issue-1995-12-05•Federal Register proposed rules — 1995-12-05
Federal Register proposed rules — 1995-12-05
issue-1995-12-05Federal Register proposed rules — 1995-12-05Proposed 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. 95-29713 Clean Air Act Reclassification; PennsylvaniaLiberty Borough Nonattainment Area; PM-10; Reopening of Comment Period
[Federal Register Volume 60, Number 233 (Tuesday, December 5, 1995)]
[Proposed Rules]
[Pages 62236-62237]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-29713]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 81
[AD-FRL-5341-1]
Clean Air Act Reclassification; Pennsylvania--Liberty Borough
Nonattainment Area; PM-10; Reopening of Comment Period
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule; reopening of the comment period.
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SUMMARY: EPA is reopening the comment period for a proposed rule
published on September 19, 1995 (60 FR 48439). In the September 19
notice, EPA proposed to find that the Liberty Borough, Pennsylvania
nonattainment area for particulate matter of nominal aerodynamic
diameter smaller than 10 micrometers (PM-10) did not attain national
ambient air quality standards
[[Page 62237]]
for that pollutant by the statutory attainment date. At the request of
the Allegheny Health Department, EPA is reopening the comment period
through December 20, 1995. (The comment period had been previously
extended through November 20, 1995 (60 FR 53729).) All comments
received on or before December 20, including those received between the
close of the comment period on November 20 and the publication of this
document, will be entered into the public record and considered by EPA
before taking final action on the proposed rule.
DATES: Comments must be received on or before December 20, 1995.
ADDRESSES: Comments may be mailed to Marcia L. Spink, Associate
Director, Air Programs, Mailcode 3AT00, U.S. Environmental Protection
Agency, Region III, 841 Chestnut Building, Philadelphia, Pennsylvania
19107.
FOR FURTHER INFORMATION CONTACT: Thomas A. Casey, U.S. EPA Region III,
(215) 597-2746.
Dated: December 1, 1995.
William Wisniewski,
Acting Regional Administrator, Region III.
[FR Doc. 95-29713 Filed 12-4-95; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 95-29576 Removal of Obsolete Regulations
[Federal Register Volume 60, Number 233 (Tuesday, December 5, 1995)]
[Proposed Rules]
[Page 62318]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-29576]
Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 /
Proposed Rules
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[[Page 62318]]
DEPARTMENT OF ENERGY
10 CFR Parts 475, 476, and 478
Removal of Obsolete Regulations
AGENCY: Department of Energy.
ACTION: Proposed rule.
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SUMMARY: The Department of Energy is proposing to amend the Code of
Federal Regulations (CFR) to remove obsolete regulations relating to
defunct programs of financial assistance for electric and hybrid
vehicle research and methane transportation research. This action is
being taken in response to the President's Regulatory Reinvention
Initiative to eliminate obsolete regulations and streamline existing
rules.
DATES: Comments on this proposed rule must be received in writing by
January 4, 1996.
ADDRESSES: Written comments should be submitted to Mr. Romulo L. Diaz,
Jr., Director, Rulemaking Support, Office of the General Counsel, (GC-
75), U.S. Department of Energy, 1000 Independence Avenue, S.W.,
Washington, DC 20585, (202) 586-2902.
FOR FURTHER INFORMATION CONTACT: Mr. Romulo L. Diaz, Jr., Director,
Rulemaking Support, Office of the General Counsel, (GC-75), U.S.
Department of Energy, 1000 Independence Avenue, S.W., Washington, DC
20585, (202) 586-2902.
SUPPLEMENTARY INFORMATION: In connection with the President's
Regulatory Reinvention Initiative, the Department of Energy is engaged
in a continuing and comprehensive review of its regulatory program. As
part of that review, the Department is removing from Title 10 of the
CFR regulations for which statutory authority has expired or has been
superseded by subsequent legislation, and other regulations governing
nonfunctioning and unfunded programs. As a result of this proposed
action and prior actions, the Department will have reduced its pages in
the CFR by 514 pages.
The Department is proposing to remove from the CFR the following
regulations, which it has determined to be obsolete:
10 CFR Part 475--Electric and Hybrid Vehicle Research, Development and
Demonstration Program
The Electric and Hybrid Vehicle Research, Development and
Demonstration Act of 1976, 15 U.S.C. 2501 et seq., authorized the
Department to support research, development and demonstration of
electric and hybrid vehicle technologies. Part 475 contains performance
standards for electric vehicles which DOE developed for purposes of the
demonstration program. The demonstration period extended, by law,
through fiscal year 1986. 15 U.S.C. 2506(c)(3). Because the
demonstration program has ended, these regulations are obsolete.
10 CFR Part 476--Electric and Hybrid Vehicle Research, Development and
Demonstration Program Small Business Planning Grants
Section 9 of the Electric and Hybrid Vehicle Research, Development
and Demonstration Act of 1976, 15 U.S.C. 2508(c)(2), authorized the
Department to make grants to qualified small businesses that needed
assistance in developing and submitting proposals for contracts. Part
476 contains regulations implementing the Act's provision for these
small business planning grants. Congress has not appropriated funds for
this program for the past 15 years. DOE does not expect the program to
be revived.
10 CFR Part 478--Methane Transportation Research and Development;
Review and Certification of Contracts, Grants, Cooperative Agreements
and Projects
Part 478 provides procedures for grants, contracts, or cooperative
agreements to support research and development for methane-fueled
vehicles. The regulations implement section 4(d) of the Methane
Transportation Research, Development, and Demonstration Act. 15 U.S.C.
3801 et seq. The Department has not requested, and Congress has not
provided, funds for this program for many years. The Department has no
plans to seek revival of this program, and it considers these
regulations to be obsolete.
The Department of Energy is publishing, elsewhere in this issue, a
direct final rule, to remove these CFR parts. As explained in the
preamble for the direct final rule, the Department considers this
removal action to be uncontroversial and unlikely to generate
significant adverse or critical comments. If no significant adverse
comments are received by the Department, the direct final rule will
become effective on January 16, 1996, and there will be no further
action on this proposal. If such comments are received, the direct
final rule will be withdrawn for those parts that are the subject of
significant adverse comments. The public comments then will be
addressed in a subsequent final rule based on this proposed rule. The
Department will not institute a second comment period on this action.
Issued in Washington, DC on November 29, 1995.
Robert R. Nordhaus,
General Counsel.
PARTS 475, 476, 478--[REMOVED]
For the reasons set forth in the preamble, under the authority of
42 U.S.C 7101, Title 10 of the Code of Federal Regulations is proposed
to be amended by removing parts 475, 476, and 478.
[FR Doc. 95-29576 Filed 12-4-95; 8:45 am]
BILLING CODE 6450-01-P
Complete official Federal Register PDF
FR Doc. 95-29571 Spearmint Oil Produced in the Far West; Proposed Amendment of Marketing Order No. 985
[Federal Register Volume 60, Number 233 (Tuesday, December 5, 1995)]
[Proposed Rules]
[Page 62229]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-29571]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 985
[Docket No. AO-79-2; FV95-985-4]
Spearmint Oil Produced in the Far West; Proposed Amendment of
Marketing Order No. 985
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Notice of order filed on proposed rulemaking.
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SUMMARY: The purpose of this document is to inform all interested
parties that an order was filed by the presiding Administrative Law
Judge in this matter stating that briefs, proposed findings, and
conclusions may be filed no later than December 22, 1995. A hearing to
consider amendments to the Federal marketing order covering the
handling of spearmint oil grown in the Far West and to receive evidence
on whether portions of the States of California and Montana should
continue to be regulated under the order, was held on November 14,
1995, in Spokane, Washington.
DATES: Proposed findings and conclusions and written arguments or
briefs must be filed by December 22, 1995.
ADDRESSES: Proposed findings and conclusions and written arguments or
briefs should be sent to the office of the hearing clerk, U.S.
Department of Agriculture, Room 1079-South Building, Washington, DC
20250-9200.
FOR FURTHER INFORMATION CONTACT:
(1) Caroline C. Thorpe, Marketing Order Administration Branch,
Fruit and Vegetable Division, Room 2523-S, AMS, USDA, PO Box 96456,
Washington, DC 20090-6456; telephone number (202) 720-5127.
(2) Robert Curry, Northwest Marketing Field Office, Marketing Order
Administration Branch, Fruit and Vegetable Division, AMS, USDA, 1220
SW. Third Avenue, Room 369, Portland, Oregon, 97204; telephone: (503)
326-2725.
SUPPLEMENTARY INFORMATION: A public hearing was held November 14, 1995,
in Spokane, Washington to receive evidence on whether the marketing
order regulating the handling of spearmint oil produced in the Far West
should be amended to exclude from the area of regulation portions of
the States of California and Montana.
Pursuant to the applicable rules of practice and procedure
governing the formulation of marketing agreements and orders (7 CFR
part 900), the Administrative Law Judge assigned to conduct the
proceeding established December 22, 1995, as the date by which proposed
findings and conclusions and written arguments or briefs must be filed.
Any proposed findings and conclusions and written arguments or briefs
must be based upon the evidence received at the hearing. Factual
material other than that adduced at the hearing or subject to official
notice shall not be alluded to, and will not be considered in
determining whether the marketing order should be amended.
Authority: 7 U.S.C. 607-674.
Dated: November 30, 1995.
Sharon Bomer Lauritsen,
Deputy Director, Fruit and Vegetable Division.
[FR Doc. 95-29571 Filed 12-4-95; 8:45 am]
BILLING CODE 3410-02-P
Complete official Federal Register PDF
FR Doc. 95-29569 Child and Adult Care Food Program: Overclaim Authority
[Federal Register Volume 60, Number 233 (Tuesday, December 5, 1995)]
[Proposed Rules]
[Pages 62227-62229]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-29569]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 /
Proposed Rules
[[Page 62227]]
DEPARTMENT OF AGRICULTURE
Food and Consumer Service
7 CFR Part 226
RIN 0584-AB19
Child and Adult Care Food Program: Overclaim Authority
AGENCY: Food and Consumer Service, USDA.
ACTION: Proposed rule.
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SUMMARY: This rule proposes an amendment to the Child and Adult Care
Food Program (CACFP) regulations which would explicitly authorize the
Department and State agencies to assess overclaims against institutions
that fail to abide by CACFP recordkeeping requirements. This authority
has been successfully challenged in several judicial rulings on the
grounds that such authority was not specifically established in program
regulations. This rule serves to affirm the Department's authority to
assess overclaims for recordkeeping infractions and to clarify any
regulatory ambiguities or inconsistencies regarding overclaims
authority.
DATES: To be assured of consideration, comments must be postmarked no
later than February 5, 1996.
ADDRESSES: Comments should be addressed to Mr. Robert M. Eadie, Chief,
Policy and Program Development Branch, Child Nutrition Division, Food
and Consumer Service, Department of Agriculture, 3101 Park Center
Drive, Room 1007, Alexandria, Virginia 22302. Comments in response to
this rule may be inspected at the address above during normal business
hours, 8:30 a.m. to 5:00 p.m., Monday through Friday.
FOR FURTHER INFORMATION CONTACT: Mr. Robert M. Eadie or Mr. Edward
Morawetz at the above address or by telephone at 703-305-2620.
SUPPLEMENTARY INFORMATION:
Executive Order 12866
This proposed rule has been determined to be not significant for
purposes of Executive Order 12866, and, therefore, has not been
reviewed by the Office of Management and Budget.
Regulatory Flexibility Act
This action has been reviewed with regard to the requirements of
the Regulatory Flexibility Act (5 U.S.C. 601-612). The Administrator of
the Food and Consumer Service has certified that this action will not
have a significant economic impact on a substantial number of small
entities. There will be no significant impact because this rule
represents only a clarification of current procedures.
Executive Order 12372
This Program is listed in the Catalog of Federal Domestic
Assistance under No. 10.558 and is subject to the provisions of
Executive Order 12372, which requires intergovernmental consultation
with State and local officials (7 CFR Part 3015, Subpart V, and final
rule related notice published in 48 FR 29114, June 24, 1983).
Information Collection
This proposed rule contains no new information collection
requirements. In accordance with the Paperwork Reduction Act of 1980
(44 U.S.C. 3507), current reporting and recordkeeping requirements for
Part 226 were approved by the Office of Management and Budget under
Control Number 0584-0055.
Executive Order 12778
This proposed rule has been reviewed under Executive Order 12778,
Civil Justice Reform. This rule is intended to have preemptive effect
with respect to any State or local laws, regulations or policies which
conflict with its provisions or which would otherwise impede its full
implementation. This rule is not intended to have retroactive effect
unless so specified in the ``Effective Date'' section of the preamble
of the final rule. All available administrative procedures must be
exhausted prior to any judicial challenge to the provisions of this
rule or the application of its provisions. In the Child and Adult Care
Food Program, the administrative procedures are set forth under the
following regulations: (1) Institution appeal procedures in 7 CFR
Sec. 226.6(k); and (2) Disputes involving procurement by State agencies
and institutions must follow administrative appeal procedures to the
extent required by 7 CFR Sec. 226.22 and 7 CFR Part 3015.
Background
The Child and Adult Care Food Program (CACFP) is authorized by
section 17 of the National School Lunch Act, as amended (42 U.S.C.
1766). Section 17(n) of that Act stipulates that ``States and
institutions participating in the program shall keep accounts and
records as may be necessary to enable the Secretary to determine
whether there has been compliance with the requirements of this
section.'' Furthermore, the CACFP regulations include a number of
requirements relating to recordkeeping: Section 226.7(m) requires State
agencies to establish standards for institutional recordkeeping;
Section 226.15(e) prescribes the minimum recordkeeping requirements for
institutions in the CACFP; Section 226.10(c) requires institutions to
certify that records are available to support reimbursement claims; and
Section 226.10(d) establishes a timeframe for record retention.
Moreover, Section 226.6(f)(1) requires that the Program agreement
between the State agency and each institution stipulate that each
participating institution must agree to comply with all regulatory
requirements including these recordkeeping requirements. Finally, the
importance with which the Department views an institution's
recordkeeping responsibilities is found in Section 226.6(c)(4), where
failure to maintain adequate records is specifically listed as a
serious deficiency for which termination of an institution's
participation may be appropriate.
On numerous occasions, the Department and State agencies have used
the authority in the regulatory provisions cited above to recover funds
paid to institutions which did not have records necessary to support
claims for reimbursement. However, this authority has been successfully
challenged in court cases in Arkansas and California. In both cases,
assessment of overclaims against institutions which were based on
inadequate or missing records were
[[Page 62228]]
overturned by the courts on the grounds that the CACFP regulations do
not specifically authorize overclaims for those reasons.
In recognition of the fact that State agencies may review an
institution's performance under the CACFP as infrequently as once every
four years, effective administration depends on access to complete
documentation of program activities for an entire review period. Such
documentation is necessary for the Department and State agencies to
maintain a check on possible fraud, abuse and mismanagement in the
Program. Without proper records concerning the content and number of
meals served, and documentation of participants' income category, there
is no evidence that such participants were fed in accordance with basic
program requirements, and no assurance that program funds were spent as
mandated in the law and in the regulations.
Accordingly, the Department is proposing to amend Sections
226.14(a), 226.15(e) and 226.16(e), and to add new Sections 226.17(c),
226.18(g), 226.19(c), and 226.19a(c) to the CACFP regulations to
clarify that failure to adhere to CACFP recordkeeping requirements may
be used as a basis for State agencies to assess overclaims against
sponsors.
This rulemaking also contains a technical change to the CACFP
regulations which would transfer two recordkeeping responsibilities
established for sponsoring organizations from Section 226.16(e) to
Section 226.15(e).
Accordingly, the Department proposes to amend Sections 226.15(e)
and 226.16(e) by moving Section 226.16(e) (1)-(2) to Section 226.15(e)
under redesignated paragraphs (10) and (12).
List of Subjects in 7 CFR Part 226
Day care, Food assistance programs, Grant programs-health, infants
and children, Records, Reporting and recordkeeping requirements,
Surplus agricultural commodities.
Accordingly, 7 CFR Part 226 is proposed to be amended as follows:
PART 226--CHILD AND ADULT CARE FOOD PROGRAM
1. The authority citation for Part 226 continues to read as
follows:
Authority: Secs. 9, 11, 14, 16, and 17, National School Lunch
Act, as amended (42 U.S.C. 1758, 1759a, 1762a, 1765 and 1766).
2. In Sec. 226.14, the introductory text of paragraph (a) is
amended by adding a new sentence after the first sentence to read as
follows:
Sec. 226.14 Claims against institutions.
(a) * * * State agencies may consider claims for reimbursement not
properly payable if an institution does not comply with the
recordkeeping requirements contained in this part. * * *
* * * * *
3. In Sec. 226.15:
a. The introductory text of paragraph (e) is revised;
b. Paragraphs (e)(10), (e)(11) and (e)(12) are redesignated as
paragraphs (e)(11), (e)(13) and (e)(14);
c. New paragraphs (e)(10) and (e)(12) are added;
d. Newly redesignated paragraph (e)(11) is amended by removing the
word ``and'' at the end of the paragraph;
e. Newly redesignated paragraph (e)(13) is amended by adding the
word ``and'' after the semicolon at the end of the paragraph; and
f. Newly redesignated paragraph (e)(14) is amended by removing the
first word ``Maintain'' from the paragraph.
The additions and revisions specified above read as follows:
Sec. 226.15 Institution provisions.
* * * * *
(e) Recordkeeping. Each institution shall establish procedures to
collect and maintain all necessary program records. Failure to maintain
such records shall be grounds for denial of reimbursement for meals
served during the period covered by the records in question and for the
denial of reimbursement for costs associated with such records. At a
minimum, the following records shall be collected and maintained:
* * * * *
(10) Information concerning the dates and amounts of disbursement
to each child care facility or adult day care facility with which it
has a program agreement;
* * * * *
(12) Information concerning the location and dates of each child
care or adult day care facility review, any problems noted, and the
corrective action prescribed and effected;
* * * * *
4. In Sec. 226.16, paragraph (e) is revised to read as follows:
Sec. 226.16 Sponsoring organization provisions.
* * * * *
(e) Each sponsoring organization shall comply with the
recordkeeping requirements established in Secs. 226.10(d) and 226.15(e)
and any recordkeeping requirements established by the State agency in
order to justify the administrative payments made in accordance with
Sec. 226.12(a). Failure to maintain such records shall be grounds for
the denial of reimbursement for the costs associated with those records
during the period covered by the records in question.
* * * * *
5. In Sec. 226.17, a new paragraph (c) is added to read as follows:
Sec. 226.17 Child care center provisions.
* * * * *
(c) Each child care center shall comply with the recordkeeping
requirements established in Secs. 226.10(d) and 226.15(e), and the
recordkeeping requirements contained in this section. Failure to
maintain such records shall be grounds for the denial of reimbursement
for meals served during the period covered by the records in question
and for the denial of reimbursement for costs associated with such
records.
6. In Sec. 226.18, a new paragraph (g) is added to read as follows:
Sec. 226.18 Day care home provisions.
* * * * *
(g) Each day care home shall comply with the recordkeeping
requirements established in Secs. 226.10(d) and 226.15(e), and the
recordkeeping requirements contained in this section. Failure to
maintain such records shall be grounds for the denial of reimbursement
for meals served during the period covered by the records in question.
7. In Sec. 226.19, a new paragraph (c) is added to read as follows:
Sec. 226.19 Outside-school-hours care center provisions.
* * * * *
(c) Each outside-school-hours care center shall comply with the
recordkeeping requirements established in Secs. 226.10(d) and
226.15(e), and the recordkeeping requirements contained in this
section. Failure to maintain such records shall be grounds for the
denial of reimbursement for meals served during the period covered by
the records in question and for the denial of reimbursement for costs
associated with such records.
8. In Sec. 226.19a, a new paragraph (c) is added to read as
follows:
Sec. 226.19a Adult day care center provisions.
* * * * *
(c) Each adult day care center shall comply with the recordkeeping
requirements established in Secs. 226.10(d) and 226.15(e), and the
recordkeeping requirements contained in this section. Failure to
maintain such records shall
[[Page 62229]]
be grounds for the denial of reimbursement for meals served during the
period covered by the records in question and for the denial of
reimbursement for costs associated with such records.
Dated: November 27, 1995.
William E. Ludwig,
Administrator.
[FR Doc. 95-29569 Filed 12-4-95; 8:45 am]
BILLING CODE 3410-30-U
Complete official Federal Register PDF
FR Doc. 95-29565 General Regulations for Areas Administered by the National Park Service and National Park System Units in Alaska
[Federal Register Volume 60, Number 233 (Tuesday, December 5, 1995)]
[Proposed Rules]
[Pages 62233-62236]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-29565]
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DEPARTMENT OF THE INTERIOR
National Park Service
36 CFR Parts 1 and 13
RIN 1024-AC21
General Regulations for Areas Administered by the National Park
Service and National Park System Units in Alaska
AGENCY: National Park Service, Interior.
ACTION: Proposed rule.
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SUMMARY: The National Park Service (NPS) is proposing to revise
portions of its general regulations for areas administered by the
National Park Service which define the primary scope and applicability
and contain definitions for terms used in the text of the regulations.
NPS is also modifying regulations which relate to National Park System
units in Alaska. This revision clarifies the applicability of those NPS
regulations that apply in all National Park System areas to navigable
waters located within park boundaries.
In order to protect wildlife and the other values and purposes of
the National Park System, the NPS developed general regulations
intended
[[Page 62234]]
to be applicable on navigable waters located within park boundaries
irrespective of ownership of submerged lands. However, a recent court
case concerning a seal shot in the navigable waters of a national park
revealed that a 1987 editorial correction to 36 CFR 1.2(b), aimed at
clarifying a separate and distinct application of the regulations, had
the unforeseen and unintended effect of arguably linking federal title
to submerged lands with the exercise of management authority over
activities occurring on navigable waters. Rather than litigate this
issue, this rulemaking will clarify the regulations thereby ensuring
the continued protection of wildlife and other National Park System
values and purposes on all navigable waters within parks, regardless of
ownership of submerged lands. Accordingly, the revision clarifies that
NPS regulations continue to apply on navigable waters, as they have for
years. Two definitions, ``park area'' and ``boundary,'' would be
modified as a part of this revision. The proposed rule clarifies and
interprets existing NPS regulatory intent, practices and policies, and
generally would not place new or additional regulatory controls on the
public.
DATES: Written comments will be accepted until February 5, 1996.
ADDRESSES: Comments should be addressed to: Associate Director,
Operations, National Park Service, Department of the Interior, 18th and
C Streets, NW., Washington, D.C. 20240.
FOR FURTHER INFORMATION CONTACT: Dennis Burnett, Ranger Activities
Division, National Park Service, P.O. Box 37127, Washington, D.C.
20013-7127, Telephone (202) 208-4874.
SUPPLEMENTARY INFORMATION:
Background
The NPS Organic Act of 1916 directs the Secretary of the Interior
and the NPS to manage national parks and monuments to ``conserve the
scenery and the natural and historic objects and the wildlife therein
and to provide for the enjoyment of same in such manner and by such
means as will leave them unimpaired for the enjoyment of future
generations.'' 16 U.S.C. 1. The Organic Act also grants the Secretary
the authority to implement ``rules and regulations as he may deem
necessary or proper for the use and management of the parks, monuments
and reservations under the jurisdiction of the National Park Service.''
16 U.S.C. 3. In addition, the Organic Act was amended in 1978 to
provide:
The authorization of activities shall be construed and the
protection, management and administration of [NPS] areas shall be
conducted in light of the high public value and integrity of the
National Park System and shall not be exercised in derogation of the
values and purposes for which these various areas have been
established, except as may have been or shall be directly and
specifically provided by Congress. 16 U.S.C. 1a-1.
In addition to general regulatory authority delegated in 16 U.S.C. 3,
the NPS has been authorized to ``[p]romulgate and enforce regulations
concerning boating and other activities on or relating to waters
located within areas of the National Park System, including waters
subject to the jurisdiction of the United States * * *.'' 16 U.S.C. 1a-
2(h). ``Waters subject to the jurisdiction of the United States''
include navigable waters. See, H. Rep. No. 1569, 94th Cong., 2nd Sess.,
4292 (1976). Under these authorities the NPS has managed and regulated
activities occurring on and in the waters of the National Park System.
Prior to 1966, NPS regulations for boating, sanitation and other
regulations affecting waters were scattered throughout 36 CFR Parts 1
and 2. In 1966, consolidated boating regulations were published as 36
CFR Part 3. The regulations provided for the enforcement of U.S. Coast
Guard regulations by the NPS ``on navigable waters of the United
States'' located within park boundaries (31 FR 16650). In 1983, water-
use activity regulations were moved from Part 2 to Part 3 (48 FR
30290). In addition to regulations generally applicable in all national
park areas, special park-specific regulations have also been
promulgated for, and enforced on and in navigable waters within the
boundaries of National Park System units. See, e.g., 36 CFR 7.45 (f)-
(h) (Everglades National Park, fishing and boating); 36 CFR
7.83(a)(Ozark National Scenic Riverways, boating); 36 CFR 13.65(b)
(Glacier Bay National Park, Vessel Management/whale protection).
Applicability and Scope Provision
In 1982-83 the NPS undertook a comprehensive review of general
regulations that apply in virtually all NPS administered areas (47 FR
11598). The applicability and scope provisions adopted pursuant to the
1983 rulemaking included navigable waters. In that rulemaking, 36 CFR
1.2(a) provided that the regulations contained in 36 CFR chapter 1
would apply: (1) on federally owned waters, and (2) on waters
``controlled, * * * administered or otherwise subject to the
jurisdiction of the National Park Service * * *.'' (48 FR 30252). In
some park areas, the United States holds title to the submerged lands
under navigable waters. In other park areas, the United States does not
hold title to the submerged lands beneath navigable waters within the
boundaries of the park; Federal authority to regulate within the
ordinary reach of these waters is based on the commerce clause, not
ownership. Like the United States Coast Guard, the NPS exercises
authority over navigable waters irrespective of ownership of submerged
lands. 16 U.S.C. 1a-2(h). 36 CFR 1.2(a)(2) reflects the congressional
intent that NPS regulations will also apply in these waters.
The 1983 regulations also provided that--except in park areas under
the legislative jurisdiction of the United States, where 10
specifically enumerated provisions were intended to apply regardless of
ownership--the regulations were ``not applicable on privately owned
lands and waters * * *.'' (48 FR 30252); 36 CFR 1.2(b). While 36 CFR
1.2(b) was specific as to the applicability of the 10 enumerated
provisions on privately owned lands, it was silent as to the
applicability of those 10 regulations on lands and waters owned by a
state or other government entity. In 1987, in response to questions
concerning this issue, and in order to clarify the original NPS intent
(i.e., that the 10 specifically enumerated provisions were meant to
apply on all lands and waters regardless of land ownership) the term
``privately owned lands and waters'' was replaced with the term ``non-
federally owned lands and waters''. (52 FR 35238; see also, 52 FR
12037). The 1987 rulemaking emphasized that it was only an editorial
change and not a substantive change, the sole purpose of which was to
clarify the originally intended reach of the 10 enumerated provisions;
there was no change intended concerning state lands.
However, in its effort to ensure that (in areas of legislative
jurisdiction) the 10 enumerated regulations clearly apply on all ``non-
federally owned lands and waters'' within the boundaries of park areas,
the 1987 revision to Section 1.2(b) inadvertently incorporated language
that seems ambiguous and could preclude park regulation of ``non-
federally owned * * * waters.'' See, 52 FR 35238, September 18, 1987.
The NPS recognizes that regulations must provide an ordinary person a
reasonable opportunity to know what is prohibited. Accordingly, this
rulemaking is proposed to clarify that NPS regulations otherwise
applicable within the boundaries of a National Park System unit apply
on and within waters subject
[[Page 62235]]
to the jurisdiction of the United States located within that unit,
including navigable waters and areas within their ordinary reach (up to
the mean high water line in places subject to the ebb and flow of the
tide, or up to the ordinary high water mark in other places that are
navigable), irrespective of ownership of submerged lands, tidelands or
lowlands.
This rulemaking also proposes to revise the definition of
``boundary.'' ``Boundary,'' as revised, would better cover the many and
diverse sites that have been placed under the care and administration
of the NPS. The revision would afford comprehensive protection to
persons and property at NPS sites such as maintenance facilities and
warehouses, administrative sites, ranger stations, visitor information
centers and associated parking lots, which, though located outside a
park proper, are managed and administered by the NPS as components of
the National Park System. The definition is also tailored to cover the
various NPS-administered sites in the District of Columbia. The term
``park area'' would be revised to mean the same as the term ``National
Park System.'' The proposed definition for ``National Park System''
repeats the statutory definition from 16 U.S.C. 1c.
The proposed revision to Section 13.2 serves three purposes: (1)
Paragraph (c) is revised to clarify that Alaska National Interest Lands
Conservation Act (ANILCA) Title VIII subsistence regulations apply ``on
the public lands within'' those parks where subsistence is authorized;
(2) paragraph (e) is revised to clarify that, pursuant to proposed
Sec. 1.2(a)(3), NPS general regulations are specifically applicable
within the reach of navigable waters located within the boundaries of
park areas in Alaska; and (3) paragraph (e) is revised to clarify that
the Part 13 modifications (that generally are relaxations of
prohibitions contained in the general regulations) also apply on the
navigable waters of national parks in Alaska (e.g., ANILCA Sec. 1110(a)
special authorization for motorboat travel to villages).
Section-by-Section Analysis
Section 1.2 paragraph (a) is proposed as it currently exists. This
paragraph limits the applicability of NPS regulations to within park
boundaries and interests.
Proposed subparagraphs (a)(1) and (a)(2) provide that the
regulations apply, respectively, on lands and waters located within
park system boundaries that are federally owned, or administered as
park lands by the NPS (in whole or in part) through an agreement with
the owner, party of interest, or the person, corporation, company,
organization, state or political subdivision holding an interest in, or
title to, such land. An agreement could be in the form of a lease,
public use easement, memorandum (of agreement), or some other written
form. Lands and waters administered under this subparagraph would
usually be subject to the same general regulations as federally owned
lands (Parts 1 through 5, and Parts 7 and 13 as applicable). An owner
or party of interest who wishes to retain certain rights or uses could
do so as part of the written agreement, otherwise NPS general
regulations will apply equally to the owner or party of interest as
they would to third parties. Without such an agreement, NPS regulations
would not apply on non-federally owned lands within park boundaries,
the exception being particular regulations containing a provision that
makes them specifically applicable to such lands. See, e.g., 36 CFR
2.2(g) (regulation applicable to lands and waters under legislative
jurisdiction within a park); See also, 36 CFR Part 6 (59 FR 65948). Two
other provisions that are contained in existing subparagraph (a)(2)
are, in this rulemaking, proposed separately as subparagraphs (a)(3)
and (a)(4).
Proposed subparagraph (a)(3) more clearly defines and includes
waters subject to federal jurisdiction that are located within National
Park System boundaries, including navigable waters, within the scope of
NPS regulations. Subparagraph (a)(4) contains a provision for the NPS
to administer lands and waters in the District of Columbia (pursuant to
the Act of March 17, 1948 (62 Stat. 81)), that was added to the
existing subparagraph (2) in 1986 (51 FR 37010). The less-than-fee
interests provision, currently subparagraph (a)(3), has been revised,
renumbered and proposed as subparagraph (a)(5). This provision
encompasses scenic easements (sometimes referred to as negative
easements) and other federal interests where NPS administration of the
site is shared or limited.
Proposed paragraph (b) continues to limit the applicability of NPS
general regulations to federally owned lands in the absence of an
agreement or a superseding provision. Similarly, in order for NPS
general regulations to apply on Indian tribal trust lands located
within National Park System boundaries, the NPS must enter into an
agreement with the benefiting Indian nation, tribe, band or pueblo
(pursuant to proposed subparagraph (a)(2)). Without such an agreement,
and regardless of jurisdictional status, NPS authority on Indian lands
located within National Park System units is limited to federal laws
and implementing regulations made applicable at the express direction
of Congress.
Proposed paragraph (d) would extend existing administrative
exceptions to include Part 13 regulations.
Section 1.4 proposes a revision to the definition of the terms
``boundary'' and ``park area.'' ``Boundary,'' as revised, would afford
comprehensive coverage to the many and diverse sites that have been
placed under the care and administration of the NPS, particularly those
sites located in the District of Columbia. The term ``park area'' would
be revised to mean the same as the term ``National Park System.'' The
proposed definition for ``National Park System'' repeats the statutory
definition from 16 U.S.C. 1c.
Section 13.2 proposed paragraph (c) has been revised to clarify
that subsistence regulations for Alaska apply only ``on the public
lands within'' those parks where subsistence is authorized. Paragraph
(e) has been revised to clarify that NPS general regulations (e.g.,
Part 2), as modified by Part 13, apply to waters subject to federal
jurisdiction, including navigable waters, located within the boundaries
of park areas in Alaska.
Drafting Information
The primary authors of this revision are Michael Tiernan, Division
of Conservation and Wildlife, Office of the Solicitor, Department of
the Interior, Washington, D.C., and Steve Shackelton and Russel J.
Wilson of the Alaska Field Area, National Park Service. Richard G.
Robbins, Division of Conservation and Wildlife, Office of the
Solicitor, Department of the Interior, Washington, D.C., also
contributed.
Paperwork Reduction Act
This rule does not contain collections of information requiring
approval by the Office of Management and Budget under 44 U.S.C. 3501 et
seq.
Compliance With Other Laws
This rule was not subject to Office of Management and Budget review
under Executive Order 12866. The Department of the Interior has
determined that this document will not have a significant economic
effect on a substantial number of small entities under the Regulatory
Flexibility Act (5 USC 601 et seq.). The economic effects of this
rulemaking are local in nature and negligible in scope.
The NPS has determined that this proposed rulemaking will not have
a significant effect on the quality of the
[[Page 62236]]
human environment, health and safety because it is not expected to:
(a) Increase public use to the extent of compromising the nature
and character of the area or causing physical damage to it;
(b) Introduce incompatible uses that may compromise the nature
and characteristics of the area, or cause physical damage to it;
(c) Conflict with adjacent ownerships or land uses; or
(d) Cause a nuisance to adjacent owners or occupants.
Based on this determination, this proposed rulemaking is
categorically excluded from the procedural requirements of the National
Environmental Policy Act (NEPA) by Departmental guidelines in 516 DM 6,
(49 FR 21438). As such, neither an Environmental Assessment (EA) nor an
Environmental Impact Statement (EIS) has been prepared.
List of Subjects
36 CFR Part 1
National parks, Reporting and recordkeeping requirements.
36 CFR Part 13
Alaska, National parks, Reporting and recordkeeping requirements.
In consideration of the foregoing, it is proposed to amend 36 CFR
Chapter I, Parts 1 and 13, as follows:
PART 1--GENERAL PROVISIONS
1. The authority citation for Part 1 continues to read as follows:
Authority: 16 U.S.C. 1, 3, 9a, 460 l-6a(e), 462(k); D.C. Code 8-
137, 40-721 (1981).
2. Section 1.2 is amended by revising paragraphs (a), (b) and (d)
to read as follows:
Sec. 1.2 Applicability and scope.
(a) The regulations contained in this chapter apply to all persons
entering, using, visiting or otherwise within:
(1) The boundaries of federally owned lands and waters administered
by the National Park Service; or
(2) The boundaries of lands and waters administered by the National
Park Service for public use purposes pursuant to the terms of a written
instrument; or
(3) Waters subject to the jurisdiction of the United States located
within the boundaries of the National Park System, including navigable
waters and areas within their ordinary reach (up to the mean high water
line in places subject to the ebb and flow of the tide and up to the
ordinary high water mark in other places) and without regard to the
ownership of submerged lands, tidelands or lowlands; or
(4) Lands and waters in the environs of the District of Columbia,
policed with the approval or concurrence of the head of the agency
having jurisdiction or control over such reservations, pursuant to the
provisions of the Act of March 17, 1948 (62 Stat. 81); or
(5) Other lands and waters over which the United States holds a
less-than-fee interest, to the extent necessary to fulfill the purpose
of the National Park Service administered interest and compatible with
the nonfederal interest.
(b) The regulations contained in Parts 1 through 5 and Part 7 and
Part 13 of this chapter do not apply on non-federally owned lands and
waters or on Indian tribal trust lands located within National Park
System boundaries, except as provided in paragraph (a) of this section
or in regulations specifically written to be applicable on such lands
and waters.
* * * * *
(d) The regulations contained in parts 2 through 5 and parts 7 and
13 of this chapter shall not be construed to prohibit administrative
activities conducted by the National Park Service, or its agents, in
accordance with approved general management and resources management
plans, or in emergency operations involving threats to life, property
or park resources.
* * * * *
3. Section 1.4 is amended in paragraph (a) by revising the
definition of Boundary, by adding a definition for National Park
System, and by revising the definition of Park area to read as follows:
Sec. 1.4 Definitions.
(a) * * *
Boundary means the limits of lands or waters administered by the
National Park Service as specified by Congress, or denoted by
Presidential Proclamation, or recorded in the records of a state or
political subdivision in accordance with applicable law, or published
pursuant to law, or otherwise published or posted by the National Park
Service.
* * * * *
National Park System (Park area) means any area of land and water
now or hereafter administered by the Secretary of the Interior through
the National Park Service for park, monument, historic, parkway,
recreational, or other purposes.
* * * * *
Park area. See the definition for National Park System in this
section.
* * * * *
PART 13--NATIONAL PARK SYSTEM UNITS IN ALASKA
4. The authority citation for part 13 continues to read as follows:
Authority: 16 U.S.C. 1, 3, 462(k), 3101 et seq.; subpart D also
issued under 16 U.S.C. 20, 3197; Sec. 13.65(b) also issued under 16
U.S.C. 1361, 1531.
5. Section 13.2 is amended by republishing the first sentence of
paragraph (c) and revising the second sentence of paragraph (c), and by
revising paragraph (e) to read as follows:
Sec. 13.2 Applicability and Scope.
* * * * *
(c) Subpart B of this part 13 contains regulations applicable to
subsistence activities. Such regulations apply on public lands within
park areas except Kenai Fjords National Park, Katmai National Park,
Glacier Bay National Park, Klondike Gold Rush National Historical Park
and parts of Denali National Park.* * *
* * * * *
(e) For purposes of this chapter, ``federally owned lands'' does
not include those land interests:
(1) Tentatively approved to the State of Alaska; or
(2) Interim conveyed to a Native Corporation.
Dated: October 20, 1995.
George T. Frampton, Jr.,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 95-29565 Filed 12-4-95; 8:45 am]
BILLING CODE 4310-70-P
Complete official Federal Register PDF
FR Doc. 95-29542 Medicare Program; Uniform Electronic Cost Reporting for Skilled Nursing Facilities and Home Health Agencies
[Federal Register Volume 60, Number 233 (Tuesday, December 5, 1995)]
[Proposed Rules]
[Pages 62237-62241]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-29542]
=======================================================================
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Health Care Financing Administration
42 CFR Part 413
[BPD-788-P]
RIN 0938-AH12
Medicare Program; Uniform Electronic Cost Reporting for Skilled
Nursing Facilities and Home Health Agencies
AGENCY: Health Care Financing Administration (HCFA), HHS.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: This proposed rule would add the requirement that, for cost
reporting periods beginning on or after October 1, 1995, all skilled
nursing facilities and home health agencies must submit cost reports
currently required under the Medicare regulations in a standardized
electronic format. This proposed rule would also allow a delay or
waiver of this requirement where implementation would result in
financial hardship for a provider. The proposed provisions would allow
for more accurate preparation and more efficient processing of cost
reports.
DATES: Comments will be considered if we receive them at the
appropriate address, as provided below, no later than 5 p.m. on
February 5, 1996.
ADDRESSES: Mail written comments (one original and three copies) to the
following address: Health Care Financing Administration, Department of
Health and Human Services, Attention: BPD-788-P, P.O. Box 7517,
Baltimore, MD 21207-0517.
If you prefer, you may deliver your written comments (one original
and three copies) to one of the following addresses:
Room 309-G, Hubert H. Humphrey Building, 200 Independence Avenue, SW,
Washington, DC 20201, or
Room C5-11-17, 7500 Security Boulevard, Baltimore, MD 21244-1850.
Because of staffing and resource limitations, we cannot accept
comments by facsimile (FAX) transmission. In commenting, please refer
to file code BPD-788-P. Comments received timely will be available for
public inspection as they are received, generally beginning
approximately 3 weeks after publication of a document, in Room 309-G of
the Department's offices at 200 Independence Avenue, SW, Washington,
DC, on Monday through Friday of each week from 8:30 a.m. to 5 p.m.
(phone: (202) 690-7890).
For comments that relate to information collection requirements,
mail a copy of comments to: Office of Information and Regulatory
Affairs, Office of Management and Budget, Room 10235, New Executive
Office Building, Washington, DC 20503, Attn: Allison Herron Eydt, HCFA
Desk Officer.
FOR FURTHER INFORMATION CONTACT: Tom Talbott, (410) 786-4592.
SUPPLEMENTARY INFORMATION:
I. Background
Generally, under the Medicare program, skilled nursing facilities
(SNFs) and home health agencies (HHAs) are paid for the reasonable
costs of the covered items and services they furnish to Medicare
beneficiaries. Sections 1815(a) and 1833(e) of the Social Security Act
(the Act) provide that no payments will be made to a provider unless it
has furnished the information, requested by the Secretary, needed to
determine the amount of payments due the provider. In general,
providers submit this information through cost reports that cover a 12-
month period. Rules governing the submission of cost reports are set
forth at 42 CFR 413.20 and 42 CFR 413.24.
Under Sec. 413.20(a), all providers participating in the Medicare
program are required to maintain sufficient financial records and
statistical data for proper determination of costs payable under the
program. In addition, providers must use standardized definitions and
follow accounting, statistical, and reporting practices that are widely
accepted in the health care industry and related fields. Under
Secs. 413.20(b) and 413.24(f), providers are required to submit cost
reports annually, with the reporting period based on the provider's
accounting year. Additionally, under Sec. 412.52, all hospitals
participating in the prospective payment system must meet cost
reporting requirements set forth at Secs. 413.20 and 413.24.
Section 1886(f)(1)(B)(I) of the Act required the Secretary to place
into effect a standardized electronic cost reporting system for all
hospitals participating in the Medicare program. This provision was
effective for hospital cost reporting periods beginning on or after
October 1, 1989. On May 25, 1994, we published a final rule with
comment period implementing the electronic cost reporting requirement
for hospitals (59 FR 26960). On June 27, 1995, we published a final
rule that responded to comments on the May 25, 1994 final rule with
comment period (60 FR 33123).
II. Provisions of the Proposed Regulations
Currently, Sec. 413.24(f)(4) provides that for cost reporting
periods beginning on or after October 1, 1989, all hospitals must
submit cost reports in a standardized electronic format. While the
existing regulations do not require any other provider types to file
their cost reports electronically, more than 75 percent of SNFs and
HHAs currently submit a hard copy of an electronically prepared cost
report rather than a manually prepared cost report. HCFA's fiscal
intermediaries then review the information from these cost reports for
completeness and manually enter the data into their automated data
reporting systems. This process takes substantially longer than
processing cost reports submitted in a standardized electronic format
that allows data to be automatically entered into the intermediary's
system.
This proposed rule would revise existing Sec. 413.24(f)(4) to
require SNFs and HHAs to submit cost reports in a standardized
electronic format for cost reporting periods beginning on or after
October 1, 1995. We note that the electronic cost reports would not be
due until 5 months after the end of the provider's cost reporting
period. Thus, for a provider with a 12-month cost reporting period
beginning October 1,
[[Page 62238]]
1995, the first electronic cost report would be due February 28, 1997.
The use of electronically prepared cost reports would be beneficial
for SNFs and HHAs because the cost reporting software for these reports
would virtually eliminate computational errors and substantially reduce
preparation time. Preparation time would be decreased because providers
would no longer have to perform mathematical computations to complete
the cost report. Instead, the provider would only need to enter the
correct costs and statistics, and the software would determine the
appropriate amount of Medicare payment due the provider based on these
figures. We note that the costs and statistics that would be entered
into the electronic software are the same as those that are currently
required for Medicare cost reports. This proposed rule would not
require the reporting of any additional information.
The use of cost reporting software would also save time when the
provider discovers that it needs to change individual entries in the
cost report. Rather than recalculating the entire cost report, the
provider would merely enter the new figures, and the software would
generate a new cost report that would reflect all necessary
recalculations. The use of cost reporting software would also eliminate
the need for several administrative tasks associated with filing a cost
report. Specifically, the provider would no longer be required to
photocopy, collate, and mail a hard copy of the cost report, which is a
relatively large, cumbersome document. Instead, the completed cost
report would be electronically filed with the fiscal intermediary. That
is, the provider would submit a disk containing the required cost
report data to the fiscal intermediary.
In all, we estimate that the use of electronically prepared cost
reports would result in an average of 4 to 5 hours less preparation
time for an HHA and 8 to 10 hours less time for an SNF. We recognize
that, initially, the preparation time saved may not be as great as we
have estimated for providers that need time to become familiar with the
cost reporting software. However, we believe that once providers
overcome this small ``learning curve,'' the accuracy of cost reports
would increase and the preparation time would decrease in line with
this estimate. We welcome comments on our estimate of time savings as
well as on other advantages or disadvantages of electronic cost
reporting.
We propose that the provider's software must be able to produce a
standardized output file in American Standard Code for Information
Interchange (ASCII) format. All intermediaries have the ability to read
this standardized file and produce an accurate cost report. SNFs and
HHAs would be required to use HCFA-approved software to submit cost
reports to the intermediary. HCFA's approval process requires each
vendor to submit for review a hard copy cost report produced from their
software. The purpose of this review process is to establish that the
commercial vendor's software can produce a completed cost report in
accordance with the Medicare rules and instructions.
There are approximately 17 commercial software vendors servicing
HHAs and SNFs that have developed HCFA-approved software programs
capable of producing an electronic cost report. In addition, HCFA has
developed a software package that will enable SNFs and HHAs to file an
electronic data set to the fiscal intermediary in order to generate an
electronic cost report. Providers would be able to use either these
existing commercial software packages or HCFA's free software to comply
with the requirements in this proposed rule. To receive the free
software, providers may contact their intermediaries or send a written
request to the following address: Health Care Financing Administration,
Division of Cost Principles and Reporting, Room C5-02-23, Central
Building, 7500 Security Blvd., Baltimore, Maryland 21244-1850.
We also propose that if a SNF or HHA believes that implementation
of the electronic submission requirement would cause a financial
hardship, it may submit a written request for a waiver or a delay of
these requirements. This request, including supporting documentation,
would have to be submitted to a provider's intermediary at least 120
days before the end of the provider's cost reporting period. The
intermediary would review the request and forward it, with a
recommendation for approval or denial, to the HCFA central office
within 30 days of such request. HCFA central office would either
approve or deny the request by response to the intermediary within 60
days of receipt of the request. Each delay or waiver would be
considered on a case-by-case basis.
We considered proposing set criteria (possibly based on a
provider's bed size or capacity, for example) under which a SNF or HHA
could be exempted automatically from the electronic cost reporting
requirement. However, we have not done so because we do not believe
that a characteristic such as a provider's size is necessarily a
reliable indicator that electronic cost reporting would impose a
financial hardship, since even the smallest SNFs and HHAs are quite
likely to already be using computer equipment. We welcome comments on
the process for obtaining a waiver, whether set criteria for obtaining
a waiver would be beneficial, as well as on the number of providers
that may request a waiver.
We note that the electronic cost reporting provision would only
apply to those providers that are required to file a full Medicare cost
report. Those providers that are not required to file a full cost
report (for example, a SNF that furnishes fewer than 1500 Medicare
covered days in a cost reporting period) would not be subject to the
electronic cost reporting requirement, and therefore would not have to
request a waiver.
If a SNF or HHA (not granted a hardship exemption) does not submit
its cost report electronically, Medicare payments to that provider may
be suspended under the provisions of sections 1815(a) and 1833(e) of
the Act. These sections of the Act provide that no Medicare payments
will be made to a provider unless it has furnished the information,
requested by the Secretary, that is needed to determine the amount of
payments due the provider under the Medicare program. Section
405.371(d) provides for suspension of Medicare payments to a provider
by the intermediary if the provider fails to submit information
requested by the intermediary that is needed to determine the amount
due the provider under the Medicare program.
The general procedures that are followed when Medicare payment to a
provider is suspended for failure to submit information needed by the
intermediary to determine Medicare payment are located in section 2231
of the Medicare Intermediary Manual (HCFA Pub. 13). Those procedures
include timeframes for ``demand letters'' to providers. Demand letters
remind providers to file timely and complete cost reports and explain
possible adjustments of Medicare payments to a provider and the right
to request a 30-day extension of the due date.
Under this proposed rule, we essentially would apply the current
hospital reporting requirements to SNFs and HHAs. In our final rule
with comment period published May 25, 1994, we required that, in
accordance with section 1886(f)(1)(B)(I) of the Act, all hospitals must
submit cost reports in a uniform electronic format for cost reporting
periods beginning on or after October 1, 1989 (59 FR 26960). All
[[Page 62239]]
hospital cost reports must be electronically transmitted to the
intermediary in ASCII format. In addition to the electronic file,
existing Sec. 413.24(f)(4)(iii) requires hospitals to submit a hard
copy of a settlement summary, a statement of certain worksheet totals
found in the electronic file, and a statement signed by the hospital's
administrator or chief financial officer certifying the accuracy of the
electronic file.
Further, to preserve the integrity of the electronic file, we
implemented provisions regarding the processing of the electronic cost
report once submitted to the intermediary. Specifically, existing
Sec. 413.24(f)(4)(ii) provides that the intermediary may not alter the
cost report once it has been filed by the provider. That is, the
intermediary must maintain an unaltered copy of the provider's
electronic cost report. This provision is not intended to prohibit the
intermediary from making audit adjustments to the provider's cost
report. Additionally, this section provides that the intermediary must
reject a cost report that does not pass all specified edits. Finally,
the provider's electronic program must be able to disclose that changes
have been made to the provider's filed cost report. Again, we would
apply these same provisions to SNFs and HHAs.
As stated above, the electronic cost reporting requirement for
hospitals has been a statutory requirement for over 5 years. Our
experience with the process of hospitals submitting cost reports to the
intermediary in ASCII format has been uniformly positive. These cost
reports are processed more expeditiously and efficiently than manually
prepared cost reports or hard copies of electronically prepared cost
reports. In fact, based on comments from hospitals, we amended
Sec. 413.24(f)(4) in our June 27, 1995 final rule to eliminate the
requirement that hospitals submit a hard copy of the cost report in
addition to the electronic file (60 FR 33123). In conclusion, based on
our experience with the submission of electronic cost reports by
hospitals, we believe that electronic filing would reduce the
administrative burden on most SNFs and HHAs, with a waiver available in
financial hardship cases. Therefore, we propose to amend Sec. 413.24
accordingly:
Add a new paragraph (f)(4)(i) to define the word
``provider'' as a hospital, SNF, or HHA;
Redesignate existing paragraphs (f)(4)(i) through
(f)(4)(iv) as (f)(4)(ii) through (f)(4)(v);
Revise redesignated paragraph (f)(4)(ii) to state that
SNFs and HHAs must submit cost reports in a standardized electronic
format for cost reporting periods beginning on or after October 1,
1995; and
In redesignated paragraphs (f)(4)(iii) through (f)(4)(v),
replace the word ``hospital'' wherever it appears with the word
``provider.''
III. Impact Statement
We generally prepare a regulatory flexibility analysis that is
consistent with the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
through 612) unless we certify that a proposed rule such as this would
not have a significant economic impact on a substantial number of small
entities. For purposes of the RFA, all providers and small businesses
that distribute cost-report software to providers are considered small
entities. HCFA's intermediaries are not considered small entities for
purposes of the RFA.
In addition, section 1102(b) of the Social Security Act requires us
to prepare a regulatory impact analysis for any proposed rule that may
have a significant impact on the operation of a substantial number of
small rural hospitals. Such an analysis must conform to the provisions
of section 604 of the RFA. For purposes of section 1102(b) of the Act,
we define a small rural hospital as a hospital that is located outside
of a Metropolitan Statistical Area and has fewer than 50 beds. We are
not preparing a rural impact statement since we have determined, and
certify, that this proposed rule would not have a significant impact on
the operations of a substantial number of small rural hospitals.
As stated above, under Secs. 413.20(b) and 413.24(f), providers are
required to submit cost reports annually, with reporting periods based
on the provider's accounting year. This proposed rule would require
SNFs and HHAs, like hospitals, to submit their Medicare cost reports in
a standardized electronic format. We anticipate that this requirement
would take effect for cost reporting periods beginning on or after
October 1, 1995, meaning that the first electronic cost reports would
be due February 28, 1997.
Currently, approximately 75 percent of all SNFs and HHAs submit a
hard copy of an electronically prepared cost report to the
intermediary. We believe that the provisions of this proposed rule
would have little or no effect on these providers, except to reduce the
time involved in copying and collating a hard copy of the report for
intermediaries. In addition to the 75 percent of providers that
currently use electronic cost reporting, this rule would not affect
those providers that do not file a full cost report and, as stated
above, would not be required to submit cost reports electronically.
This proposed rule may have an impact on those providers who do not
prepare electronic cost reports, some of whom may have to purchase
computer equipment, obtain the necessary software, and train staff to
use the software. However, as discussed below, we believe that the
potential impact of this proposed rule on those providers who do not
prepare electronic cost reports would be insignificant.
First, a small number of providers that do not submit electronic
cost reports may have to purchase computer equipment to comply with the
provisions of this proposed rule. However, even among the 25 percent of
SNFs and HHAs that do not submit electronically prepared cost reports,
we believe that most providers already have access to computer
equipment, which they are now using for internal recordkeeping
purposes, as well as for submitting electronically generated bills to
their fiscal intermediaries, for example. Thus, we do not believe that
obtaining computer equipment would be a major obstacle to electronic
cost reporting for most providers. For those providers that would have
to purchase computer equipment, we note that, in accordance with
current regulations governing payment of provider costs, Medicare would
pay for the cost of the equipment as an overhead cost.
We recognize that a potential cost for providers that do not submit
electronic cost reports would be that of training staff to use the
software. Since most SNFs and HHAs currently use computers, we do not
believe that training staff to use the new software would impose a
large burden on providers. An additional cost would be the cost of the
software offered by commercial vendors. However, providers could
eliminate this cost by obtaining the free software from HCFA.
The requirement that hospitals submit cost reports in a
standardized electronic format has been in place since October, 1989.
Since that time, the accuracy of cost reports has increased and we have
received very few requests for waivers. Additionally, we have not
received any comments from the hospital industry indicating that the
use of electronic cost reporting is overly burdensome. We believe that
electronic cost reporting would be equally effective for SNFs and HHAs,
with the benefits (such as increased accuracy and decreased
[[Page 62240]]
preparation time) outweighing the costs of implementation for most
providers.
In conclusion, we have determined that this proposed rule would not
have a significant effect on SNF and HHA costs because these providers
would not be required to collect any additional data beyond that which
the regulations currently specify; cost reporting software is available
at no cost from HCFA to any provider that requests it; most SNFs and
HHAs have some type of computer equipment through which they currently
prepare electronic cost reports; and a waiver of the electronic cost
reporting requirement would be available to providers for whom the
requirement would impose a financial hardship. SNFs and HHAs would only
be affected to the extent that, absent a waiver, all would be required
to submit cost reports in a standardized electronic format to their
intermediary. A provider that does not comply with the provisions of
this rule, as specified in the preamble, would be subject to sections
1815(a) and 1833(e) of the Act, which provide that no payments will be
made to a provider unless it has furnished the information requested by
the Secretary that is needed to determine the amount of payments due
the provider under Medicare.
We welcome comments on the effect of the electronic cost reporting
requirement, its benefits or disadvantages, the proposed implementation
date, and issues related to the waiver process.
In accordance with the provisions of Executive Order 12866, this
regulation was reviewed by the Office of Management and Budget (OMB).
IV. Collection of Information Requirements
Under the Paperwork Reduction Act of 1995, agencies are required to
provide 60-day notice in the Federal Register and solicit public
comment before a collection of information requirement is submitted to
the Office of Management and Budget (OMB) for review and approval. In
order to fairly evaluate whether an information collection should be
approved by OMB, section 3506(c)(2)(A) of the Paperwork Reduction Act
of 1995 requires that we solicit comment on the following issues:
Whether the information collection is necessary and useful
to carry out the proper functions of the agency;
The accuracy of the agency's estimate of the information
collection burden;
The quality, utility, and clarity of the information to be
collected; and
Recommendations to minimize the information collection
burden on the affected public, including automated collection
techniques.
Therefore, we are soliciting public comment on each of these issues
for the information collection requirements discussed below.
As discussed in detail above, this proposed rule would require that
SNFs and HHAs submit cost reports in a standardized electronic format
for cost reporting periods beginning on or after October 1, 1995. That
is, providers would be required to file a diskette containing the
required cost report data in a standardized electronic format. We
believe that this requirement would reduce the paperwork and
information collection burden for those SNFs and HHAs that currently do
not submit electronically prepared cost reports. Specifically, we
estimate that the number of hours each provider would save by
submitting an electronically prepared cost report instead of manually
preparing, and photocopying, the cost report would be an average of 9
hours for each affected SNF and 4.5 hours for each affected HHA.
Assuming that approximately 25 percent of all SNFs and HHAs would be
affected, that is roughly 3,000 SNFs and 2,000 HHAs, we estimate that
SNFs would save approximately 27,000 hours per year completing cost
reports, and HHAs would save about 9,000 hours per year.
We note that the overall information collection and recordkeeping
burden associated with filing SNF costs reports has been approved by
OMB through January 1998 (OMB approval number 0938-0463). Additionally,
OMB has approved the information collection burden for HHA cost reports
through October 1997 (approval number 0938-0022). We would not require
SNFs and HHAs to report any information on the electronic cost report
that is not already required in the Medicare cost reports currently
submitted by these providers.
The information collection and recordkeeping requirements contained
in Sec. 413.24 are not effective until they have been approved by OMB.
A notice will be published in the Federal Register when approval is
obtained. Organizations and individuals that wish to submit comments on
the information and recordkeeping requirements set forth in Sec. 413.24
should direct them to the OMB official whose name appears in the
ADDRESSES section of this preamble.
V. Response to Comments
Because of the large number of items of correspondence we normally
receive on Federal Register documents published for comment, we are not
able to acknowledge or respond to them individually. We will consider
all comments we receive by the date and time specified in the ``DATES''
section of this preamble, and, if we proceed with a subsequent
document, we will respond to the comments in the preamble to that
document.
List of Subjects in 42 CFR Part 413
Health facilities, Kidney diseases, Medicare, Puerto Rico,
Reporting and recordkeeping requirements.
42 CFR part 413 is amended as set forth below:
PART 413--PRINCIPLES OF REASONABLE COST REIMBURSEMENT; PAYMENT FOR
END-STAGE RENAL DISEASE SERVICES
1. The authority citation for part 413 continues to read as
follows:
Authority: Secs. 1102, 1861(v)(1)(A), and 1871 of the Social
Security Act (42 U.S.C. 1302, 1395x(v)(1)(A), and 1395hh).
2. Section 413.24 is amended by redesignating existing paragraphs
(f)(4)(i) through (f)(4)(iv) as paragraphs (f)(4)(ii) through
(f)(4)(v); adding a new paragraph (f)(4)(i); and revising redesignated
paragraphs (f)(4)(ii) through (f)(4)(v) to read as follows:
Sec. 413.24 Adequate cost data and cost finding.
* * * * *
(f) Cost reports. * * *
(4) Electronic submission of cost reports. (i) As used in this
paragraph, provider means a hospital, skilled nursing facility, or home
health agency.
(ii) Effective for cost reporting periods beginning on or after
October 1, 1989, for hospitals and cost reporting periods beginning on
or after October 1, 1995, for skilled nursing facilities and home
health agencies, a provider is required to submit cost reports in a
standardized electronic format. The provider's electronic program must
be capable of producing the HCFA standardized output file in a form
that can be read by the fiscal intermediary's automated system. This
electronic file, which must contain the input data required to complete
the cost report and the data required to pass specified edits, is
forwarded to the fiscal intermediary for processing through its system.
(iii) The fiscal intermediary stores the provider's as-filed
electronic cost report and may not alter that file for any reason. The
fiscal intermediary makes a ``working copy'' of the as-filed electronic
cost report to be used, as necessary, throughout the settlement process
(that is, desk review, processing audit adjustments, final settlement,
etc). The provider's electronic program must
[[Page 62241]]
be able to disclose if any changes have been made to the as-filed
electronic cost report after acceptance by the intermediary. If the as-
filed electronic cost report does not pass all specified edits, the
fiscal intermediary rejects the cost report and returns it to the
provider for correction. For purposes of the requirements in paragraph
(f)(2) of this section concerning due dates, an electronic cost report
is not considered to be filed until it is accepted by the intermediary.
(iv) Effective for cost reporting periods ending on or after
September 30, 1994, for hospitals and cost reporting periods beginning
on or after October 1, 1995, for skilled nursing facilities and home
health agencies, a provider must submit a hard copy of a settlement
summary, a statement of certain worksheet totals found within the
electronic file, and a statement signed by its administrator or chief
financial officer certifying the accuracy of the electronic file or the
manually prepared cost report. The following statement must immediately
precede the dated signature of the provider's administrator or chief
financial officer:
I hereby certify that I have read the above certification
statement and that I have examined the accompanying electronically
filed or manually submitted cost report and the Balance Sheet
Statement of Revenue and Expenses prepared by ____________________
(Provider Name(s) and Number(s)) for the cost reporting period
beginning ________________ and ending ________________ and that to
the best of my knowledge and belief, this report and statement are
true, correct, complete and prepared from the books and records of
the provider in accordance with applicable instructions, except as
noted. I further certify that I am familiar with the laws and
regulations regarding the provision of health care services, and
that the services identified in this cost report were provided in
compliance with such laws and regulations.
(v) A provider may request a delay or waiver of the electronic
submission requirement in paragraph (f)(4)(ii) of this section if this
requirement would cause a financial hardship. The provider must submit
a written request for delay or waiver with necessary supporting
documentation to its intermediary at least 120 days prior to the end of
its cost reporting period. The intermediary reviews the request and
forwards it with a recommendation for approval or denial, to HCFA
central office within 30 days of receipt of the request. HCFA central
office either approves or denies the request and notifies the
intermediary within 60 days of receipt of the request.
* * * * *
(Catalog of Federal Domestic Assistance Program No. 93.773,
Medicare--Hospital Insurance; and Program No. 93.774, Medicare--
Supplementary Medical Insurance Program)
Dated: June 21, 1995.
Bruce C. Vladeck,
Administrator, Health Care Financing Administration.
[FR Doc. 95-29542 Filed 12-4-95; 8:45 am]
BILLING CODE 4120-01-P
Complete official Federal Register PDF
FR Doc. 95-29528 Sheep and Wool Promotion, Research, Education, and Information Order
[Federal Register Volume 60, Number 233 (Tuesday, December 5, 1995)]
[Proposed Rules]
[Pages 62298-62314]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-29528]
[[Page 62297]]
_______________________________________________________________________
Part II
Department of Agriculture
_______________________________________________________________________
Agricultural Marketing Service
_______________________________________________________________________
7 CFR Part 1280
Sheep and Wool Promotion, Research, Education, and Information Order;
Proposed Rule
Federal Register / Vol. 60, No. 233 / Tuesday, December 5, 1995 /
Proposed Rules
[[Page 62298]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 1280
[No. LS-94-015]
Sheep and Wool Promotion, Research, Education, and Information
Order
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Sheep Promotion, Research, and Information Act of 1994
(Act), authorized the establishment of a national, industry-funded and
-operated sheep and wool promotion, research, education, and
information program. On January 4, 1995, the Agricultural Marketing
Service (AMS) published in the Federal Register an invitation to submit
proposals for a sheep and wool promotion, research, education, and
information order (Order). AMS received an entire industry proposal as
well as four other partial proposals, all of which were published for
public comment in the June 2, 1995, issue of the Federal Register. A
public meeting was held on June 26, 1995, at the Department of
Agriculture (Department) to discuss the proposed Order and to solicit
comments on the proposal. After evaluating the written comments
submitted, the transcript from the public meeting, and other available
material, an Order is issued pursuant to the provisions of the Act and
will be subject to a referendum.
Before the Order is made effective, a referendum must be conducted
among sheep producers, sheep feeders, and importers of sheep and sheep
products, except importers of raw wool. A final referendum rule will be
published separately in the Federal Register. If sheep producers,
feeders, and importers voting in the referendum approve the proposed
Order, all producers, feeders, and importers would be required to pay
assessments, which would be used in a national program of sheep and
wool promotion, research, education, consumer, industry, and producer
information.
The certification and nomination procedures for the establishment
of the National Sheep Promotion, Research, and Information Board
(Board) as well as other implementing regulations will be published
separately in the Federal Register.
ADDRESSES: Ralph L. Tapp, Chief; Marketing Programs Branch, Room 2606-
S; Livestock and Seed Division, AMS-USDA; P.O. Box 96456; Washington,
D.C. 20090-6456.
FOR FURTHER INFORMATION CONTACT: Ralph L. Tapp, Chief, Marketing
Programs Branch, 202/720-1115.
SUPPLEMENTARY INFORMATION: Prior documents: Notice-Invitation to submit
proposals published January 4, 1995 (60 FR 381); Proposed Rule-Sheep
and Wool Promotion, Research, Education, and Information Order
published June 2, 1995 (60 FR 28747); Proposed Rule: Procedures for
Conduct of Referendum published August 8, 1995 (60 FR 40313); Notice-
Certification of Organization for Eligibility to Make Nominations to
the Proposed Board published August 8, 1995 (60 FR 40343); Proposed
Rule-Rules and Regulations published October 3, 1995 (60 FR 51737).
Regulatory Impact Analysis
Executive Orders 12866 and 12778 and the Regulatory Flexibility Act
This proposed rule has been determined to be not significant for
purposes of Executive Order 12866 and therefore has not been reviewed
by the Office of Management and Budget (OMB).
This proposed rule was reviewed under Executive Order 12778, Civil
Justice Reform. It is not intended to have a retroactive effect. This
rule would not preempt any State or local laws, regulations, or
policies unless they present an irreconcilable conflict with this rule.
The Act provides that any person subject to the Order may file with
the Secretary a petition stating that the Order, any provision of the
Order, or any obligation imposed in connection with the Order is not in
accordance with the law, and requesting a modification of the Order or
an exemption from certain provisions or obligations of the Order. The
petitioner would have the opportunity for a hearing on the petition.
Thereafter the Secretary would issue a decision on the petition. The
Act provides that the district court of the United States in the
district in which the petitioner resides or carries on business has
jurisdiction to review the Secretary's decision, if the petitioner
files a complaint for that purpose not later than 20 days after the
date of the entry of the decision. The petitioner must exhaust his or
her administrative remedies before filing such a complaint in the
district court.
Pursuant to requirements set forth in the Regulatory Flexibility
Act (RFA)(5 U.S.C. 601 et seq.), the Administrator of AMS has
considered the economic impact of this proposed action on small
entities.
The purpose of RFA is to fit regulatory actions to the scale of the
businesses that are subject to such actions so that small businesses
would not be unduly or disproportionately burdened.
According to the January 27, 1995, issue of ``Sheep and Goats,''
published by the Department's National Agricultural Statistics Service,
there are approximately 87,350 sheep operations in the United States,
nearly all of which would be classified as small businesses under the
criteria established by the Small Business Administration (13 CFR
121.601). Additionally, there are approximately 9,000 importers of
sheep and sheep products, nearly all of which would be classified as
small businesses.
This proposed Order would require each person who makes payment to
a sheep producer, feeder, or handler of sheep or sheep products to be a
collecting person, and to collect an assessment from that sheep
producer, feeder, or handler of sheep or sheep products. Any person who
buys domestic live sheep or greasy wool for processing must also
collect the assessment and remit it to the Board. Each person who
processes or causes to be processed sheep or sheep products of that
person's own production and who markets the processed products would
pay an assessment and remit the assessment to the Board. Any person who
exports live sheep or greasy wool would be required to remit an
assessment to the Board. Finally, each person who imports into the
United States sheep, sheep products, wool, or wool products, other than
raw wool, would pay an assessment. The U.S. Customs Service (Customs)
would collect the assessments on imported sheep and sheep products
(except raw wool) and forward them to AMS for disbursement to the
Board.
The rate of assessment on domestic sheep producers, feeders, and
exporters of live sheep and greasy wool would be 1-cent-per-pound on
live sheep sold and 2-cents-per-pound on greasy wool sold. Importers
would be assessed 1-cent-per-pound on live sheep and the equivalent of
1-cent-per-pound of live sheep for sheep products and 2-cents-per-pound
of degreased wool or the equivalent of degreased wool for wool and wool
products. Imported raw wool would be exempt from assessments. Each
person who processes or causes to be processed sheep or sheep products
of that person's own production and markets the processed products
would be assessed the equivalent of 1-cent-per-pound of live sheep sold
and 2-cents-per-pound of greasy wool sold. All assessment rates
[[Page 62299]]
may be adjusted in accordance with the applicable provisions of the
Act.
Paperwork Reduction
In accordance with the Paperwork Reduction Act of 1980 (44 U.S.C.
Chapter 35), the information collection requirements contained herein
were submitted to OMB for approval and assigned OMB No. 0581-0093. This
action sets forth the provisions for establishing a nationwide,
industry-funded sheep and wool promotion, research, education, and
information program. The information collection requirements as
required by this action and necessary for the implementation of this
Order include:
(1) A report by each collecting person required to remit
assessments to the Board for live sheep or greasy wool purchased from
the producer, feeder, or handler of sheep or sheep products; by each
person marketing sheep or sheep products of that person's own
production; and by each exporter of sheep or greasy wool. The estimated
number of respondents for this report is 700. Each respondent would
submit one report per month, unless otherwise prescribed by the Board,
and the estimated average reporting burden is 0.5 hours per response;
(2) A requirement to maintain sufficient records to verify reports
submitted under the Order. The estimated number of recordkeepers needed
to comply with this requirement is 700, each of whom would have an
estimated annual reporting burden of 0.5 hours;
(3) An application for certification of organization, to be
completed by eligible organizations that request certification in order
to be eligible to nominate producers, feeders, and importers to the
Board. The estimated number of respondents is 70 (with each submitting
one response), and the estimated average reporting burden is 0.5 hour
per response;
(4) A nomination form by which certified organizations will
nominate producers, feeders, and importers for membership on the Board.
The estimated number of respondents is 60 for the first year of the
Order, and 20 each year thereafter. Each respondent would submit one
response per year, and the estimated average reporting burden is 0.5
hour per response; and
(5) An advisory committee membership background information form,
to be completed by candidates nominated by certified organizations for
appointment to the Board. The estimated number of respondents is 240
during the first year of the Order, and 80 each year thereafter. Each
respondent would submit one response per year, and the estimated
average reporting burden is 0.5 hour per response.
Background
The Act (7 U.S.C. 7101-7111), approved October 22, 1994, authorizes
the Secretary to establish a national sheep and wool promotion,
research, education, and information program. The program would be
funded by a mandatory assessment on domestic sheep producers, sheep
feeders, and exporters of live sheep and greasy wool of 1-cent-per-
pound on live sheep sold and 2-cents- per-pound on greasy wool sold.
Importers would be assessed 1-cent-per-pound on live sheep imported and
the equivalent of 1-cent-per-pound of live sheep for sheep products
imported and 2-cents-per-pound of degreased wool or the equivalent of
degreased wool for wool and wool products imported. Imported raw wool
would be exempt from assessments. Each person who processes or causes
to be processed sheep or sheep products of that person's own
production, and who markets the processed products, would be assessed
the equivalent of 1-cent-per-pound of live sheep sold and 2-cents-per-
pound of greasy wool sold. All assessment rates may be adjusted in
accordance with applicable provisions of the Act.
The Act provides for the submission of proposals for a Sheep and
Wool Promotion, Research, Education, and Information Order (Order). The
Secretary may propose the issuance of an Order, or an association of
sheep producers may submit and request the issuance of an Order. The
Act provides that when the Secretary decides to propose an Order or
receives a request and proposal for an Order, the Secretary shall
publish the proposed Order and give due notice and opportunity for
public comment. As established by the Act, the Order provides for the
establishment of a Board comprised of 85 sheep producers, 10 sheep
feeders, and 25 importers of sheep and sheep products. The Act further
provides that any State with one member may have an alternate member.
The Department issued an invitation to submit proposals for an
initial Order in the January 4, 1995, (60 FR 381) issue of the Federal
Register. In response to that invitation, the American Sheep Industry
Association (ASI), the sheep industry's producer member organization,
submitted a proposed Order. In addition, the New Zealand Meat Producers
Board, the Australian Meat and Live-stock Corporation, the Wools of New
Zealand, the National Lamb Feeders Association, and the Lamb Committee
of the National Livestock and Meat Board each submitted a partial
proposal.
The Department also received letters from other interested parties.
The Department did not consider these letters to be proposals because
they primarily addressed information related to provisions of the Act
itself. Copies of these letters and the comments received in response
to the proposed Order, are available for public inspection.
The Department published ASI's proposal as Proposal I, the New
Zealand Meat Producers Board's proposal as Proposal II, the Australian
Meat and Live-stock Corporation's proposal as Proposal III, the Wools
of New Zealand's proposal as Proposal IV, and the National Lamb Feeders
Association's proposal as Proposal V. The Department modified these
proposals slightly in order to (1) make them consistent with the Act
and other similar national research and promotion programs supervised
by the Department, (2) simplify the language and format of some
provisions, and (3) add certain sections necessary for the proper
administration of the Order by the Department. The Department rejected
the proposal submitted by the Lamb Committee of the National Livestock
and Meat Board and discussed that proposal in the proposed rule. Each
proposal was published in the June 2, 1995, issue of the Federal
Register (60 FR 28747). Interested persons were invited to submit
comments on the proposals until July 17, 1995.
The Department received 137 written comments concerning the
proposed Order from individual sheep producers, sheep feeders,
importers of sheep and sheep products, State sheep producer
organizations, general farm organizations, universities, and other
interested parties. Ninety-three comments were filed on time and forty-
four comments were filed after the comment period closed. The late
comments generally expressed the same views as the timely comments that
are discussed herein, and the commenters generally supported the
primary proposed Order with certain qualifications.
The substantive changes suggested by commenters are discussed
below, together with a description of changes made by the Department
upon review of the proposed Order and the comments. The Department has
also made other minor changes of a nonsubstantial nature for clarity
and accuracy.
Of the ninety-three timely comments, sixty-two comments supported
the proposed Order as published or expressed support with some
[[Page 62300]]
modifications or clarifications. Six comments opposed the entire Order
or portions thereof. The remaining comments neither supported nor
opposed the proposal in its entirety, but rather addressed specific
sections in the proposed Order or made general comments relating to the
Act or the Order. Forty-two comments did not express opposition to
Proposal II which would provide for 6 of the 25 importer Board members
to represent importers of sheep meat and that 1 member of the Executive
Committee be an importer of sheep meat and that organizations that
represent importers of sheep or sheep products may make nominations for
representation of the importer unit. Two comments opposed Proposal II.
Fifty-nine comments opposed Proposal III which would prohibit the use
of assessments for specific country of origin promotion programs and
two comments supported Proposal III. Forty-eight comments opposed
Proposal IV which would provide that funds generated under the Act be
used to promote (1) a wide range of wool products in the United States,
including interior textile product; e.g., carpet rugs, and upholstery;
and (2) wool generically rather than to promote wool specifically grown
in the United States and four comments supported Proposal IV. Finally,
fifty-two comments supported Proposal V, which would provide that
domestic assessments could be used to promote ``Fresh American Lamb.''
The discussions are organized by headings of the proposed Order's
provisions.
Definitions
Two commenters recommended that we review all of the terminology in
Sec. 1280.101 through Sec. 1280.136 in the proposed Order and clarify
any terms that are ambiguous, in order to ensure that the definitions
in the proposed Order generally conform with or mirror those in the
Act. We agree, and reviewed the definitions and determined that the
definitions in the proposed Order either mirror the definitions in the
Act or conform to the Act's intent.
Section 1280.108 Degreased Wool
One commenter stated that the definition of ``degreased wool'' has
created some confusion because the term for ``degreased wool'' used
both in the United States and abroad, is ``scoured wool.'' The
commenter recommended that the term ``degreased wool'' be changed to
``scoured wool.'' We have not adopted this recommendation because the
Act defines the term ``degreased wool'' and we believe that the
proposed Order's definition should mirror the Act's definition.
Accordingly, this suggestion is not adopted.
Section 1280.113 Feeder
Five commenters opposed the definition of ``feeder'' in the
proposed Order. One commenter suggested that a ``feeder'' should be
defined as ``a person that is the second owner of the lamb'' because
the definition in the Act and in the proposed Order was ambiguous and
could allow a person who was primarily a producer to occupy a feeder
seat on the Board but prohibit a person who is primarily a feeder to
occupy a producer seat on the Board. The same commenter also stated
that according to the definition in the proposed Order many producers
could be feeders, but few feeders could be producers. Another commenter
suggested that ``feeder'' should be defined as ``a producer who
purchases more than 500 head of lambs a year, to be finished for the
commercial market.'' The commenter believes that the intent of the Act
was not to include 4-H club members who show market sheep or other
individuals who sell only a few market lambs in the definition of
``feeder''. Another commenter suggested that ``feeder'' should be
defined as ``any person other than a producer who purchases lambs to be
finished for the commercial market.'' Another commenter suggested that
a ``feeder'' should be defined as one whose main source of income (over
50 percent) comes from lambs purchased for the purpose of feeding to
market weight. Another commenter opposed the definition of ``feeder''
but did not provide an alternate definition. The Act itself defines
``feeder'' as any person who feeds lambs until the lambs reach
slaughter weight. The Department finds that the definition in the
proposed Order should mirror that found in the Act. Accordingly, we
have not adopted any of these suggestions.
Section 1280.122 Producer
Five commenters opposed the definition of ``producer'' in the
proposed Order. One commenter suggested that ``producer'' be defined as
any person involved in certain industry segments * * * to include but
not be limited to * * * a ``commercial'' ewe flock, purebred operation,
speciality lamb and/or wool market segment, 4-H member or youth,
because that definition is more representative of the producer segment
of the sheep industry. Another commenter suggested that ``producer'' be
defined as any producer who markets less than 500 purchased lambs per
year. Another commenter suggested that ``producer'' be defined as one
who breeds sheep for the production of lamb and wool. Three other
commenters opposed the definition of ``producer'' but did not provide
an alternative definition. The Act defines ``producer'' as any person,
other than a feeder, who owns or acquires ownership of sheep. The
Department finds that the definition in the proposed Order should
mirror that found in the Act. Accordingly, we have not adopted these
suggestions.
One commenter suggested that the definitions of ``feeder,''
``importer'' and ``producer'' include a minimum age restriction and
thus require an individual to be at least 18 years of age to ensure
that those eligible to vote in the referendum are actually engaged in
the commercial feeding, importation or production of sheep and sheep
products. The Act does not specify any age limit or restriction as an
eligibility requirement, and there are no age limits or restrictions on
persons who are required to pay assessments. The Department believes
that Congress intended that each person who is subject to the
assessment should be entitled to vote. Accordingly, we have not adopted
this suggestion.
Section 1280.126 Qualified State Sheep Board
One commenter opposed the definition of ``Qualified State Sheep
Board (QSSB)'' because Sec. 1280.126 of the proposed Order was
inconsistent with Sec. 2(5), ``Findings and Declaration Policy,'' of
the Act, which states that existing State organizations which conduct
sheep and sheep product promotion, research, industry, and consumer
education programs that are invaluable to the efforts of promoting the
consumption of sheep and sheep products. The commenter further believes
that the definition of ``QSSB'' would allow any private trade
association to be recognized as a ``QSSB,'' because they are entities
organized and operating within the State. Additionally, the commenter
states that Sec. 1280.126 in the proposed Order defines QSSB as a sheep
and wool promotion entity but also appears to include entities that
conduct promotion, research or consumer information programs with
respect to sheep or wool or both. Finally, the same commenter suggested
that Sec. 1280.126 in the proposed Order be amended to include the
following subsection ``(d)'': ``(d) * * * has agreed to maintain books
and records as specified in regulations approved by the Secretary, to
be subject to audit by or at the direction of the Secretary, to abide
by all terms of the Act and the Order and to immediately
[[Page 62301]]
suspend any and all activities funded by assessments collected pursuant
to the Act and Order upon receipt of such a request from the
Secretary.'' The Department believes that the Board would have the
authority to certify a ``QSSB'' in each State. Furthermore, the
Department believes that the Board should have the latitude to
establish requirements, subject to Departmental approval, to ensure
that funds expended by ``QSSB's'' are spent in accordance with the Act
and the Order. The Act defines a ``QSSB'', as a sheep and wool
promotion entity that is authorized by State statute or organized and
operating within a State, receives voluntary contributions or dues and
conducts promotion, research, or consumer information programs with
respect to sheep or wool, or both, and is recognized by the Board as
the sheep and wool promotion entity within the State; except that not
more than one QSSB shall exist in any State at any one time. Therefore,
we believe that the definition in the proposed Order should mirror that
found in the Act. Accordingly, we have not adopted these suggestions.
Section 1280.127 Raw Wool
Six commenters suggested that the definition of ``raw wool'' should
be expanded to include wooltop, noils of wool and wool waste so that
the definition is both clear and consistent with the North American
Free Trade Agreement ``Yarn Forward'' rule of origin for wool and other
textile imports. The Department has reviewed the definition of ``raw
wool,'' and believes that Congress intended to assess processed sheep
and sheep products but not raw wool. The Act defines ``raw wool'' as
greasy wool, pulled wool, degreased wool, or carbonized wool.
Furthermore, the Department finds that wooltop, noils of wool, and wool
waste result from the processing of raw wool as defined in the Act and
we believe that Congress intended that all processed products would be
subject to the assessment. Therefore, to expand the definition would
not be consistent with the intent of the Act. We have determined that
the definition in the proposed Order mirrors that found in the Act.
Accordingly, we have not adopted this suggestion.
National Sheep Promotion, Research, and Information Board
Section 1280.201 Establishment and Membership of the Board
Eighteen commenters opposed one or more aspects of the
``Establishment and Membership of the Board'' portion of the proposed
Order. In general, the commenters felt that (1) the Board was too large
and cumbersome for the sheep industry, (2) the Board should realign its
membership on a 3-year basis based on actual collections from each
industry segment, (3) the Board should include a packer/breaker/
retailer member because including representatives of all or some of
these entities would enhance communication and lead to greater
promotional efficiency and cooperation, (4) the Board is not fairly
representative of producer, feeder and importer groups based on total
assessment contributions, and (5) a certain number of seats on the
Board should be held by each member category--sheep producers, sheep
feeders and importers of sheep and sheep products--based on total
assessments collected from these groups.
The Act provides for the establishment and membership of the Board,
including the number of members from each industry segment to be
represented on the Board. The Act does not authorize the Board's
membership to (1) be adjusted on a 3-year basis, (2) include a packer/
breaker/retailer seat or (3) be based on total contributions from each
industry segment. Accordingly, we have not adopted any of these
suggestions.
One commenter suggested amending Sec. 1280.201 to include the
following subsection: ``(e) in accordance with regulations approved by
the Secretary, at least every 3 years and not more than every 2 years,
the Board shall review the relative investments made by producers,
feeders, and importers through payment of assessments and, if
warranted, shall reapportion representation on the Board in order to
best reflect the current state of the sheep and sheep products industry
and ensure equitable representation in relation to respective groups
total assessments.'' The Act authorizes the establishment of a 120-
member Board comprised of 85 producers, 10 feeders and 25 importers.
The Act does not authorize reapportionment of the Board for any reason.
Accordingly, we have not adopted this suggestion. The same commenter
also suggested amending Sec. 1280.201 to include a subsection ``(f)''
to read: ``(f) a quorum of the Board shall consist of the producer
representatives, importer representatives and feeder representatives or
their respective alternates and a majority vote of representatives at a
meeting in which a quorum is present shall constitute an act on the
Board.'' The Department has determined that the Board should have the
latitude to determine what constitutes a quorum of the Board in
developing its operating principles and procedures. Accordingly, this
suggestion is not adopted.
One commenter suggested that the Board be selected in a manner
similar to that used by the Consolidated Farm Service Agency for county
and State committee elections. The Act requires that the Secretary
appoint the Board from nominations submitted by certified
organizations. Accordingly, we have not adopted this suggestion.
Forty-two commenters indicated that they did not oppose proposal
II, which proposed that 6 of the 25 importer members would represent
importers of sheep meat, that 1 member of the Executive Committee be an
importer of sheep meat, and that organizations representing importers
of sheep or sheep products may make nominations for representation for
the importer unit. Two commenters opposed Proposal II because
allocating six seats for meat importers would give meat importers a
greater number of seats than they would have if representation were
based on contributions to the annual revenue. Additionally, commenters
suggested that Sec. 1280.201(c) of the proposed Order be amended to
read as follows: ``The importer positions shall be allocated
proportionally to importers of wool products, sheep meat, sheep, and
sheep products according to the relative contributions to checkoff
revenues.'' The Act does not provide for a specified number of seats on
the Board or the Executive Committee for each importer segment; i.e.,
sheep meat and wool. However, the Department has determined that the
Secretary should have the latitude to appoint representatives to the
Board in a manner that best reflects the interests of the various
importer segments. Accordingly, we have not adopted these suggestions.
One commenter perceived that the proposed Order lacks any minimum
qualifications for entities seeking recognition as Qualified State
Sheep Boards and suggested that the Department compare Sec. 1280.207
and Sec. 1280.126. Additionally, the commenter indicated that the
proposed Order appears to establish such standards for those
organizations certified to nominate candidates for the Board, but not
for those who handle the assessments collected under the program. The
Department has reviewed these sections and determined that both are
consistent with the intent of the Act. Thus, we have made no changes to
this section in this proposed rule.
Section 1280.202 Nominations
Two commenters suggested that the industry representatives
nominated to
[[Page 62302]]
the Board should be elected by the members of each industry segment
because the Secretary is unfamiliar with the abilities of individuals
in the various industries. The Department believes that the
certification and nomination process would give the Secretary the
opportunity to appoint members who best represent each industry segment
because certified organizations comprised of members of those segments
will submit nominations to the Board. Additionally, the Act requires
the Secretary to appoint the Board. Accordingly, we have not adopted
this suggestion.
One commenter stated that the Department had modified the language
of its initial proposal concerning nomination of importers in a way
that made it appear that importer representatives need not be actual
importers. The commenter suggests that the term ``importer
representatives'' be used rather than ``importer'' because the term
``importer representatives'' would be less restrictive and does not
imply that the Board members must actually import wool products. The
Department did not include this portion of the proposal as submitted.
However, the Department has again reviewed the original language in the
initial proposal and believes that its slight modification did not
materially change the proposal's meaning. The Act requires the
Secretary to appoint importers to seats established under the Act from
nominations submitted by qualified organizations that represent
importers. Furthermore, the Act defines ``importer'' as any person who
imports sheep or sheep products into the United States and a ``person''
as any individual, group of individuals, partnership, corporation,
association, cooperative, or any other legal entity. Consequently, the
Department believes that the Act intended that persons who import sheep
and sheep products should be eligible for appointment to the Board.
Accordingly, we have not adopted this suggestion.
One commenter opposed the inclusion of 25 importers on the Board
because U.S. producers do not have the opportunity to influence policy
in foreign countries. The Act provides that 25 importers of sheep and
sheep products are to be represented on the Board. Accordingly, we have
not adopted this suggestion.
Two commenters suggested that Sec. 1280.202 of the proposed Order
limits nominations to members of certified organizations because the
definition of ``feeder'' and ``producer'' appears to allow a producer
to qualify as a feeder but specifically prohibits feeders from
qualifying as producers. In addition, the commenters believe that the
definition of ``feeder'' and ``producer'' may also invite First
Amendment challenges by individuals claiming to occupy, or to have an
opportunity to occupy a feeder seat, but who are required to join a
producer trade association and pay dues to such association to be
eligible to be nominated to the Board. The Department carefully
reviewed the Act, the proposed Order, and the nomination procedures to
ensure that the nomination process would be conducted as provided for
in the Act. The Act provides for certified producer organizations to
submit only nominations from their membership for the unit in which the
certified organization is located. There is no similar restriction on
certified feeder and importer organizations. The Department finds no
need to change the Order as a result of these comments.
One commenter suggested that the Secretary should not be authorized
to appoint the Board. The Act specifically authorizes the Secretary to
appoint the Board from nominations submitted by certified
organizations. Accordingly, we have rejected this suggestion.
Section 1280.205 Method of Obtaining Nominations
One commenter suggested that Sec. 1280.205(a) (1) and (2) in the
proposed Order should provide that individuals as well as certified
organizations be certified as eligible to submit nominations. The Act
provides for all nominations to be made from certified producer, feeder
and importer organizations. If no organization is certified for an
industry segment or for a State in the case of producers, the proposed
Order permits the Secretary to obtain nominees by other means.
Accordingly, we have not adopted this suggestion. The commenter further
suggested that Sec. 1280.205(2)(C) in the proposed Order be amended to
read as follows: ``The organization has a primary and overriding
interest in representing the feeder or importer segment of the sheep
industry as opposed to some other aspect of the industry.'' The Act
establishes the criteria for certification, and it is not necessary to
modify the Order in order to carry out the Act's provisions. The
Department finds that the proposed changes to Sec. 1280.205 enumerated
above are unnecessary. Accordingly, we have not adopted them.
One commenter noted that Sec. 1280.205(b)(2) in the proposed Order
contained a misprint and suggested that the language ``shall be made by
the Secretary'' be inserted between the words ``Board'' and ``from.''
There was, in fact, a misprint and we have amended the language in
Sec. 1280.205(b)(2) of the Order to mirror the language in the Act.
One commenter was concerned that producer nominees would have to be
members of a certified organization in order to be nominated to the
Board. The Act requires producer organizations to submit only
nominations from the membership of the organization for the unit in
which the organization is located. Accordingly, we have not changed
this subsection in this proposed rule.
Section 1280.207 Certification
One commenter suggested that the National Lamb Feeders Association
be the exclusive nominator of lamb feeder representatives, and be
eligible to submit the names of the 15 sheep feeders for appointment to
the 10 sheep feeder positions on the Board. The Department considered a
similar comment proposed during the development of the proposed Order
and did not accept it for inclusion in the proposed Order. This
suggestion, if accepted, would prevent other existing organizations or
new organizations from being eligible to nominate feeders to the Board,
thereby restricting the opportunity for all qualified organizations to
participate in the nomination process in contravention of the Act.
Accordingly, we have rejected this suggestion.
Section 1280.208 Term of Office
One commenter noted that the word ``proportionally'' was
substituted for the word ``proportionately'' in the proposed Order. To
make the Order's language consistent with the language in the Act, we
have replaced the word ``proportionally'' with ``proportionately'' in
Sec. 1280.208 in this proposed Order.
Section 1280.211 Powers and Duties of the Board
Two commenters suggested that Sec. 1280.211(h) in the proposed
Order should be amended to read as follows: ``to contract with
entities, if necessary, to implement plans or projects in accordance
with the Act and whenever possible, the Board shall use existing
national organizations representative of feeders, importers, or
producers to implement plans and projects in order to increase
efficiency and minimize costs.'' The Act does not require the Board to
utilize existing national organizations to implement plans and
projects. The Department believes that the Board could use such
organizations
[[Page 62303]]
if it determined that they could effectively carry out certain
projects, however, we believe that this language would unduly restrict
the Board's authority to enter into contracts. The Department finds
that Sec. 1280.211(h) mirrors the Act which states: ``* * * to contract
with entities, if necessary, to carry out plans and projects in
accordance with the Act.'' Accordingly, we have not adopted this
language.
One commenter suggested that the Board should contract directly
with existing national lamb organizations like the other existing
livestock checkoff programs that contract with national organizations
because this would ensure continued funding for such existing national
organizations. The Act provides the Board with the power to contract
with such entities, if necessary, to implement plans or projects in
accordance with the Act. However, this suggestion if adopted as a
requirement would limit the Board's ability to conduct its program in
the most efficient and effective manner. Accordingly, we have not
adopted this suggestion.
Section 1280.215 Use of Assessments
Fifty-nine commenters suggested that funds collected under the
program should be used to fund promotion programs of ``Fresh American
Lamb'' and other U.S. sheep products because the majority of funds
collected would be generated from U.S. producers and feeders.
Additionally, some commenters suggested using domestic assessments to
fund promotion projects for ``Fresh American Lamb'' and other U.S.
sheep products would provide the Board with the flexibility to
establish the most effective program to enhance the markets for lamb
and other sheep products. Furthermore, many commenters believe that
this program is a domestic program funded primarily by U.S. growers,
and because other livestock research and promotion programs do not
prohibit country of origin promotion, funds generated under this
program should not prohibit country of origin promotion. However other
commenters contend that funds generated under the program should not be
used for specific country of origin promotion, but to promote lamb and
wool generically because generic promotion would provide for more
equitable use of funds and be less subject to legal challenge. In
addition, the same commenters pointed out that the promotion of lamb
and wool generically would ensure that importers are not disadvantaged
in light of their limited representation on the Board and the Executive
Committee.
The Department believes that the Board should have the latitude to
fund promotion plans and projects which specifically make reference to
sheep and wool produced in the U.S. with the limitation that funding
for such domestic country of origin plans and projects cannot exceed
the combined domestic assessments collected on sheep and sheep products
and further that the percentage of domestic assessments spent on the
promotion of domestic sheep and sheep products shall not exceed the
percentage of import assessments spent on the generic promotion of
sheep and sheep products. Accordingly, Sec. 1280.215 is revised in this
proposed Order to allow Board funding of promotion plans and projects
which involve identification of domestic sheep and sheep products as
being U.S. produced but limit the amount of assessments the Board can
spend on such plans and projects.
One commenter suggested that at least one-half of the assessments
collected should be spent on promotion activities because the industry
is changing and in a crisis. The Department believes that establishing
a specific amount of assessments to fund a specific program area in the
Order would limit the Board's flexibility to administer the program
effectively. Accordingly, we have not adopted this suggestion. This
same commenter also suggested that the National Lamb Feeders
Association (NLFA) receive funding from the new Board. We previously
determined that the Act does not authorize such funding and do not
adopt this suggestion in this proposed Order.
Two commenters suggested that funds generated under the Act and the
Order should promote a wide range of wool products in the United
States, including interior textile products; e.g., carpets, rugs, and
upholstery. The Department believes that the Board should be given the
latitude to use funds for programs in a manner that would benefit the
industry most effectively. The Department anticipates that the Board
would fund projects according to the needs of the industry.
Accordingly, we have not adopted this suggestion.
Two commenters suggested that assessments collected on wool should
be spent on wool projects and assessments collected on lamb should be
spent on lamb projects. The Department believes that the Board should
have the latitude to spend funds on projects that would best address
the economic needs of the entire industry. Accordingly, we have not
adopted this suggestion.
One commenter suggested that no more than 4 percent of the annual
assessments collected should be used for overhead and administrative
expenses, in order to limit the amount of assessments used for such
expenses. The Act does not limit administrative and overhead expenses.
The Department expects that the Board would maintain its administrative
and overhead expenses at a reasonable level. Accordingly, we have not
adopted this suggestion.
Some commenters suggested that any funds used for export promotion
or in furtherance of other export activity should be separately
accounted for, a percentage of total Board funds used in this manner
should be refunded to importers who pay the assessments, and that
expenditures for production-related research or information programs
specifically targeted for promotion or product quality and safety-
related expenditures should be treated similarly because such
expenditures would not benefit importers. The Department has concluded
that the Board should have the latitude to determine how funds are to
be spent, subject to the approval of the Secretary. Further, the Act
does not provide for reimbursements. Accordingly, we have not adopted
these suggestions.
Executive Committee
Section 1280.217 Membership
One commenter suggested that each of the seven regions established
under Sec. 1280.211(n) in the proposed Order should be represented by
one member of the Executive Committee for a total of seven members
representing producers. The commenter further suggested that (1) each
member be elected by a majority vote of the directors from their
respective region; (2) three members represent feeders and be elected
by a majority vote of the 10 feeder directors; and (3) three members
represent importers and be elected by a majority vote of the 25
importer directors. The Department believes that the Board should have
the latitude to determine how the Executive Committee is structured,
within the requirements of the Act, and that the Board should establish
voting requirements in its policies and procedures, subject to the
Secretary's approval. In addition, the Act provides for one ``feeder,''
member on the Executive Committee, not three. Accordingly, we have not
adopted this suggestion.
One commenter suggested that Sec. 1280.217 in the proposed Order
implicates both equal protection and compelled association clauses of
the Constitution because feeder and importer members would be elected
by
[[Page 62304]]
producer members. The commenter asked that Sec. 1280.217 be amended to
allow the various industry segments to name their own representatives
to the Executive Committee. The Department believes that the Board
should establish procedures for the nomination and election of
Executive Committee members in its policies and procedures, subject to
the requirements of the Act, and approval of the Secretary. Thus, we
have rejected the request to amend Sec. 1280.217 of the proposed Order,
and have published the language as initially proposed without change.
Several commenters recommended that of the three importer members
who serve on the Executive Committee, one member should represent
importers of sheep meat to ensure that the sheep meat industry has a
voice on the Executive Committee. The Act does not specify the consist
of the 3 importer members who serve on the Executive Committee. The Act
merely provides that the Executive Committee would be elected by the
membership of the Board. The Department believes that the Board should
have the latitude to allocate the three importer member seats on the
Executive Committee among importers of sheep, sheep meat, and wool and
wool products. Accordingly, we have not adopted this suggestion.
Section 1280.221 Quorum
We received two comments concerning the establishment of a quorum
of the Executive Committee. One commenter suggested that a quorum
should be 11 members to ensure the presence of at least one nonproducer
member. In addition, another commenter suggested that a quorum should
consist of eight members, including the feeder representative and at
least one importer representative. The language in the proposed Order
mirrors the Act's requirement, which says that a quorum of the
Executive Committee shall consist of eight members. The Act does not
require a feeder or importer representative to be included. Importer
and feeder representation within the 8-member quorum could be
considered by the Board in developing its policies and procedures.
Accordingly this suggestion is not adopted.
Section 1280.222 Vacancies
One commenter suggested that any vacancy on the Executive Committee
be filled by the process established pursuant to Sec. 1280.217 in the
proposed Order, except that the Executive Committee members would be
elected by each industry segment. The Act requires that the Executive
Committee be elected by the Board which includes produces, feeders, and
importers. The Department believes that the Board should have the
latitude to establish the procedures for filling a vacancy on the
Executive Committee consistent with the requirements of the Act and
subject to the approval of the Secretary. Accordingly, we have not
adopted this suggestion.
Assessments
Section 1280.224 Sheep Purchases
Four commenters were concerned about the high assessment rate
compared to other commodity checkoff programs, and two of these
commenters were concerned that the rate of assessment could increase
over time. The Act establishes the initial assessment rate and
specifies the manner in which the initial assessment rate may be
adjusted. Such adjustments must be recommended by the Board and
approved by the Secretary. Accordingly, this section is not amended in
the Order.
One commenter suggested that the domestic and import rate of
assessment should increase or decrease proportionately when the Board
recommends a change in the assessment rate. The Act authorizes
increases or decreases in the assessment rate for both domestic and
imported sheep and sheep products. The Department believes that
Congress intended that any adjustments in the initial assessment rate
should be the same for all persons subject to assessment under the Act.
Consequently, the Secretary will carefully review any Board recommended
assessment adjustments to ensure that such adjustments are applied
equally to all persons who are required to pay an assessment.
Accordingly, Sec. 1280.224(d), Sec. 1280.225(d) and Sec. 1280.228 (c)
and (d) have been revised to reflect the intent of this suggestion.
One commenter felt that the method of collecting money at the
various stages in the production chain would not be workable. The Act
establishes the method of collecting assessments and identifies those
persons responsible for collecting and remitting the assessment. Thus,
we have not adopted this suggestion.
Section 1280.228 Imports
One commenter expressed opposition to Customs or any other
government agency collecting funds from importers to promote the use of
wool and sheep on the grounds that it is improper for the U.S.
government to promote U.S. domestic consumption of imported or domestic
products. Customs merely serves as a collecting agent as authorized by
the Act. Using Customs as a collecting agent in other similar checkoff
programs has proven to be an exceptionally economical way of collecting
importer assessments and ensuring compliance.
Several commenters suggested that the Department work with Customs
or develop a joint committee to develop and publish the Harmonized
Tariff Schedule (HTS) classification numbers, assessment amount, and
the conversion factors for the various HTS numbers subject to
assessment. Furthermore, these commenters asked for clarification on
how the clean wool equivalent would be calculated or determined on the
various types of imported wool and wool products. The Department
published a proposed rule in the Federal Register (60 FR 51737) that
(1) identifies the HTS classification numbers for imported sheep and
sheep products subject to assessment; (2) describes how the assessment
would be calculated if the proposed Order were approved in referendum;
and (3) identifies the conversion factors that would be used to convert
sheep meat to a live weight equivalent and wool products to a degreased
wool equivalent.
Some commenters expressed concern about multiple assessments being
collected on wool or wool products imported into the U.S. after having
been previously exported on one or more occasions to other countries
for further processing (ie., weaving, cutting and/or assembly) and
suggested that a drawback or refund of the assessment should be
authorized if multiple assessments are collected. The Department
believes that this comment would be more appropriately addressed in the
implementing rules and regulations published in the Federal Register
(60 FR 51737).
One commenter suggested that rates set forth in Sec. 1280.228 (c)
and (d) in the proposed Order should be reduced yearly by a percentage
calculated by dividing the amounts provided to States pursuant to
paragraphs (a) and (b) of Sec. 1280.229 in the proposed Order by the
total assessments collected by the Board on domestic marketings in the
year funding is given to the States. Section 1280.229 of this subpart
applies to QSSBs and as required by the Act sets forth the amount of
annual assessments collected by the Board that must be returned to each
QSSB. Section 1280.229 also specifies the minimum amount QSSBs would
receive and requires that procedures be established to account for the
funds. Accordingly,
[[Page 62305]]
we have not adopted this suggestion. The same commenter suggested that
``as adjusted pursuant to Sec. 1280.229,'' be added at the end of the
first sentence under Sec. 1280.228 (c) and (d) in the proposed Order.
The provisions of Sec. 1280.229, as previously discussed relate to the
distribution of collected assessments to QSSBs and are not applicable
to the assessment rate provisions for imported sheep and sheep products
set forth in Sec. 1280.228. Thus, we have not adopted this suggestion.
One commenter suggested that the phrase ``and importer
representatives'' be inserted after ``domestic sheep industry'' under
Sec. 1280.228(c). The language in the proposed Order mirrors that found
in the Act. Accordingly, we have not adopted this suggestion.
One commenter suggested that the Order require a specific finding
that a proposed increase in the assessment rate does not violate the
U.S. GATT obligations, preferably in consultation with the U.S. Trade
Representative (USTR). The Secretary is already directed to consult
with USTR pursuant to 7 U.S.C. 2278. Accordingly, this suggestion is
not adopted.
Several commenters suggested that raw wool should not be exempt
from the assessment collection provisions of the Act because the
exemption of raw wool would create ``free rides'' because certain
importers of raw wool would benefit from the program without actually
paying an assessment on raw wool. The Act exempts imported raw wool
from assessments. Accordingly, we have not adopted this suggestion.
Two commenters requested an explanation of how the equivalent in
wool and wool products is to be calculated--specifically for wooltop,
noils of wool, and wool wastes and generally for wool products that
have been further processed. The Department has published in the
Federal Register (60 FR 51737) proposed rules and regulations
concerning the method of calculation to be used in determining the
assessment amount for live sheep, sheep meat, and wool and wool
products.
One commenter noted that Sec. 1280.228(d) in the proposed Order
substituted the word ``clean'' for ``degreased.'' The Department did
substitute the word and believes that the language in the proposed
Order should mirror the language in the Act. Thus, the word ``clean''
is replaced with ``degreased'' in Sec. 1280.228(d) in this proposed
Order.
One commenter suggested that ``equal protection'' problems could
arise because of the exemption of raw wool, inadequate representation
of lamb feeders, and inclusion of importers. The Act specifically
exempts raw wool and sets forth the composition of the Board.
Several commenters suggested that processors of wool and wool
products be allowed to retain 5 to 10 percent of the total amount of
assessments collected to cover additional administrative costs
associated with collecting and remitting assessments. The Act does not
permit collecting persons to retain a portion of the assessments
collected to offset administrative costs. Accordingly, we have not
adopted this suggestion.
Section 1280.229 Qualified State Sheep Boards
One commenter suggested that the Qualified State Sheep Boards
(QSSBs), the Board and those who contract with the QSSBs and the Board
should separately account for checkoff funds. The commenter also
suggested that each QSSB should (1) be required to give a written plan
showing how it plans to protect against improper uses of assessments;
(2) certify each year that it has not used assessments for forbidden
purposes; and (3) permit the Secretary and the Board the opportunity to
audit QSSBs and groups that contract with the Board and QSSBs. Section
1280.229(c) in the proposed Order provides that the Board would
establish procedures with the approval of the Secretary to account for
funds expended by the QSSBs. Additionally, Sec. 1280.213, Books and
Records of the Board, provides that (1) the Secretary may inspect and
audit books and records of the Board; (2) the Board must prepare and
submit from time-to-time such reports as prescribed by the Secretary;
and (3) the Board's books are to be audited by an independent auditor
at the end of each fiscal year, and auditor's report submitted to the
Secretary. Additionally, the Department believes the Act intends that
the Board, the QSSBs and any organizations receiving funds to conduct
program activities would be accountable for all funds received, and
would be required to expend those funds in accordance with the Act and
the Order. Therefore, although the Department agrees that
accountability for funds is important, we have not made changes in this
proposed Order as a result of these suggestions because the proposed
Order already provides for such accountability. The Department believes
that the Board would develop operating procedures and guidelines to
ensure that any funds collected under the authority of this subpart
would be accounted for as authorized under the Act. Accordingly, we
have not adopted this suggestion.
Two commenters suggested that importers receive a credit similar to
the 20 percent share of funding returned to State QSSBs, contending
that State funding defeats the basic purpose of the law which is to
promote sheep products nationwide. The Act does not authorize the Board
to distribute to importers a portion of the annual assessments similar
to that distributed to QSSBs. Thus, we have not adopted this
suggestion.
Section 1280.230 Collection
One commenter suggested that Sec. 1280.230(b), Late Payment
Charges, in the proposed Order should include a provision stating that
any collector shall have the right to submit a written petition to the
Board to have these charges waived or adjusted under this subpart. The
commenter indicated the provisions should also state: ``The Board shall
consider such petitions and is empowered to waive or reduce penalties
upon a two-thirds majority vote.'' Although, the Department believes
that the Board should have the flexibility to establish collection
procedures consistent with the Act's intent and Order provisions, we
have not adopted this suggestion concerning late payments.
Another commenter suggested that the 2-percent per month late
payment charge is usurious and should be pegged to the 30-year Treasury
bill. The 2-percent late payment charge is designed to encourage people
to remit assessments on a timely basis. The Department does not believe
that reducing the late payment charge would further the purposes of the
Act. Accordingly, we have not adopted this suggestion.
Fifty-three commenters supported Sec. 1280.230(d) in the proposed
Order which provides that the Secretary is authorized to receive
assessments if the Board is not in place by the date the first
assessments are to be collected. We have adopted this section as
proposed.
Section 1280.231 Prohibitions on Use of Funds
Fifty-six commenters opposed and two supported the language of
Sec. 1280.231(d) in the proposed Order, which provides that no plans or
projects shall be undertaken to promote or advertise any sheep or sheep
products by brand or trade name without the approval of the Board and
the concurrence of the Secretary. The commenters opposed the language
because Board approval and Secretary concurrence is already authorized
under
[[Page 62306]]
the Act and in the proposal submitted by the proponents of Proposal I.
Therefore, the commenters feel that there is no need to address these
plans separately from the Board's other activities and that doing so
will result in additional bureaucracy and administration costs. The Act
and proposed Order already authorize the Board and the Secretary to
approve plans and projects for funding with assessments collected under
the authority of this subpart. However, based on the Department's
experience with other similar commodity promotion and research programs
under the Department's oversight, branded promotion projects involve
joint funding with participating private firms and a cooperative
agreement. Consequently, the Department believes that such arrangements
are more complex than the usual plans and projects and thus require
additional review and evaluation to insure that branded promotions are
in compliance with the Act and the proposed Order and Departmental
policy. Based on the Department's past experience, jointly funded
branded advertising projects have been reviewed and approved without
added expense or undue delays. Accordingly, Sec. 1280.231(d) of the
proposed Order is published in this rule with no modifications.
One commenter suggested that Sec. 1280.231, Prohibition on Use of
Funds, be deleted because it would restrict the sheep industry's
ability to defend against detrimental legislation. The Act prohibits
funds generated under this program from being used in any manner for
the purpose of influencing legislation or government action or policy.
Accordingly, we have not adopted this suggestion.
One commenter suggested that Sec. 1280.231(b)(2) should be
strengthened because no assessments should be used to influence
government decision-making under the guise of providing information
requested by a friendly government official who is actually helping the
industry to support or oppose legislation in which it has interest. The
Department believes that the language provided in the Act and in the
proposed Order addresses this concern. Accordingly, we have not adopted
this suggestion.
Additional Comments
One commenter suggested that the Department conduct an economic
impact study because of (1) the recordkeeping burden on the industry;
(2) the loss of the Wool Act; and (3) the addition of the new program.
The Administrator, AMS, previously determined pursuant to the
requirements set forth in the Regulatory Flexibility Act that the
economic impact on small entities would not be significant. The
Department does not anticipate a significant increase in costs and
paperwork burden to those persons subject to the provisions of the Act
and Order because most of the records required to be maintained are
normally maintained by all businesses in the sheep industry and the
calculation of assessments is a one step procedure that uses readily
available records. Accordingly, we have not adopted this suggestion.
One commenter asked how the vote on the referendum would be
conducted and how seats on the Executive Committee and the Board would
be assigned because the Board is heavily weighted toward sheep growers.
The Department published proposed referendum rules for public comment
on August 8, 1995, in the Federal Register (60 FR 40313). These
proposed rules include the registration and voting procedures. Also,
the Act establishes the number of seats for the Executive Committee and
the Board. We have made no changes in this proposed Order based on
these questions.
Several commenters suggested that additional hearings be conducted
throughout the country to allow time for the necessary revisions and
allow for additional public comment. The Department conducted a public
meeting on June 26, 1995, and provided a 45-day comment period so that
any person interested in the sheep and wool checkoff program would have
the opportunity to present testimony or submit comments by the July 17,
1995, deadline. The Department does not feel it is necessary to hold
additional public meetings. Also, there are timeframes set forth in the
Act. Further, all costs incurred by the Department in conducting the
additional meetings are reimbursable by the sheep industry.
Accordingly, we have not adopted this suggestion.
A few commenters suggested that the implementation of the program
be delayed to allow sheep on feed inventories to be more manageable and
allow producers to be assessed their fair share. The sheep industry has
requested that assessments begin as soon as possible so that
promotional and other activities can begin. Because of the time frames
set forth in the Act, the Department believes that Congress intended
for the Department to proceed in an expeditious manner. The Department
has determined that no useful purpose would be served in delaying
implementation of this program.
One commenter suggested that the Department ensure that importers
are eligible to participate in the referendum. The Act provides that
sheep producers, sheep feeders, and importers of sheep and sheep
products who, during a representative period established by the
Department, were engaged in sheep production, sheep feeding or
importation of sheep and sheep products--excluding importers of raw
wool--are eligible to vote in the referendum. The Department believes
that Congress intended that each person who is subject to the
assessment is entitled to vote. Consequently, the Department has
proposed and published referendum rules in the Federal Register (60 FR
40313).
List of Subjects in 7 CFR Part 1280
Administrative practice and procedure, Advertising, Agricultural
research, Marketing agreements, Sheep and sheep products, Reporting and
recordkeeping requirements.
For the reasons set forth in the preamble, it is proposed that
chapter XI of title 7 of the Code of Federal Regulations be amended as
follows:
1. Part 1280 is proposed to be added as follows:
PART 1280--SHEEP PROMOTION, RESEARCH, AND INFORMATION
Subpart A--Sheep and Wool Promotion, Research, Education, and
Information Order
Definitions
Sec.
1280.101 Act.
1280.102 Board.
1280.103 Carbonized wool.
1280.104 Certified organization.
1280.105 Collecting person.
1280.106 Consumer information.
1280.107 Customs Service.
1280.108 Degreased wool.
1280.109 Department.
1280.110 Education.
1280.111 Executive Committee.
1280.112 Exporter.
1280.113 Feeder.
1280.114 Greasy wool.
1280.115 Handler.
1280.116 Importer.
1280.117 Industry information.
1280.118 National feeder organization.
1280.119 Part and subpart.
1280.120 Person.
1280.121 Processor.
1280.122 Producer.
1280.123 Producer information.
1280.124 Promotion.
1280.125 Pulled wool.
1280.126 Qualified State Sheep Board.
1280.127 Raw wool.
1280.128 Research.
1280.129 Secretary.
1280.130 Sheep.
[[Page 62307]]
1280.131 Sheep products.
1280.132 State.
1280.133 Unit.
1280.134 United States.
1280.135 Wool.
1280.136 Wool products.
National Sheep Promotion, Research, and Information Board
1280.201 Establishment and membership of the Board.
1280.202 Nominations.
1280.203 Nominee's agreement to serve.
1280.204 Appointment.
1280.205 Method of obtaining nominations.
1280.206 Vacancies.
1280.207 Certification of organizations.
1280.208 Term of office.
1280.209 Compensation.
1280.210 Removal.
1280.211 Powers and duties of the Board.
1280.212 Budgets.
1280.213 Books and records of the Board.
1280.214 Investment of funds.
1280.215 Use of assessments.
Executive Committee
1280.216 Establishment.
1280.217 Membership.
1280.218 Powers and duties.
1280.219 Term of office.
1280.220 Chairperson.
1280.221 Quorum.
1280.222 Vacancies.
Expenses
1280.223 Expenses.
Assessments
1280.224 Sheep purchases.
1280.225 Wool purchases.
1280.226 Direct processing.
1280.227 Exports.
1280.228 Imports.
1280.229 Qualified State Sheep Board.
1280.230 Collection.
1280.231 Prohibition on use of funds.
Reports, Books, and Records
1280.232 Reports.
1280.233 Books and records.
1280.234 Use of information.
1280.235 Confidentiality.
Miscellaneous
1280.240 Right of the Secretary.
1280.241 Proceedings after termination.
1280.242 Effect of termination or amendment.
1280.243 Personal liability.
1280.244 Patents, copyrights, inventions, and publications.
1280.245 Amendments.
1280.246 Separability.
Subpart B--[Reserved]
Subpart C--[Reserved]
Subpart D--[Reserved]
Subpart E--[Reserved]
Authority: 7 U.S.C. 7101-7111.
Subpart A--Sheep and Wool Promotion, Research, Education, and
Information Order
Definitions
Sec. 1280.101 Act.
The term Act means the Sheep Promotion, Research, and Information
Act of 1994, 7 U.S.C. 7101-7111; Public Law No. 103-107; 108 Stat.
4210, enacted October 22, 1994, and any amendments thereto.
Sec. 1280.102 Board.
The term Board means the National Sheep Promotion, Research, and
Information Board established pursuant to Sec. 1280.201.
Sec. 1280.103 Carbonized wool.
The term carbonized wool means wool that has been immersed in a
bath, usually of mineral acids or acid salts, that destroys vegetable
matter in the wool, but does not affect the wool fibers.
Sec. 1280.104 Certified organization.
The term certified organization means any organization that has
been certified by the Secretary pursuant to this part as being eligible
to submit nominations for membership on the Board.
Sec. 1280.105 Collecting person.
The term collecting person means any person who is responsible for
collecting an assessment pursuant to the Act, this subpart and
regulations prescribed by the Board and approved by the Secretary,
including processors and any other persons who are required to remit
assessments to the Board pursuant to this part, except that a
collecting person who is a market agency; i.e., commission merchant,
auction market, or livestock market in the business of receiving such
sheep or sheep products for sale on commission for or on behalf of a
producer or feeder shall pass the collected assessments on to the
subsequent purchaser pursuant to the Act, this subpart and the
regulations prescribed by the Board and approved by the Secretary.
Sec. 1280.106 Consumer information.
The term consumer information means nutritional data and other
information that would assist consumers and other persons in making
evaluations and decisions regarding the purchase, preparation, or use
of sheep products.
Sec. 1280.107 Customs Service.
The term Customs Service means the U.S. Customs Service of the
Department of the Treasury.
Sec. 1280.108 Degreased wool.
The term degreased wool means wool from which the bulk of
impurities has been removed by processing.
Sec. 1280.109 Department.
The term Department means the U.S. Department of Agriculture.
Sec. 1280.110 Education.
The term education means activities providing information relating
to the sheep industry or sheep products to producers, feeders,
importers, consumers, and other persons.
Sec. 1280.111 Executive Committee.
The term Executive Committee means the Executive Committee of the
Board established under Sec. 1280.216.
Sec. 1280.112 Exporter.
The term exporter means any person who exports domestic live sheep
or greasy wool from the United States.
Sec. 1280.113 Feeder.
The term feeder means any person who feeds lambs until the lambs
reach slaughter weight.
Sec. 1280.114 Greasy wool.
The term greasy wool means wool that has not been washed or
otherwise cleaned.
Sec. 1280.115 Handler.
The term handler means any person who purchases and markets greasy
wool.
Sec. 1280.116 Importer.
The term importer means any person who imports sheep or sheep
products into the United States.
Sec. 1280.117 Industry information.
The term industry information means information and programs that
would lead to increased efficiency in processing and the development of
new markets, marketing strategies, increased marketing efficiency, and
activities to enhance the image of sheep or sheep products on a
national or international basis.
Sec. 1280.118 National feeder organization.
The term national feeder organization means any organization of
feeders that has been certified by the Secretary pursuant to the Act
and this part as being eligible to submit nominations for membership on
the Board.
Sec. 1280.119 Part and subpart.
Part means the Sheep and Wool Promotion, Research, Education, and
Information Order and all rules and regulations issued pursuant to the
Act
[[Page 62308]]
and the Order, and the Order itself shall be a subpart of such part.
Sec. 1280.120 Person.
The term person means any individual, group of individuals,
partnership, corporation, association, cooperative, or any other legal
entity.
Sec. 1280.121 Processor.
The term processor means any person who slaughters sheep or
processes greasy wool into degreased wool.
Sec. 1280.122 Producer.
The term producer means any person, other than a feeder, who owns
or acquires ownership of sheep.
Sec. 1280.123 Producer information.
The term producer information means activities designed to provide
producers, feeders, and importers with information relating to
production or marketing efficiencies or developments, program
activities, or other information that would facilitate an increase in
the consumption of sheep or sheep products.
Sec. 1280.124 Promotion.
The term promotion means any action (including paid advertising) to
advance the image and desirability of sheep or sheep products, to
improve the competitive position, and stimulate sales, of sheep
products in the domestic and international marketplace.
Sec. 1280.125 Pulled wool.
The term pulled wool means wool that is pulled from the skin of
slaughtered sheep.
Sec. 1280.126 Qualified State Sheep Board.
The term Qualified State Sheep Board means a sheep and wool
promotion entity that:
(a) Is authorized by State statute or organized and operating
within a State;
(b) Receives voluntary contributions or dues and conducts
promotion, research, or consumer information programs with respect to
sheep or wool, or both; and
(c) Is recognized by the Board as the sheep and wool promotion
entity within the State; except that not more than one QSSB shall exist
in any State at any one time.
Sec. 1280.127 Raw wool.
The term raw wool means greasy wool, pulled wool, degreased wool,
or carbonized wool.
Sec. 1280.128 Research.
The term research means development projects and studies relating
to the production (including the feeding of sheep), processing,
distribution, or use of sheep or sheep products, to encourage, expand,
improve, or make more efficient the marketing of sheep or sheep
products.
Sec. 1280.129 Secretary.
The term Secretary means the Secretary of Agriculture of the United
States or any other officer or employee of the Department to whom
authority has been delegated, or to whom authority may be delegated,
FR Doc. 95-29528 Sheep and Wool Promotion, Research, Education, and Information Order
to
act in the Secretary's stead.
Sec. 1280.130 Sheep.
The term sheep means ovine animals of any age, including lambs.
Sec. 1280.131 Sheep products.
The term sheep products means products produced in whole or in part
from sheep, including wool and products containing wool fiber.
Sec. 1280.132 State.
The term State means each of the 50 States.
Sec. 1280.133 Unit.
The term unit means each State, group of States, or class
designation that is represented on the Board.
Sec. 1280.134 United States.
The term United States means the 50 States and the District of
Columbia.
Sec. 1280.135 Wool.
The term wool means the fiber from the fleece of a sheep.
Sec. 1280.136 Wool products.
The term wool products means products produced, in whole or in
part, from wool and products containing wool fiber.
National Sheep Promotion, Research, and Information Board
Sec. 1280.201 Establishment and membership of the Board.
There is hereby established a National Sheep Promotion, Research,
and Information Board (Board) of 120 members. Members of the Board
shall be appointed by the Secretary from nominations submitted in
accordance with this subpart. The seats shall be apportioned as
follows:
(a) Producers. For purposes of nominating producers to the Board,
each State shall be represented by the following number of members:
------------------------------------------------------------------------
Board
Unit members
------------------------------------------------------------------------
Alabama...................................................... 1
Alaska....................................................... 1
Arizona...................................................... 1
Arkansas..................................................... 1
California................................................... 5
Colorado..................................................... 4
Connecticut.................................................. 1
Delaware..................................................... 1
Florida...................................................... 1
Georgia...................................................... 1
Hawaii....................................................... 1
Idaho........................................................ 2
Illinois..................................................... 1
Indiana...................................................... 1
Iowa......................................................... 2
Kansas....................................................... 1
Kentucky..................................................... 1
Louisiana.................................................... 1
Maine........................................................ 1
Maryland..................................................... 1
Massachusetts................................................ 1
Michigan..................................................... 1
Minnesota.................................................... 2
Mississippi.................................................. 1
Missouri..................................................... 1
Montana...................................................... 5
Nebraska..................................................... 1
Nevada....................................................... 1
New Hampshire................................................ 1
New Jersey................................................... 1
New Mexico................................................... 2
New York..................................................... 1
North Carolina............................................... 1
North Dakota................................................. 2
Ohio......................................................... 1
Oklahoma..................................................... 1
Oregon....................................................... 2
Pennsylvania................................................. 1
Rhode Island................................................. 1
South Carolina............................................... 1
South Dakota................................................. 4
Tennessee.................................................... 1
Texas........................................................ 10
Utah......................................................... 3
Vermont...................................................... 1
Virginia..................................................... 1
Washington................................................... 1
West Virginia................................................ 1
Wisconsin.................................................... 1
Wyoming...................................................... 5
------------------------------------------------------------------------
(b) Feeders. The feeder sheep industry shall be represented by 10
members.
(c) Importers. Importers shall be represented by 25 members.
(d) Alternates. A unit represented by only one producer member may
have an alternate member appointed to ensure representation at meetings
of the Board.
Sec. 1280.202 Nominations.
(a) Producers. The Secretary shall appoint producers and alternates
to represent units as specified under Sec. 1280.201(a) from nominations
submitted by organizations certified under Sec. 1280.207. A certified
organization may submit only nominations for producer representatives
and alternates if appropriate from the membership of the organization
for the unit in which the organization operates. To be represented on
the Board, each certified organization
[[Page 62309]]
shall submit to the Secretary at least 1.5 nominations for each seat on
the Board for which the unit is entitled to representation. If a unit
is entitled to only one seat on the Board, the unit shall submit at
least two nominations for the appointment.
(b) Feeders. The Secretary shall appoint representatives of the
feeder sheep industry to seats established under Sec. 1280.201(b) from
nominations submitted by qualified national organizations that
represent the feeder sheep industry. To be represented on the Board,
the industry shall provide at least 1.5 nominations for each
appointment to the Board to which the feeder sheep industry is
entitled.
(c) Importers. The Secretary shall appoint importers to seats
established under Sec. 1280.201(c) from nominations submitted by
qualified organizations that represent importers. The Secretary shall
receive at least 1.5 nominations for each appointment to the Board to
which importers are entitled.
(d) As soon as practicable, the Secretary shall obtain nominations
from certified organizations. If no organization is certified in a unit
the Secretary may use other means to obtain nominations. A certified
organization shall only submit nominations for positions on the Board
representing units in which such certified organization can establish
that it is certified as eligible to submit nominations for
representation of that unit of individual producers, feeders, or
importers residing in that unit.
(e) After the establishment of the initial Board, the Department
shall announce when a vacancy does or will exist. Nominations shall be
initiated not less than 6 months before the expiration of the terms of
the members whose terms are expiring, in the manner described in
Sec. 1280.205(b). In the case of vacancies due to reasons other than
the expiration of term of office, successor Board members shall be
appointed pursuant to Sec. 1280.206.
(f) Where there is more than one eligible organization representing
producers, feeders, or importers in a State or unit, they may caucus
and jointly nominate a minimum of 1.5 qualified persons for each
position representing that State or unit on the Board for which a
member is to be appointed. If joint agreement is not reached with
respect to any such nominations, or if no caucus is held, each
certified organization may submit nominations for each appointment to
be made to represent that State or unit.
(g) Nominations should be submitted in order of preference and, for
the initial Board, in order of preference for staggered terms. If the
Secretary rejects any nominations submitted and there are insufficient
nominations submitted from which appointments can be made, the
Secretary may request additional nominations under paragraph (a), (b),
or (c) of this section.
Sec. 1280.203 Nominee's agreement to serve.
Any producer, feeder, or importer nominated to serve on the Board,
or as an alternate, shall file with the Secretary at the time of the
nomination a written agreement to:
(a) Serve on the Board if appointed;
(b) Disclose any relationship with any organization that operates a
qualified State or regional program or has a contractual relationship
with the Board; and
(c) Withdraw from participation in deliberations, decisionmaking,
or voting on matters that concern the relationship disclosed under
paragraph (b) of this section.
Sec. 1280.204 Appointment.
From the nominations made pursuant to Sec. 1280.202, the Secretary
shall appoint the members of the Board on the basis of representation
provided in Sec. 1280.201.
Sec. 1280.205 Method of obtaining nominations.
(a) Initially established Board. (1) Producer and alternate
nominations. The Secretary shall solicit, from organizations certified
under Sec. 1280.207, nominations for each producer's or alternate
member's seat on the initially-established Board to which a unit is
entitled. If no such organization exist, the Secretary shall solicit
nominations for appointments in such manner as the Secretary determines
appropriate.
(2) Feeder and importer nominations. The Secretary shall solicit,
from certified organizations that represent feeders and importers,
nominations for each seat to which feeders or importers are entitled.
If no such organization exists, the Secretary shall solicit nominations
for appointments in such manner as the Secretary determines
appropriate. In determining whether an organization is eligible to
submit nominations under this subparagraph, the Secretary shall
determine whether:
(i) The organization's active membership includes a significant
number of feeders or importers in relation to the total membership of
the organization;
(ii) There is evidence of stability and permanency of the
organization; and
(iii) The organization has a primary and overriding interest in
representing the feeder or importer segment of the sheep industry.
(b) Subsequent appointment--(1) Producer nominations. The
solicitation of nominations for subsequent appointment to the Board
from eligible organizations certified under Sec. 1280.207 shall be
initiated by the Secretary, with the Board securing the nominations for
the Secretary.
(2) Feeder and importer nominations. The solicitation of feeder and
importer nominations for subsequent appointment to the Board shall be
made by the Secretary from organizations certified in accordance with
paragraph (a)(2) of this section.
Sec. 1280.206 Vacancies.
To fill any vacancy occasioned by the death, removal, resignation,
or disqualification of any member of the Board, the Secretary shall
appoint a successor from the most recent list of nominations for the
position or from nominations submitted by the Board.
Sec. 1280.207 Certification of organizations.
(a) In general. The eligibility of any State organization to
represent producers and to participate in the making of nominations
under this subpart shall be certified by the Secretary. The Secretary
shall certify any State organization that the Secretary determines
meets the eligibility criteria established under paragraph (b) of this
section. An eligibility determination by the Secretary shall be final.
(b) Basis for certification. Certification shall be based upon, in
addition to other available information, a factual report submitted by
the organization that shall contain information considered relevant and
specified by the Secretary, including:
(1) The geographic territory covered by the active membership of
the organization;
(2) The nature and size of the active membership of the
organization, including the proportion of the total number of active
producers represented by the organization;
(3) Evidence of stability and permanency of the organization;
(4) Sources from which the operating funds of the organization are
derived;
(5) The functions of the organization; and
(6) The ability and willingness of the organization to further the
aims and objectives of the Act.
(c) Primary considerations. A primary consideration in determining
the eligibility of an organization under this paragraph shall be
whether:
(1) The membership of the organization consists primarily of
[[Page 62310]]
producers who own a substantial quantity of sheep; and
(2) An interest of the organization is in the production of sheep.
Sec. 1280.208 Term of office.
Each appointment to the Board shall be for a term of 3 years,
except that appointments to the initially established Board shall be
proportionately for 1-year, 2-year, and 3-year terms. No person may
serve more than two consecutive 3-year terms, except that elected
officers shall not be subject to the term limitation while they hold
office.
Sec. 1280.209 Compensation.
Board members shall serve without compensation, but shall be
reimbursed for their reasonable expenses incurred in performing their
duties as Board members.
Sec. 1280.210 Removal.
If the Secretary determines that any person appointed under this
part fails to perform his or her duties properly or engages in acts of
dishonesty or willful misconduct, the Secretary shall remove the person
from office. The Secretary may remove a person appointed or certified
under this part, or any employee of the Board, if the Secretary
determines that the person's continued service would be detrimental to
the purposes of the Act.
Sec. 1280.211 Powers and duties of the Board.
The Board shall have the following powers and duties:
(a) To elect officers of the Board, including a chairperson, vice
chairperson, and secretary/treasurer;
(b) To administer this subpart in accordance with its terms and
provisions;
(c) To recommend regulations to effectuate the terms and provisions
of this subpart;
(d) To hold at least one annual meeting and any additional meetings
it deems appropriate;
(e) To elect members of the Board to serve on the Executive
Committee;
(f) To approve or reject budgets submitted by the Executive
Committee;
(g) To submit budgets to the Secretary for approval;
(h) To contract with entities, if necessary, to implement plans or
projects in accordance with the Act;
(i) To conduct programs of promotion, research, consumer
information, education, industry information, and producer information;
(j) To receive, investigate, and report to the Secretary complaints
of violations of this subpart;
(k) To recommend to the Secretary amendments to this subpart;
(l) To provide the Secretary with prior notice of meetings of the
Board to permit the Secretary or a designated representative to attend
such meetings;
(m) To provide not less than annually a report to producers,
feeders, and importers, accounting for the funds expended by the Board,
and describing programs implemented under the Act; and to make such
report available to the public upon request;
(n) To establish seven regions that, to the extent practicable,
contain geographically contiguous States and approximately equal
numbers of sheep producers and sheep production;
(o) To employ or retain necessary staff; and
(p) To invest funds in accordance with Sec. 1280.214.
Sec. 1280.212 Budgets.
(a) In general. The Board shall review the budget submitted by the
Executive Committee, on a fiscal year basis, of anticipated expenses
and disbursements by the Board, including probable costs of
administration and promotion, research, consumer information,
education, industry information, and producer information projects. The
Board shall submit the budget to the Secretary for the Secretary's
approval.
(b) Limitation. No expenditure of funds may be made by the Board
unless such expenditure is authorized under a budget or budget
amendment approved by the Secretary.
Sec. 1280.213 Books and records of the Board.
The Board shall:
(a) Maintain such books and records, which shall be made available
to the Secretary for inspection and audit, as the Secretary may
prescribe;
(b) Prepare and submit to the Secretary, from time-to-time, such
reports as the Secretary may prescribe; and
(c) Account for the receipt and disbursement of all funds entrusted
to it. The Board shall cause its books and records to be audited by an
independent auditor at the end of each fiscal year, and a report of
such audit to be submitted to the Secretary.
Sec. 1280.214 Investment of funds.
The Board may invest, pending disbursement, funds it receives under
this subpart, only in obligations of the United States or any agency
thereof, in general obligations of any State or any political
subdivision thereof, in any interest-bearing account or certificate of
deposit of a bank that is a member of the Federal Reserve System, or in
obligations fully guaranteed as to principal and interest by the United
States. Any income from any such investment may be used for any purpose
for which the invested funds may be used.
Sec. 1280.215 Use of assessments.
(a) Assessments received by the Board shall be used by the Board:
(1) To fund promotion, research, education, and information plans
and projects authorized under this subpart, including promotion plans
and projects which make specific reference to domestic sheep and sheep
products originating or being produced and/or marketed in the U.S.,
except that the combined expenditures for such promotion plans and
projects involving domestic country of origin shall be limited to no
more than the combined domestic assessments collected on sheep and
sheep products and the percentage of domestic assessments spent on the
promotion of domestic sheep and sheep products shall not exceed the
percentage of import assessments spent on the generic promotion of
sheep and sheep products; and
(2) For the payment of expenses incurred in administering this
subpart, including a reasonable reserve.
(b) The Board shall reimburse the Secretary, from assessments
collected, for costs incurred in implementing and administering the
Order as provided for under the Act.
Executive Committee
Sec. 1280.216 Establishment.
The Board shall establish an Executive Committee of the Board to
assist the Board in the administration of the terms and provisions of
this subpart, under the direction of the Board, and consistent with the
policies determined by the Board.
Sec. 1280.217 Membership.
The Executive Committee shall be comprised of 14 members as
follows:
(a) Eleven members of the Executive Committee shall be elected by
the Board annually. Of these members:
(1) One member shall represent each of the seven regions
established under Sec. 1280.211(n) for a total of seven members
representing producers;
(2) One member shall represent feeders; and
(3) Three members shall represent importers.
(b) The remaining three members of the Executive Committee shall be
the elected officers of the Board.
[[Page 62311]]
Sec. 1280.218 Powers and duties.
(a) Plans and projects. The Executive Committee shall develop plans
or projects of promotion and advertising, research, consumer
information, education, industry information, and producer information,
which plans or projects shall be paid for with assessments collected by
the Board. The plans or projects shall not become effective until
approved by the Secretary.
(b) Budgets. The Executive Committee shall be responsible for
developing and submitting to the Board, for Board approval, budgets on
a fiscal year basis of the Board's anticipated expenses and
disbursements, including the estimated costs of advertising and
promotion, research, consumer information, education, industry
information, and producer information projects. The Board shall approve
or disapprove such budgets and, if approved, shall submit them to the
Secretary for the Secretary's approval.
Sec. 1280.219 Term of office.
Terms of appointment to the Executive Committee shall be for 1
year.
Sec. 1280.220 Chairperson.
The Chairperson of the Board shall serve as chairperson of the
Executive Committee.
Sec. 1280.221 Quorum.
A quorum of the Executive Committee shall consist of eight members.
Sec. 1280.222 Vacancies.
To fill any vacancy caused by the death, removal, resignation, or
disqualification of any member of the Executive Committee, the Board
shall elect a successor for the position pursuant to Sec. 1280.217.
Expenses
Sec. 1280.223 Expenses.
(a) The Board shall be responsible for all expenses of the Board
and the Executive Committee.
(b) Contracts and Agreements. Any contract or agreement entered
into by the Board shall provide that:
(1) The contracting party shall develop and submit to the Board a
plan or project of promotion, research, education, consumer
information, industry information, and producer information, together
with a budget or budgets that shall show estimated costs to be incurred
for such plan or project; and
(2) No plan, project, contract, or agreement shall become effective
until it has been approved by the Secretary.
(c) The contracting party shall:
(1) keep accurate records of all of its transactions;
(2) account for funds received and expended, including staff time,
salaries, and expenses expended on behalf of Board activities;
(3) make periodic reports to the Board of activities conducted; and
(4) make such other reports as the Board or the Secretary may
require.
Assessments
Sec. 1280.224 Sheep purchases.
(a) In general. Each person making payment to a producer or feeder
for sheep purchased from the producer or feeder shall be a collecting
person and shall collect an assessment from the producer or feeder on
each sheep sold by the producer or feeder. Each such producer or feeder
shall pay such assessment to the collecting person at the rate set
forth in paragraph (d) of this section.
(b) Remittances. Each processor making payment to a producer,
feeder, or collecting person for sheep purchased from the producer,
feeder, or collecting person shall be a collecting person and shall
collect an assessment from the producer, feeder, or other collecting
person on each sheep sold by the producer, feeder, or collecting
person, and each such producer, feeder, or collecting person shall pay
such assessment to the processor at the rate set forth in paragraph (d)
in this section, and such processor shall remit the assessment to the
Board.
(c) Processing. Any person who purchases sheep for processing shall
collect the assessment from the seller and remit the assessment to the
Board.
(d) Rate. Except as otherwise provided, the rate of assessment
shall be 1-cent-per-pound of live sheep sold. The rate of assessment
may be raised or lowered no more than 0.15 of a cent in any 1 year as
recommended by the Executive Committee and approved by the Board and
the Secretary. However, if the Board makes a recommendation to the
Secretary to raise or lower the assessment rates, the domestic rate and
the import rate must be raised or lowered simultaneously by an
equivalent amount. The rate of assessment shall not exceed 2\1/2\-
cents-per-pound.
Sec. 1280.225 Wool purchases.
(a) In general. Each person making payment to a producer, feeder,
or handler of wool for wool purchased from the producer, feeder, or
handler shall be a collecting person and shall collect an assessment
from the producer, feeder, or handler on each pound of greasy wool
sold. The producer, feeder, or handler shall pay such assessment to the
collecting person at the rate set forth in paragraph (d) of this
section.
(b) Remittances. Each processor making payment to a producer,
feeder, handler, or collecting person for wool purchased from the
producer, feeder, handler, or collecting person shall be a collecting
person and shall collect an assessment from the producer, feeder,
handler, or other collecting person on all wool sold by the producer,
feeder, handler, or collecting person, and each such producer, feeder,
handler, or collecting person shall pay such assessment to the
processor at the rate set forth in paragraph (d) of this section and
such processor shall remit the assessment to the Board.
(c) Processing. Any person purchasing greasy wool for processing
shall collect the assessment and remit the assessment to the Board.
(d) Rate. Except as otherwise provided, the rate of assessment
shall be 2-cents-per-pound. The rate of assessment may be raised or
lowered no more than 0.2 of a cent per pound in any 1 year as
recommended by the Executive Committee and approved by the Board and
the Secretary. However, if the Board makes a recommendation to the
Secretary to raise or lower the assessment rates, the domestic rate and
the import rate must be raised or lowered simultaneously by an
equivalent amount. The rate of assessment shall not exceed 4-cents-per-
pound of greasy wool.
Sec. 1280.226 Direct processing.
Each person who processes or causes to be processed sheep or sheep
products of that person's own production, and markets such sheep or
sheep products, shall pay an assessment on such sheep or sheep products
at the time of sale at a rate equivalent to the rate established in
Sec. 1280.224(d) or Sec. 1280.225(d), as appropriate, and shall remit
such assessment to the Board.
Sec. 1280.227 Exports.
Each person who exports live sheep or greasy wool shall remit the
assessment on such sheep or greasy wool at the time of export, at a
rate equivalent to the rate established in Sec. 1280.224(d) or
Sec. 1280.225(d), as appropriate, and shall remit such assessment to
the Board.
Sec. 1280.228 Imports.
(a) In general. Each person who imports sheep or sheep products or
who imports wool or products containing wool (with the exception of raw
wool)
[[Page 62312]]
into the United States shall pay an assessment to the Board.
(b) Collection. The Customs Service is authorized to collect and
remit such assessment to the Secretary for disbursement to the Board.
(c) Rate for sheep and sheep products. The assessment rate for
sheep shall be 1-cent-per-pound of live sheep. The assessment rate for
sheep products shall be the equivalent of 1-cent-per-pound of live
sheep, as determined by the Secretary in consultation with the domestic
sheep industry. Such rates may be raised or lowered no more than 0.15-
cent-per-pound in any 1 year as recommended by the Executive Committee
and approved by the Board and the Secretary, but shall not exceed 2\1/
2\-cents-per-pound. However, if the Board makes a recommendation to the
Secretary to raise or lower the assessment rates, the domestic rate and
the import rate must be raised or lowered simultaneously by an
equivalent amount.
(d) Rate for wool and wool products. The assessment rate for wool
and products containing wool shall be 2-cents-per-pound of degreased
wool or the equivalent of degreased wool. The rate of assessment may be
raised or lowered no more than 0.2-cents-per-pound in any 1 year, as
recommended by the Executive Committee and approved by the Board and
the Secretary, but shall not exceed 4-cents-per-pound of degreased wool
or the equivalent. However, if the Board makes a recommendation to the
Secretary to raise or lower the assessment rates, the domestic rate and
the import rate must be raised or lowered simultaneously by an
equivalent amount.
(e) The Secretary shall issue regulations regarding the assessment
rates for imported sheep and sheep products. The Secretary may exclude
from assessment certain imported products that contain de minimis
levels of sheep or sheep products and waive the assessment on such
products.
Sec. 1280.229 Qualified State Sheep Board.
(a) Except as provided in paragraph (b) of this section, 20 percent
of the total assessments collected by the Board on the marketings of
domestic sheep and domestic sheep products in any 1 year from a State
shall be returned to the QSSB of the State.
(b) No QSSB shall receive less than $2,500 under paragraph (a) of
this section in any 1 year. (c) The Board shall establish procedures
with the approval of the Secretary to account for funds expended
pursuant to paragraphs (a) and (b) of this section.
Sec. 1280.230 Collection.
(a) Each person responsible for the collection and remittance to
the Board of assessments under this subpart shall do so on a monthly
basis, unless the Board, with the approval of the Secretary, has
specifically authorized otherwise.
(b) Late payment charges. Any unpaid assessments due the Board or
from a person responsible for remitting assessments to the Board, shall
be increased by 2 percent each month beginning with the day after the
date such assessments were due under this subpart. Any assessments or
late payment charges that remain unpaid shall be increased at the same
rate on the corresponding day of each month thereafter until paid.
(c) Any unpaid assessments due to the Board pursuant to
Sec. 1280.224, Sec. 1280.225, Sec. 1280.226, and Sec. 1280.227 shall be
increased 2 percent each month beginning with the day following the
date such assessments were due. Any remaining amount due, which shall
include any unpaid charges previously made pursuant to this paragraph,
shall be increased at the same rate on the corresponding day of each
month thereafter until paid. For the purposes of this paragraph, any
assessment determined at a date later than the date prescribed by this
subpart because of a person's failure to submit a timely report to the
Board shall be considered to have been payable by the date it would
have been due if the report had been timely filed. The date of payment
is the applicable postmark date or the date of receipt by the Board,
whichever is earlier.
(d) If the Board is not in place by the date the first assessments
are to be collected, the Secretary shall have the authority to receive
assessments and invest them on behalf of the Board, and shall pay such
assessments and any interest earned to the Board when it is formed. The
Secretary shall have the authority to promulgate rules and regulations
concerning assessments and the collection of assessments if the Board
is not in place or is otherwise unable to develop such rules and
regulations.
Sec. 1280.231 Prohibition on use of funds.
(a) Except as otherwise provided in paragraph (b) of this section,
no funds collected by the Board under this subpart shall be used in any
manner for the purpose of influencing any action or policy of the
United States Government, any foreign or State Government, or any
political subdivision thereof.
(b) The prohibition in paragraph (a) of this section shall not
apply:
(1) To the development and recommendation of amendments to this
subpart; or
(2) To the communication to appropriate government officials, in
response to a request made by the officials, of information relating to
the conduct, implementation, or results of promotion, research,
consumer information, education, industry information, or producer
information activities under this subpart.
(c) A plan or project conducted pursuant to this part shall not
make false or misleading claims on behalf of sheep or sheep products or
against a competing product.
(d) No such plans or projects shall be undertaken to promote or
advertise any sheep or sheep products by brand or trade name without
the approval of the Board and the concurrence of the Secretary.
Reports, Books, and Records
Sec. 1280.232 Reports.
(a) Each collecting person, including processors and other persons
required to remit assessments to the Board pursuant to Sec. 1280.224(b)
for live sheep, each person who markets sheep products of that person's
own production and each exporter of sheep shall report to the Board
information pursuant to regulations prescribed by the Board and
approved by the Secretary. Such information may include:
(1) The number of sheep purchased, initially transferred or which,
in any other manner, are subject to the collection of assessment, and
the dates of such transaction;
(2) The number of sheep imported or exported, or the equivalent
thereof of sheep products imported;
(3) The amount of assessment remitted;
(4) An explanation for the remittance of any assessment that is
less than the pounds of sheep multiplied by the assessment rate; and
(5) The date any assessment was paid.
(b) Each collecting person, including processors and other persons
required to remit assessments to the Board pursuant to Sec. 1280.225(b)
for wool purchased from the producer or handler of wool or wool
products, each person purchasing greasy wool for processing, each
importer of wool or wool products (except raw wool), each exporter of
greasy wool, and each person who markets wool of that person's own
production shall report to the Board information pursuant to
regulations prescribed by the Board and approved by the Secretary. Such
information may include:
[[Page 62313]]
(1) The amount of wool purchased, initially transferred or in any
other manner subject to the collection of assessment, and the dates of
such transaction;
(2) The amount of wool imported (except raw wool) or the equivalent
thereof of wool products imported or the amount of greasy wool
exported;
(3) The amount of assessment remitted;
(4) An explanation for the remittance of an assessment that is less
than the pounds of wool multiplied by the assessment rate; and
(5) The date any assessment was paid.
Sec. 1280.233 Books and records.
(a) Each collecting person, including processors and other persons
required to remit assessments to the Board, each importer of sheep or
sheep products (except raw wool), and exporter of sheep or greasy wool,
and each person who markets sheep products of that person's own
production, shall maintain and make available for inspection such books
and records as may be required by regulations prescribed by the Board
and approved by the Secretary, including records necessary to verify
any required reports. Such records shall be maintained for the period
of time prescribed by the regulations issued hereunder.
(b) Document evidencing payment of assessments. Each collecting
person responsible for collecting an assessment paid pursuant to this
subpart, other than a person who slaughters sheep or markets sheep
products of his or her own production for sale, is required to give the
person or collecting person from whom the collecting person collected
an assessment written evidence of payment of the assessments paid
pursuant to this subpart. Such written evidence serving as a receipt
shall include:
(1) Name and address of the collecting person;
(2) Name of the producer who paid the assessment;
(3) Number of head of sheep or pounds of wool sold;
(4) Total assessments paid by the producer;
(5) Date; and
(6) Such other information as the Board, with the approval of the
Secretary, may require.
Sec. 1280.234 Use of information.
Information from records or reports required pursuant to this
subpart shall be made available to the Secretary as is appropriate to
the administration or enforcement of the Act, this subpart or any
regulation issued under the Act. In addition, the Secretary shall
authorize the use under this part of information that is accumulated
under laws or regulations other than the Act or regulations issued
under the Act regarding persons paying producers, feeders, importers,
handlers, or processors.
Sec. 1280.235 Confidentiality.
(a) All information from records or reports required pursuant to
this subpart shall be kept confidential by all officers and employees
of the Department and of the Board. Such information may be disclosed
only if the Secretary considers the information relevant, the
information is disclosed only in a suit or administrative hearing
brought at the direction or on the request of the Secretary, or to
which the Secretary or any officer of the United States is a party, and
the information relates to the Act.
(b) Administration. No information obtained under the authority of
this subpart may be made available to any agency or officer of the
Federal Government for any purpose other than the implementation of the
Act and any investigatory or enforcement action necessary for the
implementation of the Act.
(c) General statements. Nothing in paragraph (a) of this section
may be deemed to prohibit:
(1) The issuance of general statements, based on the reports of the
number of persons subject to this subpart or statistical data collected
therefrom, which statements do not identify the information furnished
by any person; or
(2) The publication, by direction of the Secretary, of the name of
any person violating this subpart and a statement of the particular
provisions of this subpart violated by such person.
(d) Penalty. Any person who willfully violates the provisions of
this subpart, on conviction, shall be subject to a fine of not more
than $1,000, or to imprisonment for not more than 1 year, or both, and
if the person is an officer or employee of the Board or the Department,
that person shall be removed from office.
Miscellaneous
Sec. 1280.240 Right of the Secretary.
All fiscal matters, programs or projects, bylaws, rules or
regulations, reports, or other substantive actions proposed, and
prepared by the Board shall be submitted to the Secretary for approval.
Sec. 1280.241 Proceedings after termination.
(a) Upon the termination of this subpart, the Board shall recommend
not more than five of its members to the Secretary to serve as trustees
for the purpose of liquidating the affairs of the Board. Such persons,
upon designation by the Secretary, shall become trustees of all the
funds and property owned, in the possession of or under the control of
the Board, including any claims of the Board against third parties that
exist at the time of such termination.
(b) The trustees shall:
(1) Act as trustees until discharged by the Secretary;
(2) Carry out the obligations of the Board under any contracts or
agreements entered into by the Board pursuant to Sec. 1280.223(b);
(3) From time to time account for all receipts and disbursements
and deliver all property on hand, together with all books and records
of the Board and of the trustees, to such persons as the Secretary may
direct; and
(4) Upon the request of the Secretary, execute such assignment of
other instruments necessary or appropriate to transfer to such persons
full title and right to all of the funds, property, and claims of the
Board or the trustees pursuant to this subpart.
(c) Any person to whom funds, property or claims have been
transferred or delivered pursuant to this subpart shall be subject to
the same obligation imposed upon the Board and upon the trustees.
(d) Any residual funds not required to pay the necessary costs of
liquidation shall be turned over to the Secretary to be used, to the
extent practicable, for continuing one or more of the promotion,
research, consumer information, education, industry information, and
producer information plans or projects authorized pursuant to this
subpart.
Sec. 1280.242 Effect of termination or amendment.
Unless otherwise expressly provided by the Secretary, the
termination of this subpart or of any regulation issued pursuant
thereto, or the issuance of any amendment to either thereof, shall not:
(a) Affect or waive any right, duty, obligation, or liability that
has arisen or may hereafter arise in connection with any provision of
this subpart or any regulation issued thereunder; or
(b) Release or extinguish any violation of this subpart or any
regulation issued thereunder; or
(c) Affect or impair any rights or remedies of the United States,
the Secretary or any person with respect to any such violation.
[[Page 62314]]
Sec. 1280.243 Personal liability.
No member, employee, or agent of the Board, including employees,
agents, or Board members of the QSSB, acting pursuant to the authority
provided in this subpart, shall be held personally responsible, either
individually or jointly, in any way whatsoever, to any person for
errors in judgment, mistakes, or other acts of either commission or
omission, of such member, employee, or agent except for acts of
dishonesty or willful misconduct.
Sec. 1280.244 Patents, copyrights, inventions, and publications.
Any patents, copyrights, inventions, or publications developed
through the use of funds remitted to the Board under the provisions of
this subpart shall be the property of the United States Government as
represented by the Board, and shall, along with any rents, royalties,
residual payments, or other income from the rental, sales, leasing,
franchising, or other uses of such patents, copyrights, inventions, or
publications, inure to the benefit of the Board. Upon termination of
this subpart, Sec. 1280.240 shall apply to determine disposition of all
such property.
Sec. 1280.245 Amendments.
Amendments to the subpart may be proposed, from time to time, by
the Board or by any interested person affected by the provisions of the
Act, including the Secretary.
Sec. 1280.246 Separability.
If any provision of this subpart is declared invalid or its
applicability to any person or circumstances is held invalid, the
validity of the remainder of this subpart of the applicability thereof
to other persons or circumstances shall not be affected thereby.
Subpart B--[Reserved]
Subpart C--[Reserved]
Subpart D--[Reserved]
Subpart E--[Reserved]
Dated: November 29, 1995.
Lon Hatamiya,
Administrator.
[FR Doc. 95-29528 Filed 12-1-95; 3:00 pm]
BILLING CODE 3410-02-P
Complete official Federal Register PDF
FR Doc. 95-29516 Gulf of Mexico Fishery Management Council; Public Hearings
[Federal Register Volume 60, Number 233 (Tuesday, December 5, 1995)]
[Proposed Rules]
[Pages 62241-62242]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-29516]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 642
[I.D. 110795H]
Gulf of Mexico Fishery Management Council; Public Hearings
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Public hearings; requests for comments.
-----------------------------------------------------------------------
SUMMARY: The Gulf of Mexico Fishery Management Council (Gulf Council)
will convene nine public hearings on Draft Amendment 8 to the Fishery
Management Plan for Coastal Migratory Pelagic Resources of the Gulf of
Mexico and South Atlantic (FMP) and its draft supplemental
environmental impact statement (draft SEIS).
DATES: Written comments will be accepted until January 5, 1996. The
hearings will be held from December 11 to December 14, 1995. See
SUPPLEMENTARY INFORMATION for specific dates and times.
ADDRESSES: Written comments should be sent to and copies of the draft
amendment are available from Mr. Wayne E. Swingle, Executive Director,
Gulf of Mexico Council, 5401 West Kennedy Boulevard, Tampa, FL 33609.
The hearings will be held in AL, FL, LA, MS and TX. See
SUPPLEMENTARY INFORMATION for locations of the hearings and special
accommodations.
FOR FURTHER INFORMATION CONTACT: Wayne E. Swingle, 813-228-2815; Fax:
813-225-7015.
SUPPLEMENTARY INFORMATION:
Background
The Gulf and South Atlantic Fishery Management Councils will be
holding public hearings on Draft Amendment 8 to the FMP and its draft
SEIS. Amendment 8 proposes management measures for the fisheries for
king and Spanish mackerel, cobia and dolphin (fish). Amendment 8
proposes some measures that (1) apply only to the South Atlantic
Council's jurisdiction, (2) apply only to the Gulf Council's
jurisdiction, or (3) apply to both Councils' jurisdictions. Proposed
actions that would affect only the stocks and area under the
jurisdiction of the Gulf of Mexico Council are as follows: Allow Gulf
group king mackerel that can be taken only by hook-and-line (including
longline) and run-around gill nets to be possessed on vessels with
other gear aboard; require commercial dealer permits to buy and sell
coastal pelagic fish managed under the FMP and require that dealers
keep and make available records of purchase by vessel; establish a 5-
year moratorium, beginning on October 16, 1995, on the issuance of both
commercial vessel permits with a king mackerel endorsement and charter
vessel permits; provide for transfer of vessel permits to other
vessels; require that anyone applying for a commercial vessel permit
demonstrate that 25 percent of annual income, or $5,000, be from
commercial fishing; and require, that, as a condition for a Federal
commercial or charter vessel permit, the applicant agrees to comply
with the more restrictive of state or Federal rules when fishing in
state waters. Amendment 8 also includes the following measures that
apply to both Councils' jurisdictions: Recreational bag and commercial
trip limit alternatives for cobia and dolphin (fish); retention of king
mackerel damaged by barracuda bites by vessels under commercial trip
limits; alternatives for Atlantic king mackerel commercial trip limits
off Monroe County, FL of either 50 fish or 125 fish; changes to the
procedure used to set total allowable catch; and changes to definitions
of overfishing and optimum yield. Proposed measures in Amendment 8
applying only to the area and stocks under the jurisdiction of the
South Atlantic Council will be summarized in news releases for public
hearings to be held in the South Atlantic area during January 1996.
The hearings are scheduled from 7 p.m. to 10 p.m. as follows:
1. Monday, December 11, 1995, Larose--Larose Regional Park, 2001
East 5th Street, Larose, LA 70373
2. Monday, December 11, 1995, Port Aransas--Visitor's Center
Auditorium, University of Texas, 750 Channel View Drive, Port Aransas,
TX 78373
3. Monday, December 11, 1995, Key West--Lions Club, 2405 North
Roosevelt Boulevard, Key West, FL 33040
4. Tuesday, December 12, 1995, Biloxi--J.L. Scott Marine Education
[[Page 62242]]
Center and Aquarium, 115 East Beach Boulevard, Biloxi, MS 39530
5. Tuesday, December 12, 1995, Galveston--Best Western Beachfront
Inn, 5914 Seawall Boulevard, Galveston, TX 77551
6. Wednesday, December 13, 1995, Gulf Shores--Quality Inn
Beachside, 931 West Gulf Shores Boulevard, Gulf Shores, AL 36547
7. Wednesday, December 13, 1995, Panama City--National Marine
Fisheries Service, Panama City Laboratory, 3500 Delwood Beach Road,
Panama City, FL 32408
8. Wednesday, December 13, 1995, Cameron--Police Jury Annex,
Courthouse Square, Cameron, LA 70631
9. Thursday, December 14, 1995, Madeira Beach--City Hall
Auditorium, 3001 Municipal Drive, Madeira Beach, FL 33708
Special Accommodations
These hearings are physically accessible to people with
disabilities. Requests for sign language interpretation or other
auxiliary aids should be directed to Anne Alford at the Council office
(see ADDRESSES) by December 4, 1995.
Authority: 16 U.S.C. 1801 et seq.
Dated: November 28, 1995.
Richard W. Surdi,
Acting Director, Office of Fisheries Conservation and Management,
National Marine Fisheries Service.
[FR Doc. 95-29516 Filed 12-4-95; 8:45 am]
BILLING CODE 3510-22-F
Complete official Federal Register PDF
FR Doc. 95-29510 Consolidated GroupsIntercompany Transactions and Related Rules; Hearing
[Federal Register Volume 60, Number 233 (Tuesday, December 5, 1995)]
[Proposed Rules]
[Page 62229]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-29510]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE TREASURY
Internal Revenue Service
26 CFR Part 1
[CO-24-95]
RIN 1545-AT51
Consolidated Groups--Intercompany Transactions and Related Rules;
Hearing
AGENCY: Internal Revenue Service, Treasury.
ACTION: Change of date and time for public hearing on proposed
regulations.
-----------------------------------------------------------------------
SUMMARY: This document changes the date and time of the public hearing
on proposed regulations that provide rules for disallowing loss and
excluding gain for certain dispositions and other transactions
involving stock of the common parent of a consolidated group.
DATES: The public hearing has changed to Monday, December 11, 1995,
beginning at 1:00 p.m.
ADDRESSES: The public hearing will be held in the Internal Revenue
Service Auditorium, Seventh floor, 7400 Corridor, Internal Revenue
Building, 1111 Constitution Avenue NW. Washington, DC. Submit requests
to speak and outlines of oral comments to CC:DOM:CORP:R [CO-24-95],
room 5228, Internal Revenue Service, P.O. Box 7604, Ben Franklin
Station, Washington, DC 20044.
FOR FURTHER INFORMATION CONTACT: Christina Vasquez of the Regulations
Unit, Assistant Chief Counsel (Corporate), (202) 622-6803 (not a toll-
free number).
SUPPLEMENTARY INFORMATION: A notice of proposed rulemaking and notice
of public hearing appearing in the Federal Register for Tuesday, July
18, 1995 (60 FR 36755), announced that the Service would hold a public
hearing on proposed regulations that provide rules for disallowing loss
and excluding gain for certain dispositions and other transactions
involving stock of the common parent of a consolidated group on
Thursday, November 16, 1995, beginning at 10:00 a.m. in the IRS
Auditorium.
The date and time of the public hearing has changed. The hearing is
scheduled for Monday, December 11, 1995, beginning at 1:00 p.m. The
requests to speak and outlines of oral comments were due October 26,
1995. Because of controlled access restrictions, attenders are not
admitted beyond the lobby of the Internal Revenue Building until 12:45
p.m.
The service will prepare an agenda showing the scheduling of the
speakers and make copies available free of charge at the hearing.
Cynthia E. Grigsby,
Chief, Regulations Unit, Assistant Chief Counsel (Corporate).
[FR Doc. 95-29510 Filed 12-4-95; 8:45 am]
BILLING CODE 4830-01-P
Complete official Federal Register PDF
FR Doc. 95-29509 Illinois Regulatory Program
[Federal Register Volume 60, Number 233 (Tuesday, December 5, 1995)]
[Proposed Rules]
[Pages 62229-62233]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-29509]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 913
[SPATS No. IL-089-FOR]
Illinois Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Proposed rule; reopening and extension of public comment period
on proposed amendment.
-----------------------------------------------------------------------
SUMMARY: OSM is announcing receipt of revisions and additional
explanatory information pertaining to a previously proposed amendment
to the Illinois
[[Page 62230]]
regulatory program (hereinafter referred to as the ``Illinois
program'') under the Surface Mining Control and Reclamation Act of 1977
(SMCRA). The revisions and additional explanatory information for
Illinois' proposed regulations pertain to termination of jurisdiction,
permit fees, definitions, coal exploration, permitting, environmental
resources, reclamation plans, special categories of mining, small
operator assistance, bonding, performance standards, inspection,
enforcement, civil penalties, administrative and judicial review, and
certification of blasters. The amendment is intended to revise the
Illinois program to be consistent with the corresponding Federal
regulations, incorporate the additional flexibility afforded by
recently revised Federal regulations, provide additional safeguards,
clarify ambiguities, and improve operational efficiency.
DATES: Written comments must be received by 4:00 p.m., e.s.t., January
4, 1996. If requested, a public hearing on the proposed amendment will
be held on January 2, 1996. Requests to speak at the hearing must be
received by 4:00 p.m., e.s.t., on December 20, 1995.
ADDRESSES: Written comments and requests to speak at the hearing should
be mailed or hand delivered to Roger W. Calhoun, Director, Indianapolis
Field Office at the address listed below.
Copies of the Illinois program, the proposed amendment, a listing
of any scheduled public hearings, and all written comments received in
response to this document will be available for public review at the
addresses listed below during normal business hours, Monday through
Friday, excluding holidays. Each requester may receive one free copy of
the proposed amendment by contacting OSM's Indianapolis Field Office.
Roger W. Calhoun, Director Indianapolis Field Office, Office of Surface
Mining Reclamation and Enforcement, Minton-Capehart Federal Building,
575 North Pennsylvania Street, Room 301, Indianapolis, Indiana, 46204,
Telephone: (317) 226-6700.
Illinois Department of Natural Resources, Office of Mines and Minerals,
524 South Second Street, Springfield, Illinois, 62701-1787, Telephone:
(217) 782-4970.
FOR FURTHER INFORMATION CONTACT: Roger W. Calhoun, Director
Indianapolis Field Office, Telephone: (317) 226-6700.
SUPPLEMENTARY INFORMATION:
I. Background on the Illinois Program
On June 1, 1982, the Secretary of the Interior conditionally
approved the Illinois program. Background information on the Illinois
program, including the Secretary's findings, the disposition of
comments, and the conditions of approval can be found in the June 1,
1982, Federal Register (47 FR 23883). Subsequent actions concerning the
conditions of approval and program amendments can be found at 30 CFR
913.15, 913.16, 913.17.
II. Discussion of the Proposed Amendment
By letter dated February 3, 1995 (Administrative Record No. IL-
1615), Illinois submitted a proposed amendment to its program pursuant
to SMCRA. Illinois submitted the proposed amendment in response to an
August 5, 1993, letter (Administrative Record No. IL-1400) that OSM
sent to Illinois in accordance with 30 CFR 732.17(c), in response to
the required program amendments at 30 CFR 913.16(s), (t), and (u), and
at its won initiative. The provisions of Title 62 of the Illinois
Administrative Code (IAC) that Illinois proposes to amend are 62 IAC
1700, General; 62 IAC 1701.Appendix A, Definitions; 62 IAC 1761.11,
Areas where mining is prohibited or limited, 62 IAC 1772, Requirements
for coal exploration; 62 IAC 1773, Requirements for permits and permit
processing; 62 IAC 1774.13, Permit revisions; 62 IAC 1778.15, Right of
entry information; 62 IAC 1779, Surface mining permit applications--
minimum requirements for information on environmental resources; 62 IAC
1780.23, Reclamation plan: per-mining and post-mining information; 62
IAC 1783, Underground mining permit applications--minimum requirements
for information on environmental resources; 62 IAC 1784.15, Reclamation
plan: pre-mining and post-mining information; 62 IAC 1785, Requirements
for permits for special categories of mining; 62 IAC 1795, Small
operator assistance; 62 IAC 1800, Bonding and insurance requirements
for surface coal mining and reclamation operations; 62 IAC 1816,
Permanent program performance standards--surface mining activities; 62
IAC 1817, Permanent program performance standards--underground mining
activities; 62 IAC 1825.14, High capability lands: soil replacement; 62
IAC 1840, Department inspections; 62 IAC 1843, State enforcement; 62
IAC 1845.12, When penalty will be assessed; 62 IAC 1847, Administrative
and judicial review; 62 IAC 1845.5, Notice of hearing; and 62 IAC 1850,
Training, examination and certification of blasters.
OSM announced receipt of the proposed amendment in the February 27,
1995, Federal Register (60 FR 10522) and invited public comment on its
adequacy. The public comment period ended March 29, 1995.
During its review of the amendment, OSM identified concerns
relating to 62 IAC 1701. Appendix A, definition of wetlands; 62 IAC
1773.20, general procedures for improvidently issued permits; 62 IAC
1773.23, review of ownership or control and violation information; 62
IAC 1773.24, procedures for challenging ownership or control shown in
the Applicant Violator System; 62 IAC 1785.17, prime farmlands; 62 IAC
1816/1817.13 and 1816/1817.15, casing and sealing of drilled holes; 62
IAC 1816/1817.116(a)(3)(F) and 62 IAC 1816.116(a)(4)(A)(ii),
revegetation standards for small isolated areas; 62 IAC
1816.116(a)(4)(D), revegetation standards for hay production; 62 IAC
1816/1817.116(a)(5), wetlands revegetation; 62 IAC 1816/1817.116(c),
revegetation reference areas; and 62 IAC 1816.Appendix A, permit
specifics yield standards. OSM notified Illinois of the concerns by
letters dated April 28 and August 3, 1995 (Administrative Record Nos.
IL-1649 and IL-1660, respectively). Illinois responded in a letter
dated November 1, 1995 (Administrative Record No. IL-1663), by
submitting a revised amendment and additional explanatory information.
Throughout the revised amendment, Illinois proposes to change its
references of the ``Illinois Department of Mines and Minerals'' to the
``Illinois Department of Natural Resources, Office of Mines and
Minerals'' in order to reflect a reorganization change which was
effective July 1, 1995, and to change its references of the ``Soil
Conservation Service'' and ``S.C.S.'' to the ``Natural Resources
Conservation Service.'' Illinois, also, corrected typographical errors,
revised cross-references, and revised paragraph notations to reflect
organizational changes within the amended regulations. In addition,
Illinois proposes revisions to and/or additional explanatory
information for the following specific regulations.
A. 62 IAC 1701.Appendix A Definition of Wetlands
In its letter dated April 28, 1995 (Administrative Record No.
1649), OSM requested Illinois to provide a statement which explains the
meaning of the last sentence of the ``wetlands'' definition [Areas
which are restored or created as
[[Page 62231]]
the result of mitigation or planned construction projects and which
function as a wetland are included within this definition even when all
three wetland parameters are not present]. At the May 31, 1995, meeting
(Administrative Record No. 1654), Illinois stated that it was using the
definition of wetlands contained in the Illinois Interagency Wetland
Policy Act of 1989 (20 ILCS 830/1-6). Illinois explained that the
definition applies to created wetlands which are functioning as a
wetland ``* * * even when all three wetland parameters are not
present.'' Illinois further explained that generally the ``hydric''
soil profile may not be fully developed in an artificial wetland.
Illinois submitted a copy of the ``Interagency Wetlands Policy Act
of 1989'' to OSM (Administrative Record No. 1650A).
B. 62 IAC 1773.20 Improvidently Issued Permits: General Procedures
At 62 IAC 1773.20(c)(4), Illinois proposes to change the word
``rescind'' in the sentence ``If the Department decides to rescind the
permit, it shall give at least 30 days written notice to the
permittee'' to the word ``suspend.''
C. 62 IAC 1773.23 Review of Ownership or Control and Violation
Information
At 62 IAC 1773.23(a), Illinois proposes to change its regulation
reference from ``1773.22(b)'' to ``1773.22.''
At 62 IAC 1773.23(b)(2)(B), Illinois proposes to change its
regulation reference from ``1773.15(b)'' to ``1773.15(b)(1).''
D. 62 IAC 1773.24 Procedures for Challenging Ownership or Control
Links Shown in the Applicant Violator System
At 62 IAC 1773.34(a)(1), Illinois proposes to change the regulation
reference from ``subsections (b) through (d) below and Section
1773,25'' to ``30 CFR 773.24(b) through (d) and 30 CFR 773.25.''
At 62 IAC 1773.24(a)(2), Illinois proposes to change the regulation
reference from ``subsections (b) through (d)'' to ``30 CFR 773.24 (b)
through (d).''
At 62 IAC 1773.24(a)(3), Illinois proposes to replace the language
``the State program for the State that issued the violation notice''
with subsections (b) through (d) below and Section 1 773.25.''
At 62 IAC 1773.24 (b) through (d), Illinois proposes to replace the
originally proposed procedures for those persons eligible under
subsections (a)(1) or (a)(2) to challenge the status of an ownership or
control link shown in the AVS or the status of federal violations with
procedures for those persons eligible under subsection (a)(3) to
challenge the status of state violations. The revised regulations read
as follows:
(b) Any applicant or other person who wishes to challenge an
ownership or control link shown in AVS or the status of a state
violation, and who is eligible to do so under the provisions of
subsection (a)(3) above, shall submit a written explanation of the
basis for the challenge, along with any relevant evidentiary materials
and supporting documents.
(c) The Department shall review any information submitted under
subsection (b) above and shall make a written decision whether or not
the ownership or control link has been shown to be erroneous or has
been rebutted and/or whether the violation covered by the notice
remains outstanding, has been corrected, is in the process of being
corrected, or is the subject of a good faith appeal within the meaning
of Section 1773.15(b)(1).
(d) Notice to applicant.
(1) If, as a result of the decision reached under subsection (c)
above, the Department determines that the ownership or control link has
been shown to be erroneous or has been rebutted and/or that the
violation covered by the notice has been corrected, is in the process
of being corrected, or is the subject of a good faith appeal, the
Department shall so notify the applicant or other person and, if an
application is pending, OSM, and shall correct the information in AVS.
(2) If, as a result of the decision reached under subsection (c)
above, the Department determines that the ownership or control link has
not been shown to be erroneous and has not been rebutted and that the
violation covered by the notice remains outstanding, the Department
shall so notify the applicant or other person and, if an application is
pending, OSM, and shall update the information is AVS, if necessary.
(3) The Department shall serve a copy of the decision on the
applicant or other person by certified mail, or by any means consistent
with the rules governing service of a summons and complaint under Rule
4 of the Federal Rules of Civil Procedure. Service shall be complete
upon tender of the notice or of the mail and shall not be deemed
incomplete because of a refusal to accept.
(4) The applicant or other person may appeal the Department's
decision within 30 days of service of the decision in accordance with
62 Ill. Adm. Code 1847.3. The Department's decision shall remain in
effect during the pendency of the appeal, unless temporary relief is
granted in accordance with 62 Ill. Adm. Code 1847.3(k).
E. 62 IAC 1785.17 Prime Farmlands
At 62 IAC 1785.17(d)(1), Illinois proposes to reinstate the
sentence ``The State recognizes that the permit cannot be issued
without the required consultation with USDA.''
F. 62 IAC 1816 (Surface Mining Activities) and 1817 (Underground
Mining Activities) Permanent Program Performance Standards
Since most of the surface mining and underground mining regulations
in these parts are identical, the revisions are being combined for
discussion purposes, unless otherwise noted.
1. 62 IAC 1816.13 and 1816.15 Casing and Sealing of Drilled Holes and
62 IAC 1817.13 and 1817.15 Casing and Sealing or Exposed Underground
Openings
Illinois proposes to withdraw its originally proposed requirements
that exposed underground openings be backfilled.
2. IAC 1816.116(a)(2)(F)/1817.116(a)(2)(F) Revegetation Standards for
Success: Augmentation
a. At 62 IAC 1816/1817.116(a)(2)(F)(i), Illinois proposes to
reinstate the existing language from 62 IAC 1816/1817.116(a)(2)(F)(ii)
and add some clarification language. This revised provision reads as
follows:
The five (5) year period of responsibility shall not recommence
after deep tillage on areas where the operator has met the
revegetation success standards of subsection (a)(3)(E) below.
b. Originally proposed 62 IAC 1816/1817.116(a)(2)(F) is
redesignated 62 IAC 1816/1817.116(a)(2)(F)(ii), and Illinois proposes
to add the follow exception to its provision that considers the
application of chemical treatments or fertilizers to wetland areas as
augmentation.
Except that wetlands managed as wildlife food plot areas using
agricultural techniques shall not be considered augmented when
normal husbandry practices, such as routine liming and
fertilization, are used.
3. 62 IAC 1816.116(a)(3)(F)/1817.116(a)(3)(F) Revegetation Standards
for Success: Non-contiguous Areas
If response to issues raised in OSM's letters dated April 28 and
August 3, 1995 (Administrative Record Nos. IL-1649 and IL-1660,
respectively), Illinois proposes to revise 62 IAC 1816/
1817.116(a)(3)(F) to read as follows.
[[Page 62232]]
Non-contiguous areas less than or equal to four acres which were
disturbed from activities such as, but not limited to, signs,
boreholes, power poles, stockpiles and substations shall be
considered successfully revegetated if the operator can demonstrate
that the soil disturbance was minor, i.e., the majority of the
subsoil remains in place, the soil has been returned to its original
capability and the area is supporting its approved post-mining land
use at the end of the responsibility period.
Also, Illinois' amendment transmittal letter dated November 1,
1995, contains a justification statement with an attached map
(Administrative Record No. IL-1663). The map, which is marked as
Exhibit #4, shows an example of several small substations which served
an underground mine and which had minor disturbances and which were
returned to cropland use. In its statement, Illinois references In Re:
Permanent Surface Mining Regulation Litigation (Civil Action No. 79-
1144, May 16, 1980) as justification for the proposed regulation.
Illinois also attached a memorandum dated September 1, 1995, from the
Illinois Department of Agriculture which concurred with the four acre
threshold relative to the testing of small isolated areas for
revegetation success.
4. 26 IAC 1816.116(a)(4)(A)(ii) Revegetation Standards for Success:
Proof of Productivity for Non-Contiguous Areas
Illinois proposes to revise its proposed provision at 62 IAC
1816.116(a)(4)(A)(ii) which would allow the productivity results of a
larger field to represent small isolated areas to read as follows.
The Department may approve a field to represent non-contiguous
areas less than or equal to four acres of the same capability if it
determines that the field is representative of reclamation of such
areas. These areas shall be managed and vegetated in the same manner
as the representative field.
In its letter dated November 1, 1995 (Administrative Record No. IL-
1663), Illinois stated that ``* * * These areas will be vegetated and
managed in the same manner as their associated larger field under
approved and proper management practices.''
5. 62 IAC 1816.116(a)(4)(D) Revegetation Standards for Hay Production
At 62 IAC 1816.116(a)(4)(D), Illinois proposes to withdraw the
following previously proposed language.
Prior successful hay production shall not be affected by deep
tillage for crop production.
6. 62 IAC 1816.116(a)(5)/1817.116(a)(5) Wetland Revegetation
In its letter dated April 28, 1995 (Administrative Record No.
1649), OSM requested Illinois to provide a statement and technical
support for 62 IAC 1816/1817.116(a)(5) which justifies why a minimum
areal coverage of 30 percent for wetlands will be consistent with the
revegetation standards for ground cover for areas to be developed for
fish and wildlife habitat at 30 CFR 816/817.116(a)(3)(iii).
At the May 31, 1995, meeting (Administrative Record No. 1654),
Illinois described a U.S. Fish and Wildlife Service, Biological
Services Program, publication on the qualitative values of wetlands
with various degrees of emergent vegetation at the 20 to 70 percent
levels. The study ranked 70 percent cover as having the lowest value,
50 percent as having the highest value, and 30 percent as having a
middle value. Illinois stated its belief that attainment of the 30
percent level of areal vegetation cover is adequate to establish a
valuable wetland which is likely to improve with time, justifying its
use as a revegetation success standard.
Illinois submitted the publication, which was entitled
``Classification of Wetlands and Deepwater Habitats of the United
States,'' U.S. Department of the Interior, Fish and Wildlife Service,
Biological Services Program, FWS/OBS-79/31, December 1979, to OSM on
June 8, 1995 (Administrative Record No. 1653). Illinois, also,
submitted two additional reference documents in support of its wetlands
revegetation standards: (1) Vol. II of ``Wetland Creation and
Restoration--The Status of the Science,'' U.S. Environmental Protection
Agency, Environmental Research Laboratory, EPA 600/3-89/038b, October
1989, (Administrative Record No. IL-1650) and (2) Journal of Wildlife
Management, 1981, University of Michigan Study, Dabbling Duck and
Aquatic Macroinvertebrate Responses to Manipulated Wetland Habitat, J.
Wildl. Manage.45(1):1981 (Administrative Record No. IL-1650B).
7. 62 IAC 1816.116(c) and 1817.116(c) Use of Reference Areas for
Determining Revegetation
Illinois proposes to withdraw its proposed regulations at 62 IAC
1816.116(c) and 1817.116(c) concerning the use of a reference area in
lieu of the Agricultural Lands Productivity Formula Target Yields to
determine the success of revegetation for cropland and hayland.
8. 62 IAC 1816.Appendix A Agricultural Land Productivity Formula
a. Under the heading ``Permit Specifics--Yield Standard'', Illinois
proposes to modify sections (a) and (b) to clarify that target yields
are calculated by ``pit'' rather than ``permit.'' Therefore, Illinois
proposes to change the words ``permit,'' ``mine permit area,'' and
``permit area'' to ``pit.''
Illinois, also, submitted examples for the justification of
consolidating yield targets by pit rather than permit in its November
1, 1995, submittal (Administrative Record No. IL-1663). Exhibit #1 is a
composite map identifying 18 pits which are included in ten permits
whose reclamation plans are developed on a pit basis to balance prime
farmland, and high capability land liability. Exhibit #2 is a printout
of the base yield targets from a mine with a pit which was originally
contained under three separate contiguous permits. Later, all three
permits were repermitted under one large permit. As a result, the yield
targets were consolidated due to the repermitting. The yield
differences between permits and the mean varied approximately 5
percent. Exhibit #3 is a printout of the base yield targets from a mine
with a pit which was originally contained under two separate contiguous
permits. These permits were not consolidated under one permit; however,
as the small acreage permit represented just the last few years of
mining and included the final cut impoundment, some of the cropland
liability was located into the older permit. In other words, the actual
soils and liability accrued were moving across permit lines. A
composite yield target based on a pit concept reflects the actual way
the soil was handled.
b. Illinois proposes to change previously proposed section (e) to
(c) and proposes to revise the language as follows:
After mining operations have ceased, the Department shall
recalculate the yield standards for the pit based solely on the
soils which were disturbed. Recalculated targets shall be applicable
to all areas tested for productivity subsequent to the
recalculation. Approved significant revisions after permanent
cessation of mining shall cause the targets to be recalculated and
applied to productivity fields tested after the recalculation.
c. Illinois proposes to withdraw previously proposed sections (c),
(d), and (f).
G. 62 IAC 1848.5 Notice of Hearing
At 62 IAC 1848.5(f), Illinois proposes to withdraw the following
previously proposed sentence.
[[Page 62233]]
Any deviations from the requirements of this subsection
attributable to the publishing newspaper shall not be grounds for
postponement or continuance of the hearing, nor will such errors
necessitate that the notice be republished.
III. Public Comment Procedures
OSM is reopening the comment period on the proposed Illinois
program amendment to provide the public an opportunity to reconsider
the adequacy of the proposed amendment in light of the additional
materials submitted. In accordance with the provisions of 30 CFR
732.17(h), OSM is seeking comments on whether the proposed amendment
satisfies the applicable program approval criteria of 30 CFR 732.15. If
the amendment is deemed adequate, it will become part of the Illinois
program.
Written Comments
Written comments should be specific, pertain only to the issues
proposed in this rulemaking, and include explanations in support of the
commenter's recommendations. Comments received after the time indicated
under ``DATES'' or at locations other than the Indianapolis Field
Office will not necessarily be considered in the final rulemaking or
included in the Administrative Record.
Public Hearing
Persons wishing to speak at the public hearing should contact the
person listed under FOR FURTHER INFORMATION CONTACT by 4:00 p.m.,
e.s.t., on December 20, 1995. The location and time of the hearing will
be arranged with those persons requesting the hearing. If no one
requests an opportunity to speak at the public hearing, the hearing
will not be held.
Filing of a written statement at the time of the hearing is
requested as it will greatly assist the transcriber. Submission of
written statements in advance of the hearing will allow OSM officials
to prepare adequate responses and appropriate questions.
The public hearing will continue on the specified date until all
persons scheduled to speak have been heard. Persons in the audience who
have not been scheduled to speak, and who wish to do so, will be heard
following those who have been scheduled. The hearing will end after all
persons scheduled to speak and persons present in the audience who wish
to speak have been heard.
Any disabled individual who has need for a special accommodation to
attend a public hearing should contact the individual listed under FOR
FURTHER INFORMATION CONTACT.
Public Meeting
If only one person requests an opportunity to speak at a hearing, a
public meeting, rather than a public hearing, may be held. Persons
wishing to meet with OSM representatives to discuss the proposed
amendment may request a meeting by contacting the person listed under
FOR FURTHER INFORMATION CONTACT. All such meetings will be open to the
public and, if possible, notices of meetings will be posted at the
locations listed under ADDRESSES. A written summary of each meeting
will be made a part of the Administrative Record.
IV. Procedural Determinations
Executive Order 12866
This proposed rule is exempted from review by the Office of
Management and Budget (OMB) under Executive Order 12866 (Regulatory
Planning and Review).
Executive Order 12778
The Department of the Interior has conducted the reviews required
by section 2 of Executive Order 12778 (Civil Justice Reform) and has
determined that, to the extent allowed by law, this rule meets the
applicable standards of subsections (a) and (b) of that section.
However, these standards are not applicable to the actual language of
State regulatory programs and program amendments since each such
program is drafted and promulgated by a specific State, not by OSM.
Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 30
CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State
regulatory programs and program amendments submitted by the States must
be based solely on a determination of whether the submittal is
consistent with SMCRA and its implementing Federal regulations and
whether the other requirements of 30 CFR Parts 730, 731, and 732 have
been met.
National Environmental Policy Act
No environmental impact statement is required for this rule since
section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency
decisions on proposed State regulatory program provisions do not
constitute major Federal actions within the meaning of section
102(2)(C) of the National Environmental Policy Act (42 U.S.C.
4332(2)(C)).
Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by OMB under the Paperwork Reduction Act (44 U.S.C.
3507 et seq.).
Regulatory Flexibility Act
The Department of the Interior has determined that this rule will
not have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The State submittal which is the subject of this rule is based upon
counterpart Federal regulations for which an economic analysis was
prepared and certification made that such regulations would not have a
significant economic effect upon a substantial number of small
entities. Accordingly, this rule will ensure that existing requirements
previously promulgated by OSM will be implemented by the State. In
making the determination as to whether this rule would have a
significant economic impact, the Department relied upon the data and
assumptions for the counterpart Federal regulations.
List of Subjects in 30 CFR Part 913
Intergovernmental relations, Surface mining, Underground mining.
Dated: November 20, 1995.
Brent Wahlquist,
Regional Director, Mid-Continent Regional Coordinating Center.
[FR Doc. 95-29509 Filed 12-4-95; 8:45 am]
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