same assumptions concerning the number of tires per section, new and
used tires, etc. have been made to permit comparison of the various
options. The results are shown in Table C:
[[Page 18019]]
Table C
----------------------------------------------------------------------------------------------------------------
Wholesale
cost of 7- Increase in Total
Type of tire Wholesale cost of 8-14.5 12 ply 14.5 8 ply wholesale incremental
(series F) (series D) cost cost per
section
----------------------------------------------------------------------------------------------------------------
NEW.............................. $44................................... $30 $14 $84
USED............................. Not available in sufficient quantities 26 ........... ...........
AVERAGE COST PER MAN. HOME....... ...................................... ........... ........... 123.5
----------------------------------------------------------------------------------------------------------------
C. Elimination of Tire Overloading
1. Option No. 3: Addition of Another Axle and the Use of 8-14.5, 10 Ply
Tires (Series E)
Another option is to require that the tires' rated capacity meet or
exceed the live and dead load which will be applied to them. The
manufacturer would probably have to use an additional axle to carry
some of this load. The cost of this increased axle along with the
upgraded tires is shown in Table D as follows:
Table D
------------------------------------------------------------------------
Wholesale
Wholesale cost of
Average cost of tires cost of new used non-
non-braking braking
axles axles
------------------------------------------------------------------------
$59.............................. $174 $139 ...........
Total wholesale cost of tires and
axles........................... ........... ........... $287
------------------------------------------------------------------------
According to one source, the cost of the additional wheels and
axles would be greater because half of the axles would be braking axles
which are 25 percent more expensive than non-braking axles. However,
discussions with suppliers and analysis of manufactured home designs
indicated that the changes in the degree of tire overloading have no
impact on the number of braking versus non-braking axles as this is a
function of the vehicle's weight, not the strength of the tires.
Therefore, HUD believes that the additional cost of nearly $287 is
closer to the expected cost of the axle and tires.
2. Option No. 4: The Use of 9-14.5 12 Ply Series E and F Tires
Another alternative would be to upgrade the tires to 9-14.5, Series
E and F tires which would involve little or no overloading with the use
of a 6,000 lb. axle. Suppliers reported that because the 9-14.5 tires
are being made only in small quantities, current prices would not be
reliable indicators of unit costs at higher production levels.
Therefore, it will be assumed that the cost of the 9-14.5 tires are
double the cost of the 7-14.5 tires for these cost comparisons. The
cost of these tires is shown in Table E:
Table E
----------------------------------------------------------------------------------------------------------------
Wholesale
cost of 7- Increase in Total
Type of tire Est. wholesale cost of 9-14.5 12 ply 14.5 8 ply wholesale average
tires (series F) tires cost cost per
(series D) section
----------------------------------------------------------------------------------------------------------------
New.............................. $60................................... $30 $30 $180
Used............................. Not available......................... 26 ........... ...........
Average cost per man. home....... ...................................... ........... ........... 265
----------------------------------------------------------------------------------------------------------------
D. Adjustment to Cost Increases Due to Multiple Usages
In estimating the useful life of the 8-14.5 and 9-14.5 tires, it is
conservative to assume that these tires would be able to be used for at
least the same number of trips as the current 7-14.5 tires. Therefore,
the FHWA and HUD have assumed that the upgraded tires can also be used
a total of ten times. Based on ten trips per tire and shipments of
450,000 transportable sections of manufactured homes each year, the
estimated wholesale cost per transportation unit and the annual
wholesale cost of each option is shown in Table F.
Table F.--Cost Per Transportation Unit and Annual Costs
------------------------------------------------------------------------
------------------------------------------------------------------------
OPTION NO. 1 (UPGRADE TO 8-14.5 SERIES E TIRES)....... $6
TOTAL ANNUAL COST (WHOLESALE) FOR ALL HOMES....... $2,700,000
OPTION NO. 2 (UPGRADE TO 8-14.5 SERIES F TIRES)....... $12
TOTAL ANNUAL COST (WHOLESALE) FOR ALL HOMES....... $5,400,000
OPTION NO. 3 (ADDITIONAL AXLE AND UPGRADED TIRES)..... $29
TOTAL ANNUAL COST (WHOLESALE) FOR ALL HOMES....... $13,050,000
OPTION NO. 4 (UPGRADE TO 9-14.5 SERIES F TIRES)....... $27
TOTAL ANNUAL COST (WHOLESALE) FOR ALL HOMES....... $12,150,000
------------------------------------------------------------------------
[[Page 18020]]
VI. Discussion Concerning the Overloading of Tires and the Other
Requirements of the Interpretative Bulletin
In addition to an examination of the various options, HUD has
reviewed the basis of the 1976 decision to permit the overloading of
manufactured home tires. The overloading of manufactured home tires was
based on certain assumptions and conditions existing at the time the
rule was promulgated. These assumptions are discussed below:
A. Single or Very Limited Use of Tires; Short Travel Distances
In 1976, it was a common practice to limit the use of the tires to
one, or perhaps a few more trips so that the total distance traveled
would be only about 500 miles. Based on such limited usage, it may be
permissible to exceed the normal supplier recommendations.
However, the markets for manufactured homes have broadened beyond
the 2- to 3-hour driving distance so that some companies are shipping
units for distances in excess of 500 miles. This long distance shipping
is substantially greater than the limited range which the original
Interpretative Bulletin was based on.
In order to determine common travel distances for homes, HUD has
analyzed data to determine the total distance traveled from factories
in several Southern States to the retailers who received the homes. The
data is summarized in Table G:
Table G
------------------------------------------------------------------------
Number of Percent shipped
shipments Percent shipped 1- Percent shipped more than 500
analyzed 250 miles 251-500 miles miles
------------------------------------------------------------------------
30,000........... 50 40 10
------------------------------------------------------------------------
In 50 percent of the cases, the home was shipped more than 250
miles and in 10 percent of the cases, the distance shipped was more
than 500 miles. Therefore, the typical transportation patterns at the
time the Interpretative Bulletin was issued have changed significantly.
Secondly, these data understate the total travel distance since they
are calculated on the distance from the factory to the retailer, not to
the homeowner's site. More significantly, the data supplied by the
transporters indicate that the average tire is used ten times before it
is unable to be used further.
B. Increased Weight of Manufactured Homes
At the time the Interpretative Bulletin was issued, the typical
weight of manufactured homes per square foot was in the range of 16 to
17 lbs. Over the years, the average weight of the homes has increased
due to the use of heavier exterior roofing materials, heavier exterior
and interior wall coverings, and the addition of roof and wall
sheathing materials. According to information provided by the National
Conference of States on Building Codes and Standards, Inc. (NCSBCS),
the average weight of these homes is now 19 to 23 lbs. per square foot,
or an average increase of over 25 percent.
Furthermore, the increase in the design standards for homes shipped
into high wind areas (Federal Register Vol. 59, No. 10, published
January 14, 1994) will further increase the weight of homes due to the
strengthening of the roof and wall construction. In this new wind
standard, the wind design pressure for homes placed in High Wind Zone 2
has been increased to 39 psf with a 47 psf design pressure in High Wind
Zone 3. Therefore, in high wind areas, the increase in weight from 1976
to the present could be as much as 30 percent.
C. Increased Speed on the Highways
Tire research undertaken by HUD indicated that tire overloading
would not degrade tire life and performance when homes were transported
at 50 mph. During the mid-1970's, the speed of travel in the United
States was limited to 55 mph. Accordingly, HUD concluded that the
likely travel speeds would be consistent with the research results and
that the overloading of tires would not result in a high percentage of
tire failure.
In large areas of the southern and western United States, the speed
limit has been increased to 65 mph. The 1994 Tire and Rim Association
Yearbook has indicated that tires can be overloaded by 9 percent if the
tires are operated at speeds less than 50 mph. Speeds of 65 mph impose
substantially greater loads on tires and industry standards would not
permit the overloading of the tires at high speeds.
VII. The Use of Products in Excess of the Manufacturer's
Recommendations Is Contrary to Accepted Practice in Other Sections of
the Standards
In many sections of the Manufactured Home Construction and Safety
Standards, HUD has indicated that products included in manufactured
homes should be used in accordance with the requirements of their
listing and the supplier's installation instructions. While Subpart J
does not specifically include requirements that the components be
listed and certified, there are a number of other sections of the
Standards (e.g. Sec. 3280.304 etc.) where HUD has indicated that the
component should be used in accordance with the manufacturer's design
limitations for safe and effective operation.
HUD believes that the transportation system should be modeled after
these other sections of the Standards that acknowledge the limitations
established for listed products or the limitations determined by the
supplier of the product. For this reason, HUD believes that significant
overloading of the tires is a practice which is contrary to the
collective judgement of the producers of these products and sound
engineering practices because it permits the use of a product well
beyond its design capacity. Such a direct violation of the listing or
the supplier's usage instructions is not permitted in other sections of
the Standards. Also, suppliers indicated that tire overloading of this
magnitude is not permitted for any other commercial tire.
VIII. Conclusions and the Proposed Schedule for Modifying the Current
Interpretative Bulletin
Based on the high rate of tire failure, the impact of tire failure
on the structural integrity of the home and concerns about the safety
of the travelling public on increasingly crowded public highways, HUD
has concluded that the current overloading of manufactured home tires
is no longer defensible. Secondly, HUD believes that the reasons for
previously permitting the overloading do not reflect the current
weights of manufactured homes, the multiple reuse of running gear
equipment, and the experience of the transporters.
In addition, HUD is persuaded that the use of products
substantially in excess of their design capacity is unsound and that
the current degree of tire overloading and failure rates associated
with increased travel speeds, less-than-ideal highway conditions, and
heavier manufactured homes is not acceptable. Given today's conditions,
the Interpretative Bulletin may be permitting practices which do not
assure ``that the running gear assembly, as part of the chassis, shall
be designed to perform, as a balanced system, in order to effectively
sustain the designed loads set forth in Sec. 3280.904(b)(3) and to
provide for durable dependable safe
[[Page 18021]]
mobility of the manufactured home'' (emphasis added).
Therefore, HUD has concluded that elimination or substantial
mitigation of tire overloading is needed. While the use of 9-14.5
Series F tires would be a possible option, these tires are not
currently being produced. Therefore, a proposed rule which imposes such
a requirement would require a long phase-in period. Also, the use of 9-
14.5 Series F tires would be the most expensive option.
The 8-14.5 Series F tires can be produced with the same molds as 8-
14.5 Series E tires which would shorten the necessary lead time. Series
F tires, though, have not been produced in any quantity over the last
several years and therefore, there are relatively few used tires that
are available. Since most of the tires used to transport homes are
used, this would further exacerbate a potential tire shortage and delay
the implementation of a proposed rule. Hence, the available options
have been narrowed to the acceptance of 18 percent overloading versus
the elimination of tire overloading through the use of 8-14.5 Series E
tires and an additional axle.
Absence of Authoritative Information Concerning This Subject
Definitive data on the effect of reducing the number of tire
failures through the use of 8-14.5 Series E tires is not available.
Evaluating the risk of allowing tire overloading by 18 percent versus
no tire overloading is complicated by inadequate information on the
causes of tire failure, the safety margins built into various tires,
and the relative performance of new and used tires.
The Administration's policy in Executive Order 12866, Regulatory
Planning and Review, requires that ``Agencies should assess costs and
benefits, both quantifiable and non-quantifiable and choose the
approach with the maximum net benefits.'' Based on the information
included in Table F, 18 percent tire overloading would impose one-half
of the cost of the elimination of tire overloading and might therefore
be the best alternative at this time, since it provides the greatest
benefits for the least added cost.
While Options 1 and 3 will entail some additional cost to home
manufacturers, the use of slightly overloaded and properly inflated 8-
14.5 Series E tires should substantially reduce the number of tire
failures. The cost avoided by eliminating tire failures will be
considerable since there are service calls, lost productivity due to
the time it takes to change the tire, and even in some cases damage to
the home. Knowledgeable sources indicated that the added cost for
upgraded tires may be substantially or wholly offset by reduced service
calls, longer tire life, and other benefits.
Therefore, FHWA and HUD are proposing to permit the overloading of
manufactured home tires by not more than 18 percent for a period of two
years from the effective date of the final rule and amended
interpretative bulletin. During that two year period, both agencies
would review any test and other technical data submitted by the
manufactured housing industry and tire manufacturers concerning the
relative performance of tires which are overloaded by 18 percent versus
no tire overloading.
Unless both agencies are persuaded that the 18 percent overloading
does not pose a risk to the traveling public and to the stability of
the manufactured home, any overloading of tires beyond their design
capacity would be prohibited after two years from the effective date of
the final rule. FHWA and HUD encourage tire manufacturers and suppliers
to submit all test and relevant information concerning the use of 8-
14.5 Series E tires with an effective overloading of 18 percent.
Implementation Schedule for Changes in the Standards
Manufactured home production is likely to exceed 450,000 sections
this year which will be a 20-year high for the industry. Since there
are insufficient 8-14.5, Series E tires being produced, a sudden change
in the tire requirements could result in shortages and disruption of
manufactured housing shipments.
In a letter to Mr. Frank Williams, Director of the Florida
Manufactured Housing Association, dated February 7, 1994, Goodyear Tire
and Rubber indicated that the tire demand for 1994 would be 2,400,000
tires. Goodyear also indicated that should HUD eliminate the
overloading of tires, thus prohibiting the use of the 7-14.5 tires,
Goodyear could meet only 20 percent of the demand for 8-14.5 Series E
tires.
Discussions with other tire industry officials indicated that
producers would require a number of months to increase production to 90
percent of the expected 8-14.5 Series E tire demand. Other sources
believed that adequate supplies of 8-14.5 Series E tires could be made
available within 9 months. HUD has concluded that it is in the public
interest to modify Interpretative Bulletin J-1-76 as soon as an
adequate supply of 8-14.5 Series E tires is available. Therefore, these
changes are proposed to be made effective nine months after the
publication of the amended interpretative bulletin.
Upon the effective date, tire overloading would be reduced to a
level not greater than 18 percent and the number of axles necessary to
support the transportation of the home would be based on engineering
analysis or testing as required by 24 CFR 3280.904. HUD would welcome
comments from tire suppliers and producers as to the feasibility of
this implementation schedule.
IX. Proposed Changes to Interpretative Bulletin J-1-76 of the
Manufactured Housing Standards
HUD has determined that the following changes should be made to
Interpretative Bulletin J-1-76:
1. Section C--``Axles'' would be deleted in its entirety because
the Tables in that Section were based on higher service load factors of
up to 50% for tires. In addition, there has been an increase of
approximately 25% in design weights for currently produced manufactured
homes than was originally assumed to develop the Tables.
Axles would be required to withstand the actual imposed dead load
including all of the design loads outlined in Sec. 3280.904(b)(3)
without exceeding maximum allowable stresses for design axle life as
recommended by the axle manufacturer. The manufacturer would determine
the number of axles by engineering analysis or by testing as permitted
in Section 3280.903(c).
Alternatively, if the manufacturer has submitted documented
evidence of transportation experience, the minimum number of axles
permitted by the experience record (weight slips, etc.) may not be less
than the number of axles required to meet the above criteria. Also, the
transportation experience must reflect the number of axles and tires
that would be required under Subpart D of the Interpretative Bulletin
as amended by this proposed rule.
2. Section D--``Tires, Wheels, and Rims'' would be revised as
follows:
Tires shall be sized and fitted to axles in accordance with the
gross axle weight rating determined by the manufactured home
manufacturer. The permissible tire loading may be increased up to a
maximum of 18 percent over the rated load capacity of the manufactured
home tire as determined by the manufacturer of the tire. Used tires may
also be sized in accordance with the above criteria whenever the tread
depth is at least \2/32\ of an inch as determined by a tread wear
indicator. The determination as to whether a particular used tire is
acceptable shall also include a visual
[[Page 18022]]
inspection for thermal and structural defects (e.g., dry rotting,
excessive tire sidewall splitting, etc.). Wheels and rims shall be
sized in accordance with the tire manufacturer's recommendations as
suitable for use with the tires selected.
X. Proposed Amendments to the FMCSRs
The FHWA is proposing to amend 49 CFR 393.75 to make the FMCSRs
consistent with the HUD's proposed amendments to Interpretative
Bulletin J-1-76. Section 393.75(f)(1)(i) and (ii) would be redesignated
as Sec. 393.75(f)(1) and (2). The redesignated paragraphs would address
all CMVs with the exception of manufactured homes. Section 393.75(f)(2)
would also reinstate speed restrictions on CMVs operated on overloaded
tires. The FHWA is proposing that vehicles with overloaded tires be
prohibited from operating at speeds above 80 km/hr (50 mph). This speed
ensures the safe operation of the vehicle while preventing conflicts
with minimum speed limits in certain States. The 80 km/hr (50 mph)
speed is consistent with the previous speed restriction which was
rescinded in 1988.
The FHWA is not proposing limitations on the amount of tire
overloading allowed for vehicles other than manufactured homes. The
FHWA will examine that issue separately from this rulemaking and, if
necessary, propose amendments in a future proceeding.
To address the issue of overloaded tires on manufactured homes, the
FHWA is proposing a new paragraph. Section 393.75(g) would allow 18
percent overloading of manufactured home tires for a period of two
years after the effective date of the final rule. Manufactured homes
operating on tires overloaded by more than 9 percent would be
restricted to a maximum speed of 80 km/hr (50 mph). This speed
restriction is consistent with information contained in the 1994 Tire
and Rim Association Handbook.
The FHWA notes that HUD is not proposing to include a speed
restriction in the Interpretative Bulletin. While this would result in
a difference between the revised Interpretative Bulletin and the
amended FMCSRs, the FHWA and HUD do not believe this minor difference
will create enforcement problems for the States. Since speed limits are
not related to the HUD standards for components or elements of the
manufactured housing units, the reinstatement of a speed restriction
under Sec. 393.75, and subsequent adoption by the States, would not be
in conflict with the revised Interpretative Bulletin.
With regard to the tire pressure and inflation requirements
currently found at Sec. 393.75(f)(2) and (3), the FHWA proposes to
include these provisions in a new paragraph, Sec. 393.75(h). The FHWA
is not proposing substantive changes to the requirements concerning
tire pressure and inflation at this time.
XI. Proposed Effective Date for FHWA and HUD Amendments
The FHWA and HUD propose that these revisions to the Regulations
and the Interpretative bulletin be made effective nine months after the
publication of the final rule.
XII. Rulemaking Analysis and Notices
All comments received before the close of business on the comment
closing date indicated above will be considered and will be available
for examination in the dockets at the above address. Comments received
after the comment closing date will be filed in the docket and will be
considered to the extent practicable, but the FHWA and HUD may issue a
final rule at any time after the close of the comment period. In
addition to late comments, the FHWA will also continue to file in the
docket FHWA MC-95-1 relevant information that becomes available after
the comment closing date, and interested persons should continue to
examine the docket for new material.
Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures
The FHWA and HUD have determined that this action is not a
significant regulatory action within the meaning of Executive Order
12866. In addition, the FHWA has determined that this action is not
significant within the meaning of Department of Transportation
regulatory policies and procedures. This rule would, if adopted,
establish tire loading limitations for manufactured homes transported
in interstate commerce. This action would eliminate inconsistency
between the FHWA and HUD requirements for manufactured homes. The FHWA
and HUD have evaluated the economic impact of potential changes to the
regulatory requirements concerning the safe transportation of
manufactured homes and determined that the proposed standard is
reasonable, appropriate, and the least costly and intrusive approach
for the resolution of this issue.
Nevertheless, based on the information received in response to this
notice, the FHWA and HUD intend to carefully consider the costs and
benefits associated with various alternative requirements. Comments,
information, and data are solicited on the economic impact of the
potential changes.
Regulatory Flexibility Act
In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-
612), the FHWA and HUD have evaluated the potential effects of this
rulemaking proposal on small entities and determined that the proposed
standard is reasonable, appropriate, and the least costly and intrusive
approach for the resolution of this issue. The FHWA and HUD certify
that this rulemaking does not have a significant economic impact on a
substantial number of small entities. The FHWA and HUD solicit
comments, information, and data on these impacts.
Executive Order 12612 (Federalism Assessment)
The FHWA has analyzed this rulemaking in accordance with the
principles and criteria contained in Executive Order 12612, Federalism,
and determined that this action does not have sufficient federalism
implications to warrant the preparation of a Federalism Assessment.
The General Counsel of HUD, as the Designated Official under
Section 6(a) of Executive Order 12612, has determined that the policies
contained in this rule will not have substantial direct effects on
States or their political subdivisions, or the relationship between the
Federal government and the States, or on the distribution of power and
responsibilities among the various levels of government. As a result,
the rule is not subject to review under the Order.
Specifically, the requirements of this rule are directed to
manufacturers and do not impinge upon the relationship between the
Federal government and State and local governments.
Executive Order 12372 (Intergovernmental Review)
Catalog of Federal Domestic Assistance Program Number 20.217, Motor
Carrier Safety. The regulations implementing Executive Order 12372
regarding intergovernmental consultation on Federal programs and
activities apply to this program.
Paperwork Reduction Act
The proposal in this document does not contain information
collection requirements [44 U.S.C. 3501 et seq.].
[[Page 18023]]
National Environmental Policy Act
The FHWA has analyzed this action for the purpose of the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and
determined that this action would not have any effect on the quality of
the environment.
A Finding of No Significant Impact with respect to the environment
has been made in accordance with HUD regulations at 24 CFR Part 50,
which implement section 102(2)(c) of the National Environmental Policy
Act of 1969. The Finding of No Significant Impact is available for
public inspection between 7:30 a.m. and 5:30 p.m. weekdays in the
Office of the Rules Docket Clerk at the above address.
Regulation Identification Numbers
A regulation identification number (RIN) is assigned to each
regulatory action listed in the Unified Agenda of Federal Regulations.
The Regulatory Information Service Center publishes the Unified Agenda
in April and October of each year. The RINs contained in the heading of
this document can be used to cross reference this action with the
Unified Agenda.
Executive Order 12606, The Family
The General Counsel of HUD, as the Designated Official under
Executive Order 12606, The Family, has determined that this rule does
not have potential for significant impact on formation, maintenance,
and general well-being of families, and thus, is not subject to review
under the Order. The rule involves requirements for transportation
safety standards for manufactured homes. Any effect on the family would
likely be indirect and insignificant.
List of Subjects in 24 CFR Part 3280
Fire prevention, Housing standards, Manufactured homes.
List of Subjects in 49 CFR Part 393
Highway safety, Highways and roads, Motor carriers, and Motor
vehicle safety.
In consideration of the foregoing, the Department of Housing and
Urban Development proposes to amend 24 CFR part 3280 and Interpretative
Bulletin J-1-76, and the Department of Transportation, Federal Highway
Administration proposes to amend 49 CFR part 393 as set forth below.
24 CFR Chapter XX
PART 3280--MANUFACTURED HOME CONSTRUCTION AND SAFETY STANDARDS
1. The authority citation for Part 3280 is revised to read as
follows:
Authority: 42 U.S.C. 3535(d), 5301, and 5401.
2. Interpretative Bulletin J-1-76 published at 41 FR 53627
(December 7, 1976) would be amended as follows. (The Interpretative
Bulletin is available from the Rules Docket Clerk, Room 10276,
Department of Housing and Urban Development, 451 7th St. SW.,
Washington, DC 20410).
Section C. of the interpretative bulletin would be removed. Section
D. would be redesignated as Section C. and would be revised to read as
set forth below. Sections E. and F. would be redesignated as Sections
D. and E.
* * * * *
C. Tires shall be sized and fitted to axles in accordance with
the gross axle weight rating determined by the mobile home
manufacturer. The permissible tire loading may be increased up to a
maximum of 18 percent beyond the rated load capacity of the
manufactured home tire as determined by the manufacturer of the
tire. Used tires may also be sized in accordance with the above
criteria whenever the tread depth is at least \2/32\ of an inch as
determined by a tread wear indicator. The determination as to
whether a particular used tire is acceptable shall also include a
visual inspection of thermal and structural defects (e.g., dry
rotting, excessive tire sidewall splitting, etc.). Wheels and rims
shall be sized in accordance with the tire manufacturer's
recommendations as suitable for use with the tires selected. This
provision will become effective nine months after the publication
date of the final rule (insert publication date). This provision
will expire (INSERT DATE TWO YEARS AFTER THE EFFECTIVE DATE OF THE
AMENDED INTERPRETATIVE BULLETIN) unless extended by mutual consent
of FHWA and HUD.
* * * * *
49 CFR Chapter III
PART 393--PARTS AND ACCESSORIES NECESSARY FOR SAFE OPERATION
4. The authority citation at the end of Sec. 393.75 would be
removed and the authority citation for 49 CFR part 393 would be revised
to read as follows:
Authority: Section 1041(b) of Pub. L. 102-240, 105 Stat. 1914,
1993; 49 U.S.C. 31136 and 31502; 49 CFR 1.48.
5. Section 393.5 would be amended by adding the definitions of
manufactured home, length of a manufactured home, and width of a
manufactured home, placing them in alphabetical order, as follows:
* * * * *
Length of a manufactured home. The largest exterior length in the
traveling mode, including any projections which contain interior space.
Length does not include bay windows, roof projections, overhangs, or
eaves under which there is no interior space, nor does it include
drawbars, couplings or hitches.
* * * * *
Manufactured home. A structure, transportable in one or more
sections, which in the traveling mode, is eight feet or more in width
or forty feet or more in length or, when erected on site, is three
hundred and twenty or more square feet, and which is built on a
permanent chassis and designed to be used as a dwelling with or without
a permanent foundation when connected to the required utilities, and
includes the plumbing, heating, air-conditioning, and electrical
systems contained therein. Calculations used to determine the number of
square feet in a structure will be based on the structure's exterior
dimensions measured at the largest horizontal projections when erected
on site. These dimensions will include all expandable rooms, cabinets,
and other projections containing interior space, but do not include bay
windows. This term includes all structures which meet the above
requirements except the size requirements and with respect to which the
manufacturer files a certification pursuant to 24 CFR 3282.13 and
complies with the standards set forth in part 24 CFR 3280.
* * * * *
Width of a manufactured home. The largest exterior width in the
traveling mode, including any projections which contain interior space.
Width does not include bay windows, roof projections, overhangs, or
eaves under which there is no interior space.
6. Section 393.75 would be amended by revising paragraph (f), and
by adding paragraphs (g) and (h) to read as follows:
Sec. 393.75 Tires.
* * * * *
(f) Tire loading restrictions. With the exception of manufactured
homes, no motor vehicle shall be operated with tires that carry a
weight greater than that marked on the sidewall of the tire or, in the
absence of a marking on the sidewall of the tire, a weight greater than
that specified for the tires in any of the publications of any of the
organizations listed in FMVSS No. 119 (49 CFR 571.119, S5.1(b)) unless:
(1) The vehicle is being operated under the terms of a special
permit issued by the State; and
(2) The vehicle is being operated at a reduced speed to compensate
for the tire loading in excess of the manufacturer's rated capacity for
the tire. In no case shall the speed exceed 80 km/hr (50 mph).
(g) Tire loading restrictions for manufactured homes. Effective
(INSERT
[[Page 18024]]
DATE NINE MONTHS AFTER THE PUBLICATION DATE OF THE FINAL RULE), tires
used for the transportation of manufactured homes (i.e., tires marked
or labeled 7-14.5MH and 8-14.5MH) may be loaded up to 18 percent over
the load rating marked on the sidewall of the tire or, in the absence
of a marking on the sidewall of the tire, 18 percent over the load
rating specified in any of the publications of any of the organizations
listed in FMVSS No. 119 (49 CFR 571.119, S5.1(b)). Manufactured homes
transported on tires overloaded by 9 percent or more must not be
operated at speeds exceeding 80 km/hr (50 mph). This provision will
expire (INSERT DATE TWO YEARS AFTER THE EFFECTIVE DATE OF THE FINAL
RULE) unless extended by mutual consent of FHWA and HUD.
(h) Tire inflation pressure.
(1) No motor vehicle shall be operated on a tire which has a cold
inflation pressure less than that specified for the load being carried.
(2) If the inflation pressure of the tire has been increased by
heat because of the recent operation of the vehicle, the cold inflation
pressure shall be estimated by subtracting the inflation buildup factor
shown in Table 1 from the measured inflation pressure.
Table 1.--Inflation Pressure Measurement Correction for Heat
----------------------------------------------------------------------------------------------------------------
Minimum inflation pressure buildup
Average speed of vehicle in the ------------------------------------------------------------------------------
previous hour Tires with 1,814 kg (4,000 lbs.) maximum load Tires with over 1,814 kg
rating or less (4,000 lbs.) load rating
----------------------------------------------------------------------------------------------------------------
66-88.5 km/hr (41-55 mph)........ 34.5 kPa (5 psi)............................. 103.4 kpa (15 psi).
----------------------------------------------------------------------------------------------------------------
Issued on: March 15, 1996.
Nicolas P. Retsinas,
Assistant Secretary for Housing-Federal Housing Commissioner.
Rodney E. Slater,
Federal Highway Administrator.
[FR Doc. 96-9717 Filed 4-22-96; 8:45 am]
BILLING CODE 4210-27-P
Complete official Federal Register PDF
FR Doc. 96-10051 Telecommunications Act of 1996; Broadcast License Terms
[Federal Register Volume 61, Number 79 (Tuesday, April 23, 1996)]
[Proposed Rules]
[Pages 17864-17866]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10051]
=======================================================================
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 73 and 74
[MM Docket No. 96-90, FCC 96-169]
Telecommunications Act of 1996; Broadcast License Terms
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: We issue this Notice of Proposed Rule Making (``NPRM'') to
implement Section 203 of the Telecommunications Act of 1996 (``Telecom
Act'') (Broadcast License Terms). Section 203 eliminates the statutory
distinction between the maximum allowable license terms for television
stations and radio stations, and provides that such licenses may be for
terms ``not to exceed 8 years.'' Amendment of the Commission's Rules is
necessary to conform them to Section 203 of the Telecom Act. We seek
comment on our proposal to amend our rules to extend broadcast license
terms to 8 years, as well as on our proposal for implementing this
change within the framework of existing license renewal cycles.
DATES: Comments are due on or before May 20, 1996, and reply comments
are due on or before June 4, 1996. Written comments by the public on
the proposed and/or modified information collections are due on or
before May 20, 1996.
ADDRESSES: Federal Communications Commission, Washington, D.C. 20554.
FOR FURTHER INFORMATION CONTACT: Robert Somers (202-418-2130), Mass
Media Bureau.
SUPPLEMENTARY INFORMATION: This is a synopsis of the Notice of Proposed
Rule Making in MM Docket No. 96-90, FCC 96-169, adopted April 11, 1996
and released April 12, 1996. The complete text of this Notice of
Proposed Rule Making is available for inspection and copying during
normal business hours in the FCC Reference Center (Room 239), 1919 M
Street NW., Washington, D.C., and also may be purchased from the
Commission's copy contractor, International Transcription Service,
(202) 857-3800, 2100 M Street, N.W., Suite 140, Washington, DC 20037.
Synopsis of Notice of Proposed Rule Making Extending License Terms for
Broadcast Facilities
1. Section 307(c) of the Communications Act of 1934, as amended, 47
U.S.C. Sec. 307(c), authorizes the Commission to establish the period
or periods for which licenses shall be granted or renewed. Prior to the
enactment of the Telecom Act, Section 307(c) provided that the licenses
of television stations, including low power TV stations, could be
issued for a term of no longer than 5 years. It further provided that
license terms for radio stations, including auxiliary facilities, could
be for a period not to exceed 7 years. These were the maximum allowable
license terms and the Commission had the discretion to grant or renew a
broadcast license for a shorter period if the public interest,
convenience, and necessity would be served by such action. Consistent
with these statutory provisions, Section 73.1020 of the Commission's
Rules currently states that ``[r]adio broadcasting stations will
ordinarily be renewed for 7 years and TV broadcast stations will be
renewed for 5 years. However, if the FCC finds that the public
interest, convenience and necessity will be served thereby, it may
issue either an initial license or a renewal thereof for a lesser
term.'' Section 73.1020 also sets forth a renewal schedule for
broadcast stations based on the geographical region of the country in
which each station is located.
2. Section 203 of the Telecom Act amends Section 307(c) of the
Communications Act to read as follows:
Each license granted for the operation of a broadcasting station
shall be for a term of not to exceed 8 years. Upon application
therefor, a renewal of such license may be granted from time to time
for a term of not to exceed 8 years from the date of expiration of
the preceding license, if the Commission finds that public interest,
convenience, and necessity would be served thereby. Consistent with
the foregoing provisions of this subsection, the Commission may by
rule prescribe the period or periods for which licenses shall be
granted and renewed for particular classes of stations, but the
Commission may not adopt or follow any rule which would preclude it,
in any case involving a station of a particular class, from granting
or renewing a license for a shorter period than that prescribed for
stations of such class if, in its judgment, the public interest,
convenience, or necessity would be served by such action.
3. Length of License Terms. Although the language of Section 203 of
the Telecom Act lengthens the maximum permissible broadcast license
term to 8 years for both television and radio stations, the statute
does not require the Commission to extend license terms to 8 years as a
matter of course. The statutory language provides that licenses are to
have terms ``not to exceed 8 years'' and expressly states that the
Commission ``may'' grant renewals for terms not to exceed 8 years if
the public interest would be served thereby. Moreover, the language
indicates that the Commission may, by rule, adopt different license
terms for different classes of stations. Given this discretion under
the statute regarding how we might amend our rules, we believe it is
appropriate to determine through notice and comment rulemaking the
proper length of broadcast license terms as a general matter.
4. For several reasons, we propose to amend our Rules to provide
that broadcast licenses ordinarily have the maximum 8-year term
authorized under the statute. First, the practice of ordinarily
granting television and radio licenses for the maximum terms will
reduce the burden to broadcasters of seeking the periodic renewal of
their licenses and the associated burdens on the Commission. Second, it
is consistent with past Commission practice; our
[[Page 17865]]
current rules provide for the maximum license terms in accordance with
previous statutory maximum terms of 5 years for television stations and
7 years for radio stations. Finally, this approach is consistent with
the legislative history of the Telecom Act. While the statutory
language provides the Commission discretion in this area, the
Conference Report indicates that Congress intended the Commission to
adopt the maximum term, stating that Section 203 of the Telecom Act
``extends the license term for broadcast licenses to eight years for
both television and radio.''
5. We seek comment on this proposal to amend Sections 73.1020 and
74.15 of our Rules to provide that the Commission will ordinarily grant
licenses for the 8-year terms allowed by Section 203 of the Telecom
Act. Irrespective of what the Commission ultimately determines to be an
appropriate standard license term, we note that Section 203 of the
Telecom Act explicitly reserves the Commission's authority to grant
individual licenses for less than the statutory maximum if the public
interest, convenience, and necessity would be served by such action.
6. Classes of Stations. Section 203 of the Telecom Act states in
part:
``the Commission may by rule prescribe the period or periods for which
licenses shall be granted and renewed for particular classes of
stations. * * *'' While this provision provides us authority to
designate different license terms for particular classes of stations
(provided that they do not exceed 8 years), we propose to treat all but
experimental broadcast stations uniformly.
7. With respect to television and radio stations the statute
eliminates the current distinction between these services for purposes
of establishing the maximum allowable license terms. In this regard,
the legislative history states: ``By applying a uniform license term *
* * for all broadcast station licenses, the Committee simply recognizes
that there is no reason for longer radio license terms than for
television licenses. The Committee intends that applying a uniform
license term * * * for radio and television licenses will enable the
Commission to operate more efficiently in the awarding of new or
renewed licenses for all broadcast licenses.'' H.R. Rep. No. 104-204,
Section 304, 104th Cong., 1st Sess. 122 (1995).
8. Similarly, we propose to track the approach we take with full-
service stations and adopt an 8-year license term for FM and TV
translator facilities and low power TV stations, as well as for
international broadcasting stations. This approach is consistent with
our previous decision to treat these different classes of stations
uniformly. See Report and Order in MM Docket No. 92-168, 59 FR 63049,
December 7, 1994. We further propose to continue our practice, set
forth in Sections 74.15(b) and (c) of our Rules, of tying the license
terms for auxiliary and booster facilities to the license terms of the
broadcast stations with which they are associated. We seek comment on
these proposals.
9. Finally, we propose to continue our practice, set forth in
Section 74.15(a) of our Rules, of issuing licenses for experimental
broadcast stations for a term of 1 year. We believe that a longer
license term would not be warranted for this class of station and seek
comment on this proposal.
10. Implementation of Amended License Term Provisions. Section 203
of the Telecom Act and the legislative history are silent as to whether
existing broadcast station licenses may be modified immediately to
conform to any new license terms that may be adopted.
11. The implementation issue is important because of the logistics
involved in renewing broadcast licenses. Under Sections 73.1020 and
74.15 of the Commission's Rules, all of the licenses for a particular
class of broadcast stations expire at fixed intervals over a 3-year
period. To stagger the processing of renewal applications and thus
perform this task more efficiently, the country is divided into 18
different regions containing 1 or more states for purposes of
establishing synchronized schedules for radio and television license
renewals. The radio renewal schedule and the television renewal
schedule operate on separate and distinct cycles that do not run
concurrently. Accordingly, once all radio licenses have been renewed as
scheduled, there is a 50-month hiatus before the radio renewal cycle
begins again. Similarly, once all television licenses have been renewed
as scheduled, there is also a 26-month hiatus before the television
renewal cycle begins again.
12. Because of the cyclical nature of this process, any change in
the length of the license term implemented in the middle of a renewal
cycle could adversely affect the synchronization of the whole process.
13. By the time the Telecom Act of 1996 was enacted in February
1996, the renewal cycle had already begun for radio stations in several
regions of the country. The practical effect of this situation is that
radio licenses that have already been renewed for the current maximum
allowable 7-year term will have shorter terms than radio licenses
renewed later in the renewal cycle, if we adopt the 8-year term we now
propose. When these previously granted licenses expire the radio
renewal process will no longer be synchronized. We wish to maintain the
efficiencies inherent in the existing synchronized schedule of renewal
cycles. Should we ultimately adopt an 8-year license term, we therefore
propose to implement it as follows. For broadcast renewal applications
that are granted after the effective date of a decision in this
proceeding, we propose to ordinarily grant the renewed license for the
maximum proposed term of 8 years. For renewal applications that have
been filed as part of the current renewal cycle (i.e., the cycle
beginning October 1, 1995 for radio stations) and that have been
granted only the maximum 7-year license term provided under our current
rules because they were processed prior to a decision in this
proceeding, we propose to extend by rule the already renewed 7-year
license term for such stations to the proposed 8-year term. These
licenses will thus be modified by rule to have the new maximum term and
will come up for renewal in synchronization with future radio renewal
cycles. The Commission adopted a similar approach in 1983 when it
extended existing common carrier and satellite licenses from 5 to 10
years. As noted in that decision, the Commission's authority to modify
the provisions of existing licenses by rulemaking has been upheld on
several occasions. This type of approach is also consistent with the
discretion we are given by the Telecom Act to prescribe rules governing
the period or periods for which licenses are granted for particular
classes of stations. We solicit comment on this proposed approach for
implementing the new maximum broadcast license terms authorized by the
Telecom Act.
14. By this Notice of Proposed Rule Making we request comments on
how to best implement the provisions of Section 203 of the Telecom Act.
Specifically, we seek comment on whether we should amend Sections
73.1020, 73.733, and 74.15 of the Commission's Rules to provide that
broadcast licenses ordinarily should have 8-year terms, the maximum
provided under the Telecom Act. We also seek comment on the treatment
of different classes of broadcast stations and how best to implement
the transition to any amended license term in an equitable manner given
that the renewal cycle has already begun.
15. This action is taken pursuant to authority found in Sections
4(i), 303(r), and 307(c) of the Communications Act of 1934, as amended,
47 U.S.C. 154(i),
[[Page 17866]]
303(r), and 307(c), and Sections 0.204(b), 0.283 and 1.45 of the
Commission's Rules, 47 CFR 0.204(b), 0.283 and 1.45.
List of Subjects
47 CFR Part 73
Radio broadcasting, Television broadcasting.
47 CFR Part 74
Radio broadcasting, Television broadcasting.
Federal Communications Commission.
William F. Caton,
Acting Secretary.
[FR Doc. 96-10051 Filed 4-22-96; 8:45 am]
BILLING CODE 6712-01-P
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