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| section_id ▼ | title_number | title_name | chapter | subchapter | part_number | part_name | subpart | subpart_name | section_number | section_heading | agency | authority | source_citation | amendment_citations | full_text |
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| 10:10:5.0.2.5.16.1.12.1 | 10 | Energy | III | 766 | PART 766—URANIUM ENRICHMENT DECONTAMINATION AND DECOMMISSIONING FUND; PROCEDURES FOR SPECIAL ASSESSMENT OF DOMESTIC UTILITIES | A | Subpart A—General | § 766.1 Purpose. | DOE | The provisions of this part establish procedures for the Special Assessment of domestic utilities for the Uranium Enrichment Decontamination and Decommissioning Fund pursuant to sections 1801, 1802 and 1803 of the Atomic Energy Act of 1954, as amended (42 U.S.C. § 2011 et seq. ). | |||||
| 10:10:5.0.2.5.16.1.12.2 | 10 | Energy | III | 766 | PART 766—URANIUM ENRICHMENT DECONTAMINATION AND DECOMMISSIONING FUND; PROCEDURES FOR SPECIAL ASSESSMENT OF DOMESTIC UTILITIES | A | Subpart A—General | § 766.2 Applicability. | DOE | This part applies to all domestic utilities in the United States that purchased separative work units from the DOE between 1945 and October 23, 1992. | |||||
| 10:10:5.0.2.5.16.1.12.3 | 10 | Energy | III | 766 | PART 766—URANIUM ENRICHMENT DECONTAMINATION AND DECOMMISSIONING FUND; PROCEDURES FOR SPECIAL ASSESSMENT OF DOMESTIC UTILITIES | A | Subpart A—General | § 766.3 Definitions. | DOE | For the purposes of this part, the following terms shall be defined as follows: CPI-U means the Consumer Price Index for all-urban consumers published by the Department of Labor. Commercial electricity generation means the production of electricity for sale to consumers. DOE means the United States Department of Energy and its predecessor agencies. Domestic utility means any utility in the United States that has purchased SWUs produced by DOE for the purpose of commercial electrical generation during the period beginning in 1945 to October 23, 1992. Fund means an account in the U.S. Treasury referred to as the Uranium Enrichment Decontamination and Decommissioning Fund, established by section 1801 of the Atomic Energy Act of 1954, as amended. Oak Ridge Operations Office means the Oak Ridge Operations Office of the Department of Energy in Oak Ridge, Tennessee. Special Assessment means the Special Assessment levied on domestic utilities for payments into the Fund. SWU means a separative work unit, the common measure by which uranium enrichment services are sold. TESS means the Toll Enrichment Services System, which is the database that tracks uranium enrichment services transactions of the DOE Oak Ridge Operations Office for the purpose of planning, toll transaction processing, customer invoicing and historical tracking of SWU deliveries. Use and burnup charges mean lease charges for the consumption of SWUs and natural uranium. | |||||
| 10:10:5.0.2.5.16.2.12.1 | 10 | Energy | III | 766 | PART 766—URANIUM ENRICHMENT DECONTAMINATION AND DECOMMISSIONING FUND; PROCEDURES FOR SPECIAL ASSESSMENT OF DOMESTIC UTILITIES | B | Subpart B—Procedures for Special Assessment | § 766.100 Scope. | DOE | This subpart sets forth the procedures for the Special Assessment of domestic utilities for funds to be deposited in the Fund. | |||||
| 10:10:5.0.2.5.16.2.12.2 | 10 | Energy | III | 766 | PART 766—URANIUM ENRICHMENT DECONTAMINATION AND DECOMMISSIONING FUND; PROCEDURES FOR SPECIAL ASSESSMENT OF DOMESTIC UTILITIES | B | Subpart B—Procedures for Special Assessment | § 766.101 Data utilization. | DOE | DOE shall use the records from the Toll Enrichment Services System (TESS) and other records maintained by the Oak Ridge Operations Office in order to determine the total SWUs purchased from DOE for all purposes. DOE shall use records from TESS, relevant records of domestic utilities, and such other information as DOE deems to be reliable and probative in determining the number of SWUs that were purchased by each domestic utility prior to October 24, 1992. A domestic utility shall be considered to have purchased a SWU from DOE if the SWU was produced by DOE but purchased by the domestic utility from another source. DOE shall consider a purchase to have occurred upon the delivery of a SWU to the domestic utility purchasing the SWU. A domestic utility shall not be considered to have purchased a SWU from DOE if the SWU was purchased by the domestic utility but subsequently sold to another source. | |||||
| 10:10:5.0.2.5.16.2.12.3 | 10 | Energy | III | 766 | PART 766—URANIUM ENRICHMENT DECONTAMINATION AND DECOMMISSIONING FUND; PROCEDURES FOR SPECIAL ASSESSMENT OF DOMESTIC UTILITIES | B | Subpart B—Procedures for Special Assessment | § 766.102 Calculation methodology. | DOE | (a) Calculation of Domestic Utilities' Annual Assessment Ratio to the Fund. Domestic utilities shall be assessed annually for their share of the Fund. The amount of the assessment shall be determined by the ratio of SWUs produced by DOE and purchased by domestic utilities prior to October 24, 1992, to the total number of SWUs produced by DOE for all purposes (including SWUs produced for defense purposes). All calculations will be carried out to the fifth significant digit. This ratio is expressed by the following hypothetical example: (b) Calculation of the Baseline Total Annual Special Assessment for Domestic Utilities. The Annual Special Assessment ratio calculated in paragraph (a) of this section shall be multiplied by $480 million, yielding the total amount of the Baseline Total Annual Special Assessment as of October 1992. In the event that this amount is in excess of $150 million, the Baseline Total Annual Special Assessment shall be capped at $150 million. All calculations will be carried out to the fifth significant digit. The Baseline Total Annual Special Assessment is determined as shown in the following hypothetical example: (c) Calculation of Baseline Total Annual Special Assessment per Utility. The ratio of the total number of SWUs purchased by an individual domestic utility for commercial electricity generation, to the total number of SWUs purchased by all domestic utilities for commercial electricity generation, multiplied by the Baseline Total Annual Special Assessment calculated in paragraph (b) of this section, determines an individual utility's share of the Baseline Total Annual Special Assessment. All calculations will be carried out to the fifth significant digit. A hypothetical example of such a calculation follows: (d) Calculation of Inflation Adjustment. The Baseline Total Annual Special Assessment billed to domestic utilities shall be adjusted for inflation using the most recently published monthly CPI-U and the CPI-U for October 1992. All calculations will be carried out to th… | |||||
| 10:10:5.0.2.5.16.2.12.4 | 10 | Energy | III | 766 | PART 766—URANIUM ENRICHMENT DECONTAMINATION AND DECOMMISSIONING FUND; PROCEDURES FOR SPECIAL ASSESSMENT OF DOMESTIC UTILITIES | B | Subpart B—Procedures for Special Assessment | § 766.103 Special Assessment invoices. | DOE | (a) DOE shall issue annually a Special Assessment invoice to each domestic utility. This invoice will specify itemized quantities of enrichment services by reactor. In each Special Assessment invoice, DOE shall require payment, on or before 30 days from the date of each invoice, of that utility's prorated share of the Baseline Total Annual Special Assessment, as adjusted for inflation using the most recently published monthly CPI-U data. (b) DOE shall enclose with the Fiscal Year 1993 Special Assessment invoice a sealed, business confidential, summary SWU transaction statement including: (1) TESS information which documents, by reactor, the basis of the utility's assessment; (2) A list of domestic utilities subject to the Special Assessment; (3) The total number of SWUs purchased from DOE by all domestic utilities for all purposes prior to October 24, 1992. (4) The total number of SWUs purchased from DOE for all purposes prior to October 24, 1992, including SWUs purchased or produced for defense purposes; and (5) Such other information as may be appropriate. (c) With regard to any fiscal year after Fiscal Year 1993, DOE shall enclose a summary SWU transaction statement with Special Assessment invoices that will include updated information regarding adjustments to Special Assessments resulting from the reconciliation and appeals process under Section 766.104. (d) The date of each Annual Special Assessment invoicing will be set on or about October 1 with payment due 30 calendar days from the date of invoice starting with the Fiscal Year 1995 Special Assessment. | |||||
| 10:10:5.0.2.5.16.2.12.5 | 10 | Energy | III | 766 | PART 766—URANIUM ENRICHMENT DECONTAMINATION AND DECOMMISSIONING FUND; PROCEDURES FOR SPECIAL ASSESSMENT OF DOMESTIC UTILITIES | B | Subpart B—Procedures for Special Assessment | § 766.104 Reconciliation, adjustments and appeals. | DOE | [59 FR 41963, Aug. 15, 1994, as amended at 60 FR 15017, Mar. 21, 1995] | (a) A domestic utility requesting an adjustment shall, within 30 days from the date of a Special Assessment invoice, file a notice requesting an adjustment. Such notice shall include an explanation of the basis for the adjustment and any supporting documents, and may include a request for a meeting with DOE to discuss its invoice. If more time is needed to gather probative information, DOE will consider utility requests for up to 90 days additional time, providing that the initial notice requesting an adjustment was timely filed. The notice shall be filed at the address set forth in the Special Assessment invoice, and filing of this notice is complete only upon receipt by DOE. Domestic utilities are considered to have met the filing requirements upon DOE's receipt of the notice requesting an adjustment without regard to DOE's acceptance of supporting documentation. The filing of a notice for an adjustment shall not stay the obligation to pay. (b) DOE may request additional information from domestic utilities and may acquire data from other sources. (c) After reviewing a notice submitted under paragraph (a) of this section and other relevant information, and after making any necessary adjustment to its records in light of reliable and adequately probative records submitted in connection with the request for adjustment or otherwise obtained by DOE, DOE shall make a written determination granting or denying the requested adjustment. As appropriate, DOE shall modify the application of TESS data for any discrepancies or further transactions raised during the reconciliation process. (d) Any domestic utility that wishes to dispute a written determination under paragraph (c) of this section shall have the right to file an appeal with the Office of Hearings and Appeals, U.S. Department of Energy, 1000 Independence Avenue S.W., Washington, DC 20585. Except for the Fiscal Year 1993 Special Assessment, any appeal must be filed on or before 30 days from the date of the written determination and should contain information o… | ||||
| 10:10:5.0.2.5.16.2.12.6 | 10 | Energy | III | 766 | PART 766—URANIUM ENRICHMENT DECONTAMINATION AND DECOMMISSIONING FUND; PROCEDURES FOR SPECIAL ASSESSMENT OF DOMESTIC UTILITIES | B | Subpart B—Procedures for Special Assessment | § 766.105 Payment procedures. | DOE | DOE shall specify payment details and instructions in all Special Assessment invoices. Each domestic utility shall make payments to the Fund by wire transfer to the Department of Treasury. | |||||
| 10:10:5.0.2.5.16.2.12.7 | 10 | Energy | III | 766 | PART 766—URANIUM ENRICHMENT DECONTAMINATION AND DECOMMISSIONING FUND; PROCEDURES FOR SPECIAL ASSESSMENT OF DOMESTIC UTILITIES | B | Subpart B—Procedures for Special Assessment | § 766.106 Late payment fees. | DOE | In the case of a late payment by a domestic utility of its Special Assessment, the domestic utility shall pay interest at the per annum rate (365-day basis) established by DOE for general application to monies due DOE and not received by DOE on or before a designated due date. Interest shall accrue beginning the date of the designated payment except that, whenever the due date falls on a Saturday, Sunday, or a United States legal holiday, interest shall commence on the next day immediately following which is not a Saturday, Sunday, or United States legal holiday. Late payment provisions for the Special Assessment to the Fund shall be based on the Treasury Current Value of Funds Rate (which is published annually by the Treasury and used in assessing interest charges for outstanding debts on claims owed to the United States Government), plus six (6) percent pro rata on a daily basis. The additional six (6) percent charge shall not go into effect until five (5) business days after payment was originally due. Late payment fees shall be invoiced within two days of receipt of utility payment of the special assessment when delinquency is less than 30 days. For longer periods of delinquency, DOE will submit additional invoices, as appropriate. Late payment fees will be due 30 days from the date of invoice. | |||||
| 10:10:5.0.2.5.16.2.12.8 | 10 | Energy | III | 766 | PART 766—URANIUM ENRICHMENT DECONTAMINATION AND DECOMMISSIONING FUND; PROCEDURES FOR SPECIAL ASSESSMENT OF DOMESTIC UTILITIES | B | Subpart B—Procedures for Special Assessment | § 766.107 Prepayment of future Special Assessments | DOE | DOE shall accept prepayment of future Special Assessments upon request by a domestic utility. A domestic utility's liability for the future assessments shall be satisfied to the extent of the prepayments. DOE shall use the pro rata share of prepayments attributable to a given fiscal year plus the Special Assessments collected from utilities who did not prepay for that fiscal year, in order to determine that the total amount of Special Assessments collected from domestic utilities in a given fiscal year does not exceed $150 million, annually adjusted for inflation. | |||||
| 15:15:3.1.1.1.13.0.1.1 | 15 | Commerce and Foreign Trade | VII | C | 766 | PART 766—ADMINISTRATIVE ENFORCEMENT PROCEEDINGS | § 766.1 Scope. | BIS | In this part, references to the EAR are references to 15 CFR chapter VII, subchapter C. This part describes the procedures for imposing administrative sanctions for violations of the Export Administration Act of 1979, as amended (the EAA), the Export Administration Regulations (EAR), or any order, license or authorization issued thereunder. Parts 760 and 764 of the EAR specify those actions that constitute violations, and part 764 describes the sanctions that apply. In addition to describing the procedures for imposing sanctions, this part describes the procedures for imposing temporary denial orders to prevent imminent violations of the EAA, the EAR, or any order, license or authorization issued thereunder. This part also describes the procedures for taking the discretionary protective administrative action of denying the export privileges of persons who have been convicted of violating any of the statutes, including the EAA, listed in section 11(h) of the EAA. Nothing in this part shall be construed as applying to or limiting other administrative or enforcement action relating to the EAA or the EAR, including the exercise of any investigative authorities conferred by the EAA. This part does not confer any procedural rights or impose any requirements based on the Administrative Procedure Act for proceedings charging violations under the EAA, except as expressly provided for in this part. | ||||||
| 15:15:3.1.1.1.13.0.1.10 | 15 | Commerce and Foreign Trade | VII | C | 766 | PART 766—ADMINISTRATIVE ENFORCEMENT PROCEEDINGS | § 766.10 Subpoenas. | BIS | (a) Issuance. Upon the application of any party, supported by a satisfactory showing that there is substantial reason to believe that the evidence would not otherwise be available, the administrative law judge will issue subpoenas requiring the attendance and testimony of witnesses and the production of such books, records or other documentary or physical evidence for the purpose of the hearing, as the judge deems relevant and material to the proceedings, and reasonable in scope. (b) Service. Subpoenas issued by the administrative law judge may be served in any of the methods set forth in § 766.5(b) of this part. (c) Timing. Applications for subpoenas must be submitted at least 10 days before the scheduled hearing or deposition, unless the administrative law judge determines, for good cause shown, that extraordinary circumstances warrant a shorter time. | ||||||
| 15:15:3.1.1.1.13.0.1.11 | 15 | Commerce and Foreign Trade | VII | C | 766 | PART 766—ADMINISTRATIVE ENFORCEMENT PROCEEDINGS | § 766.11 Matter protected against disclosure. | BIS | (a) Protective measures. It is often necessary for BIS to receive and consider information and documents that are sensitive from the standpoint of national security, foreign policy, business confidentiality, or investigative concern, and that are to be protected against disclosure. Accordingly, and without limiting the discretion of the administrative law judge to give effect to any other applicable privilege, it is proper for the administrative law judge to limit discovery or introduction of evidence or to issue such protective or other orders as in the judge's judgment may be consistent with the objective of preventing undue disclosure of the sensitive documents or information. Where the administrative law judge determines that documents containing the sensitive matter need to be made available to a respondent to avoid prejudice, the judge may direct BIS to prepare an unclassified and nonsensitive summary or extract of the documents. The administrative law judge may compare the extract or summary with the original to ensure that it is supported by the source document and that it omits only so much as must remain classified or undisclosed. The summary or extract may be admitted as evidence in the record. (b) Arrangements for access. If the administrative law judge determines that this procedure is unsatisfactory and that classified or otherwise sensitive matter must form part of the record in order to avoid prejudice to a party, the judge may provide the parties opportunity to make arrangements that permit a party or a representative to have access to such matter without compromising sensitive information. Such arrangements may include obtaining security clearances, obtaining a national interest determination under section 12(c) of the EAA, or giving counsel for a party access to sensitive information and documents subject to assurances against further disclosure, including a protective order, if necessary. | ||||||
| 15:15:3.1.1.1.13.0.1.12 | 15 | Commerce and Foreign Trade | VII | C | 766 | PART 766—ADMINISTRATIVE ENFORCEMENT PROCEEDINGS | § 766.12 Prehearing conference. | BIS | (a) The administrative law judge, on the judge's own motion or on request of a party, may direct the parties to participate in a prehearing conference, either in person or by telephone, to consider: (1) Simplification of issues; (2) The necessity or desirability of amendments to pleadings; (3) Obtaining stipulations of fact and of documents to avoid unnecessary proof; or (4) Such other matters as may expedite the disposition of the proceedings. (b) The administrative law judge may order the conference proceedings to be recorded electronically or taken by a reporter, transcribed and filed with the judge. (c) If a prehearing conference is impracticable, the administrative law judge may direct the parties to correspond with the judge to achieve the purposes of such a conference. (d) The administrative law judge will prepare a summary of any actions agreed on or taken pursuant to this section. The summary will include any written stipulations or agreements made by the parties. | ||||||
| 15:15:3.1.1.1.13.0.1.13 | 15 | Commerce and Foreign Trade | VII | C | 766 | PART 766—ADMINISTRATIVE ENFORCEMENT PROCEEDINGS | § 766.13 Hearings. | BIS | (a) Scheduling. The administrative law judge, by agreement with the parties or upon notice to all parties of not less than 30 days, will schedule a hearing. All hearings will be held in Washington, D.C., unless the administrative law judge determines, for good cause shown, that another location would better serve the interests of justice. (b) Hearing procedure. Hearings will be conducted in a fair and impartial manner by the administrative law judge, who may limit attendance at any hearing or portion thereof to the parties, their representatives and witnesses if the judge deems this necessary or advisable in order to protect sensitive matter (see § 766.11 of this part) from improper disclosure. The rules of evidence prevailing in courts of law do not apply, and all evidentiary material deemed by the administrative law judge to be relevant and material to the proceeding and not unduly repetitious will be received and given appropriate weight. (c) Testimony and record. Witnesses will testify under oath or affirmation. A verbatim record of the hearing and of any other oral proceedings will be taken by reporter or by electronic recording, transcribed and filed with the administrative law judge. A respondent may examine the transcript and may obtain a copy by paying any applicable costs. Upon such terms as the administrative law judge deems just, the judge may direct that the testimony of any person be taken by deposition and may admit an affidavit or declaration as evidence, provided that any affidavits or declarations have been filed and served on the parties sufficiently in advance of the hearing to permit a party to file and serve an objection thereto on the grounds that it is necessary that the affiant or declarant testify at the hearing and be subject to cross-examination. (d) Failure to appear. If a party fails to appear in person or by counsel at a scheduled hearing, the hearing may nevertheless proceed, and that party's failure to appear will not affect the validity of the hearing or any proceeding… | ||||||
| 15:15:3.1.1.1.13.0.1.14 | 15 | Commerce and Foreign Trade | VII | C | 766 | PART 766—ADMINISTRATIVE ENFORCEMENT PROCEEDINGS | § 766.14 Interlocutory review of rulings. | BIS | (a) At the request of a party, or on the judge's own initiative, the administrative law judge may certify to the Under Secretary for review a ruling that does not finally dispose of a proceeding, if the administrative law judge determines that immediate review may hasten or facilitate the final disposition of the matter. (b) Upon certification to the Under Secretary of the interlocutory ruling for review, the parties will have 10 days to file and serve briefs stating their positions, and five days to file and serve replies, following which the Under Secretary will decide the matter promptly. | ||||||
| 15:15:3.1.1.1.13.0.1.15 | 15 | Commerce and Foreign Trade | VII | C | 766 | PART 766—ADMINISTRATIVE ENFORCEMENT PROCEEDINGS | § 766.15 Proceeding without a hearing. | BIS | If the parties have waived a hearing, the case will be decided on the record by the administrative law judge. Proceeding without a hearing does not relieve the parties from the necessity of proving the facts supporting their charges or defenses. Affidavits or declarations, depositions, admissions, answers to interrogatories and stipulations may supplement other documentary evidence in the record. The administrative law judge will give each party reasonable opportunity to file rebuttal evidence. | ||||||
| 15:15:3.1.1.1.13.0.1.16 | 15 | Commerce and Foreign Trade | VII | C | 766 | PART 766—ADMINISTRATIVE ENFORCEMENT PROCEEDINGS | § 766.16 Procedural stipulations; extension of time. | BIS | (a) Procedural stipulations. Unless otherwise ordered, a written stipulation agreed to by all parties and filed with the administrative law judge will modify any procedures established by this part. (b) Extension of time. (1) The parties may extend any applicable time limitation, by stipulation filed with the administrative law judge before the time limitation expires. (2) The administrative law judge may, on the judge's own initiative or upon application by any party, either before or after the expiration of any applicable time limitation, extend the time within which to file and serve an answer to a charging letter or do any other act required by this part. | ||||||
| 15:15:3.1.1.1.13.0.1.17 | 15 | Commerce and Foreign Trade | VII | C | 766 | PART 766—ADMINISTRATIVE ENFORCEMENT PROCEEDINGS | § 766.17 Decision of the administrative law judge. | BIS | (a) Predecisional matters. Except for default proceedings under § 766.7 of this part, the administrative law judge will give the parties reasonable opportunity to submit the following, which will be made a part of the record: (1) Exceptions to any ruling by the judge or to the admissibility of evidence proffered at the hearing; (2) Proposed findings of fact and conclusions of law; (3) Supporting legal arguments for the exceptions and proposed findings and conclusions submitted; and (4) A proposed order. (b) Decision and order. After considering the entire record in the proceeding, the administrative law judge will issue a written decision. (1) Initial decision. For proceedings charging violations relating to part 760 of the EAR, the decision rendered shall be an initial decision. The decision will include findings of fact, conclusions of law, and findings as to whether there has been a violation of the EAA, the EAR, or any order, license or authorization issued thereunder. If the administrative law judge finds that the evidence of record is insufficient to sustain a finding that a violation has occurred with respect to one or more charges, the judge shall order dismissal of the charges in whole or in part, as appropriate. If the administrative law judge finds that one or more violations have been committed, the judge may issue an order imposing administrative sanctions, as provided in part 764 of the EAR. The decision and order shall be served on each party, and shall become effective as the final decision of the Department 30 days after service, unless an appeal is filed in accordance with § 766.21 of this part. (2) Recommended decision. For proceedings not involving violations relating to part 760 of the EAR, the decision rendered shall be a recommended decision. The decision will include recommended findings of fact, conclusions of law, and findings as to whether there has been a violation of the EAA, the EAR or any order, license or authorization issued thereunder. If the administrative law jud… | ||||||
| 15:15:3.1.1.1.13.0.1.18 | 15 | Commerce and Foreign Trade | VII | C | 766 | PART 766—ADMINISTRATIVE ENFORCEMENT PROCEEDINGS | § 766.18 Settlement. | BIS | [61 FR 12907, Mar. 25, 1996, as amended at 69 FR 7870, Feb. 20, 2004; 72 FR 39006, July 17, 2007] | (a) Cases may be settled before service of a charging letter. In cases in which settlement is reached before service of a charging letter, a proposed charging letter will be prepared, and a settlement proposal consisting of a settlement agreement and order will be submitted to the Assistant Secretary for approval and signature. If the Assistant Secretary does not approve the proposal, he/she will notify the parties and the case will proceed as though no settlement proposal had been made. If the Assistant Secretary approves the proposal, he/she will issue an appropriate order, and no action will be required by the administrative law judge. (b) Cases may also be settled after service of a charging letter. (1) If the case is pending before the administrative law judge, the judge shall stay the proceedings for a reasonable period of time, usually not to exceed 30 days, upon notification by the parties that they have entered into good faith settlement negotiations. The administrative law judge may, in his/her discretion, grant additional stays. If settlement is reached, a proposal will be submitted to the Assistant Secretary for approval and signature. If the Assistant Secretary approves the proposal, he/she will issue an appropriate order, and notify the administrative law judge that the case is withdrawn from adjudication. If the Assistant Secretary does not approve the proposal, he/she will notify the parties and the case will proceed to adjudication by the administrative law judge as though no settlement proposal had been made. (2) If the case is pending before the Under Secretary under § 766.21 or § 766.22 of this part, the parties may submit a settlement proposal to the Under Secretary for approval and signature. If the Under Secretary approves the proposal, he/she will issue an appropriate order. If the Under Secretary does not approve the proposal, the case will proceed to final decision in accordance with § 766.21 or § 766.22 of this part, as appropriate. (c) Any order disposing of a case by settlement… | |||||
| 15:15:3.1.1.1.13.0.1.19 | 15 | Commerce and Foreign Trade | VII | C | 766 | PART 766—ADMINISTRATIVE ENFORCEMENT PROCEEDINGS | § 766.19 Reopening. | BIS | The respondent may petition the administrative law judge within one year of the date of the final decision, except where the decision arises from a default judgment or from a settlement, to reopen an administrative enforcement proceeding to receive any relevant and material evidence which was unknown or unobtainable at the time the proceeding was held. The petition must include a summary of such evidence, the reasons why it is deemed relevant and material, and the reasons why it could not have been presented at the time the proceedings were held. The administrative law judge will grant or deny the petition after providing other parties reasonable opportunity to comment. If the proceeding is reopened, the administrative law judge may make such arrangements as the judge deems appropriate for receiving the new evidence and completing the record. The administrative law judge will then issue a new initial or recommended decision and order, and the case will proceed to final decision and order in accordance with § 766.21 or § 766.22 of this part, as appropriate. | ||||||
| 15:15:3.1.1.1.13.0.1.2 | 15 | Commerce and Foreign Trade | VII | C | 766 | PART 766—ADMINISTRATIVE ENFORCEMENT PROCEEDINGS | § 766.2 Definitions. | BIS | [61 FR 12907, Mar. 25, 1996, as amended at 67 FR 20631, Apr. 26, 2002; 70 FR 8250, Feb. 18, 2005] | As used in this part, the following definitions apply: Administrative law judge. The person authorized to conduct hearings in administrative enforcement proceedings brought under the EAA or to hear appeals from the imposition of temporary denial orders. The term “judge” may be used for brevity when it is clear that the reference is to the administrative law judge. Assistant Secretary. The Assistant Secretary for Export Enforcement, Bureau of Industry and Security. Bureau of Industry and Security (BIS). Bureau of Industry and Security, U.S. Department of Commerce (formerly the Bureau of Export Administration) and all of its component units, including, in particular for purposes of this part, the Office of Antiboycott Compliance, the Office of Export Enforcement, and the Office of Exporter Services. Final decision. A decision or order assessing a civil penalty, denial of export privileges or other sanction, or otherwise disposing of or dismissing a case, which is not subject to further review under this part, but which is subject to collection proceedings or judicial review in an appropriate Federal district court as authorized by law. Initial decision. A decision of the administrative law judge in proceedings involving violations relating to part 760 of the EAR, which is subject to appellate review by the Under Secretary of Commerce for Industry and Security, but which becomes the final decision in the absence of such an appeal. Party. BIS and any person named as a respondent under this part. Recommended decision. A decision of the administrative law judge in proceedings involving violations other than those relating to part 760 of the EAR, which is subject to review by the Under Secretary of Commerce for Industry and Security, who issues a written order affirming, modifying or vacating the recommended decision. Respondent. Any person named as the subject of a charging letter, proposed charging letter, temporary denial order, or other order proposed or issued under this part. Under Secretary. The… | |||||
| 15:15:3.1.1.1.13.0.1.20 | 15 | Commerce and Foreign Trade | VII | C | 766 | PART 766—ADMINISTRATIVE ENFORCEMENT PROCEEDINGS | § 766.20 Record for decision and availability of documents. | BIS | [61 FR 12907, Mar. 25, 1996, as amended at 87 FR 34153, June 6, 2022] | (a) General. The transcript of hearings, exhibits, rulings, orders, all papers and requests filed in the proceedings and, for purposes of any appeal under § 766.21 of this part or review under § 766.22 of this part, the decision of the administrative law judge and such submissions as are provided for by §§ 766.21 and 766.22 of this part, will constitute the record and the exclusive basis for decision. When a case is settled after the service of a charging letter, the record will consist of any and all of the foregoing, as well as the settlement agreement and the order. When a case is settled before service of a charging letter, the record will consist of the proposed charging letter, the settlement agreement and the order. (b) Restricted access. On the judge's own motion, or on the motion of any party, the administrative law judge may direct that there be a restricted access portion of the record for any material in the record to which public access is restricted by law or by the terms of a protective order entered in the proceedings. A party seeking to restrict access to any portion of the record is responsible for submitting, at the time specified in § 766.20(c)(2) of this part, a version of the document proposed for public availability that reflects the requested deletion. The restricted access portion of the record will be placed in a separate file and the file will be clearly marked to avoid improper disclosure and to identify it as a portion of the official record in the proceedings. The administrative law judge may act at any time to permit material that becomes declassified or unrestricted through passage of time to be transferred to the unrestricted access portion of the record. (c) Availability of documents —(1) Scope. (i) For proceedings started on or after October 12, 1979, all charging letters, answers, initial and recommended decisions, and orders disposing of a case will be made available for public inspection in the BIS Freedom of Information Records Inspection Facility, U.S. Department o… | |||||
| 15:15:3.1.1.1.13.0.1.21 | 15 | Commerce and Foreign Trade | VII | C | 766 | PART 766—ADMINISTRATIVE ENFORCEMENT PROCEEDINGS | § 766.21 Appeals. | BIS | (a) Grounds. For proceedings charging violations relating to part 760 of the EAR, a party may appeal to the Under Secretary from an order disposing of a proceeding or an order denying a petition to set aside a default or a petition for reopening, on the grounds: (1) That a necessary finding of fact is omitted, erroneous or unsupported by substantial evidence of record; (2) That a necessary legal conclusion or finding is contrary to law; (3) That prejudicial procedural error occurred, or (4) That the decision or the extent of sanctions is arbitrary, capricious or an abuse of discretion. The appeal must specify the grounds on which the appeal is based and the provisions of the order from which the appeal is taken. (b) Filing of appeal. An appeal from an order must be filed with the Office of the Under Secretary for Export Administration, Bureau of Industry and Security, U.S. Department of Commerce, Room H-3898, 14th Street and Constitution Avenue, NW., Washington, DC 20230, within 30 days after service of the order appealed from. If the Under Secretary cannot act on an appeal for any reason, the Under Secretary will designate another Department of Commerce official to receive and act on the appeal. (c) Effect of appeal. The filing of an appeal shall not stay the operation of any order, unless the order by its express terms so provides or unless the Under Secretary, upon application by a party and with opportunity for response, grants a stay. (d) Appeal procedure. The Under Secretary normally will not hold hearings or entertain oral argument on appeals. A full written statement in support of the appeal must be filed with the appeal and be simultaneously served on all parties, who shall have 30 days from service to file a reply. At his/her discretion, the Under Secretary may accept new submissions, but will not ordinarily accept those submissions filed more than 30 days after the filing of the reply to the appellant's first submission. (e) Decisions. The decision will be in writing and will be accom… | ||||||
| 15:15:3.1.1.1.13.0.1.22 | 15 | Commerce and Foreign Trade | VII | C | 766 | PART 766—ADMINISTRATIVE ENFORCEMENT PROCEEDINGS | § 766.22 Review by Under Secretary. | BIS | [61 FR 12907, Mar. 25, 1996, as amended at 75 FR 33683, June 15, 2010] | (a) Recommended decision. For proceedings not involving violations relating to part 760 of the EAR, the administrative law judge shall immediately refer the recommended decision and order to the Under Secretary. Because of the time limits provided under the EAA for review by the Under Secretary, service of the recommended decision and order on the parties, all papers filed by the parties in response, and the final decision of the Under Secretary must be by personal delivery, facsimile, express mail or other overnight carrier. If the Under Secretary cannot act on a recommended decision and order for any reason, the Under Secretary will designate another Department of Commerce official to receive and act on the recommendation. (b) Submissions by parties. Parties shall have 12 days from the date of issuance of the recommended decision and order in which to submit simultaneous responses. Parties thereafter shall have eight days from receipt of any response(s) in which to submit replies. Any response or reply must be received within the time specified by the Under Secretary. (c) Final decision. Within 30 days after receipt of the recommended decision and order, the Under Secretary shall issue a written order affirming, modifying or vacating the recommended decision and order of the administrative law judge. If he/she vacates the recommended decision and order, the Under Secretary may refer the case back to the administrative law judge for further proceedings. Because of the time limits, the Under Secretary's review will ordinarily be limited to the written record for decision, including the transcript of any hearing, and any submissions by the parties concerning the recommended decision. (d) Delivery. The final decision and implementing order shall be served on the parties and will be publicly available in accordance with § 766.20 of this part. | |||||
| 15:15:3.1.1.1.13.0.1.23 | 15 | Commerce and Foreign Trade | VII | C | 766 | PART 766—ADMINISTRATIVE ENFORCEMENT PROCEEDINGS | § 766.23 Related persons. | BIS | [61 FR 12907, Mar. 25, 1996, as amended at 71 FR 27605, May 12, 2006] | (a) General. In order to prevent evasion, certain types of orders under this part may be made applicable not only to the respondent, but also to other persons then or thereafter related to the respondent by ownership, control, position of responsibility, affiliation, or other connection in the conduct of trade or business. Orders that may be made applicable to related persons include those that deny or affect export privileges, including temporary denial orders, and those that exclude a respondent from practice before BIS. (b) Procedures. If BIS has reason to believe that a person is related to the respondent and that an order that is being sought or that has been issued should be made applicable to that person in order to prevent evasion of the order, BIS shall, except in an ex parte proceeding under § 766.24(a) of this part, give that person notice in accordance with § 766.5(b) of this part and an opportunity to oppose such action. If the official authorized to issue the order against the respondent finds that the order should be made applicable to that person in order to prevent evasion of the order that official shall issue or amend the order accordingly. (c) Appeals. Any person named by BIS in an order as related to the respondent may appeal that action. The sole issues to be raised and ruled on in any such appeal are whether the person so named is related to the respondent and whether the order is justified in order to prevent evasion. (1) A person named as related to the respondent in an order issued pursuant to § 766.25 may file an appeal with the Under Secretary for Industry and Security pursuant to part 756 of the EAR. (2) A person named as related to the respondent in an order issued pursuant to other provisions of this part may file an appeal with the administrative law judge. (i) If the order made applicable to the related person is for a violation related to part 760 of the EAR, the related person may file an appeal with the administrative law judge. The related person may appeal the in… | |||||
| 15:15:3.1.1.1.13.0.1.24 | 15 | Commerce and Foreign Trade | VII | C | 766 | PART 766—ADMINISTRATIVE ENFORCEMENT PROCEEDINGS | § 766.24 Temporary denials. | BIS | [61 FR 12907, Mar. 25, 1996, as amended at 71 FR 14099, Mar. 21, 2006; 71 FR 27606, May 12, 2006; 75 FR 33683, June 15, 2010; 88 FR 59793, Aug. 30, 2023] | (a) General. The procedures in this section apply to temporary denial orders issued on or after July 12, 1985. For temporary denial orders issued on or before July 11, 1985, the proceedings will be governed by the applicable regulations in effect at the time the temporary denial orders were issued. Without limiting any other action BIS may take under the EAR with respect to any application, order, license or authorization issued under ECRA, BIS may ask the Assistant Secretary to issue a temporary denial order on an ex parte basis to prevent an imminent violation, as defined in this section, of the ECRA, the EAR, or any order, license or authorization issued thereunder. The temporary denial order will deny export privileges to any person named in the order as provided for in § 764.3(a)(2) of the EAR. (b) Issuance. (1) The Assistant Secretary may issue an order temporarily denying to a person any or all of the export privileges described in part 764 of the EAR upon a showing by BIS that the order is necessary in the public interest to prevent an imminent violation of ECRA, the EAR, or any order, license or authorization issued thereunder. (2) The temporary denial order shall define the imminent violation and state why it was issued without a hearing. Because all denial orders are public, the description of the imminent violation and the reasons for proceeding on an ex parte basis set forth therein shall be stated in a manner that is consistent with national security, foreign policy, business confidentiality, and investigative concerns. (3) A violation may be “imminent” either in time or in degree of likelihood. To establish grounds for the temporary denial order, BIS may show either that a violation is about to occur, or that the general circumstances of the matter under investigation or case under criminal or administrative charges demonstrate a likelihood of future violations. To indicate the likelihood of future violations, BIS may show that the violation under investigation or charges is significant,… | |||||
| 15:15:3.1.1.1.13.0.1.25 | 15 | Commerce and Foreign Trade | VII | C | 766 | PART 766—ADMINISTRATIVE ENFORCEMENT PROCEEDINGS | § 766.25 Administrative action denying export privileges. | BIS | [61 FR 12907, Mar. 25, 1996, as amended at 65 FR 14863, Mar. 20, 2000; 67 FR 54953, Aug. 27, 2002; 85 FR 73418, Nov. 18, 2020] | (a) General. The Director of the Office of Export Enforcement (OEE), in consultation with the Director of the Office of Exporter Services, may deny the export privileges of any person who has been convicted of a violation of any of the statutes set forth at 50 U.S.C. 4819(e)(1)(B), including any regulation, license, or order issued pursuant to such statutes. (b) Procedure. Upon notification that a person has been convicted of a violation of one or more of the provisions specified in paragraph (a) of this section, the Director of OEE, in consultation with the Director of the Office of Exporter Services, will determine whether to deny such person export privileges, including but not limited to applying for, obtaining, or using any license, License Exception, or export control document; or participating in or benefitting in any way from any export or export-related transaction subject to the EAR. Before taking action to deny a person export privileges under this section, the Director of OEE will provide the person written notice of the proposed action and an opportunity to comment through a written submission, unless exceptional circumstances exist. In reviewing the response, the Director of OEE will consider any relevant or mitigating evidence why these privileges should not be denied. Upon final determination, the Director of OEE will notify by letter each person denied export privileges under this section. (c) Criteria. In determining whether and for how long to deny U.S. export privileges to a person previously convicted of one or more of the statutes set forth in paragraph (a) of this section, the Director of OEE may take into consideration any relevant information, including, but not limited to, the seriousness of the offense involved in the criminal prosecution, the nature and duration of the criminal sanctions imposed, and whether the person has undertaken any corrective measures. (d) Duration. Any denial of export privileges under this section shall not exceed 10 years from the date of the convic… | |||||
| 15:15:3.1.1.1.13.0.1.3 | 15 | Commerce and Foreign Trade | VII | C | 766 | PART 766—ADMINISTRATIVE ENFORCEMENT PROCEEDINGS | § 766.3 Institution of administrative enforcement proceedings. | BIS | [61 FR 12907, Mar. 25, 1996, as amended at 69 FR 7870, Feb. 20, 2004; 72 FR 39005, July 17, 2007; 78 FR 48606, Aug. 9, 2013] | (a) Charging letters. The Director of the Office of Export Enforcement (OEE) or the Director of the Office of Antiboycott Compliance (OAC), as appropriate, or such other Department of Commerce official as may be designated by the Assistant Secretary of Commerce for Export Enforcement, may begin administrative enforcement proceedings under this part by issuing a charging letter in the name of BIS. Supplements nos. 1 and 2 to this part describe how BIS typically exercises its discretion regarding the issuance of charging letters. The charging letter shall constitute the formal complaint and will state that there is reason to believe that a violation of the EAA, the EAR, or any order, license or authorization issued thereunder, has occurred. It will set forth the essential facts about the alleged violation, refer to the specific regulatory or other provisions involved, and give notice of the sanctions available under part 764 of the EAR. The charging letter will inform the respondent that failure to answer the charges as provided in § 766.6 of this part will be treated as a default under § 766.7 of this part, that the respondent is entitled to a hearing if a written demand for one is requested with the answer, and that the respondent may be represented by counsel, or by other authorized representative who has a power of attorney to represent the respondent. A copy of the charging letter shall be filed with the administrative law judge, which filing shall toll the running of the applicable statute of limitations. Charging letters may be amended or supplemented at any time before an answer is filed, or, with permission of the administrative law judge, afterwards. BIS may unilaterally withdraw charging letters at any time, by notifying the respondent and the administrative law judge. (b) Notice of issuance of charging letter instituting administrative enforcement proceeding. A respondent shall be notified of the issuance of a charging letter, or any amendment or supplement thereto: (1) By sending a copy by regist… | |||||
| 15:15:3.1.1.1.13.0.1.4 | 15 | Commerce and Foreign Trade | VII | C | 766 | PART 766—ADMINISTRATIVE ENFORCEMENT PROCEEDINGS | § 766.4 Representation. | BIS | [61 FR 12907, Mar. 25, 1996, as amended at 67 FR 45633, July 10, 2002] | A respondent individual may appear and participate in person, a corporation by a duly authorized officer or employee, and a partnership by a partner. If a respondent is represented by counsel, counsel shall be a member in good standing of the bar of any State, Commonwealth or Territory of the United States, or of the District of Columbia, or be licensed to practice law in the country in which counsel resides if not the United States. A respondent personally, or through counsel or other representative, shall file a notice of appearance with the administrative law judge. BIS will be represented by the Office of Chief Counsel for Industry and Security, U.S. Department of Commerce. | |||||
| 15:15:3.1.1.1.13.0.1.5 | 15 | Commerce and Foreign Trade | VII | C | 766 | PART 766—ADMINISTRATIVE ENFORCEMENT PROCEEDINGS | § 766.5 Filing and service of papers other than charging letter. | BIS | [61 FR 12907, Mar. 25, 1996, as amended at 67 FR 45633, July 10, 2002; 70 FR 8250, Feb. 18, 2005] | (a) Filing. All papers to be filed shall be addressed to EAR Administrative Enforcement Proceedings, U.S. Coast Guard, ALJ Docketing Center, 40 S. Gay Street, Baltimore, Maryland, 21202-4022, or such other place as the administrative law judge may designate. Filing by United States mail, first class postage prepaid, by express or equivalent parcel delivery service, or by hand delivery, is acceptable. Filing by mail from a foreign country shall be by airmail. In addition, the administrative law judge may authorize filing of papers by facsimile or other electronic means, provided that a hard copy of any such paper is subsequently filed. A copy of each paper filed shall be simultaneously served on each party. (b) Service. Service shall be made by personal delivery or by mailing one copy of each paper to each party in the proceeding. Service by delivery service or facsimile, in the manner set forth in paragraph (a) of this section, is acceptable. Service on BIS shall be addressed to the Chief Counsel for Industry and Security, Room H-3839, U.S. Department of Commerce, 14th Street and Constitution Avenue, N.W., Washington, D.C. 20230. Service on a respondent shall be to the address to which the charging letter was sent or to such other address as respondent may provide. When a party has appeared by counsel or other representative, service on counsel or other representative shall constitute service on that party. (c) Date. The date of filing or service is the day when the papers are deposited in the mail or are delivered in person, by delivery service, or by facsimile. (d) Certificate of service. A certificate of service signed by the party making service, stating the date and manner of service, shall accompany every paper, other than the charging letter, filed and served on parties. (e) Computing period of time. In computing any period of time prescribed or allowed by this part or by order of the administrative law judge or the Under Secretary, the day of the act, event, or default from which the designa… | |||||
| 15:15:3.1.1.1.13.0.1.6 | 15 | Commerce and Foreign Trade | VII | C | 766 | PART 766—ADMINISTRATIVE ENFORCEMENT PROCEEDINGS | § 766.6 Answer and demand for hearing. | BIS | (a) When to answer. The respondent must answer the charging letter within 30 days after being served with notice of the issuance of a charging letter instituting an administrative enforcement proceeding, or within 30 days of notice of any supplement or amendment to a charging letter, unless time is extended under § 766.16 of this part. (b) Contents of answer. The answer must be responsive to the charging letter and must fully set forth the nature of the respondent's defense or defenses. The answer must admit or deny specifically each separate allegation of the charging letter; if the respondent is without knowledge, the answer must so state and will operate as a denial. Failure to deny or controvert a particular allegation will be deemed an admission of that allegation. The answer must also set forth any additional or new matter the respondent believes supports a defense or claim of mitigation. Any defense or partial defense not specifically set forth in the answer shall be deemed waived, and evidence thereon may be refused, except for good cause shown. (c) Demand for hearing. If the respondent desires a hearing, a written demand for one must be submitted with the answer. Any demand by BIS for a hearing must be filed with the administrative law judge within 30 days after service of the answer. Failure to make a timely written demand for a hearing shall be deemed a waiver of the party's right to a hearing, except for good cause shown. If no party demands a hearing, the matter will go forward in accordance with the procedures set forth in § 766.15 of this part. (d) English language required. The answer, all other papers, and all documentary evidence must be submitted in English, or translations into English must be filed and served at the same time. | ||||||
| 15:15:3.1.1.1.13.0.1.7 | 15 | Commerce and Foreign Trade | VII | C | 766 | PART 766—ADMINISTRATIVE ENFORCEMENT PROCEEDINGS | § 766.7 Default. | BIS | (a) General. Failure of the respondent to file an answer within the time provided constitutes a waiver of the respondent's right to appear and contest the allegations in the charging letter. In such event, the administrative law judge, on BIS's motion and without further notice to the respondent, shall find the facts to be as alleged in the charging letter and render an initial or recommended decision containing findings of fact and appropriate conclusions of law and issue or recommend an order imposing appropriate sanctions. The decision and order shall be subject to review by the Under Secretary in accordance with the applicable procedures set forth in § 766.21 or § 766.22 of this part. (b) Petition to set aside default —(1) Procedure. Upon petition filed by a respondent against whom a default order has been issued, which petition is accompanied by an answer meeting the requirements of § 766.6(b) of this part, the Under Secretary may, after giving all parties an opportunity to comment, and for good cause shown, set aside the default and vacate the order entered thereon and remand the matter to the administrative law judge for further proceedings. (2) Time limits. A petition under this section must be made within one year of the date of entry of the order which the petition seeks to have vacated. | ||||||
| 15:15:3.1.1.1.13.0.1.8 | 15 | Commerce and Foreign Trade | VII | C | 766 | PART 766—ADMINISTRATIVE ENFORCEMENT PROCEEDINGS | § 766.8 Summary decision. | BIS | At any time after a proceeding has been initiated, a party may move for a summary decision disposing of some or all of the issues. The administrative law judge may render an initial or recommended decision and issue or recommend an order if the entire record shows, as to the issue(s) under consideration: (a) That there is no genuine issue as to any material fact; and (b) That the moving party is entitled to a summary decision as a matter of law. | ||||||
| 15:15:3.1.1.1.13.0.1.9 | 15 | Commerce and Foreign Trade | VII | C | 766 | PART 766—ADMINISTRATIVE ENFORCEMENT PROCEEDINGS | § 766.9 Discovery. | BIS | (a) General. The parties are encouraged to engage in voluntary discovery regarding any matter, not privileged, which is relevant to the subject matter of the pending proceeding. The provisions of the Federal Rules of Civil Procedure relating to discovery apply to the extent consistent with this part and except as otherwise provided by the administrative law judge or by waiver or agreement of the parties. The administrative law judge may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense. These orders may include limitations on the scope, method, time and place of discovery, and provisions for protecting the confidentiality of classified or otherwise sensitive information. (b) Interrogatories and requests for admission or production of documents. A party may serve on any party interrogatories, requests for admission, or requests for production of documents for inspection and copying, and a party concerned may apply to the administrative law judge for such enforcement or protective order as that party deems warranted with respect to such discovery. The service of a discovery request shall be made at least 20 days before the scheduled date of the hearing unless the administrative law judge specifies a shorter time period. Copies of interrogatories, requests for admission and requests for production of documents and responses thereto shall be served on all parties, and a copy of the certificate of service shall be filed with the administrative law judge. Matters of fact or law of which admission is requested shall be deemed admitted unless, within a period designated in the request (at least 10 days after service, or within such additional time as the administrative law judge may allow), the party to whom the request is directed serves upon the requesting party a sworn statement either denying specifically the matters of which admission is requested or setting forth in detail the reasons why the party to whom the request is dir… | ||||||
| 40:40:34.0.1.1.10.1.1.1 | 40 | Protection of Environment | I | R | 766 | PART 766—DIBENZO-PARA-DIOXINS/DIBENZOFURANS | A | Subpart A—General Provisions | § 766.1 Scope and purpose. | EPA | (a) This part identifies requirements for testing under section 4 of the Toxic Substances Control Act (TSCA), 15 U.S.C. 2603, to ascertain whether certain specified chemical substances may be contaminated with halogenated dibenzodioxins (HDDs)/dibenzofurans (HDFs) as defined in § 766.3, and requirements for reporting under section 8 of TSCA, 15 U.S.C. 2607. (b) Section 766.35(b) requires manufacturers and processors of chemical substances identified in § 766.25 to submit to EPA: (1) Any existing test data showing analysis of the chemical substances for concentrations of HDDs/HDFs, applicable protocols, and the results of the analysis for HDDs/HDFs, (2) allegations of significant adverse reactions to HDDs/HDFs, compiled in accordance with part 717 of this chapter, and (3) health and safety studies on the HDDs/HDFs, in accordance with applicable provisions of part 716 of this chapter. (c) Section 766.35(a) requires manufacturers and, under certain circumstances, processors of chemical substances identified in § 766.25 to submit letters of intent to test and protocols for the analysis of the chemical substances for the presence of HDDs/HDFs. Section 766.20 requires these manufacturers and processors to test their chemical substances for the presence of HDDs/HDFs. Any submissions must be in accordance with the EPA Procedures Governing Testing Consent Agreements and Test Rules contained in part 790 of this chapter and any modifications to such procedures contained in this part. (d) Section 766.32 specifies conditions under which persons required to test may request an exclusion or waiver from testing. (e) Deadlines for submission to EPA of protocols, reports, studies, and test results are specified in part 790, subpart C and § 766.35. (f) Sections 766.10, 766.12, 766.14, 766.16, and 766.18 prescribe analytical methods required; § 766.27 prescribes target levels of quantitation (LOQ) for each congener for which quantitation is required. (g) If results of existing tests or tests performed under this part indicate… | ||||
| 40:40:34.0.1.1.10.1.1.10 | 40 | Protection of Environment | I | R | 766 | PART 766—DIBENZO-PARA-DIOXINS/DIBENZOFURANS | A | Subpart A—General Provisions | § 766.18 Method sensitivity. | EPA | The target level of quantitation required under § 766.27 for each HDD/HDF congener is the level which must be attempted for each resolved HRGC peak for that congener. For at least one product sample, at least two analyses of the same isotopically labeled HDD/HDF internal calibration standards spiked to a final product concentration equal to the LOQ for that congener must be reproducibly extracted, cleaned up, and quantified to within ±20 percent of each other. For each spiked product sample, the signal to noise ratio for the calibration standard peaks after complete extraction and cleanup must be 10:1 or greater. The recovery of the internal calibration standards in the extracted and cleaned up product samples must be within 50 to 150 percent of the amount spiked, and the results must be corrected for recovery. | ||||
| 40:40:34.0.1.1.10.1.1.2 | 40 | Protection of Environment | I | R | 766 | PART 766—DIBENZO-PARA-DIOXINS/DIBENZOFURANS | A | Subpart A—General Provisions | § 766.2 Applicability and duration of this part. | EPA | (a) Chemical substances subject to testing. (1) This part is applicable to each person who, at any time during the duration of this part, manufactures (and/or imports), or processes, a chemical substance identified under § 766.25. (2) The duration of this part for any testing requirement for any chemical substance is the period commencing with the effective date of this part to the end of the reimbursement period, as defined in § 766.3, for each chemical substance. All reporting requirements for any chemical substance listed under § 766.25 shall be in effect for the same period as the testing requirement. (b) Precursor chemical substances. (1) This part is applicable to each person who manufactures (and/or imports) a chemical substance from any precursor chemical substance identified in § 766.38. (2) The requirement for precursor reporting under § 766.38 shall be in effect until three years after the effective date of this part. (3) Small manufacturers are exempt from reporting process and reaction condition data on chemical substances made from precursor chemical substances listed under § 766.38. | ||||
| 40:40:34.0.1.1.10.1.1.3 | 40 | Protection of Environment | I | R | 766 | PART 766—DIBENZO-PARA-DIOXINS/DIBENZOFURANS | A | Subpart A—General Provisions | § 766.3 Definitions. | EPA | [52 FR 21437, June 5, 1987, as amended at 78 FR 72828, Dec. 4, 2013] | The definitions in section 3 of TSCA and the definitions of §§ 704.3, 716.3, 717.3, and 790.3 of this chapter also apply to this part. Central Data Exchange or CDX means EPA's centralized electronic submission receiving system. Chemical Information Submission System or CISS means EPA's electronic, web-based reporting tool for the completion and submission of data, reports, and other information, or its successors. Congener means any one particular member of a class of chemical substances. A specific congener is denoted by unique chemical structure, for example 2,3,7,8-tetrachlorodibenzofuran. Dibenzofuran means any of a family of compounds which has as a nucleus a triple-ring structure consisting of two benzene rings connected through a pair of bridges between the benzene rings. The bridges are a carbon-carbon bridge and a carbon-oxygen-carbon bridge at both substitution positions. Dibenzo-p-dioxin or dioxin means any of a family of compounds which has as a nucleus a triple-ring structure consisting of two benzene rings connected through a pair of oxygen atoms. Guidelines means the Midwest Research Institute (MRI) publication Guidelines for the Determination of Polyhalogenated Dioxins and Dibenzofurans in Commercial Products, EPA contract No. 68-02-3938; MRI Project No. 8201-A(41), 1985. HDD or 2,3,7,8-HDD means any of the dibenzo-p-dioxins totally chlorinated or totally brominated at the following positions on the molecular structure: 2,3,7,8; 1,2,3,7,8; 1,2,3,4,7,8; 1,2,3,6,7,8; 1,2,3,7,8,9; and 1,2,3,4,7,8,9. HDF or 2,3,7,8-HDF means any of the dibenzofurans totally chlorinated or totally brominated at the following positions on the molecular structure: 2,3,7,8; 1,2,3,7,8; 2,3,4,7,8; 1,2,3,4,7,8; 1,2,3,6,7,8; 1,2,3,7,8,9; 2,3,4,6,7,8; 1,2,3,4,6,7,8; and 1,2,3,4,7,8,9. Homolog means a group of isomers that have the same degree of halogenation. For example, the homologous class of tetrachlorodibenzo-p-dioxins consists of all dibenzo-p-dioxins containing four chlorine atoms. When the… | |||
| 40:40:34.0.1.1.10.1.1.4 | 40 | Protection of Environment | I | R | 766 | PART 766—DIBENZO-PARA-DIOXINS/DIBENZOFURANS | A | Subpart A—General Provisions | § 766.5 Compliance. | EPA | Any person who fails or refuses to comply with any aspect of this part is in violation of section 15 of TSCA. Section 15(1) makes it unlawful for any person to fail or refuse to comply with any rule or order issued under section 4. Section 15(3) makes it unlawful for any person to fail or refuse to submit information required under this part. Section 16 provides that a violation of section 15 renders a person liable to the United States for a civil penalty and possible criminal prosecution. Under section 17 of TSCA, the district courts of the United States have jurisdiction to restrain any violation of section 15. | ||||
| 40:40:34.0.1.1.10.1.1.5 | 40 | Protection of Environment | I | R | 766 | PART 766—DIBENZO-PARA-DIOXINS/DIBENZOFURANS | A | Subpart A—General Provisions | § 766.7 Submission of information. | EPA | [78 FR 72828, Dec. 4, 2013] | (a) All information (including letters of intent, protocols, data, forms, studies, and allegations) submitted to EPA under this part must bear the applicable Code of Federal Regulations (CFR) section number (e.g., § 766.20). (b) You must use the CISS tool to complete and submit all data, reports, and other information required under this part except for records and reports of allegations of significant adverse reactions, which must be submitted in accordance with paragraph (c) of this section. (1) Submissions must be submitted to EPA via CDX. (2) To access the CISS tool go to https://cdx.epa.gov/ssl/CSPP/PrimaryAuthorizedOfficial/Home.aspx and follow the appropriate links and for further instructions to go http://www.epa.gov/oppt/chemtest/ereporting/index.html. (c) You must submit records and reports of allegations of significant adverse reactions and the accompanying cover letters by one of the following methods: (1) Mail, preferably certified, to the Document Control Office (DCO) (7407M), Office of Pollution Prevention and Toxics (OPPT), Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001, ATTN: Dioxin/Furan report part 766, Allegations of significant adverse reactions. (2) Hand delivery to OPPT Document Control Office (DCO), EPA East, Rm. 6428, 1201 Constitution Ave. NW., Washington, DC, ATTN: Dioxin/Furan report part 766, Allegations of significant adverse reactions. The DCO is open from 8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The telephone number for the DCO is (202) 564-8930. Such deliveries are only accepted during the DCO's normal hours of operation. | |||
| 40:40:34.0.1.1.10.1.1.6 | 40 | Protection of Environment | I | R | 766 | PART 766—DIBENZO-PARA-DIOXINS/DIBENZOFURANS | A | Subpart A—General Provisions | § 766.10 Test standards. | EPA | Testing required under subpart B of this part must be performed using the protocols submitted to and reviewed by the EPA expert panel established under § 766.28. All new data, documentation, records, protocols, specimens, and reports generated as a result of testing under subpart B of this part must be fully developed and retained in accordance with part 792 of this chapter. These items must be made available during an inspection or submitted to EPA upon request by EPA or its authorized representative. Laboratories conducting testing for submission to EPA in response to a test rule promulgated under section 4 of TSCA must adhere to the TSCA Good Laboratory Practices (GLPs) published in part 792 of this chapter. Sponsors must notify the laboratory that the testing is being conducted pursuant to TSCA section 4. Sponsors are also responsible for ensuring that laboratories conducting the testing abide by the TSCA GLP standards. At the time test data are submitted, manufacturers must submit a certification to EPA that the laboratory performing the testing adhered to the TSCA GLPs. | ||||
| 40:40:34.0.1.1.10.1.1.7 | 40 | Protection of Environment | I | R | 766 | PART 766—DIBENZO-PARA-DIOXINS/DIBENZOFURANS | A | Subpart A—General Provisions | § 766.12 Testing guidelines. | EPA | [60 FR 34466, July 3, 1995, as amended at 77 FR 46292, Aug. 3, 2012] | Analytical test methods must be developed using methods equivalent to those described or reviewed in Guidelines for the Determination of Polyhalogenated Dibenzo-p-dioxins and Dibenzofurans in Commercial Products. Copies are available from the Director, Environmental Assistance Division (7408), Office of Pollution Prevention and Toxics, U.S.Environmental Protection Agency, Room E-543B, 1200 Pennsylvania Ave., NW., Washington, DC 20460, Telephone: (202) 554-1404, TDD: (202) 544-0551. Publicly available docket materials are available at the addresses in § 700.17(b)(1) and (2) of this chapter. | |||
| 40:40:34.0.1.1.10.1.1.8 | 40 | Protection of Environment | I | R | 766 | PART 766—DIBENZO-PARA-DIOXINS/DIBENZOFURANS | A | Subpart A—General Provisions | § 766.14 Contents of protocols. | EPA | Protocols should include all parts of the Quality Assurance Plan for Measurement of Brominated or Chlorinated Dibenzofurans and Dibenzodioxins, as stated in the Guidelines. For each chemical substance and each process, the manufacturer must submit a statement of how many grades of the chemical substance it produces, a justification for selection of the specific grade of chemical substance for testing, specific plans for collection of samples from the process stream, naming the point of collection, the method of collecting the sample, and an estimate of how well the samples will represent the material to be characterized; a description of how control samples (blanks) and HDD/HDF-reinforced control samples, or isotopically labeled compounds (standards) and duplicate samples will be handled; a description of the chemical extraction and clean up procedures to be used; how extraction efficiency and measurement efficiency will be established; and a description of instrument hardware and operating conditions, including type and source of columns, carrier gas and flow rate, operating temperature range, and ion source temperature. | ||||
| 40:40:34.0.1.1.10.1.1.9 | 40 | Protection of Environment | I | R | 766 | PART 766—DIBENZO-PARA-DIOXINS/DIBENZOFURANS | A | Subpart A—General Provisions | § 766.16 Developing the analytical test method. | EPA | Because of the matrix differences of the chemicals listed for testing, no one method for sample selection, preparation, extraction and clean up is prescribed. For analysis, High Resolution Gas Chromatography (HRGC) with High Resolution Mass Spectrometry (HRMS) is the method of choice, but other methods may be used if they can be demonstrated to reach the target LOQs as well as HRGC/HRMS. (a) Sample selection. The chemical product to be tested should be sampled so that the specimens collected for analysis are representative of the whole. Additional guidance for sample selection is provided under § 766.12. (b) Sample preparation. The sample must be mechanically homogenized and subsampled as necessary. Subsamples must be spiked or reinforced with surrogate compounds or with standard stock solutions, and the surrogates or standards must be thoroughly incorporated by mechanical agitation. Additional guidance is provided under § 766.12. (c) Sample extraction and cleanup. The spiked samples must be treated to separate the HDDs/HDFs from the sample matrix. Methods are reviewed in the Guidelines under § 766.12, but the final method or methods are left to the discretion of the analyst, provided the instrumental response of the surrogates meets the criteria listed in the Quality Assurance Plan for Measurement of Brominated or Chlorinated Dibenzofurans and Dibenzodioxins, Appendixes B and C of the Guidelines. Cleanup techniques are described in the Guidelines. These are chosen at the discretion of the analyst to meet the requirements of the chemical matrix. (d) Analysis. The method of choice is High Resolution Gas Chromatographic/High Resolution Mass Spectrometric Determination, (HRGC/HRMS) but alternate methods may be used if the manufacturer can demonstrate that the method will reach the target LOQs as well as HRGC/HRMS. Specific operating requirements are found in the Guidelines. | ||||
| 40:40:34.0.1.1.10.2.1.1 | 40 | Protection of Environment | I | R | 766 | PART 766—DIBENZO-PARA-DIOXINS/DIBENZOFURANS | B | Subpart B—Specific Chemical Testing/Reporting Requirements | § 766.20 Who must test. | EPA | (a) Any person who manufactures, imports, or processes a chemical substance listed in § 766.25 must test that chemical substance and must submit appropriate information to EPA according to the schedules described in § 766.35. Chemical substances manufactured, imported or processed between January 1, 1984 and the date of promulgation of this part are subject to testing upon the effective date of this part. All other chemical substances are subject to testing immediately upon manufacture, import or processing. EPA expects that only manufacturers and importers will perform testing, and that the cost of testing will be passed on to processors through the pricing mechanism, thereby enabling them to share in the cost of testing. However, processors will be called upon to sponsor testing should manufacturers and importers fail to do so. A processor may apply for an exemption from testing upon certification to EPA that a manufacturer or importer is testing the chemical substance which that person processes. (b) If no manufacturer or importer described in § 766.20 submits a letter of intent to perform testing within the period described under § 766.35(a), or an exemption application under § 790.45(a), or a request for an exclusion or waiver under § 766.32, EPA will issue a notice in the Federal Register to notify all processors of that chemical substance. The notice will state that EPA has not received any of the documents described in the previous sentence, and that current processors will have 30 days to submit either a letter of intent to perform the test or submit an exemption application. (c) If no manufacturer, importer or processor submits a letter of intent to perform testing of a specific chemical substance produced by a specific process, EPA will notify all manufacturers, importers, and processors, either by notice in the Federal Register or by letter, that all exemption applications will be denied and that within 30 days all manufacturers, importers, and processors will be in violation of this part until … | ||||
| 40:40:34.0.1.1.10.2.1.2 | 40 | Protection of Environment | I | R | 766 | PART 766—DIBENZO-PARA-DIOXINS/DIBENZOFURANS | B | Subpart B—Specific Chemical Testing/Reporting Requirements | § 766.25 Chemical substances for testing. | EPA | (a) Listing of chemical substances. Chemical substances required to be tested for HDDs/HDFs under this rule are listed in this section. The listing is by Chemical Abstracts Service (CAS) Number and common name. For purposes of guidance only, EPA lists the chemical substances subject to testing under this part in two classes—those known to be manufactured or imported between January 1, 1984, and promulgation of this part, and those not known to be manufactured or imported at the time of promulgation of this part. (1) Chemicals substances known to be manufactured between January 1, 1984 and date of promulgation of this part. (2) Chemicals not known to be manufactured between January 1, 1984 and the date of promulgation of this part. (b) Grade to be tested. If the same process is used to manufacture all grades of the same chemical substance, only one grade need be tested. The grade to be tested must be the grade subject to the most intense heat and alkalinity for the longest duration of time, manufactured under each different process. If the heat, alkalinity and duration of reaction do not differ for various grades, the test substance must be the grade of chemical substance with the highest volume of sales. | ||||
| 40:40:34.0.1.1.10.2.1.3 | 40 | Protection of Environment | I | R | 766 | PART 766—DIBENZO-PARA-DIOXINS/DIBENZOFURANS | B | Subpart B—Specific Chemical Testing/Reporting Requirements | § 766.27 Congeners and LOQs for which quantitation is required. | EPA | Quantitation at the target LOQ shown for each of the following HDDs/HDFs which may be present in the chemical substances is required for the chemical substances listed under § 766.25. Analysis must take place for either chlorinated or brominated dibenzodioxins or dibenzofurans, whichever is predominantly expected to occur in the chemical substance to be tested. Only chlorinated and brominated congeners need be quantified; for chemical substances containing predominantly chlorine atoms, only congeners totally chlorinated at the numbered positions need be quantified; for chemical substances containing predominantly bromine atoms, only congeners totally brominated at the numbered positions need be quantified. | ||||
| 40:40:34.0.1.1.10.2.1.4 | 40 | Protection of Environment | I | R | 766 | PART 766—DIBENZO-PARA-DIOXINS/DIBENZOFURANS | B | Subpart B—Specific Chemical Testing/Reporting Requirements | § 766.28 Expert review of protocols. | EPA | EPA will gather a panel of experts in analysis of chemical matrices for HDDs/HDFs to review the protocols for testing submitted to EPA. The panel members will be employees of EPA and/or of other U.S. Government agencies who have had experience in analysis of chemical matrices and/or chemical wastes for HDDs/HDFs. The panel will recommend to the Director, EPA Office of Pollution Prevention and Toxics, whether the protocol submitted is likely to allow analysis down to the target LOQs, or if not, whether the protocol represents a good faith effort on the part of the tester to achieve the lowest possible LOQs. The final determination to accept or reject the protocol will be made by the Director, Office of Pollution Prevention and Toxics. EPA will review the submitted protocols as rapidly as possible and will complete the review within 90 days after receipt. EPA may require submission of revised protocols. Comments and recommendations will be transmitted to the submitter, and if revisions are required, a final protocol must be submitted to EPA within 90 days after EPA transmits such recommendations. | ||||
| 40:40:34.0.1.1.10.2.1.5 | 40 | Protection of Environment | I | R | 766 | PART 766—DIBENZO-PARA-DIOXINS/DIBENZOFURANS | B | Subpart B—Specific Chemical Testing/Reporting Requirements | § 766.32 Exclusions and waivers. | EPA | (a) Reasons for exclusions and waivers. Any person subject to the testing requirements of this part may request an exclusion or waiver from testing for any one of the following reasons: (1) Exclusions may be granted if. (i) Testing of the appropriate grade of the chemical substance has already been carried out, either analytical testing at the lowest LOQ possible, with appropriate QA/QC, or a well-designed bioassay with appropriate QA/QC or; (ii) Process and reaction conditions of the chemical substance such that no HDDs/HDFs could be produced under those conditions; (2) Waivers may be granted if. (i) A responsible company official certifies that the chemical substance is produced only in quantities of 100 kilograms or less per year, only for research and development purposes; or (ii) In the judgement of EPA, the cost of testing would drive the chemical substance off the market, or prevent resumption of manufacture or import of the chemical substance, if it is not currently manufactured, and the chemical substance will be produced so that no unreasonable risk will occur due to its manufacture, import, processing, distribution, use, or disposal. (In this case, the manufacturer must submit to EPA all data supporting the determination.) (iii) Waivers may be appropriately conditioned with respect to such factors as time and conditions of manufacture or use. The grade of decabromodiphenyl oxide produced by Dow Chemical Company (Dow) for the National Toxicology Program (NTP) bioassay on that chemical is excluded from the testing requirement under this part. Provided, however, that this exclusion will not apply if Dow fails to supply to EPA within 60 days of the effective date of this section evidence showing which grade was used for the NTP bioassay. (b) Timing. Exclusion or waiver requests and detailed supporting data must be submitted to EPA within 60 days from the effective date of this part for persons manufacturing, importing or processing a chemical substance as of the date of promulgation, or 60 da… | ||||
| 40:40:34.0.1.1.10.2.1.6 | 40 | Protection of Environment | I | R | 766 | PART 766—DIBENZO-PARA-DIOXINS/DIBENZOFURANS | B | Subpart B—Specific Chemical Testing/Reporting Requirements | § 766.35 Reporting requirements. | EPA | [52 FR 21437, June 5, 1987, as amended at 56 FR 23229, May 21, 1991; 57 FR 24960, June 12, 1992; 58 FR 30991, May 28, 1993, 58 FR 34205, June 23, 1993; 59 FR 46356, Sept. 8, 1994; 60 FR 31922, June 19, 1995; 60 FR 50433, Sept. 29, 1995; 60 FR 56955, Nov. 13, 1995; 62 FR 35105, June 30, 1997; 78 FR 72829, Dec. 4, 2013] | (a) Letters of intent, exemption applications, and protocols —(1) Letters of intent. (i) Persons who have manufactured or imported chemical substances listed under § 766.25 between January 1, 1984, and the effective date of this part are required to submit under § 790.45 of this chapter a letter of intent to test or an exemption application. These letters must be submitted no later than September 3, 1987. (ii) Persons who commence manufacture, import or processing of a chemical substance listed under § 766.25 that has not been manufactured, imported or processed between January 1, 1984 and the effective date of this part must submit under § 790.45 of this chapter, within 60 days after the commencement of manufacture, import, or processing of the chemical substance, a letter of intent to test or an exemption application. (iii) Persons who commence manufacture, import or processing of a chemical substance listed under § 766.25 between the effective date of this part and the end of the reimbursement period for that particular chemical substance produced by a specific process must submit under § 790.45 of this chapter, within 60 days after the commencement of manufacture, import or processing of the chemical substance, a letter of intent to test or an exemption application. (2) Protocols. (i) Each person who is manufacturing or processing a chemical substance listed in § 766.25 as of the effective date of this part who submits a notice of intent to test under § 766.35(a)(1) must submit a protocol for the test as follows: (A) The protocols for each chlorinated chemical substance produced by each process to be tested must be submitted to EPA no later than 12 months after the effective date of this part. (B) The protocol for each brominated chemical substance produced by each process to be tested must be submitted to EPA no later than 24 months after the effective date of this part except for the following chemicals. ( 1 ) The deadline for submitting the protocols for tetrabromobisphenol-A (CAS No. 79-94-7); … | |||
| 40:40:34.0.1.1.10.2.1.7 | 40 | Protection of Environment | I | R | 766 | PART 766—DIBENZO-PARA-DIOXINS/DIBENZOFURANS | B | Subpart B—Specific Chemical Testing/Reporting Requirements | § 766.38 Reporting on precursor chemical substances. | EPA | [52 FR 21437, June 5, 1987, as amended at 60 FR 31922, June 19, 1995] | (a) Identification of precursor chemical substances. Precursor chemical substances are produced under conditions that will not yield HDDs and HDFs, but their molecular structure is conducive to HDD/HDF formation under favorable reaction conditions when they are used to produce other chemicals or products. The following precursor chemical substances are identified by Chemical Abstract Service (CAS) number and name. (b) Persons required to report. All persons who manufacture or import a chemical product produced using any of the chemical substances listed in paragraph (a) of this section as feedstocks or intermediates must report no later than September 29, 1987. Small manufacturers and those manufacturers and importers who produce the precursor chemical substances in quantities of 100 kilograms or less per year only for research and development purposes are not required to report under this section (c) Data to be reported. Manufacturers and importers of chemical products made from precursor chemical substances identified in paragraph (a) of this section must report process and reaction condition data on Part II of EPA Form 7710-51 for each chemical product. A separate EPA Form 7710-51 must be submitted for each chemical product reported, and the precursor chemical substance used must be identified. All forms must be submitted to EPA no later than September 29, 1987. | |||
| 7:7:7.1.1.4.17.1.9.1 | 7 | Agriculture | VII | D | 766 | PART 766—DIRECT LOAN SERVICING—SPECIAL | A | Subpart A—Overview | § 766.1 Introduction. | FSA | [72 FR 63316, Nov. 8, 2007, as amended at 89 FR 65043, Aug. 8, 2024] | (a) This part describes the Agency's servicing policies for direct loan borrowers who: (1) Are financially distressed; (2) Are delinquent in paying direct loans or otherwise in default; (3) Have received unauthorized assistance; (4) Have filed bankruptcy or are involved in other civil or criminal cases affecting the Agency; or (5) Have loan security being liquidated voluntarily or involuntarily. (b) The Agency services direct FLP loans under the policies contained in this part. (1) Youth loans: (i) May not receive DSA under subpart B of this part or DBSA under subpart J of this part; (ii) Will only be considered for rescheduling according to § 766.107 and deferral according to § 766.109. (2) The Agency does not service Non-program loans under this part except where noted. (c) The Agency requires the borrower to make every reasonable attempt to make payments and comply with loan agreements before the Agency considers special servicing. | |||
| 7:7:7.1.1.4.17.1.9.2 | 7 | Agriculture | VII | D | 766 | PART 766—DIRECT LOAN SERVICING—SPECIAL | A | Subpart A—Overview | § 766.2 Abbreviations and definitions. | FSA | Abbreviations and definitions for terms used in this part are provided in § 761.2 of this chapter. | ||||
| 7:7:7.1.1.4.17.1.9.3 | 7 | Agriculture | VII | D | 766 | PART 766—DIRECT LOAN SERVICING—SPECIAL | A | Subpart A—Overview | §§ 766.3-766.50 [Reserved] | FSA | |||||
| 7:7:7.1.1.4.17.10.9.1 | 7 | Agriculture | VII | D | 766 | PART 766—DIRECT LOAN SERVICING—SPECIAL | J | Subpart J—DBSA | § 766.451 General. | FSA | (a) DBSA is available to borrowers with at least one outstanding program loan authorized in subtitle A, B, or C of the CONACT (the loan must be an OL, FO, CL, SW, or EM), and who are a delinquent borrower or financially distressed borrower. (b) DBSA is not intended to circumvent other servicing available under this part. | ||||
| 7:7:7.1.1.4.17.10.9.2 | 7 | Agriculture | VII | D | 766 | PART 766—DIRECT LOAN SERVICING—SPECIAL | J | Subpart J—DBSA | § 766.452 Eligibility. | FSA | (a) Borrower eligibility. The borrower must meet all the following requirements to be eligible for DBSA: (1) The borrower must currently be operating the farm. Farmers who have rented out their land base for cash are not considered to be operating the farm. (2) The borrower must have acted in good faith, and the borrower's inability to make the current or upcoming scheduled loan payments must be for reasons not within the borrower's control. (3) The borrower cannot have more than one DBSA on each loan. (4) The borrower does not have sufficient income available to pay all family living and farm operating expenses, other creditors, and debts to the Agency. This determination will be based on: (i) The borrower's actual production, income and expense records; and (ii) Any other records required by the Agency; (5) For the next production cycle, the borrower must develop a feasible plan showing that the borrower will at least be able to pay all operating expenses and taxes due during the year, essential family living expenses, and meet scheduled payments on all debts, including Agency debts. The borrower must provide documentation required to support the farm operating plan. (6) The borrower must not be in non-monetary default. (7) The borrower must not be ineligible due to disqualification resulting from Federal crop insurance violation according to 7 CFR part 718. (8) The borrower must not become 165 days past due before the appropriate Agency DBSA documents are executed. (b) Loan eligibility. The loan must meet all the following requirements to be eligible for DBSA: (1) To be considered for DBSA the loan must have been either an OL, FO, CL, SW or EM outstanding prior to September 25, 2024. (2) All of the borrower's program and non-program loans must be current after the Agency completes DBSA for the scheduled payment installment. (3) All FLP loans must either be current or less than 150 days past due at the time the complete application for DBSA is received by the Agency. (4) The Agency has not ac… | ||||
| 7:7:7.1.1.4.17.10.9.3 | 7 | Agriculture | VII | D | 766 | PART 766—DIRECT LOAN SERVICING—SPECIAL | J | Subpart J—DBSA | § 766.453 DBSA amount limitations. | FSA | (a) The DBSA amount is limited to the lesser of: (1) The amount of the delinquent installment or upcoming scheduled installment; or (2) The amount the borrower is unable to pay the Agency. Borrowers are required to pay any portion of an installment they are able to pay. (b) The amount set aside will be the unpaid balance remaining on the installment at the time DBSA is complete. The amount will include the unpaid interest and any principal that would be credited to the account as if the installment were paid on the due date, taking into consideration any payments applied to principal and interest since the due date. (c) Recoverable cost items may not be set aside. | ||||
| 7:7:7.1.1.4.17.10.9.4 | 7 | Agriculture | VII | D | 766 | PART 766—DIRECT LOAN SERVICING—SPECIAL | J | Subpart J—DBSA | § 766.454 Borrower application requirements. | FSA | (a) Requests for DBSA. To request DBSA: (1) A borrower must submit a request for DBSA to the Agency in writing. (2) All borrowers liable for the loan must sign the DBSA request. (b) Required financial information. When requesting DBSA: (1) The borrower must submit actual production, income, and expense records for the current and upcoming production cycle unless the Agency already has that information for the borrower. (2) The borrower must provide any additional information requested by the Agency. | ||||
| 7:7:7.1.1.4.17.10.9.5 | 7 | Agriculture | VII | D | 766 | PART 766—DIRECT LOAN SERVICING—SPECIAL | J | Subpart J—DBSA | § 766.455 Borrower acceptance of DBSA. | FSA | Subject to the 165-calendar day limitation in § 766.452(a)(8), the borrower must execute the appropriate Agency documents within 45 days after the borrower receives notification of Agency approval of DBSA, which will be within 30 days of having submitted a complete application. | ||||
| 7:7:7.1.1.4.17.10.9.6 | 7 | Agriculture | VII | D | 766 | PART 766—DIRECT LOAN SERVICING—SPECIAL | J | Subpart J—DBSA | § 766.456 Payments toward DBSA installments. | FSA | (a) Interest accrual. Interest will accrue on any principal portion of the DBSA installment at the rate of one eighth of a percent. (b) Due date. The DBSA amount, including interest accrued on the principal portion of the set-aside, is due on or before the final due date of the loan. (c) Applying payments. The Agency will apply borrower payments toward DBSA installments first to interest and then to principal. | ||||
| 7:7:7.1.1.4.17.10.9.7 | 7 | Agriculture | VII | D | 766 | PART 766—DIRECT LOAN SERVICING—SPECIAL | J | Subpart J—DBSA | § 766.457 Canceling a DBSA agreement. | FSA | (a) The Agency will cancel a DBSA agreement if the Agency takes any PLS action on the loan. (b) The Agency will cancel a DBSA agreement if the borrower pays the: (1) Current market value buyout in accordance with § 766.113; or (2) The set-aside installment. | ||||
| 7:7:7.1.1.4.17.10.9.8 | 7 | Agriculture | VII | D | 766 | PART 766—DIRECT LOAN SERVICING—SPECIAL | J | Subpart J—DBSA | § 766.458 Reversal of DBSA. | FSA | If the Agency determines that the borrower received an unauthorized DBSA, the Agency will reverse the DBSA agreement after all appeals are concluded. | ||||
| 7:7:7.1.1.4.17.2.9.1 | 7 | Agriculture | VII | D | 766 | PART 766—DIRECT LOAN SERVICING—SPECIAL | B | Subpart B—Disaster Set-Aside | § 766.51 General. | FSA | (a) DSA is available to borrowers with program loans who suffered losses as a result of a natural disaster. (b) DSA is not intended to circumvent other servicing available under this part. (c) Non-program loans may be serviced under this subpart for borrowers who also have program loans. | ||||
| 7:7:7.1.1.4.17.2.9.10 | 7 | Agriculture | VII | D | 766 | PART 766—DIRECT LOAN SERVICING—SPECIAL | B | Subpart B—Disaster Set-Aside | § 766.61 Reversal of a Disaster Set-Aside. | FSA | If the Agency determines that the borrower received an unauthorized DSA, the Agency will reverse the DSA after all appeals are concluded. | ||||
| 7:7:7.1.1.4.17.2.9.11 | 7 | Agriculture | VII | D | 766 | PART 766—DIRECT LOAN SERVICING—SPECIAL | B | Subpart B—Disaster Set-Aside | §§ 766.62-766.100 [Reserved] | FSA | |||||
| 7:7:7.1.1.4.17.2.9.2 | 7 | Agriculture | VII | D | 766 | PART 766—DIRECT LOAN SERVICING—SPECIAL | B | Subpart B—Disaster Set-Aside | § 766.52 Eligibility. | FSA | [72 FR 63316, Nov. 8, 2007, as amended at 89 FR 65043, Aug. 8, 2024] | (a) Borrower eligibility. The borrower must meet all of the following requirements to be eligible for a DSA: (1) The borrower must have operated the farm in a county designated or declared a disaster area or a contiguous county at the time of the disaster. Farmers who have rented out their land base for cash are not operating the farm. (2) The borrower must have acted in good faith, and the borrower's inability to make the upcoming scheduled loan payments must be for reasons not within the borrower's control. (3) The borrower cannot have more than one installment set aside on each loan. (4) As a direct result of the natural disaster, the borrower does not have sufficient income available to pay all family living and farm operating expenses, other creditors, and debts to the Agency. This determination will be based on: (i) The borrower's actual production, income and expense records for the year the natural disaster occurred; (ii) Any other records required by the Agency; (iii) Compensation received for losses; and (iv) Increased expenses incurred because of the natural disaster. (5) For the next production cycle, the borrower must develop a feasible plan showing that the borrower will at least be able to pay all operating expenses and taxes due during the year, essential family living expenses, and meet scheduled payments on all debts, including FLP debts. The borrower must provide any documentation required to support the farm operating plan. (6) The borrower must not be in non-monetary default. (7) The borrower must not be ineligible due to disqualification resulting from Federal crop insurance violation according to 7 CFR part 718. (8) The borrower must not become 165 days past due before the appropriate Agency DSA documents are executed. (b) Loan eligibility. (1) Any FLP loan to be considered for DSA must have been outstanding at the time the natural disaster occurred. (2) All of the borrower's program and non-program loans must be current after the Agency completes a DSA of the scheduled in… | |||
| 7:7:7.1.1.4.17.2.9.3 | 7 | Agriculture | VII | D | 766 | PART 766—DIRECT LOAN SERVICING—SPECIAL | B | Subpart B—Disaster Set-Aside | § 766.53 Disaster Set-Aside amount limitations. | FSA | (a) The DSA amount is limited to the lesser of: (1) The first or second scheduled annual installment on the FLP loans due after the disaster occurred; or (2) The amount the borrower is unable to pay the Agency due to the disaster. Borrowers are required to pay any portion of an installment they are able to pay. (b) The amount set aside will be the unpaid balance remaining on the installment at the time the DSA is complete. This amount will include the unpaid interest and any principal that would be credited to the account as if the installment were paid on the due date, taking into consideration any payments applied to principal and interest since the due date. (c) Recoverable cost items may not be set aside. | ||||
| 7:7:7.1.1.4.17.2.9.4 | 7 | Agriculture | VII | D | 766 | PART 766—DIRECT LOAN SERVICING—SPECIAL | B | Subpart B—Disaster Set-Aside | § 766.54 Borrower application requirements. | FSA | [72 FR 63316, Nov. 8, 2007, as amended at 89 FR 65043, Aug. 8, 2024] | (a) Requests for DSA. (1) A borrower must submit a request for DSA in writing within eight months from the date the natural disaster was designated. (2) All borrowers must sign the DSA request. (b) Required financial information. (1) The borrower must submit actual production, income, and expense records for the production cycle in which the disaster occurred unless the Agency already has this information. (2) The borrower must provide any additional information requested by the Agency. | |||
| 7:7:7.1.1.4.17.2.9.5 | 7 | Agriculture | VII | D | 766 | PART 766—DIRECT LOAN SERVICING—SPECIAL | B | Subpart B—Disaster Set-Aside | § 766.55 Eligibility determination. | FSA | Within 30 days of a complete DSA application, the Agency will determine if the borrower meets the eligibility requirements for DSA. | ||||
| 7:7:7.1.1.4.17.2.9.6 | 7 | Agriculture | VII | D | 766 | PART 766—DIRECT LOAN SERVICING—SPECIAL | B | Subpart B—Disaster Set-Aside | § 766.57 Borrower acceptance of Disaster Set-Aside. | FSA | The borrower must execute the appropriate Agency documents within 45 days after the borrower receives notification of Agency approval of DSA. | ||||
| 7:7:7.1.1.4.17.2.9.7 | 7 | Agriculture | VII | D | 766 | PART 766—DIRECT LOAN SERVICING—SPECIAL | B | Subpart B—Disaster Set-Aside | § 766.58 Installment to be set aside. | FSA | (a) The Agency will set-aside the first installment due immediately after the disaster occurred. (b) If the borrower has already paid the installment due immediately after the disaster occurred, the Agency will set-aside the next annual installment. | ||||
| 7:7:7.1.1.4.17.2.9.8 | 7 | Agriculture | VII | D | 766 | PART 766—DIRECT LOAN SERVICING—SPECIAL | B | Subpart B—Disaster Set-Aside | § 766.59 Payments toward set-aside installments. | FSA | (a) Interest accrual. (1) Interest will accrue on any principal portion of the set-aside installment at the same rate charged on the balance of the loan. (2) If the borrower's set-aside installment is for a loan with a limited resource rate and the Agency modifies that limited resource rate, the interest rate on the set-aside portion will be modified concurrently. (b) Due date. The amount set-aside, including interest accrued on the principal portion of the set-aside, is due on or before the final due date of the loan. (c) Applying payments. The Agency will apply borrower payments toward set-aside installments first to interest and then to principal. | ||||
| 7:7:7.1.1.4.17.2.9.9 | 7 | Agriculture | VII | D | 766 | PART 766—DIRECT LOAN SERVICING—SPECIAL | B | Subpart B—Disaster Set-Aside | § 766.60 Canceling a Disaster Set-Aside. | FSA | The Agency will cancel a DSA if: (a) The Agency takes any primary loan servicing action on the loan; (b) The borrower pays the current market value buyout in accordance with § 766.113; or (c) The borrower pays the set-aside installment. | ||||
| 7:7:7.1.1.4.17.3.9.1 | 7 | Agriculture | VII | D | 766 | PART 766—DIRECT LOAN SERVICING—SPECIAL | C | Subpart C—Loan Servicing Programs | § 766.101 Initial Agency notification to borrower of loan servicing programs. | FSA | [72 FR 63316, Nov. 8, 2007, as amended at 85 FR 36693, June 17, 2020; 89 FR 65048, Aug. 8, 2024] | (a) Borrowers notified. The Agency will provide servicing information under this section to borrowers who: (1) Have a current farm operating plan that demonstrates the borrower is financially distressed; (2) Are 90 days or more past due on loan payments, even if the borrower has submitted an application for loan servicing as a financially distressed borrower; (3) Are in non-monetary default on any loan agreements; (4) Have filed bankruptcy; (5) Request this information; (6) Request voluntary conveyance of security; (7) Have only delinquent SA; or (8) Are subject to any other collection action, except when such action is a result of failure to graduate. Borrowers who fail to graduate when required and are able to do so, will be accelerated without providing notification of loan servicing options. (b) Form of notification. The Agency will notify borrowers of the availability of primary loan servicing programs, conservation contract, current market value buyout, debt settlement programs, and homestead protection as follows: (1) A borrower who is financially distressed, or current and requesting servicing will be provided FSA-2512; (2) A borrower who is 90 days past due will be sent FSA-2510 (Appendix A to this subpart) or FSA-2510-IA (Appendix B to this subpart); (3) A borrower who is in non-monetary or both monetary and non-monetary default will receive FSA-2514; (4) A borrower who has only delinquent SA will be notified of available loan servicing; (5) Notification to a borrower who files bankruptcy will be provided in accordance with subpart G of this part. (c) Mailing. Notices to delinquent borrowers or borrowers in non-monetary default will be sent by certified mail to the last known address of the borrower. If the certified mail is not accepted, the notice will be sent immediately by first class mail to the last known address. The appropriate response time will begin three days following the date of the first class mailing. For all other borrowers requesting the notices, the notices will b… | |||
| 7:7:7.1.1.4.17.3.9.10 | 7 | Agriculture | VII | D | 766 | PART 766—DIRECT LOAN SERVICING—SPECIAL | C | Subpart C—Loan Servicing Programs | § 766.110 Conservation Contract. | FSA | [72 FR 63316, Nov. 8, 2007, as amended at 78 FR 65532, Nov. 1, 2013] | (a) General. (1) A debtor with only SA or Non-program loans is not eligible for a Conservation Contract. However, an SA or Non-program loan may be considered for a Conservation Contract if the borrower also has program loans. (2) A current or financially distressed borrower may request a Conservation Contract at any time prior to becoming 90 days past due. (3) A delinquent borrower may request a Conservation Contract during the same 60-day time period in which the borrower may apply for primary loan servicing. The borrower eligibility requirements in § 766.104 will apply. (4) A Conservation Contract may be established for conservation, recreation, and wildlife purposes. (5) The land under a Conservation Contract cannot be used for the production of agricultural commodities during the term of the contract. (6) Only loans secured by the real estate that will be subject to the Conservation Contract may be considered for debt reduction under this section. (b) Eligible lands. The following types of lands are eligible to be considered for a Conservation Contract by the Conservation Contract review team: (1) Wetlands or highly erodible lands; and (2) Uplands that meet any one of the following criteria: (i) Land containing aquatic life, endangered species, or wildlife habitat of local, State, tribal, or national importance; (ii) Land in 100-year floodplains; (iii) Areas of high water quality or scenic value; (iv) Historic or cultural properties listed in or eligible for the National Register of Historic Places; (v) Aquifer recharge areas of local, regional, State, or tribal importance; (vi) Buffer areas necessary for the adequate protection of proposed Conservation Contract areas, or other areas enrolled in other conservation programs; (vii) Areas that contain soils generally not suited for cultivation; or (viii) Areas within or adjacent to Federal, State, tribal, or locally administered conservation areas. (c) Unsuitable acreage. Notwithstanding paragraph (b) of this section, acreage is unsuitable… | |||
| 7:7:7.1.1.4.17.3.9.11 | 7 | Agriculture | VII | D | 766 | PART 766—DIRECT LOAN SERVICING—SPECIAL | C | Subpart C—Loan Servicing Programs | § 766.111 Write-down. | FSA | [72 FR 63316, Nov. 8, 2007, as amended at 86 FR 43392, Aug. 9, 2021; 89 FR 65044, Aug. 8, 2024] | (a) Borrower eligibility. The Agency will only consider a write-down if the borrower: (1) Meets the eligibility criteria in § 766.104; (2) Is delinquent; (3) Has not previously received debt forgiveness on any FLP direct loan; and (4) Complies with the Highly Erodible Land and Wetland Conservation requirements of 7 CFR part 12. (b) Conditions. The conditions required for approval of write-down are: (1) Rescheduling, consolidation, reamortization, deferral or some ombination of these options on all of the borrower's loans would not result in a feasible plan with a 110 percent debt service margin. If a feasible plan is achieved with a debt service margin of 101 percent or more, the Agency will permit a borrower to accept a non-write-down servicing offer and waive the right to a write-down offer when the write-down offer will require additional time and appraisals to fully develop. If after obtaining an appraisal a feasible plan is achieved with and without a write-down and the borrower meets all the eligibility requirements, both options will be offered, and the borrower may choose one option. (2) The present value of the restructured loan must be greater than or equal to the net recovery value of Agency security and any non-essential assets. (3) The write-down amount, excluding debt reduction received through Conservation Contract, does not exceed $300,000. (4) A borrower who owns real estate must execute an SAA in accordance with § 766.201. (c) Associated loan servicing. Loans written down will also be serviced in accordance with §§ 766.107 and 766.108, as appropriate. | |||
| 7:7:7.1.1.4.17.3.9.12 | 7 | Agriculture | VII | D | 766 | PART 766—DIRECT LOAN SERVICING—SPECIAL | C | Subpart C—Loan Servicing Programs | § 766.112 Additional security for restructured loans. | FSA | [89 FR 65044, Aug. 8, 2024] | (a) If the borrower is delinquent prior to restructuring, an additional amount of security will be required, if available, to reach a 125 percent security margin when the Agency is servicing a loan, except as provided in paragraph (b) of this section. Total loan security in excess of what is needed to achieve a security margin of 125 percent will only be taken when it is not practicable to separate the security. (b) The Agency will take the best lien obtainable on assets of the borrower and co-borrowers to meet the 125 percent security margin requirement, except that the following assets will not be considered available to meet this requirement: (1) When taking a lien on an asset will prevent the borrower from obtaining credit from other sources; (2) When an asset could have significant environmental problems or costs as described in part 799 of this chapter; (3) When the Agency cannot obtain a valid lien; (4) When an asset is subsistence livestock, cash, special collateral accounts the borrower uses for the farming operation, retirement accounts, education savings accounts, personal vehicles necessary for family living, household contents, or small equipment such as hand tools and lawn mowers; or (5) When a contractor holds title to a livestock or crop enterprise, or the borrower manages the enterprise under a share lease or share agreement. | |||
| 7:7:7.1.1.4.17.3.9.13 | 7 | Agriculture | VII | D | 766 | PART 766—DIRECT LOAN SERVICING—SPECIAL | C | Subpart C—Loan Servicing Programs | § 766.113 Buyout of loan at current market value. | FSA | (a) Borrower eligibility. A delinquent borrower may buy out the borrower's FLP loans at the current market value of the loan security, including security not in the borrower's possession, and all non-essential assets if: (1) The borrower has not previously received debt forgiveness on any other FLP direct loan; (2) The borrower has acted in good faith; (3) The borrower does not have non-essential assets for which the net recovery value is sufficient to pay the account current; (4) The borrower is unable to develop a feasible plan through primary loan servicing programs or a Conservation Contract, if requested; (5) The present value of the restructured loans is less than the net recovery value of Agency security; (6) The borrower pays the amount required in a lump sum without guaranteed or direct credit from the Agency; and (7) The amount of debt forgiveness does not exceed $300,000. (b) Buyout time frame. After the Agency offers current market value buyout of the loan, the borrower has 90 days from the date of Agency notification to pay that amount. | ||||
| 7:7:7.1.1.4.17.3.9.14 | 7 | Agriculture | VII | D | 766 | PART 766—DIRECT LOAN SERVICING—SPECIAL | C | Subpart C—Loan Servicing Programs | § 766.114 State-certified mediation or voluntary meeting of creditors. | FSA | (a) A borrower who is unable to develop a feasible plan but is otherwise eligible for primary loan servicing may request: (1) State-certified mediation; or (2) Voluntary meeting of creditors when a State does not have a certified mediation program. (b) Any negotiation of the Agency's appraisal must be completed before State-certified mediation or voluntary meeting of creditors. | ||||
| 7:7:7.1.1.4.17.3.9.15 | 7 | Agriculture | VII | D | 766 | PART 766—DIRECT LOAN SERVICING—SPECIAL | C | Subpart C—Loan Servicing Programs | § 766.115 Challenging the Agency appraisal. | FSA | [72 FR 63316, Nov. 8, 2007, as amended at 78 FR 65532, Nov. 1, 2013; 89 FR 65044, Aug. 8, 2024] | (a) A borrower considered for primary loan servicing who does not agree with the Agency's appraisal of the borrower's assets may: (1) Obtain a USPAP compliant technical appraisal review prepared by a State Certified General Appraiser of the Agency's appraisal and provide it to the Agency within 90 days of the request for reconsideration or appeal and prior to reconsideration or the appeal hearing; (2) Obtain an independent appraisal within 90 days of the request for reconsideration or appeal request and completed in accordance with § 761.7 as part of the request or reconsideration or appeals process. The borrower must: (i) Pay for this appraisal; (ii) Choose which appraisal will be used in Agency calculations, if the difference between the two appraisals is five percent or less. (3) Use the second appraisal completed under paragraph (a)(2) of this section to negotiate the Agency's appraisal. (i) If the difference between the two appraisals is five percent or less, the borrower will choose the appraisal to be used in Agency calculations. (ii) If the difference between the two appraisals is greater than five percent, the borrower may request a third appraisal within 30 days from the date the second appraisal is provided to the Agency. The Agency and the borrower will share the cost of the third appraisal equally. The average of the two appraisals closest in value will serve as the final value. (iii) A borrower may request a negotiated appraisal only once in connection with an application for primary loan servicing. (iv) The borrower may not appeal a negotiated appraisal. (b) If the appraised value of the borrower's assets change as a result of the challenge, the Agency will reconsider its previous primary loan servicing decision using the new appraisal value. (c) If the appeal process results in a determination that the borrower is eligible for primary loan servicing, the Agency will use the information utilized to make the appeal decision, unless stated otherwise in the appeal decision letter. | |||
| 7:7:7.1.1.4.17.3.9.16 | 7 | Agriculture | VII | D | 766 | PART 766—DIRECT LOAN SERVICING—SPECIAL | C | Subpart C—Loan Servicing Programs | §§ 766.116-766.119 [Reserved] | FSA | |||||
| 7:7:7.1.1.4.17.3.9.17 | 7 | Agriculture | VII | D | 766 | PART 766—DIRECT LOAN SERVICING—SPECIAL | C | Subpart C—Loan Servicing Programs | § 766.120 Extending maturity date and installment schedule for direct loans with a balloon payment. | FSA | [89 FR 65045, Aug. 8, 2024] | (a) At a borrower's written request, the maturity date and installment schedule of a direct term loan with a balloon payment may be extended for up to an additional 8 years from the original maturity date using an addendum to the promissory note when the: (1) Loan was originally amortized for no more than 15 years with a balloon payment scheduled in the final year of the loan; (2) Loan has not received PLS, DBSA, or DSA; (3) Borrower has made all scheduled loan installments in the last 36 months; (4) Balloon payment is due in less than 12 months; (5) Borrower does not have an outstanding DBSA or DSA on any loan; (6) Borrower has not received PLS on any loan in the last 36 months; (7) Borrower has only had equal installments scheduled on any direct term loan in the last 36 months; (8) Borrower's direct loans are fully secured with each loan having a security value of at least 100 percent of the remaining balance of the loan; (9) Borrower is unable to partially or fully graduate; (10) Borrower has acted in good faith; (11) Borrower is not otherwise financially distressed or delinquent; (12) Borrower must pay a portion of the interest due on the loan; and (13) Addendum is signed by the borrower before the original maturity date. (b) In no event may the loan exceed applicable term limits described in this part. | |||
| 7:7:7.1.1.4.17.3.9.18 | 7 | Agriculture | VII | D | 766 | PART 766—DIRECT LOAN SERVICING—SPECIAL | C | Subpart C—Loan Servicing Programs | §§ 766.121-766.150 [Reserved] | FSA | |||||
| 7:7:7.1.1.4.17.3.9.2 | 7 | Agriculture | VII | D | 766 | PART 766—DIRECT LOAN SERVICING—SPECIAL | C | Subpart C—Loan Servicing Programs | § 766.102 Borrower application requirements. | FSA | [72 FR 63316, Nov. 8, 2007, as amended at 85 FR 36693, June 17, 2020; 89 FR 65044, Aug. 8, 2024] | (a) Except as provided in paragraph (e) of this section, an application for primary loan servicing, conservation contract, current market value buyout, homestead protection, or some combination of these options, must include the following to be considered complete: (1) Completed Agency application form; (2) Financial records for the 3 most recent years, including income tax returns; (3) The farming operation's production records for the 3 most recent years or the years the borrower has been farming, whichever is less; (4) Documentation of compliance with the Agency's environmental regulations contained in part 799 of this chapter; (5) Verification of all non-farm income; (6) A current financial statement and the operation's farm operating plan, including the projected cash flow budget reflecting production, income, expenses, and debt repayment plan. In the case of an entity, the entity and all entity members must provide current financial statements; (7) Verification of all debts and collateral and (8) Upon Agency request, any leases, contracts, options, and other agreements related to the operation. (b) In addition to the requirements contained in paragraph (a) of this section, the borrower must submit an aerial photo delineating any land to be considered for a conservation contract. (c) To be considered for debt settlement, the borrower must provide the appropriate Agency form, and any additional information required under part 761, subpart F of this chapter. (d) If a borrower who submitted a complete application while current or financially distressed is renotified as a result of becoming 90 days past due, the borrower must only submit a request for servicing in accordance with paragraph (a)(1) of this section, provided all other information is less than 90 days old and is based on the current production cycle. Any information 90 or more days old or not based on the current production cycle must be updated. (e) The borrower need not submit any information under this section that already exists in t… | |||
| 7:7:7.1.1.4.17.3.9.3 | 7 | Agriculture | VII | D | 766 | PART 766—DIRECT LOAN SERVICING—SPECIAL | C | Subpart C—Loan Servicing Programs | § 766.103 Borrower does not respond or does not submit a complete application. | FSA | [72 FR 63316, Nov. 8, 2007, as amended at 85 FR 36693, June 17, 2020] | (a) If a borrower, who is financially distressed or current, requested loan servicing and received FSA-2512, but fails to respond timely and subsequently becomes 90 days past due, the Agency will notify the borrower in accordance with § 766.101(a)(2). (b) If a borrower who is 90 days past due and received FSA-2510 or FSA-2510-IA, or is in non-monetary, or both monetary and non-monetary default and received FSA-2514, and fails to timely respond or does not submit a complete application within the 60-day timeframe, the Agency will notify the borrower by certified mail of the following: (1) The Agency's intent to accelerate the loan; and (2) The borrower's right to request reconsideration, mediation and appeal in accordance with 7 CFR parts 11 and 780. | |||
| 7:7:7.1.1.4.17.3.9.4 | 7 | Agriculture | VII | D | 766 | PART 766—DIRECT LOAN SERVICING—SPECIAL | C | Subpart C—Loan Servicing Programs | § 766.104 Borrower eligibility requirements. | FSA | [72 FR 63316, Nov. 8, 2007, as amended at 89 FR 65044, Aug. 8, 2024] | (a) A borrower must meet the following eligibility requirements to be considered for primary loan servicing: (1) The delinquency or financial distress is the result of reduced repayment ability due to one of the following circumstances beyond the borrower's control: (i) Illness, injury, or death of a borrower or other individual who operates the farm; (ii) Natural disaster, adverse weather, disease, or insect damage which caused severe loss of agricultural production; (iii) Widespread economic conditions such as low commodity prices; (iv) Damage or destruction of property essential to the farming operation; (v) Loss of, or reduction in, the borrower or spouse's essential non-farm income; or (vi) Catastrophic medical expenses for the care of a family member of the borrower or entity member, in the case of an entity borrower. (2) The borrower does not have non-essential assets for which the net recovery value is sufficient to resolve the financial distress or pay the delinquent portion of the loan. (3) If the borrower is in non-monetary default, the borrower will resolve the non-monetary default prior to closing the servicing action. (4) The borrower has acted in good faith. (5) Financially distressed or current borrowers requesting servicing must pay a portion of the interest due on the loans. (6) The borrower must not be ineligible due to disqualification resulting from Federal crop insurance violation according to 7 CFR part 718. (b) Debtors with SA only must: (1) Be delinquent due to circumstances beyond their control; (2) Have acted in good faith. | |||
| 7:7:7.1.1.4.17.3.9.5 | 7 | Agriculture | VII | D | 766 | PART 766—DIRECT LOAN SERVICING—SPECIAL | C | Subpart C—Loan Servicing Programs | § 766.105 Agency consideration of servicing requests. | FSA | [72 FR 63316, Nov. 8, 2007, as amended at 89 FR 65044, Aug. 8, 2024] | (a) Order in which Agency considers servicing options. The Agency will consider loan servicing options and combinations of options to maximize loan repayment and minimize losses to the Agency. The Agency will consider loan servicing options in the following order for each eligible borrower who requests servicing: (1) Conservation Contract, if requested; (2) Consolidation and rescheduling or reamortization; (3) Deferral; (4) Write-down; and (5) Current market value buyout. (b) Debt service margin. (1) The Agency will attempt to achieve a 110 percent debt service margin for the servicing options listed in paragraphs (a)(2) through (4) of this section. (2) If the borrower cannot develop a feasible plan with the 110 percent debt service margin, the Agency will reduce the debt service margin by one percent and reconsider all available servicing authorities. This process will be repeated until a feasible plan has been developed or it has been determined that a feasible plan is not possible with a 100 percent margin. (3) The borrower must be able to develop a feasible plan with at least a 100 percent debt service margin to be considered for the servicing options listed in paragraphs (a)(1) through (4) of this section. (c) Appraisal of borrower's assets. The Agency will obtain an appraisal on: (1) All Agency security, non-essential assets, and real property unencumbered by the Agency that does not meet the criteria established in § 766.112(b), when: (i) A write-down is required to develop a feasible plan; (ii) The borrower will be offered current market value buyout. (2) The borrower's non-essential assets when their net recovery value may be adequate to bring the delinquent loans current. | |||
| 7:7:7.1.1.4.17.3.9.6 | 7 | Agriculture | VII | D | 766 | PART 766—DIRECT LOAN SERVICING—SPECIAL | C | Subpart C—Loan Servicing Programs | § 766.106 Agency notification of decision regarding a complete application. | FSA | [72 FR 63316, Nov. 8, 2007, as amended at 86 FR 43392, Aug. 9, 2021] | The Agency will send the borrower notification of the Agency's decision within 60 calendar days after receiving a complete application for loan servicing. Except that when a real estate appraisal is involved, the Agency will send the borrower notification of the Agency's decision within 90 calendar days after receiving a complete application. (a) Notification to financially distressed or current borrowers. (1) If the borrower can develop a feasible plan and is eligible for primary loan servicing, the Agency will offer to service the account. (i) The borrower will have 45 days to accept the offer of servicing. After accepting the Agency's offer, the borrower must execute loan agreements and security instruments, as appropriate. (ii) If the borrower does not accept the offer, the Agency will send the borrower another notification of the availability of loan servicing if the borrower becomes 90 days past due in accordance with § 766.101(a)(2). (2) If the borrower cannot develop a feasible plan, or is not eligible for loan servicing, the Agency will send the borrower the calculations used and the reasons for the adverse decision. (i) The borrower may request reconsideration, mediation and appeal in accordance with 7 CFR parts 11 and 780 of this title. (ii) The Agency will send the borrower another notification of the availability of loan servicing if the borrower becomes 90 days past due in accordance with § 766.101(a)(2). (b) Notification to borrowers 90 days past due or in non-monetary default. (1) If the borrower can develop a feasible plan and is eligible for primary loan servicing, the Agency will offer to service the account. (i) The borrower will have 45 days to accept the offer of servicing. After accepting the Agency's offer, the borrower must execute loan agreements and security instruments, as appropriate. (ii) If the borrower does not timely accept the offer, or fails to respond, the Agency will notify the borrower of its intent to accelerate the account. (2) If the borrower cannot develop a… | |||
| 7:7:7.1.1.4.17.3.9.7 | 7 | Agriculture | VII | D | 766 | PART 766—DIRECT LOAN SERVICING—SPECIAL | C | Subpart C—Loan Servicing Programs | § 766.107 Consolidation and rescheduling. | FSA | [72 FR 63316, Nov. 8, 2007, as amended at 75 FR 54016, Sept. 3, 2010; 87 FR 13124, Mar. 9, 2022; 89 FR 65044, Aug. 8, 2024] | (a) Loans eligible for consolidation. The Agency may consolidate OL loans if: (1) The borrower meets the loan servicing eligibility requirements in § 766.104; (2) The Agency determines that consolidation will assist the borrower to repay the loans; (3) Consolidating the loans will bring the borrower's account current or prevent the borrower from becoming delinquent; (4) The Agency has not referred the borrower's account to OGC or the U.S. Attorney, and the Agency does not plan to refer the account to either of these two offices in the near future; (5) The borrower is in compliance with the Highly Erodible Land and Wetland Conservation requirements of 7 CFR part 12, if applicable; (6) The loans are not secured by real estate; (7) The Agency holds the same lien position on each loan; (8) The Agency has not serviced the loans for unauthorized assistance under subpart F of this part; and (9) The loan is not currently deferred, as described in § 766.109, or set-aside, as described in subpart B or J of this part. The Agency may consolidate loans upon cancellation of the deferral, DBSA, or DSA. (b) Loans eligible for rescheduling. The Agency may reschedule loans made for chattel purposes, including OL, CL, SW, RL, EE, or EM if: (1) The borrower meets the loan servicing eligibility requirements in § 766.104; (2) Rescheduling the loans will bring the borrower's account current or prevent the borrower from becoming delinquent; (3) The Agency determines that rescheduling will assist the borrower to repay the loans; (4) The Agency has not referred the borrower's account to OGC or the U.S. Attorney, and the Agency does not plan to refer the account to either of these two offices in the near future; (5) The borrower is in compliance with the Highly Erodible Land and Wetland Conservation requirements of 7 CFR part 12, if applicable; and (6) The loan is not currently deferred, as described in § 766.109, or set-aside, as described in subpart B or J of this part. The Agency may reschedule loans upon cancellatio… | |||
| 7:7:7.1.1.4.17.3.9.8 | 7 | Agriculture | VII | D | 766 | PART 766—DIRECT LOAN SERVICING—SPECIAL | C | Subpart C—Loan Servicing Programs | § 766.108 Reamortization. | FSA | [72 FR 63316, Nov. 8, 2007, as amended at 75 FR 54016, Sept. 3, 2010; 87 FR 13124, Mar. 9, 2022] | (a) Loans eligible for reamortization. The Agency may reamortize loans made for real estate purposes, including FO, SW, RL, SA, EE, RHF, CL, and EM if: (1) The borrower meets the loan servicing eligibility requirements in § 766.104; (2) Reamortization will bring the borrower's account current or prevent the borrower from becoming delinquent; (3) The Agency determines that reamortization will assist the borrower to repay the loan; (4) The Agency has not referred the borrower's account to OGC or the U.S. Attorney, and the Agency does not plan to refer the account to either of these two offices in the near future; (5) The borrower is in compliance with the Highly Erodible Land and Wetland Conservation requirements of 7 CFR part 12, if applicable; and (6) The loan is not currently deferred, as described in § 766.109, or set-aside, as described in subpart B of this part. The Agency may reamortize loans upon cancellation of the deferral or DSA. (b) Reamortized loan terms. (1) Except as provided in paragraph (b)(2), the Agency will reamortize loans within the remaining term of the original loan or assumption agreement unless a feasible plan cannot be developed or debt forgiveness will be required to develop a feasible plan. (2) If the Agency extends the loan term, the repayment period from the original loan date may not exceed the maximum number of years for the type of loan being reamortized in paragraphs (2)(i) through (iv), or the useful life of the security, whichever is less. (i) FO, SW, RL, EE real estate-type, and EM loans made for real estate purposes may not exceed 40 years from the date of the original note or assumption agreement. (ii) EE real estate-type loans secured by chattels only may not exceed 20 years from the date of the original note or assumption agreement. (iii) RHF loans may not exceed 33 years from the date of the original note or assumption agreement. (iv) SA loans may not exceed 25 years from the date of the original Shared Appreciation note. (v) CLs may not exceed 20 years fr… | |||
| 7:7:7.1.1.4.17.3.9.9 | 7 | Agriculture | VII | D | 766 | PART 766—DIRECT LOAN SERVICING—SPECIAL | C | Subpart C—Loan Servicing Programs | § 766.109 Deferral. | FSA | (a) Conditions for approving deferrals. The Agency will only consider deferral of loan payments if: (1) The borrower meets the loan servicing eligibility requirements in § 766.104; (2) Rescheduling, consolidation, and reamortization of all the borrower's loans, will not result in a feasible plan with 110 percent debt service margin; (3) The need for deferral is temporary; and (4) The borrower develops feasible first-year deferral and post-deferral farm operating plans subject to the following: (i) The deferral will not create excessive net cash reserves beyond that necessary to develop a feasible plan. (ii) The Agency will consider a partial deferral if deferral of the total Agency payment would result in the borrower developing more cash availability than necessary to meet debt repayment obligations. (b) Deferral period. (1) The deferral term will not exceed 5 years and will be determined based on the post-deferral plan that results in the: (i) Greatest improvement over the first year cash available to service FLP debt; (ii) The shortest possible deferral period. (2) The Agency will distribute interest accrued on the deferred principal portion of the loan equally to payments over the remaining loan term after the deferral period ends. (c) Agency actions when borrower's repayment ability improves. (1) If during the deferral period the borrower's repayment ability has increased to allow the borrower to make payments on the deferred loans, the borrower must make supplemental payments, as determined by the Agency. If the borrower agrees to make supplemental payments, but does not do so, the borrower will be considered to be in non-monetary default. (2) If the Agency determines that the borrower's improved repayment ability will allow graduation, the Agency will require the borrower to graduate in accordance with part 765, subpart C of this chapter. (d) Associated loan servicing. (1) The Agency must cancel an existing deferral if the Agency approves any new primary loan servicing action. (2) Loa… | ||||
| 7:7:7.1.1.4.17.4.9.1 | 7 | Agriculture | VII | D | 766 | PART 766—DIRECT LOAN SERVICING—SPECIAL | D | Subpart D—Homestead Protection Program | § 766.151 Applying for Homestead Protection. | FSA | (a) Pre-acquisition —(1) Notification. If the borrower requested primary loan servicing but cannot develop a feasible plan, the Agency will notify the borrower of any additional information needed to process the homestead protection request. The borrower must provide this information within 30 days of Agency notification. (2) Borrower does not respond. If the borrower does not timely provide the information requested, the Agency will deny the homestead protection request and provide appeal rights. (3) Application requirements. A complete application for homestead protection will include: (i) Updates to items required under § 766.102; (ii) Information required under § 766.353; and (iii) Identification of land and buildings to be considered. (b) Post-acquisition —(1) Notification. After the Agency acquires title to the real estate property, the Agency will notify the borrower of the availability of homestead protection. The borrower must submit a complete application within 30 days of Agency notification. (2) Borrower does not respond. If the borrower does not respond to the Agency notice, the Agency will dispose of the property in accordance with 7 CFR part 767. (3) Application requirements. A complete application for homestead protection will include: (i) Updates to items required under § 766.102; and (ii) Identification of land and buildings to be considered. | ||||
| 7:7:7.1.1.4.17.4.9.2 | 7 | Agriculture | VII | D | 766 | PART 766—DIRECT LOAN SERVICING—SPECIAL | D | Subpart D—Homestead Protection Program | § 766.152 Eligibility. | FSA | (a) Property. (1) The principal residence and the adjoining land of up to 10 acres, must have served as real estate security for the FLP loan and may include existing farm service buildings. Homestead protection does not apply if the FLP loans were secured only by chattels. (2) The applicant may propose a homestead protection site. Any proposed site is subject to Agency approval. (3) The proposed homestead protection site must meet all State and local requirements for division into a separate legal lot. (4) Where voluntary conveyance of the property to the Agency is required to process the homestead protection request, the Agency will process any request for voluntary conveyance according to § 766.353. (b) Applicant. To be eligible for homestead protection, the applicant: (1) Must be the owner, or former owner from whom the Agency acquired title of the property pledged as security for an FLP loan. For homestead protection purposes, an owner or former owner includes: (i) A member of an entity who is or was personally liable for the FLP loan secured by the homestead protection property when the applicant or entity held fee title to the property; or (ii) A member of an entity who is or was personally liable for the FLP loan that possessed and occupied a separate dwelling on the security property; (2) Must have earned gross farm income commensurate with: (i) The size and location of the farm; and (ii) The local agricultural conditions in at least 2 calendar years during the 6-year period immediately preceding the calendar year in which the applicant applied for homestead protection; (3) Must have received 60 percent of gross income from farming in at least two of the 6 years immediately preceding the year in which the applicant applied for homestead protection; (4) Must have lived in the home during the 6-year period immediately preceding the year in which the applicant applied for homestead protection. The applicant may have left the home for not more than 12 months if it was due to circumstances bey… | ||||
| 7:7:7.1.1.4.17.4.9.3 | 7 | Agriculture | VII | D | 766 | PART 766—DIRECT LOAN SERVICING—SPECIAL | D | Subpart D—Homestead Protection Program | § 766.153 Homestead Protection transferability. | FSA | Homestead protection rights are not transferable or assignable, unless the eligible party dies or becomes legally incompetent, in which case the homestead protection rights may be transferred to the spouse only, upon the spouse's agreement to comply with the terms and conditions of the lease. | ||||
| 7:7:7.1.1.4.17.4.9.4 | 7 | Agriculture | VII | D | 766 | PART 766—DIRECT LOAN SERVICING—SPECIAL | D | Subpart D—Homestead Protection Program | § 766.154 Homestead Protection leases. | FSA | [72 FR 63316, Nov. 8, 2007, as amended at 76 FR 5058, Jan. 28, 2011] | (a) General. (1) The Agency may approve a lease-purchase agreement on the appropriate Agency form subject to obtaining title to the property. (2) If a third party obtains title to the property: (i) The applicant and the property are no longer eligible for homestead protection; (ii) The Agency will not implement any outstanding lease-purchase agreement. (3) The borrower may request homestead protection for property subject to third party redemption rights. In such case, homestead protection will not begin until the Agency obtains title to the property. (b) Lease terms and conditions. (1) The amount of rent will be based on equivalent rents charged for similar residential properties in the area in which the dwelling is located. (2) All leases will include an option to purchase the homestead protection property as described in paragraph (c) of this section. (3) The lease term will not be less than 3 years and will not exceed 5 years. (4) The lessee must agree to make lease payments on time and maintain the property. (5) The lessee must cooperate with Agency efforts to sell the remaining portion of the farm. (c) Lease-purchase options. (1) The lessee may exercise in writing the purchase option and complete the homestead protection purchase at any time prior to the expiration of the lease provided all lease payments are current. (2) If the lessee is a member of a socially disadvantaged group, the lessee may designate a member of the lessee's immediate family (that is, parent, sibling, or child) (designee) as having the right to exercise the option to purchase. (3) The purchase price is the market value of the property when the option is exercised as determined by a current appraisal obtained by the Agency. (4) The lessee or designee may purchase homestead protection property with cash or other credit source. (5) The lessee or designee may receive Agency program or non-program financing provided: (i) The lessee or designee has not received previous debt forgiveness; (ii) The Agency has funds avail… | |||
| 7:7:7.1.1.4.17.4.9.5 | 7 | Agriculture | VII | D | 766 | PART 766—DIRECT LOAN SERVICING—SPECIAL | D | Subpart D—Homestead Protection Program | § 766.155 Conflict with State law. | FSA | If there is a conflict between a borrower's homestead protection rights and any provisions of State law relating to redemption rights, the State law prevails. | ||||
| 7:7:7.1.1.4.17.4.9.6 | 7 | Agriculture | VII | D | 766 | PART 766—DIRECT LOAN SERVICING—SPECIAL | D | Subpart D—Homestead Protection Program | §§ 766.156-766.200 [Reserved] | FSA | |||||
| 7:7:7.1.1.4.17.5.9.1 | 7 | Agriculture | VII | D | 766 | PART 766—DIRECT LOAN SERVICING—SPECIAL | E | Subpart E—Servicing Shared Appreciation Agreements and Net Recovery Buyout Agreements | § 766.201 Shared Appreciation Agreement. | FSA | [72 FR 63316, Nov. 8, 2007, as amended at 89 FR 65045, Aug. 8, 2024] | (a) When a SAA is required. The Agency requires a borrower to enter into a SAA with the Agency covering all real estate security when the borrower: (1) Owns any real estate that serves or will serve as loan security; and (2) Accepts a write-down in accordance with § 766.111. (b) When SAA is due. The borrower must repay the calculated amount of shared appreciation after a term of 5 years from the date of the write-down, or earlier if: (1) The borrower sells or conveys all or a portion of the Agency's real estate security, unless real estate is conveyed upon the death of a borrower to a spouse who will continue farming; (2) The borrower repays or satisfies all FLP loans; (3) The borrower ceases farming; or (4) The Agency accelerates the borrower's loans. |
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chapter TEXT,
subchapter TEXT,
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