issue-1995-10-30•Federal Register proposed rules — 1995-10-30
Federal Register proposed rules — 1995-10-30
issue-1995-10-30Federal Register proposed rules — 1995-10-30Proposed Regulation
Published Federal Register documents, not public-inspection drafts. The GPO XML/text rendition is a research aid; the linked complete official PDF retains the printed layout and all graphics. Graphics are retained in that PDF and are not independently reproduced in this text rendition. Publication does not establish that every provision remains legally in force.
FR Doc. 95-26884 Authority of the Federal Crop Insurance Corporation To Require Employer Identification Numbers From Policyholders and Reinsured Companies for Purposes of the Federal Crop Insurance Act
[Federal Register Volume 60, Number 209 (Monday, October 30, 1995)]
[Proposed Rules]
[Page 55228]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-26884]
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DEPARTMENT OF THE TREASURY
Internal Revenue Service
26 CFR Part 301
[IA-4-92]
RIN 1545-AQ49
Authority of the Federal Crop Insurance Corporation To Require
Employer Identification Numbers From Policyholders and Reinsured
Companies for Purposes of the Federal Crop Insurance Act
AGENCY: Internal Revenue Service (IRS), Treasury.
ACTION: Withdrawal of notice of proposed rulemaking.
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SUMMARY: This document withdraws the notice of proposed rulemaking
published in the Federal Register on August 31, 1992, that relates to
the authority of the Federal Crop Insurance Corporation (FCIC) to
require policyholders and reinsured companies to furnish employer
identification numbers for purposes of administering the Federal Crop
Insurance Act.
FOR FURTHER INFORMATION CONTACT: Beverly A. Baughman (202) 622-4940
(not a toll-free number).
SUPPLEMENTARY INFORMATION:
Background
On August 31, 1992, the IRS published proposed regulations (IA-4-
92) in the Federal Register (57 FR 39379) under section 6109 of the
Internal Revenue Code, relating to the authority of the FCIC to collect
employer identification numbers. Although written comments and requests
for a public hearing were solicited, no written or oral comments were
received and no public hearing was requested or held. Because the
proposed regulations merely restate the rules in section 6109, the IRS
has decided, in the interest of simplification, to withdraw those
proposed regulations.
List of Subjects in 26 CFR Part 301
Employment taxes, Estate taxes, Excise taxes, Gift taxes, Income
taxes, Penalties, Reporting and recordkeeping requirements.
Withdrawal of Notice of Proposed Rulemaking
Accordingly, under the authority of 26 U.S.C. 7805, the notice of
proposed rulemaking that was published in the Federal Register on
August 31, 1992, (57 FR 39379) is withdrawn.
Margaret Milner Richardson,
Commissioner of Internal Revenue.
[FR Doc. 95-26884 Filed 10-27-95; 8:45 am]
BILLING CODE 4830-01-U
Complete official Federal Register PDF
FR Doc. 95-26856 Clean Air Act Proposed Interim Approval of Operating Permits Program; Maryland
[Federal Register Volume 60, Number 209 (Monday, October 30, 1995)]
[Proposed Rules]
[Pages 55231-55237]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-26856]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[AD-FRL-5321-9]
Clean Air Act Proposed Interim Approval of Operating Permits
Program; Maryland
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed interim approval.
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SUMMARY: The EPA proposes interim approval of the operating permits
program submitted by Maryland. This program was submitted by Maryland
for the purpose of complying with federal requirements which mandated
that states develop, and submit to EPA, programs for issuing operating
permits to all major stationary sources, and to certain other sources.
DATES: Comments on this proposed action must be received in writing by
November 29, 1995.
ADDRESSES: Comments should be addressed to Enid Gerena, (3AT23), Air,
Radiation and Toxics Division, U.S. Environmental Protection Agency,
Region III, 841 Chestnut Building, Philadelphia, PA 19107.
Copies of Maryland's submittal and other supporting information
used in developing the proposed interim approval are available for
inspection during normal business hours at the following location: Air,
Radiation, and
[[Page 55232]]
Toxics Division, U.S. Environmental Protection Agency, Region III, 841
Chestnut Building, Philadelphia, Pennsylvania 19107.
FOR FURTHER INFORMATION CONTACT: Enid A. Gerena (3AT23), Air,
Radiation, and Toxics Division, U.S. Environmental Protection Agency,
Region III, 841 Chestnut Building, Philadelphia, PA 19107, (215) 597-
8239.
SUPPLEMENTARY INFORMATION:
I. Background
A. Introduction
As required under Title V of the Clean Air Act (CAA) as amended
(1990), EPA has promulgated rules which define the minimum elements of
an approvable state operating permits program and the corresponding
standards and procedures by which EPA will approve, oversee, and
withdraw approval of state operating permits programs (see 57 FR 32250
(July 21, 1992)). These rules are codified at 40 Code of Federal
Regulations (CFR) Part 70 and require states to develop, and submit to
EPA, programs for issuing these operating permits to all major
stationary sources and to certain other sources. Due to pending
litigation over several aspects of the Part 70 rule which was
promulgated on July 21, 1992, Part 70 is in the process of being
revised. When the final revisions to Part 70 are promulgated, the
requirements of the revised Part 70 will define EPA's criteria for the
minimum elements of an approvable state operating permits program and
the corresponding standards and procedures by which EPA will approve,
oversee, and withdraw approval of state operating permits program
submittals. Until the date which the revisions to Part 70 are
promulgated, the currently effective July 21, 1992 version of Part 70
shall be used as the basis for EPA review.
B. Federal Oversight and Sanctions
The CAA requires that states develop and submit these programs to
EPA by November 15, 1993, and that EPA act to approve or disapprove
each program within 1 year after receiving the submittal. EPA's program
review occurs pursuant to section 502 of the CAA and the July 21, 1992
version of Part 70, which together outline the currently applicable
criteria for approval or disapproval. Where a program substantially,
but not fully, meets the requirements of Part 70, EPA may grant the
program interim approval for a period of up to 2 years. If EPA has not
fully approved a program by 2 years after the November 15, 1993 date,
or by the end of an interim program, EPA must establish and implement a
federal operating permits program.
Following final interim approval, if the State of Maryland fails to
submit a complete corrective program for full approval by 6 months
before the interim approval expires, EPA would start an 18-month clock
for mandatory sanctions. If Maryland then failed to submit a complete
corrective program that EPA found complete before the expiration of
that 18-month period, EPA would be required to apply one of the
sanctions in section 179(b) of the CAA. Such sanction would remain in
effect until EPA determined that Maryland had corrected the deficiency
by submitting a complete corrective program. Moreover, if the
Administrator found a lack of good faith on the part of Maryland, both
sanctions under section 179(b) would apply after the expiration of the
18-month period until the Administrator determined that Maryland had
come into compliance. In any case, if, six months after application of
the first sanction, Maryland still had not submitted a corrective
program that EPA found complete, a second sanction would be required.
If, following final interim approval, EPA disapproved Maryland's
complete corrective program, EPA would be required to apply one of the
section 179(b) sanctions on the date 18 months after the effective date
of the disapproval, unless prior to that date Maryland had submitted a
revised program and EPA had determined that this program corrected the
deficiencies that prompted the disapproval. Moreover, if the
Administrator found a lack of good faith on the part of Maryland, both
sanctions under section 179(b) would apply after the expiration of the
18-month period until the Administrator determined that Maryland had
come into compliance. In all cases, if, six months after EPA applied
the first sanction, Maryland had not submitted a revised program that
EPA had determined corrected the deficiencies that prompted the
disapproval, a second sanction would be required.
In addition, discretionary sanctions may be applied where warranted
any time after the end of an interim approval period if Maryland has
not timely submitted a complete corrective program or EPA has
disapproved a submitted corrective program. Moreover, if EPA has not
granted full approval to a Maryland program by the expiration of an
interim approval period, EPA must promulgate, administer and enforce a
federal operating permits program for Maryland upon the date the
interim approval period expires.
C. State of Maryland's Submittal
On May 9, 1995, Maryland submitted an operating permits program for
review by EPA. The submittal was supplemented by additional materials
on June 9, 1995, and was found to be administratively complete pursuant
to 40 CFR 70.4(e)(1). The submittal includes the following components:
transmittal letter; description of Maryland's Title V operating permits
program; state regulations; Attorney General's legal opinion; workload
analysis, permit fee demonstration; permitting program documentation,
and additional information (i.e., transition plan, data management,
compliance tracking and enforcement description).
II. Summary and Analysis of Maryland's Submittal
The analysis contained in this notice focuses on the major portions
of Maryland's operating permits program submittal: regulations and
program implementation, fees, support materials, and provisions
implementing the requirements of Titles III and IV of the CAA.
Specifically, this notice addresses the deficiencies in Maryland's
submittal which will need to be corrected to fully meet the
requirements of the July 21, 1992 version of Part 70. These
deficiencies as well as other issues related to Maryland's operating
permits program are discussed in detail in the Technical Support
Document (TSD). The full program submittal and the TSD are available
for review as part of the public docket. The docket may be viewed
during regular business hours at the EPA Region III office listed in
the ADDRESSES section of this notice.
A. Regulations and Program Implementation
Maryland's operating permits program is primarily defined by
regulations adopted as Code of Maryland Regulations (COMAR), Title 26,
Subtitle 11. The specific regulations being adopted to implement the
Part 70 requirements will appear at COMAR Sec. 26.11.02 (Permits,
Approvals, and Registration) and COMAR Sec. 26.11.03 (Permits,
Approvals, and Registration--Part 70 Permits). Provisions for
enforcement authority are located in COMAR Sec. 26.11.02.05. Maryland
submitted a list identifying ``Title V'' and ``Non-Title V'' provisions
of its regulations. This list is provided in the TSD. In today's
proposal, EPA is taking action only on the Title V portions of
Maryland's submittal.
[[Page 55233]]
During the review of Maryland's regulations, EPA identified several
instances of vague language, misreferences, typographical errors, and
errors of omission in the regulatory language. The provisions in which
these errors occur are identified in the TSD and must be interpreted as
if written correctly to fully meet the requirements of Part 70. The
following analysis of Maryland's operating permit regulations
corresponds directly with the format and structure of Part 70.
Section 70.4 State Program Submittals and Transition
Maryland's regulations substantially meet the requirements of 40
CFR 70.4 for the State program submittal. For consistency with section
502(b)(6) of the Clean Air Act and 40 CFR 70.4(b)(3)(x), Maryland must
address the following issue on standing for judicial review and the
following changes must be made in order to fully meet the requirements
of 40 CFR 70.4:
1. The Attorney General of Maryland, in his opinion dated June 9,
1995, states that ``the laws of Maryland provide adequate authority to
carry out the program submitted on May 9, 1995 by the Maryland
Department of the Environment (the Department) to the U.S Environmental
Protection Agency for approval to administer and enforce the operating
permit program under Title V of the CAA and 40 CFR Part 70 (the Part 70
program).'' Section 502(b)(6) of the CAA and 40 CFR 70.4(b)(3)(x)
require that the program provide standing for judicial review of a
permit action to THE PERMIT APPLICANT, any person who participated in
the public comment process and any other person who could obtain
judicial review of that action under applicable law. EPA interprets
section 502(b)(6) of the CAA and part 70 as requiring that approvable
state title V permits programs must provide judicial review to any
party who participated in the public comment process and who meets the
threshold requirements of Article III of the U.S. Constitution for
standing in federal courts.
The Attorney General cites the Maryland Environmental Standing Act
(MESA), Md. Nat. Res. Code Ann. Secs. 1-501 to 1-508 (1990), as the
primary avenue for third parties to obtain judicial review of the
Department's issuance of a Part 70 permit. The Attorney General
interprets MESA to provide standing to challenge permit issuance in
actions for mandamus or equitable relief (including declaratory relief)
to several categories of persons. Those categories are: (1) The state,
(2) any political subdivision of the state, and (3) any other person,
regardless of whether that person possesses a special interest
different from that possessed generally by the residents of Maryland or
whether substantial personal or property damage to that person is
threatened. The Attorney General recognizes that MESA does not provide
standing for a direct judicial review of permit actions under
Maryland's Administrative Procedure Act (APA), Md. State Gov't Code
Ann. Sec. 10-201 (1990). Nonetheless, it appears that review of
essentially equivalent scope as direct judicial review is available
under MESA. The Attorney General notes that the Maryland Supreme Court
has stated that an administrative proceeding such as permit issuance or
denial, even if not subject to direct review under the APA, would be
subject to judicial review of essentially the same scope in an action
for mandamus or equitable relief (including certiorari, injunction, or
declaratory judgment).
For purposes of MESA, the term ``person'' includes any resident of
Maryland, any Maryland corporation, and any partnership, organization,
association or legal entity doing business in the state. Parties not
falling within this definition of ``person'' (for example, individuals
living in an adjacent state but near a Maryland source, or an
organization not doing business in Maryland) can not take advantage of
the standing provisions of MESA. Instead, those parties are required to
establish standing for judicial review under the Maryland common law of
standing. Under Maryland common law, in order to establish standing, a
party must demonstrate it has a ``specific interest or property right''
such that the party will suffer harm that is different in kind from
that suffered by the general public. There are no reported cases in
Maryland that would preclude a non-economic interest (such as a
recreational, conservational or aesthetic interest) from constituting
the type of specific interest needed for standing. If a Maryland
judicial decision having precedential effect is issued in the future
limiting the special interest required for standing to economic
interests, then the Maryland standing requirements would become more
stringent than Article III standing requirements. In that event, EPA
will take appropriate action under 40 CFR 70.11(c).
With respect to organizations not doing business in Maryland, the
Maryland standing requirements are somewhat less favorable than the
standing requirements of Article III of the U.S. Constitution. The
federal courts interpret Article III to provide standing for
organizations in actions brought to protect the interests of its
members, provided certain conditions are met. See Chesapeake Bay
Foundation v. Bethlehem Steel Corp., 608 F.Supp. 440 (D. Md. 1985).
Under Maryland common law of standing, an organization must have an
interest of its own, separate and distinct from that of its individual
members, in order to establish standing. Medical Waste Associates, Inc.
v. Maryland Waste Coalition, 327 Md. 596 (1992). However, the Maryland
Attorney General notes that if at least one plaintiff in an action for
review of a permit establishes standing, the Maryland courts will not
ordinarily inquire as to whether other plaintiffs have standing.
Therefore, an organization doing business outside of Maryland may be
able to participate in a permit challenge on behalf of its individual
members if other parties having the requisite standing also join as
plaintiffs in the action. (Of course, organizations doing business in
Maryland can establish standing under MESA, as discussed above.)
MESA must be amended to accord non-state residents and
organizations not doing business in Maryland the same standing to
challenge Part 70 permit decisions as other ``persons'' as defined in
MESA, or, in the alternative, other appropriate legislative action must
be taken to ensure that standing requirements for such organizations
are not more restrictive than the minimum requirements of Article III
of the U.S. Constitution as they apply to federal courts. A
straightforward approach Maryland could take to resolving this issue
would be to amend its state APA to directly provide for the opportunity
for judicial review of permit actions in state court, consistent with
CAA section 502(b)(6) and 40 CFR 70.4(b)(3)(x); this would avoid the
risk of any future Maryland judicial decision interpreting MESA or
Maryland's common law of standing potentially compromising Maryland's
Part 70 approval status.
Section 70.5 Permit Applications
Maryland's regulations substantially meet the requirements of 40
CFR 70.5 for permit applications. The following changes must be made in
order to fully meet the requirements of 40 CFR 70.5:
1. COMAR Sec. 26.11.03.04 lists 17 types of emission units and
activities that are exempt from being included in the Part 70 permit
application. 40 CFR 70.5(c) allows EPA to approve a list of
insignificant activities or emissions levels which need not be included
in permit applications; however, the State must identify such emissions
levels or
[[Page 55234]]
insignificant activities based on size, emission rate or production
rate. Maryland must make three changes to COMAR Sec. 26.11.03.04 in
order to meet the requirements of 40 CFR 70.5(c):
a. As part of the list of emission units and activities exempt from
the Part 70 permit application, COMAR Sec. 26.11.03.04 A(18) lists
``any other emission unit that is not subject to an applicable
requirement of the Clean Air Act.'' Part 70 does not allow such a broad
exemption of emission units from the permit application requirements.
40 CFR 70.5(c)(3)(i) requires that a permit application describe all
emissions of regulated air pollutants from any emissions unit, except
where such units are exempted as part of a list of insignificant
activities or emission levels. Insignificant activities or emissions
levels must be clearly identified and established based on a
justifiable limitation, such as a size or emissions threshold.
b. Maryland must revise COMAR Sec. 26.11.03.04 B to provide that a
permit applicant shall not omit information needed to determine the
applicability of, or to impose, any applicable requirement, consistent
with 40 CFR 70.5(c).
c. Maryland must revise COMAR Sec. 26.11.03.04 A(2) to clarify the
exemption for boilers used exclusively to operate steam engines for
farm and domestic use. This exemption must be modified to impose a
justifiable and objective emission limit, heat content limit, or size
limitation to restrict this exemption to insignificant activities.
Maryland must also provide enough information to identify the activity
and/or unit qualifying for an exemption.
Section 70.7 Permit Issuance, Renewal, Reopenings, and Revisions
Maryland's regulations substantially meet the requirements of 40
CFR 70.7 for permit issuance, renewal, reopenings, and revisions. The
following changes must be made in order to fully meet the requirements
of 40 CFR 70.7:
1. COMAR Sec. 26.11.03.21 A provides that general permits will be
issued after notice and opportunity for public comment and hearing as
required by the rule making provisions of the Administrative Procedure
Act (APA), State Government Article Sec. 10-101 et seq., Annotated Code
of Maryland, and Environmental Article Sec. 2-301, Annotated Code of
Maryland. While the APA and Sec. 2-301 and Sec. 2-303 of the
Environmental Article provide adequate public notice and comment
provisions, they do not provide all necessary permit issuance
procedures required by 40 CFR 70.7(h). COMAR Sec. 26.11.03.21 A also
states that any general permit shall comply with all requirements
applicable to other Part 70 permits.
It is not clear, however, whether this provision applies to the
issuance of general permits. Maryland's provisions for issuance of Part
70 permits (COMAR Secs. 26.11.03.07-.09) are adequate, but the
regulations do not specifically state whether they apply to general
permits. Specifically, Maryland must require that the procedures for
issuing general permits include notice and opportunity for
participation by affected states consistent with 40 CFR 70.7(h)(3) and
70.8 (COMAR Sec. 26.11.03.08) and a 45-day EPA review period,
consistent with 70.8(a) and (c) (COMAR Sec. 26.11.03.09). Further,
Maryland must keep a record of public commenters and issues raised
during the public participation process so that EPA may fulfill its
obligation under section 505(b)(2) of the Act to determine whether a
citizen petition may be granted (COMAR Sec. 26.11.03.07(G)). EPA
recommends that Maryland clarify that these provisions apply to the
issuance of general permits by citing in COMAR Sec. 26.11.03.21 A the
appropriate sections of Maryland's regulations.
2. The procedures for revising a general permit under COMAR
Secs. 26.11.03.21 J and L must be changed to meet the requirements of
40 CFR 70.7(e) regarding permit revision procedures. COMAR
Sec. 26.11.03.21 J allows the Department to revise or repeal a general
permit using the procedures that are appropriate to the particular
permit. COMAR Sec. 26.11.03.21 L states that the revision procedures
set forth in Maryland's regulations do not apply to a general permit,
except as provided in the general permit. These sections are
inconsistent with Part 70 because they give the Department discretion
to determine the appropriate procedures that should be followed to
revise a general permit. Under 40 CFR 70.7(e)(1), the permitting
authority is required to provide procedures for permit modifications
that provide a level of public participation and review by the
permitting authority, EPA and affected states that is at least equal to
that provided in Part 70. Therefore, if the Department proposes a
significant change in the general permit's terms and conditions, such
as a relaxation of reporting requirements or an increase in the
applicable emissions limit, the general permit would need to be revised
according to procedures for a significant permit modification,
including a 30 day public comment period, an opportunity for a public
hearing, and review by EPA and affected states. Those proposed
revisions to the general permit that meet the criteria for
administrative permit amendments or minor permit modifications could be
processed using procedures consistent with 40 CFR 70.7(d) and
Sec. 70.7(e)(2), respectively. It should be made clear that the general
permit cannot be modified for individual sources; rather, each source
that applies for and is granted approval to operate under the general
permit must adhere to the same permit terms and conditions. If the
Department determines that a revision to the general permit is
necessary, it must revise the permit using procedures consistent with
40 CFR 70.7, as described above.
3. Maryland's requirements for permit reopenings, including COMAR
Secs. 26.11.03.07 A(2), 26.11.03.08 A and 26.11.03.20 C (4), (5) and
(6), provide the State discretion to follow procedures other than the
procedures for permit issuance. Maryland's COMAR Sec. 26.11.03.20 C(4)
states that ``the procedures that the Department specifies to be
followed if a permit is reopened shall be based on the Department's
determination as to what type of change to the permitted source is
likely to result from reopening the permit, using Regulations
[26.11.03] .14-.17 [pertaining to permit revisions] of this chapter as
guidance.'' By contrast, 40 CFR 70.7(f)(2) requires that procedures to
reopen and issue a permit shall follow the same procedures as apply to
initial permit issuance. Maryland's provisions for permit reopening
procedures are inconsistent with Part 70. However, future revisions to
Part 70 may provide flexibility in the procedures that States must use
to reopen permits. On August 31, 1995, EPA proposed revisions to Part
70 that would streamline the procedures for revising Title V operating
permits. (See 60 FR 45530.)
4. COMAR Sec. 26.11.03.17 F provides that a permittee shall submit
an application for a significant permit modification not later than 12
months after commencing operation of the changed source unless the
change is prohibited by the Part 70 permit. This provision is
inconsistent with 40 CFR 70.7(e)(4), which does not allow a source to
make a significant permit modification prior to receiving a revised
permit from the permitting authority. A significant permit modification
is a change that does not qualify as an administrative permit amendment
or a minor permit modification. Significant modifications include
relaxations in monitoring, reporting, or recordkeeping. By allowing a
source to submit its permit application 12 months after making a
change, COMAR Sec. 26.11.03.17
[[Page 55235]]
F is less stringent than 40 CFR 70.7(e)(4) and allows a source even
more leniency in making a significant change than for making minor
permit modifications or administrative permit amendments. This is
clearly not the intent of the significant permit modification
provisions of 40 CFR 70.7(e)(4). Future revisions to Part 70, as
described above, may provide flexibility in the procedures that States
must use to process permit revisions.
5. COMAR Sec. 26.11.03.14 C allows the Department to approve
changes to compliance plans or schedules as part of an administrative
permit amendment or minor permit modification. This provision is less
stringent than 40 CFR 70.7 because the relaxation of a compliance plan
or schedule is a significant change that should be processed as a
significant permit modification. Future revisions to Part 70, as
described above, may provide flexibility in the procedures that States
must use to revise permits.
6. COMAR Sec. 26.11.03.15 B(7) contains the following sentence:
``Notwithstanding Sec. [26.11.03.15] B(1)-(6) [pertaining to
administrative permit amendments] of this regulation, for purposes of
the acid rain portion of a Part 70 permit is governed by regulations
promulgated under Title IV of the Clean Air Act.'' This sentence
apparently was written in error. EPA assumes that this sentence is
meant to reflect the provisions of 40 CFR 70.7(e), which states that a
permit modification (other than an administrative permit amendment) for
purposes of the acid rain portion of the permit shall be governed by
regulations promulgated under Title IV of the Clean Air Act. Maryland
must correct the wording of COMAR Sec. 26.11.03.15 B(7).
Section 70.8 Permit Review By EPA and Affected States
Maryland's regulations substantially meet the requirements of 40
CFR 70.8 for permit review by EPA and affected states. The following
changes must be made in order to fully meet the requirements of 40 CFR
70.8:
1. COMAR Sec. 26.11.03 appears to allow the Department to make
changes in a final permit after EPA has completed its review of the
permit. For example, COMAR Sec. 26.11.03.11 includes provisions for
implementing changes to a final permit subsequent to a contested case
hearing and the issuance of a proposed decision by an Administrative
Law Judge (ALJ). On the basis of past experience with other air quality
control programs, Maryland believes that it will be an extremely rare
occasion when an applicant seeks such a hearing. In the event that such
proceeding does occur, COMAR Sec. 26.11.03.11 affords EPA the
opportunity to participate in the hearing. In the event that EPA does
not participate, COMAR Sec. 26.11.03.11 affords EPA a thirty (30) day
opportunity to comment on the proposed decision of the ALJ prior to the
Department's issuance of a final decision in the matter. However, in
the event that the Department thereafter issues a final decision which
modifies or changes conditions in the final permit, federal and state
requirements (the Clean Air Act, 40 CFR 70.8 and COMAR
Sec. 26.11.03.09) should be read as requiring the Department to provide
EPA with an additional (45 day) period in which to review and comment
on the final permit. Maryland must revise its Attorney General's
Opinion to acknowledge that in the event the Department implements
changes to any final permit, EPA will have an additional (45 day)
period to review and comment on the final permit, as revised by the
Department.
B. Variances
Maryland Environmental Article sections 2-501, 606, 610(c), 611,
and 613 are cited by the Department as variance provisions which
authorize the Department to deviate from certain applicable
requirements within and outside the permitting process. EPA has no
authority to approve provisions of State law, such as the variance
provisions referred to in these sections, which are inconsistent with
the CAA. EPA does not recognize the ability of a permitting authority
to grant relief from the duty to comply with a federally enforceable
Part 70 permit, except where such relief is granted through procedures
allowed by Part 70. EPA reserves the right to enforce the terms of the
Part 70 permit where the permitting authority purports to grant relief
from the duty to comply with a Part 70 permit in a manner inconsistent
with Part 70 procedures.
C. Permit Fee Demonstration
COMAR Sec. 26.11.02.19(A) states that owners or operators of Part
70 sources will be required to pay an annual fee consisting of a base
fee of two hundred dollars ($200) plus an emissions-based fee for each
ton of regulated emissions. Beginning in January 1, 1996, the fee rate
will be twenty-five dollars per ton ($25) of regulated emissions. On
January 1, 1997, this annual fee will be adjusted by the Consumer Price
Index (CPI). Fee revenues received from Part 70 facilities will be
placed in a segregated portion of the Department's Air and Radiation
Management Administration budget. Surplus funds from any prior year of
the program will be carried over to the following year to be used
solely for Part 70 permitting activity.
Only program-related fees from facilities subject to Part 70
applicability will be used to fund the program. Maryland's fee
calculation, based upon recent (September 1994) emissions inventory
data, shows that revenues will be able to cover the estimated costs of
the program. In chapter IV of the submittal entitled, ``Workload
Analysis and Fee Demonstration'', Maryland estimates revenues and costs
associated with the implementation of its operating permits program.
The Air and Radiation Management Administration proposes an accounting
method whereby Part 70 program activities performed by technical
personnel in the Air Quality Permits and Compliance Program will be
coded directly to specified Part 70 program cost accounts. In the
submittal, Maryland stated that in the event of a temporary shortfall
of revenues, the Department will have the option to prorate fees
collected from facilities with Phase I units (acid rain) so as to allow
fees from non-Phase I units at these sites to be used for Part 70
activities. According to 40 CFR 70.9(b)(3), the permitting authority is
allowed to calculate fees on any particular basis or in the same manner
for all Part 70 sources, or all regulated air pollutants, provided that
the state collects a total amount of fees sufficient to meet the
program. Maryland meets the requirements of 40 CFR 70.9(b)(3). However,
it will be necessary for the State to demonstrate how these revenues
will be prorated. EPA recommends that Maryland establish an account
tracking system that will distinguish between revenues and expenditures
attributable to Phase I from non-Phase I units. The estimates of
revenues from the authorized collection of emission-based fees reveal
that Maryland's program will have adequate funding to cover the direct
and indirect costs of implementing the permit program during each of
the first four years.
D. Provisions Implementing the Requirements of Title III Implementing
Title III Standards Through Title V Permits
Maryland's regulations provide general authority to administer and
enforce the requirements of the Clean Air Act regarding hazardous air
pollutants, and thus generally meet the requirements of 40 CFR 70.3
(a)-(b). The following issue must be addressed in order to fully meet
the requirements of 40 CFR 70.3 (a)-(b).
[[Page 55236]]
1. In its May 9, 1995 submittal, Maryland advised EPA that it was
not seeking full Part 70 program approval regarding hazardous air
pollutants, but was considering whether to request EPA approval of its
existing air toxics program (COMAR Sec. 26.11.15) under Subpart E of 40
CFR Part 63. As a result, the Attorney General did not review the
State's Part 70 program regarding current federal requirements for
hazardous air pollutants. Maryland must resolve the issue of how it
will address the CAA's section 112 applicable requirements and revise
its Attorney General's opinion to include a detailed review of the
State's Part 70 program regarding current federal requirements for
hazardous air pollutants.
Under Environment Article, Title 2, of the Annotated Code of
Maryland and COMAR Sec. 26.11.03.06 A(1), Maryland, in its Title V
program submittal, has demonstrated broad legal authority to
incorporate all applicable requirements into permits and to enforce its
permit requirements. In its May 9, 1995 submittal, Maryland indicated
that the Part 70 permits will be the mechanism to implement mandatory
Section 112 requirements and that other federally-enforceable
mechanisms may be used to carry out specific CAA section 112 activities
but only if approved by EPA. EPA regards this commitment as an
obligation to obtain further legal authority as needed to issue permits
that assure compliance with the CAA's section 112 applicable
requirements.
For a further discussion in support of this interpretation, please
refer to the TSD accompanying this rulemaking, which is located in the
public docket, and the April 13, 1993 guidance memorandum entitled
``Title V Program Approval Criteria for Section 112 Activities,''
signed by John Seitz, Director, Office of Air Quality Planning and
Standards, Office of Air and Radiation, USEPA.
Implementation of 112(g) Upon Program Approval
EPA is proposing to approve Maryland's operating permits program
for the purpose of implementing CAA section 112(g) during the
transition period between federal promulgation of a section 112(g) rule
and Maryland's adoption of section 112(g) implementing regulations.
Until recently, EPA had interpreted the CAA to require sources to
comply with section 112(g) beginning on the date of approval of the
Title V program regardless of whether EPA had completed its section
112(g) rulemaking. EPA has since revised this interpretation of the CAA
as described in a February 14, 1995 Federal Register notice (see 60 FR
83333). The revised interpretation postpones the effective date of
section 112(g) until after EPA has promulgated a rule addressing that
provision. The rationale for the revised interpretation is set forth in
detail in the February 14, 1995 interpretive notice.
The section 112(g) interpretive notice explains that EPA is still
considering whether the effective date of section 112(g) should be
delayed beyond the date of promulgation of the federal rule to allow
states time to adopt rules implementing the federal rule, and that EPA
will provide for any such additional delay in the final section 112(g)
rulemaking. Unless and until EPA provides for such an additional
postponement of section 112(g), Maryland must be able to implement
section 112(g) during the transition period between promulgation of the
federal section 112(g) rule and adoption of implementing Maryland
regulations.
EPA believes that, although Maryland currently lacks a program
designed specifically to implement section 112(g), Maryland's Title V
operating permits program will serve as an adequate implementation
vehicle during the transition period because the program will allow
Maryland to select control measures that would meet Maximum Achievable
Control Technology (MACT) on a case-by-case basis, as defined in
section 112, and incorporate these measures into federally enforceable
source-specific permits.
This proposed approval clarifies that Maryland's operating permits
program is available as a mechanism to implement section 112(g) during
the transition period between promulgation of the section 112(g) rule
and adoption by Maryland of rules established to implement section
112(g). EPA is proposing to limit the duration of this approval to an
outer limit of 18 months following EPA's promulgation of the section
112(g) rule. Comment is solicited on whether 18 months is an
appropriate period taking into consideration the State's procedures for
adoption of regulations. However, since this proposed approval is for
the single purpose of providing a mechanism to implement section 112(g)
during the transition period, the approval itself will be without
effect if EPA decides in the final section 112(g) rule that sources are
not subject to the requirements of the rule until State regulations are
adopted.
Although section 112(l) generally provides the authority for
approval of state air toxics programs, Title V and section 112(g)
provide authority for this limited approval because of the direct
linkage between implementation of section 112(g) and Title V.
If Maryland does not wish to implement section 112(g) through the
proposed mechanisms discussed above and can demonstrate that an
alternative means of implementing section 112(g) exists during the
transition period, EPA may, in the final action approving Maryland's
Part 70 program, approve such alternative.
Program for Straight Delegation of Section 112 Standards
As previously noted, Maryland has advised EPA that it currently is
not seeking full Part 70 program approval regarding hazardous air
pollutants, but is considering a request for approval of its existing
air toxics program (COMAR Sec. 26.11.15) under Subpart E of 40 CFR Part
63. However, prior to receiving EPA approval of its existing air toxics
program, Maryland must agree that the requirements specified in 40 CFR
70.4(b), encompass section 112(l)(5) requirements for a program for
delegation of unchanged section 112 standards. Section 112(l)(5)
requires state programs to contain adequate authorities and resources
for implementation, and an expeditious compliance schedule, which are
also requirements under Part 70. Prior to a decision by EPA regarding
approval of its existing air toxics program, EPA proposes to grant
approval under section 112(l)(5) and 40 CFR 63.91 of Maryland's program
for receiving delegation of section 112 standards that are unchanged
from the federal standards as promulgated. For EPA-promulgated rules
which are applicable to sources in the State, the State intends to
request delegation after adopting the rules. The details of this
delegation mechanism will be established prior to delegating any
section 112 standards. This program applies to both existing and future
standards but is limited to sources covered by the Part 70 program.
E. Title IV Provisions/Commitments
As part of the May 9, 1995 program submittal, Maryland committed to
submit all missing portions of the Title IV acid rain program by
November 15, 1995, including its State acid rain regulations.
III. Request for Public Comments
EPA is soliciting public comments on the issues discussed in this
notice or on other relevant matters. These comments will be considered
before taking final action. Interested parties may participate in this
federal rulemaking action by submitting written comments
[[Page 55237]]
to the EPA Regional office listed in the ADDRESSES section of this
notice.
Proposed Action
EPA is proposing to grant interim approval of the operating permits
program submitted by Maryland on May 9, 1995, and the Attorney
General's Legal Opinion submitted on June 9, 1995. The scope of
Maryland's Part 70 program applies to all Part 70 sources (as defined
in the program) within Maryland, except for sources of air pollution
over which an Indian Tribe has jurisdiction. See, e.g., 59 FR 55813,
55815-18 (Nov. 9, 1994). The term ``Indian Tribe'' is defined under the
CAA as ``any community, including any Alaska Native village, which is
federally recognized as eligible for the special programs and services
provided by the United States to Indians.'' See section 302(r) of the
CAA; see also 59 FR 43956, 43962 (Aug. 25. 1994); 58 FR 54364 (Oct. 21,
1993). Prior to full approval by EPA, Maryland must make the following
changes:
1. The Maryland Environmental Standing Act (MESA) must be amended
to accord non-state residents and organizations not doing business in
Maryland the same standing to challenge Part 70 permit decisions as
other ``persons'' as defined in MESA, or, in the alternative, other
appropriate legislative action must be taken to ensure that standing
requirements for such organizations are not more restrictive than the
minimum requirements of Article III of the U.S. Constitution as they
apply to federal courts.
2. Revise the provisions for insignificant activities under COMAR
Sec. 26.11.03.04 as follows, to achieve consistency with the
requirements of 40 CFR 70.5(c):
a. Remove the exemption for ``any other emission unit that is not
subject to an applicable requirement of the Clean Air Act'' under COMAR
Sec. 26.11.03.04 A(18).
b. Revise COMAR Sec. 26.11.03.04 B to provide that a permit
applicant shall not omit information needed to determine the
applicability of, or to impose, any applicable requirement.
c. Revise COMAR Sec. 26.11.03.04 A(2) to add a justifiable
limitation on the exemption for boilers used exclusively to operate
steam engines for farm and domestic use.
3. Revise COMAR Sec. 26.11.03.21 to clarify that the procedures for
issuing general permits must include affected state and EPA review, and
that the state must keep a record of the public commenters and issues
raised during the public participation process, consistent with 40 CFR
70.7(h) and 70.8.
4. Revise COMAR Secs. 26.11.03.21 J and L to require that general
permits are revised according to procedures consistent with 40 CFR
70.7(e).
5. Revise COMAR Secs. 26.11.03.07 A(2), 26.11.03.08 A, and
26.11.03.20 C (4), (5) and (6) to provide that the procedures for
initial permit issuance also must be followed for permit reopenings, to
achieve consistency with the requirements of 40 CFR 70.7(f)(2).
6. Remove subsection F of COMAR Sec. 26.11.03.17, which
impermissibly allows sources to submit a permit application within 12
months after making a significant permit modification.
7. Revise COMAR Sec. 26.11.03.14 C to require that any relaxation
of a compliance plan or schedule will be processed as a significant
permit modification, consistent with 40 CFR 70.7(e)(4).
8. Revise the wording of COMAR Sec. 26.11.03.15 B(7), pertaining to
permit modifications for acid rain permits, consistent with 40 CFR
70.7(e).
9. Amend the Attorney General's Opinion to clarify that if the
Department proposes to change a final permit as a result of a contested
case decision by an Administrative Law Judge and pursuant to COMAR
Sec. 26.11.03.11, the Department will revoke the final permit and
reissue it with the proposed changes so as to provide EPA with the (45
day) review and comment period required pursuant to the CAA, 40 CFR
70.8 and COMAR Sec. 26.11.03.09.
10. Revise the Attorney General's Opinion to include a detailed
review of the State's Part 70 program regarding current federal
requirements for hazardous air pollutants.
This interim approval, which may not be renewed, extends for a
period of up to 2 years. During the interim approval period, Maryland
is protected from sanctions for failure to have a fully approved Title
V, Part 70 program, and EPA is not obligated to promulgate a federal
permits program in Maryland. Permits issued under a program with
interim approval have full standing with respect to Part 70, and the 1-
year time period for submittal of permit applications by subject
sources begins upon interim approval, as does the 3-year time period
for processing the initial permit applications.
Requirements for approval, specified in 40 CFR 70.4(b), encompass
the CAA's section 112(l)(5) requirements for approval of a program for
delegation of section 112 standards applicable to Part 70 sources as
promulgated by EPA. Section 112(l)(5) requires that the State's program
contain adequate authorities, adequate resources for implementation,
and an expeditious compliance schedule, which are also requirements
under Part 70. Therefore, EPA is also proposing under section 112(l)(5)
and 40 CFR 63.91 to grant approval of Maryland's program for receiving
delegation of section 112 standards that are unchanged from federal
standards as promulgated. This program for delegations only applies to
sources covered by the Part 70 program.
The Office of Management and Budget has exempted this action from
Executive Order 12866 review.
EPA's actions under section 502 of the Act do not create any new
requirements, but simply address operating permits programs submitted
to satisfy the requirements of 40 CFR Part 70. Because this action to
propose interim approval of Maryland's operating permits program
pursuant to Title V of the CAA and 40 CFR Part 70 does not impose any
new requirements, it does not have a significant impact on a
substantial number of small entities.
List of Subjects in 40 CFR Part 70
Environmental protection, Administrative practice and procedure,
Air pollution control, Intergovernmental relations, Operating permits,
Reporting and recordkeeping requirements.
Authority: 42 U.S.C. 7401-7671q.
Dated: October 20, 1995.
W. Michael McCabe,
Regional Administrator.
[FR Doc. 95-26856 Filed 10-27-95; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 95-26787 Almonds Grown in California; Secretary's Decision and Referendum Order on Proposed Further Amendment of Marketing Agreement and Order No. 981
[Federal Register Volume 60, Number 209 (Monday, October 30, 1995)]
[Proposed Rules]
[Pages 55213-55220]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-26787]
========================================================================
Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
========================================================================
Federal Register / Vol. 60, No. 209 / Monday, October 30, 1995 /
Proposed Rules
[[Page 55213]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 981
[Docket No. A0-214-A7; FV-93-981-1]
Almonds Grown in California; Secretary's Decision and Referendum
Order on Proposed Further Amendment of Marketing Agreement and Order
No. 981
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Proposed rule and referendum order.
-----------------------------------------------------------------------
SUMMARY: This decision proposes amendments to the subject marketing
agreement and order (order) and provides almond producers with the
opportunity to vote in a referendum to determine if they favor the
proposed amendments. The proposed amendments were submitted by the
Almond Board of California (Board) and five additional persons. The
proposed changes would: change five existing definitions in the order;
revise Board representation, nomination procedures, terms of office,
quorum and qualification procedures, voting and tenure requirements;
modify creditable advertising provisions; revise volume control
procedures; require handlers to maintain records in the State of
California; authorize interest or late payment charges on assessments
paid late; provide for periodic continuance referenda; authorize
exemptions for organic almonds from certain program requirements; and
make necessary conforming changes. These changes are being proposed to
improve the administration, operation and functioning of the California
almond marketing order program.
DATES: The referendum shall be conducted from January 8, 1996, through
February 2, 1996. The representative period for the purpose of the
referendum herein ordered is July 1, 1994, through June 30, 1995.
FOR FURTHER INFORMATION CONTACT: Kathleen M. Finn, Marketing
Specialist, Marketing Order Administration Branch, Fruit and Vegetable
Division, AMS, USDA, room 2523-S, P.O. Box 96456, Washington, DC 20090-
6456, telephone: (202) 720-1509 or Fax (202) 720-5698; or Martin
Engeler, Assistant Officer-in-Charge, California Marketing Field
Office, Marketing Order Administration Branch, Fruit and Vegetable
Division, AMS, USDA, 2202 Monterey Street, suite 102-B, Fresno,
California 93721; (209) 487-5901 or FAX (209) 487-5906.
SUPPLEMENTARY INFORMATION: Prior documents in this proceeding: Notice
of Hearing issued on August 3, 1993, and published in the Federal
Register on August 17, 1993 (58 FR 43565). Recommended Decision and
Opportunity to File Written Exceptions issued on March 22, 1995, and
published in the Federal Register on April 6, 1995 (60 FR 17466).
This administrative action is governed by the provisions of
sections 556 and 557 of Title 5 of the United States Code and,
therefore, is excluded from the requirements of Executive Order 12866.
Preliminary Statement
The proposed amendments were formulated on the record of a public
hearing held in Modesto, California, on November 3, 4 and 5, 1993, to
consider the proposed amendment of the Marketing Agreement and Order
No. 981, regulating the handling of almonds grown in California,
hereinafter referred to collectively as the ``order.'' The hearing was
held pursuant to the provisions of the Agricultural Marketing Agreement
Act of 1937, as amended (7 U.S.C. 601 et seq.), hereinafter referred to
as the Act, and the applicable rules of practice and procedure
governing proceedings to formulate marketing agreements and marketing
orders (7 CFR part 900). The Notice of Hearing contained several
amendment proposals submitted by the Almond Board of California (Board)
established under the order to assist in local administration of the
program and by five additional persons.
The Board's proposals would: (1) Increase its membership by two
positions and change Board nomination, selection, and operation
procedures; (2) change the term of office of its members from one to
three years, and limit the tenure of Board members; (3) change the
definitions of ``cooperative handler,'' ``to handle,'' ``settlement
weight,'' ``crop year'' and ``trade demand''; (4) require handlers of
California almonds to maintain program records in the State of
California; (5) change its advertising assessment credit program to
allow credit for certain advertising costs incurred by handlers not
previously authorized; (6) authorize requiring handlers to pay interest
and/or late payment charges for past due assessments; (7) provide for
continuance referenda every five years; (8) require handlers to submit
grower lists to the Board; and (9) allow multi-year contracting.
Five persons submitted additional proposals related to continuance
referenda, Board composition and nomination procedures, organic
almonds, regulatory provisions, advertising and promotion, assessments,
compliance audits, the definition of grower, and research and reserve
operations.
The Fruit and Vegetable Division, Agricultural Marketing Service
(AMS), U.S. Department of Agriculture (USDA), proposals would make such
changes as are necessary to the order, if any or all of the above
amendments are adopted, so that all of its provisions conform with the
proposed amendment. USDA also proposed that continuance referenda be
conducted on a periodic basis consistent with USDA's policy guidelines.
Upon the basis of evidence introduced at the hearing and the record
thereof, the Administrator of the Agricultural Marketing Service (AMS)
on March 22, 1995, filed with the Hearing Clerk, U.S. Department of
Agriculture, a Recommended Decision and Opportunity to File Written
Exceptions thereto by May 8, 1995. Exceptions were received from Mr.
Robert J. Crockett, Attorney, Office of the General Counsel, USDA,
representing the Board; Mr. Steven W. Easter, Vice President, Blue
Diamond Growers, Inc.; Mr. Brian C. Leighton, general counsel to almond
handler Cal-Almond, Inc.; and Mr. Rick Veldstra, almond grower. The
exceptions will be addressed in this document.
Small Business Considerations
In accordance with the provisions of the Regulatory Flexibility Act
(RFA) (5 U.S.C. 601 et seq.), the Administrator of the AMS has
determined that this action
[[Page 55214]]
would not have a significant economic impact on a substantial number of
small entities. Small agricultural service firms, which include
handlers regulated under this order, have been defined by the Small
Business Administration (SBA) (13 CFR 121.601) as those having annual
receipts of less than $5,000,000. Small agricultural producers are
defined as those having annual receipts of less than $500,000.
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 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 the RFA and the Act have small entity orientation
and compatibility. Interested persons were invited to present evidence
at the hearing on the probable impact that the proposed amendments to
the order would have on small businesses.
During the 1993-94 crop year, approximately 115 handlers were
regulated under Marketing Order No. 981. In addition, there are about
7,000 producers of almonds in the production area. The Act requires the
application of uniform rules on regulated handlers. Marketing orders
and amendments thereto are unique in that they are normally brought
about through group action of essentially small entities for their own
benefit. Thus, both the RFA and the Act are compatible with respect to
small entities.
The proposed amendments to the marketing agreement and order
include changes to five definitions in the marketing order. These
definitions are cooperative handler, to handle, settlement weight, crop
year, and trade demand. The changes that are proposed to the
definitions are intended to make them consistent with current industry
practices. The proposed changes to the definitions are designed to
enhance the administration and functioning of the marketing order to
the benefit of the industry.
The proposed amendment to revise Board representation would
increase the Board's size by allowing two additional grower members to
serve on the Board. This would increase grower representation on the
Board from five to seven and allow more grower input into Board
decisions. The quorum size would also be increased to correspond with
the increase in Board size. The change in voting requirements would
require an increased number of votes needed to approve a Board action.
The change to the nomination procedures would require Board nominees to
be nominated by January 20 rather than April 20 as currently provided.
This would ensure that the new Board is seated prior to meetings where
important decisions are made for the following crop year. These
proposed amendments are designed to improve grower representation on
the Board and allow the Board to function more efficiently.
The proposed amendment to change the Board members' term of office
from one year to three year staggered terms would allow more continuity
on the Board. This would allow the Board to focus more on long-term
strategic goals and develop long-term approaches to problems in the
industry.
The proposed amendment to require those persons nominated to the
Board to qualify prior to their selection to the Board is an
administrative change. This change would allow the selection process to
take place in a more timely manner. The proposed amendment to add
tenure requirements for Board members would allow more persons the
opportunity to serve as members on the Board. It would provide
opportunity for new ideas and approaches to issues that the Board
addresses each year.
The proposed amendment to the creditable advertising provisions
would provide for expansion of the promotional activities for which
handlers may receive Credit-Back from their assessments. This would
allow the Board to increase program flexibility for participating
handlers.
The proposed amendment to allow the settlement weight for unshelled
almonds to be determined on the basis of representative samples would
be more consistent with current industry practices. There would be no
increase in burden on handlers expected from this proposed amendment.
The proposed amendment to require handlers to maintain records in
the State of California would improve the Board's administration of the
program. It would also allow the Board to have the records available to
them for compliance purposes. It is not expected that any additional
costs would be incurred by handlers to comply with this amendment.
The proposed amendment to authorize interest and/or late payment
charges on assessments paid late would encourage handlers to pay their
assessments on time. Assessments not paid promptly add an undue burden
on the Board because the Board has ongoing projects and programs funded
by assessments that are functioning throughout the year. The addition
of such changes is consistent with standard business practices.
The proposed amendment to provide for periodic continuance
referenda would allow growers the opportunity to vote on whether to
continue the operation of the almond marketing order.
The proposed amendment to allow handlers to transfer their reserve
obligation to other handlers would help facilitate the operation of the
reserve program by providing handlers more flexibility.
The proposed amendment to exempt organic almonds from certain
program requirements would provide the organic segment of the industry
more flexibility in marketing and selling their product. The proposed
amendment would authorize organic almond handlers to be exempt from
reserve requirements and advertising assessments. Organic growers and
handlers demonstrated at the hearing that certain current marketing
order provisions do not take into account marketing differences between
certified organic almonds and conventional almonds.
The proposal to make other miscellaneous changes that would be
consistent with the proposed amendments is necessary so that all
sections of the order would be consistent if any or all of the
amendments are adopted. These changes include deleting and
redesignating certain sections of the order.
All these changes are designed to enhance the administration and
functioning of the marketing agreement and order to the benefit of the
industry. Accordingly, it is determined that the proposed revisions of
the order would not have a significant economic impact on handlers or
producers.
The amendments proposed herein have been reviewed under Executive
Order 12778, Civil Justice Reform. They are not intended to have
retroactive effect. If adopted, the proposed amendments would not
preempt any state or local laws, regulations, or policies, unless they
present an irreconcilable conflict with the amendments.
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 requesting a modification of the order or to be exempted
therefrom. A handler is afforded the opportunity for
[[Page 55215]]
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.
In accordance with the Paperwork Reduction Act of 1980 (44 U.S.C.
35), the reporting and recordkeeping provisions that are included in
the proposed amendments will be submitted to the Office of Management
and Budget (OMB). They would not become effective prior to OMB
approval.
Findings and Conclusions and Rulings on Exceptions
The material issues, findings and conclusions, rulings, and general
findings and determinations included in the Recommended Decision set
forth in the April 6, 1995, issue of the Federal Register (60 FR 17466)
are hereby approved and adopted subject to the following additions and
modifications:
Based upon the exceptions filed by Mr. Crockett, Mr. Leighton and
Mr. Veldstra, the findings and conclusions in material issue number six
of the Recommended Decision concerning the acceptable methods for Board
voting and Board voting requirements are amended by adding the
following four paragraphs after the 16th paragraph of material issue
number six to read as follows:
The exception filed by Mr. Crockett indicated that section 981.40
should be modified to include the term ``other electronic means'' as an
acceptable method for voting. ``Other electronic means'' is envisioned
to include the use of modems, video and teleconferencing. The term is
flexible to allow for the advancement of new technologies that could be
used by the Board for voting. Mr. Crockett stated that although ``other
electronic means'' was not part of the original proposal, its
incorporation at this time is reasonable since it is merely a technical
adjustment. This request is also consistent with the record evidence.
Therefore, in accordance with Mr. Crockett's exception, the amendatory
language in Sec. 981.40 is modified.
The exception received from Mr. Leighton objects to the proposed
voting requirements, indicating that one segment of the industry, Blue
Diamond, would have the ability to effectively block any proposed
action by the Board.
The exception received from Mr. Veldstra similarly objected to the
voting requirements proposed, indicating that it is fundamentally
flawed to guarantee one segment of the industry a minimum of 5 votes,
when those 5 votes could constitute a ``Super Minority'' able to direct
the policy of the Board by their veto power.
Testimony at the hearing indicated strong industry support for this
proposal. Proponents testified that the proposed voting requirements
would help increase industry cohesion. No new evidence or arguments to
the contrary were presented in the exceptions. Further, no one industry
segment will perpetually be guaranteed a certain number of votes as a
result of this proposal because of the ability to reapportion Board
membership, which is discussed under material issue number 14.
Therefore, these exceptions are denied.
Based upon the exception of Mr. Veldstra and the exception of Mr.
Leighton, the findings and conclusions in material issue number 14 of
the Recommended Decision concerning whether to authorize the Board,
with the approval of the Secretary, to reapportion grower and/or
handler member representation on the Board based on the proportionate
amounts of almonds handled by different segments of the industry are
amended by adding the following three paragraphs after the tenth
paragraph of material issue number 14 to read as follows:
The exception filed by Mr. Veldstra indicated that reapportionment
of Board membership should be required, based on percentages of crop
produced by industry segments, rather than optional, at the
recommendation of the Board and approval of the Secretary.
Reapportionment should be required because otherwise, one segment of
the industry would be able to prohibit passing a Board action
recommending reapportionment, if the proposed voting requirements in
material issue number 6 are approved. This could result in one segment
of the industry having a disproportionate share of Board representation
based on percentage of production.
The exception filed by Mr. Leighton stated that Board
representation should be based on percentages of crop represented by
each entity. The exception indicated that although the proposed
amendment allows for changes in reapportionment and representation, any
such changes will not occur if the voting requirements in material
issue number 6 are implemented. The exception stated that Blue Diamond
would not vote for any change which would reduce their representation,
thus any Board recommendation on this issue would be blocked.
Hearing testimony indicated that the number of growers represented
by industry entities should also be given consideration in determining
equitable Board representation as well as tonnage handled by these
entities. The current proposal with respect to representation reflects
this position and testimony presented indicates widespread industry
support for the proposal. In addition, there was no specific
alternative proposal presented. However, USDA recognizes the potential
problems associated with the Board's ability to pass an action
recommending reapportionment and changes in representation, if voting
requirements as proposed in material issue number 6 are implemented. It
should be clarified that the amendatory language as proposed in
Sec. 981.31(d) does not require a recommendation by the Board on this
issue. Although USDA looks to the Board as the body representing the
industry for recommendations on such issues, it is not precluded from
taking action to reapportion membership based on other information
available. Therefore, no change to the proposed order language is
necessary based on Mr. Veldstra's and Mr. Leighton's exceptions. Their
exceptions are denied.
Based upon the exception filed by Mr. Leighton, the findings and
conclusions in material issue number 13 of the Recommended Decision
concerning the deletion of the authority for the Credit-Back
advertising program under the almond marketing order and to modify the
generic program are amended by adding the following two paragraphs
after the 11th paragraph of material issue number 13 to read as
follows:
Mr. Leighton's exception stated that he opposed the generic
advertising program, but a generic advertising program is preferable to
a brand program, provided excessive funds are not expended promoting
almonds as snacks off the store shelf. Mr. Leighton also reiterated
that the new Credit-Back program violates the First Amendment to the
U.S. Constitution. In addition, he states that there is not wide
industry support for this proposal because a number of handlers
representing 20 percent of the tonnage in the industry have filed
administrative petitions pursuant to 7 U.S.C. section 608c(15)(A)
contesting the constitutionality of this program.
The record evidence does not the support the deletion of the
authority for this program. The Credit-Back program provides
flexibility in allowing the Board and handlers various options to
[[Page 55216]]
promote almonds. The program provides the opportunity for handlers to
receive credit against their assessment obligation or pay assessments
for a generic program. Although there are currently ongoing legal
challenges to this program, the record evidence supports maintaining
the authority for the program. With the authority in place,
recommendations can be made by the Board and implemented by the
Secretary to further modify and improve the program, if warranted. The
program need not be active if it is determined that discontinuing all
or part of the program would be in the best interest of the industry.
Therefore, Mr. Leighton's exception is denied.
Based upon the exception filed by Mr. Leighton, the findings and
conclusions in material issue number 17 of the Recommended Decision
concerning the requirement that the Board provide handlers with 24
hours advance notice before audits are conducted of records and
inspections of reserve almonds are amended by adding the following two
paragraphs after the sixth paragraph of material issue number 17 to
read as follows:
Mr. Leighton's exception states that USDA does not provide examples
showing that ``surprise'' visits by the Board have uncovered widespread
abuse of the reporting requirements relating to the reserve provisions.
In addition, Mr. Leighton states that the Board should not require
handlers to use their own equipment and personnel during the audit
visits.
As previously stated, the almond industry is subject to Federal
regulation and therefore, audit visits are a part of participating in
this Federal program. USDA requires that adequate compliance programs
are in place for marketing order programs. The record evidence
supported the continuation of such a tool for compliance purposes. In
addition, the record evidence supported handlers assisting the Board by
using their equipment and personnel during an audit visit. Therefore,
Mr. Leighton's exception is denied.
Based upon the exceptions filed by Mr. Leighton, Mr. Veldstra and
Mr. Easter, the findings and conclusions in material issue number 18 of
the Recommended Decision concerning the requirement for handlers to
submit to the Board a list of growers who have delivered almonds to
such handler during the crop year are amended by adding the following
four paragraphs after the 17th paragraph of material issue number 18 to
read as follows:
The exception filed by Mr. Leighton stated that Blue Diamond should
also be required to submit a grower list to the Board. He stated that
since the independent grower list would be available under the Freedom
of Information Act, Blue Diamond is given an unfair advantage by having
accessibility to all almond growers. Mr. Leighton contends that the
independent growers should be allowed the same opportunity.
Mr. Veldstra's exception similarly objected to the material issue
stating that if Blue Diamond's list is proprietary and protected under
California State law, then the independent list should also be
protected. In addition, Mr. Veldstra stated that Blue Diamond growers
should elect Blue Diamond growers to the Board rather than have them
appointed by the cooperative. Finally, Mr. Veldstra stated that growers
who deliver their almonds to both the cooperative and independent
handlers may theoretically vote twice in elections--once through the
cooperative process and once as independent growers. If the Board had a
complete list, it could identify these situations and ensure that
growers participate in the voting process only once.
As previously stated, the record evidence supports that the primary
reason an independent grower list would be submitted to the Board would
be for the purposes of Board elections. Record evidence showed that
there are other sources of obtaining a grower list. The Blue Diamond
cooperative testified that they do inform their members of all
important matters concerning the marketing order. Blue Diamond's list
is its grower/supplier list and therefore, it is considered their
customer list. This would not be the case for a list of independent
growers in part, because this list is not handler-specific. In
addition, there was no record evidence to support that Board members
elected from the cooperative should be elected in another manner as
suggested by Mr. Veldstra. Also, growers participating in independent
elections must certify on the ballot that they do not deliver almonds
to a cooperative. Therefore, Mr. Leighton's and Mr. Veldstra's
exceptions are denied.
The exception filed by Mr. Easter fully supported the proposal. Mr.
Easter stated that Blue Diamond believes that its grower list is
protected by California law and that no case has been made for a
requirement that it be submitted to the Board.
Based upon the exception filed by Mr. Leighton, the findings and
conclusions in material issue number 19 of the Recommended Decision
concerning the addition of the authority to require handlers to pay
interest and/or late payment charges are amended by adding the
following two paragraphs after the seventh paragraph of material issue
number 19 to read as follows:
The exception filed by Mr. Leighton stated that unless prevailing
handlers can receive a refund of assessments wrongfully imposed plus
interest, the proposed revisions to section 981.81 to allow the
collection of interest and late penalties on past due assessments is
confiscatory and violates Due Process. Mr. Leighton further stated that
this provision violates the First Amendment, because handlers will be
penalized for filing administrative challenges to any assessment
provision by being forced to pay late charges if their challenges are
unsuccessful. Mr. Leighton contends that the proposal authorizing the
Board to assess late payments and/or interest on unpaid assessments
should not be adopted unless the proposal authorizing interest to
handlers for successfully challenging the payment of assessments is
adopted.
As previously discussed, the evidence at the hearing fully
supported this proposal. Many marketing orders provide for the
collection of interest and/or late payment charges to encourage prompt
payment of assessments. Again, the Act authorizes that each handler
shall pay to a marketing order committee such handler's pro rata share
for the operation of the marketing order. Therefore, Mr. Leighton's
exception is denied.
Based upon the exception filed by Mr. Leighton, the findings and
conclusions in material issue number 20 of the Recommended Decision
concerning the requirement of refunds plus payment of interest to a
handler in the event a suit or administrative petition filed by a
handler challenging the payment of assessments is successful are
amended by adding the following two paragraphs after the fifth
paragraph of material issue number 20 to read as follows:
Mr. Leighton's exception stated that unless this proposal is
adopted, Material Issue number 19, which proposes authority for
interest and late payment charges should not be adopted. Mr. Leighton
indicated that USDA rejected this proposal because ``the Board may not
have funds available to make a refund'' and Due Process requires a
clear and certain remedy if one must pay now and file a complaint
later. Mr. Leighton further stated that USDA clearly does not address
where court ordered refunds will be derived, nor does it provide for
such remedy.
The record does not support this proposal. Section 608c(15)(A) of
the Act provides a method for challenging marketing order provisions.
In addition,
[[Page 55217]]
USDA did not reject this proposal on the basis of the ability to pay
refunds. USDA relied on the record and the evidence presented by both
sides. Therefore, Mr. Leighton's exception is denied.
Based upon the exception filed by Mr. Crockett, the findings and
conclusions in material issue number 24 of the Recommended Decision
concerning the exemption of organic almonds from all reserve
requirements are amended by adding the following three paragraphs after
the ninth paragraph of material issue number 24 to read as follows:
The exception from Mr. Crockett requested that USDA reconsider this
proposal. Mr. Crockett stated that this proposal would create a
separate class of producers from the mainstream of almond production
and would eliminate the flexibility of the Board to address this issue.
Further, Mr. Crockett indicated that past experience shows that the
Board determined that certified organic almonds would be an eligible
outlet for disposition of reserve almonds when special circumstances
warranted exempting them from these requirements. The exception also
indicated that the circumstances today may be that organically grown
almonds are non-competitive in nature, but the situation could change
in the future. For this reason, Mr. Crockett stated that the Board
should be allowed to respond to those changes as they arise and not be
bound by a regulation that no longer reflects the realities of almond
production. Mr. Crockett further stated that the cost to administer
such an exemption is prohibitive and would cause compliance problems
because there is no practical means of identifying an organically grown
almond from a conventional almond.
The proponents of this proposal presented a compelling case that
certified organic almonds are unique and are sold into different
markets. In addition, growers and handlers of organic almonds must
follow strict regulations to ensure their almonds are certified organic
and these almonds can be traced by a paper trail to the retail level.
Mr. Crockett's concern regarding compliance problems that could be
encountered in documenting sales of certified organic almonds does have
merit. Although stringent requirements exist for certifying almonds as
organic, it is important that the order require that handlers provide
documentation substantiating that their almonds meet these requirements
if they are to be exempt from reserve requirements. The proposed
amendment to section 981.47(b) is being slightly modified to require
that documentation be submitted to the Board by handlers in order to
substantiate that almonds were, in fact, sold as certified organic and
met the requirements of the Organic Foods Production Act of 1990 and
the California Organic Foods Act of 1990 in order to be exempt from
reserve requirements. Therefore, Mr. Crockett's exception is accepted,
in part.
Based upon the exception filed by Mr. Crockett, the findings and
conclusions in material issue number 25 of the Recommended Decision
concerning the authority to allow the Board to enter into contracts for
periods of five years for services, goods or other reasonable expenses
are amended by adding the following two paragraphs after the eighth
paragraph of material issue number 25 to read as follows:
The exception filed by Mr. Crockett requested that USDA reconsider
this proposal. The exception indicated that the inability to enter into
long term arrangements for goods and services from vendors hinders the
efficiency of the order. Mr. Crockett stated the Board should be able
to avail itself of such simple common business sense to stretch grower
monies to their maximum effectiveness. Mr. Crockett further stated that
although USDA states that other marketing orders have been approved for
long term contracts, it ignores that potential opportunities may be
lost seeking advance approval of each contract.
As previously stated, USDA has provided approval for marketing
order committees to enter into multi-year contracts on a case-by-case
basis. Record evidence indicates that this proposal could limit annual
reviews and restrict activities of future Boards. USDA will work with
the Board to ensure such approvals are completed in a timely manner to
promote efficient Board operation. Therefore, Mr. Crockett's exception
is denied.
Based upon the exception filed by Mr. Leighton, the findings and
conclusions in material issue number 27 of the Recommended Decision
concerning certain reserve provisions are amended by adding the
following two paragraphs after the 11th paragraph of material issue
number 27 to read as follows:
Mr. Leighton's exception contended that USDA claimed that removing
the authority for allocated reserve would remove a valuable tool of the
Board. However, Mr. Leighton contended that there should be no tool
available to require the dumping of valuable and nutritious product
given the storage capability of almonds. In addition, Mr. Leighton
stated that USDA has a conflict of interest in retaining this tool
because USDA uses these almonds for school lunch programs. Mr. Leighton
states that the cost of school lunch programs should be borne by
taxpayers, not the almond industry.
The marketing order contains authority to require reserve almonds
to be disposed of in certain approved outlets that are non-competitive
with normal markets. There is no requirement for dumping the product.
Under certain conditions, it may be desirable for the industry to
divert product to these non-competitive outlets rather than carrying
product over into the next crop year. Record evidence supports
retaining this tool. USDA does not consider the provision a conflict of
interest. USDA does purchase almonds as a surplus removal program and
those almonds are used in the school lunch program. The purpose of USDA
surplus removal purchases is to remove excess supplies from normal
market channels. In addition, USDA does not specify that the almonds it
buys must be reserve almonds. The record evidence supported adopting
this proposal, in part. Therefore, Mr. Leighton's exception is denied.
Marketing Agreement and Order
Annexed hereto and made a part hereof is the document entitled
``Order Amending the Order Regulating the Handling of Almonds Grown in
California.'' This document has been decided upon as the detailed and
appropriate means of effectuating the foregoing findings and
conclusions.
It is hereby ordered, That this entire decision be published in the
Federal Register.
Referendum Order
It is hereby directed that a referendum be conducted in accordance
with the procedure for the conduct of referenda (7 CFR 900.400 et seq.)
to determine whether the issuance of the annexed order amending the
order regulating the handling of almonds grown in California is
approved or favored by producers, as defined under the terms of the
order, who during the representative period were engaged in the
production of almonds grown in California.
The representative period for the conduct of such referendum is
hereby determined to be July 1, 1994, through June 30, 1995.
The agents of the Secretary to conduct such referendum are hereby
designated to be Martin Engeler, Assistant Officer-in-Charge, and
Maureen Pello, Marketing Specialist, California Marketing Field Office,
Marketing Order Administration Branch, Fruit and Vegetable Division,
AMS, USDA, 2202
[[Page 55218]]
Monterey Street, suite 102-B, Fresno, California 93721, telephone (209)
487-5901.
List of Subjects in 7 CFR Part 981
Almonds, Marketing agreements, Nuts, Reporting and recordkeeping
requirements.
Dated: October 23, 1995
Shirley R. Watkins,
Acting Assistant Secretary, Marketing and Regulatory Programs.
Order Amending the Order Regulating the Handling of Almonds Grown in
California 1
\1\ This order shall not become effective unless and until the
requirements of Sec. 900.14 of the rules of practice and procedure
governing proceedings to formulate marketing agreements and
marketing orders have been met.
---------------------------------------------------------------------------
Findings and Determinations
The findings and determinations hereinafter set forth are
supplementary and in addition to the findings and determinations
previously made in connection with the issuance of the order; and all
of said previous findings and determinations are hereby ratified and
affirmed, except insofar as such findings and determinations may be in
conflict with the findings and determinations set forth herein.
(a) Findings and Determinations Upon the Basis of the Hearing
Record.
Pursuant to the provisions of the Agricultural Marketing Agreement
Act of 1937, as amended (7 U.S.C. 601 et seq.), and the applicable
rules of practice and procedure effective thereunder (7 CFR part 900),
a public hearing was held upon the proposed amendments to the Marketing
Agreement and Order No. 981 (7 CFR part 981), regulating the handling
of almonds grown in California.
Upon the basis of the evidence introduced at such hearing and the
record thereof, it is found that:
(1) The order, as amended, as hereby proposed to be further
amended, and all of the terms and conditions thereof, will tend to
effectuate the declared policy of the Act;
(2) The order, as amended, as hereby proposed to be further
amended, regulates the handling of almonds grown in the production area
in the same manner as, and is applicable only to persons in the
respective classes of commercial and industrial activity specified in
the marketing order upon which hearings have been held;
(3) The order, as amended, as hereby proposed to be further
amended, is limited in application to the smallest regional production
area which is practicable, consistent with carrying out the declared
policy of the Act, and the issuance of several orders applicable to
subdivisions of the production area would not effectively carry out the
declared policy of the Act;
(4) The order, as amended, as hereby proposed to be further
amended, prescribes, insofar as practicable, such different terms
applicable to different parts of the production area as are necessary
to give due recognition to the differences in the production and
marketing of almonds grown in the production area; and
(5) All handling of almonds grown in the production area is in the
current of interstate or foreign commerce or directly burdens,
obstructs, or affects such commerce.
Order Relative to Handling
It is therefore ordered, That on and after the effective date
hereof, all handling of almonds grown in California, shall be in
conformity to, and in compliance with, the terms and conditions of the
said order as hereby proposed to be amended as follows:
The provisions of the proposed marketing agreement and the order
amending the order contained in the Recommended Decision issued by the
Administrator on March 22, 1995, and published in the Federal Register
on April 6, 1995, shall be and are the terms and provisions of this
order amending the order and are set forth in full herein.
PART 981--ALMONDS GROWN IN CALIFORNIA
1. The authority citation for 7 CFR part 981 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
2. Section 981.14 is revised to read as follows:
Sec. 981.14 Cooperative handler.
Cooperative handler means any handler as defined in Sec. 981.13 of
this subpart which qualifies for treatment as a nonprofit cooperative
association as defined in Section 54001, et seq. of the California Food
and Agricultural Code. The Board, with the approval of the Secretary,
may modify this definition, if necessary.
3. Section 981.16 is revised to read as follows:
Sec. 981.16 To handle.
To handle means to use almonds commercially of own production or to
sell, consign, transport, ship (except as a common carrier of almonds
owned by another) or in any other way to put almonds grown in the area
of production into any channel of trade for human consumption
worldwide, either within the area of production or by transfer from the
area of production to points outside or by receipt as first receiver at
any point of entry in the United States or Puerto Rico of almonds grown
in the area of production, exported therefrom and submitted for reentry
or which are reentered free of duty. However, sales or deliveries by a
grower to handlers, hullers or other processors within the area of
production shall not, in itself, be considered as handling by a grower.
4. Section 981.18 is amended by removing the word ``and'' at the
end of paragraph (b); removing the period and adding ``, and'' at the
end of paragraph (c); and adding a new paragraph (d) to read as
follows:
Sec. 981.18 Settlement weight.
* * * * *
(d) For inedible kernels as defined in Sec. 981.8.
5. Section 981.19 is revised to read as follows:
Sec. 981.19 Crop year.
Crop year means the twelve month period from August 1 to the
following July 31, inclusive. Any new crop almonds harvested or
received prior to August 1 will be applied to the next crop year for
marketing order purposes. The first crop year after the implementation
of this amendment shall be a 13-month period.
6. Section 981.21 is revised to read as follows:
Sec. 981.21 Trade demand.
Trade demand means the quantity of almonds (kernelweight basis)
which commercial distributors and users such as the wholesale, chain
store, confectionery, bakery, ice cream, and nut salting trades will
acquire from all handlers during a crop year for distribution
worldwide.
7. Sections 981.30 and 981.31 are revised to read as follows:
Sec. 981.30 Establishment.
The Almond Board shall consist of twelve members, each with an
alternate member.
Sec. 981.31 Membership representation.
Membership of the Board will be determined in the following manner:
(a) Three members and an alternate for each member shall be
selected from nominees submitted by each of the following groups
designated in paragraphs (a) (1) and (2) of this section, or from among
other qualified persons belonging to such groups:
(1) Those growers who market their almonds through cooperative
handlers; and
[[Page 55219]]
(2) Those growers who market their almonds through other than
cooperative handlers.
(b) Two members and an alternate for each member shall be selected
from nominees submitted by each of the following groups designated in
paragraphs (b) (1) and (2) of this section, or from among other
qualified persons belonging to such groups:
(1) Cooperative handlers; and
(2) All handlers, other than cooperative handlers.
(c) One member and an alternate shall be selected from nominees
submitted by each of the following groups designated in paragraphs
(c)(1) and (2) of this section, or from among other qualified persons
belonging to such groups:
(1) The group of cooperative handlers or the group of handlers
other than cooperative handlers, whichever received for their account
more than 50 percent of the almonds delivered by all growers as
determined by December 31 of the then current crop year; and
(2) Those growers whose almonds were marketed through the handler
group identified in paragraph (c)(1) of this section.
(d) The Secretary, upon recommendation of the Board, or other
information, may reapportion within the 12-member Board, the number of
grower members or handler members, or both, of any group listed in
Sec. 981.31 (a) through (c), to be nominated pursuant to Sec. 981.32.
Any such change shall be based, insofar as practicable, upon the
proportionate amounts of almonds handled within any group.
8. Section 981.32 is amended by revising paragraph (a) and amending
paragraph (b)(2) by removing the date ``March 31'' and adding in its
place the date ``December 31'' to read as follows:
Sec. 981.32 Nominations.
(a) Method. (1) Each year the terms of office of three of the
members elected pursuant to Sec. 981.31(a) and (b) shall expire, except
every third year when the term of office for four of those members
shall expire. Nominees for each respective member and alternate member
shall be chosen by ballot delivered to the Board. Nominees chosen by
the Board in this manner shall be submitted by the Board to the
Secretary on or before February 20 of each year together with such
information as the Secretary may require. If a nomination for any Board
member or alternate is not received by the Secretary on or before
February 20, the Secretary may select such member or alternate from
persons belonging to the group to be represented without nomination.
The Board shall mail to all handlers and growers, other than the
cooperative(s) of record, the required ballots with all necessary
voting information including the names of incumbents willing to accept
renomination, and, to such growers, the name of any person proposed for
nomination in a petition signed by at least 15 such growers and filed
with the Board on or before January 20. Distribution of ballots shall
be announced by press release, furnishing pertinent information on
balloting, issued by the Board through newspapers and other
publications having general circulation in the almond producing areas.
(2) Nominees for the positions described in Sec. 981.31(c) shall be
handled in the same manner as described in paragraph (a)(1) of this
section except that those terms of office shall expire annually.
* * * * *
9. Section 981.33 is revised to read as follows:
Sec. 981.33 Selection and term of office.
(a) Members and their respective alternates for positions open on
the Board shall be selected by the Secretary from persons nominated
pursuant to Sec. 981.32, or, at the discretion of the Secretary, from
other qualified persons, for a term of office beginning March 1.
Members and alternates shall continue to serve until their respective
successors are selected and qualified.
(b) The term of office of members of the Board shall be for a
period of three years beginning on March 1 of the years selected except
where otherwise provided. However, for the initial ten members of the
Board selected pursuant to this section and to paragraphs (a) and (b)
of Sec. 981.31, three members shall serve for a term of one year; three
members shall serve for a term of two years; and four members shall
serve for a term of three years. For the initial terms of office, at
the time of nomination under Sec. 981.32, the Board shall make this
designation by lot. The term of office for the two members selected
under paragraph (c) of Sec. 981.31 shall always be for a period of one
year.
(c) Board members may serve for a total of six consecutive years.
Members who have served for six consecutive years must leave the Board
for at least one year before becoming eligible to serve again. A person
who has served less than six consecutive years on the Board may not be
nominated to a new three year term if his or her total consecutive
years on the Board at the end of that new term would exceed six years.
This limitation on tenure shall not include service on the Board prior
to implementation of this amendment and shall not apply to alternate
members.
10. Section 981.34 is revised to read as follows:
Sec. 981.34 Qualification and acceptance.
(a) Any person to be selected as a member or alternate of the Board
shall, prior to such selection, qualify by providing such background
information as necessary and by advising the Secretary that he/she
agrees to serve in the position for which nominated. Grower members and
alternates shall be growers or employees of growers, and handler
members and alternates shall be handlers or employees of handlers. In
the event any member or alternate ceases to be qualified for the
position for which selected, that position shall be deemed vacant.
(b) The Board, with approval of the Secretary, may establish
additional eligibility requirements for grower members on the Board.
11. Section 981.40 is amended by revising paragraphs (b) and (c)
and amending paragraph (e) by removing the word ``seven'' and adding in
its place the word ``eight'' to read as follows:
Sec. 981.40 Procedure.
* * * * *
(b) Quorum. The presence of eight members shall be required to
constitute a quorum. All decisions of the Board shall be as follows
except where otherwise specifically provided: 8 or 9 members present, 6
votes; 10 members present, 7 votes; 11 or 12 members present, 8 votes.
(c) Voting by mail, telegram, fax or other electronic means. The
Board may vote by mail, telegram, fax or other electronic means upon
written notice to all members, or alternates acting in their place,
including in the notice a statement of a reasonable time, not to exceed
10 days, in which a vote by mail, telegram, fax or other electronic
means must be received by the Board for counting. Voting by mail,
telegram, fax or other electronic means shall not be permitted at any
assembled meeting of the Board. When a proposition is submitted for
vote by mail, telegram, fax or other electronic means, at least ten
members of the Board must vote in favor of its passage or the
proposition shall be defeated.
* * * * *
12. In Sec. 981.41, paragraph (c) is amended by removing the colon
and all text following the words ``15 percent'' in the last sentence
and adding in its place a period and by amending paragraph (a) by
adding a sentence at the end of the paragraph to read as follows:
[[Page 55220]]
Sec. 981.41 Research and development.
(a) * * * Notwithstanding the foregoing, certified organic almonds
may be exempt from assessments for marketing promotion, including paid
advertising, upon recommendation of the Board and approval of the
Secretary.
* * * * *
13. Section 981.47 is amended by designating the existing paragraph
as (a), removing the words ``either domestic or'' in the third sentence
of paragraph (a), and adding a new paragraph (b) to read as follows:
Sec. 981.47 Method of establishing salable and reserve percentages.
* * * * *
(b) Notwithstanding the provisions of paragraph (a) of this
section, the Secretary shall exempt from any reserve that is
established that part of the crop which is sold as ``certified
organic'' under standards established by the Organic Foods Production
Act of 1990, (7 U.S.C. 2101 et seq.) and the California Organic Foods
Act of 1990, as amended: Provided, That handlers provide adequate
documentation demonstrating the almonds were sold as certified organic
and met the requirements of the aforementioned Acts. The Board may
propose regulations to assure procedures to implement this section.
14. In Sec. 981.49, the introductory paragraph is amended by
removing the word ``six'' and adding in its place the word ``eight'',
by removing ``; and'' in paragraph (e) and adding a period in its
place, by adding ``and'' at the end of paragraph (d); by removing
paragraph (f) and by revising paragraph (b) to read as follows:
Sec. 981.49 Board estimates and recommendations.
* * * * *
(b) The estimated handler carryover and the estimated reserve
inventory as of July 31;
* * * * *
Sec. 981.50 [Amended]
15. Amend Sec. 981.50 by adding after the words ``into oil'', the
words ``or sold as certified organic.''
16. Amend Sec. 981.55 by designating the existing paragraph as (a)
and adding a new paragraph (b) to read as follows:
Sec. 981.55 Interhandler transfers.
* * * * *
(b) When saleable and reserve percentages are in effect, any
handler may transfer reserve withholding obligation to other handlers.
Terms and conditions implementing this provision must be recommended by
the Board and approved by the Secretary.
17. Section 981.60 is amended by revising paragraph (b) to read as
follows:
Sec. 981.60 Determination of kernel weight.
* * * * *
(b) Almonds for which settlement is made on unshelled weight. The
settlement weight for unshelled almonds shall be determined on the
basis of representative samples of unshelled almonds reduced to shelled
weight.
18. Section 981.61 is amended by revising the last sentence to read
as follows:
Sec. 981.61 Redetermination of kernel weight.
* * * Weights used in such computations for various
classifications of almonds shall be:
(a) For unshelled almonds, the kernelweight based on representative
samples reduced to shelled weight;
(b) For shelled almonds, the net weight; and
(c) For shelled almonds used in production of almond products, the
net weight of such almonds.
Sec. 981.62 [Removed]
19. Section 981.62 is removed.
Sec. 981.66 [Removed]
20. Section 981.66 is amended by removing paragraphs (b) and (d),
redesignating paragraph (c) as paragraph (b), redesignating paragraph
(e) as paragraph (c), redesignating paragraphs (f) and (g) as
paragraphs (d) and (e), and by amending newly designated paragraph (c)
by removing all references to the date ``September 1'' and adding in
each place ``December 31''.
Sec. 981.67 [Amended]
21. Section 981.67 is amended by removing all references to the
date ``September 1'' and adding in each place ``December 31''.
22. Section 981.70 is amended by revising the first sentence to
read as follows:
Sec. 981.70 Records and verification.
Each handler shall keep records which will clearly show the details
of his or her receipts of almonds, withholdings, sales, shipments,
inventories, reserve disposition, advertising and promotion activities,
as well as other pertinent information regarding his or her operation
pursuant to the provisions of this part: Provided, that, such records
shall be kept in the State of California. * * *
23. A new Sec. 981.76 is added before the undesignated center
heading ``Expenses and Assessments'' to read as follows:
Sec. 981.76 Handler list of growers.
No later than December 31 of each crop year, each handler other
than a cooperative handler (hereinafter, referred to as independent
handler) governed by this subpart shall, upon request, submit to the
Board a complete list of growers who have delivered almonds to such
independent handler during that crop year.
24. Section 981.81 is amended by adding a new paragraph (e) to read
as follows:
Sec. 981.81 Assessment.
* * * * *
(e) Any assessment not paid by a handler within a period of time
prescribed by the Board may be subject to an interest or late payment
charge or both. The period of time, rate of interest and late payment
charge shall be as recommended by the Board and approved by the
Secretary. Subsequent to such approval, all assessments not paid within
the prescribed period of time shall be subject to an interest or late
payment charge or both.
25. Section 981.90 is amended redesignating paragraph (b)(2) and
(b)(3) as paragraphs (b)(3) and (b)(4) and by amending newly designated
paragraph (b)(3) by removing the date ``June 1'' and adding in its
place ``July 1'' and adding a new (b)(2), to read as follows:
Sec. 981.90 Effective time, suspension, or termination.
* * * * *
(b) * * *
(2) The Secretary shall conduct a referendum as soon as practical
after the end of the fiscal year ending two years after [effective date
of the final rule], and at such time every fifth year thereafter, to
ascertain whether continuation of the order is favored by growers who
have been engaged in the production of almonds for market within the
State of California during the current crop year.
* * * * *
Sec. 981.467 [Amended]
26. In Sec. 981.467, paragraph (a) is amended by removing the date
``July 1'' and adding in its place ``August 1'' and by removing the
words ``export or'' and ``or both,'' from the second sentence in
paragraph (a).
Sec. 981.472 [Amended]
27. In Sec. 981.472, paragraph (a) is amended by removing the dates
``July 1 to August 31'' and adding in its place ``August 1 to August
31.''
[FR Doc. 95-26787 Filed 10-27-95; 8:45 am]
BILLING CODE 3410-02-P
Complete official Federal Register PDF
FR Doc. 95-26771 Proposed Amendment of Class E Airspace; Lovelock, NV
[Federal Register Volume 60, Number 209 (Monday, October 30, 1995)]
[Proposed Rules]
[Pages 55224-55225]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-26771]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 71
[Airspace Docket No. 95-AWP-32]
Proposed Amendment of Class E Airspace; Lovelock, NV
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: This notice proposes to amend the Class E airspace area at
Lovelock, NV. The development of a Global Positioning System (GPS)
Standard Instrument Approach Procedure (SIAP) to Runaway (RWY) 1 has
made this proposal necessary. The intended effect of this proposal is
to provide adequate controlled airspace for Instrument Flight Rules
(IFR) operations at Lovelock Derby Field, Lovelock, NV.
DATES: Comments must be received on or before December 6, 1995.
[[Page 55225]]
ADDRESSES: Send comments on the proposal in triplicate to: Federal
Aviation Administration, Attn: Manager, System Management Branch, AWP-
530, Docket No. 95-AWP-32, Air Traffic Division, P.O. Box 92007,
Worldway, Postal Center, Los Angeles, California, 90009.
The official docket may be examined in the Office of the Assistant
Chief Counsel, Western Pacific Region, Federal Aviation Administration,
Room 6007, 15000 Aviation Boulevard, Lawndale, California, 90261.
An informal docket may also be examined during normal business at
the Office of the Manager, System Management Branch, Air traffic
Division at the above address.
FOR FURTHER INFORMATION CONTACT:
Scott Speer, Airspace Specialist, System Management Branch, AWP-530,
Air Traffic Division, Western-Pacific Region, Federal Aviation
Administration, 15000 Aviation Boulevard, Lawndale, California, 90261,
telephone (301) 725-6533.
SUPPLEMENTARY INFORMATION:
Comments Invited
Interested parties are invited to participate in this proposed
rulemaking by submitting such written data, views, or arguments as they
may desire. Comments that provide the factual basis supporting the
views and suggestions presented are particularly helpful in developing
reasoned regulatory decisions on the proposal. Comments are
specifically invited on the overall regulatory, aeronautical, economic,
environmental, and energy-related aspects of the proposal.
Communications should identify the airspace docket number and be
submitted in triplicate to the address listed above. Commenters wishing
the FAA to acknowledge receipt of their comments on this notice must
submit with the comments a self-addressed, stamped postcard on which
the following statement is made: ``Comments to Airspace Docket No. 95-
AWP-32.'' The postcard will be date/time stamped and returned to the
commenter. All communications received on or before the specified
closing date for comments will be considered before taking action on
the proposed rule. The proposal contained in this notice may be changed
in light of comments received. All comments submitted will be available
for examination in the System Management Branch, Air Traffic Division,
at 15000 Aviation Boulevard, Lawndale, California 90261, both before
and after the closing date for comments. A report summarizing each
substantive public contract with FAA personnel concerned with this
rulemaking will be filed in the docket.
Availability of NPRM
Any person may obtain a copy of this Notice of Proposed Rulemaking
(NPRM) by submitting a request to the Federal Aviation Administration,
System Management Branch, P.O. Box 92007, Worldway Postal Center, Los
Angeles, California 90009. Communications must identify the notice
number of this NPRM. Persons interested in being placed on a mailing
list for future NPRM's should also request a copy of Advisory Circular
No. 11-2A, which described the application procedure.
The Proposal
The FAA is considering an amendment to part 71 of the Federal
Aviation Regulations (14 CFR part 71) to amend the Class E airspace
area at Lovelock, NV. The development of GPS SIAP at Lovelock Derby
Field has made this proposal necessary. The intended effect of this
proposal is to provide adequate Class E airspace for aircraft executing
the GPS RWY 1 SIAP at Lovelock Derby Field, Lovelock, NV. Class E
airspace designations for airspace areas extending upward from 700 feet
or more above the surface of the earth are published in Paragraph 6005
of FAA Order 7400.9C dated August 17, 1995, and effect September 16,
1995, which is incorporated be reference in 14 CFR 71.1. The Class E
airspace designation listed in this document would published
subsequently in this Order.
The FAA has determined that this proposed regulation only involves
an established body of technical regulations for which frequent and
routine amendments are necessary to keep them operationally current.
Therefore, this proposed regulation--(1) is not a ``significant
regulatory action'' under Executive Order 12866; (2) is not a
``significant rule'' under DOT Regulatory Policies and Procedures (44
FR 1034; February 26, 1979); and (3) does not warrant preparation of a
Regulatory Evaluation as the anticipated impact is so minimal. Since
this is a routine matter that will only affect air traffic procedures
and air navigation, it is certified that this proposed rule would not
have a significant economic impact on a substantial number of small
entities under the criteria of the Regulatory Flexibility Act.
List of Subjects in 14 CFR Part 71
Airspace, Incorporation by reference, Navigation (air).
The Proposed Amendment
In consideration of the foregoing, the Federal Aviation
Administration proposes to amend 14 CFR part 71 as follows:
PART 71--[AMENDED]
1. The authority citation for 14 CFR part 71 is revised to read as
follows:
Authority: 49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24
FR 9565, 3 CFR, 1959-1963 Comp., p. 389; 14 CFR 11.69.
Sec. 71.1 [Amended]
2. The incorporation by reference in 14 CFR 71.1 of the Federal
Aviation Administration Order 7400.9C, Airspace Designations and
Reporting Points, dated August 17, 1995, and effective September 16,
1995, is amended as follows:
Paragraph 6005 Class E Airspace Areas Extending Upward From 700
Feet or More Above the Surface of the Earth
* * * * *
AWP NV E5 Lovelock, NV [Revised]
Lovelock Derby Field, NV
(Lat. 40 deg.03'59''N, long. 118 deg.33'55''W)
Lovelock VORTAC
(Lat. 40 deg.07'30''N, long. 118 deg.34'40''W)
That airspace extending upward from 700 feet above the surface
within a 4.3-mile radius of Lovelock Derby Field and within 3.5
miles each side of the 349 deg. radial of the Lovelock VORTAC,
extending from the 4.3-mile radius to 10.4 miles north of the
Lovelock VORTAC. That airspace extending upward from 1,200 feet
above the surface beginning at lat. 40 deg.37'30''N, long.
118 deg.36'34''W; to lat. 40 deg.12'00''N, long. 118 deg.55'04''W;
to lat. 40 deg.03'00''N, long. 118 deg.52'04''W; to lat.
40 deg.18'00''N, long. 118 deg.22'34''W; to lat. 40 deg.27'00''N,
long. 118 deg.34'04'', to the point of beginning and that airspace
beginning at lat. 40 deg.05'00''N, long. 118 deg.28'29''W; to lat.
40 deg.06'00''N, long. 118 deg.23'04''; to lat. 40 deg.03'00''N,
long. 118 deg.22'04''W; to lat. 40 deg.00'00''N, long.
118 deg.31'44'', thence via a 4.3-mile radius of Derby Field to the
point of beginning and that airspace bounded by a line beginning at
lat. 40 deg.23'00''N, long. 118 deg.29'00''W; to lat.
40 deg.32'00''N, long. 118 deg.14'00''W; to lat. 40 deg.22'00''N,
long. 118 deg.14'00''W; to lat. 40 deg.18'00''N, long.
118 deg.23'00''W; thence to the point of beginning.
* * * * *
Issued in Los Angeles, California, on October 16, 1995.
Richard R. Lien,
Manager, Air Traffic Division, Western-Pacific Region.
[FR Doc. 95-26771 Filed 10-27-95; 8:45 am]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 95-26770 Special Condition: Israel Aircraft Industries (IAI), Model Galaxy, High-Intensity Radiated Fields
[Federal Register Volume 60, Number 209 (Monday, October 30, 1995)]
[Proposed Rules]
[Pages 55220-55222]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-26770]
=======================================================================
-----------------------------------------------------------------------
[[Page 55221]]
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 25
[Docket No. NM-118; Notice No. SC-95-6-NM]
Special Condition: Israel Aircraft Industries (IAI), Model
Galaxy, High-Intensity Radiated Fields
AGENCY: Federal Aviation Administration, DOT.
ACTION: Notice of proposed special conditions.
-----------------------------------------------------------------------
SUMMARY: This notice proposes special conditions for the Israel
Aircraft Industries (IAI) Model Galaxy airplane. This new airplane will
utilize new avionics/electronic systems, such as electronic displays
and electronic engine controls, that perform critical functions. The
applicable regulations do not contain adequate or appropriate safety
standards for the protection of these systems from the effects of high-
intensity radiated fields (HIRF). These proposed special conditions
contain the additional safety standards that the Administrator
considers necessary to establish a level of safety equivalent to that
established by the existing airworthiness standards.
DATES: Comments must be received on or before December 14, 1995.
ADDRESSES: Comments on this proposal may be mailed in duplicate to:
Federal Aviation Administration, Office of the Assistant Chief Counsel,
Attn: Rules Docket (ANM-7), Docket No. NM-118, 1601 Lind Avenue SW.,
Renton, Washington, 98055-4056; or delivered in duplicate to the Office
of the Assistant Chief Counsel at the above address. Comments must be
marked: Docket No. NM-118. Comments may be inspected in the Rules
Docket weekdays, except Federal holidays, between 7:30 a.m. and 4:00
p.m.
FOR FURTHER INFORMATION CONTACT: Timothy Dulin, FAA, Standardization
Branch, ANM-113, Transport Airplane Directorate, Aircraft Certification
Service, 1601 Lind Avenue SW., Renton, Washington, 98055-4056;
telephone (206) 227-2141; facsimile (206) 227-1149.
SUPPLEMENTARY INFORMATION:
Comments Invited
Interested persons are invited to participate in the making of
these proposed special conditions by submitting such written data,
views, or arguments as they may desire. Communications should identify
the regulatory docket or notice number and be submitted in duplicate to
the address specified above. All communications received on or before
the closing date for comments will be considered by the Administrator
before further rulemaking action is taken on these proposals. The
proposals contained in this notice may be changed in light of comments
received. All comments submitted will be available in the Rule Docket
for examination by interested persons, both before and after the
closing date for comments. A report summarizing each substantive public
contact with FAA personnel concerning this rulemaking will be filed in
the docket. Persons wishing the FAA to acknowledge receipt of their
comments submitted in response to this notice must submit with those
comments a self-addressed, stamped postcard on which the following
statement is made: ``Comments to Docket No. NM-118.'' The postcard will
be date stamped and returned to the commenter.
Background
On July 29, 1992, Israel Aircraft Industries (IAI), Ben Gurion
International Airport, Tel Aviv 70100, Israel, applied for a new type
certificate in the transport airplane category for the Model Galaxy
airplane. On April 19, 1995, IAI applied for an extension of the
original application and selected June 21, 1994, as the new reference
date of application. The Model Galaxy is a derivative of the IAI Model
1125 Westwind Astra and is designed to be a long-range, high-speed
airplane with a swept low wing and two aft-fuselage-mounted Pratt &
Whitney Canada (PWC) 306A engines. The Model Galaxy will have a maximum
takeoff weight of 33,450 pounds, a conventional empennage, a crew of
two, and will be operated as an executive/corporate or commuter
airplane with a maximum seating capacity of 19 passengers.
Type Certification Basis
Under the provisions of Sec. 21.17, IAI must show, except as
provided in Sec. 25.2, that the Model Galaxy meets the applicable
provisions of part 25, effective February 1, 1965, as amended by
Amendments 25-1 through 25-82. In addition, the proposed certification
basis for the Model Galaxy includes part 34, effective September 10,
1990, including all amendments in effect at the time of certification;
and part 36, effective December 1, 1969, including all amendments in
effect at the time of certification. No exemptions are anticipated. The
special conditions that may be developed as a result of this notice
will form an additional part of the type certification basis. In
addition, the certification basis may include other special conditions
that are not relevant to these proposed special conditions.
If the Administrator finds that the applicable airworthiness
regulations (i.e., part 25, as amended) do not contain adequate or
appropriate safety standards for the Model Galaxy because of a novel or
unusual design feature, special conditions are prescribed under the
provisions of Sec. 21.16 to establish a level of safety equivalent to
that established in the regulations.
Special conditions, as appropriate, are issued in accordance with
Sec. 11.49 of the FAR after public notice, as required by Secs. 11.28
and 11.29, and become part of the type certification basis in
accordance with Sec. 21.17(a)(2).
In addition to the applicable airworthiness regulations and special
conditions, the Model Galaxy must comply with the fuel vent and exhaust
emission requirements of part 34 and the noise certification
requirements of part 36, and the FAA must issue a finding of regulatory
adequacy pursuant to Sec. 611 of Public Law 92-574, the ``Noise Control
Act of 1972.''
Special conditions are initially applicable to the model for which
they are issued. Should the type certificate for that model be amended
later to include any other model that incorporates the same novel or
unusual design feature, the special conditions would also apply to the
other model under the provisions of Sec. 21.101(a)(1).
Novel or Unusual Design Features
The Model Galaxy airplane incorporates new avionic/electronic
systems, such as electronic displays and electronic engine controls,
that perform critical functions. These systems may be vulnerable to
high-intensity radiated fields external to the airplane.
Discussion
There is no specific regulation that addresses protection
requirements for electrical and electronic systems from HIRF. Increased
power levels from ground-based radio transmitters and the growing use
of sensitive electrical and electronic systems to command and control
airplanes have made it necessary to provide adequate protection.
To ensure that a level of safety is achieved equivalent to that
intended by the applicable regulations, special conditions are proposed
for the IAI Galaxy that would require that electrical and electronic
systems which perform critical functions be designed and installed to
preclude component damage and interruption of function due to both the
direct and indirect effects of HIRF.
[[Page 55222]]
High-Intensity Radiated Fields (HIRF)
With the trend toward increased power levels from ground-based
transmitters, plus the advent of space and satellite communications,
coupled with electronic command and control of the airplane, the
immunity of critical digital avionics systems to HIRF must be
established.
It is not possible to precisely define the HIRF to which the
airplane will be exposed in service. There is also uncertainty
concerning the effectiveness of airframe shielding for HIRF.
Furthermore, coupling of electromagnetic energy to cockpit-installed
equipment through the cockpit window apertures is undefined. Based on
surveys and analysis of existing HIRF emitters, an adequate level of
protection exists when compliance with the HIRF protection special
condition is shown with either paragraphs 1 OR 2 below:
1. A minimum threat of 100 volts per meter peak electric field
strength from 10 KHz to 18 GHz.
a. The threat must be applied to the system elements and their
associated wiring harnesses without the benefit of airframe shielding.
b. Demonstration of this level of protection is established through
system tests and analysis.
2. A threat external to the airframe of the following field
strengths for the frequency ranges indicted.
------------------------------------------------------------------------
Peak (V/ Average
Frequency M) (V/M)
------------------------------------------------------------------------
10 KHz-100 KHz.................................... 50 50
100 KHz-500 KHz................................... 60 60
500 KHz-2 MHz..................................... 70 70
2 MHz-30 MHz...................................... 200 200
30 MHz-100 MHz.................................... 30 30
100 MHz-200 MHz................................... 150 33
200 MHz-400 MHz................................... 70 70
400 MHz-700 MHz................................... 4,020 935
700 MHz-1 GHz..................................... 1,700 170
1 GHz-2 GHz....................................... 5,000 990
2 GHz-4 GHz....................................... 6,680 840
4 GHz-6 GHz....................................... 6,850 310
6 GHz-8 GHz....................................... 3,600 670
8 GHz-12 GHz...................................... 3,500 1,270
12 GHz-18 GHz..................................... 3,500 360
18 GHz-40 GHz..................................... 2,100 750
------------------------------------------------------------------------
As discussed above, the proposed special conditions would be
applicable initially to the IAI Model Galaxy. Should IAI apply at a
later date for a change to the type certificate to include another
model incorporating the same novel or unusual design feature, the
special conditions would apply to that model as well, under the
provisions of Sec. 21.101(a)(1).
Conclusion
This action affects certain design features only on the IAI Galaxy
airplane. It is not a rule of general applicability and affects only
the manufacturer who applied to the FAA for approval of these features
on the airplane.
List of Subjects in 14 CFR Part 25
Aircraft, Aviation safety, Reporting and record keeping
requirements.
The authority citation for this special condition is as follows:
Authority: 49 U.S.C. app. 1344, 1354(a), 1355, 1421, 1423, 1424, 1425,
1428, 1429, 1430, and 49 U.S.C. 106(g).
The Proposed Special Condition
Accordingly, the Federal Aviation Administration (FAA) proposes the
following special condition as part of the type certification basis for
the IAI Model Galaxy airplanes. 1. Protection from Unwanted Effects of
High-Intensity Radiated Fields (HIRF). Each electrical and electronic
system that performs critical functions must be designed and installed
to ensure that the operation and operational capability of these
systems to perform critical functions are not adversely affected when
the airplane is exposed to high-intensity radiated fields.
For the purpose of this special condition, the following definition
applies:
Critical Functions. Functions whose failure would contribute to or
cause a failure condition that would prevent the continued safe flight
and landing of the airplane.
Issued in Renton, Washington, on October 13, 1995.
Darrell M. Pederson,
Acting Manager, Transport Airplane Directorate, Aircraft Certification
Service, ANM-100.
[FR Doc. 95-26770 Filed 10-27-95; 8:45 am]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 95-26768 Proposed Establishment of Class D Airspace and Amendment of Class E Airspace; Elko, NV
[Federal Register Volume 60, Number 209 (Monday, October 30, 1995)]
[Proposed Rules]
[Pages 55222-55223]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-26768]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 71
[Airspace Docket No. 95-AWP-30]
Proposed Establishment of Class D Airspace and Amendment of Class
E Airspace; Elko, NV
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: This notice proposes to establish a Class D and amend Class E
airspace at Elko Municipal-J.C. Harris Field, Elko, NV. The development
of a Global Positioning System (GPS) Standard Instrument Approach
Procedure (SIAP) to Runway (RWY) 5 and establishment of a Airport
Traffic Control Tower has made this proposal necessary.
DATES: Comments must be received on or before December 4, 1995.
ADDRESSES: Send comments on the proposal in triplicate to: Federal
Aviation Administration, Attn: Manager, System Management Branch, AWP-
530, Docket No. 95-AWP-30, Air Traffic Division, P.O. Box 92007,
Worldway Postal Center, Los Angeles CA 90009.
The official docket may be examined in the Office of the Assistant
Chief Counsel, Western Pacific Region, Federal Aviation Administration,
Room 6007, 15000 Aviation Blvd., Lawndale, CA 90261.
An informal docket may also be examined during normal business at
the Office of the Manager, System Management Branch, Air Traffic
Division at the above address.
FOR FURTHER INFORMATION CONTACT:
Scott Speer, Airspace Specialist, System Management Branch, AWP-530,
Air Traffic Division, Western-Pacific Region, Federal Aviation
Administration, 15000 Aviation Blvd., Lawndale, CA 90261, telephone
(310) 725-6533.
SUPPLEMENTARY INFORMATION:
Comments Invited
Interested parties are invited to participate in this proposed
rulemaking by submitting such written data, views, or arguments as they
may desire. Comments that provide the factual basis supporting the
views and suggestions presented are particularly helpful in developing
reasoned regulatory decisions on the proposal. Comments are
specifically invited on the overall regulatory, aeronautical, economic,
environmental, and energy-related aspects of the proposal.
Communications should identify the airspace docket number and be
submitted in triplicate to the address listed above. Commenters wishing
the FAA to acknowledge receipt of their comments on this notice must
submit with the comments a self-addressed, stamped postcard on which
the following statement is made: ``Comments to Airspace Docket No. 95-
AWP-30.'' The postcard will be date/time stamped and returned to the
commenter. All communications received on or before the specified
closing date for comments will be considered before taking action on
the proposed rule. The proposal contained in this notice may be changed
in light of comments received. All comments submitted will be available
for examination in the System Management Branch, Air Traffic Division,
at 15000 Aviation Blvd., Lawndale, CA 90261,
[[Page 55223]]
both before and after the closing date for comments. A report
summarizing each substantive public contact with FAA personnel
concerned with this rulemaking will be filed in the docket.
Availability of NPRM
Any person may obtain a copy of this Notice of Proposed Rulemaking
(NPRM) by submitting a request to the Federal Aviation Administration,
System Management Branch, P.O. Box 92007, Worldway Postal Center, Los
Angeles, California 90009. Communications must identify the notice
number of this NPRM. Persons interested in being placed on a mailing
list for future NPRM's should also request a copy of Advisory Circular
No. 11-2A, which describes the application procedures.
The Proposal
The FAA is considering an amendment to part 71 of the Federal
Aviation Regulations (14 CFR part 71), to establish a Class D and amend
Class E airspace at Elko, NV. The development of GPS SIAP and
establishment of an Airport Traffic Control Tower at Elko Municipal-
J.C. Harris Field has made this proposal necessary. Class D and Class E
airspace designations are published in Paragraphs 5000, 6002, and 6005
of FAA Order 7400.9C dated August 17, 1995, and effective September 16,
1995, which is incorporated by reference in 14 CFR 71.1. The Class D
and E airspace designations listed in this document would be published
subsequently in this Order.
The FAA has determined that this proposed regulation only involves
an established body of technical regulations for which frequent and
routine amendments are necessary to keep them operationally current.
Therefore, this proposed regulation--(1) is not a ``significant
regulatory action'' under Executive Order 12866; (2) is not a
``significant rule'' under DOT Regulatory Policies and Procedures (44
FR 10034; February 26, 1979); and (3) does not warrant preparation of a
Regulatory Evaluation as the anticipated impact is so minimal. Since
this is a routine matter that will only affect air traffic procedures
and air navigation, it is certified that this proposed rule would not
have a significant economic impact on a substantial number of small
entities under the criteria of the Regulatory Flexibility Act.
List of Subjects in 14 CFR Part 71
Airspace, Incorporation by reference, Navigation (air).
The Proposed Amendment
In consideration of the foregoing, the Federal Aviation
Administration proposes to amend 14 CFR part 71 as follows:
PART 71--[AMENDED]
1. The authority citation for 14 CFR part 71 is revised to read as
follows:
Authority: 49 U.S.C. 106(g), 40103, 40113, 40120; E. O. 10854,
24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389; 14 CFR 11.69.
Sec. 71.1 [Amended]
2. The incorporation by reference in 14 CFR 71.1 of the Federal
Aviation Administration Order 7400.9C, Airspace Designations and
Reporting Points, dated August 17, 1995, and effective September 16,
1995, is amended as follows:
Paragraph 5000 Class D Airspace
* * * * *
AWP NV D Elko, NV [New]
Elko Municipal-J.C. Harris Field, NV
(Lat. 40 deg.49'31''N, long 115 deg.47'28''W)
That airspace extending upward from the surface to including
7,700 feet MSL within a 4.3-mile radius of Elko Municipal-J.C.
Harris Field and within 1.8 miles each side of the 248 deg. bearing
from the Elko Municipal-J.C. Harris Field, extending from the 4.3-
mile radius to 6 miles southwest of the airport. This Class D
airspace area is effective during the specific dates and times
established in advanced by a Notice to Airmen. The effective date
and time will thereafter be continuously published in the Airport/
Facility Directory.
* * * * *
Paragraph 6002 Class E Airspace Areas Designated as a Surface Area
for an Airport
* * * * *
AWP NV E2, Elko, NV [Revised]
Elko Municipal-J.C. Harris Field, NV
(Lat. 40 deg.49'31''N, long. 115 deg.47'28''W)
Within a 4.3-mile radius of the Elko Municipal-J.C. Harris Field
and within 1.8 miles each side of the 248 deg. bearing from the Elko
Municipal-J.C. Harris Field, extending from the 4.3-mile radius to 6
miles southwest of the Elko Municipal-J.C. Harris Field and within
1.8 miles each side of the 075 deg. bearing from the Elko Municipal-
J.C. Harris Field, extending from the 4.3-mile radius to 8.3 miles
northeast of the airport. This Class E airspace area is effective
during the specific dates and times established in advanced by a
Notice to Airmen. The effective date and time will thereafter be
continuously published in the Airport/Facility Directory.
* * * * *
Paragraph 6005 Class E Airspace Areas Extending Upward From 700
Feet or More Above the Surface of the Earth
* * * * *
AWP NV E5 Elko, NV [Revised]
Elko Municipal-J.C. Harris Field, NV
(Lat. 40 deg.49'31''N, long. 115 deg.47'28''W)
That airspace extending upward from 700 feet above the surface
within an 8.3-mile radius of Elko Municipal-J.C. Harris Field and
within 1.8 miles either side of 248 deg. bearing from the Elko
Municipal-J.C. Harris Field, extending from the 8.3-mile radius to
the 11.7 miles southwest of the Elko Municipal-J.C. Harris Field and
within 3.9 miles east and 8.3 miles west of the 161 deg. bearing
from the Elko Municipal-J.C. Harris Field, extending from the 8.3-
mile radius to 21.7 miles south of Elko Municipal-J.C. Harris Field
and within 4.3 miles each side of the 075 deg. bearing from the Elko
Municipal-J.C. Harris Field, extending from the 8.3-mile radius to
17.8 miles northeast of the airport. That airspace extending upward
from 1,200 feet above the surface within an 18.7 mile radius of Elko
Municipal-J.C. Harris Field, and that airspace bounded on the north
by the south edge of V-6, on the south by the north edge of V-32, on
the east by the 18.7-mile radius west of the Elko Municipal-J.C.
Harris Field and that airspace bounded by a line beginning at lat.
40 deg.34'00''N, long. 116 deg.00'00''W; to lat. 40 deg.27'00''N,
long. 116 deg.36'00''W; to lat. 40 deg.31'00''N, long.
116 deg.38'00''N; to lat. 40 deg.32'00''N, long. 116 deg.33'00''W;
to lat. 40 deg.33'30''N, long. 116 deg.33'30''W; to lat.
40 deg.38'00''N, long. 116 deg.07'00''W, thence via the 18.7-mile
radius of Elko Municipal-J.C. Harris Field to the point of
beginning.
* * * * *
Issued in Los Angeles, California, on October 16, 1995.
Richard R. Lien,
Manager, Air Traffic Division, Western-Pacific Region.
[FR Doc. 95-26768 Filed 10-27-95; 8:45 am]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 95-26767 Proposed Amendment of Class E Airspace; Britton, SD, Britton Municipal Airport
[Federal Register Volume 60, Number 209 (Monday, October 30, 1995)]
[Proposed Rules]
[Pages 55225-55227]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-26767]
-----------------------------------------------------------------------
[[Page 55226]]
DEPARTMENT OF TRANSPORTATION
14 CFR Part 71
[Airspace Docket No. 95-AGL-14]
Proposed Amendment of Class E Airspace; Britton, SD, Britton
Municipal Airport
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: This notice proposes to amend the Class E airspace at Britton,
SD. A nondirectional radio beacon (NDB) or Global Positioning System
(GPS) standard instrument approach procedure (SIAP) to Runway 13 has
been revised for the Britton Municipal Airport. Controlled airspace
extending upward from 700 and 1200 feet above ground level (AGL) is
needed for aircraft executing the approach.
DATES: Comments must be received on or before December 7, 1995.
ADDRESSES: Send comments on the proposal in triplicate to: Federal
Aviation Administration, Office of the Assistant Chief Counsel, AGL-7,
Rules Docket No. 95-AGL-14, 2300 East Devon Avenue, Des Plaines,
Illinois 60018.
The official docket may be examined in the Office of the Assistant
Chief Counsel, Federal Aviation Administration, 2300 East Devon Avenue,
Des Plaines, Illinois. An informal docket may also be examined during
normal business hours at the Air Traffic Division, System Management
Branch, Federal Aviation Administration, 2300 East Devon Avenue, Des
Plaines, Illinois.
FOR FURTHER INFORMATION CONTACT: William W. Kribble, Air Traffic
Division, System Management Branch, AGL-530, Federal Aviation
Administration, 2300 East Devon Avenue, Des Plaines, Illinois 60018,
telephone (708) 294-7568.
SUPPLEMENTARY INFORMATION:
Comments Invited
Interested parties are invited to participate in this proposed
rulemaking by submitting such written data, views, or arguments as they
may desire. Comments that provide the factual basis supporting the
views and suggestions presented are particularly helpful in developing
reasoned regulatory decisions on the proposal. Comments are
specifically invited on the overall regulatory, aeronautical, economic,
environmental, and energy-related aspects of the proposal.
Communications should identify the airspace docket number and be
submitted in triplicate to the address listed above. Commenters wishing
the FAA to acknowledge receipt of their comments on this notice must
submit with those comments a self-addressed, stamped postcard on which
the following statement is made: ``Comments to Airspace Docket No. 95-
AGL-14.'' The postcard will be date/time stamped and returned to the
commenter. All communications received on or before the specified
closing date for comments will be considered before taking action on
the proposed rule. The proposal contained in this notice may be changed
in light of comments received. All comments submitted will be available
for examination in the Rules Docket, FAA, Great Lakes Region, Office of
the Assistant Chief Counsel, 2300 East Devon Avenue, Des Plaines,
Illinois, both before and after the closing date for comments. A report
summarizing each substantive public contact with FAA personnel
concerned with this rulemaking will be filed in the docket.
Availability of NPRM's
Any person may obtain a copy of the Notice of Proposed Rulemaking
(NPRM) by submitting a request to the Federal Aviation Administration,
Office of Public Affairs, Attention: Public Inquiry Center, APA-230,
800 Independence Avenue, S.W., Washington, DC 20591, or by calling
(202) 267-3484. Communications must identify the notice number of this
NPRM. Persons interested in being placed on a mailing list for future
NPRM's should also request a copy of Advisory Circular No. 11-2A, which
describes the application procedure.
The Proposal
The FAA is considering an amendment to part 71 of the Federal
Aviation Regulations (14 CFR part 71) to amend Class E airspace at
Britton, SD. This proposal would provide adequate Class E airspace for
IFR operators executing the NDB or GPS Runway 13 SIAP at Britton
Municipal Airport. Controlled airspace extending from 700 and 1200 feet
AGL is needed for aircraft executing the approach. The area would be
depicted on appropriate aeronautical charts thereby enabling pilots to
circumnavigate the area or otherwise comply with IFR procedures. Class
E airspace designations for airspace areas extending upward from 700
feet or more above the surface of the earth are published in paragraph
6005 of FAA Order 7400.9C dated August 17, 1995, and effective
September 16, 1995, which is incorporated by reference in 14 CFR 71.1.
The Class E airspace designation listed in this document would be
published subsequently in the Order.
The FAA has determined that this proposed regulation only involves
an established body of technical regulations for which frequent and
routine amendments are necessary to keep them operationally current.
Therefore this, proposed regulation--(1) Is not a ``significant
regulatory action'' under Executive Order 12866; (2) is not a
``significant rule'' under DOT Regulatory Policies and Procedures (44
FR 11034; February 26, 1979); and (3) does not warrant preparation of a
Regulatory Evaluation as the anticipated impact is so minimal. Since
this is a routine matter that will only affect air traffic procedures
and air navigation, it is certified that this proposed rule will not
have a significant economic impact on a substantial number of small
entities under the criteria of the Regulatory Flexibility Act.
List of Subjects in 14 CFR Part 71
Airspace, Incorporation by reference, Navigation (air).
The Proposed Amendment
Accordingly, pursuant to the authority delegated to me, the Federal
Aviation Administration proposes to amend part 71 of the Federal
Aviation Regulations (14 CFR part 71) as follows:
PART 71--[AMENDED]
1. The authority citation for part 71 continues to read as follows:
Authority: 49 U.S.C. 106(g) 40103, 40113, 40120; E.O. 10854, 24
FR 9565, 3 CFR, 1959-1963 Comp., p. 389; 14 CFR 11.69.
Sec. 71.1 [Amended]
2. The incorporation by reference in 14 CFR 71.1 of the Federal
Aviation Administration Order 7400.9C, Airspace Designations and
Reporting Points, dated August 17, 1995, and effective September 16,
1995, is amended as follows:
Paragraph 6005 Class E Airspace Areas Extending From 700 Feet or
More Above the Surface of the Earth
* * * * *
AGL SD E5 Britton, SD [Revised]
(lat. 45 deg.48'57''N, long. 97 deg.44'39''W)
That airspace extending upward from 700 feet above the surface
within a 7-mile radius of the Britton Municipal Airport and that
airspace extending upward from 1,200 feet above the surface bounded
on the west by long. 983000W, on the north by lat. 463000N, on the
east by long. 970000W, and on the south by lat. 443000N, excluding
the Fargo, ND; Watertown, SD, Huron, SD; Aberdeen, SD; 1,200 foot
Class E airspace areas and all federal airways.
* * * * *
[[Page 55227]]
Issued in Des Plaines, Illinois on October 12, 1995.
Maureen Woods,
Acting Manager, Air Traffic Division.
[FR Doc. 95-26767 Filed 10-17-95; 8:45 am]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 95-26763 Proposed Establishment of Class E Airspace; Eagle Butte, SD, Cheyenne Eagle Butte Airport
[Federal Register Volume 60, Number 209 (Monday, October 30, 1995)]
[Proposed Rules]
[Pages 55227-55228]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-26763]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 71
[Airspace Docket No. 95-AGL-13]
Proposed Establishment of Class E Airspace; Eagle Butte, SD,
Cheyenne Eagle Butte Airport
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: This notice proposes to establish Class E airspace at Eagle
Butte, SD. A Global Positioning System (GPS) standard instrument
approach procedure (SIAP) to Runway 31 has been developed for the
Cheyenne Eagle Butte Airport. Controlled airspace extending upward from
700 feet above ground level (AGL) and from 1200 feet AGL is needed for
aircraft executing the approach.
DATES: Comments must be received on or before December 12, 1995.
ADDRESSES: Send comments on the proposal in triplicate to: Federal
Aviation Administration, Office of the Assistant Chief Counsel, AGL-7,
Rules Docket No. 95-AGL-13, 2300 East Devon Avenue, Des Plaines,
Illinois 60018.
The official docket may be examined in the Office of the Assistant
Chief Counsel, Federal Aviation Administration, 2300 East Devon Avenue,
Des Plaines, Illinois. An informal docket may also be examined during
normal business hours at the Air Traffic Division, System Management
Branch, Federal Aviation Administration, 2300 East Devon Avenue, Des
Plaines, Illinois.
FOR FURTHER INFORMATION CONTACT:
William W. Kribble, Air Traffic Division, System Management Branch,
AGL-530, Federal Aviation Administration, 2300 East Devon Avenue, Des
Plaines, Illinois 60018, telephone (708) 294-7568.
SUPPLEMENTARY INFORMATION:
Comments Invited
Interested parties are invited to participate in this proposed
rulemaking by submitting such written data, views, or arguments as they
may desire. Comments that provide the factual basis supporting the
views and suggestions presented are particularly helpful in developing
reasoned regulatory decisions on the proposal. Comments are
specifically invited on the overall regulatory, aeronautical, economic,
environmental, and energy-related aspects of the proposal.
Communications should identify the airspace docket number and be
submitted in triplicate to the address listed above. Commenters wishing
the FAA to acknowledge receipt of their comments on this notice must
submit with those comments a self-addressed, stamped postcard on which
the following statement is made: ``Comments to Airspace Docket No. 95-
AGL-13.'' The postcard will be date/time stamped and returned to the
commenter. All communications received on or before the specified
closing date for comments will be considered before taking action on
the proposed rule. The proposal contained in this notice may be changed
in light of comments received. All comments submitted will be available
for examination in the Rules Docket, FAA, Great Lakes Region, Office of
the Assistant Chief Counsel, 2300 East Devon Avenue, Des Plaines,
Illinois, both before and after the closing date for comments. A report
summarizing each substantive public contact with FAA personnel
concerned with this rulemaking will be filed in the docket.
Availability of NPRM's
Any person may obtain a copy of the Notice of Proposed Rulemaking
(NPRM) by submitting a request to the Federal Aviation Administration,
Office of Public Affairs, Attention: Public Inquiry Center, APA-230,
800 Independence Avenue, SW., Washington, DC 20591, or by calling (202)
267-3484. Communications must identify the notice number of this NPRM.
Persons interested in being placed on a mailing list for future NPRM's
should also request a copy of Advisory Circular No. 11-2A, which
describes the application procedure.
The Proposal
The FAA is considering an amendment to part 71 of the Federal
Aviation Regulations (14 CFR part 71) to establish Class E airspace at
Eagle Butte, SD. This proposal would provide adequate Class E airspace
for operators executing the GPS Runway 31 SIAP at Cheyenne Eagle Butte
Airport. Controlled airspace extending from 700 feet AGL and 1200 feet
AGL is needed for aircraft executing the approach. The area would be
depicted on appropriate aeronautical charts thereby enabling pilots to
circumnavigate the area or otherwise comply with IFR procedures. Class
E airspace designations for airspace areas extending upward from 700
feet or more above the surface of the earth are published in paragraph
6005 of FAA Order 7400.9C dated August 17, 1995, and effective
September 16, 1995, which is incorporated by reference in 14 CFR 71.1.
The Class E airspace designation listed in this document would be
published subsequently in the Order.
The FAA has determined that this proposed regulation only involves
an established body of technical regulations for which frequent and
routine amendments are necessary to keep them operationally current.
Therefore this, proposed regulation--(1) is not a ``significant
regulatory action'' under Executive Order 12866; (2) is not a
``significant rule'' under DOT Regulatory Policies and Procedures (44
FR 11034; February 26, 1979); and (3) does not warrant preparation of a
Regulatory Evaluation as the anticipated impact is so minimal. Since
this is a routine matter that will only affect air traffic procedures
and air navigation, it is certified that this proposed rule will not
have a significant economic impact on a substantial number of small
entities under the criteria of the Regulatory Flexibility Act.
List of Subjects in 14 CFR Part 71
Airspace, Incorporation by reference, Navigation (air).
The Proposed Amendment
Accordingly, pursuant to the authority delegated to me, the Federal
Aviation Administration proposes to amend part 71 of the Federal
Aviation Regulations (14 CFR part 71) as follows:
PART 71--[AMENDED]
1. The authority citation for part 71 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24
FR 9565, 3 CFR, 1959-1963 Comp., p. 389; 14 CFR 11.69.
Sec. 71.1 [Amended]
2. The incorporation by reference in 14 CFR 71.1 of the Federal
Aviation Administration Order 7400.9C, Airspace Designations and
Reporting Points, dated August 17, 1995, and effective September 16,
1995, is amended as follows:
Paragraph 6005 Class E Airspace Areas Extending Upward From 700
Feet or More Above the Surface of the Earth
* * * * *
AGL SD E5 Eagle Butte, SD [New]
(lat. 44 deg.59'06'' N, long. 101 deg.15'07'' W)
That airspace extending upward from 700 feet above the surface
within a 7-mile radius of the Cheyenne Eagle Butte Airport and that
[[Page 55228]]
airspace extending upward from 1,200 feet above the surface from the 7-
mile radius to 9 miles northwest of the airport clockwise from V120
to V344 and from the 7-mile radius to the 19-mile radius east of the
airport clockwise from V344 to V120.
* * * * *
Issued in Des Plaines, Illinois on October 14, 1995.
Maureen Woods,
Acting Manager, Air Traffic Division.
[FR Doc. 95-26763 Filed 10-27-95; 8:45 am]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 95-26762 Proposed Amendment to Class E Airspace; Omaha, Millard Airport, NE
[Federal Register Volume 60, Number 209 (Monday, October 30, 1995)]
[Proposed Rules]
[Pages 55223-55224]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-26762]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 71
[Airspace Docket No. 95-ACE-10]
Proposed Amendment to Class E Airspace; Omaha, Millard Airport,
NE
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: This notice proposes to amend the Class E airspace area at
Omaha, Millard Airport, NE. The development of a new Standard
Instrument Approach Procedure (SIAP) based on the Global Positioning
System has made the proposal necessary. The intended effect of this
proposal is to provide an additional .4 mile of controlled airspace for
aircraft executing the SIAP at Omaha, Millard Airport, NE.
DATES: Comments must be received on or before December 1, 1995.
ADDRESSES: Send comments on the proposal in triplicate to: Manager, Air
[[Page 55224]]
Traffic Operations Branch, ACE-530, Federal Aviation Administration,
Docket No. 95-ACE-10, 601 East 12th Street, Kansas City, MO 64106.
The official docket may be examined in the Office of the Assistant
Chief Counsel for the Central Region at the same address between 9:00
a.m. and 3:00 p.m., Monday through Friday, except Federal holidays.
An informal docket may also be examined during normal business
hours in the office of the Manager, Air Traffic Operations Branch, Air
Traffic Division, at the address listed above.
FOR FURTHER INFORMATION CONTACT:
Kathy Randolph, Air Traffic Division, Air Traffic Operations Branch,
ACE-530C, Federal Aviation Administration, 601 East 12th Street, Kansas
City, Missouri 64106; telephone number: (816) 426-3408.
SUPPLEMENTARY INFORMATION:
Comments Invited
Interested parties are invited to participate in this proposed
rulemaking by submitting such written data, views, or arguments as they
may desire. Comments that provide the factual basis supporting the
views and suggestions presented are particularly helpful in developing
reasoned regulatory decisions on the proposal. Comments are
specifically invited on the overall regulatory, economic,
environmental, and energy-related aspects of the proposal.
Communications should identify the airspace docket number and be
submitted in triplicate to the address listed above. Commenters wishing
the FAA to acknowledge receipt of their comments on this notice must
submit with those comments a self-addressed, stamped postcard on which
the following statement is made: ``Comments to Airspace Docket No. 95-
ACE-10.'' The postcard will be date/time stamped and returned to the
commenter. All communications received on or before the closing date
for comments will be considered before taking action on the proposed
rule. The proposal contained in this notice may be changed in light of
comments received. All comments submitted will be available for
examination in the Rules Docket both before and after the closing date
for comments. A report summarizing each substantive public contact with
FAA personnel concerned with this rulemaking will be filed in the
docket.
Availability of NPRMs
Any person may obtain a copy of this Notice of Proposed Rulemaking
(NPRM) by submitting a request to the Federal Aviation Administration,
Office of Public Affairs, Attention: Public Inquiry Center, APA-230,
800 Independence Avenue, SW, Washington, DC 20591, or by calling (202)
267-3484. Communications must identify the notice number of this NPRM.
Persons interested in being placed on a mailing list for future NPRMs
should also request a copy of Advisory Circular No. 11-2A, which
describes the procedures.
The Proposal
The FAA is considering an amendment to part 71 of the Federal
Aviation Regulations (14 CFR part 71) to provide additional controlled
airspace for a new Instrument Flight Rules (IFR) procedure at the
Omaha, Millard Airport. The additional airspace would segregate
aircraft operating under VFR conditions from aircraft operating under
IFR procedures. The area would be depicted on appropriate aeronautical
charts thereby enabling pilots to circumnavigate the area or otherwise
comply with IFR procedures. Class E airspace designations for airspace
areas extending upward from 700 feet or more above the surface of the
earth are published in paragraph 6005 of FAA Order 7400.9C, dated
August 17, 1995, and effective September 16, 1995, which is
incorporated by reference in 14 CFR 71.1. The Class E airspace
designation listed in this document would be published subsequently in
the Order.
The FAA has determined that this proposed regulation only involves
an established body of technical regulations for which frequent and
routine amendments are necessary to keep them operationally current.
Therefore, this proposed regulation--(1) is not a ``significant
regulatory action'' under Executive Order 12866; (2) is not a
``significant rule'' under DOT Regulatory Policies and Procedures (44
FR 11034; February 26, 1979); and (3) does not warrant preparation of a
Regulatory Evaluation as the anticipated impact is so minimal. Since
this is a routine matter that will only affect air traffic procedures
and air navigation, it is certified that this proposed rule will not
have a significant economic impact on a substantial number of small
entities under the criteria of the Regulatory Flexibility Act.
List of Subjects in 14 CFR Part 71
Airspace, Incorporation by reference, Navigation (air).
The Proposed Amendment
Accordingly, pursuant to the authority delegated to me, the Federal
Aviation Administration proposes to amend part 71 of the Federal
Aviation Regulations (14 CFR part 71) as follows:
PART 71--[AMENDED]
1. The authority citation for part 71 continues to read as follows:
Authority: 49 U.S.C. 106(g); 40103, 40113, 40120; E.O. 10854, 24
FR 9565, 3 CFR, 1959-1963 Comp., p. 389; 14 CFR 11.69.
Sec. 71.1 [Amended]
2. The incorporation by reference in 14 CFR 71.1 of Federal
Aviation Administration Order 7400.9C, Airspace Designations and
Reporting Points, dated August 17, 1995, and effective September 16,
1995, is amended as follows:
Paragraph 6005 Class E Airspace Areas Extending Upward From 700
Feet or More Above the Surface of the Earth
* * * * *
ACE NE E5 Omaha, Millard Airport, NE [Revised]
Omaha, Millard Airport, NE
(Lat. 41 deg.11'46''N, long. 96 deg.06'44''W)
Millard NDB
(Lat. 41 deg.11'42''N, long. 96 deg.06'51''W)
That airspace extending upward from 700 feet above the surface
within a 6.4-mile radius of Millard Airport and within 4.4 miles
each side of the 316 deg. bearing from the Millard NDB extending
from the 6.4-mile radius to 8.3 miles northwest of the airport,
excluding that airspace which lies within the Eppley Airfield And
Offutt Air Force Base E5 airspace.
* * * * *
Issued in Kansas City, MO, on October 4, 1995.
Herman J. Lyons, Jr.,
Manager, Air Traffic Division, Central Region.
[FR Doc. 95-26762 Filed 10-27-95; 8:45 am]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 95-26738 Selection of Tax Matters Partner for Limited Liability Companies
[Federal Register Volume 60, Number 209 (Monday, October 30, 1995)]
[Proposed Rules]
[Pages 55228-55231]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-26738]
-----------------------------------------------------------------------
DEPARTMENT OF THE TREASURY
26 CFR Part 301
[PS-34-92]
RIN 1545-AS09
Selection of Tax Matters Partner for Limited Liability Companies
AGENCY: Internal Revenue Service (IRS), Treasury.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: This document contains proposed regulations relating to the
designation or selection of a tax matters partner for limited liability
companies classified as partnerships. This document also amends current
proposed regulations to consolidate certain guidance necessary to
determine the tax matters partner for partnerships.
DATES: Written comments and requests for a public hearing must be
received by January 29, 1996.
ADDRESSES: Send submissions to: CC:DOM:CORP:T:R (PS-34-92), room 5228,
Internal Revenue Service, POB 7604, Ben Franklin Station, Washington,
DC 20044. In the alternative, submissions may be hand delivered between
the hours of 8:00 a.m. and 5:00 p.m. to: CC:DOM:CORP:T:R (PS-34-92),
Courier's Desk, Internal Revenue Service, 1111 Constitution Avenue NW.,
Washington, DC.
FOR FURTHER INFORMATION CONTACT: D. Lindsay Russell, (202) 622-3050
(not a toll-free number).
SUPPLEMENTARY INFORMATION:
Background
Prior to the enactment of the Tax Equity and Fiscal Responsibility
Act of 1982 (TEFRA), adjustments attributable to the tax items of a
partnership were made at the partner level. Section 402 of TEFRA added
sections 6221 through 6231 to the Internal Revenue Code of 1986, as
amended, to allow for consolidated administrative and judicial
proceedings to determine the tax treatment of partnership items at the
partnership level. Under this consolidated proceeding, the tax matters
partner of a partnership represents the partnership before the IRS in
all tax matters for a specific taxable year.
Section 6231(a)(7) provides that the tax matters partner of a
partnership is the general partner designated as the tax matters
partner as provided in regulations or, if no general partner is
designated, the general partner having the largest profits interest in
the partnership at the close of the taxable year involved (largest-
profits-interest rule). Section 6231(a)(7) also provides that, if no
general partner is designated and the Commissioner determines that it
is impracticable to apply the largest-profits-interest rule, the
partner selected by the Commissioner is treated as the tax matters
partner.
Proposed regulations under sections 6221 through 6231 and section
6233 were published in the Federal Register (51 FR 13231) on April 18,
1986. Several comments on the proposed regulations were received, but
no public hearing was requested and none was held. Temporary
regulations identical to the proposed regulations were published in the
Federal Register (52 FR 6779) on March 5, 1987. The temporary and
proposed regulations remain outstanding.
On February 29, 1988, the IRS published Rev. Proc. 88-16, 1988-1
C.B. 691. This revenue procedure describes circumstances under which
the IRS will determine that it is impracticable to apply the largest-
profits-interest rule and describes the criteria the IRS will consider
in selecting a tax matters partner for the partnership.
Since the enactment of TEFRA, virtually all states and several
foreign jurisdictions have enacted laws providing for the formation of
limited liability companies (LLCs). Although local law varies as to the
requirements for establishing an LLC, the common denominator is that
none of the members are liable for the debts and obligations of the LLC
beyond their contributions (absent an express assumption of liability
by a member if authorized under the applicable LLC statute). In
addition, under local law, LLCs may be generally managed by elected or
designated ``managers,'' who may be members of the LLC. In most
jurisdictions, however, LLCs need not be managed by elected or
designated managers. In those cases, all members of the LLC have
management authority.
LLCs in most jurisdictions may be classified for Federal tax
purposes either
[[Page 55229]]
as partnerships or associations that are taxable as corporations,
depending on the characteristics of the LLC. See, e.g., Rev. Rul. 88-
76, 1988-2 C.B. 360; Rev. Rul. 93-38, 1993-1 C.B. 233. For LLCs that
are classified as partnerships for Federal tax purposes, it is
necessary to determine the tax matters partner for the LLC.
Explanation of Provisions
A. Tax Matters Partner for LLCs
The proposed regulations provide that a ``member-manager'' of an
LLC will be treated as a general partner for purposes of determining
the tax matters partner of the LLC. Any member of an LLC that is not a
member-manager is treated as a partner other than a general partner.
The proposed regulations define a member-manager as a member of the LLC
who, alone or together with others, is vested with the continuing
exclusive authority to make the management decisions necessary to
conduct the business for which the organization was formed. This
approach is adopted because, if a member of the LLC has such continuing
exclusive management authority, the member should have the necessary
authority and access to partnership records needed to function as a tax
matters partner. The proposed regulations also provide that if there
are no elected or designated member-managers (as described above), each
member will be treated as a member- manager.
The proposed regulations define an LLC as an organization formed
under a law that allows the limitation of the liability of all members
for the organization's debts and other obligations and classified as a
partnership for Federal tax purposes.
B. Amending Proposed Regulations to Incorporate the Provisions of Rev.
Proc. 88-16
The current proposed regulations under Sec. 301.6231(a)(7)-1
provIde certain guidance concerning the designation of a tax matters
partner under the largest-profits-interest rule of section
6231(a)(7)(B). However, the current proposed regulations do not
describe circumstances under which the Commissioner will determine that
it is impracticable to apply the largest-profits-interest rule and do
not describe how the Commissioner will select a tax matters partner
when it is impracticable to apply the largest-profits-interest rule.
This additional guidance is provided in Rev. Proc. 88-16.
For administrative simplicity, the provisions in this notice of
proposed rulemaking amend the current proposed regulations to include
the rules of Rev. Proc. 88-16. As a result, the complete guidance
necessary for determining the tax matters partner for a partnership and
an LLC will be contained in the proposed regulations under section
6231(a)(7).
As amended, the proposed regulations incorporate the provisions of
Rev. Proc. 88-16 with one substantive change. Under sections 3.05 and
3.06 of Rev. Proc. 88-16, if each general partner is deemed to have no
profits interest under section 3.03(2) or 3.03(3), the IRS will select
a limited partner as the tax matters partner. Some partnerships, such
as a general partnership or a foreign LLC in which all members are
member-managers, do not have limited partners. To permit the
Commissioner to select a tax matters partner in these situations, the
proposed regulations allow the Commissioner to select any partner
(including either a general or limited partner) as the tax matters
partner.
Proposed Effective Date
Sections 301.6231(a)(7)-1 and 301.6231(a)(7)-2 are proposed to be
effective for all designations, selections, and terminations of a tax
matters partner occurring on or after the date final regulations are
published in the Federal Register. Any other reasonable designation or
selection of a tax matters partner of an LLC is binding for periods
prior to the effective date of this regulation.
Effect on Other Documents
Rev. Proc. 88-16 is obsolete as of the date final regulations are
published in the Federal Register.
Special Analyses
It has been determined that this notice of proposed rulemaking is
not a significant regulatory action as defined in EO 12866. Therefore,
a regulatory assessment is not required. It also has been determined
that section 553(b) of the Administrative Procedure Act (5 U.S.C.
chapter 5) and the Regulatory Flexibility Act (5 U.S.C. chapter 6) do
not apply to these regulations, and, therefore, a Regulatory
Flexibility Analysis is not required. Pursuant to section 7805(f) of
the Internal Revenue Code, this notice of proposed rulemaking will be
submitted to the Chief Counsel for Advocacy of the Small Business
Administration for comment on its impact on small business.
Comments and Requests for a Public Hearing
Before these proposed regulations are adopted as final regulations,
consideration will be given to any written comments (a signed original
and eight (8) copies) that are submitted timely to the IRS. All
comments will be available for public inspection and copying. A public
hearing may be scheduled if requested in writing by a person that
timely submits written comments. If a public hearing is scheduled,
notice of the date, time, and place for the hearing will be published
in the Federal Register.
Drafting Information
The principal author of these regulations is D. Lindsay Russell,
Office of Assistant Chief Counsel (Passthroughs and Special
Industries). However, other personnel from the IRS and Treasury
Department participated in their development.
List of Subjects in 26 CFR Part 301
Employment taxes, Estate taxes, Excise taxes, Gift taxes, Income
taxes, Penalties, Reporting and recordkeeping requirements.
Proposed Amendments to the Regulations
Accordingly, 26 CFR part 301 is proposed to be amended as follows:
PART 301--PROCEDURE AND ADMINISTRATION
Paragraph 1. The authority citation for part 301 is amended by
adding entries in numerical order to read as follows:
Authority: 26 U.S.C. 7805 * * *
Section 301.6231(a)(7)-1 also issued under 26 U.S.C. 6230 (i)
and (k). * * *
Section 301.6231(a)(7)-2 also issued under 26 U.S.C. 6230 (i)
and (k). * * *
Par. 2. Section 301.6231(a)(7)-1 (as proposed to be added in the
Federal Register for April 18, 1986 (51 FR 13245)) is amended by:
1. Revising the section heading.
2. Adding a new sentence at the end of paragraph (a).
3. Removing the heading for paragraph (c)(1) and redesignating
paragraph (c)(1) as paragraph (c).
4. Removing paragraph (c)(2).
5. Adding a sentence at the end of paragraph (m)(2).
6. Adding paragraphs (n), (o), (p), (q), (r), and (s). The
additions and revisions read as follows:
Sec. 301.6231(a)(7)-1 Designation or selection of tax matters partner.
(a) * * * If a partnership does not designate a general partner as
the tax matters partner for a specific taxable year, or if the
designation is terminated without the partnership designating
[[Page 55230]]
another general partner as the tax matters partner, the tax matters
partner is the partner determined under this section.
* * * * *
(m) * * *
(2) * * * For purposes of this paragraph (m)(2), the general
partner with the largest profits interest is determined based on the
year-end profits interests reported on the Schedules K-1 filed with the
partnership income tax return for the taxable year for which the
determination is being made.
* * * * *
(n) Selection of tax matters partner by Commissioner when
impracticable to apply the largest-profits-interest rule. If the
partnership has not designated a tax matters partner under this section
for the taxable year and it is impracticable (as determined under
paragraph (o) of this section) to apply the largest-profits-interest
rule of paragraph (m)(2) of this section, the Commissioner will select
a tax matters partner as described in paragraph (p) of this section.
(o) Impracticability of largest-profits-interest rule. It is
impracticable to apply the largest-profits-interest rule of paragraph
(m)(2) of this section if, on the date the rule is applied, any one of
the following three conditions is met:
(1) General partner with the largest profits interest is not
apparent. The general partner with the largest profits interest is not
apparent from the Schedules K-1 and is not otherwise readily
determinable.
(2) Each general partner is deemed to have no profits interest in
the partnership. Each general partner is deemed to have no profits
interest in the partnership under paragraph (m)(3) of this section
(concerning termination of a designation under the largest-profits-
interest rule) because of the occurrence of one or more of the events
described in paragraphs (l)(1) through (4) of this section (involving
death, adjudication of incompetency, liquidation, and conversion of
partnership items to nonpartnership items).
(3) General partner with the largest profits interest is
disqualified. The general partner with the largest profits interest
determined under paragraph (m)(2) of this section--
(i) Has been notified of suspension from practice before the
Internal Revenue Service;
(ii) Is incarcerated;
(iii) Is residing outside the United States, its possessions, or
territories; or
(iv) Cannot be located or cannot perform the functions of a tax
matters partner for any reason, except that lack of cooperation with
the Internal Revenue Service by the general partner with the largest
profits interest is not a basis for finding that the partner cannot
perform the functions of a tax matters partner.
(p) Commissioner's selection of the tax matters partner--(1) When
the general partner with the largest profits interest is not apparent.
If it is impracticable under paragraph (o)(1) of this section to apply
the largest-profits interest rule of paragraph (m)(2) of this section,
the Commissioner will select (in accordance with the notification
procedures set forth in paragraph (r) of this section) as the tax
matters partner any person who was a general partner at any time during
the taxable year under examination.
(2) When each general partner is deemed to have no profits interest
in the partnership. If it is impracticable under paragraph (o)(2) of
this section to apply the largest-profits- interest rule of paragraph
(m)(2) of this section, the Commissioner will select a partner
(including a general or limited partner) as the tax matters partner in
accordance with the criteria set forth in paragraph (q) of this
section. The Commissioner will notify both the partner selected and the
partnership of the selection, effective as of the date specified in the
notice.
(3) When the general partner with the largest profits interest is
disqualified--(i) In general. Except as otherwise provided in paragraph
(p)(3)(ii) of this section, if it is impracticable under paragraph
(o)(3) of this section to apply the largest-profits-interest rule of
paragraph (m)(2) of this section, the Commissioner will treat each
general partner who fits the criteria contained in paragraph (o)(3) of
this section as having no profits interest in the partnership for the
taxable year and will select (in accordance with the notification
procedures set forth in paragraph (r) of this section) a tax matters
partner from the remaining persons who were general partners at any
time during the taxable year.
(ii) Partner selected if no general partner may be selected. If all
general partners during the taxable year either are treated as having
no profits interest in the partnership for the taxable year under
paragraph (m)(3) of this section (concerning termination of a
designation under the largest-profits-interest rule) or are described
in paragraph (o)(3) of this section (general partner with the largest
profits interest is disqualified), the Commissioner will select a
partner (including a general or limited partner) as the tax matters
partner in accordance with the criteria set forth in paragraph (q) of
this section. The Commissioner will notify both the partner selected
and the partnership of the selection, effective as of the date
specified in the notice.
(q) Criteria for selecting a partner as tax matters partner--(1) In
general. The Commissioner will select a partner as the tax matters
partner under paragraph (p)(2) or (3)(ii) of this section only if the
partner was a partner in the partnership at the close of the taxable
year under examination.
(2) Criteria to be considered. The Commissioner may consider the
following criteria in selecting a partner as the tax matters partner:
(i) The general knowledge of the partner in tax matters and the
administrative operation of the partnership.
(ii) The partner's access to the books and records of the
partnership.
(iii) The profits interest held by the partner.
(iv) The views of the partners having a majority interest in the
partnership regarding the selection.
(v) Whether the partner is a partner of the partnership at the time
the tax-matters-partner selection is made.
(vi) Whether the partner is a United States person (within the
meaning of section 7701(a)(30)).
(3) Limited restriction on subsequent designation of a tax matters
partner by the partnership. For purposes of paragraphs (p)(2) and
(3)(ii) of this section, the partnership cannot designate a partner who
is not a general partner to serve as tax matters partner in lieu of a
partner selected by the Commissioner.
(r) Notification of partnership--(1) In general. If the
Commissioner selects a tax matters partner under the provisions of
paragraph (p)(1) or (3)(i) of this section, the Commissioner will
notify both the partner selected and the partnership of the selection,
effective as of the date specified in the notice.
(2) Limited opportunity for partnership to designate the tax
matters partner. (i) Before the Commissioner selects a tax matters
partner under paragraphs (p)(1) and (3)(i) of this section, the
Commissioner will notify the partnership by mail that, after 30 days
from the date of the notice, the Commissioner will make a determination
that it is impracticable to apply the largest-profits-interest rule of
paragraph (m)(2) of this section and will select the tax matters
partner unless a prior designation is made by the partnership. This
delay in making the determination will permit the partnership to
designate a tax matters partner under paragraph (e) (designation
[[Page 55231]]
by general partners with a majority interest) or (f) of this section
(designation by partners with a majority interest under certain
circumstances), thereby avoiding a selection made by the Commissioner.
(ii) During the 30-day period and prior to a tax-matters-partner
designation by the partnership, the Commissioner will communicate with
the partnership by sending all correspondence or notices to ``The Tax
Matters Partner'' in care of the partnership at the partnership's
address.
(iii) Any subsequent designation of a tax matters partner by the
partnership after the 30-day period will become effective as provided
under paragraph (k)(2) of this section (concerning designations made
after a notice of beginning of administrative proceeding is mailed).
(s) Effective date. This section applies to all designations,
selections, and terminations of a tax matters partner occurring on or
after the date final regulations are published in the Federal Register.
Par. 3. Section 301.6231(a)(7)-2 is added to read as follows:
Sec. 301.6231(a)(7)-2 Designation or selection of tax matters partner
for a limited liability company (LLC).
(a) In general. Solely for purposes of applying section 6231(a)(7)
and Sec. 301.6231(a)(7)-1 to an LLC, only a member-manager of an LLC is
treated as a general partner, and a member of an LLC who is not a
member-manager is treated as a partner other than a general partner.
(b) Definitions--(1) LLC. Solely for purposes of this section, LLC
means an organization:
(i) Formed under a law that allows the limitation of the liability
of all members for the organization's debts and other obligations
within the meaning of Sec. 301.7701-2(d); and
(ii) Classified as a partnership for Federal tax purposes.
(2) Member. Solely for purposes of this section, member means any
person who owns an interest in an LLC.
(3) Member-manager. Solely for purposes of this section, member-
manager means a member of an LLC who, alone or together with others, is
vested with the continuing exclusive authority to make the management
decisions necessary to conduct the business for which the organization
was formed. Generally, an LLC statute may permit the LLC to choose
management by one or more managers (whether or not members) or by all
of the members. If there are no elected or designated member-managers
(as so defined in this paragraph (b)(3)) of the LLC, each member will
be treated as a member-manager for purposes of this section.
(c) Effective date. This section applies to all designations,
selections, and terminations of a tax matters partner of an LLC
occurring on or after the date final regulations are published in the
Federal Register. Any other reasonable designation or selection of a
tax matters partner of an LLC is binding for periods prior to the
effective date of this section.
Margaret Milner Richardson,
Commissioner of Internal Revenue.
[FR Doc. 95-26738 Filed 10-27-95; 8:45 am]
BILLING CODE 4830-01-U
Complete official Federal Register PDF
FR Doc. 95-26694 Subscribership and Usage of the Public Switched Network
[Federal Register Volume 60, Number 209 (Monday, October 30, 1995)]
[Proposed Rules]
[Pages 55237-55238]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-26694]
=======================================================================
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 36 and 69
[CC Docket No. 95-115; DA 95-2197]
Subscribership and Usage of the Public Switched Network
agency: Federal Communications Commission.
action: Proposed Rule; Extension of Time.
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summary: On July 20, 1995, the Commission released a Notice of Proposed
Rulemaking (``Notice'') concerning rules and policies to increase
subscribership and usage of the public switched network. The Commission
invited comment on the proposals and tentative conclusions set forth in
that Notice, and set deadlines of September 27, 1995, for initial
comments and October 27, 1995, for
[[Page 55238]]
reply comments. The Commission has received comments from more than 60
respondents. Because many of these comments are lengthy and present
alternative proposals to those appearing in the Notice, we find the
October 27th deadline may not provide sufficient time to produce a full
and complete record in this proceeding. Although we do not routinely
extend comment deadlines, we believe that an extension to November 14,
1995, in this proceeding will serve the public interest by giving
interested parties adequate time to review and reply to the initial
comments.
dates: Reply comments are due on or before November 14, 1995.
addresses: Federal Communications Commission, 1919 M Street, NW.,
Washington, DC 20554.
for further information contact: Andy Mulitz, telephone number 202-418-
0827, George Johnson, telephone number 202-418-0866, or John V. Giusti,
telephone number 202-418-0878.
supplementary information:
Order Extending Reply Comment Period
Adopted: October 19, 1995.
Released: October 20, 1995.
By the Chief, Common Carrier Bureau:
1. On July 20, 1995, the Commission released a Notice of Proposed
Rulemaking (``Notice''), 60 FR 44296, August 25, 1995, in the captioned
proceeding concerning rules and policies to increase subscribership and
usage of the public switched network. The Commission invited comment on
the proposals and tentative conclusions set forth in that Notice, and
set deadlines of September 27, 1995, for initial comments and October
27, 1995, for reply comments.
2. The Commission has received comments from more than 60
respondents. Many of these comments are lengthy and present alternative
proposals to those appearing in the Notice that require careful
analysis. In these circumstances, we find the October 27th deadline may
not provide sufficient time to produce a full and complete record in
this proceeding. Although we do not routinely extend comment deadlines,
we believe that an extension to November 14, 1995, in this proceeding
will serve the public interest by giving interested parties adequate
time to review and reply to the initial comments.
3. Accordingly, it is ordered, pursuant to Sections 4(i), 4(j), and
5(c) of the Communications Act of 1934, as amended, 47 U.S.C.
Secs. 154(i), 154(j), and 155(c), and Sections 0.91 and 0.291 of the
Commission's rules, 47 CFR Secs. 0.91 and 0.291, that the deadline for
filing reply comments in the captioned proceeding IS EXTENDED until
November 14, 1995.
Federal Communications Commission.
Kathleen M.H. Wallman,
Chief, Common Carrier Bureau.
[FR Doc. 95-26694 Filed 10-27-95; 8:45 am]
BILLING CODE 6712-01-M
Complete official Federal Register PDF
FR Doc. 95-26590 Approval and Promulgation of Implementation Plans; Ohio
[Federal Register Volume 60, Number 209 (Monday, October 30, 1995)]
[Proposed Rules]
[Page 55231]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-26590]
=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[OH83-1-6991b; AD-FRL-5299-7]
Approval and Promulgation of Implementation Plans; Ohio
agency: Environmental Protection Agency (USEPA).
action: Proposed rule.
-----------------------------------------------------------------------
summary: The USEPA proposes to approve the State Implementation Plan
(SIP) revision submitted by the State of Ohio to correct its Rule 3745-
35-07 that underlies its federally enforceable State operating permits
(FESOP) program. The USEPA proposes further to conclude that Ohio has
satisfied the condition established in USEPA's conditional approval of
Ohio's FESOP program, as published on October 25, 1994, at 59 FR 53586.
In the Final Rules section of this Federal Register, USEPA is fully
approving the State's SIP revision as a direct final rule without prior
proposal, because the USEPA 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 these actions, no further activity is
contemplated in relation to this proposed rule. If USEPA receives
adverse comments, the direct final rule will be withdrawn and all
public comments 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 must be received on or before November 29, 1995.
addresses: Written comments should be mailed to: J. Elmer Bortzer,
Chief, Regulation Development Section, Regulation Development 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 its are
available for inspection at: Regulation Development Section, Regulation
Development Branch (AR-18J), United States Environmental Protection
Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604.
for further information contact: John Summerhays, Regulation
Development Section, Regulation Development Branch (AR-18J), United
States Environmental Protection Agency, Region 5, Chicago, Illinois
60604, (312) 886-6067.
supplementary information: For additional information see the direct
final rule published in the rules section for this Federal Register.
Authority: 42 U.S.C. 7401-7671q.
Dated: September 5, 1995.
Michelle D. Jordan,
Acting Regional Administrator.
[FR Doc. 95-26590 Filed 10-27-95; 8:45 am]
BILLING CODE 6560-50-M
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