issue-1996-05-06•Federal Register proposed rules — 1996-05-06
Federal Register proposed rules — 1996-05-06
issue-1996-05-06Federal Register proposed rules — 1996-05-06Proposed Regulation
Published Federal Register documents, not public-inspection drafts. The GPO XML/text rendition is a research aid; the linked complete official PDF retains the printed layout and all graphics. Graphics are retained in that PDF and are not independently reproduced in this text rendition. Publication does not establish that every provision remains legally in force.
FR Doc. 96-11240 Small Business Size Standards; Waiver of the Nonmanufacturer Rule
[Federal Register Volume 61, Number 88 (Monday, May 6, 1996)]
[Proposed Rules]
[Page 20191]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11240]
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SMALL BUSINESS ADMINISTRATION
13 CFR Part 121
Small Business Size Standards; Waiver of the Nonmanufacturer Rule
AGENCY: Small Business Administration.
ACTION: Notice of intent to waive the nonmanufacturer rule for purified
terephthalic acid ground (PTAG) and un-ground (PTAU).
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SUMMARY: The Small Business Administration (SBA) is considering
granting a waiver of the Nonmanufacturer Rule for PTAG and PTAU. The
basis for a waiver of the Nonmanufacturer Rule for these products is
that there are no small business manufacturers or processors available
to supply these products to the Federal Government. The effect of a
waiver would be to allow an otherwise qualified Nonmanufacturer to
supply other than the product of a domestic small business manufacturer
or processor on a Federal contract set aside for small businesses or
awarded through the SBA 8(a) Program. The purpose of this notice is to
solicit comments and potential source information from interested
parties.
DATES: Comments and sources must be submitted on or before May 29,
1996.
ADDRESSES: David Wm. Loines, Procurement Analyst, U.S. Small Business
Administration, 409 3rd Street SW., Washington, DC 20416, Tel:(202)
205-6475.
SUPPLEMENTARY INFORMATION: Public law 100-656, enacted on November 15,
1988, incorporated into the Small Business Act the previously existing
regulation that recipients of Federal contracts set-aside for small
businesses or the SBA 8(a) Program procurement must provide the product
of a small business manufacturer or processor, if the recipient is
other than the actual manufacturer or processor. This requirement is
commonly referred to as the Nonmanufacturer Rule. The SBA regulations
imposing this requirement are found a 13 CFR 121.906(b) and
121.1106(b). Section 303(h) of the law provides for waiver of this
requirement by SBA for any ``class of products'' for which there are no
small business manufacturers or processors in the Federal market. To be
considered available to participate in the Federal market on these
classes of products, a small business manufacturer must have submitted
a proposal for a contract solicitation or received a contract from the
Federal Government within the last 24 months. The SBA defines ``class
of products'' based on two coding systems. The first is the Office of
Management and Budget Standard Industrial Classification Manual. The
second is the Product and Service Code established by the Federal
Procurement Data System.
The Small Business Administration is currently processing a request
for a waiver of the Nonmanufacturer Rule for Purified Terephthalic Acid
Ground (PTAG) and Un-Ground (PTAU) (SIC 2869, PSC 6810) and invites the
public to comment or provide information on potential small business
manufacturers for this product.
In an effort to identify potential small business manufacturers,
the SBA has searched the Procurement Automated Source System (PASS) and
Thomas Register, and the SBA will publish a notice in the Commerce
Business Daily. The public is invited to comment or provide source
information to SBA on the proposed waiver of the Nonmanufacturer Rule
for this class of products.
Dated: April 29, 1996.
Judith A. Roussel,
Associate Administrator for Government Contracting.
[FR Doc. 96-11240 Filed 5-3-96; 8:45 am]
BILLING CODE 8025-01-P
Complete official Federal Register PDF
FR Doc. 96-11239 Small Business Size Standards; Waiver of the Nonmanufacturer Rule
[Federal Register Volume 61, Number 88 (Monday, May 6, 1996)]
[Proposed Rules]
[Pages 20191-20192]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11239]
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SMALL BUSINESS ADMINISTRATION
13 CFR Part 121
Small Business Size Standards; Waiver of the Nonmanufacturer Rule
AGENCY: Small Business Administration.
ACTION: Notice of intent to waive the nonmanufacturer rule for
tabulating paper (computer forms, manifold or continuous).
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SUMMARY: The Small Business Administration (SBA) is considering
granting a waiver of the Nonmanufacturer Rule for Tabulating
[[Page 20192]]
Paper. The basis for a waiver of the Nonmanufacturer Rule for these
products is that there are no small business manufacturers or
processors available to supply these products to the Federal
Government. The effect of a waiver would be to allow an otherwise
qualified Nonmanufacturer to supply other than the product of a
domestic small business manufacturer or processor on a Federal contract
set aside for small businesses or awarded through the SBA 8(a) Program.
The purpose of this notice is to solicit comments and potential source
information from interested parties.
DATES: Comments and sources must be submitted on or before May 29,
1996.
ADDRESSES: David Wm. Loines, Procurement Analyst, U.S. Small Business
Administration, 409 3rd Street SW., Washington, DC 20416, Tel: (202)
205-6475.
SUPPLEMENTARY INFORMATION: Public law 100-656, enacted on November 15,
1988, incorporated into the Small Business Act the previously existing
regulation that recipients of Federal contracts set-aside for small
businesses or the SBA 8(a) Program procurement must provide the product
of a small business manufacturer or processor, if the recipient is
other than the actual manufacturer or processor. This requirement is
commonly referred to as the Nonmanufacturer Rule. The SBA regulations
imposing this requirement are found at 13 CFR 121.906(b) and
121.1106(b). Section 303(h) of the law provides for waiver of this
requirement by SBA for any ``class of products'' for which there are no
small business manufacturers or processors in the Federal market. To be
considered available to participate in the Federal market on these
classes of products, a small business manufacturer must have submitted
a proposal for a contract solicitation or received a contract from the
Federal Government within the last 24 months. The SBA defines ``class
of products'' based on two coding systems. The first is the Office of
Management and Budget Standard Industrial Classification Manual. The
second is the Product and Service Code established by the Federal
Procurement Data System.
The Small Business Administration is currently processing a request
for a waiver of the Nonmanufacturer Rule for Tabulating Paper (computer
forms, manifold or continuous) (SIC 2761, PSC 7530) and invites the
public to comment or provide information on potential small business
manufacturers for this product.
In an effort to identify potential small business manufacturers,
the SBA has searched the Procurement Automated Source System (PASS) and
Thomas Register, and the SBA will publish a notice in the Commerce
Business Daily. The public is invited to comment or provide source
information to SBA on the proposed waiver of the Nonmanufacturer Rule
for this class of products.
Dated: April 29, 1996.
Judith A. Roussel,
Associate Administrator for Government Contracting.
[FR Doc. 96-11239 Filed 5-3-96; 8:45 am]
BILLING CODE 8025-01-P
Complete official Federal Register PDF
FR Doc. 96-11238 Importation of Animals and Animal Products; Public Hearings
[Federal Register Volume 61, Number 88 (Monday, May 6, 1996)]
[Proposed Rules]
[Pages 20190-20191]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11238]
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DEPARTMENT OF AGRICULTURE
9 CFR Parts 92, 93, 94, 95, 96, and 98
[Docket No. 94-106-2]
Importation of Animals and Animal Products; Public Hearings
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Notice of public hearing.
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SUMMARY: We are advising the public that the Animal and Plant Health
Inspection Service is hosting a public hearing on the proposed rule on
the importation of animals and animal products that was published in
the Federal Register on April 18, 1996. The hearing will provide an
additional opportunity for the public to comment on the proposal, which
would establish criteria for foreign ``regions'' based on risk class
levels. The criteria would be used to establish importation
requirements for particular animals and animal products from different
regions outside the United States.
DATES: The public hearing will be held in Riverdale, MD, on May 22 and,
if there are more registered speakers than can be heard in one day, on
May 23, 1996. The hearing will begin at 9 a.m. and is scheduled to end
at 5 p.m each day.
ADDRESSES: The public hearing will be held at the USDA Center at
Riverside, Conference Center, 4700 River Road, Riverdale, MD.
FOR FURTHER INFORMATION CONTACT: Dr. Gary Colgrove, Chief Staff
Veterinarian, National Center for Import and Export, VS, APHIS, 4700
River Road Unit 38, Riverdale, MD 20737-1231, (301) 734-8590.
SUPPLEMENTARY INFORMATION:
Background
A public hearing will be held on the notice of proposed rulemaking
on the importation of animals and animal products, published by the
Animal and Plant Health Inspection Service (APHIS) in the Federal
Register on April 18, 1996 (61 FR 16977-17105, Docket No. 94-106-1).
The public hearing will be held in Riverdale, MD, on May 22 and, if
there are more registered speakers than can be heard in one day, on May
23, 1996.
[[Page 20191]]
A representative of APHIS will preside at the public hearing. Any
interested party may appear and be heard in person, or through an
attorney or other representative. We are interested in obtaining the
views of the public on all aspects of the proposed rule.
Persons who wish to speak at the hearing will be asked to provide
their names and affiliations. Parties wishing to make oral
presentations may register in advance by either: (1) Calling the
Regulatory Analysis and Development voice mail at (301) 734-4346 and
leaving a message stating their name, telephone number, and
organization, and the approximate time necessary for their
presentation; or (2) providing the above information by electronic mail
to [email protected]. Parties responding by e-mail may wish to
use the electronic response registration form available at the APHIS
Regionalization Proposal Web Page. A list of persons registered to
speak at the hearing will also be posted to the Web page shortly before
the hearing. The Web page URL is http://www.aphis.usda.gov/PPD/region.
Registration will also be held at the hearing site on May 22, 1996,
between 8 a.m. and 8:45 a.m. Speakers will be scheduled in the order
their registration is received. Advance registrations must be
transmitted to APHIS no later than 9 a.m., d.s.t., May 20, 1996.
The hearing will begin at 9 a.m. on May 22, 1996. The hearing on
the second day, May 23, 1996, will be held only if speakers who have
registered for the first day have not yet had a chance to speak. The
hearing is scheduled to end at 5 p.m. each day that it is held, but may
conclude at any time if all persons desiring to speak have been heard.
The hearing officer may limit the time for each presentation so that
all interested persons have an opportunity to participate. Attendees
who wish to speak but who did not register will be provided time to
speak only after all registered speakers have been heard.
We ask that anyone who reads a written statement provide two copies
to the presiding officer at the hearing. A transcript will be made of
the public hearing and the transcript will be placed in the rulemaking
record and will be available for public inspection.
The purpose of the public hearing is to give all interested parties
an opportunity to present data, views, and information to the
Department concerning this proposed rule. Questions about the content
of the proposal may be part of a commenter's oral presentation.
However, neither the presiding officer nor any other representative of
the Department will respond to the comments at the hearing, except to
clarify or explain the proposed rule.
APHIS intends to schedule additional hearings on the proposed rule
at various locations around the country over the next several months.
We will give notice of these additional hearings in the Federal
Register.
Done in Washington, DC, this 1st day of May 1996.
Terry L. Medley,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 96-11238 Filed 5-3-96; 8:45 am]
BILLING CODE 3410-34-P
Complete official Federal Register PDF
FR Doc. 96-11237 Special Local Regulation: Swim Buzzards Bay Day, New Bedford, MA
[Federal Register Volume 61, Number 88 (Monday, May 6, 1996)]
[Proposed Rules]
[Pages 20195-20197]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11237]
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[[Page 20196]]
DEPARTMENT OF TRANSPORTATION
Coast Guard
33 CFR Part 100
[CGD01-96-015]
RIN 2115-AE46
Special Local Regulation: Swim Buzzards Bay Day, New Bedford, MA
AGENCY: Coast Guard, DOT.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Coast Guard proposes to establish a permanent special
local regulation for a swimming event known as Swim Buzzards Bay Day.
The event will be held in Buzzards Bay, Achushnet River, on July 28,
1996, and annually thereafter on a weekend in July that has favorable
tidal conditions. This regulation is needed to protect the participants
from vessel traffic during the swimming event.
DATES: Comments must be received on or before June 20, 1996.
ADDRESSES: Comments should be mailed to Commander (b), First Coast
Guard District, Captain John Foster Williams Federal Building, 408
Atlantic Ave., Boston, MA 02110-3350, or may be hand delivered to Room
428 at the same address, between 8 a.m. and 4 p.m., Monday through
Friday, except federal holidays. Comments will become part of this
docket and will be available for inspection or copying at the above
address.
FOR FURTHER INFORMATION CONTACT:
Lieutenant (Junior Grade) B.M. Algeo, Chief, Boating Affairs Branch,
First Coast Guard District, (617) 223-8311.
SUPPLEMENTARY INFORMATION:
Request for Comments
The Coast Guard encourages interested persons to participate in
this rulemaking by submitting written data, views, or arguments.
Persons submitting comments should include their names and addresses,
identify this notice (CGD01-96-015), the specific section of the
proposal to which each comment applies, and give reasons for each
comment. The Coast Guard requests that all comments and attachments be
submitted in an 8\1/2\'' x 11'' unbound format suitable for copying and
electronic filing. If that is not practical, a second copy of any bound
material is requested. Persons requesting acknowledgment of receipt of
comments should enclose a stamped, self-addressed postcard or envelope.
The Coast Guard will consider all comments received during the
comment period. It may change this proposal in view of the comments.
The Coast Guard plans no public hearing. Persons may request a public
hearing by writing to Commander (b), First Coast Guard District at the
address under ADDRESSES. The request should include reasons why a
hearing would be beneficial. If it is determined that the opportunity
for oral presentations will aid this rulemaking, the Coast Guard will
hold a public hearing at a time and place announced by a later notice
in the Federal Register.
Discussion of Proposed Amendments
The annual Swim Buzzards Bay Day is a local, traditional event
which has been held for the previous two years on the Achushnet River,
New Bedford/Fairhaven, MA. In the past, the Coast Guard has promulgated
individual regulations for the event. Given the recurring nature of the
event, the Coast Guard desires to establish a permanent regulation. The
proposed regulation will establish a regulated area in the Acushnet
River for the 1996 event and will establish a permanent regulation for
following years. This proposal restricts vessels from approaching
within 200 feet of participating swimmers.
The event will consist of approximately 50 swimmers transversing
the Acushnet River from Fort Phoenix Beach in Fairhaven, MA, to Billy
Woods Wharf in New Bedford, MA. There will be one rowing skiff per
participant, along with sponsor provided vessels on scene to augment a
Coast Guard patrol to alert boating traffic of the presence of the
swimmers. The time period for the event is dictated by tidal
conditions. Subject to Coast Guard approval, the sponsor selects a
weekend in July that most closely exhibits low tide at a daytime hour
reasonable for holding the event. Spectator craft are authorized to
watch the race from any area as long as they remain 200 feet away from
any participating swimmer. In emergency situations, provisions may be
made to establish safe escort by a Coast Guard or Coast Guard
designated vessel for vessels requiring transit within 200 feet of
participating swimmers.
Regulatory Evaluation
This proposal is not a significant regulatory action under section
3(f) of Executive Order 12866, and does not require an assessment of
potential costs and benefits under section 6(a)(3) of that order. It
has been exempted from review by the Office of Management and Budget
under that order. It is not significant under the regulatory policies
and procedures of the Department of Transportation (DOT) (44 FR 11040;
February 26, 1979). The Coast Guard expects the economic impact to be
so minimal that a full Regulatory Evaluation, under paragraph 10e of
the regulatory policies and procedures of DOT, is unnecessary. This
conclusion is based on the limited duration of the event, the extensive
advisories that will be made to the affected maritime community, and
the minimal restrictions which the regulation places on vessel traffic.
Small Entities
Under the Regulatory Flexibility Act (55 U.S.C. 601 et seq.), the
Coast Guard must consider the economic impact on small entities of a
rule for which a general notice of proposed rulemaking is required.
``Small entities'' may include (1) small businesses and not-for-profit
organizations that are independently owned and operated and are not
dominant in their fields and (2) governmental jurisdictions with
populations of less than 50,000.
For the reasons discussed in the Regulatory Evaluation, the Coast
Guard certifies under 5 U.S.C. 605(b) that this proposal will not have
a significant economic impact on a substantial number of small
entities.
Collection of Information
This proposal contains no collection of information requirements
under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).
Federalism
The Coast Guard has analyzed this proposal under the principles and
criteria contained in Executive Order 12612 and has determined that
this proposal does not have sufficient federalism implications to
warrant the preparation of a Federalism Assessment.
Environment
The Coast Guard has considered the environmental impacts of this
proposal and concluded that, under paragraph 2.B.2.e.34(h) of COMDTINST
16475.1B, (as revised by 61 FR 13563, March 27, 1996) this proposal is
a special local regulation issued in conjunction with a regatta or
marine parade and is categorically excluded from further environmental
documentation.
List of Subjects in 33 CFR Part 100
Marine safety, Navigation (water), Reporting and recordkeeping
requirements, Waterways.
Proposed Regulation
For the reasons set out in the preamble, the Coast Guard proposes
to amend 33 CFR part 100 as follows:
1. The authority citation for part 100 continues to read as
follows:
[[Page 20197]]
Authority: 33 U.S.C. 1233; 49 CFR 1.46 and 33 CFR 100.35.
2. A permanent section, 100.116, is added to read as follows:
Sec. 100.116 Swim Buzzards Bay Day, New Bedford, MA.
(a) Regulated area. All waters of the Acushnet River within 200
feet of participating swimmers.
(b) Special local regulations. (1) The Coast Guard patrol commander
may delay, modify, or cancel the race as conditions or circumstances
require.
(2) No person or vessel may enter, transit, or remain in the
regulated area unless participating in the event or unless authorized
by the Coast Guard patrol commander.
(3) Vessels encountering emergencies which require transit through
the regulated area should contact the coast Guard patrol commander on
VHF Channel 16. In the event of an emergency, the Coast Guard patrol
commander may authorize a vessel to transit through the regulated area
with a Coast Guard designated escort.
(4) All persons and vessels shall comply with the instructions of
the Coast Guard on-scene patrol commander. On-scene patrol personnel
include commissioned, warrant, and petty officers of the U.S. Coast
Guard. Upon hearing five or more short blasts from a U.S. Coast Guard
vessel, the operator of a vessel shall proceed as directed. Members of
the Coast Guard Auxiliary may also be present to inform vessel
operators of this regulation and other applicable laws.
(c) Effective period. This section is in effect from 10 a.m. to 12
p.m. on July 28, 1996, and each year thereafter on a date and times
published in the Federal Register.
Dated: April 23, 1996.
J.L. Linnon,
Rear Admiral, U.S. Coast Guard Commander, First Coast Guard District.
[FR Doc. 96-11237 Filed 5-3-96; 8:45 am]
BILLING CODE 4910-14-M
Complete official Federal Register PDF
FR Doc. 96-11226 Eligibility for the Cable Compulsory License
[Federal Register Volume 61, Number 88 (Monday, May 6, 1996)]
[Proposed Rules]
[Pages 20197-20199]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11226]
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LIBRARY OF CONGRESS
Copyright Office
37 CFR Ch. II
[Docket No. 96-2]
Eligibility for the Cable Compulsory License
AGENCY: Copyright Office, Library of Congress.
ACTION: Notice of inquiry.
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SUMMARY: The Copyright Office of the Library of Congress is opening a
rulemaking proceeding to consider the eligibility for the cable
compulsory license of open video systems of telephone companies which
retransmit broadcast signals. The Office requests interested parties to
submit comments as to whether, and what extent, open video systems may
make use of the cable compulsory license.
DATES: Comments should be received on or before July 5, 1996. Reply
comments are due on or before June 5, 1996.
ADDRESSES: If delivered BY MAIL, fifteen copies of written comments
should be addressed to Office of the General Counsel, Copyright GC/I&R,
PO Box 70400, Southwest Station, Washington, DC 20024. If delivered BY
HAND, fifteen copies of written comments should be brought to: Office
of the General Counsel, Copyright Office, James Madison Memorial
Building, Room LM-407, First and Independence Avenue, SE., Washington,
DC 20540.
FOR FURTHER INFORMATION CONTACT: Marilyn J. Kretsinger, Acting General
Counsel, or William Roberts, Senior Attorney for Compulsory Licenses,
Telephone (202) 707-8380 or Telefax (202) 707-8366.
SUPPLEMENTARY INFORMATION:
Background
Section 111 of the Copyright Act, 17 U.S.C., grants a compulsory
copyright license to cable television systems for the retransmission of
over-the-air broadcast stations to their subscribers. In exchange for
the license, cable operators submit royalty payments, along with
statements of account detailing their retransmissions, to the Copyright
Office on a semi-annual basis, which deposits the royalties with the
United States Treasury in interest bearing accounts for later
distribution to copyright owners of non-network broadcast programming.
Cable systems determine their royalty payments according to a
calculation formula devised by Congress in 1976. 17 U.S.C. 111(d).
Payments are made based upon a cable system's gross receipts from
subscribers for the retransmission of broadcast signals. The statute
subdivides cable systems, based on their gross receipts totals, into
three categories: Small, medium and large. Small systems pay a fixed
amount without regard to the number of broadcast signals they
retransmit, while medium-sized systems pay a royalty within a specified
range, with a maximum amount, based on the number of signals they
retransmit.
Large cable systems, which pay over ninety percent of royalties
submitted by cable systems, calculate their royalties according to the
number of distant broadcast signals which they retransmit to their
subscribers.\1\ These cable systems pay a percentage of their gross
receipts for each distant signal they retransmit, and different royalty
rates apply to different signals, depending upon the total number of
distant signals carried. Determining when a broadcast signal is
distant, what rate must be applied to it, and the royalty due for the
signal is, for the most part, determined by reference to the rules and
regulations of the Federal Communications Commission governing cable
systems that were in effect on April 15, 1976. Copyright payments under
section 111 of the Copyright Act today are, therefore, dependent upon
the manner in which the cable television industry was regulated in
1976.
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\1\ For large cable systems which retransmit only local
broadcast signals, there is still a minimum royalty fee which must
be paid. This minimum fee is not applied, however, once the cable
system carries one or more distant signals.
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Section 111(f) defines a ``cable system'' as follows:
A ``cable system'' is a facility, located in any State,
Territory, Trust Territory, or Possession, that in whole or in part
receives signals transmitted or programs broadcast by one or more
television broadcast stations licensed by the Federal Communications
Commission, and makes secondary transmissions of such signals or
programs by wires, cables, microwave, or other communications
channels to subscribing members of the public who pay for such
service. For purposes of determining the royalty fee under
subsection (d)(1), two or more cable systems in contiguous
communities under common ownership or control or operating from one
head-end shall be considered as one system.
17 U.S.C. 111(f).
At the time of passage of the Copyright Act, the only type of
retransmission system serving subscribers with broadcast programming
was traditional wired cable systems regulated as such by the FCC.
Consequently, it was generally well understood in 1976 what was meant
by ``cable system'' for purposes of section 111. However, beginning in
the early to mid-1980's, retransmission services other than traditional
wired cable systems came into existence. Like traditional wired cable
systems, these other services were capable of delivering broadcast
signals to their subscribers, and they sought eligibility for the
section 111 license.
The addition of new retransmission providers significantly altered
the
[[Page 20198]]
complexion of the video marketplace as it existed at the time of
passage of the Copyright Act. Not only did new faces appear, but the
FCC of the late 70's and early 80's took a decidedly deregulatory
stance with respect to the industry. The Commission lifted its distant
signal and syndicated exclusivity restrictions, see Malrite T.V. of New
York, Inc. v. FCC, 652 F.2d 1140 (2d Cir. 1981), cert. denied sub.
nom., National Football League, Inc. v. FCC, 454 U.S. 1143 (1982),
which formed the bedrock of determining section 111 copyright fees, and
the Commission's must-carry rules fell to court challenge. See Quincy
Cable T.V., Inc. v. FCC, 768 F.2d 1434 (D.C. Cir. 1985), cert. denied,
476 U.S. 1169 (1986) and Century Communications v. FCC, 835 F.2d 292
(D.C. Cir. 1987), cert. denied, 486 U.S. 1032 (1988). Thus, three sets
of rules--distant signal carriage, syndicated exclusivity and must-
carry--while still applicable by statute to the compulsory license
royalty calculation, no longer had a life of their own. The Copyright
Office has been attempting to deal with the consequences of these
eliminations ever since.
With new retransmission providers seeking to use 17 U.S.C. 111, the
Copyright Office opened a rulemaking proceeding to consider the issue.
Specifically, the Office considered the eligibility of wireless cable
systems (MMDS and MDS), satellite master antenna television systems
(SMATVs), and satellite carriers.\2\ In a Notice of Proposed
Rulemaking, the Office proposed new regulations that would govern the
conditions under which SMATVs would qualify for compulsory licensing
under section 111, announced a preliminary decision that wireless cable
was not eligible, and a policy decision that satellite carriers were
not eligible. 56 FR 31580 (July 11, 1991). The Office confirmed that
wireless cable and satellite carriers were not eligible in final
regulations. 57 FR 3284 (January 29, 1992).\3\ The decision, with
respect to satellite carriers, has withstood judicial challenge. See
Satellite Broadcasting Communications Association v. Oman, 17 F.3d 344
(11th Cir.), cert. denied, 115 S.Ct. 88 (1994).
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\2\ The proceeding initially considered the eligibility of only
SMATVs and wireless cable. 51 FR 36706 (October 15, 1986). The
comment period was later reopened to consider satellite carriers. 52
FR 28731 (August 3, 1987).
\3\ The Office has yet to issue final regulations for SMATVs,
but has made a preliminary finding that they are eligible for 17
U.S.C. 111. See 56 FR 31593 (July 11, 1991).
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In late 1994, Congress passed legislation to overturn the Office's
final regulations with respect to wireless cable. The Satellite Home
Viewer Act of 1994, Pub.L.No. 103-369, amended the section 111(f)
definition of a ``cable system'' to specifically include systems which
retransmit broadcast programming via microwave. It is now clear that
wireless cable systems are eligible for section 111. Satellite
carriers, however, still do not qualify, and must use the license found
in 17 U.S.C. 119.
Telecommunications Act
The Copyright Office's SMATV, wireless cable and satellite carrier
rulemaking proceeding was prompted by a video marketplace in the 80's
that differed significantly from that of the 70's. It is readily
apparent that the video marketplace of the 90's and the future will be
ever more different.
In February 1996, Congress enacted the Telecommunications Act.
Pub.L.No. 104-104, 110 Stat. 56 (1996). Among the sweeping reforms and
actions of this legislation is recognition and authorization of
telephone company entry into the video marketplace. Section 653 of the
Communications Act, as amended, now provides that ``[a] local exchange
carrier may provide cable service to its cable service subscribers in
its telephone service area through an open video system that complies
with this section.'' 47 U.S.C. 653(a)(1).
Prior to passage of the Telecommunications Act, the telephone
companies had been prohibited from entering the cable television
business within their own service areas. The Federal Communications
Commission was, however, considering the possibility of authorizing
telephone companies to lease channel capacity over its phone lines to
third parties who would provide video service to phone company
subscribers. See First Report & Order in Docket No. 87-266, 56 FR 65464
(December 17, 1991). Known as video dialtone, the FCC issued
experimental licenses to a handful of video dialtone operators, several
of whom have already begun service to subscribers. These operators
provide original and source licensed programming, as well as
retransmission of over-the-air broadcast signals.
The Telecommunications Act has terminated the FCC's video dialtone
proceeding by expressly allowing telephone entry into cable through
``open video systems.'' See section 302(b)(3); Report and Order in
Docket No. 96-46, 61 FR 10475 (March 14, 1996)(eliminating video
dialtone rulemaking proceeding). Under the Telecommunications Act's
authorization, telephone companies can act not only as common carriers
providing the pipeline between third party program providers and
subscribers, but can offer programming services themselves. This
creates a possibility, with respect to broadcast retransmission, of
several program providers using the same facility to provide
subscribers with broadcast signals.
The structure and appearance of open video systems remains largely
unresolved at this time. Private industry is still very much in the
planning stage, while the FCC is conducting a rulemaking proceeding to
determine the amount and extent of regulation that open video systems
will require. See Notice of Proposed Rulemaking in Docket No. 96-46, 61
FR 10496 (March 14, 1996). The Telecommunications Act directs the
Commission to apply much of its cable regulations to open video
systems,4 but of course the FCC's cable rules in effect in 1976
will have no application to such systems.
---------------------------------------------------------------------------
\4\ Examples are the sports exclusivity, network non-
duplication, and syndicated exclusivity rules.
---------------------------------------------------------------------------
While Congress has cleared the path for telephone entry into the
broadcast retransmission business for communications law purposes, it
has not taken any action to resolve the copyright licensing aspects.
Section 653(c)(4) of the Communications Act, as amended, provides that
``[n]othing in this Act precludes a video programming provider making
use of an open video system from being treated as an operator of a
cable system for purposes of section 111 of title 17, United States
Code.'' Some have argued that this provision is a congressional
affirmation that open video systems are eligible for section 111
licensing. The plain language of the provision, however, belies that
argument. Section 653(c)(4) simply states that nothing in the
Telecommunications Act, by itself, shall be construed as preventing
open video systems from being considered as a section 111 cable system;
it says nothing about whether such systems can be considered cable
systems under the terms of section 111 of the Copyright Act. It matters
little to the copyright inquiry that an open video system is a cable
system under the Telecommunications Act if it is not a cable system
under the Copyright Act. Further, there is not any legislative history
to the Telecommunications Act that demonstrates congressional intention
to amend or otherwise clarify the eligibility of open video systems for
section 111 under the Copyright Act.5
---------------------------------------------------------------------------
\5\ Section 653(c)(4) comes from the Senate bill, which stated
`` [n]othing in this Act precludes a video programming provider
making use of a common carrier video platform from being treated as
an operator of a cable system for purposes of section 111 of title
17, United States Code.''
---------------------------------------------------------------------------
[[Page 20199]]
Recent Filings
Although telephone entry into the cable business was under
consideration at the FCC for some time before enactment of the
Telecommunications Act, the Copyright Office has not considered such
entry in terms of the cable compulsory license.6 As noted above,
through agency interpretation and legislative amendment, the section
111 license is available to traditional wired cable systems, wireless
cable systems, and SMATV systems. The Office now must consider the
eligibility of open video systems.
---------------------------------------------------------------------------
\6\ During the legislative process of the Telecommunications
Act, proposals were considered to specifically address telephone
company eligibility for 17 U.S.C. 111. Such amendments, however,
were not included in the Telecommunications Act.
---------------------------------------------------------------------------
For the second accounting period of 1995, the Copyright Office has
received statements of account and royalty filings from three systems
identifying themselves as video dialtone operators. Interface
Communications Group, Inc. identifies itself as a ``video dialtone
system being conducted by U.S. West Communications, Inc. in Omaha,
Nebraska.'' California Standard Television Corp. identifies itself as a
video dialtone programmer whose ``physical facilities'' are owned by
Pacific Bell. And Anchor Pacific Corp. also identifies itself as a
video dialtone programmer whose ``physical facilities'' are owned by
Pacific Bell.
These three filings represent the first claims of eligibility under
17 U.S.C. 111 by an open video system (formerly known as video
dialtone). The Office expects that the number of filings for future
accounting periods will increase, particularly in light of the
Telecommunications Act. We, therefore, feel that now is an appropriate
time to open a rulemaking proceeding to consider the eligibility issue.
Request for Comments
The threshold issue in this rulemaking proceeding is whether open
video systems are cable systems within the meaning of 17 U.S.C. 111.
The initial filings we have received appear to be from independent
program providers leasing access on an open video system created by a
telephone company. The Telecommunications Act now allows telephone
companies to act as program providers as well. We solicit comment on
whether both independent program providers and telephone companies
should be eligible for section 111 and, if so, under what
circumstances. We also seek comment as to whether a telephone company
providing an open video system, and not itself engaged in
retransmitting broadcast programming, is eligible for the passive
carrier exemption of section 111(a)(3), and under what circumstances.
In addressing the threshold eligibility issue, we request that the
commentators direct their responses to a consideration of 17 U.S.C. 111
as a whole, as opposed to solely the section 111(f) definition of a
``cable system.'' In the wireless/SMATV/satellite carrier rulemaking
proceeding some commentators focused on the section 111(f) definition,
and did not discuss how the rest of section 111 might or might not
apply to a particular system. The Office stated in the 1992 final rules
that section 111 must be interpreted as a whole in determining whether
a particular retransmission provider is eligible for compulsory
licensing. See 57 FR 3292 (1992) (``[E]ach part of a section should be
construed in connection with every other part or section so as to
produce a harmonious whole. Thus, it is not proper to confine
interpretation to the one section to be construed,'' citing 2A
Sutherland, Stat. Const. 46.05 (5th ed. 1992)). Consequently, we direct
the commentators' attention to the particular applicability of all 17
U.S.C. 111 provisions, particularly the royalty calculation scheme. In
particular, we are interested in how the 1976 distant signal carriage
and syndicated exclusivity rules might or might not be applicable to
open video systems. We are also interested in how an open video system
would apply the 1976 must-carry rules, plus ADI, to determine local/
distant status, particularly where there is not an established
traditional wired cable system operating in the same service area as
the open video system. And, we are interested in knowing how the
``contiguous communities'' provision of the section 111(f) cable
definition might or might not apply to open video systems.
Aside from the threshold eligibility question, the Office directs
the commentators to practical questions arising from the filing of
statements of account and payment of royalty fees. Thus, we request
commentators favoring 17 U.S.C. 111 eligibility of open video systems
to detail what changes, if any, are required in the Copyright Office
statement of account forms to accommodate open video system filings. We
are especially interested in a detailed analysis of how an open video
system would calculate its gross receipts, and what fees and charges
would be included. We also seek comment as to whether the statement of
account form should require all filers to identify what type of cable
system they are (SMATV, wireless, traditional wired, etc.). Finally, we
seek comment as to how current Office policies and practices, such as
application of the 3.75% rate, non-allocation among subscriber groups,
and the grandfathering of broadcast signals would apply.
In directing interested parties' attention to the above-identified
issues, we do not wish to limit the scope or focus of the comments in
any way. We therefore welcome all comments regarding application of 17
U.S.C. 111 to open video systems.
Dated: May 1, 1996.
Marybeth Peters,
Register of Copyrights.
Approved by:
James H. Billington,
The Librarian of Congress.
[FR Doc. 96-11226 Filed 5-3-96; 8:45 am]
BILLING CODE 1410-30-P
Complete official Federal Register PDF
FR Doc. 96-11212 Permanent Private Quarantine Facilities for Horses
[Federal Register Volume 61, Number 88 (Monday, May 6, 1996)]
[Proposed Rules]
[Pages 20189-20190]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11212]
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
9 CFR Part 92
[Docket No. 95-084-2]
Permanent Private Quarantine Facilities for Horses
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Notice of public meeting; reopening and extension of comment
period.
-----------------------------------------------------------------------
SUMMARY: On February 26, 1996, we published an advance notice of
proposed rulemaking requesting public comment on the need for and
appropriate standards for the establishment of permanent, private
quarantine facilities for horses imported into the United States. To
provide additional opportunity for public comment, this notice
announces our intention to hold a public meeting, and to reopen and
extend the comment period on the advance notice. We are also announcing
the availability of a risk assessment related to the establishment of
permanent, private quarantine
[[Page 20190]]
facilities for horses imported into the United States.
DATES: Consideration will be given only to comments received on or
before June 5, 1996. We will also consider comments made at a public
meeting to be held in Riverdale, MD, on Friday, May 17, 1996, from 8
a.m. to 4 p.m.
ADDRESSES: Please send an original and three copies of your comments to
Docket No. 95-084-1, Regulatory Analysis and Development, PPD, APHIS,
Suite 3C03, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please
state that your comments refer to Docket 95-095-1. Comments received
may be inspected at USDA, room 1141, South Building, 14th Street and
Independence Avenue SW., Washington, DC, between 8 a.m. and 4:30 p.m.,
Monday through Friday, except holidays. Persons wishing to inspect
comments are requested to call ahead on (202) 690-2817 to facilitate
entry into the comment reading room. The public meeting will be held at
the USDA Center, 4700 River Road, Riverdale, MD.
FOR FURTHER INFORMATION CONTACT: Dr. Joyce Bowling, Staff Veterinarian,
National Center for Import and Export, VS, APHIS, 4700 River Road Unit
39, Riverdale, MD 20737-1231, (301) 734-6479; or e-mail:
J[email protected].
SUPPLEMENTARY INFORMATION: The regulations in 9 CFR part 92 (referred
to below as the regulations) govern the importation into the United
States of specified animals and animal products in order to prevent the
introduction into the United States of various communicable diseases.
The regulations require that certain animals be quarantined upon
arrival in the United States as a condition of importation. There are
two types of quarantine facilities for animals being imported into the
United States: government operated facilities and privately operated
facilities. The regulations contain requirements for the approval of
temporary private quarantine facilities for horses; however, the
regulations do not provide for the approval of permanent private
quarantine facilities for horses.
In an advance notice of proposed rulemaking published in the
Federal Register on February 26, 1996 (61 FR 7079, Docket No. 95-084-
1), we requested public comment on the need for and appropriate
standards for the establishment of permanent private quarantine
facilities for horses imported into the United States.
To provide additional opportunity for public comment, we will hold
a public meeting on Friday, May 17, 1996. The meeting will be held from
8 a.m. to 4 p.m. at the offices of the Animal and Plant Health
Inspection Service (APHIS), 4700 River Road, Riverdale, MD. We are
seeking recommendations concerning the need for permanent, private
quarantine facilities, locations where such additional facilities may
be needed, potential standards for building the facilities, and
regulatory oversight. Copies of a risk assessment related to the
establishment of permanent, private horse quarantine facilities will be
available at the meeting, or may be obtained from Dr. Joyce Bowling
(see FOR FURTHER INFORMATION CONTACT).
The meeting will be divided into three sessions dealing with the
following issues:
1. Equine diseases of concern to the U.S. Department of Agriculture
(USDA).
2. Requirements for building USDA owned and operated facilities and
the costs involved.
3. The risk assessment.
Each session will start with a short presentation by an APHIS
representative. Afterward, members of the public will be provided an
opportunity to ask questions and make comments concerning that session.
It is anticipated that 90 minutes will be alotted for each session.
A representative of APHIS will preside at the public meeting. The
presiding officer may limit the time for each presentation so that
everyone is accommodated and all interested persons have an opportunity
to participate. Any written statements submitted will be made part of
the record. A transcript will be made of the public meeting and will be
placed in the rulemaking record and will be available for public
inspection.
Any persons wishing to make presentations longer than 5 minutes, or
presentations that will require audiovisual equipment, should contact
Dr. Bowling in advance of the meeting.
APHIS will consider the comments and recommendations from the
meeting in making a decision about whether to propose approval of
permanent, private horse quarantine facilities and, if so, the
standards to be proposed. Any such proposal would be published in the
Federal Register for public comment.
Authority: 7 U.S.C. 1622; 19 U.S.C. 1306; 21 U.S.C. 102-105,
111, 114a, 134a, 134b, 134c, 134d, 134f, 135, 136, and 136a; 31
U.S.C. 9701; 7 CFR 2.22, 2.80, 371.2(d).
Done in Washington, DC, this 1st day of May 1996.
Terry L. Medley,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 96-11212 Filed 5-3-96; 8:45 am]
BILLING CODE 3410-34-P
Complete official Federal Register PDF
FR Doc. 96-11208 National Oil and Hazardous Substances Pollution Contingency Plan; National Priorities List
[Federal Register Volume 61, Number 88 (Monday, May 6, 1996)]
[Proposed Rules]
[Pages 20202-20206]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11208]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 300
[FRL-5467-5]
National Oil and Hazardous Substances Pollution Contingency Plan;
National Priorities List
AGENCY: Environmental Protection Agency.
ACTION: Notice of Intent to Delete the Bio-Ecology Systems Superfund
Site from the National Priorities List and Request for Comments.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) Region 6 announces
its intent to delete the Bio-Ecology Systems (Bio-Ecology) Superfund
site from the National Priorities List (NPL) and requests public
comment on this action. The NPL constitutes Appendix B of 40 CFR Part
300 which is the National Oil and Hazardous Substances Pollution
Contingency Plan (NCP), which EPA promulgated pursuant to Section 105
of the Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA), as amended. EPA and the State of Texas through
the (Texas Natural Resource Conservation Commission) (TNRCC) have
determined that all appropriate actions under CERCLA have been
implemented and that no further cleanup is appropriate. Moreover, EPA
and the State have determined that response activities conducted at the
site to date have been protective of public health, welfare, and the
environment.
DATES: The EPA will accept comments concerning its proposal for
deletion for thirty (30) days after publication of this notice in the
Federal Register and a newspaper of record.
ADDRESSES: Comments may be mailed to: Ms. Olivia Rodriguez Balandran,
Community Relations Coordinator, U.S. EPA, Region 6 (6SF-P), 1445 Ross
Avenue, Dallas, Texas 75202-2733, 1-800-533-3508 or (214) 665-6584.
Information Repositories: Comprehensive information on this site is
available through the EPA, Region 6, Public Docket, located at the EPA,
Region 6, Library Office and is available for viewing from 8:00 a.m. to
5:00 p.m., Monday through Friday, excluding holidays. The Library
Office address is: U.S. EPA, Region 6, Library, 12th Floor, 1445 Ross
Avenue, Dallas, Texas 75202-2733, Phone: (214) 665-6424 or 665-6427.
[[Page 20203]]
Background information from the Regional Public Docket is available
for viewing at the Bio-Ecology Systems Superfund Site information
repositories located at:
Grand Prairie City Hall, 317 College Street, Grand Prairie, Texas 75050
Grand Prairie City Library, 901 Conover, Grand Prairie, Texas 75051
U.S. Environmental Protection Agency, Region 6, Library, 12th Floor,
1445 Ross Avenue, Dallas, Texas 75202-2733, Phone: (214) 665-6424 or
665-6427
Texas Natural Resource Conservation Commission, 12118 North IH-35,
Building D, Room 190, Austin, Texas 78753, Phone: (512) 239-2920
FOR FURTHER INFORMATION CONTACT: Mr. Ernest R. Franke, Remedial Project
Manager (6SF-AT), U.S. Environmental Protection Agency, Region 6, 1445
Ross Avenue, Dallas, Texas 75202-2733, Phone: (214) 665-8521.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Introduction
II. National Priorities List (NPL) Deletion Criteria
III. Deletion Procedures
IV. History and Basis for Intended Site Deletion
I. Introduction
The U.S. Environmental Protection Agency (EPA) Region 6 announces
its intent to delete the Bio-Ecology Systems Superfund site, Grand
Prairie, Dallas County, Texas, from the National Priorities List (NPL),
which constitutes Appendix B of the National Oil and Hazardous
Substances Pollution Contingency Plan (NCP), Code of Federal
Regulations, Title 40 (40 CFR), Part 300, and requests comments on the
proposed deletion. The EPA identifies sites that appear to present a
significant risk to public health, welfare, or the environment, and
maintains the NPL as the list of those sites. Sites on the NPL may be
the subject of remedial actions financed by the Hazardous Substance
Superfund Response Trust Fund (Fund). Pursuant to Section 300.425(e)(3)
of the NCP, any site deleted from the NPL remains eligible for Fund-
financed remedial actions if conditions at the site warrant such
action.
The EPA will accept comments concerning this proposal for thirty
(30) days after publication of this notice in the Federal Register and
a newspaper of record.
Section II of this notice explains the criteria for deleting sites
from the NPL. Section III discusses procedures that EPA is using for
this action. Section IV discusses the history of this site and explains
how the site meets the deletion criteria.
II. NPL Deletion Criteria
The NCP establishes the criteria that the Agency uses to delete
sites from the NPL. In accordance with 40 CFR 300.425(e)(1), sites may
be deleted from or recategorized on the NPL where no further response
is appropriate. In making a determination to delete a release site from
the NPL, EPA shall consider, in consultation with the State, whether
any of the following criteria have been met:
(i) Responsible parties or other persons have implemented all
appropriate response actions required; or
(ii) All appropriate Fund-financed response under CERCLA has been
implemented, and no further response action by responsible parties is
appropriate; or
(iii) The remedial investigation has shown that the release poses
no significant threat to public health or the environment and,
therefore, taking remedial measures is not appropriate.
Prior to deciding to delete a site from the NPL, EPA must determine
that the remedy, or existing site conditions at sites where no action
is required, is protective of public health, welfare, and the
environment.
Deletion of a site from the NPL does not preclude eligibility for
subsequent Fund-financed actions if future site conditions warrant such
actions. Section 300.425(e)(3) of the NCP states that Fund-financed
actions may be taken at sites that have been deleted from the NPL.
III. Deletion Procedures
Upon determination that at least one of the criteria described in
Sec. 300.425(e)(1) has been met, EPA may formally begin deletion
procedures. The following procedures were used for the intended
deletion of this site:
(1) EPA Region 6 has recommended deletion and has prepared the
relevant documents.
(2) The State of Texas has concurred with the deletion decision.
(3) Concurrent with this National Notice of Intent to Delete, a
local notice will be published in local newspapers and shall be
distributed to appropriate federal, state, and local officials, and
other interested parties. This local notice announces a thirty (30) day
public comment period on the deletion package, which starts two weeks
from the date of the notice.
(4) The Region has made all relevant documents available in the
Regional Office and local site and State of Texas information
repositories.
These procedures have been completed for the Bio-Ecology Systems
Superfund site. This Federal Register notice, and a concurrent notice
in the local newspaper in the vicinity of the site, announce the
initiation of a 30-day public comment period and the availability for
review of the Notice of Intent to Delete. The public is asked to
comment on EPA's intention to delete the site from the NPL; all
critical documents needed to evaluate EPA's decision are included in
the information repository and deletion docket.
Upon completion of the 30-day public comment period, EPA Region 6
will evaluate these comments before the final decision to delete. The
Region will prepare a Responsiveness Summary, to address concerns
raised by the comments received during the public comment period. The
Responsiveness Summary will be made available to the public at the
information repositories. Members of the public are welcome to contact
the EPA Regional Office to obtain a copy of the Responsiveness Summary,
when available. If EPA still determines that deletion from the NPL is
appropriate after receiving public comments, a Final Notice of Deletion
will be published in the Federal Register. However, it is not until a
Notice of Deletion is published in the Federal Register that the site
would be actually deleted.
IV. History and Basis for Intended Site Deletion
The following summary provides the Agency's rationale for deleting
the Bio-Ecology Systems Superfund site from the NPL.
The Bio-Ecology Systems (Bio-Ecology) site is an 11.2 acre site
located at 4100 East Jefferson Avenue in Grand Prairie, Dallas County,
Texas.(Figure 1) It is approximately 5 miles south of Interstate
Highway 30 between Fort Worth and Dallas. Bio-Ecology is a former waste
disposal facility which occupied a majority of the 11.2 acre area. Bio-
Ecology is bounded in all directions by privately-held property and
also on the north, east, and south by Mountain Creek. Mountain Creek
Lake and the Trinity River are located approximately \3/4\ mile
southwest and 2\1/2\ miles north of Bio-Ecology, respectively. Bio-
Ecology is located within the 100-year floodplain of Mountain Creek
(Trinity River Basin) and has been extensively flooded on at least two
occasions during facility operations (June 1973 & June 1974).
Bio-Ecology was a Class I industrial solid waste management
facility,
[[Page 20204]]
originally authorized by a permit issued by the Texas Water Quality
Board (TWQB) on April 24, 1972. Permitted activities included the
following: (1) incineration of combustible liquids, slurries, and
sludges (subject to Texas Air Control Board standards for odors and
emissions); (2) chemical treatment of acids, caustics, and other waste
chemical solutions, including those containing heavy metals; (3)
biological oxidation of waste waters resulting from separation of mud-
water and oil-water mixtures and from chemical treatment of other
wastes; and (4) a modified landfill of solids resulting from the other
treatment processes (Figure 2). Bio-Ecology was actively operated from
June 1972 through June 1978.
Operations at the site were characterized by frequent litigation
filed by the Texas Department of Water Resources (TDWR) and its
predecessor agency, the Texas Water Quality Board. Both agencies had
attempted to force the company to comply with permit standards and all
applicable Federal and State laws and regulations. During the 6-year
operation of the facility, Bio-Ecology was cited for a number of major
violations including the following: (1) Construction of new facilities
(i.e., retaining basins) without proper authorization; (2) discharge of
wastewater into Mountain Creek; (3) allowing liquid levels in holding
basins to reach the brink without any freeboard; (4) storage of drums,
several times beyond the permit maximum (200 drums); and (5) several
incidents of oil spills.
On or about June 3-4, 1973, approximately 5 inches of rain fell on
the site during a 24-hour period. Approximately 90 percent of the
facility was inundated. State inspections of the site observed flooding
in several storage basins and wastewater runoff into Mountain Creek.
The site was to have been designed to adequately protect against a 24-
hour, 25-year rainfall. However, the rainfall during June 3-4, 1973 was
of less than a 25-year frequency. Orders were issued by the Texas
courts on July 6, 1973, and March 24, 1977, requiring Bio-Ecology to
comply with its permit and remedy the above mentioned violations. On
June 13, 1978, Bio-Ecology filed for bankruptcy under the provisions of
Chapter XI of the Bankruptcy Act.
After payment of all priority creditors, the TDWR was able to
recover $28,870 from Bio-Ecology for cleanup activities. In December
1979, a contract was made between TDWR and the Owner/Operator to
partially close the site. The contract required the following: (1) all
open receiving basins and pits were drained; (2) all containerized
wastes were buried on site and covered with a pelletized lime blanket;
and (3) sludges in various lagoons and landfills were moved to
consolidate them on-site. Due to constraints in funding, a number of
metal tanks containing oils, solvents, and paint sludges remained at
the site. Approximately $34,000 (including the $28,870 obtained from
Bio-Ecology bankruptcy) was expended during the period December 12,
1979, through February 15, 1980, for the partial site cleanup.
Bio-Ecology was proposed for the National Priorities List (NPL) on
December 30, 1982, and then promulgated on September 8, 1983, with a
Hazard Ranking System (HRS) score of 35.06.
Since Bio-Ecology was proposed for the NPL, it became eligible for
funding under the Comprehensive Environmental Response, Compensation,
and Liability Act (CERCLA) of 1980. In November 1981, an application
for a Cooperative Agreement (CA) for a Remedial Investigation (RI) and
Feasibility Study (FS) at the site was filed by TDWR. The CA between
EPA and the State of Texas was approved on April 12, 1982. An award in
the amount of $328,000 was authorized to conduct a State-lead RI/FS.
The State of Texas, in turn, awarded a contract to Woodward-Clyde
Consultants (WCC) to perform the RI/FS. The RI included a hydrologic
analysis, a stratigraphic analysis, a hydrogeologic analysis and a
geochemical analysis. The results of these analyses are as follows.
The hydrologic analysis showed the site to be poorly drained and
subject to surface run-off, erosion, and flooding. Approximately 75
percent of the site was determined to be within the 100-year
floodplain.
The stratigraphic analysis identified four subsurface strata within
the upper 60 feet at the site. The uppermost stratum from the surface
to about 20 feet in depth consists of modern alluvial deposits from the
meander deposition of Mountain Creek on the north, east, and south of
the site. These modern alluvial deposits are pervious deposits capable
of transmitting water vertically and laterally and are thus subject to
infiltration by rainfall and high flood waters of Mountain Creek.
Underlying the modern alluvial deposits are older alluvial deposits
from flood basin deposition of the Mountain Creek valley. These
deposits are primarily high plasticity clays with occasional beds of
low plasticity clays. The older flood basin soils contain fissures and
cracks caused by cyclic shrinkage and swelling. The older alluvial
deposits, therefore, act as a leaky aquitard capable of transmitting
fluids vertically. These deposits vary in thickness from 25-40 feet
across the site. Below this stratum is about a five-foot layer of
remnant quaternary gravel deposits which is the first representative
water-bearing aquifer encountered. Beneath the gravel deposits is about
a 200-foot thick section of the Eagle Ford shale. This shale is for all
practical purposes, impervious, and overlies the Woodbine Aquifer. The
Woodbine Aquifer is used as a drinking water supply for the City of
Grand Prairie.
The groundwater flow, at the time of investigation, was generally
from northwest to southeast across the site in the remnant gravel
aquifer. Groundwater encountered was also under an artesian head of
about 15 feet (measured from the older alluvial deposits). This aquifer
was slightly contaminated in the vicinity of the site and was subject
to contamination from wastes at the site migrating through the
secondary structure of older alluvial deposits. Groundwater is present
in the upper alluvial deposits at water levels below the level of
surface water in the adjacent stream channel and nearby pond northwest
of the site. These surface waters are recharging the alluvium at the
site. A search of drinking-water well records was conducted during the
investigation and did not reveal anyone using the shallow aquifer as a
drinking water source.
The geochemical analysis showed that surface contamination at the
site was primarily restricted to on-site locations and to off-site
drainage areas. On-site surface contamination was extensive for metals,
cyanide, and organics. Composite samples from the site indicated high
concentrations of lead (1,100 ppm), arsenic (210 ppm), and cyanide
(1,030 ppm). Analysis also indicated the presence of many organic
contaminants including toluene (19 ppm), trichloroethylene (1000 ppm),
benzene (1.5 ppm), methylene chloride (.087 ppm), and naphthalene (240
ppm). Off-site contamination did not appear to be severe at the time of
the field investigation. Likewise, subsurface contamination appeared to
be primarily restricted to waste deposits and their vicinity.
There were estimated to be approximately 40,000 cubic yards (CY) of
wastes and highly contaminated soils at the site (Figure 3). The site
work for the investigation was completed in January 1983. More detail
of the RI may be found in WCC's Site Investigation Report dated April
1983.
[[Page 20205]]
The FS began in February 1983. The FS conducted by WCC developed
the following objectives based on the results of the RI.
Remove above ground structures, dispose of contents, and
treat the associated northern off-site contaminated soil area;
Raise the site above the 100 year floodplain;
Provide adequate site drainage;
Treat special wastes (PCB's in an on-site tank, buried
drums and containers including medical vials and laboratory chemicals,
areas of high arsenic concentrations, and areas of cyanide presence);
and
Control of off-site migration of wastes by surface and
subsurface migration pathways to surface and subsurface waters and
adjacent land areas in order to mitigate future impacts on these target
receptors (no significant air migration problems were detected during
the RI).
More details of the FS may be found in WCC's Remedial Alternatives
Analysis Report dated July 1983.
An Initial Remedial Measure (IRM) was concluded at the Bio-Ecology
site in September 1983. The IRM cleanup activities included the
following:
1. Remove and dispose of approximately 80,000 gallons of hazardous
liquids and sludges. (Organics, PCB's, Heavy Metals)
2. Decontaminate and remove the 15 storage tanks and other surface
structures.
3. Remove and dispose of about 35 cubic yards of contaminated soil.
4. Surface cleanup. (Miscellaneous debris, site grading, etc.)
This action was deemed necessary to comply with the National
Contingency Plan (NCP), with regard to hazardous substances in drums,
barrels, tanks, or other bulk storage containers above ground and
contaminated soils at or near the surface which posed a threat to
public health or the environment.
The Record of Decision (ROD) was signed by Lee Thomas, Assistant
Administrator, Office of Solid Waste and Emergency Response at EPA
Headquarters on June 6, 1984. The description of the selected remedy
was:
Raise the elevation of the site above the 100-year flood
plain.
Construct an on-site disposal cell with synthetic liner
and a leachate collection system.
Construct a final cover and liner and leachate collection
and removal system in accordance with standards promulgated under 40
CFR Part 264 (Resource Conservation and Recovery Act) and applicable
guidance.
Stabilize the waste and place in on-site cell.
Construct a fence with warning signs.
Install a groundwater monitoring system in accordance with
standards promulgated under 40 CFR part 264.
The ROD stated that the groundwater monitoring program was to
determine the existence of any present groundwater contamination
outside the containment area; however, the decision to proceed with the
cleanup did not encompass remedial action with respect to any
groundwater contamination that might be discovered. If such ground
water contamination was found, appropriate remedial response would be
evaluated, and a future determination regarding the compliance of the
response with Resource Conservation and Recovery Act (RCRA)
requirements would be made. If no existing contamination was found, the
monitoring program was to ensure the continued effectiveness of the
selected containment remedy. The State of Texas was consulted and
agreed with the remedy.
A Cooperative Agreement (CA), i.e., a grant, was awarded by EPA to
the Texas Department of Water Resources (TDWR), now known as the Texas
Natural Resource Conservation Commission (TNRCC), on May 12, 1986, to
fund the Remedial Action Construction Contract and Oversight Engineer
Contract. The $4,143,790 provided to TDWR through the CA was
supplemented by $2,788,000 provided by the Air Force under terms of an
Inter-Agency Agreement as part of a settlement with EPA to pay for
their contribution of wastes to the site when it was operating. Bids
for the construction contract were solicited and Rollins Environmental
Services (RES) was awarded the contract on March 16, 1987 as low bidder
at a contract cost of $3,789,537. WCC was retained as TDWR's oversight
engineer. The Notice to Proceed was issued to RES on April 30, 1987 and
the contractor mobilized to the site on May 4, 1987.
Construction work proceeded through the spring and early summer of
1987 with excavation and temporary stockpiling of waste materials as
the RCRA cell was being constructed. It was soon discovered that the
volume of waste originally estimated in the contract document (54,300
cubic yards) would be exceeded and the RCRA cell needed to be enlarged.
This was accomplished through change order at a cost of approximately
$294,000. The final volume of soil placed in the cell was 85,332 cubic
yards, an increase of approximately 31,000 cubic yards more than
originally anticipated. This 57% increase in soil to be excavated,
moved, stabilized, and placed in the cell (as well as increased
dewatering costs) resulted in the largest change order increase in the
project, at a cost of $1,227,000. This increase is documented in change
order number 7 and more details about these construction activities can
be found in WCC'S August 1988 Final Construction Report (pages 19 &
20). Five other relatively minor change orders were approved for a
total final construction contract cost (original, plus seven change
orders) of $5,317,852 or an increase of 40% beyond the original
contract cost. The RCRA cell was completed and closed in April of 1988
and the prefinal inspection of the substantially completed work was
held June 27, 1988.
The final inspection of the completed work was held August 31,
1988, and a Certificate of Completion was issued.
In April 1993 a Close Out Report was prepared in which EPA, in
consultation with the State of Texas (TNRCC), determined that all
appropriate response actions required to ensure the protectiveness of
human health and the environment at the Bio-Ecology Systems Superfund
site had been implemented.
Pursuant to 40 CFR 300.510 of the NCP, the State (TNRCC) has
assumed all responsibility for Operation and Maintenance (O&M) at this
site. The Operational & Functional (O&F) period activities from 1988 to
1993 are documented in Section XI of the April 1993 Close Out Report
and Section VI of the Summary of the O&M Sampling Events contained in
the Five-Year Review dated November 1994. The findings of both the
Close Out Report and the Five-Year Review support the determination
that there is not a serious leak of the top or bottom liner systems at
Bio-Ecology and that the site is operational and functional.
Significant contamination has not been found in the groundwater at the
site to date, although there have been a few sporadic findings of
individual constituents in various wells at levels of concern that
necessitate continued monitoring and evaluation. Continued pumping of
leachate from the vault will be required throughout the O&M period
until the system is pumped dry, and continued monitoring of the
groundwater will also be needed. These activities are required by the
O&M plan being implemented by TNRCC.
The Agency for Toxic Substance and Disease Registry (ATSDR) issued
a Site Review and Update (SRU) report for the Bio-Ecology Systems
Superfund Site on March 3, 1993. The SRU concluded that, ``The waste is
inaccessible; it is enclosed in a hazardous waste land fill.
[[Page 20206]]
It was concluded that the site is not a public health threat to area
residents; the area residents are not within one-half mile of the
site.'' No further actions or evaluations were recommended.
Hazardous substances encapsulated in the cell on the site, however,
are above health-based levels that do not allow for unlimited use of
and unrestricted access to the consolidation cell area. Therefore, EPA
conducted a statutory five-year review in November of 1994, and the
next scheduled review will be in November 1999, pursuant to OSWER
Directive 9355.7-02, ``Structure and Components of Five-Year Reviews.''
Based on the successful encapsulation of hazardous substances in
the consolidation cell, the results of O&M monitoring to date, and
ATSDR's review, EPA has determined that the remedy is protective and no
further response action is necessary. This is consistent with current
EPA policy as discussed on page 66601 of the December 24, 1991 Federal
Register, 40 CFR Part 300. State-funded O&M and EPA-funded Five-Year
Reviews will continue in the future, but site deletion should proceed
since applicable deletion criteria have been satisfied.
EPA, with the concurrence of the State of Texas, has determined
that all appropriate Fund-financed responses under CERCLA at the Bio-
Ecology Systems Superfund Site have been completed, and that no further
cleanup by responsible parties is appropriate. Moreover, EPA and the
State of Texas have determined that remedial actions conducted at the
site to date have been protective of public health, welfare, and the
environment.
Dated: April 9, 1996.
Jane Saginaw,
Regional Administrator.
[FR Doc. 96-11208 Filed 5-3-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-11206 Approval and Promulgation of State Implementation Plans; California State Implementation Plan Revision, San Joaquin Valley Unified Air Pollution Control District, Santa Barbara County Air Pollution Control District, South Coast Air Quality Management District
[Federal Register Volume 61, Number 88 (Monday, May 6, 1996)]
[Proposed Rules]
[Pages 20199-20200]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11206]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[CA 162-2-0002b; FRL-5466-2]
Approval and Promulgation of State Implementation Plans;
California State Implementation Plan Revision, San Joaquin Valley
Unified Air Pollution Control District, Santa Barbara County Air
Pollution Control District, South Coast Air Quality Management District
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: EPA is proposing to approve revisions to the California State
Implementation Plan (SIP) which concern the control of volatile organic
compound (VOC) emissions from aerospace assembly and component
manufacturing operations, motor vehicle and mobile equipment coating
operations, crude oil production and separation, and storage of
reactive organic compound liquids (ROC).
The intended effect of proposing approval of these rules is to
regulate emissions of VOCs in accordance with the requirements of the
Clean Air Act, as amended in 1990 (CAA or the Act). In the Final Rules
Section of this Federal Register, the EPA is approving the state's SIP
revision as a direct final rule without prior proposal because the
Agency views this as a noncontroversial
[[Page 20200]]
revision amendment and anticipates no adverse comments. A detailed
rationale for this approval is set forth in the direct final rule. If
no adverse comments are received in response to this proposed rule, no
further activity is contemplated in relation to this rule. If EPA
receives adverse comments, the direct final rule will be withdrawn and
all public comments received will be addressed in a subsequent final
rule based on this proposed rule. The EPA will not institute a second
comment period on this document. Any parties interested in commenting
on this action should do so at this time.
DATES: Comments on this proposed rule must be received in writing by
June 5, 1996.
ADDRESSES: Written comments on this action should be addressed to:
Daniel A. Meer, Rulemaking Section (A-5-3), Air and Toxics Division,
U.S. Environmental Protection Agency, Region 9, 75 Hawthorne Street,
San Francisco, CA 94105-3901.
Copies of the rule revisions and EPA's evaluation report of each
rule are available for public inspection at EPA's Region 9 office
during normal business hours. Copies of the submitted rule revisions
are also available for inspection at the following locations:
Rulemaking Section (A-5-3), Air and Toxics Division, U.S. Environmental
Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, CA
94105.
Environmental Protection Agency, Air Docket (6102), 401 ``M'' Street
SW., Washington, D.C. 20460.
California Air Resources Board, Stationary Source Division, Rule
Evaluation Section, 2020 ``L'' Street, Sacramento, CA 92123-1095.
San Joaquin Valley Unified Air Pollution Control District, 1999
Tuolumne Street, Suite #200, Fresno, CA 93721.
Santa Barbara County Air Pollution Control District, 26 Castilian
Drive, B-23, Goleta, CA 93117.
South Coast Air Quality Management District, 21865 E. Copley Drive,
Diamond Bar, CA 91765-4182.
California Air Resources Board, Stationary Source Division, Rule
Evaluation Section, 2020 ``L'' Street, Sacramento, CA 95812.
FOR FURTHER INFORMATION CONTACT: Helen Liu, Rulemaking Section (A-5-3),
Air and Toxics Division, U.S. Environmental Protection Agency, Region
9, 75 Hawthorne Street, San Francisco, CA 94105-3901, Telephone: (415)
744-1199.
SUPPLEMENTARY INFORMATION: This document concerns the following rules
San Joaquin Valley Unified Air Pollution Control District (SJVUAPCD)
Rule 4602--Motor Vehicle and Mobile Equipment Coating Operations, Santa
Barbara County Air Pollution Control District (SBCAPCD) Rule 325--Crude
Oil Production and Separation, SBCAPCD Rule 326--Storage of Reactive
Organic Compound Liquids, and South Coast Air Quality Management
District (SCAQMD) Rule 1124--Aerospace Assembly and Component
Manufacturing Operations. California Air Resources Board submitted the
rules to EPA on the following dates: October 13, 1995, March 29, 1994,
March 29, 1994, and February 24, 1995, respectively. For further
information, please see the information provided in the Direct Final
action which is located in the Rules Section of this Federal Register.
Authority: 42 U.S.C. 7401-7671q.
Dated: April 18, 1996.
Felicia Marcus,
Regional Administrator.
[FR Doc. 96-11206 Filed 5-3-96; 8:45 am]
BILLING CODE 6560-50-W
Complete official Federal Register PDF
FR Doc. 96-11201 Approval and Promulgation of Implementation Plans; Ohio
[Federal Register Volume 61, Number 88 (Monday, May 6, 1996)]
[Proposed Rules]
[Page 20200]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11201]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[OH93-1-7290b; FRL-5467-4]
Approval and Promulgation of Implementation Plans; Ohio
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The EPA proposes to approve the Particulate Matter contingency
measures State Implementation Plan (SIP) revisions submitted by the
State of Ohio on July 17, 1995. This submittal addresses the Federal
Clean Air Act requirement to submit contingency measures for
particulate matter with an aerodynamic diameter less than or equal to a
nominal 10 micrometers (PM) for the areas designated as nonattainment
for the PM National Ambient Air Quality Standards (NAAQS). Contingency
measures are emission reductions which are to be implemented, with no
further action, in the event that an area fails to meet air quality
standards. In the final rules section of this Federal Register, the EPA
is approving this action as a direct final rule without prior proposal
because EPA views this as a noncontroversial action and anticipates no
adverse comments. A detailed rationale for the approval is set forth in
the direct final rule. If no adverse comments are received in response
to that direct final rule, no further activity is contemplated in
relation to this proposed rule. If EPA receives adverse comments, the
direct final rule will be withdrawn and all public comments received
will be addressed in a subsequent final rule based on the proposed
rule. EPA will not institute a second comment period on this action.
Any parties interested in commenting on this document should do so at
this time.
DATES: Comments on this proposed rule must be received on or before
June 5, 1996.
ADDRESSES: Written comments should be mailed to: J. Elmer Bortzer,
Chief, Regulation Development Section, Air Programs Branch (AR-18J),
U.S. Environmental Protection Agency, Region 5, 77 West Jackson
Boulevard, Chicago, Illinois 60604.
Copies of the State submittal and EPA's analysis of it are
available for inspection at: Regulation Development Section, Air
Programs Branch (AR-18J), U.S. Environmental Protection Agency, Region
5, 77 West Jackson Boulevard, Chicago, Illinois 60604.
FOR FURTHER INFORMATION CONTACT: David Pohlman, Regulation Development
Section, Air Programs Branch (AR-18J), U.S. Environmental Protection
Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604,
(312) 886-3299.
SUPPLEMENTARY INFORMATION: For additional information see the direct
final rule published in the rules section of this Federal Register.
Dated: April 19, 1996.
Valdas V. Adamkus,
Regional Administrator.
[FR Doc. 96-11201 Filed 5-03-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-11199 Approval and Promulgation of Air Quality Implementation Plans; Utah; Emission Statement Regulation, Ozone Nonattainment Area Designation, Definitions
[Federal Register Volume 61, Number 88 (Monday, May 6, 1996)]
[Proposed Rules]
[Pages 20200-20201]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11199]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[UT18-1-6778b; FRL-5500-2]
Approval and Promulgation of Air Quality Implementation Plans;
Utah; Emission Statement Regulation, Ozone Nonattainment Area
Designation, Definitions
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: EPA is proposing approval of the revision to the Utah State
Implementation Plan (SIP) that was submitted by the Governor of Utah on
November 12, 1993, for the purpose of implementing an emission
statement program for stationary sources within the Salt Lake and Davis
Counties (SLDC) ozone nonattainment area. The emission statement
inventory regulation, Utah Air
[[Page 20201]]
Conservation Regulation (UACR) R307-1-3.5.4., was submitted by the
State to satisfy the Clean Air Act (CAA), as amended in 1990,
requirements for an emission statement program to be part of the SIP
for Utah. EPA's approval will serve to make the emission statement
inventory regulation federally enforceable. In addition, EPA is
proposing to approve other minor changes involving definitions in UACR
R307-1-1. and the ozone nonattainment area designation definition in
UACR R307-1-3.3.3.
In the Rules Section of this Federal Register, EPA is approving the
State's SIP revision as a direct final rule without prior proposal
because the Agency views this as a noncontroversial revision and
anticipates no adverse comments. A detailed rationale for the approval
is set forth in the direct final rule. If no adverse comments are
received in response to this proposed rule, no further activity is
contemplated in relation to this rule. If EPA receives adverse
comments, the direct final rule will be withdrawn and all public
comments received will be addressed in a subsequent final rule based on
this proposed rule. EPA will not institute a second comment period on
this action. Any parties interested in commenting on this action should
do so at this time.
DATES: Comments on this proposed rule must be received in writing by
June 5, 1996.
ADDRESSES: Written comments should be addressed to: Richard R. Long,
Director, Air Program (8P2-A), United States Environmental Protection
Agency, Region 8, 999 18th Street, Suite 500, Denver, Colorado 80202-
2466.
Copies of the documents relevant to this action are available for
public inspection between 8 a.m. and 4 p.m., Monday through Friday at
the following office: United States Environmental Protection Agency,
Region 8, Air Program, 999 18th Street, Suite 500, Denver, Colorado
80202-2466.
FOR FURTHER INFORMATION CONTACT: Tim Russ, Air Program (8P2-A), United
States Environmental Protection Agency, Region 8, 999 18th Street,
Suite 500, Denver, Colorado 80202-2466, Telephone number: (303) 312-
6479.
SUPPLEMENTARY INFORMATION: See the information provided in the direct
final action which is located in the Rules Section of this Federal
Register.
Dated: September 29, 1995.
Jack W. McGraw,
Acting Regional Administrator.
Editorial note: This document was received at the Office of the
Federal Register May 1, 1996.
[FR Doc. 96-11199 Filed 5-3-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-11197 Approval and Promulgation of Implementation Plans; Illinois
[Federal Register Volume 61, Number 88 (Monday, May 6, 1996)]
[Proposed Rules]
[Pages 20201-20202]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11197]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[IL129-1-7046b; FRL-5464-9]
Approval and Promulgation of Implementation Plans; Illinois
AGENCY: Environmental Protection Agency.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The United States Environmental Protection Agency (USEPA)
proposes to approve a State revision to the Illinois sulfur dioxide
State Implementation Plan (SO2 SIP), submitted on March 14, 1995.
This revision revises the SO2 emission limitations applicable to
Madison
[[Page 20202]]
County through three Federally enforceable State operating permits.
In the final rules section of this Federal Register, the USEPA is
publishing a full approval of the State's SIP revision request as a
direct final rule without prior proposal, because USEPA views this
action as a noncontroversial revision and anticipates no adverse
comments. A detailed rationale for the approval is set forth in the
direct final rule. If no adverse comments are received in response to
these actions, no further activity is contemplated in relation to this
proposed rule.
If USEPA receives timely comments adverse to or critical of the
approval, which have not been addressed by the State or USEPA, the
direct final rule will be withdrawn and all public comments received
will be addressed in a subsequent final rule based on this proposed
rule. Any parties interested in commenting on this action should do so
at this time.
DATES: Comments on this proposed rule must be received on or before
June 5, 1996.
ADDRESSES: Written comments should be mailed to: J. Elmer Bortzer,
Chief, Regulation Development Section, Air Programs Branch (AR-18J),
United States Environmental Protection Agency, Region 5, 77 West
Jackson Boulevard, Chicago, Illinois 60604.
Copies of the State submittal and USEPA's analysis of it are
available for inspection at:
Air and Radiation Division, Air Programs Branch, United States
Environmental Protection Agency, Region 5, 77 West Jackson Boulevard,
Chicago, Illinois 60604.
FOR FURTHER INFORMATION CONTACT: Mary Onischak, Environmental Engineer,
Air Programs Branch, (AR-18J), United States Environmental Protection
Agency, Region 5, Chicago, Illinois 60604, (312) 353-5954.
SUPPLEMENTARY INFORMATION: For additional information, see the direct
final rule published in the rules section of this Federal Register.
Dated: April 18, 1996.
David Kee,
Acting Regional Administrator.
[FR Doc. 96-11197 Filed 5-6-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-11195 Approval and Promulgation of State Implementation Plans; California State Implementation Plan Revision, Placer County Air Pollution Control District and Ventura County Air Pollution Control District
[Federal Register Volume 61, Number 88 (Monday, May 6, 1996)]
[Proposed Rules]
[Page 20201]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11195]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[CA 140-10-7261b; FRL-5457-1]
Approval and Promulgation of State Implementation Plans;
California State Implementation Plan Revision, Placer County Air
Pollution Control District and Ventura County Air Pollution Control
District
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed Rule.
-----------------------------------------------------------------------
SUMMARY: EPA is proposing to approve revisions to the California State
Implementation Plan (SIP), which concern the control of volatile
organic compound (VOC) emissions from the storage and transfer of
organic liquids and tank degassing operations.
The intended effect of proposing approval of these rules is to
regulate emissions of VOCs in accordance with the requirements of the
Clean Air Act, as amended in 1990 (CAA or the Act). In the Final Rules
Section of this Federal Register, the EPA is approving the state's SIP
revisions as a direct final rule without prior proposal because the
Agency views these as noncontroversial revision amendments and
anticipates no adverse comments. A detailed rationale for this approval
is set forth in the direct final rule. If no adverse comments are
received in response to this proposed rule, no further activity is
contemplated in relation to these rules. If EPA receives adverse
comments, the direct final rule will be withdrawn and all public
comments received will be addressed in a subsequent final rule based on
this proposed rule. The EPA will not institute a second comment period
on this document. Any parties interested in commenting on this action
should do so at this time.
DATES: Comments on this proposed rule must be received in writing by
June 5, 1996.
ADDRESSES: Written comments on this action should be addressed to:
Daniel A. Meer, Rulemaking Section (A-5-3), Air and Toxics Division,
U.S. Environmental Protection Agency, Region 9, 75 Hawthorne Street,
San Francisco, CA 94105-3901.
Copies of the rules and EPA's evaluation reports of the rules are
available for public inspection at EPA's Region 9 office during normal
business hours. Copies of the submitted rules are also available for
inspection at the following locations:
California Air Resources Board, Stationary Source Division, Rule
Evaluation Section, 2020 ``L'' Street, Sacramento, CA 95814.
Placer County Air Pollution Control District, 11464 B Avenue,
Auburn, CA 95603.
Ventura County Air Pollution Control District, Rule Development
Section, 669 County Square Drive, Ventura, CA 93003.
FOR FURTHER INFORMATION CONTACT: Duane F. James, Rulemaking Section (A-
5-3), Air and Toxics Division, U.S. Environmental Protection Agency,
Region 9, 75 Hawthorne Street, San Francisco, CA 94105-3901, Telephone:
(415) 744-1191, email: [email protected].
SUPPLEMENTARY INFORMATION: This document concerns the Placer County Air
Pollution Control District's Rule 212, ``Storage of Organic Liquids,''
and Rule 215, ``Transfer of Gasoline into Tank Trucks, Trailers and
Railroad Tank Cars at Loading Facilities,'' and the Ventura County Air
Pollution Control District's Rule 74.26, ``Crude Oil Storage Tank
Degassing Operations,'' and Rule 74.27, ``Gasoline and ROC Liquid
Storage Tank Degassing Operations.'' These rules were submitted to EPA
on January 24, 1995 (Rules 215, 74.26, and 74.27) and October 13, 1995
(Rule 212), by the California Air Resources Board. For further
information, please see the information provided in the Direct Final
action which is located in the Rules Section of this Federal Register.
Authority: 42 U.S.C. 7401-7671q.
Dated: March 11, 1996.
Felicia Marcus,
Regional Administrator.
[FR Doc. 96-11195 Filed 5-03-96; 8:45 am]
BILLING CODE 6560-50-W
Complete official Federal Register PDF
FR Doc. 96-11171 Airworthiness Directives; Pratt & Whitney JT9D Series Turbofan Engines
[Federal Register Volume 61, Number 88 (Monday, May 6, 1996)]
[Proposed Rules]
[Pages 20192-20194]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11171]
=======================================================================
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 39
[Docket No. 95-ANE-69]
Airworthiness Directives; Pratt & Whitney JT9D Series Turbofan
Engines
AGENCY: Federal Aviation Administration, DOT.
ACTION: Notice of proposed rulemaking (NPRM).
-----------------------------------------------------------------------
SUMMARY: This document proposes the adoption of a new airworthiness
directive (AD) that is applicable to Pratt & Whitney JT9D series
turbofan engines. This proposal would require initial and repetitive
eddy current inspections (ECI) of 14th and 15th stage high pressure
compressor (HPC) disks for cracks, and removal of cracked disks and
replacement with serviceable parts. This proposal is prompted by a
report of a 14th stage HPC disk bore found cracked during a shop
inspection. The actions specified by the proposed AD are intended to
prevent 14th and 15th stage HPC disk rupture, which could result in an
uncontained engine failure and damage to the aircraft.
DATES: Comments must be received by July 5, 1996.
ADDRESSES: Submit comments in triplicate to the Federal Aviation
Administration (FAA), New England Region, Office of the Assistant Chief
Counsel, Attention: Rules Docket No. 95-ANE-69, 12 New England
Executive Park, Burlington, MA 01803-5299. Comments may also be
submitted to the Rules Docket by using the following Internet address:
``[email protected]''. Comments may be inspected at this
location between 8:00 a.m. and 4:30 p.m., Monday through Friday, except
Federal holidays.
The service information referenced in the proposed rule may be
obtained from Pratt & Whitney, Publications Department, Supervisor
Technical Publications Distribution, M/S 132-30, 400 Main St., East
Hartford, CT 06108; telephone (860) 565-7700. This information may be
examined at the FAA, New England Region, Office of the Assistant Chief
Counsel, 12 New England Executive Park, Burlington, MA.
FOR FURTHER INFORMATION CONTACT: Daniel Kerman, Aerospace Engineers,
Engine Certification Office, FAA, Engine and Propeller Directorate, 12
New England Executive Park, Burlington, MA 01803-5299; telephone (617)
238-7130; fax (617) 238-7199.
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 above, will be considered before taking action on the
proposed rule. The proposals contained in this notice may be changed in
light of the comments received.
Comments are specifically invited on the overall regulatory,
economic, environmental, and energy aspects of the proposed rule. All
comments submitted will be available, both before and after the closing
date for comments, in the Rules Docket for examination by interested
persons. A report summarizing each FAA-public contact concerned with
the substance of this proposal will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments
submitted in response to this notice must submit a self-addressed,
stamped postcard on which the following statement is made: ``Comments
to Docket Number 95-ANE-69.'' 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, New England Region, Office of the Assistant Chief Counsel,
Attention: Rules Docket No. 95-ANE-69, 12 New
[[Page 20193]]
England Executive Park, Burlington, MA 01803-5299.
Discussion
The Federal Aviation Administration (FAA) received a report of
finding during a shop inspection a cracked 14th stage high pressure
compressor (HPC) disk installed on a Pratt & Whitney (PW) Model JT9D-
7R4D turbofan engine. The investigation revealed that the 14th and 15th
stage disk bores can crack due to a fatigue strength debit associated
with large unrecrystallized grain microstructure. This material
phenomenon results in an associated debit to the 14th and 15th stage
HPC disk low cycle fatigue life. This condition, if not corrected,
could result in 14th and 15th stage HPC disk rupture, which could
result in an uncontained engine failure and damage to the aircraft.
The FAA has reviewed and approved the technical contents of Non-
Destructive Inspection Procedure No. 858 (NDIP-858), dated November 7,
1995, attached to PW Alert Service Bulletin (ASB) No. JT9D-7R4-A72-524,
dated December 13, 1995, and ASB No. A6232, Revision 1, dated January
11, 1996. That NDIP describes procedures for eddy current inspections
(ECI) of 14th and 15th stage HPC disks for cracks.
Since an unsafe condition has been identified that is likely to
exist or develop on other products of this same type design, the
proposed AD would require initial and repetitive ECI of 14th and 15th
stage HPC disks for cracks, and removal of cracked disks and
replacement with serviceable parts. The actions would be required to be
accomplished in accordance with the ASB's described previously.
There are approximately 1,100 engines of the affected design in the
worldwide fleet. The FAA estimates that 170 engines installed on
aircraft of U.S. registry would be affected by this proposed AD. The
initial and repetitive ECI would take place during regularly scheduled
maintenance, and would therefore require no additional costs to perform
the actions required by this proposed AD.
The regulations proposed herein would not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this
proposal would not have sufficient federalism implications to warrant
the preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this proposed
regulation (1) Is not a ``significant regulatory action'' under
Executive Order 12866; (2) is not a ``significant rule'' under the DOT
Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
and (3) if promulgated, will not have a significant economic impact,
positive or negative, on a substantial number of small entities under
the criteria of the Regulatory Flexibility Act. A copy of the draft
regulatory evaluation prepared for this action is contained in the
Rules Docket. A copy of it may be obtained by contacting the Rules
Docket at the location provided under the caption ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Safety.
The Proposed Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration proposes to amend
part 39 of the Federal Aviation Regulations (14 CFR part 39) as
follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 USC 106(g), 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by adding the following new
airworthiness directive:
Pratt & Whitney: Docket No. 95-ANE-69.
Applicability: Pratt & Whitney (PW) Model JT9D-7R4 series, -59A,
-70A, -7Q, and -7Q3 turbofan engines, with the following 14th and
15th stage high pressure compressor (HPC) disk installed: part
numbers (P/N's) 5000814-01, 790014, 789914, 790114, 5000815-01,
5000815-021, 704315, 704315-001, 786215, 786215-001, 704314, 789814,
and 790214. These engines are installed on but not limited to Airbus
A300 and A310 series, Boeing 747 and 767 series, and McDonnell
Douglas DC-10 series aircraft.
Note: This airworthiness directive (AD) applies to each engine
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 engines 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 (f) to request approval from the
Federal Aviation Administration (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 engine from the
applicability of this AD.
Compliance: Required as indicated, unless accomplished
previously.
To prevent 14th and 15th stage HPC disk rupture, which could
result in an uncontained engine failure and damage to the aircraft,
accomplish the following:
(a) Inspect 14th stage HPC disks, P/N 5000814-01, in accordance
with Non-Destructive Inspection Procedure No. 858 (NDIP-858), dated
November 7, 1995, attached to PW Alert Service Bulletin (ASB) No.
JT9D-7R4-A72-524, dated December 13, 1995, as follows:
(1) Perform an initial ECI for cracks as follows:
(i) For disks with 7,000 or more cycles since new (CSN), and
3,000 or more cycles in service (CIS) since last shop visit, on the
effective date of this AD, inspect within the next 1,000 CIS after
the effective date of this AD, or at the next shop visit, whichever
occurs first.
(ii) For disks with 7,000 or more CSN, and less than 3,000 CIS
since last shop visit, on the effective date of this AD, inspect
within 4,000 CIS since the last shop visit, or at the next shop
visit, whichever occurs first.
(iii) For disks with less than 7,000 CSN on the effective date
of this AD, inspect at the next shop visit after the effective date
of this AD, but before exceeding 4,000 CIS since last shop visit, or
8,000 CSN, whichever occurs later.
(iv) For uninstalled disks on or after the effective date of
this AD, inspect prior to installation.
(2) Thereafter, perform ECI for cracks at intervals not to
exceed 4,000 CIS since last ECI.
(3) Prior to further flight, remove cracked disks and replace
with serviceable parts.
(b) Inspect 14th stage HPC disks, P/N's 790014, 789914, 790114,
and 15th stage HPC disks, P/N's 5000815-01, 5000815-021, 704315,
704315-001, 786215, and 786215-001, in accordance with NDIP-858,
dated November 7, 1995, attached to PW ASB No. JT9D-7R4-A72-524,
dated December 13, 1995, or PW ASB No. A6232, Revision 1, dated
January 11, 1996, as applicable, as follows:
(1) Perform an initial ECI for cracks as follows:
(i) For disks with 6,500 or more CSN, and 3,000 or more CIS
since last shop visit, on the effective date of this AD, inspect
within the next 1,000 CIS after the effective date of this AD, or at
the next shop visit, whichever occurs first.
(ii) For disks with 6,500 or more CSN, and less than 3,000 CIS
since last shop visit, on the effective date of this AD, inspect
within 4,000 CIS since the last shop visit, or at the next shop
visit, whichever occurs first.
(iii) For disks with less than 6,500 CSN on the effective date
of this AD, inspect at the next shop visit after the effective date
of this AD, but before exceeding 4,000 CIS since last shop visit, or
7,500 CSN, whichever occurs later.
[[Page 20194]]
(iv) For uninstalled disks on or after the effective date of
this AD, inspect prior to installation.
(2) Thereafter, perform ECI for cracks at intervals not to
exceed 4,000 CIS since last ECI.
(3) Prior to further flight, remove cracked disks and replace
with serviceable parts.
(c) Inspect 14th stage HPC disks, P/N's 704314, 789814, and
790214, in accordance with NDIP-858, dated November 7, 1995,
attached to PW ASB No. A6232, Revision 1, dated January 11, 1996, as
follows:
(1) Perform an initial ECI for cracks as follows:
(i) For disks with 2,000 or more CSN, and 2,000 or more CIS
since last shop visit, on the effective date of this AD, inspect
within the next 1,000 CIS after the effective date of this AD, or at
the next shop visit, whichever occurs first.
(ii) For disks with 2,000 or more CSN, and less than 2,000 CIS
since last shop visit, on the effective date of this AD, inspect
within 3,000 CIS since the last shop visit, or at the next shop
visit, whichever occurs first.
(iii) For disks with 2,000 or more CSN, and no previous shop
visits, inspect within 3,000 CIS after the effective date of this
AD, or at the next shop visit, whichever occurs first.
(iv) For disks with less than 2,000 CSN on the effective date of
this AD, inspect at the next shop visit after the effective date of
this AD, but before exceeding 3,000 CSN.
(v) For uninstalled disks on or after the effective date of this
AD, inspect prior to installation.
(2) Thereafter, perform ECI for cracks at intervals not to
exceed 3,000 CIS since last ECI.
(3) Prior to further flight, remove cracked disks and replace
with serviceable parts.
(d) Within 30 days of inspection, report inspection results on
the form labeled ``14th and 15th Stage HPC Disk Inspection Report,''
attached to PW NDIP-858, dated November 7, 1995, attached to PW ASB
No. A6232, Revision 1, dated January 11, 1996, and PW ASB No. JT9D-
7R4-A72-524, dated December 13, 1995, to the office and fax number
listed on that form. Reporting requirements have been approved by
the Office of Management and Budget and assigned OMB control number
2120-0056.
(e) For the purpose of this AD, a shop visit is defined as
separation of the ``N'' flange.
(f) An alternative method of compliance or adjustment of the
compliance time that provides an acceptable level of safety may be
used if approved by the Manager, Engine Certification Office. The
request should be forwarded through an appropriate FAA Principal
Maintenance Inspector, who may add comments and then send it to the
Manager, Engine Certification Office.
Note: Information concerning the existence of approved
alternative methods of compliance with this airworthiness directive,
if any, may be obtained from the Engine Certification Office.
(g) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the aircraft to a location where
the requirements of this AD can be accomplished.
Issued in Burlington, Massachusetts, on April 18, 1996.
Jay J. Pardee,
Manager, Engine and Propeller Directorate, Aircraft Certification
Service.
[FR Doc. 96-11171 Filed 5-3-96; 8:45 am]
BILLING CODE 4910-13-U
Complete official Federal Register PDF
FR Doc. 96-11168 Airworthiness Directives; Pratt & Whitney JT8D-200 Series Turbofan Engines
[Federal Register Volume 61, Number 88 (Monday, May 6, 1996)]
[Proposed Rules]
[Pages 20194-20195]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11168]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 96-ANE-02]
Airworthiness Directives; Pratt & Whitney JT8D-200 Series
Turbofan Engines
AGENCY: Federal Aviation Administration, DOT.
ACTION: Notice of proposed rulemaking (NPRM).
-----------------------------------------------------------------------
SUMMARY: This document proposes the supersedure of an existing
airworthiness directive (AD), applicable to certain Pratt & Whitney
JT8D-200 series turbofan engines, that currently requires periodic
inspection of fan blades for locked rotors and foreign object damage
(FOD), unlocking of shrouds if necessary, lubrication of fan blade
shrouds, and dimensional restoration of the fan blade leading edge.
This action would add a requirement to install improved design fan
blades as terminating action for the inspections. This proposal is
prompted by the introduction into service of improved design fan
blades. The actions specified by the proposed AD are intended to
prevent fan blade failure, which can result in damage to the aircraft.
DATES: Comments must be received by July 5, 1996.
ADDRESSES: Submit comments in triplicate to the Federal Aviation
Administration (FAA), New England Region, Office of the Assistant Chief
Counsel, Attention: Rules Docket No. 96-ANE-02, 12 New England
Executive Park, Burlington, MA 01803-5299. Comments may be inspected at
this location between 8:00 a.m. and 4:30 p.m., Monday through Friday,
except Federal holidays.
The service information referenced in the proposed rule may be
obtained from Pratt & Whitney, 400 Main St., East Hartford, CT 06108;
telephone (860) 565-6600, fax (860) 565-4503. This information may be
examined at the FAA, New England Region, Office of the Assistant Chief
Counsel, 12 New England Executive Park, Burlington, MA.
FOR FURTHER INFORMATION CONTACT: Mark A. Rumizen, Aerospace Engineer,
Engine Certification Office, FAA, Engine and Propeller Directorate, 12
New England Executive Park, Burlington, MA 01803-5299; telephone (617)
238-7137, fax (617) 238-7199.
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 above, will be considered before taking action on the
proposed rule. The proposals contained in this notice may be changed in
light of the comments received.
Comments are specifically invited on the overall regulatory,
economic, environmental, and energy aspects of the proposed rule. All
comments submitted will be available, both before and after the closing
date for comments, in the Rules Docket for examination by interested
persons. A report summarizing each FAA-public contact concerned with
the substance of this proposal will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments
submitted in response to this notice must submit a self-addressed,
stamped postcard on which the following statement is made: ``Comments
to Docket Number 96-ANE-02.'' 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, New England Region, Office of the Assistant Chief Counsel,
Attention: Rules Docket No. 96-ANE-02, 12 New England Executive Park,
Burlington, MA 01803-5299.
Discussion
On June 5, 1995, the Federal Aviation Administration (FAA) issued
airworthiness directive (AD) 95-12-19, Amendment 39-9270 (60 FR 31388,
June 15, 1995), applicable to certain Pratt & Whitney (PW) JT8D-200
series turbofan engines, to require a periodic inspection of fan blades
for locked rotors and foreign object damage (FOD), unlocking of shrouds
if necessary, lubrication of the fan blade shrouds, and dimensional
restoration of the fan blade leading edge. That action was prompted by
the determination that fan blades can fail due to high cycle fatigue
(HCF) cracking. This HCF cracking can be
[[Page 20195]]
caused by FOD, locked shrouds, which can reduce blade vibratory
dampening, and leading edge erosion, which can produce blade flutter.
That condition, if not corrected, could result in fan blade failure,
which can result in damage to the aircraft.
Since the issuance of that AD, the manufacturer has introduced into
service fan blades with an improved design configuration that is more
resistant to HCF-induced failures.
The FAA has reviewed and approved the technical contents of PW
Alert Service Bulletin (ASB) No. A6241, dated January 25, 1996, that
describes procedures for inspection of fan blades for locked rotors and
FOD, unlocking of shrouds if necessary, lubrication of fan blade
shrouds, and dimensional restoration of the fan blade leading edge.
This ASB also provides procedures for modification or replacement of
fan blades with an improved design configuration that is more resistant
to HCF-induced failures.
Since an unsafe condition has been identified that is likely to
exist or develop on other products of this same type design, the
proposed AD would supersede AD 95-12-19 to continue to require the
inspection and maintenance requirements of that AD, and to add a
requirement to modify or install the improved design fan blades as
terminating action for those inspections and maintenance requirements.
The FAA estimates that 1,100 engines installed on aircraft of U.S.
registry would be affected by this proposed AD, that it would take
approximately 19 work hours per engine to accomplish the proposed
actions, and that the average labor rate is $60 per work hour. The FAA
also estimates that the parts modification would cost is $2,720 per
engine, which includes a manufacturer's discount of $1,700 per engine.
Based on these figures, the total cost impact of the proposed AD on
U.S. operators is estimated to be $4,246,000.
The regulations proposed herein would not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this
proposal would not have sufficient federalism implications to warrant
the preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this proposed
regulation (1) is not a ``significant regulatory action'' under
Executive Order 12866; (2) is not a ``significant rule'' under the DOT
Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
and (3) if promulgated, will not have a significant economic impact,
positive or negative, on a substantial number of small entities under
the criteria of the Regulatory Flexibility Act. A copy of the draft
regulatory evaluation prepared for this action is contained in the
Rules Docket. A copy of it may be obtained by contacting the Rules
Docket at the location provided under the caption ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Safety.
The Proposed Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration proposes to amend
part 39 of the Federal Aviation Regulations (14 CFR part 39) as
follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 USC 106(g), 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by removing amendment 39-9270 (60 FR
31388, June 15, 1995) and by adding a new airworthiness directive to
read as follows:
Pratt & Whitney: Docket No. 96-ANE-02. Supersedes AD 95-12-19,
Amendment 39-9270.
Applicability: Pratt & Whitney (PW) Models JT8D-209, -217, -
217A, -217C, and -219 turbofan engines that have not incorporated PW
Service Bulletin (SB) No. 6193, dated October 31, 1994, or with fan
blade, Part Numbers (P/N's) 798821, 798821-001, 808121, 808121-001,
809221, 811821, 851121, 851121-001, 5000021-02,5000021-022, and
5000021-032 installed. These engines are installed on but not
limited to McDonnell Douglas MD-80 aircraft.
Note: This AD applies to each engine 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 engines 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 paragraphs (d) and
(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 engine from the
applicability of this AD.
Compliance: Required as indicated, unless accomplished
previously.
To prevent fan blade failure, which can result in damage to the
aircraft, accomplish the following:
(a) Inspect fan blades and shrouds, unlock fan blade shrouds,
lubricate fan blade shrouds, restore leading edge dimensions, and
modify or install improved design fan blades in accordance with the
schedule and procedures described in Parts 1, 2, and 3 of the
Accomplishment Instructions of PW Alert Service Bulletin (ASB) No.
A6241, dated January 25, 1996.
(b) Modification of fan blades to the improved design
configuration or installation of improved design fan blades in
accordance with Part 3 of the Accomplishment Instructions of PW ASB
No. A6241, dated January 25, 1996, constitutes terminating action to
the inspections and maintenance actions described in Parts 1 and 2
of that ASB.
(c) For the purpose of this AD, the accomplishment effective
date to be used for determination of compliance intervals, as
required by Section 2 of PW ASB No. A6241, dated January 25, 1996,
is defined as the effective date of this AD.
(d) For the purpose of this AD, ``repair'' as specified in Part
3, Paragraph A.(1)(b) of the Accomplishment Instructions of PW ASB
No. A6241, dated January 25, 1996, is defined as the refurbishment
of fan blades in accordance with Part 3, Paragraph C of the
Accomplishment Instructions of PW ASB No. A6241, dated January 25,
1996.
(e) Alternative methods of compliance that have been approved
for AD 95-12-19 are applicable for this AD and additional approval
is not required.
(f) An alternative method of compliance or adjustment of the
compliance time that provides an acceptable level of safety may be
used if approved by the Manager, Engine Certification Office. The
request should be forwarded through an appropriate FAA Principal
Maintenance Inspector, who may add comments and then send it to the
Manager, Engine Certification Office.
Note: Information concerning the existence of approved
alternative methods of compliance with this airworthiness directive,
if any, may be obtained from the Engine Certification Office.
(g) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the aircraft to a location where
the requirements of this AD can be accomplished.
Issued in Burlington, Massachusetts, on April 1, 1996.
Jay J. Pardee,
Manager, Engine and Propeller Directorate, Aircraft Certification
Service.
[FR Doc. 96-11168 Filed 5-3-96; 8:45 am]
BILLING CODE 4910-13-U
Complete official Federal Register PDF
FR Doc. 96-11154 Onions Grown in Certain Designated Counties in Idaho, and Malheur County, Oregon, and Imported Onions; Modification of Size Requirements
[Federal Register Volume 61, Number 88 (Monday, May 6, 1996)]
[Proposed Rules]
[Pages 20188-20189]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11154]
========================================================================
Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
========================================================================
Federal Register / Vol. 61, No. 88 / Monday, May 6, 1996 / Proposed
Rules
[[Page 20188]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 958
[FV96-958-1PR]
Onions Grown in Certain Designated Counties in Idaho, and Malheur
County, Oregon, and Imported Onions; Modification of Size Requirements
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: This proposed rule would change the ``repacker/prepacker''
size designations for all varieties of onions except white or red
varieties by increasing the minimum diameter from 1\1/2\ inches to 1\3/
4\ inches, and the maximum diameter from 2\1/2\ inches to 2\3/4\ inches
for onions in this size category. Recent trends in buyer preference
reflect an increasing demand for larger size onions in the ``repacker/
prepacker'' category. This proposed rule is intended to benefit
producers and handlers by increasing their flexibility and efficiency
in the packaging of ``repacker/prepacker'' size onions. As provided
under section 8e of the Agricultural Marketing Agreement Act of 1937,
the proposed change to the minimum size requirement would also apply to
all imported onions except white or red varieties.
DATES: Comments must be received by June 5, 1996.
ADDRESSES: Interested persons are invited to submit written comments
concerning this rule. Comments must be sent in triplicate to the Docket
Clerk, Fruit and Vegetable Division, AMS, USDA, room 2523, South
Building, P.O. Box 96456, Washington, D.C. 20090-6456; Fax: (202) 720-
5698. All comments should reference the docket number and the date and
page number of this issue of the Federal Register and will be made
available for public inspection in the Office of the Docket Clerk
during regular business hours.
FOR FURTHER INFORMATION CONTACT: Robert J. Curry, Northwest Marketing
Field Office, Marketing Order Administration Branch, Fruit and
Vegetable Division, AMS, USDA, 1220 SW Third Avenue, room 369,
Portland, Oregon 97204-2807; telephone: (503)326-2724; FAX: (503)326-
7440; or Robert F. Matthews, Marketing Order Administration Branch,
Fruit and Vegetable Division, AMS, USDA, room 2523, South Building,
P.O. Box 96456, Washington, D.C. 20090-6456; telephone: (202)690-0464;
FAX: (202)720-5698.
SUPPLEMENTARY INFORMATION: This proposed rule is issued under Marketing
Agreement No. 130 and Marketing Order No. 958 (7 CFR Part 958), both as
amended, regulating the handling of onions grown in certain designated
counties in Idaho and Malheur County, Oregon. The marketing agreement
and marketing order are effective under the Agricultural Marketing
Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter
referred to as the Act.
This proposed rule, which would also affect the minimum size
requirements for all varieties of imported onions, except white or red
varieties, is also issued pursuant to section 8e of the Act. The
provisions of section 8e and the onion import regulations are discussed
later in this proposed rule.
The Department of Agriculture (Department) is issuing this rule in
conformance with Executive Order 12866.
This proposed rule has been reviewed under Executive Order 12778,
Civil Justice Reform. This proposal is not intended to have retroactive
effect. This proposed rule will not preempt any State or local laws,
regulations, or policies, unless they present an irreconcilable
conflict with this rule.
The Act provides that administrative proceedings must be exhausted
before parties may file suit in court. Under section 608c(15)(A) of the
Act, any handler subject to an 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 law and request a modification of the order or to be exempted
therefrom. A handler is afforded the opportunity for a hearing on the
petition. After the hearing the Secretary would rule on the petition.
The Act provides that the district court of the United States in any
district in which the handler is an inhabitant, or has his or her
principal place of business, has jurisdiction in equity to review the
Secretary's ruling on the petition, provided a bill in equity is filed
not later than 20 days after the date of the entry of the ruling.
There are no administrative proceedings which must be exhausted
prior to any judicial challenge to the provisions import regulations
issued under section 8e of the act.
Pursuant to requirements set forth in the Regulatory Flexibility
Act (RFA), the Agricultural Marketing Service (AMS) has considered the
economic impact of this action on small entities.
The purpose of the RFA is to fit regulatory actions to the scale of
business subject to such actions in order that small businesses will
not be unduly or disproportionately burdened. Marketing orders issued
pursuant to the Act, and rules issued thereunder, are unique in that
they are brought about through group action of essentially small
entities acting on their own behalf. Thus, both statutes have small
entity orientation and compatibility. Import regulations issued under
the act are based on those established under Federal Marketing Orders.
There are currently 34 handlers subject to regulation under the
marketing order and approximately 550 onion producers in the regulated
production area. In addition, at least 148 importers of onions are
subject to import regulations and would be affected by this proposed
rule.
Small agricultural service firms have been defined by the Small
Business Administration (13 CFR 121.601) as those having annual
receipts of less than $5,000,000, and small agricultural producers are
defined as those whose annual receipts are less than $500,000. The
majority of handlers and producers of Idaho-Eastern Oregon onions may
be classified as small entities. The majority of importers may also be
classified as small entities.
Pursuant to authority contained in section 958.51 of the marketing
order, the Idaho-Eastern Oregon Onion Committee (Committee), at its
November 16, 1995, meeting, unanimously recommended changing the
minimum and maximum sizes set forth in section 958.328(a)(3)(ii) of the
handling regulation. For this size
[[Page 20189]]
category, the Committee recommended increasing the minimum diameter
from 1\1/2\ inches to 1\3/4\ inches, and the maximum diameter from 2\1/
2\ inches to 2\3/4\ inches for all onions except white or red varieties
produced and handled in the production area. Yellow onions are the
major group produced in the regulated production area.
This proposed rule would modify a marketing order size category
that is recognized by the onion industry as ``repacker'' or
``prepacker'' size onions. Onions in this size category are generally
packed and shipped in 50-pound sacks for later repacking into various
consumer packs.
The U.S. Standards for Grades of Onions were recently amended to
include a classification for ``repacker/prepacker'' size onions (60 FR
46976, September 8, 1995), effective October 10, 1995. Section 51.2836
of the U.S. Standards defines such onions as those ranging from a
minimum diameter of 1\3/4\ inches to a maximum diameter of 3 inches.
The U.S. Standards also specify that not more than 5 percent of the
onions in a lot may be undersized and that not more than 10 percent may
be oversized.
Recent trends in buyer preference reflect an increasing demand for
larger size onions in the ``repacker/prepacker'' category. The
Committee reports that the current maximum diameter of 2\1/2\ inches
for this size category is too restrictive and has resulted in a high
percentage of onions being packed in a different category due to
oversize. This has resulted in fewer ``repacker/prepacker'' size onions
being available for market. With an increase in the maximum allowable
diameter to 2\3/4\ inches for ``repacker/prepacker'' size onions, the
Committee expects the quantity of such onions available for market to
increase. The Committee recommended an increase to 2\3/4\ inches rather
than 3 inches, the upper limit of the size range specified in the U.S.
Standards, because the smaller size is more suitable for this industry
and its customers. In addition to the proposed increase in the maximum
diameter for onions in this category, the Committee recommended that
the minimum diameter be increased from 1\1/2\ inches to 1\3/4\ inches
to be the same as the recently amended U.S. Standards.
Any costs to handlers and producers attributable to this proposed
regulation, if adopted, are expected to be offset by the benefits
derived from improved returns. The proposed modification would increase
the volume of onions marketed in this size category, and is expected to
result in higher returns for producers and handlers.
Section 8e of the Act requires that when certain domestically
produced commodities, including onions, are regulated under a Federal
marketing order, imports of that commodity must meet the same or
comparable grade, size, quality, or maturity requirements. Section 8e
also provides that whenever two or more marketing orders regulating the
same commodity produced in different areas of the United States are
concurrently in effect, the Secretary shall determine which of the
areas produces the commodity in more direct competition with the
imported commodity. Imports must then meet the requirements established
for the particular area.
Grade, size, quality, and maturity regulations have been issued
regularly under both Marketing Order 958 and Marketing Order 959, which
regulates the handling of onions grown in South Texas. The current
import regulation (7 CFR 980.117) specifies that import requirements
for onions are to be based on the seasonal categories of onions grown
in both marketing order areas. The import regulations specify that
imported onions must meet the requirements of Marketing Order 958
during the June 16 through March 9 period each season and Marketing
Order 959 through the remainder of the year. Rulemaking is now in
progress that would, if approved, change the beginning date of
Marketing Order 958 requirements to June 5 (61 FR 4941; February 9,
1996). Current import regulations also provide that all varieties of
imported onions, except for white varieties, must be a minimum of 1\1/
2\ inches in diameter. This proposal would change the import
requirements for the period June 16 through March 9 each marketing year
to provide that all varieties of onions except white or red varieties
shall be a minimum of 1\3/4\ inches in diameter. While no changes are
required in the language of section 980.117, all imported onions other
than white or red varieties would be required to meet the minimum size
requirement proposed herein.
Based on available information, the Agricultural Marketing Service
has determined that the issuance of this proposed rule would not have a
significant economic impact on a substantial number of small entities.
A 30-day comment period is provided to allow interested persons to
respond to this proposal. All written comments received within the
comment period will be considered before a final determination is made
on this matter.
In accordance with section 8e of the Act, the United States Trade
Representative has concurred with the issuance of this proposed rule.
List of Subjects in 7 CFR Part 958
Marketing agreements, Onions, Reporting and recordkeeping
requirements.
For the reasons set forth in the preamble, 7 CFR part 958 is
proposed to be amended as follows:
PART 958--ONIONS GROWN IN CERTAIN DESIGNATED COUNTIES IN IDAHO, AND
MALHEUR COUNTY, OREGON
1. The authority citation for 7 CFR part 958 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
2. Section 958.328 is amended by revising paragraph (a)(3)(ii) to
read as follows:
Sec. 958.328 Handling Regulation.
* * * * *
(a) * * *
(3) * * *
(ii) U.S. No. 1, 1\3/4\ inches minimum to 2\3/4\ maximum diameter;
or
* * * * *
Dated: April 30, 1996.
Robert C. Keeney,
Director, Fruit and Vegetable Division.
[FR Doc. 96-11154 Filed 5-3-96; 8:45 am]
BILLING CODE 3410-02-P
Complete official Federal Register PDF
FR Doc. 96-11134 New England Fishery Management Council; Public Hearings
[Federal Register Volume 61, Number 88 (Monday, May 6, 1996)]
[Proposed Rules]
[Pages 20207-20208]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11134]
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 651, 650, and 649
[I.D. 042596C]
New England Fishery Management Council; Public Hearings
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Public hearings; request for comments.
-----------------------------------------------------------------------
SUMMARY: The New England Fishery Management Council (Council) will hold
four public hearings on measures to reduce gear conflicts in the
Northeast and Mid-Atlantic regions of the exclusive economic zone. The
Council proposes to amend the Northeast Multispecies, Atlantic Sea
Scallop, and American Lobster Fishery Management Plans (FMPs) to
include a framework adjustment procedure that would allow gear conflict
disputes to be resolved through regulatory action. The Council also is
soliciting written comments to accommodate people unable to attend a
hearing or wishing to provide additional comments.
DATES: Written comments must be received on or before May 30, 1996. The
hearings are scheduled as follows:
1. May 21, 1996, 7:30 p.m., Warwick, RI.
2. May 22, 1996, 7 p.m., Riverhead, NY.
3. May 23, 1996, 7:30 p.m., Buzzards Bay, MA.
4. May 28, 1996, 7:30 p.m., Portsmouth, NH.
ADDRESSES: Requests for copies of the proposal and written comments
should be sent to Douglas C. Marshall, Executive Director, New England
Fishery Management Council, 5 Broadway, Saugus, MA 01906. When sending
written comments, clearly mark the outside of the envelope ``Gear
Conflict Amendment Comments.'' The hearings will be held at the
following locations:
1. Warwick--Holiday Inn at the Crossings, 801 Greenwich Avenue,
Warwick, RI
2. Riverhead--Ramada Inn, Long Island Expressway and Route 25,
Riverhead, NY
3. Buzzards Bay--Massachusetts Maritime Academy, 101 Academy Drive,
Buzzards Bay, MA
4. Portsmouth--Urban Forestry Center, 45 Elwyn Road, Portsmouth, NH
[[Page 20208]]
FOR FURTHER INFORMATION CONTACT: Douglas G. Marshall, Executive
Director, New England Fishery Management Council, (617) 231-0422.
SUPPLEMENTARY INFORMATION: The Council proposes to amend the FMPs to
include a framework procedure that would provide a process for
resolving gear conflicts involving several fisheries under the
management authority of the Council. If necessary, the Council will
modify objectives of the FMPs to make future gear conflict regulations
consistent with the FMPs.
The measures listed below and any others now included in the FMPs,
along with a public process for development of those measures, would
constitute the framework adjustment procedure. The preferred
alternative includes the following generic management measures to each
FMP: (1) Mandatory monitoring of a radio channel by fishing vessels,
(2) fixed gear location reporting and plotting requirements, (3)
standards of operation when gear conflicts occur, (4) fixed gear
marking and setting practices, (5) gear restrictions for specific areas
(including time and area closures), (6) vessel monitoring systems, (7)
restrictions on the number of fishing vessels or amount of gear, and
(8) special permit conditions.
The intent of the framework procedure is to allow local groups of
competing types of fishermen to request management assistance and,
through the Council, recommend changes to the boundaries or rules for
fishing in specific gear management areas. This procedure would enable
the Council to respond quickly to gear conflicts by making simultaneous
regulatory adjustments to one or more of the existing plans.
In a ``no action'' alternative, the Council would continue its
efforts to facilitate voluntary compromises and agreements on fishing
rules. Recent efforts, however, have been unsuccessful.
Additionally, the Council proposes to recommend that this type of
framework procedure be considered by the Mid-Atlantic Fishery
Management Council, the Atlantic States Marine Fisheries Commission,
and other agencies, so that gear conflict can be resolved via
regulations, regardless of the management authority for an affected
fishery.
These hearings are physically accessible to people with
disabilities. Requests for sign language interpretation or other
auxiliary aids should be directed to Douglas G. Marshall (see
ADDRESSES) at least 5 days prior to the hearing dates.
Authority: 16 U.S.C. 1801 et seq.
Dated: April 30, 1996.
Richard W. Surdi,
Acting Director, Office of Fisheries Conservation and Management,
National Marine Fisheries Service.
[FR Doc. 96-11134 Filed 5-3-96; 8:45 am]
BILLING CODE 3510-22-F
Complete official Federal Register PDF
FR Doc. 96-11130 Radio Broadcasting Services; Plattsmouth, NE, and Osceola, IA
[Federal Register Volume 61, Number 88 (Monday, May 6, 1996)]
[Proposed Rules]
[Page 20206]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11130]
=======================================================================
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 73
[MM Docket No. 96-95, RM-8787]
Radio Broadcasting Services; Plattsmouth, NE, and Osceola, IA
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Commission requests comments on a petition filed by Platte
Broadcasting Company, Inc., seeking the substitution of Channel 295C3
for Channel 295A at Plattsmouth, NE, and the modification of Station
KOTD-FM's license to specify operation on the higher class channel. To
accommodate the allotment at Plattsmouth, the Commission also proposes
to substitute Channel 296C2 for Channel 295C2 at Osceola, IA, and the
modification of Station KJJC's license to specify operation on the
alternate Class C2 channel. Channel 295C3 can be allotted to
Plattsmouth in compliance with the Commission's minimum distance
separation requirements with a site restriction of 18.4 kilometers
(11.4 miles) northeast, at coordinates 41-09-22 NL; 95-47-03 WL, to
avoid a short-spacing to Station KTPK, Channel 295C, Topeka, Kansas,
and to accommodate petitioner's desired transmitter site. Channel 296C2
can be allotted to Osceola and used at Station KJJC's presently
transmitter site, at coordinates 41-01-34 NL; 93-51-43 WL.
DATES: Comments must be filed on or before June 17, 1996, and reply
comments on or before July 2, 1996.
ADDRESSES: Federal Communications Commission, Washington, DC 20554. In
addition to filing comments with the FCC, interested parties should
serve the petitioner, or its counsel or consultant, as follows: Richard
J. Hayes, Jr., Esq., 13809 Black Meadow Road, Greenwood Plantation,
Spotsylvania, Virginia 22553 (Counsel to petitioner).
FOR FURTHER INFORMATION CONTACT: Leslie K. Shapiro, Mass Media Bureau,
(202) 418-2180.
SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's
Notice of Proposed Rule Making, MM Docket No. 96-95, adopted April 8,
1996, and released April 25, 1996. The full text of this Commission
decision is available for inspection and copying during normal business
hours in the FCC Reference Center (Room 239), 1919 M Street, NW.,
Washington, DC. The complete text of this decision may also be
purchased from the Commission's copy contractor, International
Transcription Services, Inc., (202) 857-3800, 2100 M Street, NW., Suite
140, Washington, DC 20037.
Provisions of the Regulatory Flexibility Act of 1980 do not apply
to this proceeding.
Members of the public should note that from the time a Notice of
Proposed Rule Making is issued until the matter is no longer subject to
Commission consideration or court review, all ex parte contacts are
prohibited in Commission proceedings, such as this one, which involve
channel allotments. See 47 CFR 1.1204(b) for rules governing
permissible ex parte contacts.
For information regarding proper filing procedures for comments,
see 47 CFR 1.415 and 1.420.
List of Subjects in 47 CFR Part 73
Radio broadcasting.
Federal Communications Commission.
John A. Karousos,
Chief, Allocations Branch, Policy and Rules Division, Mass Media
Bureau.
[FR Doc. 96-11130 Filed 5-3-96; 8:45 am]
BILLING CODE 6712-01-F
Complete official Federal Register PDF
FR Doc. 96-11129 Radio Broadcasting Services; Eufaula, Wagoner and Warner, OK
[Federal Register Volume 61, Number 88 (Monday, May 6, 1996)]
[Proposed Rules]
[Pages 20206-20207]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11129]
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 73
[MM Docket No. 96-94; RM-8790]
Radio Broadcasting Services; Eufaula, Wagoner and Warner, OK
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Commission requests comments on a petition filed by Tri-
Mac Broadcasting seeking the reallotment of Channel 271A from Wagoner
to Warner, Oklahoma, and the modification of Station KRQZ-FM's license
to specify Warner as its community of license. We also propose the
substitution of Channel 273C3 for Channel 272A at Eufaula, Oklahoma,
and the modification of Station KCES' license to specify operation on
the higher class channel. Channel 271A can be allotted to Warner in
compliance with the Commission's minimum distance separation
requirements with a site restriction of 3.0 kilometers (1.9 miles)
west, at coordinates 35-29-16 NL; 95-20-15 WL, to avoid a short-spacing
to the reference coordinates for Station KEOK, Channel 269C3,
Tahlequah, OK, and Station KENA-FM, Channel 271C3, Mena, AR. Channel
273C3 can be allotted to Eufaula with a site restriction of 18.2
kilometers (11.3 miles) south, which is the transmitter site specified
in Station KCES' pending application (BPH-960319ID). In accordance with
Sections 1.420(i) and (g), competing expressions of interest in the use
of Channel 271A at Warner or Channel 273C3 at Eufaula will not be
accepted.
DATES: Comments must be filed on or before June 17, 1996, and reply
comments on or before July 2, 1996.
ADDRESSES: Federal Communications Commission, Washington, DC 20554. In
addition to filing comments with the FCC, interested parties should
serve the petitioner, or its counsel or consultant, as follows: John F.
Garziglia, Esq., Pepper & Corazzini, L.L.P., 1776 K Street, NW., Suite
200, Washington, DC 20006 (Counsel to petitioner).
[[Page 20207]]
FOR FURTHER INFORMATION CONTACT: Leslie K. Shapiro, Mass Media Bureau,
(202) 418-2180.
SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's
Notice of Proposed Rule Making, MM Docket No. 96-94, adopted April 8,
1996, and released April 25, 1996. The full text of this Commission
decision is available for inspection and copying during normal business
hours in the FCC Reference Center (Room 239), 1919 M Street, NW.,
Washington, DC. The complete text of this decision may also be
purchased from the Commission's copy contractor, International
Transcription Services, Inc., (202) 857-3800, 2100 M Street, NW., Suite
140, Washington, DC 20037.
Provisions of the Regulatory Flexibility Act of 1980 do not apply
to this proceeding.
Members of the public should note that from the time a Notice of
Proposed Rule Making is issued until the matter is no longer subject to
Commission consideration or court review, all ex parte contacts are
prohibited in Commission proceedings, such as this one, which involve
channel allotments. See 47 CFR 1.1204(b) for rules governing
permissible ex parte contacts.
For information regarding proper filing procedures for comments,
see 47 CFR 1.415 and 1.420.
List of Subjects in 47 CFR Part 73
Radio broadcasting.
Federal Communications Commission.
John A. Karousos,
Chief, Allocations Branch, Policy and Rules Division, Mass Media
Bureau.
[FR Doc. 96-11129 Filed 5-3-96; 8:45 am]
BILLING CODE 6712-01-F
Complete official Federal Register PDF
FR Doc. 96-11128 Radio Broadcasting Services; Oxford, MS
[Federal Register Volume 61, Number 88 (Monday, May 6, 1996)]
[Proposed Rules]
[Page 20207]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11128]
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 73
[MM Docket No. 96-93, RM-8788]
Radio Broadcasting Services; Oxford, MS
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Commission requests comments on a petition by Angel
Broadcasting proposing the allotment of Channel 286A to Oxford,
Mississippi, as the community's fourth local FM service. Channel 286A
can be allotted to Oxford in compliance with the Commission's minimum
distance separation requirements with a site restriction of 11.2
kilometers (6.9 miles) north in order to avoid short-spacing conflicts
with the licensed site of Station WBKJ(FM), Channel 286C1, Kosciusko,
Mississippi, and with a pending application at Water Valley,
Mississippi, for Station WYCG(FM), Channel 288A. The coordinates for
Channel 286A at Oxford are 34-28-06 and 89-30-33.
DATES: Comments must be filed on or before June 17, 1996, and reply
comments on or before July 2, 1996.
ADDRESSES: Federal Communications Commission, Washington, DC 20554. In
addition to filing comments with the FCC, interested parties should
serve the petitioner, or its counsel or consultant, as follows: Dan J.
Alpert, 2120 N. 21st Road, Suite 400, Arlington, Virginia 22201
(Counsel for petitioner).
FOR FURTHER INFORMATION CONTACT: Pam Blumenthal, Mass Media Bureau,
(202) 418-2180.
SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's
Notice of Proposed Rule Making, MM Docket No. 96-93, adopted April 10,
1996, and released April 25, 1996. The full text of this Commission
decision is available for inspection and copying during normal business
hours in the FCC's Reference Center (Room 239), 1919 M Street, NW.,
Washington, DC. The complete text of this decision may also be
purchased from the Commission's copy contractor, ITS, Inc., (202) 857-
3800, 2100 M Street, NW., Suite 140, Washington, DC 20037.
Provisions of the Regulatory Flexibility Act of 1980 do not apply
to this proceeding.
Members of the public should note that from the time a Notice of
Proposed Rule Making is issued until the matter is no longer subject to
Commission consideration or court review, all ex parte contacts are
prohibited in Commission proceedings, such as this one, which involve
channel allotments. See 47 CFR 1.1204(b) for rules governing
permissible ex parte contacts.
For information regarding proper filing procedures for comments,
see 47 CFR 1.415 and 1.420.
List of Subjects in 47 CFR Part 73
Radio broadcasting.
Federal Communications Commission.
John A. Karousos,
Chief, Allocations Branch, Policy and Rules Division, Mass Media
Bureau.
[FR Doc. 96-11128 Filed 5-3-96; 8:45 am]
BILLING CODE 6712-01-F
Complete official Federal Register PDF
FR Doc. 96-11082 Clean Air Act Interim Approval of Operating Permits Program; State of Rhode Island
[Federal Register Volume 61, Number 88 (Monday, May 6, 1996)]
[Proposed Rules]
[Page 20202]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11082]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[AD-FRL-5466-3]
Clean Air Act Interim Approval of Operating Permits Program;
State of Rhode Island
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The EPA proposes source-category limited interim approval of
the Operating Permit Program submitted by the State Rhode Island. Rhode
Island's Operating Permit Program was submitted for the purpose of
complying with Federal requirements which mandate that states develop,
and submit to EPA, programs for issuing operating permits for all major
stationary sources and to certain other sources. In the Final Rules
Section of this Federal Register, EPA is promulgating source-category
limited interim approval of the Rhode Island Operating Permit Program
as a direct final rule without prior proposal because the Agency views
this submittal as noncontroversial and anticipates no adverse comments.
A detailed rationale for the approval is set forth in the direct final
rule. If no adverse comments are received in response to that direct
final rule, no further activity is contemplated in relation to this
proposed rule. If EPA receives adverse comments, the direct final rule
will be withdrawn and all public comments received will be addressed in
a subsequent final rule based on this proposed rule. EPA will not
institute a second comment period on this proposal. Any parties
interested in commenting on this proposal should do so at this time.
DATES: Comments must be received on or before June 5, 1996
ADDRESSES: Comments should be addressed to Ida E. Gagnon, Air Permits,
CAP, U.S. Environmental Protection Agency, Region I, JFK Federal
Building, Boston, MA 02203-2211. Copies of the State's submittal and
other supporting information relevant to this action are available for
inspection during normal business hours at the following location: U.S.
Environmental Protection Agency, Region 1, One Congress Street, 11th
floor, Boston, MA 02203.
FOR FURTHER INFORMATION CONTACT: Ida E. Gagnon, Air Permits, CAP, U.S.
Environmental Protection Agency, Region 1, JFK Federal Building,
Boston, MA 02203-2211, (617) 565-3500.
SUPPLEMENTARY INFORMATION: For additional information, see the direct
final rule which is located in the Rules Section of this Federal
Register.
Authority: 42 U.S.C. 7401-7671q.
Dated: April 19, 1996.
John P. DeVillars,
Regional Administrator, Region I.
[FR Doc. 96-11082 Filed 5-3-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-10956 Office of the Assistant Secretary for Public and Indian Housing; Public Housing Management Assessment Program
[Federal Register Volume 61, Number 88 (Monday, May 6, 1996)]
[Proposed Rules]
[Pages 20358-20383]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10956]
[[Page 20357]]
_______________________________________________________________________
Part III
Department of Housing and Urban Development
_______________________________________________________________________
24 CFR Part 901
Office of the Assistant Secretary for Public and Indian Housing: Public
Housing Management Assessment Program; Proposed Rule
Federal Register / Vol. 61, No. 88 / Monday, May 6, 1996 / Proposed
Rules
[[Page 20358]]
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR PART 901
[Docket No. FR-3447-P-01]
RIN 2577-AB30
Office of the Assistant Secretary for Public and Indian Housing;
Public Housing Management Assessment Program
AGENCY: Office of the Assistant Secretary for Public and Indian
Housing, HUD.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: This rule proposes changes to the Public Housing Management
Assessment Program (PHMAP). PHMAP provides policies and procedures to
identify PHA management capabilities and deficiencies, and assists HUD
State/Area Offices in accountability monitoring and risk management.
PHMAP also establishes procedures for developing, negotiating and
executing memoranda of agreement between HUD and troubled agencies and
agencies troubled with respect to the program under section 14 that set
forth targets, strategies, incentives and sanctions for improving
performance. Procedures to follow with respect to housing administered
by PHAs that substantially default on their management responsibilities
are included in PHMAP. PHMAP applies to public housing agencies (PHAs)
and resident management corporations (RMCs), and any other entities
under contract to manage public housing, but does not apply to Indian
housing authorities, nor to the Family Self-Sufficiency Program
authorized under section 23.
DATES: Comment due date: July 5, 1996.
ADDRESSES: Interested persons are invited to submit comments regarding
this proposed rule to the Rules Docket Clerk, Office of General
Counsel, Room 10278, Department of Housing and Urban Development, 451
Seventh Street, SW., Washington, DC 20410. Communications should refer
to the above docket number and title. A copy of each communication
submitted will be available for public inspection and copying between
7:30 a.m. and 5:30 p.m. weekdays at the above address. FAXED comments
will not be accepted.
FOR FURTHER INFORMATION CONTACT: MaryAnn Russ, Deputy Assistant
Secretary for Public and Assisted Housing Operations, Office of Public
and Indian Housing, Department of Housing and Urban Development, 451
Seventh Street, SW., Washington, DC 20410, telephone (202) 708-1380. A
telecommunications device for hearing or speech impaired persons (TTY)
is available at (202) 708-0850. (These are not toll-free telephone
numbers.)
SUPPLEMENTARY INFORMATION:
I. Paperwork Reduction Act Statement
The proposed information collection requirements contained at
Sec. 901.100 of this rule have been submitted to the Office of
Management and Budget (OMB) for review, under section 3507(d) of the
Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35).
(a) In accordance with 5 CFR 1320.5(a)(1)(iv), the Department is
setting forth the following concerning the proposed collection of
information:
(1) Title of the information collection proposal:
Public Housing Management Assessment Program (PHMAP)
(2) Summary of the collection of information:
PHAs shall be required to certify to seven indicators and one
component because information regarding these indicators/ component is
not presently reported to HUD by PHAs on any form. The use of Form HUD-
50072, rather than the preparation and submission of a full data
report, was judged to be the least intrusive method of gathering the
information.
(3) Description of the need for the information and its proposed
use:
Section 502 of the National Affordable Housing Act of 1990 (NAHA)
establishes seven specific indicators and directs the Secretary to
develop no more than five other factors (indicators) deemed appropriate
to assess the management performance of public housing agencies (PHAs)
in all major areas of management operations. The designation of PHAs as
troubled or as troubled with respect to the program under Section 14
(mod-troubled) is based upon PHA performance under the indicators. The
proposed information collection will be used by HUD to assess annually
all PHAs at the beginning of the PHA fiscal year to allow the
Department to fulfill this mandate of NAHA.
(4) Description of the likely respondents, including the estimated
number of likely respondents, and proposed frequency of response to the
collection of information:
Respondents will be PHAs. The estimated number of respondents is
included in paragraph (5), immediately below. The proposed frequency of
responses is once annually.
(5) Estimate of the total reporting and recordkeeping burden that
will result from the collection of information:
Reporting Burden
----------------------------------------------------------------------------------------------------------------
Est. annual
Number of Freq. of Est. avg. burden
Reference respondents response time response
(hours) (hrs.)
----------------------------------------------------------------------------------------------------------------
1-99 Unit PHAs.............................................. 1,608 1 2.25 3,618.0
100-499 Unit PHAs........................................... 1,274 1 2.45 3,121.3
500-1249 Unit PHAs.......................................... 244 1 3.45 841.8
1250-3999 Unit PHAs......................................... 102 1 4.05 413.1
4000+ Unit PHAs............................................. 40 1 4.85 194.0
---------------------------------------------------
Total reporting burden.................................. ........... ........... ........... 8,188.2
----------------------------------------------------------------------------------------------------------------
Recordkeeping Burden
Recordkeepers................................................ 3,268.0
Hours per recordkeeper....................................... 1.0
Total annual responses....................................... 327.0
----------
Total burden............................................. 8,515.2
(b) In accordance with 5 CFR 1320.8(d)(1), the Department is
soliciting comments from members of the public and affected agencies
concerning the proposed collection of information to:
(1) Evaluate whether the proposed collection of information is
necessary for the proper performance of the functions of the agency,
including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of
the proposed collection of information;
[[Page 20359]]
(3) Enhance the quality, utility, and clarity of the information to
be collected; and
(4) Minimize the burden of the collection of information on those
who are to respond; including through the use of appropriate automated
collection techniques or other forms of information technology, e.g.,
permitting electronic submission of responses.
Interested persons are invited to submit comments regarding the
information collection requirements in this proposal. Comments must be
received within sixty (60) days from the date of this proposal.
Comments must refer to the proposal by name and docket number (FR-3447)
and must be sent to:
Joseph F. Lackey, Jr., HUD Desk Officer, Office of Management and
Budget, New Executive Office Building, Washington, DC 20503
and
Reports Liaison Officer, Office of the Assistant Secretary for Public
and Indian Housing, Department of Housing and Urban Development, 451--
7th Street, SW., Room 4244, Washington, DC 20410
II. Background
The Public Housing Management Assessment Program (PHMAP) at 24 CFR
part 901 has been established in accordance with section 502 of the
National Affordable Housing Act (NAHA) (approved November 28, 1990,
Pub. L. 101-625), as amended by the Departments of Veterans Affairs and
Housing and Urban Development (HUD), and Independent Agencies
Appropriations Act, 1992 (92 App. Act) (approved October 28, 1991, Pub.
L. 102-139) and the Housing and Community Development Act of 1992 (HCDA
1992) (Pub. L. 102-550, approved October 28, 1992). The need to
identify and assist troubled PHAs and PHAs troubled with respect to
section 14 (mod-troubled), and to provide for consistently high quality
management of PHAs was statutorily recognized in section 502 of NAHA,
which amended section 6(j) of the 1937 Act (42 U.S.C. 1437d(j)).
Section 502 requires the Department to develop indicators to assess the
management performance of PHAs. A PHA assessed as troubled or mod-
troubled must enter into a memorandum of agreement (MOA) with HUD that
sets forth targets, strategies and incentives for improving its
management performance, and provides for sanctions if improved
performance does not result. Section 502 also provides that if a PHA
substantially defaults upon its agreement or with respect to other
covenants or conditions to which it is subject, the Department may
solicit proposals from other public housing agencies and private
housing management agents for the management of the housing
administered by the defaulted PHA. Alternatively, following a default,
the Department may petition the appropriate State or Federal court to
appoint a receiver to manage the defaulted PHA. The Department may also
require a defaulting PHA to make other acceptable arrangements for
managing all or part of its operation in the best interests of the
residents.
A proposed rule to implement section 502 as the Public Housing
Management Assessment Program (PHMAP) at 24 CFR part 901 was published
in the Federal Register on April 17, 1991 (56 FR 15712), with a 60-day
comment period. The Department received 114 comments on the PHMAP
proposed rule.
The 92 App. Act, passed after the publication of the pro-posed
rule, amended NAHA section 502 in four ways: The number of factors that
may be used to assess the management performance of PHAs is limited
(seven indicators that must be used for assessment purposes were listed
in section 502 of NAHA, and the Department was authorized by the 92
App. Act amendments to develop five additional indicators as it deemed
appropriate); the evaluation of PHAs must be administered flexibly to
ensure that they are not penalized for circumstances beyond their
control; the weights assigned to indicators must reflect the
differences in management difficulty that result from physical
condition and neighborhood environment; and the determination of a
PHA's status as ``troubled with respect to the program under section
14'' is to be based upon factors solely related to its ability to carry
out that program. In a related 92 App. Act amendment to section 14 of
the 1937 Act, the determination of whether a PHA is ``troubled with
respect to the modernization program'' (the equivalent of mod-troubled)
is to consider only the PHA's ability to carry out the modernization
program effectively based upon the PHA's capacity to accomplish the
physical work with decent quality; in a timely manner; under competent
contract administration; and with adequate budget controls.
An interim rule was published on January 17, 1992, (57 FR 2160)
with a comment period of 120 days. After the publication of the PHMAP
interim rule, a number of statutory changes to PHMAP were made by
section 113 of HCDA 1992. Section 113(a) requires an on-site,
independent assessment of a PHA that is designated as mod-troubled and/
or troubled. Paragraph (b) of this section provides for additional
remedies upon the occurrence of a substantial default. The Department
may, under section 113(c), make available, to housing managers
appointed after a substantial default, the assistance necessary to
remedy the substantial deterioration of living conditions in individual
public housing developments or to remedy other related emergencies that
endanger the health, safety and welfare of the residents. Annual
reporting requirements to Congress that only affect the Department are
the subject of section 113(d). Section 113(e) makes the management
assessment provisions of PHMAP applicable to RMCs. The implementation
of these sections is discussed below in this preamble under the
heading, Summary Of Changes To The PHMAP Interim Rule.
Subsequent to the statutory changes to PHMAP made by section 113 of
HCDA 1992, the Department established a consultation group and held a
series of meetings to review existing PHMAP procedures and the
individual indicators. The group consisted of representatives of PHAs
of all sizes from across the country with a wide range of PHMAP scores,
public housing industry groups, private management firms, and HUD field
staff. Resident groups were solicited for their recommendations as
well. Revised indicators were field tested during the summer of 1994 at
45 PHAs of all sizes throughout the country. The results of the field
test were summarized and analyzed, which resulted in recommendations
for changes to the indicators.
The Department has determined that the revised PHMAP should be
issued as a proposed rule due to the degree of changes to the
individual indicators and the program itself. For example, three
indicators have been eliminated, four indicators have been combined
into two indicators, and other indicators have been completely
rewritten. The proposed changes are the result of a number of
considerations, including comments received on the interim rule,
inquiries and additional comments received from the field and the
regulated community, the field test conducted during the summer of
1994, and the Department's experience in administering the program. By
issuing a proposed rule, the Department is providing the public an
additional opportunity to comment.
[[Page 20360]]
III. Regulatory Reinvention
On March 4, 1995, President Clinton issued a memorandum to all
Federal departments and agencies regarding regulatory reinvention. In
response to this memorandum, the Department of Housing and Urban
Development conducted a page-by-page review of its regulations to
determine which can be eliminated, consolidated, or otherwise improved.
HUD has determined that the regulations for PHMAP can be improved and
streamlined by eliminating unnecessary provisions.
Several provisions in the regulations repeat statutory language
from the 1937 Act. It is unnecessary to maintain statutory requirements
in the Code of Federal Regulations (CFR), since those requirements are
otherwise fully accessible and binding. Furthermore, if regulations
contain statutory language, HUD must amend the regulations whenever
Congress amends the statute. Therefore, the new part 901 proposed here
does not repeat any statutory language, but only implements
requirements that are necessary to augment and implement fully section
6(j) of the 1937 Act, which provides the statutory authority for PHMAP.
This proposed rule further reinvents PHMAP by reducing the number of
indicators from twelve to eight; eliminating the designation of
subparts, which are unnecessary; and rewriting the entire remaining
rule text to promote clarity.
IV. Summary of Changes to the PHMAP Interim Rule
Only those portions of the current PHMAP regulation proposed for
revisions are addressed below.
HCDA 1992 Section 113 Amendments
The Department determined, in accordance with 24 CFR 10.1, that
prior public notice and comment were unnecessary to implement
paragraphs (a) and (c) of section 113, because these paragraphs involve
the exercise of little or no discretion on the part of the Department.
Section 113(d) applies only to the Department and does not require a
rule. Sections 113 (b)(1) and (e) of HCDA 1992 do require elaboration
of the statutory language, and are included in this proposed rule.
HCDA 1992 section 113(e) requires the assessment of RMCs, and makes
the provisions under paragraph (j)(2) of section 6 of the 1937 Act
apply to RMCs as well as to PHAs. Paragraph (j)(2) contains provisions
relating to: (1) Establishment of procedures for designating troubled
PHAs; (2) commendation of exemplary PHAs; (3) PHA appeal of designation
as a troubled agency; (4) agreements between HUD and troubled and/or
mod-troubled PHAs; and (5) new provisions added by HCDA 1992 section
113(a) that require independent assessments of PHAs that are designated
troubled and/or mod-troubled.
The Department proposes to implement section 113(e) by adding a
definition of RMC to Sec. 901.5 that would refer to 24 CFR part 964,
the regulation that provides for resident participation and management
in public housing in accordance with section 20 of the 1937 Act. This
proposed rule would provide for the management assessment of RMCs in a
manner consistent with the regulatory framework established under
section 20 and 24 CFR part 964 for RMC management of a development.
The management assessment of an RMC will necessarily differ from
that of a PHA. Because an RMC enters into a contract with a PHA to
perform specific management functions on a development-by-development
basis, and because the scope of the management that is undertaken
varies, not every indicator that applies to a PHA would be applicable
to each RMC. An additional significant feature of RMC management is
that 24 CFR 964.225(d), entitled, Management contract, and 24 CFR
964.225(h), entitled, Prohibited activities, provide that a PHA may
enter into a management contract with a resident management
corporation, but a PHA may not contract for assumption by the resident
management corporation of the PHA's underlying responsibilities to the
Department under the ACC.
For this reason, the limited management responsibility of RMCs in
terms of both: (1) The areas in which they perform management
functions, and (2) the fact that the PHA remains ultimately responsible
to HUD under the ACC, this proposed rule would implement the management
assessment of RMCs as follows: Sec. 901.100, entitled, ``Data
collection,'' would be amended to provide that when a PHA submits its
PHMAP certification, it must identify developments managed by an RMC
and the management functions undertaken by the RMC at those
developments. The PHA would be responsible for obtaining from the RMC
and submitting to HUD, along with its own certification, the PHMAP
certification for the management functions undertaken by the RMC. For
example, if an RMC were responsible for rent collection in a particular
development, the PHA would be required to identify in its certification
the development and management function performed by the RMC, and
obtain from the RMC a certification of the percent of rents
uncollected, which would be submitted to HUD along with the PHA's
certification. Similarly, for those management functions undertaken by
an RMC for which no certification is necessary (i.e., the data is
already available to HUD, such as the indicator for modernization), the
PHA would still be required to identify in its certification form this
RMC-managed function and the development involved. The applicable
indicators for the RMC would be scored by the Department, and the
resulting grades would be transmitted to the PHA as a part of the
State/Area Office notification. The PHA would be required to forward
promptly the RMC's score.
Section 901.105 of the rule, entitled ``Computing assessment
score,'' requires no amendment to provide for the assessment of an
RMC's management. Those indicators that would apply to an RMC, based on
the management functions assumed by the RMC, would be graded just as
they would for a PHA. However, because of the limited scope of
management involved, an RMC would not receive an overall designation of
high performer, standard, or troubled, but only a grade on each
applicable indicator. In addition, because the PHA and not the RMC is
ultimately responsible to the Department under the ACC, the PHA's score
will be based on all of the developments covered by the ACC, including
those with management functions assumed by an RMC. RMC-managed
developments would, thus, be assessed to measure the RMC's performance
on an indicator-by-indicator basis, and as a part of the PHA's overall
performance. As discussed above, this result is necessary because of
the limited nature of an RMC's management functions and the regulatory
and contractual relationships among HUD, PHAs and RMCs. A new paragraph
(c) is added to Sec. 901.100, Data collection, to provide for the
assessment of RMCs.
To apprise an RMC of its indicator grades, Sec. 901.120 would be
amended to provide that the State/Area Office notification to the PHA
would include the grades of the RMC, if any, and that the PHA must
immediately notify the RMC, in writing, of its grades.
Because an RMC would be assessed on an indicator-by-indicator
basis, and would not receive an overall designation such as troubled,
most of the provisions of section 6(j)(2) of the 1937 Act could not
apply to RMCs, since most of those provisions (the establishment of
procedures for designating troubled PHAs; appeals of designation as a
troubled agency;
[[Page 20361]]
agreements between HUD and troubled PHAs; and, new provisions added by
HCDA 1992 section 113(a) that require independent assessments of PHAs
that are designated troubled) are triggered by a designation of
troubled.
One provision of section 6(j)(2) that is not dependent upon a
designation of troubled and that may appropriately be applied to RMCs
pertains to the commendation of exemplary PHAs. Even though RMCs would
not receive an overall designation of high-performer, standard, or
troubled, Sec. 901.130, Incentives, would be amended to permit an RMC
that scored a grade of A on each of its indicators to receive a
Certificate of Commendation from the Department as well as special
public recognition.
With respect to making the section 6(j)(2) provision for agreements
between HUD and troubled PHAs applicable to RMCs, since an RMC would
not be designated troubled, a memorandum of agreement under
Sec. 901.140 would not be applicable. HUD has determined, however, that
it would be appropriate to provide guidance for the improvement of an
RMC's management functions, and that the proper tool under PHMAP for
this purpose would be an improvement plan under Sec. 901.145. An
improvement plan is negotiated to improve performance under those
individual indicators that are the relevant measures of management
performance for an RMC. Section 901.145 would be amended to permit the
negotiation of an improvement plan that would include the RMC, the PHA,
and the Department.
Application of PHMAP to Alternative Management Entities
In addition to extending coverage to RMCs, this proposed rule would
also extend PHMAP to apply to any other alternative management/PHA
relationship, whether the alternative management entity (AME) is a
receiver, private contractor, private manager, or any other entity that
is under contract with a PHA, or that is otherwise duly appointed or
contracted (for example, by court order or agency action), to manage
all or part of a PHA's operations. It is just as necessary to assess
the management performance of AMEs as it is to assess PHAs or RMCs, to
follow the expressed policy of the 1937 Act, ``to remedy the unsafe and
unsanitary housing conditions and the acute shortage of decent, safe,
and sanitary dwellings for families of lower income''.
AMEs would be assessed following the procedures used for PHAs or
RMCs, depending upon the extent of the management responsibilities
assumed. An AME that assumes all, or substantially all, of a PHA's
management responsibilities (for example, under court order, or
following a substantial default and pursuant to an award under a
competitive proposal) would also assume the PHA's PHMAP
responsibilities and would be assessed accordingly. An AME that was
contracted to perform a limited number of management functions would be
assessed following the procedure used for RMCs.
Although the contractual relationship under the ACC is between the
PHA and the Department, there may also be a contractual relationship
between the AME and the PHA, or HUD and the AME. To ensure quality
management in such contractual relationships, minimum performance
criteria that relate to the PHMAP indicators, as applicable, should be
included in the contract. Failure to meet the performance criteria
would be a basis for termination of the contract. The provisions that
explicitly address AMEs and establish their treatment under PHMAP as
following the procedures for either PHAs or RMCs are found at
Secs. 901.1 and 901.5.
Definitions--Sec. 901.5
This portion of the regulation is revised to include new
definitions and revised definitions as a result of the proposed
revisions to the indicators. Definitions that no longer apply have been
eliminated. Some definitions have been expanded to include instructions
for calculation.
Indicators--Secs. 901.10-901.40
As indicated in section III, ``Regulatory Reinvention,'' above,
this rule would reduce the number of PHMAP indicators from twelve to
eight. A proposed sample certification for these revised indicators is
included as Appendix 3 of this preamble.
Indicator #1, Vacancy Percentage and Unit Turnaround
The vacancy indicator and the unit turnaround indicator of the
current part 901 have been combined in proposed indicator #1. The
proposed indicator has two components. The first component (with a
weight of x 2) measures the vacancy rate and, if applicable, the
progress a PHA has made in reducing the vacancy rate. The second
component (with a weight of x 1), to be used only when a PHA scores
below a C on the first component, measures turnaround time. The
assumption is that if vacancies are at a C level or above, the PHA does
not have a problem with turning around vacant units.
Because the vacancy rate is a clear manifestation of management
effort and embodies the essence of a PHA's mission, it is weighted more
heavily than the process-oriented unit turnaround component.
The Department is proposing to use a single method to calculate the
actual and adjusted vacancy rate. Instead of taking a ``snapshot''
picture of the vacancy rate at a certain date, or calculating an
average over a thirty day period, the vacancy rate will be calculated
by computing the ratio of vacancy days to unit days available over the
fiscal year. The adjusted vacancy rate is computed the same way, but
with eligible exemptions, such as vacancy days attributable to
modernization. The Department believes this method to be the most
accurate depiction of performance.
If a PHA elects to certify to the reduction of the vacancy rate
over the previous three years, the PHA shall retain justifying
documentation to support its certification for HUD post review.
For the calculation of the adjusted vacancy rate and turn-around
time, the vacancy days for units in the following categories (fully
defined in the rule at Sec. 901.10) shall be exempted:
1. Vacant unit undergoing modernization.
2. Vacant units in an approved demolition or disposition program.
3. Vacant units that are documented to be uninhabitable for reasons
beyond the PHA's control.
4. Vacant units in which resident property has been abandoned, but
only if State law requires the property to be left in the unit for some
period of time, and only for the period stated in the law.
5. Vacant units that have sustained casualty damage, but only until
the insurance claim is adjusted, i.e., funds to repair the unit are
received.
6. Units that are used for non-dwelling purposes, dwelling units
that are occupied by employees of the PHA, and units that are used for
resident services.
7. Vacant units required to remain vacant because of fire/ police
investigations, coroner's seal, or court order.
8. Units kept vacant because of code violations caused for reasons
beyond the control of the PHA, rather than as a result of management
and/or maintenance failures by the PHA.
9. Units vacant for circumstances and actions beyond the PHA's
control.
[[Page 20362]]
Definitions for indicator #1 are as follows:
1. Actual vacancy rate: This is the vacancy rate calculated without
any adjustments. This is calculated by dividing the total number of
vacancy days by the total number of unit days available for occupancy.
The maximum number of vacancy days for any unit is the number of days
in the year, regardless of the total amount of time the unit has been
vacant. An example of this calculation for a hypothetical PHA with 100
units available for occupancy follows. Unit days are calculated by
taking the total number of units available for occupancy and
multiplying by the number of days in the year.
Unit days available: 100 units x 365 days per year = 36,500 actual days
available for occupancy
Vacancy days are calculated by adding the total number of days
vacant from all units that were vacant for any reason during the PHA's
fiscal year. For example:
------------------------------------------------------------------------
Days
vacant
Unit and reason for vacancy during
FY
------------------------------------------------------------------------
6 Move-out................................................... 21
10* Down for modernization................................... 120
12* Down for modernization................................... 140
15* Down for modernization................................... 194
10 Lease up after modernization............................. 10
12 Lease up after modernization............................. 10
15 Lease up after modernization............................. 21
32 Transfer................................................. 15
81* Fire..................................................... 35
81 Lease after insurance adjustment......................... 23
96 Move-out................................................. 15
41 Move-out................................................. 28
39 Move-out................................................. 40
57 Move-out................................................. 18
61* Down for modernization................................... 230
22* Down for modernization................................... 90
61 Lease up after modernization............................. 10
22 Lease up after modernization............................. 3
---------
Total Actual Vacancy Days................................. 1,023
------------------------------------------------------------------------
The actual vacancy rate for the year is:
[GRAPHIC] [TIFF OMITTED] TP06MY96.000
The asterisks following the unit numbers denote vacancy days that
can be exempted in computing the adjusted vacancy rate.
2. Adjusted vacancy rate: This is the vacancy rate calculated after
excluding the vacancy days that are exempted for any of the eligible
reasons included here. The adjusted vacancy rate for the hypothetical
100 unit PHA would be calculated as follows:
------------------------------------------------------------------------
Adjusted
days
Unit and reason for vacancy vacant
during
FY
------------------------------------------------------------------------
6 Move-out.................................................. 21
10 Lease up after modernization.............................. 10
12 Lease up after modernization.............................. 10
15 Lease up after modernization.............................. 21
32 Transfer.................................................. 15
81 Lease after insurance adjustment.......................... 23
96 Move-out.................................................. 15
41 Move-out.................................................. 28
39 Move-out.................................................. 40
57 Move-out.................................................. 18
61 Lease up after modernization.............................. 10
22 Lease up after modernization.............................. 3
---------
Total Vacancy Days, as Adjusted........................... 214
------------------------------------------------------------------------
The PHA was permitted to exempt 809 of the vacancy days for
eligible reasons. To calculate the adjusted rate, the 809 days are
removed from the days vacant (numerator). The adjusted vacancy rate for
the year is:
[GRAPHIC] [TIFF OMITTED] TP06MY96.001
3. Reduced actual vacancy rate in the previous three years: this is
a comparison of the vacancy rate in the PHMAP assessment year
(immediate past fiscal year) to the vacancy rate during the first year
of the previous three year period. In the case of the hypothetical PHA
discussed earlier, the assumption is made that the actual vacancy rate
during the first year of the three year period was 40 percentage
points, compared to the assessment year with a 22 percentage point
vacancy rate. This is a vacancy rate reduction of 18 percentage points,
calculated as follows:
Percentage points vacancy rate in the earlier year, minus.......... 40
Percentage points vacancy rate in the assessment year, equals...... 22
----
Percentage points reduction in the vacancy rate.................... 18
4. Average unit turnaround time: the annual average of the total
number of turnaround days between the move-out date and the date a new
lease takes effect. Each time an individual unit is re-occupied (turned
around) during the fiscal year, the turnaround days for that unit shall
be counted in the turnaround time. Unlike vacancy days, which cannot
exceed the number of days in the fiscal year, turnaround days include
all the days between the last move-out and the date a new lease takes
effect, including any turnaround days in prior fiscal years. Only units
that are re-occupied during the fiscal year are included in the
turnaround time calculation. An example of this calculation is as
follows for a hypothetical PHA that had 15 units turned over in the
assessment year:
------------------------------------------------------------------------
Turnaround
Unit days Days exempted Net days
------------------------------------------------------------------------
12 100 80 (modernization 20
days).
14 10 ......do.............. 10
31 12 ......do.............. 12
36 96 86 (modernization 10
days).
18 413 ......do.............. 413
6 4 ......do.............. 4
41 13 ......do.............. 13
59 74 60 (modernization 14
days).
[[Page 20363]]
32 2 ......do.............. 2
96 14 ......do.............. 14
2 60 40 (fire damaged unit) 20
4 21 ......do.............. 21
6 8 ......do.............. 8
13 29 ......do.............. 29
22 19 ......do.............. 19
----------------------
Total Turnaround Days During the Fiscal Year 590
(FY)
------------------------------------------------------------------------
Annual average vacant unit turnaround time for the FY:
[GRAPHIC] [TIFF OMITTED] TP06MY96.002
5. Approved, funded, on-schedule annual modernization program:
Includes any modernization program, funded under the Comprehensive
Grant Program (CGP), the Comprehensive Improvement Assistance Program
(CIAP), Vacancy Reduction Program (VRP), or any other source, if a PHA
is in conformance with its current implementation schedule as approved
by the PHA Board of Commissioners and/or HUD.
6. Turnaround days: The days between the last move-out and the date
a new lease takes effect, including any turnaround days in prior fiscal
years.
7. Vacancy day: A day when a unit is not under lease by an eligible
low-income resident, unless the vacancy day is exempted for an eligible
reason.
8. Vacant unit: Is a dwelling unit that is not under lease to an
eligible family. Units under lease for non-dwelling uses should not be
included in the calculation of this indicator.
9. Available unit: A dwelling unit (occupied or vacant) under the
PHA's ACC.
This proposed combined indicator has a weight of #2.
Indicator #2, Modernization
(This indicator is automatically excluded if a PHA has no
modernization program.)
This proposed indicator was changed very little with the original
five components remaining virtually the same. However, the weight
values for component #1, expenditure of funds, and component #2,
obligation of funds, have been changed so that greater emphasis is
given to obligation of funds in relation to expenditure of funds. This
is exactly the opposite of the current interim rule, where the emphasis
is placed on expenditure of funds. This change recognizes the
importance of getting projects under contract, while at the same time
acknowledging that often it is necessary to hold back payments to
contractors due to disputes over the quality of the work or materials.
A new feature in component #1, expenditure of funds, and component
#2, fund obligation, would require, for grade A, PHAs that are not on
schedule to have self-executed a time extension within 30 calendar days
after the expenditure or obligation deadline with the extension to be
based on reasons outside of their control.
For component #3, contract administration, and component #4,
quality of the physical work, the number of possible grades has been
reduced from six to three, the three being A, C and F. ``Significant
findings'' for these two components will be redefined prior to the
effective date of any changes to the PHMAP. Component #5, budget
controls, has been changed to reflect the final CGP rule which permits
agencies to move work items between approved CGP annual statements and
the latest approved five-year action plan.
This proposed indicator has a weight of x1.
Indicator #3, Rents Uncollected
The method for calculating the amount of rents uncollected for this
proposed indicator has been simplified to a basic ratio comparing the
total amount of rents billed during the assessment year, to the amount
of rent collected during the assessment year. In the current interim
PHMAP rule, PHAs are instructed to include the accounts receivable owed
at the beginning of the assessment year and to deduct the total amount
of accounts receivable that have been written off during the year for
residents no longer in possession. Both of these adjustments have been
eliminated in the proposed indicator as not being directly relevant to
rent billed and collected in the current assessment period.
The percentage of rents uncollected refers to the proportion of
current dwelling rent that was billed during the assessment year, but
not collected during the assessment year. The calculation is made as of
the close of business on the last business day of the fiscal year.
``Current dwelling rent'' excludes retroactive rent charges (including
those identified through the Tenant Integrity Program), maintenance
charges, excess utility charges, late charges, and any other charges
not specifically identified as dwelling rent.
This proposed indicator has a weight of x1.5.
Indicator #4, Work Orders
The current indicator #4, energy consumption, has been combined
with the overall measurement of financial performance, which is now
indicator #6.
The new proposed indicator #4, work orders, continues to measure
PHA performance in the handling of both emergency and non-emergency
work orders, but under this proposed rule, the measurement will be in
two components instead of one. The proposed indicator grade will be
based on the average number of days it takes for a work order to be
completed rather than the percentage of work orders outstanding at the
end of a PHA's fiscal year.
The Department believes that assessing the average amount of time
it takes to complete work orders is more equitable. Consider the
following scenario:
Two PHAs have a fiscal year-end date of June 30, 1995. The first
PHA has five work orders received on June 29, 1995, and did not
complete them until July 2, 1995. The second PHA has five work orders
received on January 1, 1995, and completed them on June 29, 1995. If
both PHAs received the same amount of work orders, the second PHA would
receive a higher grade under the current method of grading this
indicator, even though it took the second PHA much longer to complete
the work orders.
The first component measures emergency work order performance; the
second component measures the average amount of time it takes to
complete non-emergency work orders.
The proposed indicator includes more definitions and makes clear
the Department's intention that all work orders should be tracked,
except those exempted for modernization, issued to prepare a vacant
unit for re-rental, and issued for the performance of cyclical
maintenance. Implicit in this indicator is the adequacy of the PHA's
work order system in terms of how a PHA accounts for and controls its
work orders, and its timeliness in preparing/issuing work orders. As
such, the adequacy of a PHA's work order system will be part of the
confirmatory review of this indicator.
If a PHA elects to certify to the reduction in time it takes to
complete work orders, the PHA shall retain justifying documentation to
support its certification for HUD post review.
This proposed indicator has a weight of x1.5.
Indicator #5, Inspection of Units and Systems
This proposed indicator has undergone significant changes. Instead
[[Page 20364]]
of having four components, it now has only two, each with a weight of
x1. Component #1 examines the percentage of occupied units, out of all
of a PHA's units (except those permitted to be exempted), that the PHA
inspects on an annual basis in order to determine short-term
maintenance needs (for which work orders are issued) and long-term
modernization needs (which are referred to and included in the PHA's
comprehensive plan for modernization).
Component #2 examines the effectiveness of a PHA's annual
inspection of its major systems, as systems are defined herein, and the
maintenance of those systems either as part of the inspection process,
or through the issuance of a work order; or, if a work order is not
issued, by inclusion in the PHA's comprehensive plan for modernization.
While the current indicator assesses the repairs to units and systems,
the new proposed indicator makes it clear that work orders that are
generated as of result of components #1 and #2 are measured primarily
under indicator #4, outstanding work orders, unless the repair is
completed during the inspection or deferred to the modernization
program.
This proposed indicator also makes it clear that PHAs are expected
to inspect to the standard specified in the local housing/occupancy
code, as long as that code is at least equivalent to or exceeds Section
8 Housing Quality Standards (HQS). Implicit in this indicator is the
adequacy of the PHA's inspection program in terms of the quality of a
PHA's inspections, and how a PHA tracks both inspections and needed
repairs. As such, the adequacy of a PHA's inspection program will be
part of the confirmatory review of this indicator.
The Department has more clearly defined the units, both vacant and
occupied, which may be exempted from an annual inspection.
Units in the following categories (fully defined in the rule at
Sec. 901.30) are exempted and not included in the calculation of the
total number of units, and the number and percentage of units
inspected. Systems that are a part of individual dwelling units that
are exempted, or in part of buildings where all of the dwelling units
in the building are exempted, are also exempted from the calculation of
proposed indicator #5.
1. Occupied units where the PHA has made two documented attempts to
inspect.
2. Vacant units undergoing modernization.
3. Vacant units in an approved demolition or disposition program.
4. Vacant units that are documented to be uninhabitable.
5. Vacant units vacant for the full immediate past fiscal year that
have been exempted under indicator #1 for any of the reasons for which
exemptions are permitted under that indicator (except those units that
are used for non-dwelling purposes or that are occupied by employees of
the PHA and units that are used for resident services).
This proposed indicator has a weight of x1.
Indicator #6, Financial Management
This proposed indicator combines, in two components, indicator #4,
energy consumption; and indicator #9, operating reserves. The first
component assesses the amount of cash reserves in relation to total
actual routine expenses. The second component is required only if a PHA
scores below a grade C on component #1. The Department is offering two
options for component #2. Option A compares energy and utility expenses
to the average of those expenses computed on a three year rolling base;
and option B measures whether or not a PHA has conducted an energy
audit and implemented the improvements recommended as a result of the
energy audit. PHAs with tenant-paid utilities in all their units will
not be assessed on energy/utility consumption even if they score below
a grade C in cash reserves. The rationale for measuring energy
consumption only if a PHA scores below a grade C in the first component
is that if a PHA is in good financial health, the Department can
reasonably conclude that energy/utility usage is being well-managed.
A PHA that has cash reserves equal to or greater than 10% of total
actual routine expenses will be assessed only on the cash reserves
component. This proposed component has a weight of x2.
The proposed energy/utility component, option A, is substantially
different from the current energy indicator in that it includes water
and sewage usage, and the adjustment for the heating degree day (HDD)
factor has been eliminated. The elimination of the HDD factor from the
calculation of this component is in accordance with Notice PIH 94-81,
dated November 18, 1994. On October 13, 1994, a final rule was
published in the Federal Register that eliminated the application of
the HDD factor for utility consumption. This rule will first affect
PHAs with fiscal year ending December 31, 1995.
As stated previously, option B for the energy/utility component
assesses the conduct of an energy audit and the implementation of
recommendations that resulted from the energy audit. The Department is
particularly interested in receiving comments regarding the energy/
utility component to determine what the national preference is for this
component. PHAs are asked to indicate whether they prefer option A;
option B; or the choice of being able to use either option for their
PHMAP certification and assessment.
This proposed component has a weight of x1.
A sample worksheet for computing component #1 is included as
Appendix 1 of this preamble; and two sample worksheets for computing
component #2 are included as Appendix 2 of this preamble.
This proposed indicator has a weight of x1.
Indicator #7, Resident Involvement
PHAs with 100 units or less shall not be assessed under this
indicator. This indicator reflects the Department's new emphasis on
Section 3 programs to encourage resident employment. As in the current
resident initiatives indicator, this indicator assesses a PHA's efforts
to involve residents to improve the community in which they live. If
the PHA is participating in any HUD grants, such as the Tenant
Opportunity Program, Youth Apprenticeship Program, etc., this component
assesses a PHA's success in implementing these programs. This proposed
indicator has a weight of x1.
The Department believes that consumer satisfaction is critical in
public housing, and is in the process of conducting a national study on
the issue. The Department is also seriously considering including a
component under this indicator that assesses consumer satisfaction.
Therefore, HUD is especially interested in receiving comments regarding
whether or not PHAs should be required to conduct resident surveys on a
periodic basis, and whether such a survey should be standardized.
Indicator #8, Security
It was HUD's intention that PHAs with 100 units or less not be
assessed under this indicator, and this is stated in the text of the
proposed rule, but HUD is specifically soliciting comments on whether
this indicator should apply to such PHAs. Recognizing that many public
housing communities are under siege by gangs, violent criminals and
drug dealers who threaten the safety and welfare of decent, responsible
residents, President Clinton has announced a ``One Strike'' policy in
which people in public housing who engage in drug and other criminal
activity will be barred from admittance to public housing or
[[Page 20365]]
evicted, as applicable. This policy is supported by a law recently
passed by Congress entitled the Housing Opportunity Program Extension
Act of 1996 (the Extension Act) (Pub. L. 104-120, approved March 28,
1996). The Extension Act expands the statutory authority of PHAs to
keep persons engaged in illegal activities out of public housing. In
furtherance of President Clinton's policy and the Extension Act, the
Department is adding a new indicator that assesses security. The
security indicator will consider a PHA's ability to perform such
activities as: Track crime-related problems in their developments; take
action with local police authorities to improve law enforcement, lease
enforcement and crime prevention; adopt and implement tough applicant
screening and resident eviction policies and procedures; and meet goals
under any HUD-funded drug prevention or crime reduction program.
Although applicant screening and resident eviction policies and
procedures must be tough, the proposed rule would require such actions
to be appropriately taken. By using the term ``appropriately'' in the
text of the rule, HUD intends to preserve PHAs' ability to act
consistently with the provisions of 24 CFR 966.4(5)(i), Eviction for
criminal activity--(i) PHA discretion to consider circumstances. This
proposed indicator has a weight of x1.
With respect to this proposed security indicator, HUD is
particularly interested in comments regarding the desirability of
holding PHAs responsible for demonstrating systems to take action with
local police authorities to improve law enforcement, lease enforcement
and crime prevention. HUD believes that such cooperative action is
critical to residents' well-being, but some have expressed concern
whether PHAs should be held accountable for obtaining cooperation from
another party (the police). In addition, HUD specifically invites
comments regarding the reasonability of the proposed component which
rates PHAs based on the percentage of goals they have met in crime
reduction-related programs.
Data Collection--Sec. 901.100
The length of time a PHA has to submit its form HUD-50072, PHMAP
Certification, to the State/Area Office has been reduced from 90 days
to 45 days after the end of a PHA's fiscal year. This change has been
made because many comments have stated that the overall PHMAP process
takes too long. Under the current program, it could be a minimum of
nine months before a PHA knows its final PHMAP score after going
through the appeal process. The 45 day period is consistent with other
reporting due date requirements, such as the submission of year-end
financial statements and the submission of the CGP annual report. A PHA
that does not submit its year-end reports in a timely manner may
receive a grade of F for the applicable indicators. PHAs will no longer
be allowed to submit past due reports in support of an appeal and
expect the appeal to be granted. State/Area Offices will be required by
the Department to complete the PHMAP assessments within an additional
45 days, thereby reducing the overall time for the completion of a
PHMAP assessment to 90 days after the end of a PHA's fiscal year.
The reporting requirements for PHAs where management functions have
been assumed by an RMC or other alternative management entity have been
included in the regulation. A PHA's certification will be required to
identify the development and management functions assumed by the RMC or
AME, and the PHA will be required to obtain a certified questionnaire
from the RMC or AME as to the management functions undertaken by the
RMC or AME. The RMC's or AME's certification will be required to be
approved by its executive director or chief executive officer of
whatever title, and the PHA will be required to submit the RMC's or
AME's certified questionnaire along with its own certification.
Any alternative management/PHA relationship is assessed under the
PHMAP, as discussed above in this preamble, whether the alternative
management is an RMC, a receiver, private contractor, private manager,
or any other entity that is under contract with a PHA to manage all or
part of its operations.
Guidance to PHAs regarding how to calculate each applicable
indicator and component will be issued in a handbook and/or guidebook.
Such issuances will coincide with the effective date of any changes to
the PHMAP.
Computing Assessment Score--Sec. 901.105
Indicator and Component Weights
The weights of some of the indicators have been reduced to simplify
the computation of a PHA's assessment score. The total weights for each
indicator are based on a ten-point scale, and the highest score a PHA
can receive is 100. Indicators receive a higher weight primarily if
they reflect a management aspect closely related to the key areas of
the condition of PHA stock and delivery of services to PHA residents.
On this basis, two indicators are given a weight of two: Vacancies and
rents uncollected. Two indicators are given a weight of one and a half:
Work orders and resident initiatives. The remaining indicators are
given a weight of one: Modernization, inspection of units and systems,
and financial management.
The weight of each indicator and component (shown in brackets []
for components only) is as follows:
Indicator #1, vacancy percentage and unit turnaround.................x2
Component #1, vacancy percentage and progress in reducing
vacancies..........................................................[x2]
Component #2, unit turnaround time...............................[x1]
Indicator #2, modernization..........................................x1
Component #1, unexpended funds over three Federal fiscal years
(FFYs) old.........................................................[x1]
Component #2, timeliness of fund obligation......................[x2]
Component #3, adequacy of contract administration................[x2]
Component #4, quality of the physical work.......................[x3]
Component #5, adequacy of budget controls........................[x1]
Indicator #3, rents uncollected....................................x1.5
Indicator #4, work orders..........................................x1.5
Component #1, emergency work orders completed in 24 hours or
less...............................................................[x1]
Component #2, average number of days for non-emergency work
orders to be completed.............................................[x2]
Indicator #5, annual inspection of units and systems.................x1
Component #1, annual inspection of units.........................[x1]
Component #2, annual inspection of systems.......................[x1]
Indicator #6, financial management...................................x1
Component #1, cash reserves......................................[x2]
Component #2, annual energy/utility consumption..................[x1]
Indicator #7, resident involvement...................................x1
Component #1, resident involvement...............................[x1]
Indicator #8, security...............................................x1
Physical Condition and Neighborhood Environment
The overall PHMAP score of a PHA will be adjusted by adding
weighted points that reflect the differences in the difficulty of
managing developments that result from the physical condition and/or
the neighborhood environment of a PHA's developments.
Section 502.(j)(1)(I) requires that (i) the Secretary shall
administer the system of evaluating public housing agencies flexibly to
ensure that such agencies are not penalized as a result of
circumstances beyond their control; and (ii) reflect in the weights
assigned to the various indicators the differences in the difficulty of
managing individual projects that result from their physical
[[Page 20366]]
condition and neighborhood environment.
The Department believes that the current PHMAP regulation contains
substantial provisions to ensure that PHAs are not penalized for
conditions beyond their control:
1. A PHA may request a modification of any indicator and/or
component to compensate for conditions beyond its control.
2. A PHA may request the exclusion of an indicator and/or component
for the same reason.
3. Without requesting a modification, the current and proposed
PHMAP regulation allows PHAs to modify the scoring calculations for
certain indicators by exempting certain units.
4. There is a two-stage appeal process available if the PHA fails
to find relief under paragraphs one, two, and three, above.
In view of these already substantial considerations which protect
PHAs from being penalized for circumstances beyond their control, the
Department is proposing to respond to item (ii), above (requiring the
Department to reflect in the weights assigned to the various indicators
the differences in the difficulty of managing individual developments
that result from their physical condition and/or their neighborhood
environment), in a way that will fully comply with the statutory
language, but will not make PHMAP substantially more complicated, nor
place inordinate administrative burdens on PHAs and HUD staff.
The Department is proposing that the legislative provision
(requiring the Department to reflect in the weights assigned to the
various indicators the differences in the difficulty of managing
individual developments that result from their physical condition and/
or their neighborhood environment) apply to the following three
indicators only.
1. Indicator #1, vacancy percentage and unit turnaround;
2. Indicator #4, work orders; and
3. Indicator #5, annual inspection and condition of units and
systems.
The definitions of physical condition and neighborhood environment
are kept as simple as possible and meant to make it relatively easy for
PHAs to document.
1. Physical condition: Refers to units located in developments over
ten years old that require major capital investment in order to meet
minimum HQS standards or local codes, whichever is applicable.
2. Neighborhood environment: Refers to units located within
developments where the immediate surrounding neighborhood (that is a
majority of the census tracts on all sides of the development) has at
least 51% of families with incomes below the poverty rate as documented
by the latest census data.
Any PHA with 5% or more of its units subject to either or both of
the above conditions shall, if they so choose, be issued a weighted
PHMAP score, based solely upon the certification of the PHA, in
addition to the regular PHMAP score. The additional weight shall be
calculated as follows:
Percent of Units Subject to Physical Condition and/or
Neighborhood Environment: Extra
points
At least 5% but less than 10%............................. 0.5
At least 10% but less than 20%............................ .6
At least 20% but less than 30%............................ .7
At least 30% but less than 40%............................ .8
At least 40% but less than 50%............................ .9
At least 50%.............................................. 1.0
These extra points will be added to the score (grade) of the
indicator(s) to which these conditions may apply. A PHA is required to
certify on form HUD-50072, PHMAP Certification, the extent to which the
conditions apply, and to which of the indicators the extra scoring
points should be added. For example, a PHA certifying that (after
removing from consideration all units previously exempted) 15% of its
units are subject to the physical conditions and/or neighborhood
environment as defined above, would receive an additional .6 of a point
for the score for indicator #1. If a PHA receives an unweighted score
of D (5 points) for this indicator, the weighted score would be 5.6
points. Indicator #1 has an overall weight of x2, therefore, the
weighted score for the indicator would be 11.2, as opposed to the
unweighted score of 10.
Developments that have received comprehensive modernization within
the past ten years are not eligible to receive additional weight for
the physical condition factor. A PHA that receives a grade of A under
indicators #4 and #5 (without additional points) may not claim the
additional weight for indicator #1 since the physical condition of its
developments is not applicable. None of the weighted indicators may
have a score that is more than its total weighted points, including the
additional point, or fraction thereof, awarded for weighting.
PHAs would be expected to maintain supporting documentation to show
how they arrived at the number and percentage of units out of their
total inventory that are subject to additional weighting. If the basis
were neighborhood environment, the PHA would have on file the
appropriate maps showing the census tracts surrounding the
development(s) in question with supporting census data showing the
level of poverty. Units that fall into this category but which have
already been removed from consideration for other reasons (permitted
exemptions and modifications and/or exclusions) shall not be counted in
this calculation. For example, a unit that has been removed from the
adjusted vacancy calculation because it is undergoing modernization
shall not also be counted as a unit subject to this provision. For the
physical condition factor, a PHA would have to maintain documentation
showing the age and condition of the units and the record of capital
improvements, indicating that these particular units have not received
comprehensive modernization. They would also have to document that in
all cases, units that had been exempted for other reasons were not
included in the calculation.
PHA Score and Status--Sec. 901.115
This section has been revised to state that a PHA shall not be
designated as a high performer if it scores below a grade of C for any
indicator.
A new provision, recommended by the Office of Management and Budget
in the course of the review of this proposed rule in accordance with
Executive Order 12866, would require each PHA to post a notice of its
PHMAP score and status in appropriate conspicuous and accessible
locations in its offices and in each of its developments within two
weeks of receipt of the score and status. In addition, HUD would
publish every PHA's score and status in the Federal Register.
State/Area Office Functions--Sec. 901.120
Section 901.125, Regional Administrator functions, has been
eliminated from this proposed rule as a result of the reorganization of
the Department and the redelegation of authority to State/Area Offices.
Applicable functions have been included in this portion of the
regulation.
This section will require a State/Area Office to notify a PHA of
its PHMAP score and the grade of the RMC or AME (if any) assuming
management functions at any of the PHA's developments, and will require
a PHA to notify in writing, immediately upon receipt of the State/Area
Office notification, the RMC or AME (if any) of the RMC/AME's grades.
[[Page 20367]]
PHA Right of Appeal--Sec. 901.125
Former Regional Administrator functions that are applicable have
been included in this portion of the regulation.
Incentives--Sec. 901.130
All high- and standard-performing PHAs have been afforded
substantial relief by the Department and this section of the regulation
has been revised to reflect the available relief. This section also
includes recognition of RMCs that receive a grade of A on each of the
indicators for which they are assessed.
Memorandum of Agreement--Sec. 901.140
The scope of the Memorandum of Agreement (MOA) may vary depending
upon the extent of the problems present in the PHA, and now provides
for the inclusion of other relevant areas identified as problematic,
i.e., areas other than deficient PHMAP indicators. The Department
believes that the use of one document to track troubled and mod-
troubled PHA progress is in the best interest of PHAs and the
Department.
Upon designation of a large PHA (1250 or more units under
management) as troubled, the State/Area Office shall make a referral to
HUD Headquarters for appropriate recovery intervention and the
execution of an MOA by the Assistant Secretary for Public and Indian
Housing.
Improvement Plan--Sec. 901.145
The option of requiring RMCs or AMEs to develop an improvement plan
is included in the regulation. As with a PHA, if an RMC or AME receives
a D or E in any indicator, the State/Area Office may require an RMC or
AME to develop an improvement plan. If an RMC or AME receives an F in
any indicator, the State/Area Office shall require an RMC or AME to
develop an improvement plan.
Resident Participation in Competitive Proposals and Resident Petitions,
Secs. 901.220 and 901.225
The statutory authority for the PHMAP is section 6(j) of the 1937
Act. Section 113 of HCDA 1992 amends section 6(j)(3)(A) of the 1937 Act
(42 U.S.C. 1437d(j)(3)(A)), which deals with the actions that may be
taken upon the occurrence of a substantial default by a PHA.
Section 113(b)(1) amends 1937 Act section 6(j)(3)(A)(i), which
permits the Department to solicit competitive proposals from other PHAs
and private housing management agents (which may be selected by
existing residents) to manage the housing administered by a PHA in
substantial default, by allowing residents the opportunity to
participate in the selection process through administrative procedures
established by the Department. These administrative procedures are
being proposed in this rule.
This proposed rule would provide in Sec. 901.220 that when a
competitive proposal to manage the housing of a PHA in substantial
default is solicited in a Request for Proposals (RFP), the PHA would be
required to post a notice and a copy of the RFP on the premises of each
housing development subject to new management under the RFP for the
purposes of notifying affected residents. Residents would be required
to notify HUD by the RFP's application due date of their interest in
participating in the selection process. In order to participate, the
total number of residents that notify HUD must equal at least five
percent of the PHA's residents, or the notification of interest must be
from an organization or organizations of residents whose membership
must equal at least five percent of the PHA's residents. Because of the
urgency that is appropriately present when the extraordinary measure of
selecting new management for a PHA in substantial default must be
taken, the Department has determined that this minimal five percent
showing of resident concern is necessary to justify the additional
selection procedures required by resident participation.
If the required number of interested residents notify HUD, a
minimum of one resident may be invited to serve as an advisory member
on the evaluation panel that will review the applications in accordance
with applicable procurement procedures. Resident advisory member(s) are
subject to all applicable confidentiality and disclosure restrictions.
Section 113(b)(5) allows the residents of a PHA designated as
troubled to petition the Department to take any of the remedial actions
listed under subparagraph 6(j)(3)(A) of the 1937 Act. The Department is
required to respond to such petitions in a timely manner with a written
description of the actions, if any, the Department plans to take, and,
where applicable, explain why such actions differ from the course
proposed by the residents. As with the procedure for permitting
residents to participate in the selection of management agents, the
proposed rule would require, at Sec. 901.225, that the petition has the
support of at least five percent of the troubled PHA's residents.
Substantial Default and Intervention Procedures, Secs. 901.200--901.215
This proposed rule adds language that would require the Department
to take action regarding troubled PHAs or AMEs that have not improved
their management performance over a specified period of time. The
current PHMAP regulation has a wide variety of options for dealing with
troubled PHAs subsequent to a finding of substantial default. What the
current regulation does not have is a built-in time frame that would
require the Department to make a finding of substantial breach or
default, or request a court-ordered receivership. Therefore, under
Sec. 901.200(c), the Department will be required to declare a troubled
PHA or AME in substantial breach or default if a PHA does not show
significant improvement (10 point increase) in its PHMAP score within
one year. A PHA or AME will be notified of such action in accordance
with Sec. 901.205(c).
A PHA or AME may waive, in writing, receipt of explicit notice from
HUD as to a finding of substantial default, and voluntarily consent to
a determination of substantial default. The PHA or AME would concur on
the existence of substantial default conditions which can be remedied
by technical assistance. At that time, the Department would immediately
proceed with interventions as provided in Sec. 901.210, including the
provision of technical assistance necessary to address identified
deficiencies. In such a case, the PHA or AME shall provide the
Department with written assurances that all deficiencies will be
addressed by the PHA or AME.
The affect of this proposal would be that chronically troubled PHAs
or AMEs would be subject to immediate intervention by the Department.
Section 901.210(a) of the current PHMAP regulation gives a PHA an
opportunity to initiate corrective action to resolve identified
deficiencies. Section 901.210(c) of the current PHMAP rule requires a
PHA to demo
FR Doc. 96-10956 Office of the Assistant Secretary for Public and Indian Housing; Public Housing Management Assessment Program
nstrate (in no more than 30 days) that the Department's
finding of substantial breach or default is incorrect. The burden of
proof is placed upon the PHA. The rationale is that troubled PHAs have
already had more than adequate time to implement corrective action, or
will have at least one year from the time of initial troubled
designation.
This approach essentially uses the regulation that has been in
place for years. The only difference is that the Department would be
required to impose the existing standard. The only new performance
standard rests upon the Department, not the PHA or AME.
[[Page 20368]]
A new Sec. 901.235, Technical assistance, has been added to address
situations where a substantial default is likely to occur if
deficiencies are not addressed, and to ensure that a PHA or AME that
has just been removed from troubled status will not become troubled
again within a two year period.
Request for Comments
The Department recognizes that PHMAP scores should not be
interpreted as the sole determinant of housing agency performance.
While PHMAP is an important yardstick to measure PHA performance, it
should not be the sole driving force behind PHA actions. Sometimes a
PHA should do the ``right'' thing and receive a lower PHMAP score. For
example, a PHA decides to demolish nonviable units rather than to
program these nonviable units for modernization in quest of a better
PHMAP score. When a PHA makes the ``right'' decision, it should be
commended, not punished. Therefore, the Department is particularly
interested in receiving comments concerning ways in which PHAs can
receive positive recognition within the context of this regulation for
making the right decision.
Appendix 1.--Sample Worksheet--Indicator #6, Cash And Operating Expenses
[Analysis of available cash, examination of operating expenses/available
cash]
------------------------------------------------------------------------
------------------------------------------------------------------------
PHA Name: FYE
To estimate cash available at fiscal year end for routine
operating expenditures.
Current Assets
1. Balance of Cash and Investment Accounts at fiscal
year end. Do not include the balance of cash accounts
that are restricted to a specific purpose and are,
therefore, not available for routine operating
expenditure purposes (e.g., modernization accounts,
security deposit accounts, escrow accounts, homebuyer
reserves, replacement reserves, etc.).
(a) General Fund Account 1111.1....................
(b) Petty Cash, Account 1117.......................
(c) Investments, Account 1162......................
(d) Other (describe)...............................
2. Add Accounts Receivable and Advances that are due
for the period covered and can be collected within the
next 30 days.
(a) Tenants/homebuyers.............................
(b) HUD Contributions receivable for Operating
Subsidy...........................................
(c) Interfund accounts receivable due from other
ACCs..............................................
(d) Other Receivables (describe)...................
3. Total Current Assets (add items 1 and 2)............
Current Liabilities
4. Liabilities payable within 30 days after fiscal
period ends.
(a) Vendors/contractors, Account 2111..............
(b) Payroll deductions and contributions, Account
2117..............................................
(c) Amounts due to HUD for subsidy adjustment,
residual receipts, Account 2118...................
(d) Accrued Expenses (e.g., utilities, payroll,
PILOT)............................................
(c) Interfund accounts payable due to other ACCs...
(d) Other current obligations (describe)...........
5. Total Current Liabilities (Add items 4(a) through
4(d)).................................................
6. Available Cash (Deficiency) (Line 3 Minus Line 5)...
7. Total Routine Expenses (Line 520, form HUD-52599)...
8. Cash Reserves divided by Total Actual Routine
Expenses (Line 6 divided by Line 7)...................
------------------------------------------------------------------------
Appendix 2.--Sample Worksheet--Indicator #6, Energy/Utility Consumption
Option A
[Annual energy/utility consumption, as compared to the average of the
three years' rolling base consumption]
------------------------------------------------------------------------
------------------------------------------------------------------------
PHA: FYE
1. Total energy/utility cost in fiscal year for which
adjustment is requested (form HUD-52722B, line 13,
column 3):............................................ $
2. Costs of estimated energy/utility consumption at
average rate for appropriate PHA fiscal year (form HUD-
52722B, line 17, column 3):........................... $
3. Costs of actual energy/utility consumption divided
by costs of estimated energy/utility consumption (line
1 divided by line 2):................................. $
4. Subtract 1.00 from line 3 and multiply the remainder
by 100 to calculate the percentage of increase or
decrease. For example:................................ %
If line 3 equals .95, then .95 minus 1.00 equals -
.05 x 100 = a 5% decrease; or...................
If line 3 equals 1.15, then 1.15 minus 1.00 equals
.15 x 100 = a 15% increase .....................
------------------------------------------------------------------------
Source: Most recent form HUD-52722B, Adjustment for Utility Consumption
and Rates.
Sample Worksheet--Indicator #6, Energy Consumption Option B
[Energy audit and implementation of recommendations]
------------------------------------------------------------------------
------------------------------------------------------------------------
PHA: FYE
Grade Response
Grade A: The PHA has completed its energy audit and has
implemented all of the recommendations determined to be
cost effective.
Grade C: The PHA has completed its energy audit and is in
the process of implementing all of the recommendations.
Grade F: The PHA has not completed its energy audit, or has
not implemented all of the recommendations.
------------------------------------------------------------------------
Source: PHA's energy audit and/or maintenance plan.
[[Page 20369]]
Appendix 3.--Public Housing Management Assessment Program (PHMAP) Certification
[Instructions: A PHA/RMC/AME's responses to this certification form must be the PHA/RMC/AME's actual data; e.g.,
prior to any adjustments for modifications and/or exclusion requests to the indicators. Round percentages to the
nearest two decimal points.]
PHA/RMC/AME Name:
For FY Ending:
Submission Date:
Indicator 1: Vacancy rate and unit turnaround
Units
Days
Rate
Actual vacancy total.................................................... / / / %
Vacancy exemptions...................................................... / / /
Adjusted vacancy total.................................................. / / / %
Percent reduction of actual vacancies over prior three
years (enter percent or N/A).......................... %
PHA/RMC/AME shall respond to the question, below, if it
scored below a grade of C on the vacancy component
Average number of calendar days for vacant unit to be
prepared for re-rental and for a new lease to take
effect (unit turnaround)..............................
Additional percentage points for the percent of units
subject to physical condition and/or neighborhood
environment (enter .5; .6; .7; .8; .9; or 1 or N/A)....... %
Indicator 3: Rents uncollected
Rents billed........................................... $
Rents collected........................................ $
Rents uncollected...................................... $
Balance of rents uncollected as a percentage of total
rents to be collected................................. %
Indicator 4: Work orders
Percent of emergency items corrected/abated within 24
hours................................................. %
Average number of calendar days for non-emergency work
orders to be completed................................
Average number of days PHA/RMC/AME has reduced the time
it takes to complete non-emergency work orders over
the past three years (enter average number of days or
N/A)..................................................
Additional percentage points for the percent of units
subject to physical condition and/or neighborhood
environment (enter .5; .6; .7; .8; .9; or 1 or N/A)....... %
Indicator 5: Annual inspection of units and systems
Percent of units inspected annually using standards
that were at least equivalent to HQS.................. %
Percent of units meeting HQS........................... %
PHA/RMC/AME completed all repairs where necessary for
code compliance either during the inspection, issued
work orders for the repairs, or referred the
deficiency to the current year's or next year's
modernization program (enter Yes or No)...............
Percent of buildings and sites, according to the
maintenance plan, where major systems were inspected.. %
Additional percentage points for the percent of units
subject to physical condition and/or neighborhood
environment (enter .5; .6; .7; .8; .9; or 1 or N/A)....... %
Indicator 6: Financial management
PHA/RMC/AME has cash reserves of $3 million or more
(enter Yes or No)..................................... $
If the answer is Yes, proceed to indicator #7; if the
answer is No, continue with the next question
Percent of cash reserves to total actual routine
expenditures.......................................... %
PHA/RMC/AME shall respond to the questions, below, if it
scored below a grade of C on the cash reserves component;
however, PHA/RMC/AME with tenant-paid utilities in all
their units will not be assessed on energy/utility
consumption even if they score below a grade of C on the
cash reserve component
PHA/RMC/AME has completed its energy audit and has
implemented all of the recommendations that were cost
effective (enter Yes or No)...........................
If the answer is Yes, proceed to indicator #7; if the
answer is No, continue with the next question
PHA/RMC/AME has completed its energy audit and is in
the process of implementing all of the recommendations
that were cost effective (enter Yes or No)............
If the answer is Yes, proceed to indicator #7; if the
answer is No, continue with the next question
PHA/RMC/AME has completed its energy audit (enter Yes
or No)................................................
If the answer is No, proceed to indicator #7
PHA/RMC/AME has completed its energy audit, but has not
implemented all of the recommendations that were cost
effective (enter Yes).................................
Indicator 7: Resident involvement (applies only to PHAs
with 100 units or less)
PHA Board, by resolution, has adopted a Section 3
program (enter Yes or No).............................
PHA/RMC/AME staff monitors progress and issues reports
concerning progress under the program (enter Yes or
No)...................................................
At each family development site where a resident
council exists, there has been a development-wide
election of resident council board members/officers
(enter Yes or No).....................................
At each family development site where a resident
council does not exist, the PHA/AME during the past
year has encouraged development-wide elections of
resident board members/officers (enter Yes or No or N/
A)....................................................
PHA Board, by resolution, has adopted mechanisms to
ensure that residents have ample opportunity for input
into planning and goal setting for ongoing management
issues, including capital improvement programs (enter
Yes or No)............................................
PHA Board has invited residents to participate in
planning for capital improvement programs (enter Yes
or No or N/A).........................................
If the PHA/RMC/AME has any special resident initiative
program(s), the percent of goals being met under the
implementation plan for any and all programs (enter
percent).............................................. %
Indicator 8: Security
PHA/RMC/AME has a mechanism for tracking crime related
problems (enter Yes or No)............................
PHA/RMC/AME can demonstrate a system for taking action
with local police authorities to improve law
enforcement, lease enforcement and crime prevention
(enter Yes or No).....................................
PHA Board, by resolution, has adopted policies that
screen out public housing applicants with a history of
criminal activity involving crimes to persons or
property and/or other criminal acts that would
adversely affect the health, safety or welfare of
other residents (enter Yes or No).....................
[[Page 20370]]
PHA/RMC/AME has implemented procedures and can document
that it appropriately screens out and denies admission
to public housing applicants with a history of
criminal activity involving crimes to persons or
property and/or other criminal acts that would
adversely affect the health, safety or welfare of
other residents (enter Yes or No).....................
PHA Board, by resolution, has adopted policies that
appropriately evict a public housing resident who
engages in any criminal activity that threatens the
health, safety, or right to peaceful enjoyment of the
premises by other residents; engages in any drug-
related criminal activity (as defined at section 6(l)
of the 1937 Act [42 U.S.C. 1437d(l)]) on or off the
PHA's property; or who the PHA has reasonable cause to
believe abuses alcohol in such a way that may
interfere with the health, safety, or right to
peaceful enjoyment of the premises by other residents
(enter Yes or No).....................................
PHA/RMC/AME has implemented procedures and can document
that it appropriately evicts a public housing resident
who engages in any criminal activity that threatens
the health, safety, or right to peaceful enjoyment of
the premises by other residents; engages in any drug-
related criminal activity (as defined at section 6(l)
of the 1937 Act [42 U.S.C. 1437d(l)]) on or off the
PHA's property; or who the PHA has reasonable cause to
believe abuses alcohol in such a way that may
interfere with the health, safety, or right to
peaceful enjoyment of the premises by other residents
(enter Yes or No).....................................
If the PHA/RMC/AME has any special drug prevention
program or crime reduction program funded by any HUD
funds, the percent of goals being met under the
implementation plan for any and all programs (enter
percent).............................................. %
V. Other Matters
Environmental Impact
A Finding of No Significant Impact with respect to the environment
has been made in accordance with HUD regulations at 24 CFR part 50,
which implement section 102(2)(C) of the National Environmental Policy
Act of 1969. The Finding of No Significant Impact is available for
public inspection between 7:30 a.m. and 5:30 p.m. weekdays in the
Office of the Rules Docket Clerk at the above address.
Regulatory Planning and Review
This proposed rule has been reviewed in accordance with Executive
Order 12866, issued by the President on September 30, 1993 (58 FR
51735, October 4, 1993). Any changes to the proposed rule resulting
from this review are available for public inspection between 7:30 a.m.
and 5:30 p.m. weekdays in the Office of the Rules Docket Clerk.
Regulatory Flexibility Act
The Secretary in accordance with the Regulatory Flexibility Act (5
U.S.C. 605(b)), has reviewed and approved this proposed rule, and in so
doing certifies that this proposed rule would not have a significant
economic impact on a substantial number of small entities. The rule
establishes management assessment criteria for PHAs. HUD does not
anticipate a significant economic impact on a substantial number of
small entities, since the proposed rule establishes management
assessment criteria which will be utilized by State/Area Offices for
monitoring purposes and the provision of technical assistance to PHAs.
Federalism
The General Counsel, as the Designated Official under section 6(a)
of Executive Order 12612, Federalism, has determined that the policies
contained in this proposed rule will not have substantial direct
effects on States or their political subdivisions, or the relationship
between the Federal government and the States, or on the distribution
of power and responsibilities among the various levels of government.
The proposed rule is intended to promote good management practices by
including, in HUD's relationship with PHAs, continuing review of PHAs'
compliance with already existing requirements. In addition, the
proposed rule carries out, as unobtrusively as possible, a Federal
statutory mandate. The proposed rule does not create any new
significant requirements of its own. As a result, the proposed rule is
not subject to review under the Order.
Family Impact
The General Counsel, as the Designated Official under Executive
Order 12606, The Family, has determined that this proposed rule does
not have potential for significant impact on family formation,
maintenance, and general well-being, and, thus, is not subject to
review under the Order. The proposed rule involves requirements for
management assessment of PHAs. Any effect on the family would be
indirect. To the extent families in public housing will be affected,
the impact of the proposed rule's requirements is expected to be a
positive one.
List of Subjects in 24 CFR Part 901
Administrative practice and procedures, Public housing, Reporting
and recordkeeping requirements.
Accordingly, part 901 of title 24 of the Code of Federal
Regulations is proposed to be revised as follows:
PART 901--PUBLIC HOUSING MANAGEMENT ASSESSMENT PROGRAM
Sec.
901.1 Purpose and applicability.
901.5 Definitions.
901.10 Indicator #1, vacancy rate and unit turnaround time.
901.15 Indicator #2, modernization.
901.20 Indicator #3, rents uncollected.
901.25 Indicator #4, work orders.
901.30 Indicator #5, annual inspection of units and systems.
901.35 Indicator #6, financial management.
901.40 Indicator #7, resident involvement.
901.45 Indicator #8, security.
901.100 Data collection.
901.105 Computing assessment score.
901.110 PHA request for exclusion or modification of an indicator
or component.
901.115 PHA score and status.
901.120 State/Area Office functions.
901.125 PHA right of appeal.
901.130 Incentives.
901.135 Memorandum of Agreement.
901.140 Removal from troubled status and mod-troubled status.
901.145 Improvement Plan.
901.150 PHAs troubled with respect to the program under section 14
(mod-troubled PHAs).
901.155 PHMAP public record.
901.200 Events or conditions that constitute substantial default.
901.205 Notice and response.
901.210 Interventions.
901.215 Contracting and funding.
901.220 Resident participation in competitive proposals to manage
the housing of a PHA.
901.225 Resident petitions for remedial action.
901.230 Receivership.
901.235 Technical assistance.
Authority: 42 U.S.C. 1437d(j) and 3535(d).
Sec. 901.1 Purpose and applicability.
(a) Purpose. This part establishes the Public Housing Management
Assessment Program (PHMAP) to implement and augment section 6(j) of the
1937 Act (42 U.S.C. 1437d). PHMAP provides policies and procedures to
identify public housing agency (PHA), resident management corporation
(RMC), and alternative management entity (AME) management capabilities
and deficiencies, recognize high-performing PHAs, designate criteria
for defining troubled PHAs and PHAs that are troubled with respect to
the program under section 14 (Public Housing Modernization Program),
and improve
[[Page 20371]]
the management practices of troubled PHAs and mod-troubled PHAs.
(b) Applicability.
(1) The provisions of this part apply to PHAs and RMCs as noted in
the sections of this part.
(2) When a PHA's management functions have been assumed by an AME:
(i) If the AME assumes only a portion of the PHA's management
functions, the provisions of this part that apply to RMCs apply to the
AME; or
(ii) If the AME assumes all, or substantially all, of the PHA's
management functions, the provisions of this part that apply to PHAs
apply to the AME.
(3) To ensure quality management results from a contract between an
AME and a PHA, or between an AME and HUD, minimum performance criteria
that relate to the PHMAP indicators, as applicable, should be included
in such contract. Failure to meet the performance criteria would be a
basis for termination of the contract. However, even in the absence of
explicit contractual provisions, this part applies to AMEs in
accordance with paragraph (b)(2) of this section.
Sec. 901.5 Definitions.
Actual vacancy rate is the vacancy rate calculated without any
adjustments. It is calculated by dividing the total number of vacancy
days in the fiscal year by the total number of unit days available in
the fiscal year.
Adjusted vacancy rate is the vacancy rate calculated after
excluding the vacancy days that are exempted for any of the eligible
reasons. It is calculated by dividing the total number of adjusted
vacancy days in the fiscal year by the total number of unit days
available in the fiscal year.
Alternative management entity (AME) is a receiver, private
contractor, private manager, or any other entity that is under contract
with a PHA, or that is otherwise duly appointed or contracted (for
example, by court order or agency action), to manage all or part of a
PHA's operations. Depending upon the scope of PHA management functions
assumed by the AME, in accordance with Sec. 901.1(b)(2), the AME is
treated as a PHA or an RMC for purposes of this part and, as
appropriate, the terms PHA and RMC include AME.
Annual average is an average computed from data from a PHA's
immediate past fiscal year for applicable indicators.
Approved demolition and/or disposition program exists when a PHA's
application for demolition and/or disposition of low-rent public
housing units has received written approval from HUD.
Approved funded, on-schedule annual modernization program includes
any modernization program, funded out of the Comprehensive Grant
Program (CGP), the Comprehensive Improvement Assistance Program (CIAP),
the Vacancy Reduction Program (VRP), the Hope VI Program, or any other
source, if a PHA is in conformance with its current implementation
schedule as approved by the PHA Board of Commissioners and/or HUD.
Assistant Secretary means the Assistant Secretary for Public and
Indian Housing of the Department.
Available unit is a dwelling unit (occupied or vacant) under a
PHA's Annual Contributions Contract.
Average turnaround time is the annual average of the total number
of turnaround days between the move-out date (whenever that occurred,
including in some previous fiscal year) and the date a new lease takes
effect. Each time an individual unit is re-occupied (turned around)
during the fiscal year, the turnaround days for that unit shall be
counted in the turnaround time. Average turnaround time is calculated
by dividing the total turnaround days for all units re-occupied during
the fiscal year by the total number of units re-occupied during the
immediate past fiscal year.
Cash reserves is cash available at the end of an annual reporting
period after all necessary expenses of a PHA/development have been paid
or funds have been set-aside for such payment. The cash reserve
computation takes into consideration both short-term accounts
receivable and accounts payable.
Confirmatory review is an on-site review for the purposes of State/
Area Office verification of the performance level of a PHA, the
accuracy of the data certified to by a PHA, and the accuracy of the
data derived from State/Area Office files.
Correct means to improve performance in an indicator to a level of
grade ``C'' or better.
Current dwelling rent charged refers to the resident dwelling rent
charges reflected in the monthly rent roll(s), and excludes retroactive
rent charges, maintenance charges, excess utility charges, late
charges, and any other charges not specifically identified as dwelling
rent.
Cyclical work orders are work orders issued for the performance of
routine maintenance work that is done in the same way at regular
intervals. Examples of cyclical work include, but are not limited to,
mopping hallways; picking up litter; cleaning a trash compactor;
changing light bulbs in an entryway; etc. (Cyclical work orders should
not be confused with preventive maintenance work orders.)
Deficiency means any grade below ``C'' in an indicator or
component.
Emergency means physical work items that pose an immediate threat
to life, health, safety, or property, or that are related to fire
safety.
Emergency status abated means that an emergency work order is
either fully completed, or the emergency condition is temporarily
eliminated and no longer poses an immediate threat. If the work cannot
be completed, emergency status can be abated by transferring the
resident away from the emergency situation.
Emergency work order is a work order, from any source, that
involves a circumstance that poses an immediate threat to life, health,
safety or property, or that is related to fire safety.
HQS means Housing Quality Standards as set forth at 24 CFR 882.109
and amended by the Lead-Based Paint regulation at 24 CFR part 35.
Indicators means the major categories of PHA management functions
that are examined under this program for assessment purposes. The list
of individual indicators and the way they are graded is provided in
Secs. 901.10 through 901.45.
Local occupancy/housing codes are the minimum standards for human
occupancy, if any, as defined by the local ordinance(s) of the
jurisdiction in which the housing is located.
Major systems include, but are not limited to, structural/building
envelopes which include roofing, walls, windows, hardware, flashings
and caulking; mechanical systems which include heating, ventilation,
air conditioning, plumbing, drainage, underground utilities (gas,
electrical and water), and fuel storage tanks; electrical systems which
include underground systems, above ground systems, elevators, emergency
generators, door bells, electronic security devices, fire alarms, smoke
alarms, outdoor lighting, and indoor lighting (halls, stairwells,
public areas and exit signs); and transformers.
Memorandum of Agreement (MOA) is a binding contractual agreement
between a PHA and HUD, required for each PHA designated as troubled
and/or mod-troubled. The MOA sets forth target dates, strategies and
incentives for improving management performance; and provides sanctions
if performance does not result.
Non-emergency work order is any work order that covers a situation
that is not an immediate threat to life,
[[Page 20372]]
health, safety, or property, or that is unrelated to fire safety.
Percentage of emergency work orders completed within 24 hours is
the ratio of emergency work orders completed in 24 hours to the total
number of emergency work orders. The formula for calculating this ratio
is: total emergency work orders completed (or emergency status abated)
in 24 hours or less, divided by the total number of emergency work
orders.
Percentage of rents uncollected is the proportion of current
dwelling rent that was billed during the assessment year, but not
collected during the assessment year. The calculation is made as of the
close of business on the last business day of the fiscal year. It is
calculated by subtracting the total dwelling rent collected in the
immediate past fiscal year from the total dwelling rent billed in the
immediate past fiscal year to determine the amount of rents
uncollected; and dividing the amount of rents uncollected by the total
dwelling rent billed.
PHA means a public housing agency. As appropriate in accordance
with Sec. 901.1(b)(2), PHA also includes AME.
PHA-generated work order is any work order that is issued in
response to a request from within the PHA administration.
Preventive maintenance program is a program under which certain
maintenance procedures are systematically performed at regular
intervals to prevent premature deterioration of buildings and systems.
The program is developed and regularly updated by the PHA, and fully
documents what work is to be performed and at what intervals. The
program includes a system for tracking the performance of preventive
maintenance work.
Preventive maintenance work order is any work done on a regularly
scheduled basis in order to prevent deterioration or breakdowns in
individual units or major systems.
Reduced actual vacancy rate in the previous three years is a
comparison of the vacancy rate in the PHMAP assessment year (the
immediate past fiscal year) to the vacancy rate in the first year of
the previous three year period. It is calculated by subtracting the
vacancy rate in the assessment year from the vacancy rate in the
earlier year.
Reduced the average time it took to complete work orders over the
previous three years is a comparison of the average time it took to
complete work orders in the PHMAP assessment year (the immediate past
fiscal year) to the average time it took to complete work orders in the
first year of the previous three year period. It is calculated by
subtracting the average time it took to complete work orders in the
PHMAP assessment year from the average time it took to complete work
orders in the earlier year.
Rents uncollected means unpaid resident dwelling rent for residents
in possession.
Resident-generated work order is a work order issued by a PHA in
response to a request from a lease holder or family member of a lease
holder.
Resident management corporation (RMC) means the entity that
proposes to enter into, or that enters into, a management contract with
a PHA in accordance with 24 CFR 964.120. As appropriate in accordance
with Sec. 901.1(b)(2), RMC also includes AME.
Routine operating expenses are all expenses which are normal,
recurring fiscal year expenditures. Routine expenses exclude those
expenditures that are not normal fiscal year expenditures and those
that clearly represent work of such a substantial nature that the
expense is clearly not a routine occurrence.
Standards equivalent to HQS are housing/occupancy inspection
standards that are equal to HUD's Section 8 HQS.
Substantial default means a PHA is determined by the Department to
be in violation of statutory, regulatory or contractual provisions or
requirements, whether or not these violations would constitute a
substantial default or a substantial breach under explicit provisions
of the relevant Annual Contributions Contract or a Memorandum of
Agreement.
Turnaround days are the days between the last move-out and the date
a new lease takes effect, including any turnaround days in prior fiscal
years.
Vacancy day is a day when a unit is not under lease by an eligible
low-income resident, unless the vacancy day is exempted for an eligible
reason.
Vacant unit is a dwelling unit that is not under lease to an
eligible family. Units under lease for police substations, social
service providers, etc., are treated the same as units under lease to
eligible families.
Vacant unit turnaround work order is a work order issued that
directs a vacant unit to be made ready to lease to a new resident and
reflects all work items to prepare the unit for occupancy.
Vacant unit undergoing modernization is a vacant unit in an
otherwise viable development, as defined in 24 CFR 970.6, when the
development is undergoing modernization that includes work that is
necessary to reoccupy the vacant unit, and in which either: The vacant
unit is under construction (i.e., the construction contract has been
awarded or force account work has started); or the treatment of the
vacant unit is included in a HUD-approved modernization budget (e.g.,
an approved Annual Statement for the Comprehensive Grant Program (CGP)
or Comprehensive Improvement Assistance Program (CIAP) budget), but the
time period for placing the vacant units under construction has not yet
expired. The PHA must place the vacant units under construction within
two Federal fiscal years (FFYs) after the FFY in which the
modernization funds are approved. In addition, the following apply when
computing time periods for a vacant unit undergoing modernization:
(1) If a unit is vacant prior to being included in the construction
budget of an approved funded on-schedule annual modernization plan,
those vacancy days that had accumulated prior to the unit being
included in the construction budget of an annual modernization plan
must be included as non-exempted vacancy days in the calculation.
(2) The calculation of turnaround time for newly modernized units
starts when the unit is turned over to the PHA from the contractor and
ends when the lease is effective for the new or returning resident.
Thus, the total turnaround time would be the sum of the pre-
modernization vacancy time, and the post-modernization vacancy time.
(3) Unit-by-unit documentation, showing when a vacant unit was
included in the construction budget of a modernization plan, when it
was released to the PHA by the contractor, and when a new lease is
effective for the new or returning resident, must be maintained by the
PHA.
(4) Units remaining vacant more than two FFYs after the FFY in
which the modernization funds are approved, may no longer be exempted
from the calculation of the adjusted vacancy rate if the construction
contract has not been let. These units may be exempted again, but only
after a contract is let.
Work order is a directive, containing one or more tasks issued to a
PHA employee or contractor to perform one or more tasks on PHA
property. This directive describes the location and the type of work to
be performed; the date and time of receipt; date and time issued to the
person or entity performing the work; the date and time the work is
satisfactorily completed; the parts used to complete the repairs and
the cost of the parts; whether the damage was caused by the resident;
and the charges to the resident for resident-
[[Page 20373]]
caused damage. The work order is entered into a log which indicates at
all times the status of all work orders as to type (emergency, routine,
etc.), when issued, and when completed.
Work order completed during the immediate past fiscal year is any
work order that is completed during the PHA's fiscal year regardless of
when it may have been received.
Work order deferred for modernization is any work order that is
combined with similar work orders and completed within the current
PHMAP assessment year, or will be completed in the following year,
under the PHA's modernization program or other PHA capital improvements
program.
Sec. 901.10 Indicator #1, vacancy rate and unit turnaround time.
This indicator examines the vacancy rate, a PHA's progress in
reducing vacancies, and unit turnaround time. This indicator has a
weight of x2.
(a) For the calculation of the adjusted vacancy rate and turnaround
time, the vacancy days for units in the following categories shall be
exempted:
(1) Vacant unit undergoing modernization.
(2) Vacant units in an approved demolition or disposition program
(not applicable to vacant unit turnaround).
(3) Vacant units that are documented to be uninhabitable for
reasons beyond the PHA's control:
(i) Due to high/unsafe levels of hazardous/toxic material (e.g.,
lead-based paint or asbestos);
(ii) By order of the local health department or directive of the
Environmental Protection Agency, where the conditions causing the order
are beyond the control of the PHA; and
(iii) That are structurally unsound (e.g., buildings damaged by
shrinking/swelling subsoil or similar situations, or as a result of
natural disasters).
(4) Vacant units in which resident property has been abandoned, but
only if State law requires the property to be left in the unit for some
period of time, and only for the period stated in the law.
(5) Vacant units that have sustained casualty damage, but only
until the insurance claim is adjusted, i.e., funds to repair the unit
are received.
(6) Units that are used for non-dwelling purposes and dwelling
units that are occupied by employees of the PHA and units that are used
for resident services.
(7) Vacant units required to remain vacant because of fire/police
investigations, coroner's seal, or court order.
(8) Units kept vacant because of code violations caused for reasons
beyond the control of the PHA, rather than as a result of management
and/or maintenance failures by the PHA.
(9) Units vacant for circumstances and actions beyond the PHA's
control that prevent the PHA from being able to occupy, sell, demolish,
rehabilitate, reconstruct, consolidate, or modernize vacant units. Such
circumstances and actions may include:
(i) Litigation, such as a court order or settlement agreement that
is legally enforceable. For example, units that are being held vacant
as part of a court-ordered or HUD-approved desegregation effort would
be exempted.
(ii) Federal or, when not preempted by Federal requirements, State
law of general applicability or their implementing regulations. This
category does not include units vacant only because they do not meet
minimum standards established, for example, in housing and building
codes.
(iii) Changing market conditions. For example, small PHAs that are
located in areas experiencing population loss or economic dislocations
may face a lack of demand in the foreseeable future, even after
aggressive marketing and outreach measures by the PHA have been
undertaken. Documentation of marketing efforts must be maintained by
the PHA.
(iv) Natural disasters.
(v) Insufficient funding for otherwise approvable applications made
for CIAP funds (only PHAs with less than 250 units are eligible to
apply and compete for CIAP funds). This definition will cease to be
used if CIAP is replaced by a formula grant.
(vi) Pending resolution of insurance claims or settlements. The
period between a casualty loss and the receipt of funds from an insurer
to cover the loss in whole or in part.
(b) Component #1, vacancy percentage and progress in reducing
vacancies. A PHA may choose whether to use actual or adjusted vacancy
rate. This component has a weight of x2.
(1) Grade A: The PHA is in one of the following categories:
(i) An actual vacancy rate of 3% or less; or
(ii) An adjusted vacancy rate of 2% or less.
(2) Grade B: The PHA is in one of the following categories:
(i) An actual vacancy rate of greater than 3% and less than or
equal to 5%; or
(ii) An adjusted vacancy rate of greater than 2%, but less than or
equal to 3%.
(3) Grade C: The PHA is in one of the following categories:
(i) An actual vacancy rate of greater than 5% and less than or
equal to 7%; or
(ii) An adjusted vacancy rate of greater than 3% and less than or
equal to 4%; or
(iii) The PHA has reduced its actual vacancy rate by at least 15
percentage points over the past three years and has an adjusted vacancy
rate of greater than 4% and less than or equal to 5%.
(4) Grade D: The PHA is in one of the following categories:
(i) An actual vacancy rate of greater than 7% and less than or
equal to 9%;
(ii) An adjusted vacancy rate of greater than 4% and less than or
equal to 5%; or
(iii) The PHA has reduced its actual vacancy rate by at least 10
percentage points over the past three years and has an adjusted vacancy
rate of greater than 5% and less than or equal to 6%.
(5) Grade E: The PHA is in one of the following categories:
(i) An actual vacancy rate of greater than 9% and less than or
equal to 10%; or
(ii) An adjusted annual vacancy rate of greater than 5% and less
than or equal to 6%; or
(iii) The PHA has reduced its actual vacancy rate by at least five
percentage points over the past three years and has an adjusted vacancy
rate of greater than 6% and less than or equal to 7%.
(6) Grade F: The PHA is in one of the following categories:
(i) An actual vacancy rate of greater than 10%; or
(ii) An adjusted annual vacancy rate of greater than 6%.
(c) Component #2, unit turnaround time. This component is to be
completed only by PHAs scoring below a grade C on component #1. This
component has a weight of x1.
(1) Grade A: The average number of calendar days between the time
when a unit is vacated and a new lease takes effect for units re-
occupied during the PHA's immediate past fiscal year, is less than or
equal to 20 calendar days.
(2) Grade B: The average number of calendar days between the time
when a unit is vacated and a new lease takes effect for units re-
occupied during the PHA's immediate past fiscal year, is greater than
20 calendar days and less than or equal to 25 calendar days.
(3) Grade C: The average number of calendar days between the time
when a unit is vacated and a new lease takes effect for units re-
occupied during the PHA's immediate past fiscal year, is greater than
25 calendar days and less than or equal to 30 calendar days.
(4) Grade D: The average number of calendar days between the time
when a
[[Page 20374]]
unit is vacated and a new lease takes effect for units re-occupied
during the PHA's immediate past fiscal year, is greater than 30
calendar days and less than or equal to 40 calendar days.
(5) Grade E: The average number of calendar days between the time
when a unit is vacated and a new lease takes effect for units re-
occupied during the PHA's immediate past fiscal year, is greater than
40 calendar days and less than or equal to 50 calendar days.
(6) Grade F: The average number of calendar days between the time
when a unit is vacated and a new lease takes effect for units re-
occupied during the PHA's immediate past fiscal year, is greater than
50 calendar days.
Sec. 901.15 Indicator #2, modernization.
This indicator is automatically excluded if a PHA does not have a
modernization program. This indicator examines the amount of unexpended
funds over three years old, the timeliness of fund obligation, the
adequacy of contract administration, the quality of the physical work,
and the adequacy of budget controls. It applies to both the
Comprehensive Grant Program (CGP) and the Comprehensive Improvement
Assistance Program (CIAP). This indicator has a weight of x1.
(a) Component #1, unexpended funds over three Federal Fiscal Years
(FFYs) Old. This component has a weight of x1.
(1) Grade A: The PHA has no unexpended funds over three FFYs old,
or is able to demonstrate one of the following:
(i) The unexpended funds are leftover funds and will be recaptured
after audit; or
(ii) The HUD-approved original implementation schedule allows
longer than three FFYs to expend all funds; or
(iii) The PHA has self-executed a time extension within 30 calendar
days after the expenditure deadline and the extension is based on valid
reasons outside of the PHA's control, such as litigation, material
shortages, or other institutional delay.
(2) Grade F: The PHA has unexpended funds over three FFYs old and
is unable to demonstrate any of the above three conditions; or the PHA
requests HUD approval of a time extension based on reasons within the
PHA's control.
(b) Component #2, timeliness of fund obligation. This component has
a weight of x2.
(1) Grade A: The PHA has no unobligated funds over two FFYs old or
is able to demonstrate one of the following:
(i) The HUD-approved original implementation schedule allows longer
than two FFYs to obligate all funds; or
(ii) The PHA has self-executed a time extension within 30 calendar
days after the obligation deadline and the extension is based on valid
reasons outside of the PHA's control, such as litigation, material
shortages, or other institutional delay.
(2) Grade F: The PHA has unobligated funds over two FFYs old and is
unable to demonstrate any of the above two conditions; or the PHA
requests HUD approval of a time extension based on reasons within the
PHA's control.
(c) Component #3, adequacy of contract administration. This
component has a weight of x1.5.
(1) Grade A: Based on HUD's latest on-site inspection and/or audit,
there were no significant findings related to contract administration
or the PHA has corrected all such findings.
(2) Grade C: Based on HUD's latest on-site inspection and/or audit,
there were significant findings related to contract administration and
the PHA is in the process of correcting all such findings.
(3) Grade F: Based on HUD's latest on-site inspection and/or audit,
there were significant findings related to contract administration and
the PHA has failed to initiate corrective actions for all such findings
or those actions which have been initiated have not resulted in
progress toward remedying all of the findings.
(d) Component #4, quality of the physical work. This component has
a weight of x3.
(1) Grade A: Based on HUD's latest on-site inspection, there were
no significant findings related to the quality of the physical work or
the PHA has corrected all such findings.
(2) Grade C: Based on HUD's latest on-site inspection, there were
significant monitoring findings related to the quality of the physical
work and the PHA is in the process of correcting all such findings.
(3) Grade F: Based on HUD's latest on-site inspection, there were
significant monitoring findings related to the quality of the physical
work and the PHA has failed to initiate corrective actions for all such
findings or those actions which have been initiated have not resulted
in progress toward remedying all of the findings.
(e) Component #5, adequacy of budget controls. This component has a
weight of x1.
(1) Grade A: The CGP PHA has expended modernization funds only on
work items in HUD-approved CGP Annual Statements/Five-Year Action Plan
or has obtained prior HUD approval for required budget revisions. The
CIAP PHA has expended modernization funds only on work items in HUD-
approved CIAP budgets, or within the HUD-established threshold for CIAP
budget revisions, or has obtained prior HUD approval for required
budget revisions.
(2) Grade F: The CGP PHA has expended modernization funds on work
items that were not in HUD-approved CGP Annual Statements/Five-Year
Action Plan and did not obtain prior HUD approval for required budget
revisions. The CIAP PHA has expended modernization funds on work items
that were not in HUD-approved CIAP budgets, or within the HUD-
established threshold for CIAP budget revisions, and did not obtain
prior HUD approval for required budget revisions.
Sec. 901.20 Indicator #3, rents uncollected.
This indicator examines the PHA's ability to collect rent by
measuring the percentage of dwelling rent it failed to collect during
its immediate past fiscal year. This indicator has a weight of x1.5.
(a) Grade A: Percent of rents uncollected in the immediate past
fiscal year is less than or equal to 2% of total rents billed.
(b) Grade B: The percent of rents uncollected in the immediate past
fiscal year is greater than 2% and less than or equal to 4% of total
rents billed.
(c) Grade C: The percent of rents uncollected in the immediate past
fiscal year is greater than 4% and less than or equal to 6% of total
rents billed.
(d) Grade D: The percent of rents uncollected in the immediate past
fiscal year is greater than 6% and less than or equal to 8% of total
rents billed.
(e) Grade E: The percent of rents uncollected in the immediate past
fiscal year is greater than 8% and less than or equal to 10% of total
rents billed.
(f) Grade F: The percent of rents uncollected in the immediate past
fiscal year is greater than 10% of total rents billed.
Sec. 901.25 Indicator #4, work orders.
This indicator examines the average number of days it takes for a
work order to be completed, and any progress a PHA has made during the
preceding three years to reduce the period of time required to complete
maintenance work orders. This indicator has a weight of x1.5.
(a) Component #1, emergency work orders completed within 24 hours
or less. This component has a weight of x1.
(1) Grade A: At least 99% of emergency work orders were completed
or the emergency was abated within 24
[[Page 20375]]
hours or less during the PHA's immediate past fiscal year.
(2) Grade B: At least 98% of emergency work orders were completed
or the emergency was abated within 24 hours or less during the PHA's
immediate past fiscal year.
(3) Grade C: At least 97% of emergency work orders were completed
or the emergency was abated within 24 hours or less during the PHA's
immediate past fiscal year.
(4) Grade D: At least 96% of emergency work orders were completed
or the emergency was abated within 24 hours or less during the PHA's
immediate past fiscal year.
(5) Grade E: At least 95% of emergency work orders were completed
or the emergency was abated within 24 hours or less during the PHA's
immediate past fiscal year.
(6) Grade F: Less than 95% of emergency work orders were completed
or the emergency was abated within 24 hours or less during the PHA's
immediate past fiscal year.
(b) Component #2, average number of days for non-emergency work
orders to be completed. All work orders should be tracked, except non-
emergency work orders exempted for modernization, issued to prepare a
vacant unit for re-rental, or issued for the performance of cyclical
maintenance. This component has a weight of x2.
(1) Grade A: All non-emergency work orders are completed within an
average of 25 calendar days.
(2) Grade B: All non-emergency work orders are completed within an
average of greater than 25 calendar days and less than or equal to 30
calendar days.
(3) Grade C: The PHA is in one of the following categories:
(i) All non-emergency work orders are completed within an average
of greater than 30 calendar days and less than or equal to 40 calendar
days; or
(ii) The PHA has reduced the average time it takes to complete non-
emergency work orders over the past three years by at least 30 days.
(4) Grade D: The PHA is in one of the following categories:
(i) All non-emergency work orders are completed within an average
of greater than 40 calendar days and less than or equal to 50 calendar
days; or
(ii) The PHA has reduced the average time it takes to complete non-
emergency work orders over the past three years by at least 20 days.
(5) Grade E: The PHA is in one of the following categories:
(i) All non-emergency work orders are completed within an average
of greater than 50 calendar days and less than or equal to 60 calendar
days; or
(ii) The PHA has reduced the average time it takes to complete non-
emergency work orders over the past three years by at least 10 days.
(6) Grade F: All non-emergency work orders are completed within an
average of greater than 60 calendar days.
Sec. 901.30 Indicator #5, annual inspection of units and systems.
This indicator examines the percentage of units that a PHA inspects
on an annual basis in order to determine short-term maintenance needs
and long-term modernization needs. This indicator has a weight of x1.
(a) Units in the following categories are exempted and not included
in the calculation of the total number of units, and the number and
percentage of units inspected. Systems that are a part of individual
dwelling units that are exempted, or a part of a building where all of
the dwelling units in the building are exempted, are also exempted from
the calculation of this indicator:
(1) Occupied units where the PHA has made two documented attempts
to inspect, but only if the PHA can document that appropriate legal
action (up to and including eviction of the legal or illegal
occupant(s)), has been taken under provisions of the lease to ensure
that the unit can be subsequently inspected.
(2) Vacant unit undergoing modernization.
(3) Vacant units in an approved demolition or disposition program.
(4) Vacant units that are documented to be uninhabitable:
(i) Due to high/unsafe levels of hazardous/toxic material (e.g.,
lead-based paint or asbestos);
(ii) By order of the local health department or directive of the
Environmental Protection Agency, where the conditions causing the order
are beyond the control of the PHA; and
(iii) That are structurally unsound (e.g., buildings damaged by
shrinking/swelling subsoil or similar situations).
(5) Units vacant for the full immediate past fiscal year that have
been exempted under indicator #1, at Sec. 901.10, for any of the
reasons for which exemptions are permitted under that indicator (except
those units that are used for non-dwelling purposes or that are
occupied by employees of the PHA and units that are used for resident
services).
(b) Component #1, annual inspection of units. This component refers
to an inspection using either the local housing/occupancy code, or HUD
HQS if there is no local code or the local code is less stringent that
HQS. This component has a weight of x1.
(1) Grade A: The PHA inspected 100% of its units and, if repairs
were necessary for code compliance, either completed the repairs during
the inspection; issued work orders for the repairs; or referred the
deficiency to the current year's or next year's modernization program.
(2) Grade B: The PHA inspected less than 100% but at least 97% of
its units and, if repairs were necessary for code compliance, either
completed the repairs during the inspection; issued work orders for the
repairs; or referred the deficiency to the current year's or next
year's modernization program.
(3) Grade C: The PHA inspected less than 97% but at least 95% of
its units and, if repairs were necessary for code compliance, either
completed the repairs during the inspection; issued work orders for the
repairs; or referred the deficiency to the current year's or next
year's modernization program.
(4) Grade D: The PHA inspected less than 95% but at least 93% of
its units and, if repairs were necessary for code compliance, either
completed the repairs during the inspection; issued work orders for the
repairs; or referred the deficiency to the current year's or next
year's modernization program.
(5) Grade E: The PHA inspected less than 93% but at least 90% of
its units and, if repairs were necessary for code compliance, either
completed the repairs during the inspection; issued work orders for the
repairs; or referred the deficiency to the current year's or next
year's modernization program.
(6) Grade F: The PHA has failed to inspect at least 90% of its
units; or failed to correct deficiencies during the inspection or issue
work orders for the repairs; or failed to refer deficiencies to the
current year's or next year's modernization plan.
(c) Component #2, annual inspection of systems. This component
examines the inspection of buildings and sites according to the PHA's
maintenance plan, including performing the required maintenance on
structures and systems in accordance with manufacturer's specifications
and established local/PHA standards, or issuing work orders for future
maintenance/repairs, or including identified deficiencies in the
Comprehensive Modernization Plan. This component has a weight of x1.
(1) Grade A: At 100% of its buildings and sites, according to its
maintenance plan, the PHA inspected all major systems.
(2) Grade B: At a minimum of 90% but less than 100% of its
buildings and sites, according to its maintenance plan, the PHA
inspected all major systems.
(3) Grade C: At a minimum of 80% but less than 90% of its buildings
and
[[Page 20376]]
sites, according to its maintenance plan, the PHA inspected all major
systems.
(4) Grade D: At a minimum of 70% but less than 80% of its buildings
and sites, according to its maintenance plan, the PHA inspected all
major systems.
(5) Grade E: At least 60% but less than 70% of its buildings and
sites, according to its maintenance plan, the PHA inspected all major
systems.
(6) Grade F: The PHA failed to inspect at lease 60% of its
buildings and sites, all major systems, as defined herein, and perform
the required maintenance on these systems in accordance with
manufacturers specifications and established local/PHA standards, or
issue work orders for future maintenance/repairs, or include identified
deficiencies in the Comprehensive Modernization Plan.
Sec. 901.35 Indicator #6, financial management.
This indicator examines the amount of cash reserves and, for PHAs
scoring below a grade C on cash reserves, energy/utility consumption.
This indicator has a weight of x1.
(a) Component #1, cash reserves. This component has a weight of x2.
(1) Grade A: Cash reserves are greater than or equal to 15% of
total actual routine expenditures, or the PHA has cash reserves of $3
million or more.
(2) Grade B: Cash reserves are greater than or equal to 12.5%, but
less than 15% of total actual routine expenditures.
(3) Grade C: Cash reserves are greater than or equal to 10%, but
less than 12.5% of total actual routine expenditures.
(4) Grade D: Cash reserves are greater than or equal to 7.5%, but
less than 10% of total actual routine expenditures.
(5) Grade E: Cash reserves are greater than or equal to 5%, but
less than 7.5% of total actual routine expenditures.
(6) Grade F: Cash reserves are less than 5% of total actual routine
expenditures.
(b) Component #2, energy/utility consumption. Either option A or
option B of this component is to be completed only by PHAs that score
below a grade C on component #1. Regardless of a PHA's score on
component #1, it will not be scored on component #2 if all its units
have tenant paid utilities. Annual energy/utility consumption includes
water and sewage usage. This component has a weight of x1.
(1) Option A, Annual Energy/Utility Consumption.--(i) Grade A:
Annual energy/utility consumption, as compared to the average of the
three years' rolling base consumption, has not increased.
(ii) Grade B: Annual energy/utility consumption, as compared to the
average of the three years' rolling base consumption, has not increased
by more than 3%.
(iii) Grade C: Annual energy/utility consumption, as compared to
the average of the three years' rolling base consumption, has increased
by more than 3% and less than or equal to 5%.
(iv) Grade D: Annual energy/utility consumption, as compared to the
average of the three years' rolling base consumption, has increased by
more than 5% and less than or equal to 7%.
(v) Grade E: Annual energy/utility consumption, as compared to the
average of the three years' rolling base consumption, has increased by
more than 7% and less than or equal to 9%.
(vi) Grade F: Annual energy/utility consumption, as compared to the
average of the three years' rolling base consumption, has increased by
more than 9%.
(2) Component #2, option B, energy consumption.--(i) Grade A: The
PHA has completed its energy audit and has implemented all of the
recommendations that were cost effective.
(ii) Grade C: The PHA has completed its energy audit and is in the
process of implementing all of the recommendations that were cost
effective.
(iii) Grade F: The PHA has not completed its energy audit, or has
not implemented all of the recommendations that were cost effective.
Sec. 901.40 Indicator #7, resident involvement.
This indicator examines the PHA's efforts to encourage partnerships
with residents and the local community that help improve management
operations at the PHA; to encourage programs that develop self-
sufficiency, individual responsibility and community involvement among
residents; and, if applicable, PHA performance under any special HUD
grant(s). PHAs with 100 units or less will not be assessed under this
indicator. This indicator has a weight of x1.
(a) Grade A: The PHA meets each of the following criteria:
(1) The PHA Board, by resolution, has adopted a Section 3 program
and the PHA staff monitors progress under the program and issues
reports concerning progress under the program.
(2) The PHA has documentation that at each PHA family development
site where a resident council exists, there has been a development-wide
election of resident council board members and/or officers, and where
no resident council exists, the PHA has encouraged the formation of
such a council.
(3) The PHA Board has, through resolution, adopted mechanisms to
ensure that residents have ample opportunity for input into planning
and goal setting for ongoing management issues, as well as for capital
improvements programs such as the Comprehensive Grant Program and the
Comprehensive Improvement Assistance Program.
(4) If the PHA has any special resident initiative program, such as
a Technical Assistance Grant (TAG), the Tenant Opportunity Program
(TOP), Family Investment Center (FIC), Youth Sports (YS), Youth
Apprenticeship Program (YAP), or Family Self-Sufficiency (FSS), the PHA
can document that it is meeting at least 90% of its goals under the
implementation plan for any and all of these programs.
(b) Grade C: The PHA meets each of the following criteria:
(1) The PHA Board, by resolution, has adopted a Section 3 program.
(2) At each PHA family development site where a resident council
does not exist, the PHA during the assessment year has encouraged
development-wide elections of resident council board members and/or
officers.
(3) The PHA Board has invited residents to participate in planning
for capital improvements.
(4) If the PHA has any special resident initiative program, such as
TAG, TOP, FIC, YS, YAP, or FSS, the PHA can document that it is meeting
at least 60% of its goals under the implementation plan for any and all
of these programs.
(c) Grade F: The PHA fails to meet any one of the following
criteria:
(1) The PHA Board, by resolution, has adopted a Section 3 program.
(2) At each PHA family development site where a resident council
does not exist, the PHA during the assessment year has encouraged
development-wide elections of resident council board members and/or
officers.
(3) The PHA Board has invited residents to participate in planning
for capital improvements.
(4) If the PHA has any special resident initiative program, such as
TAG, TOP, FIC, YS, YAP, or FSS, the PHA can document that it is meeting
at least 60% of its goals under the implementation plan for any and all
of these programs.
Sec. 901.45 Indicator #8, security.
This indicator evaluates the PHAs performance in tracking crime-
related problems in their developments, cooperating with local law
enforcement and local courts, the adoption and
[[Page 20377]]
implementation of tough applicant screening and resident eviction
policies and procedures, and, as applicable, PHA performance under any
special HUD grant(s). PHAs with 100 units or less will not be assessed
under this indicator. This indicator has a weight of x1.
(a) Grade A: The PHA meets the following criteria:
(1) The PHA has a mechanism (such as the logging of serious
incidents in its various developments) for tracking crime related
problems and can demonstrate a system for taking action with local
police authorities to improve law enforcement, lease enforcement and
crime prevention.
(2) The PHA Board, by resolution, has adopted policies and the PHA
has implemented procedures and can document that it appropriately
screens out and denies admission to a public housing applicant who:
(i) Has a recent history of criminal activity involving crimes to
persons or property and/or other criminal acts that would adversely
affect the health, safety or welfare of other residents;
(ii) Was evicted, because of drug-related criminal activity, from
housing assisted under the U.S. Housing Act of 1937 within three years
of the projected date of admission, unless the applicant has
successfully completed, since the eviction, a rehabilitation program
approved by the public housing agency;
(iii) The PHA determines is illegally using a controlled substance;
or
(iv) The PHA has reasonable cause to believe abuses alcohol in a
way that may interfere with the health, safety, or right to peaceful
enjoyment of the premises by other residents.
(3) The PHA Board, by resolution, has adopted policies and the PHA
has implemented procedures and can document that it appropriately
evicts a public housing resident who:
(i) Engages in any criminal activity that threatens the health,
safety, or right to peaceful enjoyment of the premises by other
residents;
(ii) Engages in any drug-related criminal activity (as defined at
section 6(l) of the 1937 Act (42 U.S.C. 1437d(l)) on or off the PHA's
property; or
(iii) The PHA has reasonable cause to believe abuses alcohol in
such a way that may interfere with the health, safety, or right to
peaceful enjoyment of the premises by other residents.
(4) If the PHA has any special drug prevention program or crime
reduction program funded by any HUD funds, the PHA can document that it
is meeting at least 90% of its goals under the implementation plan for
any and all of these programs.
(b) Grade C: The PHA meets the following criteria:
(1) The PHA can demonstrate a system for taking action with local
police authorities to improve law enforcement, lease enforcement and
crime prevention.
(2) The PHA Board, by resolution, has adopted policies but cannot
document results in appropriately screening out and denying admission
to a public housing applicant who:
(i) Has a recent history of criminal activity involving crimes to
persons or property and/or other criminal acts that would adversely
affect the health, safety or welfare of other residents;
(ii) Was evicted, because of drug-related criminal activity, from
housing assisted under the U.S. Housing Act of 1937 (42 U.S.C. 1437 et
seq.) within three years of the projected date of admission, unless the
applicant has successfully completed, since the eviction, a
rehabilitation program approved by the public housing agency;
(iii) The PHA determines is illegally using a controlled substance;
or
(iv) The PHA has reasonable cause to believe abuses alcohol in a
way that may interfere with the health, safety, or right to peaceful
enjoyment of the premises by other residents.
(3) The PHA Board, by resolution, has adopted policies but cannot
document results in appropriately evicting a public housing resident
who:
(i) Engages in any criminal activity that threatens the health,
safety, or right to peaceful enjoyment of the premises by other
residents;
(ii) Engages in any drug-related criminal activity (as defined at
section 6(l) of
FR Doc. 96-10956 Office of the Assistant Secretary for Public and Indian Housing; Public Housing Management Assessment Program
the 1937 Act (42 U.S.C. 1437d(l)) on or off the PHA's
property; or
(iii) The PHA has reasonable cause to believe abuses alcohol in a
way that may interfere with the health, safety, or right to peaceful
enjoyment of the premises by other residents.
(4) If the PHA has any special drug prevention program or crime
reduction program funded by any HUD funds, the PHA can document that it
is meeting at least 60% of its goals under the implementation plan for
any and all of these programs.
(c) Grade F: The PHA meets any one the following criteria:
(1) The PHA is not cooperating with local police authorities in an
effort to provide safe and secure environments in its public housing
developments.
(2) The PHA has not adopted policies or procedures that result in
screening out and denying admission to a public housing applicant who:
(i) Has a recent history of criminal activity involving crimes to
persons or property and/or other criminal acts that would adversely
affect the health, safety or welfare of other residents;
(ii) Was evicted, because of drug-related criminal activity, from
housing assisted under the U.S. Housing Act of 1937 within three years
of the projected date of admission, unless the applicant has
successfully completed, since the eviction, a rehabilitation program
approved by the public housing agency;
(iii) The PHA determines is illegally using a controlled substance;
or
(iv) The PHA has reasonable cause to believe abuses alcohol in a
way that may interfere with the health, safety, or right to peaceful
enjoyment of the premises by other residents.
(3) The PHA has not adopted policies or procedures that document
results in the eviction of a public housing resident who:
(i) Engages in any criminal activity that threatens the health,
safety, or right to peaceful enjoyment of the premises by other
residents;
(ii) Engages in any drug-related criminal activity (as defined in
section 6(l) of the 1937 Act (42 U.S.C. 1437d(l))) on or off the PHA's
property; or
(iii) The PHA has reasonable cause to believe abuses alcohol in a
way that may interfere with the health, safety, or right to peaceful
enjoyment of the premises by other residents.
(4) If the PHA has any special drug prevention program or crime
reduction program funded by any HUD funds, the PHA does not have a
system for documenting or cannot document that it is meeting 60% or
more of its goals under the implementation plan for any and all of
these programs.
Sec. 901.100 Data collection.
(a) Information on some of the indicators will be derived by the
State/Area Office from existing reporting and data forms.
(b) A PHA shall provide certification as to data on indicators not
collected according to paragraph (a) of this section, by submitting a
certified questionnaire within 45 calendar days after the end of the
fiscal year covered by the certification:
(1) The certification shall be approved by PHA Board resolution,
and signed and attested to by the Executive Director.
(2) PHAs shall maintain documentation for three years verifying all
certified indicators for HUD on-site review.
(3) A PHA may include in its certification, rather than through an
exclusion or modification request, any information bearing on the
accuracy or completeness of the data being used by
[[Page 20378]]
HUD in grading an indicator. HUD will consider this assertion in
grading the affected indicator.
(4) If a PHA does not submit its certification, or submits its
certification late, appropriate sanctions may be imposed, including a
presumptive rating of failure in all of the PHMAP indicators, which may
result in troubled or mod-troubled designations.
(5) A PHA's certification will be post-reviewed by HUD during the
next on-site review, but is subject to verification at any time.
Appropriate sanctions for intentional false certification will be
imposed, including suspension or debarment of the signatories, the loss
of high performer designation, a lower grade for individual indicators
and a lower PHMAP total weighted score.
(c) For those developments of a PHA where management functions have
been assumed by an RMC, the PHA's certification shall identify the
development and the management functions assumed by the RMC. The PHA
shall obtain a certified questionnaire from the RMC as to the
management functions undertaken by the RMC. The PHA shall submit the
RMC's certified questionnaire along with its own. The RMC's
certification shall be approved by its Executive Director or Chief
Executive Officer of whatever title.
Sec. 901.105 Computing assessment score.
(a) Grades within indicators and components have the following
point values:
(1) Grade A = 10.0 points;
(2) Grade B = 8.5 points;
(3) Grade C = 7.0 points;
(4) Grade D = 5.0 points;
(5) Grade E = 3.0 point; and
(6) Grade F = 0.0 points.
(b) If indicators or components are designated as having additional
weight (e.g., x1.5 or x2), the points in each grade will be multiplied
times the additional weight.
(c) Indicators will be graded individually. Components within an
indicator will be graded individually, and then will be used to
determine a single grade for the indicator, by dividing the total
number of component points by the total number of component weights and
rounding off to two decimal places. The total number of component
weights for this purpose includes a one for components that are
unweighted (i.e., they are weighted x1, rather than x1.5 or x2).
(d) Adjustment for physical condition and neighborhood environment.
The overall PHMAP score will be adjusted by adding weighted points that
reflect the weight to be given to the differences in the difficulty of
managing developments that result from physical condition and
neighborhood environment:
(1) Weighting shall apply to the following three indicators only:
(i) Indicator #1, vacancy rate and unit turnaround;
(ii) Indicator #4, work orders; and
(iii) Indicator #5, annual inspection and condition of units and
systems.
(2) Definitions of physical condition and neighborhood environment
are:
(i) Physical condition: refers to units located in developments
over ten years old that require major capital investment in order to
meet minimum HQS standards or local codes, whichever is applicable.
This excludes developments that have been comprehensively modernized.
(ii) Neighborhood environment: refers to units located within
developments where the immediate surrounding neighborhood (that is a
majority of the census tracts on all sides of the development) has at
least 51% of families with incomes below the poverty rate as documented
by the latest census data.
(3) Any PHA with 5% or more of its units subject to either or both
of the above conditions shall, if they so choose, be issued a weighted
PHMAP score in addition to the regular score based solely upon the
certification of the PHA. The weighted score shall be calculated as
follows:
Percent of units subject to physical condition and/or extra
neighborhood environment: Extra
points
At least 5% but less than 10%.................................. .5
At least 10% but less than 20%................................. .6
At least 20% but less than 30%................................. .7
At least 30% but less than 40%................................. .8
At least 40% but less than 50%................................. .9
At least 50%................................................... 1.0
(i) These extra points will be added to the score (grade) of the
indicator(s) to which these conditions may apply. A PHA is required to
certify on form HUD-50072, PHMAP Certification, the extent to which the
conditions apply, and to which of the indicators the extra scoring
points should be added.
(ii) Developments that have received comprehensive modernization
within the past ten years are not eligible for a weighted score for the
physical condition factor.
(iii) A PHA that receives a grade of A under indicators #4 and #5
may not claim the additional weight for indicator #1 since the physical
condition of its developments is not applicable.
(iv) None of the weighted indicators may have a score that is more
than its total weighted points, including the additional point, or
fraction thereof, awarded for weighting.
(4) PHAs shall maintain supporting documentation to show how they
arrived at the number and percentage of units out of their total
inventory that are subject to weighting.
(i) If the basis was neighborhood environment, the PHA shall have
on file the appropriate maps showing the census tracts surrounding the
development(s) in question with supporting census data showing the
level of poverty. Units that fall into this category but which have
already been removed from consideration for other reasons (permitted
exemptions and modifications and/or exclusions) shall not be counted in
this calculation.
(ii) For the physical condition factor, a PHA would have to
maintain documentation showing the age and condition of the units and
the record of capital improvements, indicating that these particular
units have not received modernization funds.
(iii) PHAs shall also document that in all cases, units that were
exempted for other reasons were not included in the calculation.
Sec. 901.110 PHA request for exclusion or modification of an indicator
or component.
(a) A PHA shall have the right to request the exclusion or
modification of any indicator or component in its management
assessment, thereby excluding or modifying the impact of those
indicator's or component's grades in its PHMAP total weighted score.
(b) Exclusion and modification requests shall be submitted by a PHA
at the time of its PHMAP certification submission to the State/Area
Office along with supporting documentary justification, rather than
during the appeal process.
(c) Requests for exclusions and modifications that do not include
supporting documentary justification will not be considered.
(d) Indicator #2, modernization, shall be automatically excluded by
the State/Area Office if a PHA does not have an open modernization
program.
(e) Indicator #7, resident involvement, shall be automatically
excluded by the State/Area Office for PHAs with 100 or fewer units.
Sec. 901.115 PHA score and status.
(a) PHAs that achieve a total weighted score of 90% or greater may
be designated high performers. A PHA shall not be designated as a high
performer if it scores below a grade of
[[Page 20379]]
C for any indicator. High performers will be afforded incentives that
include substantial relief from reporting and other requirements, as
described in Sec. 901.130.
(b) PHAs that achieve a total weighted score of 90% or greater on
indicator #2, modernization, may be designated mod-high performers.
(c) PHAs that achieve a total weighted score of less than 90% but
not less than 60% may be designated standard. Standard performers will
be afforded incentives that include substantial relief from reporting
and other requirements, as described in Sec. 901.130.
(d) PHAs that achieve a total weighted score of less than 60% may
be designated as troubled.
(e) PHAs with more than 100 units that achieve a total weighted
score of less than 60% on indicator (2), modernization, may be
designated as troubled with respect to the program under section 14.
(f) Each PHA must post a notice of its PHMAP score and status in
appropriate conspicuous and accessible locations in its offices and in
each of its developments within two weeks of receipt of the score and
status. In addition, HUD will publish every PHA's score and status in
the Federal Register.
(g) Even though a PHA has satisfied all of the indicators for high
or standard performer designation, the State/Area Office may reinstate
any review as necessary to address the particular deficiencies, deny or
rescind incentives or high performer status, as described in paragraphs
(a) and (b) of this section in the case of a PHA that:
(1) Is operating under a special agreement with HUD;
(2) Is involved in litigation that bears directly upon the
management of a PHA;
(3) Is operating under a court order;
(4) Demonstrates substantial evidence of fraud or misconduct,
including evidence that the PHA's certification of indicators is not
supported by the facts, resulting from such sources as routine reports
and reviews, an Office of Inspector General investigation/audit, or an
investigation by any appropriate legal authority; or
(5) Demonstrates substantial noncompliance in one or more areas
(including areas not assessed by the PHMAP). Areas of substantial
noncompliance include, but are not limited to, noncompliance with
statutes (e.g., Fair Housing and Equal Opportunity statutes);
regulations (e.g., 24 CFR part 85); or the Annual Contributions
Contract (ACC) (e.g., the ACC, form HUD-53012A, Section 4, Mission of
the PHA). Substantial noncompliance would cast doubt on the PHA's
capacity to preserve and protect its public housing developments and
operate them consistent with Federal law and regulations.
(h) When a State/Area Office Public Housing Director acts for any
of the reasons stated in paragraph (e) of this section, the State/Area
Office will send written notification to the PHA with a specific
explanation of the reasons. An information copy will be forwarded to
the Assistant Secretary for Public and Indian Housing.
(i) A PHA may appeal denial of high performer status in accordance
with Sec. 901.125.
Sec. 901.120 State/Area Office functions.
(a) The State/Area Office will assess each PHA within its
jurisdiction on an annual basis:
(1) The State/Area Office will make determinations for high-
performing, standard, troubled PHAs, and troubled PHAs with respect to
the program under section 14 (mod-troubled) in accordance with a PHA's
PHMAP weighted score.
(2) The State/Area Office will also make determinations for
exclusion and modification requests.
(b) Each State/Area Office will notify each PHA of the PHA's grade
and the grade of the RMC (if any) assuming management functions at any
of the PHA's developments, in each indicator, the PHA's management
assessment total weighted score and status, and if applicable, its
handicapped score; any determinations concerning exclusion and
modification requests; and any deadline date by which appeals must be
received. PHA notification may include offers of pertinent technical
assistance in problem areas, suggestions for means of improving problem
areas, and areas of relief and incentives as a result of high performer
status. The PHA must notify the RMC (if any) in writing, immediately
upon receipt of the State/Area Office notification, of the RMC's
grades.
(c) An on-site confirmatory review may be conducted of a PHA by the
State/Area Office. The purpose of the on-site confirmatory review is to
verify those indicators for which a PHA provides certification, as well
as the accuracy of the information received in the State/Area Office
pertaining to the remaining indicators.
(1) If, in an exceptional circumstance, a confirmatory review is
conducted after the State/Area Office issues the initial notification
letter, the State/Area Office should explain the results of the
confirmatory review in writing, correct the PHAs total weighted score,
if appropriate, and reissue the initial notification letter to the PHA.
(2) The State/Area Office shall conduct a confirmatory review of a
PHA prior to the removal of troubled or mod-troubled designation.
(d) Determinations on appeals and on petitions to remove troubled
or mod-troubled status will be made by the State/Area Office.
(e) Determinations of intentional false certifications will be made
by the State/Area Office.
(f) The State/Area Office may deny or rescind a PHA's status as a
standard or high performer, in accordance with Sec. 901.115(e), so that
it will not be entitled to any of the areas of relief and incentives.
(g) The State/Area Office will maintain PHMAP files for public
inspection in accordance with Sec. 901.155.
Sec. 901.125 PHA right of appeal.
(a) A PHA has the right to appeal its PHMAP score to the State/Area
Office, including a troubled designation or designation as troubled
with respect to the program under section 14. A PHA may appeal its
management assessment rating on the basis of data errors, the denial of
exclusion or modification requests when their denial affects a PHA's
total weighted score, or a determination of intentional false
certification:
(1) A PHA may appeal its management assessment rating to the State/
Area Office only for the reasons stated in paragraph (a) of this
section:
(i) A PHA may not appeal its PHMAP score to the State/Area Office
unless it has submitted its certification to the State/Area Office.
(ii) A PHA may not appeal its PHMAP score to the State/Area Office
if the reason the PHA received a deficient grade in any indicator or
component was due to the fact the PHA did not submit a required report
in a timely manner.
(2) The appeal shall be submitted to the State/Area Office and
shall include supporting documentary justification of the reasons for
the appeal.
(3) The State/Area Office will make determinations on initial
appeals and will transmit the determination of the appeal to the PHA in
a notification letter that will also include the date and place for
submitting any further appeal.
(4) Appeals submitted to the State/Area Office without appropriate
documentation will not be considered and will be returned to the PHA.
(5) A PHA may not appeal its PHMAP score if the reason the PHA
received a deficient grade in any indicator or
[[Page 20380]]
component was due to the fact that the PHA did not submit a required
report(s) in a timely manner.
(6) Appeals of rescission of high performer designation shall be
made directly to the Assistant Secretary for Public and Indian Housing.
(b) A PHA may appeal the denial of an initial appeal by the State/
Area Office to the Assistant Secretary for Public and Indian Housing,
including initial appeals denying high performer designation,
designation as troubled or designation as troubled with respect to the
program under section 14, the denial of an appeal of a determination of
intentional false certification, and the rescission of high performer
designation. A PHA may appeal its management assessment rating on the
basis of data errors, the denial of exclusion or modification requests
when their denial affects a PHA's total weighted score, or a
determination of intentional false certification.
(1) A PHA may appeal its management assessment rating to the
Assistant Secretary for Public and Indian Housing only for the reasons
stated in paragraph (b) of this section.
(2) A PHA may not appeal its PHMAP score to the Assistant Secretary
unless it has submitted its certification to the State/Area Office.
(3) Appeals submitted to the Assistant Secretary for Public and
Indian Housing without appropriate documentation will not be considered
and will be returned to the PHA.
(c) A PHA has the right to appeal any refusal of a petition in
accordance with Sec. 901.140 to remove designation of troubled or
troubled with respect to the program under section 14 to the Assistant
Secretary for Public and Indian Housing.
(d) The date and place by which any appeal must be submitted will
be specified in the letter from the State/Area Office notifying the PHA
of any determination or action. For example, the State/Area Office
initial notification letter or denial of initial appeal letter will
specify the date and place by which appeals must be received. The date
specified will be the 15th calendar day after the letter is mailed, not
counting the day the letter is mailed. If the 15th day falls on a
weekend or holiday, the date specified will be the next day that is not
on a weekend or a holiday. Any appeal not received by the specified
time and place will not be considered.
Sec. 901.130 Incentives.
(a) A PHA that is designated high performer or standard performer
will be relieved of specific HUD requirements, effective upon
notification of high or standard performer designation.
(b) A PHA shall not be designated a mod-high performer and be
entitled to the applicable incentives unless it has been designated an
overall high performer.
(c) High-performing PHAs and RMCs that receive a grade of ``A'' on
each of the indicators for which they are assessed will receive a
Certificate of Commendation from the Department as well as special
public recognition.
(d) Representatives of high-performing PHAs may be requested to
serve on Departmental working groups that will advise the Department in
such areas as troubled PHAs and performance standards for all PHAs.
(e) Relief from any standard procedural requirements does not mean
that a PHA is relieved from compliance with the provisions of Federal
law and regulations or other handbook requirements. For example,
although a high or standard performer may be relieved of requirements
for prior HUD approval for certain types of contracts for services, it
must still comply with all other Federal and State requirements that
remain in effect, such as those for competitive bidding or competitive
negotiation (see 24 CFR 85.36):
(1) PHAs will still be subject to regular Independent Auditor (IA)
audits.
(2) Office of Inspector General (OIG) audits or investigations will
continue to be conducted as circumstances may warrant.
(f) The State/Area Office will have discretion to subject a PHA to
any requirement that would otherwise be omitted under the specified
relief, in accordance with Sec. 901.115(e).
Sec. 901.135 Memorandum of agreement.
(a) After consulting the independent assessment team and reviewing
the report identified in section 6(j)2(b) of the 1937 Act, a Memorandum
of Agreement (MOA), a binding contractual agreement between HUD and a
PHA, shall be required for each PHA designated as troubled and mod-
troubled. The scope of the MOA may vary depending upon the extent of
the problems present in the PHA, but shall include:
(1) Baseline data, which should be raw data but may be the PHA's
score in each of the indicators identified as a problem, or other
relevant areas identified as problematic;
(2) Annual and quarterly performance targets, which may be the
attainment of a higher grade within an indicator that is a problem, or
the description of a goal to be achieved, for example, the reduction of
rents uncollected to 6% or less by the end of the MOA annual period;
(3) Strategies to be used by the PHA in achieving the performance
targets within the time period of the MOA;
(4) Technical assistance to the PHA provided or facilitated by the
Department, for example, the training of PHA employees in specific
management areas or assistance in the resolution of outstanding HUD
monitoring findings;
(5) The PHA's commitment to take all actions within its control to
achieve the targets;
(6) Incentives for meeting such targets, such as the removal of
troubled or mod-troubled designation, fewer conditions placed on
grants, and Departmental recognition for the most improved PHAs;
(7) The consequences of failing to meet the targets, including such
sanctions as the imposition of budgetary limitations, declaration of
substantial default and subsequent actions, limited denial of
participation, suspension, debarment, or the imposition of operating
funding and modernization thresholds; and
(8) A description of the involvement of local public and private
entities, including PHA resident leaders, in carrying out the agreement
and rectifying the PHA's problems. A PHA shall have primary
responsibility for obtaining active local public and private entity
participation, including the involvement of public housing resident
leaders, in assisting PHA improvement efforts. Local public and private
entity participation should be premised upon the participant's
knowledge of the PHA, ability to contribute technical expertise with
regard to the PHA's specific problem areas and authority to make
preliminary/tentative commitments of support, financial or otherwise.
(b) A MOA shall be executed by:
(1) The PHA Board Chairperson and accompanied by a Board
resolution, or a receiver or other AME acting in lieu of the PHA Board;
(2) The PHA Executive Director, or a receiver- or other AME-
designated Chief Executive Officer;
(3) The Director, State/Area Office of Public Housing; and
(4) The appointing authorities of the Board of Commissioners,
unless exempted by the State/Area Office.
(c) The Department encourages the inclusion of the resident
leadership in MOA negotiations and the execution of the MOA.
(d) Upon designation of a large PHA (1250 or more units under
management) as troubled, the State/Area Office shall make a referral to
HUD Headquarters for appropriate recovery intervention and
[[Page 20381]]
the execution of an MOA by the Assistant Secretary of Public and Indian
Housing.
(e) A PHA will monitor MOA implementation to ensure that
performance targets are met in terms of quantity, timeliness and
quality.
(f) A PHA will be removed from troubled status upon a determination
by the State/Area Office that the PHA's assessment reflects an
improvement to a level sufficient to remove the PHA from troubled
status, or mod-troubled, i.e., a total weighted management assessment
score of 60% or more.
Sec. 901.140 Removal from troubled status and mod-troubled status.
(a) A PHA has the right to petition the State/Area Office for the
removal of a designation as troubled or mod-troubled.
(b) A PHA may appeal any refusal to remove troubled and mod-
troubled designation to the Assistant Secretary for Public and Indian
Housing in accordance with Sec. 901.125.
(c) The State/Area Office shall conduct a confirmatory review of a
PHA prior to the removal of troubled or mod-troubled designation.
Sec. 901.145 Improvement Plan.
(a) After receipt of the State/Area Office notification letter in
accordance with Sec. 901.120(b) or receipt of a final resolution of an
appeal in accordance with Sec. 901.125 or, in the case of an RMC,
notification of its indicator grades from a PHA, a PHA or RMC shall
correct any deficiency indicated in its management assessment within 90
calendar days.
(b) A PHA shall notify the State/Area Office of its action to
correct a deficiency. A PHA shall also forward to the State/Area Office
an RMC's report of its action to correct a deficiency.
(c) If the State/Area Office determines that a PHA or RMC has not
corrected a deficiency as required within 90 calendar days after
receipt of its final notification letter, the State/Area Office may
require a PHA, or a RMC through the PHA, to prepare and submit to the
State/Area Office an Improvement Plan within an additional 30 calendar
days:
(1) The State/Area Office shall require a PHA or RMC to submit an
Improvement Plan, which includes the information stated in paragraph
(d) of this section, for each indicator that a PHA or RMC scored a
grade ``F''.
(2) The State/Area Office may require, on a risk management basis,
a PHA or RMC to submit an Improvement Plan, which includes the
information stated in paragraph (d) of this section, for each indicator
that a PHA scored a grade D or E, as well as other performance and/or
compliance deficiencies as may be identified as a result of an on-site
review of the PHA's operations.
(d) An Improvement Plan shall:
(1) Identify baseline data, which should be raw data but may be the
PHA's score in each of the indicators identified as a problem in a
PHA's or RMC's management assessment, or other relevant areas
identified as problematic;
(2) Describe the procedures that will be followed to correct each
deficiency; and
(3) Provide a timetable for the correction of each deficiency.
(e) The State/Area Office will approve or deny a PHA's or RMC's
Improvement Plan, and notify the PHA of its decision. A PHA must notify
the RMC in writing, immediately upon receipt of the State/Area Office
notification, of the State/Area Office approval or denial of the RMC's
Improvement Plan.
(f) An Improvement Plan that is not approved will be returned to
the PHA with recommendations from the State/Area Office for revising
the Improvement Plan to obtain approval. A revised Improvement Plan
shall be resubmitted by the PHA or RMC within 30 calendar days of its
receipt of the State/Area Office recommendations.
(g) If a PHA or RMC fails to submit an acceptable Improvement Plan,
or to correct deficiencies within the time specified in an Improvement
Plan or such extensions as may be granted by HUD, the State/Area Office
will notify the PHA of its or the RMC's noncompliance. The PHA, or the
RMC through the PHA, will provide HUD its reasons for lack of progress
in submitting or carrying out the Improvement Plan within 30 calendar
days of its receipt of the noncompliance notification. HUD will advise
the PHA as to the acceptability of its reasons for lack of progress
and, if unacceptable, will notify the PHA that it will be subject to
sanctions provided for in the Annual Contributions Contract and HUD
regulations.
Sec. 901.150 PHAs troubled with respect to the program under section
14 (mod-troubled PHAs).
(a) PHAs that achieve a total weighted score of less than 60% on
indicator (2), modernization, may be designated as mod-troubled.
(b) PHAs designated as mod-troubled may be subject, under the
Comprehensive Grant Program, to a reduction of formula allocation or
other sanctions (24 CFR part 968, subpart C) or under the Comprehensive
Improvement Assistance Program to disapproval of new funding or other
sanctions (24 CFR part 968, subpart B).
Sec. 901.155 PHMAP public record.
The State/Area Office will maintain PHMAP files, including
certifications, the records of exclusion and modification requests,
appeals, and designations of status based on physical condition and
neighborhood environment, as open records, available for public
inspection for three years in accordance with any procedures
established by the Field Office to minimize disruption of normal office
operations.
Sec. 901.200 Events or conditions that constitute substantial default.
(a) The Department may determine that events have occurred or that
conditions exist that constitute a substantial default if a PHA is
determined to be in violation of Federal statutes, including but not
limited to, the 1937 Act, or in violation of regulations implementing
such statutory requirements, whether or not such violations would
constitute a substantial breach or default under provisions of the
relevant Annual Contributions Contract (ACC).
(b) The Department may determine that a PHA's failure to satisfy
the terms of a Memorandum of Agreement entered into in accordance with
Sec. 901.135 of this part, or to make reasonable progress to meet time
frames included in a Memorandum of Agreement, are events or conditions
that constitute a substantial default.
(c) The Department shall determine that a PHA that has been
designated as troubled and does not show significant improvement (10
point increase) in its PHMAP score within one year are events or
conditions that constitute a substantial default:
(1) A PHA shall be notified of such a determination in accordance
with Sec. 901.205(c).
(2) A PHA may waive, in writing, receipt of explicit notice from
the Department as to a finding of substantial default, and voluntarily
consent to a determination of substantial default. The PHA must concur
on the existence of substantial default conditions which can be
remedied by technical assistance, and the PHA shall provide the
Department with written assurances that all deficiencies will be
addressed by the PHA. The Department will then immediately proceed with
interventions as provided in Sec. 901.210.
(d) The Department may declare a substantial breach or default
under the ACC, in accordance with its terms and conditions.
[[Page 20382]]
(e) The Department may determine that the events or conditions
constituting a substantial default are limited to a portion of a PHA's
public housing operations, designated either by program, by operational
area, or by development(s).
Sec. 901.205 Notice and response.
(a) If information from an annual assessment, as described in
Sec. 901.100, a management review or audit, or any other credible
source indicates that there may exist events or conditions constituting
a substantial breach or default, the Department shall advise a PHA of
such information. The Department is authorized to protect the
confidentiality of the source(s) of such information in appropriate
cases. Before taking further action, except in cases of apparent fraud
or criminality, and/or in cases where emergency conditions exist posing
an imminent threat to the life, health, or safety of residents, the
Department shall afford the PHA a timely opportunity to initiate
corrective action, including the remedies and procedures available to
PHAs designated as ``troubled PHAs,'' or to demonstrate that the
information is incorrect.
(b) In any situation determined to be an emergency, or in any case
where the events or conditions precipitating the intervention are
determined to be the result of criminal or fraudulent activity, the
Assistant Secretary is authorized to intercede to protect the
residents' and the Department's interests by causing the proposed
interventions to be implemented without further appeals or delays.
(c) Upon a determination or finding that events have occurred or
that conditions exist that constitute a substantial default, the
Assistant Secretary shall provide written notification of such
determination or finding to the affected PHA. Written notification
shall include, but need not necessarily be limited to:
(1) Identification of the specific covenants, conditions, and/or
agreements under which the PHA is determined to be in non-compliance;
(2) Identification of the specific events, occurrences, or
conditions that constitute the determined noncompliance;
(3) Citation of the communications and opportunities to effect
remedies afforded pursuant to paragraph (a) of this section;
(4) Notification to the PHA of a specific time period, to be not
less than 10 calendar days, except in cases of apparent fraud or other
criminal behavior, and/or under emergency conditions as described in
paragraph (a) of this section, nor more than 30 calendar days, during
which the PHA shall be required to demonstrate that the determination
or finding is not substantively accurate; and
(5) Notification to the PHA that, absent a satisfactory response in
accordance with paragraph (d) of this section, the Department will take
control of the PHA, using any or all of the interventions specified in
Sec. 901.210, and determined to be appropriate to remedy the
noncompliance, citing Sec. 901.210, and any additional authority for
such action.
(d) Upon receipt of the notification described in paragraph (c) of
this section, the PHA must demonstrate, within the time period
permitted in the notification, factual error in the Department's
description of events, occurrences, or conditions, or show that the
events, occurrences, or conditions do not constitute noncompliance with
the statute, regulation, or covenants or conditions to which the PHA is
cited in the notification.
Sec. 901.210 Interventions.
(a) Interventions under this part (including an assumption of
operating responsibilities) may be limited to one or more of a PHA's
specific operational areas (e.g., maintenance, modernization,
occupancy, or financial management or to a single development or a
group of developments). Under this limited intervention procedure, the
Department could select, or participate in the selection of, an AME to
assume management responsibility for a specific development, a group of
developments in a geographical area, or a specific operational area,
while permitting the PHA to retain responsibility for all programs,
operational areas, and developments not so designated.
(b) Upon determining that a substantial default exists under this
part, the Department may initiate any interventions deemed necessary to
maintain decent, safe, and sanitary dwellings for residents. Such
intervention may include:
(1) Providing technical assistance for existing PHA management
staff;
(2) Selecting or participating in the selection of an AME to
provide technical assistance or other services up to and including
contract management of all or any part of the public housing
developments administered by a PHA;
(3) Assuming possession and operational responsibility for all or
any part of the public housing administered by a PHA; and
(4) The provision of intervention and assistance necessary to
remedy emergency conditions.
(c) HUD may take the actions described in this part sequentially or
simultaneously in any combination.
Sec. 901.215 Contracting and funding.
(a) Upon a declaration of substantial default or breach, and
subsequent assumption of possession and operational responsibility, the
Department may enter into agreements, arrangements, and/or contracts
for or on behalf of a PHA, or to act as the PHA, and to expend or
authorize expenditure of PHA funds, irrespective of the source of such
funds, to remedy the events or conditions constituting the substantial
default.
(b) In entering into contracts or other agreements for or on behalf
of a PHA, the Department shall comply with requirements for competitive
procurement consistent with 24 CFR 85.36, except that, upon
determination of public exigency or emergency that will not permit a
delay, the Department can enter into contracts or agreements on a non-
competitive basis, consistent with the standards of 24 CFR 85.36(d)(4).
Sec. 901.220 Resident participation in competitive proposals to manage
the housing of a PHA.
(a) When a competitive proposal to manage the housing of a PHA in
substantial default is solicited in a Request for Proposals (RFP)
pursuant to section 6(j)(3)(A)(i) of the 37 Act, the RFP, in addition
to publishing the selection criteria, will:
(1) Include a requirement for residents to notify the Department if
they want to be involved in the selection process; and
(2) Include a requirement for the PHA that is the subject of the
RFP to post a notice and a copy of the RFP in a prominent location on
the premises of each housing development that would be subject to the
management chosen under the RFP, for the purposes of notifying affected
residents that
(i) Invites residents to participate in the selection process; and
(ii) Provides information, to be specified in the RFP, on how to
notify the Department of their interest.
(b) Residents must notify the Department by the RFP's application
due date of their interest in participating in the selection process.
In order to participate, the total number of residents that notify the
Department must equal at least five percent of the residents, or the
notification of interest must be from an organization or
[[Page 20383]]
organizations of residents whose membership must equal at least five
percent of the PHA's residents.
(c) If the required percentage of residents notify the Department,
a minimum of one resident may be invited to serve as an advisory member
on the evaluation panel that will review the applications in accordance
with applicable procurement procedures. Resident advisory members are
subject to all applicable confidentiality and disclosure restrictions.
Sec. 901.225 Resident petitions for remedial action.
The total number of residents that petition the Department to take
remedial action pursuant to sections 6(j)(3)(A)(i) through (iv) of the
1937 Act must equal at least five percent of the residents, or the
petition must be from an organization or organizations of residents
whose membership must equal at least five percent of the PHA's
residents.
Sec. 901.230 Receivership.
(a) Upon a determination that a substantial default has occurred
and without regard to the availability of alternate remedies, the
Department may petition the court for the appointment of a receiver to
conduct the affairs of the PHA in a manner consistent with statutory,
regulatory, and contractual obligations of the PHA and in accordance
with such additional terms and conditions that the court may provide.
The court shall have authority to grant appropriate temporary or
preliminary relief pending final disposition of any petition by HUD.
(b) The appointment of a receiver pursuant to this section may be
terminated upon the petition to the court by the PHA, the receiver, or
the Department, and upon a finding by the court that the circumstances
or conditions that constituted substantial default by the PHA no longer
exist and that the operations of the PHA will be conducted in
accordance with applicable statutes and regulations, and contractual
covenants and conditions to which the PHA and its public housing
programs are subject.
Sec. 901.235 Technical assistance.
(a) The Department may provide technical assistance to a PHA that
is in substantial default.
(b) The Department may provide technical assistance to a troubled
or non-troubled PHA if the assistance will enable the PHA to achieve
satisfactory performance on any PHMAP indicator. The Department may
provide such assistance if a PHA demonstrates a commitment to undertake
improvements appropriate with the given circumstances, and executes an
Improvement Plan in accordance with Sec. 901.145.
(c) The Department may provide technical assistance to a PHA if
without abatement of prevailing or chronic conditions, the PHA can be
projected to be designated as troubled by its next PHMAP assessment.
(d) The Department may provide technical assistance to a PHA that
is in substantial default of the Annual Contributions Contract.
(e) The Department may provide technical assistance to a PHA whose
troubled designation has been removed and where such assistance is
necessary to prevent the PHA from being designated as troubled within
the next two years.
Date: February 26, 1996.
Kevin E. Marchman,
Acting Assistant Secretary for Public and Indian Housing.
[FR Doc. 96-10956 Filed 5-3-96; 8:45 am]
BILLING CODE 4210-33-P
Complete official Federal Register PDF
FR Doc. 96-10608 Securities Credit Transactions
[Federal Register Volume 61, Number 88 (Monday, May 6, 1996)]
[Proposed Rules]
[Pages 20399-20404]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10608]
Federal Register / Vol. 61, No. 88 / Monday, May 6, 1996 / Proposed
Rules
[[Page 20399]]
FEDERAL RESERVE SYSTEM
12 CFR Parts 207, 220, and 221
[Regulations G, T, and U; Docket No. R-0923]
Securities Credit Transactions
AGENCY: Board of Governors of the Federal Reserve System.
ACTION: Proposed rule.
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SUMMARY: In conjunction with a final rule printed elsewhere in today's
Federal Register, the Board is considering further amendments to its
margin regulations, Regulations G, T, and U. Regulation T covers
extensions of credit by and to brokers and dealers; Regulation U covers
extensions of credit by banks; and Regulation G covers extensions of
credit by all other U.S. lenders.
The Board is proposing to: allow a broker-dealer to extend ``good
faith'' credit on any non-equity security rather than only those
currently permitted by Board rules; allow lending on non-equity
securities to occur in a new ``non-equity'' account, absent the
restrictions currently imposed in the margin account; remove
restrictions on the ability of broker-dealers to calculate required
margin for non-equity securities on a ``portfolio'' basis; ease or
eliminate the Board's collateral requirements for the borrowing and
lending of securities; exempt lending to foreign persons on foreign
securities by foreign branches of U.S. broker dealers; remove a Board
interpretation that prevents options from serving as cover in lieu of
margin for a short sale; and allow banks to lend against exchange-
traded options to the extent permitted by the exchange listing the
option.
The Board is also seeking comment on whether it should expand the
number of equity securities eligible for loan value under Regulation T,
and on whether it should amend Regulations G and U to modify their
method for determining which equity securities are eligible for loan
value.
DATES: Comments should be received on or before July 1, 1996.
ADDRESSES: Comments should refer to Docket No. R-0923, and may be
mailed to William W. Wiles, Secretary, Board of Governors of the
Federal Reserve System, 20th Street and Constitution Avenue NW.,
Washington, DC 20551. Comments also may be delivered to Room B-222 of
the Eccles Building between 8:45 a.m. and 5:15 p.m. weekdays, or to the
guard station in the Eccles Building courtyard on 20th Street NW.
(between Constitution Avenue and C Street NW.) at any time. Comments
received will be available for inspection in Room MP-500 of the Martin
Building between 9:00 a.m. and 5:00 p.m. weekdays, except as provided
in 12 CFR 261.8 of the Board's rules regarding availability of
information.
FOR FURTHER INFORMATION CONTACT: Scott Holz, Senior Attorney, or Angela
Desmond, Senior Counsel, Division of Banking Supervision and Regulation
(202) 452-2781; Oliver Ireland, Associate General Counsel (202) 452-
3625 or Gregory Baer, Managing Senior Counsel (202) 452-3236, Legal
Division; for the hearing impaired only, Telecommunications Device for
the Deaf (TDD), Dorothea Thompson (202) 452-3544.
SUPPLEMENTARY INFORMATION: Regulation T implements the Board's
authority over securities credit extended by broker-dealers under
section 7 of the Securities Exchange Act of 1934, 15 U.S.C. 78g (the
Act). Section 7 requires the Board to regulate the amount of credit
that may be extended on securities by a broker-dealer, requires that
collateral for securities purchases consist of ``exempted securities''
(U.S. government and municipal securities) or securities assigned loan
value by the Board, and prohibits a broker-dealer from extending
unsecured credit for the purpose of purchasing securities. Regulation T
establishes the margin that a customer of a broker-dealer must post
when engaging in a securities transaction on credit. The ``margin'' for
a security is the converse of the security's ``loan value;'' by
definition, the two always add up to 100 percent.
Section 7 also authorizes the Board to regulate credit extended by
banks and all other U.S. lenders. Regulation U limits credit extended
by banks to finance the purchase or carrying by customers of margin
equity securities when the credit is collateralized by such securities.
12 CFR Part 221. Regulation G limits credit extended by lenders other
than broker-dealers and banks to finance the purchase or carrying of
margin equity securities when the credit is collateralized by such
securities. 12 CFR Part 207.1
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\1\ Regulation X covers U.S. borrowers obtaining credit outside
the United States. Because Regulation X incorporates the
requirements of Regulation T, U, or G (depending on the lender), any
amendments to those regulations automatically pass through to
Regulation X. Therefore, no amendments to Regulation X are being
proposed.
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In 1995, the Board published for comment a series of amendments to
Regulation T that were intended to remove constraints that were
hampering developing trends in the securities markets. 60 FR 33763,
June 29, 1995. These trends included the erosion of barriers between
broker-dealers and other lenders, the globalization of securities
markets, the increasing overlap in the businesses of various lenders,
and the constant development of new mechanisms for extending securities
credit. The Board also solicited comment on broader changes that could
be made to Regulation T. The recent effort to modernize Regulation T
predated but is now encompassed within the Board's regulatory review
under section 303 of the Riegle Community Development and Regulatory
Improvement Act of 1994, Pub. L. 103-325.
Extensive comment was received on the Board's 1995 proposal,
including voluminous responses from the major securities trade groups.
Commenters generally supported the proposed amendments to Regulation T,
but also emphasized the need for more wholesale reform.
Today, the Board is elsewhere adopting as a final rule many of the
amendments it proposed in 1995. However, the Board is also proposing
additional amendments to Regulation T, and seeking comment on
provisions of Regulations G and U as well.2 In addition, the Board
seeks comment on any other steps it can take to reduce the burden
imposed by Regulation T, including any steps to reduce the accounting
and recordkeeping burdens of the regulation, that would be consistent
with the purposes and requirements of the Act.
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\2\ The Board is also continuing to review Regulations G and U
as part of its ongoing effort to reduce regulatory burden, as
mandated by section 303 of the Riegle Community Development and
Regulatory Improvement Act of 1994.
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1. Good Faith Loan Value for all Non-Equity Securities
Regulation T gives ``good faith'' loan value to many but not all
debt securities. Good faith loan value means that a broker-dealer may
extend credit on a particular security in any amount consistent with
sound credit judgment. 12 CFR 220.2. Those debt securities not eligible
for good faith loan value receive no loan value and therefore have a
margin requirement of 100 percent.
With the adoption of today's final rule, the Board currently
assigns a debt security good faith loan value if it is: (1) listed on a
U.S. securities exchange, (2) a government or municipal security, (3)
an investment grade security; or (4) a less-than-investment grade
security that is registered with the Securities and Exchange Commission
(SEC) and has an original principal amount of not less than
$25,000,000. 12 CFR 220.18(b).
[[Page 20400]]
Non-equity securities that are not registered, are not government or
municipal securities, and are not investment grade generally will
continue to receive no loan value under Regulation T.
In contrast, the Board's Regulations G and U do not impose any
margin restrictions on non-broker-dealer lenders (such as banks) when
they lend against non-equity securities, even securities that receive
no loan value under Regulation T.3 Foreign broker-dealers and
other foreign lenders, with whom U.S. broker dealers increasingly
compete worldwide, are generally also unconstrained. Thus, customers
who wish to borrow against non-equity securities that receive no loan
value under Regulation T, and investors who wish to engage in repo or
forward transactions in such securities, may go to these other lenders.
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\3\ Section 7(d) of the Act prohibits the Board from
establishing margin requirements on non-equity securities at banks.
15 U.S.C. 78g(d). When Regulation G was adopted in 1968, it was
modeled on Regulation U.
---------------------------------------------------------------------------
The Board proposes to grant good faith loan value to all non-equity
securities. To effectuate this change, the Board is proposing to amend
revised section 220.13, discussed below, and section 220.18 (b), (c),
and (d) to include all non-equity securities among those securities
subject to good faith margin. A new definition of ``non-equity
security'' would be added to section 220.2 to include any security that
is not an ``equity security'' for purposes of section 3(a)(11) of the
Act. This definition of non-equity security may include certain equity-
linked securities. The Board seeks comment on whether it should modify
the definition of non-equity security to exclude equity-linked
securities and, if so, what securities should be excluded.
In a conforming change, the definition of ``OTC margin bond'' in
section 220.2 would be deleted; since all non-equity securities would
receive loan value, this definition would no longer be required. In
another conforming change, the definition of ``margin security'' in
section 220.2 would be revised to include any ``non-equity security''
instead of any ``OTC margin bond.''
Expanding the types of non-equity securities eligible for good
faith loan value should expand broker-dealers' ability to lend and put
them on a more equal footing with other lenders under Regulations G and
U. Broker-dealers should be no less competent to determine the loan
value of non-investment grade debt securities than a bank or other
lender would be. Finally, any remaining regulatory concerns could be
addressed by the self-regulatory organizations (SROs), which include
the exchanges and the National Association of Securities Dealers, who
still would be able to set their own margin requirements for these
transactions.
2. Establishment of Non-Equity Account
Other restrictions beyond margin requirements are also currently
placed on transactions involving non-equity securities. Currently, any
credit extended by a broker-dealer on a non-equity security (other than
a security eligible for the government securities account) must be
recorded in the margin account. 12 CFR 220.4. These transactions are
thus subject to the same restrictions as equity securities with respect
to when payments must be made and when positions must be liquidated. On
the other hand, because Regulations U and G restrict lending only on
equity securities, banks and other lenders may lend on non-equity
securities without such Board-imposed restrictions. 12 CFR 221.3(a); 12
CFR 207.3(b).
The Board proposes to allow any transaction involving a non-equity
security to be effected in a new ``non-equity'' account. For example, a
customer could effect in this account: (1) purchases of non-equity
securities on credit; (2) repurchase and reverse repurchase agreements
with broker-dealers on non-equity securities; and (3) the purchase or
sale of options on non-equity securities. All transactions in the
account would be subject to good faith margin. In order to ensure that
unsecured credit would not be extended under the rubric of good faith
margin, the proposed rule would prohibit any transaction or withdrawal
that would cause the non-equity account to liquidate to a deficit--that
is, cause the marked-to-market value of the securities held in the
account to be less than the credit outstanding.
This account would be otherwise unregulated. The absence of
restrictions on the terms of credit for non-equity securities would
promote equality of treatment between broker-dealers and banks and
other lenders, who face no Federal Reserve regulation when they lend on
non-equity securities.
The Board seeks comment on whether the creation of a non-equity
account would be beneficial and whether the account could be better
named. The Board also seeks comment on whether this account could be
merged with the government securities account (12 CFR 220.6) or the
nonsecurities credit account (220.9) or both.
3. Portfolio Margining
A. Amendment to definition of good faith margin
As noted above, Regulation T currently allows good faith margin on
some non-equity securities, and the Board is proposing to extend this
treatment to all non-equity securities. ``Good faith margin'' is
defined in Regulation T to mean ``the amount of margin which a
creditor, exercising sound credit judgment, would customarily require
for a specified security position and which is established without
regard to the customer's other assets or securities positions held in
connection with unrelated transactions'' (emphasis added). 12 CFR
220.2.
This definition limits so-called ``portfolio margining''--allowing
positions to be evaluated as a group and determining collateral
requirements based upon estimated changes in the value of that
portfolio. (It would continue to do so even if the proposed non-equity
account were adopted, as the definition of good faith applies
regardless of where the transaction is booked.) Regulation T has
defined limited positions that can serve as offsets for each other, but
any combination of positions not specifically permitted by the
regulation may not offset one another. Commenters have for some time
requested greater flexibility to engage in cross-margining (allowing
positions in financial futures to offset the margin required for a
given securities credit) and more broadly in ``portfolio'' or ``risk-
based'' margining.
In order to remove an impediment to portfolio margining, the Board
would amend the definition of ``good faith margin'' to eliminate the
requirement that such margin be calculated ``for a specified security
position * * * without regard to the customer's other assets or
securities positions held in connection with unrelated transactions.''
Instead, ``good faith margin'' would be defined to mean ``the amount of
margin the creditor would require in exercising sound credit
judgment.''
The Board is seeking comment on whether this definition should: (1)
apply only in the proposed non-equity account, thereby continuing to
limit portfolio margining of securities eligible for good faith margin
in the margin account or market functions account; or (2) apply
regardless of the account-- margin, non-equity, or market functions--in
which the transactions are booked. In addition, the Board seeks comment
on the extent to which this change would allow SROs and broker-
[[Page 20401]]
dealers greater flexibility to develop portfolio margining systems. The
Board also seeks comment from SROs and others on the potential benefits
and burdens of adopting a portfolio margining system in addition to the
existing position-based system, and whether changing the definition of
good faith margin for any or all accounts is consistent with section
7(b) of the Act.
B. Separation of Accounts
Section 7 of the Act prohibits a broker-dealer from extending
securities credit on any collateral other than a security. Accordingly,
Regulation T requires that futures contracts and non-securities be
accounted for in their own account, and section 220.3(b) of Regulation
T generally prohibits using items in one account (including the
nonsecurities account) from being used to meet the margin requirements
for items in another account (including the margin account). However,
with adoption of today's final rule, Regulation T will allow financial
futures to serve in lieu of margin for securities options consistent
with SRO rules. This treatment is consistent with Section 7 because the
broker-dealer is not extending credit on the futures contract when it
considers a futures contract in determining the amount of credit it can
extend in good faith on a security.
The proposed rule would amend section 220.3(b) to allow explicitly
commodities and foreign exchange positions in the nonsecurities account
to be considered in calculating margin for any securities transaction
in the proposed non-equity account or the margin account. The Board
would expect that these positions would be valued in accordance with
SRO rules, where applicable, or in any event not in excess of their
marked-to market value. The proposed rule would also amend section
220.18 to remove a requirement that margin be held for ``each security
position.''
The Board also seeks comment on whether further amendments to
sections 220.3(b) should be adopted to facilitate portfolio margining--
in particular, whether the Board should modify the general prohibition
on separation of accounts in section 220.3(b). Doing so could allow any
excess margin in one account to be used to meet a margin deficiency in
another account. To the extent that such a change were adopted, the
Board seeks comment on the continuing need for a Special Memorandum
Account. As noted above, the Board is also seeking comment on whether
the government securities account, nonsecurities account, and proposed
non-equity account should be combined.
C. Implementation
The Board also seeks comment on any implementation problems that
might arise with a partial or complete move to portfolio margining,
including the need for delaying the effective date of any final rule in
order to allow the SROs time to amend their rules.
4. Borrowing and Lending of Securities by Brokers-dealers
In order to facilitate short sales and the curing of failures to
deliver a security (fails), Regulation T allows broker-dealers to
borrow and lend securities outside of the normal margin requirements
for securities purchases. To qualify for this treatment, borrowing and
lending transactions must not only relate to a short sale or fail but
also be secured by cash or similarly liquid collateral equal to 100
percent of the value of the securities lent.4 Any borrowing and
lending of securities that does not meet both the ``purpose test'' and
the ``collateral test'' is usually a financing, is not considered a
borrowing and lending of securities for Regulation T purposes, and
therefore is conducted in a margin account, subject to the appropriate
margin requirement for the underlying security.
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\4\ With the adoption of today's final rule, permissible types
of collateral include cash, securities issued or guaranteed by the
United States or its agencies, certain negotiable bank certificates
of deposit and bankers acceptances, and certain irrevocable letters
of credit issued by banks, marginable foreign sovereign debt
securities, and any collateral acceptable to the SEC when a broker-
dealer borrows securities from a customer.
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Requiring 100 percent collateral (marked to market daily) to secure
any stock loan reflects industry practice and is, the Board believes,
consistent with prudent securities lending. The SEC imposes similar
requirements on the types and amount of collateral a broker-dealer must
post when it borrows securities from a customer, and the Department of
Labor applies similar requirements to an ERISA pension plan when it
lends securities.
Nonetheless, the Board is seeking comment on whether the Board's
existing collateral requirements are necessary for Regulation T
purposes. Commenters have sought an expansion of eligible collateral to
include all securities marginable under Regulation T. Although the
Board has expressed concern that Regulation T could be evaded by
structuring a financing transaction as a borrowing and lending,5
the purpose test may be adequate to prevent such an evasion. The
purpose test limits the exception to transactions that have a clear
market purpose that is verifiable (as any evasion becomes evident
within a few days, when no short sale is consummated or the fail proves
illusory). The collateral test addresses the evasion issue only
indirectly by imposing collateral arrangements that conform to industry
practice.
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\5\ For example, a broker-dealer prohibited by Regulation T from
extending a customer 100 percent credit on a security could instead
borrow the security from the customer and post 100 percent cash
collateral; the customer could then withdraw the cash, evading the
50 percent initial or good faith margin requirement.
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Accordingly, the Board is proposing to amend section 220.16 either
to allow any security that qualifies for loan value to serve as
collateral, valued at its regulatory loan value,6 or to require a
bona fide posting of collateral equal to 100 percent of the value of
the securities borrowed, without requiring any specific type of
collateral. The Board also seeks comment on whether the collateral
requirement of section 220.16 could be eliminated altogether. The Board
notes that even if the collateral/requirements were eliminated, other
concerns might merit continued or further regulation by the SROs or the
SEC.
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\6\ If this option were adopted, ``loan value'' would be
defined in Regulation T to mean an amount equal to ``1 minus the
margin requirement for the security under this part.''
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5. Extensions of Credit by Foreign Branches of U.S. Broker-Dealers
Most U.S. broker-dealers conduct their overseas operations through
separately incorporated subsidiaries of their holding companies. These
subsidiaries are not subject to Regulation T or SEC regulations.
However, a few firms maintain foreign branches that are subject to
Regulation T. The Board is proposing to exclude these foreign branches
from Regulation T when they extend credit to foreign persons on foreign
securities. This would be analogous to the exclusion from Regulation U
of foreign branches of U.S. banks when they extend securities credit.
6. Option as Cover for a Short Sale of an Equity Security
In a short sale, a customer generally sells securities it does not
own and borrows those securities from a broker-dealer in order to meet
its delivery obligation. The customer is then obligated to redeliver
such securities to the broker-dealer at some time in the future, but
hopes to obtain those securities for less than the sale price less
financing costs. Regulation T currently
[[Page 20402]]
requires margin of 150 percent for a short sale of an equity
security.7 For example, if a customer sells short 100 shares of
XYZ Corp, the broker-dealer retains 100 percent of the proceeds from
the sale in the customer's account, and the customer is required to
post an additional 50 percent of the sale price. (This parallels the 50
percent margin requirement for a purchase of the stock; in each case,
the customer's stake in the transaction must be 50 percent of its
price.) However, Regulation T requires margin of only 100 percent--in
other words, allows retaining of the proceeds of the sale to suffice--
if a ``security exchangeable or convertible * * * into the security
sold short'' is held in the customer's account. The most common example
of such a security is a convertible bond.
---------------------------------------------------------------------------
\7\ If a marginable debt security is sold short, the margin
required is 100 percent of the current market value of the security
plus the margin required by the creditor in good faith.
---------------------------------------------------------------------------
Although it can be argued that both stock warrants and call options
qualify as a ``security exchangeable or convertible into another
security,'' the Board has only permitted the former to serve in lieu of
the additional 50 percent margin for short sales in Regulation T. See
Board Interpretation 12 CFR 220.126, reprinted in the Federal Reserve
Regulatory Service at 5-488. Some commenters have criticized this
inequality of treatment, and some have asked that a call option--in the
above example, a call option for 100 shares of XYZ stock--be allowed to
serve in lieu of the additional 50 percent margin requirement.
The Board is seeking comment on whether to allow the use of a call
option to offset the short sale of a security and whether doing so
would bias the market in favor of short selling. The Board has
historically sought to ensure that traders on the short side of the
market should not be in a position, with a given amount of funds, to
exert greater influence on the market than they could with the same
amount of funds if they were trading on the long side. However, under
this proposal, a customer wishing to purchase 100 shares of XYZ would
be required to come up with 50 percent of the purchase price, but a
customer wishing to sell 100 shares of XYZ short would only be required
to come up with the premium necessary to purchase a call option for 100
shares of XYZ, a far smaller amount. The Board seeks comment on whether
this fact argues against adoption of the proposed change.
7. Eligibility of Equity Securities for Credit Under Regulations G,
T, and U
In order to qualify for credit under Regulation T, an equity
security must be a mutual fund, a bond convertible into a qualifying
equity security, or registered on a national securities exchange, trade
in NASDAQ's National Market System, or appear on the Board's quarterly
lists of ``marginable OTC stocks'' or ``foreign margin stocks.'' Stocks
qualify for inclusion on the Board's lists if they meet Regulation T's
definition of ``OTC margin stock'' or ``foreign margin stock.''
A. Foreign Margin Stocks Under Regulation T
The Board is adopting as a final rule an amendment to Regulation T
that includes as a foreign margin stock any foreign stock that has a
``ready market'' for purposes of the SEC's net capital rule. 17 CFR
240.15c3-1(c)(11)(i). SEC staff has stated that they will take no
action against broker-dealers that treat any foreign stock listed on
the Financial Times-Actuaries World Indices as having a ready market
for purposes of computing a broker-dealer's net capital. Thus, these
stocks will be added to the Board's foreign list.
Although there is considerable overlap between the stocks on the
Financial Times Indices and the Board's list of foreign margin stocks,
the Financial Times list contains substantially more foreign stocks
than the Board's list, and there are also a significant number of
foreign stocks that appear on the Board's list but not the Financial
Times list. The Board did not receive comment on whether its current
list of, and test for, foreign margin stocks would continue to be
necessary if this new test were adopted. Accordingly, the Board seeks
comment on whether it should rely on the ready market test exclusively
and phase out the Board's own test and list.
B. Domestic Margin Stocks
The Board is also seeking comment on whether it should supplement
or replace the current criteria for qualification as an OTC margin
stock in section 220.17 of Regulation T by allowing a broker-dealer to
extend credit on any stock traded on a national securities exchange,
quoted on NASDAQ, or otherwise having a ``ready market'' for purposes
of the SEC's net capital rule. In the domestic area, SEC staff has
taken the position that a stock has a ``ready market'' if: (1) three or
more market makers quote its prices through the so-called ``pink
sheets,'' and (2) the broker-dealer can show the existence of bona fide
inter-dealer trades within five business days before or after the date
of valuation that are of sufficient volume to justify a reasonable
belief that the price used would support the liquidation of the entire
position at or near that price.
This proposal would make 1700 NASDAQ stocks, as many as 5400 stocks
quoted on the NASD's electronic bulletin board, and an unknown number
of additional ``pink sheet'' stocks eligible for broker-dealer credit
for the first time. Some of these stocks are thinly traded when
compared to currently marginable stocks, including those that qualify
as OTC margin stocks. The Board seeks comment on whether such stocks
should be eligible to serve as collateral for securities credit.
The Board particularly seeks comment on whether an expansion in the
number of OTC margin stocks should be made only for purposes of
Regulation T, or for purposes of Regulations G and U as well. Although
all the Board's margin regulations currently contain a common
definition of ``OTC margin stock,'' this common definition does not
result in common treatment of all lenders. Under Regulation T, a
broker-dealer is prohibited from lending on any domestic stock that
does not qualify as an OTC margin stock; conversely, a bank or other
lender is unregulated by Regulations U and G when it lends on any stock
that does not qualify as an OTC margin stock. Thus, qualification of a
stock as an OTC margin stock increases its loan value under Regulation
T from zero to 50 percent, but subjects it for the first time to
coverage by Regulations G and U and thereby decreases its loan value to
the extent that banks and other lenders had previously been willing to
give the stock loan value of greater than 50 percent. Conversely,
disqualification of a stock as an OTC margin stock eliminates its loan
value under Regulation T and thereby prevents broker-dealers from
lending on it, but eliminates its coverage by Regulations G and U and
allows banks and other lenders to lend as much as they deem
appropriate.
Thus, using the ready market definition for purposes of Regulations
G and U would impose burdens on banks and other lenders. Use of the
definition would limit the amount of credit that banks could extend on
thousands of additional stocks and would also require banks to obtain a
``purpose statement'' (FR U-1) whenever they lend more than $100,000 on
those stocks. In addition, it would no longer be possible for the Board
to publish a complete ``List of Marginable OTC
[[Page 20403]]
Stocks'' (OTC List), as the stocks that met the SEC's ready market test
would be ever changing and outside the Board's control. Banks therefore
would be responsible for determining on their own whether a given OTC
equity security was subject to Regulation U. The burden imposed on
Regulation G lenders would be similar.8 In addition, the number of
lenders potentially covered by Regulation G would expand to include as
many as 6600 additional companies to the extent that those companies
extended credit to their employees secured with company stock.9
Although the Board currently alerts companies with OTC margin stock to
the possibility of registration under Regulation G, elimination of the
OTC list would prevent the Board from continuing this practice.
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\8\ Regulation G does not contain a paperwork exemption for
loans of $100,000 or less, so all loans secured by these new OTC
margin stocks would require a ``purpose statement'' (Form FR G-3).
\9\ Companies that extend credit to employers in connection with
an employee benefit plan adopted by the company and approved by its
stockholders are not subject to the 50 percent requirement normally
imposed on loans secured by margin stock. 12 CFR 207.5. However,
these companies must register with the Federal Reserve and provide
annual reports of their securities credit activities.
---------------------------------------------------------------------------
Accordingly, the Board is seeking comment on possible solutions to
the disparate treatment of broker-dealers and other lenders, and the
resulting increase in burden for one group whenever burden is reduced
for the other. The Board seeks comment on whether it should establish
separate regimes for determining coverage by Regulation T on the one
hand, and Regulations G and U on the other; for example, any domestic
stock that has a ready market for purposes of the SEC's net capital
rule might receive loan value under Regulation T, while only domestic
stocks that are listed on an exchange might be subject to Regulations G
and U.
8. Options Under Regulation U
On December 12, 1995, the Board published proposed amendments to
Regulation U, including one that concerned the treatment of exchange-
traded options. The proposal mirrored the treatment proposed by the
Board for broker-dealers under Regulation T. Specifically, the Board
proposed to allow the same 50 percent loan value for long positions in
exchange-traded options currently permitted for other exchange-traded
equity securities. Because the final rule under Regulation T ties the
loan value of these securities to the rules of the exchange authorized
to trade the option, the Board is proposing, as a matter of parity
between Regulations T and U, to amend Regulation U so that banks can
lend against exchange-traded options to the extent permitted by the
rules of the options exchanges. The Board seeks comment on the
practicality of requiring banks to comply with rules of SROs of which
they are not members.
9. Technical Amendments
The Board is also prescribing technical amendments to Regulation T
that are intended to streamline and rationalize the regulation without
altering its substance. The Board is proposing to add a definition of
``margin equity security,'' a term currently used but not defined in
the regulation. The Board is seeking comment on whether the definition
of ``covered option transaction'' can be shortened to include ``any
transaction eligible for the cash account under the rules of the
registered national securities exchange authorized to trade the option
or warrant or the creditor's examining authority in the case of an
unregistered option provided that all such rules have been approved or
amended by the SEC.'' This change could not take effect until the
provision in the final rule delegating authority over options to the
SROs became effective.
Regulatory Flexibility Act
The Board has concluded after reviewing the proposed regulation
that, if adopted, it would not impose a significant economic hardship
on small institutions. The proposal does not necessitate the
development of sophisticated recordkeeping or reporting systems by
small institutions; nor will small institutions need to seek out the
expertise of specialized accountants, lawyers, or managers in order to
comply with the regulation. The proposal is designed to reduce the
complexity and burden of Regulation T. The Board therefore certifies
pursuant to section 605b of the Regulatory Flexibility Act (5 U.S.C.
605b) that the proposal, if adopted, will not have a significantly
adverse economic impact on a substantial number of small entities
within the meaning of the Regulatory Flexibility Act (5 U.S.C. 601 et.
seq.).
Paperwork Reduction Act
In accordance with section 3506 of the Paperwork Reduction Act of
1995 (44 U.S.C. Ch. 35; 5 CFR 1320 Appendix A.1), the Board reviewed
the proposed rule under the authority delegated to the Board by the
Office of Management and Budget. Comments on the collections of
information should be sent to the Office of Management and Budget,
Paperwork Reduction Projects 7100-0001 (or 7100-0004), Washington, DC
20503, with copies of such comments to be sent to Mary M. McLaughlin,
Federal Reserve Board Clearance Officer, Division of Research and
Statistics, Mail Stop 97, Board of Governors of the Federal Reserve
System, Washington, DC 20551.
The collection of information implications of the proposal to amend
this regulation are found in 12 CFR part 220. This information is
required to evidence compliance with the requirements of the Securities
Exchange Act of 1934 (15 U.S.C. 78g). The respondents are for-profit
financial institutions (7100-0001) and public corporations (7100-0004).
Implications for Reporting
The proposal to change the definition of ``OTC margin stock by
allowing a broker-dealer to extend credit on any stock traded on a
national securities exchange, quoted on NASDAQ, or otherwise having a
`ready market' * * *'' could lead to an increase in the number of
respondents for the OTC Margin Stock Report (FR 2048; OMB No. 7100-
0004) because of the increase in the number of firms whose stock would
be marginable. The burden per response of 0.25 hours would not change.
However, if it is decided that the stock of any firm listed on the NASD
SmallCap market is automatically marginable, as currently is the case
for the stocks of firms listed on the NASD National Market System, the
FR 2048 could be eliminated. Currently, the FR 2048 is filed by
approximately 75 respondents each quarter. The current annual burden of
the FR 2048 is estimated to be 75 hours. Based on an hourly cost of
$20, the annual cost to the public is estimated to be $1,500.
The Federal Reserve may not conduct or sponsor, and an organization
is not required to respond to, an information collection unless it
displays a currently valid OMB control number.
Comments are invited on: (a) whether the proposed amendments to
this collection of information are necessary for the proper performance
of the Federal Reserve's functions; including whether the information
has practical utility; (b) the accuracy of the Federal Reserve's
estimate of the burden of the proposed information collection,
including the cost of compliance; (c) ways to enhance the quality,
utility, and clarity of the information to be collected; and (d) ways
to minimize the burden of information collection on respondents,
including through the use of automated collection techniques or other
forms of information technology.
[[Page 20404]]
List of Subjects
12 CFR Part 207
Banks, banking, Credit, Federal Reserve System, Reporting and
recordkeeping requirements, Securities.
12 CFR Parts 220 and 221
Banks, banking, Bonds, Brokers, Credit, Federal Reserve System,
Margin, Margin requirements, Investment companies, Investments,
Reporting and recordkeeping requirements, Securities.
For the reasons set out in the preamble, the Board proposes to
amend 12 CFR Part 220 as follows:
PART 220--CREDIT BY BROKERS AND DEALERS (REGULATION T)
1. The authority citation for Part 220 continues to read as
follows:
Authority: 15 U.S.C. 78c, 78g, 78h, 78q, and 78w.
2. Section 220.2 is amended as follows:
a. By adding a new definition of Margin equity security in
alphabetical order;
b. By revising paragraph (3) in the definition of Margin security;
c. By adding a new definition of Non-equity security in
alphabetical order;
d. By removing the definition of OTC margin bond.
The additions and revisions read as follows:
Sec. 220.2 Definitions.
* * * * *
Margin equity security means a margin security that is an equity
security (as defined in section 3(a)(11) of the Act.).
* * * * *
Margin security * * *
(3) Any non-equity security;
* * * * *
Non-equity security means a security that is not an equity security
(as defined in section 3(a)(11) of the Act).
* * * * *
3. Section 220.3(b) is revised to read as follows:
Sec. 220.3 General provisions.
* * * * *
(b) Separation of accounts--(1) In general. The requirements of one
account may not be met by considering items in another account. If
withdrawals of cash or securities are permitted under the regulation,
written entries shall be made when cash or securities are used for
purposes of meeting requirements in another account.
(2) Exceptions. Notwithstanding paragraph (b) (1) of this section--
(i) For purposes of calculating the required margin for a security
in the non-equity account or margin account, assets described in
Sec. 220.9(a) (1) or (2) may serve in lieu of margin;
(ii) Transfers may be effected between the margin account and the
special memorandum account pursuant to Secs. 220.4 and 220.5.
* * * * *
4. Section 220.4(b)(1) is revised to read as follows:
Sec. 220.4 Margin account.
* * * * *
(b) Required margin--(1) Applicability. The required margin for
long or short positions in securities is set forth in Sec. 220.18 (the
Supplement) and is subject to the following exceptions and special
provisions.
* * * * *
5. The text of Sec. 220.13 is redesignated as paragraph (j) of
Sec. 220.3, the section heading of Sec. 220.13 is redesignated as the
heading of newly designated paragraph (j) of Sec. 220.3, and
Sec. 220.13 is removed.
6. New section 220.13 is added to read as follows:
Sec. 220.13 Non-equity account.
(a) Permissible transactions. In a non-equity account, a creditor
may effect and finance any transaction involving any non-equity
security. No transaction or withdrawal shall be allowed if it would
cause the account to liquidate to a deficit.
(b) Required margin. The required margin for transactions effected
in the non-equity account is set forth in Sec. 220.18 (the Supplement).
7. Section 220.16 is amended by revising the second sentence of
paragraph (a) and the last sentence of paragraph (b) to read as
follows:
Sec. 220.16 Borrowing and lending securities.
Option 1 for Paragraph (a)
(a) * * * Each borrowing shall be secured by a deposit of one or
more of the following: cash, cash equivalents, foreign sovereign
nonconvertible debt securities that are margin securities, collateral
acceptable for borrowings of securities pursuant to SEC Rule 15c3-3 (17
CFR 240.15c3-3), irrevocable letters of credit issued by a bank insured
by the Federal Deposit Insurance Corporation or a foreign bank that has
filed an agreement with the Board on Form FR T-1, T-2, or any margin
security, valued at its loan value.* * *
Option 2 for Paragraph (a)
(a) * * * Each borrowing shall be secured by a bona fide deposit of
collateral equal to at least 100 percent of the market value of the
securities borrowed.* * *
(b) * * * Each borrowing shall be secured by a bona fide deposit of
collateral equal to at least 100 percent of the market value of the
securities borrowed.
8. Section 220.18 is amended by revising the introductory text and
paragraphs (b) through (d) to read as follows:
Sec. 220.18 Supplement: Margin requirements.
The required margin for positions held in a margin account shall be
as follows:
* * * * *
(b) Exempted security, non-equity security, money market mutual
fund, or exempted securities mutual fund: the margin required by the
creditor in good faith or the percentage set by the regulatory
authority where the trade occurs, whichever is greater.
(c) Short sale of a nonexempted security, except for a non-equity
security: 150 percent of the current market value of the security, or
100 percent of the current market value if a security exchangeable or
convertible within 90 calendar days without restriction other than the
payment of money into the security sold short is held in the account.
(d) Short sale of an exempted security or non-equity security: 100
percent of the current market value of the security plus the margin
required by the creditor in good faith.
* * * * *
By order of the Board of Governors of the Federal Reserve
System, April 24, 1996.
William W. Wiles,
Secretary of the Board.
[FR Doc. 96-10608 Filed 5-3-96; 8:45 am]
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