issue-1996-06-06•Federal Register proposed rules — 1996-06-06
Federal Register proposed rules — 1996-06-06
issue-1996-06-06Federal Register proposed rules — 1996-06-06Proposed 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. 96-14308 Antidumping Duties; Countervailing Duties
[Federal Register Volume 61, Number 110 (Thursday, June 6, 1996)]
[Proposed Rules]
[Page 28821]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14308]
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DEPARTMENT OF COMMERCE
International Trade Administration
19 CFR Parts 351, 353 and 355
Antidumping Duties; Countervailing Duties
AGENCY: Import Administration, International Trade Administration,
Commerce.
ACTION: Announcement of opportunity to file public comments on the
public hearing of proposed antidumping and countervailing duty
regulations.
SUMMARY: The Department of Commerce (the Department) is announcing the
opportunity to file public comments on issues raised at the public
hearing on the proposed antidumping and countervailing duty
regulations. The deadline for filing comments is June 17, 1996. The
public hearing will be held on June 7, 1996.
DATES: A public hearing will be held at 10:00 on June 7, 1996. The
deadline for filing comments is June 17, 1996.
ADDRESSES: The public hearing will be held in the Auditorium of the
Herbert C. Hoover Building at Pennsylvania Avenue and 14th Street,
N.W., Washington, D.C. Address written comments and requests to
participate in the public hearing to Paul Joffe, Acting Assistant
Secretary for Import Administration, Central Records Unit, Room B-099,
U.S. Department of Commerce, Pennsylvania Avenue and 14th Street, N.W.,
Washington, D.C. 20230. Comments on the proposed regulations should be
addressed: Attention: Hearing Comments. Each person submitting a
comment should include his or her name, address, and give reasons for
any recommendation.
FOR FURTHER INFORMATION CONTACT: Penelope Naas at (202) 482-3534.
SUPPLEMENTARY INFORMATION: On February 27, 1996, the Department
published proposed antidumping and countervailing duty regulations (61
FR 7308). We will hold a public hearing on June 7, 1996. We are
allowing submission of written comments on issues raised at the
hearing. As well, we are allowing submission of written comments on any
issue raised in written comments previously submitted.
Proposed Regulations
The proposed regulations are available on the Internet at the
following address:
HTTP://WWW.ITA.DOC.GOV/IMPORT--ADMIN/RECORDS/
In addition, the proposed regulations are available to the public
on 3.5'' diskettes, with specific instructions for accessing compressed
data, at cost, and paper copies available for reading and photocopying
in Room B-099 of the Central Records Unit. Any questions concerning
file formatting, document conversion, access on Internet, or other file
requirements should be addressed to Andrew Lee Beller, Director of
Central Records, (202) 482-1248.
Format and Number of Copies
To simplify the processing and distribution of the public comments
pertaining to the Department's proposed regulations, parties are
encouraged to submit documents in electronic form accompanied by an
original and three paper copies. All documents filed in electronic form
must be on DOS formatted 3.5'' diskettes, and must be prepared in
either WordPerfect format or a format that the WordPerfect program can
convert and import into WordPerfect. Please submit comments on a
separate file on the diskette and labeled by the section number in the
regulations. If possible, the Department would appreciate the documents
being filed in either ASCII format or WordPerfect 5.1, and containing
generic codes. The Department would also appreciate the use of
descriptive file names.
Dated: June 3, 1996.
Paul Joffe,
Acting Assistant Secretary for Import Administration.
[FR Doc. 96-14308 Filed 6-5-96; 8:45 am]
BILLING CODE 3510-DS-P
Complete official Federal Register PDF
FR Doc. 96-14265 Petition for Rulemaking; Summary of Petitions Received; Dispositions of Petitions Issued
[Federal Register Volume 61, Number 110 (Thursday, June 6, 1996)]
[Proposed Rules]
[Page 28803]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14265]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Chapter I
[Summary Notice No. PR-96-2]
Petition for Rulemaking; Summary of Petitions Received;
Dispositions of Petitions Issued
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Notice of petitions for rulemaking received and of dispositions
of prior petitions.
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SUMMARY: Pursuant to FAA's rulemaking provisions governing the
application, processing, and disposition of petitions for rulemaking
(14 CFR Part 11), this notice contains a summary of certain petitions
requesting the initiation of rulemaking procedures for the amendment of
specified provisions of the Federal Aviation Regulations and of denials
or withdrawals of certain petitions previously received. The purpose of
this notice is to improve the public's awareness of, and participation
in, this aspect of FAA's regulatory activities. Neither publication of
this notice nor the inclusion or omission of information in the summary
is intended to affect the legal status of any petition or its final
disposition.
FOR FURTHER INFORMATION CONTACT:
Mr. D. Michael Smith, Office of Rulemaking (ARM-1), Federal Aviation
Administration, 800 Independence Avenue, SW., Washington, DC 20591;
telephone (202) 267-7470.
This notice is published pursuant to paragraphs (b) and (f) of
Sec. 11.27 of Part 11 of the Federal Aviation Regulations (14 CFR Part
11).
Issued in Washington, D.C. on June 3, 1996.
Donald P. Byrne,
Assistant Chief Counsel for Regulations.
Disposition of Petitions
Docket No.: 23755.
Petitioner: Mr. John G. Rutty.
Regulations Affected: 14 CFR 91.131 and 91.205.
Description of Rulechange Sought: To require antiblocking and
``stuck'' microphone relief circuitry in aircraft voice communication
radios employed in certain high-density air traffic areas, referred to
as Group I terminal control areas (TCA's), later reclassified as Class
B airspace.
Petitioner's Reason for the Request: The petitioner feels
antiblocking device (ABD) circuitry would provide significant safety
benefits to the public. In addition, the petitioner contends that ABD
circuitry would improve communication efficiency and reduce air traffic
controller workload; the necessity of ``go-arounds,'' deviations, and
delays resulting in less wastage of fuel; and pilot fatigue and
frustration caused by blocked messages.
Denial; May 17, 1996.
[FR Doc. 96-14265 Filed 6-5-96; 8:45 am]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 96-14262 Flight Attendant Requirements
[Federal Register Volume 61, Number 110 (Thursday, June 6, 1996)]
[Proposed Rules]
[Page 29000]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14262]
[[Page 28999]]
_______________________________________________________________________
Part V
Department of Transportation
_______________________________________________________________________
Federal Aviation Administration
_______________________________________________________________________
14 CFR Part 121
Flight Attendant Requirements; Proposed Rule
Federal Register / Vol. 61, No. 110 / Thursday, June 6, 1996 /
Proposed Rules
[[Page 29000]]
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 121
[Docket No. 25874; Notice No. 89-9]
RIN 2120-AC32
Flight Attendant Requirements
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Proposed rule, withdrawal.
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SUMMARY: The FAA is withdrawing a previously published notice of
proposed rulemaking (NPRM) that proposed to amend the regulations for
situations where passengers are on board aircraft that are parked at
the gate. The FAA has determined that because there has been a
considerable lapse of time since the issuance of the NPRM in April of
1989, the NPRM should be withdrawn.
DATES: This withdrawal is made on June 6, 1996.
FOR FURTHER INFORMATION CONTACT:
Donell Pollard, Air Transportation Division, Federal Aviation
Administration, 800 Independence Ave., SW., Washington, D.C. 20591;
telephone (202) 267-3735.
SUPPLEMENTARY INFORMATION: On April 14, 1989, the FAA published Notice
No. 89-9 [54 FR 15134] proposing to amend the regulations covering
situations where passengers remain on board an aircraft when it is
parked at the gate. The current rule permits a reduction of flight
attendants at intermediate stops; Notice 89-9 proposed to extend that
reduction to beginning and ending stops. The FAA also proposed that,
for airplanes of 101-150 passenger seats, two flight attendants rather
than one should be required at all stops for reasons of safety and
security. Finally, the NPRM proposed certain training requirements for
persons who would be allowed to substitute for flight attendants at
stops where passengers remain on board.
The FAA received 12 comments on the proposal. The Air Transport
Association (ATA) commented that it favors the reduction in the number
of flight attendants at beginning and ending stops; however, it opposes
the increase in the number of flight attendants for the 101-150
passenger airplane. ATA estimated that this change could cost up to $12
million annually. The Association of Flight Attendants (AFA) commented
that the FAA should allow no reduction in the number of flight
attendants for reasons of safety and security, but favored the proposed
increase, from one to two, in the number of flight attendants required
to remain onboard the 101-150 airplane. A joint comment submitted by
other flight attendant associations supported this position. That
comment also pointed out that allowing persons to substitute for flight
attendants would add yet another group that would have information on
the air carrier's security program. Likewise, the Air Line Pilots
Association (ALPA) supported a full complement of flight attendants on
board when passengers are boarding or deplaning, and included
additional criteria for the emergency evacuation of an airplane. The
National Transportation Safety Board (NTSB) stated that all of the
flight attendants should be on board during the active stages of
boarding and deplaning, but agreed that the number of flight attendants
could be reduced during enroute stops. The NTSB agreed that this
reduction should be based on the number of floor level exits. The NTSB
also suggested specific training for those persons who would be allowed
to substitute for flight attendants. Finally, several individuals
commented that they did not support this rulemaking based on safety
considerations.
Because it has now been almost 7 years since the proposal was
published, the FAA acknowledges that these comments should not be
relied on as necessarily representing the positions of persons
interested in this proposal. Because the airline industry is a dynamic
and changing industry, comments made in 1989 may or may not reflect the
effect that this proposal would have on air carriers and individuals
today.
For these reasons, the FAA has decided to withdraw NPRM No. 89-9.
The FAA may issue a new proposal in the future.
In consideration of the above, Notice No. 89-9, issued April 14,
1989, is hereby withdrawn.
Issued in Washington, DC on May 31, 1996.
Thomas C. Accardi,
Director, Flight Standards Service.
[FR Doc. 96-14262 Filed 6-5-96; 8:45 am]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 96-14254 Weather Service Modernization Criteria
[Federal Register Volume 61, Number 110 (Thursday, June 6, 1996)]
[Proposed Rules]
[Pages 28804-28806]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14254]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Part 946
[Docket No. 960418114-6137-02]
RIN 0648-AF72
Weather Service Modernization Criteria
AGENCY: National Weather Service, National Oceanic and Atmospheric
Administration, Department of Commerce.
ACTION: Proposed amendment; request for comments.
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SUMMARY: In accordance with the Weather Service Modernization Act, 15
U.S.C. 313n. (the Act), the National Weather Service (NWS) is proposing
to amend its criteria governing the taking of certain modernization
actions. This amendment would add criteria unique to closing a field
office to ensure that closure actions will not result in any
degradation of service.
DATES: Comments are requested by July 8, 1996.
ADDRESSES: Requests for copies of documents stated in the preamble as
being available upon request and comments should be sent to Julie
Scanlon, NOAA/NWS, SSMC2, Room 9332, 1325 East-West Highway, Silver
Spring, Maryland 20910.
FOR FURTHER INFORMATION CONTACT: Nicholas Scheller, 301-713-0454.
SUPPLEMENTARY INFORMATION: Section 704(a) of the Act requires the NWS
to contract with the National Research Council (NRC) for a review of
the scientific and technical criteria for specified modernization
actions. The NRC conducted this review and submitted the required
report assessing the criteria to the Secretary of Commerce on July 28,
1993. Readers may obtain a copy of this Report from the contact and at
the address provided above.
Section 704(b) of the Act requires the NWS to publish the criteria
in the Federal Register, based on the NRC Report, after providing an
opportunity for public comment and after consulting with the NRC and
the Modernization Transition Committee (the Committee) established by
section 707 of the Act. The NWS has already published all of the
required criteria except those for closing a field office, the final
step in the modernization process. These existing criteria are, or will
be, set forth in Appendices A and B to the basic modernization
regulations at 15 CFR part 946.
On March 2, 1994, the NWS published many of the required criteria
as Appendix A to the general modernization regulations at 15 CFR part
946 (see 59 FR 9921). These criteria were published in four categories
as follows:
(1) Those for modernization actions that do not require prior
certification of no degradation of service, i.e., commissioning new
weather observation systems and decommissioning outdated NWS radars
(Appendix A, Section I.);
(2) Those for modernization actions that do require
certification and are common to all such actions, e.g. providing
appropriate notification in the National Implementation Plan;
describing local weather characteristics and related weather
concerns; and comparing services before and after the action
(Appendix A, Section II.A.); \1\
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\1\ The criteria common to all modernization actions requiring
certification is a subset of the criteria that will be used to
certify closure actions. This section of the previously published
criteria is attached for reference (Attachment 1).
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(3) Those for modernization actions that require certification
and that are unique to consolidating field offices (Appendix A,
Section II.B.); and
(4) Those for modernization actions that require certification
and that are unique to relocating field offices (Appendix A, Section
II.C.).
On May 2, 1996, the NWS published proposed criteria unique to
automation (see 61 FR 19594). The comment period closes on June 1,
1996. These criteria will be added as Section II.D. to Appendix A and a
new Appendix B, after the NWS has time to respond to the public
comments, consult with the NRC and the Committee, and publish the final
version.
The present Notice proposes to further amend Appendix A to add the
remaining criteria, those for final closure of a field office, as
Section II.E. The proposed criteria are based on the July 28, 1993 NRC
report.
Summary of NWS Modernization
The proposed closure criteria can better be understood within the
context of the overall NWS modernization program. A total of 118
Weather Forecast Offices (WFO) supported by the National Centers for
Environmental Prediction (NCEP) and 13 modernized River Forecast
Centers (RFC) will exist in the modernized and restructured NWS. Each
WFO will have responsibility for all warnings and forecasts within its
assigned area of responsibility which, on average, will be half a
state. Modernized operations will allow forecasters to comprehensively
address the air-sea environment in their assigned area. Observation and
analysis of current and expected weather conditions can be quickly and
reliably completed, critical decisions made, and immediate warnings and
forecasts issued.
The concept of the local data base is central to modernized
operations at the WFO. The high volume of data from the local Doppler
weather surveillance radar and Geostationary Operational Environmental
Satellites combined with the high frequency observations from the
Automated Surface Observing Systems will flow directly to the WFO. The
most complete data sets will only be available to the local WFO. The
modernization is allowing NWS to convert its pre-modernization network
of 52 Weather Service Forecast Offices, about 200 smaller Weather
Service Offices, and about 35 meteorological observatories into the
modernized network of WFOs, RFCs and NCEP. For more information, see
the Strategic Plan for the Modernization and Associated Restructuring
of the National Weather Service, March 1989.
Transition Process
Closing a field office is the final step in an often complex
transition process in which a field office is carefully
[[Page 28805]]
phased out at the same time as one or more associated WFOs assume the
service responsibilities for that office. Closure may trigger any or
all of the following actions: Reassignment of remaining NWS staff;
removal of remaining equipment; disposal of facility; and restoration
of site. Generally, phasing out the old office will involve one or both
of the following major steps prior to closure:
Consolidation--consists of transferring the personnel from
the old office after commissioning the NEXRAD(s) at one or more of the
WFOs that will assume responsibility for that office; this action
occurs after county warning and NOAA Weather Radio responsibilities
have been reassigned to the associated WFO(s); services with users have
been confirmed; and the old radar, if there is one, has been
decommissioned.
Automation--consists of transferring the personnel taking
surface observations after commissioning an Automated Surface Observing
System (ASOS) at the old office; this action occurs after any
augmentation/backup responsibility has been transferred to the Federal
Aviation Administration (FAA); a supplementary data program is
operational at the associated WFO(s) responsible for the field office
to be automated; and services with users have been confirmed.
A more detailed description of this overall transition process can
be found in the Federal Register notices publishing the basic
modernization regulations (see 58 FR 18316--proposed; 58 FR 64088--
final). A more detailed description of the consolidation and automation
processes can be found in the Federal Register notices establishing or
proposing the criteria unique to certifying these actions (see 59 FR
9921--consolidation; 61 FR 19594--automation).
Closure Prerequisites
Both consolidation and automation are major steps in the transition
process requiring certification that they will not result in any
degradation of service. Almost all of the field offices planned for
closure will carry out at least one of these two actions and most will
carry out both. (Only 11 field offices planned for closure will carry
out neither). The current version of the annual National Implementation
Plan for Modernization of the National Weather Service provides a
listing of all field offices planned for closure and the applicability
of consolidation and/or automation.
Each field office that does carry out a consolidation and/or an
automation will have to complete all of the requirements for
certification for the relevant action(s) as a prerequisite to closure.
Consequently, completion of these prerequisite certification
requirements, as applicable, are the first two modernization criteria
for closure.
In some cases, the action(s) to consolidate and/or automate an
office may be proposed concurrently with the proposed closure action.
In these cases the proposed closure certification may be combined with
the proposed certification(s) for consolidation and/or automation, as
long as all the requirements for these prerequisite actions are met by
the time the closure certification is proposed. In these cases the
relevant criteria for closure are not completion of the relevant
certifications but documentation of all the requirements for the
relevant certifications so that all required certifications can be
reviewed concurrently.
After consolidation and automation occur, there may be some service
or observational responsibilities remaining at a field office planned
for closure. In these cases, reassignment of remaining service
responsibilities and/or modernized arrangements for remaining
observational responsibilities will require an additional capability to
be operational (e.g., Advanced Weather Interactive Processing System
(AWIPS) at a future WFO). Thus the third criterion for closure ensures
that any remaining service or observational responsibilities have been
transitioned.
The fourth criterion for closure relates to user acceptance of
modernization by the users of weather services. Similar criteria where
established as part of both consolidation and automation
certifications. NWS has developed an extensive and proactive program to
gain user acceptance and endorsement of changes resulting from
modernization. This program includes:
User Awareness--informational briefings and mailings to
the many and varied users at the National, state and local levels on
a frequent and recurring basis throughout the transition period;
Notification and Technical Coordination--advanced
notification of when specific modernization activities are scheduled
to occur both in the annual submission of the National
Implementation Plan, and by mailings from NWS field office managers
to users in their local areas; and coordination of specific
technical aspects of activities with users to ensure they understand
the change and have sufficient lead time to make any adjustments
needed to take full advantage of modernization; and
Service Confirmation--follow-up with users after a
change has been made to ensure that services they receive have
remained intact, accessible and of an acceptable quality, and to
resolve any outstanding issues or problems they might have.
The MIC's recommendation for certification will address service
confirmation by users.
The fifth criterion for closure deals with warning and forecast
verification. Verification is used to objectively measure the accuracy
and timeliness of warnings and forecasts. The closure criteria related
to verification are designed to support certification requirements that
ensure that closure actions will not result in any degradation of
service.
The warning verification will focus on warnings that are most often
localized, short-lived, and associated with the most destructive and
life-threatening severe weather. Forecast verification will focus on
the basic elements of public and aviation forecasts.
For closure certification, verification statistics will be compared
before and during the transition period prior to closure. The
statistical measures that will be utilized to ensure no degradation of
service will conform to those reviewed by the National Research Council
in 1993.
Special Circumstances
It should be noted that two of the criteria that were published
with those criteria common to all types of certification actions (see
Attachment 1) are primarily applicable to closure certifications. These
are:
(1) Air Safety Appraisal--Section 706(e)(1) of the Act requires the
Secretary of Commerce, in consultation with the Secretary of
Transportation and the Committee, to conduct an air safety appraisal
prior to closure or relocation of a field office located at an airport,
to determine that such action will not result in degradation of service
that affects aircraft safety. The NWS and FAA have jointly determined
the nature of this air safety appraisal. They have agreed to conduct
this air safety appraisal on a programmatic basis during establishment
of final modernization criteria for automation and closure
certification. A copy of the completed air safety appraisal will be
included with each closure certification.
(2) Evaluation of Services to In-state Users--the field offices
planned for closure that are the only field office in a state are:
Weather Services Offices in Baltimore, MD; Concord, NH; Hartford, CT;
Providence, RI; and Wilmington, DE. The required evaluation will be
addressed in the MIC's recommendation for certification.
[[Page 28806]]
A. Classification Under Executive Order 12866
These proposed regulations establish procedures and criteria for
certifying that certain actions to modernize NWS will not result in any
degradation of weather services to the affected service area. They will
not result in any direct or indirect economic impacts, and have been
determined not to be significant for purposes of E.O. 12866.
B. Regulatory Flexibility Act Analysis
These regulations set forth the criteria for certifying that
certain modernization actions will not result in a degradation of
service to the affected area. These criteria will be appended to the
Weather Service Modernization regulations. The Assistant General
Counsel for Legislation and Regulation of the Department of Commerce
has certified to the Chief Counsel for Advocacy of the Small Business
Administration that these criteria, if adopted as proposed, will not
have a significant economic impact on a substantial number of small
entities. These proposed criteria are intended for internal agency use,
and will not directly affect small business. The proposed criteria do
not directly affect ``small government jurisdictions'' as defined by
Pub. L. 96-354, the Regulatory Flexibility Act. Accordingly, no initial
regulatory flexibility analysis has been prepared.
C. Paperwork Reduction Act of 1980
These regulations will impose no information collection
requirements of the type covered by Pub. L. 96-511, the Paperwork
Reduction Act of 1980.
D. E.O. 12612
This rule does not contain policies with sufficient Federalism
implications to warrant preparation of a Federalism assessment under
Executive Order 12612.
E. National Environmental Policy Act
NOAA has concluded that publication of this proposed rule does not
constitute a major Federal action significantly affecting the quality
of the human environment. Therefore, an environmental impact statement
is not required. A programmatic Environmental Impact Statement (EIS)
regarding NEXRAD was prepared in November 1984, and an Environmental
Assessment to update the portion of the EIS dealing with the bioeffects
of NEXRAD non-ionizing radiation was issued in 1993.
List of Subjects in 15 CFR Part 946
Administrative practice and procedure, Certification,
Commissioning, Decommissioning, National Weather Service, Weather
service modernization.
Dated: June 1, 1996.
Elbert W. Friday, Jr.,
Assistant Administrator for Weather Services.
For the reasons set out in the preamble, 15 CFR part 946 is
proposed to be amended as follows:
PART 946--[AMENDED]
1. The authority citation for part 946 continues to read as
follows:
Authority: Title VII of Pub. L. 102-567, 106 Stat 4303 (15
U.S.C. 313n).
Appendix A to Part 946--[Amended]
2. Appendix A to part 946 is amended by adding a new Subsection (E)
under Section II. Criteria for Modernization Actions Requiring
Certification, to read as follows:
(E) Proposed Modernization Criteria Unique to Closure
Certifications.
1. Consolidation Certification; If the field office proposed for
closure has or will be consolidated, as defined in Sec. 946.2 of the
basic modernization regulations, this action has been completed as
evidenced by the approved certification or can be completed as
evidenced by all of the documentation that all of the requirements
of sections II.A. and II.B. of this Annex have been completed.
2. Automation Certification: If the field office proposed for
closure has or will be automated, as defined in Sec. 946.2 of the
basic modernization regulations, this action has been completed as
evidenced by the approved certification or can be completed as
evidenced by documentation that all of the requirements of sections
II.A. and II.C. of this Annex have been completed.
3. Remaining Services and/or Observations: All remaining service
and/or observational responsibilities, if applicable to the field
office proposed for closure, have been transitioned as addressed in
the MIC's recommendation for certification.
4. User Confirmation of Services: Any valid user complaints
received related to provision of weather services have been
satisfactorily resolved and the issues addressed in the MIC's
recommendation for certification.
5. Warning and Forecast Verification: Warning and forecast
verification statistics, produced in accordance with the Closure
Certification Verification Plan, have been utilized in support of
the MIC's recommendation for certification.
Attachment 1
Appendix A to Part 946--National Weather Service Modernization
Criteria (Relevant portions)
II. Criteria for Modernization Actions Requiring Certification
(A). Criteria Common to all Types of Certifications (except as
noted)
1. Notification: Advanced notification and the expected date of
the proposed certification have been provided in the National
Implementation Plan.
2. Local Weather Characteristics and Weather Related Concerns: A
description of local weather characteristics and weather related
concerns which affect the weather services provided to the affected
service area is provided.
3. Comparison of Services: A comparison of services before and
after the proposed action demonstrates that all services currently
provided to the affected service area will continue to be provided.
4. Recent or Expected Modernization of NWS Operations in the
Affected Service Area: A description of recent or expected
modernization of NWS operations in the affected service area is
provided.
5. NEXRAD Network Coverage: NEXRAD network coverage or gaps in
coverage at 10 feet over the affected service area are identified.
6. Air Safety Appraisal (applies only to relocation and closure
of field offices at an airport): Verification that there will be no
degradation of service that affects aircraft safety has been made by
conducting an air safety appraisal in consultation with the Federal
Aviation Administration.
7. Evaluation of Service to In-state Users (applies only to
relocation and closure of the only field office in a state):
Verification that there will be no degradation of weather services
provided to the state has been made by evaluating the effects on
weather services provided to in-State users.
8. Liaison Officer: Arrangements have been made to retain a
Liaison Officer in the affected service area for at least two years
to provide timely information regarding the activities of the NWS
which may affect service to the community, including modernization
and restructuring; and to work with area weather service users,
including persons associated with general aviation, civil defense,
emergency preparedness, and the news media, with respect to the
provision of timely weather warnings and forecasts.
9. Meteorologist-In-Charge's (MIC) Recommendation to Certify:
The MIC of the future WFO that will have responsibility for the
affected service area has recommended certification in accordance
with 15 CFR 946.7(a).
10. Regional Director's Certification: The cognizant Regional
Director has approved the MIC's recommended certification of no
degradation of service to the affected service area in accordance
with 15 CFR 946.8.
[FR Doc. 96-14254 Filed 6-5-96; 8:45 am]
BILLING CODE 3510-12-M
Complete official Federal Register PDF
FR Doc. 96-14245 Implementation of Equal Access to Justice Act in Agency Proceedings
[Federal Register Volume 61, Number 110 (Thursday, June 6, 1996)]
[Proposed Rules]
[Pages 28831-28834]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14245]
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DEPARTMENT OF TRANSPORTATION
Office of the Secretary
49 CFR Part 6
[Docket No. OST-96-1421 Notice 96-15]
RIN 2105-AB73
Implementation of Equal Access to Justice Act in Agency
Proceedings
AGENCY: Office of the Secretary, DOT.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Department is proposing to update its regulation providing
for the award of attorney fees and other expenses under the Equal
Access to Justice Act to eligible individuals and entities who are
parties to certain administrative proceedings before the Department and
its various operating administrations. These revisions are necessitated
by various statutory changes that have been made since the Department
adopted its present rule in 1983. The Department is not, however,
proposing any other substantive alterations to its regulation. All of
the Department's proposed changes to its regulation either mirror the
currently-applicable statutory requirements or are of a minor, non-
technical nature. This action is a response to the President's
Regulatory Reinvention Initiative and is designed to update the
regulation to reflect currently applicable law.
DATES: Comments should be received by August 5, 1996. Late-filed
comments will be considered to the extent practicable.
ADDRESSES: Comments should be sent to Docket Clerk, Docket No. OST-96-
1421, Room PL-401, Department of Transportation, 400 Seventh Street,
SW., Washington, DC 20590. For the convenience of persons who will be
reviewing the docket, it is requested that commenters provide an
original and three copies of their comments. Comments can be inspected
from 9 a.m. to 5 p.m. Commenters who wish the receipt of their comments
to be acknowledged should include a stamped, self-addressed postcard
with their comments. The docket clerk will date-stamp the postcard and
mail it to the commenter. Comments should be on 8 by 11 inch white
paper using dark ink and should be without tabs and unbound.
FOR FURTHER INFORMATION CONTACT: Alexander J. Millard, Office of the
General Counsel, U.S. Department of Transportation, 400 Seventh Street,
SW., Room 4102, Washington, DC 20590, telephone (202) 366-9285, or S.
Reid Alsop, Office of the Chief Counsel, Federal Highway
Administration, U.S. Department of Transportation, 400 Seventh Street
SW., Room 4230, Washington, DC 20590, telephone (202) 366-1371.
SUPPLEMENTARY INFORMATION: In his Regulatory Reinvention Initiative
Memorandum of March 4, 1995, President Clinton directed that Federal
agencies conduct a page-by-page review of all of their regulations and
``eliminate or revise those that are outdated or otherwise in need of
reform.'' In response to that directive, the Department has undertaken
a review of its regulations including its rule governing the award of
attorney fees and other expenses in certain administrative proceedings
under the Equal Access to Justice Act (EAJA) (Pub. L. 96-481, 94 Stat.
2325). The Department's regulation is codified at 49 CFR part 6.
In 1983, the Department of Transportation (DOT) published a final
regulation implementing EAJA in the administrative adjudicatory
context, 48 FR 1068 (January 10, 1983). EAJA, which took effect on
October 1, 1981, provides for the award of attorney fees and other
expenses to parties who prevail over the Federal Government in certain
administrative and court proceedings under section 554 of the
Administrative Procedure Act (APA). It requires that agencies
conducting proceedings under section 554 establish uniform procedures
for making awards.
DOT's final rule, 49 CFR part 6, therefore, established uniform
procedures under the EAJA for any adversary adjudications conducted
pursuant to section 554 by this Department or any of its operating
administrations. As noted in the Department's regulation, currently
three types of proceedings are specifically covered by the regulation;
namely, Coast Guard license, certificate or document suspension and
revocation proceedings, National Highway Traffic Safety Administration
(NHTSA) fuel economy enforcement proceedings, and the Federal Highway
Administration (FHWA) driver qualification and compliance order
proceedings.
Since DOT adopted its final rule in 1983, Congress has amended EAJA
on a number of occasions in several respects. After reviewing these
statutory changes, DOT has determined that its regulation needs to be
revised to ensure that it comports with the current statutory
requirements. DOT accordingly is proposing to modify the following
sections of its rule:
(a) Sec. 6.1 Purpose of these rules.
The second sentence of this section presently provides:
An eligible party may receive an award when it prevails over the
Department of Transportation or any of its operating administrations
unless the agency's position in the proceeding was substantially
justified or special circumstances make an award unjust.
The Department is proposing to delete this sentence. These
standards do not completely reflect the currently-applicable
requirements given various statutory changes that have been made to 5
U.S.C. 504 since 1983. In place of this sentence, as discussed below,
the Department is proposing to revise section 6.9. This section, as
revised, would set forth, in some detail, the
[[Page 28832]]
statutory standards that now govern the granting of awards and
expenses.
(b) Sec. 6.3 When the Act applies.
This section currently provides:
The Act applies to any adversary adjudication pending before
this agency at any time between October 1, 1981 and September 30,
1984. This includes proceedings begun before October 1, 1981, if
final agency action has not been taken before that date, and
proceedings pending on September 30, 1984.
This limitation was included in the Department's final rule because
the statute as it was originally enacted was only to be effective for
the period October 1, 1981 to October 1, 1984, on which date it was to
expire pursuant to a repealer under section 203(c) of Pub. L. 96-481.
That repealer, however, was itself repealed pursuant to section 6 of
Pub. L. 99-80. Additionally, as discussed below, new standards
governing awards were enacted pursuant to Pub. L. 104-121 effective
March 29, 1996. Consequently, the Department is proposing to delete the
current version of Sec. 6.3, and retitle and restate that section to
read as follows:
Sec. 6.3 Applicability.
Section 6.9(a) applies to any adversary adjudication pending before
the Department on or after October 1, 1981. In addition, applicants for
awards must also meet the standards of Sec. 6.9(b) for any adversary
adjudication commenced on or after March 29, 1996.
(c) Sec. 6.5 Proceedings covered.
This section identifies various proceedings that are, and are not,
subject to the Department's regulation. Currently, three specific types
of proceedings are specifically identified as being covered by the
Department's regulation; namely, (a) U.S. Coast Guard suspension or
revocation of licenses, certificates or document proceedings, (b)
National Highway Traffic Safety Administration fuel economy enforcement
proceedings, and (c) Federal Highway Administration driver
qualification and compliance order proceedings. However, this list is
not exclusive and additional Departmental proceedings that satisfy the
criteria in this Part can also be covered.
The Department is proposing to add an several additional
proceedings to this list. First, the Department is proposing to amend
Sec. 6.5 to make it clear that its regulation is intended to encompass
its aviation economic enforcement proceedings conducted by its Office
of Aviation Enforcement and Proceedings. The Department, hence, is
proposing to add the following language to Sec. 6.5:
and the Department's aviation economic enforcement proceedings
conducted by its Office of Aviation Enforcement and Proceedings, 49
U.S.C. Subtitle VII, 14 CFR Chapter II.
The Department is taking this action to add these aviation
enforcement proceedings in view of its decision, in a separate
rulemaking, to terminate a nearly duplicative rule, 14 CFR part 373,
that until now has covered these aviation enforcement proceedings. The
Department inherited part 373 from the now-defunct Civil Aeronautics
Board in 1985 as a result of the shut down of that agency, and the
transfer of that agency's remaining functions to DOT pursuant to the
Civil Aeronautics Board Sunset Act of 1984, Public Law 98-443, 98 Stat.
1703. The Department has determined, also as a part of the President's
Regulatory Reinvention Initiative, that it makes no sense to retain a
totally separate EAJA regulation for its aviation enforcement
proceedings.
The Department is also updating the citations for the Coast Guard
suspension and revocation proceedings referenced in section 6.5(a). In
this regard, the Department is proposing to change the reference to
``46 U.S.C. 239'' to ``46 U.S.C. 7701 et seq.'' In addition, the
Department is proposing to add citations for the three additional Coast
Guard proceedings, specifically:
(a) 33 U.S.C. 1321(b)(6)(B)(ii), 33 CFR part 20 (to include
class II civil penalties under the Clean Water Act); (b) 42 U.S.C.
9609(b) (to include class II penalty provisions under the
Comprehensive Environmental Response, Compensation and Liability
Act; and (c) 46 CFR part 401 (to cover suspension and revocation of
Certificates of Registry proceedings for Great Lakes Pilots.)
The Department is further proposing to amend Sec. 6.5(a) to take
note of the fact that since 1983 Congress has expanded the list of
proceedings that are subject to the rule. Specifically, the Department
is proposing to add the following language to this section:
Also covered are any appeal of a decision made pursuant to
section 6 of the Contract Disputes Act of 1978 (41 U.S.C. 605)
before an agency board of contract appeals as provided in section 8
of that Act (41 U.S.C. 607), any hearing conducted under Chapter 38
of title 31, and the Religious Freedom Restoration Act of 1993, 42
U.S.C. 2000bb et seq.
The inclusion of these additional proceedings is necessitated by
section 6 of Pub.L. 95-563, November 1, 1978, 92 Stat. 2385; Pub.L. 99-
509, October 8, 1986, 100 Stat. 1948; and Pub.L. 103-141, November 16,
1993, 107 Stat. 1489.
(d) Sec. 6.7 Eligibility of applications.
This section sets forth various minimum financial threshold
standards, and other criteria, that applicants must satisfy in order to
be eligible for an award. Various changes were made to these standards
and criteria pursuant to Pub.L. 99-80, section 1(c)(1), August 5, 1985,
99 Stat. 183, 186. For example, some of the dollar limits have been
increased. Accordingly the Department is proposing to amend this
section as follows:
(a) Change the words ``5 U.S.C. 551(3)'' in the second sentence to
``5 U.S.C. 504(b)(1)(B).''
(b)(1) Change the words ``1 million'' to ``2 million.''
(b)(2) Change the words ``5 million'' to ``7 million.''
(b)(5) Change the words ``5 million'' to ``7 million.''
In addition, the Department is proposing to add a new Sec. (b)(6),
which would state:
(b)(6) For the purposes of section 6.9(b) eligible applicants
include small entities as defined in 5 U.S.C. 601.
This change is necessitated by Pub.L. 104-121, March 29, 1996, 104
Stat. 847.
(e) Sec. 6.9 Standards for awards.
Since the Department's adoption of its present EAJA regulation in
1983, Congress has also altered the standards for granting awards.
Section 6.9 sets forth the standards that were applicable when DOT
adopted its rule. These standards need to be brought up to date. The
Department, therefore, is proposing to delete the current version of
Sec. 6.9 of its regulation in its entirety and to replace that section
with a new Sec. 6.9, which would read as follows:
(a) An eligible applicant may receive an award for fees and
expenses incurred by that party in connection with a decision in
favor of the applicant in a proceeding covered by this Part, unless
the position of the Department over which the applicant has
prevailed was substantially justified or special circumstances make
the award sought unjust. The burden of proof that an award should
not be made to an eligible applicant is on the Department where it
has initiated the proceeding. No presumption arises that the
Department's position was not substantially justified simply because
the Department did not prevail. Whether or not the position of the
Department was substantially justified shall be determined on the
basis of the administrative record, as a whole, in the adversary
adjudication for which fees and other expenses are sought. The
``position of the Department'' means, in addition to the position
taken by the agency in the adversary adjudication, the action or
failure to act by the Department upon which the adversary
adjudication may be based.
(b) In the context of a Departmental proceeding to enforce a
party's compliance with a statutory or regulatory requirement, if
the demand by the Department is substantially in excess of the
amount awarded to the government pursuant to the decision of the
adjudicative officer and is unreasonable when compared with such
[[Page 28833]]
decision, under the facts and circumstances of the case, the
adjudicative officer shall award to an eligible applicant party the
fees and expenses related to defending against the excessive demand,
unless the applicant party has committed a willful violation of law
or otherwise acted in bad faith, or special circumstances make an
award unjust. Fees and expenses awarded under this paragraph shall
be paid only as a consequence of appropriations provided in advance.
As used in this section, ``demand'' means the express demand of the
Department which led to the adversary adjudication, but does not
include a recitation by the Department of the maximum statutory
penalty (i) in the administrative complaint, or (ii) elsewhere when
accompanied by an express demand for a lesser amount.
(c) The decision of the Department on the application for fees
and other expenses shall be the final administrative decision under
this section.
(d) An award will be reduced or denied if the applicant has
unduly or unreasonably protracted the proceeding.
These changes are necessitated by Pub.L. 99-80, August 5, 1985, 99
Stat. 183, 186; and Pub.L. 104-121, March 29, 1996, 104 Stat. 847.
(f) Sec. 6.11 Allowable fees and expenses.
The Department is proposing to change the figure ``$75.00'' in
section 6.11(b) to ``$125.00''. This is also being done in response to
Pub.L. 104-121, March 29, 1996, 104 Stat. 847.
(g) Sec. 6.25 Answer to application.
Finally, Sec. 6.25(c) contains a minor typographical error.
Specifically, the words ``an identify'' should read ``and identify''.
The Department is proposing to correct this error.
Regulatory Analyses and Notices
This NPRM is considered to be a non-significant rulemaking under
DOT's regulatory policies and procedures, 44 FR 11034. The NPRM was not
subject to review by the Office of Information and Regulatory Affairs
pursuant to Executive Order 12866.
The proposal would have minimal economic impact, and accordingly no
regulatory evaluation has been prepared. Indeed, the changes that are
being proposed here, for the most part, merely track various statutory
changes that have been enacted since the Department's adoption of its
original final rule in 1983.
The NPRM has been analyzed in accordance with the principles and
criteria contained in Executive Order 12612, and it has been determined
that it does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment. I certify that this proposal,
if adopted, would not have a significant economic impact on a
substantial number of small entities. This proposal is merely updating
the regulation to reflect current statutory requirements.
List of Subjects in 49 CFR Part 6
Administrative practice and proceeding, Transportation.
For the reasons set out in the preamble, 49 CFR part 5 is proposed
to be amended as follows:
PART 5--IMPLEMENTATION OF EQUAL ACCESS TO JUSTICE ACT IN AGENCY
PROCEEDINGS.
1. The authority citation for part 6 is revised to read as follows:
Authority: 5 U.S.C. 504; 28 U.S.C. 2412.
2. Section 6.1 is amended by removing the second sentence.
3. Section 6.3 is revised to read as follows:
Sec. 6.3 Applicability.
Section 6.9(a) applies to any adversary adjudication pending before
the Department on or after October 1, 1981. In addition, applicants for
awards must also meet the standards of Sec. 6.9(b) for any adversary
adjudication commenced on or after March 29, 1996.
4. In Sec. 6.5, paragraph (a) is revised to read as follows:
Sec. 6.5 Proceedings covered.
(a) The Act applies to adversary adjudications conducted by the
Department of Transportation. These are adjudications under 5 U.S.C.
554 in which the position of the Department is represented by an
attorney or other representative who enters an appearance and
participates in the proceeding. Coverage of the Act begins at
designation of a proceeding or issuance of a charge sheet. Any
proceeding in which the Department may prescribe or establish a lawful
present or future rate is not covered by the Act. Proceedings to grant
or renew licenses are also excluded, but proceedings to modify,
suspend, or revoke licenses are covered if they are otherwise
``adversary adjudications.'' For the Department of Transportation, the
types of proceedings covered include: Coast Guard suspension or
revocation of licenses, certificates or documents under 46 U.S.C. 7701
et seq.; Coast Guard class II civil penalty proceedings under the Clean
Water Act, 33 U.S.C. 1321(b)(6)(B)(ii), Coast Guard class II penalty
proceedings under the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. 9609(b); suspension and
revocation of Certificates of Registry proceedings for Great Lakes
Pilots pursuant to 46 CFR part 401; National Highway Traffic Safety
Administration (NHTSA) fuel economy enforcement under 15 U.S.C. 2001
(49 CFR Part 511); Federal Highway Administration (FHWA) enforcement of
motor carrier safety and hazardous materials regulations under 49
U.S.C. 521 and 5123 (49 CFR part 386); the Department's aviation
economic enforcement proceedings conducted by its Office of Aviation
Enforcement and Proceedings pursuant to 49 U.S.C. Subtitle VII, 14 CFR
Chapter II. Also covered are any appeal of a decision made pursuant to
section 6 of the Contract Disputes Act of 1978 (41 U.S.C. 605) before
an agency board of contract appeals as provided in section 8 of that
Act (41 U.S.C. 607), any hearing conducted under Chapter 38 of title
31, and the Religious Freedom Restoration Act of 1993, 42 U.S.C. 2000bb
et seq.
* * * * *
5. In Sec. 6.7, paragraph (a) is amended by replacing the citation
``5 U.S.C. 551(3)'' with the citation ``5 U.S.C. 504(b)(1)(B)'';
paragraph (b)(1) is amended by replacing the words ``1 million'' with
the words ``2 million''; paragraphs (b((2) and (b)(5) are amended by
replacing the words ``5 million'' with the words ``7 million''; and
paragraph (b)(6) is added to read as follows:
Sec. 6.7 Eligibility of applications.
* * * * *
(b) * * *
(6) For the purposes of section 6.9(b) eligible applicants include
small entities as defined in 5 U.S.C. 601.
* * * * *
6. Section 6.9, is revised to read as follows:
Sec. 6.9 Standards for awards.
(a) An eligible applicant may receive an award for fees and
expenses incurred by that party in connection with a decision in favor
of the applicant in a proceeding covered by this part, unless the
position of the Department over which the applicant has prevailed was
substantially justified or special circumstances make the award sought
unjust. The burden of proof that an award should not be made to an
eligible applicant is on the Department where it has initiated the
proceeding. No presumption arises that the Department's position was
not substantially justified simply because the Department did not
prevail. Whether or not the position of the Department was
substantially justified shall be determined on the basis of the
administrative record, as a whole, in the adversary adjudication for
which fees and other expenses are sought. The ``position of the
Department'' means, in
[[Page 28834]]
addition to the position taken by the agency in the adversary
adjudication, the action or failure to act by the Department upon which
the adversary adjudication may be based.
(b) In the context of a Departmental proceeding to enforce a
party's compliance with a statutory or regulatory requirement, if the
demand by the Department is substantially in excess of the amount
awarded to the government pursuant to the decision of the adjudicative
officer and is unreasonable when compared with such decision, under the
facts and circumstances of the case, the adjudicative officer shall
award to an eligible applicant party the fees and expenses related to
defending against the excessive demand, unless the applicant party has
committed a willful violation of law or otherwise acted in bad faith,
or special circumstances make an award unjust. Fees and expenses
awarded under this paragraph shall be paid only as a consequence of
appropriations provided in advance. As used in this section, ``demand''
means the express demand of the Department which led to the adversary
adjudication, but does not include a recitation by the Department of
the maximum statutory penalty (1) in the administrative complaint, or
(2) elsewhere when accompanied by an express demand for a lesser
amount.
(c) The decision of the Department on the application for fees and
other expenses shall be the final administrative decision under this
section.
(d) An award will be reduced or denied if the applicant has unduly
or unreasonably protracted the proceeding.
Sec. 6.11 [Amended]
7. In Sec. 6.11, paragraph (b) is amended by replacing the figure
``$75.00'' with the figure ``$125.00''.
Sec. 6.25 [Amended]
8. In Sec. 6.25, paragraph (c) is amended by replacing the words
``an identify'' with the words ``and identify''.
Issued this 31st day of May, 1996 at Washington, D.C.
Federico Pena,
Secretary of Transportation.
[FR Doc. 96-14245 Filed 6-5-96; 8:45 am]
BILLING CODE 4910-62-P
Complete official Federal Register PDF
FR Doc. 96-14232 General Revision of Regulations Relating to Withholding of Tax on Certain U.S. Source Income Paid to Foreign Persons and Related Collection, Refunds, and Credits; Revision of Information Reporting and Backup Withholding Regulations; and Removal of Regulations Under Part 35a and of Certain Regulations Under Income Tax Treaties; Correction
[Federal Register Volume 61, Number 110 (Thursday, June 6, 1996)]
[Proposed Rules]
[Pages 28823-28824]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14232]
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DEPARTMENT OF THE TREASURY
26 CFR Parts 1, 31, 35a, 301, 502, 503, 509, 513, 514, 516, 517,
520, and 521
[IL-62-90; IL-32-93; IL-52-86; IL-52-94]
RIN 1545-AO27; 1545-AR90; 1545-AL99; 1545-AT00
General Revision of Regulations Relating to Withholding of Tax on
Certain U.S. Source Income Paid to Foreign Persons and Related
Collection, Refunds, and Credits; Revision of Information Reporting and
Backup Withholding Regulations; and Removal of Regulations Under Part
35a and of Certain Regulations Under Income Tax Treaties; Correction
AGENCY: Internal Revenue Service (IRS), Treasury.
ACTION: Correction to notice of public hearing on proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: This document contains corrections to the notice of a public
hearing (IL-52-86) which was published in the Federal Register on
Wednesday, May 8, 1996 (61 FR 20767), regarding proposed regulations
relating, in part, to information reporting and backup withholding.
FOR FURTHER INFORMATION CONTACT: Philip Garlett, (202) 622-3880 (not a
toll-free number).
SUPPLEMENTARY INFORMATION:
Background
The notice of public hearing that is subject to these corrections
will be held on Wednesday, July 24, 1996, beginning at 10 a.m. Requests
to speak and outlines of oral comments must be received by Wednesday,
July 3, 1996.
Need for Correction
As published, the notice of public hearing (IL-52-86) contains
errors which may prove to be misleading and are in need of
clarification.
Correction of Publication
Accordingly, the publication of the notice of hearing (IL-52-86),
which was the subject of FR Doc. 96-11409, is corrected as follows:
1. On page 20767, column 1, in the heading, the language ``26 CFR
Parts 1, 32 and 35a'' is corrected to read ``26 CFR Parts 1, 31, 35a,
301, 502, 503, 509, 513, 514, 516, 517, 520, and 521''.
2. On page 20767, column 1, in the heading, the language ``[IL-52-
86]'' is corrected to read ``[IL-62-90; IL-32-93; IL-52-86; IL-52-
94]''.
3. On page 20767, column 1, in the heading, the language ``RIN
1545-AL99'' is corrected to read ``RIN 1545-AO27; 1545-AR90; 1545-AL99;
1545-AT00''.
[[Page 28824]]
4. On page 20767, column 1, in the heading, the language ``Income
Taxes; Information and Backup Withholding; Hearing'' is corrected to
read ``General Revision of Regulations Relating to Withholding of Tax
on Certain U.S. Source Income Paid to Foreign Persons and Related
Collection, Refunds, and Credits; Revision of Information Reporting and
Backup Withholding Regulations; and Removal of Regulations Under Part
35a and of Certain Regulations Under Income Tax Treaties; Hearing''.
5. On page 20767, column 1, in the preamble, the SUMMARY is
corrected to read as follows:
SUMMARY: This document provides notice of a public hearing on proposed
regulations relating to the withholding of income tax on certain U.S.
source income paid to foreign persons (including the related tax
deposit and reporting requirements, and the related collection,
refunds, and credits of withheld tax), information reporting and backup
withholding, and the removal of certain temporary employment tax
regulations and certain regulations under income tax treaties.
6. On page 20767, column 2, in the preamble, the SUPPLEMENTARY
INFORMATION is corrected to read as follows:
SUPPLEMENTARY INFORMATION: The subject of the public hearing is
proposed amendments to the Income Tax Regulations, Employment Tax
Regulations, and Procedure and Administration Regulations under
sections 163(f), 165(j), 871(h), 881(c), 1441, 1442, 1461, 1462, 1463,
3401, 3406, 6041, 6041A, 6042, 6045, 6049, 6050N, 6109, 6114, 6402 and
6413. The proposed regulations appeared in the Federal Register on
Monday, April 22, 1996 (61 FR 17614).
Cynthia E. Grigsby,
Chief, Regulations Unit, Assistant Chief Counsel (Corporate).
[FR Doc. 96-14232 Filed 6-5-96; 8:45 am]
BILLING CODE 4830-01-U
Complete official Federal Register PDF
FR Doc. 96-14231 Qualified Small Business Stock
[Federal Register Volume 61, Number 110 (Thursday, June 6, 1996)]
[Proposed Rules]
[Pages 28821-28823]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14231]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE TREASURY
Internal Revenue Service
26 CFR Part 1
[IA-26-94]
RIN 1545-AU34
Qualified Small Business Stock
AGENCY: Internal Revenue Service (IRS), Treasury.
ACTION: Notice of proposed rulemaking and notice of public hearing.
-----------------------------------------------------------------------
SUMMARY: This document contains proposed regulations relating to the
50-percent exclusion for gain from certain small business stock. The
proposed regulations reflect changes to the law made by the Omnibus
Budget Reconciliation Act of 1993 (OBRA '93) and provide guidance to
the issuers and owners of the stock of certain small businesses. This
document also provides a notice of public hearing on these proposed
regulations.
DATES: Written comments and outlines of oral comments to be presented
at the public hearing scheduled for October 3, 1996 must be received by
September 4, 1996.
ADDRESSES: Send submissions to: CC:DOM:CORP:R (IA-26-94), Room 5226,
Internal Revenue Service, POB 7604, Ben Franklin Station, Washington,
DC 20044. In the alternative, submissions may be hand delivered between
the hours of 8 a.m. and 5 p.m. to CC:DOM:CORP:R (IA-26-94), Courier's
Desk, Internal Revenue Service, 1111 Constitution Avenue, NW.,
Washington, DC. The public hearing will be held in Room 2615, Internal
Revenue Building, 1111 Constitution Avenue, NW., Washington, DC.
FOR FURTHER INFORMATION CONTACT: Concerning the proposed regulations,
Catherine A. Prohofsky at (202) 622-4930; concerning submissions and
the public hearing, Christina Vasquez at (202) 622-7180; (not toll-free
numbers).
[[Page 28822]]
SUPPLEMENTARY INFORMATION:
Background
This document contains proposed amendments to the Income Tax
Regulations (26 CFR part 1) relating to section 1202 of the Internal
Revenue Code. Section 1202 was added by section 13113 of OBRA '93.
Section 1202 allows a taxpayer (other than a corporation) to exclude 50
percent of certain gain from the sale of qualified small business stock
held for more than 5 years.
Section 1202(c)(1) provides that only stock acquired after August
10, 1993, at its original issuance in exchange for money, property
other than stock, or as compensation for services to the corporation
(other than as an underwriter) qualifies for the exclusion (the
original issue requirement). Section 1202(c)(3) provides two rules to
prevent evasion of the original issue requirement. Under the first
rule, the exclusion does not apply to stock acquired by the taxpayer
if, at any time during the 4-year period beginning 2 years before the
issuance of such stock, the corporation purchased (directly or
indirectly) any of its stock from the taxpayer or a related person.
Section 1202(c)(3)(A). Under the second rule, the exclusion does not
apply to stock issued by a corporation if, during the 2-year period
beginning 1 year before the issuance of such stock, the corporation
made one or more purchases of its stock with an aggregate value (as of
the time of the respective purchases) exceeding 5 percent of the
aggregate value of all of its stock as of the beginning of the 2-year
period. Section 1202(c)(3)(B).
The IRS and Treasury are concerned that, in many cases, redemptions
that have neither the purpose nor the effect of evading the original
issue requirement may result in disqualification under these rules.
Section 1202(k) authorizes Treasury to prescribe such regulations as
may be appropriate to carry out the purposes of section 1202.
Explanation of Provisions
The proposed regulations permit a corporation to redeem de minimis
amounts of stock without violating the anti-evasion rules. The proposed
regulations also provide that certain redemptions that are incident to
events affecting a shareholder and are unlikely to result in evasion of
the original issue requirement are disregarded in determining whether
redemptions exceed the de minimis amounts. In particular, redemptions
upon termination of a shareholder's employment or the death,
disability, or mental incompetency of a shareholder are disregarded.
Finally, the regulations clarify that transfers of stock by a
shareholder to an employee in connection with the performance of
services are not treated as redemptions for purposes of the anti-
evasion rules.
The regulations will apply to stock issued after the date they are
published as final regulations. The regulations will also apply to
stock issued on or before that date, but only with respect to the
effect of redemptions occurring after that date.
Special Analyses
It has been determined that this notice of proposed rulemaking is
not a significant regulatory action as defined in EO 12866. Therefore,
a regulatory assessment is not required. It also has been determined
that section 553(b) of the Administrative Procedure Act (5 U.S.C.
chapter 5) and the Regulatory Flexibility Act (5 U.S.C. chapter 6) do
not apply to these proposed regulations, and, therefore, a Regulatory
Flexibility Analysis is not required. Pursuant to section 7805(f) of
the Internal Revenue Code, this notice of proposed rulemaking will be
submitted to the Chief Counsel for Advocacy of the Small Business
Administration for comment on its impact on small businesses.
Comments and Public Hearing
Before these proposed regulations are adopted as final regulations,
consideration will be given to any written comments (a signed original
and 8 copies) that are submitted timely to the IRS. All comments will
be available for public inspection and copying.
The IRS and Treasury invite comments on matters addressed in the
proposed regulations and suggestions for any additional exceptions and
clarifications that may be appropriate in the context of the purpose of
section 1202(c)(3) and the regulatory authority granted in section
1202(k). The IRS and Treasury specifically invite comments from the
small business community.
The IRS and Treasury are particularly interested in comments
regarding the scope of the exception for redemptions incident to
termination of employment. The IRS and Treasury are committed to
extending the exception to independent contractors, but seek comments
regarding how to determine when a termination of the independent
contractor's services has occurred.
A public hearing has been scheduled for October 3, 1996, at 10 a.m.
in Room 2615, Internal Revenue Building, 1111 Constitution Avenue, NW.,
Washington, DC. Because of access restrictions, visitors will not be
admitted beyond the building lobby more than 15 minutes before the
hearing starts.
The rules of 26 CFR 601.601(a)(3) apply to the hearing.
Persons that wish to present oral comments at the hearing must
submit written comments and an outline of topics to be discussed and
the time to be devoted to each topic (signed original and 8 copies) by
September 4, 1996.
A period of 10 minutes will be allotted to each person for making
comments.
An agenda showing the scheduling of the speakers will be prepared
after the deadline for receiving outlines has passed. Copies of the
agenda will be available free of charge at the hearing.
Drafting Information
The principal author of these regulations is Catherine A.
Prohofsky, Office of Assistant Chief Counsel (Income Tax and
Accounting). However, other personnel from the IRS and Treasury
Department participated in their development.
List of Subjects in 26 CFR Part 1
Income taxes, Reporting and recordkeeping requirements.
Proposed Amendments to the Regulations
Accordingly, 26 CFR part 1 is proposed to be amended as follows:
PART 1--INCOME TAXES
Paragraph 1. The authority citation for part 1 is amended by adding
an entry in numerical order to read as follows:
Authority: 26 U.S.C. 7805 * * *
Section 1.1202-2 is also issued under 26 U.S.C. 1202(k).
* * *
Par. 2. Sections 1.1202-0 and 1.1202-2 are added to read as
follows:
Sec. 1.1202-0 Table of contents.
This section lists the major captions that appear in the
regulations under Sec. 1.1202-2.
Sec. 1.1202-2 Qualified Small Business Stock; Effect of
Redemptions.
(a) Redemptions from taxpayer or related person.
(1) In general.
(2) De minimis amount.
(b) Significant redemptions.
(1) De minimis amount.
(2) Special rule.
(c) Transfers by shareholders in connection with the performance
of services not treated as purchases.
(d) Exceptions for termination of services, death, or disability
or mental incompetency.
(1) Termination of services.
(2) Death.
(3) Disability or mental incompetency.
(e) Effective date.
[[Page 28823]]
Sec. 1.1202-2 Qualified small business stock; effect of redemptions.
(a) Redemptions from taxpayer or related person--(1) In general.
Stock acquired by a taxpayer is not qualified small business stock if,
in one or more purchases during the 4-year period beginning on the date
2 years before the issuance of the stock, the issuing corporation
purchases (directly or indirectly) more than a de minimis amount of its
stock from the taxpayer or from a person related (within the meaning of
section 267(b) or 707(b)) to the taxpayer.
(2) De minimis amount. For purposes of this paragraph (a), stock
exceeds a de minimis amount only if the aggregate amount paid for the
stock exceeds $10,000 and more than 2 percent of the stock held by the
taxpayer and related persons is acquired. The following rules apply for
purposes of determining whether the 2-percent limit is exceeded. The
percentage of stock acquired in any single purchase is determined by
dividing the stock's value (as of the time of purchase) by the value
(as of the time of purchase) of all stock held (directly or indirectly)
by the taxpayer and related persons immediately before the purchase.
The percentage of stock acquired in multiple purchases is the sum of
the percentages determined for each separate purchase.
(b) Significant redemptions--(1) In general. Stock is not qualified
small business stock if, in one or more purchases during the 2-year
period beginning on the date 1 year before the issuance of the stock,
the issuing corporation purchases more than a de minimis amount of its
stock and the purchased stock has an aggregate value (as of the time of
the respective purchases) exceeding 5 percent of the aggregate value of
all of the issuing corporation's stock as of the beginning of such 2-
year period.
(2) De minimis amount. For purposes of this paragraph (b), stock
exceeds a de minimis amount only if the aggregate amount paid for the
stock exceeds $10,000 and more than 2 percent of all outstanding stock
is purchased. The following rules apply for purposes of determining
whether the 2-percent limit is exceeded. The percentage of the stock
acquired in any single purchase is determined by dividing the stock's
value (as of the time of purchase) by the value (as of the time of
purchase) of all stock outstanding immediately before the purchase. The
percentage of stock acquired in multiple purchases is the sum of the
percentages determined for each separate purchase.
(c) Transfers by shareholders in connection with the performance of
services not treated as purchases. A transfer of stock by a shareholder
to an employee or independent contractor (or to a beneficiary of an
employee or independent contractor) is not treated as a purchase of the
stock by the issuing corporation for purposes of this section even if
the stock is treated as having first been transferred to the
corporation under Sec. 1.83-6(d)(1) (relating to transfers by
shareholders to employees or independent contractors).
(d) Exceptions for termination of services, death, or disability or
mental incompetency. A stock purchase is disregarded for purposes of
this section if--
(1) Termination of services--(i) Employees and directors. The stock
was acquired by the seller in connection with the performance of
services as an employee or director and the stock is purchased from the
seller incident to the seller's retirement or other bona fide
termination of such services;
(ii) Independent contractors. [Reserved];
(2) Death. The stock is purchased from the deceased shareholder's
estate, beneficiary, heir, surviving joint tenant, or from a surviving
spouse or a trust established by a decedent, the stock is purchased
within 3 years and 9 months from the date of death, and the stock (or
an option to acquire the stock) was acquired by the seller before or on
account of the death of the decedent; or
(3) Disability or mental incompetency. The stock is purchased
incident to the disability or mental incompetency of the selling
shareholder.
(e) Effective date. This section applies to stock issued after the
date these regulations are published as final regulations in the
Federal Register. This section also applies to stock issued on or
before the date these regulations are published as final regulations in
the Federal Register, but only with respect to the effect of purchases
by the issuing corporation that occur after that date.
Margaret Milner Richardson,
Commissioner of Internal Revenue.
[FR Doc. 96-14231 Filed 6-3-96; 11:29 am]
BILLING CODE 4830-01-U
Complete official Federal Register PDF
FR Doc. 96-14222 Registration of Claims to Copyright, Group Registration of Photographs
[Federal Register Volume 61, Number 110 (Thursday, June 6, 1996)]
[Proposed Rules]
[Pages 28829-28830]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14222]
=======================================================================
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LIBRARY OF CONGRESS
Copyright Office
37 CFR Part 202
[Docket No. RM 95-7A]
Registration of Claims to Copyright, Group Registration of
Photographs
AGENCY: Copyright Office, Library of Congress.
ACTION: Notice of public hearing.
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SUMMARY: The U.S. Copyright Office issues this notice to inform the
public that the Office will hold a public hearing in the course of an
ongoing rulemaking proceeding in which it is proposing changes in the
manner in which copyright claimants may register photographs. This
notice invites participation in a public hearing intended to elicit
additional comments to assist the Office in its review of proposed
registration procedures.
DATES: The public hearing will be held on Wednesday, June 26, 1996,
beginning at 10:00 a.m. Anyone desiring to testify should contact the
Office of the General Counsel, U.S. Copyright Office, Library of
Congress, at (202) 707-8380 by Wednesday, June 19, 1996. Written
comments are also invited from both those who wish to testify and those
who wish only to file either initial or supplemental written comments.
All written comments must be received on or before Monday, July 15,
1996.
[[Page 28830]]
ADDRESSES: Interested parties should submit written comments and
requests to present oral testimony BY MAIL to Marilyn J. Kretsinger,
Acting General Counsel, Copyright GC/I&R, P.O. Box 70400, Southwest
Station, Washington, D.C. 20024, or BY HAND delivery to the Office of
the General Counsel, Copyright Office, James Madison Memorial Building,
Room LM 407, First Street and Independence Avenue, S.E., Washington,
D.C. The hearing will be held on June 26, 1996, in the Register's
Conference Room, Room LM 407, located on the fourth floor of the
Library of Congress, James Madison Memorial Building, First Street and
Independence Avenue, SE., Washington, DC.
FOR FURTHER INFORMATION CONTACT: Marilyn J. Kretsinger, Acting General
Counsel, Copyright GC/I&R, P.O. Box 70400, Southwest Station,
Washington, D.C. 20024. Telephone: (202) 707-8380. Facsimile: (202)
707-8366.
SUPPLEMENTARY INFORMATION:
The Office's Current Rulemaking Proceeding
Recently the Copyright Office initiated a Notice of Proposed
Rulemaking (NPRM) concerning group registration of photographs. Over
the years photographers and photography businesses have told the Office
that they were not able to take advantage of the benefits of
registration because Office practices were too burdensome, in terms of
both effort and finances.
On December 4, 1995, the Office published a NPRM with a request for
comments in the Federal Register. 60 FR 62057 (Dec. 4, 1995). This NPRM
sought public comment on proposed regulations that would permit a
single registration for a group of unpublished and published related
photos that met specified conditions. The proposed deposit would be a
general written description of the subject matter of the photos, e.g.,
``photos of 1996 blizzard in Washington, DC.''
In seeking public comment, the Office published nine questions to
elicit comment and information about the potential effects of the
proposed regulations. See 60 FR 62057. The comment period was
originally scheduled to close January 18, 1996, with reply comments due
by February 2, 1996; however, due to the inordinate number of
government and business closures that occurred during December 1995 and
January 1996, the Office extended these deadlines. Comments were
requested by February 9, 1996, and reply comments by March 1, 1996. The
Office is in the process of carefully reviewing all of these comments.
Subject Matter To Be Addressed at the Public Hearing
In the course of such review, certain additional issues and
concerns have been brought to the Office's attention. Therefore, in
order to supplement the information the Office has already received in
response to the NPRM, the Office will hold a public hearing on June 26,
1996, to solicit additional comments on the proposed regulations
regarding group registration of photographs. This hearing will provide
an opportunity to obtain more information on the concerns expressed
during the original comment period by allowing individuals and
organizations who wish to comment to address further the issues set out
in the NPRM, as well as:
(1) Innocent infringement. Is there a greater likelihood that those
who innocently use photographs may be sued and may be found liable for
copyright infringement if the proposed regulations are put into effect?
Are existing provisions of the copyright law concerning innocent
infringers adequate or should those provisions be modified? If so, in
what way?
(2) Frivolous law suits. If the proposed regulations were put into
effect, would they lead to an increase in the filing of frivolous law
suits?
(3) Industry guidelines. Do the proposed regulations affect the
development of industry guidelines? If so, how? Would they affect
compliance with agreed upon guidelines? If so, how?
Filing of Written Comments
All of the comments filed in response to the NPRM 60 FR 62057 (Dec.
4, 1995), are already part of the record for this rulemaking. Anyone
who wishes to file initial comments or supplemental comments addressing
either the issues raised in this notice or those set out in the NPRM
may do so. All written comments must be received in the Copyright
Office at the address given above by close of business on Monday, July
15, 1996.
Dated: June 3, 1996.
Marybeth Peters,
Register of Copyrights.
[FR Doc. 96-14222 Filed 6-5-96; 8:45 am]
BILLING CODE 1410-30-P
Complete official Federal Register PDF
FR Doc. 96-14218 Amendments To Regulations Governing Collection of Royalties, Rentals, Bonuses, and Other Monies Due the Federal Government
[Federal Register Volume 61, Number 110 (Thursday, June 6, 1996)]
[Proposed Rules]
[Page 28829]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14218]
=======================================================================
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DEPARTMENT OF THE INTERIOR
Minerals Management Service
30 CFR Part 218
RIN 1010-AC01
Amendments To Regulations Governing Collection of Royalties,
Rentals, Bonuses, and Other Monies Due the Federal Government
AGENCY: Minerals Management Service (MMS), Interior.
ACTION: Proposed rule; notice of extension of public comment period.
-----------------------------------------------------------------------
SUMMARY: MMS hereby gives notice that it is extending the public
comment period on a Notice of proposed rule, which was published in the
Federal Register on April 19, 1996 (61 FR 17266). The proposed rule
would amend the regulations that specify how payments are made for
mineral lease royalties, rentals, and bonuses. In response to requests
for additional time, MMS will extend the comment period from June 18,
1996, to July 19, 1996.
DATES: Comments must be submitted on or before July 19, 1996.
ADDRESSES: Written comments, suggestions or objections regarding this
proposed amendment should be sent to the following addresses.
For comments sent via the U.S. Postal Service use: Minerals
Management Service, Royalty Management Program, Rules and Procedures
Staff, P.O. Box 25165 MS 3101, Denver, Colorado 80225-0165.
For comments via courier or overnight delivery service use:
Minerals Management Service, Royalty Management Program, Rules and
Procedures Staff, MS 3101 Building 85, Denver Federal Center, Room A-
212, Denver, Colorado 80225-0165.
FOR FURTHER INFORMATION CONTACT:
David S. Guzy, Chief, Rules and Procedures Staff, phone (303) 231-3432,
FAX (303) 231-3194, e-Mail David G[email protected].
Dated: May 31, 1996.
Robert E. Brown,
Associate Director for Royalty Management.
[FR Doc. 96-14218 Filed 6-5-96; 8:45 am]
BILLING CODE 4310-MR-M
Complete official Federal Register PDF
FR Doc. 96-14129 Rule Amendment Concerning Trading Records
[Federal Register Volume 61, Number 110 (Thursday, June 6, 1996)]
[Proposed Rules]
[Pages 28806-28808]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14129]
=======================================================================
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COMMODITY FUTURES TRADING COMMISSION
17 CFR Part 1
Rule Amendment Concerning Trading Records
AGENCY: Commodity Futures Trading Commission.
ACTION: Proposed rule amendment.
-----------------------------------------------------------------------
SUMMARY: The Commodity Futures Trading Commission (``Commission'')
[[Page 28807]]
proposes to amend its Regulation to clarify a procedure specified for
the correction of erroneous information on trading cards and to make
that procedure applicable to other trading records. The amendment would
specify that a member of a contract market who needs to correct an
error on a trading record may do so only by crossing out the erroneous
information with no more than a single line through each character,
without obliterating or otherwise making illegible any of the
originally recorded information. Contract markets would be required to
maintain rules that require errors on trading records to be corrected
in the prescribed manner.
DATES: Comments on the proposed amendment must be submitted on or
before July 8, 1996.
ADDRESSES: Comments on the proposed amendment should be sent to:
Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st
Street, NW., Washington, DC 20581, Attention: Secretariat.
FOR FURTHER INFORMATION CONTACT: Duane C. Andresen, Special Counsel,
Division of Trading and Markets, Commodity Futures Trading Commission,
Three Lafayette Centre, 1155 21st Street, NW., Washington, DC 20581.
Telephone: (202) 418-5490.
SUPPLEMENTARY INFORMATION:
I. Introduction
On March 7, 1990 the Commission published in the Federal Register a
number of final amendments to Regulation 1.35,1 which governs the
records of cash commodity, futures, and options transactions which must
be prepared and maintained for all purchases and sales of commodities
for future delivery or commodity options on designated contract
markets. These amendments were intended, among other things, to limit
the opportunity for the fabrication or alteration of trading records
and to enhance exchange audit trails and trade surveillance. The
amendments imposed obligations directly on contract market members and
required each contract market to promulgate implementing rules to that
effect.
---------------------------------------------------------------------------
\1\ 55 FR 8127 (March 7, 1990).
---------------------------------------------------------------------------
Although many of the amendments' provisions were targeted to
trading cards, other provisions were made specifically applicable to
all trading records in order to limit the opportunity to alter or
fabricate such trading records. The trading record collection
requirement of Regulation 1.35(j)(1), designed to expeditiously
transfer control of the documents from the executing members, is
applicable to all trading records on which the contract market or
clearing member relies as an original source document for clearing
submission purposes.2 The requirement that trades be recorded in
non-erasable ink, designed to provide added protection against improper
alteration of trading records through erasures, is applicable to
customer order tickets,3as well as trading cards.4
---------------------------------------------------------------------------
\2\ Regulation 1.35(j)(1) requires that each contract market
maintain in effect rules which require, among other things, that
trading records prepared pursuant to paragraphs (a-1) and (d) of
this section be submitted to contract market personnel or the
clearing member within 15 minutes of designated intervals not to
exceed 30 minutes. Paragraph (a-1) requires the creation of order
tickets; paragraph (d) requires the preparation of trading cards or
other records showing purchases or sales executed on or subject to
the rules of a contract market.
\3\ Regulation 1.35(a-1) (2) and (4).
\4\ Regulation 1.35(d)(7)(ii) and (j)(8). Regulation 1.35(j)(8)
requires that each contract market maintain in effect rules which
require that members complete trades in non-erasable ink as
prescribed by paragraph (d)(7)(ii).
---------------------------------------------------------------------------
Notwithstanding these provisions, the Commission has found, based
upon its oversight activities, instances in which it appears that
members have altered or created fictitious trading records to
facilitate illegal purposes. It appears that, in some instances, trade
prices and quantities have been altered subsequent to trade execution
to the detriment of customers and favorable trades for customers have
been allocated to traders' personal accounts. The Commission believes
that this type of activity may be facilitated by the manner in which
traders, under the guise of correcting erroneous information on a
trading record, obscure the information originally recorded. This
practice, which has been observed to occur with respect to both trading
cards and order tickets, also makes it more difficult to detect
potentially fraudulent activity.
The Commission believes that obscuring the trade information
originally recorded can be used to facilitate or itself constitute
illegal fraudulent conduct. As previously stated, the amendments to
Regulation 1.35 were intended, among other things, to limit the
opportunity for fabrication or alteration of trading records and to
enhance exchange audit trails and trade surveillance. Correcting
erroneous information by obliteration of the original data enhances the
opportunity to facilitate illegal purposes and increases the difficulty
involved in creating and maintaining adequate audit trail and trade
practice surveillance programs. Nonetheless, in order to eliminate any
ambiguity in this area, the Commission is now proposing to expressly
address the issue by amending the method by which a member of a
contract market may correct errors on a hard copy trading record.
II. Proposed Amendment
In light of the foregoing, the Commission proposes to amend
Regulation 1.35 in two respects. First, paragraph (d)(7), which
addresses, among other things, the preparation of trading cards, would
be made applicable to all trading records. Second, paragraph
(d)(7)(ii), which requires the use of non-erasable ink and addresses
correction of errors, would be modified to require that erroneous trade
information be crossed out with no more than a single line through each
character, without obliterating or otherwise making illegible any of
the originally recorded information.
A. Proposed Paragraph (d)(7)
The Commission proposes to amend paragraph (d)(7) to make it
applicable to all trading records. In so doing, the Commission is
making the error correction provisions of paragraph (d)(7)(ii)
applicable to all trading records, not just trading cards. Thus, this
amendment places other trading records under the same standards
currently in existence with regard to the correction of errors on
trading cards.5 Further, it requires contract markets to maintain
in effect rules that require errors on other trading records to be
corrected in the manner prescribed by paragraph (d)(7)(ii).
---------------------------------------------------------------------------
\5\ With regard to trading cards only, the member could still
correct erroneous information by rewriting the trading card.
Pursuant to paragraph (d)(6), the member would remain accountable
for any trading card that is subsequently rewritten. The Commission
requests comments regarding the continued advisability of this
provision.
---------------------------------------------------------------------------
The other trading records to which this provision applies include
order tickets prepared under Regulation 1.35(a-1), as well as order
tickets received on the floor through electronic order routing systems
and trading records prepared for ``flashed'' orders. It is the
Commission's belief that preventing the obliteration of data is
effectively a prophylactic requirement intended to prevent fraudulent
alteration of trading records.
B. Proposed Paragraph (d)(7)(ii)
The Commission proposes to amend paragraph (d)(7)(ii) to require
that erroneous information crossed out on a trading record must be
crossed out with no more than a single line through each character,
without obliterating or otherwise making illegible any of the
[[Page 28808]]
originally recorded information. Thus, the erroneous information being
crossed out would not be obliterated and an audit should reveal the
original information recorded on the trading record, as well as any
information subsequently recorded. Because the amendment to paragraph
(d)(7) would make this provision applicable to all trading records, the
Commission believes that this amendment would further limit the
opportunity for the fabrication or alteration of trading records.
The Commission believes that erroneous data normally should be
crossed out using the same or a similar pen as is used by the member to
record trade executions. In any event, the use of a felt pen or marker
that obliterates the original recorded information, even if the
information is crossed out with no more than a single line, would not
be in compliance with this amended regulation. Overwriting erroneous
information with corrected information, rather than crossing out the
erroneous information in the prescribed manner, also would not be in
compliance with this amended regulation.
III. Other Matters
A. Regulatory Flexibility Act
The Regulatory Flexibility Act (``RFA''), 5 U.S.C. 601 et. seq.,
requires that agencies, in proposing rules, consider the impact of
those rules on small businesses. The Commission has previously
determined that contract markets are not ``small entities'' for
purposes of the RFA, and that the Commission need not, therefore,
consider the effect of proposed amendments on contract markets in
relation to the RFA. 47 FR 18618, 18619 (April 30, 1982). The
Commission has also determined that FCMs should be excluded from the
definition of ``small entity'' based upon the fiduciary nature of the
FCM/customer relationships as well as the fact that FCMs must meet
minimum financial requirements. 47 FR 18618, 18619 (April 30, 1982).
With respect to contract market members, the Commission has stated
that it is appropriate to evaluate within the context of a particular
rule proposal whether some or all members that would be affected by the
rule should be considered small entities and, if so, to analyze the
economic impact on such entities at that time. 47 FR 18618, 18620
(April 30, 1982). The contract market members affected by the proposed
amendment, other than clearing members, would be floor brokers and
floor traders.
The Commission recognizes that contract market members would be
subject to the proposed amendments and that certain contract market
members could be considered to be small entities for the purposes of
the RFA. However, the Commission believes that the proposed amendment,
as designed, would not impose a significant economic burden on members.
Accordingly, the Acting Chairman, on behalf of the Commission,
hereby certifies, pursuant to 5 U.S.C. 605(b), that the action taken
herein will not have a significant economic impact on a substantial
number of small entities.
B. Paperwork Reduction Act: Comment Request
The Paperwork Reduction Act of 1980 (``ACT''), 44 U.S.C. 3501 et.
seq., imposes certain requirements on federal agencies (including the
Commission) in connection with their conducting or sponsoring any
collection of information as defined by the Act. While this proposed
rule has no burden, the group of rules (3038-0022) of which this is a
part has the following burden:
Average burden hours per response-3,546.
Number of Respondents--15,286.
Frequency of Response--On occasion.
Persons wishing to comment on the information which would be
required by this proposed/amended rule should contact Jeff Hill, Office
of Management and Budget, Room 3228, NEOB, Washington, DC 20503, (202)
395-7340. Copies of the information collection submission to OMB are
available from Joe F. Mink, CFTC Clearance Officer, Three Lafayette
Centre, 1155 21st Street NW., Washington, DC 20581, (202) 418-5170.
List of Subjects in 17 CFR Part 1
Commodity futures, Commodity options, Contract markets, Customers,
Members of contract markets, Noncompetitive trading, Reporting and
recordkeeping requirements.
In consideration of the foregoing, and pursuant to the authority
contained in the Commodity Exchange Act and, in particular, Sections 5,
5a, 5b, 6(a), 6b, 8a(7), 8a(9) and 8c, 7 U.S.C. 7, 7a, 7b, 8(a), 8b,
12a(7), 12a(9), and 12c, the Commission hereby proposes to amend Part 1
of Chapter I of Title 17 of the Code of Federal Regulations as follows:
PART 1--GENERAL REGULATIONS UNDER THE COMMODITY EXCHANGE ACT
1. The authority citation for Part 1 continues to read as follows:
Authority: 7 U.S.C. 2, 2a, 4, 4a, 6, 6a, 6b, 6c, 6d, 6e, 6f, 6g,
6h, 6i, 6j, 6k, 6l, 6m, 6n, 6o, 6p, 7, 7a, 7b, 8, 9, 12, 12a, 12c,
13a, 13a-1, 16, 16a, 19, 21, 23 and 24.
2. Section 1.35 is proposed to be amended by revising paragraph
(d)(7) to read as follows:
Sec. 1.35 Records of Cash Commodity, Futures, and Option Transactions.
* * * * *
(d) * * *
(7) Trading records prepared by a member of a contract market
pursuant to contract market rules must:
(i) Be submitted in accordance with contract market rules adopted
pursuant to paragraph (j)(1) of this section; and
(ii) Be completed in non-erasable ink. A member may correct any
errors (A) by crossing out erroneous information with no more than a
single line through each character, without obliterating or otherwise
making illegible any of the originally recorded information or (B) with
regard to trading cards only, by rewriting the trading card; provided,
however, that the member is accountable pursuant to paragraph (d)(6) of
this section for any trading card that is subsequently rewritten.
* * * * *
Issued in Washington, DC on May 31, 1996 by the Commission.
Jean A. Webb,
Secretary of the Commission.
[FR Doc. 96-14129 Filed 6-05-96; 8:45 am]
BILLING CODE 6351-01-P
Complete official Federal Register PDF
FR Doc. 96-14125 Duty-Free Stores
[Federal Register Volume 61, Number 110 (Thursday, June 6, 1996)]
[Proposed Rules]
[Pages 28808-28821]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14125]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE TREASURY
Customs Service
19 CFR Parts 19, 113 and 144
RIN 1515-AB86
Duty-Free Stores
AGENCY: U.S. Customs Service, Department of the Treasury.
ACTION: Proposed rule.
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SUMMARY: This document proposes to amend the Customs Regulations
principally with respect to duty-free stores in order to reduce the
overall paperwork burden for proprietors thereof as well as for
Customs. In particular, for purposes of Customs audit of, and control
over, such facilities, greater reliance would be placed on the use of
records generated and maintained by proprietors and importers in the
ordinary course of business, instead of on the use of specially
prepared Customs forms. The proposed amendments would provide
[[Page 28809]]
benefits in this regard to other classes of Customs bonded warehouses
as well.
DATES: Comments must be received on or before August 5, 1996.
ADDRESSES: Written comments (preferably in triplicate) must be
submitted to the U.S. Customs Service, ATTN: Regulations Branch,
Franklin Court, 1301 Constitution Avenue, NW., Washington, DC 20229,
and may be inspected at the Regulations Branch, 1099 14th Street, NW.,
Suite 4000, Washington, DC.
FOR FURTHER INFORMATION CONTACT: Michael Jackson, Customs Management
Center, Seattle, (206-553-6944).
SUPPLEMENTARY INFORMATION:
Background
By a final rule document published in the Federal Register as T.D.
92-81 on August 20, 1992 (57 FR 37692), the Customs Regulations were
amended to designate duty-free stores as a new class of Customs bonded
warehouse, and to incorporate operating procedures for the
administration of these facilities.
However, in letters dated October 6 and 13, 1992, a major trade
association voiced a number of concerns with respect to the final rule.
Prompted by these correspondences, Customs, by a document published in
the Federal Register (57 FR 47409) on October 16, 1992, delayed the
October 19, 1992, effective date of the final rule until further
notice, in order to review various aspects of the duty-free store
rules. Before any changes could be made to the final rule, however,
Customs concluded that its indefinite suspension was legally
inoperative and proceeded to reinstate the original effective date
thereof, by a document published in the Federal Register (58 FR 29349)
on May 20, 1993.
After lengthy study, Customs has now determined that specific
revisions to the duty-free store regulations are in order. The proposed
changes would also provide some benefits to other classes of bonded
warehouses, and are intended to reduce the overall paperwork burden
both for warehouse proprietors and for Customs.
Discussion of Principal Changes
The following sections of the Customs Regulations would be amended:
Secs. 19.1, 19.2, 19.4, 19.6, 19.11, 19.12, 19.35, 19.36, 19.37, 19.39,
113.63, 144.34, 144.36, 144.37, 144.39 and 144.41.
Proposed Changes to Part 19
A sentence would be added to Sec. 19.1(a)(9) to clarify that all
distribution warehouses used exclusively to provide individual duty-
free sales locations and storage cribs with conditionally duty free
merchandise are also Class 9 warehouses.
Section 19.1(c) would be deleted. While language concerning
warehouse security would be added to Sec. 19.4(b)(6), warehouse
construction requirements will not be set forth in the regulations. The
warehouse construction is a factor that will be considered by the port
director in deciding whether to approve the application.
Section 19.2(a) would be amended to require that all bonded
warehouse applicants have available an inventory control and
recordkeeping system procedures manual. Also, the application would
have to include a certification that the inventory control and
recordkeeping system meets the requirements of Sec. 19.12.
Section 19.2(b) would be modified to specify that the procedures
for inventory control, recordkeeping and delivery methods must be set
forth in the proprietor's procedures manual which must be furnished to
Customs upon request.
References to Sec. 19.3 (e) and (f) would be deleted from
Sec. 19.2(g).
Sections 19.4 and 19.12 would be reformatted to move the storage
and security requirements from Sec. 19.12 and consolidate them in
Sec. 19.4. Section 19.12 would be devoted to the inventory control and
recordkeeping system requirements.
The heading of Sec. 19.4 would be changed to ``Customs and
proprietor responsibility and supervision over warehouses'', and two
subsections would be added: (a) Customs supervision and (b)
``Proprietor responsibility and supervision. Subsection (b) is divided
into nine sections: (1) Supervision, (2) Customs access, (3)
Safekeeping of merchandise and records, (4) Records maintenance, (5)
Record retention in lieu of originals, (6) Warehouse and merchandise
security, (7) Storage conditions, (8) Manner of storage, and (9)
Miscellaneous responsibilities. The intent of these proposed changes is
to clarify the proprietors' responsibilities.
Proposed Sec. 19.4(a), entitled ``Customs supervision'', and
proposed Sec. 19.4(b)(2), entitled ``Customs access'', contain the
current Sec. 19.4 language relating to Customs supervision over
warehouses.
The requirements of current Sec. 19.12(b)(1), concerning
supervision by the warehouse proprietor, would be moved to
Sec. 19.4(b)(1) and expanded to cover all activities that a bonded
warehouse proprietor is authorized to perform.
The restrictions on unauthorized disclosure of proprietary
information would be moved from current Sec. 19.12(a)(7) to
Sec. 19.4(b)(3). The last sentence in current Sec. 19.12(a)(7) has been
deleted because the consequence of unauthorized disclosure is covered
by Sec. 19.3(e)(8).
Proposed Sec. 19.4(b)(4) summarizes the proprietor's
responsibilities relating to records maintenance.
Proposed Sec. 19.4(b)(5), dealing with the retention of copies of
records in lieu of the originals, provides proprietors with the
convenience of storing required records on microfilm, microfiche, CD
ROM (compact disk, read-only memory), or other medium. Those approved
for this storage method could do so any time after the final withdrawal
of merchandise covered by the entry to which the records pertain. Duty-
free store operators could use the aforementioned means to store sales
ticket information after six months from the date of sale. This
provision would greatly reduce the physical space required to maintain
the volumes of hard-copy originals. Proprietors would be required to
provide authenticated copies upon demand for audit purposes. Approval
would be obtained from the appropriate regulatory audit field director.
Proposed Sec. 19.4(b)(6), concerning warehouse and merchandise
security, incorporates the requirements of current Sec. 19.12(b) (3)
and (4) relating to security of warehouses and bonded tanks. Specific
reference to T.D. 72-56 is replaced with references to more general
security standards.
The ``safe and sanitary storage'' requirements would be moved from
Sec. 19.12(b)(5) to Sec. 19.4(b)(7). The sentences concerning prompt
removal of trash and waste and prohibition of fires would be deleted
because Customs believes that the first sentence in this paragraph
provides adequate coverage.
Proposed Sec. 19.4(b)(8), entitled ``Manner of storage'', is based
on current Sec. 19.12(b)(6), and would allow proprietors to store
merchandise covered by a single entry number or unique identifier in
more than one location within the warehouse, provided the inventory
control system could identify the quantities in each location upon
demand by Customs. It also provides regulatory recognition of First-In-
First-Out (FIFO) inventory control systems for the first time.
Section 19.6(a)(1) would be amended to change the time requirement
for filing a discrepancy report from two business days to five business
days.
Section 19.6(d)(1) would be amended to allow a duty-free sales
enterprise to use a blanket permit for withdrawal for transportation to
another port.
[[Page 28810]]
Section 19.6(d)(2) would be amended to reflect a new cross-
reference.
Section 19.6(d)(4), entitled ``Blanket permit summary'', would be
redesignated as Sec. 19.6(d)(5). A proposed new Sec. 19.6(d)(4) would
add a provision describing procedures under which blanket withdrawals
for aircraft and vessel supplies from more than one warehouse entry
could be combined on one Customs Form 7512.
Section 19.11(h) would be amended to change the phrase ``saleable
units'' to ``smallest irreducible unit'', for purposes of
clarification. Under the provisions for blanket permit to destroy, the
phrase ``upon receipt'' would be deleted. Goods may be determined
``nonsaleable'' long after receipt. The dollar amount covered by a
blanket permit for destruction would be increased from $100 to less
than 5 percent of the value of the merchandise at the time of entry or
$1250, whichever is less, in its undamaged condition. This increase is
being proposed in order to reduce the number of permits for destruction
that would otherwise be required under the circumstances.
Proposed Sec. 19.12 is based on the inventory control and
recordkeeping requirements in current Sec. 19.12 which would thus be
modified to more clearly describe the proprietor's responsibilities and
what constitutes an adequate inventory control and recordkeeping
system.
Proposed Sec. 19.12(c)(1) includes the requirement for a proprietor
receipt for merchandise transported to his warehouse by himself or his
agent, as provided for by T.D. 94-81. Proposed changes to subsection
(d)(1) and (d)(2) clarify the requirements for accounting for
merchandise entered in the warehouse.
Proposed Sec. 19.12(d)(3) modifies existing requirements relating
to theft, shortage, overage or damage. To accommodate proprietors, the
proposed modification extends the time for providing written
confirmation for any theft, overage, extraordinary shortage or damage
from two business days to five business days after the discrepancy is
discovered. The definition of extraordinary shortage or damage would be
expanded to cover missing merchandise on which duties and taxes in
excess of $100 are due. The time for paying applicable duties and taxes
on thefts and shortages would be extended from 10 business days after
discovery to 20 calendar days following the end of the calendar month
in which the shortage is discovered.
The following new requirements would be added by Customs under
proposed Sec. 19.12(d)(3) in order to clarify that the proprietor
should ensure that the following actions are taken when discovered
discrepancies occur: (1) An entry must be filed for all overages within
five business days of the date of discovery; (2) When cumulative
thefts, shortages or overages under a specific entry or unique
identifier total one percent or more of the value of the merchandise or
cumulative duties and taxes are in excess of $100, the reporting and
payment requirements of this paragraph must be met; (3) All shortages
and overages must be recorded in the inventory control and
recordkeeping system at the time of discovery, whether or not they must
be reported to Customs at that time; (4) Duties and taxes applicable to
any non-extraordinary shortage or damage, and not required to be paid
earlier, shall be submitted at the time the Customs Form 300 is due or
at the time the certification of preparation of the annual
reconciliation report is due.
A proposed new Sec. 19.12(d)(4)(ii), entitled ``Review'', the
substance of which is currently set forth in Sec. 19.12(a)(4), would
change the permit file folder filing requirement for entries after
final withdrawal from 30 business days to 30 calendar days. This is
intended to provide greater ease in calculating the due date.
In an effort to reduce paperwork requirements for both warehouse
proprietors and Customs, proposed Sec. 19.12(d)(4)(iii), contains new
provisions which would allow for exemption from maintaining the permit
file folder (PFF), if the proprietor has a system which can provide a
summary of all transactions relating to an entry, appropriately cross-
referenced to supporting documents which are readily retrievable.
Proposed Sec. 19.12(d)(4)(iv) would also allow port directors to accept
formal notification of final withdrawal in lieu of submission of the
PFF or entry activity summary and only require submission of the PFF or
alternative documentation on a selective basis. Failure to provide
requested documentation would result in reinstatement of the
requirements to maintain PFFs and to submit the PFF to Customs upon
final withdrawal. This change would eliminate the current requirement
that the proprietor maintain records in a specified method required by
Customs and would allow the proprietor to use his normal recordkeeping
system to satisfy Customs requirements. It would also allow the port
director the option to review the number of permit file folders or the
approved alternative system on a selective basis.
Proposed Sec. 19.12(d)(5) would add a new requirement that
proprietors must take at least an annual physical inventory, report any
discrepancies discovered to the port director, record appropriate
adjustments in the inventory control and recordkeeping system, and make
any required entries and payments to Customs. The proprietor would have
to advise Customs in advance of dates that the inventories would be
taken so that Customs could observe or participate in the inventory
process, if deemed necessary.
Although many warehouses currently use the FIFO inventory method
for fungible merchandise, the current regulations do not provide any
guidance for use of inventory control systems other than direct
identification by Customs entry number. The acceptability of a FIFO
inventory system has been recognized by Customs since issuance of
C.S.D. 83-63, 17 Cust. Bull. 869 (1983), but the regulations were never
revised to cover FIFO systems. Proposed Sec. 19.12(f) is based on
appropriate sections of the Bonded Warehouse Manual and would
incorporate requirements into the regulations governing an acceptable
FIFO inventory control system.
Proposed Sec. 19.12(g) contains the requirement for the annual
warehouse proprietor submission currently set forth in
Sec. 19.12(a)(5). A provision is added to allow use of an alternative
format if prior written approval is obtained from the Customs field
director of regulatory audit. Additional instructions are included for
proprietors who have merchandise covered by one entry, but stored in
multiple locations as provided for under proposed Sec. 144.34.
To reduce paperwork requirements for the proprietor and handling by
Customs, proposed Sec. 19.12(h) discontinues the requirement to file a
Customs Form 300, Warehouse Proprietor's Submission, for class 2,
importers' private bonded warehouses and classes 4, 5, 6, 7, 8 and 9
warehouses if the warehouse proprietor and the importer are the same
party. Instead, under the proposed revision, they must prepare a
reconciliation report at the end of each fiscal year which will be kept
on file. A certification would have to be sent to the field director,
regulatory audit, stating that the reconciliation has been performed
and is accurate.
Proposed Sec. 19.12(i) requires all proprietors to perform an
annual internal review of the inventory control and recordkeeping
system, and to prepare and maintain on file a report
[[Page 28811]]
identifying deficiencies discovered and the corrective action taken.
Proposed Sec. 19.12(j) provides special instructions for
preparation of the Customs Form 300 or reconciliation when merchandise
transferred from one warehouse continues to be accounted for under the
original warehouse entry rather than under a rewarehouse entry, as
provided for under proposed Sec. 144.34(c).
In proposed Sec. 19.13(g), specific reference to T.D. 72-56 is
replaced with reference to the more general security standards
contained in proposed Sec. 19.4(b)(6).
Section 19.13a would be modified to delete the reference to
Sec. 19.12(a) and substitute references to Secs. 19.4(b) and 19.12.
Section 19.13a(b) would be modified to delete the reference to
Sec. 19.12(a)(5) and substitute reference to Sec. 19.12(g).
Section 19.35(c), entitled ``Integrated locations'', would be
modified to accommodate duty-free stores which do not have inventory
control systems which automatically reduce inventory balances on a real
time basis. Proposed Sec. 19.35(c) would allow multiple noncontiguous
sales and crib locations to be treated by Customs as one location if
inventory records are updated no less frequently than at the end of
each business day to reflect that day's activity. Integrated locations
are defined as separate sales and storage locations within a close
proximity to one another, e.g., multiple outlets at an airport. Under
the proposed revision, language is added to allow the proprietor
discretion in determining if integrated status is desired and the word
``will'' is replaced with ``may'' in ``* * * may be treated by Customs
as one location * * *''.
Section 19.35(f) would be modified to delete the reference to
Sec. 19.12(b)(3) and substitute a reference to Sec. 19.4(b)(6).
Section 19.36(e) would be modified by deleting the requirement that
purchasers know whether or not a commodity is either duty-paid or U.S.-
origin.
Section 19.36(g) would be modified to replace the reference to
Sec. 19.12(a) with Sec. 19.12 (d), (e) and (f).
Section 19.37(a), dealing with crib operations, would be modified
by deleting the word ``small'' in the first sentence. Concerning the
amount of goods which may be stored in a crib, the phrase, ``* * *
limited to an amount estimated to be a two weeks' supply * * *'',
appearing in the fourth sentence of Sec. 19.37(a) would be removed, and
the following phrase would be added in its place: ``* * * an amount
requested by the proprietor which is commercially necessary for the
delivery operations for a period, if approved by the port director.''.
Section 19.39(c)(2), entitled ``Passenger delivery'', would be
modified by deleting the last three sentences to eliminate the
requirement for airline officials to certify the proprietor's
certificate of lading. It is the proprietor's responsibility to
establish procedures to ensure exportation. The regulation as currently
written creates an undue burden on both the proprietor and the airline.
Section 19.39(c)(3), entitled ``Aircraft delivery'', would be
modified to include the statutory language that duty-free purchases
must be laden on board the same aircraft on which the passenger will
depart. It is the proprietor's obligation to establish procedures
satisfactory to the port director to provide reasonable assurance of
exportation.
A proposed new Sec. 19.39(c)(4)(ii) would be added to clarify that
unit-load delivery methods could be used only on the same aircraft as
the passenger who purchased the conditionally duty-free merchandise
will depart the United States. Existing paragraphs (c)(4) (ii)-(iv) of
Sec. 19.39 would be renumbered.
A revision of paragraph (c)(5) of Sec. 19.39 is proposed to
establish procedures to handle deliveries of duty-free merchandise to
passengers whose flights have to be rescheduled by the airline. Customs
believes that the rescheduling of a cancelled or aborted flight should
not require the proprietor to retrieve the goods until the passenger
departs on the rescheduled flight. The Customs Service believes that
the revenue risk is minimal because the passenger has no control over
rescheduling a flight that is cancelled by the airline. Merchandise
would only be delivered to a passenger who has already bought a ticket
that usually is far in excess of any possible duty savings. Customs
believes that to monitor the period between the cancellation of the
passenger's original flight and the departure of the passenger on the
rescheduled flight is wasteful of Customs and trade resources because
of that risk assessment. With respect to merchandise delivered to an
airline on behalf of a passenger who fails to board the flight, the
proprietor must coordinate with the airline to establish a procedure to
retrieve the merchandise because in that situation the passenger has
acted contrary to the stated intention to export the goods and there is
no reason to believe that the passenger will reschedule a different
flight.
Also, Sec. 19.39(e) would be modified by adding the phrase, ``or
bonded carriers'', after the reference to ``licensed cartmen''. See
T.D. 94-81, 59 FR 51496.
Warehouse Withdrawals and Rewarehouse Entries
An extensive change to the procedures governing transfers of
warehoused merchandise is proposed.
Currently, the procedure to transfer warehoused merchandise
requires the transfer to be done by Customs bonded cartage operators or
carriers. The transfer in the same port may require a rewarehouse entry
into the destination warehouse when both warehouses are within the same
port. A rewarehouse entry is required if the transfer is between
warehouses in different ports. The current procedure will be retained
in Sec. 144.34 (a) and (b).
An alternative procedure for merchandise in Class 2 or Class 9
warehouses is proposed in a new paragraph (c) to Sec. 144.34. Under the
alternative, the merchandise would be treated as remaining in the
warehouse in which it was originally entered for warehouse. The
importer and the proprietor of that warehouse would be liable for
duties and for the proprietor's custodial responsibilities,
respectively. To ensure that the parties in interest are fully aware of
their responsibilities, the proposal requires the importer, all
proprietors, and their sureties to sign the application to use the
alternative procedure. Section 113.63 would be revised by adding new
paragraphs (a)(4) and (b)(4), and by revising paragraph (d), in order
to secure the obligors' custodial performance here.
The primary attribute of the proposed alternative is the
eligibility requirement that the applicant have a centralized inventory
control system so that Customs is able to spot check and verify the
status of warehoused merchandise, by location, at all times. Although
the proposal requires that each warehouse location keep subordinate or
secondary records of merchandise at the location, the concept of the
proposal is that the importer and the warehouse into which the
merchandise was first entered remain liable as though the merchandise
was present in that warehouse. That concept, implemented by the
required centralized inventory system, is expected to ensure that
Customs can administer its obligations to protect the revenue and
ensure that no merchandise is released from Customs custody before any
required charge, such as a lien, has been satisfied.
The alternative would eliminate the documentary transfers of
liability for custodians because conceptually the
[[Page 28812]]
warehoused merchandise is treated as not having left the original
warehouse. For that reason, no significant change to Sec. 144.39 is
proposed as a result of the alternative to the procedures in paragraphs
(a) and (b) of Sec. 144.34.
Section 144.36(c) would be substantially revised to allow for
withdrawals for transportation from a single warehouse, via a single
conveyance, consigned to the same consignee and to be deposited into a
single warehouse to be combined on one Customs Form 7512. The exemption
contained in proposed Sec. 144.34(c), addressed above, would be
incorporated into Secs. 144.36 (f) and (g).
The signature requirement on sales tickets contained in
Sec. 144.37(h)(2)(v) would be deleted for all purchases. Also, the
address requirement would be deleted for all purchases except alcoholic
beverages in quantities in excess of 4 liters and cigarettes in
quantities in excess of 3 cartons.
Section 144.37(h)(3) would be modified by deleting the reference
``Sec. 19.6(d)(4)'' and substituting a reference to ``Sec. 19.6(d)(5)''
in place thereof.
Section 144.41(c), entitled ``Combining separate shipments'', would
be modified and expanded to allow multiple withdrawals from a single
warehouse which are transported on a single conveyance to be
rewarehoused, at the proprietor's discretion, as one or more
rewarehouse entries. To ensure the five-year provision of 19 U.S.C.
1557 is met, the combined rewarehouse entries will assume the import
date of the oldest warehouse entry in the new combined entry. This
provision will reduce the number of rewarehouse entry transactions at
the receiving port.
Comments
Before adopting the proposed amendments, consideration will be
given to any written comments that are timely submitted to Customs.
Comments submitted will be available for public inspection in
accordance with the Freedom of Information Act (5 U.S.C. 552),
Sec. 1.4, Treasury Department Regulations (31 CFR 1.4), and
Sec. 103.11(b), Customs Regulations (19 CFR 103.11(b)), on regular
business days between the hours of 9 a.m. and 4:30 p.m. at the
Regulations Branch, Franklin Court, 1099 14th Street, NW., Suite 4000,
Washington, DC.
Regulatory Flexibility Act and Executive Order 12866
For the reasons set forth in the preamble, pursuant to the
provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), it
is certified that, if adopted, the proposed amendments will not have a
significant economic impact on a substantial number of small entities.
Accordingly, the proposed amendments are not subject to the regulatory
analysis or other requirements of 5 U.S.C. 603 or 604. Nor would the
proposed amendments result in a ``significant regulatory action'' under
E.O. 12866.
Paperwork Reduction Act
The collection of information in this document is contained in
Secs. 19.2, 19.4, 19.6, 19.11, 19.12, 19.36, 19.37, 19.39, 144.36,
144.37 and 144.41. This information is required and will be used to
ensure the exportation of merchandise from duty-free stores and other
Customs bonded warehouses, and to otherwise satisfy the requirements of
law and the protection of the revenue. This notice of proposed
rulemaking is intended to simplify recordkeeping requirements for duty-
free stores and other Customs bonded warehouses. The likely respondents
and/or recordkeepers are business or other for-profit institutions.
The collection of information contained in this notice of proposed
rulemaking has already been approved by the Office of Management and
Budget (OMB) under 1515-0005. An Inventory Control Worksheet will be
submitted to OMB, which will reflect any changes in the information
collection burdens occasioned by this rule, together with a request for
a suitable extension of the existing approval.
Estimated annual reporting and/or recordkeeping burden: 61,000
hours.
Estimated average annual burden per respondent/recordkeeper: 10
hours.
Estimated number of respondents and/or recordkeepers: 10,000.
Estimated annual frequency of responses: On-Occasion.
Comments on the collection of information should be sent to the
Office of Management and Budget, Attention: Desk Officer of the
Department of the Treasury, Office of Information and Regulatory
Affairs, Washington, DC 20503. A copy should also be sent to the
Regulations Branch, Office of Regulations and Rulings, U.S. Customs
Service, 1301 Constitution Avenue, NW., Washington, DC 20229. Comments
should be submitted within the time frame that comments are due
regarding the substance of the proposal.
Comments are invited on: (a) Whether the collection is necessary
for the proper performance of the functions of the agency, including
whether the information shall have practical utility; (b) the accuracy
of the agency's estimate of the burden of the collection of the
information; (c) ways to enhance the quality, utility, and clarity of
the information to be collected; and (d) ways to minimize the burden of
the collection of information on respondents, including through the use
of automated collection techniques or other forms of information
technology.
Drafting Information
The principal author of this document was Russell Berger,
Regulations Branch, U.S. Customs Service. However, personnel from other
offices participated in its development.
List of Subjects
19 CFR Part 19
Customs duties and inspection, Imports, Exports, Warehouses.
19 CFR Part 113
Customs bonds.
19 CFR Part 144
Customs duties and inspection, Imports, Warehouses.
Proposed Amendments
It is proposed to amend parts 19, 113 and 144, Customs Regulations
(19 CFR parts 19, 113 and 144) as set forth below.
PART 19--CUSTOMS WAREHOUSES, CONTAINER STATIONS AND CONTROL OF
MERCHANDISE THEREIN
1. The general authority citation for part 19 and the specific
authority for Secs. 19.1, 19.6, 19.11, and 19.35-19.39 would continue
to read as follows:
Authority: 5 U.S.C. 301; 19 U.S.C. 66, 1202 (General Note 20,
Harmonized Tariff Schedule of the United States), 1624;
Section 19.1 also issued under 19 U.S.C. 1311, 1312, 1555, 1556,
1557, 1560, 1561, 1562;
Section 19.6 also issued under 19 U.S.C. 1555;
* * * * *
Section 19.11 also issued under 19 U.S.C. 1556, 1562;
* * * * *
Sections 19.35-19.39 also issued under 19 U.S.C. 1555;
* * * * *
2. It is proposed to amend Sec. 19.1 by adding a sentence at the
end of paragraph (a)(9) to read as set forth below, and by removing
paragraph (c).
Sec. 19.1 Classes of customs warehouses.
(a) * * *
(9) * * * All distribution warehouses used exclusively to provide
individual
[[Page 28813]]
duty-free sales locations and storage cribs with conditionally duty-
free merchandise are also Class 9 warehouses.
* * * * *
3. It is proposed to amend Sec. 19.2 by revising its heading, by
adding three sentences at the end of paragraph (a), and by revising
paragraphs (b)(2) and (g), to read as follows:
Sec. 19.2 Applications to bond.
(a) * * * The applicant must prepare and have available at the
warehouse a procedures manual describing the inventory control and
recordkeeping system that will be used in the warehouse. A
certification by the proprietor that the inventory control and
recordkeeping system meets the requirements of Sec. 19.12 will be
submitted with the application. The physical security of the facility
must meet the approval of the port director.
(b) * * *
(2) A description of the store's procedures, which includes
inventory control, recordkeeping, and delivery methods. These
procedures must be set forth in the proprietor's procedures manual.
Such manual and subsequent changes therein must be furnished to the
port director upon request. The procedures in the manual shall provide
reasonable assurance that conditionally duty-free merchandise sold
therein will be exported;
* * * * *
(g) The port director shall promptly notify the applicant in
writing of his decision to approve or deny the application to bond the
warehouse. If the application is denied the notification shall state
the grounds for denial. The decision of the port director will be the
final Customs administrative determination in the matter.
4. It is proposed to revise Sec. 19.4 to read as follows:
Sec. 19.4 Customs and proprietor responsibility and supervision over
warehouses.
(a) Customs supervision. The character and extent of Customs
supervision to be exercised in connection with any warehouse facility
or transaction provided for in this part shall be in accordance with
Sec. 161.1 of this chapter. Independent of any need to appraise or
classify merchandise, the port director may authorize a Customs officer
to supervise any transaction or procedure at the bonded warehouse
facility. Such supervision may be performed through periodic audits of
the warehouse proprietor's records, quantity counts of goods in
warehouse inventories, spot checks of selected warehouse transactions
or procedures or reviews of conditions of recordkeeping, storage,
security, or safety in a warehouse facility.
(b) Proprietor responsibility and supervision.--(1) Supervision.
The proprietor shall supervise all transportation, receipts,
deliveries, sampling, recordkeeping, repacking, manipulation,
destruction, physical and procedural security, conditions of storage,
and safety in the warehouse as required by law and regulations.
Supervision by the proprietor shall be that which a prudent manager of
a storage and manipulation facility would be expected to exercise.
(2) Customs access. The warehouse proprietor shall permit access to
the warehouse by any Customs officer.
(3) Safekeeping of merchandise and records. The proprietor is
responsible for safekeeping of merchandise and records concerning
merchandise entered in Customs bonded warehouses. The proprietor or his
employees shall safeguard and shall not disclose proprietary
information contained in or on related documents to anyone other than
the importer, importer's transferee, or owner of the merchandise to
whom the document relates or their authorized agent.
(4) Records maintenance.--(i) Maintenance. The proprietor shall:
(A) Maintain the inventory control and recordkeeping system in
accordance with the provisions of Sec. 19.12 of this part;
(B) Retain all records required in this part and defined in
Sec. 162.1(a) of this chapter, pertaining to bonded merchandise for 5
years after the date of the final withdrawal under the entry; and
(C) Protect proprietary information in its custody from
unauthorized disclosure.
(ii) Availability. Records shall be readily available for Customs
review at the warehouse. In addition, a proprietor may keep records at
another location for Customs review, but only if the proprietor first
receives written approval for such storage from the port director.
(5) Record retention in lieu of originals. A warehouse proprietor
may utilize alternative storage methods in lieu of maintaining records
in their original formats, if such storage is approved by Customs under
paragraph (b)(5)(i) of this section. For Customs purposes, original
records may be stored in alternate form at any time after the final
withdrawal under the entry to which these records pertain, except that
duty-free store operators may store original sales tickets in alternate
form at any time beginning six months after date of sale. If the
proprietor chooses to use alternative storage methods, the following
conditions must be met:
(i) Approval. The proprietor may request approval to maintain
records in an alternative format by writing and describing the system
of storage, the conversion techniques used and the security safeguards
to be employed to prevent alteration, to the director of the regulatory
audit field office closest to the party's headquarters operation. If
satisfied that the alternative storage proposed will ensure the
accuracy and availability of the records when required, the director
will grant written approval.
(ii) Retention of reproductions. The proprietor shall retain and
keep available an original and one duplicate of each microfilm,
microfiche, cd ROM (compact disk, Read-Only Memory), or other storage
medium used, for five years from the date of the final withdrawal under
the entry to which these records pertain. Duty-free store operators
must keep alternate storage media containing sales tickets for five
years from the date of the final withdrawal or five years from the date
of the sale, whichever is shorter.
(iii) Hard-copy reproductions. The proprietor must have the
capability of making direct hard-copy reproductions of the data stored
on the microfilm, microfiche, cd ROM, or other storage medium. The
proprietor shall bear the expense of making hard-copy reproductions of
any or all records required by any proper official of the U.S. Customs
Service for the audit or inspection of books and records.
(iv) Standards required for reproducing records. Proprietors shall
maintain the integrity of the original records by insuring that copies
are true reproductions of the original records and serve the purpose
for which such records were created. The following shall be observed:
Copies shall contain all significant record detail shown on the
original; copies of the record shall be so arranged, identified, and
indexed that any individual document or component of the records can be
located with reasonable facility; any indexes, registers, or other
finding aids shall be contained on the storage medium at the beginning
of the records to which they relate; each time reproductions are made,
a written certification will be executed by a responsible company
official (see Sec. 191.6(a) of this chapter; the same parties who have
authority to sign drawback documents are ``responsible company
officials'' for purposes of this section), stating that the
reproductions stored on the microfilm,
[[Page 28814]]
microfiche, cd ROM, or other storage medium constitute a true, complete
and accurate reproduction of the original documents; and the proprietor
shall maintain and make available a manual describing procedures for
reproducing original records on alternative storage media and controls
in effect for assuring completeness and accuracy of the reproductions.
The procedures shall incorporate reasonable controls for assuring
accuracy and completeness of alternative records. The proprietor is
responsible for assuring that these controls are executed each time
original records are reproduced.
(v) Revocation of alternative record storage method. Failure to
maintain the records in accordance with these conditions and
requirements will constitute a breach of the proprietor's bond and may
result in the revocation by Customs of the privilege of maintaining
records in a form other than the original format.
(6) Warehouse and merchandise security. The warehouse proprietor
shall maintain the warehouse facility in a safe and sanitary condition
and establish procedures adequate to ensure the security of all
merchandise under Customs custody stored in the facility. The warehouse
construction will be a factor that will be considered by the port
director in deciding whether to approve the application. The facility
shall be built in such a manner as to render it impossible for
unauthorized personnel to enter the premises without such violence as
to make the entry easy to detect. If a portion of the facility is to be
used for the storage of non-bonded merchandise, the port director shall
designate the means for effective separation of the bonded and non-
bonded merchandise, such as a wall, fence, or painted line. All inlets
and outlets to bonded tanks shall be secured with locks and/or in-bond
seals.
(7) Storage conditions. Merchandise in the bonded area shall be
stored in a safe and sanitary manner to minimize damage to the
merchandise, avoid hazards to persons, and meet local, state, and
Federal requirements applicable to specific kinds of goods. Aisles
shall be established and maintained, and doors and entrances left
unblocked for access by Customs officers and warehouse proprietor
personnel.
(8) Manner of storage. Packages shall be received in the warehouse
and recorded in the proprietor's inventory and accounting records
according to their marks and numbers. Packages containing weighable or
gaugeable merchandise not bearing shipping marks and numbers shall be
received under the weighers or gaugers numbers. Packages with
exceptions due to damage or loss of contents, or not identical as to
quantity or quality of contents shall be stored separately until the
discrepancy is resolved with Customs. Merchandise received in the
warehouse shall be stored in a manner directly identifying the
merchandise with the entry, general order, or seizure number; using a
unique identifier for inventory categories composed of fungible
merchandise accounted for on a First-In-First-Out (FIFO) basis; or
using a unique identifier for inventory categories composed of fungible
merchandise accounted for using another approved alternative inventory
method.
(i) Direct identification. The warehouse proprietor shall mark all
shipments for identification, showing the general order or warehouse
entry number or seizure number and the date of the general order,
entry, or delivery ticket in the case of seizures. Containers covered
by a given warehouse entry, general order or seizure shall not be mixed
with goods covered by any other entry, general order or seizure.
Merchandise covered by a given warehouse entry, general order or
seizure may be stored in multiple locations within the warehouse if the
proprietor's inventory control system specifically identifies all
locations where merchandise for each entry, general order or seizure is
stored and the quantity in each location. The proprietor must provide,
upon request by a Customs officer, a record balance of goods,
specifying the quantity in each storage location, covered by any
warehouse entry, general order, or seizure so a physical count can be
made to verify the accuracy of the record balance.
(ii) FIFO. A proprietor may account for fungible merchandise on a
First-In-First-Out (FIFO) basis instead of specific identification by
warehouse entry number, provided the merchandise meets the criteria for
fungibility and the recordkeeping requirements contained in Sec. 19.12
of this part are met. As of the beginning date of FIFO procedures, each
kind of fungible merchandise in the warehouse under FIFO shall
constitute a separate inventory category. Each inventory category shall
be assigned a unique number or other identifier by the proprietor to
distinguish it from all other inventory categories under FIFO. All of
the merchandise in a given inventory category shall be physically
placed so as to be segregated from merchandise under other inventory
categories or merchandise accounted for under other inventory methods.
The unique identifier shall be marked on the merchandise, its
container, or the location where it is stored so as to clearly show the
inventory category of each article under FIFO procedures. Merchandise
covered by a given unique identifier may be stored in multiple
locations within the warehouse if the proprietor's inventory control
system specifically identifies all locations where merchandise for a
specific unique identifier is stored and the quantity in each location.
The proprietor must provide, upon request by a Customs officer, a
record balance of goods, specifying the quantity in each storage
location, covered by any warehouse entry, general order, or seizure so
a physical count can be made to verify the accuracy of the record
balance.
(iii) Other alternative inventory methods. Other alternative
inventory systems may be used, if Customs approval is obtained.
Importers or proprietors who wish to use an alternative inventory
method other than FIFO must apply to Customs Headquarters, Office of
Regulations and Rulings, for approval.
(9) Miscellaneous responsibilities. The proprietor is responsible
for complying with requirements for transport to his warehouse,
deposit, manipulation, manufacture, destruction, shortage or overage,
inventory control and recordkeeping systems, and other requirements as
specified in this part.
5. It is proposed to amend Sec. 19.6 by revising the fourth
sentence of paragraph (a)(1), paragraph (d)(1), and the sixth sentence
of paragraph (d)(2), by redesignating paragraph (d)(4) as (d)(5) and by
adding a new paragraph (d)(4), to read as follows:
Sec. 19.6 Deposits, withdrawals, blanket permits to withdraw and
sealing requirements.
(a)(1) Deposit in warehouse. * * * A copy of any joint report of
discrepancy shall be made within five business days of agreement and
provided to the port director on the appropriate cartage documents as
set forth in Sec. 125.31 of this chapter. * * *
* * * * *
(d) Blanket permits to withdraw. (1) General. (i) Blanket permits
may be used to withdraw merchandise from bonded warehouses for:
(A) Delivery to individuals departing directly from the Customs
territory for exportation under the sales ticket procedure of
Sec. 144.37(h) of this chapter (Class 9 warehouses only);
(B) Aircraft or vessel supplies under section 309 or 317, Tariff
Act of 1930, as amended (19 U.S.C. 1309, 1317); or
(C) The personal or official use of personnel of foreign
governments and
[[Page 28815]]
international organizations set forth in subpart I, part 148 of this
chapter; or
(D) A combination of the foregoing.
(ii) Blanket permits to withdraw may be used only for delivery at
the port where withdrawn and not for transportation in bond to another
port, except for a withdrawal for transportation to another port by a
duty-free sales enterprise which meets the requirements for exemption
as stated in Sec. 144.34(c) of this chapter. Blanket permits to
withdraw may not be used for delivery to a location for retention or
splitting of shipments under the provisions of Sec. 18.24 of this
chapter. A withdrawer who desires a blanket permit shall state in
capital letters on the warehouse entry, or on the warehouse entry/entry
summary when used as an entry, that ``Some or all of the merchandise
will be withdrawn under blanket permit per section 19.6(d), C.R.''
Customs acceptance of the entry will constitute approval of the blanket
permit. A copy of the entry will be delivered to the proprietor,
whereupon merchandise may be withdrawn under the terms of the blanket
permit. The permit may be revoked by the port director in favor of
individual applications and permits if the permit is found to be used
for other purposes, or if necessary to protect the revenue or properly
enforce any law or regulation Customs is charged with administering.
Merchandise covered by an entry for which a blanket permit was issued
may be withdrawn for purposes other than those specified in this
paragraph if a withdrawal is properly filed as required in subpart D,
part 144, of this chapter.
(2) Withdrawals under blanket permit. * * * A copy of the
withdrawal shall be retained in the records of the proprietor as
provided in Sec. 19.12(d)(4) of this part. * * *
* * * * *
(4) Withdrawals under blanket permit for aircraft or vessel
supplies. Multiple withdrawals under a blanket permit for aircraft or
vessel supplies, if consigned to the same daily aircraft flight number
or vessel sailing, may be filed on one Customs Form 7512; however, an
attachment form, developed by the warehouse proprietor and approved by
the port director may be used for all withdrawals. This attachment form
shall provide a sufficient summary of the goods being withdrawn, and
shall include the warehouse entry number, the quantity and weight being
withdrawn, the Harmonized Tariff Schedule of the United States
number(s), the value of the goods, import and export lading
information, the duty rate and amount, and any applicable Internal
Revenue Tax Calculation, for each warehouse entry being withdrawn. A
copy of Customs Form 7512 and the summary attachment must be attached
to each permit file folder unless the warehouse proprietor qualifies
for the permit file folder exemption under Sec. 19.12(d)(4)(iii) of
this part.
* * * * *
6. It is proposed to amend Sec. 19.11 by revising paragraph (h) to
read as follows:
Sec. 19.11 Manipulation in bonded warehouses and elsewhere.
* * * * *
(h) Merchandise which has been entered for warehouse and placed in
a Class 9 warehouse (duty-free store) may be unpacked into its smallest
irreducible unit for sale without a prior permit issued by the port
director. The port director may issue a blanket permit to a duty-free
store for up to one year permitting the destruction of merchandise
covered by any entry and found to be nonsaleable, if the merchandise to
be destroyed is valued at less than 5 percent of the value of the
merchandise at entry or $1250, whichever is less, in its undamaged
condition. Such permit may be revoked in favor of a permit for each
entry and/or destruction whenever necessary to assure proper
destruction and protection of the revenue. The proprietor shall
maintain a record of unpacking merchandise into saleable units and
destruction of nonsaleable merchandise in its inventory and accounting
records.
7. It is proposed to revise Sec. 19.12 to read as follows:
Sec. 19.12 Inventory control and recordkeeping system.
(a) Systems capability. The proprietor shall maintain either manual
or automated inventory control and recordkeeping systems or combination
manual and automated systems capable of:
(1) Accounting for all merchandise transported, deposited, stored,
manipulated, manufactured, smelted, refined, destroyed in or removed
from the bonded warehouse and all merchandise collected by a proprietor
or his agent for transport to his warehouse. The records shall provide
an audit trail from deposit through manipulation, manufacture,
destruction, and withdrawal from the bonded warehouse either by
specific identification or other Customs authorized inventory method.
The records to be maintained are those which a prudent businessman in
the same type of business can be expected to maintain. The records are
to be kept in sufficient detail to permit effective and efficient
determination by Customs of the proprietor's compliance with these
regulations and correctness of his annual submission or reconciliation;
(2) Producing accurate and timely reports and documents as required
by this part; and
(3) Identifying shortages and overages of merchandise in sufficient
detail to determine the quantity, description, tariff classification
and value of the missing or excess merchandise so that appropriate
reports can be filed with Customs on a timely basis.
(b) Procedures manual. (1) The proprietor shall have available at
the warehouse an English language copy of its written inventory control
and recordkeeping systems procedures manual in accordance with the
requirements of this part.
(2) The proprietor shall keep current its procedures manual and
shall submit to the port director a new certification at the time any
change in the system is implemented.
(c) Entry of merchandise into a warehouse.--(1) Identification. All
merchandise collected by a proprietor or his agent for transport to his
warehouse shall be receipted. In addition, all merchandise entered in a
warehouse will be recorded in a receiving report or document using a
Customs entry number or unique identifier if an alternate inventory
control method has been approved. All merchandise will be traceable to
a Customs entry and supporting documentation.
(2) Quantity verification. Quantities received will be reconciled
to a receiving report or document such as an invoice with any
discrepancy reported to the port director as provided in Sec. 19.6(a).
(3) Recordation. Merchandise received will be accurately recorded
in the accounting and inventory system records from the receiving
report or document using the Customs entry number or unique identifier
if an alternative inventory control method has been approved.
(d) Accountability for merchandise in a warehouse.--(1)
Identification of merchandise. The Customs entry number or unique
identifier, as applicable under Sec. 19.4(b)(8), will be used to
identify and trace merchandise.
(2) Inventory records. The inventory records will specify by
Customs entry number or unique identifier if an alternative inventory
control method is approved:
(i) The location of the merchandise within the warehouse;
[[Page 28816]]
(ii) The cost or value of the merchandise, unless the proprietor's
financial records maintain cost or value and the records are made
available for Customs review; and
(iii) The beginning balance, cumulative receipts and withdrawals,
adjustments, destructions, and current balance on hand by date and
quantity.
(3) Theft, shortage, overage or damage. Any theft or suspected
theft or overage or any extraordinary shortage or damage (one percent
or more of the value of the merchandise in an entry or covered by a
unique identifier; or if the missing merchandise is subject to duties
and taxes in excess of $100) shall be immediately brought to the
attention of the port director, and confirmed in writing within five
business days after the shortage, overage, or damage has been brought
to the attention of the port director. An entry for warehouse must be
filed for all overages by the person with the right to make entry
within five business days of the date of discovery. The applicable
duties, taxes and interest on thefts and shortages so reported shall be
paid by the responsible party to Customs within 20 calendar days
following the end of the calendar month in which the shortage is
discovered. The port director may allow the consolidation of duties and
taxes applicable to multiple shortages into one payment. These same
requirements shall apply when cumulative thefts, shortages or overages
under a specific entry or unique identifier total one percent or more
of the value of the merchandise or if the duties and taxes owed exceed
$100. Upon identification, the proprietor shall record all shortages
and overages in its inventory control and recordkeeping system, whether
or not they are required to be reported to the port director at the
time. The proprietor shall also record all shortages and overages as
required in the Customs Form 300 or annual reconciliation report under
paragraphs (f) or (g) of this section, as appropriate. Duties and taxes
applicable to any non-extraordinary shortage or damage and not required
to be paid earlier shall be submitted to the port director at the time
the Warehouse Proprietor's Submission, Customs Form 300 is due or at
the time the certification of preparation of the annual reconciliation
report is due, as prescribed in paragraphs (g) and (h) of this section.
(4) Permit file folders.--(i) Maintenance. Permit file folders
shall be maintained and kept up to date by filing all receipts, damage
or shortage reports, manipulation requests, withdrawals, removals and
blanket permit summaries within five business days after the event
occurs. The permit file folders shall be kept in a secure area and
shall be made available for inspection by Customs at all reasonable
hours.
(ii) Review. When the final withdrawal of merchandise relating to a
specific warehouse entry, general order or seizure occurs, the
warehouse proprietor shall: Review the permit file folder to ensure
that all necessary documentation is in the file folder accounting for
the merchandise covered by the entry; notify Customs of any merchandise
covered by the warehouse entry, general order or seizure which has not
been withdrawn or removed; and file the permit file folder with Customs
within 30 calendar days after final withdrawal, except as allowed by
paragraph (b)(4)(iv) of this section. The permit file folder for
merchandise not withdrawn during the general order period shall be
submitted to the port director upon receipt from Customs of the Customs
Form 6043.
(iii) Exemption to maintenance requirement. Maintenance of permit
file folders will not be required, if the proprietor has an automated
system capable of: satisfactorily summarizing all actions by Customs
warehouse entry; providing upon demand by Customs an entry activity
summary report which lists all individual receipts, withdrawals,
destructions, manipulations and adjustments by warehouse entry and is
cross-referenced to the source documents for each transaction; and
maintaining source documents so that the documents can be readily
retrieved upon request. Failure to provide the entry activity summary
report or documentation supporting the entry activity summary report
upon demand by the port director or the field director of regulatory
audit could result in reinstatement by the port director of the
requirement to maintain the permit file folder for all warehouse
entries. When final withdrawal is made, the proprietor must submit the
entry activity summary report to Customs. Prior to submission, the
proprietor must ensure the accuracy of the summary report and assure
that all supporting documentation is on file and available for review
if requested by Customs.
(iv) Exemption to submission requirement. At the discretion of the
port director, a proprietor may be allowed to furnish formal
notification of final withdrawal in lieu of the requirement to submit
the permit file folder or entry activity summary within 30 calendar
days of each final withdrawal. If approved to use this procedure the
proprietor could be required by the port director to submit permit file
folders or entry activity summaries on a selective basis. Failure to
promptly provide the permit file folder or entry activity summary upon
request by the port director or the field director of regulatory audit
could result in withdrawal of this privilege.
(5) Physical inventory. The proprietor shall take at least an
annual physical inventory of all merchandise in the warehouse, or
periodic cycle counts of selected categories of merchandise such that
each category is counted at least once during the year, with prior
notification of the date(s) given to Customs so that Customs personnel
may observe or participate in the inventory if deemed necessary. If the
proprietor of a Class 2 or Class 9 warehouse has merchandise covered by
one warehouse entry, but stored in multiple warehouse facilities as
provided for under Sec. 144.34 of this chapter, the facility where the
original entry was filed must reconcile the on-hand balances at all
locations with the record balance for those entries with merchandise in
multiple locations. The proprietor shall notify the port director of
any discrepancies, record appropriate adjustments in the inventory
control and recordkeeping system, and make required payments and
entries to Customs, in accordance with paragraph (d)(3) of this
section. Discrepancies found in a Class 9 warehouse with integrated
locations as set forth in Sec. 19.35(c) will be the net discrepancies
for a specific identifier such that overages within one sales location
will be offset against shortages in another location that is within the
integrated location. A Class 9 proprietor who transfers merchandise
between facilities in different ports without being required to file a
rewarehouse entry in accordance with Sec. 144.34 of this chapter may
offset overages and shortages within the same specific identifier for
merchandise located in stores in different ports.
(e) Withdrawal of merchandise from a warehouse. All bonded
merchandise withdrawn from a warehouse will be accurately recorded
within the inventory control and recordkeeping system. The inventory
control and recordkeeping system must have the capability to trace all
withdrawals back to a Customs entry and to ultimate disposition of the
merchandise by the proprietor.
(f) Special provisions for use of FIFO inventory procedures.--(1)
Notification. A proprietor who wishes to use FIFO procedures for all or
part of the merchandise in a bonded warehouse shall provide the port
director a written certification that: the proprietor has read and
understands Customs FIFO procedures set forth in this section; the
[[Page 28817]]
proprietor's procedures are in accordance with Customs FIFO procedures,
and the proprietor agrees to abide by those procedures; and the
proprietor of a public warehouse will obtain the written consent of any
importer using the warehouse before applying FIFO procedures to their
merchandise.
(2) Qualifying merchandise. FIFO inventory procedures may be used
only for fungible merchandise. For purposes of this section, ``fungible
merchandise'' means merchandise which is identical and interchangeable
for all commercial purposes. While commercial interchangeability is
usually decided between buyer and seller or between proprietor and
importer, Customs is the final arbiter of fungibility in bonded
warehouses. The criteria for determining whether merchandise is
fungible include, but are not limited to, Governmental and recognized
industrial standards, part numbers, tariff classification, value, brand
name, unit of quantity (such as barrels, gallons, pounds, pieces),
model number, style and same kind and quality.
(3) Merchandise specifically excluded. FIFO procedures cannot be
applied to the following merchandise, as well as any other merchandise
which does not comply with the requirements of paragraph (f)(2) of this
section:
(i) Merchandise subject to quota, visa or export restrictions
chargeable to different countries of origin;
(ii) Textile and textile products of different quota categories;
(iii) Merchandise with different tariff classifications or rates of
duty, except where the difference is within the merchandise itself
(such as kits, merchandise in unusual containers) or where the tariff
classification or dutiability is determined only by conditions upon
withdrawal (for example, withdrawal for vessel supplies, bonded wool
transactions);
(iv) Merchandise with different legal requirements for marking,
labelling or stamping;
(v) Merchandise with different trademarks;
(vi) Merchandise of different grades or qualities;
(vii) Merchandise with different importers of record;
(viii) Damaged or deteriorated merchandise;
(ix) Restricted merchandise; or
(x) General order, abandoned or seized merchandise.
(4) Maintenance of FIFO. FIFO procedures used for merchandise in
any inventory category, must be used consistently throughout the
warehouse storage and recordkeeping practices and procedures for the
merchandise. For example, merchandise may not be added to inventory by
FIFO but withdrawn by bypassing certain inventory layers to reach a
specific warehouse entry other than the oldest one. However, this does
not preclude the use of specific identification for some merchandise in
a warehouse entry and FIFO for other merchandise, so long as they are
segregated in physical storage and clearly distinguished in the
inventory and accounting records.
(5) FIFO recordkeeping. In the inventory and accounting records,
the proprietor shall establish an inventory layer for each warehouse
entry represented in each inventory category. The layers shall be
established in the order of time of acceptance of the entry or by the
date of importation of merchandise covered by each applicable warehouse
entry. There shall be no mixing of layering both by time of acceptance
and date of importation in the same warehouse. Records for each layer
shall, as a minimum, show the warehouse entry number, date of
acceptance, date of importation, quantity and unit of quantity. They
shall also show for each entry the type of warehouse withdrawal number
or other specific removal event charged against the entry, by date and
quantity. Each addition to or deduction from the inventory category
shall be posted in the appropriate inventory category within 2 business
days after the event occurs. All FIFO records and documentation shall
consistently use the same unit of quantity within each inventory
category.
(6) Entry requirements. Warehouse entries covering any merchandise
to be accounted for under FIFO must be prominently marked ``FIFO'' on
the face of the entry document. The entry document or an attachment
thereto shall show the unique identifier of each inventory category to
be accounted for under FIFO, the quantity in each inventory category
and the unit of quantity.
(7) Receipts. Any shortages, overages, or damage found upon receipt
shall be attributed to the entry under which the merchandise was
received. FIFO procedures will not take effect until the merchandise is
physically placed in the storage location for the inventory category
represented in the entry.
(8) Manipulation. When manipulation results in a product with a
different unique identifier, the inventory and accounting records shall
show the quantities of merchandise in each inventory category appearing
in the product covered by the new unique identifier. The withdrawal
shall show the unique identifiers of both the materials used in the
manipulation and the product as manipulated. The quantities of the
original unique identifiers will be deducted from their respective
warehouse entries on a FIFO basis when the resultant product is
withdrawn.
(9) Discontinuance of FIFO. A proprietor may voluntarily
discontinue the use of FIFO procedures for all or part of the
merchandise currently under FIFO by providing written notification to
the port director. The notification shall clearly describe the
merchandise, by commercial names and unique identifiers, to be removed
from FIFO. Following notification, the merchandise shall be segregated
in both the recordkeeping system and the physical location by warehouse
entry number and the quantities so removed shall be deducted from the
appropriate FIFO inventory category balances. Merchandise so removed
shall be maintained under the specific identification inventory method.
FIFO procedures which were voluntarily discontinued may be reinstated,
but not for merchandise covered by any warehouse entry for which FIFO
was discontinued.
(g) Warehouse proprietor submission. Except as otherwise provided
in paragraph (h) of this section or Sec. 19.19(b) of this part, the
warehouse proprietor shall file with the field director of regulatory
audit within 45 calendar days from the end of his business year a
Warehouse Proprietor's Submission on Customs Form 300. If the
proprietor of a Class 2 or Class 9 warehouse has merchandise covered by
one warehouse entry, but stored in multiple warehouse facilities as
provided for under Sec. 144.34 of this chapter, the CF 300 shall cover
all locations and warehouses of the proprietor. An alternative format
may be used for providing the information required on the CF 300, if
prior written approval is obtained from the field director of
regulatory audit.
(h) Annual reconciliation.--(1) Report. Instead of filing Customs
Form 300 as required under paragraph (g) of this section, the
proprietor of a class 2, importers' private bonded warehouse, and
proprietors of classes 4, 5, 6, 7, 8, and 9 warehouses if the warehouse
proprietor and the importer are the same party, shall prepare a
reconciliation report within 90 days after the end of the fiscal year
unless the port director authorizes an extension for reasonable cause.
The proprietor shall retain the annual reconciliation report for 5
years from the end of the fiscal year covered by the report. The report
must be available for a spot check or audit by
[[Page 28818]]
Customs, but need not be furnished to Customs unless requested. There
is no form specified for the preparation of the report.
(2) Information required. The report must contain the company name;
address of the warehouse; class of warehouse; date of inventory or
information on cycle counts; a description of merchandise for each
entry or unique identifier, quantity on hand at the beginning of the
year, cumulative receipts and transfers (by unit), quantity on hand at
the end of the year, and cumulative positive and negative adjustments
(by unit) made during the year. If the proprietor of a Class 2 or Class
9 warehouse has merchandise covered by one warehouse entry, but stored
in multiple warehouse facilities as provided for under Sec. 144.34 of
this chapter, the reconciliation shall cover all locations and
warehouses of the proprietor at the same port. If the annual
reconciliation includes entries for which merchandise was transferred
to a warehouse without filing a rewarehouse entry, as allowed under
Sec. 144.34, the annual reconciliation must contain sufficient detail
to show all required information by location where the merchandise is
stored. For example, if merchandise covered by a single entry is stored
in warehouses located in 3 different ports, the annual reconciliation
should specify individually the beginning and ending inventory
balances, cumulative receipts, transfers, and positive and negative
adjustments for each location.
(3) Certification. The proprietor shall submit to the field
director of regulatory audit within 10 business days after preparation
of the annual reconciliation report, a letter signed by the proprietor
certifying that the annual reconciliation has been prepared, is
available for Customs review, and is accurate. The certification letter
must contain the proprietor's IRS number; date of fiscal year end; the
name and street address of the warehouse; the name, title, and
telephone number of the person having custody of the records; and the
address where the records are stored. Reporting of shortages and
overages based on the annual reconciliation will be made in accordance
with paragraph (d)(3) of this section. Any previously unreported
shortages and overages should be reported to the port director and any
unpaid duties, taxes and fees should be paid at this time.
(i) System review. The proprietor shall perform an annual internal
review of the inventory control and recordkeeping system and shall
prepare and maintain on file a report identifying any deficiency
discovered and corrective action taken, to ensure that the system meets
the requirements of this part.
(j) Special requirements. A warehouse proprietor submission (CF
300) or annual reconciliation must be prepared for each facility or
location as defined in Secs. 19.2(a) and 19.35(c) of this part. When
merchandise is transferred from one facility or location to another
without filing a rewarehouse entry, as provided for in Sec. 144.34(c)
of this chapter, the submission/reconciliation for the warehouse where
the entry was originally filed should account for all merchandise under
the warehouse entry, indicating the quantity in each location.
8. It is proposed to amend Sec. 19.13 by revising the fourth
sentence of paragraph (g) to read as follows:
Sec. 19.13 Requirements for establishment of warehouses.
* * * * *
(g) Secure storage. * * * The areas for storage of bonded material
and manufactured products shall be secured in accordance with the
standards prescribed in Sec. 19.4(b)(6) of this part. * * *
* * * * *
9. It is proposed to amend Sec. 19.13a by revising the first
sentence of its introductory text and by revising paragraph (b) to read
as follows:
Sec. 19.13a Recordkeeping requirements.
The proprietor of a manufacturing warehouse shall comply with the
recordkeeping requirements of Secs. 19.4(b) and 19.12.* * *
* * * * *
(b) Take an annual physical inventory of the merchandise as
provided in Sec. 19.12(d)(5) in conjunction with the annual submission
required by Sec. 19.12(g); and
* * * * *
10. It is proposed to amend Sec. 19.35 by revising the introductory
text of paragraph (c) and by revising paragraphs (c)(2) and (f) to read
as follows:
Sec. 19.35 Establishment of duty-free stores (Class 9 warehouses).
* * * * *
(c) Integrated locations. A Class 9 warehouse with multiple
noncontiguous sales and crib locations (see Sec. 19.37(a) of this part)
containing conditionally duty-free merchandise and requested by the
proprietor may be treated by Customs as one location if:
* * * * *
(2) The recordkeeping system is centralized up to the point where a
sale is made so as to automatically reduce the sale quantity by
location from centralized inventory or inventory records must be
updated no less frequently than at the end of each business day to
reflect that day's activity.
* * * * *
(f) Security of sales rooms and cribs. The physical and procedural
security requirements of Sec. 19.4(b)(6) of this part shall be applied
to the security of the sales rooms and cribs by the port director. The
proprietor shall establish procedures to safeguard the merchandise so
as to accommodate the movement of purchasers and prospective purchasers
of conditionally duty-free merchandise contained in duty-free sales
rooms and cribs.
* * * * *
11. It is proposed to amend Sec. 19.36 by revising the last
sentence of paragraph (e) and the third sentence of paragraph (g) to
read as follows:
Sec. 19.36 Requirements for duty-free store operations.
* * * * *
(e) Merchandise eligible for warehousing. * * * However, such
merchandise must be either identified or marked ``DUTY-PAID'' or
``U.S.-ORIGIN'', or similar markings, as applicable, so that Customs
officers can easily distinguish conditionally duty-free merchandise
from other merchandise in the sales or crib area.
* * * * *
(g) Inventory procedure. * * * The inventory shall be reconcilable
with the accounting and inventory records and the permit file folder
requirements of Sec. 19.12(d), (e) and (f) of this part. * * *
12. It is proposed to amend Sec. 19.37 by revising the first and
fourth sentences, and the fifth (and last) sentence of paragraph (a) to
read as follows:
Sec. 19.37 Crib operations.
(a) Crib. A crib means a bonded area, separate from the storage
area of a Class 9 warehouse, for the retention of a supply of articles
for delivery to persons departing from the United States. * * * The
quantity of goods in the crib may be an amount requested by the
proprietor which is commercially necessary for the delivery operations
for a period, if approved by the port director. The port director may
increase or decrease the quantity as deemed necessary for the
protection of the reven
FR Doc. 96-14125 Duty-Free Stores
ue and proper administration of U.S. laws and
regulations, or may order the return to the storage area of goods
remaining unsold.
* * * * *
13. It is proposed to amend Sec. 19.39 by removing the last three
sentences of
[[Page 28819]]
paragraph (c)(2); it is further proposed to amend Sec. 19.39 by
revising the first sentence of paragraph (c)(3), by redesignating
paragraphs (c)(4)(ii), (c)(4)(iii) and (c)(4)(iv), as (c)(4)(iii),
(c)(4)(iv) and (c)(4)(v), respectively, and adding a new paragraph
(c)(4)(ii), and by revising paragraphs (c)(5) and (e), to read as set
forth below:
Sec. 19.39 Delivery for exportation.
* * * * *
(c) * * *
(3) Aircraft Delivery. The merchandise will be delivered by a
licensed cartman for lading as baggage directly on the aircraft on
which the passenger will depart. * * *;
(4) Unit-load delivery. * * *
(ii) Merchandise shall be placed on the aircraft on which the
passenger departs the United States for carriage as passenger baggage;
* * * * *
(5) Cancelled or aborted flights or no-show passengers. (i)
Cancelled or aborted flights. The proprietor shall, upon request, make
available to Customs the purchaser's name and address, the purchaser's
airline ticket number and the identity and quantity of the merchandise
delivered by the proprietor to the purchaser (if the merchandise was
delivered to the airline rather than the passenger, the name of the
airline employee to whom the merchandise was delivered), and the date
and time of that delivery in lieu of retrieving the merchandise for
safekeeping until the purchaser actually departs.
(ii) No-show passengers. A proprietor who delivers merchandise
directly to an airline for delivery to a passenger who does not board
the flight shall establish a procedure to obtain redelivery of that
merchandise from the airline.
* * * * *
(e) Delivery method. Delivery of conditionally duty-free
merchandise to persons for exportation will be made by licensed cartmen
or bonded carriers under the procedures in subpart D, part 125, and
Sec. 144.34(a), of this chapter, or under a local control system
approved by the port director wherein any discrepancy found in the
merchandise will be treated as if it occurred in the bonded warehouse.
* * * * *
PART 113--CUSTOMS BONDS
1. The general authority citation for part 113 would continue to
read as follows:
Authority: 19 U.S.C. 66, 1623, 1624.
* * * * *
2. It is proposed to amend Sec. 113.63 by redesignating paragraph
(a)(4) as (a)(5) and adding a new paragraph (a)(4), by adding a new
paragraph (b)(4), and by revising the first sentence of paragraph (d),
to read as follows:
Sec. 113.63 Basic custodial bond conditions.
(a) * * *
(4) If authorized to use the alternative transfer procedure set
forth in Sec. 144.34(c) of this chapter, to operate as constructive
custodian for all merchandise transferred under those procedures,
thereby assuming primary responsibility for the continued proper
custody of the merchandise notwithstanding its geographical location;
* * * * *
(b) * * *
(4) If authorized to use the alternative transfer procedure set
forth in Sec. 144.34(c) of this chapter, to keep safe any merchandise
so transferred.
* * * * *
(d) * * * If the principal is designated a bonded carrier, or
licensed to operate a cartage or lighterage business, or authorized to
use the alternative transfer procedure set forth in Sec. 144.34(c) of
this chapter, the principal agrees to redeliver timely, on demand by
Customs, any merchandise delivered to unauthorized locations or to the
consignee without the permission of Customs. * * *
* * * * *
PART 144--WAREHOUSE AND REWAREHOUSE ENTRIES AND WITHDRAWALS
1. The general authority citation for part 144 and the specific
authority for Sec. 144.37 would continue to read as follows:
Authority: 19 U.S.C. 66, 1484, 1557, 1559, 1624;
* * * * *
Section 144.37 also issued under 19 U.S.C. 1555, 1562.
2. It is proposed to amend Sec. 144.34 by adding a new paragraph
(c) to read as follows:
Sec. 144.34 Transfer to another warehouse.
* * * * *
(c) Transfers between integrated bonded warehouses.--(1)
Eligibility.
(i) Only an importer who will transfer warehoused merchandise among
Class 2 and 9 warehouses listed on the application in paragraph (c)(2)
of this section is eligible to participate.
(ii) The importer must have a centralized inventory control system
that shows the location of all of the warehoused merchandise at all
times, including merchandise in transit.
(iii) The importer and its surety must sign the application. If the
application to use this alternative procedure is approved by the
appropriate port director, the importer's entry bond containing the
conditions provided under Sec. 113.62 of this chapter will continue to
attach to any merchandise transferred under these alternative
procedures.
(iv) Each proprietor of a warehouse listed on the application and
each surety who underwrites that proprietor's custodial bond coverage
under Sec. 113.63 of this chapter shall sign the application.
(2) Application. Application must be made in writing to the port
director of the port in which the applicant's centralized inventory
control system exists, with copies to all affected port directors, for
exemptions from the requirements for transfer of merchandise from one
bonded warehouse to another set forth in paragraphs (a) and (b) of this
section. The application must list all bonded warehouses to and from
which the merchandise may be transferred; all such warehouses must be
covered by the same centralized inventory control system. Only blanket
exemption requests will be considered; exemptions will not be
considered for individual transfers. The application may be in letter
form, signed by all participants, and contain a certification to the
port director by the applicant that he maintains accounting records,
documents and financial statements and reports that adequately support
Customs activities.
(3) Operation. An importer who receives approval to transfer
merchandise between bonded warehouses in accordance with the provisions
of this section may, after entry into the first warehouse, transfer
that merchandise to any other warehouse without filing a withdrawal
from warehouse or a rewarehouse entry. The warehoused merchandise will
be treated as though it remains in the first warehouse so long as the
actual location of the merchandise at all times is recorded as provided
under the provisions of this section.
(4) Inventory control requirements. The records required to be
maintained must include a centralized inventory control system and
supporting documentation which meets the following requirements:
(i) Provide Customs upon demand with the proper on-hand balance of
each inventory item in each warehouse
[[Page 28820]]
facility and each storage location within each warehouse;
(ii) Provide Customs upon demand with the proper on-hand balance
for each open warehouse entry and the actual quantity in each warehouse
facility;
(iii) If an alternative inventory system has been approved, provide
Customs upon demand with the proper on-hand balance for each unique
identifier and the quantity related to each open warehouse entry and
the quantity in each warehouse facility;
(iv) Maintain documentation for all intracompany movements,
including authorizations for the movement, shipping documents and
receiving reports. These documents must show the appropriate warehouse
entry number or unique identifier, the description and quantity of the
merchandise transferred, and must be properly authorized and signed
evidencing shipment from and delivery to each location;
(v) Maintain a consolidated permit file folder at the location
where the merchandise was originally warehoused. The consolidated
permit file folder must meet the requirements of Sec. 19.12(d)(4) of
this chapter regardless of the warehouse facility in which the action
occurred. Documentation for all intracompany movements, including
authorizations for movement, shipping documents, receiving reports, as
well as documentation showing ultimate disposition of the merchandise
must be filed in the consolidated permit file folder within seven
business days; and
(vi) Maintain a subordinate permit file at all intracompany
locations where merchandise is transferred containing copies of
documentation required by Sec. 19.12(d)(4) of this chapter and by
paragraph (c)(3)(v) of this section relating to merchandise quantities
transferred to the location. A copy of all documents in the subordinate
permit file folder must be filed in the consolidated permit file folder
within seven business days; no exceptions will be granted to this
requirement. When the final withdrawal is made on the respective entry,
the subordinate permit file shall be considered closed and filed at the
intracompany location to which the merchandise was transferred.
(vii) File the withdrawal from Customs custody at the original
warehouse location at which the merchandise was entered.
(5) Waiver of permit file folder requirements. The permit file
folder requirements of paragraphs (c)(3)(v) and (c)(3)(vi) of this
section may be waived if the proprietor's recordkeeping and inventory
control system qualifies under the requirements of
Sec. 19.12(d)(4)(iii) of this chapter at all locations where bonded
merchandise is stored.
(6) Procedure not available. (i) Liens. The transfer procedures
permitted under paragraph (c) of this section shall not be available
for merchandise with respect to which Customs is notified of the
existence of a lien, as prescribed in Sec. 141.112 of this chapter (see
19 U.S.C. 1564), until proof shall be produced at the original
warehouse location that the lien has been satisfied or discharged.
(ii) Restricted merchandise. Merchandise subject to a restriction
on release such as covered by a licensing, quota or visa requirement,
is not eligible.
3. It is proposed to amend Sec. 144.36 by revising paragraphs (c)
and (f), and by adding the word ``or'' at the end of paragraph (g)(5)
and adding a new paragraph (g)(6) thereafter, to read as follows:
Sec. 144.36 Withdrawal for transportation.
* * * * *
(c) Form. (1) A withdrawal for transportation shall be filed on
Customs Form 7512 in five copies. An extra copy or copies of the
Customs Form 7512 may be required for use in connection with the
delivery of the merchandise to the bonded carrier and, in the case of
alcoholic beverages, two extra copies shall be required for use in
furnishing the duty statement to the port director at destination.
(2) Separate withdrawals for transportation from a single
warehouse, via a single conveyance, consigned to the same consignee,
and deposited into a single warehouse, can be filed on one Customs Form
7512, under one control number, provided that there is an attachment,
to be certified by a Customs officer, providing the information for
each withdrawal, as required in paragraph (d) of this section. This
procedure shall not be allowed for merchandise which is in any way
restricted (for example, quota/visa).
(3) The requirement that a Customs Form 7512 be filed and the
information required in paragraph (d) of this section be shown shall
not be required if the merchandise qualifies under the exemption in
Sec. 144.34(c).
* * * * *
(f) Forwarding procedure. The merchandise shall be forwarded in
accordance with the general provisions for transportation in bond
(Secs. 18.1 through 18.8 of this chapter). However, when the alternate
procedures under Sec. 144.34(c) are employed, the merchandise need not
be delivered to a bonded carrier for transportation, and an entry for
transportation (Customs Form 7512) and a rewarehouse entry will not be
required.
(g) Procedure at destination. * * *
(5) * * *; or
(6) Deposited into the proprietor's bonded warehouse or duty free
store warehouse without rewarehouse entry as required in Sec. 144.41,
if the merchandise qualifies for the exemption specified in
Sec. 144.34(c).
* * * * *
4. It is proposed to amend Sec. 144.37 by revising paragraph
(h)(2)(v), and by revising the fourth sentence and the sixth (and last)
sentence of paragraph (h)(3), concluding text, to read as follows:
Sec. 144.37 Withdrawal for exportation.
* * * * *
(h) * * *
(2) * * *
(v) The full name and address of the purchaser. However, the port
director may waive the address requirement for all merchandise except
for alcoholic beverages in quantities in excess of 4 liters and
cigarettes in quantities in excess of 3 cartons; and
* * * * *
(3) Sales ticket register. * * * The sales ticket register shall be
included in the permit file folder with or in lieu of the blanket
permit summary, as provided in Sec. 19.6(d)(5) of this chapter. * * *
In lieu of placing a copy of sales tickets in each permit file folder,
the warehouse proprietor may keep all sales tickets in a readily
retrievable manner in a separate file.
5. It is proposed to amend Sec. 144.39 by revising its first
sentence to read as follows:
Sec. 144.39 Permit to transfer and withdraw merchandise.
With the exception of merchandise transferred under the procedures
of Sec. 144.34(c), if all legal and regulatory requirements are met,
the appropriate Customs officer shall approve the application to
transfer or withdraw merchandise from a bonded warehouse by endorsing
the permit copy and returning it to the applicant. * * *
6. It is proposed to amend Sec. 144.41 by revising paragraph (c) to
read as follows:
Sec. 144.41 Entry for rewarehouse.
* * * * *
(c) Combining Separate shipments. (1) Separate shipments consigned
to the same consignee and received under separate withdrawals for
transportation may be combined into one rewarehouse entry if the
warehouse withdrawals are from the same original warehouse entry.
(2) Shipments covered by multiple warehouse entries, and shipped
from a
[[Page 28821]]
single warehouse under separate withdrawals for transportation, via a
single conveyance, may be combined into one rewarehouse entry if
consigned to the same consignee and deposited into a single warehouse.
This procedure shall not be allowed for merchandise which is in any way
restricted (for example, quota/visa). The combined rewarehouse entry
shall have attached either copies of each warehouse entry package which
is being combined into the single rewarehouse entry or a summary with
pertinent information, that is, the date of importation, commodity
description, size, HTSUS and entry numbers, for all entries withdrawn
for consolidation as one rewarehouse entry. Any combining of separate
withdrawals into one rewarehouse entry shall result in the rewarehouse
entry being assigned the import date of the oldest entry being combined
into the rewarehouse entry.
(3) Combining of separate shipments shall be prohibited in all
other circumstances.
* * * * *
Michael H. Lane,
Acting Commissioner of Customs.
Approved: April 8, 1996.
John P. Simpson,
Deputy Assistant Secretary of the Treasury.
[FR Doc. 96-14125 Filed 6-5-96; 8:45 am]
BILLING CODE 4820-02-P
Complete official Federal Register PDF
FR Doc. 96-14113 Acid Rain Program; Elimination of Direct Sale and IPP Written Guarantee Program
[Federal Register Volume 61, Number 110 (Thursday, June 6, 1996)]
[Proposed Rules]
[Pages 28830-28831]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14113]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 73
[FRL-5513-5]
RIN 2060-AG41
Acid Rain Program; Elimination of Direct Sale and IPP Written
Guarantee Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: Title IV of the Clean Air Act, as amended by the Clean Air Act
Amendments of 1990 (the Act), authorized the Environmental Protection
Agency (EPA) to establish the Acid Rain Program to reduce the adverse
health and ecological effects of acidic deposition. Title IV mandates
that EPA hold yearly auctions and direct sales of allowances for a
small portion of the total allowances allocated each year. EPA is also
required to issue to Independent Power Producers (IPPs) guarantees to
purchase allowances in the direct sale. The direct sale and IPP
provisions were designed to help ensure that units, including new IPPs,
have a public source of allowances beyond those already allocated
initially. Because no allowances have been sold through the direct sale
program since it began in 1993, EPA is proposing to revise its
regulations in order to terminate the direct sales. The allowances
available previously in the direct sale program will now be available
in the annual allowance auctions. In addition, because the IPP written
guarantee program is implemented through the direct sale program and no
applications for such guarantees have been received, EPA is proposing
to terminate the guarantee program.
Because the rule revision is not expected to receive any adverse
comments, the revision is also being issued as a direct final rule in
the Final Rules section of this Federal Register.
DATES: Comments on the regulations proposed by this action must be
received on or before July 8, 1996.
ADDRESSES: Comments. All written comments must be identified with the
appropriate docket number (Docket No. A-96-19) and must be submitted in
duplicate to U.S. Environmental Protection Agency, EPA Air Docket
Section (6102), Waterside Mall, Room M1500, 1st Floor, 401 M St. SW.,
Washington, DC 20460.
Docket. Docket No. A-96-19, containing information considered
[[Page 28831]]
during development of the promulgated standards and requirements in
this proposal, is available for public inspection and copying between
8:30 a.m. and 3:30 p.m., Monday through Friday, at EPA's Air Docket
Section at the above address. A reasonable fee may be charged for
copying.
FOR FURTHER INFORMATION CONTACT: Kenon Smith, U.S. Environmental
Protection Agency, Acid Rain Division (6204J), 401 M Street SW.,
Washington, DC 20460, (202) 233-9164, or call the Acid Rain Hotline at
(202) 233-9620.
SUPPLEMENTARY INFORMATION: If no significant, adverse comments are
timely received, no further activity is contemplated in relation to
this proposed rule and the direct final rule in the Final Rules section
of this Federal Register will automatically go into effect on the date
specified in that rule. If significant, adverse comments are timely
received on any portion of the direct final rule, that portion will be
withdrawn and all public comment received on that portion will be
addressed in a subsequent final rule based on the relevant portions of
this proposed rule. Because the Agency will not institute a second
comment period on this proposed rule, any parties interested in
commenting should do so during this comment period.
For further supplemental information, the detailed rationale, and
the rule revision, see the information provided in the direct final
rule in the Final Rules section of this Federal Register.
List of Subjects in 40 CFR Part 73
Environmental protection, Acid rain, Air pollution control,
Electric Utilities, Reporting and record keeping requirements, and
Sulfur dioxide.
Dated: May 24, 1996.
Carol M. Browner,
Administrator.
[FR Doc. 96-14113 Filed 6-5-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-14112 Acid Rain Program, SOINF2 Allowance Auction and Electronic Allowance Transfer
[Federal Register Volume 61, Number 110 (Thursday, June 6, 1996)]
[Proposed Rules]
[Pages 28996-28998]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14112]
[[Page 28995]]
_______________________________________________________________________
Part IV
Environmental Protection Agency
_______________________________________________________________________
40 CFR Part 73
Acid Rain Program, SO2 Allowance Auction and Electronic Allowance
Transfer; Advanced Notice of Proposed Rulemaking
Federal Register / Vol. 61, No. 110 / Thursday, June 6, 1996 /
Proposed Rules
[[Page 28996]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 73
[FRL-5513-6]
RIN 2060-AG75
Acid Rain Program, SO2 Allowance Auction and Electronic
Allowance Transfer
AGENCY: Environmental Protection Agency (EPA).
ACTION: Advanced notice of proposed rulemaking; notice and request for
comment.
-----------------------------------------------------------------------
SUMMARY: Title IV of the Clean Air Act, as amended by the Clean Air Act
Amendments of 1990, (the Act) authorized the Environmental Protection
Agency (EPA or Agency) to establish the Acid Rain Program to reduce the
adverse health and ecological effects of acidic deposition. Under the
Acid Rain Program, electric utilities must have an allowance for each
ton of sulfur dioxide (SO2) that their generating facilities emit.
Title IV mandates that EPA hold or sponsor yearly auctions and
direct sales of allowances for a small portion of the total allowances
allocated each year. The United States General Accounting Office has
recommended that EPA change the design of the auction to a single-price
auction, in which each bidder would pay the market-clearing price.
Currently, the auction is a ``price-discriminating'' auction, meaning
that all bids are ranked beginning with the highest dollar amount and
that each winning bidder pays what he or she bids until all allowances
are sold. EPA is soliciting comments on whether to change the current
design of the acid rain allowance auctions. EPA is also seeking comment
on whether to change the requirement that additional allowances offered
in EPA auctions have a set minimum price in whole dollars. Lastly, EPA
is seeking comment on whether to change the timing of the annual
auctions from late March to late October.
Title IV also provides for the transfer of allowances and states
that a transfer will not be effective until EPA receives and records a
written certification of the transfer signed by a responsible official
of each party. EPA is considering development of a system to allow
electronic submittal of allowance transfers. EPA is seeking comment on
whether to propose allowing such electronic transfers.
DATES: Comments must be received on or before August 5, 1996.
ADDRESSES: All written comments must be identified with the appropriate
docket number (Docket No. A-96-19) and be submitted in duplicate to:
EPA Air Docket Section (6102), U. S. Environmental Protection Agency,
Waterside Mall, Room M1500, 1st floor, 401 M Street SW., Washington, DC
20460.
FOR FURTHER INFORMATION CONTACT: Linda Reidt Critchfield, U. S.
Environmental Protection Agency, Acid Rain Division (6204J), 401 M
Street SW., Washington, D.C. (202) 233-9087, call the Acid Rain Hotline
at (202) 233-9620, or visit the Acid Rain Program web page at http://
www.epa.gov/docs/acidrain/ardhome.html.
SUPPLEMENTARY INFORMATION: EPA's Acid Rain Program established an
innovative, market-based allowance trading system to reduce SO2
emissions, one of the primary precursors of acid rain. Under this
system, fossil fuel-fired power plants, the principal emitters of
SO2, were allocated tradeable allowances based on their past fuel
usage and emissions. Each allowance entitles a unit to emit 1 ton of
SO2 during or after the year specified in the allowance serial
number. At the end of the year, the number of allowances a unit holds
must equal or exceed total emissions at that unit; otherwise, stringent
penalties will apply. After the year 2000, the total number of
allowances allocated each year will be about half of what the utility
industry emitted in 1980.
Allowances may be bought, sold, or banked like any other commodity.
If a unit has surplus allowances, it may sell them to units whose
emissions levels exceed their allowance supply, or it may save them for
future years.
Allowance Auctions
Because the availability of allowances is crucial to ensure the
economic efficiency of emissions limitations and facilitate the
addition of new electric-generating capacity, title IV of the Act
mandates that EPA hold or sponsor yearly auctions and direct sales of
allowances for a small portion of the total allowances allocated each
year. In addition, title IV requires that EPA provide a written
guarantee ensuring priority for certain new independent power producers
(IPPs) in purchasing allowances in the direct sales. The auctions,
sales, and IPP guarantee provisions of title IV help ensure that units,
including new IPPs, have a public source of allowances beyond those
allocated initially. Moreover, the auctions, which began in 1993,
provide price information to the allowance market early in the
regulatory program, 1995 being the first year in which allowances are
required to be held.
To supply the sales and auctions with allowances, EPA has set aside
in a Special Allowance Reserve 2.8 percent of the total annual
allowances allocated to all units. During Phase I, when the allowances
allocated total 5.7 million allowances annually, 150,000 allowances are
available every year for auctions. During Phase II, when allowance
allocations total 8.95 million allowances annually, 200,000 allowances
are earmarked annually for auctions and 50,000 designated for the
direct sales. Private allowance holders (such as utilities or brokers)
also may offer their allowances for sale at the EPA auctions, provided
that the allowances are dated for the year in which they are offered,
for any previous year, or for 7 years in the future.
The auctions and sales are conducted for EPA by the Chicago Board
of Trade (CBOT). Section 416 of the Act gives EPA the authority to
delegate the administration of the auctions and sales.
EPA is soliciting comments on whether the Agency should propose to
change the design and timing of the annual acid rain allowance
auctions. The United States General Accounting Office (GAO) recommended
changing the design of the auction from a ``price-discriminating''
auction to a uniform or single-price auction. See Air Pollution:
Allowance Trading Offers an Opportunity to Reduce Emissions at Less
Cost, GAO/RCED-95-30 (December 1994). A price-discriminating auction is
an auction in which all bids are ranked, beginning with the highest
dollar amount, and each winning bidder pays what he or she bids until
all allowances are sold. Such a design produces a range of winning
prices. In a uniform or single-price auction, bids are ranked the same
way, but all winning bidders pay only the market-clearing price. The
market clearing price is the price of the last available allowance that
is sold.
Section 416(d)(2) of the Act provides that ``the auctioned
allowances shall be allocated and sold on the basis of bid price,
starting with the highest-priced bid and continuing until all
allowances for sale at such auction have been allocated'' 42 U.S.C.
7651o(d)(2). EPA has interpreted this language to require auction sales
based on bid price (i.e., a price-discriminating auction where bidders
pay what they bid) as opposed to auction sales based on a single,
market-clearing price paid by all of the winning bidders, as proposed
by the GAO report. 56 FR 23744, 23746 (May 23, 1991) (proposed rule);
see 56 FR 65592, 65603 (December 17, 1991) (final
[[Page 28997]]
rule). EPA is considering whether the statutory language provides
flexibility to change to a single-price auction. A single-price auction
may have the benefit of producing a less confusing price signal for
utilities participating in each auction since there will be only one
winning price, the clearing price.
In the first three auctions, the gap between the average price paid
(the price utilities received for the sale of their allowances withheld
for auction) and the market-clearing price has narrowed. In 1993, the
average price paid in the spot auction was $156 and the market-clearing
or lowest successful bid was $131. In 1994, the average price paid in
the spot auction was $159 and the market-clearing price was $150. In
1995, the average price paid in the spot auction was $132 and the
market-clearing price was $130. In 1996, the average price paid in the
spot auction was $68 and the market-clearing price was $66. Therefore,
over the course of four auctions, the gap between the average spot
price paid and the market-clearing price has narrowed from $25 in 1993
to $9 in 1994 and to $2 in 1995 and 1996. This narrowing of the gap may
indicate that the current format does not impede the market, but the
Agency would like to receive comments on how the auction design affects
allowance market participants.
EPA also is seeking comment on whether the timing of the auctions
should be changed from ``no later than March 31 of each year'' (40 CFR
73.70(b)) to no later than October 31 of every year. Aside from price
discovery, one of the initial purposes of the allowance auctions was to
provide a source of allowances to new units. In the existing
regulations, EPA timed the auction to precede the direct sale, which
begins on June 1 each year (56 FR 65598). This reason for the timing of
the auction may no longer be applicable. No direct sales have actually
been made, and EPA is eliminating the direct sale program and the
related IPP written guarantee. By October 31, new (or existing) units
will have three quarters of emissions data and therefore will have a
better idea of their allowance needs for the year and be better able to
use the auction in planning for program compliance. Furthermore,
auctions completed by October 31 would allow utilities to freely offer
their allowances in the auctions and avoid conflicting with the
transfer restrictions that are imposed after the allowance transfer
deadline has passed and before the compliance deductions have been
completed. Sec. 73.50(b)(2).
EPA would also like comment on whether additional allowances
offered by utilities to be sold in EPA auctions must have a minimum
price in whole dollars. Under 40 CFR Sec. 73.70, authorized account
representatives (AARS) may offer allowances for sale at EPA auctions
and must notify EPA of their minimum price in whole dollars. All bids
in previous EPA auctions were required to be in whole dollars.
Beginning with the March 1996 auction, bids were accepted in increments
of $0.01. Since bids are now accepted in increments other than whole
dollars, EPA is seeking comment on whether or not allowance offers
should also be accepted with unrestricted minimum prices.
Electronic Transfer
Title IV states that allowance transfers are effective when
``written certification of the transfer, signed by a responsible
official of each party to the transfer, is received and recorded by''
EPA. 42 U.S.C. 7651b(b). Accordingly, EPA's current regulations require
that, to record an allowance transfer with EPA, parties must submit an
Allowance Transfer Form that includes ``signatures of the authorized
account representatives [AARS] of both the transferor and transferee
accounts.'' 40 CFR 73.50(b)(1)(ii). An Allowance Transfer Form also
lists the serial numbers of the allowances to be transferred. Once a
complete Allowance Transfer Form is submitted to the EPA, EPA records
the transfer in the Allowance Tracking System within 5 business days if
the transfer meets all applicable requirements.
In order to facilitate ``the orderly and competitive functioning of
the allowance system'' (42 U.S.C. 7651b(c)), EPA is investigating
methods for electronic submission of allowance transfers. This would
eliminate the need to mail the transfer forms between AARs and then to
EPA, allowing the transfer to be recorded more quickly and saving money
for the buyer and the seller. The most straightforward option for
submitting an electronic transfer is to allow the seller to submit the
transfer information. If allowances are transferred to the wrong
account or the incorrect number of allowances are transferred to the
correct buyer, these errors would be corrected through EPA's normal
error correction procedure. Another option is to have both the buyer
and seller submit transfer forms, and if the transfer information on
the forms matches perfectly, EPA processes the transfer. This raises a
potential problem if there are the slightest differences in the
transfer information on the two forms, since the computer will reject
the transfer. A third option is to have the seller submit the transfer
form to EPA and have the buyer approve it prior to processing by EPA.
This option may be more difficult to implement using existing software
that has been developed for transferring information electronically,
since that software does not provide ``signoff'' capability.
EPA is interested in learning whether participants in the allowance
market would like to forego the requirement that both AARs ``sign'' a
single transfer form in order to implement the electronic transfer
capability. Comment is also requested on the three options described
above and any other options and how such options can be implemented
consistent with statutory requirements.
* * * * *
All written comments will be considered carefully in determining
whether a subsequent proposal to change future auctions and to allow
for electronic transfers will be prepared.
Administrative Requirements
A. Executive Order 12866
Under Executive Order 12866, 58 FR 51735 (October 4, 1993), the
Administrator must determine whether the regulatory action is
``significant'' and therefore subject to Office of Management and
Budget (OMB) review and the requirements of the Executive Order. The
Order defines ``significant regulatory action'' as one that is likely
to result in a rule that may:
(1) have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local or tribal governments or communities;
(2) create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof, or
(4) raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
Pursuant to the terms of Executive Order 12866, it has been
determined that this notice is a ``significant regulatory action''
because the notice seems to raise novel legal or policy issues. As
such, this action was submitted to OMB for review. Any written comments
from OMB to EPA, any written EPA responses to those comments, and any
changes made in response to OMB suggestions or
[[Page 28998]]
recommendations are included in the docket. The docket is available for
public inspection at the EPA's Air Docket Section, which is listed in
the ADDRESSES section of this preamble.
B. Miscellaneous
Requirements under the Unfunded Mandates Act, Paperwork Reduction
Act, and Regulatory Flexibility Act will be addressed if and when the
Agency issues a proposed rule based on the comments received in this
advanced notice of proposed rulemaking.
Dated: May 24, 1996.
Carol M. Browner,
Administrator, U.S. Environmental Protection Agency
[FR Doc. 96-14112 Filed 6-5-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-14099 Miscellaneous and General Requirements
[Federal Register Volume 61, Number 110 (Thursday, June 6, 1996)]
[Proposed Rules]
[Pages 28797-28798]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14099]
========================================================================
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. 110 / Thursday, June 6, 1996 /
Proposed Rules
[[Page 28797]]
FEDERAL LABOR RELATIONS AUTHORITY
5 CFR Part 2429
Miscellaneous and General Requirements
AGENCY: Federal Labor Relations Authority.
ACTION: Notice of opportunity to provide comments.
-----------------------------------------------------------------------
SUMMARY: The FLRA is considering revising its regulations to permit the
filing and/or service of documents by facsimile transmissions. The FLRA
is also considering revising the method of determining the date of
filing and service of documents by private delivery services. By
separate notice published today, the Federal Service Impasses Panel, an
entity within the FLRA, is proposing to revise its regulations to,
among other things, permit filing and service of documents by facsimile
transmissions.
DATES: Written comments in response to this notice will be considered
if received by close of business on July 8, 1996. Extensions of time
will not be granted.
ADDRESSES: Mail or deliver written comments to the FLRA, 607 14th
Street, NW., Suite 415, Washington, D.C. 20424-0001. Copies of all
written comments will be available for inspection and photocopying
between 8 a.m. and 5 p.m., Monday through Friday, at the above address.
FOR FURTHER INFORMATION CONTACT: James H. Adams, Acting Director, Case
Control Office, FLRA, 607 14th Street, NW., Suite 415, Washington, D.C.
20424-0001, Telephone: FTS or Commercial (202) 482-6540.
SUPPLEMENTARY INFORMATION: To assist the Authority, the Office of
Administrative Law Judges, the Office of the General Counsel, and the
Regional Offices (collectively referred to herein as the ``FLRA'') in
determining whether to revise the FLRA's regulations governing the
filing and/or service of documents, the FLRA invites responses to the
following questions. Questions 1 through 9 concern facsimile
transmissions; question 10 concerns private delivery services.
It appears that amending the FLRA's regulations to permit the
filing and/or service of documents by facsimile transmissions may be
desirable to parties attempting to achieve timely filings and service.
However, allowing filing and service by facsimile raises questions
relating to such matters as how to determine (and resolve disputes
over) the timeliness of filing and/or service; potential difficulties
caused by transmission of lengthy documents and/or attachments; and the
current requirement that the parties file with the Authority an
original and four copies of all documents and attachments. In
considering matters such as these, the FLRA invites the views of all
interested persons on any or all of the following questions.
1. The number of pages transmitted by facsimile may exceed the
capacity of the receiving facsimile equipment, and the time necessary
to receive facsimile transmissions of lengthy documents may, in turn,
affect others' abilities to use that equipment to complete filings and/
or service. In view of these technical concerns, should there be a
limitation on the number of pages that may be transmitted to the FLRA
and parties by facsimile? If so, what limitations?
2. In addition, or as alternatives, to any page limitations, should
the filing and/or service of documents by facsimile transmissions be
limited to particular types of cases or documents? For example:
a. Should filing and/or service by facsimile be limited to
documents that must be filed within short time limits and that usually
are not lengthy, such as requests for extensions of time and motions
for reconsideration?
b. Should filing and/or service by facsimile be limited to cases
for which filing forms have been developed, such as unfair labor
practice charges and representation petitions?
3. Should attachments be permitted to be filed by facsimile? If
not, what should be the time limit for the filing of attachments after
filing of the main documents by facsimile?
4. What should be the requirements for establishing proof of filing
and/or service by facsimile?
5. In order to facilitate the successful transmission of documents
by facsimile by, for example, ensuring that the facsimile equipment
receiving the documents is functioning properly, should a party be
required to obtain ``permission to transmit'' from the FLRA or the
parties, as applicable, before filing and/or service? If so, what
should constitute proof of permission to file or serve by facsimile
transmission? What should be the consequences if permission to transmit
is denied?
6. What approach should be used to determine the date of service of
a document that is delayed because, for example, a facsimile machine at
the receiving office--either the FLRA or the receiving parties--is not
functioning properly or because the document is placed in a long queue?
Should applicable time limits be tolled or extended? What if the time
limit establishes jurisdiction?
7. What should be the procedure when a facsimile transmission is
incomplete?
8. Assuming that a ``hard copy'' of a document filed by facsimile
transmission is required, what should be the time limit for submitting
that copy?
9. Should the FLRA offices and/or the offices of the parties on
whom documents are served accept facsimile transmissions on a 24-hour
basis or only during regular office hours? If the answer is a 24-hour
basis, how should the timeliness of documents be determined when a
facsimile transmission is not completed because problems occur, such as
an equipment malfunction, outside regular office hours?
10. Currently, the date of filing or service of a document that is
filed or served by private delivery service is the date the document is
received by the FLRA or the party served. Should the FLRA revise its
regulations to provide that the date of filing and/or service of
documents that are filed by private delivery service is the date the
document is deposited with the private delivery service? How would a
party establish proof of filing and/or service by private delivery
service?
In addition to the foregoing, please address any other concerns,
issues and matters that may arise as a result of revisions to the
regulations governing the filing of documents with the
[[Page 28798]]
Authority, the Office of Administrative Law Judges, the General
Counsel, and the Regional Offices and the service of documents on other
parties.
Dated: May 31, 1996.
For the FLRA.
James H. Adams,
Acting Director, Case Control Office.
[FR Doc. 96-14099 Filed 6-5-96; 8:45 am]
BILLING CODE 6727-01-P
Complete official Federal Register PDF
FR Doc. 96-14098 Federal Service Impasses Panel; General; Procedures of the Panel; Impasses Arising Pursuant to Agency Determinations Not to Establish or to Terminate Flexible or Compressed Work Schedules; Miscellaneous Requirements
[Federal Register Volume 61, Number 110 (Thursday, June 6, 1996)]
[Proposed Rules]
[Pages 28798-28803]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14098]
-----------------------------------------------------------------------
FEDERAL LABOR RELATIONS AUTHORITY
5 CFR Parts 2470, 2471, 2472, and 2473
Federal Service Impasses Panel; General; Procedures of the Panel;
Impasses Arising Pursuant to Agency Determinations Not to Establish or
to Terminate Flexible or Compressed Work Schedules; Miscellaneous
Requirements
AGENCY: Federal Service Impasses Panel, FLRA.
ACTION: Notice of proposed rulemaking with request for comments.
-----------------------------------------------------------------------
SUMMARY: The Federal Service Impasses Panel proposes to revise its
regulations to take advantage of existing technology and to make them
more easily understood by agencies, labor organizations, and
individuals. The proposed revisions will allow parties to file requests
for Panel assistance, and other documents, by facsimile transmission
and will generally reorganize and modify those portions of the rules
pertaining to filing and service. A proposed new section will establish
procedures by which a party to a Panel proceeding may seek to obtain a
subpena. These proposed revisions will make the regulations clearer and
more user-friendly and will provide quicker access to the Panel's
procedures. By separate notice published today, the Federal Labor
Relations Authority is providing interested persons with the
opportunity to submit written comments concerning, among other things,
contemplated revisions to the FLRA's regulations to permit the filing
and/or service of documents by facsimile transmissions.
DATES: Written comments in response to this notice will be considered
if received by close of business on July 8, 1996. Extensions of time
will not be granted.
ADDRESSES: Mail or deliver written comments to the Federal Service
Impasses Panel, 607 14th Street, NW., Suite 220, Washington, D.C.
20424-0001. Copies of all written comments will be available for
inspection and photocopying between 8 a.m. and 5 p.m., Monday through
Friday, at the above address.
FOR FURTHER INFORMATION CONTACT: Linda A. Lafferty, Executive Director,
Federal Service Impasses Panel, 607 14th Street, NW., Suite 220,
Washington, D.C. 20424-0001. Telephone (202) 482-6670.
SUPPLEMENTARY INFORMATION: The Federal Service Impasses Panel
established an internal work group to study and evaluate its
regulations. The following section-by-section analysis reflects
proposed revisions to Parts 2470--General; Part 2471--Procedures of the
Panel; and Part 2472--Impasses Arising Pursuant to Agency
Determinations Not to Establish or to Terminate Flexible or Compressed
Work Schedules. Following this analysis, an explanation of proposed
Part 2473-- Miscellaneous Requirements, which contains a new section on
subpenas, is provided.
Part 2470
Section 2470.1
A new last sentence has been added to reflect the Panel's
longstanding policy of encouraging parties to resolve disputes on terms
that are mutually agreeable without the need for Panel action.
Part 2471
Section 2471.2
A form is available for use in filing a request for assistance with
the Panel, but its use is not required, provided that the request
includes all of the information set forth in Sec. 2471.3. This provides
a filing party with the choice of using the prepared form or submitting
the required information in some other format. The Panel's address and
phone number are updated to reflect its current office location.
Section 2471.3
Requiring the filing party to provide the addresses, phone numbers,
and facsimile numbers of the parties to a dispute will facilitate
communication between the Panel and parties and will result in enhanced
customer service. The revision in paragraph (b)(4) reflects
developments in FLRA case law, set forth in Commander, Carswell Air
Force Base, Texas and American Federation of Government Employees,
Local 1364, 31 FLRA 620 (1988), which allows the Panel to resolve duty-
to-bargain questions under certain circumstances.
Section 2471.4
The Panel's address and phone number are updated to reflect its
current office location. The Panel's facsimile number is provided
consistent with the changes described in Sec. 2471.5 which allow filing
of requests for assistance, and other documents, by this method.
Section 2471.5
The Panel recognizes that the use of facsimile systems have become
more prevalent in both the private and public sectors and that private
delivery services are commonly used as an alternative to the United
States Postal Service. After careful consideration, it has been
determined that allowing the limited use of these methods of
communication will provide parties with quicker access to the Panel's
services.
Paragraph (a) establishes the requirements for filing and service
of requests for Panel assistance and requests for approval of a binding
arbitration procedure. Paragraph (a)(1) allows a filing party to submit
a request by a variety of methods, including facsimile transmission and
private delivery service. A party filing a request by facsimile
transmission must submit an original for the Panel's records, but
failure to do so shall not affect the validity of the filing, if
otherwise proper. Paragraph (a)(2), which establishes service
requirements, provides the same variety of methods as paragraph (a)(1),
except that the filing party may use facsimile transmission only with
the permission of the person receiving the request.
Paragraph (b) establishes the requirements for filing and service
of documents other than requests for assistance. Paragraphs (b)(1) and
(b)(2) provide for filing and service of documents with the Panel by
the same methods established in paragraph (a)(1) and (a)(2) except that
advance permission is required before a document other than a request
may be filed with the Panel by facsimile transmission.
Paragraph (d) establishes a method for determining the date of
service for documents served by private delivery service or by
facsimile transmission.
Paragraph (e) establishes a revised format for documents filed with
the Panel; it also states affirmatively that nonconforming documents
may, at the Panel's discretion, be rejected.
Section 2471.6
Paragraph (a)(2) establishes that when the Panel asserts
jurisdiction, it may recommend procedures for impasse resolution and/or
directly assist the parties through whatever methods the Panel
considers appropriate. The most common procedures used by the Panel are
now listed.
[[Page 28799]]
Paragraph (b) provides a streamlined approach for handling requests
for approval of a binding arbitration procedure. All requests filed
under this section will now be approved or disapproved normally within
5 workdays.
Section 2471.7
The amended wording clarifies that a notice of hearing is issued to
the parties only when the Panel appoints one or more of its designees
to conduct a factfinding hearing. Such a notice will not be issued when
a hearing is conducted by a private factfinder.
Section 2471.8
The heading is changed slightly to clarify that the provisions of
the section apply to factfinding, and other, hearings.
Section 2471.9
Since the reports and recommendations referred to in Sec. 2471.7,
2471.8, and 2471.9 are issued following a factfinding hearing, the
first sentence of paragraph (a) is amended accordingly.
Part 2472
Section 2472.2
Former paragraphs (d) through (n) are renumbered to become new
paragraphs (e) through (o). A new paragraph (d) is added which defines
``duly authorized delegatee'' as ``an official who has been delegated
the authority to act for the head of the agency in the matter
concerned.'' Since the amended wording of Sec. 2472.4(a)(6) includes
this term, its definition is provided in this section for clarity.
New paragraph (j) is amended by eliminating the words ``arbitration
hearing'' from the definition of the term ``hearing.'' Under 5 U.S.C.
6131, only the Panel, acting as a body, is authorized to decide
impasses arising from an agency determination not to establish, or to
terminate, a flexible or compressed work schedule. Since arbitration is
inconsistent with this statutory requirement, it is not an available
procedural option. The reference, therefore, is deleted.
Section 2472.3
A form is available for use in filing a request for assistance with
the Panel in cases arising under the Federal Employees Flexible and
Compressed Work Schedules Act, but its use is not required, provided
that the request includes all of the information set forth in
Sec. 2472.4. This provides a filing party with the choice of using the
prepared form or submitting the required information in some other
format. The Panel's address and phone number are updated to reflect its
current office location.
Section 2472.4
Consistent with the changes to Sec. 2471.3, paragraph (a)(1)
requires the filing party to provide the addresses, phone numbers, and
facsimile numbers of the parties to a dispute.
The amendment to paragraph (a)(6) reflects the fact that in
considering impasses under 5 U.S.C. 6131, the Panel is charged with
deciding whether an agency-head finding, that a flexible or compressed
work schedule has had, or would have, adverse agency impact, is
supported by evidence. This amendment requires the filing party to
submit the finding as part of the initial request. In addition,
although 5 U.S.C. 6131 identifies ``the head of an agency'' as the
individual responsible for making the finding, it is the Panel's
experience that in most cases, the finding is actually made by some
other individual. This being the case, evidence of a specific
delegation of authority is required in order to comply with the terms
of 5 U.S.C. 6131.
Section 2472.5
These changes are consistent with those set forth in Sec. 2471.4.
The Panel's address and phone number are updated to reflect its current
office location. The Panel's facsimile number is provided consistent
with the changes described in new Sec. 2472.6 which allow filing of
requests, and other documents, by this method.
Section 2472.6
This section is eliminated because many parties were confused as to
their obligations under it. Since new Sec. 2472.7 provides for
investigation of requests filed under this part, this section is
unnecessary. Former Sec. 2472.7 through 2472.12 are renumbered to
become Sec. 2472.6 through 2472.11, respectively.
New Sec. 2472.6 (a) and (b) establish the same methods of filing
and completing service as described in Sec. 2471.5 (a) and (b) except
that no reference is made to service upon a mediation service, since
under this part, mediation is not a prerequisite to seeking Panel
assistance. Consistent with the amendments to Sec. 2471.5, paragraph
(d) establishes a method for determining the date of service for
documents served by private delivery service or by facsimile
transmission, and paragraph (e) establishes a revised format for
documents filed with the Panel. Paragraph (f) is revised to clarify
that a request filed under this part must be perfected before any Panel
action will be taken.
Section 2472.7
Paragraph (b) is revised to set forth a more expansive list of
procedures that are used by the Panel when considering impasses filed
under this part.
Section 2472.8
Consistent with the amended wording of Sec. 2471.7, this section
clarifies that a notice of hearing is issued to the parties only when
the Panel appoints one or more of its designees to conduct a
factfinding hearing. Such a notice will not be issued when a hearing is
conducted by a private factfinder.
Section 2472.10
This section is modified to reflect the fact that reports are
issued after factfinding hearings and not after informal conferences.
This being the case, the reference to informal conferences is deleted.
Section 2472.11
Paragraph (b) is modified to clarify that if the finding on which
an agency determination under 5 U.S.C. 6131(c)(2) or (c)(3) is based is
not supported by evidence that the schedule is likely to cause, or has
caused, an adverse agency impact, the Panel shall take whatever action
is appropriate. This revision clarifies that the Panel has broad
discretion in resolving impasses, as described in 5 U.S.C. 7119.
Part 2473
Section 2473.1
This section is added to establish a procedure whereby a party may
seek to obtain a subpena requiring the attendance and testimony of
witnesses at a hearing and the production of documentary or other
evidence. Paragraph (a) identifies those individuals who may issue a
subpena. Paragraph (b) describes the circumstances where no subpena is
necessary. Paragraph (c) establishes the method and time limits for
submitting a request to the Executive Director or appropriate presiding
official during a hearing. Paragraph (d) prescribes the contents of the
request; sets forth a standard for the granting, or denying, of a
request; and establishes service requirements. Paragraph (e) provides a
process for challenging a subpena through a petition to revoke.
Paragraph (f) deals with enforcement of a subpena, and paragraph (g)
establishes additional filing and service requirements. Paragraph (h)
provides for witness fees and expenses.
[[Page 28800]]
List of Subjects
5 CFR Part 2470
Government employees, Labor-management relations.
5 CFR Parts 2471, 2472, and 2473
Administrative practice and procedure, Government employees, Labor-
management relations.
For the reasons set forth in the preamble, the Federal Service
Impasses Panel proposes to amend 5 CFR Ch. XIV, Parts 2470, 2471, and
2472, and add 5 CFR Ch. XIV, Part 2473, as follows:
PART 2470--GENERAL
1. The authority citation for Part 2470 continues to read as
follows:
Authority: 5 U.S.C. 7119, 7134.
2. In Sec. 2470.1, a new last sentence is added to read as follows:
Sec. 2470.1 Purpose.
* * * It is the policy of the Panel to encourage labor and
management to resolve disputes on terms that are mutually agreeable at
any stage of the Panel's procedures.
PART 2471--PROCEDURES OF THE PANEL
3. The authority citation for Part 2471 continues to read as
follows:
Authority: 5 U.S.C. 7119, 7134.
4. Section 2471.2 is revised to read as follows:
Sec. 2471.2 Request form.
A form is available for use by the parties in filing a request for
consideration of an impasse or approval of a binding arbitration
procedure. Copies are available from the Office of the Executive
Director, Federal Service Impasses Panel, 607 14th Street, NW., Suite
220, Washington, D.C. 20424-0001. Telephone (202) 482-6670. Use of the
form is not required provided that the request includes all of the
information set forth in Sec. 2471.3.
5. Section 2471.3 is amended by revising paragraphs (a)(1), (b)(1),
and (b)(4) to read as follows:
Sec. 2471.3 Content of request.
(a) * * *
(1) Identification of the parties and individuals authorized to act
on their behalf, including their addresses, telephone numbers, and
facsimile numbers;
* * * * *
(b) * * *
(1) Identification of the parties and individuals authorized to act
on their behalf, including their addresses, telephone numbers, and
facsimile numbers;
* * * * *
(4) Statement as to whether any of the proposals to be submitted to
the arbitrator contain questions concerning the duty to bargain and a
statement of each party's position concerning such questions; and
* * * * *
6. Section 2471.4 is revised to read as follows:
Sec. 2471.4 Where to file.
Requests to the Panel provided for in this part, and inquiries or
correspondence on the status of impasses or other related matters,
should be addressed to the Executive Director, Federal Service Impasses
Panel, 607 14th Street, NW., Suite 220, Washington, D.C. 20424-0001.
Telephone (202) 482-6670. Facsimile (202) 482-6674.
7. Section 2471.5 is amended by revising the section heading and
paragraphs (a), (b), (d), and (e) to read as follows:
Sec. 2471.5 Filing and service.
(a) Filing and service of request. (1) Any party submitting a
request for Panel consideration of an impasse or a request for approval
of a binding arbitration procedure shall file an original and one copy
with the Panel. A clean copy may be submitted for the original.
Requests may be submitted in person or by registered mail, certified
mail, regular mail, or private delivery service. Requests may also be
accepted by the Panel if transmitted to the facsimile machine of its
office. A party submitting a request by facsimile shall also file an
original for the Panel's records, but failure to do so shall not affect
the validity of the filing by facsimile, if otherwise proper.
(2) The party submitting the request shall serve a copy of such
request upon all counsel of record or other designated
representative(s) of parties, upon parties not so represented, and upon
any mediation service which may have been utilized. Service upon such
counsel or representative shall constitute service upon the party, but
a copy also shall be transmitted to the party. Service of a request may
be made in person or by registered mail, certified mail, regular mail,
or private delivery service. With the permission of the person
receiving the request, service may be made by facsimile transmission or
by any other agreed-upon method. When the Panel acts on a request from
the Federal Mediation and Conciliation Service or acts on a request
from the Executive Director under Sec. 2471.1(a), it will notify the
parties to the dispute, their counsel of record, if any, and any
mediation service which may have been utilized.
(b) Filing and service of other documents. (1) Any party submitting
a response to, or other document in connection with, a request for
Panel consideration of an impasse or a request for approval of a
binding arbitration procedure shall file an original and one copy with
the Panel. A clean copy may be submitted for the original. Documents
may be submitted to the Panel in person or by registered mail,
certified mail, regular mail, or private delivery service. Documents
may also be accepted by the Panel if transmitted to the facsimile
machine of its office, but only with advance permission, which may be
obtained by telephone. A party submitting a document by facsimile shall
also file an original for the Panel's records, but failure to do so
shall not affect the validity of the submission, if otherwise proper.
(2) The party submitting the document shall serve a copy of such
request upon all counsel of record or other designated
representative(s) of parties, or upon parties not so represented.
Service upon such counsel or representative shall constitute service
upon the party, but a copy also shall be transmitted to the party.
Service of a document may be made in person or by registered mail,
certified mail, regular mail, or private delivery service. With the
permission of the person receiving the document, service may be made by
facsimile transmission or by any other agreed-upon method.
* * * * *
(d) The date of service or date served shall be the day when the
matter served, if properly addressed, is deposited in the U.S. mail or
is delivered in person or is deposited with a private delivery service
that will provide a record showing the date the document was tendered
to the delivery service. Where service is made by facsimile
transmission, the date of service shall be the date on which
transmission is received.
(e) Unless otherwise provided by the Panel or its designated
representatives, any document or paper filed with the Panel under this
section, together with any enclosure filed therewith, shall be
typewritten on 8\1/2\ x 11 inch plain white paper, shall have margins
no less than 1 inch on each side, shall be in typeface no smaller than
10 characters per inch, and shall be numbered consecutively.
Nonconforming papers may, at the Panel's discretion, be rejected.
[[Page 28801]]
8. Section 2471.6 is amended by revising the section heading and
paragraphs (a)(2) and (b) to read as follows:
Sec. 2471.6 Investigation of request; Panel procedures; approval of
binding arbitration.
(a) * * *
(1) * * *
(2) Assert jurisdiction and--
(i) Recommend to the parties procedures for the resolution of the
impasse; and/or
(ii) Assist the parties in resolving the impasse through whatever
methods and procedures the Panel considers appropriate. The procedures
utilized by the Panel may include, but are not limited to: informal
conferences with a Panel designee; factfinding (by a Panel designee or
a private factfinder); written submissions; show cause orders; oral
presentations to the Panel; and arbitration or mediation-arbitration
(by a Panel designee or a private arbitrator). Following procedures
used by the Panel, it may issue a report to the parties containing
recommendations for settlement.
(b) Upon receipt of a request for approval of a binding arbitration
procedure, the Panel or its designee will promptly conduct an
investigation, consulting when necessary with the parties and with any
mediation service utilized. After due consideration, the Panel shall
promptly approve or disapprove the request, normally within five (5)
workdays.
9. The section heading and the first sentence of Sec. 2471.7 are
revised and paragraphs (b) (1) through (6) are redesignated as (a)
through (b), respectively. The revisions read as follows:
Sec. 2471.7 Preliminary factfinding procedures.
When the Panel determines that a factfinding hearing is necessary
under Sec. 2471.6, and it appoints one or more of its designees to
conduct such hearing, it will issue and serve upon each of the parties
a notice of hearing and a notice of prehearing conference, if any.
* * * * *
10. The section heading of Sec. 2471.8 is revised to read as
follows:
Sec. 2471.8 Conduct of factfinding and other hearings; prehearing
conferences.
* * * * *
11. Section 2471.9 is amended by revising paragraph (a) to read as
follows:
Sec. 2471.9 Report and recommendations.
(a) When a report is issued after a factfinding hearing is
conducted pursuant to Secs. 2471.7 and 2471.8, it normally shall be in
writing and, when authorized by the Panel, shall contain
recommendations.
* * * * *
PART 2472--IMPASSES ARISING PURSUANT TO AGENCY DETERMINATIONS NOT
TO ESTABLISH OR TO TERMINATE FLEXIBLE OR COMPRESSED WORK SCHEDULES
12. The authority citation for Part 2472 is revised to read as
follows:
Authority: 5 U.S.C. 6131.
13. In Sec. 2472.2, paragraphs (d) through (n) are redesignated as
paragraphs (e) through (o), new paragraph (d) is added, and paragraph
(j) is revised to read as follows:
Sec. 2472.2 Definitions.
* * * * *
(d) The term ``duly authorized delegatee'' means an official who
has been delegated the authority to act for the head of the agency in
the matter concerned.
* * * * *
(j) The term ``hearing'' means a factfinding hearing or any other
hearing procedures deemed necessary to accomplish the purpose of 5
U.S.C. 6131.
* * * * *
14. Section 2472.3 is revised to read as follows:
Sec. 2472.3 Request for Panel consideration.
Either party, or the parties jointly, may request the Panel to
resolve an impasse resulting from an agency determination not to
establish or to terminate a flexible or compressed work schedule by
filing a request as hereinafter provided. A form is available for use
by the parties in filing a request with the Panel. Copies are available
from the Office of the Executive Director, Federal Service Impasses
Panel, 607 14th Street, NW., Suite 220, Washington, D.C. 20424-0001.
Telephone (202) 482-6670. Use of the form is not required provided that
the request includes all of the information set forth in Sec. 2472.4.
15. Section 2472.4 is amended by revising paragraphs (a)(1) and
(a)(6) to read as follows:
Sec. 2472.4 Content of request.
(a) * * *
(1) Identification of the parties and individuals authorized to act
on their behalf, including their addresses, telephone numbers, and
facsimile numbers;
* * * * *
(6) A copy of the agency's written determination and the finding on
which the determination is based, including, in a case where the
finding is made by a duly authorized delegatee, evidence of a specific
delegation of authority to make such a finding; and
* * * * *
16. Section 2472.5 is revised to read as follows:
Sec. 2472.5 Where to file.
Requests to the Panel provided for in these rules, and inquiries or
correspondence on the status of impasses or other related matters,
should be directed to the Executive Director, Federal Service Impasses
Panel, 607 14th Street, NW., Suite 220, Washington, D.C. 20424-0001.
Telephone (202) 482-6670. Facsimile (202) 482-6674.
17. Section 2472.6 is removed and Sec. 2472.7 through 2472.12 are
redesignated as Sec. 2472.6 through 2472.11, respectively.
18. Newly designated Sec. 2472.6 is amended by revising the section
heading and paragraphs (a), (b), (d), (e), and (f) to read as follows:
Sec. 2472.6 Filing and service.
(a) Filing and service of request. (1) Any party submitting a
request for Panel consideration of an impasse filed pursuant to
Sec. 2472.3 shall file an original and one copy with the Panel. A clean
copy may be submitted for the original. Requests may be submitted in
person or by registered mail, certified mail, regular mail, or private
delivery service. Requests will also be accepted by the Panel if
transmitted to the facsimile machine of its office. A party submitting
a request by facsimile shall also file an original for the Panel's
records, but failure to do so shall not affect the validity of the
filing by facsimile, if otherwise proper.
(2) The party submitting the request shall serve a copy of such
request upon all counsel of record or other designated
representative(s) of parties, and upon parties not so represented.
Service upon such counsel or representative shall constitute service
upon the party, but a copy also shall be transmitted to the party.
Service of a request may be made in person or by registered mail,
certified mail, regular mail, or private delivery service. With the
permission of the person receiving the request, service may be made by
facsimile transmission or by any other agreed-upon method.
(b) Filing and service of other documents. (1) Any party submitting
a response to, or other document in connection with, a request for
Panel consideration of an impasse filed pursuant to Sec. 2472.3 shall
file an original and one copy with the Panel. A
[[Page 28802]]
clean copy may be submitted for the original. Documents may be
submitted to the Panel in person or by registered mail, certified mail,
regular mail, or private delivery service. Documents may also be
accepted by the Panel if transmitted to the facsimile machine of its
office, but only with advance permission, which may be obtained by
telephone. A party submitting a document by facsimile shall also file
an original for the Panel's records, but failure to do so shall not
affect the validity of the submission, if otherwise proper.
(2) The party submitting the document shall serve a copy of such
request upon all counsel of record or other designated
representative(s) of parties, or upon parties not so represented.
Service upon such counsel or representative shall constitute service
upon the party, but a copy also shall be transmitted to the party.
Service of a document may be made in person or by registered mail,
certified mail, regular mail, or private delivery service. With the
permission of the person receiving the document, service may be made by
facsimile transmission or by any other agreed-upon method.
* * * * *
(d) The date of service or date served shall be the day when the
matter served, if properly addressed, is deposited in the U.S. mail, is
delivered in person, or is deposited with a private delivery service
that will provide a record showing the date the document was tendered
to the delivery service. Where service is made by facsimile
transmission, the date of service shall be the date on which
transmission is received.
(e) Unless otherwise provided by the Panel or its designated
representatives, any document or paper filed with the Panel under this
part, together with any enclosure filed therewith, shall be typewritten
on 8\1/2\ x 11 inch plain white paper, shall have margins no less than
1 inch on each side, shall be in typeface no smaller than 10 characters
per inch, and shall be numbered consecutively. Nonconforming papers
may, at the Panel's discretion, be rejected.
(f) An impasse arising pursuant to section 6131(c) (2) or (3) of
the Act will not be considered to be filed, and no Panel action will be
taken, until the party initiating the request has complied with
Secs. 2472.4, 2472.5, of this section.
19. Newly designated Sec. 2472.7 is amended by revising paragraph
(b) to read as follows:
Sec. 2472.7 Investigation of request; Panel assistance.
* * * * *
(b) The procedures utilized by the Panel shall afford the parties
an opportunity to present their positions, including supporting
evidence and arguments orally and/or in writing. They include, but are
not limited to: informal conferences with a Panel designee; factfinding
(by a Panel designee or a private factfinder); written submissions;
show cause orders; and oral presentations to the Panel.
20. Newly designated Sec. 2472.8 is revised to read as follows:
Sec. 2472.8 Preliminary hearing procedures.
When the Panel determines that a hearing shall be held, and it
appoints one or more of its designees to conduct such a hearing, it
will issue and serve upon each of the parties a notice of hearing and a
notice of prehearing conference, if any. The notice will state:
(a) The names of the parties to the dispute;
(b) The date, time, place, type, and purpose of the hearing;
(c) The date, time, place, and purpose of the prehearing
conference, if any;
(d) The name of the designated representative(s) appointed by the
Panel;
(e) The issue(s) to be resolved; and
(f) The method, if any, by which the hearing shall be transcribed.
21. Newly designated Sec. 2472.10 is revised to read as follows:
Sec. 2472.10 Reports.
When a report is issued after a hearing conducted pursuant to
Sec. 2472.8 and 2472.9, it normally shall be in writing and shall be
submitted to the Panel, with a copy to each party, within a period
normally not to exceed 30 calendar days after the close of the hearing
and receipt of briefs, if any.
22. In newly designated Sec. 2472.11, the introductory text of
paragraph (a) and paragraph (b) are revised to read as follows:
Sec. 2472.11 Final action by the Panel.
(a) After due consideration of the parties' positions, evidence,
and arguments, including any report submitted in accordance with
Sec. 2472.10, the Panel shall take final action in favor of the
agency's determination if:
* * * * *
(b) If the finding on which an agency determination under 5 U.S.C.
6131(c)(2) or (c)(3) is based is not supported by evidence that the
schedule is likely to cause or has caused an adverse agency impact, the
Panel shall take whatever final action is appropriate.
* * * * *
PART 2473--MISCELLANEOUS REQUIREMENTS
23. Part 2473 is added to read as follows:
Sec.
2473.1 Subpenas.
Authority: 5 U.S.C. 7119, 7134.
Sec. 2473.1 Subpenas.
(a) Any member of the Panel, the Executive Director, or other
person designated by the Panel, may issue subpenas requiring the
attendance and testimony of witnesses and the production of documentary
or other evidence. However, no subpena shall be issued under this
section which requires the disclosure of intramanagement guidance,
advice, counsel, or training within an agency or between an agency and
the Office of Personnel Management.
(b) Where the parties are in agreement that the appearance of
witnesses or the production of documents is necessary, and such
witnesses agree to appear, no such subpena need be sought.
(c) A request for a subpena by any person, as defined in 5 U.S.C.
7103(a)(1), shall be in writing and filed with the Executive Director,
not less than fifteen (15) days prior to the opening of a hearing, or
with the appropriate presiding official(s) during the hearing.
(d) All requests shall name and identify the witnesses or documents
sought, and state the reasons therefor. The Panel, Executive Director,
or any other person designated by the Panel, as appropriate, shall
grant the request upon the determination that the testimony or
documents appear to be necessary to the matters under consideration and
the request describes with sufficient particularity the documents
sought. Service of an approved subpoena is the responsibility of the
party on whose behalf the subpoena was issued. The subpoena shall show
on its face the name and address of the party on whose behalf the
subpoena was issued.
(e) Any person served with a subpoena who does not intend to comply
shall within (5) days after the date of service of the subpoena upon
such person, petition in writing to revoke the subpoena. A copy of any
petition to revoke a subpoena shall be served on the party on whose
behalf the subpoena was issued. Such petition to revoke, if made prior
to the hearing, and a written statement of service, shall be filed with
the Executive Director. A petition to revoke a subpoena filed during
the hearing, and a written statement of service shall be filed with
[[Page 28803]]
the appropriate presiding official(s). The Executive Director, or the
appropriate presiding official(s) will, as a matter of course, cause a
copy of the petition to revoke to be served on the party on whose
behalf the subpoena was issued, but shall not be deemed to assume
responsibility for such service. The Panel, Executive Director, or any
other person designated by the Panel, as appropriate, shall revoke the
subpoena if the evidence the production of which is required does not
relate to any matter under consideration in the proceedings, or the
subpoena does not describe with sufficient particularity the evidence
the production of which is required, or if for any other reason
sufficient in law the subpoena is invalid. The Panel, Executive
Director, or any other person designated by the Panel, as appropriate,
shall make a simple statement of procedural or other ground for the
ruling on the petition to revoke. The petition to revoke, any answer
thereto, and any ruling thereon shall not become part of the official
record except upon the request of the party aggrieved by the ruling.
(f) Upon the failure of any person to comply with a subpoena
issued, upon the request of any party to the proceeding, the Solicitor
of the FLRA shall, on behalf of such party, institute proceedings in
the appropriate district court for the enforcement thereof, unless, in
the judgment of the Solicitor of the FLRA, the enforcement of such
subpoena would be inconsistent with law and the policies of the Federal
Service Labor-Management Relations Statute. The Solicitor of the FLRA
shall not be deemed thereby to have assumed responsibility for the
effective prosecution of the same before the court thereafter.
(g) All papers submitted to the Executive Director under this
section shall be filed in duplicate, along with a statement of service
showing that a copy has been served on the other party to the dispute.
(h)(1) Witnesses (whether appearing voluntarily or under a
subpoena) shall be paid the fee and mileage allowances which are paid
subpoenaed witnesses in the courts of the United States: Provided, that
any witness who is employed by the Federal Government shall not be
entitled to receive witness fees in addition to compensation received
in conjunction with official time granted for such participation,
including necessary travel time, as occurs during the employee's
regular work hours and when the employee would otherwise be in a work
or paid leave status.
(2) Witness fees and mileage allowances shall be paid by the party
at whose instance the witnesses appear except when the witness receives
compensation in conjunction with official time as described in
paragraph (h)(1) of this section.
Dated: May 31, 1996.
By direction of the Panel.
Linda A. Lafferty,
Executive Director, Federal Service Impasses Panel.
[FR Doc. 96-14098 Filed 6-5-96; 8:45 am]
BILLING CODE 6727-01-P
Complete official Federal Register PDF
FR Doc. 96-14090 Safety Standards Fire Protection in Shipyard Employment
[Federal Register Volume 61, Number 110 (Thursday, June 6, 1996)]
[Proposed Rules]
[Pages 28824-28829]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14090]
=======================================================================
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1915
[Docket No. S-051]
RIN 1218-AB51
Safety Standards Fire Protection in Shipyard Employment
AGENCY: Occupational Safety and Health Administration (OSHA), U.S.
Department of Labor.
ACTION: Notice of Intent to Form Negotiated Rulemaking Advisory
Committee to Develop a Proposal Rule on Fire Protection in Shipyard
Employment.
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SUMMARY: OSHA announces its intent to establish a Fire Protection in
Shipyard Employment Negotiated Rulemaking Advisory Committee (the
``Committee''), under the Federal Advisory Committee Act (FACA) and the
Negotiated Rulemaking Act (NRA), to negotiate issues associated with
the development of a Notice of Proposed Rulemaking to regulate fire
hazards in shipyard employment. The Committee will include
representatives of the parties interested in, or affected by, the
outcome of the proposed rule. OSHA also solicits interested parties to
submit their nominations for membership or requests for representation,
on the Committee.
DATES: OSHA must receive written comments and requests for membership
or representation by July 8, 1996.
ADDRESSES: Written comments should state: OSHA Docket No. S-051 and
should be sent, in quadruplicate, to the following address: OSHA Docket
Office, Rm N-2625, 200 Constitution Ave. N.W., Washington, D.C. 20210;
Telephone (202) 219-7894.
Requests or recommendations for membership or representation on the
Committee should be sent to: OSHA, Office of Maritime Standards, Room
N-3621, 200 Constitution Avenue, N.W., Washington, D.C. 20210. Phone
(202) 219-7234, fax (202) 219-7477.
FOR FURTHER INFORMATION CONTACT: Ann Cyr, Acting Director; OSHA, Office
of Information and Consumer Affairs, Room N-3647, U.S. Department of
Labor; 200 Constitution Avenue, N.W.; Washington, D.C., 20210;
Telephone: (202) 219-8151.
SUPPLEMENTARY INFORMATION:
I. Background
Fire protection in shipyard employment has been regulated by OSHA's
general industry standards for fire protection, 29 CFR 1910.155 through
1910.165, Subpart L, and section (5)(a)(1), the General Duty Clause of
the OSH Act, which requires each employer to,
furnish to each of his employees employment and a place of
employment which are free from recognized hazards causing or likely
to cause death or serious physical harm.
The general industry standards primarily address landside shipyard
operations. The general industry standards in Subpart L address: fire
brigades; portable fire extinguishers; standpipe and hose systems;
automatic sprinkler systems; fixed extinguishing systems; fire
detection systems; and employee alarm systems.
Because no specific standards cover work performed on board vessels
and vessel sections, OSHA has used the General Duty Clause of the Act
to address fire safety hazards aboard vessels. When the General Duty
Clause is used, the Agency must determine how it can be applied. In
other words, OSHA must ascertain what the employer must do to protect
his or her employees from the hazards of fire and how the Agency can
make sure the employer is providing that protection. In these
situations, OSHA typically relies upon standards promulgated by other
branches of the Federal Government such as the Coast Guard, along with
guidelines developed by professional associations such as the National
Fire Protection Association, (NFPA), and the Marine Chemists
Association, (MCA) that have, in effect, become industry practice, to
set forth the hazards and feasible means of abatement. In an
enforcement action, the Agency would cite the employer for a violation
of section 5(a)(1) of the Act. To prove a violation of section 5(a)(1)
OSHA must show, among other things that a serious hazard is recognized
by the employer's industry or the employer and that there is a feasible
and useful method for abating the hazard. Although OSHA's enforcement
under the General Duty Clause has reduced the risk of fire on board
vessels, some risk remains.
The Agency believes a standard promulgated under section 6(b) of
the Act will more effectively reduce these risks. The OSH Act intends
that OSHA issue occupational safety standards to make clear what is
necessary to protect employees and to inform employers of their
specific obligations. In addition, a standard is more protective of
employees than an enforcement program based upon a general provision;
consequently, greater reduction of risks are achieved. Third,
[[Page 28825]]
because a standard would be much more specific than current
requirements, employers and employees are given more guidance in
carrying out the goal of protecting workers. Finally, use of the
General Duty Clause imposes a heavy litigation burden on OSHA. For all
these reasons, OSHA has concluded workers on board vessels need the
protection of an OSHA standard on fire protection.
Extending application of the current general industry standards to
all shipyard employment would not be appropriate for the following
reasons. First, most of the provisions in the general industry
standards have been in effect since 1980. They need to be reviewed and
revised to take into account technological advances that could affect
fire protection in shipyard employment. Secondly, shipyard employment
encompasses many tasks and work sites that are unique to the maritime
industry. Employers, labor representatives and professional and trade
associations have repeatedly asked OSHA to allow all shipyard
employment to be covered by the same standards. They point out that the
work situations found within shipyard employment have more in common
with each other than with those in general industry. They assert that
the hazards and methods of controlling the hazards are similar
throughout the shipyard. Finally, they say that because the work on
land and aboard the vessels is located within the same area and
performed by the same workforce, fire protection services are provided
by the same in-yard/plant or out-of-yard fire crews to all areas of
shipyard employment. They believe that allowing these crews to follow
the same standard will enable them to be more effective in their
prevention and response activities. OSHA agrees and has preliminarily
concluded that a single new standard addressing fire hazards for all
shipyard employment, on land and on board vessels, will provide the
best protection for employees.
In 1991, the Shipyard Employment Standards Advisory Committee
(SESAC) began work on regulating the hazard of fire for all shipyard
employment. SESAC was formed to provide OSHA with guidance in revising,
consolidating and modernizing the varying sets of regulation that were
being applied in the shipyard industry into what would ultimately
become a vertical standard for all shipyard employment. The SESAC
Subcommittee on Fire Protection, after reviewing pertinent federal
regulations and guidelines issued by professional associations, drafted
a shipyard employment fire protection standard. The draft was adopted
by SESAC and given to OSHA for its consideration. SESAC's draft, which
combines the materials they reviewed and includes comments from the
workgroup participants, sets forth many of the components necessary for
a comprehensive fire protection standard. However, because not all of
its provisions are written in regulatory language and because the
provisions do not address all of the issues that need to be considered
in an OSHA rulemaking, the draft cannot be proposed as it is written.
However, OSHA has concluded that the SESAC draft is an excellent
starting point for development of a fire protection standard for
shipyard employment. OSHA anticipates it will be a key resource for
participants in the rulemaking.
The Shipyard workgroup of the Maritime Advisory Committee on
Occupational Safety and Health (MACOSH) briefly discussed fire
protection and negotiated rulemaking at their September 1995, meeting
in New Orleans. Members urged OSHA to proceed with a fire protection
standard; with some members suggesting the Shipyard workgroup take up
fire protection issues if OSHA was unable to do a fire protection
negotiated rulemaking.
OSHA has decided to use the negotiated rulemaking (Neg/Reg process
to develop a proposed standard for fire protection covering all
shipyard employment. The most important reason for using Neg/Reg is
that the shipyard stakeholders from all sectors strongly support
consensual rulemaking efforts like negotiated regulation. OSHA believes
this process will be less adversarial than regular rulemaking and will
result in a proposal that will effectively protect employees.
The negotiated rulemaking effort described in this Notice will be
conducted in accordance with the Department of Labor's approved policy
on negotiated rulemaking. For further detail about the Department's
negotiated rulemaking policy, please consult the ``Notice of Policy of
Use of Negotiated Rulemaking Procedures by Agencies of the Department
of Labor'' published in the Federal Register on December 29, 1992 (57
FR 61925).
A. The Concept of Negotiated Rulemaking
Usually, OSHA develops a rulemaking proposal using staff and
consultant resources. The concerns of affected parties are made known
through various informal contacts, the circulation of a draft proposal
to known affected parties for their informal comment, through advance
notices of proposed rulemaking published in the Federal Register, or
formal consultation with an advisory committee such as the Maritime
Advisory Committee on Occupational Safety and Health (MACOSH). After
the notice of proposed rulemaking is published for comment, affected
parties, including the Agency, submit arguments and data supporting
their positions. All communications from affected parties are directed
to the Agency. In general, there is not much communication among
parties representing different interests, except during cross
examination conducted at a rulemaking hearing.
Many times, effective regulations have resulted from such a
process. However, as Congress noted in the Negotiated Rulemaking Act (5
U.S.C. 581) current rulemaking procedures may ``discourage the affected
parties from meeting and communicating with each other, and may cause
parties with different interests to assume conflicting and antagonistic
positions * * *'' (Sec. 2(2)). Congress also stated that ``adversarial
rulemaking deprives the affected parties and the public of the benefits
of face-to-face negotiations and cooperation in developing and reaching
agreement on a rule. It also deprives them of the benefits of shared
information, knowledge, expertise, and technical abilities possessed by
the affected parties.'' (Sec. 2(3)).
Using negotiated rulemaking to develop the proposed rule is
fundamentally different. Negotiated rulemaking is a process in which a
proposed rule is developed by a committee composed of representatives
of all those interests that will be significantly affected by the rule.
Decisions are made by consensus, which generally require concurrence
among the interests represented.
The process is started by the Agency's careful identification of
all interests potentially affected by the rulemaking under
consideration. To help in this identification process, the Agency
publishes a notice in the Federal Register, such as this one, which
identifies a preliminary list of interests and requests public comment
on that list.
Following receipt of the comments, the Agency establishes an
advisory committee representing these various interests to negotiate a
consensus on the terms of a proposed rule. Representation on the
committee may be direct, that is, each member represents a specific
interest, or may be indirect, through coalitions of parties formed for
this purpose. The Agency is a member of the
[[Page 28826]]
committee representing the Federal government's own set of interests.
The negotiated rulemaking (Neg/Reg) advisory committee is chaired
by a trained mediator, who facilitates the negotiation process. The
role of this mediator, also called a facilitator, is to apply proven
consensus building techniques to the OSHA advisory committee setting.
The many functions that he or she will perform are discussed below.
Once a Neg/Reg advisory committee reaches consensus on the
provisions of a proposed rule, the Agency, consistent with its legal
obligations, uses such consensus as the basis of its proposed rule, to
be published in the Federal Register. This provides the required public
notice and allows for a public comment period. Other participants and
other interested parties retain their rights to comment, participate in
an informal hearing (if requested) and judicial review. OSHA
anticipates, however, that the preproposal consensus agreed upon by
this Committee will effectively narrow the issues in the subsequent
rulemaking to only those which truly remain in controversy.
B. Selecting Subpart P as a Candidate for Negotiated Rulemaking
The Negotiated Rulemaking Act allows the agency to establish a
negotiated rulemaking committee if it is determined that the use of the
negotiated rulemaking procedure is in the public interest. As noted
above in the Background part of this document, OSHA has made such a
determination.
OSHA bases this determination, not only on the appropriateness of
the subject to negotiated rulemaking and the support of affected
parties, but also on its own prior experience with the negotiated
rulemaking process. Even before the NRA was enacted, OSHA conducted
negotiated rulemaking for its complex health standard for
Methylenedianiline (MDA). This committee met seven times over a 10-
month period (24 meeting days) and successfully negotiated standards
for both general industry and construction. The final standards were
ultimately based on the recommended proposed standards, and no
litigation followed the standards' promulgation. In addition, OSHA's
Steel Erection Negotiated Rulemaking Advisory Committee is completing
its work and is ready to propose a revised standard for steel erection
in construction, 29 CFR part 1926, Subpart R.
Discussions held between OSHA staff and many interested parties
lend further evidence that the elements necessary for a successful
negotiated rulemaking on fire protection in shipyard employment exist.
Moreover, the Agency believes that most of the selection criteria
listed in the NRA (5 U.S.C. 563(a)) are met. There is a recognized need
to promulgate fire protection requirements that would apply to all
shipyard employment. Interests that will be affected by the new fire
protection standard are known, as limited in number, and to a
significant degree, are already organized in interest-based coalitions.
Finally, parties representing significant interests have requested that
OSHA begin negotiated rulemaking on subpart P. The need for a new
standard is acknowledged by all known interests. The Agency believes
that reaching consensus on work practices and specifications for fire
protection in shipyard employment is highly promising. OSHA expects
that all persons likely to be significantly affected by such a standard
will negotiate in good faith.
C. Agency Commitment
In initiating this Neg/Reg process, OSHA is making a commitment on
behalf of the Department of Labor that the Agency and all other
participants within the Department will provide adequate resources to
ensure timely and successful completion of the process. This commitment
includes making the process a priority activity for all
representatives, components, officials, and personnel of the Department
who need to be involved the rulemaking, from the time of initiation
until such time as a final rule is issued or the process is expressly
terminated. Once the process has been initiated, all representatives,
components, officials and personnel of the Department shall be expected
to act in accordance with this commitment.
As provider of administrative support, OSHA will take steps to
ensure that the negotiated rulemaking committee has the dedicated
resources it requires to complete its work in a timely fashion. These
include the provision or procurement of such support services as:
properly equipped space adequate for public meetings and caucuses;
logistical support and timely payment of participant travel and
expenses where necessary, as provided for under the NRA: work
processing, information dissemination, storage and other information
handling services required by the committee; the service of a
facilitator; and such additional statistical, economic, health, safety,
legal, computing or other technical assistance as may be necessary.
OSHA, to the maximum extent possible consistent with the legal
obligations of the Agency, will use the consensus of the Committee as
the basis for the rule proposed by the Agency for public notice and
comment. The Agency believes that by promulgating a standard for fire
protection, it can limit or reduce the number of deaths and injuries to
employees engaged in shipyard employment who are exposed to a
significant risk of injury and death because of the lack of specific
applicability of certain provisions in the general industry standards
and because a large number of shipyard employees are not protected by
any OSHA fire protection standards. The Agency, therefore, is committed
to publishing a consensus proposal that is consistent with OSHA's legal
mandates.
D. Negotiating Consensus
As discussed above, the negotiated rulemaking process is
fundamentally different from the usual development process for OSHA
proposed rules. Negotiation allows all the parties to discuss possible
approaches to various issues rather than only asking them to respond to
details in an OSHA proposal. The negotiation process involves a mutual
education of the parties by each other on the practical concerns about
the impact of such approaches. Each committee member participates in
resolving the interests and concerns of other members, rather than
leaving it up to OSHA to bridge different points of view.
A key principle of negotiated rulemaking is that agreement is by
consensus of all the interests. Thus, no one interest or group of
interests is able to control the process. The NRA defines consensus as
the unanimous concurrence among interests represented on a negotiated
rulemaking committee, unless the committee itself unanimously agrees to
use a different definition. In addition, experience has demonstrated
that using a trained mediator to facilitate this process will assist
all potential parties, including OSHA, to identify their real interests
in the rule and so be able to reevaluate previously stated positions on
issues involved in this rulemaking effort.
E. Some Key Issues for Negotiation
OSHA expects key issues to be addressed as part of these
negotiations will include:
1. Scope and Application
Should Subpart P apply to all shipyard employment? How will
standard affect out-of-yard/plant
[[Page 28827]]
firefighters such as those employed by a municipal fire department?
2. Controls and Work Practices
What controls and work practices will provide adequate protection
for employees? Should OSHA require hot work permits? Should OSHA
require training for all fire fighters? Should OSHA incorporate U.S.
Coast Guard regulations in this standard? Is there any difference in
controls and work practices on landside vs. onboard vessels and vessel
sections? Should OSHA require the employer to secure (deactivate) all
fire fighting systems onboard vessels when they arrive in the yard?
3. Fire Brigades
Should OSHA require each shipyard to have an in-yard/plant fire
brigade?
4. Written Fire Plans
Should OSHA require written fire plans for landside and onboard
vessels? If so, what provisions need to be included in the plans?
Should OSHA include a requirement for de-watering (removal of
firefighting water from the vessel) of vessels when fighting a fire on
board a vessel?
5. Technological Advances
What advances in fire technology have occurred since OSHA's general
industry standards were promulgated? Which of these advances should be
incorporated into the shipyard standard?
6. Costs of Fire Protection
What costs would be incurred by shipyards in meeting the various
provisions of a new standard? Calculations should include costs of
acquiring new equipment, instituting new engineering controls and work
practices, and costs of training employees. Are there cost savings or
other benefits that could be expected with the promulgation of
identical rules for all of shipyard employment? If so, what would be
the magnitude of savings?
7. Appendices
Should OSHA include an appendix or appendices and, if so, should it
(they) be mandatory?
II. Proposed Negotiation Procedures
The following proposed procedures and guidelines may be augmented
as a result of comments received in response to this notice or during
the negotiation process.
A. Committee Formation
This negotiated rulemaking Committee will be formed and operated in
full compliance with the requirements of the Federal Advisory Committee
(FACA) in a manner consistent with the requirements of the Negotiated
Rulemaking Act (NRA).
B. Interests Involved
The Agency intends to conduct negotiated rulemaking proceedings
with particular attention to ensuring full and adequate representation
of those interests that may be significantly affected by the proposed
rule. Section 562 of the NRA defines the term ``interest'' as follows:
(5) ``interest'' means, with respect to an issue or matter multiple
parties which have a similar point of view or which are likely to be
affected in a similar manner.
The following interests have been tentatively identified as
``significantly affected'' by the matters that may be included in the
proposed rule:
Shipyard owners;
Contractors;
Labor organizations representing employees who perform fire protection
work;
Fire fighters, both in yard/plant and municipal;
Government entities, particularly the Navy and the Coast Guard;
Professional associations; and
Manufacturers and suppliers of fire protection equipment.
One purpose of this document is to determine whether a standard
regulating fire hazards in shipyard employment would significantly
affect interests that are not listed above. OSHA invites comment and
suggestions on this list of ``significantly affected'' interests.
In this regard, the Department of Labor recognizes that the
regulatory actions it takes under its programs may at times affect
various segments of society in different ways, and that this may in
some cases produce unique ``interests' in a proposed rule based on
income, gender, or other factors. Particular attention will be given by
the Department to ensure that any unique interests that have been
identified in this regard, and that may be significantly affected by
the proposed rule, are fully represented.
C. Members
The negotiating group should not exceed 25 members, and 15 would be
preferable. The Agency believes that more than 25 members would make it
difficult to conduct effective negotiations.
OSHA is aware that there are many more potential participants,
whether they are listed here or not, than there are membership slots on
the Committee. The Agency does not believe, nor does the NRA
contemplate, that each potentially affected group must participate
directly in the negotiations; nevertheless, each affected interest can
be adequately represented. In order to have a successfully negotiation,
it is important for interested parties to identify and form coalitions
that adequately represent significantly affected interests. These
coalitions, in order to provide adequate representation must agree to
support, both financially and technically, a member to the Committee
whom they will choose to represent their ``interest.''
It is very important to recognize that interested parties who are
not selected to membership on the Committee can make valuable
contributions to this negotiated rulemaking effort in any of several
ways:
The person could request to be placed on the Committee mailing
list, submitting written comments, as appropriate;
The person could attend the Committee meetings, which are open to
the public, caucus with his or her interest's member on the Committee,
or even address the Committee (usually allowed at the end of an issue's
discussion or the end of the session, as time permits; or
The person could assist in the work of a workgroup that might be
established by the Committee.
Informal workgroups are usually established by an advisory
committee to assist the Committee in ``staffing'' various technical
matters, e.g., researching or preparing summaries of the technical
literature or comments on particular matters such as economic issues
before the Committee so as to facilitate Committee deliberations. They
might also assist in estimating costs and drafting regulatory text on
issues associated with the analysis of the affordability and benefits
addressed, and formulating drafts of the various provisions and their
justification previously developed by the committee. Given their
staffing function, workgroups usually consist of participants who have
expertise or particular interest in the technical matter(s) being
studied.
Becuase it recognizes the importance of this staffing work for the
Committee, OSHA will provide appropriate technical expertise for such
workgroups.
Requests for appointment to membership on the Committee are
solicited. Members can be individuals
[[Page 28828]]
or organizations. If the effort is to be fruitful, participants should
be able to fully and adequately represent the viewpoints of their
respective interests. Those who wish to be appointed as members of the
Committee should submit a request to OSHA, in accordance with the
Public Participation part of this document.
The following list includes those who have been tentatively
identified by OSHA as being either a potential member of the Committee,
or a potential member of a coalition that would in turn nominate a
candidate to represent one of the significantly affected interests
listed above:
Shipyard owners;
Contractors;
Labor organizations representing employees who perform fire protection
work;
Fire fighters, both in yard/plant and municipal;
Government entities, particularly the Navy and the Coast Guard;
Professional associations; and
Manufacturers and suppliers of fire protection equipment.
This list of potential parties is not presented as a complete or
exclusive list from which committee members will be selected, nor does
inclusion on the list of potential parties mean that a party on the
list has agreed to participate as a member of the Committee or as a
member of a coalition. The list merely indicates parties that OSHA has
tentatively identified as representing significantly affected interests
in the outcome of the subpart P negotiated rulemaking. This document
gives notice of this process to other potential participants and
affords them the opportunity to request representation in the
negotiations. The procedure for requesting such representation is set
out under the Public Participation part of this document, below. In
addition, comments and suggestions on this tentative list are invited.
D. Good Faith Negotiation
Committee members should be willing to negotiate in good faith and
have the authority to do so. The first step is to ensure that each
member has good communications with his or her constituencies. An
intra-interest network of communication should be established to bring
information from the support organization to the member at the table,
and to take information from the table back to the support
organization. Second, each organization or coalition should, therefore,
designate as its representative an official with credibility and
authority to insure that needed information is provided and decisions
are made in a timely fashion. Negotiated rulemaking efforts can require
a very significant contribution of time by the appointed members that
must be sustained for up to a year. Other qualities that can be very
helpful are negotiating experience and skills, and sufficient technical
knowledge to participate in substantive negotiations.
Certain concepts are central to negotiating in good faith. One is
the willingness to bring all issues to the bargaining table in an
attempt to reach a consensus, instead of keeping key issues in reserve.
The second is a willingness to keep the issues at the table and not
take them to other forums. Finally, good faith includes a willingness
to move away from the type of positions usually taken in a more
traditional rulemaking process, and instead explore openly with other
parties all ideas that may emerge from the discussions of the
Committee.
E. Facilitator
This individual will not be involved with the substantive
development of the standard. Rather, the facilitator's role generally
includes:
Chairing the meetings of the committee in an impartial
manner;
Impartially assisting the members of the Committee in
conducting discussions and negotiations;
Performing the duties of the Designated Federal Official
under FACA; and
Acting as disclosure officer for Committee records under
the Freedom of Information Act (FOIA).
F. OSHA Representative
The OSHA representative will be a full and active participant in
the consensus building negotiations. The representative will meet
regularly with various senior OSHA officials, briefing them on the
negotiations and receiving their suggestions and advice, in order to
effectively represent the Agency's views regarding the issues before
the Committee. OSHA's representative will also ensure that the entire
spectrum of governmental interests affected by the subpart P
rulemaking, including the office of Management and Budget and other
Departmental offices, is kept informed of the negotiations and
encouraged to make their concerns known in a timely fashion. OSHA's
representative will also communicate with MACOSH on a regular basis,
informing it of the status and content of the negotiations.
In addition, the OSHA representative will present the negotiators
with the accumulated record evidence gathered on issue-by-issue basis
for their consideration. (The Committee may also consult OSHA's
representative with regard to the Agency's regulatory needs,
appropriate boundaries of consideration, or technical information. Such
information could include the areas of technological feasibility and
economic concerns, including direct and indirect costs of compliance).
The OSHA representative, together with the facilitator, will also be
responsible for coordinating the administrative and committee support
functions to be performed by OSHA's support team.
G. Committee Notice
After evaluating the comments on this announcement and the requests
for representation, OSHA will issue a notice that will announce the
establishment of the Committee and its membership, unless after
reviewing the comments, it is determined that such an action is
inappropriate. The negotiation process will begin once the Committee
membership roster is published in the Federal Register.
H. Tentative Schedule
Included in the notice establishing the Committee will be a
proposed schedule of the meetings. The first meeting will focus largely
on procedural matters, including the proposed ground rules. These will
include agreement on dates, times, and locations of future meetings,
and identification and determination of how best to address principal
issues for resolution.
I. Record of Meetings
In accordance with FACA's requirements, the facilitator will keep
minutes and a record of all Committee meetings. This record will be
placed in the public docket No. S-051 for this rulemaking. Committee
meetings will be announced in the Federal Register and will generally
be open to the public.
J. Agency Action
As noted above, the Agency intends to use the Committee's consensus
as the basis for the NPRM. OSHA expects to issue the proposed rule
developed by the Committee, unless the consensus is inconsistent with
OSHA's statutory authority or is not appropriately justified. In that
event, the Agency will explain the reason for its decision.
K. Committee Procedures
Under the general guidance and direction of the facilitator, and
subject to any applicable legal requirements, appropriate detailed
procedures for committee meetings will be established. Committee
members will be presented
[[Page 28829]]
with proposed ground rules and agendas prior to the first meeting.
III. Public Participation
Since this will be a negotiated rulemaking, there are many
opportunities for an individual who is interested in the outcome of the
rule to participate. As a first step in response to this notice of
intent to negotiate, OSHA recommends that potential participants study
the two lists contained in this notice: the lists of significantly
affected interests and the lists of potential participants. After
analyzing for completeness or over or under-inclusiveness, parties
should examine the lists for the purpose of coalition building.
Potential parties should try to identify others, whether on the lists
or not, who share a similar viewpoint and who be affected in a similar
way by the rule. Communication with these parties of similar interest
should follow, and the organization of coalitions to support the
interest should begin. It is only after the formation of these
coalitions and extensive intra-constituency discussion that decisions
should be made as to which individuals should represent the interest
and in which capacity. As indicated above, an interested party may
participate in a variety of ways such as being a committee member,
working within the coalition (promoting communication, providing expert
support in a workgroup or otherwise, helping to develop internal ranges
of acceptable alternatives, etc.), attending committee meetings in
order to caucus with the interest's member of address the Committee at
the appropriate times, or submitting written comments or materials.
Persons who will be significantly affected by the subpart P
rulemaking, whether or not listed above in this document, may apply for
or nominate another person for membership on the Committee to represent
such interests. Such requests should be submitted, in quadruplicate, to
OSHA Docket Office, Rm N-2625, 200 Constitution Ave. N.W., Washington,
D.C., 20210; Telephone (202) 219-7894, no later than July 8, 1996. OSHA
notes that the NRA addresses the concerns of potential members for whom
the expenses of participation may not be affordable (See 5 U.S.C. 568
(c)). Each application or nomination shall include:
(1) The name of the applicant or nominee and a description of the
interest such person shall represent;
(2) Evidence that the applicant or nominee is authorized to
represent parties having the shared interest the person proposes to
represent; and
(3) A written commitment that the applicant or nominee shall
actively participate in good faith in the development of the rule under
consideration.
All other written comments, including comments on the
appropriateness of using negotiated rulemaking to develop a proposed
rule to revise the existing safety provisions in 29 CFR Part 1915
subpart P, should be directed to Docket No. S-051, and sent in
quadruplicate to the following address: OSHA Docket Office, U.S.
Department of Labor, Rm. N-2625, 200 Constitution Ave., N.W.,
Washington, D.C. 20210; Telephone (202) 219-7894.
IV. Authority
This document was prepared under the direction of Joseph A. Dear,
Assistant Secretary of Labor for Occupational Safety and Health, U.S.
Department of Labor, 200 Constitution Avenue, N.W., Washington, D.C.
20210, pursuant to section 3 of the Negotiated Rulemaking Act of 1990,
104 Stat. 4969, Title 5 U.S.C. 561 et seq.
Signed at Washington, D.C., this 30th day of May, 1996.
Joseph A. Dear,
Assistant Secretary of Labor.
[FR Doc. 96-14090 Filed 6-5 -96; 8:45 am]
BILLING CODE 4510-26-M
Complete official Federal Register PDF
FR Doc. 96-14048 Endangered and Threatened Wildlife and Plants; 90-Day Finding for a Petition To List the Northern Goshawk in the Western United States
[Federal Register Volume 61, Number 110 (Thursday, June 6, 1996)]
[Proposed Rules]
[Pages 28834-28835]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14048]
=======================================================================
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
Endangered and Threatened Wildlife and Plants; 90-Day Finding for
a Petition To List the Northern Goshawk in the Western United States
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Notice of 90-day petition finding and vacation of the June 25,
1992, finding.
-----------------------------------------------------------------------
SUMMARY: The U.S. Fish and Wildlife Service (Service) announces a 90-
day finding for a petition to list the northern goshawk (Accipiter
gentilis) in the Western United States under the Endangered Species
Act, as amended. The Service has determined that the petition does not
present substantial information that listing the northern goshawk in
the Western United States may be warranted. The Service also vacates
the previous June 25, 1992, finding for the same petitioned action.
DATES: The finding announced in this document was made on May 28, 1996.
ADDRESSES: Information, comments, or questions concerning this petition
may be submitted to the Supervisor, Arizona Ecological Services Field
Office, U.S. Fish and Wildlife Service, 2321 W. Royal Palm Rd., Suite
103, Phoenix, Arizona 85021. The petition, finding, and supporting data
are available for public inspection, by appointment, during normal
business hours at the above address.
FOR FURTHER INFORMATION CONTACT: Sam Spiller, Supervisor (see ADDRESSES
above) (telephone 602/640-2720).
SUPPLEMENTARY INFORMATION:
Background
Section 4(b)(3)(A) of the Endangered Species Act of 1973, as
amended (16 U.S.C. 1531 et seq.) (Act), requires that the Service make
a finding on whether a petition to list, delist, or reclassify a
species presents substantial scientific or commercial information to
indicate that the petitioned action may be warranted. To the maximum
extent practicable, this finding is to be made within 90 days of the
receipt of the petition, and notice of the finding is to be published
promptly in the Federal Register. If a finding is made that substantial
information was presented, the Service also is required to promptly
commence a review of the status of the species involved.
On September 26, 1991, a coalition of conservation organizations
(Babbitt et al. 1991) submitted a letter to the Service, requesting to
amend a petition under consideration by the Service to list a
population of northern goshawk (Accipiter gentilis) as endangered in
Utah, Colorado, New Mexico, and Arizona (Silver et al. 1991). The
coalition requested expanding the geographic region under consideration
to include the ``forested west.'' The petitioners subsequently refined
their definition of the ``forested west'' to mean the forested United
States, west of the 100th meridian. Because this letter requested
consideration of a substantially different listing action than the
previous petition, the Service informed the petitioners that their
letter would be considered a separate petition.
On June 25, 1992, the Service published a 90-day finding that the
petition had not presented substantial information to indicate that the
petitioned action may be warranted. The petitioners subsequently filed
a lawsuit to have the finding set aside as arbitrary and capricious
under the Administrative Procedures Act. On February 22, 1996, U.S.
District Judge Richard M. Bilby found the June 25, 1992 finding to be
arbitrary and capricious and remanded the finding to the Service for a
new 90-day determination and vacation of the previous finding. This
notice serves to inform the public of the Service's new 90-day finding
and vacates the Service's June 25, 1992 finding.
A species that is in danger of extinction throughout all or a
significant portion of its range may be declared an endangered species
under the Act. A species that is likely to become an endangered species
in the foreseeable future (as defined above) throughout all or a
significant portion of its range may be declared a threatened species
under the Act. The term ``species'' is defined by the Act to include
``* * * subspecies * * * and any distinct population segment of any
species of vertebrate fish or wildlife which interbreeds when mature *
* *'' (16 U.S.C. 1532 (15)).
In reviewing a listing petition, the Service must determine whether
the petitioned action includes an entity that is listable under the
Act, and, if so, whether the petition presented substantial information
that the petitioned action may be warranted. In this case, the Service
must consider whether northern goshawks west of the 100th meridian
constitute a distinct population segment under 16 U.S.C. 1532 (15). In
making this determination, the Service relies upon the National Marine
Fisheries Service and Fish and Wildlife Service final Policy Regarding
the Recognition of Distinct Vertebrate Population Segments Under the
[[Page 28835]]
Endangered Species Act (61 FR 4722; February 7, 1996).
The petition as submitted requests that the Service list a distinct
population segment of northern goshawks that consists of portions of
the ranges of three separate subspecies: Accipiter gentilis
atricapillus, A. g. laingi, and A. g. apache. The range of each of the
three subspecies extends beyond the area delineated in the petition.
Only A. g. atricapillus and A. g. laingi are recognized by the American
Ornithologists' Union (1957). However, A. g. apache has been recognized
by some biologists and the Service (Brown and Amadon 1968, Hellmayer
and Conover 1949, Hubbard 1992 as cited in Whaley and White 1994,
Stresemann and Amadon 1979, U.S. Fish and Wildlife Service 1994).
Under the Services' February 7, 1996, final policy, the first step
in determining whether the entity petitioned for listing qualifies as a
distinct population segment is ``the discreteness of the population
segment in relation to the remainder of the species to which it
belongs.'' In defining the term ``population,'' the Services' February
7, 1996, final policy provides that in all cases when discussing a
population, ``the organisms in a population are members of a single
species or lesser taxon.'' Since a subspecies is a taxon, by definition
a population segment may not include more than one subspecies. The
Service's determination that a ``population'' cannot be composed of
more than one recognized subspecies is consistent with the use of these
terms in the scientific literature dealing with populations and
subspecies (e.g., Mayr 1969).
This principle that a population may not include more than one
subspecies is reflected in the wording of the first test for
discreteness set forth in the Services' final policy of February 7,
1996. The final policy provides that a population segment is considered
to be discrete if ``it is markedly separated from other populations of
the same taxon as a consequence of physical, physiological, ecological,
or behavioral factors.'' Because the principle concerns the underlying
definition of the term ``population,'' it is also an inherent part of
the second test for discreteness concerning international boundaries,
which is set forth in the final policy. In either case, if the entity
petitioned for listing does not qualify as a ``population,'' it does
not meet the discreteness test under the final vertebrate population
policy.
The Act provides that a single subspecies may be listed as
endangered or threatened (16 U.S.C. 1532 (15)). In this case, the
entity petitioned for listing includes organisms that are not members
of a single taxon, but rather at least two, and possibly three,
subspecies. For the reasons discussed above, the Service has determined
that the petitioned action does not meet the definition of a distinct
vertebrate population and therefore does not meet the discreteness
test. Accordingly, no further evaluation was conducted concerning the
conservation status of the species.
The processing of this petition finding follows the Service's final
listing priority guidance published in the Federal Register on May 16,
1996 (61 FR 24722). The guidance clarifies the order in which the
Service will process rulemakings following two related events: (1) the
lifting, on April 26, 1996, of the moratorium on final listings imposed
on April 10, 1995 (Public Law 104-6), and (2) the restoration of
significant funding for listing through passage of the omnibus budget
reconciliation law on April 26, 1996, following severe funding
constraints imposed by a number of continuing resolutions between
November 1995 and April 1996. The guidance calls for prompt processing
of draft rules and petition findings that were in the Service's
Washington office (already approved by the field and regional offices)
prior to the publication of the listing priority guidance on May 16,
1996. A draft of this petition finding was approved by the Service's
Southwest Regional Director on May 8, 1996, and received by the
Washington office on May 9, 1996.
In summary, the Service has reviewed its policies and guidance
along with the petition and has determined that the petitioned entity
is not listable under the Act. Therefore, the Service finds that the
petition does not present substantial information that listing the
northern goshawk in the United States west of the 100th meridian as a
distinct population segment may be warranted. The Service also vacates
its June 25, 1992, finding on the same petitioned action.
References Cited
American Ornithologists' Union. 1957. Check-list of North American
birds, 5th edition. Port City Press, Baltimore, Maryland. 691 pp.
Babbitt, C., P. Galvin, S.M. Hitt, S.W. Hoffman, A. MacFarlane, K.
Rait, C.I. Sandell, M. Sauber, T. Schulke, and G. Wardwell. 1991.
Letter to the Department of the Interior, requesting to amend a
petition to list the northern goshawk. Maricopa Audubon Society,
Phoenix, Arizona. September 26, 1991. 5 pp.
Brown, L., and D. Amadon. 1968. Eagles, hawks and falcons of the
world. Country Life Books, Feltham, Middlesex. 945 pp.
Hellmayer, C.E., and B. Conover. 1949. Catalogue of birds of the
Americas and the adjacent islands. Field Museum of Natural History,
Chicago. Pt. 1, No. 4.
Mayr, E. 1969. Principles of Systematic Zoology. McGraw-Hill, New
York.
Silver, R.D., P. Galvin, S. Hirsch, S.M. Hitt, S.W. Hoffman, A.
MacFarlane, C.I. Sandell, M. Sauber, T. Schulke, G. Wardwell, and S.
Wotkyns. 1991. Letter to the Department of the Interior, petitioning
to list the northern goshawk (Accipiter gentilis) in Utah, Colorado,
New Mexico and Arizona, under the Endangered Species Act. Maricopa
Audubon Society, Phoenix, Arizona. 61 pp.
Stresemann, E., and D. Amadon. 1979. Check-list of birds of the
world. Museum of Comparative Zoology, Cambridge, MA. Vol. 1.
U.S. Fish and Wildlife Service. 1994. Ninety-day administrative
finding for a petition to list the Queen Charlotte goshawk under
provisions of the Endangered Species Act. Memorandum approved by
Acting Director on August 19, 1994. 17 pp.
Whaley, W.H., and C.M. White. 1994. Trends in geographic variation
of Coopers' hawk and northern goshawks in North America: a
multivariate analysis. Proceedings of the Western Foundation of
Vertebrate Zoology. Vol. 5, No. 3.
Author
The primary author of this document is Dr. Steven Chambers, Fish
and Wildlife Service Regional Office, P.O. Box 1306, Albuquerque, New
Mexico 87003.
Authority
The authority for this action is the Endangered Species Act (16
U.S.C. 1531 et seq.).
Dated: May 28, 1996.
John G. Rogers,
Acting Director, Fish and Wildlife Service.
[FR Doc. 96-14048 Filed 6-5-96; 8:45 am]
BILLING CODE 4310-55-U
Complete official Federal Register PDF
FR Doc. 96-13928 Proposed Establishment of Class E Airspace; Sonora, TX
[Federal Register Volume 61, Number 110 (Thursday, June 6, 1996)]
[Proposed Rules]
[Pages 28803-28804]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-13928]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 71
[Airspace Docket No. 95-ASW-07]
Proposed Establishment of Class E Airspace; Sonora, TX
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Proposed rule; withdrawal.
-----------------------------------------------------------------------
SUMMARY: This action withdraws a Notice of Proposed Rulemaking (NPRM)
that proposed to establish the Class E airspace at Canyon Ranch
Airport, Sonora, TX. The proposal was to establish the controlled
airspace extending upward from 700 feet above the ground (AGL) needed
to contain aircraft executing a Very High Frequency Omnidirectional
Range (VOR)/Distance Measuring Equipment (DME) standard instrument
approach procedure (SIAP) to Runway (RWY) 32. The Class E airspace
dimensions described in the NPRM contained a significant error;
therefore, the proposal is withdrawn.
DATES: The proposed rule is withdrawn June 6, 1996.
FOR FURTHER INFORMATION CONTACT:
Donald J. Day, Operations Branch, Federal Aviation Administration,
Southwest Region, Fort Worth, TX 76193-0530; telephone: (817) 222-5593.
[[Page 28804]]
SUPPLEMENTARY INFORMATION: On July 17, 1995, an NPRM was published in
the Federal Register (60 FR 36371) to establish Class E airspace at
Canyon Ranch Airport, Sonora, TX. The intended effect of the proposal
was to provide adequate Class E airspace to contain aircraft executing
the VOR/DME SIAP to RWY 32 at Canyon Ranch Airport. After publication
of the NPRM, a significant error in the description of the proposed
Class E airspace was discovered. Accordingly, the proposed rule is
withdrawn.
List of Subjects in 14 CFR Part 71
Airspace, Incorporation by reference, Navigation (air).
The Withdrawal of Proposed Rule
Accordingly, pursuant to the authority delegated to me, Airspace
Docket No. 95-ASW-07, as published in the Federal Register on July 17,
1995 (60 FR 36371), is withdrawn.
Authority: 49 U.S.C. 40103, 40113, 40120; E.O. 10854; 24 FR
9565, 3 CFR, 1959-1963 Comp., p. 389; 49 U.S.C. 106(g); 14 CFR
11.69.
Issued in Fort Worth, TX on May 15, 1996.
Albert L. Viselli,
Acting Manager, Air Traffic Division, Southwest Region.
[FR Doc. 96-13928 Filed 6-5-96; 8:45 am]
BILLING CODE 4910-13-M
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