issue-1995-10-26•Federal Register proposed rules — 1995-10-26
Federal Register proposed rules — 1995-10-26
issue-1995-10-26Federal Register proposed rules — 1995-10-26Proposed Regulation
Published Federal Register documents, not public-inspection drafts. The GPO XML/text rendition is a research aid; the linked complete official PDF retains the printed layout and all graphics. Graphics are retained in that PDF and are not independently reproduced in this text rendition. Publication does not establish that every provision remains legally in force.
FR Doc. 95-26614 Pathogen Reduction; Hazard Analysis and Critical Control Point (HACCP) SystemsExtension of Comment Period
[Federal Register Volume 60, Number 207 (Thursday, October 26, 1995)]
[Proposed Rules]
[Page 54819]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-26614]
========================================================================
Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
========================================================================
Federal Register / Vol. 60, No. 207 / Thursday, October 26, 1995 /
Proposed Rules
[[Page 54819]]
DEPARTMENT OF AGRICULTURE
Food Safety and Inspection Service
9 CFR 308, 310, 318, 320, 325, 326, 327, and 381
[Docket No. 93-016E]
Pathogen Reduction; Hazard Analysis and Critical Control Point
(HACCP) Systems--Extension of Comment Period
AGENCY: Food Safety and Inspection Service, USDA.
ACTION: Proposed rule; extension of comment period.
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SUMMARY: The Food Safety and Inspection Service (FSIS) is extending the
comment period for the proposed rule, ``Pathogen Reduction; Hazard
Analysis and Critical Control Point (HACCP) Systems'' (60 FR 6774,
February 3, 1995) until Monday, November 13, 1995, so that the
transcript of the Secretary's Food Safety Forum, announced elsewhere in
this issue of the Federal Register, can be added to the rulemaking
record.
DATES: Comments must be received on or before November 13, 1995.
ADDRESSES: Send an original and two copies of written comments to: FSIS
Docket Clerk, Docket #93-016P, Docket Room 4352, South Agriculture
Building, Food Safety and Inspection Service, U.S. Department of
Agriculture, Washington, DC 20250.
FOR FURTHER INFORMATION CONTACT: Dr. Paula Cohen, Director, Regulations
Development, Policy Evaluation and Planning Staff, FSIS, USDA, Room
3801, South Building, Washington, DC 20250, (202) 720-7164.
Done at Washington, DC, on October 20, 1995.
Michael R. Taylor,
Acting Under Secretary for Food Safety.
[FR Doc. 95-26614 Filed 10-23-95; 1:38 pm]
BILLING CODE 3410-DM-P
Complete official Federal Register PDF
FR Doc. 95-26612 Inmate Discipline and Good Conduct Time
[Federal Register Volume 60, Number 207 (Thursday, October 26, 1995)]
[Proposed Rules]
[Pages 54922-54928]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-26612]
[[Page 54921]]
_______________________________________________________________________
Part IV
Department of Justice
_______________________________________________________________________
Bureau of Prisons
_______________________________________________________________________
28 CFR Part 541
Inmate Discipline and Good Conduct Time; Proposed Rule
Federal Register / Vol. 60, No. 207 / Thursday, October 26, 1995 /
Proposed Rules
[[Page 54922]]
DEPARTMENT OF JUSTICE
Bureau of Prisons
28 CFR Part 541
[BOP-1040-P]
RIN 1120-AA34
Inmate Discipline and Good Conduct Time
AGENCY: Bureau of Prisons, Justice.
ACTION: Proposed rule.
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SUMMARY: In this document, the Bureau of Prisons is proposing to
implement provisions of the Violent Crime Control and Law Enforcement
Act of 1994 which make the earning of good conduct time by violent
offenders contingent upon exemplary compliance with institution
regulations. The list of sanctions which may be imposed by the
Discipline Hearing Officer in instances where an inmate has been
determined to be not in compliance with institution regulations is
accordingly being modified to achieve this purpose.
DATES: Comments must be submitted by December 26, 1995.
ADDRESSES: Office of General Counsel, Bureau of Prisons, HOLC Room 754,
320 First Street, NW., Washington, DC 20534.
FOR FURTHER INFORMATION CONTACT: Roy Nanovic, Office of General
Counsel, Bureau of Prisons, phone (202) 514-6655.
SUPPLEMENTARY INFORMATION: Bureau of Prisons regulations on inmate
discipline were previously published in the Federal Register January 5,
1988 (53 FR 197) and were amended October 17, 1988 (53 FR 40686),
September 22, 1989 (54 FR 38987 and 39095), February 1, 1991 (56 FR
4159), July 10, 1991 (56 FR 31530), June 2, 1992 (57 FR 23260), and
July 21, 1993 (58 FR 39095).
Section 20405 of the Violent Crime Control and Law Enforcement Act
of 1994 provides that a prisoner who is serving a term of imprisonment
of more than one year for a crime of violence, other than a term of
imprisonment for the duration of the prisoner's life, may receive
credit toward the service of the prisoner's sentence, beyond the time
served, of up to 54 days at the end of each year of the prisoner's term
of imprisonment, beginning at the end of the first year of the term,
subject to the determination by the Bureau of Prisons that, during that
year, the prisoner has displayed exemplary compliance with such
institutional disciplinary regulations.
To that purpose, the Bureau is proposing the following amendments.
28 CFR 541.13(a)(1) is amended to ensure that when a VCCLEA inmate
rated as violent (i.e., an inmate who, as specified in the Violent
Crime Control and Law Enforcement Act of 1994, committed a crime of
violence after September 13, 1994) is found to have committed a
greatest category offense, the Discipline Hearing Officer (DHO) must,
as a minimum, impose a sanction disallowing all Good Conduct Time (GCT)
for the evaluation period. This means a loss of 54 days GCT. Section
541.13(a)(2) is similarly amended to require the DHO to impose, as a
minimum, a sanction disallowing all GCT when a VCCLEA inmate rated as
violent is found to have committed a high category offense. As revised,
paragraph (a)(2) also requires that all high category offense charges
for a VCCLEA inmate rated as violent be referred to the DHO for
disposition.
Section 541.13(a)(3) is amended to require the DHO to impose, as a
minimum, a sanction disallowing up to 14 days GCT when the DHO finds
that a VCCLEA inmate rated as violent has committed a moderate offense
category. As revised, paragraph (a)(3) allows, but does not require,
the Unit Discipline Committee to refer to the DHO a moderate category
charge for a VCCLEA inmate rated as violent.
Section 541.13(a)(4) is amended to require the DHO to impose, as a
minimum, a sanction disallowing up to 7 days GCT when the DHO finds
that a VCCLEA inmate rated as violent has committed a low moderate
category offense. As revised, paragraph (a)(3) allows, but does not
require, the Unit Discipline Committee to refer to the DHO a low
moderate category charge for a VCCLEA inmate.
Section 541.13(f) is amended in conformance with changes to Table 6
as discussed below.
Table 3 for Sec. 541.13 is amended by specifying the applicable
loss of GCT in Sanction B.1 for the various categories of offenses, by
specifying in Sanction B.1 that disallowance sanction may not be
suspended, and by including reference to non-vested GCT in Sanction B.
Previously, GCT became vested when awarded. Because Section 20412 of
the Violent Crime Control and Law Enforcement Act of 1994 requires
that, for VCCLEA inmates (whether rated violent or not), GCT is vested
upon obtaining or upon making satisfactory progress toward obtaining a
GED, it is possible for a VCCLEA inmate to have been awarded GCT which
is not vested.
Table 4 for Sec. 541.13 is amended to include conforming changes to
the explanations of Sanctions B and B.1. With respect to Moderate
Category and Low Moderate Category Prohibited Acts, Sanction B.1
provides that the amount of disallowed GCT for VCCLEA inmates rated as
violent ordinarily shall be a minimum of 14 days or 7 days GCT
respectively, but that the DHO may impose less upon careful examination
of mitigating factors.
Table 5 for Sec. 541.13 is amended to include reference to non-
vested GCT.
Section 541.14(a) is amended to specify that only the DHO may make
a final disposition on a prohibited act in the Greatest Severity or on
a High Category prohibited act (when the High Category prohibited act
has been committed by a VCCLEA inmate rated as violent.
As noted above, these proposed sanctions are applicable to VCCLEA
inmates rated as violent (i.e., inmates who, as specified in the
Violent Crime Control and Law Enforcement Act of 1994, committed a
crime of violence after September 13, 1994). Inmates who are eligible
for good conduct time because they were sentenced under the provisions
of the Sentencing Reform Act of 1984, but who were sentenced for a
crime of violence committed on or before September 13, 1994 are not
defined as ``VCCLEA inmates rated as violent'' and consequently would
be unaffected by the proposed new sanctions for those inmates.
Interested persons may participate in this proposed rulemaking by
submitting data, views, or arguments in writing to the previously cited
address. Comments received during the comment period will be considered
before final action is taken. All comments received remain on file for
public inspection at the previously cited address. The proposed rule
may be changed in light of the comments received. No oral hearings are
contemplated.
The Bureau of Prisons has determined that this rule is not a
significant regulatory action for the purpose of E.O. 12866, and
accordingly this rule was not reviewed by the Office of Management and
Budget. After review of the law and regulations, the Director, Bureau
of Prisons has certified that this rule, for the purpose of the
Regulatory Flexibility Act (Pub. L. 96-354), does not have a
significant impact on a substantial number of small entities.
List of Subjects in 28 CFR Part 541
Prisoners.
Kathleen M. Hawk,
Director, Bureau of Prisons.
Accordingly, pursuant to the rulemaking authority vested in the
Attorney General in 5 U.S.C. 552(a) and delegated to the Director,
Bureau of
[[Page 54923]]
Prisons in 28 CFR 0.96(p), part 541 in subchapter C of 28 CFR, chapter
V is proposed to be amended as set forth below.
SUBCHAPTER C--INSTITUTIONAL MANAGEMENT
PART 541--INMATE DISCIPLINE AND SPECIAL HOUSING UNITS
1. The authority citation for 28 CFR part 541 continues to read as
follows:
Authority: 5 U.S.C. 301; 18 U.S.C. 3621, 3622, 3624, 4001, 4042,
4081, 4082 (Repealed in part as to offenses committed on or after
November 1, 1987), 4161-4166 (Repealed as to offenses committed on
or after November 1, 1987), 5006-5024 (Repealed October 12, 1984 as
to offenses committed after that date), 5039; 28 U.S.C. 509, 510; 28
CFR 0.95-0.99.
2. In Sec. 541.13, paragraphs (a) (1) through (4), (f), and Tables
3, 4, and 5 are revised to read as follows:
Sec. 541.13 Prohibited acts and disciplinary severity scale.
(a) * * *
(1) Greatest category offenses. The Discipline Hearing Officer
(DHO) shall impose and execute one or more of sanctions A through E.
Sanction B.1 must be imposed for a VCCLEA inmate rated as violent
(i.e., an inmate who, as specified in the Violent Crime Control and Law
Enforcement Act of 1994, committed a crime of violence after September
13, 1994). The DHO may impose and execute sanction F and/or G only in
addition to execution of one or more of sanctions A through E. Except
as noted in the sanction, the DHO may also suspend one or more
additional sanctions A through G.
(2) High category offenses. The Discipline Hearing Officer shall
impose and execute one or more of sanctions A through M, and, except as
noted in the sanction, may also suspend one or more additional
sanctions A through M. Sanction B.1 must be imposed for a VCCLEA inmate
rated as violent. The Unit Discipline Committee shall impose and
execute one or more of sanctions G through M, and may suspend one or
more additional sanctions G through M, except for a VCCLEA inmate rated
as violent. All high category offense charges for a VCCLEA inmate rated
as violent must be referred to the DHO.
(3) Moderate category offenses. The Discipline Hearing Officer
shall impose at least one sanction A through N, but, except as noted in
the sanction, may suspend any sanction or sanctions imposed. Sanction
B.1 must be imposed for a VCCLEA inmate rated as violent. Except for
charges referred to the DHO, the Unit Discipline Committee shall impose
at least one sanction G through N, but may suspend any sanction or
sanctions imposed. The UDC ordinarily shall refer to the DHO a moderate
category charge for a VCCLEA inmate rated as violent. The UDC must
thoroughly document in writing the reasons why the charge for such
inmate was not referred to the DHO.
(4) Low moderate category offenses. The Discipline Hearing Officer
shall impose at least one sanction B.1, or E through P. The Discipline
Hearing Officer may suspend any E through P sanction or sanctions
imposed (a B.1 sanction may not be suspended). Except for charges
referred to the DHO, the Unit Discipline Committee (UDC) shall impose
at least one sanction G through P, but may suspend any sanction or
sanctions imposed. The UDC ordinarily shall refer to the DHO a low
moderate category charge for a VCCLEA inmate rated as violent. The UDC
must thoroughly document in writing the reasons why the charge for such
inmate was not referred to the DHO.
* * * * *
(f) Sanctions by severity of prohibited act, with eligibility for
restoration of forfeited and withheld statutory good time and forfeited
good conduct time are presented in Table 6.
* * * * *
Table 3.--Prohibited Acts and Disciplinary Severity Scale Greatest Category
[The UDC shall refer all Greatest Severity Prohibited Acts to the DHO with recommendations as to an appropriate disposition]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Code/Prohibited acts Sanctions
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100 Killing A. Recommend parole date rescission or retardation.
101 Assaulting any person (includes sexual assault) or an armed assault on B. Forfeit earned statutory good time or non-vested good conduct time
the institution's secure perimeter (a charge for assaulting any person at credit (up to 100%) and/or terminate or disallow extra good time (an extra
this level is to be used only when serious physical injury has been good time sanction may not be suspended).
attempted or carried out by an inmate) B1. Disallow ordinarily between 50 and 75% (27-41 days) of good conduct
102 Escape from escort: escape from a secure institution (low, medium, time (GCT) credit available for year (a disallowance sanction may not be
high and administrative type institutions); or escape from a minimum suspended) VCCLEA inmates rated as violent will be disallowed all GCT for
security level institution with violence that evaluation period.
103 Setting a fire (charged with this act in this category only when found C. Disciplinary Transfer (recommend).
to pose a threat to life or a threat of serious bodily harm or in D. Disciplinary Segregation (up to 60 days).
furtherance prohibited act of Greatest Severity, e.g., in furtherance of a E. Make monetary restitution.
riot or escape; otherwise the charge is properly classified Code 218 or F. Withhold statutory good time (Note--can be in addition to A through E--
329) cannot be the only sanction executed).
104 Possession, manufacture, or introduction of a gun, firearm, weapon, G. Loss of privileges (Note--can be in addition to A though E--cannot be
sharpened instrument, knife, dangerous chemical, explosive or any the only sanction executed).
ammunition
105 Rioting
106 Encouraging others to riot
107 Taking hostage(s)
108 Possession, manufacture, or introduction of a hazardous tool (Tools
most likely to be used in an escape or escape attempt or to serve as
weapons capable of doing serious bodily harm to others; or those hazardous
to institutional security or personal safety; e.g., hack-saw blade)
109 Possession, introduction, or use of any narcotics, marijuana, drugs,
or related paraphernalia not prescribed for the individual by the medical
staff
110 Refusing to provide a urine sample or to take part in other drug-abuse
testing
[[Page 54924]]
198 Interfering with a staff member in the performance of duties. (Conduct
must be of the Greatest Severity nature.) This charge is to be used only
when another charge of greatest severity is not applicable
199 Conduct which disrupts or interferes with the security or orderly
running of the institution or the Bureau of Prisons. (Conduct must be of
the Greatest Severity nature.) This charge is to be used only when another
charge of greatest severity is not applicable
200 Escape from unescorted Community Programs and activities and Open A. Recommend parole date rescission or retardation.
Institutions (minimum security level) and from outside secure B. Forfeit earned statutory good time or non-vested good conduct time
institutions--without violence credit up to 50% or up to 60 days, whichever is less, and/or terminate or
201 Fighting with another person disallow extra good time (an extra good time sanction may not be
202 (Not to be used) suspended).
203 Threatening another with bodily harm or any other offense B1. Disallow ordinarily between 25 and 50% (14-27 days) of good conduct
204 Extortion, blackmail, protection: Demanding or receiving money or time credit (GCT) available for year (a disallowance sanction may not be
anything of value in return for protection against others, to avoid bodily suspended). VCCLEA inmates rated as violent will be disallowed all GCT for
harm, or under threat of informing that evaluation period.
205 Engaging in sexual acts C. Disciplinary Transfer (recommend).
206 Making sexual proposals or threats to another D. Disciplinary segregation (up to 30 days).
207 Wearing a disguise or a mask E. Make monetary restitution.
208 Possession of any unauthorized locking device, or lock pick, or F. Withhold statutory good time.
tampering with or blocking any lock device (includes keys), or destroying, G. Loss of privileges: commissary, movies, recreation, etc.
altering, interfering with, improperly using, or damaging any security H. Change housing (quarters).
device, mechanism, or procedure I. Remove from program and/or group activity.
209 Adulteration of any food or drink J. Loss of job.
210 (Not to be used) K. Impound inmate's personal property.
211 Possessing any officer's or staff clothing L. Confiscate contraband.
M. Restrict to quarters.
212 Engaging in, or encouraging a group demonstration
213 Encouraging others to refuse to work, or to participate in a work
stoppage
214 (Not to be used)
215 Introduction of alcohol into BOP facility
216 Giving or offering an official or staff member a bride, or anything of
value
217 Giving money to, or receiving money from, any person for purposes of
introducing contraband or for any other illegal or prohibited purposes
218 Destroying, altering, or damaging government property, or the property
of another person, having a value in excess of $100.00 or destroying,
altering, or damaging life-safety devices (e.g., fire alarm) regardless of
financial value
219 Stealing (theft; this includes data obtained through the unauthorized
use of a communications facility, or through the unauthorized access to
disks, tapes, or computer printouts or other automated equipment on which
data is stored.)
220 Demonstrating, practicing, or using martial arts, boxing (except for
use of a punching bag), wrestling, or other forms of physical encounter,
or military exercise or drill
221 Being in an unauthorized area with a person of the opposite sex
without staff permission
222 Making, possessing, or using intoxicants
223 Refusing to breathe into a breathalyzer or take part in other testing
for use of alcohol
224 Assaulting any person (charged with this act only when a less serious
physical injury or contact has been attempted or carried out by an inmate)
298 Interfering with a staff member in the performance of duties. (Conduct
must be of the High Severity nature.) This charge is to be used only when
another charge of high severity is not applicable
299 Conduct which disrupts or interferes with the security or orderly
running of the institution or the Bureau of Prisons. (Conduct must be of
the High Severity nature.) This charge is to be used only when another
charge of high severity is not applicable
[[Page 54925]]
300 Indecent exposure A. Recommend parole date rescission or retardation.
301 (Not to be used) B. Forfeit earned statutory good time or non-vested good conduct time up to
302 Misuse of authorized medication 25% or up to 30 days whichever is less, and/or terminate or disallow extra
303 Possession of money or currency, unless specifically authorized, or in good time (an extra good time sanction may not be suspended).
excess of the amount authorized B.1 Disallow ordinarily up to 25% (1-14 days) of good conduct time credit
304 Loaning of property or anything of value for profit or increased available for year (a disallowance sanction may not be suspended).
return C. Disciplinary transfer (recommend).
305 Possession of anything not authorized for retention or receipt by the D. Disciplinary segregation (up to 15 days).
inmate, and not issued to him through regular channels E. Make monetary restitution.
306 Refusing to work, or to accept a program assignment F. Withhold statutory good time.
307 Refusing to obey an order of any staff member (May be categorized and G. Loss of privileges: commissary, movies, recreation, etc.
charged in terms of greater severity, according to the nature of the order H. Change housing (quarters).
being disobeyed; e.g., failure to obey an order which furthers a riot I. Remove from program and/or group activity.
would be charged as 105, Rioting; refusing to obey an order which furthers J. Loss of job.
a fight would be charged as 201, Fighting; refusing to provide a urine K. Impound inmate's personal property.
sample when ordered would be charged as Code 110) L. Confiscate contraband.
308 Violating a condition of a furlough M. Restrict to quarters.
309 Violating a condition of a community program N. Extra duty.
310 Unexcused absence from work or any assignment
311 Failing to perform work as instructed by the supervisor
312 Insolence towards a staff member
313 Lying or providing a false statement to a staff member
314 Counterfeiting, forging or unauthorized reproduction of any document,
article of identification, money, security, or official paper (May be
categorized in terms of greater severity according to the nature of the
item being reproduced; e.g., counterfeiting release papers to effect
escape, Code 102 or Code 200)
315 Participating in an unauthorized meeting or gathering
316 Being in an unauthorized area
317 Failure to follow safety or sanitation regulations
318 Using any equipment or machinery which is not specifically authorized
319 Using any equipment or machinery contrary to instructions or posted
safety standards
320 Failing to stand count
321 Interfering with the taking of count
322 (Not to be used)
323 (Not to be used)
324 Gambling
325 Preparing or conducting a gambling pool
326 Possession of gambling paraphernalia
327 Unauthorized contacts with the public
328 Giving money or anything of value to, or accepting money or anything
of value from: another inmate, or any other person without staff
authorization
329 Destroying, altering or damaging government property, or the property
of another person, having a value of $100.00 or less
330 Being unsanitary or untidy; failing to keep one's person and one's
quarters in accordance with posted standards
331 Possession, manufacture, or introduction of a non-hazardous tool or
other non-hazardous contraband (Tool not likely to be used in an escape or
escape attempt, or to serve as a weapon capable of doing serious bodily
harm to others, or not hazardous to institutional security or personal
safety; Other non-hazardous contraband includes such items as food or
cosmetics)
398 Interfering with a staff member in the performance of duties. (Conduct
must be of the Moderate Severity nature.) This charge is to be used only
when another charge of moderate severity is not applicable
399 Conduct which disrupts or interferes with the security or orderly
running of the institution or the Bureau of Prisons. (Conduct must be of
the Moderate Severity nature). This charge is to be used only when another
charge of moderate severity is not applicable
[[Page 54926]]
400 Possession of property belonging to another person B.1 Disallow ordinarily up to 12.5% (1-7 days) of good conduct time credit
401 Possessing unauthorized amount of otherwise authorized clothing available for year (to be used only where inmate found to have committed a
402 Malingering, feigning illness second violation of the same prohibited act within 6 months); Disallow
403 Smoking where prohibited ordinarily up to 25% (1-14 days) of good conduct time credit available for
404 Using abusive or obscene language year (to be used only where inmate found to have committed a third
405 Tattooing or self-mutilation violation of the same prohibited act within 6 months) (a disallowance
406 Unauthorized use of mail or telephone (Restriction, or loss for a sanction may not be suspended).
specific period of time, of these privileges may often be an appropriate E. Make monetary restitution.
sanction G) (May be categorized and charged in terms of greater severity, F. Withhold statutory good time.
according to the nature of the unauthorized use; e.g., the telephone is G. Loss of privileges: commissary, movies, recreation, etc.
used for planning, facilitating, committing an armed assault on the H. Change housing (quarters).
institution's secure perimeter, would be charged as Code 101, Assault) I. Remove from program and/or group activity.
407 Conduct with a visitor in violation of Bureau regulations J. Loss of job.
(Restriction, or loss for a specific period of time, of these privileges K. Impound inmate's personal property.
may often be an appropriate sanction G) L. Confiscate contraband.
408 Conducting a business M. Restrict to quarters.
409 Unauthorized physical contact (e.g., kissing, embracing) N. Extra duty.
O. Reprimand.
P. Warning.
498 Interfering with a staff member in the performance of duties. Conduct
must be of the Low Moderate Severity nature.) This charge is to be used
only when another charge of low moderate severity is not applicable
499 Conduct which disrupts or interferes with the security or orderly
running of the institution or the Bureau of Prisons. (Conduct must be of
the Low Moderate Severity nature.) This charge is to be used only when
another charge of low moderate severity is not applicable
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Aiding another person to commit any of these offenses, attempting to commit any of these offenses, and making plans to commit any of these
offenses, in all categories of severity, shall be considered the same as a commission of the offenses itself.
Table 4.--Sanctions
------------------------------------------------------------------------
-------------------------------------------------------------------------
1. Sanction of the Discipline Hearing Officer: (upon finding the inmate
committed the prohibited act)
A. Recommend parole date rescission or retardation. The DHO may make
recommendations to the U.S. Parole Commission for retardation or
rescission of parole grants. This may require holding fact-findings
hearings upon request of or for the use of the Commission.
B. Forfeit earned statutory good time, non-vested good conduct time, and/
or terminate or disallow extra good time. The statutory good time
available for forfeiture is limited to an amount computed by
multiplying the number of months served at the time of the offense for
which forfeiture action is taken, by the applicable monthly rate
specified in 18 U.S.C. 4161 (less any previous forfeiture or
withholding outstanding). The amount of good conduct time (GCT)
available for forfeiture is limited to the total number of days in the
``non-vested'' status at the time of the disciplinary hearing (less any
previous forfeiture). Disallowance of extra good time is limited to the
extra good time for the calendar month in which the violation occurs.
It may not be withheld or restored. The sanction of termination or
disallowance of extra good time may not be suspended. Authority to
restore forfeited good time is delegated to the Warden. This decision
may not be delegated lower than the Associate Warden level. Forfeited
good conduct time will not be restored until the inmate has earned a
high school diploma, equivalent degree (GED), or has been given an
exemption to the GED requirement. Limitations on this sanction and
eligibility for restoration are based on the severity scale. (See Table
6)
B.1 Disallowance of good conduct time. An inmate sentenced under the
Sentencing Reform Act provisions of the 1984 Comprehensive Crime
Control Act (includes the inmate who committed his or her crime on or
after November 1, 1987) may not receive statutory good time, but is
eligible to receive 54 days good conduct time credit each year (18
U.S.C. 3624(b)). Once awarded, the credit is vested, and may not be
disallowed. However, for crimes committed on or after September 13,
1994, credit toward an inmate's service of sentence shall not be vested
unless the inmate has earned or is making satisfactory progress toward
a high school diploma or an equivalent degree, or has been exempted
from participation because of a learning disability. Once disallowed,
the credit may not be restored, except by immediate review or appeal
action as indicated below. Prior to this award being made, the credit
may be disallowed for an inmate found to have committed a prohibited
act. A sanction of disallowance of good conduct time may not be
suspended. Only the DHO can take action to disallow good conduct time.
The DHO shall consider the severity of the prohibited act and the
suggested disallowance guidelines in making a determination to disallow
good conduct time. A decision to go above the guideline range is
warranted for a greatly aggravated offense or where there is a
repetitive violation of the same prohibited act that occurs within a
relatively short time frame (e.g., within 18 months for the same
greatest severity prohibited act, within 12 months for the same high
severity prohibited act, and within 6 months for the same moderate
severity prohibited act). A decision to go below the guidelines is
warranted for strong mitigating factors. Any decision outside the
suggested disallowance guidelines is to be documented and justified in
the DHO report.
VCCLEA inmates rated as violent will ordinarily be disallowed 14 days
good conduct time for each moderate level prohibited act they are found
to have committed at a DHO hearing; VCCLEA inmates rated as violent
will ordinarily be disallowed 7 days good conduct time for each low
moderate level prohibited act they are found to have committed at a DHO
hearing. However, the DHO may, after careful consideration of
mitigating factors (seriousness of the offense, the inmate's past
disciplinary record, the lack of available good conduct time, etc.)
choose to impose a lesser sanction, or even disallow no GCT for
moderate level and low moderate level prohibited acts by VCCLEA inmates
rated as violent. The DHO must thoroughly detail the rationale for
choosing to disallow less than 14 days or 7 days respectively. This
will be documented in Section VII of the DHO report. Disallowances of
amounts greater than 14 days or 7 days respectively will occur with
repetitive offenses consistent with Table 5.
[[Page 54927]]
The decision of the DHO is final and is subject only to review by the
Warden to ensure conformity with the provisions of the disciplinary
policy and by inmate appeal through the administrative remedy
procedures. The DHO is to ensure that the inmate is notified that any
appeal of a disallowance of good conduct time must be made within the
time frames established in the Bureau's rule on administrative remedy
procedures.
Except for VCCLEA inmates rated as violent, Sanction B.1 may be imposed
on the Low Moderate category only where the inmate has committed the
same low moderate prohibited act more than one time within a six-month
period.
C. Recommend disciplinary transfer. The DHO may recommend that an inmate
be transferred to another institution for disciplinary reasons. Where a
present or impending emergency requires immediate action, the Warden
may recommend for approval of the Regional Director the transfer of an
inmate prior to either a UDC or DHO Hearing. Transfers for disciplinary
reasons prior to a hearing before the UDC or DHO may be used in
emergency situations and only with approval of the Regional Director.
When an inmate is transferred under these circumstances, the sending
institution shall forward copies of incident reports and other relevant
materials with completed investigation to the receiving institution's
Discipline Hearing Officer. The inmate shall receive a hearing at the
receiving institution as soon as practicable under the circumstances to
consider the factual basis of the charge of misconduct and the reasons
for the emergency transfer. All procedural requirements applicable to
UDC or DHO hearings contained in this rule are appropriate, except that
written statements of unavailable witnesses are liberally accepted
instead of live testimony.
D. Disciplinary segregation. The DHO may direct that an inmate be placed
or retained in disciplinary segregation pursuant to guidelines
contained in this rule. Consecutive disciplinary segregation sanctions
can be imposed and executed for inmates charged with and found to have
committed offenses that are part of different acts only. Specific
limits on time in disciplinary segregation are based on the severity
scale. (See Table 6)
E. Make monetary restitution. The DHO may direct that an inmate
reimburse the U.S. Treasury for any damages to U.S. Government property
that the individual is determined to have caused or contributed to.
F. Withholding statutory good time. The DHO may direct that an inmate's
good time be withheld. Withholding of good time should not be applied
as a universal punishment to all persons in disciplinary segregation
status. Withholding is limited to the total amount of good time
creditable for the single month during which the violation occurs. Some
offenses, such as refusal to work at an assignment, may be recurring,
thereby permitting, when ordered by the DHO, consecutive withholding
actions. When this is the intent, the DHO shall specify at the time of
the initial DHO hearing that good time may be withheld until the inmate
elects to return to work. During the running of such a withholding
order, the DHO shall review the offense with the inmate on a monthly
basis. For an on-going offense, staff need not prepare a new Incident
Report or conduct an investigation or initial hearing (UDC). The DHO
shall provide the inmate an opportunity to appear in person and to
present a statement orally or in writing. The DHO shall document its
action on, or by an attachment to, the initial Institution Discipline
report. If further withholding is ordered, the DHO shall advise the
inmate of the inmate's right to appeal through the Administrative
Remedy procedures (Part 542). Only the Warden may restore withheld
statutory good time. This decision may not be delegated lower than the
Associate Warden level. Restoration eligibility is based on the
severity scale. (See Table 6)
2. Sanctions of the Discipline Hearing Officer/Unit Discipline
Committee: (upon finding the inmate committed the prohibited act)
G. Loss of privileges: commissary, movies, recreation, etc. The DHO or
UDC may direct that an inmate forego specific privileges for a
specified period of time. Ordinarily, loss of privileges is used as a
sanction in response to an abuse of that privilege. However, the DHO or
UDC may impose a loss of privilege sanction not directly related to the
offense when there is a lack of other appropriate sanctions or when
imposition of an appropriate sanction previously has been ineffective.
H. Change housing (quarters). The DHO or UDC may direct that an inmate
be removed from current housing and placed in other housing.
I. Remove from program and/or group activity. The DHO or UDC may direct
that an inmate forego participating in any program or group activity
for a specified period of time.
J. Loss of job. The DHO or UDC may direct that an inmate be removed from
present job and/or be assigned to another job.
K. Impound Inmate's personal property. The DHO or UDC may direct that an
inmate's personal property be stored in the institution (when relevant
to offense) for a specified period of time.
L. Confiscate contraband. The DHO or UDC may direct that any contraband
in the possession of an inmate be confiscated and disposed of
appropriately.
M. Restrict quarters. The DHO or UDC may direct that an inmate be
confined to quarters or in its immediate area for a specified period of
time.
N. Extra Duty. The DHO or UDC may direct that an inmate perform tasks
other than those performed during regularly assigned institutional job.
O. Reprimand. The DHO or UDC may reprimand an inmate either verbally or
in writing.
P. Warning. The DHO or UDC may verbally warn an inmate regarding
committing prohibited act(s).
------------------------------------------------------------------------
Table 5.--Sanctions for Repetition of Prohibited Acts Within Same Category\1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Prior offense (same
Category code) within time Frequency of repeated offense Sanction permitted
period
--------------------------------------------------------------------------------------------------------------------------------------------------------
Low Moderate (400 series).................... 6 months............. 2d offense.......................... Low Moderate Sanctions, plus:
1. Disciplinary segregation, up to 7 days.
2. Forfeit earned SGT or non-vested GCT up
to 10% or up to 15 days, whichever is less,
and/or terminate or disallow extra good
time (EGT) (an EGT sanction may not be
suspended).
3d offense, or more................. Any sanctions available in Moderate (300)
and Low Moderate (400) series
Moderate (300 series)........................ 12 months............ 2d offense.......................... Moderate Sanctions (A, C, E-N), plus:
1. Disciplinary segregation, up to 21 days.
2. Forfeit earned SGT or non-vested GCT up
to 37\1/2\% or up to 45 days, whichever is
less, and/or terminate or disallow EGT (an
EGT sanction may not be suspended).
3d offense, or more................. Any sanctions available in Moderate (300)
and High (200) series.
High (200 series)............................ 18 months............ 2d offense.......................... High Sanction (A, C, E-M), plus:
[[Page 54928]]
1. Disciplinary segregation, up to 45 days.
2. Forfeit earned SGT or non-vested GCT up
to 75% or up to 90 days, whichever is less,
and/or terminate or disallow EGT (an EGT
sanction may not be suspended).
3d offense, or more................. Any sanction available in High (200) and
Greatest (100) series.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ When the Unit Discipline Committee or DHO finds that an inmate has committed a prohibited act in the Low Moderate, Moderate, or High category, and
when there has been a repetition of the same offense(s) within recent months (offenses for violation of the same code), increased sanctions are
authorized to be imposed by the DHO according to the following chart.
(Note: An informal resolution may not be considered as a prior offense for purposes of this chart.)
3. In Sec. 541.14, paragraph (a) is amended by revising the last
sentence to read as follows:
Sec. 541.14 Incident report and investigation.
(a) Incident report. * * * Only the DHO may make a final
disposition on a prohibited act in the Greatest Severity Category or on
a prohibited act in the High Category (when the High Category
prohibited act has been committed by a VCCLEA inmate rated as violent).
* * * * *
[FR Doc. 95-26612 Filed 10-25-95; 8:45 am]
BILLING CODE 4410-05-P
Complete official Federal Register PDF
FR Doc. 95-26591 Approval and Promulgation of State Implementation Plans: Washington
[Federal Register Volume 60, Number 207 (Thursday, October 26, 1995)]
[Proposed Rules]
[Pages 54832-54833]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-26591]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[WA8-1-5478b; WA36-1-6951b; FRL-5315-8]
Approval and Promulgation of State Implementation Plans:
Washington
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The EPA proposes to approve the PM-10 contingency measures for
Seattle and Kent, Washington into the Washington State Implementation
Plan (SIP). At the same time, EPA is providing notice that the
conditions required under the June 23, 1994 (59 FR 32370), conditional
approval of the Seattle PM-10 attainment plan have been met. The SIP
revision was submitted by the State to satisfy certain Federal Clean
Air Act requirements for contingency measures. In the Final Rules
Section of this Federal Register, the EPA is approving the State's SIP
revision as a direct final rule without prior proposal because the
Agency views this as a noncontroversial revision amendment and
anticipates no adverse comments. A detailed rationale for the approval
is set forth in the direct final rule. If no adverse comments are
received in response to this proposed rule, no further activity is
contemplated in relation to this rule. If the EPA receives adverse
comments, the direct final rule will be withdrawn and all public
comments received will be addressed in a subsequent final rule based on
this proposed rule. The EPA will not institute a second comment period
on this action.
DATES: Comments on this proposed rule must be received in writing by
November 27, 1995.
ADDRESSES: Written comments should be addressed to Montel Livingston,
[[Page 54833]]
Environmental Protection Specialist (AT-082), Air Programs Section, at
the EPA Regional Office listed below. Copies of the documents relevant
to this proposed rule are available for public inspection during normal
business hours at the following locations. The interested persons
wanting to examine these documents should make an appointment with the
appropriate office at least 24 hours before the visiting day.
U.S. Environmental Protection Agency, Region 10, Air Programs Section,
1200 6th Avenue, Seattle, WA 98101.
The State of Washington Department of Ecology, P.O. Box 47600, Olympia,
WA 98504-7600.
FOR FURTHER INFORMATION CONTACT: George Lauderdale, Air Programs Branch
(AT-082), EPA, 1200 6th Avenue, Seattle, WA 98101, (206) 553-6511.
SUPPLEMENTARY INFORMATION: See the information provided in the Direct
Final action which is located in the Rules Section of this Federal
Register.
Dated: October 2, 1995.
Chuck Clarke,
Regional Administrator.
[FR Doc. 95-26591 Filed 10-25-95; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 95-26588 Approval and Promulgation of Implementation Plans; Illinois
[Federal Register Volume 60, Number 207 (Thursday, October 26, 1995)]
[Proposed Rules]
[Page 54832]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-26588]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[IL126-1-7031b; FRL-5299-9]
Approval and Promulgation of Implementation Plans; Illinois
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The United States Environmental Protection Agency (USEPA)
proposes to approve Illinois' May 5, 1995, request to revise the
State's Wood Furniture Coating rule as part of the State's 15 percent
Reasonable Further Progress Plan control measures for the control of
Volatile Organic Matter. In the final rules section of this Federal
Register, the USEPA is approving this action as a direct final rule
without prior proposal because USEPA views this as a noncontroversial
action and anticipates no adverse comments. A detailed rationale for
the approval is set forth in the direct final rule. If no adverse
comments are received in response to that direct final rule, no further
activity is contemplated in relation to this proposed rule. If USEPA
receives adverse comments, the direct final rule will be withdrawn and
all public comments received will be addressed in a subsequent final
rule based on the proposed rule. USEPA will not institute a second
comment period on this action. Any parties interested in commenting on
this notice should do so at this time.
DATES: Comments on this proposed rule must be received on or before
November 27, 1995.
ADDRESSES: Written comments should be mailed to: J. Elmer Bortzer,
Chief, Regulation Development Section, Regulation Development Branch
(AR18-J), U.S. Environmental Protection Agency, Region 5, 77 West
Jackson Boulevard, Chicago, Illinois 60604.
Copies of the State submittal and USEPA's analysis of it are
available for inspection at: Regulation Development Section, Regulation
Development Branch (AR18-J), U.S. Environmental Protection Agency,
Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604.
FOR FURTHER INFORMATION CONTACT: Mark J. Palermo, Regulation
Development Section, Regulation Development Branch (AR18-J), U.S.
Environmental Protection Agency, Region 5, 77 West Jackson Boulevard,
Chicago, Illinois 60604, (312) 886-6082.
SUPPLEMENTARY INFORMATION: For additional information see the direct
final rule published in the rules section of this Federal Register.
Dated: August 9, 1995.
Valdas V. Adamkus,
Regional Administrator.
[FR Doc. 95-26588 Filed 10-25-95; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 95-26586 Approval and Promulgation of Implementation Plans; Illinois
[Federal Register Volume 60, Number 207 (Thursday, October 26, 1995)]
[Proposed Rules]
[Pages 54831-54832]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-26586]
=======================================================================
-----------------------------------------------------------------------
[[Page 54832]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[IL125-1-7030b; FRL-5312-8]
Approval and Promulgation of Implementation Plans; Illinois
AGENCY: Environmental Protection Agency.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The United States Environmental Protection Agency (USEPA)
proposes to approve Illinois' May 5, 1995, State Implementation Plan
(SIP) revision request establishing new rules for automotive/
transportation and business machine plastic parts coating operations as
part of the State's 15 percent Reasonable Further Progress Plan control
measures for the control of Volatile Organic Compounds (VOC). In the
final rules section of this Federal Register, the USEPA is approving
this action as a direct final rule without prior proposal because USEPA
views this as a noncontroversial action and anticipates no adverse
comments. A detailed rationale for the approval is set forth in the
direct final rule. If no adverse comments are received in response to
that direct final rule, no further activity is contemplated in relation
to this proposed rule. If USEPA receives adverse comments, the direct
final rule will be withdrawn and all public comments received will be
addressed in a subsequent final rule based on the proposed rule. USEPA
will not institute a second comment period on this action. Any parties
interested in commenting on this document should do so at this time.
DATES: Comments on this proposed rule must be received on or before
November 27, 1995.
ADDRESSES: Written comments should be mailed to: J. Elmer Bortzer,
Chief, Regulation Development Section, Regulation Development Branch
(AR18-J), U.S. Environmental Protection Agency, Region 5, 77 West
Jackson Boulevard, Chicago, Illinois 60604.
Copies of the State submittal and USEPA's analysis of it are
available for inspection at: Regulation Development Section, Regulation
Development Branch (AR18-J), U.S. Environmental Protection Agency,
Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604.
FOR FURTHER INFORMATION CONTACT: Mark J. Palermo, Regulation
Development Section, Regulation Development Branch (AR18-J), U.S.
Environmental Protection Agency, Region 5, 77 West Jackson Boulevard,
Chicago, Illinois 60604, (312) 886-6082.
SUPPLEMENTARY INFORMATION: For additional information see the direct
final rule published in the rules section of this Federal Register.
Dated: September 22, 1995.
David A. Ullrich,
Acting Regional Administrator.
[FR Doc. 95-26586 Filed 10-25-95; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 95-26576 Ownership Reports and Trading by Officers, Directors and Principal Security Holders; Correction
[Federal Register Volume 60, Number 207 (Thursday, October 26, 1995)]
[Proposed Rules]
[Pages 54822-54823]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-26576]
=======================================================================
-----------------------------------------------------------------------
[[Page 54823]]
SECURITIES AND EXCHANGE COMMISSION
17 CFR Part 240
[Release Nos. 34-36356A; 35-26389A; IC-21406A; File No. S7-21-94]
RIN 3235-AF66
Ownership Reports and Trading by Officers, Directors and
Principal Security Holders; Correction
AGENCY: Securities and Exchange Commission.
ACTION: Correction to proposed rules.
-----------------------------------------------------------------------
SUMMARY: This document contains a correction to the alternative
proposed amendment to Securities Exchange Act Rule 16b-3 that was
published on October 17, 1995 (60 FR 53832).
DATES: Comments should be received on or before December 15, 1995.
ADDRESSES: Comments should be submitted in triplicate to Jonathan G.
Katz, Secretary, Securities and Exchange Commission, 450 Fifth Street,
N.W., Washington, D.C. 20549. Comment letters should refer to File No.
S7-21-94. All comments received will be available for public inspection
and copying in the Commission's Public Reference Room, 450 Fifth
Street, N.W., Washington, D.C., 20549.
FOR FURTHER INFORMATION CONTACT: Anne M. Krauskopf at (202) 942-2900,
Division of Corporation Finance, Securities and Exchange Commission,
450 Fifth Street, N.W., Washington, D.C. 20549.
SUPPLEMENTARY INFORMATION: On October 11, 1995, the Commission proposed
amendments to the rule that exempts certain employee benefit plan
transactions from the short-swing profit recovery provisions of Section
16(b) 1 of the Securities Exchange Act of 1934 (``Exchange Act'')
2 that would broaden the exemption and extend it to other
transactions between issuers and their officers and directors.3 As
published, the text of the proposed amended rule inadvertently omitted
from the shareholder approval standard of Alternative Proposed Rule
16b-3(c)(1)(ii) the requirement that, where a meeting is held, the vote
be of the majority of the securities of the issuer present, or
represented, and entitled to vote at the meeting. It is the
Commission's intention that the procedural standards for obtaining
shareholder approval for purposes of Alternative Proposed Rule 16b-
3(c)(1)(ii) would remain the same as currently required under Rule 16b-
3(b).4
\1\ 15 U.S.C. 78p(b).
\2\ 15 U.S.C. 78a et seq. (1988).
\3\ Release No. 34-36356 (Oct. 17, 1995) [60 FR 53832].
\4\ 17 CFR 240.16b-3(b).
---------------------------------------------------------------------------
Accordingly, the proposed rule that would exempt transactions
between issuers and their officers and directors that was the subject
of FR Document 95-25626 is corrected as follows:
PART 240--[CORRECTED]
On page 53840, in the first column, paragraph (c)(1)(ii) of
proposed Sec. 240.16b-3 is revised to read as follows:
Sec. 240.16b-3 Transactions between an issuer and its officers or
directors.
* * * * *
(c) * * *
(1) * * *
(ii) The transaction is approved or ratified, in compliance with
section 14 of the Act, by either: the affirmative votes of the holders
of a majority of the securities of the issuer present, or represented,
and entitled to vote at a meeting duly held in accordance with the
applicable laws of the state or other jurisdiction in which the issuer
is incorporated; or the written consent of the holders of a majority of
the securities of the issuer entitled to vote, provided that such
ratification occurs no later than the date of the next annual meeting
of shareholders; or
* * * * *
Dated: October 20, 1995.
By the Commission.
Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 95-26576 Filed 10-25-95; 8:45 am]
BILLING CODE 8010-01-P
Complete official Federal Register PDF
FR Doc. 95-26567 Schedule for Rating Disabilities; Mental Disorders
[Federal Register Volume 60, Number 207 (Thursday, October 26, 1995)]
[Proposed Rules]
[Pages 54825-54831]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-26567]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 4
RIN 2900-AF01
Schedule for Rating Disabilities; Mental Disorders
AGENCY: Department of Veterans Affairs.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Department of Veterans Affairs (VA) is proposing to amend
that portion of its Schedule for Rating Disabilities dealing with
Mental Disorders. This is part of the first comprehensive review of the
rating schedule since 1945. The intended effect of this action is to
update the section of the rating schedule on mental disorders to ensure
that it uses current medical terminology and unambiguous criteria, and
that it reflects medical advances which have occurred since the last
review.
DATES: Comments must be received by VA on or before December 26, 1995.
ADDRESSES: Mail written comments to: Director, Office of Regulations
Management (02D), Department of Veterans Affairs, 810 Vermont Ave.,
NW., Washington, DC 20420 or hand deliver written comments to: Office
of Regulations Management, Room 1176, 801 Eye St., NW., Washington, DC
20001. Comments should indicate that they are submitted in response to
``RIN 2900-AF01.'' All written comments received will be available for
public inspection in the Office of Regulations Management, Room 1176,
801 Eye St., NW., Washington, DC 20001 between the hours of 8 a.m. and
4:30 p.m., Monday through Friday (except holidays).
FOR FURTHER INFORMATION CONTACT: Caroll McBrine, M.D., Consultant,
Regulations Staff, Compensation and Pension Service, Veterans Benefits
Administration, Department of Veterans Affairs, 810 Vermont Ave., NW.,
Washington, DC 20420, (202) 273-7210.
SUPPLEMENTARY INFORMATION: Prior to the start of its comprehensive
review of the rating schedule, VA contracted with an outside consulting
firm to offer suggestions for changes in the rating schedule to help
fulfill the goals of revising and updating the medical criteria. This
proposed amendment includes many of their suggestions. Some
recommendations, however, addressed areas other than evaluation
criteria, such as percentage evaluations and frequency of examinations.
Since these suggestions are clearly beyond the scope of the contract
and deal with issues which would affect the internal consistency of the
entire rating schedule rather than one section, we have generally not
adopted them. The comments of the consultants are incorporated into the
discussions below.
VA published an advance notice of proposed rulemaking in the
Federal Register on May 2, 1991 (56 FR 20170) in order to solicit
comments and suggestions from interested groups and the general public.
In response to this notice, we received comments from several employees
of VA and one from The American Legion. All of the commenters
recommended a change in the rating criteria for mental disorders,
urging more clarity and objectivity, and more extensive and definitive
guidelines.
In the current rating schedule, Secs. 4.125 through 4.131 and the
notes in Sec. 4.132 contain general information about mental disorders
and guidelines for their evaluation. The material is organized
randomly, however, and we propose to reorganize it so that everything
dealing with a single topic is grouped together. We also propose to
make a number of editorial changes in the material to make the
provisions clearer and less ambiguous and to make the terminology more
current. We further propose to remove material which is not regulatory,
i.e., which neither prescribes VA policy nor limits the action a rating
board may take. Additionally, we propose to incorporate regulatory
material from the notes in Sec. 4.132 into Secs. 4.125 through 4.129,
reorganizing and rewording it, and removing repetitious material. This
will assure that all of the regulatory provisions are in one area of
the schedule, in orderly groupings, rather than spread throughout.
Much of Sec. 4.125 contains general information stating, for
example, that there have been rapid advances in modern psychiatry
during and since World War II, which have produced a better
understanding of the etiology, psychodynamics, and psychopathological
changes which
[[Page 54826]]
occur in mental diseases and emotional disturbances, and that the field
of mental disorders represents the greatest possible variety of
etiology, chronicity, and disabling effects and requires differential
consideration in these respects. We propose to remove that material
because it neither prescribes VA policy nor establishes procedures a
rating board must follow and is, therefore, not appropriate in a
regulation.
The only information in Sec. 4.125 which is essential is the
statement that psychiatric nomenclature in the rating schedule is based
on the third edition of the Diagnostic and Statistical Manual (DSM-
III), published by the American Psychiatric Association in 1980, and
that rating specialists should familiarize themselves thoroughly with
that manual. The contract consultants recommended that we make changes
in the mental disorders section to assure that it is consistent with
the current DSM Manual, and we propose to update the terminology and
categories of mental disorders by basing them on the newest revised
edition, DSM-IV, which was published in 1994. The DSM Manuals are used
in the United States as the basis for the diagnosis and classification
of mental disorders. They are referred to by, and their terminology is
incorporated into, psychiatry textbooks. They represent the common
language of both VA and non-VA health care providers and researchers
and, therefore, provide rating specialists with a standard by which
examinations from all sources can be compared and assessed. The use of
DSM-IV as the basis for terminology and diagnostic classification of
mental disorders for VA purposes is, therefore, unquestionably
appropriate. We propose to present this material in a note rather than
assigning it an entire section of the CFR.
We propose to change the title of Sec. 4.125 from ``General
considerations'' to ``Diagnosis of mental disorders'' and to divide it
into two paragraphs, the first requiring that the rating board return
an examination report to the examiner if the diagnosis does not conform
to DSM-IV or is not supported by the findings in the report, and the
second directing the rating board to determine whether a change in
diagnosis of a mental disorder represents progression of a prior
diagnosis, correction of an error in a prior diagnosis, or development
of a new and separate condition. This material is taken from
Secs. 4.126 (Substantiation of diagnosis) and 4.128 (Change of
diagnosis).
We propose to place all material about evaluation of mental
disorders in Sec. 4.126 and to change the title from ``Substantiation
of diagnosis'' to ``Evaluation of disability from mental disorders.''
This material is taken from Secs. 4.129 and 4.130, a statement and
notes under DC 9511, notes (1) and (4) under DC 9325, and notes under
the general rating formula for psychoneurotic disorders. We propose to
divide this section into four paragraphs dealing with symptoms and
remissions, social impairment, organic mental disorders, and conditions
diagnosed both as physical and mental disorders.
Paragraph (a) of Sec. 4.126 establishes the general basis for
evaluating mental disorders as the frequency, severity, and duration of
psychiatric symptoms, the length of remissions, and the veteran's
capacity for adjustment during remissions. It further requires that an
evaluation be based on all evidence of record bearing on occupational
and social impairment. This material is derived from material currently
found at Sec. 4.130, Evaluation of psychiatric disability. We have
deleted the statement currently found in Sec. 4.130 that the examiner's
analysis of the symptomatology is an ``essential.'' Since we propose to
revise the evaluation criteria to rely on specific signs and symptoms
rather than on a subjective determination as to whether a disorder
results in total, severe, considerable, definite, or mild social and
industrial impairment, it is the signs and symptoms that the examiner
documents rather than his or her assessment of their level of severity
that will determine the evaluation that the rating specialist assigns.
We also propose to delete the statement that describes time lost from
gainful work and decrease in work efficiency as ``two of the most
important determinants of disability.'' Since the proposed evaluation
criteria are structured around the nature and extent of occupational
and social impairment, including decreased reliability, productivity,
and work efficiency, that statement is no longer necessary.
Paragraph (b) directs the rating board to consider the extent of
social impairment, but not to assign an evaluation solely on the basis
of social impairment. This is based on the current regulatory material
in Sec. 4.129 and in note (1) following the general rating formula for
psychoneurotic disorders, and represents no substantive change. The
contract consultants recommended a greater emphasis on social
impairment in rating mental disability, but because our statutory
authority to establish the rating schedule, 38 U.S.C. 1155, requires
that ratings be based, as far as practicable, upon the average
impairments of earning capacity, we do not propose to adopt that
recommendation.
Paragraph (c) directs the rating board to evaluate delirium,
dementia, and amnestic and other cognitive mental disorders under the
general rating formula for mental disorders and to combine this
evaluation with those for neurological or other physical impairments
stemming from the same etiology, e.g., a head injury. This represents
no substantive change from material currently contained in notes (1)
and (2) under DC 9325.
Paragraph (d) directs the rating board to evaluate a single
disability that has been diagnosed both as a physical condition and as
a mental disorder under the diagnostic code which represents the
dominant (more disabling) aspect of the condition. This represents no
substantive change from information in notes (4) and (2) at the end of
the rating schedules for psychoneurotic disorders and psychological
factors affecting physical condition, respectively, except that we have
deleted ``major degree of disability'' and substituted ``dominant (more
disabling) aspect of the condition'' for clarity.
We propose to change the title of Sec. 4.127 from ``Mental
deficiency and personality disorders'' to ``Mental retardation and
personality disorders,'' since the term ``mental deficiency'' is
obsolete and no longer in common use. This is not a substantive change.
We propose that Sec. 4.127 state that although mental retardation
and personality disorders will not be considered as disabilities under
the terms of the schedule, a mental disorder that is superimposed upon,
but clearly separate from, the mental retardation or personality
disorder may be a disability for VA compensation purposes. This
represents a revision of the language in the current Sec. 4.127 for the
sake of clarity but does not represent a substantive change.
Although the contract consultants suggested that we add a category
for psychoactive substance abuse disorders, we have not done so because
substance-related disorders are addressed elsewhere in regulations (38
CFR 3.1 (m) and 3.301).
We propose to change the title of Sec. 4.128 from ``Change of
diagnosis'' to ``Convalescence ratings following extended
hospitalization,'' and to include in it material from a note under DC
9210 regarding the need to continue a total evaluation following a
period of hospitalization lasting six months or more and to schedule a
mandatory examination six months after the
[[Page 54827]]
veteran is discharged or released to nonbed care. We propose to add a
requirement that a change in evaluation based on that or any subsequent
examination shall be subject to the provisions of 38 CFR 3.105(e),
which require a 60-day notice before VA can reduce an evaluation and an
additional 60-day notice before the reduced evaluation takes effect.
While the fact that an individual is no longer hospitalized usually
means there has been some improvement, stabilization and return to
usual activities in the face of a severe mental disorder is often
difficult to achieve. Making changes subject to Sec. 3.105(e) will
preclude changes in evaluation unless a stable level of improvement has
occurred, and will help to prevent a cycle of changes in evaluations
followed by further examinations, further changes in evaluations, etc.
We propose to move the regulatory material on social impairment
from Sec. 4.129 to Sec. 4.126, paragraph (b), as discussed above, and
to change the title of Sec. 4.129 from ``Social inadaptability'' to
``Mental disorders due to psychic trauma.'' We propose to include in
the revised Sec. 4.129 the regulatory material from Sec. 4.131, which
requires an evaluation of not less than 50 percent when a mental
disorder that develops in service as a result of a highly stressful
event is severe enough to cause the veteran's release from active
service.
As discussed above, we propose to delete the contents of
Sec. 4.130, titled ``Evaluation of psychiatric disability'' in favor of
the proposed paragraph (a) of Sec. 4.126 and the proposed evaluation
criteria for mental disorders.
We propose to retain the substance of Sec. 4.131, ``Mental
disorders due to psychic trauma,'' in Sec. 4.129 and to delete
Sec. 4.131.
There are currently four notes in Sec. 4.132 following the rating
formula for psychoneuroses. Notes (1), prohibiting assignment of
evaluations based on social impairment only, and (4), concerning
evaluation of a single disability which has been diagnosed both as a
physical and mental disability, have been incorporated into Sec. 4.126,
as discussed above. We propose to delete note (2), which discusses the
requirements for a compensable rating from mental disorders; it is
redundant since the proposed Secs. 4.125 and 4.126 and general rating
formula set forth clear diagnostic and evaluation requirements. We also
propose to incorporate the regulatory content of note (3), regarding
the return of an inadequate examination report to the examiner, and
note (1) under DC 9511, concerning the diagnosis of psychological
disorders, into Sec. 4.125, the section on diagnosis. We propose to
delete the part of note (3) that discusses requirements for the
diagnosis of conversion disorder, as this is discussed in detail in
DSM-IV.
We propose to incorporate the regulatory content of note (2) under
DC 9511, about the evaluation of a single condition diagnosed both as a
mental and a physical disorder, into Sec. 4.126, the section on
evaluation, in order to keep in one place all of the regulatory
material on evaluation of mental disorders.
The conditions included under Sec. 4.132 are currently divided into
four categories: psychotic disorders (DC's 9201 through 9210), organic
mental disorders (DC's 9300 through 9325), psychoneurotic disorders
(DC's 9400 through 9411), and psychological factors affecting physical
condition (DC's 9500 through 9511). The contract consultants
recommended that we reclassify some diseases in accordance with the
current version of the DSM, and we propose to do that. We propose to
reorganize the conditions into eight categories that conform more
closely to the categories in DSM-IV, thus making it easier for rating
specialists to correlate the diagnoses given on VA and non-VA exams
with the conditions in the rating schedule. This reorganization will
require a number of changes in the arrangement and titles of diagnostic
codes. We also propose to add diagnostic codes for several conditions
that are encountered frequently enough in VA claims to warrant their
inclusion in the rating schedule, but which are not currently found
there.
We propose a new category of ``Schizophrenia and other psychotic
disorders.'' Except for schizoaffective disorder, discussed below, we
propose no change in the diagnostic codes pertaining to schizophrenia
(DC's 9201 through 9205), which cover conditions with characteristic
psychotic symptoms during the active phase, involving delusions,
hallucinations, or certain characteristic disturbances in affect and
the form of thought. We do, however, propose to change the evaluation
criteria for schizophrenia and all other conditions in the section on
mental disorders, as will be discussed later in the preamble.
We propose to delete diagnostic codes 9206, bipolar disorder,
manic, depressed, or mixed, and 9207, major depression with psychotic
features, since we are providing a category for mood disorders that
will include conditions such as these, and these changes will be
addressed further when mood disorders are discussed.
We propose to update the title of diagnostic code 9208 from
``paranoid disorders (specify type)'' to ``delusional disorder'' and
place it in the category of schizophrenia and other psychotic
disorders, in accord with DSM-IV. This disorder is characterized by a
persistent, nonbizarre delusion that is not due to any other mental or
physical disorder.
We also propose to delete DC 9209, major depression with
melancholia, another condition that will be moved to the category of
mood disorders.
We propose to revise the title of DC 9210, ``atypical psychosis,''
to ``psychotic disorder, not otherwise specified (atypical
psychosis),'' and put it in the same category with other psychotic
disorders, in accord with DSM-IV. We also propose to put
schizoaffective disorder, now part of DC 9205 (schizophrenia, residual
type; schizoaffective disorder; other and unspecified types), in this
category as diagnostic code 9211. Although schizoaffective disorder is
linked to schizophrenia in the current schedule, DSM-IV names it as a
separate psychotic disorder rather than as a type of schizophrenia.
We propose to change the title of the current category of ``Organic
mental disorders'' to ``Delirium, dementia, and amnestic and other
cognitive disorders'' in accordance with DSM-IV. The conditions in this
section demonstrate a psychological or behavioral abnormality
associated with transient or permanent dysfunction of the brain. We
also propose to consolidate the 16 types of dementia in the current
schedule into fewer categories, since several, such as dementia
associated with endocrine disorder (DC 9322) and dementia associated
with systemic infection (DC 9324), are quite uncommon (only about one-
tenth of one percent of VA beneficiaries being compensated for dementia
have one of these types of dementia); and a number of others, such as
dementia associated with central nervous system syphilis (DC 9301),
dementia associated with intracranial infections other than syphilis
(DC 9302), and dementia associated with epidemic encephalitis (DC
9315), lend themselves to logical groupings based on etiology (in this
case, infection).
DSM-IV provides a classification of dementias that is more complex
than is needed or useful for VA purposes. For example, it has separate
categories for dementia due to Huntington's disease, due to Pick's
disease, and due to Creutzfeldt-Jacob disease, all of which are
uncommonly seen for VA rating purposes.
We propose a reorganization better suited to VA purposes, and
requiring
[[Page 54828]]
less revision of the schedule than would be needed to adopt the entire
DSM-IV structure. We propose to use six diagnostic codes for specific
dementias, many of them the same as are now present. We propose to
retain some types because of their frequent occurrence and relevance to
veterans, dementia due to head trauma, (DC 9304, dementia associated
with brain trauma in the current schedule), for example, and some
because they represent clusters of a particular etiology, as discussed
above. We propose to retain diagnostic codes for the types of dementia
most commonly seen in the general population, vascular dementia
(currently DC's 9305 and 9306, multi-infarct dementia with cerebral
arteriosclerosis and multi-infarct dementia due to causes other than
cerebral arteriosclerosis, respectively), and dementia of the
Alzheimer's type (currently DC 9312, primary degenerative dementia).
This reorganization will not affect how dementias are evaluated, since
all types will be evaluated under the same criteria, but will allow
separation of the most common types by etiology.
We propose to delete DC's 9303 (currently dementia associated with
alcoholism) and 9325 (currently dementia associated with drug or poison
intoxication (other than alcohol)), in accord with DSM-IV, which
categorizes them as subtypes of dementia due to general medical
conditions, further discussed below. We propose to change DC 9304
(dementia associated with brain trauma) to dementia due to head trauma,
because this is more modern terminology, and DC 9301 (dementia
associated with central nervous system syphilis) to dementia associated
with infection. We propose to include in the revised DC 9301 the
conditions now evaluated under DC's 9301, 9302 (dementia associated
with intracranial infections other than syphilis), 9315 (dementia
associated with epidemic encephalitis), and 9324 (dementia associated
with systemic infection), since the number of cases of dementia due to
infection is small, and the specific type of infection has no bearing
on the evaluation.
We propose to delete current diagnostic codes 9307 (dementia
associated with convulsive disorder), 9308 (dementia associated with
disturbances of metabolism), 9309 (dementia associated with brain
tumor), and 9322 (dementia associated with endocrine disorder), and to
rate these conditions under a single new diagnostic code, 9326, titled
dementia due to other neurologic or general medical conditions
(including endocrine disorders, metabolic disorders, drugs, alcohol,
poisons, Pick's disease, brain tumors, etc.). This category encompasses
in a single miscellaneous category a number of uncommon conditions that
DSM-IV names separately.
We propose to change the title of DC 9305 from multi-infarct
dementia with cerebral arteriosclerosis to vascular dementia and to
have it encompass multi-infarct dementia due to causes other than
cerebral arteriosclerosis (DC 9306), which we propose to delete, since
both are due to vascular disease and may be difficult to distinguish.
They are addressed as a single entity in DSM-IV.
In practice, it may be impossible to determine whether a dementia
fits into DC 9310 (dementia due to unknown cause) or DC 9311 (dementia
due to undiagnosed cause). We therefore propose to delete DC 9311 and
revise DC 9310 to encompass both as dementia of unknown etiology. We
propose to retain DC 9312 but to alter the title from dementia,
primary, degenerative, to dementia of the Alzheimer's type, in accord
with DSM-IV.
We also propose to add diagnostic code 9327, organic mental
disorder, other, to provide a code for conditions such as amnestic
disorder, organic personality disorder, and other cognitive disorders
that are not dementias.
We propose to create a new category for anxiety disorders, in
accord with DSM-IV. This category will include several of the
conditions currently listed under the category of psychoneurotic
disorders: ``generalized anxiety disorder'' (DC 9400), ``obsessive
compulsive disorder'' (DC 9404), ``other and unspecified neurosis'' (DC
9410), ``post-traumatic stress disorder'' (DC 9411), and ``specific
(simple) phobia; social phobia'' (DC 9403) (modified from the current
``phobic disorder,'' in accord with terminology in DSM-IV).
We propose to move some of the conditions now listed under
psychoneurotic disorders to new categories: DC 9401, dissociative
amnesia; dissociative fugue; dissociative identity disorder (currently
psychogenic amnesia; psychogenic fugue; multiple personality) and DC
9408, depersonalization disorder, to the category of dissociative
disorders, as discussed below; DC 9402, conversion disorder;
psychogenic pain disorder, and DC 9409, hypochondriasis, to somatoform
disorders, as discussed below; and to delete DC 9405, dysthymic
disorder; adjustment disorder with depressed mood; major depression
without melancholia, also as discussed below. We also propose to add to
anxiety disorders two conditions that occur frequently enough that
diagnostic codes are needed and which are not now included in the
rating schedule: ``panic disorder and/or agoraphobia'' (DC 9412) and
``anxiety disorder, not otherwise specified'' (DC 9413). While ``other
and unspecified neurosis'' (DC 9410 in the current schedule) is not
limited to anxiety disorders, we propose to place it in this category
as a matter of convenience, rather than giving it a separate category.
We propose to create a category for dissociative disorders,
conditions, according to DSM-IV, where there is a disturbance in the
usually integrated functions of identity, memory, consciousness, or
perception of the environment. Included in this category will be:
``dissociative amnesia; dissociative fugue; dissociative identity
disorder (multiple personality disorder)'', (DC 9416, changed from 9401
to keep conditions in this category together) and ``depersonalization
disorder'' (DC 9417, changed from 9408 for the same reason).
In accord with DSM-IV, we propose to add a category for somatoform
disorders, conditions characterized by the presence of physical
symptoms that suggest a general medical condition and are not explained
by a general medical condition, by the direct effects of a substance,
or by another mental disorder. We propose to move two disorders,
``conversion disorder; psychogenic pain disorder'' (DC 9402) and
``hypochondriasis'' (DC 9409), that are currently listed under the
category of psychoneuroses to this category and give them new
diagnostic codes (DC's 9424, 9422, and 9425) so that the somatoform
disorders can be grouped together. We propose to split ``conversion
disorder; psychogenic pain disorder'' into ``conversion disorder,'' DC
9424, and ``pain disorder'' (the current term for psychogenic pain
disorder), DC 9422, since the two conditions are distinct, and to
change the diagnostic code for ``hypochondriasis'' from DC 9409 to DC
9425. We also propose to add two other conditions: ``somatization
disorder'' (DC 9421), a commonly seen somatoform disorder not included
in the present schedule, and ``undifferentiated somatoform disorder''
(DC 9423), for somatoform disorders that do not fit elsewhere and for
which there is no suitable code in the current schedule.
We propose to establish a new category in the rating schedule for
mood disorders, which are characterized, according to DSM-IV, by a
disturbance in mood as the predominant feature. We
[[Page 54829]]
propose to place in this category: bipolar disorder (DC 9432),
dysthymic disorder (DC 9433), and major depressive disorder (DC 9434).
Major depressive disorder is currently included under three diagnostic
codes: 9207 (major depression with psychotic features), 9209 (major
depression with melancholia), and 9405 (dysthymic disorder; adjustment
disorder with depressed mood; major depression without melancholia).
Since DSM-IV does not recognize three varieties of major depressive
disorder, we propose to evaluate it under a single diagnostic code,
9434 (major depressive disorder). We also propose to change the
diagnostic codes for dysthymic disorder (currently dysthymia, DC 9405)
and bipolar disorder (DC 9206) to DC's 9433 and 9432, respectively, in
order to group the mood disorders together.
For the sake of completeness, we propose to provide diagnostic
codes for two additional mood disorders not currently included in the
rating schedule: cyclothymic disorder (DC 9431), which, although
related to bipolar disorder, is classified as a separate entity by DSM-
IV, and mood disorder, not otherwise specified (DC 9435), which allows
the evaluation of conditions with mood symptoms that do not meet the
criteria for any specific mood disorder. As part of this
reorganization, we propose to remove DC 9405 (``dysthymic disorder;
adjustment disorder with depressed mood; major depression without
melancholia'') since we are providing separate diagnostic codes for
both ``dysthymic disorder'' (DC 9433) and ``major depressive disorder''
(DC 9434) under the category of mood disorders.
A category of mental disorders that the current rating schedule
does not specifically address, but that is seen fairly often in the
veteran population, is adjustment disorder. The essential feature of an
adjustment disorder is the development of clinically significant
emotional or behavioral symptoms in response to an identifiable
psychosocial stressor or stressors. We propose to add a new category
and diagnostic code (9440) for chronic adjustment disorder.
The current rating schedule provides separate rating formulas for
psychotic disorders, organic mental disorders, and psychoneurotic
disorders. The formula for psychoneurotic disorders provides some
specific criteria at each evaluation level, but also uses ``mild,''
``definite,'' ``considerable,'' and ``severe'' industrial impairment at
certain levels. Formulas for the other two provide specific criteria
only at the 100 percent level and assign less than total evaluations
based on whether there is ``mild,'' ``definite,'' ``considerable,'' or
``severe'' impairment of social and industrial adaptability at the
other levels. Because those are non-specific terms, they are subject to
interpretation by individual rating boards, and it is possible that
they may not be applied consistently. For example, the current
criterion for the 50 percent level of evaluation for psychotic
disorders is: ``considerable impairment of social and industrial
adaptability.'' This offers no objective guidance for the rating board
and makes comparison of one exam with another difficult. We propose to
provide more objective criteria that will in turn result in more
consistent evaluations.
The contract consultants recommended that we base the evaluation of
mental disorders on more extensive objective descriptions of their
possible effects and with examples of signs and symptoms at various
levels. In keeping with that recommendation, we propose to evaluate all
mental disorders except eating disorders under a single formula,
providing objective criteria based on signs and symptoms which
characteristically produce a particular level of disability. For
example, we propose criteria for the 50 percent level to be:
``moderately severe impairment in social and occupational functioning
with reduced reliability and productivity due to such symptoms as:
flattened affect; circumstantial, circumlocutory, or stereotyped
speech; panic attacks more than once a week; difficulty in
understanding complex commands; impairment of short--and long-term
memory (e.g., retention of only highly learned material, forgetting to
complete tasks); impaired judgment; impaired abstract thinking;
disturbances of motivation and mood; difficulty in establishing and
maintaining effective relationships at work and socially.'' These
criteria are clearly more objective than the present rating formulas,
and providing such objective criteria at each level of evaluation will
result in more consistent evaluations and will offer greater ease in
comparing examinations.
The symptoms indicated at each level are not intended to be
comprehensive (and could not be, because of the multitude of symptoms
in mental disorders), but to provide an objective framework that will
enable rating boards to assign consistent evaluations for mental
disorders based on signs and symptoms. The proposed criteria are more
objective than the current ones because they focus on the level of
impairment of occupational and social functioning as related to the
specific symptoms which are present, whether the symptoms are
persistent or transient, their frequency (e.g., of panic attacks), and
their severity (e.g., degrees of memory loss are given at different
levels). With more specific and objective criteria, the rating board
can make a determination of the level of severity based on all the
evidence of record, including the detailed report of all signs and
symptoms, relevant information regarding employment, report of daily
activities, etc., and will not have to attempt an assessment based on
whether the evidence corresponds to the non-specific language in the
current schedule.
In the current rating schedule, DC's 9500 through 9511 represent
psychological factors affecting physical conditions in various body
systems, and they are in their own category. Evaluation is directed to
be made under the general rating formula for psychoneurotic disorders.
In DSM-IV, the condition of ``psychological factors affecting physical
condition'' has been renamed ``psychological factors affecting medical
condition'' (PFAMC) and placed in a new category, ``Other conditions
that may be a focus of clinical attention.'' DSM-IV states that PFAMC
refers to the presence of one or more specific psychological or
behavioral factors that adversely affect a general medical condition.
There are therefore two components in PFAMC: a medical condition and
psychological factors. There is no need for a separate code and
evaluation criteria for this condition, and we propose to delete DC's
9500 through 9511. Psychological factors that do not constitute a
recognized mental disorder would not be service-connectable in their
own right. A separate evaluation for each service-connected component
would be made as usual under the appropriate diagnostic code(s). An
additional separate evaluation for PFAMC would not be warranted, and in
fact would represent pyramiding (see 38 CFR 4.14).
We propose to add one other category, ``eating disorders,'' a group
of mental disorders characterized by gross disturbances in eating
behavior. This category will include anorexia nervosa (DC 9520) and
bulimia nervosa (DC 9521), conditions which are commonly diagnosed but
cannot be appropriately rated under the proposed general rating
criteria for mental disorders because their more disabling aspects are
manifested primarily by physical findings rather than by psychological
symptoms. We propose that the criteria be based partly on the extent of
weight loss (per DSM-IV) and partly on the extent of incapacitating
episodes and needed periods of hospitalization.
The contract consultants suggested we include the categories of
sexual
[[Page 54830]]
disorders and sleep disorders in the revised schedule. Sexual
disorders, which include sexual dysfunctions such as sexual desire
disorders and orgasmic disorders, paraphilias such as fetishism and
sexual sadism, and gender identity disorders, do not have any inherent
effect on employability, and we do not propose to include them in the
schedule. Sleep disorders are often manifested by significant physical
manifestations, and narcolepsy is currently addressed in the rating
schedule under neurologic disorders (as DC 8108). We published a
proposed revision of the respiratory disorders section of the rating
schedule (58 FR 4962-69) that will include sleep apnea (as DC 6846). We
therefore do not propose to add a separate category for sleep disorders
to the mental disorders section of the schedule.
Section 4.16 of 38 CFR was established to assure that any veteran
unable to secure or follow a substantially gainful occupation because
of service-connected disabilities will be awarded a total evaluation
even though the schedular evaluation does not reach that level. Section
4.16(c) provides that where the only service-connected disability is a
mental disorder assigned a 70 percent schedular evaluation, but which
nonetheless precludes the veteran from securing or following a
substantially gainful occupation, the mental disorder will be assigned
a 100 percent schedular evaluation rather than an extra-schedular total
evaluation. We propose to delete Sec. 4.16 (c), because, in our
judgment, it is possible that a veteran may be properly evaluated at a
level less than 100 percent based on average impairment, but because of
unique aspects of his or her individual situation, might still be
unable to secure or follow a substantially gainful occupation. In order
to allow rating specialists the flexibility to fairly evaluate such
situations, we propose to have Sec. 4.16(a) apply to mental disorders
in the same manner that it does to other disabilities.
The Secretary hereby certifies that this regulatory amendment will
not have a significant economic impact on a substantial number of small
entities as they are defined in the Regulatory Flexibility Act (RFA), 5
U.S.C. 601-612. The reason for this certification is that this
amendment would not directly affect any small entities. Only VA
beneficiaries could be directly affected. Therefore, pursuant to 5
U.S.C. 605(b), this amendment is exempt from the initial and final
regulatory flexibility analysis requirements of sections 603 and 604.
This rule has been reviewed under Executive Order 12866 by the
Office of Management and Budget.
The Catalog of Federal Domestic Assistance program numbers are
64.104 and 64.109.
List of Subjects in 38 CFR Part 4
Disability benefits, Individuals with disabilities, Pensions,
Veterans.
Approved: July 19, 1995.
Jesse Brown,
Secretary of Veterans Affairs.
For the reasons set out in the preamble, 38 CFR part 4 is proposed
to be amended as set forth below:
PART 4--SCHEDULE FOR RATING DISABILITIES
1. The authority citation for part 4 continues to read as follows:
Authority: 38 U.S.C. 1155.
Sec. 4.16 [Amended]
2. In Sec. 4.16, paragraph (c) is removed.
Subpart B--Disability Ratings
3. Section 4.125 is revised to read as follows:
Sec. 4.125 Diagnosis of mental disorders.
(a) If the diagnosis of a mental disorder does not conform to DSM-
IV or is not supported by the findings on the examination report, the
rating board shall return the report to the examiner to substantiate
the diagnosis.
(b) If the diagnosis of a mental disorder is changed, the rating
board shall determine whether the new diagnosis represents progression
of the prior diagnosis, correction of an error in the prior diagnosis,
or development of a new and separate condition. If it is not clear from
the available records what the change of diagnosis represents, the
rating board shall return the report to the examiner for a
determination.
4. Section 4.126 is revised to read as follows:
Sec. 4.126 Evaluation of disability from mental disorders.
(a) When evaluating a mental disorder, the rating board shall
consider the frequency, severity, and duration of psychiatric symptoms,
the length of remissions, and the veteran's capacity for adjustment
during periods of remission. The rating board shall assign an
evaluation based on all the evidence of record that bears on
occupational and social impairment rather than on the examiner's
assessment of the level of disability at the moment of the examination.
(b) When evaluating the level of disability from a mental disorder,
the rating board will consider the extent of social impairment, but
shall not assign an evaluation solely on the basis of social
impairment.
(c) Delirium, dementia, and amnestic and other cognitive disorders
shall be evaluated under the general rating formula for mental
disorders; neurologic deficits or other impairments stemming from the
same etiology (e.g., a head injury) shall be evaluated separately and
combined with the evaluation for delirium, dementia, or amnestic or
other cognitive disorder (see Sec. 4.25 of this part).
(d) When a single disability has been diagnosed both as a physical
condition and as a mental disorder, the rating board shall evaluate it
using a diagnostic code which represents the dominant (more disabling)
aspect of the condition (see Sec. 4.14 of this part).
5. Section 4.127 is revised to read as follows:
Sec. 4.127 Mental retardation and personality disorders.
Mental retardation and personality disorders will not be considered
as disabilities under the terms of the schedule, but a mental disorder
that is superimposed upon, but clearly separate from, the mental
retardation or personality disorder may be a disability for VA
compensation purposes.
6. Section 4.128 is revised to read as follows:
Sec. 4.128 Convalescence ratings following extended hospitalization.
If a mental disorder has been assigned a total evaluation due to a
continuous period of hospitalization lasting six months or more, the
rating board shall continue the total evaluation indefinitely and
schedule a mandatory examination six months after the veteran is
discharged or released to nonbed care. A change in evaluation based on
that or any subsequent examination shall be subject to the provisions
of Sec. 3.105(e) of this chapter.
7. Section 4.129 is revised to read as follows:
Sec. 4.129 Mental disorders due to psychic trauma.
When a mental disorder that develops in service as a result of a
highly stressful event is severe enough to bring about the veteran's
release from active military service, the rating board shall assign an
evaluation of not less than 50 percent and schedule an examination
within the six month period following the veteran's discharge.
8. Section 4.130 is revised to read as follows:
[[Page 54831]]
Sec. 4.130 Schedule of ratings--mental disorders.
Note: The nomenclature employed in this portion of the rating
schedule is based upon the Diagnostic and Statistical Manual of
Mental Disorders, Fourth Edition, of the American Psychiatric
Association (DSM-IV). Rating boards must be thoroughly familiar with
this manual to properly implement the directives in Sec. 4.125
through Sec. 4.129 and to apply the general rating formula for
mental disorders in Sec. 4.130.
Schizophrenia and Other Psychotic Disorders
9201 Schizophrenia, disorganized type
9202 Schizophrenia, catatonic type
9203 Schizophrenia, paranoid type
9204 Schizophrenia, undifferentiated type
9205 Schizophrenia, residual type; other and unspecified types
9208 Delusional disorder
9210 Psychotic disorder, not otherwise specified (atypical psychosis)
9211 Schizoaffective disorder
Delirium, Dementia, and Amnestic and Other Cognitive Disorders)
9300 Delirium
9301 Dementia due to infection (HIV infection, syphilis, or other
systemic or intracranial infections)
9304 Dementia due to head trauma
9305 Vascular dementia
9310 Dementia of unknown etiology
9312 Dementia of the Alzheimer's type
9326 Dementia due to other neurologic or general medical conditions
(endocrine disorders, metabolic disorders, drugs, alcohol, poisons,
Pick's disease, brain tumors, etc.)
9327 Organic mental disorder, other
Anxiety Disorders
9400 Generalized anxiety disorder
9403 Specific (simple) phobia; social phobia
9404 Obsessive compulsive disorder
9410 Other and unspecified neurosis
9411 Post-traumatic stress disorder
9412 Panic disorder and/or agoraphobia
9413 Anxiety disorder, not otherwise specified
Dissociative Disorders
9416 Dissociative amnesia; dissociative fugue; dissociative identity
disorder (multiple personality disorder)
9417 Depersonalization disorder
Somatoform Disorders
9421 Somatization disorder
9422 Pain disorder
9423 Undifferentiated somatoform disorder
9424 Conversion disorder
9425 Hypochondriasis
Mood Disorders
9431 Cyclothymic disorder
9432 Bipolar disorder
9433 Dysthymic disorder
9434 Major depressive disorder
9435 Mood disorder, not otherwise specified
Chronic Adjustment Disorder
9440 Chronic adjustment disorder
General Rating Formula for Mental Disorders
Total occupational and social impairment, due to such symptoms as:
gross impairment in thought processes or communication; persistent
delusions or hallucinations; grossly inappropriate behavior; persistent
danger of hurting self or others; intermittent inability to perform
activities of daily living (including maintenance of minimal personal
hygiene); disorientation to time or place; memory loss for names of
close relatives, own occupation, or own name--100.
Severe occupational and social impairment, with deficiencies in
most areas, such as work, school, family relations, judgment, thinking,
or mood, due to such symptoms as: Suicidal ideation; obsessional
rituals which interfere with routine activities; speech intermittently
illogical, obscure, or irrelevant; near-continuous panic or depression
affecting the ability to function independently, appropriately and
effectively; impaired impulse control (such as unprovoked irritability
with periods of violence); spatial disorientation; neglect of personal
appearance and hygiene; difficulty in adapting to stressful
circumstances (including work or a worklike setting); inability to
establish and maintain effective relationships--70,
Occupational and social impairment with reduced reliability and
productivity due to such symptoms as: Flattened affect; circumstantial,
circumlocutory, or stereotyped speech; panic attacks more than once a
week; difficulty in understanding complex commands; impairment of
short- and long-term memory (e.g., retention of only highly learned
material, forgetting to complete tasks); impaired judgment; impaired
abstract thinking; disturbances of motivation and mood; difficulty in
establishing and maintaining effective work and social relationships--
50.
Occupational and social impairment with occasional decrease in work
efficiency and intermittent periods of inability to perform
occupational tasks (although generally functioning satisfactorily, with
routine behavior, self-care, and conversation normal), due to such
symptoms as: Depressed mood, anxiety, suspiciousness, panic attacks
(weekly or less often), chronic sleep impairment, mild memory loss
(such as forgetting names, directions, recent events)--30.
Occupational and social impairment due to mild or transient
symptoms which decrease work efficiency and ability to perform
occupational tasks only during periods of significant stress, or;
symptoms controlled by continuous medication--10.
A mental condition has been formally diagnosed, but symptoms are
not severe enough either to interfere with occupational and social
functioning or to require continuous medication--0.
Eating Disorders
9520 Anorexia nervosa
9521 Bulimia nervosa
Rating Formula for Eating Disorders
Self-induced weight loss to less than 80 percent of expected
minimum weight, with incapacitating episodes of at least six weeks
total duration, and requiring hospitalization more than twice a year
for parenteral nutrition or tube feeding--100.
Self-induced weight loss to less than 85 percent of expected
minimum weight with incapacitating episodes of six or more weeks total
duration per year--60.
Self-induced weight loss to less than 85 percent of expected
minimum weight with incapacitating episodes of more than two but less
than six weeks total duration per year--30.
Binge eating followed by self-induced vomiting or other measures to
prevent weight gain, or resistance to weight gain even when below
expected minimum weight, with diagnosis of an eating disorder and
incapacitating episodes of up to two weeks total duration per year--10.
Binge eating followed by self-induced vomiting or other measures to
prevent weight gain, or resistance to weight gain even when below
expected minimum weight, with diagnosis of an eating disorder but
without incapacitating episodes--0.
Note: An incapacitating episode is a period during which bed
rest and treatment by a physician are required.
Secs. 4.131 and 4.132 [Removed]
9. Sec. 4.131 and Sec. 4.132 are removed.
[FR Doc. 95-26567 Filed 10-25-95; 8:45 am]
BILLING CODE 8320-01-P
Complete official Federal Register PDF
FR Doc. 95-26558 Airworthiness Directives; Airbus Model A300, A300-600, A310, A330, and A340 Series Airplanes
[Federal Register Volume 60, Number 207 (Thursday, October 26, 1995)]
[Proposed Rules]
[Pages 54820-54822]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-26558]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 39
[Docket No. 95-NM-156-AD]
Airworthiness Directives; Airbus Model A300, A300-600, A310,
A330, and A340 Series Airplanes
AGENCY: Federal Aviation Administration, DOT.
ACTION: Notice of proposed rulemaking (NPRM).
-----------------------------------------------------------------------
SUMMARY: This document proposes the supersedure of an existing
airworthiness directive (AD), applicable to all Airbus Model A300,
A300-600, A310, A330, and A340 series airplanes, that currently
requires an inspection of the sliding side windows in the cockpit to
identify the part number of the windows. For airplanes on which a
certain suspect window is installed, that AD also requires either
deactivation of the sliding window defogging system; or installation of
thermo-sensitive indicators, daily inspections of those indicators, and
deactivation of the defogging system, if necessary; or replacement of
the window with a serviceable window. The actions specified by the
proposed AD are intended to prevent rupture of a cockpit sliding window
and subsequent rapid decompression of the fuselage due to fracture of
the window as a result of thermal stress created by overheating of the
wires of the heating element in a localized area. This action would
require replacement of certain windows with serviceable windows, which,
when accomplished, terminates the requirements of the AD.
DATES: Comments must be received by December 6, 1995.
ADDRESSES: Submit comments in triplicate to the Federal Aviation
Administration (FAA), Transport Airplane Directorate, ANM-103,
Attention: Rules Docket No. 95-NM-156-AD, 1601 Lind Avenue, SW.,
Renton, Washington 98055-4056. Comments may be inspected at this
location between 9 a.m. and 3 p.m., Monday through Friday, except
Federal holidays.
The service information referenced in the proposed rule may be
obtained from
[[Page 54821]]
Airbus Industrie, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex,
France. This information may be examined at the FAA, Transport Airplane
Directorate, 1601 Lind Avenue SW., Renton, Washington.
FOR FURTHER INFORMATION CONTACT: Charles D. Huber, Aerospace Engineer,
Standardization Branch, ANM-113, FAA, Transport Airplane Directorate,
1601 Lind Avenue SW., Renton, Washington 98055-4056; telephone (206)
227-2589; fax (206) 227-1149.
SUPPLEMENTARY INFORMATION:
Comments Invited
Interested persons are invited to participate in the making of the
proposed rule by submitting such written data, views, or arguments as
they may desire. Communications shall identify the Rules Docket number
and be submitted in triplicate to the address specified above. All
communications received on or before the closing date for comments,
specified above, will be considered before taking action on the
proposed rule. The proposals contained in this notice may be changed in
light of the comments received.
Comments are specifically invited on the overall regulatory,
economic, environmental, and energy aspects of the proposed rule. All
comments submitted will be available, both before and after the closing
date for comments, in the Rules Docket for examination by interested
persons. A report summarizing each FAA-public contact concerned with
the substance of this proposal will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments
submitted in response to this notice must submit a self-addressed,
stamped postcard on which the following statement is made: ``Comments
to Docket Number 95-NM-156-AD.'' The postcard will be date stamped and
returned to the commenter.
Availability of NPRMs
Any person may obtain a copy of this NPRM by submitting a request
to the FAA, Transport Airplane Directorate, ANM-103, Attention: Rules
Docket No. 95-NM-156-AD, 1601 Lind Avenue SW., Renton, Washington
98055-4056.
Discussion
On January 19, 1995, the FAA issued AD 95-01-51, amendment 39-9125
(60 FR 5564, January 30, 1995), applicable to all Airbus Model A300,
A300-600, A310, A330, and A340 series airplanes, to require an
inspection of the sliding side windows in the cockpit to identify the
part number of the windows. For airplanes on which a certain suspect
window is installed, that AD also requires either deactivation of the
sliding window defogging system; or installation of thermo-sensitive
indicators, daily inspections of those indicators, and deactivation of
the defogging system, if necessary; or replacement of the window with a
serviceable window. That action was prompted by reports of fracture of
the sliding side window in the cockpit due to thermal stress created by
overheating of the wires of the heating element in a localized area.
The requirements of that AD are intended to prevent such fractures,
which could lead to rupture of a cockpit sliding window and subsequent
rapid decompression of the fuselage.
AD 95-01-51 also contains a provision for the optional replacement
of PPG Industries windows with serviceable windows manufactured by PPG
Industries or by SPS. If accomplished, this replacement constitutes
terminating action for the requirements of the AD. In the preamble to
AD 95-01-51, the FAA indicated that the AD was considered to be interim
action until final action was identified. The FAA has determined that
``final action'' in addressing the unsafe condition that is the subject
of this AD is the replacement of the suspect PPG Industries windows
with serviceable windows (provided as an optional action in AD 95-01-
51).
Additionally, since the issuance of AD 95-01-51, Airbus has issued
All Operators Telex (AOT) 30-01, Revision 2, dated March 6, 1995, which
describes procedures for an inspection of the left- and right-hand
sliding side windows in the cockpit to identify the part number of the
windows. For airplanes equipped with certain suspect windows
manufactured by PPG Industries, the AOT also describes procedures for
deactivation of the associated window defogging system; or installation
of thermo-sensitive indicators, daily inspections of those indicators,
and deactivation of the window defogging system, if necessary. The AOT
also describes procedures for replacement of certain sliding windows
with serviceable windows. Accomplishment of the replacement eliminates
the need for the inspections, deactivation of the window defogging
system, and installation of thermo-sensitive indicators. The Direction
Generale de l'Aviation Civile (DGAC), which is the airworthiness
authority for France, classified this AOT as mandatory and issued
French airworthiness directives 94-285-173(B)R1 (for Model A300, A300-
600, and A310 series airplanes), 94-283-006(B)R1 (for Model A330 series
airplanes), and 94-284-014(B)R1 (for Model A340 series airplanes), all
dated April 12, 1995, in order to assure the continued airworthiness of
these airplanes in France.
These airplane models are manufactured in France and are type
certificated for operation in the United States under the provisions of
section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and
the applicable bilateral airworthiness agreement. Pursuant to this
bilateral airworthiness agreement, the DGAC has kept the FAA informed
of the situation described above. The FAA has examined the findings of
the DGAC, reviewed all available information, and determined that AD
action is necessary for products of this type design that are
certificated for operation in the United States.
Since an unsafe condition has been identified that is likely to
exist or develop on other airplanes of the same type design registered
in the United States, the proposed AD would supersede AD 95-01-51 to
continue to require an inspection of the sliding side windows in the
cockpit to identify the part number of the windows. For airplanes on
which a certain suspect window is installed, the proposed AD also would
continue to require either deactivation of the sliding window defogging
system; or installation of thermo-sensitive indicators, daily
inspections of those indicators, and deactivation of the defogging
system, if necessary. The proposed AD also would require the eventual
replacement of suspect windows with serviceable windows. Replacement of
the windows would constitute terminating action for the requirements of
the AD. The actions would be required to be accomplished in accordance
with the AOT described previously.
There are approximately 66 Model A300, A300-600, and A310 series
airplanes of U.S. registry that would be affected by this proposed AD.
(Currently, there are no Model A330 or A340 series airplanes on the
U.S. Register.)
The inspections that are currently required by AD 95-01-51 take
approximately 1 work hour per airplane to accomplish, at an average
labor rate of $60 per work hour. Based on these figures, the total cost
impact on U.S. operators of the actions currently required is estimated
to be $3,960, or $60 per airplane.
The replacement of the windows, which is proposed in this new AD
action, would take approximately 7
[[Page 54822]]
work hours per airplane to accomplish, at an average labor rate of $60
per work hour. Required parts would be provided by the manufacturer at
no cost to operators. Based on these figures, the total cost impact on
U.S. operators of the proposed requirements of this AD is estimated to
be $27,720, or $420 per airplane.
The total cost impact figures discussed above are based on
assumptions that no operator has yet accomplished any of the current or
proposed requirements of this AD action, and that no operator would
accomplish those actions in the future if this AD were not adopted.
The regulations proposed herein would not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this
proposal would not have sufficient federalism implications to warrant
the preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this proposed
regulation (1) is not a ``significant regulatory action'' under
Executive Order 12866; (2) is not a ``significant rule'' under the DOT
Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
and (3) if promulgated, will not have a significant economic impact,
positive or negative, on a substantial number of small entities under
the criteria of the Regulatory Flexibility Act. A copy of the draft
regulatory evaluation prepared for this action is contained in the
Rules Docket. A copy of it may be obtained by contacting the Rules
Docket at the location provided under the caption ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Safety.
The Proposed Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration proposes to amend
part 39 of the Federal Aviation Regulations (14 CFR part 39) as
follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 USC 106(g), 40101, 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by removing amendment 39-9125 (60 FR
5564, January 1, 1995), and by adding a new airworthiness directive
(AD), to read as follows:
Airbus Industrie: Docket 95-NM-156-AD. Supersedes AD 95-01-51,
Amendment 39-9125.
Applicability: All Model A300, A300-600, A310, A330, and A340
series airplanes, certificated in any category.
Note 1: This AD applies to each airplane identified in the
preceding applicability provision, regardless of whether it has been
modified, altered, or repaired in the area subject to the
requirements of this AD. For airplanes that have been modified,
altered, or repaired so that the performance of the requirements of
this AD is affected, the owner/operator must use the authority
provided in paragraph (e) of this AD to request approval from the
FAA. This approval may address either no action, if the current
configuration eliminates the unsafe condition; or different actions
necessary to address the unsafe condition described in this AD. Such
a request should include an assessment of the effect of the changed
configuration on the unsafe condition addressed by this AD. In no
case does the presence of any modification, alteration, or repair
remove any airplane from the applicability of this AD.
Compliance: Required as indicated, unless accomplished
previously. To prevent rupture of a cockpit sliding window and
subsequent rapid decompression of the fuselage due to fracture of
the window as a result of thermal stress created by overheating of
the wires of the heating element in a localized area, accomplish the
following:
(a) Within 7 days after February 14, 1995 (the effective date of
AD 95-01-51, amendment 39-9125), perform an inspection of the left-
and right-hand sliding side windows in the cockpit to identify the
part number (P/N) of those windows, in accordance with paragraph 4.1
of Airbus All Operators Telex (AOT) 30-01, dated December 22, 1994;
or Revision 2, dated March 6, 1995.
(b) If no window manufactured by PPG Industries having P/N
NP175202-1 (left-hand side) or NP175202-2 (right-hand side) is
installed, no further action is required by this AD.
(c) If any window manufactured by PPG Industries having P/N NP
175202-1 (left-hand side) or NP 175202-2 (right-hand side) is
installed, prior to further flight, accomplish either paragraph
(c)(1) or (c)(2) of this AD in accordance with Airbus AOT 30-01,
dated December 22, 1994; or Revision 2, dated March 6, 1995.
(1) Deactivate the associated sliding window defogging system in
accordance with the procedures specified in paragraph 4.2.2 of the
AOT. The defogging system may remain deactivated until the window is
replaced in accordance with paragraph (d) of this AD. Or
Note 2: This AD may permit the defogging system to be
deactivated for a longer time than is specified in the Master
Minimum Equipment List (MMEL). In any case, the provisions of this
AD prevail.
(2) Install thermo-sensitive indicators in two areas of the
sliding side window (left- and right-hand sides) in accordance with
the procedures specified in paragraph 4.3 of the AOT. Thereafter,
perform a daily inspection of the indicators to determine if the 60-
degree segment of any indicator turns from light grey to black, in
accordance with the procedures specified in paragraph 4.3 of the
AOT. If any indicator turns black, prior to further flight,
deactivate the associated sliding window defogging system in
accordance with paragraph (c)(1) of this AD.
(d) Within 90 days after the effective date of this AD, replace
any PPG Industries window having part number (P/N) NP 175202-1
(left-hand side) or NP 175202-2 (right-hand side) with a serviceable
window manufactured by PPG Industries or by SPS, as listed in
paragraph 5.1 of AOT 30-01, dated December 22, 1994; or paragraphs
5.2.1 (PPG Industries windows) and 5.2.2 (SPS windows) of AOT 30-01,
Revision 2, dated March 6, 1995. Accomplish the replacement in
accordance with the procedures specified in AOT 30-01, dated
December 22, 1994, or Revision 2, dated March 6, 1995. After such
replacement, no further action is required by this AD.
(e) An alternative method of compliance or adjustment of the
compliance time that provides an acceptable level of safety may be
used if approved by the Manager, Standardization Branch, ANM-113,
FAA, Transport Airplane Directorate. Operators shall submit their
requests through an appropriate FAA Principal Maintenance Inspector,
who may add comments and then send it to the Manager,
Standardization Branch, ANM-113.
Note 3: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Standardization Branch, ANM-113.
(f) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the airplane to a location where
the requirements of this AD can be accomplished.
Issued in Renton, Washington, on October 20, 1995.
Darrell M. Pederson,
Acting Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 95-26558 Filed 10-25-95; 8:45 am]
BILLING CODE 4910-13-U
Complete official Federal Register PDF
FR Doc. 95-26556 Community Development Corporation and Project Investments
[Federal Register Volume 60, Number 207 (Thursday, October 26, 1995)]
[Proposed Rules]
[Pages 54819-54820]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-26556]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE TREASURY
Office of the Comptroller of the Currency
12 CFR Part 24
[Docket No. 95-26]
RIN 1557-AB46
Community Development Corporation and Project Investments
AGENCY: Office of the Comptroller of the Currency, Treasury.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The Office of the Comptroller of the Currency (OCC) is
proposing to amend its regulation regarding Community Development
Corporation and Project Investments. The proposal removes a provision
that requires banks to reinvest profits, dividends and other
distributions from community development investments in activities that
promote the public welfare and is intended to encourage public welfare
investments by national banks.
DATES: Comments must be received by November 27, 1995.
ADDRESSES: Comments should be directed to: Communications Division,
Office of the Comptroller of the Currency, 250 E Street, SW.,
Washington, DC 20219. Fax # 202-874-5274. Attention: Docket No. 95-26.
In addition, comments may be sent by electronic mail to
[email protected] Comments will be available for public
inspection and photocopying at the same location.
FOR FURTHER INFORMATION CONTACT: Matthew Roberts, Director, Community
and Consumer Law Division, 202/874-5750; Janice Booker, Director,
Community Development Division, 202/874-4940.
SUPPLEMENTARY INFORMATION:
Introduction
The OCC is currently reviewing 12 CFR part 24 as another component
of its Regulation Review Program. Part 24 permits public welfare
investments by national banks, subject to certain limitations. As part
of the review of 12 CFR part 24, the OCC is proposing to change one
provision immediately. Currently, part 24 requires a bank to reinvest
the profits, dividends and other distributions from its equity and debt
investments in a community development corporation (CDC) or community
development (CD) project in activities that primarily promote the
public welfare. This proposal would remove that requirement.
Background
National banks are authorized under 12 U.S.C. 24 (Eleventh) to make
investments that are designed primarily to promote the public welfare,
including the welfare of low- and moderate-income families and
communities (such as through the provision of housing, services, or
jobs) consistent with safe and sound banking practices.1 Pursuant
to this authority, the OCC issued part 24 on December 27, 1993, to
establish various requirements for permissible public welfare
investments. These requirements include a provision, codified at 12 CFR
24.4(a)(4), that prescribes how a bank may use certain proceeds from
its 12 U.S.C. 24(Eleventh) investments. This provision requires that
the profits, dividends, tax credits, and other distributions from
equity investments, or interest income from debt investments, received
by a bank from a CDC or CD project investment be devoted to activities
that primarily promote the public welfare. Further, in the case of an
investment in a for-profit CDC subsidiary, the profits, dividends and
other distributions must be reinvested in the CDC during its first
three years of operation.
\1\ The Eleventh paragraph was added to section 24 by the
Depository Institutions Disaster Relief Act of 1992, enacted on
October 23, 1992. Pub.L. 102-485, Section 6(a), 106 Stat. 2774
(1992).
---------------------------------------------------------------------------
Section 24(Eleventh) does not require reinvestment of proceeds. The
OCC included this provision in part 24 based on its practice in
implementing 12 U.S.C. 24(Eighth), which was enacted prior to 12 U.S.C.
24(Eleventh). Under 12 U.S.C. 24(Eighth), as construed in former
Interpretive Ruling 7.7480, (12 CFR 7.7480), national banks were
authorized to contribute to community funds, or to charitable,
philanthropic, or benevolent instrumentalities conducive to the public
welfare.2 In 1971, the OCC revised Interpretive Ruling 7.7480 to
permit banks to make ``investments,'' as long as the investments were
predominantly civic, community or
[[Page 54820]]
public in nature. At that time, the OCC concluded that it may be
inconsistent with the underlying charitable purposes of 12 U.S.C.
24(Eighth) for a bank to retain profits on these investments.
Interpretive Ruling 7.7480 therefore required banks to reinvest
profits, dividends and other distributions in public purpose
activities.
\2\ 12 U.S.C. 24(Eighth). The interpretive ruling was replaced
by 12 CFR part 24 in 1993. 58 FR 68464 (December 27, 1993).
---------------------------------------------------------------------------
Although part 24 was drafted under the authority of 12 U.S.C.
24(Eleventh), which provides direct authority for public welfare
``investments,'' it retained the reinvestment provision as one means of
furthering the public welfare nature of investments made pursuant to
this authority.
Discussion
The OCC proposes to remove the reinvestment provision, 12 CFR
24.4(a)(4). The statute does not restrict institutions from earning and
retaining profits on investments made pursuant to 12 U.S.C.
24(Eleventh), as long as such investments are designed primarily to
promote the public welfare. Reactions to the current rule indicate,
however, that in some instances the reinvestment provision discourages
banks from making such investments. For example, the requirement that
banks reinvest low-income housing tax credits in restricted activities
can diminish a bank's economic incentive for participating in that type
of low-income housing development. The OCC believes that removal of the
reinvestment provision will further the basic objective of 12 U.S.C.
24(Eleventh) by helping to encourage banks to make more investments.
The OCC also believes that the proposal is consistent with bank
safety and soundness. The proposal will enable banks to retain profits,
dividends and other distributions from CDC subsidiaries and CD projects
or to redeploy such proceeds to the CDC or other public welfare
investments based upon an overall assessment by a bank's management of
its financial needs and public welfare investment objectives. While the
proposal will encourage banks to make investments to promote the public
welfare, it will not constrain a bank's use of investment proceeds nor
hamper a bank's ability to ensure the sound operation of the bank as a
whole.
Commenters are invited to address with as much specificity as
possible:
(1) The extent to which removal of the provision will encourage
public welfare investments;
(2) whether there are safety and soundness reasons to retain or
remove the provision; and
(3) any other reasons why the current requirement should be
retained or eliminated.
Regulatory Flexibility Act
It is hereby certified that this notice of proposed rulemaking, if
adopted as a final rule, will not have a significant economic impact on
a substantial number of small entities. Accordingly, a regulatory
flexibility analysis is not required. This notice of proposed
rulemaking, if adopted as a final rule, will reduce somewhat the
regulatory burden on national banks, regardless of size, by removing a
requirement for making public welfare investments.
Executive Order 12866
The OCC has determined that this proposal is not a significant
regulatory action under Executive Order 12866.
Unfunded Mandates
The OCC has determined that this proposal will not result in
expenditures by State, local, and tribal governments, or by the private
sector, of more than $100 million in any one year. Accordingly, a
budgetary impact statement is not required under section 202 of the
Unfunded Mandates Reform Act of 1995.
List of Subjects in 12 CFR Part 24
Community development, Credit, Investments, National banks,
Reporting and recordkeeping requirements.
Authority and Issuance
For the reasons set forth in the preamble, part 24 of title 12,
chapter I, of the Code of Federal Regulations is proposed to be amended
as set forth below:
PART 24--COMMUNITY DEVELOPMENT CORPORATION AND PROJECT INVESTMENTS
1. The authority citation for part 24 continues to read as follows:
Authority: 12 U.S.C. 24(Eleventh), 93a, 161, 481, and 1818.
Sec. 24.4 [Amended]
2. Paragraph (a)(2) of Sec. 24.4 is amended by adding ``and'' at
the end of the paragraph.
3. Paragraph (a)(3) of Sec. 24.4 is amended by removing the ``;
and'' at the end of the paragraph and adding a period.
4. Paragraph (a)(4) of Sec. 24.4 is removed.
Dated: October 2, 1995.
Eugene A. Ludwig,
Comptroller of the Currency.
[FR Doc. 95-26556 Filed 10-25-95; 8:45 am]
BILLING CODE 4810-33-P
Complete official Federal Register PDF
FR Doc. 95-26523 Drawbridge Operation Regulations; Buffalo River, NY
[Federal Register Volume 60, Number 207 (Thursday, October 26, 1995)]
[Proposed Rules]
[Pages 54823-54825]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-26523]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Coast Guard
33 CFR Part 117
[CGD09-95-022]
RIN-2115-AE47
Drawbridge Operation Regulations; Buffalo River, NY
AGENCY: Coast Guard, DOT.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The Coast Guard is proposing a change to the operating
regulations governing the Michigan Avenue bridge, mile 1.3, Ohio Street
bridge, mile 2.1 South Park Avenue bridge, mile 5.3, and the Conrail
railroad bridges at miles 4.02 and 4.39 across the Buffalo River, all
at Buffalo, NY. The proposed rule would not require drawtenders to be
in constant attendance at their bridges during periods of time when
there is little or no significant navigation on the river.
Additionally, the City of Buffalo would be allowed to use a roving
drawtender to operate the Ohio Street and Michigan Avenue bridges. This
action would relieve the bridge owners of the burden of having
drawtenders in constant attendance at their bridges and should still
provide for the reasonable needs of navigation.
DATES: Comments must be received on or before December 26, 1995.
ADDRESSES: Comments may be mailed to Commander (obr), Ninth Coast Guard
District, 1240 East Ninth Street, Cleveland, Ohio 44199-2060, or may be
delivered to room 2083D at the above address between 6:30 a.m. and 3
p.m., Monday through Friday, except Federal holidays. The telephone
number is (216) 522-3993.
The Commander Ninth Coast Guard District maintains the public
docket for this rulemaking. Comments will become part of the docket and
will be available for inspection and copying at the above address.
FOR FURTHER INFORMATION CONTACT: Mr. Robert W. Bloom, Jr., Chief,
Bridge Branch at (216) 522-3993.
SUPPLEMENTARY INFORMATION:
Request for Comments
The Coast Guard encourages interested persons to participate in
this rulemaking by submitting written data, views, or arguments.
Persons submitting comments should include their names and addresses,
identify this rulemaking (CGD09-95-022) and the specific section of
this proposal to which each comment applies, and give a reason for each
comment. Please submit two copies of all comments and attachments in an
unbound format, no larger than 8\1/2\ by 11 inches, suitable for
copying and electronic filing. Persons wanting acknowledgment of
receipt of comments should enclose a stamped, self-addressed postcard
or envelope.
The Coast Guard will consider all comments received during the
comment period. It may change this proposal in view of the comments.
The Coast Guard plans no public hearing. Persons may request a
public hearing by writing to Mr. Robert W. Bloom, Jr. at the address
under ADDRESSES. The request should include reasons why a hearing would
be beneficial. If it determines that the opportunity for oral
presentations will aid this rulemaking, the Coast Guard will hold a
public hearing at a time and
[[Page 54824]]
place announced by a later notice in the Federal Register.
Drafting Information: The principal persons involved in drafting
this document are Mr. Bob Bloom, Project Manager, Bridge Branch, and
Lieutenant C. Dahill, Project Counsel, Ninth Coast Guard District.
Background and Purpose
Presently, the City of Buffalo bridges are required to open on
signal. However, the Michigan Avenue and Ohio Street bridges need not
open for the passage of vessels from 7:30 a.m. to 9 a.m. and from 4
p.m. to 5:45 p.m., Monday through Saturday; and South Park Avenue
bridge need not open for the passage of vessels from 7 a.m. to 8:30
a.m. and from 4:30 p.m. to 6 p.m., Monday through Saturday. On Sundays,
and on New Years's Day, Memorial Day, Fourth of July, Labor Day,
Thanksgiving Day and Christmas Day or days observed in lieu of any of
these under State law, the closed periods are not in effect.
The Conrail railroad bridges are required to open on signal between
the Hours of 7 a.m. and 11 p.m., and between the hours of 11 p.m. and 7
a.m. if notice is received at least four hours in advance of a vessel's
time of intended passage through the draws.
As allowed by 33 CFR 117.45, during the winter months, 26 December
through 20 March, bridges on the Buffalo River have not been required
to have a drawtender in constant attendance and have been required to
open on signal only if notice was received at least four hours in
advance of a vessel's time of intended passage through the draws.
The City of Buffalo requested that they not be required to keep a
drawtender in constant attendance at the Ohio Street bridge and that
the drawtender from the Michigan Avenue bridge be used as a roving
drawtender to open the Ohio Street bridge for the passage of vessels.
Additionally, the City requested that the year round operation of South
Park Avenue bridge be changed by not requiring the drawtender to be in
attendance at the bridge unless a four hour advance notice has been
provided.
The two Conrail railroad bridges over Buffalo River at miles 4.02
and 4.39, respectively, would be required to open on signal only when
notice is received at least four hours in advance of a vessel's time of
intended passage through the draws all year long.
Discussion of Proposed Amendment
Bridgetender logs furnished by the City of Buffalo and Conrail
showed that vessel traffic through South Park Avenue bridge and the two
Conrail bridges is greatly reduced, especially during the winter
months. Conrail also noted that the marine interests expected to
navigate above the Conrail bridges expressed no objection to a four
hour advance notice requirement.
The proposal would not require the City to keep a drawtender at the
Ohio Street bridge. That bridge would be operated by having the
drawtender from the Michigan Avenue bridge respond to a vessel
signaling for the Ohio Street bridge to open by driving a vehicle to
the bridge and opening it for the passage of the vessel. The City
reports that the average travel time to drive between the bridges and
start the opening procedure is approximately 20 minutes. Additionally,
the roving drawtender will be equipped with a marine radiotelephone at
all times while enroute between the bridges to maintain communications
with inbound and outbound vessels.
The periods of time during the morning and evening vehicle rush
hours when the City's drawbridges need not open for the passage of
vessels will not be changed. The proposed winter operating schedule
will not require drawtenders to be at the Michigan Avenue and Ohio
Street bridges at all times from December 16 through March 21. The
bridges would be required to open on signal only after receiving notice
at least four hours in advance of a vessels time of intended passage
through the draws.
Regulatory Evaluation
This proposal is not a significant regulatory action under section
3(f) of Executive Order 12866 and does not require an assessment of
potential costs and benefits under section 6(a)(3) of that order. It
has been exempted from review by the Office of Management and Budget
under that order. It is not significant under the regulatory policies
and procedures of the Department of Transportation (DOT) (44 FR 11040,
February 26, 1979). The Coast Guard expects the economic impact of this
proposal to be so minimal that a full Regulatory Evaluation under
paragraph 10e of the regulatory policies and procedures of DOT is
unnecessary. We conclude this because the periods of time specified by
these regulations when the bridge would be unattended are periods when
there are few requests to have the bridge opened for the passage of a
vessel. Also, the addition of a marine radiotelephone will enable the
roving drawtender to keep in communications with a transiting vessel
which will allow the vessel to begin approaching the draw in a more
timely manner.
All marine interests in the area have agreed to the change during
preliminary discussions.
Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the
Coast Guard must consider whether this proposal, if adopted, will have
a significant economic impact on a substantial number of small
entities. ``Small entities'' include independently owned and operated
small businesses that are not dominant in their field and otherwise
qualify as ``small business concerns'' under section 3 of the Small
Business Act (15 U.S.C. 632).
Since the proposed rule allows the owners of the highway and
railroad bridges to remove bridgetenders from the bridge during times
when there is little or no significant vessel traffic on the Buffalo
River, and because those vessels that would transit the River during
these times can do so by giving notice in advance of their time of
intended passage through the draw, the Coast Guard certifies under 5
U.S.C. 605(b) that this proposal, if adopted, will not have a
significant impact on a substantial number of small entities.
Collection of Information
This proposal contains no collection of information requirements
under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).
Federalism
The Coast Guard has analyzed this proposal under the principles and
criteria contained in Executive Order 12612 and has determined that
this proposal does not have sufficient federalism implications to
warrant the preparation of a Federalism Assessment.
Environment
The Coast Guard considered the environmental impact of this
proposal and concluded that, under section 2.B.2.g.5 of Commandant
Instruction M16475.1B, promulgation of operating requirements or
procedures for drawbridges is categorically excluded from further
environmental documentation.
List of Subjects in 33 CFR Part 117
Bridges.
For reasons set out in the preamble, the Coast Guard proposes to
amend 33 CFR part 117 as follows:
[[Page 54825]]
PART 117--DRAWBRIDGE OPERATING REGULATIONS
1. The authority citation for part 117 continues to read as
follows.
Authority: 33 U.S.C. 499; 49 CFR 1.46; 33 CFR 1.05-1(g); section
117.255 also issued under the authority of Pub. L. 102-587, 106
Stat. 5039.
2. Section 117.773 is revised to read as follows:
Sec. 117.773 Buffalo River.
(a) The draw of the Michigan Avenue bridge, mile 1.3, at Buffalo,
shall operate as follows:
(1) From March 22 through December 15, the draw shall open within
20 minutes of signal. However, the draw need not open from 7:30 a.m. to
9 a.m., and from 4 p.m. to 5:45 p.m., Monday through Saturday.
(2) From December 16 through March 21, the draw shall open on
signal if notice is given at least 4 hours in advance of a vessels's
time of intended passage through the draw.
(b) The draw of the Ohio Street bridge, mile 2.1, at Buffalo, shall
operate as follows:
(1) From March 22 through December 15, the draw shall open on
signal within 20 minutes after a request is made to the Michigan Avenue
drawtender. However, the draw need not open from 7:30 a.m. to 9 a.m.,
and from 4 p.m. to 5:45 p.m., Monday through Saturday.
(2) From December 16 through March 21, the draw shall open on
signal if notice is given at least 4 hours in advance of a vessel's
time of intended passage through the draw.
(c) The draws of the Conrail railroad bridges, miles 4.02 and 4.39,
both at Buffalo, shall open on signal if notice is given at least 4
hours in advance of a vessel's time of intended passage through the
draws.
(d) The South Park Avenue, miles 5.3, at Buffalo, shall open on
signal if notice is given at least 4 hours in advance of a vessel's
time of intended passage through the draw. However, the draw need not
open from 7 a.m. to 8:30 p.m. and from 4:30 p.m. to 6 p.m., Monday
through Saturday.
(e) The periods when the bridges need not open on signal prescribed
in (a)(1), (b)(1), and (d) in this section shall not be effective on
Sundays, and on New Year's Day, Memorial Day, Fourth of July, Labor
Day, Thanksgiving Day, Christmas Day, or days observed in lieu of any
of these under State law.
(f) Marine radiotelephones shall be maintained at the Michigan
Avenue and Ohio Street bridges. The City of Buffalo shall maintain and
monitor a marine radiotelephone for use by the Michigan Avenue
drawtender while enroute between the Michigan Avenue and Ohio Street
bridges. The drawtender shall maintain communications with the vessel
until the vessel has cleared both the Ohio Street and Michigan Avenue
draws.
Dated: October 13, 1995.
Paul J. Pluta,
Captain, U.S. Coast Guard, Commander, Ninth Coast Guard District,
Acting.
[FR Doc. 95-26523 Filed 10-25-95; 8:45 am]
BILLING CODE 4910-14-M
Complete official Federal Register PDF
FR Doc. 95-26498 Federal Motor Vehicle Safety Standards; Lamps, Reflective Devices and Associated Equipment
[Federal Register Volume 60, Number 207 (Thursday, October 26, 1995)]
[Proposed Rules]
[Pages 54833-54838]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-26498]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
49 CFR Part 571
[Docket No. 95-72; Notice 1]
RIN 2127-AF75
Federal Motor Vehicle Safety Standards; Lamps, Reflective Devices
and Associated Equipment
AGENCY: National Highway Traffic Safety Administration (NHTSA), DOT.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: This notice proposes amendments to Standard No. 108, the
Federal motor vehicle standard on lighting, which are intended to
harmonize the Standard's geometric visibility requirements for signal
lamps, and rear side marker color, with those of the ECE. With
harmonization of international standards in mind, the notice also seeks
comments on whether the performance and installation of front and rear
fog lamps ought to be regulated by Standard No. 108. Harmonization of
motor vehicle safety regulations worldwide, without reducing safety,
would allow manufacturers to reduce costs by producing to a single
world vehicle standard rather than several, thus reducing costs and
improving the flow of trade. These actions implement the grant of a
petition for rulemaking submitted by the Groupe de Travail Bruxelles.
DATES: Comments are due December 26, 1995.
ADDRESSES: Comments should refer to Docket No. 95-72; Notice 1 and be
submitted to: Docket Section, room 5109, 400 Seventh Street SW.,
Washington, DC 20590. (Docket hours are from 9:30 a.m. to 4 p.m.)
FOR FURTHER INFORMATION CONTACT: Rich Van Iderstine, Office of Safety
Performance Standards, NHTSA (Phone: 202-366-5275; FAX: 202-366-4329).
SUPPLEMENTARY INFORMATION:
Harmonization of Geometric Visibility Requirements
The Groupe de Travail Bruxelles 1952 (``GTB'') is composed of
vehicle and lamp manufacturers from Europe, Japan, and the United
States. GTB is an advisory group for the two organizations operating
under the United Nations' Economic Commission for Europe that are
involved in establishing motor vehicle lighting standards: The Meeting
of Experts on Lighting and Light Signalling (GRE) and the Working Party
on the Construction of Motor Vehicles (WP29).
GTB is seeking to ``harmonize'' the geometric visibility
requirements of the United States and Europe through petitioning NHTSA
for an amendment to Standard No. 108, and GRE and WP29 for amendments
to ECE Regulation No.48 Uniform Provisions Concerning the Approval of
Vehicles With Regard to the Installation of Lighting and Light-
Signalling Devices (``ECE R48''), specifically ECE R48.01. Under
present lighting regulations, motor vehicle manufacturers must produce
four different lighting packages for the same vehicle in order for it
to be sold in the United States, the United Kingdom, continental
Europe, and Japan. Harmonization of lighting requirements, without
reducing safety, would reduce costs to manufacturers and purchasers,
and improve the flow of trade.
In its petition of June 15, 1994, GTB asked NHTSA to amend or
introduce geometric visibility requirements for the following lamps and
reflectors: backup lamp, front and rear turn signal lamps, stop lamps
including the center highmounted stop lamp, parking lamps, taillamps,
rear fog lamp, reflectors (front, intermediate, side, and rear), marker
lamps (front, intermediate, and side), and daytime running lamps. The
petition noted that rear fog lamps are not presently included in
Standard No. 108, and that many items of lighting equipment are not
presently subject to geometric visibility requirements.
By way of explanation, ``geometric visibility'' is not a defined
term in Standard No. 108. It refers to the visibility of a lamp or
reflector mounted on a vehicle through a range of angles from left to
right, and from up to down, with reference to the lens centerpoint
(e.g., from 45 degrees left to 45 degrees right). With the exception of
the center highmounted stop lamp (S5.1.1.27), the geometric visibility
requirements for motor vehicle lamps are not set out in full in the
text of Standard No. 108, but are contained in related SAE Standards
that have been incorporated by reference in Standard No. 108. SAE
requirements are not uniform and were adopted on an ad hoc basis.
The changes that GTB requested would affect passenger cars only,
and would expand the range of visibility requirements for many lamps,
especially turn signal lamps and parking lamps. GTB believes that a
majority of vehicles being sold in the United States already meet the
requirements. For those that do not, the petitioner suggests that ``the
necessary design changes should not be difficult to implement, assuming
that adequate lead time is provided.''
The requested rulemaking would add a fifth table to Standard No.
108 of lamps covered by geometric visibility requirements and a new
paragraph in S5.1.1 which would apply to the vehicles presently subject
to tables III and IV, i.e., not only passenger cars, but also
multipurpose passenger vehicles, trucks, trailers, and buses whose
overall width is less than 80 inches (2032 mm). This section would
allow manufacturers the option of providing geometric visibility of at
least 12.5 sq. cm. or ``meeting ECE Reg 48.01 paragraph 6.'' This would
result in imposing geometric visibility requirements on five lamps and
four reflectors not currently subject to geometric visibility
specifications.
Options Presented by the Petition
NHTSA has examined the possibility of incorporating ECE R48 into
Standard No. 108, and decided that it is unnecessarily complex and
could be confusing. For example, a turn signal lamp is allowable under
R48:
as meeting ECE Reg. 48.01 Addendum 47 paragraph 6, dated March 22,
1994, and meeting the geometric visibility requirements specified
in: * * * ECE Regulation, R-6 Revision 2, 9 Aug. 1993 Front and Rear
Turn Signals.
[[Page 54834]]
Geometric visibility requirements appear in both ECE R48 and in ECE
R6. According to the text cited above, turn signal lamps shall meet all
requirements of ECE R48 other than geometric visibility which would be
those of R6. Thus, it seems unnecessary to reference ECE R48 when the
geometric requirements appear to be those of ECE R-6. Further, there
are numerous references beyond R48 and R-6 incorporated in those
regulations. These are automatically updated, unlike Standard No. 108,
where the SAE materials incorporated by reference are not automatically
changed by updates.
There is also the matter of terminology. SAE J222 refers to parking
lamps also as front position lamps. Yet there are separate categories
for these in ECE R48 (6.9 Front Position Lamp, p. 37; Parking Lamp,
6.12, p. 41). NHTSA could not recommend incorporating ECE R48 without
modifying some of its provisions in the text of Standard No. 108. At
the very least, the new Table requested by the petitioner ought to
cross reference the appropriate geometric visibility sections of that
regulation with the lamps to which they apply.
Further, there needs to be language that more clearly defines the
lamp categories and the vehicles to which they apply.
Annex 1 of R6 is far more preferable for incorporation into
Standard No. 108. The geometric visibility provisions of R6 are not
termed as such but appear to be the ``minimum angles required for light
distribution in space of * * * categories of direction indicators'' in
Annex 1 to R6. They are expressed in a series of diagrams. This is much
clearer. Presumably, NHTSA could adopt text defining the 6 categories
of turn signal lamps.
By far, the more preferable amendment would be the incorporation of
the requested new Table. However, this raises a further issue: whether
the Table should comprise only those items or equipment currently
subject to geometric visibility requirements, or whether all lamps and
reflectors requested by GTB should be included?
With respect to the option of restricted coverage, Standard No. 108
does not prohibit a manufacturer of vehicles for sale in the United
States from meeting European geometric visibility requirements with
respect to any of the nine equipment items not now covered. The lack of
geometric visibility requirements for these nine items means that
European and Japanese manufacturers need not concern themselves with
this aspect of performance in designing vehicles for the American
market. On the other hand, an American manufacturer must design its
vehicles to comply with geometric visibility requirements for these
nine items if it wishes to sell in European markets.
Although the silence of Standard No. 108 on geometric visibility
requirements for the nine items in no way disadvantages foreign
manufacturers, in many minds it may not be synonymous with
``harmonization.'' To some members of GTB, ``harmonization'' often
means identicality of regulations while, to NHTSA, a harmonized
regulation is not necessarily identical but one that is broad enough to
encompass ``windows of harmony.'' This allows a common vehicle to be
manufactured and sold in many countries having different regulations.
Thus, to encourage the ECE bodies to harmonize their lighting
regulations and to forestall any questions of preemption by the
individual States in America, NHTSA has tentatively decided that it is
in the interest of motor vehicle safety to make the list inclusive and
to regulate the aspect of performance of lighting equipment called
``geometric visibility'' for the lighting equipment requested. As
previously noted, the geometric visibility of some lighting equipment
is already covered by Standard No. 108. NHTSA believes that a geometric
visibility requirement for all lamps and reflectors is already either
explicit or implicit in paragraph S5.3.1.1. Under this paragraph, each
lamp shall be located so that it meets the visibility requirements in
any applicable SAE Standard or Recommended Practice.
Additionally, under this paragraph, no part of the vehicle shall
prevent any lamp from meeting the photometric output at any test point
specified in Standard No. 108. However, if motor vehicle equipment does
prevent compliance with photometrics by any required lamp or reflective
device, an auxiliary lamp or reflector shall be provided that does meet
the photometric requirements. In NHTSA's opinion, the effect of a final
rule will make explicit what has always been implied.
To accomplish this, NHTSA is proposing a new paragraph S5.1.1.30,
applicable to the vehicles covered by Tables III and IV (i.e., those
less than 80 inches in overall width). The new paragraph would allow
continued conformance to the existing requirements or to the
``geometric visibility of at least 12.5 square centimeters of the
light-emitting surface through a field of view as indicated in Table V,
except for side marker lamps and reflex reflectors which have no area
requirement.'' Although the petitioner did not request it, as part of
NHTSA's good faith effort towards compatibility of standards worldwide,
the agency is proposing that the existing requirements be phased out in
favor of the harmonized ones after two years (comment is especially
requested on lead time). The definition of ``Light-emitting Surface''
that appears in SAE Standard J387 ``Terminology, Motor Vehicle
Lighting'' would be added and defined to mean ``that part of the
exterior surface of the lens that encloses the light source and is
required for conformance with photometric and colorimetric
requirements.'' This definition is necessary because the term appears
in the proposed requirement.
Table V would be added to cover 15 items of lighting equipment
(lamps and reflectors), including the rear fog lamp. While a rear fog
lamp is not required motor vehicle equipment, if a manufacturer chooses
to provide one, it would then be required to meet the geometric
visibility requirements (but no other requirements would apply at the
present time).
The visibility requirements are expressed with relation to the
Horizontal (H) and Vertical (V) axes of the lamp or reflector. As an
example, the geometric visibility requirement for a front turn signal
lamp would be minus 45 degrees to plus 45 degrees at Horizontal, and
minus 15 degrees to plus 15 degrees at Vertical.
NHTSA, however, is not proposing to adopt ECE's backup lamp
geometric visibility requirements because of its possibly adverse
effect on safety. Standard No. 108 requires that the center of the
backup lamp lens be seen from anywhere on a vertical transverse plane
located three feet behind the vehicle and extending to three feet on
either side of the vehicle, starting from two feet and ending at six
feet above the road surface. For a minivan whose backup lamps are about
33 inches above the ground, Standard No. 108's requirement creates
upward visibility angles greater than 45 degrees. For passenger cars
with lower lamp heights, the angles are even larger. Allowing these
angles to be as small as ECE's 15 degrees upward would allow a
significant reduction in the ability of a pedestrian to see the lamp's
signal.
Rear Side Marker Color
In its good faith efforts towards worldwide compatibility of
standards, NHTSA itself has tentatively decided that a further area
where harmonization might be achieved is the color of rear side marker
lamps and reflectors. These are not mandatory items of equipment
[[Page 54835]]
in the ECE, unlike the United States. However, if rear side marker
lamps and reflectors are provided, under ECE regulations, they must be
amber with a few exceptions. In the United States, the required color
is red, with no exceptions.
Allowance of amber as an optional color for rear side marker
equipment could improve harmony of requirements world wide without, in
the opinion of the agency, derogating from safety. Therefore, the
agency is proposing amendments to Tables I and III that would allow
amber as an optional color for rear side marker equipment. If there are
any safety concerns, NHTSA anticipates that commenters will bring them
to the agency's attention.
Regulation of Fog Lamps
Another aspect of motor vehicle lighting that might be appropriate
for harmonization is the regulation of front and rear fog lamps. These
are not items of motor vehicle equipment mandated by Standard No. 108.
They are regulated by the States as each jurisdiction deems
appropriate. NHTSA has no information as to the extent that European
and Japanese manufacturers must modify the fog lamps and their
installations on their vehicles in order to meet the regulations of the
States. Should NHTSA assert its jurisdiction over that aspect of motor
vehicle equipment performance and specify performance requirements (in
addition to geometric visibility) for front and rear fog lamps as
optional equipment, that would preempt State regulations and could
afford windows of harmonization with standards of the ECE. With respect
to this issue, NHTSA is especially desirous of receiving comments from
European and Japanese manufacturers and State motor vehicle officials.
The performance requirements that appear appropriate to NHTSA would
be SAE Standard J583 JUN93 ``Front Fog Lamps'' and SAE Standard J1319
JUN93 ``Fog Tail Lamp''.
NHTSA is taking this action on its own initiative to demonstrate
its good faith in exploring possible areas of harmonization of
standards.
Proposed Effective Date
The amendments would be effective 30 days after publication of the
final rule in the Federal Register. At that time, manufacturers would
have the option for the succeeding two years to conform to either the
present or the harmonized geometric visibility requirements. After two
years, the harmonized specifications would be the sole geometric
visibility requirements. As noted previously, it is likely that many of
the proposed requirements are already being met by manufacturers
selling in world markets.
However, when compliance with the final rule becomes mandatory, it
will affect U.S. vehicle lines that are not sold in world markets.
NHTSA therefore seeks comments on the appropriateness of a two-year
leadtime for mandatory compliance with the final rule, and a discussion
of related costs or other impacts upon the commenter.
Finally, the proposal would reinstate the lighting item
``Headlamps'' and headlamp mounting requirements of SAE J566 in Table
I, which were mistakenly omitted when Table I was amended to reflect
the addition of section S7 Headlighting requirements to the standard.
References to S7 would also be added under the vehicle-type columns, in
the manner set forth in Table III.
Rulemaking Analyses and Notices
Executive Order 12866 and DOT Regulatory Policies and Procedures.
This rulemaking action was not reviewed under Executive Order 12866.
Further, it has been determined that the rulemaking action is not
significant under Department of Transportation regulatory policies and
procedures. The purpose of the rulemaking action is to make an existing
requirement clearer and to harmonize regulations. It is anticipated
that the costs of the final rule would be so minimal as not to warrant
preparation of a full regulatory evaluation. Vehicles presently selling
in world markets are presumed to comply with the proposed rule. NHTSA
has asked for comments on the costs and other impacts associated with a
two-year leadtime for mandatory compliance of those vehicles not
presently complying. This could involve relocation of certain lamps and
reflectors and associated sheet metal changes, or redesign of lamps or
reflectors. These could be easily accommodated within the present or
next design cycle. If the comments received indicate that the imparts
are more than minimal NHTSA will prepare a full regulatory evaluation
before issuing a final rule.
National Environmental Policy Act. NHTSA has analyzed this
rulemaking action for the purposes of the National Environmental Policy
Act. It is not anticipated that a final rule based on this proposal
would have a significant effect upon the environment. The composition
of lighting equipment would not change from those presently in
production.
Regulatory Flexibility Act. The agency has also considered the
impacts of this rulemaking action in relation to the Regulatory
Flexibility Act. For the reasons stated above and below, I certify that
this rulemaking action would not have a significant economic impact
upon a substantial number of small entities. Accordingly, no regulatory
flexibility analysis has been prepared. Manufacturers of motor vehicles
and motor vehicle equipment, those affected by the rulemaking action,
are generally not small businesses within the meaning of the Regulatory
Flexibility Act.
Executive Order 12612 (Federalism). This rulemaking action has also
been analyzed in accordance with the principles and criteria contained
in Executive Order 12612, and NHTSA has determined that this rulemaking
action does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
Civil Justice. A final rule based on this proposal would not have
any retroactive effect. Under 49 U.S.C. 30103, whenever a Federal motor
vehicle safety standard is in effect, a state may not adopt or maintain
a safety standard applicable to the same aspect of performance which is
not identical to the Federal standard. 49 U.S.C. 30161 sets forth a
procedure for judicial review of final rules establishing, amending or
revoking Federal motor vehicle safety standards. That section does not
require submission of a petition for reconsideration or other
administrative proceedings before parties may file suit in court.
Request for Comments
Interested persons are invited to submit comments on the proposal.
It is requested but not required that 10 copies be submitted.
All comments must not exceed 15 pages in length. (49 CFR 553.21).
Necessary attachments may be appended to these submissions without
regard to the 15-page limit. This limitation is intended to encourage
commenters to detail their primary arguments in a concise fashion.
If a commenter wishes to submit certain information under a claim
of confidentiality, three copies of the complete submission, including
purportedly confidential business information, should be submitted to
the Chief Counsel, NHTSA, at the street address given above, and seven
copies from which the purportedly confidential information has been
deleted should be submitted to the Docket Section. A request for
confidentiality should be accompanied by a cover letter setting forth
the information specified in the
[[Page 54836]]
agency's confidential business information regulation. 49 CFR Part 512.
All comments received before the close of business on the comment
closing date indicated above for the proposal will be considered, and
will be available for examination in the docket at the above address
both before and after that date. To the extent possible, comments filed
after the closing date will also be considered. Comments received too
late for consideration in regard to the final rule will be considered
as suggestions for further rulemaking action. Comments on the proposal
will be available for inspection in the docket. The NHTSA will continue
to file relevant information as it becomes available in the docket
after the closing date, and it is recommended that interested persons
continue to examine the docket for new material.
Those persons desiring to be notified upon receipt of their
comments in the rules docket should enclose a self-addressed, stamped
postcard in the envelope with their comments. Upon receiving the
comments, the docket supervisor will return the postcard by mail.
List of Subjects in 49 CFR Part 571
Imports, Motor vehicle safety, Motor vehicles.
In consideration of the foregoing, 49 CFR Part 571 would be amended
as follows:
PART 571--FEDERAL MOTOR VEHICLE SAFETY STANDARDS
1. The authority citation for Part 571 would continue to read as
follows:
Authority: 49 U.S.C. 322, 30111, 30115, 30117 and 30166;
delegation of authority at 49 CFR 1.50.
2. Section 571.108 would be amended by:
a. adding to paragraph S4, in alphabetical order, a new definition
``Light-emitting Surface'',
b. adding a new paragraph S5.1.1.30,
c. revising the heading of Table I, revising the text preceding the
table, and adding Headlamps as the first entry,
d. revising the text preceding the table and the entries for Reflex
reflectors and Side marker lamps in Tables I, II, III and IV, and
e. adding a new Table V to follow Table IV and to precede the Note
to the standard, to read as follows:
Sec. 571.108 Standard No. 108; Lamps, reflective devices, and
associated equipment.
* * * * *
S4 Definitions.
* * * * *
Light-emitting Surface means all or part of the exterior surface of
the transparent or translucent lens that encloses the lighting or
light-signalling device and allows conformance with photometric and
colorimetric requirements.
* * * * *
S5.1.1.30. (a) Each passenger car, multipurpose passenger vehicle,
truck, or bus, of less than 80 inches overall width, manufactured
before [two years after the effective date of the final rule], when
equipped with any item of lighting equipment listed in Table V, may
provide geometric visibility of at least 12.5 square centimeters of the
projected light-emitting surface perpendicular to the axis of viewing
through a field of view as indicated in Table V, except for side marker
and reflex reflectors which have no area requirement.
(b) Each passenger car, multipurpose passenger vehicle, truck, or
bus, of less than 80 inches overall width manufactured on or after [two
years after the effective date of the final rule], when equipped with
any item of lighting equipment listed in Table V, shall provide
geometric visibility of at least 12.5 square centimeters of the
projected light-emitting surface perpendicular to the axis of viewing
through a field of view as indicated in Table V, except for side marker
and reflex reflectors which have no area requirement.
* * * * *
Table I.--Required Motor Vehicle Lighting Equipment
[Multipurpose passenger vehicles, trucks, trailers, and buses of 80 (2032) or more inches (MM) overall width]
----------------------------------------------------------------------------------------------------------------
Applicable SAE standard
Multipurpose passenger or recommended practice
Item vehicles, trucks, and Trailers (See S6 for
buses subreferenced SAE
materials)
----------------------------------------------------------------------------------------------------------------
Headlamps............................ See S7................. None................... J566, January 1960.
* * * * * *
*
Reflex reflectors.................... 4 red; 2 amber; or 2 4 red; 2 amber; or 2 J594f, January 1977.
red; 4 amber. red; 4 amber.
Side marker lamps.................... 2 red; 2 amber; or 4 2 red; 2 amber; or 4 J592e, July 1972.
amber. amber.
* * * * * *
*
----------------------------------------------------------------------------------------------------------------
[[Page 54837]]
Table II.--Location of Required Equipment
[Multipurpose passenger vehicles, trucks, trailers, and buses of 80 (2032) or more inches (MM) overall width]
----------------------------------------------------------------------------------------------------------------
Location on--
-------------------------------------------------- Height above road
Item Multipurpose passenger surface measured from
vehicles, trucks, and Trailers center of item on
buses vehicle at curb weight
----------------------------------------------------------------------------------------------------------------
* * * * * *
Reflex reflectors.................... On the rear--1 red on On the rear--1 red on Do.
each side of the each side of the
vertical centerline, vertical centerline,
as far apart as as far apart as
practicable, and at practicable, and at
the same height. On the same height. On
each side--1 red or each side--1 red or
amber as far to the amber as far to the
rear as practicable, rear as practicable,
and 1 amber as far to and 1 amber as far to
the front as the front as
practicable. practicable.
Side marker lamps.................... ......do............... ......do............... Not less than 15
inches, and on the
rear of trailers not
more than 60 inches.
----------------------------------------------------------------------------------------------------------------
Table III.--Required Motor Vehicle Lighting Equipment
[All passenger cars and motorcycles, and multipurpose passenger vehicles, trucks, buses, and trailers, of less
than 80 (2032) inches (MM) overall width]
----------------------------------------------------------------------------------------------------------------
Applicable SAE
Passenger cars, standard or
multipurpose recommended
Item passenger Trailers Motorcycles practice (See S6
vehicles, trucks, for subreferenced
and buses SAE materials)
----------------------------------------------------------------------------------------------------------------
* * * * * *
*
Reflex reflectors............... 4 red; 2 amber; or 4 red; 2 amber; or 3 red; 2 amber; or J594f, January
2 red; 4 amber. 2 red; 4 amber. 1 red; 4 amber. 1977.
* * * * * *
*
Side marker lamps............... 2 red; 2 amber; or 2 red; 2 amber; or None.............. J592e, July 1972.
4 amber. 4 amber.
* * * * * *
*
----------------------------------------------------------------------------------------------------------------
Table IV.--Location of Required Equipment
[All passenger cars and motorcycles, and multipurpose passenger vehicles, trucks, trailers, and buses of less
than 80 (2032) inches (MM) overall width]
----------------------------------------------------------------------------------------------------------------
Location on--
-------------------------------------------------- Height above road
Passenger cars, surface measured from
Item multipurpose passenger center of item on
vehicles, trucks, Motorcycles vehicle at curb weight
trailers, and buses
----------------------------------------------------------------------------------------------------------------
* * * * * *
*
Reflex reflectors.................... On the rear--1 red on On the rear--1 red on Not less than 15
each side of the the vertical inches, nor more than
vertical centerline, centerline, except 60 inches.
at the same height, that, if two are used
and as far apart as on the rear, they
practicable. On each shall be symmetrically
side--1 red as far to disposed about the
the rear as vertical centerline.
practicable, and 1 On each side--1 red or
amber as far to the amber as far to the
front as practicable. rear as practicable,
On each side--1 red or and 1 amber as far to
amber as far to the the front as
rear as practicable, practicable.
and 1 amber as far to
the front as
practicable.
* * * * * *
*
Side marker lamps.................... On each side--1 red or Not required........... Not less than 15
amber as far to the inches.
rear as practicable,
and 1 amber as far to
the front as
practicable.
* * * * * *
*
----------------------------------------------------------------------------------------------------------------
[[Page 54838]]
Table V.--Specifications for Geometric Visibility of Installed Lighting
Devices
------------------------------------------------------------------------
Geometric visibility
Lighting device Axis requirement
------------------------------------------------------------------------
Front Turn Signal Lamp....... H -45 deg. to +45 deg..
V -15 deg. to +15 deg..\1\
Rear Turn Signal Lamp........ H -15 deg. to +45 deg..
V -15 deg. to +15 deg..\1\
Stop Lamp.................... H -45 deg. to +45 deg..
V -15 deg. to +15 deg..\1\
Front Parking Lamp........... H -45 deg. to +45 deg..
V -15 deg. to +15 deg..\1\
Tail Lamp.................... H -45 deg. to +45 deg..
V -15 deg. to +15 deg..\1\
Rear Fog Lamp................ H -10 deg. to +10 deg..
V -5 deg. to +5 deg..
Rear Reflex Reflector........ H -30 deg. to +30 deg..
V -10 deg. to +10 deg..\1\
Front Side Reflex Reflector.. H -45 deg. to +45 deg..
V -10 deg. to +10 deg..\1\
Intermediate Side Reflex H -45 deg. to +45 deg..
Reflector. V -10 deg. to +10 deg..\1\
Rear Side Reflex Reflector... H -45 deg. to +45 deg..
V -10 deg. to +10 deg..\1\
Front Side Marker Lamp....... H -45 deg. to +45 deg..
V -10 deg. to +10 deg..\1\
Intermediate Side Marker Lamp H -45 deg. to +45 deg..
V -10 deg. to +10 deg..\1\
Rear Side Marker Lamp........ H -45 deg. to +45 deg..
V -10 deg. to +10 deg..
High Mounted Stop Lamp....... H -10 deg. to +10 deg..
V -5 deg. to +10 deg..
Daytime Running Lamp......... H -20 deg. to +20 deg..
V -10 deg. to +10 deg..
------------------------------------------------------------------------
\1\ Angle below horizontal may be reduced to 5 deg. if the lamp is less
than 750 mm. above the ground.
* * * * *
Issued on October 17, 1995.
Barry Felrice,
Associate Administrator for Safety Performance Standards.
[FR Doc. 95-26498 Filed 10-25-95; 8:45 am]
BILLING CODE 4910-59-P
Complete official Federal Register PDF
FR Doc. 95-26489 Federal Acquisition Regulation; Contingent Fees
[Federal Register Volume 60, Number 207 (Thursday, October 26, 1995)]
[Proposed Rules]
[Page 54920]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-26489]
[[Page 54919]]
_______________________________________________________________________
Part III
Department of Defense
General Services Administration
National Aeronautics and Space Administration
_______________________________________________________________________
48 CFR Part 31
Federal Acquisition Regulation, Contingent Fees; Proposed Rule
Federal Register / Vol. 60, No. 207 / Thursday, October 26, 1995 /
Proposed Rules
[[Page 54920]]
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Part 31
[FAR Case 93-19]
RIN 9000-AG64
Federal Acquisition Regulation; Contingent Fees
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council are proposing changes to the Federal
Acquisition Regulation (FAR) to limit the allowability of contingent
fees. This regulatory action was not subject to Office of Management
and Budget review under Executive Order 12866, dated September 30,
1993.
DATES: Comments should be submitted on or before December 26, 1995 to
be considered in the formulation of a final rule.
ADDRESSES: Interested parties should submit written comments to:
General Services Administration, FAR Secretariat (VRS), 18th & F
Streets, NW, Room 4037, Washington, DC 20405.
Please cite FAR case 93-19 in all correspondence related to this
case.
FOR FURTHER INFORMATION CONTACT:
Mr. Jeremy Olson at (202) 501-3221 in reference to this FAR case. For
general information, contact the FAR Secretariat, Room 4037, GS
Building, Washington, DC 20405 (202) 501-4755. Please cite FAR case 93-
19.
SUPPLEMENTARY INFORMATION:
A. Background
The Councils are proposing to revise the FAR guidance concerning
contingent fees because the Office of Federal Procurement Policy SWAT
Team on Civilian Agency Contracting in its report of December 3, 1992,
entitled ``Improving Federal Contracts'', expressed concern that
contingent fee arrangements based on percentage of sales, revenue, cost
incurred or reimbursed, are similar to a cost-plus-percentage-of-cost
type of contracting. There is a blank check effect in that the agent's
fee is unknown at the time of contract award and will grow through the
life of the contract. Cost-plus-percentage-of-cost contracts are
prohibited by statute (10 U.S.C. 2306(a) and 41 U.S.C. 254(b)). The
SWAT Team report had recommended several changes to the FAR which were
viewed to have Governmentwide benefit and which would make the FAR less
general with respect to the allowability of certain costs.
The proposed FAR rule would revise the cost principle at FAR
31.205-38, Selling costs, to clarify that the costs of contingent fees
are allowable only when stated as a sum certain or not-to-exceed amount
agreed upon between the company and its agent (i.e., employee or
commercial/selling agency) in advance of the services being rendered.
B. Regulatory Flexibility Act
This proposed rule is not expected to have a significant economic
impact on a substantial number of small entities within the meaning of
the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., because most
contracts awarded to small entities are awarded on a competitive,
fixed-price basis and the cost principles do not apply. This rule
clarifies a condition of cost allowability for contractors who wish to
be reimbursed under Government contracts subject to FAR Subpart 31.2.
An Initial Regulatory Flexibility Analysis has, therefore, not been
performed. Comments from small entities concerning the affected FAR
subpart will be considered in accordance with 5 U.S.C. 610 of the Act.
Such comments must be submitted separately and should cite 5 U.S.C. 601
et seq. (FAR case 93-19), in correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the proposed
changes to the FAR do not impose recordkeeping or information
collection requirements, or collections of information from offerors,
contractors, or members of the public which require the approval of the
Office of Management and Budget under 44 U.S.C. 3501 et seq.
List of Subjects in 48 CFR Part 31
Government procurement.
Dated: October 19, 1995.
Edward C. Loeb,
Acting Director, Office of Federal Acquisition Policy.
Therefore, it is proposed that 48 CFR Part 31 be amended as set
forth below:
PART 31--CONTRACT COST PRINCIPLES AND PROCEDURES
1. The authority citation for 48 CFR Part 31 continues to read as
follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
2. Section 31.205-38 is amended by revising paragraph (f) to read
as follows:
31.205-38 Selling costs.
* * * * *
(f) Notwithstanding any other provision of this subsection,
sellers' or agents' compensation, fees, commissions, percentages,
retainer or brokerage fees, whether or not contingent upon the award of
contracts, are allowable only when--
(1) Paid to bona fide employees or established commercial or
selling agencies maintained by the contractor for the purpose of
securing business (see 3.408-2); and
(2) Such costs are stated as a sum certain or a not-to-exceed
amount determined in advance of services rendered.
[FR Doc. 95-26489 Filed 10-25-95; 8:45 am]
BILLING CODE 6820-EP-M
Complete official Federal Register PDF
FR Doc. 95-26487 Federal Acquisition Regulation; Legal Proceedings Costs
[Federal Register Volume 60, Number 207 (Thursday, October 26, 1995)]
[Proposed Rules]
[Page 54918]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-26487]
[[Page 54917]]
_______________________________________________________________________
Part II
Department of Defense
General Services Administration
National Aeronautics and Space Administration
_______________________________________________________________________
48 CFR Part 31
Federal Acquisition Regulation, Legal Proceedings Costs; Proposed Rule
Federal Register / Vol. 60, No. 207 / Thursday, October 26, 1995 /
Proposed Rules
[[Page 54918]]
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Part 31
[FAR Case 93-10]
RIN 9000-AG65
Federal Acquisition Regulation; Legal Proceedings Costs
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council are proposing changes to amend the
Federal Acquisition Regulation (FAR) concerning costs related to legal
and other proceedings to make the costs of pre- or post-award protests
(except for costs incurred by an intervenor on the side of the
Government) an unallowable cost. This regulatory action was not subject
to Office of Management and Budget review under Executive Order 12866,
dated September 30, 1993.
DATES: Comments should be submitted on or before December 26, 1995 to
be considered in the formulation of a final rule.
ADDRESSES: Interested parties should submit written comments to:
General Services Administration, FAR Secretariat (VRS), 18th and F
Streets, NW, Room 4037, Washington, DC 20405.
Please cite FAR case 93-10 in all correspondence related to this
case.
FOR FURTHER INFORMATION CONTACT: Mr. Jeremy Olson at (202) 501-3221 in
reference to this FAR case. For general information, contact the FAR
Secretariat, Room 4037, GS Building, Washington, DC 20405 (202) 501-
4755. Please cite FAR case 93-10.
SUPPLEMENTARY INFORMATION:
A. Background
This proposed rule would add another category of unallowable costs
to the list at 31.205-47(f) (except for costs incurred by an intervenor
on the side of the Government) which should disallow most cost of pre-
or post-award protests. This change is being proposed after the Defense
Contract Audit Agency raised a concern that rulings by the Armed
Services Board of Contract Appeals (ASBCA) would encourage contractors
to protest Government awards (the appeal of Bos'n Towing and Salvage
Company (ASBCA 1992) No. 41357, 92-2 BCA Paragraph 24,864 and the
appeal of J.W. Cook & Sons, Inc., (ASBCA 1992) No. 39691, 92-3 BCA
Paragraph 25,053). The ASBCA had ruled that FAR 31.205-47(f)(1) only
applied to claims under the Contract Disputes Act and not to protests
under the Competition in Contracting Act and that, therefore, protest
costs were allowable as either a direct or indirect cost on Government
contracts.
B. Regulatory Flexibility Act
This proposed rule is not expected to have a significant economic
impact on a substantial number of small entities within the meaning of
the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., because most
contracts awarded to small entities are awarded on a competitive,
fixed-price basis and the cost principles do not apply. The cost
principles apply only to contracts for which cost or pricing data has
been submitted. An Initial Regulatory Flexibility Analysis has,
therefore, not been performed. Comments from small entities concerning
the affected FAR subpart will be considered in accordance with 5 U.S.C.
610 of the Act. Such comments must be submitted separately and should
cite 5 U.S.C. 601 et seq. (FAR case 93-10), in correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the proposed
changes to the FAR do not impose recordkeeping or information
collection requirements, or collections of information from offerors,
contractors, or members of the public which require the approval of the
Office of Management and Budget under 44 U.S.C. 3501 et seq.
List of Subjects in 48 CFR Part 31
Government procurement.
Dated: October 18, 1995.
Edward C. Loeb,
Acting Director, Officer of Federal Acquisition Policy.
Therefore, it is proposed that 48 CFR Part 31 be amended as set
forth below:
PART 31--CONTRACT COST PRINCIPLES AND PROCEDURES
1. The authority citation for 48 CFR Part 31 continues to read as
follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
2. Section 31.205-47 is amended by adding paragraph (f)(8) to read
as follows:
31.205-47 Costs related to legal and other proceedings.
* * * * *
(f) * * *
(8) Protests of Federal Government solicitations or contract
awards, unless the costs are incurred by interested parties to defend
against such protests.
* * * * *
[FR Doc. 95-26487 Filed 10-25-95; 8:45 am]
BILLING CODE 6820-EP-M
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