Federal Register / Vol. 61, No. 16 / Wednesday, January 24, 1996 / Proposed Rules 1877

excluding that airspace within the Durango,

CO, Class E airspace area, that airspace

within and underlying the Crownpoint, NM,

Class E airspace area.

* * * * *

Issued in Fort Worth, TX on January 3,

1996.

Albert L. Viselli,

Acting Manager, Air Traffic Division,

Southwest Region.

[FR Doc. 96–999 Filed 1–23–96; 8:45 am]

BILLING CODE 4910–13–M

DEPARTMENT OF THE TREASURY

Customs Service

19 CFR Part 118

RIN 1515–AB83

Centralized Examination Stations;

Immediate Suspension or Permanent

Revocation As Operator Upon

Indictment for Any Felony

AGENCY: Customs Service, Treasury.

ACTION: Notice of proposed rulemaking.

SUMMARY: This document proposes to

amend the Customs Regulations

primarily to enable Customs port

directors to immediately suspend

operations at a Centralized Examination

Station (CES) whenever the operator,

entity, or other person exercising

substantial ownership or control over

the operator, is indicted for, convicted

of, or has committed acts which would

constitute any felony. This document

also proposes to make it more specific

that a CES operator’s failure to follow

the terms of the CES written agreement

constitutes a ground for proposed

permanent revocation of the CES and

cancellation of the written agreement to

operate the facility. This action is taken

in order to protect the public interest

and to promote public confidence

concerning the integrity of the CES

program.

DATES: Comments must be received on

or before March 25, 1996.

ADDRESSES: Comments (preferably in

triplicate) must be submitted to the U.S.

Customs Service, Attn: Regulations

Branch, Franklin Court, 1301

Constitution Avenue, NW., Washington,

DC 20229, and may be inspected at the

Regulations Branch, 1099 14th Street

NW., Suite 4000, Washington, DC.

FOR FURTHER INFORMATION CONTACT:

Linda Walfish, Office of Field

Operations, Trade Compliance (202)

927–1167.

SUPPLEMENTARY INFORMATION:

Background

In T.D. 93–6 (58 FR 5596) Customs

amended the Customs Regulations (19

CFR Ch. I) to create a new part 118 that

set forth the regulatory framework for

the establishment, operation, and

termination of Centralized Examination

Stations (CESs). A CES is a privatelyoperated facility, not in the charge of a

Customs officer, at which imported

merchandise is made available to

Customs officers for physical

examination. Regarding the termination

of CESs, Customs stated that immediate

revocation and cancellation for a

criminal act should not be limited to

cases involving an actual conviction or

admission, and that the only criminal

offenses which should result in an

immediate revocation and cancellation

would be those which involved theft,

smuggling, or a theft-connected crime.

On further consideration of the issue

of when revocation, cancellation, or

suspension of an entity selected to be a

CES operator should occur, Customs

now believes that if a CES operator, an

officer of a corporation which operates

a CES, or a person the local ‘‘port

director’’ (a new designation reflecting

Customs pending field reorganization,

the subject of a separate document)

determines exercises substantial

ownership or control over such operator

or corporation is charged with any

conduct which is proscribed as

criminal, the character and integrity of

the particular CES operation becomes

questionable and consideration is

warranted by the local port director as

to whether the operations of the CES

facility should be immediately

suspended for a temporary period of

time, i.e., a period commensurate with

the seriousness of the crime charged,

pending further investigation or outside

adjudication of facts and/or the

institution of permanent revocation and

cancellation proceedings.

This action is being proposed in order

to enhance port directors’ ability to

protect the public interest and to

promote public confidence concerning

the integrity of the CES program.

Because the CES program centralizes at

a particular location several otherwise

disparate processes, including cartage,

devanning, Customs inspection,

sampling, reloading, and returning

merchandise to the stream of commerce,

and because the number of CES

operators is limited (see, T.D. 93–6, 58

FR 5596, 5597 (January 22, 1993), the

discussion of comments received

concerning the final CES rule), Customs

officers must have authority to ensure

thorough confidence in the integrity of

CES operators, employees, and

premises. Therefore, this proposed

rulemaking would provide port

directors with additional discretion to

decide whether, on a case-by-case basis,

particular circumstances and risks

involving the listed offenses warrant

immediate suspension, proposed

revocation and cancellation, both, or

neither. This proposal is intended to

provide Customs greater flexibility to

address the varying situations with

appropriate measures reasonably

calculated to protect the public interest

and to promote public confidence in the

CES program.

Accordingly, Customs proposes to

amend § 118.21, which provides for the

revocation of selection and cancellation

of the written agreement to operate a

CES. Paragraph (a) will be revised to

provide for the immediate suspension of

a CES operator’s or entity’s selection

and the written agreement to operate the

CES if the local port director finds that

(1) the selection and written agreement

were obtained through fraud or the

misstatement of a material fact; or (2)

the CES operator, an officer of a

corporation which is a CES operator, or

a person the port director determines to

exercise substantial ownership or

control over such operator or officer is

indicted for, convicted of, or has

committed acts which would constitute

a felony, or a misdemeanor involving

theft or a theft-connected crime. In the

absence of an indictment or conviction,

the port director must at least have

probable cause to believe the proscribed

acts occurred. When CES operations are

suspended or revoked and cancelled by

Customs, it will be the CES operator’s

responsibility to ensure that

merchandise already at the CES is

properly consigned to another location

for inspection, as directed by the

importer and approved by the port

director.

Paragraph (b) is proposed to be

amended by adding a new subparagraph

(6) which makes the above-referenced

conduct a separate ground for the port

director to pursue permanent revocation

and cancellation procedures, and

revising subparagraph (1) to make more

specific that failure to comply with the

responsibilities of a CES operator also

constitutes a ground for proposed

revocation and cancellation.

The circumstance of a change in

employment status as not precluding

adverse action, formerly provided for

under paragraph (a), is made into a new

paragraph (c) to make it clear that this

consideration is applicable equally to

actions regarding immediate suspension

and permanent revocation.
1878 Federal Register / Vol. 61, No. 16 / Wednesday, January 24, 1996 / Proposed Rules

Additional Changes to the Regulations

Because of the proposed change to

§ 118.21 discussed above, conforming

changes to other referencing provisions

in part 118 must also be made. The

following changes are noted in this

regard:

Section 118.0

The second sentence of the scope

section to part 118 (§ 118.0) is revised to

reference the port director’s discretion

to immediately suspend a CES

operator’s or entity’s selection and the

written agreement to operate the CES for

the type conduct specified above.

Section 118.22

Section 118.22 is proposed to be

revised to reference the port director’s

responsibility to provide written notice

to the CES operator or entity when the

decision to immediately suspend

operations has been made.

Section 118.23

Section 118.23 is proposed to be

revised to reference the CES operator or

entity’s right to appeal the port

director’s decision to immediately

suspend CES operations to the Assistant

Commissioner of the Office of Field

Operations (another new designation

reflecting Customs pending field

reorganization) or his designee. A

sentence is added to make it clear that

once a suspension or revocation action

takes effect, the CES operator must cease

CES operations. Further, where the port

director follows an immediate

suspension action with proposed

permanent revocation and cancellation

proceedings, the temporary suspension

of CES operations remains in effect

during the appeal process.

Comments

Before adopting this proposal as a

final rule, consideration will be given to

any written comments timely submitted

to Customs. Comments submitted will

be available for public inspection in

accordance with the Freedom of

Information Act (5 U.S.C. 552), § 1.4 of

the Treasury Department Regulations

(31 CFR 1.4), and § 103.11(b) of the

Customs Regulations (19 CFR

103.11(b)), on regular business days

between the hours of 9 a.m. and 4:30

p.m. at the Regulations Branch, U.S.

Customs Service, 1099 14th Street, NW.,

Suite 4000, Washington, DC.

Regulatory Flexibility Act

Pursuant to provisions of the

Regulatory Flexibility Act (5 U.S.C. 601

et seq.), it is certified that, if adopted,

the proposed amendments will not have

a significant economic impact on a

substantial number of small entities, as

the current number of centralized

examination station operators is small,

i.e., less than 200. Accordingly, the

proposed amendments are not subject to

the regulatory analysis or other

requirements of 5 U.S.C. 603 and 604.

Executive Order 12866

This document does not meet the

criteria for a ‘‘significant regulatory

action’’ as defined in E.O. 12866.

Drafting Information: The principal author

of this document was Gregory R. Vilders,

Attorney, Regulations Branch, U.S. Customs

Service.

However, personnel from other offices

participated in its development.

List of Subjects in 19 CFR Part 118

Administrative practice and

procedure, Customs duties and

inspection, Examination stations,

Imports, Licensing, Reporting and

recordkeeping requirements.

Proposed Amendment

For the reasons stated above, it is

proposed to amend part 118, Customs

Regulations (19 CFR part 118), as set

forth below:

PART 118—CENTRALIZED

EXAMINATION STATIONS

1. The authority citation for part 118

continues to read as follows:

Authority: 19 U.S.C. 66, 1499, 1623, 1624.

2. In § 118.0, the second sentence is

revised to read as follows:

§ 118.0 Scope

* * * It covers the application

process, the responsibilities of the

person or entity selected to be a CES

operator, the written agreement to

operate a CES facility, the port director’s

discretion to immediately suspend a

CES operator’s or entity’s selection and

the written agreement to operate the

CES or to propose the permanent

revocation of a CES operator’s or entity’s

selection and cancellation of the written

agreement for specified conduct, and

the appeal procedures to challenge an

immediate suspension or proposed

revocation and cancellation action.

* * *.

3. In § 118.21:

(a) The heading is revised and the

introductory text is republished;

(b) Paragraph (a) is revised;

(c) Paragraph (b)(1) is amended by

adding the words ‘‘to comply with any

of’’ before the words ‘‘the provisions

of’’;

(d) A new paragraph (b)(6) is added;

and

(e) A new paragraph (c) is added.

The revisions and additions to read as

follows:

§ 118.21 Temporary suspension;

permanent revocation of selection and

cancellation of agreement to operate a CES.

The port director may immediately

suspend or propose permanent

revocation and cancellation of CES

operations for cause as provided in this

section.

(a) Immediate suspension. The port

director may immediately suspend, for

a temporary period of time or until

revocation and cancellation proceedings

are concluded pursuant to § 118.23, a

CES operator’s or entity’s selection and

the written agreement to operate the

CES if:

(1) The selection and written

agreement were obtained through fraud

or the misstatement of a material fact; or

(2) The CES operator, an officer of a

corporation which is a CES operator, or

a person the port director determines to

exercise substantial ownership or

control over such operator or officer is

indicted for, convicted of, or has

committed acts, which would constitute

a felony, or a misdemeanor involving

theft or a theft-connected crime. In the

absence of an indictment or conviction,

the port director must at least have

probable cause to believe the proscribed

acts occurred.

(b) * * *

(6) The CES operator, an officer of a

corporation which is a CES operator, or

a person the port director determines to

exercise substantial ownership or

control over such operator or officer is

indicted for, convicted of, or has

committed acts, which would constitute

any of the offenses listed under

paragraph (a) of this section. Where

adverse action is initiated by the port

director pursuant to paragraph (a) of this

section and continued under this

subparagraph, the suspension of CES

activities remains in effect through the

appeal procedures provided under

§ 118.23.

(c) Circumstance of change in

employment not a bar to adverse action.

Any change in the employment status of

a corporate officer (for example,

discharge, resignation, demotion, or

promotion) prior to indictment or

conviction or after committing any acts

which would constitute the culpable

behavior described under paragraph (a)

of this section, will not preclude

application of this section, but may be

taken into account by the port director

in exercising discretion to take adverse

action. If the person whose employment

status changed remains in a substantial

ownership, control, or beneficial

relationship with the CES operator, this
Federal Register / Vol. 61, No. 16 / Wednesday, January 24, 1996 / Proposed Rules 1879

factor will also be considered in

exercising discretion under this section.

4. Section 118.22 revised to read as

follows:

§ 118.22 Notice of immediate suspension

or proposed revocation and cancellation

action.

Adverse action pursuant to the

provisions of § 118.21(a) or (b) is

initiated when the port director serves

written notice on the operator or entity

selected to operate the CES. The notice

shall be in the form of a statement

specifically setting forth the grounds for

the adverse action and shall inform the

operator of the appeal procedures under

§ 118.23 of this part.

5. Section 118.23 revised to read as

follows:

§ 118.23 Appeal to the Assistant

Commissioner; procedure; status of CES

operations.

(a) Appeal to the Assistant

Commissioner. Appeal of a port

director’s decision under § 118.21(a) or

(b) must be taken to the Assistant

Commissioner, Office of Field

Operations, within 10 calendar days of

receipt of the written notice of the

adverse action. The appeal shall be filed

in duplicate and shall set forth the CES

operator’s or entity’s responses to the

grounds specified by the port director in

his written notice letter for the adverse

action initiated. The Assistant

Commissioner, Office of Field

Operations, or his designee, shall render

a written decision to the CES operator

or entity, stating the reasons for the

decision, by letter mailed within 30

working days following receipt of the

appeal, unless the period for decision is

extended with due notification to the

CES operator or entity.

(b) Status of CES operations during

appeal. During this appeal period, an

immediate suspension of a CES

operator’s or entity’s selection and

written agreement pursuant to

§ 118.21(a) of this part shall remain in

effect. A proposed revocation of a CES

operator’s or entity’s selection and

cancellation of the written agreement

pursuant to § 118.21(b)(1)-(5) of this part

shall not take effect unless the appeal

process under this paragraph has been

concluded with a decision adverse to

the operator.

(c) Effect of suspension or revocation.

Once a suspension or revocation action

takes effect, the CES operator must cease

CES operations. However, when CES

operations are suspended or revoked

and cancelled by Customs, it is the CES

operator’s responsibility to ensure that

merchandise already at the CES is

properly consigned to another location

for inspection, as directed by the

importer and approved by the port

director.

Approved: December 13, 1995.

Michael H. Lane,

Acting Commissioner of Customs.

Dennis M. O’Connell,

Acting Deputy Assistant Secretary of the

Treasury.

[FR Doc. 96–1048 Filed 1–23–96; 8:45 am]

BILLING CODE 4820–02–P

DEPARTMENT OF LABOR

Pension and Welfare Benefits

Administration

29 CFR Part 2510

Proposed Regulation Relating to

Definition of Plan Assets; Participant

Contributions

AGENCY: Pension and Welfare Benefits

Administration, Department of Labor.

ACTION: Notice of rescheduling of date

for public hearing.

SUMMARY: This document reschedules

the date for a public hearing on the

proposed rule under Title I of the

Employee Retirement Income Security

Act of 1974, as amended, 29 U.S.C.

1001–1461 (the Act), relating to revision

of the definition of when certain monies

which a participant pays to, or has

withheld by, an employer for

contribution to an employee benefit

plan are ‘‘plan assets’’ for purposes of

Title I of the Act. The proposed rule was

set forth in a notice of proposed

rulemaking published in the Federal

Register at 60 FR 66036 (December 20,

1995).

DATES: The public hearing on this

proposed rule is rescheduled to

Thursday, February 22, 1996, and, if

necessary based on the volume of

requests by the public to testify, to

Friday, February 23, 1996. The hearing

will begin at 10:00 a.m. on both days.

ADDRESSES: Written requests to present

public testimony concerning the

proposed rule should be submitted by

February 14, 1996 to: Pension and

Welfare Benefits Administration, Room

N–5669, U.S. Department of Labor, 200

Constitution Ave., N.W., Washington,

DC 20210. Attention: Proposed

Participant Contribution Regulation. All

submissions will be open to public

inspection at the Public Documents

Room, Pension and Welfare Benefits

Administration, U.S. Department of

Labor, Room N–5638, 200 Constitution

Ave., N.W., Washington, DC 20210. The

rescheduled hearing on the proposed

regulation will be held in Room N–3437

A and B, 200 Constitution Ave., N.W.,

Washington, DC 20210.

FOR FURTHER INFORMATION CONTACT:

Rudy Nuissl, Office of Regulations and

Interpretations, Pension and Welfare

Benefits Administration, U.S.

Department of Labor, Rm N–5669, 200

Constitution Ave., N.W., Washington,

DC 20210 (telephone (202) 219–7461) or

William W. Taylor, Office of the

Solicitor, Plan Benefits Security

Division, U.S. Department of Labor, Rm

N–4611, 200 Constitution Ave., N.W.,

Washington, DC 20210 (telephone (202)

219–9141). These are not toll-free

numbers.

SUPPLEMENTARY INFORMATION: On

December 20, 1995, the Department of

Labor (the Department) published a

notice of proposed rulemaking in the

Federal Register (60 FR 66036) which

would revise the definition of when

certain monies which a participant pays

to, or has withheld by, an employer for

contribution to an employee benefit

plan are ‘‘plan assets’’ for purposes of

Title I of the Act. In that notice the

Department scheduled a public hearing

with respect to the proposal, to be held

on January 24 and January 25, 1996, and

invited interested persons to submit

written requests to testify at the hearing.

The Department has received requests

from some members of the public for

additional time for preparation of

testimony on the proposed rule, and the

Department believes that it is

appropriate to grant such additional

time. Accordingly, this notice

reschedules the public hearing on the

proposed rule to Thursday, February 22,

1996 and, if necessary, to Friday,

February 23, 1996. Requests to present

public testimony should be submitted

by February 14. Unless otherwise

advised, the Department will assume

that persons who have already

submitted written requests to testify at

the January 24–25 hearing will wish to

testify at the hearing rescheduled for

February 22–23.

The December 20, 1995 Federal

Register notice also stated that written

comments concerning the proposed

regulation must be received by February

5, 1996. The Department has

determined that the February 5 deadline

for submission of written comments will

continue to apply, notwithstanding the

rescheduling of the public hearing.

Notice of Rescheduling of Date for

Public Hearing

Notice is hereby given that the public

hearing for the proposed rule (published

at 60 FR 66036, December 20, 1995)

relating to revision of the definition of