issue-1995-12-14•Federal Register proposed rules — 1995-12-14
Federal Register proposed rules — 1995-12-14
issue-1995-12-14Federal Register proposed rules — 1995-12-14Proposed 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. 95-50469 Defense Federal Acquisition Regulation Supplement; Small Disadvantaged Business Concerns
[Federal Register Volume 60, Number 240 (Thursday, December 14, 1995)]
[Proposed Rules]
[Pages 64135-64138]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-50469]
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DEPARTMENT OF DEFENSE
48 CFR Parts 215, 219, 236, 242, 252, and 253
[DFARS Case 95-D039]
Defense Federal Acquisition Regulation Supplement; Small
Disadvantaged Business Concerns
AGENCY: Department of Defense (DoD).
ACTION: Proposed rule with request for comments.
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SUMMARY: The Department of Defense has suspended the sections of the
Defense Acquisition Regulation Supplement (DFARS) that prescribe the
set-aside of acquisitions for small disadvantaged businesses (SDBs).
The Department of Defense is proposing to amend the DFARS to implement
initiatives designed to limit the adverse impact of the suspension.
This proposal is an initial response to the suspension. The efforts of
a government-wide group to reform affirmative action programs continue.
It is expected that further proposals will be published for comment in
the near future. This action was reviewed by the Office of Management
and Budget under Executive Order 12866.
DATES: Comment Date: Comments on the proposed rule should be submitted
in writing to the address below on or before February 12, 1996, to be
considered in the formulation of the final rule.
ADDRESSES: Interested parties should submit written comments to:
Defense Acquisition Regulations Council, Attn: Ms. Susan Schneider,
PDUSD(A&T)DP(DAR), IMD 3D139, 3062 Defense Pentagon, Washington, DC
20301-3062. Telefax number (703) 602-0350. Please cite DFARS Case 95-
D039 in all correspondence related to this issue.
FOR FURTHER INFORMATION CONTACT:
Ms. Susan Schneider, (703) 602-0131.
SUPPLEMENTARY INFORMATION:
A. Background
This proposed rule amends the Defense Federal Acquisition
Regulation Supplement (DFARS) to implement initiatives designed to
facilitate awards to SDBs while taking account of the Supreme Court's
decision in Adarand Constructors, Inc. vs. Pena, 63 U.S.L.W. 4523 (U.S.
June 12, 1995).
B. Regulatory Flexibility Act
This proposed rule may have a significant economic impact on a
substantial number of small entities within the meaning of the
Regulatory Flexibility Act, 5 U.S.C. 601 et seq. An Initial Regulatory
Flexibility Analysis (IRFA) has been prepared and may be obtained from
the address specified herein. A copy of the IRFA has been submitted to
the Chief Counsel for Advocacy of the Small Business Administration.
Comments are invited from small businesses and other interested
parties. Comments from small entities concerning the affected DFARS
subparts will be considered in accordance with Section 610 of the
Regulatory Flexibility Act. Such comments must be submitted separately
and cite DFARS Case 95-D039 in correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (Pub. L. 104-13) applies
because the proposed rule contains a reporting and recordkeeping
requirement. The necessary request for approval of the information
collection requirement has been submitted to the Office of
[[Page 64136]]
Management and Budget under Section 3507(d) of the Act.
1. Title for the collection of information, applicable forms,
applicable OMB controls number, and type of request.
Approval of the information collection requirement in DFARS
252.219-7003(g) has been requested as a new clearance, ``Small, Small
Disadvantaged and Women-Owned Small Business Subcontracting Plan (DoD
Contracts).''
2. Summary of information collection.
DFARS 219.704(a)(4) with its corresponding clause coverage at
252.219-7003(g) adds a notification requirement for contractors that
have identified small, small disadvantaged or women-owned small
businesses in subcontracting plans. Firms are to notify the
administrative contracting officer of any substitutions of firms that
are not small, small disadvantaged, or women-owned small businesses for
the firms listed in the subcontracting plan. Notifications shall be in
writing and shall occur within a reasonable period of time after award
of the subcontract. Contractor specified formats shall be acceptable.
3. Needs and Uses.
Information is collected on an occasional basis as the need arises
to keep the administrative contracting officer apprised of a
contractor's compliance with approved subcontracting plans. Under the
current procedure, the prime contractor proposes, and the contracting
officer negotiates, an approved subcontracting plan. Consistent with 10
U.S.C. 2323, these subcontracting plans are evaluated as part of source
selection. Under DFARS 215.605, criteria for proposal evaluation may
include the extent to which small or small disadvantaged businesses are
specifically identified in proposals (expected to be expanded to
include women-owned small businesses in a separate DFARS case). Under
the proposed rule, when an evaluation includes this criteria, the
small, small disadvantaged, or women-owned small businesses considered
in the evaluation shall be listed in any subcontracting plan submitted
pursuant to FAR 52.219-9. The current procedures do not explicitly
provide a vehicle to determine if those small, small disadvantaged or
women-owned small business firms which have been identified as
subcontractors are actually awarded subcontracts. Small firms have
repeatedly raised the issue that prime contractors do not follow
through on subcontracting plans as proposed and evaluated. Notification
is required for DoD to assess compliance with approved subcontracting
plans. Under the proposed rule at DFARS 242.1503, past performance
evaluations for previously awarded contracts should consider any
notifications under the proposed DFARS 252.219-7003(g).
4. Frequency. On Occasion.
5. Estimate of total annual reporting and recordkeeping burden.
Number or respondents: 41.
Annual responses: 41.
Annual burden hours: 41.
We estimate that 30 percent (1,650) of the total estimated number
of subcontracting plans (5,500) include specific names of small
businesses, small disadvantaged businesses, and women-owned small
businesses. We estimate that substitution occurs in 10 percent (165) of
those plans. Since subcontracting plans typically address several years
of contract effort, we estimate that 25 percent (41) of the
substitutions will occur on an annual basis.
6. Comments. Written comments to OMB, citing DFARS Case 95-D039,
are invited. Particular comments are solicited on:
a. Whether the proposed collection of information is necessary for
the proper performance of the functions of the agency, including
whether the information shall have practical utility;
b. The accuracy of the agency's estimate of the burden of the
proposed collection of information, including the validity of the
methodology and assumptions used;
c. Ways to enhance the quality, utility, and clarity of the
information to be collected; and
d. Ways to minimize the burden of the collection of information on
respondents.
List of Subjects in 48 CFR Parts 215, 219, 236, 242, 252, and 253
Government procurement.
Michele P. Peterson,
Executive Editor, Defense Acquisition Regulations Council.
Therefore, 48 CFR Parts 215, 219, 236, 242, 252, and 253 are
proposed to be amended as follows:
1. The authority citation for 48 CFR Parts 215, 219, 236, 242, 252
and 253 continues to read as follows:
Authority: 41 U.S.C. 421 and 48 CFR Chapter 1.
PART 215--CONTRACTING BY NEGOTIATION
2. Section 215.605 is amended by revising paragraph (b)(ii)(E) and
by adding paragraph (b)(iv) to read as follows:
215.605 Evaluation factors.
(b) * * *
(ii) * * *
(E) When not otherwise required by 215.608(a)(2), prior performance
of the offerors in complying with requirements of the clause at FAR
52.219-8, Utilization of Small, Small Disadvantaged and Women-Owned
Small Business Concerns, and 52.219-9, Small, Small Disadvantaged and
Women-Owned Small Business Subcontracting Plan; and
* * * * *
(iv) When an evaluation includes the criterion at (b)(ii)(A), the
small, small disadvantaged, or women-owned small businesses considered
in the evaluation shall be listed in any subcontracting plan submitted
pursuant to FAR 52.219-9 to facilitate compliance with 252.219-7003(g).
* * * * *
3. Section 215.608 is amended by redesignating existing paragraph
(a) as paragraph (a)(1) and by adding paragraph (a)(2) to read as
follows:
215.608 Proposal evaluation.
(a) * * *
(2) When a past performance evaluation is required by FAR 15.605
and the solicitation includes the clause at FAR 52.219-8, Utilization
of Small, Small Disadvantaged and Women-Owned Small Business Concerns,
the evaluation shall include the past performance of offerors in
complying with requirements of that clause. When a past performance
evaluation is required by FAR 15.605, and the solicitation includes the
clause at 52.219-9, Small, Small Disadvantaged and Women-Owned Small
Business Subcontracting Plan, the evaluation shall include the past
performance of offerors in complying with requirements of that clause.
* * * * *
PART 219--SMALL BUSINESS PROGRAMS
4. The heading of Part 219 is revised to read as set forth above.
5. Section 219.704 is amended by adding paragraph (a)(4) to read as
follows:
219.704 Subcontracting plan requirements.
(a) * * *
(4) In those subcontracting plans which specifically identify
small, small disadvantaged, and women-owned small businesses, prime
contractors shall notify the administrative contracting officer of any
substitutions of firms that are not small, small
[[Page 64137]]
disadvantaged, or women-owned small businesses for the firms listed in
the subcontracting plan. Notifications shall be in writing and shall
occur within a reasonable period of time after award of the
subcontract. Contractor specified formats shall be acceptable.
6. Section 219.1006 is amended by revising paragraph (b)(1)(B) to
read as follows:
219.1006 Procedures.
(b) * * *
(1) * * *
(B) The evaluation preference at 219.70 shall not be used. However,
note the test program at 219.72 for construction acquisitions.
* * * * *
7. Section 219.7001 is amended by revising paragraph (a) to read as
follows:
219.7001 Applicability.
(a) The evaluation preference shall be used in competitive
acquisitions except as provided in paragraph (b) of this section and in
219.1006(b)(1)(B).
* * * * *
8. Subpart 219.72 is added to read as follows:
219.72--Evaluation Preference for Small Disadvantaged Business (SDB)
Concerns in Construction Acquisitions--Test Program
Sec.
219.7200 Policy.
219.7201 Administration of the Test Program.
219.7202 Applicability.
219.7203 Procedures.
219.7204 Contract Clause.
219.72--Evaluation Preference for Small Disadvantaged Business
(SDB) Concerns in Construction Acquisitions--Test Program
219.7200 Policy.
DoD policy is to ensure that, during this test program, offers from
small disadvantaged business (SDB) concerns shall be given an
evaluation preference in construction acquisitions.
219.7201 Administration of the test program.
The test program will be conducted over an eighteen-month period.
The test program will be conducted by all DoD contracting activities
that award construction contracts. The focal point for the test program
is the Director, Small and Disadvantaged Business Utilization, Office
of the Under Secretary of Defense for Acquisition and Technology
(Director, SADBU). Fourteen months after the initiation of this test
program, the military departments and defense agencies shall submit a
status report to the Director, SADBU. This report shall specify the
impact of the evaluation preference over the first twelve months of the
test program, and shall provide recommendations with respect to
continuation and/or modification of the evaluation preference.
219.7202 Applicability.
(a) The evaluation preference shall be used in competitive
acquisitions for construction (see definition in FAR subpart 36.1) when
work is to be performed inside the United States, its territories or
possessions, Puerto Rico, the Trust Territory of the Pacific Islands,
or the District of Columbia.
(b) Do not use the evaluation preference in acquisitions which--
(1) Are less than or equal to the simplified acquisition threshold;
(2) Are set aside for small businesses; or
(3) Are awarded under section 8(a) procedures.
(c) The evaluation preference need not be applied when the head of
the contracting activity expects that--
(1) The contracting activity will meet its goal for SDB concerns,
established pursuant to 10 U.S.C. 2323, during the current fiscal year,
without this preference;
(2) The evaluation preference is having a disproportionate impact
on non-SDB concerns; or
(3) The preference is otherwise not in the best interest of the
Government.
219.7203 Procedures.
(a) Solicitations that require bonding shall require offerors to
separately state bond costs in the offer. Bond costs include the costs
of bid, performance, and payment bonds.
(b) Evaluate total offers. If the apparently successful offeror is
an SDB concern, no further preference-based evaluation is required
under this subpart.
(c) If the apparently successful offeror is not an SDB concern,
evaluate offers excluding bond costs. If, after excluding bond costs,
the apparently successful offeror is an SDB concern, add bond costs
back to all offers, and give offers from SDB concerns a preference in
evaluation by adding a factor of 10 percent to the total price of all
offers, except--
(1) Offers from SDBs which have not waived the evaluation
preference; and
(2) Offers from historically black colleges and universities or
minority institutions, which have not waived the evaluation preference.
(d) When using the procedures in 36.303-70, Additive or deductive
items, the evaluation preference in this subpart shall be applied.
219.7204 Contract clause.
Use the clause at 252.219-7010, Notice of Evaluation Preference for
Small Disadvantaged Business Concerns--Construction Acquisitions--Test
Program, in all solicitations--
(1) That involve the evaluation preference; and
(2) Where work is to be performed inside the U.S., its territories
or possession, Puerto Rico, the Trust Territory of the Pacific Islands,
or the District of Columbia.
PART 236--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS
9. Section 236.303-70 is amended by revising the introductory text
of paragraph (c)(2) to read as follows:
236.303-70 Additive or deductive items.
* * * * *
(c) * * *
(2) Evaluate all bids, including those using the procedures in
219.703, on the basis of the same additive or deductive bid items.
* * * * *
PART 242--CONTRACT ADMINISTRATION
10. Subpart 242.15 is added to read as follows:
Subpart 242.15--Contractor Performance Information
Sec.
242.1503 Procedures.
242.1503 Procedures.
Evaluations should consider any notifications submitted under
paragraph (g) of the clause at 252.219-7003, Small, Small Disadvantaged
and Women-Owned Small Business Subcontracting Plan (DoD Contracts).
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
11. Section 252.219-7003 is amended by adding paragraph (g) to read
as follows:
252.219-7003 Small, small disadvantaged and women-owned small business
subcontracting plan (DoD contracts).
* * * * *
(g) In those subcontracting plans which specifically identify
small, small disadvantaged, and women-owned small businesses, the
Contractor shall notify the Administrative Contracting Officer of any
substitutions of firms that are not small, small disadvantaged, or
women-owned small businesses for the firms listed in the subcontracting
plan. Notifications shall be in writing and
[[Page 64138]]
shall occur within a reasonable period of time after award of the
subcontract. Contractor specified formats shall be acceptable.
12. Section 252.219-7010 is added to read as follows:
252.219-7010 Notice of evaluation preference for small disadvantaged
business concerns--construction acquisitions--Test program.
As prescribed in 219.7204, use the following clause:
Notice of Evaluation Preference for Small Disadvantaged Business
Concerns--Construction Acquisitions--Test Program (Date)
(a) Definitions.
As used in this clause--
``Historically black colleges and universities (HBCUs),'' means
institutions determined by the Secretary of Education to meet the
requirements of 34 CFR 608.2. The term also means any nonprofit
research institution that was an integral part of such a college or
university before November 14, 1986. ``Minority institutions,''
means institutions meeting the requirements of paragraphs (3), (4),
and (5) of Section 1046(3) of the Higher Education Act of 1965 (20
U.S.C. 1135d-5(3)). The term also includes Hispanic-serving
institutions as defined in Section 316(b)(1) of such Act (20 U.S.C.
1059c(b)(1)).
``Small disadvantaged business (SDB) concern,'' means a small
business concern, owned and controlled by individuals who are both
socially and economically disadvantaged, as defined by the Small
Business Administration at 13 CFR part 124, the majority of earnings
of which directly accrue to such individuals. This term also means a
small business concern owned and controlled by an economically
disadvantaged Indian tribe or Native Hawaiian organization which
meets the requirements of 13 CFR 124.112 or 13 CFR 124.113,
respectively.
(b) Evaluation preference. (1) Offerors shall separately state
bond costs in the offer. Bond costs include the costs of bid,
performance, and payment bonds.
(2) Offers will be evaluated initially based on their total
prices. If the apparently successful offeror is an SDB concern, no
further preference based evaluation will be conducted.
(3) If the apparently successful offeror is not an SDB concern,
offers will be evaluated based on their prices excluding bond costs.
If, after excluding bond costs, the apparently successful offeror is
an SDB concern, bond costs will be added back to all offers, and
offers from SDB concerns will be given a preference in evaluation by
adding a factor of ten percent to the total price of all offers,
except--
(i) Offers from SDBs which have not waived the evaluation
preference; or
(ii) Offers from HBCUs or minority institutions, which have not
waived the evaluation preference.
(c) Waiver of evaluation preference. A small disadvantaged
business, historically black college or university, or minority
institution offeror may elect to waive the preference. The
agreements in paragraph (d) of this clause do not apply to offers
which waive the preference.
______________Offeror elects to waive the preference.
(d) Agreements. A small disadvantaged business concern,
historically black college or university, or minority institution
offeror, which did not waive the preference, agrees that in
performance of the contract, in the case of a contract for--
(i) General construction, at least 15 percent of the cost of the
contract, excluding the cost of materials, will be performed by
employees of the concern.
(ii) Construction by special trade contractors, at least 25
percent of the cost of the contract, excluding the cost of
materials, will be performed by employees of the concern.
(End of clause)
PART 253--FORMS
13. Section 253.204-70 is amended by revising paragraph (e)(3) to
read as follows:
253.204-70 DD Form 350, Individual Contracting Action Report.
* * * * *
(e) * * *
(3) Block E3, Next Low Offer.
(i) Complete Block E3 only if Block E2 is completed, or the
evaluation preference for small disadvantaged business concerns in
construction acquisitions set forth at 219.72 is applied. Otherwise,
leave Block E3 blank.
(ii) If Block E2 is completed, enter the offered price from the
small business firm that would have been the low offeror if qualified
nonprofit agencies employing people who are blind or severely disabled
had not participated in the acquisition. If the evaluation preference
for small disadvantaged business concerns in construction acquisitions
set forth at 219.72 is applied, enter the offered price from the non-
SDB concern that would have been the successful offeror if the
evaluation preference had not been applied. Enter the amount in whole
dollars.
* * * * *
[FR Doc. 95-50469 Filed 12-13-95; 8:45 am]
BILLING CODE 5000-04-M
Complete official Federal Register PDF
FR Doc. 95-30509 State Implementation Plan: Alaska; Withdrawal
[Federal Register Volume 60, Number 240 (Thursday, December 14, 1995)]
[Proposed Rules]
[Page 64135]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-30509]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[AK6-1-6587; FRL-5345-7]
State Implementation Plan: Alaska; Withdrawal
AGENCY: Environmental Protection Agency (EPA).
ACTION: Withdrawal.
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SUMMARY: Due to an adverse comment, EPA is withdrawing the effective
date for the approval of a moderate nonattainment area state
implementation plan revision for Anchorage, Alaska, submitted by the
Alaska Department of Environmental Conservation for the purpose of
implementing an oxygenated gasoline program in the Municipality of
Anchorage. The original action was published in the Federal Register on
October 24, 1995, as a direct final rule. 60 FR 54435. As stated in the
Federal Register notice, if adverse or critical comments were received
by November 24, 1995, the effective date would be delayed and timely
notice would be published in the Federal Register. Therefore, due to
receiving an adverse comment within the comment period, EPA is
withdrawing the final rule and will address the comments received in a
subsequent final rule based on the proposed rule also published on
October 24, 1995. 60 FR 54465. EPA will not institute a second comment
period on this document.
DATES: This withdrawal notice is effective December 14, 1995.
FOR FURTHER INFORMATION CONTACT: Montel Livingston, Office of Air (AT-
082), EPA, Region 10, 1200 6th Avenue, Seattle, WA 98101, (206-553-
0180).
SUPPLEMENTARY INFORMATION: See the information provided in the direct
final rule located in the final rules section of the October 24, 1995
Federal Register, and in the short informational notice located in the
proposed rule section of the October 24, 1995 Federal Register.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Hydrocarbons, Incorporation by reference, Ozone, and Volatile organic
compounds.
Dated: December 7, 1995.
Chuck Clarke,
Regional Administrator.
[FR Doc. 95-30509 Filed 12-13-95; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 95-30501 Weekly Allocation of NAFTA Tariff-Rate Quotas for Fresh Tomatoes
[Federal Register Volume 60, Number 240 (Thursday, December 14, 1995)]
[Proposed Rules]
[Pages 64131-64132]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-30501]
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OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE
15 CFR Part 2013
Weekly Allocation of NAFTA Tariff-Rate Quotas for Fresh Tomatoes
AGENCY: Office of the Untied States Trade Representative.
ACTION: Advance notice of proposed rulemaking.
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SUMMARY: The Office of the United States Trade Representative is
considering a proposal to allocate on a weekly basis the seasonal
tariff-rate quotas for fresh tomatoes which were established under the
North American Free Trade Agreement. Public comment is invited.
DATES: Written comments must be received on or before March 13, 1996.
ADDRESSES: Comments should be mailed to Leonard W. Condon, Deputy
Assistant United States Trade Representative for Agricultural Affairs,
Office of the United States Trade Representative, 600 17th Street NW.,
Washington, DC 20508. Envelopes should be marked: ``Tomato ANPR''.
FOR FURTHER INFORMATION CONTACT:
Leonard W. Condon (202) 395-9564.
SUPPLEMENTARY INFORMATION: Article 302(4) of the North American Free
Trade Agreement (NAFTA) provides that each NAFTA party `` * * * may
adopt or maintain import measures to allocate in-quota imports made
pursuant to a tariff rate quota set out in Annex 302.2, provided that
such measures do not have trade restrictive effects on imports
additional to those caused by the imposition of the tariff rate
quota.''
Section 321(c) of the North American Free Trade Agreement
Implementation Act (19 U.S.C. 3391(c)) provides that in ``implementing
the tariff rate quotas set out in the United States Schedule to Annex
302.2 of the Agreement, the President shall take such action as may be
necessary to ensure that imports of agricultural goods do not disrupt
the orderly marketing of commodities in the
[[Page 64132]]
United States.'' The President has delegated this authority with
respect to the tomato tariff-rate quotas (TRQ's) to the United States
Trade Representative (USTR).
Concern has been expressed about the impact on domestic markets of
surges in imports of Mexican tomatoes. Allocation of the existing
seasonal TRQ's on a weekly basis is an option which could address that
concern. USTR is considering that option and seeking public comment.
Mexico typically supplies over 90 percent of U.S. fresh tomato
imports. During the winter months, more than 25 percent of the fresh
tomatoes consumed in the United States are grown in Mexico.
In accordance with terms of the NAFTA, this proposal would affect
only tomatoes imported into the United States from Mexico during the
periods March 1 through July 14 through the year 2002 and November 15
through February until February 2003. Tomatoes entered from Mexico
eligible for the in-quota tariff would be charged the declining NAFTA
rate. All other Mexican tomatoes would be charged the most favored
nation rate.
Tariffs on tomatoes imported from Mexico during the period July 15
through November 14 are being phased out over five years. No TRQ's
apply from July 15 through November 14. Entries during this period
would be unaffected.
Allocation Methodology: One method for allocating the in-quota
quantity for each of the tariff-rate quotas would be to distribute the
specified quantity evenly on a weekly basis throughout each TRQ period.
Since the in-quota quantity for each TRQ increases each year, an annual
re-calculation of the weekly TRQ's would be necessary.
The following is an example of how the in-quota quantity could be
distributed on a weekly basis:
According to U.S. Note 10 to subchapter VI of chapter 99 of the
HTS, for the period November 15, 1995 through February 29, 1996, the
in-quota quantity is 177,469,000 kilograms (kg.).
The seasonal TRQ would be divided evenly into weekly allocations.
The period from November 15, 1995, through February 29, 1996, includes
14 complete weeks and portions of two weeks at the beginning and end of
the period. To calculate the weekly allocation for the season, the
total seasonal TRQ of 177,469,000 kg would be divided by 107, the total
number of days in the period. A week would be defined as a seven-day
period running from Monday through Sunday. The daily amount would be
multiplied times 7 to establish an allocation for each of 14 full
weeks. For the period November 15 through November 19, the daily amount
would be multiplied by 5 and for the February 26 through February 29
period, the daily amount would be multiplied by 4. This establishes a
weekly allocation of 11,610,121 kg. for each of the 14 full weeks, an
allocation of 8,292,248 kg. for the November 15-18, 1995, period, and
6,634,358 kg. for the February 26-29, 1996, period.
For the period November 15, 1995, through February 29, 1996, the
tariff on tomatoes imported form Mexico within the weekly quotas would
be 2.6 cents per kilogram. The tariff on any amounts which exceed the
weekly quotas would be 3.2 cents per kilogram.
USTR is particularly interested in comments from the public which
address the following points:
(a) To what extent do surges in imports of Mexican tomatoes
disrupt, or threaten to disrupt, the U.S. market for fresh tomatoes?
(b) Would a weekly allocation of the current seasonal TRQ's be an
effective mechanism for moderating any disruption that might otherwise
occur?
(c) If the seasonal TRQ is to be sub-divided into weekly TRQ's, how
should it be equitably allocated among the weeks?
(d) Are there alternative mechanisms available to cushion the
impact of surges in imports of Mexican tomatoes that could be more
effective, but still consistent with U.S. obligations under NAFTA?
Written Comments
Comments on the above Advance Notice of Proposed Rulemaking are
invited. Written comments should be directed to Leonard W. Condon,
Deputy Assistant United States Trade Representative for Agricultural
Affairs, Office of the United States Trade Representative, Washington,
DC, 20508. Comments, with two copies, should be received by March 13,
1996.
Michael Kantor,
United States Trade Representative.
[FR Doc. 95-30501 Filed 12-13-95; 8:45 am]
BILLING CODE 3190-01-M
Complete official Federal Register PDF
FR Doc. 95-30470 Defense Federal Acquisition Regulation Supplement; Personal Services Compensation
[Federal Register Volume 60, Number 240 (Thursday, December 14, 1995)] [Proposed Rules] [Page 64138] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 95-30470] ----------------------------------------------------------------------- DEPARTMENT OF DEFENSE 48 CFR Part 242 [DFARS Case 91-085D] Defense Federal Acquisition Regulation Supplement; Personal Services Compensation AGENCY: Department of Defense (DoD). ACTION: Proposed rule; withdrawal. ----------------------------------------------------------------------- SUMMARY: The Department of Defense has decided to withdraw a proposed rule published on December 6, 1994 (59 FR 62704). The rule proposed revisions to the Defense Federal Acquisition Regulation Supplement (DFARS) to establish a dollar threshold for DoD contractors for application of the Federal Acquisition Regulation (FAR) requirements for contractor compensation system reviews. After review of public comments, DoD has determined the proposed DFARS revisions are unnecessary. FOR FURTHER INFORMATION CONTACT: Defense Acquisition Regulations Council, Attn: Ms. Sandra G. Haberlin, PDUSD (A&T)DP(DAR), IMD 3D139, 3062 Defense Pentagon, Washington, DC 20301-3062, (703) 602-0131. Michele P. Peterson. Executive Editor, Defense Acquisition Regulations Council. [FR Doc. 95-30470 Filed 12-13-95; 8:45 am] BILLING CODE 5000-04-M
Complete official Federal Register PDF
FR Doc. 95-30445 Pilot, Flight Instructor, Ground Instructor, and Pilot School Certification Rules
[Federal Register Volume 60, Number 240 (Thursday, December 14, 1995)]
[Proposed Rules]
[Page 64129]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-30445]
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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.
========================================================================
Federal Register / Vol. 60, No. 240 / Thursday, December 14, 1995 /
Proposed Rules
[[Page 64129]]
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Parts 1, 61, 141, 143
[Docket No. 25910; Notice No. 95-11]
RIN 2120-AE71
Pilot, Flight Instructor, Ground Instructor, and Pilot School
Certification Rules
AGENCY: Federal Aviation Administration (FAA).
ACTION: Notice of proposed rulemaking; extension of comment period.
-----------------------------------------------------------------------
SUMMARY: This action extends the comment period on Notice No. 95-11:
Pilot, Flight Instructor, Ground Instructor, and Pilot School
Certification Rules. The comment period is extended from December 11,
1995, to February 12, 1996. This action is in response to a request
from the Helicopter Association International to allow all affected
parties additional time to comment. The extension of the comment period
is justified because of the unusually large size of the proposal and
the numerous technical issues raised.
DATES: The comment period for Notice No. 95-11 is extended until
February 12, 1996.
ADDRESSES: Comments should be mailed in triplicate to: Federal Aviation
Administration, Office of the Chief Counsel (Attention: Rules Docket,
AGC-200), Docket No. 25910, 800 Independence Avenue SW., Washington, DC
20591. Comments on this notice may be examined in room 915G on
weekdays, except on Federal holidays, between 8:30 a.m. and 5:00 p.m.
FOR FURTHER INFORMATION CONTACT:
John Lynch, Certification Branch, AFS-840, General Aviation and
Commercial Division, Flight Standards Service, Federal Aviation
Administration, 800 Independence Avenue SW., Washington, DC 20591,
Telephone: (202) 267-3844.
SUPPLEMENTARY INFORMATION: On August 11, 1995, the Federal Aviation
Administration (FAA) issued Notice No. 95-11: Pilot, Flight Instructor,
Ground Instructor, and Pilot School Certification Rules [60 FR 41160].
Comments to Notice No. 95-11 were to be received on or before December
11, 1995.
By letter dated November 9, 1995, the Helicopter Association
International (HAI) requested that the FAA extend the comment period
for Notice No. 95-11 to March 31, 1996. HAI noted that the proposal
contains a myriad of far-reaching changes, and that the sheer bulk and
detail of those changes warrant more than 120 days to prepare well-
reasoned comments.
Due to the unusually large size of the proposal and the numerous
technical issues raised in the proposal, general aviation groups were
not able to disseminate information to their members in a timely
manner. Therefore, the FAA has determined that a 2-month extension of
the comment period is in the public interest.
In order to give HAI members and other interested parties
sufficient time to comment, the FAA has determined that it is in the
public interest to extend the comment period. However, other commenters
have urged the FAA to finalize certain areas of the proposal as soon as
possible. In an effort to provide interested parties sufficient time to
comment, while at the same time ensuring the final rule is published in
a punctual manner, the FAA will extend the comment period until
February 12, 1996.
Issued in Washington, DC on December 8, 1995.
William J. White,
Acting Director, Flight Standards Service.
[FR Doc. 95-30445 Filed 12-11-95; 12:34 pm]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 95-30422 Airworthiness Directives; Robinson Helicopter Company Model R22 Helicopters
[Federal Register Volume 60, Number 240 (Thursday, December 14, 1995)]
[Proposed Rules]
[Pages 64129-64131]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-30422]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 95-SW-27-AD]
Airworthiness Directives; Robinson Helicopter Company Model R22
Helicopters
AGENCY: Federal Aviation Administration, DOT.
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: This document proposes the supersedure of an existing
airworthiness directive (AD), applicable to Robinson Helicopter Company
(Robinson) Model R22 helicopters, that currently requires installing a
low-rotor RPM caution light and resetting the low-RPM warning unit to
activate the warning horn and caution light at 94% to 96% revolutions-
per-minute (RPM). This action would require installation of an improved
throttle governor; an adjustment to the warning horn threshold to
increase the RPM at which the warning horn and caution light activate;
and, revisions to the R22 Rotorcraft Flight Manual that prohibit flight
with the improved throttle governor inoperative, except in certain
situations. This proposal is prompted by an FAA Technical Panel review
of Model R22 accident history data which revealed that main rotor (M/R)
blade stall at abnormally low M/R RPM resulted in accidents. The
actions specified by the proposed AD are intended to minimize the
possibility of pilot mismanagement of the M/R RPM, which could result
in unrecoverable M/R blade stall and subsequent loss of control of the
helicopter.
DATES: Comments must be received by Janaury 29, 1996.
ADDRESSES: Submit comments in triplicate to the Federal Aviation
Administration (FAA), Office of the Assistant Chief Counsel, Attention:
Rules Docket No. 95-SW-27-AD, 2601 Meacham Blvd., Room 663, Fort Worth,
Texas 76137. Comments may be inspected at this location between 9:00
a.m. and 3:00 p.m., Monday through Friday, except Federal holidays.
FOR FURTHER INFORMATION CONTACT: Mr. James Wang, Helicopter Program
Manager, FAA, Los Angeles Aircraft Certification Office, 3960 Paramount
Blvd., Lakewood, California 90712-4137, telephone (310) 627-5303; fax
(310) 627-5210.
SUPPLEMENTARY INFORMATION:
Comments Invited
Interested persons are invited to participate in the making of the
proposed rule by submitting such written data, views, or arguments as
they may desire. Communications should identify the Rules Docket number
and be submitted in triplicate to the address specified above. All
communications received on or before the closing date for comments,
specified
[[Page 64130]]
above, will be considered before taking action on the proposed rule.
The proposals contained in this notice may be changed in light of the
comments received.
Comments are specifically invited on the overall regulatory,
economic, environmental, and energy aspects of the proposed rule. All
comments submitted will be available, both before and after the closing
date for comments, in the Rules Docket for examination by interested
persons. A report summarizing each FAA-public contact concerned with
the substance of this proposal will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments
submitted in response to this notice must submit a self-addressed,
stamped postcard on which the following statement is made: ``Comments
to Docket No. 95-SW-27-AD.'' The postcard will be date stamped and
returned to the commenter.
Availability of NPRMs
Any person may obtain a copy of this NPRM by submitting a request
to the FAA, Office of the Assistant Chief Counsel, Attention: Rules
Docket No. 95-SW-27-AD, 2601 Meacham Blvd., Room 663, Fort Worth, Texas
76137.
Discussion
On April 28, 1983, the FAA issued AD 82-23-51, Amendment 39-4645
(48 FR 21894, May 16, 1983), to require installing a low-rotor RPM
caution light and resetting the low-RPM warning unit to activate the
warning horn and caution light at 94% to 96% RPM. That action was
prompted by several accidents involving M/R blades striking the
helicopter tailboom in flight. Some tailboom strikes have been
attributed to M/R blade stall at abnormally low RPM. The requirements
of that AD are intended to provide early detection of low-rotor RPM to
minimize the possibility of severe M/R blade flapping, which could
result in the M/R blades striking the tailboom and subsequent loss of
control of the helicopter.
Since the issuance of that AD, an FAA Technical Panel review of
Model R22 helicopter accident history data revealed that some accidents
resulted from pilot mismanagement of the M/R RPM.
One of the Technical Panel's recommendations was for the
manufacturer to configure the Model R22 with an improved throttle
governor. Robinson has incorporated the improved throttle governor on
new production helicopters, and has made the improved throttle governor
available as a retrofit kit for all Model R22 helicopters.
The FAA agrees with the Technical Panel's recommendation and has
determined that an improved throttle governor should be used to
maintain M/R RPM, thereby decreasing the possibility of M/R blade stall
resulting in the M/R blades striking the helicopter tailboom in flight.
The improved throttle governor will also reduce pilot workload,
allowing the pilot to focus more attention on other aspects of flying
the aircraft and avoiding possible obstructions. There are four types
of governors currently available for installation on the Model R22
helicopters. Three are throttle/collective governor models that will
automatically make throttle (RPM) and collective stick position (pitch)
corrections. The fourth governor, which is the improved throttle
governor, makes only throttle (RPM) corrections and significantly
improves the ability to maintain M/R speed control. Some operators find
throttle/collective governor corrections of collective stick position
to be distracting and routinely fly with the throttle/collective
governor selected off, thus defeating the governor's purpose of tighter
rotor RPM control. While other operators find these throttle/collective
governor collective stick movements acceptable, the FAA is concerned
about the different operating characteristics and associated safety
implications of a mixed fleet of throttle/collective and improved
throttle governors, particularly in the training environment. The
differences in flight operating characteristics between the throttle/
collective governor and the improved throttle governor are significant
and could cause confusion and an unsafe condition for students and low-
time pilots when changing between Model R22 helicopters. The FAA
therefore proposes to require the installation and use of the improved
throttle governor to enhance the ability to maintain M/R speed control
on all Model R22 helicopters, to eliminate possibly distracting
collective stick position corrections on those aircraft currently
equipped with the throttle/collective governor, and to maintain
consistent flight operating characteristics of the Model R22 fleet.
A second recommendation made by the Technical Panel was to increase
the RPM at which the warning horn and caution light activate, thereby
allowing additional time for the initiation of corrective action
between the activation of the warning horn and caution light and the
onset of M/R blade stall. The installation of the improved throttle
governor will allow for this increase in the warning threshold, without
unnecessary nuisance activations, due to the governor's ability to
maintain tighter control of the M/R RPM.
Based on these recommendations, Robinson issued Robinson Helicopter
Company R22 Service Bulletin SB-80A, Revised June 8, 1995, which
describes procedures for installation of a KI-67-2 Governor Field
Installation Kit on certain serial-numbered Model R22 helicopters, and
procedures for increasing the RPM threshold at which the warning horn
and caution light activate to avoid inadvertent low M/R RPM. This
condition, if not corrected, could result in unrecoverable M/R blade
stall and a subsequent loss of control of the helicopter. Since the
issuance of this service bulletin, Robinson has manufactured a KI-67-3
Governor Upgrade Kit to incorporate the improved throttle governor on
helicopters that have a throttle/collective governor currently
installed.
Since an unsafe condition has been identified that is likely to
exist or develop on other Robinson Model R22 helicopters of the same
type design, the proposed AD would require: the installation of an
improved throttle governor on certain Model R22 helicopters not
currently equipped with a governor, or the upgrade to the improved
throttle governor on those Model R22 helicopters currently equipped
with a throttle/collective governor; an adjustment to the warning horn
and caution light threshold from 95 1% RPM to between 96%
and 97% RPM to increase the RPM at which the warning activates; and
revisions to the Robinson Helicopter Company R22 Rotorcraft Flight
Manual prohibiting flight with the governor selected off, with
exceptions for system malfunction and emergency procedures training
with an instructor pilot.
The FAA estimates that 1,014 helicopters of U.S. registry would be
affected by this proposed AD, that it would take approximately 8 work
hours to install the improved throttle governor, or 7 hours to upgrade
the throttle/collective governor, and approximately 0.2 work hours to
accomplish the adjustment of the light/warning horn RPM, and that the
average labor rate is $60 per work hour. Required parts would cost
approximately $2,150 per helicopter to install the improved throttle
governor, or approximately $500 for upgrading the throttle/collective
governor per helicopter. Based on these figures, the total cost impact
of the proposed AD on U.S. operators is estimated to be $2,678,988.
This cost estimate assumes that no helicopters are currently
[[Page 64131]]
equipped with a governor and all will need the improved throttle
governor installed.
The regulations proposed herein would not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this
proposal would not have sufficient federalism implications to warrant
the preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this proposed
regulation (1) is not a ``significant regulatory action'' under
Executive Order 12866; (2) is not a ``significant rule'' under the DOT
Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
and (3) if promulgated, will not have a significant economic impact,
positive or negative, on a substantial number of small entities under
the criteria of the Regulatory Flexibility Act. A copy of the draft
regulatory evaluation prepared for this action is contained in the
Rules Docket. A copy of it may be obtained by contacting the Rules
Docket at the location provided under the caption ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Safety.
The Proposed Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration proposes to amend
part 39 of the Federal Aviation Regulations (14 CFR part 39) as
follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 USC 106(g), 40101, 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by removing Amendment 39-4645 (48 FR
21894, May 16, 1983), and by adding a new airworthiness directive (AD)
to read as follows:
Robinson Helicopter Company: Docket No. 95-SW-27-AD. Supersedes AD
82-23-51, Amendment 39-4645.
Applicability: Model R22 helicopters, serial numbers (S/N) 0002
to 2537, certificated in any category.
Note 1: This AD applies to each helicopter identified in the
preceding applicability provision, regardless of whether it has been
modified, altered, or repaired in the area subject to the
requirements of this AD. For helicopters that have been modified,
altered, or repaired so that the performance of the requirements of
this AD is affected, the owner/operator must use the authority
provided in paragraph (e) to request approval from the FAA. This
approval may address either no action, if the current configuration
eliminates the unsafe condition, or different actions necessary to
address the unsafe condition described in this AD. Such a request
should include an assessment of the effect of the changed
configuration on the unsafe condition addressed by this AD. In no
case does the presence of any modification, alteration, or repair
remove any helicopter from the applicability of this AD.
Compliance: Required within the next 30 days after the effective
date of this AD, unless accomplished previously.
To minimize the possibility of pilot mismanagement of the main
rotor (M/R) revolutions-per-minute (RPM), which could result in
unrecoverable M/R blade stall and subsequent loss of control of the
helicopter, accomplish the following:
(a) Adjust the A569-1 or -5 low-RPM warning unit so that the
warning horn and caution light activate when the M/R RPM is between
96% and 97% rotor RPM in accordance with the procedures contained in
the Model R22 maintenance manual.
(b) For Model R22 helicopters that do not have a governor
currently installed, install a Robinson Helicopter Company KI-67-2
Governor Field Installation Kit in accordance with the kit
instructions.
(c) For Model R22 helicopters that have a throttle/collective
governor currently installed, upgrade the governor with a Robinson
Helicopter Company KI-67-3 Governor Upgrade Kit in accordance with
the kit instructions.
(d) Upon accomplishment of paragraph (b) or (c) of this AD,
insert pages 2-2 and 2-7 of the FAA-approved Robinson Helicopter
Company R22 Rotorcraft Flight Manual, revised July 6, 1995, into
each Model R22 helicopter's flight manual, and make pen-and-ink
changes to page 2-7 to delete the phrase ``If equipped with RPM
governor,'' and add the phrase ``with an instructor pilot'' so that
the affected limitation will state ``Flight prohibited with governor
selected off, with exceptions for system malfunction and emergency
procedures training with an instructor pilot.'' Also, delete the
phrase ``If not equipped with RPM governor,'' so that the affected
limitation will state ``Maximum power-on RPM required during
takeoff, climb, or level flight below 500 feet AGL or above 5000
feet density altitude.''
(e) An alternative method of compliance or adjustment of the
compliance time that provides an acceptable level of safety may be
used when approved by the Manager, Los Angeles Aircraft
Certification Office, FAA. Operators shall submit their requests
through FAA Principal Maintenance Inspectors, who may concur or
comment and then send it to the Manager, Los Angeles Aircraft
Certification Office.
Note 2: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Los Angeles Aircraft Certification Office.
(f) Special flight permits may be issued in accordance with
Secs. 21.197 and 21.199 of the Federal Aviation Regulations (14 CFR
21.197 and 21.199) to operate the helicopter to a location where the
requirements of this AD can be accomplished.
Issued in Fort Worth, Texas, on December 6, 1995.
Daniel P. Salvano,
Manager, Rotorcraft Directorate, Aircraft Certification Service.
[FR Doc. 95-30422 Filed 12-13-95; 8:45 am]
BILLING CODE 4910-13-U
Complete official Federal Register PDF
FR Doc. 95-30359 Ethics Training for Registrants
[Federal Register Volume 60, Number 240 (Thursday, December 14, 1995)]
[Proposed Rules]
[Pages 64132-64135]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-30359]
=======================================================================
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COMMODITY FUTURES TRADING COMMISSION
17 CFR Part 3
Ethics Training for Registrants
AGENCY: Commodity Futures Trading Commission.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: On July 22, 1994, the Commodity Futures Trading Commission
(Commission) proposed amendments to Rule 3.34, which governs ethics
training for Commission registrants. The Commission has published a
release announcing the adoption of those rule amendments in the Federal
Register on December 13, 1995. The Commission also is proposing to
amend Rule 3.34 to require that persons who seek to provide ethics
training must present satisfactory evidence that they meet a
proficiency testing requirement established by a registered futures
association and possess a minimum of three years of relevant
experience. The Commission is also proposing to amend Rule 3.34 to
eliminate the provision permitting state-accredited entities to provide
ethics training without being subject to the requirements pertaining to
other providers under the rule.
DATES: Comments must be received by January 16, 1996.
ADDRESSES: Comments should be sent to the Office of the Secretariat,
Commodity Futures Trading Commission, 1155 21st Street NW., Washington,
DC 20581 and should refer to ``Ethics Training for Registrants.''
FOR FURTHER INFORMATION CONTACT: Lawrence B. Patent, Associate Chief
Counsel or Myra R. Silberstein, Attorney-Advisor, Division of Trading
and Markets, 1155 21st Street, N.W., Washington, D.C. 20581. Telephone
(202) 418-5450.
SUPPLEMENTARY INFORMATION:
I. Background
Section 210 of the Futures Trading Practices Act of 1992 added a
new paragraph (b) to Section 4p of the Commodity Exchange Act (Act) to
mandate ethics training for persons required to be registered under the
Act.\1\ On April 6, 1993, the Commission adopted Rule 3.34 to implement
this Congressional mandate.\2\ In September, 1993, the Commission
issued a Federal Register release to clarify the procedures to be
followed by persons
[[Page 64133]]
seeking to provide ethics training pursuant to Rule 3.34.\3\
\1\This provision of the Act is codified at 7 U.S.C. 6p(b)
(1994) and states that:
The Commission shall issue regulations to require new
registrants, within 6 months after receiving such registration, to
attend a training session, and all other registrants to attend
periodic training sessions, to ensure that registrants understand
their responsibilities to the public under this Act, including
responsibilities to observe just and equitable principles of trade,
any rule or regulation of the Commission, any rule of any
appropriate contract market, registered futures association, or
other self-regulatory organization, or any other applicable Federal
or state law, rule or regulation.
\2\58 FR 19575, 19584-19587, 19593-19594 (Apr. 15, 1993).
\3\58 FR 47890 (Sept. 13, 1993).
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Rule 3.34 requires natural persons registered under the Act to
attend ethics training to ensure that they understand their
responsibilities to the public under the Act. The required training
must address the requirements of the Act and all rules concerning the
treatment and handling of customer orders and business. Issues to be
addressed may include: honesty, fairness and the interests of customers
and the integrity of the markets; effective supervisory systems and
controls; assessment of financial situations and the investment
experience of customers; disclosure of material information; and
avoidance of conflicts of interest. New registrants must attend ethics
training within six months of being granted registration and every
three years thereafter. The initial training must be at least four
hours in duration; subsequent training must be of at least one hour in
duration. Persons registered when Rule 3.34 became effective on April
26, 1993 were granted until April 26, 1996 to attend an initial
training session, of at least two hours in duration, and must
thereafter attend a one-hour session every three years. Ethics trainers
must maintain records of materials used in such training and of
attendees at such training.
In July 1994, the Commission proposed amendments to Rule 3.34 to
improve the operation of its ethics training program and furnish
additional guidance with respect to the activities of ethics training
providers.4 The Commission has published a release announcing the
adoption of those amendments published in the Federal Register on
December 13, 1995. The amendments adopted will, among other things,
require a person seeking to provide ethics training to certify that he
is not subject to a statutory disqualification from registration under
the Act,5 barred from service on self-regulatory organization
(SRO) governing boards or committees,6 or subject to a pending
proceeding concerning possible violations of the Act or rules or orders
promulgated thereunder.
\4\59 FR 37446 (July 22, 1994).
\5\7 U.S.C. 12a (2) and (3)(1994). The Act specifies several
grounds for disqualification from registration including, among
others, a prior revocation of registration, felony conviction, and
an injunction relating to futures or securities activities.
\6\No person may serve on SRO governing boards or committees
who, among other things, has been found within the prior three years
to have committed a ``disciplinary offense'' or entered into a
settlement agreement with respect to a charge involving a
``disciplinary offense,'' is currently suspended from trading on any
contract market, is suspended or expelled from membership in any
SRO, or is currently subject to an agreement with the Commission or
an SRO not to apply for registration or membership. A ``disciplinary
offense'' for these purposes means any violation of the Act or the
rules promulgated thereunder or SRO rules other than those relating
to: (1) decorum or attire; (2) financial requirements; or (3)
reporting or recordkeeping, unless resulting in fines aggregating
more than $5,000 in a calendar year, provided such SRO rule
violations did not involve fraud, deceit or conversion, or result in
a suspension or expulsion. 17 CFR 1.63 (1995).
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II. Proposed Amendments
A. Proficiency Testing and Minimum Experience Requirements
The Commission is now proposing further amendments to Rule 3.34 to
require any person seeking to provide ethics training to furnish
satisfactory evidence to a registered futures association that he has
met the proficiency testing requirement7 established by a
registered futures association8 pursuant to Section 17(p)(1) of
the Act for the registration of commodity professionals9 and
possesses three years of relevant experience. Currently, the National
Commodity Futures Examination (Series 3 Exam) is the proficiency test
required to be completed by most commodity professionals.10
\7\7 U.S.C. 6p(a)(1994).
\8\Presently, the National Futures Association (NFA) is the only
registered futures association.
\9\Section 17(p)(1) of the Act, 7 U.S.C. 21(p)(1)(1994),
provides, in part, that a registered futures association must
establish training standards and proficiency testing for persons
involved in the solicitation of transactions subject to the Act,
supervisors of such persons, and all persons for whom it has
registration responsibilities.
\10\See NFA Registration Rule 401.
---------------------------------------------------------------------------
In commenting on the amendments proposed in July, 1994, NFA
suggested that a proficiency testing requirement be incorporated in
Rule 3.34 to require ethics training providers to satisfy an objective
standard designed to reflect a minimum level of knowledge of the
futures industry and the relevant statutory and regulatory structure.
NFA and another commenter also recommended that to ensure that an
ethics training provider possesses a working knowledge of the futures
industry and is capable of teaching relevant rules and regulations,
ethics training providers should be required to have at least three
years of industry or teaching experience.
The Commission agrees that requiring persons who seek to provide
ethics training to provide proof of satisfactory completion of a
proficiency testing requirement applicable to registrants and of
possession of three years of relevant industry or pedagogical
experience provides an objective, readily administered measure for
determining knowledge of relevant matters and should not be unduly
burdensome. The Commission believes that it would be inconsistent with
the Congressional mandate for ethics training and contrary to the
public interest for a person to teach others about their
responsibilities under applicable laws and rules if such a person is
not able to demonstrate at least the same minimum acceptable level of
proficiency as is required of those he intends to educate. Further,
such requirements would be consistent with the approach followed by the
Commission to date in evaluating applications from potential offerors
of ethics training. In proposing Rule 3.34, the Commission noted its
belief that ``pedagogical expertise and knowledge of futures are
factors that should be taken into consideration in evaluating potential
offerors of ethics training.''11 Consequently, in reviewing
applications filed under Rule 3.34 for authorization to provide ethics
training, the Commission has endeavored to assure that such providers
demonstrate pedagogical experience and knowledge of the futures
markets. Should these proposed amendments be adopted, the Commission
anticipates that NFA will promulgate rules establishing specific
proficiency standards for ethics training providers.
\11\58 FR 19575, 19586. However, initially the Commission
elected not to establish specific requirements with respect to these
matters in Rule 3.34.
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The Commission believes that the proposed requirement of three
years of relevant experience may be satisfied not only by pedagogical
or teaching experience but, also, by relevant industry experience. For
example, such industry experience might be acquired by the practice of
law in the fields of futures or securities or employment as a trader or
risk manager at a brokerage or end-user firm. The Commission welcomes
comments as to the types of experience that should be deemed sufficient
for this purpose.
The Series 3 Exam is the only relevant proficiency test currently
available for ethics training providers, since it is the proficiency
test that is generally applicable to Commission registrants and is
designed to assure a broad working knowledge of the futures industry.
Successful completion of the Series 3 Exam is required of all natural
persons seeking to be registered as a commodity pool operator (CPO),
commodity trading advisor (CTA), futures commission merchant,
introducing broker, leverage transaction merchant or an associated
person (AP)
[[Page 64134]]
of any of the foregoing.12 The Commission recently approved an
alternative proficiency testing requirement under which general
securities representatives whose commodity interest activity will be
limited to managed accounts or commodity pool interests may take the
Futures Managed Funds Examination (Series 31 Exam) in lieu of the
Series 3 Exam. The Commission believes that even if an ethics training
provider wishes to instruct only CPOs, CTAs and their APs, the more
comprehensive based Series 3 Exam is the appropriate proficiency test.
\12\See also the 400 Series of the NFA Registration Rules, which
sets forth the proficiency requirements for industry professionals
and the alternatives to and exemptions from the Series 3 Exam
requirements. Currently, floor traders and floor brokers are not
required to pass the Series 3 Exam in order to become registered.
Most floor traders and floor brokers receive orientation and ethics
training from their respective exchanges.
---------------------------------------------------------------------------
B. Applicability of Certification, Proficiency Testing and Experience
Requirements
Currently, Rule 3.34 requires that any provider of ethics training
other than an SRO offering ethics training to its members or employees
or an entity accredited to conduct continuing education programs by a
state professional licensing authority in the fields of law, finance,
accounting or economics must be approved by the Commission for this
purpose. A comment letter addressing the amendments to Rule 3.34
published in the Federal Register on December 13, 1995, suggested that
SROs and state-accredited entities should no longer be exempted from
the general requirement under Rule 3.34 that entities seeking to
provide ethics training submit an application to the Commission
summarizing their ethics training program, as all ethics training
providers should be subject to equivalent standards. The Commission
believes that the business purposes and functions of SROs, the
statutory and regulatory requirements applicable to SROs, and the
Commission's oversight program for assuring compliance by SROs with
their responsibilities under the Act and Commission rules provide
sufficient assurance of the expertise and fitness of SROs as ethics
training providers without the necessity for imposing additional
requirements. Consequently, the Commission's proposals with respect to
proficiency training and pedagogical or industry experience do not
apply to SROs seeking to provide ethics training to their members or
employees. The Commission invites commenters to address the continued
appropriateness of this approach for SROs in light of the proposed
modifications of the requirements with respect to other types of ethics
training providers.
The Commission has determined, however, to propose that state-
accredited entities be required to file with the NFA the certification
required under Rule 3.34(b)(3)(iii) and to comply with the other
relevant provisions of Rule 3.34, including proficiency testing and
experience requirements. In the absence of such compliance and in light
of the potential for significant variations among state-accreditation
regimes, the Commission would have no ready means of assuring that such
providers have a minimum level of relevant knowledge or experience.
The Commission is proposing that the proficiency testing and
minimum experience requirements apply to the provider or sponsor of the
ethics training program, to any instructors or presenters employed by
the provider of such ethics training, and to those persons who prepare
ethics training videotapes or electronic presentations. Existing
providers, instructors and preparers operating pursuant to specific
Commission authorization or otherwise in compliance with Rule 3.34 as
currently in effect would not be subject to these requirements.
However, if an entity whose application to provide ethics training has
previously been granted by the Commission seeks to add a new instructor
or course preparer, such person would be subject to the proficiency
testing and minimum relevant experience standards.
III. Related Matters
A. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA), 5 U.S.C. 601-611 (1988),
requires that agencies, in proposing rules, consider the impact of
those rules on small businesses. The rule amendments proposed herein
will not affect SROs who wish to provide ethics training but would
affect all others who seek to be included on a list of authorized
ethics training providers, including entities accredited to conduct
continuing education programs by state professional licensing
authorities in the fields of law, finance, accounting or economics. The
impact of this proposal on persons seeking to become providers of
ethics training should be minimal. At this time, a one-time processing
fee for the Series 3 Exam offered by the NFA is seventy-five dollars.
This should not constitute an unduly burdensome entry cost for ethics
training providers; the same cost is incurred by all the attendees at
ethics training as a cost of registration. Requiring a minimum level of
experience also should not adversely impact small businesses as this
requirement does not impose additional financial cost upon such
entities.
Therefore, on behalf of the Commission, the Chairman hereby
certifies, pursuant to 5 U.S.C. 605(b), that the rule amendments
proposed herein will not have a significant economic impact on a
substantial number of small entities. The Commission nonetheless
invites comments from any persons or entities who believe that these
proposed rule amendments will have a significant impact on their
operations.
B. Paperwork Reduction Act
The Paperwork Reduction Act of 1980 (PRA), 44 U.S.C. 3501 et seq.,
imposes certain requirements on federal agencies (including the
Commission) in connection with their conducting or sponsoring any
collection of information as defined by the PRA. In compliance with the
PRA, the Commission has previously submitted the proposed rule and its
associated information collection requirements to the Office of
Management and Budget. While the amendments proposed herein have no
burden, Rule 3.34 is a part of a group of rules which has the following
burden: Rules 3.16, 3.32 and 3.34 (3038-0023, approved June 2, 1993):
Average Burden Hours Per
Response--1.13
Number of Respondents--60,980
Frequency of Response--On Occasion and Triennially
Persons wishing to comment on the information which will be
required by these rules as amended should contact Jeff Hill, Office of
Management and Budget, Room 3228, NEOB, Washington, D.C. 20503, (202)
395-7340. Copies of the information collection submission to OMB are
available from Joe F. Mink, CFTC Clearance Officer, 1155 21st St. N.W.,
Washington, D.C. 20581, (202) 418-5170.
List of Subjects in 17 CFR Part 3
Registration, Ethics Training.
Accordingly, the Commission, pursuant to the authority contained in
the Commodity Exchange Act and, in particular, Sections 1a, 4d, 4e, 4g,
4m, 4p, 8a and 17 thereof (7 U.S.C. 1a, 6d, 6e, 6g, 6m, 6p, 12a and 21
(1994), hereby proposes to amend Part 3 of Chapter I of Title 17 of the
Code of Federal Regulations as follows:
[[Page 64135]]
PART 3--REGISTRATION
1. The authority citation for Part 3 continues to read as follows:
Authority: 7 U.S.C. la, 2, 4, 4a, 6, 6b, 6d, 6e, 6f, 6g, 6h, 6i,
6k, 6m, 6o, 6p, 8, 9, 9a, 12, 12a, 13b, 13c, 16a, 18, 19, 21 and 23;
5 U.S.C. 552, 552b.
Sec. 3.34 [Amended]
2. Section 3.34 as amended by a final rule published on December
13, 1995, is proposed to be amended by removing and reserving paragraph
(b)(3)(ii) and revising the introductory text of paragraph (b)(3)(iii)
to read as follows: Sec. 3.34 Mandatory ethics training for
registrants.
* * * * *
(b) * * *
(3) * * *
(ii) [Reserved]
(iii) A person included on a list maintained by a registered
futures association who has presented satisfactory evidence to the
registered futures association that he has taken and passed the
proficiency testing requirements established by a registered futures
association for an ethics training provider, possesses a minimum of
three years of relevant experience, and who certifies that:
* * * * *
Issued in Washington, D.C. on December 7, 1995, by the
Commission.
Jean A. Webb,
Secretary of the Commission.
[FR Doc. 95-30359 Filed 12-13-95; 8:45 am]
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